Sweeney v. Unger

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION: for 37 Report and Recommendations. For the reasons stated above, the Court adopts, after a de novo review, Judge Smith's R&R. Petitioner's writ of habeas corpus is thus dismissed with prejudic e. As Petitioner has not made a substantial showing 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 107, 111-12 (2d Cir. 2 000), and the Court further certifies, pursuant to 28 U.S.C. § l 9 l 5(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 defen dant'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. 2010) (citing Coppedge and noting that an appeal may not be taken in fo rma pauperis if the trial court certifies in writing that it is not taken in good faith). The Clerk of Court is respectfully directed to enter a judgment in favor of Respondent, send a copy of this Order to Petitioner at the address listed on the docket, and to close the case, and as further set forth in this order. (Signed by Judge Kenneth M. Karas on 9/28/2017) (ap)

':"""""'"'l.r""."",..

, ........ ,.• ,...,.,...

uvvi.J .. li_s....... 't

.:.\.

ELECT::'..'J~\IC!:..LLY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

n
flLE~ j!
;!

noc tf.:
I

DATE FILED:

SCOTT SWEENEY,
Petitioner,
-v-

No. 12-CV-6483 (KMK) (LMS)
ORDER ADOPTING REPORT &
RECOMMENDATION

TIMOTHY LAFFIN, Superintendent,
Walkill C.F., Walkill, N. Y.,
Respondent. 1

KENNETH M. KARAS, District Judge:
Petitioner Scott Sweeney ("Petitioner"), proceeding pro se, files this Amended Petition
for a Writ of Habeas Corpus (the "Amended Petition") pursuant to 28 U.S.C. § 2254, challenging
his conviction for Burglary in the First Oegree, in violation ofN.Y. Penal Law§ 140.30,
Attempted Assault in the First Degree, in violation ofN.Y. Penal Law§§ 110.00 and 120.10,
Criminal Mischief in the Third Degree, in violation ofN.Y. Penal Law§ 145.05, and Criminal
Possession of a Weapon in the Fourth Degree, in violation ofN.Y. Penal Law§ 265.01. (See
Am. Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Am.
Pet.")~

5 (Dkt. No. 14); Resp't's Mem. of Law in Opp'n to the Pet. for a Writ of Habeas Corpus

("Resp't's Mem.") l (Dkt. No. 20).)
The case was referred to Magistrate Judge Lisa Margaret Smith, who issued a Report and
Recommendation (the "R&R"), recommending that the Court deny the Petition. (See Report &

1

i!

lj

------- -. =:......--:::.::::::.:-__:.:-;:-~..!,,

t.:::-::-:;:;;: ::=:: :.~~

At the time the Initial Petition was filed in 2012, David Unger was the Superintendent
of Wyoming Correctional Facility, where Petitioner was incarcerated at the time. Upon the filing
of the Amended Petition in 2014, Unger was replaced as Respondent with Timothy Laffin,
Superintendent at Walkill Correctional Facility, where Petitioner was incarcerated at the time of
the amended filing.

Recommendation ("R&R") 20 (Dkt. No. 37).) Petitioner subsequently filed timely objections to
the R&R (the "Objections"), which the Court has considered. For the reasons stated herein, the
Court adopts the R&R in its entirety and denies Petitioner's request for habeas relief.
I. Background
The factual and procedural background of this case is set forth in Judge Smith's R&R and
the Court assumes the Parties' familiarity therewith. (See R&R 2-5.) The Court nevertheless
summarizes the facts relevant to this Order.
In the late afternoon of May 22, 2008, Petitioner went to the residence of his sister, Shea
Pinson ("Pinson"), who previously had lent Petitioner approximately $30,000 over the course of
the preceding three years. (See Tr. 34-36.) 2 Pinson heard a loud banging at her front door and
then Petitioner entered the premises. (See id. at 36-37, 42.) Petitioner blamed Pinson for not
helping him finish college, not helping him stabilize his diabetes, and generally for his difficult
life. (See id. at 39.) In response, Pinson attempted to shut the front door, but Petitioner pushed
back, causing Pinson to fall. (See id. at 42.) Petitioner held an ax over Pinson's head, which she
was able to grab, thus leading to a struggle. (See id. at 42-44.) Pinson's teenage son called the
police, who soon thereafter arrived. (See id. at 44.) Pinson's front door was damaged during the
incident and had to be repaired. (See id. at 52-54.)
Petiti<;mer was indicted by a Westchester County grand jury on August 11, 2008 and
charged with Burglary in the First Degree, in violation ofN.Y. Penal Law§ 140.30, Attempted
Assault in the First Degree, in violation ofN.Y. Penal Law§§ 110.00 and 120.10, Criminal
Mischief in the Third Degree, in violation ofN.Y. Penal Law§ 145.05, Menacing in the Second
Degree, in violation ofN.Y. Penal Law§ 120.14, and Criminal Possession ofa Weapon in the

2

Citations to "Tr." refer to the transcript of Petitioner's trial held on January 14, 2009.

