Jones v. Lee
OPINION AND ORDER: For the reasons set forth herein, Jones's petition for a writ of habeas corpus is denied. This Court declines to issue a Certificate of Appealability. The Clerk of the Court is directed to close this case. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 7/12/2013) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
10 Civ. 7915 (SAS)
WILLIAM LEE, Superintendent,
Greenhaven Correctional Facility,
SHIRA A. SCHEINDLIN, U.S.D.J.:
Petitioner Larry Jones, a New York state prisoner, appearing pro se,
petitions this Court for a writ of habeas corpus, stating two grounds for the writ.
First, Jones argues that his conviction was based on a duplicitous count of seconddegree criminal possession of a weapon. Second, he argues that he received
ineffective assistance of counsel because trial counsel failed to raise the
aforementioned duplicity issue.
Jones's duplicity claim is barred on independent and adequate state
law grounds -
it was not raised at trial and rejected tor this reason by the state
appellate court. Even if it were not barred, the claim fails on its merits because the
disputed jury charge does not violate the United States Constitution. Finally, Jones
has not demonstrated that the trial court, on a motion to vacate the judgment,
erroneously applied federal law when it decided that counsel was sufficiently
effective. As such, Jones’s petition for a writ of habeas corpus is denied.
The Underlying Crimes
The underlying crimes that Jones was convicted of occurred on
January 17, 2004 at Co-op City, a massive cooperative housing development in the
Bronx.1 At approximately 1:00 a.m., Jones’s co-defendant, William Green,
brandished a .38 caliber chrome revolver and used it to strike Rob Moore in the
face. Green then demanded money from Moore, at which point Jones approached
the pair, pulled a black .45 caliber pistol from his jacket, and struck Moore in the
back of the head. After Moore fell to the ground, Jones ordered him to walk to the
back of the building, where Jones went through Moore’s pockets and allegedly
took items from him.2
See Petitioner’s Memorandum of Law in Support of Petition for a
Writ of Habeas Corpus (“Pet. Mem.”) at 2. The facts in this portion of the Opinion
are taken from Jones’s brief, which presents the People’s case and the testimony of
the victim at trial.
See id. at 6-7.
At this point, Green pulled out another, even larger gun, and aimed it
at Moore’s head. Jones then pointed his gun at Moore’s leg, asking Green whether
he should shoot Moore in the leg or the head. Fortunately, Jones elected to do
neither, and either Jones or Green told Moore to run away.3
Officers were eventually notified of the robbery and responded to the
scene. After driving around, they saw two men who fit the description of Moore’s
assailants — these men were in fact Jones and Green. When the officers asked the
pair where they were coming from and to present identification, Jones and Green
took off on foot. During the chase, Green pulled two guns from his coat pockets.
One of the officers then drew his weapon and ordered Green to drop the guns.
Green complied with this order, but continued to run.4
When Jones also reached into his jacket pocket, the officer — fearing
that Jones was armed — tackled him to the ground. At trial, the officer testified
that he saw a black gun in Jones’s hand, but that it “flew forward” when he was
tackled. After a brief scuffle, officers arrested both Jones and Green.5
See id. at 7.
See id. at 7-8.
See id. at 9-10.
After the arrest, officers took Jones and Green to a car where Moore
was waiting, at which point Moore identified both men as his assailants.6 The
officers found two revolvers, one .357 caliber and the other .38 caliber, in the
parking lot area where Green dropped his guns during the chase.7 They also found
a .45 caliber Colt semiautomatic handgun in the snow near where the struggle with
The Indictment and Jury Charge
On February 13, 2004, a Bronx County Grand Jury returned an
Indictment against Jones and Green, charging them with thirty-five counts ranging
from first-degree robbery to possession of marijuana.9 Of particular relevance to
this Petition, counts twenty-one through twenty-three of the Indictment charged the
defendants with criminal possession of a weapon in the second degree.10 Those
See id. at 10; Trial Transcript Excerpt: Trial Testimony of Robert
Moore at 32-34.
See Pet. Mem. at 10.
See Indictment, Ex. 1 to 1/4/12 Declaration of Assistant District
Attorney Kayonia L. Whetstone (“Whetstone Decl.”).
See id. at 12-13. See also N.Y. Penal Law § 265.03 (McKinney
counts, all identically worded, read: “The defendants, acting in concert with each
other, on or about January 17, 2004, in the County of the Bronx, did possess a
loaded firearm with intent to use unlawfully against another.”11
At an initial conference on the jury charge, the trial court expressed its
“focus . . . on simplifying rather than complicating” the counts presented to the
jury, preferring one rather than three counts of the same offense.12 This sentiment
was reiterated in further proceedings just before summations at trial, with the court
specifying that four counts would be included on the verdict sheet — Robbery in
the First Degree, Robbery in the Second Degree, Criminal Possession of a Weapon
in the Second Degree, and Criminal Possession of a Weapon in the Third Degree.13
These four counts were the only ones included on the verdict sheet
and in the jury charge.14 The charge for the count in question, Criminal Possession
of a Weapon in the Second Degree, read as follows:
Count three is the crime criminal possession of a weapon in
the second degree.
Indictment at 12-13.
Trial Transcript (“Trial Tr.”) at 464-465.
See id. at 774, 781-783.
See id. at 921-929; Verdict Sheet, Court Exhibit XIII.
Under our law a person is guilty of the crime of criminal
possession of a weapon in the second degree when with intent to
use the same unlawfully against another, that person knowingly
possesses a loaded firearm.
In order for you to find the defendant Larry Jones guilty of
this crime the People are required to prove from all of the
evidence in the case beyond a reasonable doubt each of the
following four elements:
One; that on or about January the 17th of 2004, in the
County of the Bronx, the defendant Larry Jones acting in concert
with another, possessed a loaded firearm.
