Perez v. Cully
DECISION AND ORDER dismissing the petition 1 . (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/27/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:13-CV-01107 (MAT)
DECISION AND ORDER
-vsMALCOLM R. CULLY, SUPERINTENDENT,
Proceeding pro se, Edwin Perez (“petitioner”), petitions this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is incarcerated pursuant to a judgment entered April 5,
2006, in Monroe County Court (Sirkin, J.), following a jury verdict
§ 120.20(1)). Petitioner was sentenced to fifteen years in prison
followed by five years of post-release supervision.
Factual Background and Procedural History
The evidence presented at trial established that on the night
of September 16, 2005, petitioner and an accomplice, Anthony Ott,
approached and attacked Travis Gray and Hank Hogan as they walked
through the parking lot of a bar located in Rochester, New York.
Petitioner and/or his co-defendant Ott stabbed Gray eight times,
resulting in injuries that caused Gray’s eventual death. Two knives
were found by police in petitioner’s car, one of which tested
positive for Gray’s blood on the blade and petitioner’s DNA on the
handle. A jury convicted petitioner of first-degree manslaughter as
Petitioner filed a direct counseled appeal to the New York
State Supreme Court, Appellate Division, Fourth Department, arguing
that (1) the evidence was legally insufficient to support the
verdict and trial counsel was ineffective for failing to preserve
this claim; (2) the trial court did not properly instruct the jury
or respond to its notes on accessorial liability by not charging
the jury that it must acquit petitioner of manslaughter if it
acquitted Ott of murder and by not specifying the mens rea required
to convict petitioner, and counsel was ineffective for failing to
preserve this issue; (3) the hearing court violated New York
Criminal Procedure Law (“CPL”) § 710.60(6) when it failed to make
findings of fact and conclusions of law in denying petitioner’s
suppression motion, and the trial court violated New York Judiciary
Law § 21 when it adopted the hearing court’s decision without a
separate hearing; (4) the indictment was improperly transferred
from Supreme Court to County Court and then improperly transferred
back to Supreme Court, and thus the presiding trial court lacked
jurisdiction over the case; and (5) petitioner’s sentence was harsh
On April 1, 2011, the Fourth Department unanimously affirmed
petitioner’s conviction. See People v. Perez, 89 A.D.3d 1393
(4th Dep’t 2011), rearg. denied, 92 A.D.3d 1267 (4th Dep’t 2012),
petitioner’s claim that the evidence was legally insufficient was
unpreserved and, in any event, meritless, and held that trial
counsel could not be held ineffective for failing to preserve this
meritless issue. Perez, 89 A.D.3d at 1393. The Court found that
petitioner’s claim regarding a jury instruction for shared intent
explained the applicable legal principles to the jury, it was not
bound to charge the jury as defense counsel proposed[.]” Id.
(quoting People v. Leach, 293 A.D.2d 760, 761 (2002), lv. denied,
98 N.Y.2d 677).
The court also rejected petitioner’s claim that the trial
demonstrated that the suppression hearing was properly litigated
petitioner’s remaining claims – that the trial court failed to
properly instruct the jury that the jury must acquit him of
manslaughter if it convicted his co-defendant of murder; the case
was improperly transferred between Supreme and County Court; and
the hearing court violated CPL § 710.70(6) – unpreserved for
On April 11, 2013, petitioner filed a pro se motion for a writ
ineffective assistance of appellate counsel for failure to raise
petitioner’s presence at a second grand jury presentation; (2) the
trial court’s improper handling of jury notes during deliberations;
and (3) ineffective assistance of trial counsel. On June 7, 2013,
the Fourth Department summarily denied petitioner’s coram nobis
motion. See People v. Perez, 107 A.D.3d 1502 (4th Dep’t 2013), lv.
denied, 21 N.Y.3d 1076.
The instant petition argues that (1) the evidence was legally
insufficient to support the conviction; (2) the trial court failed
to properly instruct the jury on accessorial liability and did not
properly respond to the jury’s note requesting clarification of
that principle; (3) both the hearing and trial court failed to
outline their findings of fact and conclusions of law in denying
petitioner’s motions to suppress; (4) trial counsel was ineffective
manslaughter indictment after petitioner was denied the right to
testify before the grand jury, (b) failing to insist upon a written
decision on his suppression motion, (c) failing use petitioner’s
(d) making improper comments during summation, and (e) failing to
object to the trial court’s handling of the jury notes during
failing to argue that (a) the prosecutor erred in not producing
petitioner at the second grand jury presentation, (b) the trial
court improperly handled the jury’s notes during deliberation, and
(c) petitioner’s trial counsel was ineffective due to these errors.
