Dwinel v. Smith
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
Chad Walton, who also resided at the Camden Hotel, observed
(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
(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).
Walton and Mr. Monroe both lived at the Camden during the two weeks
preceding the attempted robbery.
(H. at 10).
During that time,
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,
“Voir Dire” refers to the transcript of jury
selection held on January 26, 2012. (Docket No. 10).
(H. at 58; Tr. at 119-20).
Mr. Walton observed Mr. Monroe and his
accomplice approach Dr. Moldi on Broadway between 94th and 95th
(H. at 14; Tr. at 43, 120).
Mr. Walton estimated that
he was ten to twelve feet away from them.
(H. at 17-18).
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).
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
(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,
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).
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).
(H. at 20-21, 66-67, 95; Tr.
Mr. Monroe ran in the direction of the Camden.
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).
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).
Moldi described Mr. Monroe as shorter than his accomplice and
wearing a jacket and a cap; Dr. Moldi estimated that he was fifty
(H. at 60; Tr. at 120-21).
Mr. Monroe had a black
beard flecked with white hairs and was missing some of his upper
(H. at 60-61; Tr. at 120-22, 168-71).
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).
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).
Mr. Walton and Dr. Moldi waited in the
third floor hallway while the officers knocked on Mr. Monroe’s
(H. at 102-03; Tr. at 65, 174, 204-05, 227-28).
no answer, so the officers asked the security officer to open the
door with his set of keys, which he did after knocking and
(Tr. at 228-29).
The officers stepped into the apartment and found Mr. Monroe
standing behind the open front door.
(Tr. at 229, 242).
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
(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
Dr. Moldi testified that he was (Tr. at 190), and Mr.
apartment (P. at 29-30, 37).
However, two officers testified that
he was not handcuffed until after the showup.
(P. at 12, 22).
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).
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
(6/30/11 Order at SR 37).
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
“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
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
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).
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).
identifications by Mr. Walton and Dr. Moldi in the hallway of the
(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)).
September 8, 2011, Justice White held a hearing on those motions
and suppressed the identifications as the fruits of a Payton
(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.
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).
Moldi’s case, his face-to-face interaction with the petitioner
during the attempted robbery was adequate.
(H. at 132-36).
Justice Fitzgerald held that both men could identify the petitioner
(H. at 136).
Trial, Sentencing, and Appeals
A jury trial began before Justice Fitzgerald on January 26,
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).
prosecution introduced photographs of the petitioner’s teeth taken
on January 17, 2012, approximately one week before trial.
The photographs are not in the record before this
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).
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
(Brief for Defendant-Appellant at SR 121-22, People v.
Monroe, No. 1989/11 (1st Dep’t June 24, 2013)).
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
Schwartzberg was allegedly intoxicated during trial.
Defendant-Appellant (“Pet. 1/24/14 Memo.”) at SR 154, Monroe, No.
affirmed the conviction.
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
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).
The Federal Habeas Corpus Petition
The petitioner seeks relief from his conviction and sentence
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
suggestive; and (5) violation of his Sixth Amendment right to selfrepresentation.
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
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.”
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
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.
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.”
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]
Harrington v. Richter, 562 U.S. 86, 102
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).
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).
claim to be exhausted, a petitioner must utilize “all available
mechanisms to secure appellate review of the denial of that claim.”
Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).
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
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.
§ 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
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)).
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.
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
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
Id. at 488.
Cause may be found, for example, where
ineffective assistance of counsel or interference by government
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).
“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)).
substantial disadvantage, infecting [the] entire trial with error
States, 353 F. Supp. 2d 500, 508 (S.D.N.Y. 2005) (quoting Frady,
456 U.S. at 170).
A petitioner may also overcome a procedural default by showing
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)).
Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a
criminal defendant must show that (1) “counsel made errors so
guaranteed the defendant by the Sixth Amendment” and (2) “the
deficient performance prejudiced the defense.”
Washington, 466 U.S. 668, 687 (1984).
“[C]ounsel is strongly
presumed to have rendered adequate assistance . . . .”
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
standard of reasonableness.”
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
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
Harrington, 562 U.S. at 112.
Where a defendant has made an
insufficient showing with regard to one element of the Strickland
standard, the court need not address the other.
