Hines v. Stallone

Filing 11

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 Senior Judge Thomas J. McAvoy on 2/1/17. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

TERRANCE BROWN HINES,
Petitioner,
v.
9:16-CV-1078
(TJM)

DAVID A. STALLONE,
Respondent.

APPEARANCES:
TERRANCE BROWN HINES
13-B-3372
Petitioner, pro se
Cayuga Correctional Facility
P.O. Box 1186
Moravia, NY 13118
HON. ERIC T. SCHNEIDERMAN
Attorney for Respondent
Office of the Attorney General
120 Broadway
New York, New York 10271

MICHELLE ELAINE MAEROV, AAG

THOMAS J. MCAVOY
Senior United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
Petitioner Terrance Brown Hines filed a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254 along with several exhibits. Dkt. No. 1, Petition ("Pet.") at 1; Dkt. Nos. 11 and 1-2, Exhibits.1 He raises nine grounds for federal habeas relief: the trial court erred by
not accepting petitioner into a "judicial diversion" program (Ground One); there was a
"confirmatory identification," but no "actual identification procedure" was "performed"
1

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

(Ground Two); an officer's testimony identifying petitioner at trial should have been precluded
(Ground Three); an informant was improperly shown a "single photo" of petitioner (Ground
Four); the trial court improperly admitted into evidence "prejudicial hearsay concerning the
vehicle driven at the time of these criminal actions" (Ground Five); the prosecutor failed to
disclose before trial "what the informant was receiving for his cooperation with Law
Enforcement or for his testimony against" petitioner (Ground Six); the evidence was legally
insufficient and the verdict was against the weight of the evidence (Ground Seven); the trial
judge erred by failing to recuse himself (Ground Eight); the sentence was harsh and
excessive (Ground Nine); petitioner's motion to set aside the verdict, brought pursuant to
New York Criminal Procedure Law ("CPL") §330.30, should have been granted (Ground
Ten); and the transcripts were "fraudulent" and appellate counsel was ineffective (Ground
Eleven). Pet. at 4-5, 7-9.
Respondent opposes the petition. Dkt. No. 5, Answer; Dkt. No. 5-1, Respondent's
Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("R. Mem.");
Dkt. Nos. 6, 6-1 and 6-2, State Court Record ("SR"); Dkt. No. 7-1, Transcripts; Dkt. No. 8,
Declaration of Service. Petitioner filed a reply. Dkt. No. 10, Reply Affirmation in Support of
Petition for Habeas Corpus ("Reply").
For the reasons that follow, the petition is denied and dismissed.
II.

RELEVANT BACKGROUND
Petitioner challenges a November 7, 2013 judgment of conviction, following a non-jury

trial before a Cayuga County Court judge, of two counts of third degree criminal possession
of a controlled substance (N.Y. Penal Law §220.16(1)) and two counts of third degree
criminal sale of a controlled substance (N.Y. Penal Law §220.39(1)). Dkt. No. 6 at SR 85,
2

Indictment; People v. Hines, 132 A.D.3d 1385, 1385 (4 th Dep't. 2015). He was sentenced to
serve an aggregate term of ten years in prison followed by three years post-release
supervision. Dkt. No. 7-1, Sentencing Transcript at 28-29. 2
Petitioner appealed, and on October 9, 2015, the Appellate Div ision affirmed. Hines,
132 A.D.3d at 1385-88. The New York Court of Appeals denied leave to appeal on January
12, 2016. Hines, 26 N.Y.3d 1109 (2016).
The charges stemmed from petitioner's involvement in two sales of cocaine to a
confidential informant on June 1 and June 11, 2012 in the city of Auburn in Cayuga County.
See Dkt. No. 6-1 at SR 85; Dkt. No. 7-1 at 4-312, Trial Transcript; Hines, 132 A.D.3d at
1385-88. Before each sale, the informant met with members of the Finger Lakes Task
Force. He was searched for contraband, given an audio recording device and buy money,
and was taken to the locations were petitioner and the informant agreed to meet. Petitioner
drove a Pontiac Grand Prix to both meetings and picked up the informant. Each time the
informant gave petitioner $180.00 in exchange for an "eight ball" of cocaine. Both meetings
were monitored by members of the task force and, although the officers lost sight of the
vehicle, they monitored the sales through the audio device the informant carried. The
informant was searched again after each sale, and he no longer possessed the buy money.
Dkt. No. 7-1 at 84-92, 95-105, 137-56, 166, 190, 208-16, 230-36, 244-45, 264-86. T he
specific facts are known to the parties and will be repeated only to the extent necessary to
address petitioner's claims for habeas relief.

2

The cited page numbers for all transcripts refer to the original numbers appearing at the top right hand
corner of each page.

3

III.

DISCUSSION
A.

Standard of Review

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, 180-81, 185
(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
(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)).

