Coleman v. Racette

Filing 24

REPORT AND RECOMMENDATIONS: For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 48384 (2000). The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner. (Signed by Magistrate Judge Judith C. McCarthy on 2/27/2019) (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
ANTHONY COLEMAN,
Petitioner,
REPORT AND
RECOMMENDATION

-against-

15 Civ. 4904 (NSR)(JCM)

STEVEN RACETTE,
Respondent.
--------------------------------------------------------------X
To the Honorable Nelson S. Román, United States District Judge:

Petitioner Anthony Coleman (“Petitioner”), proceeding pro se, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). 1 (Docket No. 2). Respondent
opposed the Petition, (Docket No. 15), and Petitioner replied, (Docket No. 19). For the reasons
set forth below, I respectfully recommend that the Petition be denied in its entirety.
I. BACKGROUND
A. The Crime and Arrest
Petitioner’s incarceration arises from an incident in which he was found in possession of
a loaded semi-automatic pistol and additional cartridges. Construing the evidence in the light
most favorable to the state, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the
following facts were established at trial.
On January 26, 2010, at approximately 10:50 p.m., Yonkers Police Officers Robert
McLaughlin and Neil Vera were on patrol in a marked police vehicle when they drove past an

1

A pro se prisoner’s papers are deemed filed at the time he or she delivers them to prison authorities for forwarding
to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir.
2005) (analyzing the Houston “prison mailbox rule”). Petitioner certified that he delivered his original Petition to
prison authorities for mailing on June 15, 2015. (Docket No. 2 at 15). Unless otherwise noted, the Court adopts
Petitioner’s dates for this filing and for all other filings discussed herein.

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apartment building at 175 Stanley Avenue, Yonkers, New York. (Trial Transcript 2 at 200–02).
The officers observed approximately ten individuals standing on an outdoor landing on the
second floor of the building. (Id. at 202, 229). The officers circled the area, parked the vehicle in
front of a bar on Riverdale Avenue, and began walking through a wooded area towards the rear
of the apartment building. (Id. at 202–03). Officers Thomas Spaun and Tim Cooper, who were
on patrol in another police vehicle, parked in front of 175 Stanley Avenue and walked towards
the front of the building. (Id. at 288–89).
As Officers McLaughlin and Vera approached the rear of the building, Officer
McLaughlin observed Petitioner wearing a black and blue bookbag among the individuals on the
landing. (Trial Transcript at 203, 207). Officer Spaun also saw Petitioner wearing a dark colored
bookbag from the front of the building. (Id. at 294). Petitioner faced Officer McLaughlin’s
direction, backed away from the group, and attempted to enter an apartment. (Id. at 203–04, 291–
92). Following this, both McLaughlin and Spaun observed Petitioner approach the stair railing
and throw the bookbag over the railing, which landed approximately five feet away from where
McLaughlin was positioned. (Id.). Officer McLaughlin saw a barrel of a firearm and a portion of
a magazine clip attached to the firearm protruding from the bookbag. (Id. at 204–05). Following
this, Officer McLaughlin announced that there was a gun in the bag over his radio. (Id. at 205–
07).
Officer Spaun heard Officer McLaughlin’s announcement. (Trial Transcript at 292). As
he approached the landing stairs, Spaun ordered the group of ten individuals to the ground. (Id.).
Officer Cooper handcuffed Petitioner and Officer Spaun called for back-up over the radio. (Id. at

2

Refers to Petitioner’s criminal trial transcript, dated March 23–24 and 28, 2011. The transcripts related to
Petitioner’s criminal matter were not filed on ECF. However, counsel for Respondent provided the Court copies of
the transcripts and certified that they were sent to Petitioner.

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293). While Officer Vera remained with the bookbag, Officer McLaughlin walked up the stairs
and confirmed that Petitioner was the individual who he saw throw the bag over the railing. (Id.
at 207, 236–37). Following this, Officer McLaughlin returned to the bag and removed the
firearm and the magazine clip. (Id. at 209). The firearm was a nine-millimeter semi-automatic
pistol, known as a Luger, loaded with a round in the chamber and 18 cartridges in the magazine.
(Id. at 212, 280–81, 284). Officer McLaughlin unloaded the firearm and discovered additional
rounds of ammunition as well as a t-shirt in the bookbag. (Id. at 209, 240).
The Crime Scene Unit responded shortly thereafter and took possession of the firearm,
magazine clip, ammunition and bookbag. (Trial Transcript at 210, 241–42). Following this,
Officer McLaughlin returned to the second floor, took custody of Petitioner, and transported him
to the detective division. (Id. at 242). Ballistic testing later confirmed that the firearm was
operable. (Id. at 280, 283).
B. Suppression Hearing
On February 22, 2011, the court conducted a Mapp/Dunaway hearing to determine the
admissibility of the recovered firearm and ammunition. (Feb. 22, 2011 Transcript 3 at 14–15).
Petitioner’s counsel argued that evidence should be suppressed because Petitioner’s initial stop
was unlawful. (Id. at 57–58). 4 After hearing testimony from Officer McLaughlin, (id. at 16–38),
the court determined that the officers’ initial stop and seizure of Petitioner was lawful, (id. at 64–
66). The court therefore ruled that the recovered evidence could be used at trial. (Id. at 70).

3

Refers to the suppression hearing transcript dated February 22, 2011.

4

The court also conducted a Huntley hearing to determine the voluntariness of a statement given by Petitioner to
Detective Scott Griffith following his arrest. (Feb. 22, 2011 Transcript at 38–53). The court found that Petitioner’s
statement was not obtained through impermissible coercion and could be used at trial. (Id. at 68). However, the
prosecution did not call Detective Griffith to testify at trial. (See generally Trial Transcript).