Two; that the defendant did so knowingly.
Three; that the firearm was operable.
And four; that the defendant possessed a loaded firearm
with the intent to use it unlawfully against another.15
Notably, no particular gun was mentioned in this charge.16 Jones’s
trial counsel did not object.17
After three full days of deliberation, the jury informed the court that
they had reached a unanimous decision as to Count Three (Criminal Possession of
a Weapon in the Second Degree), but could not agree on the robbery counts. The
court decided to take a partial verdict as to Count Three and to give the jury an
Allen charge as to the remaining counts. The court then recorded the jury’s guilty
Trial Tr. at 925-927.
See id.; Pet. Mem. at 11-12.
See Trial Tr. at 933; Pet. Mem. at 12.
verdict as to second-degree criminal possession of a weapon. After further
deliberations, the jury was still unable to come to a verdict as to the robbery
counts, and the court declared a mistrial on those counts.18
At sentencing for the possession charge, the trial court sentenced
Jones to a thirteen-year term of incarceration followed by five years of post-release
supervision.19 Jones eventually pled guilty to assault in the second degree to
satisfy all of the remaining counts in the Indictment,20 and was sentenced to seven
years to run concurrently with the sentence for the possession count.21
The First Motion to Vacate the Judgment
After Jones’s sentencing for the possession charge, counsel moved in
the trial court to vacate the judgment under New York Criminal Procedure Law
Section 440.10.22 As grounds therefore, Jones argued that the count of Criminal
Possession of a Weapon in the Second Degree, as charged to the jury, violated his
See Trial Tr. at 1036-1043, 1062-1063.
See 4/28/05 Sentencing Transcript (“Sen. Tr.”) at 29.
See 5/12/06 Plea Transcript at 3-4, 10.
See id. at 14.
See 10/6/05 Notice of Motion and Affirmation of Jeffrey A. Horn,
Trial Counsel for Jones, Ex. 2 to Whetstone Decl.
constitutional rights and was prohibited under New York procedural rules.23 Jones
argued that his due process rights were violated because the verdict was ambiguous
— the charge given to the jury did not specify whether the weapon was possessed
with intent to use unlawfully in the alleged robbery or in the subsequent police
chase, nor did it specify which gun Jones possessed (his or those of his codefendant, Green).24 Trial counsel’s affirmation also noted that in a postconviction conversation with the Assistant District Attorney, several jurors stated
that they voted to convict based on the acting-in-concert theory,25 while another
juror said that “she and several other jurors convicted [Jones] because they were
convinced that defendant Jones possessed the weapon attributed to him by Officer
Perez during the chase [the Colt .45].”26
The trial court denied this motion on the ground that it had no
authority to review a claim under Section 440.10 when that claim could be raised
See id. at 4.
See id. at 4-5.
See id. at 8-9.
Id. at 9.
on direct appeal.27 The court stated that because the trial record “will fully reflect
the lengthy charge conference, defendant’s request for submission of only one
count of weapon possession,28 and the charge actually given to the jury. . . .
defendant’s claim is fully reviewable on direct appeal.”29
State Ineffective Assistance Claims
Following the denial of his first motion to vacate and the entry of his
guilty plea for assault, Jones obtained new counsel and filed a second motion in the
trial court to vacate the judgment.30 In this motion, Jones argued that his trial
counsel was so ineffective as to violate his rights under the United States and New
York Constitutions.31 According to Jones, the failure to raise the issue of duplicity
See People v. Jones (Jones I), No. 763/04, slip op. at 2 (Sup. Ct.
Bronx Co. Mar. 27, 2006) (citing N.Y. Crim. Proc. Law § 440.10(2)(b)), Ex. 4 to
Jones contests the trial court’s view that the defense requested the
submission of only one second-degree possession count to the jury. See Pet. Mem.
at 15. However, this fact does not affect the trial court’s denial of his motion under
Jones I, slip op. at 3-4.
See 4/17/07 Notice of Motion, Ex. 5 to Whetstone Decl.
See 4/17/07 Affirmation of Abigail Everett, Ex. 5 to Whetstone Decl.,
and object to the jury charge for second-degree criminal possession of a weapon
was alone sufficient to render the assistance of trial counsel ineffective.32
The trial court again denied Jones’s motion to vacate.33 After a tenpage analysis of Jones’s ineffective assistance claim under Strickland v.
Washington,34 the court determined that “counsel’s actions during the course of
. . . trial adequately provided [Jones] with meaningful representation.”35 The court
specifically noted that raising the duplicity issue would have been “potentially
detrimental” because if each of the guns were charged separately, Jones could have
been subject to multiple convictions and consecutive sentences.36 Thus, the
submission of only one count “was fully consistent with [trial counsel’s] strategy
of reducing the number of criminal charges the jury would consider and, thus,
[Jones’s] possible penal exposure.”37 A justice of the Appellate Division denied
See People v. Jones (Jones II), No. 763/04 (Sup. Ct. Bronx Co. Mar.
20, 2008), Ex. 7 to Whetstone Decl.
466 U.S. 668 (1984).
Jones II, slip op. at 15.
See id. at 9-11.
