Smalls v. Lee

Filing 68

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 64 Report and Recommendations, 53 Motion for Miscellaneous Relief, filed by Benjamin Smalls. The Court, having conducted a thorough review of the remainder of the R&R, finds no error, clear or ot herwise. The Court therefore adopts Judge Smith's R&R. Petitioner's writ of habeas corpus is accordingly dismissed with prejudice, and Petitioner's Motion for Summary Judgment is denied. As Petitioner has not made a substantial showi ng of the denial of a constitutional right, a Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d I 07, 111-12 (2d Cir. 2000), and the Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) ("We consider a defendant's good faith... demonstrated when he seek s appellate review of any issue not frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N.Y. 2010) (citing Coppedge and noting that an appeal may not be taken in forma pauperis if the trial court certifies in writin g that it is not taken in good faith). The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent, terminate the pending Motion (Dkt. No. 53), and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/21/16) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BENJAMIN SMALLS,
Petitioner,
Case No. 12-CV-2083 (KMK) (LMS)
v.
ORDER ADOPTING R&R
WILLIAM LEE, Superintendent,
Respondent.

KENNETH M. KARAS, District Judge:
On March 19, 2012, Benjamin Smalls (“Petitioner”), proceeding pro se, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (the “Petition”), challenging his
October 14, 1999 judgment of conviction in New York state court and his aggregate term of
imprisonment of 31 years to life in prison after being convicted of multiple counts of, among
others, kidnapping, assault, and burglary. (Pet. for Writ of Habeas Corpus 1 (“Pet.”) (Dkt. No.
2).) On April 27, 2012, the case was referred to Magistrate Judge Lisa Margaret Smith (“Judge
Smith”) pursuant to 28 U.S.C. § 636(b)(1). (See Order Referring Case to Magistrate Judge (Dkt.
No. 8).) On May 24, 2016, Judge Smith issued a Report and Recommendation (the “R&R”)
recommending that the Petition be denied. (See Dkt. No. 64.) For the reasons set forth below,
the Court adopts the R&R.
I. Background
The factual and procedural background of this case is set forth, in part, in the R&R.
(R&R 3–8.) Because of the complex history of this case, the Court nevertheless relates the
pertinent facts.

On October 14, 1999, Petitioner was convicted in Westchester County Supreme Court for
kidnapping in the first degree, two counts of assault in the second degree, burglary in the first
degree, criminal use of a firearm in the first degree, three counts of criminal possession of a
weapon in the third degree, and menacing in the second degree. (Pet. 1.) After the close of
evidence but prior to the reading of the verdict, Petitioner absconded. (Resp’t’s Mem. of Law in
Opp. to Pet. for Writ of Habeas Corpus (“Resp’t’s Opp.”) Ex. 46, at 6–7 (Dkt. No. 25).)
Petitioner was thereafter sentenced in absentia to an aggregate indeterminate term of 31 years to
life. (See id. at 13–18.) When asked by the People during sentencing about the possibility of
post-release supervision, the court remarked that it “[would] not say anything about it. The
statute will take care of it.” (Id. at 13.) With Petitioner’s whereabouts still unknown,
Petitioner’s attorney filed a notice of appeal. (See Resp’t’s Opp. Ex. 2.) Upon motion by the
People, the New York Appellate Division (the “Appellate Division”) dismissed the appeal
because Petitioner, as a fugitive, was “not amenable to the jurisdiction of [the] court.” (Resp’t’s
Opp. Ex. 4.)
On July 21, 2000, after Petitioner’s apprehension, the records coordinator at the
correctional facility to which Petitioner was committed submitted an inquiry to the trial judge
asking for clarification on certain issues with Petitioner’s sentence and commitment form. (See
Pet. Ex. D.) On August 17, 2000, the trial court responded with a corrected sentence and
commitment form, accurately reflecting the sentence orally imposed at Petitioner’s sentencing.
(See id.; Resp’t’s Opp. Ex. 46.)
Petitioner thereafter filed the first of several actions challenging his conviction and
sentence. On June 24, 2000, Petitioner filed a pro se habeas corpus petition in New York
Supreme Court, arguing that he was deprived effective assistance of counsel at sentencing

2

because the attorney who represented him at sentencing was different from the one who
represented him at trial. (See Resp’t’s Opp. Ex. 5.) Following opposition briefing from the
People, (see Resp’t’s Opp. Ex. 6), Petitioner submitted a supplemental reply brief alleging
ineffective assistance of counsel at trial and defectiveness of the indictment, (see Resp’t’s Opp.
Ex. 7).1 The Supreme Court of Westchester County held that because a habeas petition “cannot
be utilized to review claimed errors which could have been raised on appeal but were not,” and
because there was “absolutely no merit to any of [] [P]etitioner’s contentions,” the petition was
denied. (Id. at 3.) That judgment was affirmed on appeal, with the Appellate Division
concluding that a habeas proceeding “was not the appropriate vehicle for asserting the claims
raised in the petition.” (Resp’t’s Opp. Ex. 11.)
On April 12, 2002, Petitioner filed a pro se motion pursuant to New York Criminal
Procedure Law (“CPL”) §§ 440.10(1)(a), (h), arguing that the incident report generated by the
local police department was insufficient, the indictment was defective for not having been signed
by the foreperson and the district attorney, and he was denied effective assistance of counsel at
sentencing. (See Resp’t’s Opp. Ex. 13.) The Supreme Court of Westchester County denied the
motion, saying that “a CPL 440.10 motion cannot be utilized as a substitute for direct appeal”
and noting that Petitioner’s arguments were without merit anyway. (See Resp’t’s Opp. Ex. 15, at
2.) The Appellate Division denied leave to appeal the decision. (See Resp’t’s Opp. Ex. 19.)
On June 16, 2003, Petitioner, through pro bono legal counsel, filed a motion to renew the
§ 440.10 motion. (See Resp’t’s Opp. Ex. 21, at unnumbered 8.) The motion, which is not in the
record, was denied on August 25, 2003. (Id.)

1

Petitioner’s supplemental reply brief is not in the record.

3

On October 18, 2004, Petitioner, proceeding again pro se, moved in the Appellate
Division to vacate the dismissal of his direct appeal from his conviction, arguing that the
appellate court had failed to appoint an attorney to represent Petitioner’s interests when the
appeal was pending. (See Resp’t’s Opp. Ex. 21.) That motion was denied on November 23,
2004. (See Resp’t’s Opp. Ex. 23.)
On July 21, 2006, Petitioner, still proceeding pro se, filed his first federal habeas petition
(the “First Federal Habeas Petition”), arguing that (1) there was no valid indictment, (2) he was
denied effective assistance of counsel at sentencing, (3) he was denied the right to counsel on
direct appeal, (4) he was denied the right to counsel when the trial court conducted a
resentencing hearing in the absence of Petitioner or counsel, (5) he was denied due process and
equal protection when the appellate court refused to hear his constitutional arguments on direct
appeal, and (6) he is actually innocent. (See Resp’t’s Opp. Ex. 25, at unnumbered 8–13.) On
November 26, 2006, Judge Charles E. Brieant denied the petition, saying that the petition was
time-barred and, even if the claims were timely, all of them were procedurally defaulted because
the arguments could have been raised, but were not, on direct appeal. (See Resp’t’s Opp. Ex.
27.) While Petitioner’s appeal of the Second Circuit’s affirmance of that decision to the
Supreme Court was pending, Petitioner moved in the district court under Federal Rule of Civil
Procedure 60(b) to vacate the judgment. (See Resp’t’s Opp. Ex. 29.) The motion was denied by
Judge Cathy Seibel on September 10, 2009. (See Resp’t’s Opp. Ex. 31.) See Smalls v. Smith,
No. 05-CV-5182, 2009 WL 2902516 (S.D.N.Y. Sept. 10, 2009).
On May 5, 2009, Petitioner, still pro se, moved under CPL § 440.20 to vacate his
sentence on the grounds that the judgment and sentencing minutes did not reflect imposition of a
term of post-release supervision as required by law and his indeterminate sentence for the

