Colvin v. Bunn

Filing 17

DECISION AND ORDER denying and dismissing the petition (Docket No. 1). The Clerk of the Court is directed to close this case. (Copy of this Decision and Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 10/31/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALLEN COLVIN,
Petitioner,
No. 15-CV-00323(MAT)
DECISION AND ORDER

-vsJ. BUNN, Superintendent,
Wyoming Correctional Facility,
Respondent.

I.

Introduction
Pro se petitioner Allen Colvin(“petitioner” or “Colvin”) seeks

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis
that

he

is

being

unconstitutionally

detained

in

respondent’s

custody. Petitioner is incarcerated pursuant to a judgment entered
against him in New York State Supreme Court, Monroe County (the
“Trial Court”), following a jury verdict convicting him of firstdegree robbery, second-degree robbery, and second-degree criminal
possession of a weapon. On April 3, 2009, petitioner was sentenced,
as a second violent felony offender, to an aggregate prison term of
12 years, with five years of post-release supervision.
In the petition, petitioner asserts that his detention is
unconstitutional because (1) the prosecution failed to disclose
favorable evidence, (2) he was denied the effective assistance of
trial counsel, (3) newly discovered evidence demonstrates that he
is actually innocent of the crime for which he was convicted, and

(4) the

prosecution

engaged

in

misconduct.

For

the

reasons

discussed below, the Court finds that petitioner has not shown he
is entitled to relief.
II.

Background
A.

The Underlying Robbery

On September 27, 2007, Brandon Taylor (“Taylor”), having just
left his girlfriend’s apartment, was waiting for a bus inside the
bus stop shelter located at 2052 East Main Street in Rochester.
Before the Trial Court, Taylor testified that he was standing alone
in the bus stop shelter when a tan Saturn sedan drove slowly past
him and turner right onto Kansas Street.

Taylor observed four men

in the Saturn - a Caucasian driver and three African-American
passengers - all of whom looked at him as they drove past.
Two minutes later, petitioner and Jerrod Dozier (“Dozier”)
walked rapidly toward Taylor from Kansas Street.

Petitioner and

Dozier asked Taylor what time the bus was coming and sat down
behind him.

Dozier then pointed a black handgun in Taylor’s fast

and repeatedly told him to get down on the ground.

Taylor

testified that he laid down on his stomach, at which point Dozier
told petitioner to take Taylor’s necklace, a gold chain with a
pendant depicting Jesus’ head.

Petitioner removed the necklace

from Taylor’s neck and, at Dozier’s direction, searched Taylor’s
pockets, removing a black Nautica wallet, a one-day bus pass, and
Taylor’s keys.

Petitioner kept the wallet but threw the one-day

-2-

bus pass and the keys on the ground.

Taylor further testified that

petitioner and Dozier then ran down Kansas Street.

Taylor picked

up his keys and the one-day bus pass, ran back to his girlfriend’s
house to drop of his backpack, and then ran down Kansas Street in
an attempt to locate petitioner and Dozier.

After he was unable to

find petitioner and Dozier, Taylor spoke to the police.
Rochester Police Department (“RPD”) Patrol Sergeant Daryl
Gaston (“Sergeant Gaston”) testified that he heard the robbery
reported over the police radio.

Sergeant Gaston subsequently

observed the tan Saturn at a convenience store on Culver Road.

He

saw petitioner and two other men exit the store and enter the
Saturn.

Sergeant Gaston followed the Saturn as it left the

convenience store, and then pulled it over.

Sergeant Gaston

testified that as he sat in his patrol car waiting for backup, he
observed Dozier turning around to look at him in a manner that
seemed suspicious.

Sergeant Gaston subsequently approached the

Saturn and took petitioner and Dozier into custody.
RPD Office Carlos Alvarado (“Officer Alvarado”) arrived at the
scene around this time.

Officer Alvarado put Dozier in the back

seat of his patrol car, then assisted Sergeant Gaston in taking the
other two individuals in the Saturn into custody. Officer Alvarado
observed a half-full bottle of beer on the floor in the back seat
of the car.

