Woods v. Bradt

Filing 11

DECISION AND ORDER denying the request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and dismissing the petition. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Wesley Woods.) Signed by Hon. Michael A. Telesca on 3/22/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WESLEY WOODS,
Petitioner,

No. 1:13-cv-00906-MAT
DECISION AND ORDER

-vsMARK L. BRADT, Superintendent,
Respondent.

I.

Introduction
Proceeding pro se, Wesley Woods (“Petitioner” or “Woods”)

filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, alleging that he is in state custody in violation of his
federal constitutional rights. Woods is presently incarcerated
based on a judgment entered against him on July 23, 2008, following
a jury verdict in Monroe County Court (Geraci, J.) of New York
State, convicting him of Murder in the Second Degree (felony
murder) (New York Penal Law (“P.L.”) § 125.25(3)) and Robbery in
the First Degree (P.L. § 160.15(4)).
II.

Factual Background and Procedural History
A.

The Crime

The convictions here at issue stem from the robbery of a
grocery store at 1037 North Street in the City of Rochester owned
by Saleh Saeed Abo-Ali (“Abo-Ali”), and the fatal shooting of AboAli during the course of that robbery.

On December 2, 2007, at approximately 7:35 p.m., Woods, Keon
Anderson (“Anderson”), and Stefan Lewis (“Lewis”), entered the
store wearing what the store’s sole employee, Fadel El-Naham
(“Naham”), described as “black clothing, big coats, hoodies that
cover almost the whole side of the face”. (T.326, 343). Anderson
and Lewis pointed their guns at El-Naham and yelled at him that
they would shoot him if he “call[ed] for the guy upstairs.” (T.326,
331-32). They ordered him to come out from behind the counter and
get on the ground.
El-Naham got on his knees with his hands behind his head. He
observed that one of the men (later identified as Anderson) was
wearing pants with yellow stripes on the back and flowers on both
of

the

back

pockets.

(T.335).

One

of

the

other

men

(later

identified as Lewis) went behind the counter and stole money,
cigars, cigarettes, and other items.
Meanwhile, Woods, who was armed with a .45-caliber handgun,
went to the back of the store where a door led to a second-floor
apartment occupied by Abo-Ali and his wife. When Abo-Ali came
downstairs, he was met by Petitioner and Anderson, who had a silver
.357-magnum handgun. According to El-Naham, he heard four to five
gunshots that sounded as though they were fired from more than one
gun. Abo-Ali was struck in the torso by a bullet that was later
determined to come from the .357-magnum used by Anderson during the
robbery.

-2-

Woods, Anderson, and Lewis fled the store, but El-Naham
followed them outside and saw them run across Bernard Street. He
called 911, and Rochester Police Department (“RPD”) Officer Otto
Harnischfeger (“Officer Harnischfeger”) responded to the scene.
El-Naham provided descriptions of the intruders and turned over the
VHS tape containing surveillance video of the store to Officer
Harnischfeger. (T.261-63, 328). RPD Officer Patrick Carney’s K-9
partner scent-tracked Woods, Anderson, and Lewis to a house at
466 Bernard Street, where multiple footprints in the snow led to
the side door. Back-up was requested and officers began to set up
a perimeter outside the house. RPD Sergeant Robert J. Wilson
(“Sergeant Wilson”) spoke to a woman who lived across the street,
and asked her to call the occupants at 466 Bernard. She did so and
Sergeant

Wilson

eventually

spoke

to

a

woman

who

lived

at

466 Bernard. She told him no one was inside the house, and then
gave the RPD permission to enter the house, and gave Sergeant
Wilson the house key.
Sergeant

Wilson

entered

the

house

at

466

Bernard

with

Officer Carney, Officer Cuyler Mooney and his K-9 partner, and
Officer Richard Gerbino. They announced their presence and the
presence of a police dog. They went upstairs to the attic and again
announced

their

presence.