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C. Motion to Withdraw as Counsel
Attorney Ada Medina (“Attorney Medina”) represented Petitioner during the criminal
trial. On March 22, 2011—one day before the trial was scheduled to begin—Attorney Medina
requested that she be relieved as trial counsel for Petitioner. (March 22, 2011 Transcript 5 at 2).
As grounds for withdrawal, Attorney Medina claimed that she became a trial witness because a
key witness for Petitioner went missing and she was the only person who spoke to him. (Id.).
The missing witness was Montay Vaden, who told Attorney Medina during a conversation in
February 2010 that he possessed the firearm on the night Petitioner was arrested. (Id. at 2–3, 6,
9–11). Attorney Medina argued that Vaden’s statement was admissible as a declaration against
penal interest. (Id. at 4). However, the court ultimately determined that Vaden’s statement was
not admissible:
[t]he fact that this individual called you up over a year ago to say he was at the
location of the crime and he had the gun, does not exonerate your client. It doesn’t
mean your client didn’t have the gun. He never said the defendant never had the
gun and it doesn’t go toward that reliability factor at all either . . . no one is coming
forward to underline [sic] the trustworthiness of this statement made by this
individual who doesn’t really take your client off the hook. He may be inculpating
himself, but he is not saying your client didn’t have it.
(Id. at 15–16). Consequently, the court denied Attorney Medina’s request to withdraw as
counsel to testify as a witness at trial. (Id. at 16).
D. Jury Selection
The court conducted jury selection on March 23, 2011. (Trial Transcript at 1). During
jury selection, one prospective juror told the court that she overheard another prospective juror
say, “very abusive things verbally about the law, the Court, using bad language.” (Id. at 133–34).
The prospective juror who overheard the remarks stated, “I thought this person is really angry

5

Refers to the pre-trial conference transcript, dated March 22, 2011.

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and I wouldn’t want to serve with him.” (Id. at 134). Both of these prospective jurors were
excused on consent. (Id. at 123, 179–80).
E. The Trial
Petitioner’s trial was conducted from March 23 to 28, 2011. The prosecution called
Officer Robert McLaughlin, Detective Roger Piccirilli, Detective Frank Nicolosi and Officer
Thomas Spaun as witnesses. (Trial Transcript at 200, 263, 277, 286). Defense counsel crossexamined each witness, (id. at 257, 275, 285, 301), but did not put on a direct case or call any
additional witnesses, (id. at 317). Following the prosecution’s case-in-chief, defense counsel
moved to dismiss the indictment as a matter of law, arguing that the prosecution failed to present
a prima facie case. (Id. at 314). The trial court denied Petitioner’s motion to dismiss. (Id. at 315).
F. Verdict and Sentencing
On March 28, 2011, the jury found Petitioner guilty of one count of criminal possession
of a weapon in the second degree. (Trial Transcript at 368–69). During Petitioner’s sentencing
hearing, the court found Petitioner to be a violent predicate felony offender because Petitioner
was previously convicted of first-degree robbery in October 1998. (Sentencing Hearing
Transcript 6 at 2–3). Accordingly, the court sentenced Petitioner to ten years of imprisonment to
run consecutively with Petitioner’s incarceration for an unrelated criminal matter, with five years
post-release supervision. (Id. at 7).
G. N.Y. CPL § 440.10 Motion
Pursuant to C.P.L. § 440.10 (“§ 440.10”), Petitioner filed a pro se post-judgment motion
dated June 26, 2012, arguing that he was denied effective assistance of counsel because his
counsel failed to request that Ronald Mack, Kevin Lewis, Maritza Santiago and Montay Vaden

6

Refers to Petitioner’s sentencing hearing transcript, dated May 17, 2011.

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testify before the grand jury or call them as trial witnesses. (Docket No. 15-1 at 7–11). The state
opposed. (Docket No. 15-2). On November 16, 2012, Petitioner filed a supplemental brief to his
§ 440.10 Motion, which included an affidavit from Kevin Lewis. (Docket No. 15-4). The state
submitted a supplemental affirmation in opposition. (Docket No. 15-5).
Petitioner’s trial counsel submitted an affirmation after Petitioner waived attorney-client
privilege. (Docket No. 15-3). The affirmation detailed Attorney Medina’s efforts to contact
Petitioner’s witnesses. On January 29, 2010, Attorney Medina attempted to contact Montay
Vaden 7 and Maritza Santiago through phone numbers provided by Petitioner, but she was unable
to speak with either witness. (Id. at 2–3). On February 1, 2010, Petitioner provided Attorney
Medina with additional witness names, including Ronald Mack, and a home address for Mack.
(Id. at 3). However, Petitioner only provided nicknames for the other witnesses. (Id.). He did
not provide their legal name or contact information. (Id.). That same day, Attorney Medina
received a call from Vaden, who “indicated that the gun belonged to him and that he was willing
to sign an affidavit.” (Id.). On February 17, 2010, Attorney Medina’s investigator attempted to
speak with Vaden and Mack at their homes, but he was unable to locate either individual. (Id. at
4).
On March 24, 2010, evidence was presented to the grand jury in the underlying criminal
matter. (Docket No. 15-3 at 4). Attorney Medina did not request that Petitioner’s witnesses
testify because she had been unable to secure any witness statements or meet in-person with
Vaden. (Id.). Following Petitioner’s indictment, Attorney Medina encouraged Petitioner, who
was released on bail, to locate the potential witnesses. (Id. at 4–5). Petitioner made an
appointment with Attorney Medina to meet at 175 Stanley Avenue with his witnesses on July 7,

7

Attorney Medina believed Vaden’s surname was “Daden” until the March 22, 2011 pre-trial conference. (See
Docket No. 15-3 at 2, 8).

