Davis v. Smith
Filing
9
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/17/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANTOINE DAVIS,
DECISION AND ORDER
No. 12-CV-0096MAT
Petitioner,
-vsBRANDON T. SMITH,
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Antoine Davis (“Petitioner”) has filed a
timely petition for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pursuant to a
judgment entered January 7, 2010, in New York State, County Court,
Erie County, convicting him, upon a non-jury verdict,1 of Attempted
Assault
in
the
First
Degree
(N.Y.
Penal
Law
(“Penal
Law”)
§§ 100.00, 120.10[1]), Endangering the Welfare of a Child (Penal
Law
§
260.10[1]),
Menacing
in
the
Second
Degree
(Penal
Law
§ 120.14[1]), and Aggravated Harassment in the Second Degree (Penal
Law § 240.30[1]).
II.
Factual Background and Procedural History
Petitioner
Attempted
was
Assault in
charged
the
in
First
a
five-count
Degree
(Penal
indictment
Law
§§
with
100.00,
1
On May 21, 2009, Petitioner waived his right to a jury trial, and proceeded
to a non-jury trial before the Honorable Thomas P. Franczyk. Jury Trial Waiver
Mins. of 05/21/09 at 2-4.
120.10[1]), Attempted Assault in the Second Degree (Penal Law
§§ 100.00, 120.05[2]), Endangering the Welfare of a Child (Penal
Law
§
260.10[1]),
Menacing
in
the
Second
Degree
(Penal
Law
§ 120.14[1]), and Aggravated Harassment in the Second Degree (Penal
Law § 240.30[1]). The charges arose from an incident that occurred
on
July
7,
2008
in
the
City
of
Buffalo,
New
York,
wherein
Petitioner squirted lighter fluid on Pamela Ervin (“Ervin”), and
threatened to set her aflame. See Erie County Ind. No. 01870-2008,
dated 09/10/08 at Resp’t Ex. A.
In July 2008, Petitioner was living with then-girlfriend Ervin
at her apartment at 199 Hastings, but they were in the process of
breaking up.
Trial Trans. [T.T.] 9-13.
On the morning of July 7,
2008, Petitioner and Ervin had an argument over the possibility of
another woman in Petitioner’s life, and Ervin told Petitioner
“[she] wanted him to get out.”
T.T. 13.
Later that same day while
Ervin was at her uncle’s home, she received numerous text messages
on her cell phone from Petitioner inquiring about her whereabouts.
T.T. 12-13.
When Ervin refused to answer her phone, Petitioner’s
text messages began to change, indicating that “[he] was going to
fuck [Ervin] up.”
T.T. 12.
Ervin left her uncle’s home and picked
up her friend, Beth Moore (“Moore”), and Moore’s one-year child,
Shardon.
T.T. 13.
Thereafter, Ervin, Moore, and Shardon returned
to Ervin’s apartment.
T.T. 14.
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Back at her apartment, Ervin received a call from Petitioner
and an argument ensued over Petitioner’s personal belongings.
Petitioner also indicated to Ervin on the phone that he wanted
returned to him a bracelet he had bought for her.
T.T. 14.
Petitioner hung up the phone and eventually called back and told
Ervin to open her door.
T.T. 15.
Petitioner stated to Ervin that
“[he] [would] bust the window out if [Ervin] didn’t open the door.”
T.T. 15.
After some reluctance, Ervin opened the door to let
Petitioner inside to collect his belongings.
T.T. 15.
Petitioner entered the apartment and walked into the kitchen
where
Moore
T.T. 16.
off.
and
Shadron
were
sitting
at
the
kitchen
table.
Ervin turned around to the counter to take the bracelet
When she turned around, Petitioner had a white plastic
container of lighter fluid and began squirting the lighter fluid on
Ervin from her neck down to her feet.
T.T. 18-20, 37, 68-69.
Ervin testified that she recognized the white plastic container as
lighter fluid and smelled the odor of lighter fluid.
T.T. 19, 21.
After Petitioner stopped squirting Ervin with the lighter fluid, he
stated to her, “bitch, I’m going to burn you” and then patted his
pockets.