Id. at 12 n.5.
leave to challenge this ruling, thereby exhausting Jones’s state appeals on his
ineffective assistance claim.38
State Direct Appeal
While Jones’s ineffective assistance claim was moving through the
courts, he perfected his appeal to the Appellate Division, directly challenging the
judgment against him as duplicitous.39 Appellate counsel argued that because the
weapon possession counts in the indictment and the count ultimately charged to the
jury did not specify which specific firearm Jones was accused of possessing and
whether the unlawful use was from the robbery or the police chase, more than one
crime was contained in the same count, making it impermissibly duplicitous.40
Jones claimed that this duplicity violated New York requirements for indictments
See People v. Jones (Jones III), No. M-1806 (1st Dep’t June 25,
2008), Ex. 10 to Whetstone Decl. See also N.Y. Crim. Proc. Law § 450.15(1)
(providing for discretionary review of Section 440.10 denials by the Appellate
Division); id. § 450.90(1) (not permitting review by the Court of Appeals when the
Appellate Division denies discretionary review).
See Brief for Defendant-Appellant, People v. Jones (Jones IV), 881
N.Y.S.2d 294 (1st Dep’t 2009) (No. 989), 2009 WL 7603976, Ex. 11 to Whetstone
See id. at 28-30.
and violated his constitutional rights.41 While Jones recognized that his counsel
did not raise the duplicity claim at trial, he also argued that because the issue of
duplicity raises a “‘fundamental taint’” to the conviction, it “‘should be addressed
on appeal in the interest of justice.’”42
The Appellate Division, while not discussing Jones’s “fundamental
taint” argument, rejected the duplicity claim as procedurally barred.43 The court
held, without additional discussion, that because Jones “did not preserve his claim
that the count upon which he was convicted after trial was duplicitous, . . . we
decline to review it in the interest of justice.”44 As an alternative holding, the court
also rejected the duplicity claim on the merits.45 In so doing, the Appellate
Division found that the weapon possession count was not duplicitous because it in
fact “had a single factual basis, that is, the People’s theory that, in a brief,
continuing incident, [Jones] and [Green] collectively possessed several handguns
See id. at 30.
Id. at 39 (quoting People v. Jackson, 572 N.Y.S.2d 891, 893 (1st
See Jones IV, 881 N.Y.S.2d at 294.
as part of a joint criminal enterprise . . . .”46 Finally, the court rejected Jones’s
“alleged extrinsic evidence of the mental processes of certain jurors,” and despite
denying leave to appeal the second motion to vacate, “reject[ed] his ineffective
assistance of counsel claim.”47 The Court of Appeals denied leave to appeal,48
thereby exhausting Jones’s state claims.49
On October 18, 2010, Jones appeared pro se and filed the instant
petition for a writ of habeas corpus in this Court, raising the two grounds argued
above — that the jury charge was duplicitous and his trial counsel was ineffective
under Strickland.50 Recognizing the potential procedural bar caused by trial
counsel’s failure to object to the charge or raise the duplicity claim at trial, Jones
argues that federal habeas review is not barred by the independent and adequate
Id. at 294-95 (citations omitted).
Id. at 295.
See People v. Jones (Jones V), 13 N.Y.3d 797 (2009).
See Whetstone Decl. ¶ 28 (agreeing that Jones’s state claims are
See Petition (“Pet.”).
state grounds doctrine.51 Jones argues that the procedural bar was not adequate to
preclude federal habeas review because New York courts “do not fairly and
consistently apply the procedural rule” and, alternatively, that counsel’s ineffective
performance supplies sufficient cause for the procedural default.52
This petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). AEDPA provides that a federal court may grant
a writ of habeas corpus to a state prisoner only if the state court’s adjudication of a
particular claim, on the merits in a state court proceeding, resulted in a decision
(1) . . . was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) . . . was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
See id. ¶ 22. Note that due to a numbering error, there are two
paragraphs numbered “22” in Jones’s petition — this citation refers to the first of
28 U.S.C. § 2254(d) (2006). Accord Berghuis v. Thompkins, 130 S.
Ct. 2250, 2259 (2010) (citing Knowles v. Mirzayance, 556 U.S. 111, 114 (2009)).
With respect to subsection 2254(d)(1), the Supreme Court has
explained that a state-court decision is “contrary to” clearly established federal law
in the following instances:
First, a state-court decision is contrary to this Court’s precedent if
the state court arrives at a conclusion opposite to that reached by
this Court on a question of law. Second, a state-court decision is
also contrary to this Court’s precedent if the state court confronts
facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to ours.54
With regard to the “unreasonable application” prong, the Supreme Court has
[A] state-court decision can involve an “unreasonable application”
of this Court’s clearly established precedent in two ways. First,
a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing
legal rule from this Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case. Second, a
state-court decision also involves an unreasonable application of
this Court’s precedent if the state court either unreasonably
extends a legal principle from our precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.55
Williams v. Taylor, 529 U.S. 362, 405 (2000).
Id. at 407.
Thus, in order for a federal court to find a state court’s application of
Supreme Court precedent to be unreasonable, the state court’s decision must have
been more than incorrect or erroneous: “[t]he state court’s application of clearly
established law must be objectively unreasonable.”56 This standard “‘falls
somewhere between merely erroneous and unreasonable to all reasonable
jurists.’”57 While the test requires “‘[s]ome increment of incorrectness beyond
error, . . . the increment need not be great; otherwise habeas relief would be limited
to state court decisions so far off the mark as to suggest judicial incompetence.’”58
Independent and Adequate State Law Grounds
On a petition for a writ of habeas corpus, federal courts “will not
review a question of federal law decided by a state court if the decision of that
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (emphasis added).
