Goldston v. O'Meara
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 7/17/17. (served on petitioner by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Petitioner, pro se
Mohawk Correctional Facility
P.O. Box 8451
Rome, NY 13440
HON. ERIC T. SCHNEIDERMAN
Attorney for Respondent
Office of the Attorney General
New York, New York 10271
HANNAH S. LONG, AAG
BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
Petitioner Tasheem Goldston filed a petition for a writ of habeas corpus, a supporting
memorandum of law and exhibits pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition (" Pet.")
at 1-6; Dkt. No. 1-1, Memorandum of Law; Dkt. No. 1-2, Exhibits. He argues: (1) two of his
attorneys were ineffective; (2) he was denied the right to confront an identification witness at
a suppression hearing; and (3) the "People and the police used fraud and duress to secure"
his conviction. Dkt. No. 1 at 5-10; Dkt. No. 1-1 at 2-14. Respondent opposes the petition.
Dkt. No. 17, Answer; Dkt. No. 17-1, State Court Record ("SCR"); Dkt. No. 17-2, Transcripts
("TR"); Dkt. No. 17-3, Respondent's Memorandum of Law in Opposition to the Petition for a
Writ of Habeas Corpus. Petitioner filed a reply with exhibits. Dkt. No. 20, Reply.1
For the reasons that follow, the petition is denied and dismissed.
In July 2011, an Albany County grand jury returned an indictment charging petitioner
with ten different crimes occurring on two different dates. The first eight counts of the
indictment stemmed from petitioner's alleged involvement in the armed attempted robbery
and shooting of Rashim Mayo on June 18, 2010. Dkt. No. 17-1 at SCR 48-55. May o told
police he was shot by "Sheemstone" or "Sheem Stony," and on June 22, 2010, he identif ied
petitioner as the shooter from a photo array. For that incident, petitioner was charged with
first degree assault (N.Y. Penal Law §120.10(1)), two counts of second degree criminal
possession of a weapon (N.Y. Penal Law §§265.03(1)(b) and (3)), third degree criminal
possession of a weapon (N.Y. Penal Law §265.02(1)), three counts of first degree attempted
robbery (N.Y. Penal Law §§110.00/160.15(1), (2), and (4)), and second deg ree attempted
robbery (N.Y. Penal Law §§110.00/160.10(1)). See id. at SCR 48-55.
Petitioner was charged in the same indictment with additional counts of second and
third degree criminal possession of a weapon (N.Y. Penal Law §§265.03(3), 265.02(1)).
Dkt. No. 17-1 at SCR 56-57. Those charges stemmed from petitioner's possession of a
On May 18, 2017, respondent's counsel filed a letter in which she states that petitioner's reply includes
"an affidavit alleging new facts in support of" petitioner's "ineffective counsel claim" that counsel appears to
allege were not presented to the state courts. Dkt. No. 21; see Dkt. No. 20 at 19. To the extent the affidavit is
consistent with petitioner's petition, or is offered in reply to respondent's claims, it will be considered.
loaded Lorcin Model L32 pistol, found on his person when he was arrested on July 21, 2010
in connection with the June 18, 2010 incident. See id.
State Court Proceedings
Petitioner was arraigned on the indictment on August 2, 2010. Dkt. No. 17-2 at TR 17. On August 25, 2010, he appeared in court with Assistant Alternate Public Defender
Andrew Purrott. Id. at TR 8-9. Petitioner rejected a plea offer that would have required him
to plead guilty to second degree criminal possession of a weapon in exchange for a
determinate sentence not to exceed 13 years in prison, followed by 5 years post-release
supervision. Id. at TR 9. Purrott told the court he spoke with petitioner "numerous times at
the jail" and told him that he faced a consecutive sentences on the two sets of charges. Id.
He also told the court he and petitioner had a " very harmonious relationship up to this point."
Id. at TR 10. Petitioner confirmed that he did not want to plead guilty, and understood he
faced lengthy, and possibly consecutive, sentences. Id. at TR 11-12.
In papers dated October 8, 2010, Purrott f iled an omnibus motion that included, as
relevant here, motions to suppress Mayo's identification testimony, petitioner's statements
about the gun on the day of his arrest, and the gun itself on the ground that police lacked
probable cause to arrest him. Dkt. No. 17-1 at SCR 66-69, 71-72, 80-83. Purrott also m oved
to sever the July 21 gun charges from the indictment. Id. at SCR 67, 83-84. The People
opposed the motions, but consented to hearings on the admissibility of the challenged
evidence. Id. at SCR 100-107. In a Decision and Order dated November 30, 2010, the trial
court denied petitioner's motion to sever, but granted hearings on the suppression motions.
Id. at SCR 109-10.
On December 21, 2010, petitioner appeared in court with new counsel, Alternate
Public Defender Thomas Dulin, for a hearing on the motions. Dkt. No. 17-2 at TR 15. The
People made a revised plea offer. Under its terms, petitioner would have to plead guilty to
second degree criminal possession of a weapon in exchange for a sentence of 10 years in
prison followed by 5 years post-release supervision. Petitioner would be a "second felony
offender, there would be an Order of Protection, Waiver of Right to Appeal, and any
restitution, if any," and the sentence would run consecutively to any time petitioner owed "to
the State on parole[.]" Id. at SCR 19. Dulin told the court the offer was conveyed, and while
he did not mention restitution, counsel did not think that condition w as "a deal breaker one
way or the other." Id. Dulin also told the court that when he last spoke with petitioner,
petitioner was not "interested in a plea right at this moment," and that petitioner wanted to
address the court directly. Id. at SCR 19-20.
Petitioner told the court he was "for the most part" represented by Purrott and saw him
"about three times, for an approximate time of about 40 minutes, for the whole five months I
have been locked up for." Dkt. No. 17-2 at TR 20-21. He explained "they came" to see him
the previous Saturday, and "he told me that they didn't think it would be wise" if petitioner
went to trial. Id. at TR 21. He claimed he gave Purrott names of witnesses and "various
defenses" that were not pursued, and Purrott did not seem familiar with the paperwork and
facts of the case. Id. at SCR 21-22. Petitioner further stated that his counsel told him the
suppression motions would fail, and petitioner disagreed because he "read the law," could
understand it, and believed he could win, but was not "comfortable with their representation."
Id. at SCR 22. Petitioner questioned the content and quality of the omnibus motions, and
told the court he did not think counsel had tim e to represent him. Id. at SCR 23-24.
