Zimmerman v. Conway

Filing 36

OPINION AND ORDER adopting 28 Report and Recommendations: For the reasons set forth above, the Court adopts Judge Davison's Report in its entirety and Zimmerman's petition for a writ of habeas corpus is DENIED. As Petitioner has not mad e a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Clerk of Court is respectfully directed to enter a judgment in favor of Respondent, mail a copy of this Opinion to Petitioner, and close the case. (Signed by Judge Edgardo Ramos on 12/4/2018) (jwh) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

NICHOLAS ZIMMERMAN,
Petitioner,
– against –

OPINION AND ORDER

SUPERINTENDENT CONWAY,

10 Civ. 1393 (ER) (PED)

Respondent.

Ramos, D.J.:
Pro se Petitioner Nicholas Zimmerman (“Zimmerman” or “Petitioner”) filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”) on February 22, 2010. Doc. 2.
The Honorable Kenneth M. Karas, to whom this case was previously assigned, referred the
Petition to Magistrate Judge Paul E. Davison on March 26, 2010. Doc. 4. The case was
reassigned to the undersigned on January 6, 2012. Doc. 25.
On May 7, 2013, Judge Davison issued a Report and Recommendation (“Report” or
“R&R”), recommending that the Petition be denied in full. Doc. 28. Petitioner filed written
objections to the Report on or around November 4, 2013. Doc. 31 (“Objections”). 1 For the
reasons stated herein, the Court adopts the Report in its entirety.

1
By Order dated May 21, 2013, the Court extended the deadline for Petitioner’s written objections to July 24, 2013.
Doc. 29. On October 11, 2013, having not received any objections to the Report, the Court ordered Petitioner to file
any objections by November 11, 2013. Doc. 30. On or around November 4, 2013, Petitioner filed his objections
with the Court. Doc. 31; see Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (finding that a pro se prisoner’s
complaint is deemed filed on the date the prisoner turns his complaint over to prison officials).

I. BACKGROUND
The factual background and procedural history relevant to the Petition are set forth in
Judge Davison’s Report, familiarity with which is assumed. See Report at 1–14. 2
On April 16, 2002, Petitioner arrived at Sing Sing Correctional Facility in Ossining, New
York (“Sing Sing”) to serve a 15-year prison term for his conviction, after a jury trial in the
Supreme Court of the State of New York, Queens County, of criminal possession of a weapon in
the second degree, criminal possession of a weapon in the third degree, and menacing in the
second degree. Affidavit in Opposition to Petition for Writ of Habeas Corpus (“Respondent
Aff.”) (Doc. 9) at 1 n.1; see also People v. Zimmerman, 309 A.D.2d 824 (2d Dep’t 2003). 3
On August 12, 2004, while Petitioner was serving his prison term for the Queens County
conviction, an indictment was filed charging Petitioner and another inmate, Steven Finley, with
attempting to escape from Sing Sing. Respondent Aff. at 4. In sum, Petitioner and Finley were
accused of devising a scheme whereby armed accomplices disguised as uniformed correction
officers snuck into the prison on three separate occasions in April and May 2003, each time
attempting to smuggle additional uniforms into the facility to enable Petitioner’s and Finley’s
escape. Id. at 1–4. After a state police investigation, six accomplices confessed to roles in the
scheme and ultimately testified against the two inmates. See id. at 4.
Following a joint jury trial in Westchester County Court, on April 8, 2005, Petitioner was
convicted of one count of bribery in the third degree, three counts of attempted escape in the first
degree, five counts of promoting prison contraband in the first degree, one count of promoting
2

At the outset, Petitioner objects to the “Background” section of the Report, on the ground that it “does not
accurately reflect the evidence at trial.” Objections at 2–4. Having reviewed de novo that portion of the Report, as
well as the portions of the record referenced therein, the Court finds that the Report offers an accurate description of
the factual background and procedural history of this case.
3

In 2006, Zimmerman filed a petition for a writ of habeas corpus with respect to his conviction in Queens County.
The Eastern District of New York denied the petition. See Zimmerman v. Burge, 492 F. Supp. 2d 170 (E.D.N.Y.
2007).

2

prison contraband in the second degree, and conspiracy in the fourth degree. See id. at 10. On
June 7, 2005, Petitioner was sentenced to an aggregate prison term of 12.5 to 25 years, to run
consecutively to the undischarged portion of the sentence Petitioner was already serving for his
Queens County conviction. Id. The Second Department of the New York State Appellate
Division affirmed Petitioner’s convictions and sentence on February 5, 2008. People v.
Zimmerman, 48 A.D.3d 492 (2d Dep’t 2008). On April 3, 2009, the New York Court of Appeals
denied Petitioner’s request for leave to appeal. People v. Zimmerman, 12 N.Y.3d 823 (2009).
On or about February 22, 2010, Petitioner filed the instant Petition, raising the same
arguments he made in a pro se supplemental brief on direct appeal. Petition at 4; Respondent’s
Memorandum of Law and Exhibits (“Respondent’s Mem.”) (Doc. 10), Ex. C (“Petitioner’s
Mem.”). Specifically, Petitioner raises nineteen claims (labeled Points A through S) that can be
grouped into four categories as follows: (1) he was deprived of his right to counsel (Point A);
(2) his trial counsel was ineffective (Points B–H); (3) the trial court erred (Points I–M); and
(4) the evidence was legally insufficient to convict him (Points N–S). On June 19, 2012, Judge
Davison issued the Report, recommending that the Petition be denied in its entirety.
II. STANDARD OF REVIEW
A. AEDPA Review of the State Court Proceedings
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104–132, 110 Stat. 1214, habeas petitions under 28 U.S.C. § 2254 may not be granted unless
the state court’s decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or “was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1), (d)(2). This deference is required under the