Accord Renico v. Lett, 130 S. Ct. 1855, 1867 (2010) (stating that “[t]his distinction
creates ‘a substantially higher threshold’ for obtaining relief than de novo review”)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Taylor, 529 U.S. at 409;
Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones
v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (quotation marks and citations omitted)).
court rests on a state law ground that is independent of the federal question and
adequate to support the judgment.”59 This can occur “when a state court decline[s]
to address a prisoner’s federal claims because the prisoner had failed to meet a
state procedural requirement.”60
Habeas relief is generally foreclosed when the state court bases its
decision on a “firmly established and regularly followed” state procedural rule.61
“There are, however, exceptional cases in which exorbitant application of a
generally sound rule renders the state ground inadequate to stop consideration of a
federal question.”62 In determining this, the Second Circuit has considered, “as
guideposts,” three questions:
(1) whether the alleged procedural violation was actually relied on
in the trial court, and whether perfect compliance with the state
rule would have changed the trial court’s decision; (2) whether
state caselaw indicated that compliance with the rule was
demanded in the specific circumstances presented; and (3)
whether petitioner had “substantially complied” with the rule
given “the realities of trial,” and, therefore, whether demanding
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Id. at 729-30.
Lee v. Kemna, 534 U.S. 362, 376 (2002) (citing James v. Kentucky,
466 U.S. 341, 348 (1984)).
Id. (citing Davis v. Wechsler, 263 U.S. 22, 24 (1923)).
perfect compliance with the rule would serve a legitimate
Even if adequate and independent state grounds do exist, a federal
court will still review a petitioner’s habeas claim if “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.’”64 When trial counsel fails to timely object or otherwise raise a claim so
as to create a procedural bar,
the question of cause for a procedural default does not turn on
whether counsel erred or on the kind of error counsel may have
made. So long as a defendant is represented by counsel whose
performance is not constitutionally ineffective under the standard
established in Strickland v. Washington, we discern no inequity in
requiring him to bear the risk of attorney error that results in a
If counsel’s error does not rise to the level of ineffective assistance, cause must
instead come from “some objective factor external to the defense.”66
Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee, 534
U.S. at 381-85).
Harris v. Reed, 489 U.S. 255, 262 (1989) (citation omitted) (quoting
Murray v. Carrier, 477 U.S. 478, 485, 498 (1986)).
Murray, 477 U.S. at 488 (citation omitted).
If a petitioner is able to sufficiently demonstrate cause, she must still
show “‘actual prejudice resulting from the errors of which [Petitioner]
complains.’”67 “The error must have resulted in ‘substantial disadvantage,
infecting [the] entire trial with error of constitutional dimensions.’”68 Furthermore,
if a petitioner is unable to show both cause and prejudice, a “fundamental
miscarriage of justice” allowing habeas review only exists “where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.”69
Duplicity and the Constitutional Sufficiency of Indictments
Duplicity occurs where two or more distinct crimes are combined in a
single count.70 The reasons for prohibiting duplicitous counts include:
avoiding the uncertainty of whether a general verdict of guilty
conceals a finding of guilty as to one crime and a finding of not
guilty as to another, avoiding the risk that the jurors may not have
been unanimous as to any one of the crimes charged, assuring the
defendant adequate notice, providing the basis for appropriate
Gutierrez v. Smith, 702 F.3d 103, 112 (2d Cir. 2012) (alteration in
original) (quoting United States v. Frady, 456 U.S. 152, 168 (1982)).
Id. (alteration in original) (quoting Murray, 477 U.S. at 494).
Murray, 477 U.S. at 496.
See, e.g., United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001)
(“An indictment is impermissibly duplicitous where: 1) it combines two or more
distinct crimes into one count . . . and 2) the defendant is prejudiced thereby.”).
sentencing, and protecting against double jeopardy in a
Procedural rules create the prohibition of duplicitous counts — there
is no constitutional right against duplicity per se.72 In New York, this rule is found
in Criminal Procedure Law Section 200.30(1), which specifies that “[e]ach count
of an indictment may charge one offense only.”73 Such state law requirements
cannot be considered by federal courts on habeas review.74 However, a duplicitous
count may violate a defendant’s constitutional rights (thus opening the door to
habeas review) if it violates “the Sixth Amendment’s guarantee that an accused be
adequately ‘informed of the nature and cause of the accusation’ and the Fifth
Amendment’s interdiction against double jeopardy.”75 These concerns parallel the
constitutional requirements for indictments generally.
United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981).
See Williams v. Lempke, No. 11 Civ. 2504, 2012 WL 2086955, at *21
(S.D.N.Y. June 1, 2012) (“[Petitioner] has cited, and I have found, no Supreme
Court decision clearly prohibiting a duplicitous indictment as a matter of federal
N.Y. Crim. Proc. Law § 200.30.
See 28 U.S.C. § 2254(a).
United States v. Kearney, 444 F. Supp. 1290, 1292 (S.D.N.Y. 1978)
(quoting U.S. Const. amend. VI).
The Supreme Court has outlined two requirements that an indictment
must meet in order to be constitutionally sufficient: “‘first, [that it] contains the
elements of the offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, [that it] enables him to plead an
acquittal or conviction in bar of future prosecutions for the same offense.’”76
While “the language of the statute may be used in the general description of an
offense, . . . it must be accompanied with such a statement of the facts and
circumstances as will inform the accused of the specific offense, coming under the
general description, with which he is charged.”77 However, an indictment is
typically sufficient to inform the accused and avoid the potential for double
jeopardy so long as it states the elements of the offense charged and the
approximate time and place of the crime.78
United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007)
(alterations in original) (quoting Hamling v. United States, 418 U.S. 87, 117
United States v. Hess, 124 U.S. 483, 487 (1888). Accord ResendizPonce, 549 U.S. at 109; Hamling, 418 U.S. at 117-18.
See, e.g., United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998).