4

kidnapping count was unlawful. (See Resp’t’s Opp. Ex. 33.) The motion was granted in part
and denied in part on June 29, 2009, when Judge Barbara G. Zambelli, who had presided over
Petitioner’s trial, ordered that Petitioner be resentenced pursuant to People v. Sparber, 889
N.E.2d 459 (N.Y. 2008), superseded in part by statute, N.Y. Correct. Law § 601-d, N.Y. Penal
Law § 70.85, as recognized in People ex rel. Joseph II v. Superintendent of Southport Corr.
Facility, 931 N.E.2d 76 (N.Y. 2010), to include terms of post-release supervision for the
applicable counts, (see Resp’t’s Opp. Ex. 35).
At his resentencing on August 18, 2009, Petitioner was initially represented by Andrew
Proto. (See Resp’t’s Opp. Ex. 47.) Mr. Proto disclosed to the court that he worked for the
Westchester County District Attorney’s Office during part of Petitioner’s case, and while Mr.
Proto felt there was no conflict, Petitioner indicated at the resentencing that he was concerned
with the possible conflict of interest. (Id. at 5.) The court dismissed Mr. Proto and ordered the
resentencing adjourned until the afternoon when a new attorney could be secured for Petitioner,
noting that “[w]e had all of these other lawyers here this morning, too.” (Id. at 5–7.) In the
afternoon, Paul Pickelle appeared on behalf of Petitioner. (Id. at 7.) Mr. Pickelle noted that he
“had occasion to speak briefly with [Petitioner]” and knew that Petitioner “would like to address
the [c]ourt at some point, as well.” (Id. at 8.) When asked whether he wanted to be heard
regarding the amount of post-release supervision to be imposed on each count, Mr. Pickelle
declined. (See id. at 10.) The court proceeded to impose the maximum post-release supervision
term for each count. (See id. at 12–14.)
Petitioner, through counsel, appealed the resentencing, arguing that he was deprived of
effective assistance of counsel because Mr. Pickelle was not familiar with his case and that the
court should have conducted a plenary resentencing in light of the addition of post-release

5

supervision. (See Resp’t’s Opp. Ex. 36.) Petitioner filed a supplemental pro se brief reiterating
the arguments in the counseled brief and raising a number of arguments with respect to the
underlying conviction. (See Resp’t’s Opp. Ex. 38.) The Appellate Division affirmed on May 17,
2011, saying that the ineffective assistance of counsel claims were “based upon matter dehors the
record” and could “not be reviewed on direct appeal,” and noting that those claims were without
merit anyway. (See Resp’t’s Opp. Ex. 40.) The Appellate Division further held that the
remaining contentions were either unpreserved for appellate review or not properly before the
court. (See id.)
Petitioner, proceeding again pro se, thereafter filed the instant Petition. Petitioner makes
six claims in the Petition: (1) he is actually innocent because the indictment against him was
defective; (2) he received ineffective assistance of counsel at all sentencing stages; (3) he was
denied his right to a jury trial when the judge used information outside the province of the jury to
enhance his sentence; (4) he was denied due process when the Appellate Division denied his
initial direct appeal and when the Appellate Division refused to review his pro se supplemental
brief on direct appeal from his resentencing; (5) the People failed to disclose exculpatory Brady
material showing that there were no charges against Petitioner and that the grand jury did not
indict him; and (6) the People filed a false affidavit in the Appellate Division saying they had
filed an opposition to Petitioner’s pro se supplemental brief when they had not actually done so.
(Pet. 8–10.) Petitioner later added a claim that the People failed to disclose exculpatory Brady
material showing that two of Petitioner’s attorneys were not licensed to practice law in New
York. (See Pet’r’s Suppl. Mem. to Pet. for Habeas Corpus (“Pet’r’s Suppl. Mem.”) (Dkt. No.
46).)

6

After Petitioner filed the Petition in this Court, Respondent asked the Court to consider
whether the Petition was an impermissible second or successive petition. (See Letter from John
James Sergi, Esq., to Court (July 25, 2012) (Dkt. No. 13); Letter from John James Sergi, Esq., to
Court (July 25, 2012) (Dkt. No. 14).) The Court determined that the Petition was not a second or
successive petition because the Sparber resentencing resulted in an amended judgment that,
under Second Circuit precedent, entitled Petitioner to challenge the underlying conviction a
second time. (See R. & R. (Dkt. No. 20); Order Adopting R. & R. (Dkt. No. 23).)
Petitioner subsequently filed a Motion for Summary Judgment, (see Pet’r’s Mot. (Dkt.
No. 53)), to which Respondent replied, (see Aff. of Lisa M. Denig in Opp. to Mot. for Summ. J.
(Dkt. No. 59)). Judge Smith issued the R&R recommending dismissal of the Petition on May 10,
2016, and it was docketed on May 24, 2016. (See Dkt. No. 64.) Petitioner timely filed his
objections to the R&R on July 14, 2016. (See Pet’r’s Obj. to R&R (“Pet’r’s Obj.”) (Dkt. No.
67); see also Memo Endorsement (Dkt. No. 63) (extending Petitioner’s time to object to the
R&R).)
II. Discussion
A. Standard of Review
1. Review of a Magistrate Judge’s Report & Recommendation
A district court reviewing a report and recommendation addressing a dispositive motion
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). Under 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b), a party may submit objections to the magistrate judge’s report and
recommendation. The objections must be “specific” and “written,” Fed. R. Civ. P. 72(b)(2), and
must be made “[w]ithin 14 days after being served with a copy of the recommended disposition,”

7

id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant
to Federal Rule of Civil Procedure 5(b)(2)(C)–(F), see Fed. R. Civ. P. 6(d), for a total of
seventeen days, see Fed. R. Civ. P. 6(a)(1).
“A district court evaluating a magistrate judge’s report may adopt those portions of the
report [and recommendation] to which no ‘specific, written objection’ is made, as long as the
factual and legal bases supporting the findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205,
206 (S.D.N.Y. 2012) (internal quotation marks omitted), aff’d sub nom. Hochstadt v. N.Y. State
Educ. Dep’t, 547 F. App’x 9 (2d Cir. 2013). However, where a party timely objects to a report
and recommendation, as Petitioner has done here, the district court reviews the parts of the report
and recommendation to which the party objected de novo. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3). “When a [petitioner] simply rehashes the same arguments set forth in [his]
original petition, however, such objections do not suffice to invoke de novo review of the
[r]eport.” Aponte v. Cunningham, No. 08-CV-6748, 2011 WL 1432037, at *1 (S.D.N.Y. Apr.
11, 2011) (italics omitted); see also Hall v. Herbert, Nos. 02-CV-2299, 02-CV-2300, 2004 WL
287115, at *1 (S.D.N.Y. Feb. 11, 2004) (“[T]o the extent that a party simply reiterates his
original arguments, the [c]ourt reviews the report and recommendation only for clear error.”).
Finally, pleadings submitted by pro se litigants are held to a less strict standard than those
drafted by attorneys. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in
the formal litigation context, pro se litigants are held to a lesser pleading standard than other
parties.” (italics omitted)). Because Petitioner is proceeding pro se, the Court construes his
pleadings to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (per curiam).

8

2. Habeas Corpus Review
Petitions for a writ of habeas corpus are governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), which provides that “[t]he writ may not issue for any
claim adjudicated on the merits by a state court unless the state court’s decision was ‘contrary to,
or involved an unreasonable application of, clearly established Federal law as determined by the
Supreme Court of the United States,’ or was ‘based on an unreasonable determination of the
facts in light of the evidence presented in the State Court proceeding.’” Epps v. Poole, 687 F.3d
46, 50 (2d Cir. 2012) (quoting 28 U.S.C. § 2254(d)(1)–(2)). In this context, “it is the habeas
applicant’s burden to show that the state court applied [federal law] to the facts of his case in an
objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
“[A]n unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685,
694 (2002); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially higher threshold.”).
Section 2254(d) “reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (internal quotation marks
omitted). Consequently, a federal court must deny a habeas petition in some circumstances even
if the court would have reached a conclusion different than the one reached by the state court,
because “even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 202–03 (2011) (“Even if
the [federal] Court of Appeals might have reached a different conclusion as an initial matter, it
was not an unreasonable application of our precedent for the [state court] to conclude that [the

9

petitioner] did not establish prejudice.”); Hawthorne v. Schneiderman, 695 F.3d 192, 197 (2d
Cir. 2012) (“Although we might not have decided the issue in the way that the [New York State]
Appellate Division did—and indeed we are troubled by the outcome we are constrained to
reach—we . . . . must defer to the determination made by the state court . . . .” (citation omitted)).
Under AEDPA, the factual findings of state courts are presumed to be correct. See 28
U.S.C. § 2254(e)(1); Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). A petitioner can rebut
this presumption only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also
Cotto v. Herbert, 331 F.3d 217, 233 (2d Cir. 2003) (same). Finally, only federal law claims are
cognizable in habeas proceedings. “[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see also 28 U.S.C.
§ 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”).
a. Exhaustion
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available
state remedies, thereby giving the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citation
and internal quotation marks omitted); see also 28 U.S.C. § 2254(b)(1)(A) (“An application for a
writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that . . . the applicant has exhausted the remedies available