3

AEDPA if, as here, the petitioner’s claim “was adjudicated on the merits in State court
proceedings.” 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154–55 (2d Cir. 2007).
“Th[e] statutory phrase [‘clearly established Federal law as established by the Supreme
Court of the United States,’] refers to the holdings, as opposed to the dicta, of th[e] Court’s
decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,
412 (2000). In order for a federal court to find that the state court’s application of Supreme
Court precedent was unreasonable, the decision must be objectively unreasonable rather than
simply incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The factual findings
made by state courts are presumed to be correct under the second prong of the AEDPA, and
petitioner has the burden to rebut this presumption by “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997).
B. Review of the Magistrate Judge’s Report
A district court reviewing a magistrate judge’s report and recommendation “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). Parties may raise “specific,” “written” objections to the
report and recommendation “[w]ithin fourteen days after being served with a copy.” Id.; see also
Fed. R. Civ. P. 72(b)(2). A district court reviews de novo those portions of the report and
recommendation to which timely and specific objections are made. 28 U.S.C. § 636(b)(1)(C);
see also United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir. 1997). The
district court may adopt those parts of the report and recommendation to which no party has
timely objected, provided no clear error is apparent from the face of the record. Lewis v. Zon,
573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008). The district court will also review the report and
recommendation for clear error where a party’s objections are “merely perfunctory responses”

4

argued in an attempt to “engage the district court in a rehashing of the same arguments set forth
in the original petition.” Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (citations
and internal quotation marks omitted); see also Genao v. United States, No. 08 Civ. 9313 (RO),
2011 WL 924202, at *1 (S.D.N.Y. Mar. 16, 2011) (“In the event a party’s objections are
conclusory or general, or simply reiterate original arguments, the district court reviews the
[R&R] for clear error.”).
III. PETITIONER’S OBJECTIONS
A. Right to Counsel Claim
Petitioner claims that he was deprived of his right to counsel before trial in three respects:
first, he was not provided with counsel on May 28, 2003, the day he was first questioned by law
enforcement about the attempted escape; second, his request to speak to an attorney during that
interrogation was denied; and third, he was not permitted to contact his attorney for some time
while he was incarcerated before trial. Petitioner’s Mem. at 1–5.
As to the first aspect of Petitioner’s claim, Judge Davison concluded that the state court’s
denial of the claim was neither contrary to, nor an unreasonable application of, clearly
established federal law because Petitioner’s Sixth Amendment right to counsel did not attach
until the “accusatory instrument” (i.e., the felony complaint) was filed in February 2004. Report
at 21–23. Judge Davison also concluded that the state court’s denial of the third aspect of
Petitioner’s claim was neither contrary to, nor an unreasonable application of, clearly established
federal law because Petitioner failed to identify any actual injury, given that he was able to
access counsel during the relevant time period. Id. at 23–25. Judge Davison concluded that the
second aspect of Petitioner’s claim did not warrant habeas review because Petitioner’s statements

5

made to law enforcement during that initial interrogation were never admitted at trial, and thus
Petitioner was not in custody because of that potential violation of his rights. Id. at 23.
In his Objections, Petitioner argues that the filing date of the accusatory instrument is
“irrelevant.” Objections at 5. Reviewing this aspect of the claim de novo, the Court disagrees.
In Meadows v. Kuhlmann, the Second Circuit explained that “[t]he Sixth Amendment right to
counsel applies only to ‘critical stages’ of a criminal prosecution,” and that “the Supreme Court
has looked to state law to determine what is a ‘critical stage’, or the commencement of the
adversarial process, for purposes of the Sixth Amendment.” 812 F.2d 72, 76 (2d Cir. 1987)
(citing Hamilton v. Alabama, 368 U.S. 52 (1961), Coleman v. Alabama, 399 U.S. 1 (1970), and
White v. Maryland, 373 U.S. 59 (1963)). Looking to the law of New York, where a “criminal
action . . . commences with the filing of an accusatory instrument,” the Court in Meadows found
that the right to counsel attaches “with the filing of the felony complaint.” Id. at 77 (citing N.Y.
C.P.L. § 100.05). More recently, in United States v. Reed, the Second Circuit reaffirmed that
“[t]he Sixth Amendment right of the ‘accused’ to assistance of counsel . . . does not attach until a
prosecution is commenced,” and that “[u]nder New York law, ‘[a] criminal action is commenced
by the filing of an accusatory instrument with a criminal court.’” 756 F.3d 184, 187 (2d Cir.
2014) (first quoting Rothgery v. Gillespie County, Texas, 554 U.S. 191, 198 (2008), then quoting
N.Y. C.P.L. § 100.05). Here, as Judge Davison properly concluded, Petitioner’s right to counsel
had not yet attached at the time of the May 28, 2003 interrogation, because the felony complaint
against him was not filed until February 2004. Thus, the state court’s denial of this aspect of his
claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
Petitioner also objects to Judge Davison’s conclusion that he is not in custody because of
any violation of his right to counsel. Objections at 5. Petitioner argues that had he had counsel

