Abuhamra v. Graziano et al
DECISION AND ORDER dismissing petition for writ of habeas corpus [Dkt. 1] and declining to issue a certificate of appealability. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/2/2017. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:14-CV-00663 (MAT)
DECISION AND ORDER
-vsMICHAEL GRAZIANO, as
Superintendent of the Collins
Correctional Facility, and
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
petitions this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a judgment
entered December 14, 2009, in New York State Supreme Court, Erie
County (Franczyk, J.), following a jury verdict convicting him of
§ 120.05(1) and (2)), one count of unlawful imprisonment in the
second degree (N.Y. Penal Law § 135.05), and one count of criminal
contempt in the first degree (N.Y. Penal Law § 215.51). Petitioner
was sentenced to an aggregate definite prison term of six and onehalf years with three years post-release supervision.
Factual Background and Procedural History
Petitioner initially pled guilty to the top count of his
indictment, assault in the second degree. Petitioner withdrew his
guilty plea on June 16, 2009, after Supreme Court Justice Michael
Pietruszka informed the parties that he would not be able to honor
the sentencing commitment,1 and thereafter recused himself, at
which point Justice Thomas Franczyk took over petitioner’s case.
A jury convicted petitioner of assaulting his then-girlfriend,
Marwa Soliman, and violating an order of protection in favor of
Soliman against petitioner. At the time, Soliman was an Egyptian
citizen and was not a citizen of the United States. Petitioner was
charged with assaulting Soliman by hitting her and by striking her
with a light bulb; restraining her against her will; and violating
an existing order of protection by making repeated telephone calls
to Soliman. The theory of petitioner’s defense was that Soliman
fabricated the story in order to obtain a U Visa, an immigration
Petitioner testified in his own defense, denying that he had
committed the crimes charged. However, on cross-examination, the
conversations in which petitioner had admitted causing injuries to
Petitioner filed a counseled direct appeal of his judgment of
conviction to the New York State Supreme Court, Appellate Division,
Judge Pietruszka stated that, upon reviewing the PSI, it appeared that
he had made his original sentence commitment based on incorrect information. See
Appendix to State Court Record (“App’x”) (filed manually with the Court on
December 31, 2014), Exh. B.
ineffective assistance of counsel due to (1) counsel’s failure to
adequately prepare the case and speak with petitioner before trial;
failure to meaningfully communicate with petitioner with respect to
a plea offer; (2) failure to adequately investigate the case and
allowing misleading testimony to be offered by the prosecution at
testimony; and (4) failure to call expert or any other witnesses to
authenticate documents. On June 28, 2013, the Fourth Department
unanimously affirmed his conviction, but modified his sentence. See
People v. Abuhamra, 107 A.D.3d 1630, 1630 (2013), lv. denied, 22
ineffective assistance claims, finding that he “failed to establish
the lack of a strategic basis for any of the alleged deficiencies.”
Id. at 1631.
Petitioner filed a CPL § 440.10 motion, arguing that trial
counsel was ineffective for (1) failure to introduce into evidence
a letter from the prosecutor to Soliman’s immigration attorney
which established that she was applying for a U visa; (2) failure
to call certain available witnesses who would have contradicted
Soliman’s testimony or corroborated petitioner’s claim that she
fabricated the assault in order to secure a U Visa; (3) failure to
confront Soliman with her testimony from a civil deposition in
defendant’s conduct; and (4) failure to properly discuss a plea
offer with him. Petitioner’s § 440.10 motion was denied by the
trial court on June 5, 2012. The Fourth Department unanimously
affirmed the trial court’s denial of petitioner’s § 440.10 motion.
22 N.Y.3d 1038.
The instant counseled petition argues that (1) trial counsel
was ineffective for (a) failure to investigate and call various
witnesses allegedly necessary to the defense theory; (b) failure to
introduce into evidence a letter from the prosecutor to Soliman’s
immigration attorney which established that she was applying for a
U visa and failed to call Soliman’s immigration lawyer; (c) failure
to cross examine Soliman with regard to her prior civil deposition
(d) failure to prepare petitioner for cross-examination regarding
Soliman’s U Visa application and medical bills from Soliman’s
insurance company denying coverage due to a preexisting condition.
Petitioner also requests an evidentiary hearing “to the extent this
Court determines the state court record is incomplete.” Doc. 1 at
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).