III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of
habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
Grounds Asserted in the Petition
Petitioner contends that the verdict was based on legally
insufficient evidence, arguing that his co-defendant, acting in
self-defense, actually inflicted the fatal wounds on the victim,
and that the evidence did not prove intent or even action on
Department rejected petitioner’s insufficient evidence claim as
constitutes an adequate and independent state law ground precluding
petitioner’s habeas claim, and the claim is therefore dismissed.
See Anderson v. Griffen, 2012 WL 5227297, *2 (W.D.N.Y. Oct. 22,
2012) (citing Baker v. Kirkpatrick, 768 F. Supp. 2d 493, 500
(W.D.N.Y. 2011); Garcia v. Lewis, 188 F.3d 71, 79-82 (2d Cir. 1999)
(recognizing that New York has a well-established preservation rule
that is regularly followed in a number of contexts)).
Plaintiff contends that the trial court did not properly
instruct the jury on accessorial liability, and committed further
instruction. As respondent argues, however, this claim is not
cognizable on habeas review. See, e.g., Estelle v. McGuire, 502
U.S. 62, 71-72 (1991) (holding that “the fact that the instruction
was allegedly incorrect under state law is not a basis for habeas
relief”); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004)
(noting that federal court is “not empowered to second-guess” an
Accordingly, this claim is dismissed.
Claims Regarding the Suppression Motion
Plaintiff next argues that the hearing and trial courts erred
in denying his motion to suppress identification evidence, see
People v. Wade, 143 A.D.2d 703 (2d Dep't 1988), lv. denied, 73
N.Y.2d 861, because the courts failed to outline their findings of
fact and conclusions of law. Specifically, petitioner argued that
the hearing court violated CPL § 710.60(b) and the trial court
violated Judiciary Law § 21. These state law claims are not
cognizable on habeas review. See Smith v. Savage, 2010 WL 475290,
*7 (W.D.N.Y. Feb. 5, 2010) (holding that claim involving § 710.60
“implicate[d] no federal constitutional right [and was] matter of
state law and . . . [was] thus not cognizable on federal habeas
review”); Gilleo v. Valley, 2016 WL 4530887, *12 (S.D.N.Y. June 9,
2016), report and recommendation adopted, 2016 WL 4532208 (S.D.N.Y.
proceedings “contravened New York's judiciary law . . . [was] not
cognizable on habeas review”).
Even if petitioner’s claims related to federal constitutional
questions, they nevertheless are not cognizable on habeas review.
See McCormick v. Hunt, 461 F. Supp. 2d 104, 107 (W.D.N.Y. 2006)
suppression motion [was] not cognizable on federal habeas review
under the doctrine of Stone v. Powell, 428 U.S. 465 (1976), which
generally precludes the re-litigation of Fourth Amendment claims on
federal habeas review”) (parallel citations omitted); Curry v.
Bennett, 2003 WL 22956980, *13 (E.D.N.Y. Oct. 17, 2003) (“Because
petitioner seeks suppression of the line-up identifications and
petitioner’s statements on Fourth Amendment grounds, his claim is
Accordingly, the claim on this ground is dismissed.
Ineffective Assistance of Trial Counsel
Petitioner argues that his trial counsel was ineffective
manslaughter indictment after petitioner was denied the right to
testify before the grand jury; (2) for failing to insist upon a
written decision on the suppression motion; (3) for failing to use
petitioner’s hospital records to show that he had a pre-existing
injury; (4) for making improper comments during summation; and
(5) for failing to object to the trial court’s alleged O’Rama
improperly responding to jury notes during deliberations.
ineffective assistance of trial counsel on his direct appeal, he
did not raise the issues enumerated above. Moreover, although
counsel in his coram nobis petition, this did not serve to exhaust
those claims “[b]ecause a coram nobis application is not the
appropriate procedural vehicle for asserting a claim of ineffective
assistance of trial counsel.” Congelosi v. Miller, 611 F. Supp. 2d
274, 307 (W.D.N.Y. 2009). Accordingly, as respondent argues, these
claims are unexhausted because petitioner failed to raise them in
state court proceedings.
Petitioner’s arguments described at (3) through (5) above are
record-based and could have been raised on direct appeal; thus,
they are deemed exhausted but procedurally barred. See Quiles v.
Chappius, 2014 WL 4652742, *15 (S.D.N.Y. Sept. 18, 2014), aff’d,
648 F. App’x 83 (2d Cir. 2016) (noting that “record-based claims
may now be ‘deemed’ exhausted but procedurally barred because
[p]etitioner may not raise them again in state court and fully
§ 440.10(2)(c); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir.
