Hanks v. Kelly

Filing 27

DECISION AND ORDER: ORDERED that the petition, Dkt. No. 1 , is DENIED and DISMISSED. ORDERED that no Certificate of Appealability ("COA") shall issue because petitioner failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. §2253(c)(2) requires. Signed by Judge Brenda K. Sannes on 11/3/15. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

TERRIS HANKS,
Petitioner,
v.
9:14-CV-0618
(BKS)

CHARLES F. KELLY,
Respondent.

APPEARANCES:
TERRIS HANKS
08-B-0878
Petitioner, pro se
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403
HON. ERIC T. SCHNEIDERMAN
Attorney for Respondent
Office of the Attorney General
120 Broadway
New York, New York 10271

ALYSON J. GILL, AAG

BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
Petitioner Terris Hanks filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 and a memorandum of law. Dkt. No. 1, Petition ("Pet.") at 1-6;1 Memorandum
of Law Supporting Writ of Habeas Corpus ("Mem.") at 7-44. He argues: (1) trial counsel was
ineffective because he failed to include certain arguments in his motion to suppress
evidence; and (2) appellate counsel was ineffective. Pet. at 4; Mem. at 13-44. Respondent
1

The cited page numbers for the petition and memorandum refer to those generated by the Court's
electronic filing system.

opposes the petition. Dkt. No. 15, Respondent's Mem orandum of Law in Opposition to the
Petition for a Writ of Habeas Corpus ("R. Mem."); Dkt. No. 15-1, Answer; Dkt. No. 17, State
Court Records ("SR"). Petitioner filed a reply. Dkt. No. 9, Traverse in Opposition ("Reply.").2
For the reasons that follow, the petition is denied and dismissed.
II.

RELEVANT BACKGROUND
A.

The Charges and the Investigation

In August 2007, an Onondaga County grand jury indicted petitioner for second degree
conspiracy (N.Y. Penal Law §105.15), third degree criminal possession of a controlled
substance (N.Y. Penal Law §220.16(1)), second degree criminal sale of a controlled
substance (N.Y. Penal Law §220.41(1)), and first degree criminal possession of a controlled
substance (N.Y. Penal Law §220.21(1)). Pet. at 1; Dkt. No. 17-15 at SR 1927-28, Affidavit of
Paul G. Carey, Esq., Dec. 4, 2007. The charges stemmed from petitioner's involvement in a
narcotics distribution network operating in and around the City of Syracuse. R. Mem. at 1-2.
The investigation, led by the Attorney General's Statewide Organized Crime Task
Force ("OCTF") with the assistance of the Onondaga County District Attorney and local, state
and federal law enforcement agencies, began in September 2006 and concluded in July
2007. During the investigation, the county court issued ten pen register authorizations
beginning in November 2006, and a series of nine eavesdropping warrants, to assist in the
investigation. Dkt. No. 17-4 at SR 294-95, Decision/Order, Aloi, J., Aug . 6, 2010. The first

2

Respondent's original response was filed on November 7, 2014. Dkt. No. 7, Answer; Dkt. No. 7-1,
Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus; Dkt. No. 8, State
Court Records. Petitioner filed his reply, Dkt. No. 9, and then asked the Court to direct the respondent to re-file
the state court records to include additional documents and to correct the pagination. Dkt. No. 10, Letter Motion.
Respondent agreed with petitioner, and the Court granted petitioner's request. Dkt. No. 11, Letter Response;
Dkt. No. 12, Text Order. Respondent's corrected memorandum of law and state court record were filed on
December 17, 2014. Dkt. Nos. 15, 17.

2

warrant, issued on January 11, 2007, authorized the OCTF to wiretap phones used by
Ronald Anderson, a suspected cocaine dealer. Dkt. No. 17-7 at SR 607-610, Eav esdropping
Warrant. The second warrant reflected an update in the telephone num bers used by
Anderson. Id. at SR 650-53, Amended Eavesdropping Warrant. On February 8, 2007, a
third warrant extended the OCTF's authorization to wiretap Anderson's phones, and
extended the OCTF's authority to wiretap phones used by Anderson's suspected drug
suppliers, including Jorge Santos, Santos's brothers, and Tywan Gregory. Id. at SR 688-92,
Amended and Extended Eavesdropping Warrant. The fourth warrant, issued on March 7,
2007, extended the OCTF's authorization to wiretap phones belonging to the Santos brothers
and Gregory. Dkt. No. 17-8 at SR 747-51, Amended and Extended Eavesdropping Warrant.
On April 4, 2007, the court issued a fifth warrant authorizing the OCTF to wiretap
phones belonging to petitioner, whom law enforcement officials believed was Gregory's
cocaine dealer. Dkt. No. 17-8 at SR 803-807, Amended and Extended Eavesdropping
Warrant ("fifth warrant"); SR 824-63, Affidavit in Support of an Application for an Amended
and Extended Eavesdropping Warrant ("fifth warrant application"). The warrant was
extended on May 3, 2007. Dkt. No. 17-9 at SR 888-93, Amended and Extended
Eavesdropping Warrant. Calls intercepted pursuant to the fifth warrant and its extension
gave the OCTF probable cause to stop and search a car, in which petitioner was an
occupant, returning to New York with a quantity of cocaine purchased in North Carolina. Dkt.
No. 17-13 at SR 1651-52, Search and Seizure Warrant; Dkt. No. 17-13 at SR 1653-79,
Search Warrant and Seizure Warrant Application.
B.