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2010. (Id. at 5). However, upon arrival, only Petitioner, Mack, and a few neighbors who did not
witness the incident were present. (Id.). Moreover, Attorney Medina could not speak to Mack
because he was represented by an attorney in a separate criminal matter. (Id.).
Between August and December 2010, Petitioner informed Attorney Medina that he could
not locate Vaden, and that he was “in the wind.” (Docket No. 15-3 at 6). At some point,
Attorney Medina received permission to speak with Mack, but Mack did not show up for a
scheduled meeting or return Attorney Medina’s phone calls. (Id.). On March 10, 2011, Attorney
Medina attempted to call Petitioner’s witnesses with updated phone numbers. (Id. at 6–7).
Attorney Medina was able to speak with Kevin Lewis. (Id. at 7). Lewis stated that he was
present during the incident, but he did not see anyone with a bookbag or observe anyone throw
anything over the railing. (Id.). Attorney Medina spoke with an additional witness named Tyson
Bracey, who stated that he was unable to observe the alleged crime. (Id.).
On March 14, 2011, Attorney Medina’s investigator spoke with Vaden and set up an
appointment to meet in-person. (Docket No. 15-3 at 7). However, Vaden did not appear for the
meeting. (Id.). Attorney Medina also set up an appointment to meet with Mack on March 17,
2011. (Id.). At the meeting, Mack claimed that Petitioner did not have the bookbag. (Id.).
However, Mack also provided statements that Attorney Medina believed to be contrary to
Petitioner’s version of events. (Id.). Further, based on Mack’s vantage point on the night in
question, Attorney Medina determined that Mack would not have been able to see who had the
bookbag. (Id.).
On March 22 and 23, 2011, Attorney Medina’s investigator attempted to serve trial
subpoenas on Vaden, Mack, Santiago, Lewis and Bracey. (Docket No. 15-3 at 8). The
investigator successfully served Santiago and Lewis, but was unable to locate anyone at Mack or

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Vaden’s known addresses. (Id.). The investigator was informed that Vaden went to
Hendersonville, Tennessee. (Id.). The investigator served Mack via nail-and-mail. (Id.).
Santiago was the only witness who appeared for trial. (Id. at 9). Prior to trial, Santiago told
Attorney Medina that she was unable to observe any of the people on the second-floor landing
and she did not see anyone throw anything over the railing. (Id.). Accordingly, Attorney Medina
opted not to call Santiago to testify. (Id.).
By Decision and Order dated May 30, 2013, the court denied Petitioner’s ineffective
assistance of counsel claim. (Docket No. 15-6). It held that Petitioner failed to establish that his
trial counsel was ineffective because: (i) there was no indication that any of the four witnesses
were available to testify before the grand jury; (ii) Lewis and Vaden were unavailable to testify
at trial; and (iii) trial counsel reasonably chose not to call Mack or Santiago due to credibility
concerns and the fact that neither confirmed they were able to see the bookbag at issue. (Id. at
10–11). Petitioner sought leave to appeal this decision, (Docket No. 15-7), which was denied on
December 26, 2013, (Docket No. 15-8).
H. Direct Appeal
Petitioner’s appellate counsel submitted a brief to the Supreme Court of the State of New
York, Appellate Division, Second Judicial Department (the “Second Department”), raising four
challenges to Petitioner’s conviction: (i) the trial court failed to suppress the evidence recovered
as the fruit of an unlawful stop; (ii) the trial court erred in denying admission of Montay Vaden’s
declaration against penal interest; (iii) the trial court failed to investigate the jury pool’s alleged
prejudice stemming from the comments made by one of the prospective jurors; and (iv)
ineffective assistance of trial counsel. (Docket No. 15-9). Petitioner claimed trial counsel was
ineffective due to her failure to: (i) request a continuance to locate Montay Vaden, (ii) call Kevin
Lewis and Martiza Santiago as witnesses, (iii) renew the application for admission of Montay
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Vaden’s statement, (iv) request a missing witness charge for Kevin Lewis, or (v) ask any
questions during jury selection regarding potential jurors impartiality given their disclosures as
crime victims and contacts with law enforcement. (Id. at 51–62). The state opposed. (Docket
No. 15-10). By Decision and Order dated December 19, 2014, the Second Department affirmed
Petitioner’s conviction and sentence. (Docket No. 15-11).
By letter dated March 11, 2015, Petitioner, through his counsel, sought leave to appeal
the Second Department’s decision to the New York State Court of Appeals (the “Court of
Appeals”). (Docket No. 15-12). The Court of Appeals denied Petitioner’s leave application on
May 11, 2015. (Docket No. 15-13).
I. Habeas Corpus Petition
Petitioner timely filed the instant pro se Petition. (Docket No. 2). Respondent filed an
opposition (“Opposition”) to the Petition. (Docket No. 15). Petitioner submitted a reply
(“Reply”) in further support of his Petition. (Docket No. 19).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). “Before a
federal district court may review the merits of a state court criminal judgment in a habeas corpus
action, the court must first determine whether the petitioner has complied with the procedural
requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER)
(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). 8 The procedural and substantive
standards are summarized below.

8

In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of
the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and other

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A. Timeliness Requirement
Federal habeas corpus petitions are subject to AEDPA’s strict, one-year statute of
limitations. 28 U.S.C. § 2244(d)(1). The statute allows for four different potential starting points
to determine the limitations period and states that the latest of these shall apply. As the statute
explains:
A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). However, this one-year period will be tolled during the
pendency of a properly filed application for post-conviction relief. 28 U.S.C. § 2244(d)(2). This
period may also be subject to equitable tolling, but “only in the rare and exceptional
circumstance.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (internal quotation marks
omitted); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)) (setting forth a two-step analysis for equitable tolling).

cases, infra, that are unpublished or only available by electronic database, accompany this Report and
Recommendation and shall be simultaneously delivered to pro se Petitioner.

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B. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in
state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) 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(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
...
(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.
28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the
same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz,
262 F.3d 118, 123 (2d Cir. 2001) (internal quotation marks omitted). If a petitioner “cites to
specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly
presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir.
2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference
to the Fourteenth Amendment” presents a federal constitutional claim to the state courts).
However, a petitioner may fairly present his claim even without citing to the U.S. Constitution.
As the Second Circuit has stated:
the ways in which a state defendant may fairly present to the state courts the
constitutional nature of his claim, even without citing chapter and verse of the
Constitution, include (a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases employing constitutional analysis
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in like fact situations, (c) assertion of the claim in terms so particular as to call to
mind a specific right protected by the Constitution, and (d) allegation of a pattern
of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation
includes petitioning for discretionary review in the state’s highest appellate court. See O’Sullivan
v. Boerckel, 526 U.S. 838, 839–40 (1999) (“[A] state prisoner must present his claims to a state
supreme court in a petition for discretionary review in order to satisfy the exhaustion
requirement[.]”).
However, “a federal habeas court need not require that a federal claim be presented to a
state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v.
Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation marks omitted). In such cases,
although the claim is technically unexhausted, the district court may deem the claim to be
exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally
defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state
remedies and the court to which the petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims procedurally barred.’” (quoting
Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v.
People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan.
19, 2017) (citing N.Y. Ct. App. R. § 500.20); 9 see also Roa v. Portuondo, 548 F.Supp.2d 56, 78
(S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would
be rejected because a criminal defendant is entitled to only one direct appeal and one application

9

This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no
application for the same relief has been addressed to a justice of the Appellate Division, as only one application is
available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).

