Dwinel v. Smith

Filing 17

REPORT AND RECOMMENDATION re: 1 Petition for Writ of Habeas Corpus filed by Dwinel Monroe. Dwinel Monroe, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Monroe is currently serving a seven-year sentenc e for attempted robbery in the second degree. For the reasons that follow, I recommend that the petition be denied. For the reasons discussed above, I recommend that the petition be denied. Pursuant to 28 U.S.C. § 636(b) (1) and Rules 72, 6( a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objection shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Alison J. Nathan, Room 2102, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 3/22/2017. (Signed by Magistrate Judge James C. Francis on 3/8/2017) Copies Mailed this Date By Chambers. (anc)

they stayed at a Days Inn Hotel on Broadway and West 94th Street.
(H. at 55; Tr. at 112).

Mr. Monroe resided at the Camden Hotel,

a residential shelter on West 95th Street.

(H. at 8-9, 31; Tr. at

37-38).
Chad Walton, who also resided at the Camden Hotel, observed
the crime.

(H. at 6; Tr. at 35, 42).

He had seen Mr. Monroe and

his accomplice earlier that evening when they had offered to sell
him fruit near the entrance of the Camden at about 10:00 or 11:00
p.m.

(H. at 13-14; Tr. at 42).

Mr. Walton recognized Mr. Monroe

from the Camden and from other housing facilities where Mr. Walton
had previously resided.

(H. at 7-8, 30-31; Tr. at 38-39).

Mr.

Walton and Mr. Monroe both lived at the Camden during the two weeks
preceding the attempted robbery.
Mr.

Walton

saw

Mr.

Monroe

more

(H. at 10).
than

once

During that time,
each

day

in

the

neighborhood around the Camden and overheard Mr. Monroe complain
about not having enough money on numerous occasions, though he
never personally spoke to Mr. Monroe and did not know him by name.
(H. at 10, 36-37; Tr. at 38-39).
Dr. Moldi testified that at about 12:30 or 1:00 a.m. on April
13, he was returning to his hotel from a visit to Times Square.

“Sentencing Tr.” refers to the transcript of the petitioner’s
sentencing hearing held on February 24, 2012.
(Docket No. 10,
Attachment 5).
“Voir Dire” refers to the transcript of jury
selection held on January 26, 2012. (Docket No. 10).
2

(H. at 58; Tr. at 119-20).

Mr. Walton observed Mr. Monroe and his

accomplice approach Dr. Moldi on Broadway between 94th and 95th
streets.

(H. at 14; Tr. at 43, 120).

Mr. Walton estimated that

he was ten to twelve feet away from them.

(H. at 17-18).

Mr.

Monroe and his accomplice continued to approach Dr. Moldi and began
to walk alongside him at a distance of two to three feet (H. at
59, 62-63; Tr. at 123-24), at which point Mr. Monroe’s accomplice
stated, “[H]ello, how are you doing?” and asked Dr. Moldi if he
was on vacation (H. at 61; Tr. at 123).
Moldi for a dollar to get home.

Mr. Monroe then asked Dr.

(H. at 17-18, 61; Tr. at 124-25).

Dr. Moldi initially refused, but Mr. Monroe insisted that Dr. Moldi
check his wallet.

(H. at 62; Tr. at 125-26).

Dr. Moldi walked

under a canopy with the two men and took out his wallet to give
them “a couple of dollars.”

(H. at 64; Tr. at 126-27).

When Mr.

Monroe saw the wallet, he commented that Dr. Moldi “ha[d] a lot of
money” (Dr. Moldi estimated that he had about $600).
87; Tr. at 127).

(H. at 64,

In response to Mr. Monroe’s comment, Dr. Moldi

immediately put the wallet into his back pocket.

(Tr. at 128).

Mr. Monroe and his accomplice then attempted “to snatch away” the
wallet.

(H. at 64; Tr. at 128).

Mr. Monroe’s accomplice held Dr.

Moldi’s neck from behind while Mr. Monroe, standing in front of
Dr. Moldi, tried to take the wallet from Dr. Moldi’s pocket,

3

ripping Dr. Moldi’s pants in the process.

(H. at 19-20, 66; Tr.

at 46-47, 128-29).
By that time, Mr. Walton had realized that the two men were
trying to rob Dr. Moldi and moved closer to the incident.
20; Tr. at 47).

(H. at

Mr. Walton called the police and told Mr. Monroe

and his accomplice to “get the hell away from [Dr. Moldi].”
at 20, 66; Tr. at 47).

Mr. Monroe and his accomplice then fled

without taking Dr. Moldi’s wallet.
at 48, 131).
at 48).

(H.

(H. at 20-21, 66-67, 95; Tr.

Mr. Monroe ran in the direction of the Camden.

(Tr.

The security officer at the front desk of the Camden

observed Mr. Monroe enter the building at 1:03 a.m.

(Tr. at 308).

Although the attempted robbery occurred in the middle of the
night, the street was well lit, and Dr. Moldi testified that he
could see his assailants clearly.

(H. at 63; Tr. at 124).

Dr.

Moldi described Mr. Monroe’s accomplice as tall, physically fit,
and wearing a jacket with the hood up; Dr. Moldi estimated that he
was about forty years old.

(H. at 59-60; Tr. at 120-21).

Dr.

Moldi described Mr. Monroe as shorter than his accomplice and
wearing a jacket and a cap; Dr. Moldi estimated that he was fifty
years old.

(H. at 60; Tr. at 120-21).

Mr. Monroe had a black

beard flecked with white hairs and was missing some of his upper
front teeth.

(H. at 60-61; Tr. at 120-22, 168-71).

4

The police arrived at the scene shortly thereafter and drove
Dr. Moldi to the Camden, where Mr. Walton had told 911 operators
that Mr. Monroe lived.

(H. at 21, 67, 98-99; Tr. at 135).

Mr.

Walton met Dr. Moldi and the officers outside the Camden, and the
group entered the building together.