10

in the courts of the State . . . .”). Accordingly, “the prisoner must fairly present his claim in each
appropriate state court (including a state supreme court with powers of discretionary review),
thereby alerting that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29 (internal
quotation marks omitted); see also 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to
have exhausted the remedies available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise, by any available procedure, the
question presented.”). This requirement reflects important “notions of comity between the
federal and State judicial systems.” Strogov v. Att’y Gen., 191 F.3d 188, 191 (2d Cir. 1999).
However, “[a]n 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.” 28 U.S.C. § 2254(b)(2).
There are two components to the exhaustion requirement. See McCray v. Bennet,
No. 02-CV-839, 2005 WL 3182051, at *7 (S.D.N.Y. Nov. 22, 2005) (“A two-step analysis is
used to determine whether a claim has been exhausted . . . .”). “First, the petitioner must have
fairly presented to an appropriate state court the same federal constitutional claim that he now
urges upon the federal courts.” Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981), overruled on
other grounds by Daye v. Att’y Gen., 696 F.2d 186, 195 (2d Cir. 1982) (en banc); see also Turner
v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (same). This requirement is satisfied if the claim is
presented in a way that is “likely to alert the court to the claim’s federal nature,” Daye, 696 F.2d
at 192, and the state courts are “apprised of both the factual and the legal premises of the claim
[the petitioner] asserts in federal court,” Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997)
(alteration in original) (internal quotation marks omitted). In other words, a state prisoner need
not cite “chapter and verse of the Constitution” to satisfy this requirement. Daye, 696 F.2d at

11

194. However, it is “not enough that all the facts necessary to support the federal claim were
before the state courts, or that a somewhat similar state-law claim was made.” Anderson v.
Harless, 459 U.S. 4, 6 (1982) (citation omitted). Rather, the claims must be made in such a way
so as to give the state courts a “fair opportunity to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Id. (internal quotation marks omitted).
“Second, having presented his federal constitutional claim to an appropriate state court,
and having been denied relief, the petitioner must have utilized all available mechanisms to
secure [state] appellate review of the denial of that claim.” Klein, 667 F.2d at 282; see also
Pettaway v. Brown, No. 09-CV-3587, 2010 WL 7800939, at *9 (S.D.N.Y. May 3, 2010) (same),
adopted by 2011 WL 5104623 (S.D.N.Y. Oct. 26, 2011). In New York, “a criminal defendant
must first appeal his or her conviction to the Appellate Division, and then must seek further
review of that conviction by applying to the Court of Appeals for a certificate granting leave to
appeal.” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). If the petitioner fails to exhaust
his or her state remedies through this entire appeal process, he or she may still fulfill the
exhaustion requirement by collaterally attacking the conviction via available state methods. See
Klein, 667 F.2d at 282–83; West v. Sheahan, No. 12-CV-8270, 2014 WL 5088101, at *3
(S.D.N.Y. Sept. 18, 2014); Sparks v. Burge, No. 06-CV-6965, 2012 WL 4479250, at *4
(S.D.N.Y. Sept. 28, 2012); Torres v. McGrath, 407 F. Supp. 2d 551, 557 (S.D.N.Y. 2006);
Rivera v. Conway, 350 F. Supp. 2d 536, 544 (S.D.N.Y. 2004). For example, in New York a
defendant may challenge the conviction based on matters not in the record that could not have
been raised on direct appeal, see N.Y. Crim. Proc. Law § 440.10, but a defendant may not seek
collateral review of claims that could have been raised on direct appeal and were not, see id.
§ 440.10(2)(c); see also O’Kane v. Kirkpatrick, No. 09-CV-5167, 2011 WL 3809945, at *7

12

(S.D.N.Y. Feb. 15, 2011) (“Under New York law, all claims that are record-based must be raised
in a direct appeal. . . . It is only when a defendant’s claim hinges upon facts outside the trial
record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”),
adopted by 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011).
b. Procedural Default
In addition to the exhaustion requirement, a federal court “will not consider an issue of
federal law on direct review from a judgment of a state court if that judgment rests on a state-law
ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for
the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989). A state court decision is
“independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458
F.3d 130, 138 (2d Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 740 (1991)). A
decision is “adequate” if it is “‘firmly established and regularly followed’ by the state in
question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S.
411, 423–24 (1991)). “Although this doctrine originated in the context of state-court judgments
for which the alternative state and federal grounds were both ‘substantive’ in nature, the doctrine
‘has been applied routinely to state decisions forfeiting federal claims for violation of state
procedural rules.’” Harris, 489 U.S. at 260–61; see also Coleman, 501 U.S. at 732 (“[A] habeas
petitioner who has failed to meet the State’s procedural requirements for presenting his federal
claims has deprived the state courts of an opportunity to address those claims in the first
instance.”).
“If it fairly appears that the state court rested its decision primarily on federal law, [a]
[c]ourt may reach the federal question on review” unless the state court “clearly and expressly
state[d] that its judgment rests on a state procedural bar.” Harris, 489 U.S. at 261, 263 (internal

13

quotation marks omitted). This “plain statement” rule applies only “when it fairly appears that a
state court judgment rested primarily on federal law or was interwoven with federal law.”
Coleman, 501 U.S. at 739. When analyzing whether a state court decision rested primarily on
federal law or was interwoven with federal law, the court should consider “(1) the face of the
state-court opinion, (2) whether the state court was aware of a procedural bar, and (3) the
practice of state courts in similar circumstances.” Jimenez, 458 F.3d at 145 (2d Cir. 2006). In
cases where there is no evidence the state court rested its decision on federal law, a federal
habeas court may “presume that silence in the face of arguments asserting a procedural bar
indicate[s] that [an] affirmance was on state procedural grounds.” Quirama v. Michele, 983 F.2d
12, 14 (2d Cir. 1993). “Dismissal for a procedural default is regarded as a disposition of the
habeas claim on the merits.” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
New York permits criminal defendants only one application for direct review. See N.Y.
Comp. Codes R. & Regs. tit. 22, § 500.20(a)(2); Jimenez, 458 F.3d at 149 (“[The petitioner] has
already taken his one direct appeal [under New York law] . . . .”). “New York procedural rules
bar its state courts from hearing either claims that could have been raised on direct appeal but
were not, or claims that were initially raised on appeal but were not presented to the Court of
Appeals.” Sparks, 2012 WL 4479250, at *4. Accordingly, in those situations, a petitioner no
longer has any available state court remedy, and the unexhausted claims are therefore deemed
exhausted, but procedurally barred. See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“If a
habeas applicant fails to exhaust state remedies by failing to adequately present his federal claim
to the state courts so that the state courts would deem the claim procedurally barred, we must
deem the claim procedurally defaulted.” (alteration and internal quotation marks omitted)); see
also Aparicio, 269 F.3d at 90 (noting the reality that deeming an unpresented claim to be

14

exhausted is “cold comfort”). “An applicant seeking habeas relief may escape dismissal on the
merits of a procedurally defaulted claim only by demonstrating ‘cause for the default and
prejudice’ or by showing that he is ‘actually innocent’ of the crime for which he was convicted.”
Carvajal, 633 F.3d at 104 (quoting Aparicio, 269 F.3d at 90); see also Dretke v. Haley, 541 U.S.
386, 388 (2004) (“[A] federal court will not entertain a procedurally defaulted constitutional
claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the
default,” or a showing that the petitioner “is actually innocent of the underlying offense . . . .”).
B. Analysis
Petitioner raises a number of objections to the R&R. In the interest of clarity, the Court
will group Petitioner’s objections together where appropriate.
1. Factual Background
Petitioner first makes several objections to the background section of the R&R.
Petitioner objects that the R&R inaccurately states that Petitioner argued in his motion to vacate
his sentence in 2009 that “the sentencing court failed to orally impose the required term of
post-release supervision (PRS).” (Pet’r’s Obj. 4.) Petitioner objects that this statement
misleadingly omits that Petitioner was first sentenced on December 21, 1999 and then
resentenced on August 17, 2000 without the court imposing post-release supervision orally or in
writing. (Id.) This distinction is immaterial. The pertinent issue raised in Petitioner’s 2009
motion to vacate his sentence, as accurately relayed in the R&R, was that Petitioner’s sentence
did not include a term of post-release supervision as required by statute. (See Resp’t’s Opp. Ex.
33.) Contrary to Petitioner’s claim, count 6 of his original sentence was not dismissed. (See
Resp’t’s Opp. Ex. 47, at 6.) There is no indication in the record of such a dismissal, and the
document to which Petitioner cites indicates merely that the correctional administration office

