Whitehead v. LaManna

Filing 24

MEMORANDUM-DECISION AND ORDER: ORDERED, that the Report-Recommendation, (Dkt. No. 13 ), is ADOPTED in part and REJECTED in part. ORDERED, that the Report-Recommendation, (Dkt. No. 13 ), is REJECTED to the extent it recommended denying federal habeas relief for Petitioner's Sixth Amendment claim concerning appellate counsel's failure to argue that trial counsel gave constitutionally deficient representation for not moving to dismiss the indictment's facially defective counts that include 225, 226, 227, 228, and 229 of the indictment.ORDERED, that the Report-Recommendation, (Dkt. No. 13), is otherwise APPROVED and ADOPTED. ORDERED, that the Petition, (Dkt. No. 1), is GRANTED in part and DENIED in part. ORDERED, that the Petition, (Dkt. No. 1), is GRANTED to the extent it seeks federal habeas relief pursuit to the Sixth Amendment's Right to Effective Assistance of Appellate Counsel for appellate counsel's failure to argue that trial counsel gave consti tutionally deficient representation for not moving to dismiss the indictment's facially defective counts that include 225, 226, 227, 228, and 229 of the indictment. ORDERED, that Petitioner's convictions for (1) criminal possession of a controlled substance in the second degree (Count 225), (2) criminal possession of a controlled substance in the third degree (Counts 226 and 229), (3) criminal sale of a controlled substance in the first degree (Count 227), and criminal possession of a controlled substance in the first degree (Count 228) are VACATED. ORDERED, that the Petition (Dkt. No. 1) is otherwise DENIED. ORDERED, that this action is REMANDED to the Albany County Court for proceedings consistent with this Memorandum-Dec ision and Order. ORDERED, that the Clerk is directed to serve a copy of this Memorandum-Decision and Order on all parties, the Albany County Court, and the Third Department, in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on May 17, 2023. (nas )

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 1 of 37

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NORMAN WHITEHEAD,
Petitioner,
-against-

9:18-CV-1436 (LEK/TWD)

JAMIE LAMANNA,
Respondent.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Petitioner Norman Whitehead seeks federal habeas relief pursuant to 28 U.S.C. § 2254.

Dkt. No. 1 (“Petition”); Dkt. No. 1-1 (“Petition Memorandum”). Petitioner challenges his New
York State convictions. He argues that he was denied effective assistance of appellate counsel
during state court proceedings in violation of the Sixth Amendment. See generally Pet. Mem.
On March 12, 2019, Respondent Jamie LaManna filed a response to the Petition. Dkt.
No. 5 (“Response”). After this Court granted Petitioner’s request for more time to reply to
Respondent, Dkt. No. 11, Petitioner submitted his reply on May 2, 2019, Dkt. No. 12 (“Reply”).
Now before the Court is a Report-Recommendation issued by the Honorable Thérèse
Wiley Dancks, United States Magistrate Judge, recommending that the Petition be denied and
dismissed, and no certificate of appealability be issued. Dkt. No. 13 (“ReportRecommendation”). Petitioner filed objections to the Report-Recommendation. Dkt. No. 20
(“Objections”). 1 Respondent has filed a response to the objections. Dkt. No. 23 (“Response to

1

On February 11, 2022, Petitioner requested a 30-day extension to file objections to the ReportRecommendation, Dkt. No. 15, which the Court granted on February 14, 2022. Dkt. No. 16.

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 2 of 37

Objections”).
For the reasons that follow, the Court approves the Report-Recommendation in part and
rejects the Report-Recommendation in part. The Court rejects the Report-Recommendation to
the extent it recommends denying habeas relief for the following claim advanced by Petitioner:
Petitioner’s appellate counsel was constitutionally ineffective for failing to argue that Petitioner’s
trial counsel was constitutionally ineffective for not moving to dismiss the five facially defective
counts (225, 226, 227, 228, and 229) in the indictment. Therefore, the Court grants habeas relief
with respect to that Sixth Amendment claim. Accordingly, Petitioner’s convictions stemming
from those five counts are vacated and this action is remanded to the Albany County Court for
proceedings consistent with this Memorandum-Decision and Order. The ReportRecommendation is otherwise approved and adopted.
II.

BACKGROUND
A. Factual Background
The factual circumstances relevant to Petitioner’s convictions for the possession,

purchase, and sale of controlled substances, as well as for conspiracy, were detailed in the
Report-Recommendation, familiarity with which is assumed. R. & R. at 2–3. Likewise, the
factual allegations underlying Petitioner’s request for habeas relief were detailed in the ReportRecommendation. See id.
B. Procedural History
Petitioner was one of more than 26 individuals named in a 278-count indictment
concerning various drug-related crimes. Dkt. No. 6-2 at 6–125. Petitioner was initially charged
with eleven of the counts. See id. These counts included (1) conspiracy in the second degree
(Count 1); (2) criminal possession of a controlled substance in the second degree (Count 225);

2

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 3 of 37

(3) criminal possession of a controlled substance in the third degree (Counts 226 and 229); (4)
criminal sale of a controlled substance in the first degree (Count 227); (5) criminal possession of
a controlled substance in the first degree (Count 228); (6) criminal sale of a controlled substance
in the third degree (Counts 224, 232, 244, and 245); and (7) attempted criminal possession of a
controlled substance in the third degree (Count 242). See id. Before trial, however, the
prosecution dismissed Counts 224 and 242, leaving just nine counts remaining. Dkt. No. 6 at
370–72.
Following an Albany County Court jury trial on July 30, 2012, Petitioner was convicted
of all nine counts and sentenced to an aggregate term of 29 years in prison. Dkt. No. 6-6 at 22–
23; Dkt. No. 7-10 at 8–10. Thereafter, Petitioner appealed to the Third Department and submitted
his papers on November 20, 2014. Dkt. No. 6 at 11–69. Petitioner’s appellate counsel raised
several arguments that sought to overturn Petitioner’s convictions. See id. However, the Third
Department rejected every argument, except for Petitioner’s arguments related to Counts 244 and
245. See People v. Whitehead, 130 A.D.3d 1142, 1143 (N.Y. App. Div. 2015). The Third
Department found that Petitioner’s “convictions on counts 244 and 245 [we]re not supported by
the weight of the evidence,” and reversed Petitioner’s convictions on those counts. After the
Third Department’s decision, only seven counts remained from the eleven counts Petitioner
initially faced.
Petitioner subsequently sought review before the New York State Court of Appeals,
which was granted. Dkt. No. 6-3 at 97. Petitioner argued that the remaining seven counts were
unsupported by legally sufficient evidence, but the Court of Appeals disagreed. See People v.
Whitehead, 29 N.Y.3d 956, 958 (N.Y. 2017). In a two-page order on March 28, 2017, the Court

3

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 4 of 37

of Appeals rejected Petitioner’s arguments concerning the sufficiency of the evidence, in
addition to Petitioner’s “remaining claims.” Id.
On May 24, 2018, Petitioner filed a writ of error coram nobis before the Third
Department. Dkt. No. 6-5 at 235–68. Petitioner argued that his right to effective assistance of
counsel was violated by his appellate counsel’s failure to raise the following issues on appeal: (1)
trial counsel’s previous representation of a key prosecution witness which purportedly presented
a conflict of interest; (2) the trial court’s error in permitting the prosecution to amend Counts
227, 228, and 229 during trial; (3) the indictment being impermissibly amended under New York
Law; and (4) trial counsel’s ineffectiveness in failing to: (a) move to dismiss as facially defective
Counts 225, 226, 227, 228, 229, and 244 of the indictment because the counts did not allege
Petitioner’s conduct had a particular effect in Albany County; (b) argue that the eavesdropping
warrants were procedurally and substantively defective; and (c) move to dismiss Counts 225,
227, and 228 because the prosecution had failed to prove the aggregate weight of the illegal
drugs. Dkt. No. 6-5 at 240–49, 472–90.
On September 7, 2018, the Third Department summarily denied the petition. Dkt. No. 6-6
at 24. And on November 15, 2018, the Court of Appeals denied Petitioner’s request for leave to
appeal. Dkt. No. 6-5 at 30.
Petitioner commenced suit in this Court on December 12, 2018, raising arguments
concerning his alleged deprivation of effective assistance of appellate counsel. Dkt. No. 1. On
February 8, 2022, the Magistrate Judge issued a Report-Recommendation, recommending that
the Petition should be denied and no certificate of appealability be issued. See generally R. & R.
C. The Report-Recommendation