Officer

Carney

and

Sergeant

Wilson

observed a crawl-space in the attic with a black jacket and silver
gun. They yelled out that they knew people were hiding inside the

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attic because they saw the gun and jacket, but no one responded.
Officer Carney saw someone moving behind the drywall towards the
silver gun and the opening of the crawlspace. Officer Mooney’s dog
apprehended the man later identified as Anderson and Officer Carney
grabbed the gun. Another man, later identified as Woods, said,
“Don’t let the dog bite me. I give up.” (T.377). He showed his
hands as he came out of the crawlspace and was placed in handcuffs.
The officers tore down some dry wall and pulled out the third
suspect, later identified as Lewis. Officer Nickolas Romeo patted
Woods down and found a pair of black gloves in his left back pants
pocket.
Petitioner was taken to the precinct briefly and then driven
to the corner of North and Bernard Streets for a show-up procedure
with El-Naham.
Also in the attic, the police found a cigar box, cigars,
cigarettes, two one-dollar bills, clothing, and three guns. An
investigator for the Monroe County District Attorney’s Office
returned to the house later and located $410 in cash in the attic
crawlspace. Bullets and casings recovered from the grocery store
were found to match two of the three guns seized from the attic of
466 Bernard Street. Woods’ fingerprints were found on one of the
guns used in the robbery.

-4-

B.

Petitioner’s Statements to Police

After show-up identification procedure, Woods was driven to
the Public Safety Building, and arrived there just after 10:00 p.m.
He was placed in an interview room and handcuffed to the table.
At 5:20 a.m., Investigator Glenn Weather and Sergeant Mark D.
Mariano joined Woods in the interview room. Investigator Weather
read Woods his rights, and Petitioner agreed to speak with the
police without an attorney present. Over the next hour, Woods
repeatedly

denied

any

involvement

in

the

robbery.

At

about

6:15 a.m., Investigator Weather and Sergeant Mariano left the room.
When they returned at about 6:39 a.m., the officers told Woods
that they had reviewed the surveillance videotape from the store.
Woods told them “that he didn’t shoot anybody” and asked for “time
alone to think [about] it.” (H.249-50). The officers left the room
at about 7:05 a.m.
They returned at 7:55 a.m. and spoke with Woods until 8:10
a.m. When asked, Woods said he would like to watch the surveillance
videotape, which he did between 8:10 and 8:18 a.m. Officer Cassidy
was also present during Woods’ viewing of the videotape. While it
was

being

played,

right-handed
right-handed.

or

Officer

left-handed,

Cassidy
and

asked

Woods

Woods

replied

if

he

was

that

he

was

According to the officers, after viewing the video,

Woods “put his head in his hands and said, ‘I’m ready.’” (T.53940). Woods “immediately began to tell [them] that, in fact, he was

-5-

there, and that he didn’t kill the guy, that he was shooting in the
air because he heard the one guy coming down the stairs as the
robbery

was

going

down.”

(H.253).

Beginning

at

8:20

a.m.,

Investigator Weather and Sergeant Mariano took a written statement
from Woods. Investigator Weather read the statement aloud, and
Woods read it to himself. After making several corrections to the
written statement, Woods signed it at 8:36 a.m.
In the statement, Woods explained that he, Anderson, and Lewis
had planned a robbery, and that he was carrying a black .45-caliber
handgun

that

night.

Woods

was

wearing

black

jeans

with

red

stitching and a “puffy North Face jacket.” They went to “the Arab
store at the corner of North Street and Bernard Street,” drew their
guns and entered. (T.548-49). Woods stated that
[t]here was a guy behind the counter, an Arab guy. Stefan
[Lewis] went behind the counter and started pulling
stuff– started putting stuff in the bag. The guy behind
the counter started moving back and forth making me
nervous. All of the sudden I saw the door in the back of
the store start to open. I yelled, whose [sic] there, and
fired a shot in the air. I saw a part of a shirt, but I
didn’t see the whole person and didn’t know if he had a
gun or something. So I fired another shot in the air to
warn him. My gun locked open because it was empty.
[Anderson] started firing the gun he had, and I saw the
guy who came out of the back room fall backwards. We all
ran out of the store, and I followed [Anderson] and
Stefan down Bernard Street up into this girl’s house.
(T.549).
Sergeant

Mariano

then

directed

that

Woods’

clothing

be

collected and stored as evidence, in light of the surveillance

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video and the fact that identifications were made partially based
on the perpetrators’ clothing.
Following a suppression hearing, the trial court precluded
Woods’ statement to Officer Cassidy that he was right-handed on the
basis that the prosecution failed to serve the defense with notice
of their intention to use that statement at trial. However, the
trial court denied the remainder of Woods’ motion to suppress his
statements, finding that they were made after Woods knowingly
waived his constitutional rights; that Woods was not intoxicated,
ill, or injured during the interview process; and that there was
nothing in Sergeant Mariano’s conversation with Woods that would
confer “a benefit on [Woods] that would cause those statements to
be coercive

in any way.” (Suppression Decision at 10). The trial

court also denied Woods’ motion to suppress his clothing, finding
that it was “seized only after there was information from the
investigators regarding a description of the clothing worn by the
perpetrators of the robbery[,] only after there was a viewing of a
videotape regarding clothing of the particular individuals involved
in that robbery and only after the officers themselves had observed
[that] the clothing of the defendant Wesley Woods appeared to match
those described by other individuals and that on the videotape.”
(Id. at 11).