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for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by
direct appeal rather than by a collateral motion in state court. See, e.g., O’Kane v. Kirkpatrick,
No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll
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.”), report and recommendation adopted, 2011 WL
3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09 Civ. 0058T, 2011 WL 90996,
at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim—by way of another CPL § 440
motion—is also barred because the claim is a matter of record that could have been raised on
direct appeal, but unjustifiably was not.)” (citing N.Y. C.P.L. § 440.10(2)(c)). 10
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause
for the default and prejudice, or that failure to consider the claim will result in miscarriage of
justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir.
2003).
C. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law
presented in a habeas petition when the state court’s decision rests upon a state-law ground that
‘is independent of the federal question and adequate to support the judgment.’” Cone v. Bell, 556
U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729); see also Downs v. Lape, 657 F.3d 97,
23 (2d Cir. 2011). This preclusion applies even if the state court alternatively rules on the merits

10

N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment
when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have
permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such
appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal
during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually
perfected by him.”

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of the federal claim, so long as there is an adequate and independent state ground that would bar
the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v.
Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent’ when it ‘fairly appears’ to rest primarily on
state law.” Taylor v. Connelly, 18 F. Supp. 3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v.
Walker, 458 F.3d 130, 138 (2d Cir. 2006)). In the normal case, a ground is adequate “only if it is
based on a rule that is ‘firmly established and regularly followed’ by the state in question.”
Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423–24 (1991)); see also Cotto
v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is
inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d
at 77 (internal quotation marks omitted). However, “there are ‘exceptional cases in which
exorbitant application of a generally sound rule renders the state ground inadequate to stop
consideration of a federal question.’” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S.
362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should
be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court,
and whether perfect compliance with the state rule would have changed the trial
court’s decision; (2) whether state caselaw indicated that compliance with the rule
was demanded in the specific circumstances presented; and (3) whether petitioner
had substantially complied with the rule given the realities of trial, and, therefore,
whether demanding perfect compliance with the rule would serve a legitimate
governmental interest.
Id. (internal quotation marks omitted).
To avoid a procedural default based on independent and adequate state grounds, a
petitioner must “show ‘cause’ for the default and ‘prejudice attributable thereto,’ . . . or

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demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of
justice.’” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)).
D. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a
“highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a
writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning
that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to
judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks
omitted). Courts examine the “last reasoned decision” by the state courts in determining whether
a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)
(“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained
orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
“[W]hen a state court issues an order that summarily rejects without discussion all the claims
raised by a defendant, including a federal claim that the defendant subsequently presses in a
federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the
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federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013)
(emphasis in original). The same presumption applies when “a state court rules against the
defendant and issues an opinion that addresses some issues but does not expressly address the
federal claim in question.” Id. at 292. This “presumption is a strong one that may be rebutted
only in unusual circumstances.” Id. at 302.
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA
deference to that state court ruling. 11 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA
deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the
dicta, of [the Supreme Court of the United States’] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is
contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing
law set forth in the Supreme Court’s cases or if the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a
result different from its precedent.’” Lewis v. Conn. Comm’r of Corr., 790 F.3d 109, 121 (2d Cir.
2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)).
A state court decision involves an “unreasonable application” of Supreme Court
precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court]
cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or (2) “the
state court either unreasonably extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state

11

If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required. .
. . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v.
Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).

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court’s application of Supreme Court precedent unreasonable, the state court’s decision must
have been more than “incorrect or erroneous” -- it must have been “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court’s determination that
a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court’s decision need not teeter on
‘judicial incompetence’ to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229
(2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court
decision does not contain reasons for the dismissal of a defendant’s federal claim, the Court must
“consider ‘what arguments or theories . . . could have supported[] the state court’s decision,’ and
may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories
are inconsistent with the holding in a prior decision of’ the Supreme Court.” Lynch v.
Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter,
562 U.S. at 102).
III. DISCUSSION
Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir.
1983) (“pleading requirements in habeas proceedings should not be overly technical and
stringent”), the Court finds that Petitioner asserts the following grounds for relief. First,
Petitioner argues that the trial court should have suppressed the evidence recovered during his
arrest because the initial stop was unlawful. (Petition 12 at 5). Second, Petitioner maintains that
the trial court erred in denying admission of Montay Vaden’s declaration against penal interest.
(Id. at 7). Third, Petitioner contends that the trial court failed to inquire into whether the jury

12

Refers to Petitioner’s habeas corpus petition. (Docket No. 2).

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pool was prejudiced as a result of the comments made by one of the prospective jurors. (Id. at 8).
Fourth, Petitioner claims that his trial counsel deprived him of effective assistance of counsel by
failing to: (i) request that his witnesses testify before the grand jury, (ii) conduct an adequate pretrial investigation, (iii) request that the court investigate the jury pool’s prejudice, (iv) request a
continuance to locate Montay Vaden, (v) request a missing witness charge for Kevin Lewis, and
(vi) call Petitioner’s witnesses at trial. (Id. at 10).
Respondent argues that the Petition should be denied for several reasons. First,
Respondent asserts that Petitioner’s declaration against penal interest allegation fails to state a
federal claim and lacks merit. (Opp. 13 at 5). Second, Respondent maintains that Petitioner’s jury
selection claim is procedurally barred and otherwise without merit. (Id. at 19). Finally,
Respondent contends that Petitioner’s ineffective assistance of counsel claims are without merit.
(Id. at 24). Respondent did not address Petitioner’s contention that the initial stop was unlawful.
At the outset, the Court notes that the Petition was timely filed. The Court of Appeals
denied Petitioner’s leave application on May 11, 2015, (Docket No. 15-13), and Petitioner
certified that he delivered his Petition to prison authorities for mailing on June 15, 2015, (Docket
No. 2 at 15). For the reasons that follow, I respectfully recommend that the Petition be denied in
its entirety.
A. Fourth Amendment Suppression Claim
Petitioner challenges the admission of the pistol and ammunition recovered from the
bookbag arguing that it was the fruit of an unlawful stop. In Stone v. Powell, the Supreme Court
held that “where the State has provided an opportunity for full and fair litigation of a Fourth

13

Refers to Respondent’s opposition to the Petition. (Docket No. 15). Citations to Respondent’s opposition and all
briefs refer to the ECF page number.