Petitioner’s Request for Evidentiary Hearing
Petitioner requests an evidentiary hearing “to the extent this
Court determines the state court record is incomplete.” Doc. 1 at
2. A petitioner is entitled to discovery “if, and to the extent
that, the judge in the exercise of his discretion and for good
cause shown grants leave to do so, but not otherwise”. Boyland v.
Artus, 2016 WL 4718196, *6 n.12 (W.D.N.Y. Sept. 8, 2016) (quoting
Bracy v. Gramley, 520 U.S. 899, 904 (2008). Good cause exists when
petitioner’s specific allegations provide “reason to believe that
the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief”. Id. at 908-09
(internal quotation marks omitted).
Petitioner has not identified any specific gap in the record
warranting an evidentiary hearing. The Court notes, however, that
the Record of Appeal (“ROA”) in petitioner’s state court case,
which was manually filed with this Court by defendant, appears to
be missing some 108 pages. The ROA’s table of contents indicates
that the last two entries consist of transcripts of the final two
days of trial. It appears that the record is missing approximately
21 pages from its penultimate entry; the trial transcript cuts off
at a point near the end of petitioner’s testimony. The transcript
of the final day of trial (an 87-page volume), when the verdict was
delivered, is also missing.
At the time the petition was filed, respondent had not yet
manually filed the state court record; thus, the gap in the record
did not yet exist. Petitioner has not since alleged that the gap is
significant and it is apparent that petitioner had the benefit of
the full record
contents of the missing transcript, moreover, are not in dispute,
and the Court finds that it is able to fully consider petitioner’s
and defendant’s arguments without consulting the missing pages.
Petitioner has not made specific allegations which provide “reason
developed, be able to demonstrate that he is . . . entitled to
relief[.]” Boyland, 2016 WL 4718196, at *6 n.12 (quoting Bracy, 520
U.S. at 908-09). Accordingly, the Court denies petitioner’s request
for an evidentiary hearing.
To the extent that petitioner requests an evidentiary hearing
as to other matters underlying his petition, this request is
similarly denied because, for the reasons discussed below, the
petition is dismissed in its entirety. See, e.g., Harris v. Yelich,
recommendation adopted, 2017 WL 168005 (W.D.N.Y. Jan. 17, 2017).
Grounds Asserted in the Petition
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, 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, 687, 695 (1984). Under Strickland, the
Court is required to consider alleged errors by counsel “in the
aggregate.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Where a state court has denied a claim of ineffectiveness based on
a state law standard, a petitioner “must do more than show that he
would have satisfied Strickland’s test if his claim were being
analyzed in the first instance, because under § 2254(d)(1), it is
independent judgment, the state-court decision applied Strickland
incorrectly.” Bell v. Cone, 535 U.S. 685, 698–99 (2002). Rather,
petitioner must show that the state court “applied Strickland to
the facts of his case in an objectively unreasonable manner.” Id.
Failure to Investigate and Call Witnesses
Petitioner argues that trial counsel was ineffective for
failure to investigate and call various witnesses, in relation to
the contempt charge and the assault charges. As acknowledged in
petitioner’s brief, he raised these claims in his § 440.10 motion.
The trial court denied the claims, and the Fourth Department
affirmed. Petitioner sought leave to appeal to the New York State
Court of Appeals on the limited issue of whether the trial court
erred in finding that defendant must submit a statement from trial
counsel to overcome the presumption that he received effective
assistance of counsel. See App’x, Exh. C. Accordingly, this claim
is procedurally defaulted from review. See Galdamez v. Keane, 394
F.3d 68, 74 (2d Cir. 2005) (noting that a habeas petitioner who
fails to apply to the New York Court of Appeals for leave to review
Greene, 2009 WL 1916381, *2 (S.D.N.Y. July 1, 2009) (“A petitioner
may be precluded from pursuing a federal habeas corpus review
because of a procedural default if he failed to raise an issue in
seeking leave to appeal to the New York Court of Appeals. When that
happens, petitioner is procedurally barred from habeas corpus
“[A] finding of procedural default bars habeas review of
Petitioner's federal claim unless he can show cause for the default
and prejudice attributable thereto, or demonstrate that failure to
consider the claim will result in a fundamental miscarriage of
justice.” Cooley v. Superintendent, 2011 WL 2651078, *9 (W.D.N.Y.
July 6, 2011). Petitioner has not alleged cause and prejudice to
overcome the procedural default. 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,
622 (1998)). His claim is procedurally defaulted from habeas review
and dismissed on that basis.