4

Additionally, the AEDPA foreclosed "'using federal habeas corpus review as a vehicle
to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, 567 U.S.
37, 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.
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)). Finally, "[w]hen a state court rejects a federal
claim without expressly addressing that claim, a federal habeas court must presume that the
federal claim was adjudicated on the merits[.]" Johnson v. Williams, __ U.S. __, 133 S. Ct.
1088, 1096 (2013).
B.

Grounds One through Seven, Nine and Ten

An application for a writ of habeas corpus may not be granted until a petitioner
exhausts all remedies available in state court unless "there is an absence of available State
corrective process" or "circumstances exist that render such process ineffective to protect the
rights of the applicant." 28 U.S.C. § 2254 (b)(1)(A), (B)(I), (ii). The exhaustion requirement
"is principally designed to protect the state courts' role in the enf orcement of federal law and
prevent disruption of state judicial proceedings[.]" Jimenez v. Walker, 458 F.3d 130, 149 (2d

5

Cir. 2006) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
To satisfy the exhaustion requirement, a petitioner must do so both procedurally and
substantively. Procedural exhaustion requires that a petitioner raise all claims in state court
prior to raising them in a federal habeas petition. Substantive exhaustion requires that a
petitioner "fairly present" each claim for habeas relief in "each appropriate state court
(including a state supreme court with powers of discretionary review), thereby alerting that
court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations
omitted). In other words, petitioner "must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State's established appellate
review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In New York, "to invoke 'one complete round of the State's established appellate
review process,' a criminal defendant must first appeal his or her conviction to the Appellate
Division, and then must seek further review of that conviction by applying to the Court of
Appeals for a certificate granting leave to appeal." Galdamez v. Keane, 394 F.3d 68, 74 (2d
Cir. 2005) (quoting O'Sullivan, 526 U.S. at 845) (internal citation omitted). The leave
application may be made in letter form. See id.
A petitioner satisfies the fair presentation requirement by: "(a) reliance on pertinent
federal cases employing constitutional analysis, (b) reliance on state cases employing
constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular
as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern
of facts that is well within the mainstream of constitutional litigation." Carvajal v. Artus, 633
F.3d 95, 104 (2d Cir. 2011) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d

6

Cir. 1982) (en banc)); see Baldwin, 541 U.S. at 33 ("Reese, however, has not demonstrated
that Oregon law uses the words 'ineffective assistance' in the manner he suggests, that is, as
referring only to a federal-law claim.").
In this case, petitioner raised all of his claims except for Ground 11 on direct appeal,
and the Appellate Division rejected them. Compare Pet. with Dkt. No. 6-1 at SR 11-23, Brief
of Appellant. He sought leave to appeal to the New York Court of Appeals. Dkt. No. 6-1 at
SR 71, Leave Letter. Counsel stated, "[i]t is our contention that the Appellate Division,
Fourth Department was incorrect as a matter of law" on "various issues." Id. But the only
specific claim identified in the leave letter, and argued in detail, was his claim that the trial
judge should have recused himself from "hearing this bench trial." Id.; see Pet. at 8 (Ground
Eight). Because appellate counsel specifically argued only one claim at length in the leave
letter, Grounds One through Seven, Nine and Ten were not fairly presented to the New York
Court of Appeals and are unexhausted. See McKinnon v. Superintendent, Great Meadow
Corr. Fac., 422 F. App'x. 69, 75 (2d Cir. 2011) ("Because McKinnon failed to raise [a weight]
claim before the New York Court of Appeals, it was not preserved for review by the federal
courts."); Galdamez, 394 F.3d at 74-75 (holding that when a defendant files a leave letter to
the New York Court of Appeals, attaching his appellate briefs, and requesting the Court to
consider all the arguments in the appellate brief without specifying any particular issues, the
defendant fairly presented all the claims in the Appellate Brief). The fact that counsel closed
the leave letter by asking the Court of Appeals to "take a good hard look at these issues"
does not change the result. See Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000)
("Arguing a single claim at length and making only passing reference to possible other claims

7

to be found in the attached appellate briefs" by requesting leave "[f]or all of these reasons
and the reasons set forth in his Appellate Division briefs" does not "fairly apprise the state
court of those remaining claims."); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (if a
petitioner's leave application specifically requested review of only one claim, all other claims
would be deemed procedurally defaulted, even though the petitioner included his appellate
brief in which the other claims were raised).3
Respondent states that petitioner included a second claim in the leave letter, that the
trial judge should have granted a hearing on petitioner's motion to suppress identification
evidence. R. Mem. at 7. Taken as a whole, however, the references to a hearing on
identification evidence appear to have been made not as a stand-alone ground for leave, but
in support of petitioner's claim that the trial judge should have recused himself. See Dkt. No.
6-1 at SR 71.
Even if the leave letter could be interpreted to include the iden tification claims raised
in Grounds Two, Three and Four of petitioner's federal habeas petition, these grounds would
still be unexhausted. These claims were all premised solely on state law and, as argued,
failed to alert the Appellate Division to the federal constitutional nature of the claims as
required. Dkt. No. 6-1 at SR 15-16; SR 71; see, e.g., Dotson v. Ercole, No. 1:06-CV-7823,
2009 WL 1615997 at *2 (S.D.N.Y. Jun. 9, 2009) (stating that the "Constitution does not
guarantee a right to advance notice of identification testimony"); McCaskell v. Keane, No.
1:97-CV-2999, 2001 WL 840331 at *17 ("Criminal Procedure Law § 710.30 represents a
3