(H. at 101-02; Tr. at 50).

They proceeded to Mr. Monroe’s apartment on the third floor.
at 102-03; Tr. at 174-75).

(H.

Mr. Walton and Dr. Moldi waited in the

third floor hallway while the officers knocked on Mr. Monroe’s
door.

(H. at 102-03; Tr. at 65, 174, 204-05, 227-28).

There was

no answer, so the officers asked the security officer to open the
door with his set of keys, which he did after knocking and
announcing himself.

(Tr. at 228-29).

The officers stepped into the apartment and found Mr. Monroe
standing behind the open front door.

(Tr. at 229, 242).

They

escorted him out of the apartment and brought him over to Mr.
Walton and Dr. Moldi for a showup identification.

(Tr. at 174-

75). Mr. Walton stated, “That’s the guy,” and Dr. Moldi positively
identified him as the older of the two men who attempted to rob
him.

(H. at 106; Tr. at 175-76).

Dr. Moldi estimated that he was

about six feet from Mr. Monroe during the showup and saw him for
five or six seconds.

(Tr. at 176).

There was conflicting

testimony as to whether Mr. Monroe was handcuffed during the
showup.

Dr. Moldi testified that he was (Tr. at 190), and Mr.
5

Monroe

testified

that

he

was

apartment (P. at 29-30, 37).

arrested

and

in

his

However, two officers testified that

he was not handcuffed until after the showup.
B.

handcuffed

(P. at 12, 22).

Procedural History
1.

Indictment

On April 14, 2011, the petitioner was arraigned in New York
County Supreme Court on a felony complaint.

(Decision and Order

(“6/30/11 Order”), People v. Monroe, No. 1989/11, at SR 36 (N.Y.
Sup. Ct. June 30, 2011)). 2

Defense counsel filed a grand jury

notice, and the case was adjourned to April 18, 2011.
Order at SR 36).

(6/30/11

On April 18, defense counsel withdrew the grand

jury notice, and the case was adjourned for arraignment on the
indictment on May 3, 2011.

(6/30/11 Order at SR 37).

At the May

3 arraignment, the petitioner asserted that his right to testify
before the grand jury was violated by counsel’s withdrawal of a
grand

jury

notice

and

indicated

(6/30/11 Order at SR 37).

that

he

wanted

new

counsel.

On May 17, 2011, Anne B. Rudman was

assigned to represent the petitioner.

(6/30/11 Order at SR 37).

She moved to dismiss the indictment pursuant to New York Criminal

2

“SR” refers to the page numbers in a compilation of state
court records filed by the respondent entitled “State Court
Records.” (Docket No. 9). Page numbers preceded by “SR” reflect
the page numbers in the compilation of records, not those from the
individual sources.
6

Procedure Law § 190.50 on the ground that the petitioner was denied
the right to testify before a grand jury.

(6/30/11 Order at SR

36).
On June 30, 2011, Justice Renee A. White denied the § 190.50
motion on two grounds.

First, she found that the prosecution had

complied with § 190.50 because the grand jury notice was withdrawn
by the petitioner’s attorney.

(6/30/11 Order at SR 38).

Second,

she found that the petitioner failed to establish that he was
prejudiced by his inability to testify before the grand jury.
(6/30/11 Order at SR 38-39).
2.
On

May

Suppression Hearings
31,

2011,

Mr.

Monroe

moved

to

suppress

the

identifications by Mr. Walton and Dr. Moldi in the hallway of the
Camden

on

the

ground

that

the

showup

was

unduly

suggestive.

(Affirmation of Anne B. Rudman at SR 13-14, Monroe, No. 1989/11
(May 31, 2011)).

On June 6, 2011, the petitioner moved to suppress

those identifications on the additional ground that they were the
fruits of an unlawful warrantless arrest in his home in violation
of Payton v. New York, 445 U.S. 573 (1980).

(Affirmation of Anne

B. Rudman at SR 73-74, Monroe, No. 1989/11 (June 6, 2011)).

On

September 8, 2011, Justice White held a hearing on those motions
and suppressed the identifications as the fruits of a Payton

7

violation

but

suggestive.

rejected

the

claim

that

the

showup

was

unduly

(P. at 49-50).

On January 24, 2012, Justice Daniel Fitzgerald held a hearing
to determine whether Mr. Walton and Dr. Moldi had an independent
source -- other than the encounter in the hallway of the Camden - to identify the petitioner at trial.
did.

He concluded that both men

In Mr. Walton’s case, his observation of the attempted

robbery and his knowledge of the petitioner from the Camden and
other housing facilities was sufficient.

(H. at 123-26).

In Dr.

Moldi’s case, his face-to-face interaction with the petitioner
during the attempted robbery was adequate.

(H. at 132-36).

Thus,

Justice Fitzgerald held that both men could identify the petitioner
at trial.

(H. at 136).
3.

Trial, Sentencing, and Appeals

A jury trial began before Justice Fitzgerald on January 26,
2012.

At

Schwartzberg.

trial,

the

petitioner

was

represented

by

Sol

A significant amount of the evidence concerned the

condition of the petitioner’s teeth.

Dr. Moldi testified that the

petitioner was missing three to four of his upper front teeth on
the night of the attempted robbery.

(Tr. at 170-71).

The

prosecution introduced photographs of the petitioner’s teeth taken
on January 17, 2012, approximately one week before trial.
234, 280-82).

(Tr. at

The photographs are not in the record before this
8

Court; however, testimony regarding the photographs suggests that
the petitioner was missing all of his upper teeth and all but four
or five of his bottom teeth.

(Tr. at 283).

At the conclusion of

the trial, Mr. Schwartzberg directed the petitioner to stand up
and display his teeth to the jury.

(Tr. at 358).

On February 1, 2012, the jury convicted the petitioner of
attempted robbery in the second degree.

(Tr. at 431-33).

