Harris v. Superintendent, Attica Correctional Facility

Filing 15

DECISION AND ORDER denying 1 PETITION. The Clerk of the Court shall close the case. Signed by Hon. Lawrence J. Vilardo on 3/14/2023. (CGJ)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC HARRIS,
Petitioner,
v.
SUPERINTENDENT, Attica Correctional
Facility,

17-CV-653-LJV
DECISION & ORDER

Respondent.

On July 14, 2017, the petitioner, Eric Harris, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Docket Item 1. Harris was convicted in Seneca
County Court of assault, arson, and reckless endangerment. Id. at 2; Docket Item 12-2
at 178, 967. His petition asserts violations of his Sixth Amendment right to effective
assistance of counsel and his Fifth Amendment right to be protected from compelled
self-incrimination. Docket Item 1 at 1, 5.
For the reasons that follow, this Court denies the petitioner’s request for an
evidentiary hearing and denies the petition. 1

On November 12, 2019, this Court referred this case to United States
Magistrate Judge H. Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Docket Item 13. The Court now withdraws that referral and
addresses the petition in the first instance.
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FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2002, a Seneca County grand jury indicted Harris on several
charges including assault, arson, and reckless endangerment. Docket Item 1 at 2;
Docket Item 12-2 at 969-72. Those charges stemmed from allegations that in the early
morning hours of May 5, 2002, Harris beat his girlfriend, Deborah Mazur, and set his
house on fire with Mazur inside. Docket Item 1 at 2; Docket Item 12-2 at 969-72.
I.

CONFESSION
State Trooper Mark Wing, the first law enforcement officer on the scene of the

fire, arrived at 8:10 a.m. and immediately encountered Harris. Docket Item 12-3 at 25.
Wing did not Mirandize Harris before asking him whether anyone was inside the house
and how the fire started. Id. at 25-27. After Harris attempted to re-enter his burning
house, Wing handcuffed him and had him sit in the back of Wing’s patrol car. Id. at 2627.
Sometime before 9:00 a.m., with Harris still handcuffed in the back of the patrol
car, New York State Police Sergeant Jose Vasquez read Harris Miranda warnings from
a card provided by the New York State Police. 2 Id. at 28-31. According to Vasquez,
Harris "was shaking his head left to right and he seemed very troubled.” Id. at 30.
When Vasquez asked Harris whether he understood his rights, “[Harris] continued to

The card included five notices and warnings: (1) “[you have] the right to remain
silent”; (2) “anything you state can be used and will be used against you in a court of
law”; (3) “you have the right to talk to a lawyer and have him present with you while you
are being questioned”; (4) “if you cannot afford a lawyer, one will be appointed to
represent you free of charge before any questioning continues”; and (5) “you can decide
at any time to exercise these rights . . . and not answer any questions and make any
statement.” Docket Item 12-3 at 504 (Vasquez trial testimony); see id. at 31.
2

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nod his head left to right, but he said yes.” Id. at 31-32, 39. Vasquez did not question
Harris any further because Vasquez’s “concern was [Harris’s] well-being at the scene.”
Id. at 33-34.
New York State Police Investigators Edward Charles and David Gould
approached Harris just after 10:00 a.m. Id. at 41-42. Before asking any questions
about the incident, Gould asked Harris whether anyone had Mirandized him, whether he
understood his rights, and whether he was willing to talk to Gould. Id. at 56, 75-76.
After Harris answered yes to each question, Harris and Gould spoke for fifteen to thirty
minutes about what happened. Id. at 56-57. Charles then escorted Harris to an
emergency vehicle where Harris exchanged the bathrobe he was wearing for a t-shirt,
sweatpants, and rubber boots. Id. at 44, 57. At about 11:15 a.m., State Police
Investigator David Stebbins drove Harris to the local police station. Id. at 58, 60.
Over the next several hours, Stebbins and Gould questioned Harris. Id. at 61.
Before the interview concluded, the investigators printed Harris’s statement and two
addenda, and Harris drew a diagram of his home’s interior—adding additional details as
the interview progressed. Id. at 61-62, 67, 89-97. After the investigators printed the first
statement, Harris read aloud the Miranda warnings printed at the top right, initialing
each paragraph. Id. at 62-63, 87-88. Harris also made some corrections to the
statement and initialed them, and Harris, Gould, and Stebbins all signed the statement.
Id. at 63-64, 88-89. 3 The interview concluded at 4:05 p.m. Id. at 69-70.