Ineffective Assistance of Counsel Under Strickland v. Washington
To succeed on a claim of ineffective assistance of counsel, a petitioner
“must demonstrate (1) that his attorney’s performance ‘fell below an objective
standard of reasonableness,’ and (2) that ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.’”79 “[T]he burden rests on the accused to demonstrate a constitutional
“To satisfy the first prong — the performance prong — the record
must demonstrate that ‘counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.’”81
The inquiry under the performance prong is “contextual” and “asks whether
defense counsel’s actions were objectively reasonable considering all the
Wilson v. Mazzuca, 570 F.3d 490, 501 (2d Cir. 2009) (quoting
Strickland, 466 U.S. at 688, 694). Accord Smith v. Spisak, 558 U.S. 139, 149
United States v. Cronic, 466 U.S. 648, 658 (1984).
Wilson, 570 F.3d at 502 (quoting Strickland, 466 U.S. at 687 (internal
quotation marks omitted)).
circumstances.”82 “[I]t is necessary to ‘judge . . . counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of counsel’s conduct.’”83
In determining what constitutes objective reasonableness, courts look
for guidance to “‘[p]revailing norms of practice as reflected in American Bar
Association standards.’”84 Attorney errors that fall below an objective standard of
reasonableness “include ‘omissions [that] cannot be explained convincingly as
resulting from a sound trial strategy, but instead arose from oversight, carelessness,
ineptitude, or laziness.’”85 “‘Judicial scrutiny of counsel’s performance must be
highly deferential,’ and ‘a court must indulge a strong presumption that counsel’s
Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000) (citing
Strickland, 466 U.S. at 688).
Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (alteration in original)
(quoting Strickland, 466 U.S. at 690).
Purdy, 208 F.3d at 44 (alteration in original) (quoting Strickland, 466
U.S. at 688).
Wilson, 570 F.3d at 502 (alterations in original) (quoting Eze v.
Senkowski, 321 F.3d 110, 112 (2d Cir. 2003)). The Second Circuit has held that
“counsel’s failure to object to a jury instruction (or to request an additional
instruction) constitutes unreasonably deficient performance only when the trial
court’s instruction contained ‘clear and previously identified errors.’ Conversely,
when a trial court’s instruction is legally correct as given, the failure to request an
additional instruction does not constitute deficient performance.” Aparicio v.
Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quoting Bloomer v. United States, 162 F.3d
187, 193 (2d Cir. 1998)).
conduct falls within the wide range of reasonable professional assistance.’”86
“‘The proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.’”87
To satisfy the second prong — the prejudice prong — a “defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.”88 “To determine whether prejudice exists in [a] case, [courts] review the
record to determine the relative role that the alleged trial errors played in the total
context of th[e] trial.”89 In other words, the “question is whether there is a
reasonable probability that, absent the errors, the fact finder would have had a
Knowles, 556 U.S. at 124 (quoting Strickland, 466 U.S. at 689).
Id. (quoting Strickland, 466 U.S. at 688).
Strickland, 466 U.S. at 694 (emphasis added).
Crockett v. McCotter, 796 F.2d 787, 793 (5th Cir. 1986). Accord
Berghuis, 130 S. Ct. at 2264 (“In assessing prejudice, courts ‘must consider the
totality of the evidence before the judge or jury.’” (quoting Strickland, 466 U.S. at
reasonable doubt respecting guilt.”90 Finally, a finding of lack of prejudice may
precede, or preempt, the quality of representation inquiry.91
Jones’s Duplicity Claim Is Procedurally Barred
In order for a party to preserve an issue for appeal, section 470.05 of
the New York Criminal Procedure Law requires protest to a disputed court ruling
or instruction “at the time . . . such ruling or instruction” is made.92 Failing to meet
this procedural requirement also precludes federal habeas relief.93 This is because
a state court’s rejection of a petitioner’s claims via a state procedural rule
represents a rejection on independent and adequate state law grounds.94
Strickland, 466 U.S. at 695.
See id. at 697.
N.Y. Crim. Proc. Law § 470.05(2).
See Bossett v. Walker, 41 F.3d 825, 829 n.2 (2d Cir. 1994) (noting that
a habeas petitioner’s claim was “procedurally barred because [petitioner] failed to
object to the charge and thus did not preserve the issue for appeal”). See also Lee,
534 U.S. at 376 (“[V]iolation of ‘firmly established and regularly followed’ state
rules . . . will be adequate to foreclose review of a federal claim.”).
See Coleman, 501 U.S. at 729-30.
Jones’s trial counsel failed to raise an objection for duplicity within
the timeliness requirements of Section 470.05. The first time Jones raised the issue
of duplicity was in his first Section 440.10 motion, after the verdict against him
was already recorded. This is clearly not “at the time of [the contested] ruling or
The Contemporaneous Objection Rule Is Firmly
Established and Regularly Followed
Jones first contests the application of this procedural bar on the basis
that “the state appellate court does not fairly and consistently apply the procedural
rule.”96 Jones relies on People v. Archer,97 an Appellate Division case also
addressing an indictment containing three identical counts of criminal possession
of a weapon. In that case, the court held that “[a]lthough defendant failed to
preserve this issue for appellate review, we nevertheless choose to review this
fundamental error in the interest of justice . . . .”98
N.Y. Crim. Proc. Law § 470.05(2).
Pet. Mem. ¶ 22.
656 N.Y.S.2d 237 (1st Dep’t 1997).
Id. at 239.
However, Archer is easily distinguishable because, in that case, all
three counts of gun possession were submitted to the jury. In the jury charge in
Archer, the court “did not specify which gun, of the three recovered by the police
at or shortly after defendant’s arrest, pertained to which count.”99 The defendant
was subsequently found guilty on one count but found not guilty on the other
two.100 As such, there were three separate offenses charged, and each count had to
represent a different firearm, but this difference was not explained to the jury.