Three

weeks later, Justice Fitzgerald sentenced the petitioner as a
second felony offender to a seven-year term of imprisonment with
five years of post-release supervision.

(Sentencing Tr. at 5-6).

Mr. Monroe appealed his conviction to the First Department.
The petitioner’s principal appellate brief asserted that: (1) Dr.
Moldi should not have been permitted to identify the petitioner in
court because the independent source determination was erroneous
and the showup was unduly suggestive; (2) the court violated the
petitioner’s right to self-representation by failing to inquire
into his interest in proceeding pro se; and (3) the sentence was
excessive.

(Brief for Defendant-Appellant at SR 121-22, People v.

Monroe, No. 1989/11 (1st Dep’t June 24, 2013)).

The petitioner

also submitted a supplemental pro se brief arguing that: (1) he
was denied the right to testify before the grand jury when counsel
withdrew the grand jury notice without his consent; and (2) he
received

ineffective

assistance
9

of

counsel

because

his

first

attorney

withdrew

the

grand

jury

notice

and

because

Schwartzberg was allegedly intoxicated during trial.

Mr.

(Brief for

Defendant-Appellant (“Pet. 1/24/14 Memo.”) at SR 154, Monroe, No.
1989/11

(1st

Dep’t

Jan.

24,

affirmed the conviction.

2014)).

The

Appellate

Division

It declined to review the petitioner’s

ineffective assistance of counsel claims because they involved
matters outside the record and rejected his remaining claims on
the merits.

People v. Monroe, 132 A.D.3d 426, 426-27, 17 N.Y.S.3d

292, 293 (1st Dep’t 2015).
leave to appeal.

The New York Court of Appeals denied

People v. Monroe, 26 N.Y.3d 1090, 1090, 23

N.Y.S.3d 647 (2015) (Table).
C.

The Federal Habeas Corpus Petition

The petitioner seeks relief from his conviction and sentence
pursuant

to

28

U.S.C.

§

2254

on

the

following

grounds:

(1)

violation of his right to testify before the grand jury; (2)
violation of his Fourth Amendment rights when the police arrested
him in his home; (3) ineffective assistance of counsel at several
stages of the prosecution; (4) violation of his due process rights
because

Dr.

identifying

Moldi
him

at

did

not

trial

have

and

an

because

independent
the

showup

source
was

for

unduly

suggestive; and (5) violation of his Sixth Amendment right to selfrepresentation.

10

Discussion
A.

Legal Standards
1.

Principles Governing Petitions Under Section 2254

Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a federal court may grant a writ of habeas corpus
to a state prisoner for a claim that a state court has adjudicated
on the merits only where the state court’s adjudication
(1) resulted in a decision that 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) resulted in a decision that 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).
Federal law is “clearly established” when it is expressed in
“the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions.”

Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Habeas relief is

not available when a petitioner raises an issue that the Supreme
Court has not squarely addressed or clearly answered.”

Wright v.

Van Patten, 552 U.S. 120, 125-26 (2008).
A state court’s decision is “contrary” to clearly established
federal law when the state court “applies a rule that contradicts
the governing law set forth” in a Supreme Court opinion, or when

11

it “confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives at
a result different from [Supreme Court] precedent.”
U.S. at 405-06.

Williams, 529

A decision is an unreasonable application of

clearly established law when “the state court correctly identifies
the governing legal principle . . . but unreasonably applies it to
the facts of the particular case.”
694 (2002).

Bell v. Cone, 535 U.S. 685,

Habeas relief should be granted on this prong only

where there is “no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [the Supreme]
Court’s precedents.”

Harrington v. Richter, 562 U.S. 86, 102

(2011).
Separately, but importantly, a pro se habeas petition must be
construed liberally to include any colorable legal claim and the
strongest arguments it suggests.

Parisi v. United States, 529

F.3d 134, 139 (2d Cir. 2008); Mears v. Graham, No. 13 Civ. 8737,
2014 WL 4060022, at *1 (S.D.N.Y. Aug. 14, 2014).
2.

Exhaustion and Procedural Default

A habeas petitioner must exhaust all available state remedies
for each of his claims prior to federal review.

28 U.S.C. §

2254(b)(1)(A); Duckworth v. Serrano, 454 U.S. 1, 3 (1981).

For a

claim to be exhausted, a petitioner must utilize “all available
mechanisms to secure appellate review of the denial of that claim.”
12

Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).

That requires

the petitioner “to invoke ‘one complete round of the State’s
established appellate review process.’”

Galdamez v. Keane, 394

F.3d 68, 74 (2d Cir. 2005) (quoting O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999)).

In general, to properly exhaust a claim in

New York, the petitioner must first “fairly present[]” it to the
Appellate Division and then “seek further review . . . by applying
to the Court of Appeals for a certificate granting leave to
appeal.”

Id. at 73-74 (emphasis omitted) (quoting O’Sullivan, 526

U.S. at 848).

However, a district court has discretion to reach

the merits of an unexhausted claim to deny the petition.

28 U.S.C.

§ 2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”);
see also Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000).
“When a petitioner can no longer ‘present his unexhausted
claim of trial error to the state courts, we deem the claim
procedurally [defaulted].’”

Richardson v. Superintendent of Mid-

Orange Correctional Facility, 621 F.3d 196, 201 (2d Cir. 2010)
(quoting Acosta v. Artuz, 575 F.3d 177, 188 (2d Cir. 2009)).

“In

such cases, the district court may deem the claims to be exhausted,
but they are nonetheless procedurally barred from habeas review.”
Fields v. Lee, No. 12 Civ. 4878, 2016 WL 889788, at *8 (S.D.N.Y.
13

Jan. 28, 2016).

The merits of a procedurally defaulted claim may

not be reviewed by a federal court unless the petitioner shows (1)
cause for the default and actual prejudice resulting therefrom or
(2) that he is “actually innocent” of the crime for which he was
convicted.

Murray v. Carrier, 477 U.S. 478, 495-96 (1986).