-7-

C.

The Defense Request Regarding the 911 Tape

After the prosecution concluded their case-in-chief, defense
counsel asked the trial court for a one-day adjournment because he
was attempting to locate an additional witness, a police officer
whose voice could be heard on the 911 tape. Defense counsel noted
that in the 911 transcript, there was “a statement from a police
officer in sum and substance that they may have seen a car leaving
466 Bernard Street. The 911 records attribute that statement
Officer Romeo.” Counsel said that, just before he questioned
Officer Romeo yesterday, he found out that the 911 records were
inaccurate and that it was not Officer Romeo who made the statement
in question. (T.645). Defense counsel stated that he thought it may
have been Officer Steven Royka. He had requested the prosecutor’s
assistance in locating Royka, but the prosecutor had been unable to
reach him at his home phone number. The prosecutor contacted the
RPD and learned that Royka was on vacation until July 14, 2008.
Defense counsel proceeded to request an adjournment to attempt to
locate Officer Royka, and in the alternative, to request that the
jury be allowed to hear that particular portion of the 911 tape, on
the basis that it is admissible as a present sense impression.
Defense counsel argued that even if Officer Royka had asked a
question (“Is that a car leaving from 466 Bernard?”) rather than
made a statement (“That is a car leaving from 466 Bernard.”), it
made no difference, because the asking of the question would

-8-

support the fact that Officer Royka “saw something in that area,
saw a car leaving and was asking other officers, is he leaving the
scene where the tracks are leading.” The prosecutor replied that he
believed Officer Royka had asked a question and noted that it was
“very difficult to hear everything that’s said on that tape. Parts
of it are garbled. There is [sic] other broadcasts.” The prosecutor
indicated that his understanding was Officer Royka had a perimeter
point on an intersection one or two blocks away from 466 Bernard
Street at least initially[,]” so “[i]f that was him asking a
question,” it is unclear where he was at the time of the question.
The prosecutor disagreed that asking a question constitutes a
present sense impression since Officer Royka was not describing
something he saw. During the colloquy that ensued with the trial
court, defense counsel conceded that he did not know for certain
that the speaker was Officer Royka but he “submit[ted]” it was that
officer.

The

trial

court

pointed

out

that

it

was

“unclear

apparently. It’s not identified in any way; is that right? [Counsel
was] speculating it’s Officer Royka, where he is, whether or not
it’s an observation or some kind of a question. It just seems
totally speculative . . . at this point without more information.”
The prosecutor added that the 911 tape included a second robbery,
with the radio broadcasts from the two incidents being mixed
together on the tape. Defense counsel asserted that he believed

-9-

those references to the other robbery were much earlier in the
tape.
The trial court asked whether the speaker who made “reference
to a car leaving a driveway . . . specif[ied] it’s 466 Bernard
Street[.]”

The

prosecutor

explained

that

the

speaker

“says

something about [‘]there,[’] and it’s only if you assume it’s
related to a statement before or a statement after by someone else
that you can draw that inference, but I think you have to make an
inference. . . .” Defense counsel countered by pointing out that in
911 printout, “just before that statement is made, an officer says,
canine prints stopping at 466 Bernard Street. The next transmission
is [‘]possibly a vehicle pulled out of the driveway there[,’]
followed by another transmission, something along the lines of
[‘]they possibly went into the location.[’]” The trial court then
proceeded to “deny the application” because, based on what it had
heard, the court “believe[d] it’s too speculative[.]”
D.

The Verdict, Sentence and Direct Appeal

The jury returned a verdict convicting Woods as charged in the
indictment

of

second-degree

(felony)

murder

and

first-degree

robbery. On July 23, 2008, the trial court sentenced Woods to an
indeterminate term of 25 years to life on the murder conviction,
with

a

concurrent

25-year

determinate

term

on

the

robbery

conviction, to be followed by 5 years of post-release supervision.