4

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 5 of 37

As discussed, the Magistrate Judge reviewed the Petition and the Response and
recommended that the Petition should be denied and that no Certificate of Appealability be
issued. See generally id.
First, the Magistrate Judge addressed Petitioner’s claim regarding the eavesdropping
warrant that enabled Petitioner’s indictment. Id. at 12. Petitioner asserted that his appellate
counsel was ineffective for failing to argue that Petitioner’s trial counsel should have challenged
the warrant’s alleged deficiencies. Id. Specifically, Petitioner contended that the warrant was in
violation of New York Criminal Procedure Law (“NYCPL”) § 700.65 because it (1) had
terminated before it was amended, (2) exceeded the thirty-day duration permitted for warrants,
and (3) relied on an “impermissible transfer of necessity and or probable cause.” Id. at 12–13.
However, the Magistrate Judge rejected each argument because the “necessary factual predicate
for each of Petitioner’s arguments [was] unsupported by the record.” Id. at 13.
Second, the Magistrate Judge analyzed Petitioner’s argument regarding the facial
deficiencies in the indictment. Id. at 14. Petitioner argued that his appellate counsel was
ineffective because appellate counsel failed to argue that trial counsel should have moved to
dismiss six defective counts in the indictment. Id. Petitioner specifically posited that these counts
were facially defective because they did not allege that Petitioner’s offense took place in the
county in which the crimes were charged. Id. The Magistrate Judge began by noting that despite
Respondent’s argument to the contrary, the indictment did not contain a preamble establishing
the indictment’s jurisdiction for the challenged counts. Id. at 18. The Magistrate Judge further
found that Respondent’s alleged theory of jurisdiction—the narrow and rarely used “particular
effect jurisdiction”—was not properly pleaded anywhere in the indictment. Id. She thus
concluded that the “indictment does not plead effect jurisdiction . . . under Counts 225 through

5

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 6 of 37

229.” Id. The Magistrate Judge thus agreed with Petitioner that “[t]hese facts should have been
obvious to appellate counsel, who should have realized that this was a significant issue.” Id.
(citation omitted). However, despite finding that the indictment failed to plead jurisdiction, she
ultimately rejected Petitioner’s arguments. The Magistrate Judge stated that although “the
language” from Court of Appeals cases supports Petitioner’s argument, “fairminded jurists could
disagree on whether there is a reasonable probability that this argument would have succeeded
before the Court of Appeals.” Id. at 19 (citation omitted). The Magistrate Judge thus found: “In
the absence of any New York appellate decision granting relief on the theory that Petitioner
advances, fairminded jurists could disagree on whether it was correct for New York’s appellate
courts to deny Petitioner’s claim.” Id. at 20–21.
Third, the Magistrate Judge turned to Petitioner’s argument that “appellate counsel was
ineffective in failing to argue trial counsel should have moved to dismiss Counts 225, 227, and
228 because the prosecution failed to prove the aggregate weight of the drugs.” Id. at 21 (citing
Pet. Mem. at 9, 17–18). The Magistrate Judge rejected this argument because, when “[v]iewing
this evidence in the light most favorable to the prosecution, any rational trier of fact could have
found that” Petitioner committed the crimes for which he was convicted. Id. at 23.
Fourth, the Magistrate Judge analyzed Petitioner’s argument that “appellate counsel was
ineffective for failing to argue the trial court should have denied the prosecution’s mid-trial
motion to amend Counts 227, 228, and 229.” Id. The Magistrate Judge was unpersuaded by this
argument because she found that “Petitioner’s claim is unsupported by the text” of the New York
criminal statute at issue, which requires a showing of prejudice that Petitioner could not satisfy.
Id. at 26. She also found that this argument was not so “significant and obvious” that appellate
counsel should have been on notice of it. Id. at 27.

6

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 7 of 37

Fifth, the Magistrate Judge found Petitioner’s next argument—“that appellate counsel
was ineffective for failing to argue trial counsel had an actual conflict of interest that adversely
affected his performance”—unavailing. Id. Petitioner contended that this was a Sixth
Amendment violation because the alleged conflict from trial counsel’s prior representation of a
key prosecution witness should have been obvious to appellate counsel. However, the Magistrate
Judge did not identify a conflict. She instead concluded that: “Petitioner fails to identify trial
counsel’s divergent obligations and relevant conflicting interests.” Id. at 31. She also stated that
“Petitioner has failed to demonstrate how trial counsel’s alleged errors while cross-examining the
prosecution witness were caused by counsel’s ongoing professional obligations to the witness.”
Id. Accordingly, she rejected this argument and recommended that this Court deny the Petition
and decline to issue a Certificate of Appealability. Id. at 32–33.
III.

LEGAL STANDARD
“Rule 72 of the Federal Rules of Civil Procedure and Title 28 United States Code Section

636 govern the review of decisions rendered by Magistrate Judges.” A.V. by Versace, Inc. v.
Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405 (S.D.N.Y. 2002); see also 28 U.S.C. § 636;
Fed. R. Civ. P. 72. Review of decisions rendered by Magistrate Judges are also governed by the
Local Rules. See L.R. 72.1. As 28 U.S.C. § 636 states:
Within fourteen days after being served with a copy [of the
magistrate judge’s report and recommendation], any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of the court. A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings of recommendations made
by the magistrate [judge]. The judge may also receive further
evidence or recommit the matter to the magistrate [judge] with
instructions.

7

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 8 of 37

28 U.S.C. § 636(b)(1). When written objections are filed and the district court conducts a de
novo review, that “de novo determination does not require the Court to conduct a new hearing;
rather, it mandates that the Court give fresh consideration to those issues to which specific
objections have been made.” A.V. by Versace, 191 F. Supp. 2d at 406 (emphasis in original); see
also 12 Wright & Miller, Fed. Prac. & Proc. Civ. § 3070.2 (3rd ed.) (2022) (“[T]he judge to
whom the objection is made must review the record and magistrate’s recommendations, and
must make a de novo determination of the facts and legal conclusions, receiving additional
evidence and rehearing witnesses at his or her discretion. The district judge must not be a rubber
stamp.” (footnote omitted)).
“The district court may adopt those portions of a report and recommendation to which no
timely objections have been made, provided no clear error is apparent from the face of the
record.” DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). “When a party
makes only conclusory or general objections, or simply reiterates the original arguments, the
Court will review the [report and recommendation] strictly for clear error.” New York City Dist.
Couns. of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334, 336 (S.D.N.Y. 2018) (quoting
Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)).
Moreover, an application for a writ of habeas corpus may not be granted until a state
inmate “has exhausted the remedies available in the courts of the State” 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).
To satisfy the exhaustion requirement under § 2254, a state inmate must “rais[e] his
federal claim before the state courts in accordance with state procedures.” Shinn v. Ramirez, 142
S. Ct. 1718, 1732 (2022) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

8

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 9 of 37

Additionally, a state inmate must also “‘fairly present’ his claim 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, a state inmate “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, 526 U.S. at 845.
“Where as here, the state court does not provide reasons for its dismissal of a petitioner’s
claim, [courts] consider ‘what arguments or theories . . . could have supported[] the state court’s
decision,’” and a federal court “may grant habeas [relief] only if ‘fairminded jurists could [not]
disagree that those arguments or theories are inconsistent with the holding in a prior decision of
the Supreme Court.” Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)).
The Supreme Court has long recognized that that the Sixth Amendment guarantees “the
right to effective assistance of counsel on [direct] appeal.” Evitts v. Lucey, 469 U.S. 387, 396–97
(1985). “In assessing a claim that a lawyer’s representation did not meet the constitutional
minimum, [courts] ‘indulge a strong presumption that counsel’s conduct f[ell] within the wide
range of professional assistance.’” Lynch, 789 F.3d at 311 (quoting Strickland v. Washington,
466 U.S. 668, 689 (1984)). To defeat this presumption, a petitioner “must establish both parts of
the familiar Strickland test, showing first, that his attorney’s performance ‘fell below an
objective standard of reasonableness,’ and, second, that there was prejudice, meaning a
‘reasonable probability’ that but for counsel’s error, the outcome would have been different.” Id.
(quoting Strickland, 466 U.S. at 694) (internal citations omitted). The Supreme Court has
instructed that this standard applies in both the appellate and trial context. See Smith v. Robbins,

9

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 10 of 37

528 U.S. 259, 285 (2000) (“[T]he proper standard for evaluating [a] claim that appellate counsel
was ineffective . . . is that enunciated in Strickland[.]”).
Therefore, “a petitioner may establish constitutionally inadequate performance of
[appellate counsel] if he shows that counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker.” Lynch, 789 F.3d at 311 (alteration in
original) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). The issue omitted may
be based in either federal or state law. See id. (citing Mayo, 13 F.3d at 533). And “[t]o establish
prejudice in the appellate context, a petitioner must show that, had his claim been raised on
appeal, there is a reasonable probability that it would have succeeded before the state’s highest
court.” Lynch, 789 F.3d at 311 (citing Claudio v. Scully, 982 F.2d 798, 805 (2d Cir. 1992)).
“Whereas counsel’s performance is evaluated based ‘on the facts of the particular case, viewed
as of the time of counsel’s conduct,’” id. (citing Strickland, 466 U.S. at 690), “the prejudice
determination ‘may be made with the benefit of hindsight.’” Id. (quoting Mayo, 13 F.3d at 534).
IV.