Sergeant Gaston returned to the car to recover the

bottle, whereupon he observed the grip of a gun sticking out from

-3-

under a black hooded sweatshirt in the back seat.
and

Officer

semiautomatic

Alvarado
.380

recovered

caliber

pistol

a

loaded,

from

under

Sergeant Gaston
operable
the

Llama

sweatshirt.

Officer Alvarado further testified that, as he sat in the driver’s
seat of his patrol car, he noticed Dozier fidgeting in the back
seat, and subsequently witnessed Dozier attempting to put Taylor’s
necklace into his pocket.
Officer Alvarado and Sergeant Gaston brought petitioner and
Dozier back to the bus stop, where Taylor identified Dozier as the
individual who had pointed a gun at him and identified the necklace
Officer Alvardo had recovered from Dozier as his.
B.

Petitioner’s Interview by the RPD

Petitioner was subsequently interviewed by RPD Investigator
Michael Houlihan (“Investigator Houlihan”) and RPD Investigator
Brian Tucker (“Investigator Tucker”).

Prior to this interview,

petitioner had been given Miranda warnings and had agreed to speak
to the police without counsel present.

Petitioner stated that he

had been present when Dozier, who was his girlfriend’s brother,
robbed a man at the bus stop, but denied participating in the
robbery.

The police recovered a red October 2007 bus pass from

petitioner, which Taylor subsequently confirmed had been in his
wallet when it was stolen.

Petitioner claimed that Dozier had

given him the red October 2007 bus pass.

-4-

Investigator Tucker also interviewed Dozier. Dozier initially
denied participating in the robbery and claimed to have purchased
Taylor’s necklace from someone on the street.

However, after the

police showed him petitioner’s statement (as well as a fabricated
statement allegedly from the Saturn’s driver), Dozier changed his
story.

He claimed that the driver, Lane Thatcher (“Thatcher”) had

noticed Taylor’s

gold

necklace when

they

drove

past

him

and

suggested that they rob Taylor. Dozier further claimed that he had
watched petitioner commit the robbery, and that the gun used in the
robbery belonged to Thatcher.
The police impounded the Saturn and ultimately executed two
search warrants on it.

During these searches, the police found

Taylor’s black Nautica wallet in the front-seat center console and
Taylor’s learner’s permit in the pocket of a black coat found on
the floor of the back seat.
C.

Indictment, Suppression Hearing, and Trial

On December 21, 2007, a Monroe County grand jury indicted
petitioner and Dozier for having allegedly acted in concert to
commit first-degree robbery, second-degree robbery, and seconddegree criminal possession of a weapon.
Prior to trial, petitioner moved to suppress his statements to
law enforcement and the tangible evidence seized from him.

The

Trial Court (Valentino, J.) conducted a suppression hearing on
May 12, 2008.

Investigator

Houlihan testified at the suppression

-5-

hearing. During defense counsel’s cross-examination of Investigator
Houlihan, he testified that he had asked petitioner, who had
recently moved to Rochester from Utica, whether he knew anything
about a police shooting that had occurred in Utica.

Investigator

Houlihan further testified that petitioner had told him he did not
know anything about that shooting.

Defense counsel then asked

Investigator Houlihan whether he had told petitioner that he wanted
cooperation from him in helping solve the Utica shooting, and the
prosecution objected on the grounds of relevancy.

Defense counsel

argued that the question was relevant because the questioning about
the Utica shooting had occurred prior to petitioner receiving his
Miranda warnings and making a statement to the police.

The Trial

Court sustained the objection.
The Trial Court ultimately denied the suppression motion. The
Trial Court ruled that Sergeant Gaston had acted appropriately,
based on his reasonable suspicion that petitioner and Gaston had
committed a robbery. The Trial Court further found that the police
were justified in handcuffing and frisking petitioner and Dozier
because they had reason to believe a weapon had been used in that
robbery, that the police had probable cause to arrest the four
occupants of the Saturn upon seeing a handgun in plain view, and
that the identification procedure by which Taylor identified Dozier
was

not

unduly

suggestive.