The court asked Dulin if he was ready to proceed on the suppression motion, and
Dulin answered that he was "reasonably prepared," but there was "a witness mentioned"
during the previous meeting with petitioner and an investigator was trying to subpoena that
witness. Dkt. No. 17-2 at TR 24. Dulin was able to review "some additional documents," but
stated there appeared to be some information about "some of the witnesses who observed
some of the events" that was not yet turned over. Id. at TR 24-25. Dulin explained that the
content of the witness statements was disclosed, but their names were redacted from the
records, which made it "a lot more difficult for us to prepare." Id. at TR 25. Dulin
characterized the omission of the names as a Brady2 violation, asserted that if he could have
interviewed the witnesses, he would have a "better understanding of what could be proven,"
and claimed his preparation was "hampered." Id. Dulin then assured the court he was
"reasonably prepared as best as possible to this point." Id.
The court denied petitioner's request for new counsel, confirmed that petitioner
rejected the People's revised plea offer, and the suppression hearing began. Dkt. No. 17-2
at TR 28. The People called as witnesses Detective Timothy Haggerty and police officers
Robert Mulligan and John Regan. Id. at TR 28-114. When the People rested, Dulin
requested a continuance, explaining that his investigator was trying to serve a subpoena on a
witness counsel "just learned" about. Id. at TR 115-16. The court adjourned the hearing
until the next day to allow Dulin's investigator time to secure the witness. Id. at TR 118.
The suppression hearing continued on December 22, 2010. Dkt. No. 17-2 at TR 121.
Brady v. Maryland, 373 U.S. 83 (1963).
Dulin identified the witness he was attempting to subpoena as Mayo, and explained that
Mayo was not present in court. Id. at TR 125. The investigator left a subpoena at Mayo's
home, and when she returned later that day, the subpoena "had been removed." Id. at TR
124. The investigator spoke with Mayo's neighbors, who stated Mayo's car was parked in
front of the residence and confirmed he lived in the building. Id. When the investigator
"attempted to get a response at the door, she was told in no uncertain terms to stop ringing
the doorbell," and no one answered the door. Id. at TR 124-25. According to Dulin,
petitioner told him that Mayo would "contradict what the police officers had to say, with
respect to reasonable cause and with respect to the identification procedures itself." Id. at
TR 125. Specifically, Dulin expected Mayo to say he did not identify petitioner as the
shooter, and did not "voluntarily pick out any particular photographs that were provided to
him in a photo array. Id. at TR 126. Dulin argued that if Mayo so testified, "that would place
in jeopardy whether or not the police had reasonable cause to approach and accost"
petitioner on the day he was arrested. Id. at TR 126.
The prosecutor opposed any further continuance in order for Dulin to produce Mayo,
arguing that "it's a fishing expedition and it is not a discovery mechanism and it's just a
means to harass the victim." Dkt. No. 17-2 at TR 127. He further stated he had no "belief at
this time that Mr. Mayo will say, anything contradicting the People's case." Id. The
prosecutor confirmed he had not heard from Mayo on either December 21 or 22, 2010. Id.
After a brief recess, the trial court asked Dulin to explain his basis for believing Mayo
would contradict the People's case. Dkt. No. 17-2 at T R 127-29. Dulin conferred with
petitioner, and told the court "at least two of [petitioner's] relatives and several other people
with whom he's acquainted have had conversations with ... Mayo," and Mayo "was purported
to have told each of these people, that he did not identif y any photographs, that he did not
sign any documents for the police, that he did not identify to the police [petitioner] as being
the person who shot him[.]" Id. at TR 129. Dulin repeated his argument that if Mayo so
testified, police lacked reasonable cause to stop petitioner. Id. at TR 129-30.
The court denied Dulin's request for an adjournment to secure Mayo's testimony
pursuant to People v. Chipp, 75 N.Y.2d 327 (1990). 3 Dkt. No. 17-2 at TR 130-33. The court
ruled that petitioner did not claim the photo array identification procedure "was suggestive,
unconstitutionally suggestive," and concluded the photo array was "fair." Id. at TR 132.
Instead, petitioner claimed Mayo was "flat out lying" about his identification of petitioner. Id.
at TR 132. The court concluded that Mayo "testified before the Grand Jury," and it was "very
highly unlikely" that Mayo would now testify the identification "never happened" and "was
concocted." Id. at TR 132-33. The court also opined that the "other possible purpose" of
calling Mayo, a "misguided attempt at discovery and harassing the witness ... are still
paramount in this case[.]" Id. at TR 133.
Petitioner then asked the court for permission to proceed pro se. Dkt. No. 17-2 at TR
In Chipp, the New York Court of Appeals ruled that the trial court did not abuse its discretion in denying
defendant's request to call a complaining witness at a suppression hearing because
no indicia of suggestiveness was presented to the hearing court, nor indeed even at trial.
Defendant's primary contention was that the complainant might offer testimony that the varied
complexions of the subjects of the lineup rendered the procedure unduly suggestive. As the
court already had a photograph of the lineup before it, the complainant's testimony on this point
could only have been cumulative and it was therefore within the discretion of the hearing Judge
to exclude it. Defendant's additional contentions that the complainant might have revealed that
something improper was said to her during the procedure are, on the record before the hearing
Judge, purely speculative. Thus, in the circumstances of this case, the court did not abuse its
discretion in denying defendant's request to call the complainant at the Wade hearing.
Chipp, 75 N.Y.2d at 339.
134-42. The court reserved decision on that request and on the suppression motions. Id. at
On February 2, 2011, while petitioner's request to proceed pro se was pending, the
trial court issued a decision denying the suppression motion. Dkt. No. 17-1 at SCR 112-23.
The court concluded that Haggerty, Mulligan and Regan "each appeared frank, candid, and
trustworthy, and their testimony had the general force and flavor of credibility." Id. at SCR
115-16. The trial court made the following findings of fact:
On June 18, 2010 at approximately 11:00 p.m., Det. Haggerty responded to a
shooting incident near ... Sloan Street in the City of Albany. The victim, Rashim
Mayo ("Mayo"), was transported to the hospital. On June 19, 2010, Det.
Haggerty went to speak to Mayo at the hospital. Mayo described the shooter
as a short, stocky black male wearing a black hooded sweatshirt and a red
bandana. Mayo also told Det. Haggerty that he knew the defendant as "Sheem
Stone" from meeting him at a parole office and that the defendant's brother
drives a Subaru station wagon with a "Superman" sticker on it.
Based upon that information, the police created a photo array containing the
defendant's photo (People's Exhibit #1). On June 22, 2010 at approximately
5:55 p.m., Det. Haggerty returned to the hospital to show Mayo the photo array.