2

Fourth Degree, in violation ofN.Y. Penal Law§ 265.01. (See R&R 3.) The Menacing charge
was dropped by the prosecution and on Petitioner's consent. (See id. at 3 n.5.)
On April 9, 2009, judgment was rendered in the Westchester County Supreme Court,
convicting Petitioner, after a jury trial, of all the remaining charges and sentencing Petitioner to
two determinate prison terms of nine years to be followed by five years post-release supervision
for the burglary and attempted assault convictions, an indeterminate prison term of one and onethird to four years for the criminal mischief conviction, and a one-year prison term for the
weapons possession conviction. (See id.) All sentences ran concurrently. (See id.)
On April 21, 2009, Petitioner, then represented by Janet Gandolfo, Esq., filed a direct
appeal in the Appellate Division raising two claims: (1) there was insufficient evidence to
establish Petitioner's guilt beyond a reasonable doubt; and (2) the sentence imposed by the trial
court was excessive. (See id. at 3-4.) On November 9, 2010, Petitioner filed a supplemental pro
se brief in the Appellate Division, raising five claims: (1) there was insufficient evidence to
establish Petitioner's guilt beyond a reasonable doubt; (2) the jury instructions unlawfully shifted
the burden of proof to Petitioner; (3) the jury verdict was not supported by the weight of the
evidence; (4) Petitioner received ineffective assistance of counsel; and (5) Petitioner's arrest was
illegal and the evidence used against him was illegally obtained. (See id. at 4.) On May 17,
2011, the Appellate Division affirmed Petitioner's conviction. (See id.) On August 16, 2011, the
New York State Court of Appeals denied Petitioner's application for leave to appeal. (See id.)
On August 23, 2Q 12, Petitioner filed his initial petition (the "Initial Petition"), requesting
the Court stay his Initial Petition until Petitioner could file an application for a writ of error
coram nobis to exhaust a claim of ineffective assistance of counsel. (See Dkt. No. 2.) Petitioner

3

filed his corum nobis application on October 31, 2012. (See R&R 4.) The Court subsequently
granted Petitioner's motion to stay on January 8, 2013. (See Dkt. No. 11.)
On May 29, 2013, the Appellate Division denied Petitioner's coram nobis application,
and on December 19, 2013, the New York State Court of Appeals denied Petitioner's application
for leave to appeal. (See R&R 4.) On March 20, 2014, Petitioner filed the Amended Petition.
(See Am. Pet.) The Amended Petition raised three grounds for relief: (1) the evidence

introduced at trial was legally insufficient; (2) Petitioner was deprived of due process as a result
of the jury instructions impermissibly shifting the burden of proof to the defense; and (3)
Petitioner was deprived of effective assistance of counsel at the pre-trial, trial, and appellate
stages. (See generally id.) Respondent filed his opposition to the Amended Petition on June 19,
2014, (see Resp't's Mem.), and on August 25, 2014, Petitioner filed his reply, (see Dkt. No. 27).
Judge Smith issued the R&R on August 8, 2016, recommending that this Court deny
Petitioner's request for relief and dismiss the Amended Petition in its entirety. (See R&R 20.)
Petitioner requested an eight-month extension of time to submit his Objections to the R&R,
which the Court denied on August 25, 2016. (See Dkt. No. 38.) Petitioner was given 30 days to
file his Objections. (See id.) Petitioner subseqtJently filed his Objections on September 22,
2016. (See Pet'r's Objs. to Proposed Findings of Fact and Recommendation ("Pet'r's Objs.")
(Dkt. No. 39).)
II. Discussion
A. Applicable Law

1. Standard of Review
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

4

magistrate judge." 28 U.S.C. § 636(b)(l). Under 28 U.S.C. § 636(b)(l) 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,"

id.; see also 28 U.S.C. § 636(b)(l), plus an additional three days when service is made pursuant
to Federal Rules 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)(l).
"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. NY. State

Educ. Dep 't, 547 F. App'x 9 (2d Cir. 2013). In contrast, where a party timely submits objections
to a report and recommendation, as Petitioner has done here, the district court reviews de novo
the parts of the report and recommendation to which the party objected. See 28 U.S.C.