The

Trial

Court

also

held

that

petitioner and Dozier had knowingly and intentionally waived their

-6-

Miranda

rights

and

that

their

statements

to

the

police

investigators were voluntary.
On June 18, 2008, Dozier pleaded guilty to first-degree
robbery.

During his plea allocution, Dozier stated that he and

petitioner had committed the robbery and that he had pointed a gun
at Taylor while petitioner stole Taylor’s necklace and wallet.
Dozier was sentenced to five years in prison on July 3, 2008.
Petitioner’s trial commenced on February 3, 2009.

After the

People rested, petitioner, through his counsel, sought to introduce
into evidence an unsigned, undated note purportedly written by
Dozier.

The note stated:
I committed this crime not you so stop frontin
b*tch n*gga I coped out to first degree
robbery and took the minimum which is five
years flat so stop frontin tellin n*ggas I
taking the stand on you you b*tch a** n*gga
you think if I was taking the stand on you I
would still be taking 5 dumb a**! You f*ckin
stupid for not taking 5 when they offered it
to you that’s why ya dumb a** bout to get 15
years p*ssy.

(Docket No. 14 at 36)(grammar and spelling errors in the original)
(hereinafter the “Dozier Note”).

Petitioner sought to have his

girlfriend, Brooke Dozier, testify that Dozier was her brother and
that the note was in his handwriting.
petitioner’s
petitioner

application

had

failed

to

to

introduce

establish

exception to the rule against hearsay.

-7-

The Trial Court denied
the

the

note,

finding

applicability

of

that
any

On February 5, 2009, the jury found petitioner guilty of all
the charges against him.

On April 3, 2009, the Trial Court

sentenced petitioner, as a second violent felony offender, to an
aggregate sentence of 12 years in prison, with five years of postrelease supervision.
D.

Direct Appeal

Petitioner filed a direct appeal of his conviction, arguing
that (1) the Trial Court should have permitted him to introduce the
Dozier Note as a declaration against penal interest and (2) the
Trial Court erred in limiting the cross-examination of Investigator
Houlihan at the suppression hearing.

On December 27, 2013, the

Appellate Division, Fourth Department (the “Appellate Division”)
unanimously

confirmed

petitioner’s

conviction.

The Appellate

Division found that the Dozier Note was inadmissible hearsay,
because petitioner failed to establish that it was written before
Dozier pled guilty and therefore failed to establish that it was
against his penal interest.

The Appellate Division further found

that petitioner’s argument related to the cross-examination of
Investigator Houlihan was unpreserved and without merit.
Petitioner sought leave to appeal to the New York Court of
Appeals (the “Court of Appeals”) solely on the ground that the
Trial Court should have permitted additional cross-examination of
Investigator Houlihan at the suppression hearing.

The Court of

Appeals denied petitioner’s application on March 11, 2014.

-8-

E.

State Court Collateral Review

In July 2011, petitioner filed a pro se motion to vacate his
conviction pursuant to New York Criminal Procedure Law § 440.10.
Petitioner contended that (1) he had newly discovered evidence
(namely, an affidavit from Dozier) showing that he was actually
innocent, and (2) trial counsel was ineffective because he failed
to call Dozier as a defense witness.
dated

April

15,

2009

The affidavit from Dozier was

(hereinafter

the

“April

2009

Dozier

Affidavit), and stated that petitioner, who was his friend, had
nothing to do with the robbery and had no knowledge of what was
going on.

Dozier further stated that he had previously implicated

petitioner in the robbery because he wanted to “get back at him for
telling on [Dozier].”
The Trial Court denied petitioner’s motion, finding that the
affidavit from Dozier did not constitute newly discovered evidence,
inasmuch as it was impeachment material, at best.

The Trial Court

also rejected petitioner’s assistance ineffective of counsel claim,
finding that it was procedurally barred because it should have been
raised on direct appeal.

Petitioner sought leave to appeal the

denial of his § 440.10 motion, which the Appellate Division denied
on February 8, 2012.
F.