Det. Haggerty told Mayo that he had a photo array with six photos on it; that the
person who shot him may or may not be in the photo array; and that if Mayo
recognized anyone to let him know where he recognized that individual from.
Mayo identified photo #5 and wrote: "This is shooter." Mayo then completed
and signed a written statement regarding the photo array (People's Exhibit #2).
This Court finds that the different incident numbers on the photo array, the
photo array affidavit, and other police documents are not significant factors
regarding Mayo's photographic identification of the defendant.
On July 21, 2010 at approximately 6:00 p.m., Det. Haggerty and Det. Cornell
observed the defendant in the area of 118 Second Avenue in the City of
Albany. Det. Haggerty turned his car around, came back to that area, and
stopped his vehicle. Det. Haggerty then approached the defendant and asked
him his name. The defendant identified himself, and he was asked to step
away from other individuals in that area. Det. Haggerty asked the defendant to
come to the police station to speak to the police. Initially , the defendant agreed
but then asked to go and get a shirt. When Det. Haggerty told the defendant
that would not be necessary, the defendant ran. The detectives gave chase
and called out for additional units.
The defendant was apprehended at gunpoint in the backyard of 118 Second
Avenue. The defendant was directed to get down on the ground - where Det.
Cornell handcuffed him. Officer Regan arrived in the area, and the defendant
yelled to Officer Regan: "I got something important to tell you." At first Officer
Regan ignored the defendant, but then said: "Ok, what do you want to tell me?"
Defendant stated that he had a gun in his front pocket. Officer Regan then
rolled the defendant over and removed a loaded .32 caliber handgun from the
defendant's pocket. A red bandana was also seized from the defendant.
Officer Mulligan transported the defendant from 118 Second Avenue to the
Albany police station. As Officer Mulligan was walking the defendant into the
police station, the defendant stated: "I'm sorry I had to do what I had to do, I
had a gun on me." Officer Mulligan did not ask the defendant any questions or
have any conversation with him prior to the defendant making such statement.
On July 21, 2010 at approximately 6:50 p.m., Det. Haggerty and Det. Cornell
interviewed the defendant in Interview Room #5 at the police station. Det.
Cornell advised the defendant of his Miranda rights from a pre-printed form
(People's Exhibit #3). When asked if he understood his rights, the defendant
stated that he understood his rights. When asked if he would be willing to
answer some questions, the defendant stated: "Yes, certain ones." The
defendant then proceeded to answer the detectives' questions.
Dkt. No. 17-1, SCR 116-18; see Dkt. No. 17-2 at TR 28-114. The court denied petitioner's
motion to suppress "the prospective identification testimony of Mayo on the basis of undue
suggestiveness" because the "photographic identification procedure conducted by Det.
Haggerty with Mayo was fundamentally fair and without any suggestiveness whatsoever."
Dkt. No. 17-1 at SCR 118. The court also denied petitioner's motion to suppress his
statements as "fruits of an unlawful arrest" because police had probable cause to arrest
petitioner based on Mayo's identification of petitioner as the shooter. Id. at SCR 119. The
court further ruled that petitioner's oral statements to Officers Regan and Mulligan were
spontaneous and not the product of interrogation, and that even if the statement to Officer
Regan was not spontaneous, Officer Regan's question to petitioner "did not constitute a
process of interrogation to which Miranda is applicable." Id. at SCR 120-21. Petitioner's oral
statements to Detective Haggerty were admissible because they were "knowingly, freely and
voluntarily made within the meaning and intent of CPL §60.45." Id. at SCR 121. Finally, the
court denied petitioner's motion to suppress physical evidence because "the seizure of the
loaded .32 caliber handgun and a red bandana from the defendant's person was lawful
pursuant to a search and seizure incident to a lawful arrest." Id. at SCR 121.
On February 8, 2011, petitioner appeared in court with attorney Dulin. Dkt. No. 17-2,
TR 146. The court explained to petitioner that if he pleaded guilty to second degree criminal
possession of a weapon, the People would recommend a sentence of 10 years in prison
followed by 5 years post-release supervision based on petitioner's status as a second violent
felony offender. Id. at TR 147-48. Petitioner told the court he believed the offer was "so
high" because it was "attached to the shooting incident," and the court agreed. Id. at TR 148.
Petitioner told the court he thought he could "beat" the shooting charges, but not the gun
possession charge, and objected that the sets of charges had not been severed. Id. at TR
151. Petitioner told the court he wanted to represent himself and, after a lengthy colloquy,
the court granted his request. Id. at TR 156-75. The court appointed Dulin as stand-by
counsel. Id. at TR 175-76.
On February 10, 2011, the parties appeared in court to address pre-trial m atters. Dkt.
No. 17-2 at TR 178-91. Petitioner pointed out that the def ense never rested at the
suppression hearing, and he wanted to testify. Id. at TR 192-93. Petitioner moved to reopen the suppression hearing, and the court granted his request. Id. at TR 196. Petitioner
testified regarding his recollection of the events surrounding his arrest on July 21, 2010,
including his statements to police and the seizure of the gun. Id. at TR 198-214. Petitioner
then rested, and the court stated it would issue an amended decision on the suppression
motion. Id. at TR 214-15.
In a supplemental decision dated February 10, 2011, the court ruled that petitioner
was an "interested witness, and his testimony appeared colored by his interest in the
outcome of the hearing." Dkt. No. 17-1 at SCR 149. The court further noted that petitioner
had two prior felony convictions (second degree robbery and first degree possession of
prison contraband) that "reflect[ed] adversely upon his credibility as a witness." Id. The court
ruled that it did "not find" petitioner's "testimony truthful and/or accurate." Id. at SCR 149
(emphasis in original). The court found the same facts as those recited in its earlier decision,
and again denied petitioner's suppression motions. Id. at SCR 149-50.
On February 14, 2011, petitioner's trial began and a jury was selected. Dkt. No. 17-2
at TR 217-486. The next day, attorney Robert A. Becher told the court he was retained to
represent petitioner, and moved for a mistrial in order to prepare. Id. at TR 488-90.
Petitioner told the court he wanted Becher to represent him, and consented to excusing
Dulin. Id. at TR 489-90. After lengthy discussions, and after learning that some of the
selected jurors would be unavailable if the trial was delayed, the court granted Becher's
request for a mistrial. Id. at TR 490-510.