15

needed clarification regarding the sentencing paperwork. (See Resp’t’s Opp. Ex. 33, at Ex. A.)
This objection is without merit.
In the same vein, Petitioner objects that the R&R “fails to bring to this [C]ourt’s attention
that the amended sentence of August 17, 2000, was done without counsel, Petitioner, and the
imposition of [post-release supervision].” (Pet’r’s Obj. 6.) To the extent that such a fact is
relevant, the Court acknowledges that the correction to Petitioner’s sentence and commitment
form was done without Petitioner or counsel present, and did not purport to impose a term of
post-release supervision.
Petitioner next objects that the R&R inaccurately indicates that Respondent filed a
response in opposition to Petitioner’s Motion for Summary Judgment and argues that Judge
Smith failed to render a decision on the motion. (Id. at 7–8.) Both of these arguments are
contradicted by the facts. Respondent did file a response to Petitioner’s Motion, (see Aff. of Lisa
M. Denig in Opp. to Pet’r’s Mot. for Summ. J. (Dkt. No. 59)), as Petitioner himself is forced to
concede, (see Pet’r’s Obj. 7). That Respondent chose to make an argument that the Motion was
not properly before the Court is of no import; after making that argument and preserving it for
appeal (hardly a “threat,” as termed by Petitioner), Respondent proceeded to refute the claims in
Petitioner’s Motion and point out that all of the arguments made in the Motion were merely
iterations of issues presented in the original Petition. (See Aff. of Lisa M. Denig in Opp. to
Pet’r’s Mot. for Summ. J. (Dkt. No. 59).) Moreover, contrary to Petitioner’s assertion, Judge
Smith did recommend a disposition of Petitioner’s Motion for Summary Judgment. (See R&R
33.) Petitioner cites Giannulo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) in
arguing that Judge Smith was required to enter summary judgment in favor of Petitioner in light
of Respondent’s failure to respond, (Pet’r’s Obj. 8). Notwithstanding that Respondent did offer a

16

response and that Judge Smith, as a magistrate judge, is not empowered to enter an order on a
dispositive motion, 28 U.S.C. § 636(a)–(b), Giannulo is inapposite because Petitioner failed to
submit a Local Rule 56.1 statement and, in any event, Giannulo held that the failure of a nonmovant to contest a movant’s statement of material nondisputed facts does not “absolve[] the
district court of even checking whether the citation supports the assertion,” 322 F.3d at 143 n.5.
Petitioner’s objections here are without merit.
2. Timeliness of the Petition
Petitioner objects that Judge Smith improperly determined that Petitioner’s resentencing
in 2009 was a Sparber resentencing and that the record reveals that Petitioner’s resentencing “is
the result of the sentence being vacated as illegal, unlawful, and unauthorized pursuant to CPL
§ 440.20.” (Pet’r’s Obj. 8–9.) This objection is irrelevant because Judge Smith recommended
that, notwithstanding her view that Petitioner’s Sparber resentencing did not serve to create an
amended judgment that would toll the statute of limitations for a habeas claim, the Petition
should be examined on its merits because Respondent waived such an argument by failing to
object to the Report & Recommendation issued by Judge Smith earlier in the proceeding. (R&R
19–22.) Because the Court adopts Judge Smith’s recommendation in that respect, Petitioner’s
objection is immaterial.2 Moreover, to the extent Petitioner objects that Judge Smith improperly
characterized the 2009 sentencing as a Sparber resentencing, this argument is without merit. The
state trial court, in partially granting Petitioner’s CPL § 440.20 motion to vacate his sentence,
invoked Sparber as the ground for resentencing. (See Resp’t’s Opp. Ex. 35, at 4–5.) “It is well
established that a federal habeas court may not second-guess a state court’s construction of its

2

In addition, because the Court adopts Judge Smith’s recommendation that Respondent has waived any argument as
to the timeliness of the Petition, the Court expresses no opinion on whether a Sparber resentencing gives rise to the
type of amended judgment contemplated in Johnson v. United States, 623 F.3d 41 (2d Cir. 2010) and Gonzalez v.
United States, 792 F.3d 232 (2d Cir. 2015).

17

own law.” Policano v. Herbert, 453 F.3d 79, 92 (2d Cir. 2006); see also DiGuglielmo v. Smith,
366 F.3d 130, 137 (2d Cir. 2004) (holding that a federal court on habeas review is not
empowered to second-guess a state court’s determination about the compliance of jury
instructions with state law). The state trial court’s determination that Petitioner was resentenced
in accordance with Sparber is not up for review by this Court. Whether the resentencing was in
violation of Petitioner’s constitutional rights is an issue addressed below.
3. Issues Raised in the First Federal Habeas Petition
Petitioner objects that Judge Smith improperly applied the law of the case doctrine to bar
consideration of the claims Petitioner raised in his First Federal Habeas Petition, specifically
noting that his argument regarding the Brady violation stemming from Respondent’s purported
failure to disclose that the indictment was defective was not raised in his earlier habeas petition.
(Pet’r’s Obj. 10–12.)
The law of the case doctrine “counsels a court against revisiting its prior rulings in
subsequent stages of the same case absent ‘cogent’ and “compelling” reasons.” Ali v. Mukasey,
529 F.3d 478, 490 (2d Cir. 2008). The rule merely “directs a court’s discretion,” and “does not
limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618 (1983); see also Doe v.
N.Y.C. Dep’t of Soc. Servs., 709 F.2d 782, (2d Cir. 1983) (noting that the Second Circuit
“view[s] . . . the law of the case doctrine as one of sound, albeit not inexorable, practice”).
The doctrine’s application in the habeas context is unclear. Although the doctrine
purports to apply only to rulings made in the “same case,” Ali, 529 F.3d at 490, the Second
Circuit has nevertheless applied the law of the case doctrine to bar habeas litigation of federal
issues decided against the petitioner in earlier habeas proceedings or on direct appeal, see, e.g.,
DiGuglielmo, 366 F.3d at 135 (applying law of the case doctrine on renewed petition for habeas

18

relief); United States ex rel. Epton v. Nenna, 446 F.2d 363, 365–66 (2d Cir. 1971) (applying law
of the case doctrine in a habeas case where the Supreme Court had dismissed the direct appeal
for want of a substantial federal question). Notwithstanding these cases, the Supreme Court has
long indicated that “[c]onventional notions of finality of litigation have no place where life or
liberty is at stake and infringement of constitutional rights is alleged.” Sanders v. United States,
373 U.S. 1, 8 (1963). For example, “it is well-settled that res judicata has no application in the
habeas corpus or § 2255 context.” Muniz v. United States, 236 F.3d 122, 126 (2d Cir. 2001).
Though AEDPA created a “modified res judicata rule,” Felker v. Turpin, 518 U.S. 651, 664
(1996), “AEDPA did not abrogate the well-settled traditional rule,” Muniz, 236 F.3d at 126. In
light of the Supreme Court’s admonition against invoking common law rules of finality in habeas
proceedings, at least one court in the Second Circuit has recognized the difficulty of applying the
law of the case doctrine to a habeas petition. See Colon v. Sheahan, No. 13-CV-6744, 2016 WL
3919643, at *9 (S.D.N.Y. Jan. 13, 2016), adopted by 2016 WL 3926443 (S.D.N.Y. July 14,
2016). Accordingly, it is unclear whether application of the law of the case doctrine in this
context is appropriate.
Nor is the Court certain that footnote 15 in Magwood v. Peterson, 561 U.S. 320 (2010),
suggests an alternative method of resolving the case. There, the Supreme Court noted that where
a petitioner “reraise[s] every argument against a sentence that was rejected by the federal courts
during the first round of federal habeas review,” “[i]t will not take a court long to dispose of such
claims where the court has already analyzed the legal issues.” Id. at 340 n.15 (internal quotation
marks omitted). Judge Smith noted in the R&R that at least one court in the Second Circuit has
interpreted Magwood to allow for summary dismissal of claims raised in earlier habeas petitions
that are not barred by AEDPA’s limit on second or successive petitions. (See R&R 25 n.17