DISCUSSION
Petitioner objected to every single one of the Magistrate Judge’s conclusions. See

generally Objs. Because Petitioner lodged specific objections to many of the Magistrate Judge’s
findings, the Court will conduct a de novo review of the Report-Recommendation unless
otherwise noted. The Court thus must determine whether it should accept, reject, or modify the
Magistrate Judge’s recommendation to (1) deny and dismiss the Petition and (2) decline to grant
a Certificate of Appealability.
A. Appellate Counsel’s Alleged Failure to Argue That Trial Counsel Failed to
Preserve a Meritorious Challenge to the Eavesdropping Warrant
Petitioner objected to the portion of the Report-Recommendation that rejected his
argument about the eavesdropping warrant used to surveil him. In particular, Petitioner asserted
10

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 11 of 37

that appellate counsel was ineffective for failing to argue that trial counsel should have
challenged the deficiencies in the eavesdropping warrant. Objs. at 1. Petitioner states that “the
Magistrate Judge did not directly rule on Petitioner’s claim that NY CPL 700.65 does not permit
a court to issue an ‘amended’ eavesdropping warrant to add a new target. Petitioner argued that
the New York statute does not allow for the amendment of an eavesdropping warrant to add new
targets and that a new warrant must be obtained to eavesdrop on new subjects.” Id. Likewise:
“Petitioner [also] objects to the R&R’s findings and conclusions concerning his claims that the
February 11, 2011 warrant and prior warrants impermissibly transferred necessity and probable
cause between multiple orders combined in one application in violation of NY CPL 700.20.” Id.
at 5. Thus, this objection focuses on (1) the Magistrate Judge’s alleged failure to address
Petitioner’s argument that New York State investigators did not comply with state law in
obtaining the warrant at issue; and (2) the R. & R.’s analysis of whether probable cause and
necessity were transferred in a way that complied with NY CPL 700.20.
The Magistrate Judge found that appellate counsel was not ineffective for declining to
raise arguments concerning trial counsel’s failure to challenge the alleged deficiencies because:
“The necessary factual predicate for each of Petitioner’s arguments is unsupported by the record.
First, there appears to be no lapse in the warrants between November 19, 2010, and April 30,
2011. The warrants were timely amended and did not expire during this period.” R. & R. at 13
(internal citations omitted). The Magistrate Judge also found that, “none of the warrants appear
to have exceeded 30 days. Importantly, the warrant that investigators used to track Petitioner’s
conduct before and on February 27, 2011, took effect on February 11, 2011 and was prohibited
from exceeding March 12, 2011. The evidence accordingly does not support Petitioner’s claim
that the warrants exceeded 30 days.” Id. (citations omitted). Finally, the Magistrate Judge found

11

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 12 of 37

no reason to disagree with the “judge who reviewed and granted the investigators’ warrant
application [who] specifically concluded there was probable cause to believe Petitioner was
about to engage in drug-related criminal activity.” Id. at 13–14. Thus, according to the
Magistrate Judge: “Petitioner’s appellate counsel did not err in failing to raise these issues, which
were unlikely to prevail on appeal.” Id. at 14 (citation omitted).
The Court agrees with the Magistrate Judge. Petitioner first takes issue with the
Magistrate Judge’s finding that there was “no lapse in the warrants between November 19, 2010,
and April 30, 2011.” R. & R. at 13. Petitioner contends that contrary to the Magistrate Judge’s
conclusion, “the original warrant, issued on November 19, 2010 [to surveil alleged coconspirator] Roehr[], had expired when the February 11, 2011 ‘amendment’ was issued
authorizing the surveillance of Whitehead and his phone.” Objs. at 3. Petitioner finds support for
his theory of the expiration date in NY CPL 700.65(4). That statute states:
When a law enforcement officer, while engaged in intercepting
communications . . . in the manner authorized by this article,
intercepts a communication or makes an observation which was not
otherwise sought and which constitutes evidence of any crime . . .
the contents of such communications or observation, and evidence
derived therefrom, may be disclosed . . . and any evidence derived
therefrom may be used . . . when a justice amends the eavesdropping
or video surveillance warrant to include such contents.
NY CPL 700.65(4). From this language Petitioner gleans that the statute, “allow[s] for the
surveillance of electronic communications for a new crime that was discovered under the initial
warrant, not for the investigation of new targets and new phones. In this case, the February 2011
warrant added Norman Whitehead and his phone as targets—an ‘amendment’ that was not
authorized by law.” Objs. at 2. And furthermore, Petitioner states that the New York Practice
Commentaries supports this interpretation of NY CPL 700.65(4). The relevant language from the
Commentaries includes:
12

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 13 of 37

[T]here is a distinction between amending the warrant to include
discovery of a new crime and expanding the warrant for further
electronic surveillance. The purpose of the amendment pursuant to
[CPL § 700.65 (4)] is to serve as assurance that the information was
obtained through a valid order and in good faith, but if an extension
of electronic surveillance is based upon the inadvertent discovery, a
new warrant must be obtained, which involves compliance with all
the criteria for the original warrant
Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL § 700.65.
Although Petitioner’s argument concerning Section 700.65 proscribing the use of a
warrant in this manner may be plausible, the Court is unpersuaded that this argument “raise[d] a
significant obvious issue” that appellate counsel should have raised. Lynch, 789 F.3d at 312.
While it is certainly possible that this argument could theoretically succeed, the issue must be
“patently obvious on the face of the record” to meet the first prong of the Strickland test. Id.
Petitioner does not cite any New York State cases addressing CPL 700.65(4) that would put
appellate counsel on notice that this argument was obvious. Objs. at 2–6; cf. Lynch, 789 F.3d at
314 (“A simple Shepard-search of that precedent would have revealed the recent Court of
Appeals case applying the precedent in a highly analogous context.”). Instead, Petitioner
principally supports this interpretation of New York law by relying on non-controlling New
York Practice Commentaries, propositions of law concerning wiretap applications from out of
circuit courts, and a Court of Appeals case dealing with a different subsection of NY CPL 700.
Objs. at 2–6.
As a result, it is not evident to this Court that the warrants exceeded thirty days under
each new application in violation of New York State law, Dkt. No. 6 at 110–241. Likewise, it is
not obvious that there was a lapse in the warrants between November 19, 2010, and April 30,

13

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 14 of 37

2011. See id. 2 It thus follows that appellate counsel was not ineffective for failing to raise these
arguments, since they were not “patently obvious on the face of the record.” Lynch, 789 F.3d at
312. Therefore, the Third Department’s rejection of this ineffective assistance of counsel claim
was not “contrary to, or involved an unreasonable application of, clearly established Federal
law.” 28 U.S.C. § 2254(d)(1).
Petitioner also “objects to the R&R’s findings and conclusions concerning his claims that
the February 11, 2011 warrant and prior warrants impermissibly transferred necessity and
probable cause between multiple orders in one application of violation of NY CPL 700.20.”
Objs. at 5.
However, this argument was already made before the Magistrate Judge in Petitioner’s
initial habeas application. See Pet. Mem. at 14 (“The amended eavesdropping warrant was also
[sic] because it exceeded the thirty-day limitations provided in NY CPL §700.10(2). Further,
there was an impermissible transfer of necessity and/or probable cause between multiple orders
combined in one application in violation of NY CPL §700.20(2) when a new application was
submitted for Petitioner to be surveilled.”). As a result, Petitioner is “simply relitigating a prior
argument.” DiPilato, 662 F. Supp. 2d at 340. Indeed, Petitioner re-asserts the same arguments,
with the new additions including only citations to Ninth Circuit and Supreme Court cases
supporting the relitigated argument that the statute at issue “did not allow for the transfer of