The Motion to Suppress

In papers dated December 4, 2007, counsel filed an omnibus motion that included,
3

among other things,3 a motion to suppress evidence obtained as a result of the fifth warrant
and the search warrrant, arguing that the fifth warrant application did not show that normal
investigative procedures failed, were unlikely to succeed, or were too dangerous to use, as
required pursuant to New York Criminal Procedure Law ("CPL") §700.15. Dkt. No. 17-15 at
SR 1926, Notice of Motion; SR 1927-55, Affidavit. The People opposed the motion. Dkt. No.
17-15 at SR 1961-69, People's Response to Def endant's Omnibus Motion.
On December 20, 2007, petitioner appeared with counsel to discuss the motions. Dkt.
No. 17-15 at SR 1975, Motions Transcript. Petitioner rejected a proposed plea agreement
that would have required him to plead guilty to second degree criminal sale of a controlled
substance in satisfaction of the indictment, and to waive his right to appeal, in exchange for a
promised determinate sentence of eight years in prison followed by five years post-release
supervision. Id. at SR 1971. The court explained that if petitioner was convicted of first
degree criminal possession of a controlled substance, as charged, he faced no less than
twelve and no more than twenty-four years in prison. Id. at SR 1972-75. The court further
stressed that if petitioner was convicted on each count of the indictment, some of the
sentences imposed could run consecutively. Id. at SR 1975. After petitioner rejected the
offer, the court adjourned the case for further proceedings on petitioner's remaining motions.
Id. at SR 1975-79; Dkt. No. 17-15 at SR 1958, Decision/Order, Aloi, J., Dec. 17, 2007.
On January 22, 2008, trial counsel submitted a letter in support of his motion to
suppress, in which he argued the fifth warrant application failed to specify facts that would
support probable cause; there was no showing that "normal investigate techniques

3

Counsel also moved to inspect the grand jury minutes, and on December 17, 2007, the trial court
denied that motion. Dkt. No. 17-15 at SR 1958, Decision/Order, Aloi, J, Dec. 17, 2007.

4

specifically targeted at petitioner would not have produced additional information;" and the
warrant applicant's description "with regards to previous physical surveillance was simply
boiler plate verbatim from language utilized in a previous wiretap (wiretap #4)" and was
insufficient to establish probable cause. Dkt. No. 17-15 at SR 1984-85, Letter.
On January 25, 2008, petitioner appeared in court with counsel to discuss whether the
parties agreed on a disposition of the case. Dkt. No. 17-15 at SR 1986-94, Proceeding .
Counsel reminded the court he submitted "numerous motions with regard to electronics
surveillance and the legitimacy of the eavesdropping warrant that was issued," and that
petitioner wanted to speak to the court "with regard to some of his legal research that he's
done ... and how he thinks it's important." Id. at SR 1987. Petitioner told the court that he
had the opportunity to review the information counsel provided to him, and that "[o]verall
[counsel's] representation is really legitimate." Id. at SR 1988. Petitioner asked permission
to submit a supplemental pro se memorandum of law in support of the motion to suppress,
and the trial court agreed. Id. at SR 1988-89.
Petitioner filed an undated memorandum of law in which he argued that: the fifth
warrant application failed to establish that the "OCTF either adequately pursued less
intrusive investigative methods, or that less intrusive methods would have been unlikely to
succeed if tried;" the OCTF did not seek a "Pen Register" before resorting to wiretapping; the
People alleged no "difficulties inherent in the use of physical surveillance" against him; the
People failed to make an "independent showing of necessity" for the eavesdropping warrant
against him, and "applications contained material false allegations of necessity from previous
affidavits;" and the court abused its discretion by issuing an eavesdropping warrant based on
"template allegations of necessity carried-over from affidavit to affidavit with out [sic] a
5

particularized showings [sic] of necessity to wiretap" his phone. Dkt. No. 17-15 at SR 199599, Memorandum of Law in Support of Motion to Convert a [sic] Eavesdropping and Search
Warrant Application (emphasis in original). Petitioner appeared to agree that the first warrant
application, targeting Anderson, contained a "particularized detailed rendition of facts"
establishing that the OCTF used "a wide range of investigative techniques in the pre-wiretap
phase of the investigation," and alleged that normal investigative methods were unlikely to
succeed as to Anderson. Id. at SR 1998-99. But he argued that the fifth warrant application
simply repeated the original statements of fact demonstrating necessity as to Anderson, and
that those allegations were not relevant to petitioner. Id. at SR 1999-2004. Finally, petitioner
argued that the May 28, 2007 search warrant, "granted on the strength of drug related
conversations intercepted" under the eavesdropping warrants, was invalid and all evidence
seized pursuant to the search warrant had to be suppressed. Id. at SR 2004.
The trial court issued a written decision denying petitioner's motions. Dkt. No. 17-15
at SR 2014-22, Decision/Order, Aloi, J., Feb. 7, 2008. 4 The court stated that it reviewed the
motion papers, the People's response, and petitioner's " memorandum of law in support of his
motion" when making its decision, but found defendant's arguments were meritless. Id. at
SR 2015-22. The first application showed "a sophisticated drug operation about which the
investigators had learned significant but limited information using other investigative

4

During the February 8, 2008 court appearance, the assistant attorney general asked the court for time
to respond to the claims petitioner raised in his pro se papers, and the court agreed. Dkt. No. 17-15 at SR 201213. The People's response is dated February 11, 2008. Dkt. No. 17-15 at SR 2023-2025, People's Response to
Defendant's Pro Se Motion "To Convert a Eavesdropping Warrant and Search Warrant Application." Although
the trial court's decision denying the motion is dated February 7, 2008, the decision was given to the parties
during the February 13, 2008 court appearance. Id. at SR 2029 (the court stated, "It's my understanding that
your client wants to further review the Court's decision that I have just handed to you relative to the Court
decision on the eavesdropping application.").

6

procedures," and that "those means alone had not and were not likely to accomplish the
objectives of their investigation ... to identify and gather evidence against other potential coconspirators." Id. at SR 2021. The court further explained that surveillance alone would not
be effective because the narcotics business was conducted "inside private buildings and
residences and by use of the telephone," and investigators lacked an informant or
undercover officer who could infiltrate the operation. Id. at SR 2021-22.
Finally, the court ruled that the applications established probable cause f or
wiretapping petitioner because "during February, March and April of 2007, while intercepting
telephone lines affiliated with Tywan Gregory, numerous conversations were intercepted over
those lines between Tywan Gregory and [petitioner] which were interpreted to involve the
purchase and sale of narcotic drugs." Dkt. No. 17-15 at SR 2017. Specifically, the court
noted the following intercepted calls: on February 12, 2007, petitioner called Tywan Gregory
using a phone listed in petitioner's name and, during that conversation, Gregory identified
petitioner as Terry Hanks; petitioner met with Gregory on March 21, 2007; Gregory and an
unidentified woman identified petitioner as "Terry" in two calls intercepted and recorded on
petitioner's cell phone on March 22, 2007; on April 16 and April 20, 2007, petitioner m et with
co-defendant Christopher Reynolds; on April 23, 2007, petitioner met with Gregory, Eduardo
Barrot and Christopher Reynolds; and on May 16, 2007, investigators intercepted a call in
which petitioner identified himself as "T. Hanks." Dkt. No. 17-15 at SR. 2017-19.
In a court appearance on February 13, 2008, the trial court stated that a plea of fer was
made by the People and that under its terms, petitioner would plead guilty to second degree
criminal possession of a controlled substance, and waive his right to appeal, in exchange for
a determinate sentence of seven years in prison followed by five years post-release
7