19

(citing Campbell v. Sheahan, No. 14-CV-6585, 2015 WL 7288703, at *2–3 (W.D.N.Y. Nov. 16,
2015) (Telesca, J.); Mills v. Lempke, No. 11-CV-440, 2013 WL 435477, at *6 (W.D.N.Y. Feb. 4,
2013) (Telesca, J.)).) But Petitioner is correct that the notion of a summary dismissal in such
circumstances is not explicitly endorsed by Magwood—the Supreme Court suggested only that
where an issue has been settled by a prior court, disposing of the claim a second time will not
entail significant effort by the second court to review the issue. It is unclear whether this
observation empowers district courts to summarily dismiss habeas claims properly raised a
second time without undertaking an independent examination of the merits.
Nevertheless, the claims raised by Petitioner in the First Federal Habeas Petition may be
disposed of on the ground that they are procedurally defaulted. Petitioner’s claims that the
indictment was defective and that he received ineffective assistance of counsel at his initial
sentencing were considered and rejected by the trial court on Petitioner’s first state habeas
petition because a habeas petition “cannot be utilized to review claimed errors which could have
been raised on appeal but were not.” (See Resp’t’s Opp. Ex. 7, at 3). The Appellate Division
affirmed that judgment, saying the habeas corpus proceeding “was not the appropriate vehicle for
asserting the claims raised in the petition.” (See Resp’t’s Opp. Ex. 11.) Although it is unclear
whether this qualifies as a “clear and express statement” that the state court rejected the claims
on state procedural grounds, there is no indication that the state court rested its judgment on
federal grounds, and thus the “plain statement” rule does not apply. See Quirama, 983 F.2d at
14. In so concluding, the Court looks to the face of the opinion, whether the state court was
aware of a procedural bar, and the practice of state courts in similar circumstances. Jimenez, 458
F.3d at 139. Here, the face of the opinion indicates that the state court declined to address any of
the federal questions raised by Petitioner. And there is no question the state court was aware of

20

the procedural bar—that was the primary point raised by the People in its brief. (See Resp’t’s
Opp. Ex. 9, at 8.) Finally, courts in New York routinely decline criminal defendants an
opportunity to raise arguments in a collateral proceeding that could have been raised, but were
not, on direct appeal. See, e.g., People v. Stewart, 947 N.E.2d 1182, 1183 (N.Y. 2011); People v.
Hall, 683 N.Y.S.2d 422, 422 (App. Div. 1998); People ex rel. St. Germain v. Walker, 609
N.Y.S.2d 461, 462 (App. Div. 1994). In these circumstances, there is little doubt that the
dismissal of Petitioner’s claims was based on an “independent” and “adequate” state procedural
ground and are thus procedurally defaulted here.
Similarly, Petitioner’s claims that he is actually innocent because the indictment was
defective and that the People failed to disclose exculpatory material pursuant to Brady v.
Maryland, 373 U.S. 83 (1963) showing that there were no charges against Petitioner and the
grand jury did not indict him fail because they are attempts to merely recast procedurally
defaulted claims in different terms. Such a strategy does not exempt Petitioner from AEDPA’s
strict procedural requirements. Cf., e.g., Rodriguez v. United States, No. 97-CV-2545, 2005 WL
887142, at *6 (S.D.N.Y. Apr. 15, 2005) (rejecting the petitioner’s attempt to avoid the bar on
successive habeas petitions by recasting an argument already dismissed by the court); Gil v.
Kelly, No. 90-CV-603, 1992 WL 151901, at *3 (E.D.N.Y. June 16, 1992) (rejecting the
petitioner’s attempt to recast his due process argument as one for ineffective assistance of
appellate counsel in order to avoid certain exhaustion requirements).
Less clear is whether Petitioner’s argument that the Appellate Division’s dismissal of his
initial direct appeal denied him of due process is also procedurally defaulted. After Petitioner
moved to vacate the dismissal of his direct appeal, the People filed their response, arguing that “a
defendant who absconds has no right to appellate review of his judgment of conviction.”

21

(Resp’t’s Opp. Ex. 22, at 7.) The People did not argue that Petitioner’s argument was
procedurally defective. (See id.) In denying Petitioner’s motion, the Appellate Division offered
no commentary, only saying “the motion is denied.” (Resp’t’s Opp. Ex. 23.) Where the face of
the decision is ambiguous and the opposition briefing did not raise the issue of a procedural bar,
the Court is not certain that Petitioner’s claim here is procedurally defaulted.
However, although the Court declines to summarily dismiss claims properly raised on a
second habeas petition, Judge Seibel’s order on Petitioner’s Rule 60(b) Motion in the First
Federal Habeas Petition offers a guidepost for disposing of Petitioner’s claim here. (See Resp’t’s
Opp. Ex. 31.) See Smalls, 2009 WL 2902516. There, Judge Seibel reasoned that Petitioner had
failed to establish that the Appellate Division’s failure to reinstate his direct appeal was “contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Although Petitioner invoked
Second Circuit precedent in arguing that a fugitive has a due process right to have his direct
appeal heard, see Taveras v. Smith, 463 F.3d 141, 149 (2d Cir. 2006), Judge Seibel noted that
AEDPA sets a higher bar for habeas relief. Namely, Petitioner must show that the state court
decision was contrary to Supreme Court law, not merely the law of the Second Circuit. (See
Resp’t’s Opp. Ex. 31, at 11.) See Smalls, 2009 WL 2902516, at *10. Additionally, Taveras is
distinguishable in that the petitioner in Taveras, unlike Petitioner here, was apprehended before
the time for a direct appeal had expired. (See Resp’t’s Opp. Ex. 31, at 11.) See Smalls, 2009 WL
2902516, at *10; see also Taveras, 463 F.3d at 150 (noting that the issue before the court was
limited to “when [a] fugitive is returned while his appeal is still pending”). Moreover, Taveras
addressed a different issue of whether the petitioner was entitled to appointment of counsel, see
Taveras, 463 F.3d at 143, an issue not present here, despite Petitioner’s suggestion otherwise, as

22

Petitioner was represented on his direct appeal by his retained counsel, (see Resp’t’s Opp. Ex. 2).
Were none of that sufficient to dispose of Petitioner’s argument here, the court in Taveras settled
the issue by stating that “clearly established federal law does not provide ‘a constitutional right
to reinstatement of an appeal abandoned by escape.’” Taveras, 463 F.3d at 149 (quoting Joensen
v. Wainwright, 615 F.2d 1077, 1080 (5th Cir. 1980)). Even assuming Petitioner’s claim on this
point is not procedurally defaulted, it lacks all merit.
Thus, accepting Petitioner’s objection that the law of the case doctrine is inapplicable in
this circumstance, the claims raised in Petitioner’s First Federal Habeas Petition are again
dismissed here.
4. Ineffective Assistance of Counsel at 2009 Resentencing
Petitioner next objects that Judge Smith erred in holding that the state court’s dismissal of
Petitioner’s ineffective assistance of counsel claim related to his 2009 resentencing was not
contrary to or an unreasonable application of federal law. (Pet’r’s Obj. 12.) Petitioner claims
that his counsel at resentencing was recruited by the trial court from the hallway the same day
that Petitioner was to face resentencing and that his counsel, Paul Pickelle, was ignorant of the
facts and law related to Petitioner’s case. (Id. at 13–14.)
Ineffective assistance of counsel claims are analyzed under the rubric established in
Strickland v. Washington, 466 U.S. 668 (1984). See Hemstreet v. Greiner, 491 F.3d 84, 89 (2d
Cir. 2007). Strickland created a two-part test directing courts to determine: (1) whether
counsel’s performance was deficient; and (2) whether prejudice resulted from the attorney’s
deficient performance. See 466 U.S. at 687; Harrington, 562 U.S. at 104. In order to satisfy the
deficiency prong, a petitioner must prove that “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. The Court must ask whether the

23

“attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.” Harrington, 562 U.S. at 105.
The Court must “indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.” Bell v.
Miller, 500 F.3d 149, 156 (2d Cir. 2007) (internal quotation marks).
When assessing prejudice, the petitioner must demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is a “probability sufficient to undermine
confidence in the outcome.” Id.
When the “highly deferential” standards created by Strickland and § 2254 act in tandem,
habeas review is “doubly” deferential. Harrington, 562 U.S. at 105. In the context of habeas
review of a state court judgment, “the question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether that determination
was unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009) (internal quotation marks omitted).
There is an initial question of whether Petitioner’s claim in this respect has been
exhausted. In denying Petitioner’s direct appeal from his resentencing, the Appellate Division
noted that “[t]o the extent that the defendant’s claims of ineffective assistance of counsel are
based upon matters dehors the record, they may not be reviewed on direct appeal.” (Resp’t’s
Opp. Ex. 40, at 1.) The court then added that “[i]nsofar as we are able to review those claims,
defense counsel provided the defendant with meaningful representation.” (Id.) In New York,
“[c]laims for ineffective assistance of counsel based on evidence outside the trial record should