2

Petitioner appears to further support this argument by stating that the Magistrate Judge declined
to take issue with a “typographical error” from investigators that permitted the warrant to extend
for over a year, an amount of time that would be in violation of NY CPL 700.10(2), which limits
unrenewed warrants to thirty days. Objs. at 4. However, after a searching review of the ReportRecommendation, the Court does not see this acknowledgment from the Magistrate Judge
anywhere, and Petitioner does not cite a page in the Report-Recommendation where it is found.
See generally Objs. Accordingly, without more information, the Court cannot conclude that this
argument has merit.
14

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 15 of 37

probable cause and necessity within multiple orders for extended and amended or new
applications in one eavesdropping warrant application. [Petitioner] contends that the warrant in
his case was defective and did not comply with CPL 700.20(2) that sets forth what each
application separately must contain.” Objs. at 6. Thus, because Petitioner reiterates his prior
argument, the Court reviews this portion of the Report-Recommendation for clear error and finds
none. Accordingly, the Court must reject the argument that the Third Department’s denial of this
ineffective assistance of counsel claim “was contrary to, or involved an unreasonable application
of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
B. Appellate Counsel’s Alleged Failure to Argue that Trial Counsel Had a Conflict
of Interest
Petitioner next objects to the Report-Recommendation with respect to its analysis of
whether appellate counsel was constitutionally ineffective for failing to raise trial counsel’s
alleged conflict of interest. Objs. at 11. Petitioner states: “The R. & R. says ‘Petitioner fails to
identify trial counsel’s divergent obligations and any relevant conflicting interests.’ This is
wrong” because “[trial counsel] Goldberg represented a key witness against Petitioner in a
criminal case in which the circumstances provided a basis for him to cross-examine his former
client to [sic] as to advance the defendant’s theory of the case—but this he failed to do.” Id.
“Where a constitutional right to counsel exists, [the Supreme Court’s] Sixth Amendment
cases hold that there is a correlative right to representation that is free from conflicts of interest.”
Wood v. Georgia, 450 U.S. 261, 271 (1981) (citations omitted); see also United States v.
Schwarz, 283 F.2d 76, 90 (2d Cir. 2002) (“A defendant’s Sixth Amendment right to effective
assistance of counsel includes the right to representation by conflict-free counsel.”) (quoting
United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998)). In the Second Circuit, attorney conflicts

15

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 16 of 37

of interest are grouped into three general categories. See United States v. Williams, 372 F.3d 96,
102 (2d Cir. 2004).
“The first category describes those conflicts that are so severe that they are deemed per se
violations of the Sixth Amendment. Such violations are unwaivable and do not require a showing
that the defendant was prejudiced by his representation.” Id. (citations omitted). The Second
Circuit has “found such conflicts of interest only where trial counsel is not authorized to practice
law and where trial counsel is implicated in the ‘same or closely related criminal conduct’ for
which the defendant is on trial.” Id. at 103 (citations omitted).
The second category, known as an “actual conflict of interest[,] occurs when the interests
of a defendant and his attorney ‘diverge with respect to a material factual or legal issue or to a
court of action.’ To violate the Sixth Amendment, such conflicts must adversely affect the
attorney’s performance.” Id. (cleaned up). An actual conflict of interest is more than “a mere
theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171 (2002). “In Cuyler v.
Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent representations
to give rise to an actual conflict.” Hyman v. Brown, 927 F.3d 639, 670 n.30 (2d Cir. 2019).
“Once an actual conflict is established, a defendant ‘need not prove prejudice, but simply that a
lapse in representation resulted from the conflict.’” Williams, 372 F.3d at 106 (quoting United
States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995)). “A defendant can prove a lapse in
representation by demonstrating ‘that some plausible alternative defense strategy or tactic might
have been pursued, and that alternative defense was inherently in conflict with or not undertaken
due to the attorney’s other loyalties or interests.’” Id. (quoting Levy, 25 F.3d at 157).
“Lastly, a client’s representation suffers from a potential conflict of interest ‘if the
interests of the defendant may place the attorney under inconsistent duties at some time in the

16

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 17 of 37

future.’” Williams, 372 F.3d at 106 (emphasis in original) (quoting United States v. Kliti, 156
F.3d 150, 153 n.3 (2d Cir. 1998). “To violate the Sixth Amendment such conflicts must result in
prejudice to the defendant.” Id. at 102–03 (citing United States v. Levy, 25 F.3d 146, 152 (2d
Cir. 1994)).
The Magistrate Judge rejected Petitioner’s arguments concerning his appellate counsel’s
failure to raise his trial counsel’s alleged conflict of interest. R. & R. at 30. The Magistrate Judge
found that: “Petitioner appears to claim that trial counsel’s prior representation of the prosecution
witness caused a conflict between trial counsel’s obligation to Petitioner and the prosecution
witness.” R. & R. at 30–31 (citing Dkt. No. 1 at 12–14). She elaborated:
Yet, Petitioner fails to identity trial counsel’s divergent obligations
and any relevant conflicting interest. Instead, Petitioner simply
argues that an actual conflict existed between trial counsel once
represented the prosecution witness in an unrelated matter and was
tasked with cross-examining the prosecution in Petitioner’s case.
The Court is unconvinced these facts without more give risk to an
actual conflict.
Id. at 31 (internal citations omitted).
The Magistrate Judge also rejected Petitioner’s other conflict of interest theory. She
stated: “Petitioner has failed to demonstrate how trial counsel’s alleged errors while crossexamining the prosecution witness were caused by counsel’s ongoing professional obligations to
the witness.” Id. And the Magistrate Judge further concluded: “Petitioner does not claim trial
counsel’s cross-examination was impaired because counsel’s prior representation was
substantially related to Petitioner’s case. Nor does Petitioner claim trial counsel’s crossexamination was deficient because he failed to utilize confidential information from the prior
representation that was relevant in Petitioner’s case.” Id. at 32 (internal citations omitted). But
“[r]ather, Petitioner argues trial counsel should have impeached the prosecution witness with
information that was publicly available and with questions directed at inconsistencies in the
17

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 18 of 37

witness’s testimony.” Id. (citing Dkt. No. 1-1 at 13–14). The Magistrate Judge further found:
“This alternative strategy—impeaching the witness with information that was publicly available
and inconsistencies in the witness’s testimony—bears no obvious relation to trial counsel’s
previous representation of the prosecution witness, and Petitioner makes no argument that they
do.” Id.
The Court agrees with the Magistrate Judge. As an initial matter, Petitioner’s first
objection in this section of his memorandum of law merely reiterates what he stated in his
Petition concerning the presence of a conflict of interest—a fact that even Petitioner concedes.
Specifically, Petitioner’s first objection to the Magistrate Judge’s conflict of interest analysis
includes the following language:
In his moving papers before this Court and in the coram nobis,
Petitioner carefully explained (Dkt. 2-2 at 10–12, Dkt. 12 at 5–8 and
Dkt. 6-5 at 3237–42, 3253–58) how there was an actual conflict of
interest and just how Goldberg utterly failed to take advantage of
obvious means to impeach his former client. Petitioner showed that
the conflict “actually affected the adequacy of his representation.”
Mickens v. Taylor, 535 U.S. 162, 171 (2002). Petitioner showed the
means by which Goldberg could have confronted his former client
. . . Petitioner has shown the conflict caused Goldberg to forgo a
plausible defensive strategy.
Id. at 11. However, as discussed above, the Magistrate Judge expressly considered this argument
and found that Petitioner failed to show how a conflict of interest was present from these facts.
Put another way, Petitioner responds to the Magistrate Judge’s alleged errors by merely referring
this Court to his previous papers. But simply reiterating an argument without specific objections
is insufficient to trigger de novo review. As a result, Petitioner is “simply relitigating a prior
argument.” DiPilato, 662 F. Supp. 2d at 340. The Court thus reviews this portion of the ReportRecommendation for clear error and finds none.