Liberally construing his reply, petitioner appears to argue that all of the grounds raised before the
Appellate Division were properly exhausted because counsel stated in his leave letter that "[i]t is our contention
that the Appellate Division, Fourth Department, was incorrect as a matter of law various issues [sic]." Dkt. No.
10 at 4. But based on the leave application in this case, that statement is insufficient to properly present all of
the grounds raised on direct appeal to the New York Court of Appeals. Jordan, 206 F.3d at 198.

8

State rule of practice. McCaskell has not articulated how this failure in any way resulted in a
constitutional violation."). Grounds One and Five, petitioner's weight of the evidence claim
(part of Ground Seven), and Grounds Nine and Ten would also remain unexhausted
because they, too, were premised solely on state law. See Dkt. No. 6-1 at SR 11-12, 18-19,
21-23; see Adams v. Robertson, 520 U.S. 83, 89, n. 3 (1997) (per curiam) (concluding that
"passing invocations of 'due process'" that "fail to cite the Federal Constitution or any cases
relying on the Fourteenth Amendment" do not "meet our minimal requirement that it must be
clear that a federal claim was presented.") (emphasis in original); Smith v. Phillips, 455 U.S.
209, 221 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings
and may intervene only to correct wrongs of constitutional dimension."); Maxwell v. Greiner,
No. 1:04-CV-4477, 2008 WL 2039528 at *5 (E.D.N.Y. May 12, 2008) (holding that petitioner's
"passing reference to a constitutional right is insufficient in light of the fact that his entire
argument exclusively relies on and discusses New York state cases applying New York state
aw").
Accordingly, Grounds One through Seven, Nine and Ten are unexhausted. These
claims are also procedurally defaulted because there is no remaining avenue by which
petitioner could properly exhaust them. He cannot now file a direct appeal in order to
exhaust the claims because a defendant is "entitled to one (and only one) appeal to the
Appellate Division." Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). Petitioner also could
not exhaust these claims by litigating a motion to vacate his conviction pursuant to New York
Criminal Procedure ("CPL") §440.10 for two reasons. First, the facts that would support the
claims were apparent on the record, and "New York does not otherwise permit collateral
attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct
9

appeal." Id. at 91 (citing CPL § 440.10 (2)(c); see Clark v. Perez, 510 F.3d 382, 393 (2d Cir.
2008) (holding that "even if no state court had applied section 440.10 (2)(c) to Clark's claim ,
the district court itself should have done so in the first instance pursuant to the exhaustion
requirement for federal habeas."); Sweet v. Bennett, 353 F.3d 135, 140-41 (2d Cir. 2003)
(applying CPL §440.10 (2)(c) to claims raised for the first time in federal habeas petition).
Second, because the Appellate Division rejected the claims on direct appeal, a state court
would have to deny the CPL §440.10 motion on that ground. Hines, 132 A.D.3d at 13851388; see CPL §440.10(2)(a) (a state court "must deny" a motion to vacate a judgment when
"[t]he ground or issue raised upon the motion was previously determined on the merits upon
an appeal from the judgment, unless since the time of such appellate determination there
has been a retroactively effective change in the law controlling such issue."). Because no
remaining avenue exists in which petitioner could properly present his claims, Grounds One
through Seven, Nine and Ten are deemed exhausted but procedurally defaulted. Coleman
v. Thompson, 501 U.S. 722, 732 (1991); Aparicio, 269 F.3d at 90.
Procedurally defaulted claims are not subject to habeas review unless a petitioner
shows cause for the default and actual resulting prejudice, or that the denial of habeas relief
would result in a fundamental miscarriage of justice, i.e., that he is actually innocent. House
v. Bell, 547 U.S. 518, 536-39 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995); see Dunham
v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) ("Actual innocence means factual innocence, not
mere legal insufficiency." (citation omitted)). To establish cause, petitioner must show that
some objective external factor impeded his ability to comply with the relevant procedural rule.
Maples v. Thomas, 565 U.S. 266, 132 S. Ct. 912, 922 (2012); Coleman, 501 U.S. at 753. If a