Before the new trial began, Becher again moved to sever the counts of the indictment
related to the shooting (Counts One through Eight) from the gun charges (Counts Nine and
Ten). On March 15, 2011, the court granted the motion, finding that petitioner "made a
convincing showing that he has both important testimony to give concerning one set of
offenses (Counts One through Eight) and a strong need to refrain from testifying as to the
other two charges (Counts Nine and Ten)." Dkt. No. 17-1 at SCR 158. The court ordered
the trial on the gun charges to proceed first. Id. at SCR 158-59.
Petitioner's jury trial on Counts Nine and Ten was held from May 2 to May 4, 2011.
Dkt. No. 17-2 at TR 523-1023. Petitioner was convicted of both counts. Id. at TR 1022-23.
Mayo's identification of petitioner as the shooter, and any information about the shooting
itself, was not admitted at trial because the court denied the prosecutor's req uest to present
evidence about the events that led to petitioner's June 21, 2010 arrest. Id. at TR 174-77,
517, 526-27, 705-710. The court adjourned sentencing until after the trial on the shootingrelated charges concluded. See id. at TR 1050-51.
Petitioner's jury trial on the shooting-related charges took place from July 5 through
July 8, 2011. Dkt. No. 17-2 at TR 1244-1692. The trial court did not permit the prosecutor to
present Mayo's photo array identification, but permitted him to question Mayo regarding his
recognition of the shooter and to elicit an in-court identification. Id. at TR 1322, 1434-35.
Mayo testified that the shooter wore a black hooded sweatshirt with a red bandana over his
face. Id. at TR 1320-21. He testified he did not recognize the shooter at the time of the
shooting, but he thought the shooter bore a "striking resemblance" to someone. Id. at TR
1322. He could not identify petitioner as the shooter in court, and testified he was "not
exactly sure" if petitioner was one of the two people involved in the shooting. Id. at TR 132223.
The court took a brief recess before Becher cross-examined Mayo. Dkt. No. 17-2 at
TR 1333. The prosecutor told the court Mayo did not testify consistently with his grand jury
testimony, and he wanted to use that testimony to further question Mayo. Id. at 1333-34.
The court noted that Mayo did not testify petitioner was not the shooter, just that he was not
"a hundred percent sure." Id. at TR 1334. The court told Mayo that if he "testified at odds
with [his] grand jury testimony," he was subject to "possibly being charged with statutory
perjury," and it did not matter "which one is true and which one is false if they [were]
inconsistent with each other." Id. The court appointed counsel to represent Mayo and
excused him, subject to his being recalled as a witness. Id. at TR. 1336-42. After conferring
with counsel, Mayo returned to the witness stand and identified petitioner as the shooter.
Id. at TR 1386-91, 1424-36; 1436-37. On cross-examination, Becher extensively questioned
Mayo on his ability to observe and identify the shooter. See id. at TR 1438-64. On July 8,
2011, the jury acquitted petitioner of all counts. Dkt. No. 17-2 at TR 1688-92.
On July 26, 2011, petitioner was sentenced, as a second violent felony offender, to an
aggregate term of 10½ years in prison followed by 5 years post-release supervision for
Counts Nine and Ten. Dkt. No. 17-2 at TR 1705-25.
Petitioner appealed, and appellate counsel f iled a brief in which he raised nine
grounds for relief. Dkt. No. 17-2 at SCR 248-335; SCR 336-1007. As relevant here, counsel
argued that Dulin was ineffective at the suppression hearing and the trial court erred when it
denied petitioner's request to have Mayo testify at the suppression hearing. Id. at SCR 299308, 315-17. The People opposed the appeal. Id. at SCR 1008-44, 1045-55. Petitioner filed
a reply. Id. at SCR 1056-71.
On March 19, 2015, the Appellate Division affirmed. People v. Goldston, 126 A.D.3d
1175 (3d Dep't. 2015). The New York Court of Appeals denied leave to appeal further on
July 6, 2015, and denied petitioner's request for reconsideration on December 3, 2015. Dkt.
No. 17-1 at SCR 1079-1119; Goldston, 25 N.Y.3d 1201 (2015), recon. denied 26 N.Y.3d
On or about February 5, 2016, petitioner filed a motion to vacate his conviction
pursuant to CPL §440.10. Dkt. No. 17-1 at SCR 1128-55. He arg ued attorneys Purrott and
Dulin were ineffective because they failed to "properly investigate" the case, and attorney
Dulin was ineffective because he did not properly represent petitioner at the suppression
hearing. Id. at SCR 1128, 1130-33. He claimed Dulin had "exculpatory evidence" that
proved he was in a store on Second Avenue in Albany when Mayo was shot, and attached
surveillance camera photographs to his motion. See id. at SCR 1133-34, 1142-46. He
argued the photographs negated probable cause, and Dulin was ineffective for not using
them during the suppression hearing. Id. He also argued Dulin did not properly crossexamine Detective Haggerty about the lighting conditions in the area where Mayo was shot.
Id. at SCR 1134-35. He also argued his attorneys were ineffective for failing to investigate
alibi witnesses and failing to investigate Mayo's photo array identification on the ground it
was "doctored and forged in order to manufacture probable cause" for petitioner's arrest. Id.
at SCR 1135. Petitioner asserted counsel should have hired a "forensic handwriting expert"
to compare the signature on the array with Mayor's signature in his medical records. Id. at
Petitioner also argued that his right to due process was violated because he was not
permitted to question Mayo at the suppression hearing, and his conviction was "secured
through duress and through coercing" Mayo to "go along with a particular story." Dkt. No. 171 at SCR 1129, 1131, 1136-41.
The People opposed the motion. Dkt. No. 17-1 at SCR 1156-62. On April 27, 2016,
the trial court denied petitioner's motion. Dkt. No. 17-1 at SCR 1196-98. On July 11, 2016,
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. 17-1 at SCR 1202.
This action followed.
Ground One - Ineffective Assistance of Trial Counsel
Petitioner claims in Ground One of his petition that attorneys Purrott and Dulin were
ineffective because they failed to investigate "photographic evidence (still photographs)"
taken of petitioner at a store "that proved [petitioner] was somewhere else" when Mayo was
shot. Pet. at 5; Dkt. No. 1-1 at 6-7. Petitioner argues that the police had the photographs
and therefore knew he was not at the scene of the shooting and they lacked probable cause
to arrest him later. He complains that Purrott and Dulin failed to investigate "where the
photos came from," and Dulin failed to use the photographs at the suppression hearing to
prove that the police did not have probable cause to arrest him. Pet. at 5; Dkt. No. 1-1 at 67.
Petitioner raised his ineffective assistance claims in his CPL §440.10 motion. Dkt. No.