18

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 19 of 37

Next, Petitioner states: “The Magistrate is also wrong when she says that we only say
Goldberg should have ‘impeached the prosecution witness with information that was publicly
available and with questions directed at inconsistencies in the witness’s testimony.’” Objs. at 10–
11 (citing R. & R. at 32). Instead, according to Petitioner:
Much of what Goldberg could have used to cross Mansaray related
to information he imparted to the trial court about the circumstances
under which Mansaray was arrested in the case in which Goldberg
represented him, including how Goldberg could have, but failed to,
cross-examine Mansaray concerning his possession of marijuana
and cash at a time when he had testified he was only earning “a little
over $9 an hour.[”]
Id. at 11. The Court nevertheless agrees with the Magistrate Judge. As the Magistrate Judge
correctly found, Petitioner has not demonstrated how trial counsel’s alleged errors while crossexamining the prosecution witness were caused by counsel’s ongoing professional obligations to
the witness. LoCascio, 395 F.3d at 56–57. For instance, this is not a case where an actual conflict
stemmed from the attorney-client privilege barring effective impeachment from an attorney’s
previous representation. Malpiedi, 62 F.3d at 469. Nor is this a case where counsel’s prior
representation was substantially related to Petitioner’s case. Quinones v. Miller, No. 01-CV10752, 2005 WL 730171, at *6 (S.D.N.Y. Mar. 31, 2005), aff’d, 224 Fed. App’x 44 (2d Cir.
2007) (explaining that “several courts have held that a petitioner is relieved of his burden to
show prejudice where (1) counsel’s prior representation was substantially related to his
representation of the petitioner, or (2) counsel learned confidential information from the prior
representation that was relevant to the petitioner’s case”).
Moreover, trial counsel’s representation of the witness at issue occurred in “2007 or
2008” which resulted in an “ACD or dismissal.” Dkt. No. 1-1 at 5. Thus, “Petitioner’s preferred
defense strategy could not possibly have been materially adverse to the interests of [the

19

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 20 of 37

prosecution witness], as the strategy could have no practical adverse effect on [the witness].”
Medrano v. United States, No. 06-CR-0061, 2015 WL 4522857, at *5 (S.D.N.Y. July 27, 2015),
aff’d, 691 F. App’x 663 (2d Cir. 2017). “Thus . . . the successive representation did not present
an actual conflict.” Id. As a result, the Court is unpersuaded that “appellate counsel should have
seen [that the alleged conflict] was plain as day in the record.” Objs. at 12. If Petitioner’s
preferred defense strategy could not have had an adverse effect on the prosecution’s witness, it
follows that a conflict of interest from trial counsel’s prior representation of this witness is likely
absent.
Petitioner’s remaining objections rehash arguments made before the Magistrate Judge
and state in a conclusory manner that a conflict was present despite the Magistrate Judge’s
findings to the contrary. Id. at 12–14. These objections are therefore subject to clear error review.
Having found no clear error, the Court adopts the Magistrate Judge’s conclusions regarding the
absence of a conflict of interest.
Petitioner has accordingly failed to demonstrate that appellate counsel was ineffective for
failing to argue trial counsel had an actual conflict of interest that adversely affected his
performance. See Lynch, 789 F.3d at 311, 313. Consequently, the Third Department’s denial of
Petitioner’s ineffective assistance of counsel claim was not contrary to—and did not involve an
unreasonable application of—clearly established federal law. See 28 U.S.C. § 2254(d)(1).
C. Appellate Counsel’s Failure to Argue Trial Counsel Was Ineffective for Not
Raising the Indictment’s Facial Deficiencies
Petitioner also objects to the Report-Recommendation’s analysis of his claim concerning
the defectiveness of five counts in the indictment. Objs. at 6. According to the Magistrate Judge,
appellate counsel was not constitutionally ineffective for failing to argue that trial counsel should
have moved to dismiss these counts (225, 226, 227, 228, and 229).
20

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 21 of 37

But Petitioner objects. Petitioner states: “The R&R correctly concludes that ‘the
indictment does not plead particular effect jurisdiction, it lacks any allegation that Petitioner’s
actions under Counts 225 through 229 caused a concrete and identifiable injury to Albany
County, and a searching review of the record reveals no clarification of the prosecution’s theory
of particular effect jurisdiction in a bill of particulars.’” Id. (quoting R. & R. at 19). From this
admission, Petitioner asserts that the “R & R agrees that the [five] errant counts were defective.”
Id. However, Petitioner objects to the Magistrate Judge’s subsequent analysis, which found that
Petitioner did not suffer prejudice from how appellate counsel handled these facts. The
Magistrate Judge stated that the prejudice analysis required Petitioner to identify an appellate
case that dismissed an indictment solely for failing to plead particular effect jurisdiction,
regardless of whether evidence of particular effect jurisdiction was put before the grand jury. See
R. & R. at 20–21. According to Petitioner, however, all that is required to show prejudice is “a
reasonable probability” that his argument concerning the indictment’s defectiveness would have
succeeded before the Court of Appeals. See Objs. at 6. Petitioner argues that he has met this
standard. Petitioner thus maintains that the Magistrate Judge employed the wrong legal standard,
and “improperly grafted . . . a burden on Petitioner to point to a state appellate case in which the
obvious facial defect [of an indictment] was struck.” Id. at 7. Lastly, Petitioner objects to the
Magistrate Judge’s “erroneous finding that Petitioner’s claim is not grounded in a challenge to
the prosecution’s proof before the grand jury.” Id. at 6.
Therefore, Petitioner primarily objects to the Magistrate Judge’s Right to Effective
Assistance of Counsel prejudice analysis in light of the New York State Law governing where a
defendant must be tried. As such, the Court will conduct a de novo review of this specific portion
of the Report-Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

21

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 22 of 37

As discussed, the Court must examine whether appellate counsel was ineffective for
failing to argue that trial counsel should have moved to dismiss Counts 225, 226, 227, 228, and
229. This requires the Court to examine whether appellate “counsel omitted significant and
obvious issues while pursuing issues that were clearly and significantly weaker.” Lynch, 789
F.3d at 311. “The claim whose omission forms the basis of an ineffective assistance of counsel
claim may either be a federal-law or a state-law claim.” Id. (emphasis added). Moreover,
Petitioner must also show that “there is a reasonable probability that it would have succeeded
before the state’s highest court . . . [which] may be made with the benefit of hindsight.” Id.
(citation and quotations omitted). The Supreme Court has stated that a “reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Hinton v. Alabama, 571 U.S.
263, 275 (2014). With these standards in mind, the Court now turns to New York State law
concerning where a defendant must be tried.
The New York Court of Appeals has held: “At common law and under the State
Constitution, a defendant has the right to be tried in the county where the crime was committed
unless the Legislature has provided otherwise.” People v. Zimmerman, 9 N.Y.3d 421, 426–27
(N.Y. 2007) (citations omitted). Importantly: “The burden is on the People to prove by a
preponderance of the evidence that the county where the crime is prosecuted is the proper venue
because either the crime was committed there or one of the statutory exceptions is applicable.”
People v. Ribowski, 77 N.Y.2d 284, 291–92 (N.Y. 1991). Therefore, “[a]bsent [a] statutory
exception, . . . . the territorial unit for criminal prosecutions is [a] county.” Zimmerman, 9
N.Y.3d 421 at 427 (quoting People v. Fea, 47 N.Y.2d 70, 75 (N.Y. 1979)) (alteration in original).
One statutory exception to this right is known as “particular effect” jurisdiction. NY CPL
§ 20.30(2)(c). Under this exception, a defendant may be convicted in a criminal court of a

22

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 23 of 37

particular county “[e]ven though none of the conduct constituting the offense may have occurred
within such county” as long as “[s]uch conduct had, or was likely to have, a particular effect
upon such county . . . and was performed with intent that it would, or with knowledge that it was
likely, to have such particular effect therein.” Id. (emphasis added).
The Court of Appeals has stated that “[a] ‘particular effect’ within the county is defined
as a ‘materially harmful impact upon the governmental processes or community welfare of’ the
county seeking to assert jurisdiction.” Matter of Steingut v. Gold, 42 N.Y.2d 311, 318 (N.Y.
1977) (citation omitted). The Court of Appeals subsequently elaborated on this exception, stating
that material harm “must be more than minor or incidental, and the conduct must harm ‘the well
being of the community as a whole,’ not merely a particular individual.’” Matter of Taub v.
Altman, 3. N.Y.3d 30, 33–34 (N.Y. 2004) (citing Fea, 47 N.Y.2d at 77). Moreover, “particular
effect jurisdiction is to be applied only in limited circumstances, [and] it has been rarely
invoked.” Id. at 36 (emphasis added)
The rare circumstances identified as bases for particular effect jurisdiction by the Court
of Appeals include “when, for example, a defendant’s out-of-county conduct has interfered with
the county’s courts or administration of justice; has exposed a large number of county residents
to a specific harm; has caused a physical intrusion upon the county; or has involved the theft of
funds from the county itself.” Id. Other examples by the Court of Appeals for this “particular and
readily identifiable,” form of jurisdiction, id. — would be if, “for example, a person commits
criminal mischief by maliciously blowing up a dam in Putnam County near the Westchester
County line, thus flooding some Westchester territory.” Id. The Court of Appeals has repeatedly
rejected attempts by district attorneys to expand this narrow statutory exception. See Altman, 3
N.Y.3d 30, 33–34; Fea, 47 N.Y.2d at 77; Steingut, 42 N.Y.2d at 318.