-10-

On direct appeal, Woods was represented by new counsel who
argued that trial counsel was ineffective in failing to timely
investigate the issue of the unidentified police officer on the 911
tape; that Woods’ statements to police were inadmissible due to an
excessive delay in arraignment and impermissible promises of lenity
by the police; that the warrantless seizure of Woods’ clothing
following his provision of a written statement was unreasonable;
and that the sentence was harsh and excessive. The Appellate
Division, Fourth Department, of New York State Supreme Court
unanimously affirmed the judgment in a memorandum opinion. People
v. Woods, 93 A.D.3d 1287, 940 N.Y.S.2d 747 (4th Dep’t 2012). The
New York Court of Appeals denied leave to appeal. People v. Woods,
19 N.Y.3d 969 (2012).
E.

The Federal Habeas Petition

This timely habeas petition follows in which Woods seeks the
following grounds for relief: (1) his statements to police should
have been suppressed as involuntary; (2) the clothing seized from
him without a warrant at the police station should have been
suppressed;

(3)

trial

investigate

the

need

counsel
for

a

was
police

ineffective
officer’s

in

failing

testimony;

to
and

(4) Woods’ sentence was unduly harsh and excessive.
Respondent answered the petition, asserting that the defense
of non-exhaustion as to the claim of ineffective assistance of
trial counsel, and noting that this makes the petition a “mixed

-11-

petition”

containing

both

exhausted

and

unexhausted

claims.

Respondent urges the Court to deny the petition under the authority
of 28 U.S.C. § 2254(b)(2) because the unexhausted claim is plainly
meritless, and there is no basis for granting a stay-and-abeyance
for exhaustion purposes.
For the reasons set forth below, the request for a writ of
habeas corpus is denied, and Woods’ petition is dismissed.
III. Discussion
A.

Erroneous Denial of Motion to Suppress Statements

Woods asserts that the trial court erred in denying his motion
to suppress his oral and written statements to the police; he
claims he was detained for an unnecessarily long period of time,
and would have said “anything to stop all of the questions.” On
direct appeal, the Fourth Department rejected his claim regarding
the involuntariness of his statements, finding that although he was
detained and questioned by the police for approximately 10 hours,
that fact did not, by itself, render the statements involuntary.
People v. Woods, 93 A.D.3d at 1288 (quotation omitted).

Because

this claim was adjudicated on the merits, Woods only may obtain
habeas relief if the state court’s adjudication was contrary to, or
an unreasonable application of, clearly established Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1).
The relinquishment of the rights conveyed by the Miranda
warnings must be “voluntary in the sense that it was the product of

-12-

a free and deliberate choice rather than intimidation, coercion or
deception[,]” and it must be “made with a full awareness of both
the nature of the right being abandoned and the consequences of the
decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421
(1986). “Only if the ‘totality of the circumstances surrounding the
interrogation’ reveal both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that the
Miranda rights have been waived.” Moran, 475 U.S. at 421 (quoting
Fare v. Michael C., 442 U.S. 707, 725 (1979); citing North Carolina
v.

Butler,

441

U.S.

369,

374–75

(1979)).

The

factors

to

be

considered include the characteristics of the accused, including
his experience, background, age, education, and intelligence; and
the conditions of interrogation, including police conduct, length
of detention, whether the questioning was repeated or prolonged,
physical abuse, handcuff restraints, the deprivation of food or
sleep, and psychologically coercive tactics. See, e.g., Schneckloth
v. Bustamonte, 412 U.S. 218, 226 (1973).
The Court finds that record fails to support Woods’ claim that
he was detained for an excessive period of time and would have said
“anything to stop all of the questions.” The testimonial and
documentary evidence indicates that Woods arrived at the police
station just after 10:00 p.m., and he was left alone in an
interview room until 5:20 a.m. At that time, two officers came into
the room and read him his Miranda warnings, which he waived. The