17-1 at SCR 1133-35, 1142-46. The county court rejected them pursuant to CPL
§§440.10(2)(b) because the claims were "either raised or could have been raised on direct
appeal" and were therefore barred from review. Dkt. No. 17-1 at SCR 1197. The court also
rejected petitioner's claims in the alternative on the merits, finding that there was "no proof
whatsoever that but for defense counsel's actions, the result of the trial would have been any
different." Id. at SCR 1197.
Respondent argues that petitioner's ineffective assistance claims are procedurally
defaulted based upon the trial court's reliance on an adeq uate and independent state ground
to dismiss them and are, in any event, meritless. R. Mem. at 17-20. Petitioner argues that
the trial court's application of CPL §440.10(2)(b) was exorbitant and should not bar federal
review of his claims. Dkt. No. 1-1 at 6-7; Dkt. No. 20 at 3-4.
Substantive review of a habeas claim is prohibited if the state court rested its decision
on "'a state-law ground that is independent of the federal question and adequate to support
the judgment." Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Coleman v. Thompson,
501 U.S. 722, 729 (1991)). To qualify as an "adequate" ground, the state rule must be "firmly
established and regularly followed." Id. at 316 (quotation marks and citation omitted); Downs
v. Lape, 657 F.3d 97, 101 (2d Cir. 2011) (explaining that habeas review of a state court's
application of its own rules is deferential and is focused on whether the challenged ruling
"falls within the state's usual practice and is justified by legitimate state interests, not whether
the state court ruling was correct."). A rule can be firmly established and regularly followed
"even if the appropriate exercise of discretion may permit consideration of a federal claim in
some cases but not others." Beard v. Kindler, 558 U.S. 53, 61 (2009); see Downs, 657 F.3d
at 103 ("we expect some variation is inevitable in the application of any procedural rule. Such
variation just as easily reflects at least the proper exercise of appellate court discretion as it
does the lack of a firmly established and regularly followed rule."). Even if the state court
proceeds to consider the merits of an unpreserved claim, its reliance on a procedural ground
as one basis for the denial of the claim precludes habeas review. Harris v. Reed, 489 U.S.
255, 264 n.10 (1989) ("a state court need not fear reaching the merits of a federal claim in an
alternate holding" because "the adequate and independent state ground doctrine requires
the federal court to honor a state holding that is a sufficient basis for the state court's
judgment, even when the state court also relies on federal law.") (emphasis in original);
Fulton v. Graham, 802 F.3d 257, 265 (2d Cir. Sept. 11, 2015) (state court's discussion of
ineffective assistance claim, introduced by noting that "if this court were to consider the
defendant's claim of ineffective assistance of counsel, the motion would similarly be denied"
signaled that the court "was not basing its judgment on the merits of the federal claim, but
rather on a state procedural bar.") (emphasis in original).
In this case, the trial court cited to CPL §440.10(2)(b), which provides that a motion to
vacate a conviction must be denied when the "judgment is, at the time of the motion,
appealable or pending on appeal, and sufficient facts appear on the record with respect to
the ground or issue raised upon the motion to permit adequate review thereof upon such
appeal[.]" But because petitioner's direct appeal was no longer pending at the time of his
CPL §440.10 motion, subsection 2(b) did not apply to his motion. Instead, subsection (2)(c),
"which applies to cases in which the direct appeal has been exhausted, was the applicable
section." Hardison v. Artus, No. 1:06-CV-0322, 2006 W L 1330064 at *5 n.5 (S.D.N.Y. May.
15, 2006); see CPL §440.10(2)(c) (providing that a court must deny a §440.10 motion when
"[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment
to have permitted, upon appeal from such judgment, adequate review of the ground or issue
raised upon the motion, no such appellate review or determination occurred owing to the
defendant's unjustifiable failure ... to raise such ground or issue upon an appeal actually
perfected by him [ .]"). The difference is immaterial because both CPL §§440.10(2)(b) and
(c) require record-based claims to be raised on direct appeal, with the only difference being
"the status of the direct appeal at the time the claim is before the §440 court." Hardison,
2006 WL 1330064 at *5 n.5.
CPL §§440.10(2)(b) and (2)(c) are firmly established and regularly followed state court
rules and ordinarily, when these rules are expressly invoked by a state court to reject a claim,
federal habeas review is barred. See Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008)
(finding "district court erred in holding that the state court's application of section 440.10(2)(c)
did not constitute an adequate state procedural bar to [petitioner's] federal habeas petition");
Murden v. Artuz, 497 F.3d 178, 191-93 (2d Cir. 2007) (finding "C.P.L. § 440.10(2)(c)
constitutes an adequate state procedural bar to federal habeas review."); Holland v. Irvin, 45
F. App'x. 17, 20-21 (2d Cir. 2002) (CPL §440.10(2)(b) constituted adeq uate and independent
state court ground to deny ineffective assistance of counsel claim, and habeas review was
therefore barred); Kimbrough v. Bradt, 949 F. Supp. 2d 341, 359-60 (N.D.N.Y. 2013)
(discussing CPL §440.10(2)(b)).
In "exceptional cases," however, "exorbitant application of a generally sound rule
renders the state ground inadequate to stop consideration of a federal question." Lee v.
Kemna, 534 U.S. 362, 376 (2002); see Garvey v. Duncan, 485 F.3d 709, 713-714 (2d Cir.
2006); Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). In determ ining whether the
application of an independent state rule was "exorbitant," courts should consider: (1) whether
the alleged procedural violation was actually relied upon by the trial court and whether
perfect compliance with the state rule would have changed the trial court's decision; (2)
whether state case law required compliance with the rule in the specific circumstances; and
(3) whether petitioner had "substantially complied" with the rule given the "realities of trial,"
and whether demanding perfect compliance with the rule would serve a legitimate
governmental interest. Garvey, 485 F.3d at 714 (quoting Cotto, 331 F.3d at 240). The Cotto
factors are not all determinative, but are a guide to evaluate the state's interest in a particular
rule in the circumstances of a particular case. Id. at 714. The Second Circuit has ruled that
when "assessing the contours of a state court's denial of collateral review because of a
petitioner's failure to raise an issue on direct appeal," the focus of the inquiry is on the
"second of the Cotto guideposts." Pierotti v. Walsh, 834 F.3d 171, 177 (2d Cir. 2016)
(quoting Fulton, 802 F.3d at 262-63).