The “cause” prong of the cause-and-prejudice test ordinarily
requires a showing that “some objective factor external to the
defense impeded counsel’s efforts to comply with the [] procedural
rule.”

Id. at 488.

Cause may be found, for example, where

ineffective assistance of counsel or interference by government
officials

prevented

procedural rules.

the

petitioner

from

complying

with

the

See Jones v. Armstrong, 367 F. App’x 256, 257

(2d Cir. 2010); United States v. Friedland, Nos. 10 Cr. 827, 13
Civ. 8312, 2015 WL 4469513, at *2 (S.D.N.Y. July 16, 2015).

The

“prejudice” prong requires that the defendant suffer “‘actual
prejudice’ resulting from the errors of which he complains.”
United States v. Frady, 456 U.S. 152, 168 (1982)).
must

show

that

the

errors

at

trial

created

The petitioner
an

“actual

and

substantial disadvantage, infecting [the] entire trial with error
of

constitutional

dimensions.”

Rosario-Dominguez

v.

United

States, 353 F. Supp. 2d 500, 508 (S.D.N.Y. 2005) (quoting Frady,
456 U.S. at 170).

14

A petitioner may also overcome a procedural default by showing
“actual innocence.”
4469513, at *2.

Murray, 477 U.S. at 488; Friedland, 2015 WL

“‘[A]ctual innocence’ means factual innocence,

not mere legal insufficiency.”
614, 623 (1998).

Bousley v. United States, 523 U.S.

“To establish actual innocence, [the] petitioner

must demonstrate that . . . ‘it is more likely than not that no
reasonable juror would have convicted him.’”

Id. (quoting Schlup

v. Delo, 513 U.S. 298, 327 (1995)).
3.

Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a
criminal defendant must show that (1) “counsel made errors so
serious

that

counsel

was

not

functioning

as

the

‘counsel’

guaranteed the defendant by the Sixth Amendment” and (2) “the
deficient performance prejudiced the defense.”
Washington, 466 U.S. 668, 687 (1984).

Strickland v.

“[C]ounsel is strongly

presumed to have rendered adequate assistance . . . .”
690.

Id. at

As a result, “[s]urmounting Strickland’s high bar is never

an easy task.”

Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

A showing of deficient performance requires the defendant to
prove

that

“counsel’s

representation

standard of reasonableness.”

fell

below

an

objective

Strickland, 466 U.S. at 687-88.

Judicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to
15

eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.
Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance
. . . .
Id. at 689.

To show that the deficient performance prejudiced the

outcome, the defendant must establish that the “likelihood of a
different

result

must

be

substantial,

Harrington, 562 U.S. at 112.

not

just

conceivable.”

Where a defendant has made an

insufficient showing with regard to one element of the Strickland
standard, the court need not address the other.

Strickland, 466

U.S. at 697.
B.

“Mixed” Petition
1.

The Petitioner’s Claims

The petitioner brings what is known as a “mixed” petition in
that he presents both exhausted and unexhausted claims. See Rhines
v. Weber, 544 U.S. 269, 273 (2005). The unexhausted claims involve
ineffective

assistance

of

counsel.

ineffective

assistance

of

counsel

The
at

petitioner

three

stages

asserts
of

the

prosecution: (1) when Matthew Knecht, his attorney during preindictment proceedings, withdrew the grand jury notice without his
consent; (2) when Ms. Rudman, who was assigned to replace Mr.
Knecht, failed to explain how he was prejudiced by the withdrawal

16

of the grand jury notice in her § 190.50 motion; and (3) when Sol
Schwartzberg, his trial attorney, was allegedly intoxicated at
trial, misled him about trial tactics, and directed him to display
his teeth to the jury without introducing medical records showing
that his teeth had been removed while he was in jail awaiting trial
in this case.
In New York, the appropriate procedural vehicle to bring an
ineffective assistance of counsel claim after a conviction at trial
depends on whether the trial record is sufficiently developed to
challenge counsel’s performance on direct appeal.

“[T]he proper

means to obtain review of an ineffective assistance of counsel
claim based on facts outside the record is a motion to vacate
pursuant to New York Criminal Procedure Law § 440.10.”

Ortiz v.

Artuz, No. 06 Civ. 6444, 2010 WL 3238994, at *4 (S.D.N.Y. Aug. 11,
2010); see also Pierotti v. Walsh, 834 F.3d 171, 178 (2d Cir. 2016)
(“[W]here . . . an ineffective assistance of counsel claim turns
on facts that are outside of the trial-court record, the claim
must be brought in collateral proceedings, not on direct appeal.”).
When

a

petitioner

raises

such

a

claim

in

a

federal

habeas

proceeding before doing so in state court on a § 440.10 motion,
the claim is unexhausted because the petitioner has not “exhausted
the remedies available in the courts of the State.”

Ortiz, 2010

WL 3238994, at *4 (quoting Polanco v. Ercole, No. 06 Civ. 1721,
17

2007 WL 2192054, at *7 (S.D.N.Y. July 31, 2007)).

The claim is

not procedurally defaulted, however, because a § 440.10 motion may
be brought “[a]t any time after the entry of judgment.”

N.Y. Crim.

Proc. Law § 440.10(1).
On the other hand, an ineffective assistance of counsel claim
based solely on facts within the record must be brought on direct
appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c); Roldan v. Ercole,
No. 08 Civ. 6548, 2009 WL 2191176, at *6 (S.D.N.Y. July 20, 2009)
(“[R]elief pursuant to CPL § 440.10 is not available where the
claims could have been raised on the appeal because the record was
sufficiently developed . . . .”).

Such a claim is procedurally

defaulted when it is not brought on direct appeal and is therefore
barred from federal habeas review absent a showing of cause and
prejudice or actual innocence.

Sweet v. Bennett, 353 F.3d 135,

139-40 (2d Cir. 2003).
Here, the petitioner raised ineffective assistance of counsel
on direct appeal only with respect to Mr. Knecht’s withdrawal of
the grand jury notice and Mr. Schwartzberg’s alleged intoxication
at trial.