6

in the early stages of his case, he would have been able to prove that he did not possess a cell
phone at Sing Sing and he could have located and interviewed certain witnesses that could not be
found at the time of trial. Id. In the Report, Judge Davison concluded only that any violation of
Petitioner’s rights stemming from the denial of his request for counsel at the May 28, 2003
interrogation did not warrant federal habeas relief, because the statements Petitioner made during
that interrogation were never admitted at trial. Reviewing this aspect of Petitioner’s claim de
novo, the Court agrees with Judge Davison’s reasoning. To the extent Petitioner is arguing that
his lack of counsel prior to February 2004 prejudiced him at trial, however, the Court reiterates
that Petitioner’s Sixth Amendment right to counsel did not attach until the filing of the felony
complaint.
B. Ineffective Assistance of Counsel Claims
1. Failure to Move for Dismissal on the Basis of Pre-Indictment Delay
Petitioner claims that his trial counsel was ineffective for failing to move to dismiss the
charges against him based on the State’s unreasonable delay in prosecuting him. Petitioner’s
Mem. at 6–20. Petitioner notes that although he was placed in solitary confinement and
interrogated about the escape in May 2003, he was not charged until February 2004, not indicted
until August 2004, and not released from solitary confinement until November 2004. Id. at 7–8.
Petitioner argues that this delay caused him prejudice because certain witnesses became
unavailable and certain evidence was lost, and because he remained in solitary confinement
during this time. Id. at 13–18. In the Report, Judge Davison concluded that the state court’s
denial of this claim was neither contrary to, nor an unreasonable application of, clearly
established federal law because Petitioner failed to establish that a motion to dismiss the
indictment on the basis of pre-indictment delay would have been successful. Report at 26–28.

7

In reaching that conclusion, Judge Davison found that Petitioner’s assertion that the process was
delayed in order to keep him in solitary confinement was too “conclusory,” “bare,” and “selfserving” to support a claim for federal habeas relief. Id. at 27. Judge Davison also found that the
State’s asserted reason for the delay—that the investigation was ongoing—was justifiable. Id.
Petitioner objects to Judge Davison’s conclusion that Petitioner’s assertion was unsupported and
that the delay in prosecution was justified by an ongoing investigation, arguing that the trial court
found that there was no ongoing investigation and that the government placed Petitioner in
solitary confinement in order to obtain a confession. Objections at 6 (citing Judge Robert
Dibella’s decision on Petitioner’s Huntley hearing 4). Reviewing this claim de novo, the Court
agrees with Judge Davison’s conclusion.
To obtain federal habeas relief based on his claim that counsel was ineffective in failing
to move to dismiss his indictment based on pre-indictment delay, Petitioner must show that the
state court’s denial of this claim was contrary to, or an unreasonable application of Strickland v.
Washington, 466 U.S. 668, 688 (1984). Under Strickland, Petitioner must demonstrate that his
counsel’s performance “fell below an objective standard of reasonableness” and that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 688, 694. Petitioner has not satisfied either
of these requirements because he cannot show that his attorney would have prevailed had he
made a motion to dismiss the charges against him on grounds of pre-indictment delay.
Specifically, Petitioner has not established that the prosecution intentionally delayed filing his
indictment for the purpose of gaining a tactical advantage. His argument that the delay was
motivated by the prosecution’s desire to keep Petitioner housed in administrative segregation to
4

The purpose of a Huntley hearing is to determine whether any statements made by a defendant should be
suppressed. See People v. Huntley, 15 N.Y.2d 72 (1965).

8

be able question him under more favorable conditions is speculative and inadequately supported.
Petitioner’s Mem. at 10–12. Because Petitioner has not adequately supported his contention that
the delay was an intentional device to gain a tactical advantage, he cannot show that the motion
to dismiss would have been successful. See Denis v. Upstate Corr. Facility, 361 F.3d 759, 760
(2d Cir. 2004) (citing United States v. Marion, 404 U.S. 307, 324, (1971)) (“[T]o prevail on a
claim of unconstitutional pre-indictment delay, a petitioner must show that he suffered actual
prejudice as the result of the delay and that the delay was an intentional device to gain a tactical
advantage.”); Wood v. Bartholomew, 516 U.S. 1, 8, (1995) (federal courts should not grant
“habeas relief on the basis of little more than speculation with slight support”). Therefore,
Petitioner cannot establish that counsel was unconstitutionally ineffective under Strickland in
failing to make the motion. Accordingly, the state court’s decision denying Petitioner’s claim
was neither contrary to nor an unreasonable application of Strickland, and the claim must be
denied.
2. Failure to Request a Wade Hearing
Petitioner claims that his trial counsel was ineffective for failing to request a Wade
hearing 5 to contest the admissibility of Dubose’s Tony Dubose’s identification of him at trial.
Petitioner’s Mem. at 19–34. Dubose testified at trial about conversations he had with
Zimmerman over the phone regarding the escape plans. Tr. at 903–09, 931. 6 When questioned
about his ability to identify Zimmerman as the individual with whom he was speaking over the
phone, Dubose testified that although he had never met with or spoken to Zimmerman before the

5

“The purpose of a Wade hearing is to determine [before] the trial whether pretrial identification procedures have
been so improperly suggestive as to taint an in-court identification.” Lynn v. Biden, 443 F.3d 238, 248 (2d Cir.
2006) (quoting Twitty v. Smith, 614 F.2d 325, 333 (2d Cir. 1979)); see United States v. Wade, 388 U.S. 218 (1967).