T.T. 21, 22, 69-70, 75.
Ervin testified that she felt
“like [Petitioner] was gonna get a lighter out of [his] [pocket]
and set [her] on fire . . . .”
T.T. 22.
Ervin testified further
that she knew Petitioner to be a smoker and to carry matches or a
lighter.
T.T. 22.
Moore then got up from the kitchen table,
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carrying Shadron, and she tried to run.
T.T. 22, 70.
Petitioner
grabbed Moore’s shirt and stated, “bitch, you ain’t going nowhere.”
T.T. 22, 70, 75.
While Petitioner held Moore’s shirt, Ervin
attempted to run.
Petitioner let go of Moore and grabbed Ervin’s
shirt, ripping it.
Ervin broke free from Petitioner’s grasp and
ran outside to a neighbor’s house and called the police.
Shortly
thereafter, Petitioner exited Ervin’s apartment and fled the scene.
T.T. 24-25.
Later that same evening and into the following day, Ervin
received numerous phone calls and text messages from Petitioner, in
which Petitioner called Ervin a “bitch,” indicated that he was
“going to fuck [her] up,” and that he was “going to get [her].”
T.T. 27-29. Ervin testified that she was frightened for her safety
at this time.
T.T. 28.
On July 23, 2009, Petitioner was found guilty of all counts of
the indictment, except count two (attempted assault in the second
degree), which the trial court dismissed as a lesser-included
offense.
After
Verdict Mins. of 07/23/09 at 2.
the
trial
court
rendered
its
verdict,
Petitioner,
through counsel, filed a N.Y. Crim. Proc. Law (“CPL”) § 330.30
motion to set aside the verdict on the basis that he was not
informed during the trial that his trial attorney had previously
represented prosecution witness Moore, creating the potential for
a conflict of interest. After oral arguments, the court denied the
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motion.
See Sentencing Mins. [S.M.] of 01/07/10 at 2-6;
Decision
and Order of the Erie County Court, dated 03/02/10 at Resp’t Ex. A.
Petitioner
was
subsequently
sentenced,
as
second
violent
felony offender, to a determinate term of seven years imprisonment
plus five years of post-release supervision for attempted assault
in the first degree, and definite terms of one year imprisonment
for each of the remaining convictions.
set to run concurrently.
B.
All of the sentences were
S.M. 14-16.
Direct Appeal
Represented by counsel, Petitioner appealed his judgment of
conviction
on
the
grounds
that
the
evidence
was
legally
insufficient to support his conviction of attempted assault in the
first degree and that the verdict was against the weight of the
evidence; and that he was denied effective assistance of counsel
because of his counsel’s conflict of interest.
Appeal at Resp’t Ex. B.
See Pet’r Br. on
The Appellate Division, Fourth Department
determined that Petitioner’s claims were meritless and unanimously
affirmed the judgment of conviction on April 29, 2011.
People v.
Davis, 83 A.D.3d 1492 (4th Dep’t 2011) (Resp’t Ex. B); lv. denied,
17 N.Y.3d 815 (Resp’t Ex. C). Petitioner sought reconsideration of
his request for leave to appeal, which was denied on October 26,
2011.
See Resp’t Ex. D.
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C.
The Federal Habeas Petition
This habeas corpus petition followed, wherein Petitioner seeks
habeas relief on the same grounds upon which he appealed his
judgment of conviction.
See Pet. ¶ 22A-B, Attach. (Dkt. No. 1).
Respondent has filed a Response (Dkt. No. 6) and Memorandum in
Support (Dkt. No. 7) in opposition to the habeas petition.
For the reasons that follow, Petitioner’s request for habeas
relief is denied and the petition is dismissed.
III. The Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a 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. . . .”
28
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
“The
exhaustion requirement is not satisfied unless the federal claim
has been ‘fairly presented’ to the state courts.” Daye v. Attorney
General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied,
464 U.S. 1048 (1984).
Petitioner’s claims, which were raised in
the state courts, are exhausted and properly before this Court.
IV.
The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
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Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court 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.”
§ 2254(d)(1)-(2).