23

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 24 of 37

The facts of Steingut are illustrative. There, defendants were prosecuted in Kings County,
New York. The alleged criminal conduct emanated from a meeting in New York County, where
the defendants allegedly discussed and later transacted a corrupt election scheme in violation of
New York election law. Steingut, 42 N.Y.2d at 313–14. The Kings County prosecutor relied on
“particular effect jurisdiction” to initiate the prosecution. The prosecutor argued that because the
election at issue was to take place in Kings County, particular effect jurisdiction was met. Id. at
317. But the Court of Appeals rejected the argument. The court stated: “The type of injury or
offense contemplated by the statute must be perceptible and of the character and type which can
be demonstrated by proof before a Grand Jury.” Id. Importantly, the Court of Appeals chided the
prosecution, stating, “in the most conclusory fashion, the indictment simply states ‘the
defendants’ conduct had and was likely to have a particular effect on Kings County.’ Certainly
the invoking of the extraordinary injured forum jurisdictional statute requires the specification of
a more concrete and identifiable injury.” Id. at 318. Finally, in rejecting Kings County’s
jurisdictional authority, the Court of Appeals concluded:
[E]ven if we were to presume that the statute could have application
in connection with an offense of this sort, the county seeking to
prosecute would be required to establish before the Grand Jury both
the materially harmful impact upon the governmental processes of
that county and that the criminal activity in question was performed
with the intent or knowledge that such a materially harmful impact
was likely to occur in that county. In the case now before us, the
prosecutor failed to put before the Grand Jury any evidence either
that there was a materially harmful impact upon the governmental
processes of Kings County or that the allegedly criminal activity was
performed with the intent or knowledge that such a particular effect
would occur in that county.
Id. Consequently, the Court of Appeals held that the conclusory assertion of particular effect
jurisdiction is insufficient to sustain an indictment in the absence of “specification” and a
“concrete and identifiable injury.” Id.
24

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 25 of 37

Conversely, in Taub, the Court of Appeals rejected a facial challenge to an indictment
because the circumstances differed from Steingut. Like in Steingut, the indictment in Taub
“merely asserted without specificity that the charged conduct ‘had and was likely to have a
particular effect [on the target county with the requisite intent],’” but unlike in Steingut, “the bill
of particulars provided by the People set forth in detail both the prosecution’s theory of venue
and specific facts in support of their contention . . . that there had been a particular effect.” Taub,
3 N.Y.3d at 40. Thus, the Court of Appeals reiterated that prosecutors must plead specificity and
concrete injuries to the target county, but the indictment need not state those specifications if a
bill of particulars provides the requisite specificity. With this precedent in mind, the Court now
turns to the facts in the present case.
Here, the Court concurs with the Magistrate Judge that Respondent misrepresents that the
relevant counts in the indictment contain a preamble. R. & R. at 18. As the Magistrate Judge
points out, “Count 1 has a preamble, but nothing in the indictment suggests the preamble from
Count 1 applies to the rest of the indictment.” Id.; see also Dkt. No. 6-2 at 8. This is a critical
detail because Respondent supports his theory of particular effect jurisdiction (and presumably
the Third Department accepted this theory) by incorrectly stating that Petitioner’s “general
scheme was set forth in the preamble of the indictment, which explained that the conspiracy
existed to obtain, control, and sell cocaine in, among others, Albany, Orange, and Schenectady
counties.” Dkt. No. 5 at 28.
Likewise, the Court also agrees with the Magistrate Judge regarding the indictment’s
blatant absence of specificity concerning pleading particular effect jurisdiction. R. & R. at 18.
Counts 225 through 229 accuse Petitioner of committing several drug crimes in Schenectady
County on February 27, 2011. Dkt. Nos. 6-2 at 104–06. However, Petitioner was prosecuted for

25

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 26 of 37

these crimes in Albany County. Tellingly, Respondent concedes that the indictment “does not
explicitly plead the statutory ‘particular effect’ language.” Dkt. No. 5-1 at 30. The Court also
concurs with the Magistrate Judge that a searching review of the record reveals no bill of
particulars, and Respondent does not advance any argument whatsoever that a bill of particulars
clarified his unpled theory of particular effect jurisdiction. Cf. Altman, 3 N.Y. 3d at 39.
Concerningly, unlike the prosecution in Steingut, the prosecution here did not even state in “the
most conclusory fashion” that particular effect jurisdiction was met; it just simply omitted the
threshold requirement altogether, thus robbing Petitioner of his right to be tried in the county
where he committed the alleged crimes.
The Court further agrees with the Magistrate Judge that “[t]hese facts should have been
obvious to appellate counsel, who should have realized this was a significant issue.” R. & R. at
18 (citing Lynch, 789 F.3d at 311). Therefore, the Court concurs with the Magistrate Judge’s
findings that
The indictment does not plead particular effect jurisdiction, it lacks
any allegation that Petitioner’s actions under Counts 225 through
229 caused a concrete and identifiable injury to Albany County, and
a searching review of the record reveals no clarification of the
prosecution’s theory of particular effect jurisdiction in a bill of
particulars. Petitioner’s appellate counsel could have argued for
dismissal of Counts 225 through 229 based on a claim of ineffective
assistance of trial counsel. Indeed, the language in Steingut and
Taub would have supported such an argument.
Id. at 19. Accordingly, the Court concurs with the Magistrate Judge that appellate “counsel’s
performance was deficient” for Sixth Amendment purposes. Strickland, 571 U.S. at 682. “[T]he
issue [of jurisdiction] was patently obvious on the face of the record.” Lynch, 789 F.3d at 314.
Appellate counsel was thus constitutionally deficient for omitting this “patently obvious” failure
of trial counsel because appellate counsel pursued issues that were “significantly weaker.” Id. at
315. Moreover, appellate “[c]ounsel did not face a choice between . . . arguments,” id. at 314, he
26

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 27 of 37

simply omitted an obvious argument that trial counsel failed to raise, which further advises in
favor of finding that Petitioner’s claim satisfied the first Strickland prong.
However, despite the obvious defect in the indictment that Steingut and Taub have
identified as a basis for dismissal, the Magistrate Judge (and presumably the Third Department)
declined to find a constitutional violation because she found that Petitioner failed to satisfy the
prejudice prong of the Strickland test. The Magistrate Judge explained that Steingut and Taub
alone were insufficient to support an inference that there would be a reasonable probability that
Petitioner’s argument would succeed before the Court of Appeals. See R. & R. at 19–20. The
Magistrate Judge explicated:
Petitioner has failed to cite a single Court of Appeals or Appellate
Division case—and the Court is unaware of any—dismissing an
indictment on the sole grounds that it did not adequately plead
particular effect jurisdiction. When appellate courts in New York
dismiss indictments for lack of particular effect jurisdiction, they
appear to rely—in one way or another—on the prosecution’s failure
to prove jurisdiction before the grand jury. See, e.g., Taub, 3 N.Y.3d
at 34–35; Steingut, 42 N.Y.2d at 318; Gentner, 193 A.D.3d at 1131.
Petitioner’s second layered ineffective assistance of counsel claim
is not grounded in a challenge to the prosecution’s proof before the
grand jury—it rests solely on a challenge to pleading defects in the
indictment.
Id. at 20. The Magistrate Judge further supported this argument by citing a Second Department
decision interpreting Steingut which stated that Steingut “does not stand for any particular
pleading requirements to be met by an indictment relying upon CPL 20.40(2)(c) for geographic
jurisdiction.” Id. (quoting People v. Guzman, 153 A.D.3d 1273, 1276 (N.Y. App. Div. 2017)).
From this analysis, she concluded: “The Court is unconvinced there is a reasonable probability
that such an argument would have been successful before the Court of Appeals.” Id. at 20.
The Court respectfully disagrees with the Magistrate Judge. As an initial matter, the
Court disagrees with the legal standard articulated by the Magistrate Judge. The Magistrate
27

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 28 of 37

Judge rejected Petitioner’s argument because she was “unaware of any [case] dismissing an
indictment on the sole grounds that it did not adequately plead particular effect jurisdiction.” R.
& R. at 20. 3
However, Petitioner is correct that this was an “improper[] graft . . . onto th[e] . . .
standard” imposed by the Supreme Court. Objs. at 7. The standard described by the Magistrate
Judge is more akin to the Supreme Court’s articulation of qualified immunity, where a factually
similar case must typically foreshadow a certain outcome. See, e.g., Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). But in the ineffective assistance of counsel context, once deficient
performance is established, the Supreme Court’s prejudice analysis requires petitioners only to
“show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 571 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Hinton, 571 U.S.
at 275. The Magistrate Judge declined to address what reasonable probability means under
Supreme Court precedent, as described in Strickland and Hinton. See R. & R. at 14–21. Instead,
she impermissibly heightened the prejudice standard by requiring Petitioner to present a specific
case with identical facts that she said did not exist. However, the Supreme Court made clear in
Hinton and Strickland that a reasonable probability does not require a specific case on point to
demonstrate a constitutional violation; prejudice will be found if the “probability [is] sufficient to
undermine confidence in the outcome.” Strickland, 571 U.S. at 694.