6

Dubose also testified regarding his involvement in the scheme, including posing as a correction officer and
attempting to enter the facility with a 9mm pistol.

9

phone calls, he knew of him by his nickname, “Puzz,” because they lived in the same
neighborhood in Brooklyn. Tr. at 892, 993–94. He testified that Puzz was well-known in the
neighborhood and that he had seen him around the neighborhood and heard him speak multiple
times, including once at an album release party where he spoke over a microphone. Tr. at 892–
93, 993–94, 1020–21, 1030–31. Dubose also made an in-court identification of Petitioner as the
person he knew from his neighborhood. Tr. at 893. He also testified that Petitioner identified
himself as “Puzz” when he spoke to him during phone calls about the escape plan. Tr. at 904.
He further testified that he did not know Zimmerman’s true name until he was arrested and told
by Officer Daughtry, and that Daughtry showed him a picture of Zimmerman. Tr. at 998–1001.
Petitioner claims that when his counsel learned that Officer Daughtry showed Dubose a
photo of Zimmerman, he should have immediately requested a Wade hearing. Petitioner’s Mem.
at 30–32. Petitioner claims that at a Wade hearing, counsel would have been able to prove that
Dubose’s identification was unreliable, given that he had never met with or spoken to
Zimmerman before the phone calls at issue. Id. at 33–34. In the Report, Judge Davison
concluded that the state court’s decision denying this claim was neither contrary to, nor an
unreasonable application of Strickland. Report at 28–29. Having reviewed this claim de novo,
the Court agrees.
In assessing whether the failure to request a Wade hearing constitutes ineffective
assistance, the Second Circuit “has demanded some showing of the likelihood for success at the
hearing.” Lynn v. Bliden, 443 F.3d 238, 249 (2d Cir. 2006). To prevail at a Wade hearing,
Petitioner would have first had to show that the pretrial identification procedures were unduly
and unnecessarily suggestive. Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). “If the
procedures were not suggestive, the identification evidence presents no due process obstacle to

10

admissibility; no further inquiry by the court is required, and ‘[t]he reliability of properly
admitted eyewitness identification, like the credibility of the other parts of the prosecution’s case
is a matter for the jury.’” Id. (quoting Foster v. California, 394 U.S. 440, 442 n.2 (1969))
(citation omitted). “If the court finds, however, that the procedures were suggestive, it must then
determine whether the identification was nonetheless independently reliable.” Id.
Even if it was unduly suggestive for Daughtry to show Dubose the photograph of
Zimmerman and/or to tell Dubose Zimmerman’s true name, Petitioner has not established that
Dubose’s identification of him in that respect was not independently reliable. The reliability of
Dubose’s identification is supported by his testimony that he knew Zimmerman from the
neighborhood, that he knew of him as “Puzz,” that he had seen and heard Zimmerman speak
before, including once over a microphone, that Zimmerman identified himself as “Puzz” in the
phone calls at issue, and that he spoke with Zimmerman over the phone a few times. Tr. at 892–
93, 903–09, 931, 993–94, 1020–21, 1031. Petitioner has failed to establish that the trial court,
taking into account the totality of the circumstances, see Neil v. Biggers, 409 U.S. 188, 199–200
(1972), would likely have found Dubose’s identification unreliable and suppressed the
testimony. Accordingly, the state court’s decision denying Petitioner’s claim was neither
contrary to nor an unreasonable application of Strickland, and the claim must be denied.
3. Failure to Request a Missing Witness Charge
Petitioner claims that his trial counsel was ineffective for failing to properly request a
missing witness charge regarding witnesses Kira Scott and Tiana Payne, and for failing to
request a missing witness charge at all regarding witnesses “Rock” and “Smooth.” Petitioner’s
Mem. at 35–50. In the Report, Judge Davison concluded that the state court’s decision denying
these claims was not contrary to or an unreasonable application of Strickland, because Petitioner

11

cannot establish that a missing witness charge was warranted given that none of these individuals
was under the control of the prosecution, and, instead, all appeared to be favorable to Petitioner.
Report at 33–34. Judge Davison also reasoned that, in any event, Petitioner failed to show that
the result of the proceeding would have been different had the charge been given. Id. at 34.
Petitioner objects to Judge Davison’s recommendation on the basis that the prosecution failed to
show, pursuant to People v. Gonzalez, 68 N.Y.2d 424 (1986), both that the witnesses were
favorable to Petitioner at the time of the trial and also that they were hostile to the prosecution.
Objections at 8. Having reviewed this claim de novo, the Court agrees with Judge Davison’s
conclusions.
“The ‘missing witness’ instruction allows a jury to draw an unfavorable inference based
on a party’s failure to call a witness who would normally be expected to support that party’s
version of events.” People v. Savinon, 100 N.Y.2d 192, 196 (2003).
Gonzalez established three preconditions for the missing witness
instruction. First, the witness’s knowledge must be material to the
trial. Second, the witness must be expected to give noncumulative
testimony favorable to the party against whom the charge is
sought. This has been referred to as the “control” element, which
requires the court to evaluate the relationship between the witness
and the party to whom the witness is expected to be faithful.
Third, the witness must be available to that party.
Id. at 197. In Savinon, the New York Court of Appeals explained that control “might more
accurately be referred to as the ‘favorability’ component of the [uncalled witness] rule.” Id. at
200. Thus, in that case, the court found that a witness would have been so “favorable” to
defendant as to warrant a missing witness instruction where the defendant and witness “had been
friends and business associates,” and had at one time a “close[] . . . relationship, even if it had not
remained current.” Id. at 201. The court did not evaluate whether the witness was hostile to the
prosecution and, in fact, the court noted that the witness had a relationship with the complainant
12