2004) (per curiam)). Petitioner has not alleged cause and prejudice
to overcome the procedural bar. Moreover, for purposes of the
miscarriage-of-justice exception, he has made no factual showing
that he is “‘actually innocent’ (meaning factually innocent) of the
crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95,
108 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
Claims (1) and (2) above are not record-based, and therefore
§ 2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”).
First, petitioner argues that trial counsel was ineffective for
failing to make a pretrial motion to dismiss the manslaughter
indictment after petitioner was denied the right to testify before
the grand jury. As respondent points out, “New York courts have
defendant testifies before the grand jury does not amount to
ineffective assistance of counsel.” Davis v. Mantello, 42 F. App’x
488, 491 n.1 (2d Cir. 2002). Accordingly, this claim fails on the
Second, petitioner argues that trial counsel was ineffective
for failing to insist upon a written decision on the suppression
motion. The reasons for counsel’s failure to so insist are not
discernible from the record. However, this argument fails on the
merits because the suppression hearing record fully supports the
Insistence on a written decision would have merely resulted in the
reduction of the hearing court’s oral decision to writing; it would
not have resulted in a favorable determination for petitioner.
Petitioner has thus failed to show any prejudice stemming from
counsel’s actions. See Beck v. Conway, 2014 WL 774967, *5 (E.D.N.Y.
Feb. 25, 2014). Accordingly, this claim is dismissed.
Ineffective Assistance of Appellate Counsel
Finally, petitioner contends that his appellate counsel was
ineffective for failing to raise the following claims on direct
appeal: (1) the prosecutor erred in not producing petitioner for a
second grand jury presentation after petitioner gave oral notice of
his intent to testify; (2) the trial court erred in handling
responses to jury notes; and (3) trial counsel was ineffective for
various reasons. The Fourth Department summarily denied these
arguments in its decision on petitioner’s application for a writ of
error coram nobis. See Perez, 107 A.D.3d 1502 (4th Dep’t 2013), lv.
denied, 21 N.Y.3d 1076.
The Fourth Department’s rejection of petitioner’s claims was
not contrary to, nor an unreasonable application of, federal
precedent. To establish ineffective assistance of counsel at either
the trial or appellate level, a defendant first must show that
“counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and
second, that “there is a reasonable probability that, absent the
errors [by counsel], the fact finder would have had a reasonable
doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668,
consider alleged errors by counsel “in the aggregate.” Lindstadt v.
Keane, 239 F.3d 191, 199 (2d Cir. 2001).
ineffective for failing to raise the issue involving petitioner’s
alleged desire to testify before the grand jury, is not recordbased and therefore could not have been brought on direct appeal.
As such, appellate counsel was not ineffective for failing to raise
this issue. See Whitehead v. Haggett, 2017 WL 491651, *10 (E.D.N.Y.
Feb. 6, 2017) (noting that petitioner’s claim “‘ultimately turn[ed]
on facts appearing outside the record’ such that ‘the Appellate
Division could not have adjudicated [the] claim on direct appeal’”)
(quoting Pierotti v. Walsh, 834 F.3d 171, 179 (2d Cir. 2016)).
Petitioner’s second claim, that the trial court erred in
handling jury notes, is belied by the record. Pursuant to O’Rama,
78 N.Y.2d at 276-81, a New York State trial court is required to
give notice to both parties, in the presence of defendant, as to
the contents of any jury notes submitted during deliberation. A
review of the trial record in this matter reveals that the trial
appellate counsel cannot be held ineffective for failing to raise
this meritless issue on appeal. See, e.g., Allah v. Duncan, 2003 WL
23278846, *6 (E.D.N.Y. Dec. 11, 2003).
ineffective for failing to argue that trial counsel was ineffective
in (1) failing to move to dismiss the second indictment after
petitioner was allegedly denied the right to testify before the
grand jury; (2) failing to use petitioner’s medical records to show
that his hand injury was pre-existing; and (3) failing to properly
object to the jury instruction on accessorial liability and failing
to object to the court’s supplemental jury instructions.
As to appellate counsel’s failure to raise the issue involving
the grand jury, as discussed above, this issue could not have been
raised on direct appeal because it is not record-based. Regarding
counsel’s failure to introduce petitioner’s medical records, upon
a review of the record, the Court concludes that such an argument
would have been meritless. The evidence at trial established that
petitioner’s hand injuries occurred, at least in part, on the day
of the incident in question, as evidenced by the facts that
petitioner’s hand was bleeding at the time of his arrest, and
defendant’s shirt. Again, appellate counsel was not ineffective for
23278846, at *6.
liability charge and to supplemental instructions, the record
reveals that appellate counsel did, in fact, raise these issues in
For the foregoing reasons, the petition (doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability.
of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
April 27, 2017
Rochester, New York.
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