24

be raised in a collateral motion to vacate the judgment pursuant to New York Criminal
Procedural Law § 440.10.” Acosta v. Couture, No. 99-CV-9727, 2003 WL 272052, at *6
(S.D.N.Y. Jan. 23, 2003). Courts in the Second Circuit have held that when the Appellate
Division indicates that a claim for ineffective assistance of counsel is unreviewable on direct
appeal because it is based upon matters “dehors the record” and the petitioner fails to
subsequently file a CPL § 440.10 motion, the claim for ineffective assistance of counsel is
unexhausted. See Anthoulis v. New York, No. 11-CV-1908, 2012 WL 194978, at *5 (E.D.N.Y.
Jan. 23, 2012) (“It remains open to [the petitioner] to have the state courts consider his
ineffective assistance claim based on off-the-record evidence on the merits. The claim is
therefore unexhausted.”); Sloane v. Rock, No. 09-CV-5923, 2011 WL 2020573, at *5 (S.D.N.Y.
Apr. 6, 2011) (“Petitioner never filed a CPL § 440.10 motion with regard to this issue . . . .
Thus, . . . Petitioner’s claim of ineffective assistance of trial counsel is unexhausted.”), adopted
by 2011 WL 2070754 (S.D.N.Y. May 19, 2011); Acosta, 2003 WL 272052, at *6. No New York
court has had an opportunity to examine Petitioner’s claim with a full record before it, and
therefore Petitioner’s claim for ineffective assistance of counsel relating to his 2009 resentencing
is unexhausted.
However, “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(2). Because the record is sufficient to address Petitioner’s claim for
ineffective assistance of counsel, the Court will exercise its discretion to do so.
Respondent argues that because the resentencing was “conducted solely to allow a court
to declare the term of post-release supervision,” there was “no genuine basis for an attorney to
object to this procedural resentencing.” (Resp’t’s Opp. 27.) Judge Smith likewise concluded

25

that “there was no basis for defense counsel . . . to object to the resentencing and there is nothing
[defense counsel] could have done that would have altered the proceeding in any way.” (R&R
27.) These statements are only partially accurate. As the trial court acknowledged during the
resentencing hearing, although the imposition of post-release supervision was nondiscretionary,
the range of post-release supervision for each count was within the trial court’s discretion. (See
Resp’t’s Opp. Ex. 47, at 9–10.) For example, on count two of burglary in the first degree,
Petitioner faced between two-and-a-half and five years of post-release supervision. (See id. at 9.)
When the trial court asked defense counsel whether he wanted to be heard on the amount of postrelease supervision to be imposed, defense counsel declined. (See id. at 10.) The court
proceeded to impose the maximum term of post-release supervision for every count. (See id. at
13–14.) In light of defense counsel’s decision to not say anything at resentencing, it is unclear
whether counsel rendered any meaningful representation. See Kimmelman v.Morrison, 477 U.S.
365, 377 (1986) (“The constitutional guarantee of counsel, however, ‘cannot be satisfied by mere
formal appointment.’” (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)); see also Johnson
v. United States, 313 F.3d 815, 818–19 (2d Cir. 2002) (“[D]efense counsel’s failure to object to a
sentencing calculation error that likely resulted in an increase in [the] defendant’s period of
incarceration constituted ineffective assistance of counsel.”); cf. Gonzalez v. United States, 337
F. Supp. 2d 419, 423 (E.D.N.Y. 2004) (ineffective assistance of counsel claim denied where
defense counsel had “argued vigorously in support of his client’s claim for a lenient sentence”).
Fatal to Petitioner’s claim, however, is the absence of prejudice. Even assuming defense
counsel’s representation was deficient, there is no evidence in the record that a plea for lower
terms of post-release supervision would have affected the resentencing proceedings. At the
initial sentencing, conducted while Petitioner was still at large, the trial court commented: “The

26

violent acts committed by [Petitioner] on Miss Wagner demonstrate his arrogance and
contemptuous attitude towards the rights of others and the rules of law. [Petitioner’s] cowardice
in absconding serves to underline the [c]ourt’s view of him.” (Resp’t’s Opp. Ex. 46, at 15.) And
prior to imposing the terms of post-release supervision, the court noted:
I remember this trial very clearly. I remember the trial on this charge, these charges
very clearly. I also remember you absconded and also forfeited bail and I remember
the people that put up their homes to guarantee your return. I remember the facts
of this case. I remember the crimes you committed.
(Resp’t’s Opp. Ex. 47, at 12.) Moreover, when given an opportunity at the original sentencing to
exercise leniency, the trial court declined, sentencing Petitioner to the maximum indeterminate
term of 25 years to life for the kidnapping charge. (See Resp’t’s Opp. Ex. 46, at 16.) There is
thus little doubt the trial court had no sympathy for Petitioner, and in light of these
circumstances, and in the absence of any evidence to the contrary, the Court is not persuaded
there is any “reasonable probability” that the trial court would have imposed different terms of
post-release supervision had defense counsel offered more meaningful representation. See, e.g.,
United States v. Roberston, No. 09-CR-87, 2011 WL 5353071, at *4 (D. Vt. Oct. 4, 2011)
(finding no prejudice where “there [was] no reasonable probability that [evidence of diminished
capacity] would have altered the decision of the sentencing judge,” noting that the sentencing
judge had already denied the request for a below-guidelines sentence), adopted by 2011 WL
5507386 (D. Vt. Nov. 7, 2011); Pena-Rosario v. United States, No. 07-CV-1830, 2007 WL
4358465, at *6 (S.D.N.Y. Dec. 10, 2007) (finding no prejudice where the plaintiff “ha[d] not
explained how additional evidence concerning the scope of his cooperation with the Government
would have eventuated in a non-guidelines sentence”). Accordingly, Petitioner’s claim for
ineffective assistance of counsel at the 2009 resentencing fails on the merits.

27

5. Impermissible Judicial Fact Finding
Petitioner objects that Judge Smith erred in recommending that the Court dismiss as
procedurally defaulted Petitioner’s claim that the trial court impermissibly enhanced his sentence
without allowing the jury to make findings of fact. (See Pet’r’s Obj. 15.) Petitioner specifically
objects that Judge Smith erred in concluding that the Appellate Division’s rejection of this claim
rested on a state procedural bar. (See Pet’r’s Obj. 18–19.)
Petitioner raised this argument for the first time in his pro se supplemental brief filed in
the direct appeal from the 2009 resentencing. (See Resp’t’s Opp. Ex. 38, at 31–32.) There, he
argued that “the trial court was given a sentencing range of between fifteen to twenty-five years
as an authorized minimum sentence for Kidnapping in the First Degree,” and that “in violation of
[Petitioner’s] right to trial by jury[,] the court entertained AGGRAVATING FACTOR’S [sic] to
sentence [Petitioner] to the upper term of twenty-five years.” (Id. at 32 (citation omitted).) The
Appellate Division addressed Petitioner’s pro se arguments only by saying that those contentions
were “not properly before [the] Court.” (Resp’t’s Opp. Ex. 40, at 2.) As set forth in the R&R,
this language, combined with the circumstances of the appeal and the practice of New York
courts, strongly suggests that the Appellate Division refused to address the arguments because of
a state procedural bar. (See R&R 27–30.) As Judge Smith accurately noted, (see R&R 29),
courts in New York have held that in a direct appeal from a Sparber resentencing, the appellant’s
right to appeal “is limited to the correction of errors or the abuse of discretion at the resentencing
proceeding,” People v. Lingle, 949 N.E.2d 952, 959 (N.Y. 2011) (emphasis added). There is
little doubt that the Appellate Division relied on a state procedural bar to dismiss Petitioner’s
claims, which related to alleged errors made prior to the resentencing proceeding, and,
accordingly, Petitioner may not raise that claim again here.