-13-

officers questioned Woods for an hour, during which time he denied
any involvement in the robbery. At about 6:15 a.m., the officers
left the room, and returned shortly thereafter, informing Woods
that they had reviewed the store’s surveillance tape. At that Woods
denied shooting anyone and asked for “time alone to think [about]
it.” (H.249-50). About an hour later, the officers returned and
spoke with Woods, who stated that he would like to see the
surveillance video himself. Woods watched the video, and then
“immediately began to tell [them] that, in fact, he was there, and
that he didn’t kill the guy, that he was shooting in the air
because he heard the one guy coming down the stairs as the robbery
was going down.” (H.253). The officers began recording Woods’
written statement at 8:20 a.m. Woods made corrections to the
written statement and signed it at 8:36 a.m. The Court recognizes
that while the actual interview process, cumulatively, only spanned
a few hours, the officers did wait more than seven hours overnight
before beginning to interrogate Woods. As the Fourth Department,
found there was “no indication in the record of the suppression
hearing that [Woods] sought to end the interrogation or that his
alleged lack of sleep left him ‘so . . . fatigued that he was
incapable of intelligently waiving his rights or comprehending the
meaning of his statement[s].’” People v. Woods, 93 A.D.3d at 1288
(quotation and some quotation marks omitted; ellipsis in original).
While the police officers’ delay in beginning to question Woods was

-14-

lengthy, he does not argue that he was not permitted to sleep
during this time or was otherwise intentionally kept awake by the
police. See, e.g., United States v. Guzman, 11 F. Supp.2d 292, 298
(S.D.N.Y.) (defendant’s

suggestion that confession coerced due to

sleep deprivation rejected where no evidence “to suggest that
[defendant] expressed any fatigue he felt, or that he indicated a
desire to end the interrogation”) (collecting cases), aff’d, 152
F.3d 921 (2d Cir. 1998); United States v. DiLorenzo, 94 Cr. 303,
1995 WL 366377, at *8 (S.D.N.Y. June 19, 1995) (“[A] claim that a
defendant was exhausted or suffering from the effects of alcohol is
not,

in

sufficient

the
to

absence

of

coercive

characterize

his

law

enforcement

confession

as

activity,

involuntary.”)

(collecting cases). The Court notes that approximately an hour of
the interrogation process was due to a request by Woods to be “left
alone” to think. See, e.g., Richter v. Artuz, 77 F. Supp.2d 385,
396 (S.D.N.Y. 1999) (no coercion found where the petitioner was
present at police barracks for a “considerable amount of time,” but
was “questioned only intermittently and not continuously”).
Woods also cites a statement by one of the police officers who
interrogated him, which he claims was coercive and amounted to a
promise of leniency in exchange for his confession. The parties
dispute the substance of Sergeant Mariano’s statements. According
to Woods, Sergeant Mariano told him “that things would go better
for him in court” if he made a statement, that a confession would

-15-

“look good to the legal system”, and that “the Court would do
[some]thing or the D.A. would do [some]thing” (H.288, 290-91).
Sergeant Mariano said he told Woods, “[B]e a man, show some
remorse, some concern for what you did, and maybe things will go a
little easier. But I am not the guy in the black robe that is going
to be the one handing out the punishments, but it couldn’t hurt.”
(H.290). He said it would be “good” for Woods because “as a human
being you ought to take responsibility for what you did because it
is irrefutable in our minds what you did. So if you want to stand
in a courtroom some day be [sic] a tough thug, see how it works out
for you.” (H.291). On direct appeal, the Fourth Department found
that Sergeant Mariano’s “generalized comment to . . . regarding the
benefits of cooperating with the police did not constitute a
promise of leniency that created ‘a substantial risk that [Woods]
might falsely incriminate himself[.]’” Woods, 93 A.D.3d at 1288
(quoting N.Y. CRIM. PROC. LAW § 60.45(2)(b)(i);1 citation omitted).
The Court finds that the state courts did not erroneously
apply federal law in rejecting this claim. The Second Circuit has

1

New York Criminal Procedure Law (“C.P.L.”) § 60.45(2)(b)(i) “treats as
‘involuntarily made’ a statement elicited ‘by means of any promise or statement
of fact, which promise or statement creates a substantial risk that the defendant
might falsely incriminate himself,’ but this provision does not, and indeed
cannot, displace the categorical constitutional prohibition on the receipt of
coerced confessions, even those that are probably true[.]” People v. Thomas,
22 N.Y.3d 629, 644–45 (2014) (citing Rogers v. Richmond, 365 U.S. 534, 545 n. 3
(1961) (stating that “whether the question of admissibility is left to the jury
or is determinable by the trial judge, it must be determined according to
constitutional standards satisfying the Due Process Clause of the Fourteenth
Amendment”)).