28 U.S.C.
Because the Appellate Division adjudicated both
of Petitioner’s claims on the merits, the AEDPA standard of review
applies.
Under that standard, Petitioner’s claims are meritless.
IV.
Analysis of the Petition
1.
Legal Sufficiency & Weight of the Evidence (Ground One)
Petitioner claims, as he did on direct appeal, that the
evidence was legally insufficient to support his conviction for
attempted assault in the first degree, and that the verdict was
against the weight of the evidence.
As discussed below, both of
these claims are meritless and provide no basis for habeas relief.
(A)
Legal Sufficiency of the Evidence
Petitioner argues that the evidence was legally insufficient
to support his conviction for attempted assault in the first degree
because the proof did not establish that: he went beyond “mere
preparation” for the attempted offense; and that he had any intent
to cause serious physical injury to Ervin without an ignition
source to light the lighter fluid.
-7-
See Pet. ¶ 22A, Attach.
The
Appellate Division denied this claim on the merits.
A.D.3d at 1492.
Davis, 83
The state court’s adjudication of this claim did
not contravene or unreasonably apply clearly established Supreme
Court law.
A sufficiency of the evidence claim implicates the due process
clause of the Fourteenth Amendment, which protects a defendant
against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.
Jackson v. Virginia, 443 U.S. 307, 315 (1979). In
assessing the sufficiency of the evidence in the context of a
petition for writ of habeas corpus, “the relevant question is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at
319.
The
essential
elements
of
the
crime
are
determined
by
“explicit reference to the substantive elements of the criminal
offence as defined by state law.”
Id. at 324, n.16.
The court
must defer to the jury’s “assessments of the weight of the evidence
or the credibility of witnesses.” Maldonado v. Scully, 86 F.3d 32,
35 (2d Cir. 1996).
It is clear, therefore, that a petitioner
challenging the sufficiency of the evidence bears “a heavy burden.”
Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.), cert. denied, 515
U.S. 1136 (1995).
-8-
Pursuant to New York Penal Law, a person is guilty of an
attempt to commit a crime when, with intent to commit a crime, he
engages in conduct which tends to effect the commission of such
crime.
Penal Law § 110.00.
The conduct must come “very near” or
“dangerously near” the completion of the offense, although one need
not have “engaged in the last proximate act necessary to accomplish
the intended crime.”
People v. Mahboubian, 74 N.Y.2d 174, 190
(1989). A person is guilty of assault in the first degree when,
with intent to cause serious physical injury to another person, he
causes such injury to such person or to a third person by means of
a deadly weapon or a dangerous instrument.
Penal Law § 120.10[1].
In the instant case, a rational trier of fact could conclude
that the essential elements of attempted assault in the first
degree had been proven beyond a reasonable doubt.
The evidence at
trial established that: Petitioner was angry at Ervin because she
terminated their relationship;
that Ervin received threatening
text messages from Petitioner on the day of the incident because
she would not answer her cell phone; that Petitioner came to
Ervin’s apartment and requested that she let him in; that, once
inside, Petitioner squirted lighter fluid on Ervin from her neck to
her feet; that, after Petitioner stopped squirting Ervin with the
lighter fluid, he stated, “bitch, I’m going to burn you”; that
Petitioner, who Ervin knew to be a smoker and to carry a lighter or
matches, then patted his pockets; and that Petitioner subsequently
-9-
grabbed Ervin’s shirt, ripping it, when she attempted to run away.
T.T. 21-23.
With respect to Petitioner’s specific contention that the
proof
did
not
establish
that
Petitioner
went
beyond
“mere
preparation” for the attempted offense and that he did not intend
to cause serious physical injury to Ervin because he did not have
an ignition source to light the lighter fluid, that contention is
meritless.
Here, the requisite intent could be inferred from
Petitioner’s conduct of obtaining a flammable liquid, squirting
Ervin with said flammable liquid from her neck down to her feet,
and explicitly stating to her that he was “going to burn [her].”
T.T. 21.