Furthermore, the Appellate Division’s decision to allow the appeal in
Archer despite the procedural bar does not mean that the contemporaneous
objection rule is not “firmly established and regularly followed.”101 The option for
the Appellate Division to allow such an appeal despite the rule comes from its
power to determine appeals “[a]s a matter of discretion in the interest of justice.”102
However, the exercise of this discretion does not negate the underlying rule — an
overwhelming number of cases exist where New York courts have declined to
Id. at 238.
Lee, 534 U.S. at 376 (emphasis added) (citing James, 466 U.S. at
N.Y. Crim. Proc. Law § 470.15(3)(c).
waive the requirements of Section 470.05 in cases of alleged duplicity.103 As such,
the contemporaneous objection rule is “firmly established and regularly followed.”
The Denial of Jones’s Appeal Was Not an “Exorbitant”
Application of the Contemporaneous Objection Rule
Viewed in light of the factors from Lee104 as prescribed by the Second
Circuit in Cotto,105 the Appellate Division’s application of the contemporaneous
objection rule to deny Jones’s appeal was not “exorbitant” so as to “render the
state ground inadequate to stop consideration of a federal question.”106 First, the
See, e.g., People v. Nash, 908 N.Y.S.2d 708, 710 (2d Dep’t 2010)
(“The defendant’s . . . argument that the trial court’s charge and jury verdict sheet
impermissibly resulted in his conviction on duplicitous counts is likewise
unpreserved for appellate review, as no objection was made by the defendant’s
counsel on this issue . . . .”); People v. Wood, 831 N.Y.S.2d 39, 40 (1st Dep’t
2007) (“Defendant did not preserve his claim that certain counts were duplicitous,
in that multiple criminal acts might have been covered by individual counts, and
we decline to review it in the interest of justice.”); People v. Rivera, 683 N.Y.S.2d
513, 513 (1st Dep’t 1999) (“Defendant has failed to preserve for appellate review
his contention that the indictment was duplicitous. . . . We decline to review this
claim in the interest of justice. ”); People v. Fisher, 637 N.Y.S.2d 382, 383 (1st
Dep’t 1996) (“Defendant’s assertion that the indictment was duplicitous is
unpreserved since he never made a pretrial motion to dismiss the indictment or for
a further bill of particulars and did not object to submission of the counts to the
jury . . . .”).
534 U.S. at 381-85.
331 F.3d at 240.
Lee, 534 U.S. at 376 (citing Davis, 263 U.S. at 24).
only New York court presented with the question of whether Jones’s duplicity
claim was procedurally barred by the contemporaneous objection rule — the
Appellate Division — “actually relied” on that rule in denying Jones’s appeal.107
While Lee is framed in the context of the actions of the trial court,108 the Second
Circuit recognized in Cotto that the question of the trial court’s actual reliance in
failure-to-preserve cases “is less applicable . . . because the lack of a
contemporaneous objection would not, almost by definition, be mentioned by the
trial court.”109 Additionally, the alternative holding on the merits by the Appellate
Division does not affect that court’s actual reliance on the procedural bar in
denying Jones’s appeal.110
See Jones IV, 881 N.Y.S.2d at 294 (“Defendant did not preserve his
claim that the count upon which he was convicted after trial was duplicitous, and
we decline to review it in the interest of justice.”).
See Lee, 534 U.S. at 381.
Cotto, 331 F.3d at 242.
See Reed, 489 U.S. at 264 n.10 (“[A] state court need not fear
reaching the merits of a federal claim in an alternative holding. By its very
definition, the adequate and independent state ground doctrine requires the federal
court to honor a state holding that is a sufficient basis for the state court’s
judgment, even when the state court also relies on federal law.”).
Second, the state case law indicates that compliance with the rule was
demanded in the circumstances presented. The need for compliance with Section
470.05 is well-established.111 The contemporaneous objection rule is uniformly
invoked by the courts of this country, and is discussed in every major legal
encyclopedia and text on criminal procedure.112 Also, as discussed above, the
ability of the Appellate Division to exercise its discretion and allow an otherwisebarred appeal does not mean that New York law fails to demonstrate the need for
compliance with the rule.
Third, it cannot be said that Jones “‘substantially complied’ with the
rule given ‘the realities of trial.’”113 This was not a case where Jones attempted to
raise the issue or simply failed to register his objection at the precise moment
required by statute. During trial, Jones did not raise the issue of duplicity at all.
As such, all three of the “guideposts” in Cotto indicate that the state procedural
See, e.g., People v. Hanley, 20 N.Y.3d 601, 604 (2013) (“As a general
rule, our ‘Court does not consider claims of error not preserved by appropriate
objection in the court of first instance.’” (quoting People v. Becoats, 17 N.Y.3d
643, 650 (2011), cert. denied, 132 S. Ct. 1970 (2012))).
See, e.g., 75A American Jurisprudence 2d Trial § 1234 (2013); 4
Corpus Juris Secundum Appeal and Error § 307 (2013); Wayne R. LaFave et al.,
Criminal Procedure § 24.8(b) (2012); Criminal Practice Manual § 99:16 (2013).
Cotto, 331 F.3d at 240 (quoting Lee, 534 U.S. at 889).
rule was an adequate state ground by which the Appellate Division denied Jones’s
The Question of Cause and Prejudice Is Answered with
Jones’s Strickland Claim
While Jones could still be entitled to habeas review by demonstrating
both cause for his default and prejudice arising therefrom, there is no need to
conduct a separate inquiry in this case. If trial counsel’s failure to object is so
significant as to amount to ineffective assistance, the writ should already issue
under Jones’s independent Strickland claim.114
Because Jones’s Strickland claim ultimately fails on habeas review,
Jones has not demonstrated cause and prejudice for his procedural default.