28

Even were the Court to entertain this claim, however, it is without merit. Petitioner is
correct that the Supreme Court has held that “any fact . . . that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt,” Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), and the Court later
extended that ruling to hold that “any fact that increases the mandatory minimum is an ‘element’
that must be submitted to the jury,” Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). But
the Court also clarified that “nothing in [common law] history suggests that it is impermissible
for judges to exercise discretion—taking into consideration various factors relating both to
offense and offender—in imposing a judgment within the range prescribed by statute.”
Apprendi, 530 U.S. at 481. The minimum term of imprisonment for any indeterminate sentence
is one year. N.Y. Penal Law § 70.00(3). The same statute adds that where, as here, a defendant
is convicted of a class A-I felony, the “minimum period shall not be less than fifteen years nor
more than twenty-five years.” Id. § 70.00(3)(a)(i). The statute vests the court with discretion to
determine, within that range, the minimum sentence a particular defendant will serve as part of
their indeterminate sentence. See id. Here, the trial court sentenced Petitioner within that range.
(See Resp’t’s Opp. Ex. 47.) There was no impermissible fact finding by the trial court that
served to increase the statutory minimum of Petitioner’s sentence—the statute properly
authorized the trial court to exercise discretion in determining the bottom of the range of the
indeterminate sentence. See Ward v. Lee, No. 11-CV-1068, 2014 WL 2465607, at *4 (E.D.N.Y.
May 30, 2014) (“[A]s [the petitioner] actually concedes, the statutory range for [the conviction]
was an indeterminate sentence between a minimum of 15 to 25 years and a maximum of life
imprisonment. [The petitioner’s] sentence, obviously, fell well within that range. There was no
Apprendi violation.” (citations omitted)). Petitioner’s claim here thus fails.

29

6. Failure to Review Pro Se Supplemental Brief
Petitioner next objects that Judge Smith erred in recommending that the Court dismiss
Petitioner’s claim relating to the alleged failure of the Appellate Division to consider the
arguments made in Petitioner’s pro se supplemental brief in his appeal from the 2009
resentencing. (Pet’r’s Obj. 16–17.) Petitioner again objects that his 2009 resentencing was not a
Sparber resentencing and that he was entitled to plenary review of the entire conviction and
sentence. (Id.) As set forth above, whether the Appellate Division was correct in holding that
Petitioner’s claims were “not properly before [the] court,” (Resp’t’s Opp. Ex. 40, at 2), is not an
issue this Court is competent to address, see Policano, 453 F.3d at 92 (“It is well established that
a federal habeas court may not second-guess a state court's construction of its own law.”). There
being no ground to dispute the Appellate Division’s conclusion that Petitioner’s arguments raised
in his pro se supplemental brief were not reviewable, the Court concurs with Judge Smith’s
recommendation that the Appellate Division’s refusal to consider those arguments on the merits
was not contrary to or an unreasonable application of Supreme Court precedent.
7. Actual Innocence
Petitioner objects that Judge Smith erred in failing to address his actual innocence
argument. (Pet’r’s Obj. 19–21.) To the extent Petitioner’s actual innocence argument is based
on the allegedly defective indictment, that claim is disposed of above. Moreover, a claim of
actual innocence must be grounded in “actual as compared to legal innocence.” Sawyer v.
Whitley, 505 U.S. 333, 339 (1992) (citing Smith v. Murray, 477 U.S. 527 (1986)). Petitioner’s
argument regarding the allegedly defective indictment, even if taken as true, could prove only
legal innocence, and thus cannot sustain a claim for actual innocence. If Petitioner instead
intends to establish actual innocence as a factual matter, his effort falls short.

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The Supreme Court has not “resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013) (citing Herrera v. Collins, 506 U.S. 390, 404–05 (1993)). The Supreme Court has
recognized, though, that “a petitioner otherwise subject to defenses of abusive or successive use
of the writ may have his federal constitutional claim considered on the merits if he makes a
proper showing of actual innocence.” Herrera, 506 U.S. at 404 (citing Sawyer, 505 U.S. 333).
Similarly, a habeas petitioner “may use his claim of actual innocence as a ‘gateway,’ or a means
of excusing his procedural default.” Rivas v. Fischer, 687 F.3d 514, 539 (2d Cir. 2012) (some
internal quotation marks omitted). The claim of actual innocence is thus a procedural “gateway”
to allow review of claims otherwise not properly before the Court. Id. at 540–41.
To use a claim of actual innocence as a procedural “gateway,” the claim must be both
“credible” and “compelling.” Id. at 541. To be credible, the petitioner must present “new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” House v. Bell, 547 U.S.
518, 537 (2006) (internal quotation marks omitted). To be compelling, the petitioner must show
that “more likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt.” Id. at 538.
Petitioner has failed to make any such showing in this petition. Petitioner has not
presented any “new reliable evidence,” such as “scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.” House, 547 U.S. at 537 (internal quotation marks
omitted). Petitioner in fact, has adduced no factual evidence of actual innocence whatsoever.
Moreover, there is no basis for the Court to conclude, based on the record before it, that “no
reasonable juror would find [Petitioner] guilty beyond a reasonable doubt.” Id. at 538. Beyond

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unsupported assertions to the contrary, Petitioner has made no effort to meet the exacting
standard to establish actual innocence. The purported actual innocence claim is insufficient to
excuse the fact that nearly all of Petitioner’s habeas claims are procedurally defaulted.
8. Filing of False Affidavit
Petitioner objects that Judge Smith erred in summarily dismissing his argument that the
People filed a false affidavit of service stating that it served a response to Petitioner’s pro se
supplemental brief, and that Petitioner is therefore entitled to habeas relief. As an initial matter,
Petitioner’s claim has not been exhausted, as he has never presented this argument to a state
court. Exercising, however, its discretion to dismiss the claim on the merits, see 28 U.S.C.
§ 2254(b)(2), the Court determines that Petitioner’s claim fails.
First, as Petitioner concedes, the record reflects that the People filed an opposition to
Petitioner’s pro se supplemental brief and includes an affidavit of service on both Petitioner and
Petitioner’s counsel at the time. (See Resp’t’s Opp. Ex. 39, at unnumbered 14.) Petitioner
objects that Gail Haddard, the individual who allegedly served Petitioner, is not counsel for
Respondent in this action. (See Pet’r’s Obj. 20.) But Petitioner fails to explain how that fact has
any effect on the veracity of the affidavit, aside from citing a provision of New York procedural
law that allows certain individuals to file affirmations with the same force and effect as an
affidavit. (See id. (citing N.Y. C.P.L.R. § 2106).) The cited provision is irrelevant, as the
individual who served Petitioner filed an affidavit, not an affirmation. (See Resp’t’s Opp. Ex.
39, at unnumbered 14.) Petitioner also points to a log book entry for the correctional facility
indicating that he did not receive any mail from the Westchester Country District Attorney’s
office during the period in question. (See Pet. Ex. F.) But Petitioner offers no explanation for
the entry in the log book of a package delivered to him from “Appellate Division,” which may

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very well have been the memorandum in question. (See id.) And the logbook covers entries
only through February 7, 2011, (see id.), leaving unknown whether Petitioner received the
memorandum after that date. Moreover, even if the memorandum never made its way to
Petitioner, that would not render the affidavit false—the affidavit states that service was effected
by placing copies of the memorandum addressed to Petitioner and his counsel in the mail. (See
Resp’t’s Opp. Ex. 39, at unnumbered 14.) The affidavit is thus not false simply because
Petitioner alleges the mail never arrived. The evidence adduced by Petitioner is insufficient to
call into question the reliability of the affidavit of service.
In addition, Petitioner has failed to show how, even if the affidavit was intentionally
false, his constitutional rights were offended. The cases cited by Petitioner are inapposite; they
stand only for the proposition that a petitioner may be entitled to habeas relief where the
evidence shows that “his imprisonment resulted from perjured testimony, knowingly used by the
State authorities to obtain his conviction,” or “from the deliberate suppression used by those
same authorities of evidence favorable to him.” Pyle v. Kansas, 317 U.S. 213, 216 (1942) (citing
Mooney v. Holohan, 294 U.S. 103 (1935)); see also Napue v. Illinois, 360 U.S. 264, 269 (1959)
(“[I]t is established that a conviction obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth Amendment . . . .”); Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944) (“[T]he courts have developed and
fashioned [an equity rule] to fulfill a universally recognized need for correcting injustices which,
in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to
the [finality] rule.”). When a criminal defendant claims that his or her conviction was procured
by fraud, the court must “‘strike a fair balance between the need for both integrity and finality in
criminal prosecutions’ by determining whether false testimony was prejudicial in the sense that it