That Petitioner failed to ignite the lighter fluid that
he squirted on Ervin and/or even possessed the capability of doing
so is of no moment insofar as his actions brought him within
“dangerous proximity” to the criminal end to be attained, i.e.,
burning Ervin. See Mahboubian, 74 N.Y.2d at 195 (“The standard for
determining whether a particular act rose to the level of an
attempt is well settled.
The act need not be the final one towards
the completion of the offense but it must carry the project forward
within dangerous proximity to the criminal end to be attained. The
requirement of ‘dangerous proximity’ means that the act or acts
must come or advance very near to the accomplishment of the
intended crime.”)
(internal
citations
and
quotations
omitted)
(alteration in original); see also People v. Adams, 222 A.D.2d 1124
-10-
(4th Dep’t 1995) (finding evidence of attempted arson legally
sufficient where proof established that defendant splashed gasoline
onto house of estranged girlfriend, stated that occupants of house
were “all supposed to burn,” two lighters were found on defendant,
and earlier that night defendant had been at the house of estranged
girlfriend, smashing windows and threatening to kill her); People
v. Johnson, 186 A.D.2d 363 (finding evidence of second degree
attempted arson and first degree reckless endangerment legally
sufficient where proof established that defendant, disgruntled over
being evicted, doused halls and stairways of apartment building
with gasoline and then left when tenants came out and confronted
her).
Accordingly, the state court’s denial of Petitioner’s claim
was not contrary to, or an unreasonable application of, the Jackson
standard. Petitioner has not met the burden of showing that no
rational trier of fact could have found him guilty of attempted
assault
in
the
first
degree
beyond
a
reasonable
doubt.
Petitioner’s legal sufficiency claim is therefore denied.
(B)
Weight of the Evidence
Petitioner claims that the verdict finding him guilty of
attempted assault in the first degree was against the weight of the
evidence.
See Pet. ¶ 22A, Attach.2
The Appellate Division denied
2
In his petition, Petitioner does not specifically allege that the verdict
was against the weight of the evidence. See Pet. ¶ 22A, Attach. However, he
appears to be raising the same claim he raised on direct appeal, in which he
-11-
this claim on the merits.
Davis, 83 A.D.3d at 1492.
This claim,
which implicates only state law, is not cognizable by this Court on
federal habeas review.
A weight of the evidence claim is “an error of state law, for
which habeas review is not available.”
F. Supp. 2d 106, 116 (S.D.N.Y. 2002);
Douglas v. Portuondo, 232
Correa v. Duncan, 172
F.Supp.2d 378, 381 (E.D.N.Y. 2001) (“A ‘weight of the evidence’
argument is a pure state law claim grounded in New York Criminal
Procedure Law § 470.15[5]”);
see also Maldonado, 86 F.3d at 35
(“assessments of the weight of the evidence . . . are for the
[trier of fact] and not grounds for reversal on appeal”).
Thus,
Petitioner’s weight of the evidence claim is denied for failure to
state a cognizable constitutional question.
2.
Ineffective Assistance of Counsel - Conflict of Interest
(Ground Two)
Petitioner claims, as he did on direct appeal, that he was
deprived of the effective assistance of counsel because his trial
attorney operated under a conflict of interest.
Specifically, he
claims that the trial court failed to conduct a sufficient inquiry
and obtain a valid waiver once it became aware that defense counsel
had previously represented prosecution witness Moore.
See Pet. ¶
alleged that the evidence was legally insufficient to support his conviction of
attempted assault in the first degree, or, alternatively, that the verdict was
against the weight of the evidence with respect to the first-degree attempted
assault count. See Pet’r Br. on Appeal, Point I at Resp’t Ex. B. The Court
liberally construes Petitioner’s pro se pleadings as raising a weight of the
evidence claim.
-12-
22B, Attach.
For the reasons discussed below, this claim does not
warrant habeas relief.
The Sixth Amendment guarantees the right to representation
free from conflicts of interest.
See Wood v. Georgia, 450 U.S.