§ 636(b)(l); 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 ofthe [r]eport." Aponte v. Cunningham, No. 08-CV-6748, 2011WL1432037, at *1
(S.D.N.Y. Apr. 11, 2011) (italics omitted); see also Hall v. Herbert, No. 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

5

the formal litigation context, pro se litigants are held to a lesser pleading standard than other
parties." (italics omitted)). Because Petitioner is proceeding prose, 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).
2. Habeas Comus
a. Standard of 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)(l)-(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

6

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
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 .... "(emphasis added)
(citation omitted)).
Additionally, under AEDPA, the factual findings of state courts are presumed to be
correct. See 28 U.S.C. § 2254(e)(l); Nelson v. Walker, 121F.3d828, 833 (2d Cir. 1997). The
petitioner must rebut this presumption by "clear and convincing evidence." 28 U.S.C.
§ 2254(e)(l); see also Cotto v. Herbert, 331F.3d217, 233 (2d Cir. 2003) (same). Finally, only
federal law claims are cognizable in habeas proceedings. "[l]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.").

7

b. 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)(l)(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
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).
There are two components to the exhaustion requirement. See McCray v. Bennet, No. 02CV-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, Daye v. Att'y Gen., 696 F.2d 186, 195 (2d Cir. 1982) (en bane); see also Turner v.
Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (same); Oliver v. Kirkpatrick, No. 06-CV-6050, 2012
WL 3113146, at *5 (E.D.N.Y. July 31, 2012) (same). This requirement is satisfied ifthe claim is

8

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. Vi;1cco, 126 F.3d 408, 413 (2d Cir. 1997)
(alteration in original) (internal quotation marks omitted); see also Bermudez v. Conway, No. 09CV-1515, 2012 WL 3779211, at *8 (E.D.N.Y. Aug. 30, 2012) (same). In other words, a state
prisoner need not cite "chapter and verse of the Constitution'' to satisfy this requirement. Daye,
696 F.2d at 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

9

(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.
§ 44Q.10(2)(c); see also O'Kane v. Kirkpatrick, No. 09-CV-5167, 2011WL3809945, at *7
(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 2011WL3918158 (S.D.N.Y. Aug. 25, 2011).

In addition, New York permits only one application for direct review. See N.Y. Comp.
Codes R. & Regs. tit. 22, § 500.20(a)(2); Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir. 2006)
("[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." See Sparks, 2012 WL 4479250, at *4. Accordingly, in those
situations, a petitioner no longer has any av.ailable 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 v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)
(noting the reality that deeming an unpresented claim to be exhausted is "cold comfort"). A

10

dismissal of a habeas petition on such grounds is a "disposition ... on the merits." Id. "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, 541U.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. Application
Petitioner's Objections are difficult to follow, and, for the most part, repeat the same
arguments advanced in his Amended Petition, without substantively addressing, or referring to,
Judge Smith's recommendations. The Court construes Petitioner's principal objections to be that
(I) Petitioner's pre-trial, trial, and appellate counsel "conce[ ded] [certain arguments] through

[w]aiver and [f]orfeit," failed to "promote [his] rights," and "neglect[ed] to [i]nvestigate/[l)ocate
a suitable ... [e]xpert [w]itness"; and (2) Petitioner has a colorable claim of "actual innocence,"
as "the only thing which is [s]ubstantiating the [e]lements of the [c]harges[] is ... Pinson['s]
[t]estimony." (Pet'r's Objs. 2-3, 6, 8-9 (emphasis and internal quotation marks omitted).) The
Court addresses each argument below.
1. Ineffective Assistance of Counsel
Petitioner "specifically objects to the fact that ... Magistrate Judge[] [Smith's] Report
and Recommendation" "depend[s] on ... the Appellate Division['s] ... Direct Appeal
[d]ecision," with respect to his claims for legal insufficiency, the Sandstrom charge, the failure to
produce an expert witness, and ineffective assistance of counsel. (Id. at 5 (emphasis and internal