supervision. Dkt. No. 17-2 at SR 250-51, Plea Offer (II). Petitioner did not want to waive his
right to appeal. Id. at SR 251. The trial court explained that if petitioner pleaded guilty to the
entire indictment, he could retain his right to appeal, and the court would impose the
minimum sentence permitted by law on each count, and order the sentences to run
concurrently. Id. at SR 252-53. The court stressed that petitioner could not receive less than
12 years in prison if he was convicted of first degree criminal possession of a controlled
substance after a trial. Id. at 253. The case was adjourned so that petitioner could further
review the court's decision denying his motion to suppress. Id. at SR 253-54.
C.

The Plea and Sentence

On February 19, 2008, petitioner rejected the People's of fer and opted to plead guilty
to the entire indictment in exchange for retaining his right to appeal and the court's promise
to sentence him to serve 4 ½ to 9 years in prison for second degree conspiracy; 7 years
followed by 1 ½ years post-release supervision for third degree criminal sale of a controlled
substance; 7 years followed by 1 ½ years post-release supervision for second degree
criminal sale of a controlled substance; and 12 years followed by 5 years post-release
supervision for first degree criminal sale of a controlled substance. Dkt. No. 17-2 at SR 25659, Plea.
Petitioner confirmed that he understood he was giving up the right to a jury trial, at
which he could cross-examine the People's witnesses, testify and call witnesses on his own
behalf. Dkt. No. 17-2 at SR 260. He understood that he w as pleading guilty to felony
charges, and that if he was convicted of another felony within ten years he must receive
mandatory state prison. Id. at SR 260-61. Petitioner confirmed that he understood his guilty

8

plea had the same legal effect as if a jury found him guilty after a trial, and that he did not
consume drugs or alcohol before coming to court. Id. at SR 261-62. He assured the court
he fully understood the terms of the plea agreement, and confirmed that no one forced or
threatened him to plead guilty. Id. at SR 262. He admitted the allegations in each count of
the indictment to which he was pleading guilty were true, and entered formal guilty pleas on
those counts. Id. at SR 262-65. The trial court accepted petitioner’s plea, finding that it was
knowing, intelligent and voluntary. Id. at SR 265.
On March 18, 2008, petitioner appeared f or sentencing. Dkt. No. 17-2 at SR 267-74,
Sentence. Petitioner admitted that in 1994 he was convicted of second degree criminal
possession of a controlled substance and that in 1995 he was convicted of first degree
knowingly making or possessing dangerous contraband in prison, and he did not want to
contest the validity of those convictions. Id. at SR 269. Petitioner told the court, "I accept
responsibility for my actions," and explained that he pled guilty to all counts of the indictment
to preserve his appeal rights. Id. at SR 270-71. He also told the court its decision denying
his motion to suppress was silent as to the arguments he made in his pro se brief. Id. at SR
271. The trial court responded that it considered petitioner's pro se arg uments and
addressed them in its written decision. Id. Petitioner was sentenced as promised,5 and he
filed a notice of appeal. Id. at SR 272-73; Dkt. No. 17-15 at SR 2055, Notice of Right to
Appeal.
D.

State Court Proceedings

In January 2010, before his direct appeal was perfected, petitioner moved to vacate

5
Petitioner was also ordered to pay a $270.00 mandatory surcharge and a $50.00 DNA Data Bank fee.
Dkt. No. 17-2 at SR 273. The surcharge was deferred until petitioner's release from custody. Id.

9

his conviction pursuant to New York Criminal Procedure Law ("CPL") §440.10. Dkt. No. 17 at
SR 2-6, Affidavit in Support of Motion to Vacate Judgment Pursuant to C.P.L. 440.10 ("440
Motion I"). He argued that after his conviction, he discovered that the eavesdropping warrant
applications contained materially false allegations of necessity. Id. at SR 2-5. Petitioner also
alleged that some of the search and eavesdropping warrant applications relied on illegal
warrantless GPS surveillance, and trial counsel was ineffective for not arguing that the fifth
warrant application failed to establish probable cause because there were no transcripts or
expert analysis of the intercepted calls. Id. at SR 5-6; SR 7-70, Memorandum of Law in
Support of Motion to Vacate a Judgment of Conviction Pursuant to Article 440 of the
N.Y.C.P.L.; SR 71-186, Exhibits. In February 2010, petitioner submitted a supplemental
affidavit detailing efforts he made to obtain an affidavit from trial counsel explaining his
representation. Id. at SR 188-93, Supplemental Affidavit in Support of CPL 440 Motion to
Vacate Judgment of Conviction.6 The People opposed the motion, and petitioner filed a
reply. Dkt. No. 17-2 at SR 202-15, Affirmation in Opposition to Motion to Vacate Judgment;
Dkt. No. 17-3 at SR 275-92, Defendants [sic] Affidavit in Support of Defendant Reply
Memorandum, C.P.L. 440.10 Motion to Vacate Judgment.
On August 6, 2010, the trial court denied petitioner's 440 Motion w ithout a hearing.
Dkt. No. 17-4 at SR 293-303. The court ruled that petitioner's claims relating to the
eavesdropping warrants were record-based and could be raised on direct appeal. Id. at SR
297-300 (citing CPL §§440.10(2)(b)). The court then rejected petitioner's ineffective
6

On April 18, 2010, petitioner moved the trial court to summarily grant his motion because the People
failed to respond. Dkt. No. 17-1 at SR 195-98, Affidavit in Support of an Order Summarily Granting the
Defendant's Judgment of Conviction Pursuant to C.P.L. 440.30(3) Vacated as a Result of the People's Failure to
Respond or Oppose. Petitioner's motion was denied because the trial court granted the People an extension of
time to respond to his motion. Id. at SR 200.