-16-

held that “a confession is not involuntary merely because the
suspect was promised leniency if he cooperated with law enforcement
officials.” United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987)
(in response to questioning, defendant indicated that he had
weapons in his car and agreed to turn them over to the agents; the
agents informed defendant that he would not face additional charges
as a result of his possession of these weapons so long as he
honored

the

cooperation

agreement)

(citing

United

States

v.

Pomares, 499 F.2d 1220, 1222 (2d Cir.) (“No specific promises were
made to Pomares. He was simply informed that it would be to his
benefit to cooperate. Such statements by law enforcement officials
have not been considered overbearing.”), cert. denied, 419 U.S.
1032 (1974); United States v. Ferrara, 377 F.2d 16, 17–18 (2d Cir.)
(federal agent testified he had told defendant “if he cooperated
with the United States (Attorney) I felt sure he would get out on
reduced

bail”;

court

rejected

defendant’s

claim

that

agent’s

“‘promise’ render[ed] his confession involuntary as a matter of
law”), cert. denied, 389 U.S. 908 (1967)). Here, “[n]o specific
promises were made,” Pomares, 499 F.2d at 1222, by Sergeant Mariano
to

Woods.

Rather,

Sergeant

Mariano

suggested,

albeit

rather

strongly, that it might—but not necessarily would—be to his benefit
to cooperate with the police. As a matter of federal law, Sergeant
Mariano’s statements did not amount impermissible coercion. See id.

-17-

B.

Unreasonable Seizure of Petitioner’s Clothing

Woods contends that the trial court erred in denying his
motion to suppress the clothing seized from him upon his arrest.
According to Woods, the police should have obtained a search
warrant first. On direct appeal, the Fourth Department held that
the trial court “properly refused to suppress the clothes that
[Woods] was wearing when he was arrested and interviewed by the
police[,]” People v. Woods, 93 A.D.3d at 1288–89, under the “plain
view” doctrine. Here, as the court noted, “the clothes worn by
[Woods] were in plain view when the police captured and arrested
him, and brought him to the police station for questioning. The
clothing fit the general description given by a witness to the
crimes and as depicted in a video tape recovered by the police from
a security camera in the

store at which the crimes occurred.” Id.

at 1289 (internal and other citations omitted).
As Respondent argues, this Fourth Amendment claim is barred
from federal habeas review under the doctrine of Stone v. Powell,
428 U.S. 465, 482 (1976), in which the United States Supreme Court
held that “where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, the Constitution does
not require that a state prisoner 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. at 481–82.
The Second Circuit has explained that “nce it is established that

-18-

a petitioner has had an opportunity to litigate his or her Fourth
Amendment claim (whether or not he or she took advantage of the
state’s procedure), the court’s denial of the claim is a conclusive
determination that the claim will never present a valid basis for
federal habeas relief. . . .[T]he bar to federal habeas review of
Fourth Amendment claims is permanent and incurable absent a showing
that the state failed to provide a full and fair opportunity to
litigate the claim[.]” Graham v. Costello, 299 F.3d 129, 134
(2d Cir. 2002).
Here, Woods does not and cannot contend that New York failed
to provide appropriate corrective procedures to address his Fourth
Amendment
New

York's

claim.

Indeed,

procedure

for

“the

federal

litigating

courts

Fourth

have

Amendment

approved
claims”

embodied in C.P.L. Article 710. Capellan v. Riley, 975 F.2d 67, 70
n.1 (2d Cir. 1992). Furthermore, Woods took advantage of New York’s
corrective procedures by litigating his Fourth Amendment claim,
through trial counsel, at the pre-trial suppression hearing, and
through appellate counsel on direct appeal. The Fourth Department
considered Woods’ claim on the merits and, after discussing it,
rejected it unanimously. “[A] petitioner’s mere disagreement with
the outcome of the state courts’ rulings ‘is not the equivalent of
an unconscionable breakdown in the state’s corrective process.’”
McClelland v. Kirkpatrick, 778 F. Supp. 2d 316, 332 (W.D.N.Y. 2011)
(quoting Capellan, 975 F.2d at 72; other citations omitted).

-19-

Because Woods “can show nothing more than that he disputes the
correctness of the state court’s rulings, the doctrine of Stone v.
Powell forbids de novo review[,]” McClelland, 778 F. Supp.2d at
333, of his Fourth Amendment claim.
C.