Petitioner argues his ineffective assistance claim is "mixed" because "some of the
issues appeared on the record and some did not," and his claims were therefore more
properly raised in a CPL §440.10 motion. Dkt. No. 20 at 3-4 (citing Pierotti, 834 F.3d at 178).
He states "there is nothing mentioned about the photos by any of" his lawyers on the face of
the record, and the first "actual mention of" the photographs "is in the appeal record." Id. at
3-4. He claims that Dulin had the photographs "because when the petitioner went pro-se the
photographs were in the file." Id. at 4. Petitioner further states that although Purrott, Dulin
and Becher all received discovery materials, [n]othing about the letters states anything about
photographs and where they came from and there is nothing about the photographs
anywhere in the record." Id. He appears to argue that he raised his claims in the CPL
§440.10 motion because the Appellate Division ruled that failure to investigate claims were
"properly the subject of a CPL article 440 motion." Dkt. No. 20 at 1 (quoting Goldston, 126
A.D.3d at 1176).
This Court agrees with petitioner that his ineffective assistance claim appears to be
based on some facts appearing on the record and some that are outside the record. See
Pierotti, 834 F.3d at 179. For example, the record is clear that Dulin did not use the
photographs at the suppression hearing (nor did petitioner use them when the hearing was
re-opened a few months later), and the photographs were turned over to attorney Becher on
May 2, 2011, well after the December 2010 suppression hearing. Dkt. No. 17-1 at SCR 218,
241-46; Dkt. No. 17-2 at TR 15-133; 196-214. The record also provided the factual basis for
petitioner's claim that the police had the photographs when he was arrested. Dkt. No. 17-2
at TR 63. But it is not clear that either Purrott or Dulin had the photog raphs before the
suppression hearing began and, if they did, whether any investigation was conducted
regarding the photographs. Although petitioner insists that Dulin had the photographs at the
time of the suppression hearing because they were in the file Dulin gave him when petitioner
was granted permission to proceed pro se, that information does not appear on the face of
the record. Dkt. No. 20 at 4. Dkt. No. 17-2 at TR 15-133.
Under these circumstances, it appears that petitioner's ineffective assistance claims
were properly brought in the CPL §440.10 motion, rather than on direct appeal. Pierotti, 834
F.3d at 179 (collecting New York cases); see People v. Peque, 22 N.Y.3d 168, 202 (2013)
("Where a defendant's complaint about counsel is predicated on factors such as counsel's
advice or preparation that do not appear on the f ace of the record, the defendant must raise
his or her claim via a 440.10 motion."); People v. Johnson, 81 A.D.3d 1428, 1428 (4 th Dep't.
2011) ("Several of the alleged instances of ineffective assistance specified by defendant,
e.g., that she was not properly advised of the pretrial plea offer and that her attorney did not
conduct a proper investigation, are based on matters outside the record on appeal and thus
must be raised by way of a motion pursuant to CPL article 440."); People v. Maxwell, 89
A.D.3d 1108, 1109 (2d Dep't. 2011) (where "a defendant presents a mixed claim of
ineffective assistance that depends, in part, upon m atters that do not appear on the record, it
cannot be said that 'sufficient facts appear on the record with respect to the ground or issue
raised upon the motion to permit adequate review thereof upon such an appeal' (CPL
440.10[b]). Therefore, such a mixed claim, presented in a CPL 440.10 motion, is not
procedurally barred, and the CPL 440.10 proceeding is the appropriate forum for reviewing
the claim of ineffectiveness in its entirety.") (citations omitted). The Court therefore finds that
petitioner's claim is not procedurally barred by an adequate and independent state court
ground and will not dismiss the claim on that basis.
The trial court ruled in the alternative that, "[a]dditionally, ... the two-prong test for
ineffective assistance of counsel established by Strickland v. Washington, 466 US 668
" was not met because petitioner failed to satisfy the prejudice prong. Dkt. No. 17-1 at
SCR 1197. The wording of the court's opinion reflects that it was based not only on the
procedural default, but also on the merits of the claim. The alternative decision therefore
constitutes a decision on the merits for purposes of 28 U.S.C. § 2254(d). See Fischer v.
Smith, 780 F.3d 556, 560 (2d Cir. 2015) (state court decision treated as one issued on the
merits where the court initially "decline[d] to reach the merits" of an ineffective assistance of
counsel claim, but the "very next sentence described Smith's claim as 'procedurally barred
and meritless,'" and the rest of the decision "clearly and in considerable detail addressed the
merits of Smith's ineffective assistance of counsel claim."), cert. denied __ U.S. __, 136 S.
Ct. 337 (2015); Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (agreeing with the district
court that the Appellate Division incorrectly decided a claim was procedurally defaulted, and
ruling that the Appellate Decision's alternate decision that the claim was "in any event,
without merit," constituted an adjudication on the merits entitled to AEDPA deference). That
alternative decision was not contrary to or an unreasonable application of clearly established
Supreme Court precedent.
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must
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 v. Moore, 562 U.S.
115, 121-22 (2011); Strickland, 466 U.S. at 694. The standard "must be applied with
scrupulous care" in habeas proceedings, because such a claim "can function as a way to
escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial]
proceedings[.]" Premo, 562 U.S. at 122. "Strickland does not guarantee perfect
representation, only a reasonably competent attorney." Harrington v. Richter, 562 U.S. 86,
110 (2011) (quoting Strickland, 466 U.S. at 687) (internal quotation marks and further citation
omitted). A petitioner must overcome "a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance ... [and] that, under the
circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland,
466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Even if petitioner
can establish that counsel was deficient, he still must show that he suffered prejudice. Id. at
Meeting this burden is "never an easy task . . . [and] establishing that a state court's
application of Strickland was unreasonable under § 2254(d) is all the more difficult." Premo,
562 U.S. at 122 (citations and internal quotation marks omitted). When evaluating an
ineffective assistance claim under section 2254(d), "[t]he question is not whether a federal
court believes the state court's determination under the Strickland standard was incorrect but
whether that determination was unreasonable-a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks and citation omitted).
Federal habeas courts "must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d)" because "[w]hen §2254(d) applies, the
question is not whether counsel's actions were reasonable." Richter, 562 U.S. at 105.
Instead, "the question is whether there is any reasonable argument that counsel satisfied
Strickland 's deferential standard." Id.