10

assistance of counsel claim on the merits, ruling that petitioner "clearly failed to show that his
lawyer's representation was ineffective or that he was prejudiced in any way by such
representation." Id. at SR 300-301. Specifically, the court noted that counsel filed a
suppression motion that "sufficiently detailed and set forth factual allegations that the
eavesdropping and search warrant applications failed to establish probable cause." Id. at SR
301. The court concluded that "[m]erely now stating that the facts and arguments made by
defense counsel were not accurate does not by virtue thereof otherwise constitute the
ineffective assistance of counsel." Id. at SR 301.
Petitioner sought leave to appeal, and on April 19, 2011, the Appellate Div ision denied
his request. Dkt. No. 17-4 at SR 305-306, Notice of Application for Leave to Appeal a
Judgment of Conviction Pursuant to N.Y.C.P.L. 446.15 and 22 N.Y.C.R.R. §1000.13(n); SR
307-22, Affidavit in Support of Leave to Appeal Pursuant to CPL §460.15 and Perm ission to
Consolidate the Matter with a Pending Action Pursuant to Appellate Rule 22 NYCRR
§1000.13(n); SR 327, Order.
On April 11, 2011, appellate counsel filed a brief in which she argued: (1) the trial
court erred in denying his motion to suppress evidence because the eavesdropping warrant
failed to allege sufficient facts to conclude that normal investigative techniques were tried
and failed or were likely to fail; and (2) the county court lacked probable cause to issue all but
the first eavesdropping warrant because the warrant applications did not include transcripts
and expert interpretation of the seized conversations. Dkt. No. 17-5 at SR 328-58, Brief for
Defendant/Appellant; SR 359-512, Appendix; Dkt. No. 17-7 at SR 563-709 and Dkt. No. 17-8
at SR 710-871, (Stipulated) Record on Appeal, Vol. I; Dkt. No. 17-9 at SR 872-1059 and Dkt.
No. 17-10 at SR 1060-1226, (Stipulated) Record on Appeal, Vol. II; Dkt. No. 17-11 at SR
11

1227-1394 and Dkt. No. 17-12 at SR 1395-1549, (Stipulated) Record on Appeal, Vol. III; Dkt.
No. 17-13 at SR 1550-1696 and Dkt. No. 17-14 at SR 1697-1832, (Stipulated) Record on
Appeal, Vol. IV; Dkt. No. 17-15 at SR 1833-2072, (Stipulated) Record on Appeal, Vol. V.
Petitioner filed a pro se supplemental brief in which he argued: (1) the People
improperly used eavesdropping warrants to intercept his calls without establishing sufficient
necessity; and (2) his guilty plea was invalid and improperly induced by the trial court
because the court denied his right to contest the warrants when it failed to address his pro se
arguments in its decision denying suppression. Dkt. No. 17-6 at SR 514-62, Brief for
Defendant/Appellant, Supplemental Brief, Pro Se. The People opposed. Dkt. No. 17-16 at
SR 2072-2119, Brief for Respondent. Petitioner's appellate counsel f iled a reply brief. Dkt.
No. 17-17 at SR 2120-37, Reply Brief for Defendant/Appellant.
On September 30, 2011, the Appellate Division affirmed. People v. Hanks, 87 A.D.3d
1370 (4th Dep't. 2011). The court first found that petitioner challenged "only the first warrant
and the fifth amended and extended warrant," and that he lacked "standing to challenge the
first warrant inasmuch as it related solely to a coconspirator." Id. at 1380-71. The Appellate
Division further found that the record supported the trial court's f inding that the application for
the fifth amended and extended warrant established that normal investigative procedures
were tried and failed or reasonably appeared unlikely to succeed if tried, or to be too
dangerous to use:
In an affidavit supporting that warrant application, a detective detailed the
traditional investigative techniques, including but not limited to physical
surveillance of defendant and the use of confidential informants, that were
utilized by Task Force members beginning four months prior to the issuance of
the first warrant and continuing up to the date of the application for the fifth
amended and extended warrant. The detective averred that, despite continued
attempts, use of those traditional investigative techniques alone would not
12

permit the Task Force to identify and successfully prosecute all suppliers of
controlled substances, a stated goal of the investigation. Further, because the
detective provided details regarding the past and continued attempts to use
traditional investigative techniques in connection with the investigation of
defendant and his coconspirators, it cannot be said that the [T ask Force] relied
solely on past investigations into [drug conspiracies] in general to support the[ ]
assertion that normal investigative techniques would be generally unproductive
in the [current] investigation.
Id. at 1371 (internal citations and quotation marks omitted; alterations in original). The
Appellate Division further rejected petitioner's claim that the trial court failed to address on
the record its reasons for rejecting his pro se arguments in favor of suppression. The court
explained that the arguments were "plainly inadequate," and that because the memorandum
was "unsworn and unsigned," it did not "contain any 'sworn allegations of fact' supporting his
arguments[.]" Id. (citing CPL 710.60 (1)). Finally, the Appellate Division concluded that
petitioner "failed to preserve the remaining contentions in his main and pro se supplemental
briefs for our review (see CPL 470.05 [2])" and declined to "exercise [its] power to review
those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a])."
Id. at 1372.
Appellate counsel moved to reargue the appeal, claiming the Appellate Division
overlooked or misapprehended the record on appeal relating to its decision that petitioner
lacked standing to challenge the first eavesdropping warrant. She argued that the People
failed to preserve the issue of petitioner's standing to challenge the first eavesdropping
warrant because that argument was never raised in the trial court. Dkt. No. 17-18 at SR
2142-45; Affirmation in Support of Motion to Reargue. Appellate counsel also argued that
petitioner's probable cause challenge to the fifth warrant application and resulting warrant
was preserved for appellate review because it was raised in his motion to suppress and was
13