Ineffective Assistance of Trial Counsel

Woods reasserts his claim, presented by appellate counsel on
direct appeal, that defense counsel failed to properly prepare for
trial because he did not investigate, in a timely manner, the need
to call a police officer, who apparently appeared on the 911 tape.
Appellate counsel argued that trial counsel had no tactical or
strategic reason for being unable to locate this police officer.
Counsel faulted trial counsel for not start looking for the officer
until the witness was on vacation, despite having had access to the
911 recording three months prior to trial. The Fourth Department
held that the claim “involve[d] matters outside the record on
appeal and thus is properly raised by way of a motion pursuant to
CPL article 440[.]” People v. Woods, 93 A.D.3d at 1289 (citation
omitted).
Even

under

a

de

novo

standard

of

review,

Woods

cannot

establish ineffective assistance of trial counsel under Strickland
v. Washington, 466 U.S. 668 (1984). To establish a federal claim of
ineffective

assistance

demonstrate

that

objective

his

standard

of

of

trial

attorney’s

counsel,

petitioner

representation

reasonableness,

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a

and

fell

that

must

below

there

is

an
a

reasonable

probability

that,

but

for

counsel’s

unprofessional

errors, the result of the proceeding would have been different. Id.
at

694.

The

Strickland]

Court
here,

“need
for

only

where

consider

‘it

is

the

easier

second
to

prong

dispose

of

[of
an

ineffectiveness claim on the ground of lack of sufficient prejudice
[than on the ground of objectively unreasonable performance] . . .
that course should be followed.’” Parker v. Ercole, 666 F.3d 830,
834 (2d Cir. 2012) (quoting Strickland, 466 U.S. at 697; ellipsis
and second brackets in Parker).
To analyze this claim, the Court accepted the following
assumptions, urged by defense counsel to the trial court in his
request for an adjournment to find the officer: that the unknown
police officer on the 911 tape was indeed Officer Royka, and that
Officer Royka was making a declarative statement (“That is a car
leaving from 466 Bernard.”) rather than asking a question (“Is that
a car leaving from 466 Bernard?”). Even making these assumptions in
Woods’ favor, there is no reasonable probability of a different
result at Woods’ trial. Had Officer Royka had actually seen someone
driving away from the house at 466 Bernard

Street, that does not

change the fact that Woods was found hiding in the attic at 466
Bernard with his co-perpetrators within minutes of the robbery;
that, after watching the store surveillance video, he almost
immediately confessed to planning and participating in the robbery;
that his fingerprint was on one of the guns used in the robbery;

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and that he was wearing the same clothes described by the only
eyewitness to the robbery. (See T.401-02, 540, 595). Had Officer
Royka testified, as the defense hoped, that he had seen a car
leaving the driveway at 466 Bernard, such evidence would not have
created a reasonable doubt in the jurors’ minds where one otherwise
did not exist.
D.

Abuse of Discretion in Sentencing

Woods asserts that the trial court abused its discretion and
imposed

an

unduly

harsh

and

excessive

sentence.

The

Fourth

Department summarily rejected this claim.
“[A] petitioner’s assertion that a sentencing judge abused his
discretion in sentencing is generally not a federal claim subject
to review by a habeas court.” Hogan v. West, 448 F. Supp. 2d 496,
519 (W.D.N.Y. 2006) (citing Fielding v. LeFevre, 548 F.2d 1102,
1109 (2d Cir. 1977) (petitioner raised no cognizable federal claim
by

seeking

to

prove

that

state

judge

abused

his

sentencing

discretion by disregarding psychiatric reports); other citation
omitted). Although Woods’ sentence of 25 years to life represents
the maximum sentence allowable for the crime of felony murder, it
nevertheless is within the permissible statutory range for such a
conviction. “A challenge to the term of a sentence does not present
a cognizable constitutional issue if[, as is the case here,] the
sentence falls within the statutory range.” Hogan, 448 F. Supp.2d

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at 519 (citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992);
Ross v. Gavin, 101 F.3d 687 (2d Cir. 1996) (unpublished opn.)).
IV. Conclusion
For the reasons stated above, the request for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is
dismissed. Because there has been no substantial showing of a
denial of a constitutional right, the Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
___________________________________
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

March 22, 2017
Rochester, New York

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