"Strickland does not guarantee perfect representation, only a reasonably competent
attorney." Richter, 562 U.S. at 110 (quoting Strickland, 466 U.S. at 687) (internal quotation
marks and citation omitted). The record in this case shows that Dulin was "reasonably
prepared" for the suppression hearing. Dkt. No. 17-2 at TR 24-25. He reviewed police
reports provided by the prosecutor, and enlisted an investigator to serve a subpoena on
Mayo to testify at the hearing. Id. at TR 115-17, 125-26, 128-29. Dulin made appropriate
objections, conducted voir dire of prosecution witnesses regarding proposed exhibits, and
cross-examined the prosecutor's witnesses. Id. at TR 36-39, 40-43, 57-59, 80-101, 107-08,
114. Dulin secured an adjournment when the People rested in order to produce Mayo, and
sought a second adjournment that was ultimately denied. Id. at TR 115-18, 132-33. "[I]t is
difficult to establish ineffective assistance when counsel's overall performance indicates
active and capable advocacy." Richter, 562 U.S. at 111.
Importantly, the record is not clear that Purrott or Dulin had the photog raphs. Dkt. No.
17-1 at SCR 218, 241-46. Even assuming arguendo that they did, and their performance
was deficient for failure to investigate the origin of the photographs or to use them at the
suppression hearing, petitioner cannot show prejudice. Strickland, 466 U.S. at 693-94.
Both attorneys likely recognized that the photographs did not negate probable cause,
which simply requires "information sufficient to support a reasonable belief that an offense
has been or is being committed by the suspect." People v. Hicks, 68 N.Y.2d 234, 238
(1986); see Illinois v. Gates, 462 U.S. 213, 232 (1983) (explaining that "probable cause is a
fluid concept-turning on the assessment of probabilities in particular factual contexts-not
readily, or even usefully, reduced to a neat set of legal rules."); People v. Bigelow, 66 N.Y.2d
417, 423 (1985) ("Probable cause does not require proof sufficient to warrant a conviction
beyond a reasonable doubt[.]"). The photographs in question place petitioner near the scene
of the shooting. They appear to show petitioner in the entrance of a store located on Second
Avenue in Albany on June 18, 2010 at 22:48 p.m. (10:48 p.m.). According to the police
reports, Mayo's shooting took place approximately four minutes later, at 22:52 p.m. (10:52
p.m.), at 22 Sloan Street, located between Cuyler Street and Second Avenue. Dkt. No. 17-1
at SCR 17, 19, 20, 21; see Dkt. No. 17-2 at TR 1283, 1306, 1701, 1703. Petitioner
described the distance between the location of the store and the location of the shooting in
his CPL §440.10 motion as "a couple of hundred yards" (Dkt. No. 17-1 at SCR 1149), but in
his papers filed in this Court, petitioner states the distance was a "ten minute walk" (Dkt. No.
1-1 at 5) "hundreds of yards," and "about 1000 feet." (Dkt. No. 20 at 6, 7). Additionally,
although petitioner claims that the assailants were waiting for Mayo, witnesses told police
only one assailant was waiting, and the other assailant ran toward the victim from the
direction of Second Avenue. Dkt. No. 17-1 at SCR 18, 21, 22-23, 25; Dkt. No. 17-2 at TR
Moreover, Mayo told police the shooter was "Sheem Stony," known to him from
parole, and his brother drove a vehicle with a "Superman" sticker in the rear windshield. The
investigation revealed that the vehicle in question was registered to Shiere Goldston, and
police developed a photo array, from which Mayo identified petitioner's photograph. Dkt. No.
17-1 at SCR 18, 22-23, 26. As the trial court f ound, and as Purrott and Dulin likely
recognized, Mayo's identification of petitioner as the shooter gave police probable cause to
arrest petitioner. Dkt. No. 17-1 at SCR 119; see People v. Jones, 2 N.Y.3d 235, 239 (2004)
(explaining that police had "probable cause to believe that defendant was the perpetrator of
the robberies based on the photographic identifications by the two victims."); People v.
Smith, 12 A.D.3d 781, 782 (3d Dep't. 2004) (same); Petrychenko v. Solovey, 99 A.D.3d 777,
780 (2d Dep't. 2012) (stating that "[a]s a general rule, information from an identified citizen
accusing another individual of the commission of a specific crime is sufficient to provide the
police with probable cause to arrest.") (emphasis in original).
Based on the record, this Court cannot say that the state court's alternative decision
rejecting petitioner's ineffective assistance claim was unreasonable or contrary to clearly
established Supreme Court precedent. Ground One is therefore denied and dismissed.
Grounds Two and Three
In Ground Two of the petition, petitioner argues that his rights to due process and
confrontation under the "6th Amendment" were violated because he was not permitted to call
Mayo to testify at the suppression hearing. Pet. at 7. Petitioner argues that the trial court
based its probable cause ruling on the fact that Mayo identified him as the shooter, and if he
was able to question Mayo at the suppression hearing, he could have proved "the affidavit
that was attached to the photo array was false and/or that the identification itself was
suggestive. Dkt. No. 1-1 at 10. Petitioner also argues that his due process rights were
violated because the court forced him to proceed to trial on the gun charges first, before he
had an opportunity to question Mayo. See id. at 10.
In Ground Three, petitioner claims that the "People and the Police used fraud and
duress to secure the conviction." Pet. at 8. He claims that Mayo was "threatened and
manipulated into giving perjured testimony so that the police could say that they had
probable cause to arrest" him. Id.; Dkt. No. 20 at 15-17.
Petitioner raised both of these grounds in his CPL §440.10 motion. With respect to
Ground Two, he argued that because Mayo did not testify at the suppression hearing or his
gun possession trial, he "didn't have a chance to challenge the victim about the probable
cause aspect of his case until after he had already been found guilty for possession of a
weapon." Dkt. No. 17-1 at SCR 1136. He argued he was charged with the shooting as a
"smokescreen to manufacture probable cause for finding the weapon," which he claimed was
the fruit of an unlawful arrest that was not supported by probable cause. See id. at SCR
1136-37. Petitioner claimed that the People "sought to prevent" him from "facing his alleged
accuser, and once" he was "found not guilty for the shooting case, they sought to bar" him
from "bringing up issues from his second trial, even though these issues shed light on the
probable cause issues of the first trial." Id. at SCR 1137. He attached to his motion an
affidavit in which Shiere Goldston, petitioner's brother, stated Mayo told him he did not
identify petitioner or sign paperwork for the police. See Dkt. No. 17-1 at SCR 1155.