as well, albeit one that “did not begin to approach the level of friendship that [the witness] had
with defendant.” Id.
Here, as Judge Davison concluded, Petitioner fails to show that his counsel could have
successfully obtained a missing witness charge, since Petitioner fails to establish that any of the
four missing witnesses were favorable to the prosecution, and all appear to have in fact been
favorable to Petitioner. Accordingly, the state court’s decision denying Petitioner’s ineffective
assistance claims on these grounds cannot be said to have been contrary to or an unreasonable
application of Strickland. Petitioner’s claims must therefore be denied. 7
4. Failure to Request an Interested Witness Charge
Petitioner claims his trial counsel was ineffective for failing to request an interested
witness charge as to the six accomplice witnesses who testified against him. Petitioner’s Mem.
at 51–65. In the Report, Judge Davison concluded that Petitioner failed to establish either prong
of Strickland because the trial court did give an interested witness charge. Report at 35. In
relevant part, the trial court charged the jury as follows:
You may consider whether a witness had or did not have a motive
to lie. You are not required to reject the testimony of witness [sic]
who has a motive to lie or to accept the testimony of a witness who
has no motive to lie. You may, however, on one hand consider and
to what extent [sic], if any, a witness’ motive to lie tended not to
support the truthfulness of that witness’ testimony. On the other
hand, you may consider whether and to what extent, if any, a
witness’ lack of motive to lie tended to support the truthfulness of
that witness’ testimony. You may consider whether a witness
hopes for or expects to receive a benefit for testifying. If so, you
may consider whether and to what extent, if any, it affected the
truthfulness of the witness’ testimony. In term [sic] determining
the credibility of a witness and weight to be given by you to their
testimony you may consider the interest of the witness in the
outcome of the trial. A witness is an interested witness when by
7

For the same reason, Petitioner’s claim that the trial court erred in denying counsel’s request for a missing witness
charge with respect to Scott and Payne must also be denied. See Petitioner’s Mem. at 35.

13

reason of relationship, friendship, antagonism, or prejudice in
favor of or against one party or the other [sic] their testimony in
your judgment is in fact bias [sic] or likely bias [sic] toward the
side or party they favor. If you find that any witness is an
interested witness you should consider such interest in determining
the credibility of their testimony and weight to be given to it.
Tr. at 2306–07. Judge Davison reasoned that in light of this charge, defense counsel’s emphasis
on the accomplice witnesses cooperation agreements on both cross-examination and summation,
and the court’s instructions as a whole, it could not be said that counsel’s failure to request a
more specific jury instruction constituted deficient conduct or made it reasonably probable that
the outcome of the proceeding would have changed had he done so. Report at 35–36.
In his Objections, Petitioner argues that the court should have directly told the jury that
the six accomplice witnesses were all interested witnesses who stood to benefit from Petitioner’s
conviction. Objections at 9. The Court agrees with Judge Davison, however, that a more
specific instruction was not necessary under the circumstances. See Cook v. Pearlman, 212 F.
Supp. 2d 258, 265 (S.D.N.Y. 2002) (holding that the failure to give a more specific instruction
did not violate a defendant’s due process rights where defense counsel was permitted “ample
latitude on cross-examination and in summation to call into question each witness’ motive for
testifying”). Accordingly, the state court’s denial of this claim was neither contrary to nor an
unreasonable application of Strickland, and the claim must be dismissed.8
5. Failure to Request an Accomplice Corroboration Charge
Petitioner claims his trial counsel was ineffective for failing to request an accomplice
corroboration charge that specifically noted that one accomplice’s testimony could not
corroborate the testimony of another accomplice. Petitioner’s Mem. at 65. In the Report, Judge

8

For the same reason, Petitioner’s claim that the trial court erred in failing to give an interested witness charge must
also be denied. See Petitioner’s Mem. at 42.