10

petitioner fails to establish cause, a court need not decide whether he suffered actual
prejudice, because federal habeas relief is generally unavailable as to procedurally defaulted
claims unless both cause and prejudice are demonstrated. See Murray v. Carrier, 477 U.S.
478, 496 (1986) (referring to the "cause-and-prejudice standard").
Petitioner does not assert any basis for finding cause, and the Court discerns none.
See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (concluding that petitioner did not
satisfy the cause and prejudice showing where he did not give any reason for failing to
properly exhaust his federal claim in state court). He did not argue appellate counsel was
ineffective for failing to fairly present these claims in the leave letter in any state court, and he
does not make that argument now. Pet; Reply; see Carrier, 477 U.S. at 488-89 (the
"exhaustion doctrine . . . generally requires that a claim of ineffective assistance be
presented to the state courts as an independent claim before it may be used to establish
cause for a procedural default.") (internal citation omitted). Because petitioner failed to
establish cause, the Court need not decide whether he will suffer actual prejudice before
foreclosing habeas review. Carrier, 477 U.S. at 496; Stepney, 760 F.2d at 45.
Finally, petitioner has made no showing that he is actually innocent. He raises several
technical arguments regarding his conviction, and argues the evidence is insufficient, but he
has not proffered any new evidence that would make a reasonable jury doubt his guilt. See
Poindexter v. Nash, 333 F.3d 372, 380 (2d Cir. 2003) (noting that the concept of actual
innocence is distinct from the concept of legal innocence, and a petitioner whose "argument
is a technical one" does not raise "a claim of 'actual innocence' as that term is used . . . in
habeas jurisprudence generally"); Williams v. Brown, No. 1:08-CV-10044, 2010 W L 850182

11

at *3 (S.D.N.Y. Mar. 11, 2010) (rejecting actual innocence claim where "[t]he evidence
adduced by [the petitioner] in his petition solely concerns certain alleged procedural
irregularities . . . none of which casts any doubt on [the petitioner's] underlying guilt."); see
also Schlup, 513 U.S. at 329 ("[A]ctual innocence . . . does not merely require a showing that
a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror
would have found the defendant guilty.").
In sum, Grounds One through Seven, Nine and Ten are unexhausted and
procedurally defaulted. Without a showing of cause and prejudice, or a fundamental
miscarriage of justice, this Court must bar consideration of these claims, and they are denied
and dismissed.4
4

In any event, petitioner's weight and judicial diversion claims (Ground One and part of Ground Seven),
his CPL §710.30 identification notice claim (Ground Three), and his claim that his CPL §330.30 motion should
have been granted (Ground Ten), are grounded in state criminal procedure statutes and are not cognizable on
federal habeas review. CPL §§ 216.05, 470.15 (5), 710.30; Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); Dotson, 2009 WL 1615997 at *2. The sentencing claims
(Ground Nine) are not cognizable because the sentence imposed was within the range prescribed by state law.
Pet. at 8; Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003); Townsend v. Burke, 334 U.S. 736, 741 (1948).
Petitioner argued on direct appeal that his sentence exceeded that offered during plea discussions as
punishment for going to trial. Dkt. No. 6-1 at SR 23; Pet. at 8, Reply at 4. The Appellate Division ruled that
petitioner "failed to preserve that contention for our review because he did not raise the issue at the time of
sentencing." Hines, 132 A.D.3d at 1387. To the extent petitioner raises this claim in his petition, the Appellate
Division's express invocation of New York's preservation rule constitutes an adequate and independent state
court ground for denying it and this Court may review it only if petitioner demonstrates cause for failing to
preserve it and resulting prejudice or that the failure to review the claim would result in a miscarriage of justice.
Coleman, 501 U.S. at 749-50. Petitioner has not made the required showing.
Grounds Two, Four and Five are based on alleged errors relating to the admission of identification and
hearsay evidence at trial. See Pet. at 4-5, 7; Reply at 5-7, 9-10, 15-16. Petitioner's claims regarding the
identification evidence do not rise to the level of a Constitutional violation. Manson v. Brathwaite, 432 U.S. 98
(1977). Moreover, "federal habeas corpus relief does not lie for errors of state law." Swarthout v. Cooke, 562
U.S. 216, 219 (2011) (per curiam) (citation and internal quotation marks omitted). Federal courts may grant
habeas relief based upon state evidentiary errors only if the petitioner shows both an error by the state court and
the "state court's erroneous conclusions about New York evidence law were so egregious as to implicate the
Fourteenth Amendment's guarantee of due process," which is one of "fundamental fairness," and is "defined ...
very narrowly." Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (quoting Dowling v. United States, 493 U.S.
342, 352 (1990)). None of the alleged errors claimed by petitioner in Grounds Two, Four and Five meet this high
standard. Id.; Sides v. Senkowski, 281 F. Supp. 2d 649, 653-64 (W.D.N.Y. 2003).
The Appellate Division ruled petitioner's conviction was "supported by legally sufficient evidence, i.e., the
eyewitness testimony of the confidential informant and police officers and the forensic testimony establishing the
existence of cocaine." Hines, 132 A.D.3d at 1385. That decision, supported by the record and entitled to

12

C.