Similarly, Jones has not demonstrated or even attempted to claim his actual
innocence so as to show a “fundamental miscarriage of justice.”115 As such,
federal habeas relief on Jones’s duplicity claim is barred by the independent and
adequate state law grounds doctrine.
See Pet. ¶ 20 (outlining Jones’s ineffective assistance claim).
See Murray, 477 U.S. at 496.
Jones’s Duplicity Claim Does Not Present a Violation of Clearly
Established Federal Law
Even if this Court were to consider the merits of the duplicity claim,
Jones fails to present a claim upon which habeas relief may be granted. This is
because the Appellate Division’s finding of no duplicity did not amount to a
decision contrary to, or an unreasonable application of, clearly established federal
law.116 There is no federal constitutional right against duplicity,117 nor is there a
federal constitutional right to unanimous jury verdicts in state criminal
proceedings.118 Nevertheless, a duplicitous count may still violate a criminal
defendant’s constitutional rights by not adequately informing her “of the nature
Although the Appellate Division’s decision on the merits of Jones’s
duplicity claim was made as an alternative holding, Jones IV, 881 N.Y.S.2d at 294,
it is still entitled to AEDPA deference. See Zarvela v. Artuz, 364 F.3d 415, 417
(2d Cir. 2004) (“The Appellate Division found petitioner’s claim to be
unpreserved, and, in any event, without merit, and therefore reviewed the claim on
the merits.”). See also Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (citing
Zarvela for the proposition that an alternative holding “constitute[s] an
adjudication on the merits”).
See Lempke, 2012 WL 2086955, at *21.
See Apodoca v. Oregon, 406 U.S. 404, 406 (1972) (plurality opinion).
and cause of the accusation” against her,119 or by creating the possibility of double
In this case, however, the second-degree weapon possession count
adequately informed Jones of the nature of the charges against him and also
“‘enable[d] him to plead an acquittal or conviction in bar of future prosecutions for
the same offense.’”121 Typically, all that is required for a count to be
constitutionally sufficient is a statement of the elements of the offense charged
along with the time and place that it was allegedly committed.122 The final seconddegree weapon possession count required the jury to find:
U.S. Const. amend. VI.
See Kearney, 444 F. Supp. at 1292. See also Resendiz-Ponce, 549
U.S. at 108 (holding the same for the constitutional sufficiency of indictments
generally). Due to the sparsity of the Appellate Division’s opinion, the easiest way
to demonstrate that its decision was in accordance with clearly established federal
law is to show that the jury charge was constitutionally sufficient. However, the
Appellate Division’s ruling is entitled to deference under AEDPA. See 28 U.S.C.
Resendiz-Ponce, 549 U.S. at 108 (quoting Hamling, 418 U.S. at 117).
See, e.g., Alfonso, 143 F.3d at 776. Cf. United States v. Bailey, 444
U.S. 394, 414 (1980) (finding indictments that “track[ed] closely the language” of
the statute to be constitutionally sufficient).
One; that on or about January the 17th of 2004, in the
County of the Bronx, the defendant Larry Jones acting in concert
with another, possessed a loaded firearm.
Two; that the defendant did so knowingly.
Three; that the firearm was operable.
And four; that the defendant possessed a loaded firearm
with the intent to use it unlawfully against another.123
The Indictment similarly alleged that “[t]he defendants, acting in concert with each
other, on or about January 17, 2004, in the County of the Bronx, did possess a
loaded firearm with intent to use unlawfully against another.”124
Both of these formulations of the weapon possession count pass
constitutional muster. They each track the language of the statute, which specifies,
in relevant part, that “[a] person is guilty of criminal possession of a weapon in the
second degree when: (1) with intent to use the same unlawfully against another,
such person: . . . (b) possesses a loaded firearm . . . .”125 Similarly, they both allege
the date that the crime occurred and the approximate location. Accordingly, Jones
had sufficient notice of the crime with which he was being charged. Moreover,
Trial Tr. at 926-927.
Indictment at 12-13.
N.Y. Penal Law § 265.03.
Jones could have relied on the count to plead double jeopardy if he was
subsequently charged with another crime stemming from the same events.
The existence of multiple firearms in the underlying offense does not
change the minimum requirements for a constitutional indictment, as the specific
gun (or guns) employed is not an element of the offense of criminal possession of a
weapon.126 Similarly, in federal weapon possession cases, courts have held that
“language in the indictment describing the [model of firearms] was surplusage,
rather than an essential element of the crimes . . . .”127 Reducing the number of
possession counts from three to one does not present a greater risk for double
jeopardy because the prosecution’s theory, as stated by the Appellate Division,
“had a single factual basis, that is, the People’s theory that, in a brief, continuing
See People v. Buanno, 745 N.Y.S.2d 590, 591 (3d Dep’t 2002)
(“Proof that defendant possessed a loaded firearm, as alleged in two counts of the
indictment, is sufficient to sustain a conviction of the weapon possession counts of
the indictment without the need for proof of the additional facts alleged in the
indictment regarding the caliber and make of the firearm.” (citations omitted)).