The Instant Petition

Petitioner commenced this action on April 13, 2015, arguing
that he is entitled to a writ of habeas corpus because: (1) the

-9-

prosecution failed to disclose favorable evidence - specifically,
by failing to introduce at his trial two photos that had been shown
to the grand jury, by failing to admit the Dozier Note into
evidence, by objecting to the cross-examination of Investigator
Houlihan at the suppression hearing, and by failing to call a
handwriting expert regarding the Dozier Note; (2) he was denied the
effective

assistance

of

trial

counsel;

(3)

newly

discovered

evidence demonstrates that he is actually innocent of the crime for
which

he

was

convicted;

and

(4)

the

prosecution

engaged

in

misconduct by failing to introduce photographs to the trial jury
that had been shown to the grand jury and by failing to call a
handwriting expert regarding the Dozier Note.

For the reasons

discussed below, the Court finds that petitioner has not shown he
is entitled to relief.
III. Discussion
A.

Procedurally Barred Claims

As a threshold matter, respondent contends that certain of
petitioner’s

claims

are

unexhausted

and

procedurally

barred.

Specifically, respondent contends that petitioner failed to exhaust
his claims that: (1) the prosecution improperly failed to introduce
at trial two photographs that had been shown to the grand jury;
(2) the trial court improperly excluded the Dozier Note; (3) the
prosecution should have called a handwriting expert regarding the
Dozier Note; and (4) trial counsel was ineffective for having

-10-

failed to argue for the admissibility of the Dozier Note, failed to
argue that the two photographs that had been admitted to the grand
jury but not at trial were pertinent to his defense, and failed to
counter the prosecution’s objection to his cross-examination of
Investigator Houlihan.

Respondent further argues that, because

these arguments pertain to matters of record and were not raised on
direct appeal, they are procedurally barred from habeas review.
It is well-established that a state inmate who seeks federal
habeas

review

remedies.

must

first

exhaust

28 U.S.C. § 2254(b)(1).

his

available

state

court

This is so because “interests

of comity and federalism dictate that state courts must have the
first opportunity to decide a petitioner’s claims.”
Weber, 544 U.S. 269, 273 (2005).

Rhines v.

“In order to satisfy the

exhaustion requirement, a habeas petitioner must give the state
courts a fair opportunity to review the federal claim and correct
any alleged error.”

Ortiz v. Heath, 2011 WL 1331509, at *6

(E.D.N.Y. Apr. 6, 2011).
A claim may be deemed exhausted where further review is
procedurally barred under state law.

See id. (“[B]ecause the

exhaustion requirement ‘refers only to remedies still available at
the time of the federal petition, it is [also deemed] satisfied if
it

is

clear

procedurally
Netherland,

that
barred

518

U.S.

the

habeas

under
152,

petitioner's

state
161

law.’”)

(1996)).

-11-

claims

are

now

(quoting

Coleman

However,

“[w]here

v.
a

procedural bar gives rise to exhaustion . . . it also ‘provides an
independent and adequate state-law ground for the conviction and
sentence, and thus prevents federal habeas corpus review of the
defaulted claim.’” Id. (quoting Netherland, 518 U.S. at 162). “For
a procedurally defaulted claim to escape this fate, the petitioner
must show cause for the default and prejudice, or demonstrate that
failure to consider the claim will result in a miscarriage of
justice, (i.e., the petitioner is actually innocent).” Aparicio v.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Here,

the

Court

agrees

with

respondent

identified above are procedurally barred.

that

the

claims

With respect to each of

them, petitioner either failed to include them in his direct appeal
or failed to include them in his application for leave to appeal to
the Court of Appeals.

Petitioner has failed to identify any

justification for having failed to raise these issues on direct
appeal.

Accordingly, under New York law, further review of these

claims is procedurally barred.

See Ortiz, 2011 WL 1331509, at *7

(explaining that, under New York law, unjustifiable failure to
raise a claim on direct appeal forfeits the right to collateral
relief).