3

This appears to be because the Magistrate Judge mistakenly conflated the “reasonable
probability” test from Strickland with the “fairminded jurist” language from Richter, which
resulted in a single novel test for Sixth Amendment ineffective assistance of counsel claims. This
error created a much higher bar for Petitioner to clear than is required under Strickland.
28

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 29 of 37

Using this incorrect legal standard, the Magistrate Judge next stated: “When appellate
courts in New York dismiss indictments for lack of particular effect jurisdiction, they appear to
rely—in one way or another—on the prosecution’s failure to prove jurisdiction before the grand
jury.” Id. And because Petitioner supposedly challenges only the indictment’s pleading defects,
the Magistrate Judge rejected Petitioner’s claim. The Court disagrees with this reasoning for
several reasons.
First, the Court disagrees with the Magistrate Judge’s narrow characterization of
Petitioner’s claim. The Court does not agree that Petitioner’s claim is only challenging the
pleading defects of the indictment. Instead, Petitioner is raising counsel’s failure to challenge the
prosecution’s inability to prove jurisdiction before the grand jury. The Petition states: “Trial
counsel failed to move to dismiss the improper counts in his pretrial motion pursuant to NY CPL
210.20(1)(h). Appellate counsel failed to raise this meritorious claim on appeal.” Pet. Mem. at
13. The pretrial motion that Petitioner says should have been raised would have moved to
dismiss the indictment by arguing that particular effect jurisdiction did not lie in Albany County
because the prosecution failed to establish particular effect jurisdiction before the grand jury, just
as these pretrial motions routinely do. See, e.g., Steingut, 42 N.Y.2d at 314; Taub, 3 N.Y.3d at
34. In fact, Petitioner alludes to the fact that this is the basis of his challenge, stating in his
Petition (directly before mentioning counsel’s failure to file the motion) that “[t]he only means
the state legislature has provided [to be tried in the county in which the crime was committed] is
to permit the grand jury to allege that the offense conduct had a ‘particular effect’ on the county
in which the charge is laid pursuant to NY CPL 20.40(2)(c).” Pet. Mem. at 13 (emphasis added).
Therefore, contrary to the Magistrate Judge’s suggestion that Petitioner is not challenging the
prosecution’s failure to prove jurisdiction before the grand jury, this statement from Petitioner

29

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 30 of 37

heavily suggests otherwise. Indeed, it appears that Petitioner envisioned that trial counsel would
challenge the prosecution’s glaring failure to prove jurisdiction before the grand jury; and when
that did not happen, it appears he envisioned that appellate counsel would have raised trial
counsel’s constitutional ineffectiveness in failing to do so. Therefore, the Court cannot agree
with the Magistrate Judge’s narrowly construed interpretation of Petitioner’s challenge. And as
discussed above, the Court of Appeals has repeatedly affirmed the dismissal of indictments when
prosecutors fail to prove particular effect jurisdiction before the grand jury. See Steingut, 42
N.Y.2d at 316 (affirming the Appellate Division’s dismissal of an indictment for lack of
particular effect jurisdiction, stating that the indictment was “defective on its face”);
Zimmerman, 9 N.Y.3d at 4 (affirming a pretrial motion dismissing an indictment that “argued
that ‘particular effect’ venue . . . did not lie in New York County”) (internal citation omitted).
The Court thus agrees with Petitioner that, in light of the well-established New York Law on
particular effect jurisdiction, appellate counsel’s performance clearly “undermined confidence in
the outcome” of the state court proceedings. Strickland, 571 U.S. at 694. Accordingly, prejudice
in these circumstances is glaringly apparent because if counsel had raised this argument “on
appeal, there is a reasonable probability that it would have succeeded before the state’s highest
court.” Lynch, 789 F.3d at 311 (citations omitted).
Second, even assuming arguendo that Petitioner is challenging only the pleading defects
of the indictment, his claim would likely have succeeded before the Court of Appeals. A facial
challenge to an indictment’s failure to plead particular effect jurisdiction succeeded before the
Court of Appeals in Steingut; the only minor difference in procedure there (by how the
Magistrate Judge construed the Petition at least) was that the defendant challenged the
prosecution’s ability to prove jurisdiction before the grand jury. Steingut, 42 N.Y.2d at 318. And

30

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 31 of 37

Taub further confirmed that facial challenges to indictments lacking specific pleading in the
particular effect jurisdiction context could be successful without an accompanying bill of
particulars pleading the jurisdiction. Taub, 3 N.Y.3d at 40. Likewise, this Court is unaware of
any Court of Appeals case that differentiates between facial challenges to an indictment’s
particular effect pleading defects, versus a facial challenge to the prosecution’s failure to prove
particular effect jurisdiction before the grand jury. The Magistrate Judge does not provide a case
delineating this distinction either. R. & R. at 19–20.
Third, the Magistrate Judge relies on the Second Department’s decision in People v.
Guzman to support her position. In particular, the Magistrate Judge relies on Guzman’s
interpretation of NY CPL 20.30(2)(c), stating that Steingut “does not stand for any particular
pleading requirements to be met by an indictment relying upon CPL 20.40(2)(c) for geographic
jurisdiction.” Guzman, 153 A.D.3d at 1275. From this quote, the Magistrate Judge casts doubt
that Petitioner’s argument would have been successful before the Court of Appeals because she
states that Guzman holds that particular effect jurisdiction does not mandate particular pleading
requirements for geographic jurisdiction.
Yet Guzman is inapposite. The quote relied on from Guzman is plainly not relevant to the
facts here. The indictment in Guzman directly alleged that the offense took place in the county
where the indictment was charged. Id. Here, by contrast, there was plainly no mention of
particular effect jurisdiction in the indictment at all for counts 225–229. See Dkt. No. 6-2. As a
result, Guzman does not support the Magistrate Judge’s argument because there was no
indication from the indictment that it relied on CPL 20.40(2)(c), a fact that even Respondent
concedes. Dkt. No. 5-1 at 30; see also id. Adopting the Magistrate Judge’s leap that a particular
pleading requirement is not required under NY CPL 20.40 if the prosecution specifically pleads

31

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 32 of 37

the requirement, to dispensing with the requirement altogether, would flout the holdings of
Steingut and Taub, as well as the plain language of NY CPL 20.40. Consequently, the Court
must reject the Magistrate Judge’s conclusion. It is evident to the Court that Petitioner suffered
prejudice because, “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 571 U.S. at 694.
This is not the end of the inquiry. The Third Department denied Petitioner’s coram nobis
petition without opinion. “In that circumstance, [courts] must still defer to its decision, and deny
relief if there is any reasonable basis on which it can be found consistent with the governing
precedent.” Lynch, 789 F.3d at 320 (citing Richter, 562 U.S. at 102, 131). The Court has
“applied that standard here.” Id. As mentioned above, the Court has “considered every argument
that Respondent has offered and [the ones the Court] could hypothesize.” Id. Respondent
principally argued that the preamble (which this Court and the Magistrate Judge found nonexistent) to Counts 225–229 supported the indictment’s sufficiency, but both this Court and the
Magistrate Judge rejected this misleading argument. In addition, the Court considered and
rejected the lengthy prejudice prong analysis hypothetically relied on in the State Court decision,
which the Magistrate Judge raised. 4
Therefore, “[h]aving considered these arguments, [the Court] finds[s] no basis on which
to conclude that a court could reasonably determine that failing to raise a clearly meritorious
claim of” an indictment’s failure to plead particular effect jurisdiction “that would likely lead to
reversal of . . . [several] counts of conviction—accounting for a significant increase in the
defendant’s sentence—while raising other, weaker arguments can be considered a strategic