U.S. at 697.
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
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
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.
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.”
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.”).
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.”
WL 3238994, at *4 (quoting Polanco v. Ercole, No. 06 Civ. 1721,
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.”
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
(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
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
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
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.
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.
claim is deemed exhausted by virtue of procedural default.
The petitioner’s Payton claim was also not raised on direct
This claim is deemed exhausted by virtue of procedural
default. His remaining claims -- violation of his right to testify
suggestiveness determinations regarding the showup, and violation
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.
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)).
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
unexhausted ineffective assistance of counsel claims are plainly
After a discussion of the unexhausted claims, I will
review the petitioner’s exhausted claims.
Unexhausted Ineffective Assistance of Counsel Claims
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
deficiency in the grand jury proceedings.
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.
claim is plainly meritless and should be denied.
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
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
Similarly, the claim that Mr. Schwartzberg misled the petitioner
about trial tactics is bereft of any detail regarding the tactics
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.
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
assertion that the prosecutor intentionally presented unspecified
false evidence at trial”).
Accordingly, both of these claims
should be denied.
Displaying the Petitioner’s Teeth to the Jury
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
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).
showing that the petitioner’s teeth were removed while he was
awaiting trial would have reconciled that discrepancy.
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.
Grand Jury Claim
assistance of counsel claim concerning the withdrawal of the grand
jury notice, that his right to testify before the grand jury was
(Petition under 28 U.S.C. § 2254 For Writ of Habeas
Corpus by a Person in State Custody (“Petition”) at 5-6).
claim should be denied because it is not cognizable in a federal
A federal habeas court “may only overturn a
state conviction when that conviction was obtained in violation of
Lemons v. Parrott, No. 01 Civ.
a federal constitutional right.”
(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.”
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
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.
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 §
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 motion was not raised on direct appeal and is therefore
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
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.
Thus, the petitioner cannot show that Ms.
Strickland’s second prong, and this claim should be denied.
Fourth Amendment Claim
The petitioner argues that his arrest in his home in violation
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)
defendant was precluded from using that mechanism because of an
unconscionable breakdown in the underlying process.”
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.
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.
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
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
*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.’”
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
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.
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.
claims on appeal.
The First Department held that “notwithstanding
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.”
132 A.D.3d at 426, 17 N.Y.S.2d at 293.
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.
States v. Crews, 445 U.S. 463, 473 n.18 (1980); Wade, 388 U.S. at
241; see also Massillon v. Conway, 574 F. Supp. 2d 381, 384
independent source determination.
Dr. Moldi interacted with the
petitioner for several minutes before and during the attempted
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).
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
(H. at 66).
It is also noteworthy here that Dr. Moldi
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
The sixth factor also supports the state court’s independent
Significant delay between the crime and the
weighing against independent reliability ‘in most cases.’”
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
(H. at 68).
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.
As to the
identification of the petitioner prior to the showup.
As to the
fifth, Dr. Moldi made no prior attempt to identify the petitioner.
determination was not contrary to or an unreasonable application
of clearly established law.
Unduly Suggestive Showup
The petitioner contends that the showup was unduly suggestive
because he was brought out of his apartment in handcuffs. 6
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.
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
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
Therefore, the state court’s determination that the showup was not
application of clearly established law.
Even if the showup was unduly suggestive, an identification
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).
a witness who identified a defendant in an unduly suggestive showup
may still identify him in court if the in-court identification is
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
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
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 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.
corrupting influence of the showup was minimal.
It was brief,
lasting only a few seconds, and occurred just minutes after the
Therefore, even if the showup procedures were
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.
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).
“attaches only if it is asserted ‘clearly and unequivocally.’”
Moldi was “shaking his head up and down” during the showup (P. at
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 . . . .
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
(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
(H. at 142).
selection, which concluded on January 26, 2012.
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).
noted that he and the petitioner had privately discussed “what
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.
Dire at 66).
The court explained that “[t]he standard rules would apply,”
such as “the rules of evidence.”
(Voir Dire at 66).
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.”
(Voir Dire at 67).
(Voir Dire at 67-69).
It’s not both
The court then
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.”
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.
petitioner’s claim that the trial court violated his right to selfrepresentation should be denied.
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