(Pet. 1/24/14 Memo. at SR 159-64).

The First Department

declined to review those claims because they involved facts outside
the record -- namely, the content of private conversations between
the petitioner and Mr. Knecht and evidence of Mr. Schwartzberg’s
intoxication -- and suggested that a § 440.10 motion was the
18

appropriate vehicle to raise those claims.
427, 17 N.Y.S.3d at 293.

Monroe, 132 A.D.3d at

The petitioner’s other ineffective

assistance of counsel claims concerning Mr. Schwartzberg’s conduct
also

involve

facts

outside

the

trial

record.

Whether

Mr.

Schwartzberg misled the petitioner about trial tactics concerns
the content of private conversations between them, and whether
there are medical records showing that the petitioner had a dental
procedure

in

jail

involves

a

search

of

those

records.

The

petitioner has yet to bring a § 440.10 motion on any of these
ineffective assistance of counsel claims.

Therefore, they are

unexhausted but not procedurally defaulted.
The rest of the petitioner’s claims are exhausted.

The

petitioner’s ineffective assistance of counsel claim concerning
Ms. Rudman’s § 190.50 motion was not raised on direct appeal.
Unlike the petitioner’s other ineffective assistance claims, it is
based solely on facts within the record -- whether the motion she
submitted to the trial court was deficient.

Accordingly, this

claim is deemed exhausted by virtue of procedural default.
The petitioner’s Payton claim was also not raised on direct
appeal.

This claim is deemed exhausted by virtue of procedural

default. His remaining claims -- violation of his right to testify
before

the

grand

jury,

erroneous

independent

source

and

suggestiveness determinations regarding the showup, and violation
19

of his right to self-representation -- were raised on appeal and
are therefore exhausted. Thus, the petition is mixed, as it raises
both exhausted and unexhausted claims.
2.

Disposition of Mixed Petition

In Rose v. Lundy, the Supreme Court held that a federal
district court may not adjudicate a mixed petition because “it
would be unseemly . . . for a federal district court to upset a
state court conviction without an opportunity to the state courts
to correct a constitutional violation.”

455 U.S. 509, 518 (1982)

(quoting Darr v. Burford, 339 U.S. 200, 204 (1950), overruled on
other grounds by Fay v. Noia, 372 U.S. 391 (1963)).

Lundy directed

district courts to dismiss mixed petitions without prejudice,
permitting petitioners to go to back to state court to exhaust
their unexhausted claims and then return to federal court once
their claims are fully exhausted.

Id. at 518-19.

However, a district court may also deny unexhausted claims on
the merits if those claims are “plainly meritless.”

28 U.S.C. §

2254(b)(2); Bravo v. Unger, No. 10 Civ. 5659, 2014 WL 201472, at
*2 (S.D.N.Y. Jan. 16, 2014); Williams v. Artus, 691 F. Supp. 2d
515,

526

(S.D.N.Y.

2010).

Here,

all

of

the

petitioner’s

unexhausted ineffective assistance of counsel claims are plainly
meritless.

After a discussion of the unexhausted claims, I will

review the petitioner’s exhausted claims.
20

C.

Unexhausted Ineffective Assistance of Counsel Claims
1.

Withdrawal of Grand Jury Notice

The petitioner’s claim that Mr. Knecht’s withdrawal of the
grand jury notice constituted ineffective assistance of counsel is
plainly

meritless

because

his

conviction

deficiency in the grand jury proceedings.

at

trial

cured

any

As the Supreme Court

explained in connection with federal grand jury proceedings in
United States v. Mechanik,
[T]he petit jury’s subsequent guilty verdict means not
only that there was probable cause to believe that the
defendants were guilty as charged, but also that they
are in fact guilty as charged beyond a reasonable doubt.
Measured by the petit jury’s verdict, then, any error in
the grand jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.
475 U.S. 66, 70 (1986).

Therefore, the petitioner cannot show

that the withdrawal of the grand jury notice prejudiced the outcome
of his trial under Strickland’s second prong.

Accordingly, this

claim is plainly meritless and should be denied.
2.

Intoxication and Misrepresentation of Trial Tactics

Mr. Monroe’s claims that Mr. Schwartzberg was intoxicated at
trial and misled him about trial tactics are conclusory and wholly
unsubstantiated.

The petitioner provides no evidence that Mr.

Schwartzberg was intoxicated, and a review of the trial transcript,
at which he cross-examined several witnesses and delivered opening
and

closing

statements,

reveals
21

no

indication

of

impairment.

Similarly, the claim that Mr. Schwartzberg misled the petitioner
about trial tactics is bereft of any detail regarding the tactics
at

issue,

the

alleged

misrepresentations,

or

how

those

misrepresentations might have prejudiced the outcome of the trial.
A district court may deny unexhausted claims as plainly meritless
when they are based solely on vague or conclusory assertions.

See

Owens v. Conway, No. 10 Civ. 3183, 2010 WL 3290980, at *2 (S.D.N.Y.
Aug. 11, 2011) (denying unexhausted claims in mixed petition
because the “conclusory allegations . . . fail[ed] to allege enough
facts to state claims that [were] plausible on their face”); Pettus
v. McGinnis, No. 06 Civ. 2054, 2006 WL 2662086, at *1 (S.D.N.Y.
Sept. 15, 2006) (denying unexhausted claim in mixed petition where
the

“petitioner

offer[ed]

no

facts

whatever

to

bear

out

his

assertion that the prosecutor intentionally presented unspecified
false evidence at trial”).

Accordingly, both of these claims

should be denied.
3.
The

Displaying the Petitioner’s Teeth to the Jury

claim

that

Mr.