As such, this Court cannot grant habeas relief with

respect to these claims unless petitioner can meet the high bar for
granting relief on a procedurally defaulted claim. For the reasons
discussed below, the Court finds that he cannot.
1.

Actual Innocence

Petitioner contends that he is actually innocent of the crime
for which he was convicted.

It is not clear from the petition

-12-

whether petitioner seeks to assert a freestanding claim of actual
innocence or whether he advances this claim in an attempt to
overcome

the

procedural

bar.

In

either

event,

however,

petitioner’s argument is without merit.
To

the

extent

petitioner

is

attempting

to

assert

a

freestanding claim of actual innocence, no such claim has ever been
recognized by the Supreme Court.

See, e.g., McQuiggin v. Perkins,

133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a
prisoner may be entitled to habeas relief based on a freestanding
claim of actual innocence.”).

However, this Court (and others in

the Second Circuit) have generally concluded that “a freestanding
actual innocence claim does not constitute a cognizable ground for
habeas relief.”

Burton v. Conway, 2011 WL 839733, at *3 (W.D.N.Y.

Mar.

(internal

7,

assuming

2011)
that

a

quotation

freestanding

claim

omitted).
of

actual

Moreover,

even

innocence

were

cognizable, petitioner has failed to satisfy “whatever burden a
hypothetical freestanding innocence claim would require,” (id.),
for the reasons discussed below.
The Supreme Court held in Schlup v. Delo, 513 U.S. 298 (1995),
that actual innocence may excuse a procedural bar if the petitioner
can show that “it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.”

Id. at

327. In House v. Bell, 547 U.S. 518 (2006), the Supreme Court
explained that, assuming a freestanding claim of actual innocence
were cognizable, it woild “requir[e] more convincing proof of
innocence than Schlup.”

Id. at 555.

-13-

In other words, “a habeas

petitioner presenting an actual innocence claim as a basis for
habeas relief must establish proof more indicative of innocence
than would be required by Schlup if that petitioner were trying to
overcome a procedural bar with a ‘gateway’ actual innocence claim.”
Burton, 2011 WL 839733 at *4.
Here, petitioner cannot even satisfy the Schlup standard.
Under Schlup, the Court must consider “whether the new evidence is
trustworthy by considering it both on its own merits and, where
appropriate, in light of the pre-existing evidence in the record.”
Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004).

The evidence

identified by petitioner in this case (namely, the April 2009
Dozier Affidavit) does not satisfy these requirements.
The April 2009 Dozier Affidavit is wholly inconsistent with
Dozier’s prior statement to the police, as well as his plea
allocution, and thus constitutes recantation testimony.

“Both as

a matter of state and federal law, recantations are considered with
great skepticism.” Dixon v. Conway, 613 F. Supp. 2d 330, 386
(W.D.N.Y. 2009); see also Channer v. Warden Leslie E. Brooks, 2001
WL 34056850, at *6 (D. Conn. Jan. 25, 2001), aff'd sub nom. Channer
v. Brooks, 320 F.3d 188 (2d Cir. 2003) (“Both federal and state
courts view recantations with suspicion.”).

In this particular

case, the circumstances surrounding Dozier’s recantation further
enhance the unreliability of his statements - in particular, the
fact that Dozier and petitioner are friends and petitioner was
dating Dozier’s sister are significant indicators that Dozier may
have been motivated by a desire to aid petitioner.

-14-

Moreover, the 2009 Dozier Affidavit is flatly contradicted by
Taylor’s trial testimony.

In the 2009 Dozier Affidavit, Dozier

claims that petitioner went to the bus stop before Dozier, that
petitioner was sitting down in the bus stop shelter when Dozier
approached, and that Dozier acted alone in committing the robbery.
However, Taylor testified that he was alone in the bus stop shelter
when he was approached by two individuals and that Dozier pointed
a gun at him while the other individual emptied his pockets.

In

short, the 2009 Dozier Affidavit is “overwhelmed by the weight of
other evidence [such] that it is insufficient to raise a question
as to [the] petitioner’s factual innocence.”