261, 270 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980);
Holloway v. Arkansas, 435 U.S. 475 (1978)); United States v. Levy,
25 F.3d 146, 152 (2d Cir. 1994) (citation omitted).
This right is
denied where the attorney has a potential conflict that resulted in
prejudice to the defendant, or an actual conflict that adversely
affected the attorney’s performance. Winkler v. Keane, 7 F.3d 304,
307 (2d Cir. 1993).
“An attorney has an actual, as opposed to a
potential, conflict of interest when, during the course of the
representation, the attorney’s and defendant’s interests ‘diverge
with respect to a material factual or legal issue or to a course of
action.’” Id. at 307 (quoting Cuyler, 446 U.S. at 356 n.3).
Thus,
even if an actual conflict is demonstrated, the minimum showing of
adverse effect required to undermine a conviction is a showing that
“some plausible alternative defense strategy or tactic might have
been pursued, and that the alternative defense was inherently in
conflict with
or
not undertaken
due
to
the
attorney’s
other
loyalties or interests.” United States v. Schwarz, 283 F.3d 76, 92
(2d Cir. 2002).
As for the duty of the trial judge, “[u]nless the
trial court knows or reasonably should have known that a particular
-13-
conflict exists, the court need not initiate an inquiry.”
Cuyler,
446 U.S. at 347.
Here, Petitioner appears to alleges that there was a potential
conflict of interest with his attorney because his attorney had
previously represented prosecution witness Moore.
¶
22B
and
Petitioner
Attach.
faults
As
the
the
Court
understands
trial
court
for
failing
See Pet. at
his
pleadings,
to
conduct
a
sufficient inquiry into whether Petitioner was aware of the risks
associated with his attorney’s prior representation of Moore and
whether Petitioner wished to proceed with his attorney despite the
conflict.
This claim is meritless.
The record reflects that,
prior to the prosecution’s direct examination of Moore, counsel
alerted the trial court that he had represented Moore on various
criminal matters approximately five to eight years ago.
T.T. 57.
The trial court promptly conducted an inquiry into the matter via
a bench conference, on the record, with both attorneys and Moore.
The trial court asked defense counsel if he intended to crossexamine Moore about her prior convictions, to which defense counsel
responded in the affirmative. T.T. 57. The trial court then asked
defense counsel if it was his intention to cross-examine Moore
about matters that he knew of only by virtue of the attorney-client
relationship.
In response, defense counsel stated, “that’s where
it becomes problematic, because my obligation to Mr. Davis is to
zealously represent him and defend him to the best of my ability,
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just as it was to [Moore] when I was her attorney and she was my
client.”
T.T. 60.
The trial court then asked Moore, “do you have
any objection if [Petitioner’s defense counsel] were to ask you
about matter discussed between the two of you at the time when he
represented you in criminal matters?” T.T. 60. Moore responded in
the negative.
The prosecutor then commenced direct examination of
Moore, which was followed by defense counsel’s cross-examination.
T.T. 57-76.
Indeed,
a
defense
attorney’s
prior
representation
of
a
testifying government witness creates the potential for a conflict
of
interest
because
the
attorney’s
duties
of
loyalty
and
confidentiality to his clients persist even after termination of
the representation. See United States v. Yannotti, 358 F. Supp. 2d
289, 295 (S.D.N.Y. 2004);
see also United States v. Leslie, 103
F.3d 1093, 1098-99 (2d Cir. 1997);
F.3d 456, 462 (2d Cir. 1995).
United States v. Lussier, 71
The Second Circuit has acknowledged
that “[w]hen a defense attorney cross-examines a former client who
is a witness against the defendant, a conflict of interest may
exist.”
Lussier, 71 F.3d at 462.
Three potential areas of
conflict may arise: (1) “the attorney’s pecuniary interest in
furthering
witness
may
his
business
impair
his
relationship
ability
to
with
the
cross-examine
government
the
witness
zealously”; (2) “the attorney may misuse confidential information
obtained from the [witness], or may fail to fully cross-examine for
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fear of misusing confidential information”; or (3) “the attorney
may be required to testify about material aspects of the witness’
testimony, or otherwise place his own credibility at issue in
cross-examining the witness or in attacking the witness’ testimony
in summation.”