4

The Court hypothesizes that the Third Department would have raised the argument concerning
prejudice that this Court has rejected.
32

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 33 of 37

choice within the range of decisions that constitute professional competent assistance.” Id. at
319. There is a reasonable probability, “that had counsel raised the [facial deficiency] issue, the
outcome of the appeal would have been different.” Id. (citing Richter, 562 U.S. at 101, 131).
“The Appellate Division’s denial of [Petitioner’s] coram nobis petition was therefore objectively
unreasonable.” Id.
In sum, the Court agrees with the Magistrate Judge that Petitioner’s appellate counsel
“fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 689. Appellate
counsel “omitt[ed] significant and obvious issues while pursuing issues that were clearly and
significantly weaker.” Lynch, 789 F.3d at 311. However, the Court disagrees with the Magistrate
Judge concerning the prejudice prong of the Strickland test. The Court finds that there was a
reasonable probability that, but for appellate counsel’s error—in this case, the failure to argue
that trial counsel was ineffective for failing to raise the glaringly apparent argument concerning
the indictment’s defective counts—Petitioner’s outcome would have been different. Strickland,
466 U.S at 694. This error plainly “undermine[d] confidence in the outcome.” Hinton, 571 U.S.
at 275. Thus, Petitioner suffered prejudice from appellate counsel’s performance under
Strickland.
D. Remedy for Petitioner
Having found that the Petition should be granted for Petitioner’s claim with respect to the
indictment’s facial insufficiency concerning Counts 225–229, the Court must fashion an
appropriate remedy. Congress has authorized federal habeas courts to “dispose of the matter as
law and justice require.” 28 U.S.C. § 2243. Additionally, the Second Circuit has stated that: “In
general, the appropriate remedy for ineffective assistance of appellate counsel is to grant a new
appeal.” Lynch, 789 F.3d at 320 (citations omitted).

33

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 34 of 37

Here, however, the factual circumstances are much more unusual than the run-of-the-mill
ineffective assistance of appellate counsel case contemplated by Lynch. Unlike the typical
ineffective assistance of appellate counsel case, the underlying failure of counsel stemmed from
an indictment containing obvious defects that never pleaded jurisdiction on five counts. Plainly,
the Albany County District Attorney lacked the geographic jurisdiction to initiate the prosecution
against Petitioner on five of the seven remaining counts for which he was convicted. See
Steingut, 42 N.Y.2d at 318 (“[The] County lacked the power to indict and prosecute these
petitioners because jurisdiction to proceed was not conferred on it by virtue of the injured forum
statute since that statute does not apply in this type of case, and even it if did, there was no
showing before the Grand Jury of the elements requisite to the triggering of its provisions.”).
Thus, the usual remedy envisioned by the Second Circuit in these circumstances—a new
appeal—appears inapt given that the Albany County District Attorney never had the authority to
initiate a prosecution against Petitioner on Counts 225, 226, 227, 228, and 229 in the first place.
See id. These deficiencies ultimately resulted in the deprivation of Petitioner’s Sixth Amendment
Right to Effective Assistance of Appellate Counsel and his New York State right to be tried in
the county where he committed his alleged crimes.
Petitioner’s sentence also complicates the question of whether Petitioner is serving a
sentence on the flawed counts that this Court has already identified. Specifically:
[Petitioner] received a prison term of 5 to 15 years on count 1 to run
concurrently with all sentences. Counts 225 and 226 were
concurrent to each other with a longest term of eight years in prison.
Consecutive thereto, but concurrent with each other, were counts
227, 228 and 229, with a longest term of 12 years in prison.
Consecutive thereto and consecutive to each other were the
remaining counts — 232, 244 and 245 — with each being three
years in prison.

34

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 35 of 37

Whitehead, 130 A.D.3d at 1143 n.1. Thus, the only remaining unflawed counts include Counts 1
and 232, given that Counts 244 and 245 have already been reversed by the Third Department.
See id.
In light of the unusual circumstances stemming from the Albany County District
Attorney lacking the geographic jurisdiction to initiate the prosecution against Petitioner
concerning Counts 225–229, and the fact that Petitioner has already served more than a decade
of his sentence, the Court exercises its authority pursuant to 28 U.S.C. § 2243 to “dispose of the
matter as law and justice require” and vacates Petitioner’s flawed convictions stemming from
facially defective Counts 225, 226, 227, 228 and 229 of the indictment. See Aparicio v. Artuz,
No. 97-CV-2183, 2000 WL 713744 (E.D.N.Y. May 25, 2000) (vacating constitutionally
deficient convictions that stemmed from an ineffective assistance of counsel claim on a partial
grant of a writ of habeas corpus, but reversed on the merits of the claim rather than on the
vacatur remedy), aff’d in part, rev’d in part, 269 F.3d 78 (2d Cir. 2001).; cf. Robinson v.
Graham, 671 F. Supp. 2d 338, 356 (N.D.N.Y. 2009) (“[I]n an absence of a retrial, adjustment of
the sentence eliminating the sentence imposed as a result of [petitioner’s] conviction on that
count, is an appropriate remedy” in a habeas proceeding raising successful ineffective assistance
of counsel claims.).
In light of the five vacated counts, the Court remands this action to the Albany County
Court for proceedings consistent with this Memorandum-Decision and Order. The Court
anticipates a prompt resolution of this action. 5

5

Because Petitioner’s other claims challenge only convictions that this Court has vacated, Pet.
Mem. at 13, 15, the Court need not reach the merits of these arguments. See R. & R. at 21, 23
(discussing how Petitioner’s arguments concerning the prosecution’s alleged failure to prove the
aggregate weight of the drugs challenged Counts 225, 227, and 228 of the indictment, and
35

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 36 of 37

E. Certificate of Appealability
“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a State court.” 28 U.S.C. §
2253(c)(1); see also Fed. R. App. P. 22(b)(1). “A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); Hohn v. United States, 524 U.S. 236, 240 (1998). Petitioner’s claims unrelated to the
facial defectiveness of counts 225–229 of the indictment have not satisfied this standard.
Accordingly, the Court declines to issue a Certificate of Appealability.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation, (Dkt. No. 13), is ADOPTED in part and

REJECTED in part; and it is further
ORDERED, that the Report-Recommendation, (Dkt. No. 13), is REJECTED to the
extent it recommended denying federal habeas relief for Petitioner’s Sixth Amendment claim
concerning appellate counsel’s failure to argue that trial counsel gave constitutionally deficient
representation for not moving to dismiss the indictment’s facially defective counts that include
225, 226, 227, 228, and 229 of the indictment; and it is further
ORDERED, that the Report-Recommendation, (Dkt. No. 13), is otherwise APPROVED
and ADOPTED; and it is further

Petitioner’s challenge to the trial court permitting the prosecution’s mid-trial motion to amend
the indictment concerns counts 227, 228, and 229).
36

Case 9:18-cv-01436-LEK-TWD Document 24 Filed 05/18/23 Page 37 of 37

ORDERED, that the Petition, (Dkt. No. 1), is GRANTED in part and DENIED in
part; and it is further
ORDERED, that the Petition, (Dkt. No. 1), is GRANTED to the extent it seeks federal
habeas relief pursuit to the Sixth Amendment’s Right to Effective Assistance of Appellate
Counsel for appellate counsel’s failure to argue that trial counsel gave constitutionally deficient
representation for not moving to dismiss the indictment’s facially defective counts that include
225, 226, 227, 228, and 229 of the indictment; and it is further
ORDERED, that Petitioner’s convictions for (1) criminal possession of a controlled
substance in the second degree (Count 225), (2) criminal possession of a controlled substance in
the third degree (Counts 226 and 229), (3) criminal sale of a controlled substance in the first
degree (Count 227), and criminal possession of a controlled substance in the first degree (Count
228) are VACATED; and it is further
ORDERED, that the Petition (Dkt. No. 1) is otherwise DENIED; and it is further
ORDERED, that this action is REMANDED to the Albany County Court for
proceedings consistent with this Memorandum-Decision and Order; and it is further
ORDERED, that the Clerk is directed to serve a copy of this Memorandum-Decision and
Order on all parties, the Albany County Court, and the Third Department, in accordance with the
Local Rules.
IT IS SO ORDERED.

DATED:

May 17, 2023
Albany, New York
LAWRENCE E. KAHN
United States District Judge

37