Ground Eight

Petitioner next argues, as he did on direct appeal, that the trial judg e was biased
against him and should have recused himself. Pet. at 8; Reply at 16-18.
At a May 9, 2013 court appearance, petitioner explained that in 2009, he "filed a
grievance" against the trial judge and did not think he would "have a fair hearing or fair shot
in this courtroom[.]" Dkt. No. 7-1, May 9, 2013 Transcript at 3-4. The trial judge denied
petitioner's recusal request, stating that he was not aware petitioner filed a grievance, and
that information would not affect his judgment. Id. at 3-4.
On July 11, 2013, during a guilty plea colloquy, petitioner told the trial judge he was
not satisfied with counsel. Dkt. No. 7-1, July 11, 2013 Transcript at 12. He explained that in
2009, he "took a plea" on an unrelated case before the same trial judge. Id. at 13. Petitioner
claimed that in 2009, the trial judge "told [him] that information that was sealed at [his] grand
jury proceeding was lifted for the District Attorney's Office to proceed with the information to
get an indictment." Id. at 14. Petitioner claimed he had "information" that "the charges from
that [grand jury] are still sealed even to this date and they don't even exist on my record[.]"

AEDPA deference, was not contrary to or an unreasonable application of Supreme Court precedent. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see Dkt. No. 7-1 at 33-294. Petitioner's claim that the trial judge should not
have credited the informant's testimony is not cognizable. Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
Finally, the Appellate Division's rejection of petitioner's Brady/Giglio claims (Ground 6) was not contrary
to clearly established Supreme Court precedent. Hines, 132 A.D.3d at 1386. The challenged information was
turned over in time for trial counsel to make meaningful use of it, and petitioner has not shown that the failure to
turn the information over sooner undermined confidence in the verdict. Dkt. No. 7-1, Trial Transcript at 105-32,
165-204; Wearry v. Cain, __ U.S. __, 136 S. Ct. 1002, 1005-1006 (2016) (per curiam); Giglio v. United States,
405 U.S. 150, 153-54 (1972); Brady v. Maryland, 373 U.S. 83 (1963); see United States v. Coppa, 267 F.3d 132,
144 (2d Cir. 2001) ("we reiterate the longstanding constitutional principle that as long as a defendant possesses
Brady evidence in time for its effective use, the government has not deprived the defendant of due process of
law simply because it did not produce the evidence sooner."); Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.
2001) ("It is not feasible or desirable to specify the extent or timing of disclosure Brady and its progeny require,
except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence
when disclosure is made. Thus disclosure prior to trial is not mandated.").

13

Id. Based on that information, petitioner believed he was "lied to by the Courts," and filed the
grievance against the trial judge in 2009 based on that belief. Id. at 14-15. Petitioner
claimed that he would not have pleaded guilty in the 2009 case had he known the trial judge
lied to him. Id.
Petitioner expressed concern that the trial judge, whom he believed lied to him in
2009, determined there was "noting done illegally" in this case. Dkt. No. 7-1, July 11, 2013
Transcript at 13. He wanted trial counsel to seek an order allowing counsel to review the
grand jury minutes. Id. Petitioner claimed counsel told him, "it doesn't matter," but petitioner
disagreed. Id. at 13. Finally, petitioner stated he was pleading guilty in this case because
the trial judge would not recuse himself. Id. at 15.
The trial judge then refused to accept the plea because petitioner was not satisfied
with counsel, and he was not "going to set this case up for appeal." Dkt. No. 7-1, July 11,
2013 Transcript at 16. Petitioner replied that he already had "appeal issues" based on the
denial of his request for judicial diversion. Id. The trial judge reiterated he would not accept
petitioner's plea because petitioner was not happy with counsel. Id. at 16-17. Petitioner
responded that he did not think his opinion of counsel's work would "actually hamper" his
plea or sentence. Id. at 18. The trial judge responded that it "certainly does if you're not
satisfied with [counsel's] services," and that fact was "enough for [the judge] to stop the
proceedings[.]" Id. at 18.
On August 1, 2013, petitioner appeared in court with new counsel. Dkt. No. 7-1,
August 1, 2013 Transcript at 2-3. Counsel explained that petitioner was interested in a
bench trial, but that he wanted it to be held before a different judge. Id. at 3. The trial judge