ruled on by the trial court. Id. at SR 2145-46. Reargument was granted, and on December
23, 2011, the Appellate Division amended its earlier decision by striking the part holding that
petitioner lacked standing to challenge the first eavesdropping warrant. Hanks, 90 A.D.3d
1592 (4th Dep't. 2011).7 The Appellate Division did not address counsel's probable cause
argument. Id. On January 31, 2012, the New York Court of Appeals denied leave to appeal.
Hanks, 18 N.Y.3d 883 (2012).
Petitioner filed a second CPL §440.10 motion on or about July 3, 2012, in which he
argued that he was denied the right to be present at a material stage of the trial and was
denied effective assistance of counsel based on inaccurate information relating to the guilty
plea. Dkt. No. 17-20 at SR 2210-19, Affidavit in Support of Motion to Vacate Defendant [sic]
Judgment of Conviction Pursuant to C.P.L. §440.10(1), (f), (g); SR 2220-37, Memorandum of
Law; SR 2238-2386, Exhibits. The People opposed the motion. Dkt. No. 17-21 at SR 24002639, Affirmation in Opposition to Motion to Vacate Judgment with Exhibits. On January 16,
2013, the trial court denied petitioner's motion. Dkt. No. 17-20 at SR 2388-97,
Decision/Order, Aloi, J., Jan. 16, 2013. On May 17, 2013, the Appellate Division denied
petitioner's motion to extend the time to move for leave to appeal from the trial court's
decision. Dkt. No. 17-20 at SR 2398, Order, May 17, 2013.
In papers dated August 9, 2013, petitioner filed a writ of error coram nobis in which he
argued appellate counsel was ineffective. Dkt. No. 17-23 at SR 2665-69, Affidavit in Support
of Error Coram Nobis; Dkt. No. 17-23 at SR 2670-2761, Appendix/Exhibits; SR 2762-2803,

7

In papers dated January 20, 2012, petitioner filed a pro se motion to reargue the direct appeal. Dkt.
No. 17-18 at SR 2156-60, Affidavit in Support of Motion to Reargue. He reiterated appellate counsel's claim that
the People failed to preserve its argument that he lacked standing to challenge the first eavesdropping warrant.
Id. On March 16, 2012, the Appellate Division denied his motion. Hanks, 93 A.D.3d 1257 (4th Dep't. 2012).

14

Writ of Error Coram Nobis. The People opposed the writ. Dkt. No. 17-25 at SR 2912-24,
Affirmation in Opposition to Motion for Writ of Error Coram Nobis; SR 2925-70, Exhibits.
Petitioner filed a reply. Dkt. No. 17-25 at SR 2971-85, Reply to the People's Answering
Affirmation in Opposition. On September 27, 2013, the Appellate Division denied petitioner's
motion. Dkt. No. 17-25 at SR 2986, Order. On April 4, 2014, the New York Court of Appeals
denied leave to appeal. Dkt. No. 17-25 at SR 3011, Order Denying Leave.
This action followed.
III.

DISCUSSION
A.

Ground One - Ineffective Assistance of Trial Counsel

Petitioner claims in Ground One of his petition that trial counsel was ineffective
because he filed a "pro forma and perfunctory suppression application" that contained "no
factual allegations, legal authority or rational [sic] for suppression" and he did not argue that
the county court lacked probable cause to issue the fifth eavesdropping warrant. Pet. at 4;
Mem. at 8, 14-15, 16-18. Petitioner claims trial counsel should have argued: (1) the fifth
warrant application failed "to state of [sic] intercepted conversation [sic] as a basis for
issuance of the initial wiretap order" issued against petitioner's phone; and (2) the fifth
warrant was issued "in violation of the warrant process under the state and federal
constitution" because there were no transcripts or expert analysis of the conversations cited
as the predicate for probable cause. Mem. at 22-30. According to petitioner, counsel's
failure to include these arguments in his suppression motion allowed the state the
opportunity to prosecute him "on the basis of unconstitutional [sic] obtained evidence
inadmissible in a trial." Mem. at 34. Finally, petitioner appears to argue that trial counsel
failed to contest the issuance of the search warrant. Mem. at 14-15. Respondent argues
15

that petitioner's ineffective assistance claims are precluded from habeas review by virtue of
his counseled guilty plea. R. Mem. at 14-16. This Court agrees.
Ordinarily, once a defendant has pleaded guilty in open court, he or she may not
"thereafter raise independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea" because the plea "represents a break in the
chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411
U.S. 258, 267 (1973). Therefore, the focus of federal habeas review is the nature of
counsel's advice of counsel to plead guilty and the voluntariness of the plea, "not the
existence as such of an antecedent constitutional infirmity." Tollett, 411 U.S. at 266; see
North Carolina v. Alford, 400 U.S. 25, 31 (1970) (stating that relevant inquiry for the federal
habeas court was whether the guilty plea "represent[ed] a voluntary and intelligent choice
among the alternative courses of action open to the defendant"). In other words, "a petitioner
may not assert pre-plea constitutional violations bearing on the valid establishment of his
factual guilt" on collateral review. United States v. Gregg, 463 F.3d 160, 164 (2d Cir. 2006)
(per curiam).
Here, petitioner does not challenge the voluntary and intelligent nature of his guilty
plea. Nor does he allege that counsel's advice with respect to whether to plead guilty was
somehow deficient - the only type of ineffective assistance claim that survives a guilty plea and a review of the record reveals no basis to do so. 8 See, e.g., Premo v. Moore, 562 U.S.

8

It is worth noting that despite petitioner's prior felony convictions, counsel negotiated a favorable plea
agreement that required petitioner to plead guilty to second degree criminal possession of a controlled
substance, and waive his right to appeal, in exchange for a determinate sentence of 7 years followed by 5 years
post-release supervision. Dkt. No. 17-2 at SR 251-52, 258-59. When petitioner rejected that agreement in order
to retain his right to appeal, counsel secured the court's promise to impose the minimum aggregate sentence
authorized for a predicate felon, and petitioner was sentenced to an aggregate term of 12 years in prison
followed by 5 years post-release supervision. Dkt. No. 17-2 at SR 272-73. As the trial court noted, however,