United States v. Hart, 458 F.3d 1011, 1021 (9th Cir. 2006). Accord
United States v. Robison, 904 F.2d 365, 369 (6th Cir. 1990) (holding that the trial
court’s jury instructions, which omitted the specific model of gun mentioned in the
indictment, was not an impermissible amendment “because the specific type of
firearm used or possessed by the conspirator is not an essential element of the
incident, [Jones] and [Green] collectively possessed several handguns as part of a
joint criminal enterprise . . . .”128 Thus, the Constitution’s prohibition on double
jeopardy precludes Jones’s future prosecution for possession of any firearm held in
the “brief, continuing incident” that formed the factual basis of the charge of
While Jones also argues that the trial and appellate courts erred by
allowing a count that is duplicitous under New York state law,129 this Court lacks
the power to review the application of state law by state courts on a petition for a
writ of habeas corpus.130 Because the count contained in the jury charge was
constitutionally permissive, Jones has failed to demonstrate that the Appellate
Division’s alternative holding on the merits “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.”131 As such, federal habeas relief is
unavailable on Jones’s duplicity claim.
Jones IV, 881 N.Y.S.2d at 294-95.
See Pet. Mem. at 20-26.
See 28 U.S.C. § 2254(a), (d).
Id. § 2254(d)(1).
The Trial Court’s Decision on Jones’s Strickland Claim Was in
Accordance with Clearly Established Federal Law
In addition to his duplicity claim, Jones also asserts that trial counsel’s
failure to raise that issue amounts to ineffective assistance of counsel, violating
Jones’s constitutional rights under the Sixth Amendment.132 This claim was
already addressed on the merits by the trial court, which denied Jones’s motion to
vacate the judgment on ineffective assistance grounds.133 As such, that court’s
decision is entitled to deference under AEDPA, meaning Jones must show that the
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law.”134
As a preliminary matter, the trial court, in denying Jones’s second
Section 440.10 motion, did not “arrive at a conclusion opposite to that reached by
[the Supreme] Court on a question of law.”135 Nor did it “confront facts that
[were] materially indistinguishable from a relevant Supreme Court precedent and
See Pet. Mem. at 27-28.
See Jones II, slip op. at 5-15.
28 U.S.C. § 2254(d).
Taylor, 529 U.S. at 405.
arrive at a result opposite to [the Supreme Court’s].”136 Jones has cited no
Supreme Court decision that was factually indistinguishable from this case and
resulted in a finding that trial counsel was ineffective. Jones has therefore failed to
show that the trial court’s decision was contrary to clearly established federal law.
Like the “contrary to” prong of Section 2254(d), the “unreasonable
application” prong can also be triggered in two ways,137 neither of which applies to
Jones’s case. The trial court correctly identified the “correct governing legal rule”
(here, Strickland)138 and did not unreasonably apply it to the facts of the case. The
court ruled against Jones’s ineffective assistance claim on two grounds, finding
that (1) trial counsel’s decision to not raise a duplicity claim was strategic, and (2)
there was no prejudice caused by not raising that claim.139
In support of the first ground, the trial court cited evidence that
counsel sought to minimize the number of counts presented to the jury, a decision
See id. at 407.
See Jones II, slip op. at 5 (citing Strickland, 466 U.S. 668).
See id. at 6, 8-12. The trial court also noted that “viewing the
evidence and circumstances of this case in totality, counsel provided defendant
with effective assistance” and “in fact . . . was stellar” in his performance. Id. at 6
stemming from his desire to avoid possible consecutive sentences and from his
knowledge of the trial court’s sentencing practices.140 Under Strickland, if
“[c]ounsel’s strategy choice was . . . within the range of professionally reasonable
judgments,”141 there can be no claim of ineffective assistance. Attempting to avoid
possible consecutive sentences is a “professionally reasonable” strategy choice,
making it clear that the trial court correctly applied Strickland to its findings of
As to the second ground, Strickland requires the defendant to
demonstrate prejudice stemming from counsel’s alleged error, “showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.”142 The trial court’s finding that “‘there is no reasonable
possibility that the outcome of the trial would have changed as a result of curative
action by the court’”143 correctly precluded relief under Strickland and its progeny.
The only United States Supreme Court decision cited by the trial court in Jones II
See id. at 11 (citing 12/24/07 Jean Soo Park’s Affirmation in
Opposition (“Park Aff.”), Ex. 6 to Whetstone Decl., ¶¶ 19-20).
466 U.S. at 699.
Id. at 687.
Jones II, slip op. at 9 (quoting People v. Wood, 831 N.Y.S.2d at 40).
was Strickland, and thus there was no “unreasonable extension” of existing
Supreme Court precedent. Likewise, Jones has cited no Supreme Court decision
that should have been extended to apply to the facts of his case. For all of these
reasons, the trial court’s decision on Jones’s Strickland claim was in accordance
with clearly established federal law.
Denial of Certificate of Appealability
The final issue is whether to grant Jones a Certificate of Appealability
(“COA”). For a COA to issue, a petitioner must make a “substantial showing of
the denial of a constitutional right.”144 A “substantial showing” does not require a
petitioner to demonstrate that she would prevail on the merits, but merely that
“reasonable jurists could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’”145 Petitioner has made no such showing.
While his claim was well-argued, reasonable jurists could not debate the fact that it
28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983) (internal quotation marks omitted)).
Accord Middleton v. Attorneys Gen. of the States of New York and Pennsylvania,
396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not
debate whether the district court’s dismissal of the petition was correct).
fails on the merits -
in some cases on multiple independent grounds. As such,
this Court will not issue a COA.
For the reasons set forth above, Jones's petition for a writ of habeas
corpus is denied. This Court declines to issue a Certificate of Appealability. The
Clerk of the Court is directed to close this case.
New York, New York
- Appearances Petitioner (Pro Se):
Wallkill Correctional Facility
Route 208, Box G
Wallkill, NY 12589-0286
Mary Jo L. Banchard
Kayonia L. Whetstone
Assistant District Attorneys
Bronx County District Attorney’s Office
198 East 161st Street
Bronx, NY 10451
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