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Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428
U.S. 465, 494 (1976) (citations omitted). Accordingly, “habeas review of Fourth Amendment
claims is allowed ‘in only one of two instances: (a) if the state has provided no corrective
procedures at all to redress the alleged fourth amendment violations; or (b) if the state has
provided a corrective mechanism, but the defendant was precluded from using that mechanism
because of an unconscionable breakdown in the underlying process.’” Garcia v. Lee, No. 10 Civ.
5287 (JPO) (JLC), 2012 WL 3822137, at *17 (S.D.N.Y. Aug. 28, 2012), report and
recommendation adopted, 2014 WL 406209 (S.D.N.Y. Feb. 3, 2014) (quoting Capellan v. Riley,
975 F.2d 67, 70 (2d Cir. 1992)).
Here, Petitioner does not argue that New York failed to provide a corrective procedure to
redress his alleged Fourth Amendment claim, nor could he. The Second Circuit has recognized
that New York provides a full and fair opportunity to litigate Fourth Amendment claims. See
Capellan, 975 F.2d at 70 n. 1 (“the federal courts have approved New York’s procedure for
litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. . . ., as
being facially adequate.”) (internal quotation marks and citation omitted). Moreover, there is no
evidence indicating that there was an unconscionable breakdown in the underlying suppression
process. The trial court held a suppression hearing, which included witness testimony and crossexamination, prior to denying Petitioner’s motion to suppress. (Feb. 22, 2011 Transcript at 70).
“[M]ere dissatisfaction or disagreement with the outcome of a suppression motion is not
sufficient to establish that an ‘unconscionable breakdown’ occurred in the existing process in
violation of the petitioner’s Fourth Amendment rights under the Constitution.” Cook v.
Donnelly, No. 02-CV-6073(VEB), 2009 WL 909637, at *5 (W.D.N.Y. Mar. 31, 2009) (quoting

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Capellan, 975 F.2d at 71). On appeal, the Second Department considered and affirmed the trial
court’s decision, holding that “[a]s [Petitioner’s] abandonment of the property was not
precipitated by an illegal police conduct, the County Court properly declined to suppress the
gun.” (Docket No. 15-11 at 1); see Munford v. Graham, No. 09 Civ. 7899 (DLC) (AJP), 2010
WL 644435, at *17 (S.D.N.Y. Feb. 24, 2010), report and recommendation adopted, 2010 WL
2720395 (S.D.N.Y. June 29, 2010), aff’d, 467 F. App’x 18 (2d Cir. 2012) (noting that no
breakdown occurred because petitioner “had a full and fair opportunity to litigate his Fourth
Amendment claim on direct appeal”); Kelly v. Conway, No. 10-CV-3053 (ENV), 2011 WL
3555823, at *4 (E.D.N.Y. Aug. 11, 2011) (denying habeas relief where Petitioner “took full
advantage of the New York procedures” through participating in a pretrial suppression hearing
and appealing the trial court’s determination to the Second Department). Consequently, “given
the absence of any evidence that there was a breakdown in the hearing afforded to [Petitioner] on
his claims, the Court cannot relitigate these issues on habeas review.” Kelly, 2011 WL 3555823,
at *4.
Accordingly, I respectfully recommend that Petitioner’s Fourth Amendment
suppression claim be denied.
B. Montay Vaden’s Hearsay Statement
Petitioner argues that the trial court should have admitted Montay Vaden’s statement as
declaration against penal interest. This claim does not provide a basis for federal habeas relief.
In general, errors of state evidentiary matters “wholly separate from the question of whether the
admission of such evidence violates the federal Constitution . . . are not cognizable on habeas
review.” Sorrentino v. LaValley, No. 12-CV-7668(VSB)(DF), 2016 WL 11482062, at *15
(S.D.N.Y. Feb. 3, 2016), report and recommendation adopted, 2016 WL 3460418 (S.D.N.Y.
June 21, 2016); see also Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (“state trial court
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evidentiary rulings generally are not a basis for habeas relief.”). Here, neither the Petition nor
Petitioner’s state appellate briefs identify or reference any federal constitutional right allegedly
violated by the court’s failure to admit Vaden’s statement. (See Petition at 7); (Docket No. 15-9
at 45–48); (Docket No. 15-12 at 7–8). Rather, they exclusively frame this claim in state-law
evidentiary terms. Consequently, “any federal due-process claim that Petitioner may now be
seeking to raise . . . must be considered unexhausted and procedurally barred.” Sorrentino, 2016
WL 11482062, at *15 (internal citations omitted).
Moreover, Petitioner cannot avoid procedural default through a showing of “cause for
default and prejudice.” See supra Section II.B. Excuse of procedural default requires a showing
that some external impediment actually prevented counsel from raising the claim. McCleskey v.
Zant, 499 U.S. 467, 497 (1991); Murray v. Carrier, 477 U.S. 478, 492 (1986). Petitioner
concedes that the claim is procedurally barred, but argues that it would not be barred but for his
trial counsel’s errors. (Reply14 at 2). Though Petitioner argues that his trial counsel was
constitutionally ineffective, this claim fails. See infra Section III.D; McCleskey, 499 U.S. at 494
(“Attorney error short of ineffective assistance of counsel . . . does not constitute cause and will
not excuse a procedural default.”). Further, this contention does not excuse Petitioner’s failure to
allege a constitutional violation in his appeal to the Second Department, his request for leave to
appeal to the Court of Appeals, or his Petition. Therefore, the Court is barred from reviewing
this claim.
Assuming this claim was not procedurally barred from review, it fails on the merits.
“The burden on a petitioner challenging an evidentiary decision is a heavy one.” Branham v. Lee,
No. 10 Civ. 3074(NRB), 2011 WL 5979530, at *4 (S.D.N.Y. Nov. 29, 2011). “Federal habeas

14

Refers to Petitioner’s reply in support of the Petition. (Docket No. 19).