16

115, 118 (2011) ("The instant case . . . concerns the adequacy of representation in providing
an assessment of a plea bargain without first seeking suppression of a confession assumed
to have been improperly obtained."); Tollett, 411 U.S. at 268 ("In order to obtain his release
on federal habeas . . . , respondent must not only establish the unconstitutional
discrimination in selection of grand jurors, he must also establish that his attorney's advice to
plead guilty without having made inquiry into the composition of the grand jury rendered that
advice outside the range of competence demanded of attorneys in criminal cases.") (internal
quotation marks and citation omitted); United States v. Coffin, 76 F.3d 494, 497 (2d Cir.
1996) (defendant must show that advice to plead guilty "was not within [acceptable]
standards.") (quoting Tollett, 411 U.S. at 267) (alteration in original). Instead, petitioner
argues that counsel's suppression motion was deficient and that had counsel included
certain arguments in the motion, the motion would have been granted. Pet. at 4; Mem. at 1334.9 That claim is precluded by his plea. Tollett, 411 U.S. at 267.
Petitioner argues, however, that his ineffective assistance claim survives his plea
because New York permits a defendant to appeal from an adverse ruling in a pretrial

petitioner faced up to 24 years in prison if convicted after trial of first degree criminal possession of a controlled
substance, and if he was convicted on the rest of the counts in the indictment, some of the sentences imposed
could run consecutively. Dkt. No. 17-2 at SR 253-54; 258-60; Dkt. No. 17-15 at SR 1972-75.
9

Even if petitioner's claim survived his plea, he would not be entitled to habeas relief. The trial court
rejected petitioner's arguments, raised in his first CPL 440.10 motion, that trial counsel was ineffective for failing
to adequately argue that the eavesdropping and search warrants did not establish probable cause because there
were no transcripts of the calls or expert analysis of the intercepted conversations. Dkt. No. 17 at SR 8, 52-69;
Dkt. No. 17-4 at SR 293-303. Trial counsel did not include these specific arguments in his motion, but the trial
court's ruling that counsel made a "comprehensive" suppression motion that "sufficiently detailed and set forth
factual allegations that the eavesdropping and search warrant applications failed to establish probable cause" is
supported by the record, was reasonable, and was not contrary to Strickland v. Washington, 466 U.S. 668, 694
(1984). See Dkt. No. 17-4 at SR 301; Dkt. No. 17-15 at SR 1927-55, 1984-85, 1995-2005; Richter, 562 U.S. at
791 ("Strickland does not guarantee perfect representation, only a reasonably competent attorney." (quoting
Strickland, 466 U.S. at 687) (internal quotation marks and further citation omitted).

17

suppression hearing despite the fact that the conviction is based upon a guilty plea. Reply at
2-3; see N.Y. Crim. Proc. § 710.70(2) ("An order finally denying a motion to suppress
evidence may be reviewed upon an appeal from an ensuing judgment of conviction
notwithstanding the fact that such judgment is entered upon a plea of guilty."). He cites the
Supreme Court's holding in Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975) in support of
this argument. Id.
In Lefkowitz, the Supreme Court held that "when state law permits a defendant to
plead guilty without forfeiting his right to judicial review of specified constitutional issues, the
defendant is not foreclosed from pursuing those constitutional claims in a federal habeas
corpus proceeding." Lefkowitz, 420 U.S. at 293. But the Lefkowitz exception does not apply
in this case because petitioner does not directly challenge the trial court's adverse
suppression ruling, instead arguing that trial counsel failed to make sufficient arguments in
support of his motion to suppress. 10 New York does not "permit a defendant to appeal
ineffective assistance of counsel claims relating to events prior to the plea that do not impact
the voluntariness of the plea." Rodriguez v. Conway, No. 1:07-CV-9863, 2009 WL 636503 at
*19 n. 29 (S.D.N.Y. Mar. 13, 2009); adopted by 2009 WL 3094939 (S.D.N.Y. Sept. 28, 2009);
10

Even assuming petitioner's papers were read to challenge the suppression ruling, Lefkowitz would not
control. Petitioner's guilty plea would not foreclose a challenge to the trial court's suppression ruling, but the
Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976) would preclude federal habeas review. In
Stone, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at
494-95. Following Stone, review of Fourth Amendment claims in habeas petitions is permissible only: "(a) if the
state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if
the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism
because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.
1992). New York has a corrective procedure for Fourth Amendment violations, which is facially adequate. See
CPL §710; Capellan, 975 F.2d at 70 n. 1. Petitioner availed himself of that procedure by making a motion to
suppress the evidence recovered as a result of the eavesdropping and search warrants. The trial court denied
the motion and petitioner appealed that denial. Based on the record, there was no unconscionable breakdown in
the underlying process. Therefore, any direct challenge to the suppression ruling in this case is barred by Stone.

18

see Mills v. Lempke, No. 6:14-CV-6113, 2015 W L 1632656 at *7 (W.D.N.Y. Apr. 13, 2015)
("Because defendants are not permitted under New York law to appeal ineffective assistance
of counsel claims relating to events prior to the guilty plea that do not affect the voluntariness
of the plea, the Lefkowitz exception does not apply."); Vasquez v. Parrott, 397 F. Supp. 2d
452, 463 n. 5 (S.D.N.Y. 2005) ("The Lefkowitz exception does not apply here, because
claims of ineffective assistance of counsel relating to events prior to the plea that do not
impact the voluntariness of the plea do not survive a guilty plea."); People v. Petgen, 55
N.Y.2d 529, 534-35 (1982) ("Nor does defendant's assertion in this case that he was denied
effective assistance of counsel survive his plea. There is no suggestion that, aside from the
asserted default of the first attorney in failing to make a suppression motion, the acceptance
of the plea was infected by any ineffective assistance of counsel.... [I]t cannot be said that
any ineffective assistance of counsel vitiated defendant's plea of guilty premised as it was on
advice of counsel (as to which there is now no suggestion of incompetency) comprehending,
inter alia, the very claims of ineffective assistance of counsel that defendant now urges on
us."); People v. Patterson, 106 A.D.3d 757, 758 (2d Dep't. 2013) ("Since the defendant's
claim of ineffective assistance of counsel, raised in his pro se supplemental brief, does not
directly involve the negotiation of his plea of guilty, the defendant forfeited that claim by
pleading guilty."), lv. denied 21 N.Y.3d 1018 (2013).
Petitioner also appears to argue that under the Supreme Court's decision in
Kimmelman v. Morrison, 477 U.S. 365, 378 (1986), his guilty plea did not preclude him
raising a claim that trial counsel was ineffective for failing to competently litigate the
suppression motion. Mem. at 21-22, Reply at 3-4. Petitioner's reliance on Kimmelman is
also misplaced. In that case, the Supreme Court held that ineffective assistance claims
19