11

quotation marks omitted); see also id. at 6 ("Petitioner specifically objects to the oblivious
presumption of the absolute [l]egitimacy of the Appellate Division ... decision, when it is
deriv[ed] from an appallingly insubstantial effort at [c]onstitutionally mandated [a]ppellate
[r]epresentation.").) Petitioner effectively contends that, with respect to each of the aboveidentified issues, "had the same material been handled by a competently trained advocate, one
would have to admit [to] the potential of a vastly superior outcome[] to the present one" and that
"Petitioner's [Fifth, Sixth, and Fourteenth Amendment] [r]ights were adversely impinged by
[c]ounsel's deficient contribution to his active [d]efen[s]e." (Id. at 5.)
As Judge Smith noted in her R&R, in Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court set forth the standard for assessing claims of ineffective assistance of counsel.
(See R&R 13.) Under Strickland, counsel's errors must be shown to have been "so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. In addition, Petitioner must show that he was prejudiced by the
deficient performance. See id.
As to the legal sufficiency claim, as Judge Smith correctly notes, this issue was first
raised in Petitioner's direct appeal and again in his Amended Petition. (See R&R 10.) The
Appellate Division found that the contemporaneous objection rule barred Petitioner's claim.
(See id.) Petitioner raises no objection to Judge Smith's finding that he "failed to allege cause

for the default, let alone establish cause and prejudice arising therefrom, or that failure to review
his claim [would] result in a fundamental miscarriage of justice." (Id.) The Court agrees that
this claim is procedurally barred and that, in light of Petitioner raising the issue himself on direct
appeal, there is no indication that appellate counsel's efforts to do so would have been
successful.

12

With respect to the "Sandstrom [c]harge," (Pet'r's Objs. 2 (italics added)), Petitioner also
raised this issue in his pro se supplemental brief on direct appeal, (see R&R 11 ). The Appellate
Division rejected the argument on state procedural grounds, and Judge Smith found such claim
procedurally barred. (Id.) Petitioner, again, identifies no objection to Judge Smith's finding, and
indeed, notes that appellate "[c]ounsel made a reasonable [s]trategic [c]hoice not to present" an
ineffective assistance claim in connection with trial counsel's failure to raise a claim regarding
the jury charge. (Pet'r's Objs. 3 (emphasis and internal quotation marks omitted).)
As to the failure to procure a "[f]orensic [t]ool-[m]ark [e]xpert," Petitioner describes this
as "another opportunity[] foregone by [c ]ounsel." (Id. at 7 .) Petitioner offers no response to
Judge Smith's finding that "[i]t is entirely speculative ... that an expert witness would have been
able to testify that Petitioner's ax could not have made the dents in Pinson's door" and that he
"failed to offer ... any ... evidence in support of his bare assertion that such testimony may
have supported his defense." (R&R 17.) In the absence of any evidence as to how a tool-mark
expert could have altered the outcome of Petitioner's trial, the Court adopts Judge Smith's
findings with respect to the decision not to retain an expert witness. See Bennett v. United States,
No. 03-CV-1852, 2009 WL 3614613, at *12 (S.D.N.Y. Nov. 3, 2009) (rejecting the petitioner's
argument that effective counsel would have changed the result of his trial as "sheer
speculation"), aff'd, 663 F.3d 71 (2d Cir. 2009).
Each of the claims Petitioner now raises with regard to ineffective assistance of counsel is
identical to those raised either "as part of his direct appeal" in his prose supplemental brief or in
the Amended Petition. (R&R 19.) These claims were rejected by the Appellate Division and
Judge Smith as meritless, and the Court agrees. To the extent Petitioner again contends that his
appellate counsel should have raised such claims in connection with his pre-trial and trial

13

representation, Judge Smith found that "[s]ince Petitioner himself raised these assertions as part
of his direct appeal and the Appellate Division affirmed his conviction, there is no reasonable
possibility that if appellate counsel had raised [them], the result of Petitioner's appeal would
have been different." (Id.) For the foregoing reasons, the Court rejects Petitioner's objections
regarding ineffective assistance of counsel. 3
2. Actual Innocence
Petitioner contends that "the only thing ... [s]ubstantiating the [e]lements of the
[c]harges[] is ... Pinson['s] [t]estimony" and "[g]iven [c]ounsel and [a] [h]earing for [n]ew
[e]vidence[,] [he is] certain sufficient [d]oubt could be cast upon that [e]vidence." (Pet'r's Objs.
9 (emphasis and internal quotation marks omitted).)
In "extraordinary case[s]," a court may review a procedurally defaulted habeas claim in
order to avoid a "fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 321 ( 1995);

see also Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (explaining that in "extremely rare"
cases, "a petitioner may use his claim of actual innocence as a 'gateway,' or a means of excusing
his procedural default, that enables him to obtain review of his constitutional challenges to his
conviction" (some internal quotation marks omitted)). However, this exception is expressly
limited to situations where a petitioner presents a claim of actual innocence. See Schlup, 513
U.S. at 321 (noting that this exception is "explicitly tied ... to the petitioner's innocence"). "[A]
claim of actual innocence must be both credible and compelling. For the claim to be credible, it
must be supported by new reliable evidence--whether it be exculpatory scientific evidence,