14

Davison concluded that Petitioner failed to establish either prong of Strickland because the trial
court properly charged the jury on accomplice testimony and the need for independent,
corroborating evidence. Report at 36–37. In relevant part, the trial court charged the jury as
follows:
I instruct you that the following witnesses, Tony Dubose, Latrina
Boyd, Barry Alexander, Quantrice Wilson, Jatayna Belnavis and
Tamara Johnson are accomplices as a matter of law. . . . A
defendant cannot be convicted of any offense upon the testimony
of an accomplice unsupported by corroborative evidence tending to
connect the defendant with the commission of such offense. Under
that law the defendants on trial may not be convicted solely on the
testimony of a witness who is an accomplice. Our law views with
suspicion the testimony of accomplice [sic] in a criminal trial since
by his own testimony he or she was a participant in the events
charged in the indictment. This is especially true where the
accomplice witness has sought or received or been promised some
consideration in exchange for their testimony. It is for this reason
that the law requires that the testimony of a accomplice [sic] must
be corroborated by other evidence apart from the accomplice’s
own testimony or the testimony of any other accomplice. To be
sufficient, such other evidence standing alone must satisfy the jury
that it tends to connect the defendants with the commission of the
crime in such a way that may reasonably satisfy you that the
accomplice is telling the truth.
Tr. at 2292–94 (emphasis added). The trial court also repeated the charge during jury
deliberations upon the jury’s request. Tr. at 2409–13. Petitioner’s assertion that the trial court
did not properly instruct the jury as to accomplice testimony is thus without merit, and the Court
agrees with Judge Davison that Petitioner’s claim must be denied. 9
6. Failure to Object to Accomplice Testimony Concerning Plea Agreements
Petitioner claims his trial counsel was ineffective for failing to object to the accomplice
witnesses’ testimony regarding the nature of their plea agreements, which Petitioner argues had

9

Since the accomplice corroboration charge was given, Petitioner’s claim that the trial court erred in failing to give
the charge must also be denied. See Petitioner’s Mem. at 65.

15

no relevance to the trial and only bolstered the prosecution’s case. Petitioner’s Mem. at 66. In
the Report, Judge Davison concluded that the testimony was clearly admissible and counsel’s
objection would have been futile. Report at 37–38.
Petitioner’s objections to this portion of the Report simply reiterate his original
arguments. See Objections at 9. Accordingly, the Court reviews this portion of the Report for
clear error only, rather than de novo. See Genao v. United States, No. 08 Civ. 9313 (RO), 2011
WL 924202, at *1 (S.D.N.Y. Mar. 16, 2011). The Court has carefully reviewed Judge Davison’s
recommendation regarding this claim and finds no error, clear or otherwise. As such, the Court
adopts Judge Davison’s recommendation that this claim be denied for the reasons stated in the
Report. See Report at 37–38.
C. Trial Court Error Claims
1. Denial of Request to “Release the Chokehold” on Accomplice Witnesses
Petitioner claims that the trial court committed reversible error when it “denied and/or
ignored [his] request to instruct the prosecution to ‘release the chokehold’ it had on the
accomplice witnesses.” Petitioner’s Mem. at 67. Specifically, Petitioner argues that the District
Attorney’s Office prohibited the witnesses from speaking to anyone without their consent and
that this practice prejudiced his ability to conduct his defense. Id. at 69–70. In the Report, Judge
Davison concluded that the state court’s denial of this claim was not contrary to or an
unreasonable application of clearly established federal law, because Petitioner’s accusation was
unsupported and thus insufficient to show a violation of due process. Report at 40. In his
Objections, Petitioner argues that his accusation was not unsupported, because the cooperation
agreements signed by certain of the witnesses “clearly stated that they could not ‘reveal his or

16

her cooperation, or any information derived therefrom, to any third party without the consent of
the District Attorney.’” Objections at 10.
“Witnesses . . . are the property of neither the prosecution nor the defense. Both sides
have an equal right, and should have an equal opportunity, to interview them.” Gregory v.
United States, 369 F.2d 185, 188 (D.C. Cir. 1966). However, “any witness has the right to refuse
to be interviewed if he so desires.” Johnston v. Nat’l Broadcasting Co., 356 F. Supp. 904, 910
(E.D.N.Y. 1973) (citing Byrnes v. United States, 327 F.2d 825, 832 (9th Cir. 1964)).
Petitioner never presented the trial court with competent evidence that that the District
Attorney’s Office instructed witnesses not to speak to the defense. Instead, at a pre-trial
proceeding, Petitioner alleged that “[t]he District Attorney’s office [was] stopping [his]
investigator [from] speaking to the witnesses,” relaying statements allegedly transmitted from the
witnesses to the investigator to Petitioner. Tr. at 31, 169–70, 176. In response, the trial court
judge stated that he was willing to listen to whatever competent evidence there was on the topic,
but that Petitioner had only put forth “hearsay” or “double hearsay,” and, accordingly, there was
nothing before him on the matter. Tr. at 170–76. Neither Petitioner nor Petitioner’s counsel ever
suggested that the cooperation agreements themselves prevented witnesses from speaking with
the defense, and, in fact, the record shows otherwise. See, e.g., Tr. at 33 (Petitioner stating that
he spoke to two witnesses for a number of hours each); Tr. at 1173–74, 1212–13, 1230–31 (one
of the witnesses, Barry Alexander, testifying that he was never told not to speak to Petitioner and
that he actually did speak to Petitioner several times in the preceding thirty days); Tr. at 32–33
(Assistant District Attorney representing that the witnesses were told they could speak to an
investigator for the defense, but that they expressed a desire not to, given Petitioner’s “history of
violence and manipulation”). Accordingly, the state court’s decision denying this claim was