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courts are not to ‘reexamine state-court determinations on state-law questions’ and are ‘limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.’”
Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). “Moreover, the Supreme Court has
expressed reluctance to ‘impose constitutional constraints on ordinary evidentiary rulings by
state courts.’” Id. (quoting Crane v. Kentucky, 476 U.S. 683, 689 (1986)).
Here, the Second Department held Vaden’s statement was not relevant to the issues
presented at trial. (Docket No. 15-11 at 2). Under AEDPA’s deferential standard of review,
there is no basis for finding that the state court decision excluding Vaden’s hearsay statement
was contrary to, or an unreasonable application of, established federal law. Even if Vaden’s
statement was admissible, there was minimal probative value to the statement because it did not
exculpate Petitioner or “‘create[] a reasonable doubt that did not otherwise exist.’” Arena v.
Kaplan, 952 F. Supp. 2d 468, 492–93 (E.D.N.Y. 2013) (quoting United States v. Agurs, 427 U.S.
97, 112 (1976)); see Vasquez v. Henderson, No. CV-89-0823, 1991 WL 17291, at *2 (E.D.N.Y.
Jan. 30, 1991), aff’d, 953 F.2d 636 (2d Cir. 1991) (“Even if the co-defendant’s statement was
somehow admissible [as a declaration against penal interest], the erroneous exclusion of this
minimally probative material could hardly have rendered the trial fundamentally unfair.”)
Accordingly, I respectfully recommend that Petitioner’s request for habeas relief based
on the exclusion of Vaden’s hearsay statement be denied.
C. Jury Selection Claim
Petitioner claims that his right to an impartial jury was denied when the trial court did not
investigate potential prejudice to the jury panel as a result of the comments made by one of the
prospective jurors. (Petition at 8); (Reply at 2–4).
Respondent correctly argues that this claim is procedurally barred. (Docket No. 15 at 20).
Petitioner’s counsel neither objected to the trial court’s response, nor requested further inquiry to
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investigate potential prejudice to the remainder of the jury pool. On appeal, the Second
Department ruled that this claim was unpreserved for appellate review. (Docket No. 15-11 at 2).
This claim is therefore procedurally barred from federal habeas review because it was denied on
independent and adequate state grounds. See, e.g., Gutierrez v. Smith, 702 F.3d 103, 110–11 (2d
Cir. 2012) (failing to comply with New York’s contemporaneous objection rule, and thus failing
to preserve a claim for appeal, generally bars federal habeas review); Jenkins v. Beaver, No. 01CV-0483 (JBW), 2003 WL 23185773, at *3 (E.D.N.Y. Oct. 28, 2003) (rejecting jury selection
claim as procedurally barred for failure to object). While Petitioner argues that his counsel was
ineffective, this claim fails. See infra Section III.D; McCleskey, 499 U.S. at 494. Therefore, the
Court is barred from reviewing this claim.
Even if this claim was not procedurally barred, it is without merit. The Sixth
Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the crime shall have
been committed.” U.S. Const. Amend. VI; see also Irvin v. Dowd, 366 U.S. 717, 722 (1961)
(“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.”). The process of selecting a jury is within the wide discretion of the trial
court. Skilling v. United States, 561 U.S. 358, 386 (2010). On habeas review, a state court is
entitled to a “presumption of correctness” after determining that a jury was impartial. See Wheel
v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994). Further, “the Supreme Court has made it clear that
‘the trial court’s findings of impartiality [may] be overturned only for manifest error.’” Knapp v.
Leonardo, 46 F.3d 170, 176 (2d Cir. 1995) (quoting Patton v. Yount, 467 U.S. 1025, 1031
(1984)).