Schwartzberg

provided

ineffective

assistance of counsel by directing the petitioner to display his
teeth to the jury without introducing records that his teeth were
removed while he was in jail awaiting trial in this case is plainly
meritless because the introduction of such records would have
undermined

the

petitioner’s

defense.
22

As

Mr.

Schwartzberg

explained in his summation, the purpose of having the petitioner
display his teeth to the jury was to highlight a discrepancy
between Dr. Moldi’s description of the petitioner’s teeth and
photographs of his teeth taken on January 17, 2012.

(Tr. at 372).

Dr. Moldi described the petitioner as missing three to four of his
upper front teeth on the night of the attempted robbery (Tr. at
171), while the January 17 photographs showed that he had no upper
teeth and only four or five bottom teeth (Tr. at 283).

Records

showing that the petitioner’s teeth were removed while he was
awaiting trial would have reconciled that discrepancy.

Therefore,

Mr. Schwartzberg’s decision to display the petitioner’s teeth to
the jury without introducing such records was not objectively
unreasonable or prejudicial under Strickland.

This claim is

plainly meritless and should be denied.
D.

Exhausted Claims
1.

The

Grand Jury Claim

petitioner

argues,

independent

of

his

ineffective

assistance of counsel claim concerning the withdrawal of the grand
jury notice, that his right to testify before the grand jury was
violated.

(Petition under 28 U.S.C. § 2254 For Writ of Habeas

Corpus by a Person in State Custody (“Petition”) at 5-6).

This

claim should be denied because it is not cognizable in a federal
habeas proceeding.

A federal habeas court “may only overturn a
23

state conviction when that conviction was obtained in violation of
Lemons v. Parrott, No. 01 Civ.

a federal constitutional right.”
9366,

2002

WL

850028,

at

*5

(S.D.N.Y.

May

2,

2002)

(quoting Einaugler v. Supreme Court of the State of New York, 109
F.3d 836, 842 (2d Cir. 1997)).

However, “the Fifth Amendment’s

grand jury guarantee does not extend to the states.”

Fields v.

Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990); see also Campbell v.
Poole, 555 F. Supp. 2d 345, 378 (W.D.N.Y. 2008) (“The Fifth
Amendment right to be tried for a felony only upon a grand jury
indictment was not incorporated by the Due Process Clause of the
Fourteenth

Amendment,

and

therefore

does

not

pertain

to

the

states.”).

Accordingly, the right to testify before a grand jury

is “a right created by state law alone” and is “non-cognizable in
a federal habeas proceeding.” 3

Gibbs v. New York, 01 Civ. 5046,

2002 WL 31812682, at *4 (S.D.N.Y. Dec. 12, 2002).

This claim rests

solely on that right and should be denied.
2.

Ms. Rudman’s § 190.50 Motion

The claim that Ms. Rudman provided ineffective assistance of
counsel by failing to raise an argument about prejudice in her §

3

In New York, the right to be tried for a felony only after
indictment by a grand jury derives from the New York Constitution,
N.Y. Const. art. I, § 6, and the right to testify before a grand
jury is grounded in state statute, N.Y. Crim. Proc. Law §
190.50(5)(a).
24

190.50 motion was not raised on direct appeal and is therefore
procedurally defaulted.

The petitioner does not allege cause and

prejudice or actual innocence to overcome this procedural default,
and no excuse for the procedural default is otherwise apparent in
the record.

Even if not procedurally barred, this claim would

fail on the merits. As discussed earlier, the petit jury’s finding
of guilt beyond a reasonable doubt cured any deficiency in the
grand jury proceeding.
Rudman’s

conduct

Thus, the petitioner cannot show that Ms.

prejudiced

the

outcome

of

his

trial

under

Strickland’s second prong, and this claim should be denied.
3.

Fourth Amendment Claim

The petitioner argues that his arrest in his home in violation
of

Payton

mandated

dismissal

of

the

indictment,

not

just

suppression of the identifications in the hallway of the Camden.
(Petition at 8).

Federal habeas relief is not available on a

Fourth Amendment claim “where the State has provided an opportunity
for full and fair litigation of [the] claim.”

Stone v. Powell,

428 U.S. 465, 482 (1976); see also Capellan v. Riley, 975 F.2d 67,
70 (2d Cir. 1992).

Under this standard, there are only two

instances in which review of a Fourth Amendment claim will be
granted: (1) “if the state has provided no corrective procedures
at all to redress the alleged fourth amendment violations”; or (2)
“if

the

state

has

provided

a
25

corrective

mechanism,

but

the

defendant was precluded from using that mechanism because of an
unconscionable breakdown in the underlying process.”

Capellan,

975 F.2d at 70.
It is well-established that New York’s corrective procedures
for litigating Fourth Amendment claims under Criminal Procedure
Law § 710.10 et seq. are constitutionally adequate.

Id. at 70

n.1; Hayes v. Lee, No. 11 Civ. 1365, 2015 WL 5943677, at *8 n.10
(S.D.N.Y. Oct. 13, 2015).

Therefore, the petitioner must assert

that there was an unconscionable breakdown in the state process
for his Fourth Amendment claim to be cognizable in this proceeding.
No such breakdown is apparent in this case.

The petitioner

raised the Fourth Amendment issue to the trial court, which granted
relief in the form of suppression of the identifications that
resulted from the unlawful arrest.

He did not seek additional

relief on appeal, and he does not allege that an unconscionable
breakdown in the state process precluded him from doing so.

To

the extent that he asserts that the failure to seek further relief
on appeal was the result of ineffective assistance of appellate
counsel, such a claim does not constitute an “unconscionable
breakdown” in the state process. 4

4

See Hayes, 2015 WL 5943677, at

Even if ineffective assistance of counsel could establish
an unconscionable breakdown in the state process, such a claim
would lack merit. Suppression of the fruits of a Payton violation,
not dismissal of the indictment, is generally the appropriate
26

*8 n.10 (“Petitioner’s claim of ineffective assistance of counsel
in connection with his Fourth Amendment claim, ‘as a matter of
law,’ cannot ‘constitute an unconscionable breakdown.’”