under the Sixth Amendment in relation to counsel's performance at suppression hearings are
not precluded from habeas review under Stone v. Powell, 428 U.S. 465 (1976), a case that
bars habeas review of Fourth Amendment claims except in limited circumstances.
Kimmelman, 477 U.S. at 382-83. But the defendant in Kimmelman was convicted following a
bench trial, and so that case necessarily did not involve any analysis of the legal effect of a
petitioner's counseled guilty plea. See id. ("Where a State obtains a criminal conviction in a
trial in which the accused is deprived of the effective assistance of counsel, the State ...
unconstitutionally deprives the defendant of his liberty . . . [w]e hold that federal courts may
grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney
error.") (internal quotations and citation omitted; emphasis added); see also Premo, 562 U.S.
at 131 ("But Kimmelman concerned a conviction following a bench trial, so it did not
establish, much less clearly establish, the appropriate standard for prejudice in cases
involving plea bargains." (citing Kimmelman, 477 U.S. at 389)).
In sum, petitioner's ineffective assistance claim is barred from consideration by Tollett
and its progeny because it relates to events prior to his guilty plea that do not impact the
nature of counsel's advice to plead guilty or voluntariness of the plea. Tollett, 411 U.S. at
266, 268; see Haring v. Prosise, 462 U.S. 306, 321 (1983) ("Our decisions in Tollett and the
cases that followed simply recognized that when a defendant is convicted pursuant to his
guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged
Fourth Amendment violation because the conviction does not rest in any way on evidence
that may have been improperly seized."); United States v. Torres, 129 F.3d 710, 715 (2d Cir.
1997) (declining to address defendant's argument that his counsel was ineffective for failing
to interview and call certain witnesses at a pretrial suppression hearing because it was the
20

type of pre-plea claim that a defendant may not assert following a guilty plea, pursuant to
Tollett); Cavanaugh v. Perez, No. 9:14-CV-0651(GTS), Dkt. No. 10, Decision and Order
(N.D.N.Y. Jun. 15, 2015) (finding that Tollett precluded federal habeas review of petitioner's
claim that trial counsel's performance at the suppression hearing was deficient), appeal
dismissed by No. 15-2064 (2d Cir. Oct. 7, 2014); Ture v. Racette, No. 9:12-CV-1864 (JKS),
2014 WL 2895439 at *9 (N.D.N.Y. Jun. 26, 2014) ("the Tollett bar . . . also applies to
'ineffective assistance claims relating to events prior to the guilty plea.'") (citation omitted);
James v. Smith, No. 9:12-CV-0857 (FJS/ATB), 2013 WL 4519773 at *8-9 (N.D.N.Y. Aug. 26,
2013) ("Petitioner's arguments that trial counsel was ineffective in pre-plea representation,
e.g., by not conducting further investigation into whether the victim suffered 'physical injury'
was an antecedent claim not affecting the voluntariness of his guilty plea. Such claims are
effectively barred from consideration in a habeas proceeding by Tollett [.]"); Harris v. Bezio,
No. 1:11-CV-0360, 2012 WL 4026488 at *6 (W.D.N.Y. Sept. 12, 2012) (pre-plea claims of
ineffective assistance of counsel, including that counsel failed to object during a suppression
hearing, were foreclosed by a guilty plea because the petitioner failed to demonstrate "a link
between the errors purportedly committed by counsel prior to the plea and the allegedly
involuntary nature of Petitioner's decision to plead guilty."); Canal v. Donelli, No. 9:06-CV1490 (TJM/DRH), 2008 WL 4287385 at *3 (N.D.N.Y. Sept. 17, 2008) (petitioner's claim that
counsel's performance at a suppression hearing was deficient because he failed to call
witnesses, obtain "material facts and documents" for the hearing, and object at the hearing
was precluded from habeas review because "all bases for that claim occurred before
[petitioner] entered a plea of guilty."). Ground One of the petition is denied and dismissed.

21

B.

Ground Two - Ineffective Assistance of Appellate Counsel

Petitioner claims in Ground Two of his petition, as he did in his coram nobis
application, that appellate counsel was ineffective because she did not understand New
York's preservation rule, causing her to raise unpreserved issues and to omit a necessary
claim that trial counsel was ineffective. Pet. at 5; Mem. at 35-44. The Appellate Division's
rejection of these arguments was not contrary to or an unreasonable application of clearly
established Supreme Court precedent.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal
court may grant habeas corpus relief with respect to a claim adjudicated on the merits in
state court only if, based upon the record before the state court, the state court's decision: (1)
was contrary to, or involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States; or (2) was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. 28 U.S.C. §§2254(d)(1), (2); Cullen v. Pinholster, 563 U.S. 170, __, 131 S. Ct.
1388, 1398, 1400 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). This standard is "highly deferential" and "demands
that state-court decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U.S.
594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted)).
The Supreme Court has repeatedly explained that "a federal habeas court may
overturn a state court's application of federal law only if it is so erroneous that 'there is no
possibility fairminded jurists could disagree that the state court's decision conflicts with th[e
Supreme] Court's precedents.'" Nevada v. Jackson, __ U.S. __, 133 S. Ct. 1990, 1992
22

(2013) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see Metrish v.
Lancaster, __ U.S. __, 133 S. Ct. 1781, 1787 (2013) (explaining that success in a habeas
case premised on § 2254(d)(1) requires the petitioner to "show that the challenged
state-court ruling rested on 'an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.'") (quoting Richter, 562 U.S. at 103)).
Additionally, the AEDPA foreclosed "'using federal habeas corpus review as a vehicle
to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, __ U.S. __,
132 S. Ct. 2148, 2149 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court's
findings are not unreasonable under §2254(d)(2) simply because a federal habeas court
reviewing the claim in the first instance would have reached a different conclusion. Wood v.
Allen, 558 U.S. 290, 301 (2010). "The question under AEDPA is not whether a federal court
believes the state court's determination was incorrect but whether that determination was
unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473. Finally, federal
habeas courts must presume that the state courts' factual findings are correct unless a
petitioner rebuts that presumption with '"clear and convincing evidence.'" Schriro, 550 U.S.
at 473-74 (quoting § 2254(e)(1)).
To demonstrate constitutionally ineffective assistance of appellate counsel, a
petitioner must show: (1) that counsel's performance fell below an objective standard of
professional reasonableness; and (2) but for appellate counsel's "unprofessional errors," the
results of the proceedings would have been different, i.e., the error caused prejudice to the
petitioner. Smith v. Robbins, 528 U.S. 259, 285-286 (2000); Strickland v. Washington, 466
U.S. 668, 694 (1984). When challenging the effectiveness of appellate counsel, a petitioner
must show that counsel "omitted significant and obvious issues while pursuing issues that
23