-23-

Petitioner cannot overcome this burden. The prospective juror’s comments concerned the
court and the law generally. (Trial Transcript at 133–34) (claiming that the prospective juror
said, “very abusive things verbally about the law, the Court, using bad language.”). The
comments were entirely unrelated to Petitioner or the facts underlying the case. The concerns
raised by the prospective juror who heard these comments did not stem from fear of bias or
prejudice. She only expressed her concern about serving with an angry juror. (Id. at 134).
Furthermore, both prospective jurors were excused on consent. (Id. at 123, and 179–80). Nor is
there any indication that any other potential juror heard these remarks. The empaneled jury did
not display any signs of impartiality resulting from the prospective juror’s generalized comments
about the judicial system. (See generally id.). In addition, the trial court ensured that the selected
jurors remained impartial by giving detailed instructions during jury selection and trial. (Id. 180–
81, 189–95, 311, 320–32). Consequently, Petitioner cannot establish that the trial court’s
response to the comments resulted in manifest error. Knapp, 46 F.3d at 176; Hicks v. Bellnier, 43
F. Supp. 3d 214, 234 (E.D.N.Y. 2014) (denying habeas relief where the potential juror who made
off-record remarks was excused by the trial court and there was no indication that any potential
juror heard the remarks).
Accordingly, I respectfully recommend that Petitioner’s impartial jury claim be denied.
D. Ineffective Assistance of Counsel
Petitioner’s final claim is that trial counsel deprived him of effective assistance of
counsel by failing to: (i) request that Petitioner’s witnesses testify before the grand jury, (ii)
secure statements of witnesses who were present during the incident, (iii) request that the court
make an inquiry regarding the potential prejudice to the jury panel, (iv) request a continuance to
locate Montay Vaden, (v) request a missing witness charge for Kevin Lewis, and (vi) call any
witnesses at trial. (Petition at 10).
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The Supreme Court has long recognized that “a person accused of a federal or state crime
has the right to have counsel appointed,” and further that “‘the right to counsel is the right to the
effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 685–87 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish ineffective
assistance of counsel, a habeas petitioner must demonstrate that his lawyer’s performance “fell
below an objective standard of reasonableness,” id., 466 U.S. at 688, and that there is a
“reasonable probability” that but for counsel’s error, “the result of the proceeding would have
been different,” id. at 694. “Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700. Moreover, the
Supreme Court has emphasized that when a petitioner brings a claim for ineffective assistance of
counsel, “AEDPA review is doubly deferential, because counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (citations and internal
quotation marks omitted); Burt v. Titlow, 571 U.S. 12, 15 (2013) (explaining that the doubly
deferential standard of review must give “both the state court and the defense attorney the benefit
of the doubt”).
1. Grand Jury Testimony
Petitioner’s claim of ineffective assistance of counsel for failure to request that
Petitioner’s witnesses testify before a grand jury is misguided. Courts have consistently held that
there is no federal constitutional right to a grand jury in a state criminal prosecution. See Fields
v. Soloff, 920 F.2d 1114, 1116 (2d Cir. 1990). “While New York’s constitution creates a right to
indictment by a grand jury for felony charges, state law governs how these proceedings are to be
conducted and creates the remedies for any procedural violations. Thus, any alleged impropriety
in [P]etitioner’s grand-jury proceeding arises out of state law and cannot form the basis for
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federal habeas relief.” Nelson v. N.Y., No. 10 Civ. 9021 (LTS)(HBP), 2013 WL 796276, at *2
(S.D.N.Y. Mar. 5, 2013); see Velez v. People of the State of N.Y., 941 F. Supp. 300, 315
(E.D.N.Y. 1996) (“Petitioner’s assertion of a defective grand jury proceeding in the state court,
albeit within the confines of an ineffective assistance of counsel claim, is not cognizable on
federal habeas corpus.”).
Assuming Petitioner alleged a cognizable constitutional claim, it fails on the merits. Trial
counsel made repeated unsuccessful attempts to locate and speak with Petitioner’s witnesses
prior to Petitioner’s indictment. (Docket No. 15-3 at 2–4). Moreover, even if the witnesses were
available, the state court found that trial counsel’s decision was a sound strategic decision “to
avoid creating a record for cross examination at later proceedings or revealing defense strategy in
a non-adversarial setting.” (Docket No. 15-6 at 10). This finding is neither contrary to, nor an
unreasonable application of, established federal law. Further, any error was rendered harmless
by Petitioner’s jury conviction. See Batchilly v. Nance, No. 08 Civ.7150(GBD)(AJP), 2010 WL
1253921, at *30 (S.D.N.Y. Apr. 2, 2010), report and recommendation adopted, 2011 WL
1226260 (S.D.N.Y. Mar. 30, 2011) (“A jury conviction transforms any defect connected with the
grand jury’s charging decision into harmless error because the trial conviction establishes
probable cause to indict and also proof of guilt beyond a reasonable doubt.”).
Accordingly, I respectfully recommend that Petitioner’s claim for habeas relief based on
the grand jury proceedings be denied.
2. Jury Pool Prejudice
Petitioner claims that trial counsel deprived him of effective assistance of counsel by
failing to request that the Court determine if the jury pool was prejudiced by the prospective
juror’s comment about the law and court. The Court agrees with Respondent that this claim is
unexhausted and procedurally barred from review. Petitioner’s § 440.10 motion and direct
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appeal both asserted that trial counsel’s representation was ineffective under several theories.
(Docket No. 15-1 at 8–11); (Docket No. 15-9 at 59–61). However, neither application asserted a
Sixth Amendment violation due to trial counsel’s failure to probe the jury pool’s prejudice after
the prospective juror’s statement at issue. Therefore, this claim is unexhausted and procedurally
barred from review. See Martinez v. Colvin, No. 17-CV-757 (PKC)(KHP), 2018 WL 6649608, at
*3 (S.D.N.Y. Dec. 19, 2018) (denying habeas ineffective assistance of counsel claim as
unexhausted where petitioner did not raise the claim in his § 440.10 motion or on direct appeal).
Even if this claim was exhausted, it fails on the merits. Under the first prong of the
Strickland test, “a 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.” Strickland, 466 U.S. at 689. “Trial counsel is accorded particular deference when
conducting voir dire and [a]n attorney’s actions during voir dire are considered to be matters of
strategy.” Figueroa v. Ercole, No. 09 Civ. 7225 (PGG)(JCF), 2013 WL 3655903, at *24
(S.D.N.Y. July 15, 2013) (internal quotation marks and citation omitted). Here, the comments at
issue were wholly unconnected to Petitioner or the facts underlying the case and there was no
reason to believe that any of the potential juror’s impartiality was compromised. Consequently,
trial counsel’s conduct does not fall “below an objective standard of reasonableness.” Strickland,
466 U.S. at 688–89. Assuming arguendo that trial counsel’s omission was unreasonable, the
record fails to show a “reasonable probability” that the result of the criminal trial would have
been different as required under the second prong of the Strickland test. 466 U.S. at 688. Both
the prospective juror who made the comments and the prospective juror who reported the
comments were excused on consent, (Trial Transcript at 123, and 179–80), and there is no basis