Failure to Enter Letter Regarding U Visa Into
Evidence and Failure to Call Immigration Lawyer As
Petitioner contends that counsel was ineffective for failing
to enter into evidence a letter which would establish Soliman’s
knowledge of the U Visa procedure. The record establishes that the
letter, though not ultimately entered into evidence, was addressed
Attorney, referenced Soliman’s U Visa application, and acknowledged
that the ADA had reviewed and signed paperwork associated with
petitioner’s criminal case. The paperwork was enclosed in the
letter to Soliman’s immigration attorney. See T. 1049-50. At trial,
petitioner’s counsel did not admit the letter into evidence, but
legislation regarding U Visas to the jury so that they were
counsel’s failure to enter the letter into evidence rendered
counsel ineffective, and contends that counsel should have called
Soliman’s immigration lawyer as a witness.
Petitioner raised this contention on direct appeal. While the
Fourth Department did not discuss this specific issue, it found
that counsel provided meaningful representation within the meaning
of New York State law. See Abuhamra, 107 A.D.3d at 1631 (citing
People v Baldi, 54 N.Y.2d 137, 147 (1981)). The Second Circuit has
“recognized that the New York ‘meaningful representation’ standard
is not contrary to the Strickland standard.” Rosario v. Ercole, 601
established that there is a “reasonable probability that, absent
reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.
The theory of petitioner’s defense was that Soliman alleged
her injuries were caused by petitioner in order to secure a U Visa.
However, the letter would not have established this defense as
fact; at most, it provided evidence that Soliman’s immigration
attorney was apprised of the status of petitioner’s criminal case
in regard to Soliman’s U Visa application. It is not reasonably
probable that a letter to this effect would have had any additional
impact on the jury’s deliberations, because the jury ultimately
rejected this theory of the defense, despite other evidence at
trial establishing that Soliman did in fact apply for a U Visa.
Additionally, it is unclear how calling Soliman’s immigration
attorney as a witness would have established anything other than
what was already in evidence, i.e., that the attorney assisted
Department’s rejection of this argument was not contrary to, nor an
unreasonable application of, applicable federal precedent.
Failure to Cross-Examine Soliman Regarding Civil
Petitioner contends that trial counsel was ineffective for
failing to utilize prior civil deposition testimony to establish
that Soliman had preexisting injuries unrelated to the alleged
assaults. Petitioner raised this claim in his § 440.10 motion. The
trial court denied the motion, noting that “counsel did reference
defendant and got her to admit that she had been involved in a car
brother.” Order dated June 5, 2012 (Franczyk, J.) (citing People v.
Orr, 240 A.D.2d 213, 213 (1st Dep’t 1997) (holding that ineffective
assistance claim “raised no issue that could not be resolved on the
trial record”). Counsel could not have impeached Soliman with her
prior consistent testimony, and therefore was not ineffective for
his failure to do so.
Failure to Prepare Petitioner for Cross-Examination
Petitioner contends that counsel was ineffective for failure
to prepare petitioner for his trial testimony, including failing to
prepare him for cross-examination regarding recordings petitioner
argues should not have been turned over by counsel prior to trial.
Petitioner made this argument on direct appeal, but the Fourth
petitioner received meaningful representation under New York law.
In holding that counsel provided meaningful representation, the
Fourth Department did not apply Strickland in an objectively
unreasonable manner. See Bell, 535 U.S. at 699. Given the otherwise
Soliman’s testimony and medical and photographic evidence of her
probability that, absent the errors [by counsel], the fact finder
would have had a reasonable doubt respecting guilt.” Strickland,
466 U.S. at 695.
Alleged Withholding of Brady Material
In his direct appeal, petitioner argued that the prosecution
withheld exculpatory Brady material. See Brady v. Maryland, 373
U.S. 83 (1963). The Fourth Department rejected this argument,
holding that it was unpreserved for review, and was, in any event,
Department’s holding that this issue was unpreserved constituted an
adequate and independent state law ground precluding habeas review.
“It is well-settled that an Appellate Division finding that a
petitioner failed to preserve a claim for appellate review operates
as a state procedural bar to federal habeas review.” Milton v.
Racette, 2016 WL 67800, *5 (W.D.N.Y. Jan. 5, 2016) (quoting Collado
v. Lemke, 2015 WL 4139256, *5 (E.D.N.Y. July 9, 2015) (citing
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (finding claims
procedurally barred where “Appellate Division explicitly found that
these claims were not preserved for appellate review, in addition
to finding that they were, in any event, without merit.”))).
Accordingly, this claim is denied.
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
February 2, 2017
Rochester, New York.
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