3

To the extent Petitioner "specifically objects to the complete absence of any and all
reference to Petitioner's 'Collateral Attack, "'-his writ of error coram nobis-this argument is
belied by the record. (Pet'r's Objs. 6.) The R&R acknowledges that Petitioner filed a prose
application for a writ of error coram nobis, (see R&R 4), and identifies that his ineffective
assistance of counsel arguments were raised in the coram no bis application, (see id at 12).

14

trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial."
Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (citations and internal quotation marks
omitted). "For the claim to be compelling, the petitioner must demonstrate that more likely than
not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable
doubt .... " Id. (internal quotation marks omitted).
Despite the fact that "the definition of 'new' evidence remains an open question in th[ e]
[Second] Circuit," Tuitt v. Martuscello, No. 12-CV-1003, 2013 WL 5508385, at* 15 n.16
(S.D.N.Y. Oct. 3, 2013); see also Bowman v. Racette, No. 12-CV-4153, 2015 WL 1780159, at
*3 (S.D.N.Y. Apr. 20, 2015) ("[T]he definition of 'new' evidence under the Schlup standard
appears to be an open question in this Circuit.''), Petitioner offers no indication of what "new
evidence" he would offer to make his claim "credible" under Rivas. Attached to Petitioner's
Objections are (I) the Decision & Order of the Appellate Division, issued May 17, 2011; (2) a
visitors log showing visits from certain of Petitioner's counsel; and (3) a single page of text
written by Petitioner, appearing to describe some of the circumstances surrounding his arrest.
(See Pet'r's Objs. at unnumbered 10-13.) None of these documents appears to reflect "new
evidence" supporting a claim of actual innocence. 4
Insofar as Petitioner advances a freestanding actual innocence claim as a ground for
habeas relief, the Court notes that the Supreme Court "has never expressly held that a petitioner
may qualify for habeas relief based solely on a showing of actual innocence." Rivas, 687 F.3d at

4

To the extent Petitioner attaches the visitors log to indicate that trial counsel was
ineffective because counsel waited until the business day before trial started to visit Petitioner,
the Court notes that this argument was raised in the Amended Petition and therefore is not new
evidence. (See Am. Pet. 4-5 ("The County Jail Visitor Log ([c]opy included with
[s]upplemental [p]ro-se [b]rief[]) will show first [t]rial [c]ounsel 'Interview' happened the
Friday, right before fj]ury [s ]election began that Monday .... ").)

15

540 & n.34; see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) ("We have not
resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of
actual innocence."). However, even if a freestanding actual innocence claim could warrant
habeas relief, Petitioner has failed to make such a showing because "the threshold for any
hypothetical freestanding innocence claim [i]s 'extraordinarily high,"' and such a showing
"requires more convincing proof of innocence" than the showing of innocence necessary to
satisfy Schlup. House v. Bell, 547 U.S. 518, 555 (2006) (quoting Herrera v. Collins, 506 U.S.
390, 417 (1993)). Because Petitioner fails to satisfy the Schulp standard, he cannot satisfy the
more stringent requirements for any freestanding innocence claim. Moreover, Petitioner
concedes that this claim "technically ... has not ... been raised, p[ u ]rsued, or indeed,
preserved." (Pet'r's Objs. 8.) Accordingly, the Court rejects Petitioner's claim of actual
innocence.
Ill. Conclusion
For the reasons stated above, the Court adopts, after a de novo review, Judge Smith's
R&R. Petitioner's writ of habeas corpus is thus dismissed with prejudice.
As Petitioner has not made a substantial showing 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 107, 111-12 (2d Cir. 2000), and the Court further certifies,

pursuant to 28 U .S.C. § l 9 l 5(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. 2010)

16

(citing Coppedge and noting that an appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith).
The Clerk of Court is respectfully directed to enter a judgment in favor of Respondent,
send a copy of this Order to Petitioner at the address listed on the docket, and to close the case.

SO ORDERED.
DATED:

ai ,

2017
September
White Plains, New York

17