17

neither contrary to nor an unreasonable application of federal law, and the claim must be
dismissed. 10
2. Allowing Daughtry to Bolster the Accomplices’ Testimony
Petitioner claims that the trial court erred when it permitted Detective Daughtry to
“bolster the truthfulness of the accomplices’ testimony” with erroneous, cumulative, unnecessary
and prejudicial testimony, over repeated objections. Petitioner’s Mem. at 73. Petitioner argues
that Daughtry’s testimony “added government prestige to the People’s already meritless case.”
Id. In the Report, Judge Davison concludes that this claim is procedurally barred from federal
habeas review because the Second Department determined that the issue was “unpreserved for
appellate review,” invoking New York’s procedural rules regarding contemporaneous objections
to deny the claim. Report at 42. Petitioner objects to this conclusion and argues that the issue is
preserved because defense counsel objected to Daughtry’s testimony multiple times when he was
on the stand. Objections at 31.
“[A]n adequate and independent finding of procedural default will bar federal habeas
review of the federal claim, unless the habeas petitioner can show cause for the default and
prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result
in a fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038,
1043, 103 L. Ed. 2d 308 (1989) (internal citations and quotation marks omitted). Despite the fact
that the Second Department did not include a citation to the state procedural rule, the Court
agrees with Judge Davison’s conclusion that the Second Department relied on New York’s

10

In conjunction with this claim, Petitioner argues that the prosecution improperly refused to turn over home and
cellular telephone numbers for the accomplice witnesses. Petitioner’s Mem. at 70. However, “no clearly
established Supreme Court precedent exists on this precise issue,” Estrada v. West, No. 05 Civ. 549 (DNH), 2009
WL 909623, at *5 (N.D.N.Y. Mar. 31, 2009), and thus the state court’s decision denying this claim cannot be said to
be contrary to or an unreasonable application of federal law.

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cotemporaneous objection rule, N.Y. Crim. Proc. Law § 470.05, to determine that petitioners
claim was “unpreserved for appellate review,. Report at 42. The fact that, in addition to being
procedurally barred, the Second Department also declared that petitioner’s claim was meritless
does not affect the result because the court relied on the state procedural law as an independent
and adequate ground for its decision. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)
(“[F]ederal habeas review is precluded as long as the state court explicitly invokes a state
procedural bar rule as a separate basis for decision.”) (quoting Harris, 489 U.S. 255, n. 10
(quotation marks omitted)); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, n. 4 (2d Cir. 2000);
Harris, 489 U.S. 255, n. 10 (“We note that we have held that where a state court says that a
claim is ‘not preserved for appellate review’ and then ruled ‘in any event’ on the merits, such a
claim is not preserved.”) Petitioner does not show cause and resulting prejudice, nor a
fundamental miscarriage of justice sufficient for the court to circumvent the procedural bar;
therefore, this claim must be dismissed.
3. Denial of Motion for Severance
Petitioner claims that the trial court erred when it denied his motion to sever his trial from
that of his co-defendant, Finley. Petitioner’s Mem. at 78. Petitioner’s motion was filed during
Finley’s attorney’s opening statement, in which the attorney attributed responsibility for planning
and organizing the attempted escape to Petitioner. Id. Petitioner argues that he was unduly
prejudiced by the fact that Finley’s attorney placed blame on Petitioner, labeled him “a fraud and
a liar,” and acted as a “second prosecutor” against Petitioner. Id. In the Report, Judge Davison
concluded that this claim is procedurally barred from federal habeas review because the Second
Department denied the motion as untimely given that the motion was made after the
commencement of trial. Report at 44–45. Judge Davison also determined that, even if the state

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court decision to deny the severance motion on timeliness grounds was not an independent an
adequate procedural bar on federal habeas review, the claim should be dismissed because the
state court’s denial of the severance motion is not a contrary to or an unreasonable application of
clearly established federal law. Id. at 45–48. Petitioner objects to Judge Davison’s conclusions
because he claims that he raised the severance issue as soon as he knew that Finley’s defense
would prejudice him, and that the trial court’s instructions to the jury did not cure this prejudice.
Objections at 10–11.
The Court agrees with Judge Davison that it is clear from the language of the Second
Department’s decision that it actually relied upon New York’s procedural rules under governing
pretrial motions to deny Petitioner’s severance claim. Id. at 45; N.Y. Crim. Proc. L§ 255.20.
The denial of Petitioners motion as untimely constitutes and independent and adequate
procedural bar that precludes federal habeas review. See Harris v. Reed, 489 U.S. 255, 262
(1989); see also Chappero v. West, No. 04 CV 8018 KMWDCF, 2009 WL 2058534, at *18
(S.D.N.Y. July 15, 2009) (finding that a state appellate court denial of a motion as untimely was
an application of a New York procedural rule N.Y. Crim. Proc. L. § 255.20, and an independent
and adequate ground for the denial of the petitioner’s claim, precluding federal habeas review).
Petitioner’s claim must therefore be denied because he has not shown cause and resulting
prejudice, nor a fundamental miscarriage of justice sufficient for the court to circumvent the
procedural bar. Harris, 489 U.S. at 262.
4. Affirming Shackling of Petitioner during Grand Jury Testimony
Petitioner claims that the trial court erred by failing to dismiss the indictment on the
ground that Petitioner was shackled and surrounded by correctional officers when presented to
the grand jury. Petitioner’s Mem. at 79–83. Judge Davison’s Report concluded that this claim
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must be denied because “[i]t is well-settled that a claim involving an error in a grand jury
proceeding is not cognizable upon federal habeas review” because “[t]here is no federal
constitutional right to a grand jury” and “any defect in the grand jury proceeding is cured by
petitioner’s subsequent conviction.” Report at 49. Petitioner objects, arguing that his due
process rights were violated because of the state court’s failure to appropriately apply state law.
Objections at 11.
The Court agrees with Judge Davison conclusion that Petitioner’s claims of error relating
to the grand jury proceeding are not cognizable on federal habeas review. See Bingham v.
Duncan, No. 01CIV.1371(LTS)(GAY), 2003 WL 21360084, at *4 (S.D.N.Y. June 12, 2003)
(“[C]laims of error relating to state grand jury proceedings are not cognizable on federal habeas
review, since ‘[t]he right to testify before a grand jury is a state statutory right, and is not of
constitutional dimension.’”) (quoting Green v. Artuz, 990 F.Supp. 267, 273 (S.D.N.Y.1998)).
Bingham v. Duncan, No. 01CIV.1371(LTS)(GAY), 2003 WL 21360084, at *4 (S.D.N.Y. June
12, 2003) (quoting Green v. Artuz, 990 F.Supp. 267, 273 (S.D.N.Y.1998)). Any defects in the
Petitioner’s indictment were cured by the verdict rendered against him requiring proof of his
guilt beyond a reasonable doubt. See Robinson v. LaClair, No. 09-CV-3501 KAM, 2011 WL
115490, at *8 (E.D.N.Y. Jan. 13, 2011); accord Figueroa v. Donnelly, No. 02 CIV. 6259 (NRB),
2003 WL 21146651, at *8 (S.D.N.Y. May 16, 2003) (denying a petitioner’s claim for habeas
relief on the merits because “it has been consistently held that claims of error in a state grand
jury proceeding are not cognizable for federal habeas corpus review after a petit jury has
convicted the petitioner.”) Given Petitioner’s failure to state a federal question necessary for
habeas review on this issue, the claim is denied.