(quoting

Irizarry v. Ercole, No. 08 Civ. 5884, 2013 WL 139638, at *5 n.4
(S.D.N.Y. Jan. 11, 2013))).

Nothing in the record otherwise

indicates any breakdown in the state’s corrective procedures.
Accordingly, this claim is barred from review in a federal habeas
proceeding. 5
4.

Independent Source and Unduly Suggestive Showup

The petitioner contends that Dr. Moldi should not have been
permitted to identify him in court for two reasons: (1) the
determination that Dr. Moldi had an independent source for the
identification was erroneous; and (2) the showup in the hallway of
the Camden was unduly suggestive.

The petitioner raised these

remedy for a Payton violation. See People v. Box, 145 A.D.3d 1510,
1515, 44 N.Y.S.3d 645, 649 (4th Dep’t 2016) (“Even assuming []
that [the] defendant was arrested in his home without a warrant in
violation of Payton, we recognize that the remedy for such a
violation would not be dismissal of the indictment but, rather,
suppression of any evidence obtained from [the] defendant
following that violation . . . .”).
That remedy was granted at
trial. Thus, the petitioner would be unable to show that counsel’s
failure to raise the claim on appeal created a substantial
likelihood of prejudicing the outcome of his appeal.
5

Even if the claim were cognizable in this proceeding, it
would be barred by procedural default.
The petitioner did not
raise the claim on direct appeal, and he does not assert cause and
prejudice or actual innocence to excuse the default.
27

claims on appeal.
a

suppressed

The First Department held that “notwithstanding

identification

procedure,

[Dr.

Moldi]

had

an

independent source for his identification of [the petitioner]” and
that the showup identification, “which had been suppressed solely
on Fourth Amendment grounds, was not unduly suggestive.”

Monroe,

132 A.D.3d at 426, 17 N.Y.S.2d at 293.
a.

Independent Source

Where a witness identification is the result of an unlawful
procedure, such as a Payton violation, the witness may still
identify the defendant in court if the prosecution establishes by
clear and convincing evidence that the witness has an independent
source for making an in-court identification.

United States v.

Wade, 388 U.S. 218, 239-40 (1967); Young v. Conway, 698 F.3d 69,
78 (2d Cir. 2012).

The Supreme Court applies six factors to

determine if there is such an independent source: (1) the victim’s
prior opportunity to observe the alleged criminal act; (2) the
discrepancy between any pre-showup description and the defendant’s
actual description; (3) any identification prior to the showup of
another person; (4) a photographic identification of the defendant
prior to the illegal showup; (5) the victim’s failure to identify
the defendant on a prior occasion; and (6) the lapse of time
between the alleged act and the showup identification.

United

States v. Crews, 445 U.S. 463, 473 n.18 (1980); Wade, 388 U.S. at
28

241; see also Massillon v. Conway, 574 F. Supp. 2d 381, 384
(S.D.N.Y. 2008).
The

first

factor

weighs

in

independent source determination.

favor

of

the

state

court’s

Dr. Moldi interacted with the

petitioner for several minutes before and during the attempted
robbery.

When the petitioner and his accomplice began to speak to

Dr. Moldi, he was looking at the petitioner at a distance of two
to three feet.

(H. at 63, 85).

Dr. Moldi “talked directly” with

the petitioner a second time when the group went under an awning
and the petitioner asked Dr. Moldi for a dollar.

(H. at 64).

When

the attempted robbery began, Dr. Moldi was again looking at the
petitioner’s face as he tried to grab the wallet from Dr. Moldi’s
pocket.
testified

(H. at 66).
that

he

It is also noteworthy here that Dr. Moldi

observed

the

petitioner’s

most

distinctive

feature -- his missing upper front teeth -- during the interaction.
(H. at 61-62).

Though the incident occurred in the middle of the

night while it was drizzling (H. at 64), both Dr. Moldi and Mr.
Walton testified that the street was well lit (H. at 15, 63).
Therefore, the first factor supports the determination that Dr.
Moldi had an independent source to identify the petitioner in
court.
The sixth factor also supports the state court’s independent
source determination.

Significant delay between the crime and the
29

pre-trial

identification

is

a

“‘seriously

negative

weighing against independent reliability ‘in most cases.’”

factor’
Young,

698 F.3d at 84 (quoting Neil v. Biggers, 409 U.S. 188, 201 (1972)).
In this case, the showup occurred on the same night as the
attempted robbery -- Dr. Moldi estimated that it was just ten
minutes later.
The

(H. at 68).

remaining

direction.

factors

do

not

weigh

strongly

in

either

As to the second factor, there was no testimony at the

independent source hearing that Dr. Moldi described the petitioner
to anyone else prior to the showup.

As to the third, Dr. Moldi

did not identify anyone else prior to the showup.
fourth,

Dr.

Moldi

was

not

asked

to

make

a

As to the
photographic

identification of the petitioner prior to the showup.

As to the

fifth, Dr. Moldi made no prior attempt to identify the petitioner.
Accordingly,

the

state

court’s

independent

source

determination was not contrary to or an unreasonable application
of clearly established law.
b.

Unduly Suggestive Showup

The petitioner contends that the showup was unduly suggestive
because he was brought out of his apartment in handcuffs. 6

6

The

For the purposes of evaluating this claim, I assume, without
deciding, that the petitioner was in fact handcuffed when he was
escorted out of his apartment.
As noted earlier, there was
conflicting testimony on this point.
30

Supreme Court has not addressed whether such circumstances are per
se unduly suggestive.

Lower courts have generally held that

viewing a defendant escorted by officers in handcuffs is not unduly
suggestive.