Menefee, 391 F.3d at

162.
For the foregoing reasons, petitioner cannot meet the standard
set forth in Schlup to permit review of his procedurally barred
claims.

Petitioner therefore also cannot meet the higher standard

that would be necessary to sustain a freestanding actual innocence
claim, assuming such a claim were cognizable.
2.

Omission of Two Photographs at Trial

Petitioner contends that the prosecution failed to produce
favorable evidence to him, because two photographs that were shown
to the grand jury were not admitted at trial.

Plaintiff has not

shown cause for failing to raise this argument on direct appeal,
nor can he show any prejudice, because the claim is meritless.
With respect to the issue of cause, “[c]ause means some
impediment”

to

having

brought

the

claim

on

direct

appeal.”

Menefield v. United States, 187 F. Supp. 2d 65, 66 (N.D.N.Y. 2002).

-15-

In this case, although petitioner contends that he did not “realize
that [the alleged failure to introduce the two photographs] was an
issue” until after he completed his direct appeal, he has failed to
identify any objective impediment to his having raised the issue.
Accordingly, he has not demonstrated cause for having failed to
pursue the issue.
Petitioner also cannot show prejudice, because his claim is
meritless. As a threshold matter, petitioner has failed to provide
any

record

support

whatsoever

for

his

claim

that

different

photographic evidence was shown to the grand jury and the trial
jury.

Even assuming that the prosecution failed to show the trial

jury all the photographs it showed the grand jury, petitioner has
failed to provide any information regarding the alleged contents of
the allegedly missing photographs, nor has he specified how these
photographs would have supported his claim of innocence.
“[I]n

habeas

cases

the

petitioner

bears

the

establishing that he is entitled to habeas relief.”
Bradt,

949

F.

Supp.

2d

341,

350

(N.D.N.Y.

burden

of

Kimbrough v.

2013);

see

also

Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011)
(“[I]t is the petitioner who bears the burden of proving that he is
being held contrary to law[.]”).

Petitioner has inarguably failed

to meet this burden with respect to his claim related to the
photographs shown to the grand jury. Accordingly, he has not shown
prejudice sufficient to overcome the procedural bar.

-16-

3.

Exclusion of the Dozier Note

Petitioner argues that the Trial Court erred in excluding the
Dozier Note.

Although petitioner raised this argument before the

Appellate Division, he did not include it in his request for leave
to appeal to the Court of Appeals.

Petitioner has not set forth

any cause for this failure. Moreover, he cannot show any prejudice
relative to this claim, because it is without merit.
The Trial Court excluded the Dozier Note because it was
inadmissible

hearsay.

The

Appellate

Division

upheld

this

determination, explaining that, contrary to petitioner’s arguments,
he had failed to establish that the Dozier Note constituted a
statement against penal interest.

In particular, the Appellate

Division explained that there was no evidence that the Dozier Note
had been written prior to Dozier’s guilty plea, and that there was
therefore no basis to conclude that it was against his penal
interest to confess to having committed the robbery.
The Appellate Division’s determination comported with New York
State law, under which:
before statements of a nontestifying third
party are admissible as a declaration against
penal interest, the proponent must satisfy the
court that four prerequisites are met: (1) the
declarant must be unavailable to testify by
reason
of
death,
absence
from
the
jurisdiction, or refusal to testify on
constitutional grounds; (2) the declarant must
be aware at the time of its making that the
statement was contrary to his penal interest;
(3)
the
declarant
must
have
competent
knowledge of the underlying facts; and (4)
there must be sufficient competent evidence
independent of the declaration to assure its
trustworthiness and reliability.

-17-

People v. Brensic, 70 N.Y.2d 9, 15 (1987). Because the Dozier Note
was undated, petitioner failed to meet his burden of proving that
Dozier knew at the time of his statement that it was contrary to
his

penal

interest.

The

Appellate

Division’s

decision

was

therefore free from error under state law, and petitioner can only
obtain habeas relief if he can show that New York’s hearsay rules
are ““arbitrary or disproportionate to the purposes [they are]
designed to serve, meaning that [they] . . . infringe[] upon a
weighty interest of the accused.”