14

explained that petitioner asked him to recuse himself on "a number of occasions," and the
requests were denied. Id. at 4. He stated that he had "no bias or prejudice towards
[petitioner] whatsoever," if petitioner wanted a bench trial, it would be before him, and he
would not recuse himself. Id. at 4. Counsel spoke to petitioner, who confirmed he would
"prefer to have a bench trial in front of" the trial judge even though counsel told him a jury
trial was "more preferable to a defendant[.]" Id. at 5-7. The prosecutor conveyed the fiveyear plea offer to petitioner again, and petitioner rejected it. Id. at 6-7. Petitioner then
waived his right to a jury trial, and was ultimately convicted. Id. at 6-12; Dkt. No. 7-1, Trial
Transcript at 302-312.
On appeal, the Appellate Division ruled that "the court's discretionary determination to
deny recusal was not an abuse of discretion." Hines, 132 A.D.3d at 1387 (citation omitted).
That decision, entitled to AEDPA deference, does not warrant federal habeas relief.
"Due process guarantees an absence of actual bias on the part of a judge." Williams
v. Pennsylvania, __ U.S. __, 136 S. Ct. 1899, 1905 (2016) (quoting In re Murchison, 349
U.S. 133, 136 (1955) (internal quotation marks omitted)). The Supreme Court's precedents
"set forth an objective standard that requires recusal when the likelihood of bias on the part
of the judge is too high to be constitutionally tolerable." Id. at 1903 (quoting Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975) (internal quotation marks omitted)); see also Liteky v. United States, 510 U.S. 540,
555 (1994) (recusal required when judicial remarks "reveal such a high degree of favoritism
or antagonism as to make fair judgment impossible."). The question is not whether the judge
is "actually, subjectively biased, but whether the average judge in his position is likely to be

15

neutral, or whether there is an unconstitutional potential f or bias." Caperton, 556 U.S. at 881
(citation and internal quotation marks omitted).
In this case, petitioner's claim of bias rests on his assertion that he filed a grievance
against the trial judge in 2009. Pet. at 8; Reply at 16-18. He claims the trial judge should
have recused himself because petitioner "questioned" the judge's "ethics." Reply at 17. But
not "every attack on a judge ... disqualifies him" or her from presiding over a particular case.
Caperton, 556 U.S. at 881 (quoting Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971)).
The Supreme Court has explained "[w]e cannot assume that judges are so irascible and
sensitive that they cannot fairly and impartially deal with resistance to their authority or with
highly charged arguments about the soundness of their decisions." Ungar v. Sarafite, 376
U.S. 575, 584 (1964).
The trial judge stated repeatedly that he was unaware petitioner filed a grievance.
Dkt. No. 7-1, May 9, 2013 Transcript at 3-4; July 11, 2013 Transcript at 14-16; Aug. 1, 2013
Transcript at 3-4. Before trial commenced, the judge stated that he had "no bias or prejudice
towards" petitioner "whatsoever[.]" Dkt. No. 7-1, August 1, 2013 Transcript at 3-4. Despite
the trial judge's refusal to grant petitioner's recusal motion, petitioner waived a jury trial and
opted to have a bench trial. See id. at 5-12. Petitioner points to no unfairness occurring
during the trial. See Pet., Reply. Finally, to the extent petitioner may be arguing that the trial
judge's refusal to accept his plea shows bias, the record refutes that claim. The trial judge
stopped the plea proceedings after petitioner stated he was not satisfied with counsel's
representation, not because petitioner told him he filed a grievance against the judge in

16

2009. Dkt. No. 7-1, July 11, 2013 Transcript at 12-18. 5
Under the circumstances of this case, petitioner's "allegations of bias" are "insufficient
to establish any constitutional violation." Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821
(1986). The Appellate Division's decision rejecting petitioner's bias claim was not contrary to
or an unreasonable application of Supreme Court precedent. Williams, 136 S. Ct. at 1905;
see Aetna Life Ins. Co., 475 U.S. at 821 ("only in the most extreme of cases would
disqualification" based on allegations of bias or prejudice by a judge "be constitutionally
required[.]"). Ground Eight is therefore denied and dismissed.
D.

Ground Eleven

In Ground Eleven of his petition, petitioner claims that appellate counsel was
ineffective for failing to file a motion to settle the transcript on appeal because the transcript
was "fraudulent." Pet. at 9. His claim appears to center around the informant's testimony
about the June 11, 2012 drug sale. See Pet. at 9; Dkt. No. 1-2 at 2.
At trial, the informant testified that he met petitioner on June 11, 2012 in the Byrne
Dairy parking lot in Auburn, New York, and got into petitioner's car. Dkt. No. 7-1, Trial
Transcript at 150. They "exited the Byrne Dairy, made a left, went up Capitol [Street], then
made another left and another left and came back on Franklin [Street]," where the informant
5