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5. Charge on Penal Law 20.00
Petitioner argues that the trial court erred when it charged the jury on accessorial liability.
Petitioner’s Mem. at 84–87. Petitioner argues that there was no evidence admitted at trial, aside
from impermissible accomplice testimony, that Petitioner solicited or intentionally aided another
person to engage in a crime, nor that he had the mental culpability for the commission of the
offense. Id. In the Report, Judge Davison found that this claim is barred from federal habeas
review because the Second Department denied the claim on an independent and adequate state
procedural ground by invoking New York’s contemporaneous objection rule to conclude that the
issue was “unpreserved for appellate review.” Report at 49–50. Petitioner objects to Judge
Davison’s conclusion because he made the objection at the close of the government’s case, at his
sentencing, and in his appeals and post-conviction petitions. Objections at 11.
The Court agrees with Judge Davison that the Second Department denied Petitioner’s
claim by invoking New York’s contemporaneous objection rule, N.Y. Crim. Proc. Law § 470.05,
when it concluded that petitioner’s claim was “unpreserved for appellate review.” Report at 50.
This was an independent and adequate state court finding of procedural default that bars federal
habeas review of the claim unless Petitioner shows cause for the default and resulting prejudice,
or that failure to consider the claim will result in a fundamental miscarriage of justice. Harris v.
Reed, 489 U.S. 255, 262 (1989). Habeas review is barred based on the independent and
adequate state procedural ground despite the fact that the Second Department also determined
that the claim failed on the merits. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, n. 4 (2d Cir.
2000); Harris, 489 U.S. 255, n. 10 (“We note that we have held that where a state court says that
a claim is ‘not preserved for appellate review’ and then ruled ‘in any event’ on the merits, such a
claim is not preserved.”) Petitioner does not show cause and resulting prejudice, nor a

22

fundamental miscarriage of justice sufficient for the court to circumvent the procedural bar;
therefore, this claim must be dismissed.
D. Legal Insufficiency of Evidence Claims
Petitioner claims that the evidence presented at trial was legally insufficient to convict
him of (1) attempted escape, (2) bribery in the third degree, (3) promoting prison contraband in
the first degree, (4) conspiracy in the fourth degree, and (5) promoting prison contraband in the
second degree. Petitioner’s Mem. at 88–110. In the Report, Judge Davison concluded that each
of Petitioner’s claims of legal insufficiency of evidence must be dismissed because, under
AEDPA’s deferential standard of review, the state court’s denial of these claims was not contrary
to, nor an unreasonable application of, clearly established federal law. Report at 51. Judge
Davison explains that Petitioner did not meet his burden to show that, viewing the evidence in
the light most favorable to the prosecution, no rational jury could have found the essential
elements of the offenses beyond a reasonable doubt. Id. Petitioner objects to Judge Davison’s
conclusion by rehashing his original arguments that there was insufficient evidence to support
his conviction. Objections at 11.
Petitioner’s objections to this portion of Judge Davison’s Report do not warrant de novo
review because they are general, conclusive, and reiterate the arguments presented to, and
considered by Judge Davison. See Genao v. United States, No. 08 Civ. 9313 (RO), 2011 WL
924202, at *1 (S.D.N.Y. Mar. 16, 2011) (“In the event a party’s objections are conclusory or
general, or simply reiterate original arguments, the district court reviews the [R&R] for clear
error.”). Having carefully reviewed Judge Davison’s report on Petitioner’s legal insufficiency of
evidence claim, the court finds no clear error, and therefore adopts Judge Davison’s
recommendation that this claim be dismissed for the reasons stated in the Report.
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