Molina v. Graham, 2014 WL

287608,

2014)

at

*8

(W.D.N.Y.

Jan.

24,

(internal

quotation

omitted). Petitioner has not even attempted to make such a showing
here, nor could he successfully do so.

See id. (finding no

impropriety in a New York court’s application of New York’s hearsay
rule).
In sum, petitioner’s claim related to the exclusion of the
Dozier Note is procedurally barred and without merit in any event.
Accordingly, habeas relief is not warranted on this basis.
4.

Failure to Call a Handwriting Expert

Petitioner also argues in the instant petition that the
prosecution improperly failed to call a handwriting expert with
respect to the Dozier Note.

This claim was not raised on direct

appeal, and is therefore procedurally barred.
clearly and entirely without merit.

Moreover, it is

The Dozier Note was not

excluded due to doubts about its author, but because even assuming
Dozier had written it, it constituted inadmissible hearsay.

As

such, the testimony of a handwriting expert would have added

-18-

nothing to the proceeding.

Petitioner also has not identified any

authority for the proposition that the prosecution bears the burden
of calling an expert to opine on evidence proffered by the defense,
nor has he suggested any plausible argument for why this would be
the case.

Petitioner

has

therefore

failed

to

establish his

entitlement to habeas relief on this basis.
5.

Ineffective Assistance of Counsel

Petitioner’s final procedurally barred claim is that his trial
counsel provided ineffective assistance by failing to argue for the
admissibility

of

the

Dozier

Note,

failing

to

argue

that the

photographs allegedly shown to the grand jury but not the trial
jury were pertinent to the defense, and failing to counter the
prosecution’s objection to the cross-examination of Investigator
Houlihan at the suppression hearing.

Again, petitioner failed to

raise this argument on direct appeal, despite the fact that it is
based

in

the

record

and

was

available

to

him

at

the

time.

Accordingly, the claim is procedurally barred.
The claim is also meritless.

“Pursuant to the well-known

two-part test of Strickland v. Washington . . . a habeas petitioner
alleging

ineffective

(1) that his

assistance

counsel’s

of

performance

counsel
fell

‘must

below

demonstrate

what

could be

expected of a reasonably competent practitioner; and (2) that he
was prejudiced by that substandard performance.’”

Woodard v.

Chappius, 631 F. App’x 65, 66 (2d Cir. 2016) (quoting Pearson v.
Callahan, 555 U.S. 223, 241, (2009)).

-19-

In this case, petitioner

cannot meet the Strickland standard with respect to any of his
claims.
First, with respect to petitioner’s argument that counsel
failed to argue for the admissibility of the Dozier Note, this
claim is simply factually inaccurate.

The trial record shows that

counsel in fact tried to put the Dozier Note in front of the jury.
Moreover, and as discussed above, the Dozier Note was properly
excluded by the Trial Court as inadmissible hearsay.

Thus, even

had counsel failed to make this argument, it would not have
amounted to ineffective assistance because the Dozier Note was
inadmissible. See, e.g., United States v. Arena, 180 F.3d 380, 396
(2d Cir.1999) (noting that “[f]ailure to make a meritless argument
does not amount to ineffective assistance”).
Second, petitioner’s claim that counsel should have argued
that two photographs allegedly shown to the grand jury but not the
trial

jury

were

pertinent

to

the

defense

is

completely

unsubstantiated.

As discussed above, petitioner has not offered

any

to

argument

as

the

contents

of

these

allegedly

missing

photographs, nor has he offered any plausible explanation for how
they would have assisted in his defense. “This claim of ineffective
assistance is simply too vague and conclusory to state a proper
ground for habeas relief.”

Powers v. Lord, 462 F. Supp. 2d 371,

381 (W.D.N.Y. 2006) (denying ineffective assistance of counsel
claim

based

on

vague

allegations

of

failure

to

investigate

exculpatory evidence).
Finally, with respect to petitioner’s argument that counsel
should have countered the prosecution’s objection to the scope of
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the cross-examination of Investigator Houlihan, again, petitioner’s
argument is belied by the record.