Petitioner argues in his reply that after reviewing the grand jury minutes, the trial judge improperly
denied a hearing on the ground that the informant's identification of petitioner was confirmatory. Reply at 17.
According to petitioner, that decision shows bias because there was nothing in the grand jury minutes indicating
the informant knew petitioner, and the informant was only "asked about the drug transaction" and named
petitioner. Id. This argument is not in the original petition, and arguments "may not be made for the first time in
a reply brief." Diaz v. United States, 633 F. App'x. 551, 556 (2d Cir. 2015) (quoting Knipe v. Skinner, 999 F.2d
708, 711 (2d Cir. 1993)). This rule "applies with the same force to pro se litigants." Id. (citing Graham v.
Henderson, 89 F.3d 75, 82 (2d Cir. 1996)); see Jones v. Artus, 615 F. Supp. 2d 77, 84-85 (S.D.N.Y. 2009)
("District courts have held that habeas claims raised for the first time in a reply memorandum or traverse are not
properly considered.") (citations omitted). Additionally, this record-based claim was not raised on direct appeal
(see Dkt. No. 6-1 at SR 20) and is therefore unexhausted and procedurally defaulted. Aparicio, 269 F.3d at 91.
In any event, the grand jury minutes refute petitioner's claim. Dkt. No. 6-2 at SR 241-43.

17

got out of petitioner's car. Id. In summation, petitioner's counsel summarized that testimony,
stating that there "was a lot of confusion about how the whole situation" happened, but that
"[a]s [counsel] recall[ed]," the informant "kind of said that he walked up the street and got in
the car." Id. at 299.
Petitioner argues the transcript is inaccurate because the informant actually testified
that petitioner "walked up Capitol Street" at some point during the June 11, 2012 drug sale.
Pet. at 9; Reply at 6, 15; Dkt. No. 1-2 at 2. He appears to argue that by so testifying, the
informant placed him in a different location than the police did during the June 11, 2012
transaction. Reply at 15. Liberally construing his papers, petitioner may also be arguing that
the informant could not recall unspecified details of the June 11, 2012 sale. See Pet; Reply;
Dkt. No; 1-2 at 2. He claims appellate counsel should have raised these arguments and
moved to settle the record. See id. Petitioner's claims are unexhausted and without merit.
On January 15, 2015, appellate counsel stipulated that the record on appeal, including
the transcripts, were correct and compete. Dkt. No. 6-2 at SR 366-67, Stipulation of
Correctness of Complete Record. Sometime before March 9, 2015, petitioner contacted his
trial counsel with his concerns about the transcript. In a letter dated March 9, 2015, counsel
responded, "I do clearly recall the CI stating that you 'walked up Capitol Street,'" and
remembered that the informant "admitting that his testimony was heavily based on the pretrial preparation done by the ADA and the Task Force." Dkt. No. 1-2 at 2, Letter. Counsel
explained that to correct the record, petitioner would have to move for settlement of the
record in the Cayuga County Court, and told petitioner to ask his appellate counsel to
"conduct the settlement of the transcript." Id.
On May 5, 2015, petitioner wrote to the Appellate Division. Dkt. No. 1-2 at 4. He
18

stated that "[w]hat was actually testified to by the informant at trial and what was actually
typed for the record is completely different." Id. He referenced trial counsel's letter, including
the alleged discrepancy regarding the informant's testimony, and claimed trial counsel
referenced this discrepancy in his summation. Dkt. No. 1-2 at 4 (citing Trial Transcript at
299). Petitioner complained that appellate counsel "did not see any discrepancies with the
record" and did not "know how this is important to" the appeal. Id. at 4. Petitioner asked that
the appeal be stayed while he attempted to settle the record, and that appellate counsel be
removed from his case. Id. at 5.
On May 13, 2015, Principal Appellate Court Attorney Kim Taylor responded to
petitioner's letter, informing him of the Appellate Division's motion practice, rules and
procedures. Dkt. No. 1-2 at 7-8. On June 3, 2015, petitioner f iled a formal motion to remove
appellate counsel from the case. Dkt. No. 6-2 at 369-76. 6 He complained that appellate
counsel did not give him a draft copy of his brief before filing it and referred to the
confidential informant as a "snitch" even though petitioner told him the use of that term
was"unprofessional." Id. at SR 370. Petitioner further claimed he told appellate counsel the
informant's trial testimony was changed from its original version to "collaborate the testimony
of the testifying officers and this was done during the time the transcripts were prepared for
review" by the Appellate Division, but appellate counsel did not move to settle the record or
otherwise act on that information. Id. at SR 371-72; SR 374-76, Exhibits.
On July 7, 2015, the Appellate Division denied petitioner's motion for reassignment of
appellate counsel, but granted petitioner an opportunity to file a pro se supplemental brief.

6

This motion also appears at Dkt. No. 1-2 at 9-15.