With respect to Ground Three, petitioner argued that the Albany police knew Mayo
could not identify him and therefore tried to force Mayo to "go along with their story, so that
they could secure a conviction for the weapons possession charges." Dkt. No. 17-1 at SCR
1137. He repeated his argument that Mayo told Shiere Goldston he did not sign any
documents, and he was being threatened with jail time if he did not cooperate. See id. at
SCR 1137-38. He argued Mayo identified him at the shooting trial under threat of a perjury
charge, and police knew petitioner was not at the scene of the shooting because of the store
surveillance photographs. Id. at SCR 1138-39.
The trial court rejected petitioner's claims pursuant to CPL §440.10(2), finding that the
claims were "either raised or could have been raised on direct appeal[.]" Dkt. No. 17-1 at
SCR 1197. The record confirms that Ground Two was, in fact, raised on direct appeal. In
his direct appeal brief, petitioner argued that a new suppression hearing should be ordered
because the trial court improperly denied his request to call Mayo as a witness at the original
hearing. Dkt. No. 17-1 at SCR 316-18. He claimed that Detective Haggerty's testimony was
"sparse and incomplete as to how Mayo identified" petitioner, he had no opportunity to crossexamine Mayo at the gun possession trial, and there was no proof he or anyone on his
behalf harassed Mayo. Id. at SCR 316-17. He also claimed that the trial court erred by
denying his requests to reopen the suppression hearing after Mayo's testimony at the assault
trial, arguing he could not identify petitioner and did so only under threat of a perjury charge,
and his testimony was incredible. See id. at SCR 317-18.
The Appellate Division rejected the claim:
Where, as here, a defendant does not assert that the pretrial identif ication
procedure was unduly suggestive, the decision to grant a defendant's request
to call the complaining or identifying witness is a matter committed to the court's
sound discretion (see People v Taylor, 80 NY2d 1, 15 ; People v Chipp,
75 NY2d 327, 339 , cert denied 498 US 833 ; People v White, 79
AD3d 1460, 1461 , lv denied 17 NY3d 803 ). Based upon our
review of defendant's offer of proof, we do not find that Supreme Court abused
its discretion in denying defendant's request on this point. Moreover, "[a]ny
improprieties in pretrial identification procedures can be investigated under the
time-honored process of cross-examination" (People v Chipp, 75 NY2d at 338
[internal quotation marks and citation omitted]).
Goldston, 126 A.D.3d at 1178. 4 Petitioner attached to his section 440 motion an affidavit
from Shiere Goldston that was not presented to the Appellate Division, but the affidavit
contains the same information presented to the trial court in support of petitioner's motions to
re-open the suppression hearing and to call Mayo as a witness. Compare Dkt. No. 17-1 at
SCR 1155 with Dkt. No. 17-2 at TR 125-26, 128-29. In other words, the affidavit does not
add any new, off the record facts to petitioner's claim. Because the claims in Ground Two
were decided on direct appeal, the trial court's application on CPL §440.10(2) to bar this
claim was not exorbitant.
Similarly, the claims in Ground Three of the petition were apparent on the face of the
record. At petitioner's trial on the shooting-related charges, Mayo initially testified he was not
sure petitioner was the shooter. Dkt. No. 17-2 at TR 1317-26. After counsel was appointed
to represent Mayo, he returned to the stand and testif ied consistently with statements to
police and his grand jury testimony in which he identified petitioner. Id. at 1334-45, 1385-91,
1424-65. Based on Mayo's trial testimony, Becher moved to re-open the suppression
hearing. Id. at TR 1516-17. Because the facts supporting Ground Three were apparent on
the face of the record, the claim could have been raised on direct appeal, as trial court
concluded when denying petitioner's CPL §440.10 motion.
Accordingly, the trial court's express invocation of CPL §440.10(2) to dispose of the
claims in Grounds Two and Three of the petition bars federal habeas review unless petitioner
shows cause for the default and actual resulting prejudice, or that the failure to review his
claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518,
In applying the standards for AEDPA review, federal habeas courts must generally review the "last
reasoned decision" of the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). In this case, the last
reasoned decision was that of the trial court denying petitioner's CPL §440.10 motion.
536-39 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995); Clark, 510 F.3d at 393; Holland, 45
F. App'x. at 20-21; Kimbrough, 949 F. Supp. 2d at 359-60. 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, 280 (2012); Coleman, 501 U.S. at 753. If
a 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"); Stepney v. Lopes, 760
F.2d 40, 45 (2d Cir. 1985).
Petitioner has not alleged, and the Court cannot discern, any grounds for cause to
excuse the default. See Pet.; Reply. Therefore, the Court need not consider the issue of
prejudice. Carrier, 477 U.S. at 496; Holland, 45 F. App'x. at 21. As previously noted,
petitioner presents no new evidence that he is actually innocent of the gun charges. House,
547 U.S. at 536-39. Accordingly, petitioner's claims in Ground Two are procedurally
defaulted and dismissed.5
Even if Grounds Two and Three were not defaulted, no relief would issue. At bottom, petitioner's
argument is that the police lacked probable cause to arrest him because Mayo's identification of petitioner as the
shooter was defective and/or coerced and the gun should have been suppressed as fruit of an unlawful arrest.
See Pet., Reply. Petitioner's claims fall under the Fourth Amendment. In Stone v. Powell, 428 U.S. 465 (1976)
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 gun. 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.
Petitioner argues for the first time in his reply that trial counsel was ineffective with respect to the claims
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. §
2253(c)(2) requires;6 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: July 17, 2017
in Ground Two and, therefore, his claims are not barred under Kimmelman v. Morrison, 477 U.S. 365 (1986).
Reply at 10-11. In Kimmelman, the Supreme Court held that ineffective assistance claims "founded primarily on
incompetent representation with respect to a Fourth Amendment issue" are not barred under Stone v. Powell,
428 U.S. 465 (1976). Kimmelman, 477 U.S. at 382-83. But petitioner did not challenge trial counsel's
effectiveness in relation to Mayo's identification testimony in his 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."). To the extent petitioner claims Mayo's identification was not reliable, citing Neil v.
Biggers, 409 U.S. 188 (1972), this Court agrees with respondent that the argument is moot because he was
acquitted of the shooting, and that trial contained the only presentation of identification evidence. Finally, to the
extent petitioner raises a Confrontation Clause argument, that claim fails. The right to confront witnesses
against him is a trial right that does not apply at suppression hearings, and Mayo's identification of petitioner was
not presented at the suppression hearing for its truth, but instead to show police had probable cause to arrest
him. Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004); Pennsylvania v. Ritchie, 480 U.S. 39, 54 n.10 (1987);
McKelvey v. Bradt, No. 1:13-CV-3527, 2016 WL 3681457 at *19 (S.D.N.Y. Jul. 6, 2016).
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)).
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