were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994);
see Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000). A petitione r must show more than
counsel's failure to raise a non-frivolous argument, because counsel is required to use
professional judgment when deciding to concentrate on a few key issues while eliminating
weaker arguments, and is not required to advance every argument urged by the petitioner.
Evitts v. Lucey, 469 U.S. 387, 394 (1985); Jones v. Barnes, 463 U.S. 745, 751-752 (1983).
In this case, appellate counsel filed a detailed brief in which she raised two arguments
she believed had the greatest chance of success. Dkt. No. 17-5 at SR 328-58, Brief for
Defendant/Appellant with Appendix.11 Counsel also successfully moved for reargument,
resulting in the Appellate Division's amended decision deleting its determination that
petitioner lacked standing to challenge the first eavesdropping warrant. Hanks, 90 A.D.3d at
1592.
But petitioner argues appellate counsel was ineffective because she did not
understand the law of preservation. Specifically, he claims that she argued a free-standing,
unpreserved claim that the lower court lacked probable cause to issue the fifth warrant
because there were no transcripts or expert analysis of the intercepted calls, without also
arguing that trial counsel was ineffective for not including that argument in his motion to
suppress. Mem. at 37-41. Petitioner argues that the trial counsel ineffectiveness claim was
"necessary, warranted and required for the Appellate Division to address the specific legal
issue related to the lack of transcripts[.]" Id. at 41; Reply at 4-7. According to petitioner, had

11

In response to petitioner's inquiry into her "thought process" when writing the appellate brief, counsel
stated that her "general practice" was "to make all of the arguments that I view as even remotely meritorious so
as to present my clients' appeals in the best light and thereby best ensure their success or, in the alternative,
preserve their rights for future habeas corpus challenges if necessary." Dkt. No. 17-24 at SR 2911, Letter from
Linda M. Campbell to petitioner, dated Oct. 25, 2012.

24

counsel understood the law of preservation, she would have known the free-standing
probable cause claim was unpreserved, and the only way it could be reviewed was by also
arguing that trial counsel was ineffective for failing to include those arguments in his motion
to suppress. Id.; Reply at 5-8.
But based upon her motion for reargument, appellate counsel believed the probable
cause claim was preserved because petitioner challenged it in the "context of his pretrial
motion to suppress," and the "court below ruled on the probable cause challenge in its written
Memorandum/Order denying suppression." Dkt. No. 17-18 at SR 2146. Additionally,
counsel's understanding of the preservation rule was apparent from her successful argument
that the People failed to preserve their claim that petitioner lacked standing to challenge the
first eavesdropping warrant. Dkt. No. 17-18 at SR 2142-45. Finally, counsel likely
recognized that the Appellate Division had the discretion to review any unpreserved
arguments and grant relief in the interest of justice, and that it could do so in the absence of
an argument trial counsel was ineffective. CPL §470.15(6)(a); see Sepulveda v. Lee, No.
1:11-CV-0487, 2015 WL 5703135 at *13 (S.D.N.Y. Sept. 28, 2015) (finding that appellate
counsel was not "unreasonable for raising unpreserved claims on appeal" because New York
courts may review unpreserved claims in the interest of justice); Nickels v. Conway, No. 1:10CV-0413, 2015 WL 4478970 at *16-17 (W .D.N.Y. Jul. 22, 2015) (rejecting petitioner's claim
that appellate counsel deprived the Appellate Division of the opportunity to review a
sufficiency claim by not arguing trial counsel was ineffective for failing to preserve it, or by not
specifically asking the court to review it in the interest of justice, because "nothing appellate
counsel did or failed to do could deprive the Fourth Department of its ability to exercise its
interest-of-justice jurisdiction."); appeal filed, No. 15-2628 (2d Cir. Aug. 18, 2015); Sutherland
25

v. Senkowski, No. 1:02-CV-3833, 2003 W L 22953066 at *12 (E.D.N.Y. Oct. 17, 2003)
("Although an appellate counsel is limited by the trial record, he or she can raise an
unpreserved issue in the hope of convincing the appellate court to review the unpreserved
issue in the exercise of its interest of justice jurisdiction ... That the Appellate Division chose
not to exercise its interest of justice review does not signify that the claim was frivolous.")
(citation omitted).
Based on the record, the Appellate Division's rejection of petitioner's arguments as the
bases for his claim that appellate counsel was ineffective was reasonable and did not
contradict Supreme Court precedent. Smith, 528 U.S. at 289; Evitts, 469 U.S. at 394; see
Lopez v. Fischer, No. 1:05-CV-2558, 2006 W L 2996548 at *12 (S.D.N.Y. Oct. 16, 2006)
("petitioner cannot show that appellate counsel's failure to raise [meritless] claims on direct
appeal renders his representation below an objective standard of reasonableness, nor can
petitioner show that had these claims been presented on appeal, his outcom e would have
been any different"); Aparicio v. Artuz, 269 F.3d 78, 100 (2d Cir.2001) (explaining appellate
counsel is not ineffective for failing to make meritless arguments on appeal). Therefore,
Ground Two of the petition is denied and dismissed.
IV.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that the petition, Dkt. No. 1, is DENIED and DISMISSED; and it is further
ORDERED that no Certificate of Appealability ("COA") shall issue because petitioner

failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. §

26

2253(c)(2) requires;12 and it is further
ORDERED that the Clerk serve copies of this Decision and Order upon the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: November 3, 2015

12

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.
2007) (holding that, if the court denies a habeas petition on procedural grounds, "the certificate of appealability
must show that jurists of reason would find debatable two issues: (1) that the district court was correct in its
procedural ruling, and (2) that the applicant has established a valid constitutional violation" (citation omitted)).

27