19

See Dkt. No. 6-2 at SR 378. Based on the record bef ore this Court, it does not appear that
petitioner did so.
New York State law has a specific procedure, a state writ of error coram nobis petition,
for raising a claim that appellate counsel was ineffective. McKinney v. Burge, No. 9:04-CV1150 (GTS/DEP), 2009 WL 666396 at *39 (N.D.N.Y. Mar. 10, 2009); Hust v. Costello, 329 F.
Supp. 2d 377, 379 (E.D.N.Y. 2004). The coram nobis petition is the only way to exhaust a
claim that appellate counsel was ineffective for federal habeas purposes. Garcia v. Scully,
907 F. Supp. 700, 706-707 (S.D.N.Y. 1995). Petitioner failed to raise his ineffective
assistance of appellate counsel claim through a writ of error coram nobis to the Appellate
Division and, because there is no time limit for filing a writ of error coram nobis in state court,
that procedure is still available as a state remedy. Id. This claim is therefore unexhausted.
Section 2254 "prohibits federal courts from granting relief to an applicant who has not
exhausted the remedies available in the courts of the State," but allows "federal courts to
deny the petition, regardless of whether the applicant exhausted his state court remedies."
Abuzaid v. Mattox, 726 F.3d 311, 321 (2d Cir. 2013) (emphasis in original, internal quotation
marks omitted) (citing 28 U.S.C. § 2254(b)(1)(A), (b)(2)). Unexhausted claims may be
denied on the merits if the claims are "plainly meritless" (Rhines v. Weber, 544 U.S. 269, 277
(2005)) or "patently frivolous." McFadden v. Senkowski, 421 F. Supp. 2d 619, 621 (W .D.N.Y.
2006); see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State."). Because petitioner's claims fail under either standard,
the Court will dispose of them.
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must
20

show that counsel's performance fell below an objective standard of professional
reasonableness, and but for counsel's alleged errors, the result of the proceedings would
have been different, and as a result, petitioner suffered prejudice. Premo, 562 U.S. at 12122; Strickland v. Washington, 466 U.S. 668, 694 (1984). "Strickland does not guarantee
perfect representation, only a reasonably competent attorney." Richter, 562 U.S. at 791
(quoting Strickland, 466 U.S. at 687) (internal quotation marks and further citation omitted).
The Strickland test applies to claims of ineffective assistance of appellate counsel. To
prevail, a petitioner must demonstrate: (1) appellate 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, 466 U.S. at 688, 694. W hen challenging the effectiveness of appellate counsel, a
petitioner must show that counsel "omitted significant and obvious issues while pursuing
issues that 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 petitioner m ust 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, as appellate counsel likely recognized, each transcript was certified as
accurate by the court stenographer. See Dkt. No. 7-1, May 9, 2013 Transcript, at 10; July
11, 2013 Transcript at 18; Aug. 1, 2013 Transcript at 12; Aug. 13, 2013 Transcript at 14; Aug.
21

21, 2013 Trial Transcript at 161; Aug. 22, 2013 Trial Transcript at 312. Even assuming the
transcript was inaccurate in the manner petitioner alleges, he failed to demonstrate that the
outcome of the appeal would have been different if counsel moved to settle the transcript.
The challenged part of the transcript has nothing to do with the June 1, 2012 sale.
Whether petitioner walked up Capitol Street or, as the informant testified, drove up Capitol
Street, the details of the informant's testimony regarding the June 11, 2012 sale, and the
June 1, 2012 sale, were corroborated by the testimony of police officers and audio
recordings of the transaction. Hines, 132 A.D.3d at 1385; Dkt. No. 7-1, Trial Transcript at 81104, 139-56, 197-201, 208-86. Although petitioner appears to argue the informant did not
remember details about the sales, his memory and the level of pre-trial preparation he
received were tested on cross-examination. See id. at 166-204.
Because appellate counsel does not have to raise every claim urged by a petitioner on
appeal, much less one with little chance of success, this Court cannot say on the record
before it that appellate counsel was ineffective for the reasons urged by petitioner. Smith,
528 U.S. at 289; Evitts, 469 U.S. at 394; Jones, 463 U.S. at 751-752; see, e.g., 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").7

7

Petitioner asks the Court to "subpoena the original trial stenographer's transcripts and have a Federal
stenographer retype the transcripts in order to prove that" testimony was "deliberately removed from the record
to secure" his conviction. Reply at 18-19. He also requests a hearing to allow him to subpoena "all relevant
parties for the purpose of establishing the correct record of testimony." Id. Petitioner's requests are denied.
See Schriro, 550 U.S. at 479 (because petitioner "never presented" a particular claim to the Arizona courts, he

22

IV.

CONCLUSION
WHEREFORE, it is
ORDERED that the petition, Dkt. No. 1, is DENIED and DISMISSED; and it is
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;8 and it is
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: February 1, 2017

"failed to develop [the] claim properly before the Arizona courts, and § 2254(e)(2) therefore barred the District
Court from granting an evidentiary hearing on that basis."); Nieblas v. Smith, 204 F.3d 29, 31 (2d Cir. 1999)
(Section 2254(e)(2) prohibits a district court from holding an evidentiary hearing where the habeas applicant
"failed to develop the factual basis of a claim in State court proceedings" unless the applicant meets several
stringent requirements.) (quoting 28 U.S.C. § 2254(e)(2)).
8

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))..

23