Anwar v. United States, 648 F. Supp. 820, 826-27
(N.D.N.Y. 1986) (citations and quotations omitted), aff’d, 823 F.2d
544 (2d Cir. 1987).
However,
where
as
here,
the
former
client
waives
the
attorney-client privilege on cross-examination, the risk of a
conflict is “significantly diminished,” and at worst, results only
in a potential conflict of interest.
Lussier, 71 F.3d at 461-62
(stating that conflict was at worst potential where former client,
who was a witness against the defendant, waived his attorney-client
privilege as to his prior communications with former counsel); see
also United States v. Thomas, Nos. 98-1051, 98-1052, 98-1116, 2000
U.S. App. LEXIS 2224, 2000 WL 236481, at *3 (2d Cir. Feb. 14, 2000)
(slip opinion) (finding no actual or potential conflict where
defense counsel previously represented at least three government
witnesses in unrelated cases and the witnesses had waived their
attorney-client
privileges
cross-examination purposes);
with
defense
counsel
for
Leslie, 103 F.3d at 1098-99 (finding
no actual or potential conflict where defense counsel previously
represented client’s co-defendant in an unrelated investigation but
co-defendant waived attorney-client privilege on cross-examination,
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and stating that if a conflict was assumed, it “could only be
regarded as potential"); cf. United States v. Pizzonia, 415 F.
Supp. 2d 168, 178-79 (E.D.N.Y. 2006) (“Limited representation of a
government witness unrelated to representation of the defendant is
not likely to present a disabling conflict.”) (citing United States
v. Paone, 782 F.2d 386, 393 (2d Cir.1986)).
By consenting to
cross-examination, Moore waived any attorney-client privilege that
could have
hampered
defense
counsel’s
cross-examination. Upon
receiving Moore’s consent, defense counsel was free to conduct an
uninhibited inquiry of Moore, and indeed did so.
Defense counsel
appears to have faced no conflict at all upon receiving Moore’s
consent and, if anything, faced only a potential conflict.
See
Lussier, 71 F.3d at 461-62.
To
the
extent
a
potential
conflict
existed,
Petitioner
nonetheless fails to establish that he was prejudiced by it.
Cuyler holds that “the mere possibility of conflict is insufficient
to impugn a criminal conviction.”
446 U.S. at 350.
Thus, when a
petitioner alleges that a conflict is potential, he must show that
he suffered prejudice as a result.
he has not and cannot do.
Winkler, 7 F.3d at 307.
This
The record reflects that defense counsel
conducted a pointed and thorough cross-examination of Moore, and
his ability to do so was not in any way hampered by a reluctance to
attack
Moore’s
credibility.
See,
e.g.,
United
Cunningham, 672 F.2d 1064, 1068 (2d Cir. 1982).
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States
v.
A review of the
record shows that defense counsel specifically questioned Moore on
a prior driving while intoxicated conviction and elicited an
admission from her that she was a “threat to [her]self and others”
while on the road.
T.T. 73.
Further, while cross-examining Moore
about a prior conviction for attempted petit larceny, defense
counsel impeached her credibility by gaining a concession that she
placed
her
interests
above
society’s
interests.
T.T.
73.
Additionally, defense counsel obtained admissions from Moore that
she did not see Petitioner produce a lighter or matches from his
pocket at the time of the incident, that she did not smell the
lighter fluid that Petitioner sprayed on Ervin, and that Petitioner
did not have physical contact with Shadron during the incident and
that
no
lighter
fluid
was
sprayed
on
Shadron.
T.T.
74-75.
Further, in the course of his cross-examination, defense counsel
employed a line of questioning that highlighted that Moore was
“close friends with Miss Ervin and not so much with [Petitioner]”
and that Moore and Ervin had discussed the events of July 7, 2008
before coming to court and testifying.
T.T. 74.
Accordingly,
Petitioner’s claim that he was deprived of the effective assistance
of counsel on account of a conflict of interest is meritless.
Consequently, this Court cannot find that the decision of the
Appellate Division 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
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unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This claim is therefore denied.
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability.
See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
December 17, 2012
Rochester, New York
-19-
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