Counsel in fact did offer a

counter-argument to the prosecution’s objection, explaining why he
was seeking to question Investigator Houlihan about his discussion
with petitioner regarding the Utica shooting. It is axiomatic that
the Court cannot find counsel ineffective for having failed to make
an argument when he did in fact make an argument.

Moreover, and as

discussed below, the Trial Court’s ruling with respect to the scope
of the cross-examination of Investigator Houlihan was proper and
any

further

argument

by

counsel

would

have

therefore

been

meritless.
In sum, petitioner has not shown that he received ineffective
assistance of counsel.

Accordingly, he cannot show prejudice

sufficient to overcome the procedural bar, and habeas relief is not
warranted.
B.

Cross-Examination of Investigator Houlihan

In addition to the procedurally barred claims discussed above,
petitioner has also asserted the properly exhausted claim that the
Trial Court improperly limited the scope of defense counsel’s
cross-examination
hearing.

of

Investigator

Houlihan

at

the

suppression

This claim is without merit and does not warrant habeas

relief.
“Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant
a

state

prisoner’s

habeas

application

unless

the

relevant

state-court decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
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the Supreme Court of the United States.”

Knowles v. Mirzayance,

556 U.S. 111, 121 (2009) (internal quotation omitted).

“The

question is ‘not whether the state court was incorrect or erroneous
in rejecting petitioner’s claim, but whether it was objectively
unreasonable in doing so.’”

Edwards v. Superintendent, Southport

C.F., 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v.
Miller, 303 F.3d 231, 245 (2d Cir. 2002)).

“The petition may be

granted only if ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)).
Here, defense counsel sought to cross-examine Investigator
Houlihan regarding the questions he asked petitioner about the
Utica shooting.

The prosecution objected on relevancy grounds,

defense counsel argued that the questioning was relevant because it
immediately preceded petitioner’s receipt of his Miranda warnings
and subsequent statement to police, and the Trial Court sustained
the objection.

Under New York law, “[i]t is well settled that

[t]he scope of cross-examination is within the sound discretion of
the trial court.”

People v. Baker, 294 A.D.2d 888, 889 (4th Dep’t

2002) (internal quotation omitted).

The trial court may properly

limit cross-examination where the defendant fails “to establish the
relevance and materiality of the proposed testimony.”
Weiss, 269 A.D.2d 267, 268 (1st Dep’t 2000).

People v.

In this case,

although petitioner argues that continued cross-examination of
Investigator Houlihan could have potentially revealed information

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calling into question the voluntariness of his statement to police,
this argument is speculative at best. Petitioner has not suggested
that Investigator Houlihan in fact offered him any sort of benefit
in return for cooperation, nor has he identified any other facts
that undermine the voluntariness of his statement.

Under these

circumstances, the Appellate Division’s determination the Trial
Court did not abuse its discretion in sustaining the prosecution’s
objection was an appropriate application of New York law.
Petitioner has not argued, nor could he successfully show,
that New York’s law regarding the scope of cross-examination is
arbitrary or disproportionate to the purpose it is designed to
serve.

He

has

therefore

failed

to

show

that

the

Appellate

Division’s decision was contrary to or an unreasonable application
of established Supreme Court precedent. Accordingly, habeas relief
is not warranted on this ground.
IV.

Conclusion
For the foregoing reasons, the petition (Docket No. 1) is

denied and dismissed.

No certificate of appealability shall issue

because petitioner has not shown “that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would
find it debatable whether th[is] . . . [C]ourt was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and
Fed. R. App. P. 24(a)(3), that any appeal from this Decision and
Order would not be taken in good faith, and therefore the Court

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denies leave to appeal as a poor person. Coppedge v. United States,
369 U.S. 438, 445-46 (1962). Any application for leave to appeal in
forma pauperis must be made to the Second Circuit Court of Appeals
in accordance with Fed. R. App. P. 24(a)(1), (4), & (5).

The Clerk

of the Court is instructed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
__________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
October 31, 2017

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