See, e.g., De Michele v. City of New York, No. 09

Civ. 9334, 2012 WL 4354763, at *11 (S.D.N.Y. Sept. 24, 2012)
(showup where defendant was handcuffed in back of police car was
not unduly suggestive); Charlemagne v. Goord, No. 05 Civ. 9890,
2008 WL 2971768, at *12 (S.D.N.Y. June 30, 2008) (showup where
petitioner was in handcuffs and accompanied by police officers was
not unduly suggestive), report and recommendation adopted, 2011 WL
2150646 (S.D.N.Y. May 31, 2011); People v. Tramble, 60 A.D.3d 443,
443, 875 N.Y.S.2d 28, 29 (1st Dep’t 2009) (showup not suggestive
where

defendant

was

in

handcuffs

and

guarded

by

officers).

Therefore, the state court’s determination that the showup was not
unduly

suggestive

was

not

contrary

to

or

an

unreasonable

application of clearly established law.
Even if the showup was unduly suggestive, an identification
resulting
violation.

from

such

a

showup

is

not

itself

a

constitutional

Rather, “the constitutional violation is that [the

petitioner’s] right to a fair trial was impaired by the admission
of testimony regarding the unreliable identification.”
City of New York, 490 F.3d 189, 193 (2d Cir. 2007).

Wray v.

Accordingly,

a witness who identified a defendant in an unduly suggestive showup
31

may still identify him in court if the in-court identification is
independently reliable.

Raheem v. Kelly, 257 F.3d 122, 133 (2d

Cir. 2001) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977),
and Neil, 409 U.S. at 199).

The independent reliability analysis

consists of five factors that overlap substantially with those in
the independent source determination:
the opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of attention,
the accuracy of [the witness’] prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation. Against these factors is to be weighed
the corrupting effect of the suggestive identification
itself.
Manson, 432 U.S. at 114.
As with the independent source analysis, these factors either
support the independent reliability of the in-court identification
or do not weigh strongly in either direction. 7

7

Meanwhile, the

The first and fifth factors support admissibility of the
in-court identification just as the first and sixth factors in the
independent source analysis did. The second factor cuts both ways.
While Dr. Moldi was likely frightened during the attempted robbery,
his multiple face-to-face interactions with the petitioner and
detailed descriptions of the petitioner’s facial features suggest
that he was attentive to the petitioner’s identity during the
incident, gleaning more information than he could have solely from
the showup.
The third factor does not weigh for or against
independent reliability since Dr. Moldi made no pre-showup
description of the petitioner.
The fourth factor supports
independent reliability because Dr. Moldi testified that he was
“confident” in his showup identification of the petitioner (H. at
68), a fact corroborated by a police officer’s testimony that Dr.
32

corrupting influence of the showup was minimal.

It was brief,

lasting only a few seconds, and occurred just minutes after the
attempted robbery.
unduly

suggestive,

Therefore, even if the showup procedures were
Dr.

Moldi’s

in-court

identification

was

independently reliable.
Finally,

the

petitioner

argues

that

Dr.

Moldi

“did

not

remember anything the first day of the independent source hearing”
and then became an “expert witness after going over the case with
the [district attorney].” (Petition at 11). Nothing in the record
supports this assertion.

Therefore, the petitioner’s claims of

error regarding an independent source for Dr. Moldi’s in-court
identification of the petitioner and the suggestiveness of the
showup should be rejected.
5.

Right to Self-Representation

The petitioner’s final claim is that the trial court violated
his right to self-representation by failing to inquire into his
interest in proceeding pro se.

The right to counsel in the Sixth

Amendment implies the correlative right to self-representation.
Faretta v. California, 422 U.S. 806, 821 (1975).

That right

“attaches only if it is asserted ‘clearly and unequivocally.’”

Moldi was “shaking his head up and down” during the showup (P. at
12).
33

Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (quoting Faretta,
422 U.S at 835).
On January 25, 2015, shortly after the conclusion of the
independent source hearing, defense counsel told the court that
“the defendant has voiced at times an indication that he may want
to act as his own counsel.”

(H. at 140).

The court acknowledged

that this was the petitioner’s “absolute right” and stated that if
the petitioner wished to represent himself, “I have to do a
probing, searching questioning of him on that . . . .

Does he

want to do this or not?” (H. at 140-41). Defense counsel explained
that “at this moment, he’s advised me that he wants me to pick the
jury,” but “after the selection of [the] jury and the starting of
the case, he’s indicated to me that he may want to represent
himself.”

(H. at 141-42).

The court responded that if he “shifts

from may to want to, you let me know . . . .

I certainly will let

him represent himself if I’m satisfied of that after a probing
analysis.”
Defense

(H. at 142).
counsel

represented

the

petitioner

selection, which concluded on January 26, 2012.

during

jury

Defense counsel

then reminded the court that “at the beginning of this case I
indicated the defendant had advised me . . . he was considering
acting as his own attorney.”

(Voir Dire at 65).

Defense counsel

noted that he and the petitioner had privately discussed “what
34

limitations [] the court [will] impose upon him if I am the
attorney or he’s the attorney.”

(Voir Dire at 66).

He then asked

the court to “give its views” about “the limitations, the format
and the procedure” if the petitioner represented himself.

(Voir

Dire at 66).
The court explained that “[t]he standard rules would apply,”
such as “the rules of evidence.”

(Voir Dire at 66).

While the

petitioner would be allowed to confer with defense counsel to, for
example, receive “suggestions on certain witnesses” (Voir Dire at
66), the court explained that “it’s not a tag team.
of you there as co-counsel.”
described

the

benefits

persuasive skills.

of

(Voir Dire at 67).
defense

counsel’s

(Voir Dire at 67-69).

It’s not both
The court then

“expertise”

and

At the conclusion of

the court’s remarks, defense counsel stated that “I think he just
advised me that he wants me[] to continue as his attorney.”

(Voir

Dire at 69).
There is thus no clear and unequivocal invocation of the right
to proceed pro se on the record.

To the contrary, Mr. Monroe

expressed his decision to continue with counsel.

Therefore, the

petitioner’s claim that the trial court violated his right to selfrepresentation should be denied.

35