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to believe that Petitioner suffered any prejudice from his counsel’s performance during jury
selection. See Schreter v. Artuz, 225 F. Supp. 2d 249, 257 (E.D.N.Y. 2002) (“In light of the
substantial evidence presented against [petitioner], it is highly unlikely that any alleged
deficiency in counsel’s performance during jury selection contributed to his guilty verdict.”).
For these reasons, I respectfully recommend that Petitioner’s claim premised on trial
counsel’s conduct during jury selection be denied.
3. Witness Investigation and Trial Testimony
Petitioner’s assertion that trial counsel unreasonably failed to secure statements of
witnesses who were present during the incident is without merit. Trial counsel did, in fact,
investigate Petitioner’s alleged witnesses. Between January 29, 2010 and March 23, 2011, trial
counsel and her investigator made repeated attempts to speak with Petitioner’s witnesses,
schedule meetings and secure statements. (See generally Docket No. 15-3). However,
Petitioner’s witnesses could not be found and/or repeatedly missed scheduled meetings. (Id. at 4,
6–7). Moreover, Petitioner’s contention that trial counsel errantly spelled Montay Vaden’s
surname as “Daden,” (Reply at 4–6), does not constitute deficient representation. Trial counsel
was able to eventually speak with Vaden during her pre-trial investigation, but Vaden failed to
appear for a scheduled meeting in March 2011. (Docket No. 15-3 at 7).
Petitioner provided statements from Ronald Mack, Maritza Santiago and Kevin Lewis in
his § 440.10 motion in support of his claim for ineffective assistance of counsel. (Docket No. 151 at 15–16); (Docket No. 15-4 at 16–20). These statements do not establish that trial counsel’s
pre-trial investigation violated Petitioner’s constitutional right to effective assistance of counsel.
As to Mack, the record is clear that trial counsel undertook multiple, and largely unsuccessful,
attempts to discuss the incident with him. (See Docket No. 15-3 at 4–6). Mack claims that “if
[he] was able to give [his] testimony [Petitioner] would not be in jail.” (Docket No. 15-1 at 15).
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However, “vague, conclusory, or speculative claims as to what evidence could have been
produced by further investigation” are insufficient to “serve as the basis for a claim of ineffective
assistance of counsel.” Moreau v. Ercole, No. 08-CV-1545(ARR), 2011 WL 1741824, at *7
(E.D.N.Y. May 5, 2011). The sworn statements from Lewis and Santiago similarly fail to
undercut the diligence of trial counsel’s pre-trial investigation.
Petitioner next claims that trial counsel failed to call any of his witnesses at trial. (Petition
at 10). The record belies this contention. Trial counsel attempted to serve Mack, Lewis,
Santiago, Vaden and Bracey with trial subpoenas. (Docket No. 15-3 at 8). However, only
Santiago appeared for trial. (Id. at 9). Prior to trial, Santiago told Attorney Medina that she was
unable to observe any of the people on the second-floor landing. (Id. at 9). Santiago’s affidavit
appears to indirectly contest this. (Docket No. 15-1 at 16). However, “[t]he decision of whether
to call any witnesses on behalf of a defendant, and which witnesses to call or omit to call, is a
tactical decision which ordinarily does not constitute incompetence as a basis for a claim of
ineffective assistance of counsel.” Parks v. Sheahan, 104 F. Supp. 3d 271, 286 (E.D.N.Y. 2015)
(internal quotation marks omitted). The trial court held that counsel’s decision not to call
Santiago was a reasonable tactical choice based on how Santiago would appear to a jury. (Docket
No. 15-6 at 11). There is no basis for finding that the trial court’s conclusion was inapposite to
establish federal law. Moreover, even if counsel erred in failing to call Santiago as a witness, it
is unlikely that the result of the Petitioner’s trial would have been different under Strickland’s
second prong. 466 U.S. at 694.
Petitioner next maintains that trial counsel should have requested a missing witness
charge for Kevin Lewis and a continuance to locate Montay Vaden. “To be entitled to a missing
witness charge under New York law, Petitioner had to show that [the witness] was

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knowledgeable about issues material to the trial, that [he] was expected to give non-cumulative
testimony favorable to the prosecution, and that [he] was available to the prosecution.” Baptiste
v. Ercole, 766 F. Supp. 2d 339, 364 (N.D.N.Y. 2011). Here, the record demonstrates that
Lewis’s testimony would not have been favorable to the prosecution. (See Docket No. 15-4 at
16–20); Jones v. Rivera, No. 06-CV-5982(JFB), 2008 WL 2004168, at *15 (E.D.N.Y. May 7,
2008) (denying habeas relief for failure to issue a missing witness charge for a witness who
would not have given favorable testimony to the prosecution). Further, Petitioner cannot
demonstrate that Lewis was available because he failed to appear for trial despite being served
with a subpoena. (Docket No. 15-3 at 10). Thus, trial counsel’s decision not to request a missing
witness charge did not fall below Strickland’s objective standard of reasonableness because such
an application lacked merit. 466 U.S. at 688.
Trial counsel’s failure to request a continuance to locate Vaden did not amount to
constitutionally deficient representation because there is no evidence that such a request would
have been successful. “Petitioner is not entitled to a continuance as a matter of right. The grant
or denial of a continuance is left to the sound discretion of the trial court.” McTier v. People of
New York, No. 07-CV-870 (DLI), 2009 WL 792087, at *6 (E.D.N.Y. Mar. 23, 2009). Here, the
investigator attempted to locate Vaden to serve a trial subpoena on two separate occasions.
(Docket No. 15-3 at 8). During the second attempt, the investigator learned that Vaden moved to
Hendersonville, Tennessee. (Id.). Once trial counsel learned the correct spelling of Vaden’s
surname, the investigator made further attempts to ascertain Vaden’s location without success.
(Id. at 9); see McTier, 2009 WL 792087, at *6 (denying habeas relief where trial counsel did not
request a continuance after his investigator made two unsuccessful attempts to locate the
witness). Moreover, counsel’s omission did not prejudice Petitioner because Vaden’s proposed

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testimony did not exculpate Petitioner. (Docket No. 15-3 at 4); (Docket No. 15-6 at 11).
Accordingly, trial counsel’s failure to request a continuance does not warrant habeas relief, and I
respectfully recommend that Petitioner’s claim on this ground be denied.
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied in its
entirety. Further, because reasonable jurists would not find it debatable that Petitioner has failed
to demonstrate by a substantial showing that he was denied a constitutional right, I recommend
that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529
U.S. 473, 483–84 (2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the
pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254
Cases in the United States District Courts, the parties shall have fourteen (14) days from the
receipt of this Report and Recommendation to serve and file written objections. If copies of this
Report and Recommendation are served upon the parties by mail, the parties shall have
seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R.
Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the
Court, with extra copies delivered to the chambers of the Honorable Nelson S. Román at the
United States District Court, Southern District of New York, 300 Quarropas Street, White Plains,
New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Nelson
S. Román and not to the undersigned. Failure to file timely objections to this Report and

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Recommendation will preclude later appellate review of any order of judgment that will be
rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.
2008).
Dated:

February 27, 2019
White Plains, New York

RESPECTFULLY SUBMITTED,
_________________________
_
_______________________________
DITH C M CARTHY
JUDITH C. McCARTHY
United States Magistrate Judge

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