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affected the outcome of the trial.” United States v. Stewart, 433 F.3d 273, 297 (2d Cir. 2006)
(quoting United States v. Stofsky, 527 F.2d 237, 239 (2d Cir. 1975)). The Court must ask
whether there is “any reasonable likelihood that the false testimony could have affected the
judgment of the jury.” Id. (internal quotation marks omitted). Petitioner’s conviction, having
been final for nearly eleven years at the time the affidavit was signed and filed, could not have
been secured by the filing of the allegedly false affidavit. There is no nexus between the
affidavit and Petitioner’s conviction, and no facts that would lead the Court to believe that any
testimony pertinent to Petitioner’s conviction was perjured. While Petitioner is correct that, in
other contexts, the filing of a false affidavit or the presentation of a false witness may entitle a
petitioner to habeas relief, this is not such a context. Petitioner’s claim, even if believed, fails on
the merits.
9. Brady Violation Related to Petitioner’s Attorneys
Petitioner objects that Judge Smith erred in concluding that Petitioner’s claim that
Respondent violated its Brady obligations by failing to disclose that some of Petitioner’s
attorneys were not admitted to practice law. (Pet’r’s Obj. 25–26.) Petitioner’s claim has not
been exhausted, and he admits that this claim is being raised for the first time now. (See Pet’r’s
Suppl. Mem. 1–2.) The Court determines, however, that Petitioner’s argument fails on its own
terms. See 28 U.S.C. § 2254(b)(2).
Far from being “arms of [] [the People],” (Pet’r’s Obj. 25), the agencies involved in
investigating the fraudulent legal services organization that represented Petitioner in some of his
collateral proceedings were federal agencies, (see id.). There is no basis to impute knowledge of
those agencies’ investigations to the prosecution, a county district attorney’s office, and thus no
basis for Petitioner’s claim that “evidence” was wrongfully withheld. Even were this not the

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case, Petitioner has failed to explain how the allegedly withheld evidence “tend[s] to exculpate
[Petitioner] or reduce the penalty” within the meaning of Brady. 373 U.S. at 88. The fraudulent
legal services organization, retained by Petitioner on December 3, 2002, did not provide him
representation during his conviction or direct appeal, nor did it provide representation during
Petitioner’s Sparber resentencing or appeal thereof. (See Pet’r’s Suppl. Mem. Ex. D.) There is
no credible argument that the fact that two of Petitioner’s attorneys in a collateral proceeding
were unlicensed “is material either to guilt or to punishment.” Brady, 373 U.S. at 87. Moreover,
as Judge Smith recognized, “there is no right to counsel in state collateral proceedings.”
Coleman, 501 U.S. at 755 (citing Murray v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v.
Finley, 481 U.S. 551 (1987)). Even if Petitioner may have been deprived of the assistance of
able counsel in some of his collateral proceedings, such deprivation was not the consequence of
misconduct by the prosecution, nor did that deprivation call into question the validity of the
underlying conviction or sentence.
10. Allegations of Misconduct
Throughout his objections, Petitioner impugns the ethics and impartiality of both Judge
Smith and the state trial judge, Judge Zambelli. Specifically, Petitioner alleges that Judge Smith
is “psychologically wedded” to her former law clerk, Lisa M. Denig, who is appearing as counsel
for Respondent in this action. (Pet’r’s Obj. 2–3.) Petitioner also points to an incident in 2006
involving Judge Smith that ultimately led to a civil action against her. (See Pet’r’s Obj. 33 & Ex.
B.) And throughout his objections, Petitioner accuses Judge Smith of abdicating her judicial
duties. As for Judge Zambelli, Petitioner includes an article discussing an ethical complaint filed
against her involving the solicitation of false testimony. (See Pet’r’s Obj. 27–28 & Ex. C.)

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The bulk of these accusations hardly warrant a response. The civil suit against Judge
Smith and the ethical complaint against Judge Zambelli have no relationship to this case.
Petitioner attempts to establish a connection by arguing that Judge Zambelli’s conduct in this
case reflected the same misconduct alleged in the ethical complaint. (See Pet’r’s Obj. 27.) But
whether Judge Zambelli’s rulings at trial, which have never before been challenged by Petitioner,
were incorrect is wholly unrelated to the issues raised in the ethical complaint, and whether
Judge Zambelli ever acted improperly or ruled incorrectly in another case has no bearing on
Petitioner’s entitlement to habeas relief here.
As for the accusations by Petitioner that Judge Smith is “psychologically wedded” to Ms.
Denig, these allegations strain credulity. Federal law requires a judge to “disqualify [herself] in
any proceeding in which [her] impartiality might reasonably be questioned,” 28 U.S.C. § 455(a),
or in which she “has a personal bias or prejudice concerning a party,” id. § 455(b)(1). The
question for a court deciding whether recusal is required is “whether ‘an objective, disinterested
observer, fully informed of the underlying facts, would entertain significant doubt that justice
would be done absent recusal.’” ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 107
(2d Cir. 2012) (alteration omitted) (quoting United States v. Carlton, 534 F.3d 97, 100 (2d Cir.
2008)).
The record before the Court does not suggest that a “disinterested observer” would
entertain “significant doubt that justice would be done” with Judge Smith on the bench.
Contrary to Petitioner’s claims, (see Pet’r’s Obj. 35), Judge Smith was never listed as counsel for
Respondent. Ms. Denig did originally list her business address as the courthouse where Judge
Smith sits, and Ms. Denig is a former law clerk of Judge Smith’s from several years ago, (see
Letter from Lisa M. Denig, Esq., to Court (Apr. 25, 2013) 1 (Dkt. No. 39)), but these facts are of

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no relevance to the case at bar. Courts routinely deny specious requests to recuse themselves
merely because a former law clerk is serving as an attorney in some capacity in the litigation.
See, e.g., Ghee v. Artuz, 285 F. Supp. 2d 328, 330 (E.D.N.Y. 2003) (noting that several courts
permit former law clerks to appear before their judges one year after the termination of their
clerkship, and holding that “the [c]ourt finds that, under the present circumstances, it is not
necessary to disqualify [the former law clerk] in order to avoid the appearance of impropriety”);
United States v. Occhipinti, 851 F. Supp. 523, 527 (S.D.N.Y. 1993); In re Cooke, 160 B.R. 701,
707–08 (Bankr. D. Conn. 1993); see also Paws for a Treat LLC v. Christmas Tree Shop, No. 05CV-1304, 2006 WL 236750, at *2 (D. Conn. Jan. 24, 2006) (“Many judges begin hearing cases
in which their former law clerks appear within one year after the clerkship.”). Petitioner
attempts to demonstrate that Judge Smith’s partiality is especially egregious by pointing to
various portions of the record where Judge Smith allegedly showed favorability toward Ms.
Denig. (See Pet’r’s Obj. 1–2, 34–36.) But these accusations amount to no more than
dissatisfaction with Judge Smith’s recommendations, hardly a reason to doubt her impartiality.
In any event, this Court, which has no relationship with Ms. Denig, professional or otherwise,
has conducted a de novo review of every issue on which Petitioner offered an objection.3
Having independently considered those objections, the Court concludes Petitioner’s claims for
habeas relief are without merit and should be dismissed.
III. Conclusion
The remainder of Petitioner’s objections are simply reiterations of points already
resolved. The Court, having conducted a thorough review of the remainder of the R&R, finds no
error, clear or otherwise. The Court therefore adopts Judge Smith’s R&R. Petitioner’s writ of

3

As noted in the R&R, Petitioner was once represented by Marianne Karas. (R&R 5.) To avoid any further claims
of judicial bias, it bears noting that Ms. Karas is not related to this Court.

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habeas corpus is accordingly dismissed with prejudice, and Petitioner's Motion for Summary
Judgment is denied.
As Petitioner has not made a substantial showing ofthe denial of a constitutional right, a
Certificate of Appealability shall not be issued, see 28 U.S .C. § 2253(c)(2); Lucidore v. N.Y.
State Div. of Parole, 209 F.3d I 07, 111-12 (2d Cir. 2000), and the Court further certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be
taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) (" We consider a
defendant's good faith ... demonstrated when he seeks appellate review of any issue not
frivolous.") ; Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321 , 322-23 (S.D.N.Y. 201 0)
(citing Coppedge and noting that an appeal may not be taken in forma pauperis ifthe trial court
certifies in writing that it is not taken in good faith).
The Clerk of the Court is respectfully directed to enter a judgment in favor of
Respondent, terminate the pending Motion (Dkt. No. 53), and close the case.

SO ORDERED.
DATED:

September ~, 2016
White Plains, New York

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