Harris did not sign the first addendum, but he signed the second. Docket Item
12-3 at 66-69, 94-95, 98, 100. The addenda are also referred to as the “second portion”
and the “third portion” of Harris’s statement, see, e.g., id. at 97-100, or the “second
statement” and the “third statement,” id. at 98-99.
3

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During the interview, Harris told Stebbins and Gould that he hit, slapped, and
pushed Mazur; threw unlit candles and a hairbrush at her; and threatened her with a
knife. Id. at 583-87. He said that after he and Mazur argued, he “lit five candles that
were lined up on the headboard” and they both went to bed. Id. at 585-86. Harris said
that both he and Mazur fell asleep and that he awoke to see “flames coming from the
sheets on [Mazur’s] side of the bed.” Id. at 586. According to Harris, Mazur awoke at
about the same time, and they both “left the house as quick as [they] could.” Id.
Later in the interview, Harris said that there was something he “forgot to say.” 4
Id. at 587. He told the officers that after he and Mazur “got out of the fire, [he] went
back into the house and took a can of kerosene and sprinkled kerosene in the house.”
Id. He said that he did that “because [he] wanted to commit suicide.” 5 Id. But he also
said that before the fire started and when Mazur was “on the bed,” he had “put kerosene
on her clothing . . . in the bathroom,” and then “put [the clothes] near her side of the
bed.” Id. at 588. He ”d[id] not know why [he] moved the clothing into the bedroom.” Id.
Harris later said that he “want[ed] to add” that the fire started when he
“intentionally knocked one of the candles off the headboard of the bed onto the pile of
[Mazur’s] clothing that [he] had previously put the kerosene on.” Id. at 589. But he said
that after he did this, he “woke up [Mazur].” Id. And he said that he never intended “to
hurt [Mazur]”; rather, he “just wanted to kill [him]self.” Id.

Harris also said that he did not remember “everything that occurred last night.”
Docket Item 12-3 at 587. He said that he sometimes “black[s] out” and does things that
he does not remember and that he “think[s he] blacked out” that night. Id. at 587-88.
4

In fact, Harris said that he tried to shoot himself with his “.22 rifle,” but the
weapon apparently was not loaded. Docket Item 12-3 at 584.
5

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When emergency medical personnel arrived, they found Mazur outside the home
wrapped in a blanket. Id. at 468, 686. EMS transported her to Cayuga Medical Center
where an anesthesiologist intubated her and placed her on a mechanical respirator. Id.
at 672, 689, 785. Later, she was flown by helicopter to Upstate Medical Center where
she was received in critical condition and eventually admitted into the intensive care
unit. Id. at 635, 676, 679. Upstate Medical Center treated Mazur for “bruising and
broken bones in [her] face and broken teeth,” puncture wounds to her knees, and an
injury to her hand that later required surgery. Id. at 405-06, 791-92.
II.

PROSECUTION
On June 21, 2002, a Seneca County grand jury indicted Harris for assault in the

first degree in violation of New York Penal Law (“NYPL”) § 120.10(3); arson in the
second degree in violation of NYPL § 150.15; aggravated sexual abuse in the first
degree in violation of NYPL § 130.70(1)(a); reckless endangerment in the first degree in
violation of NYPL § 120.25; assault in the second degree in violation of NYPL §
120.05(2); and unlawful imprisonment in the first degree in violation of NYPL § 135.10.
Docket Item 1 at 2; Docket Item 12-2 at 969-72. 6
Prior to trial, the court granted Harris’s request for a Huntley hearing to determine
whether his confession was voluntary. 7 Docket Item 12-3 at 15-17. The law
The charges of aggravated sexual abuse and unlawful imprisonment were later
dismissed, and Harris was tried on five counts: (1) assault in the first degree; (2) arson
in the second degree; (3) reckless endangerment in the first degree; (4) assault in the
second degree; (5) assault in the second degree. Docket Item 12-3 at 134, 1115-16,
1500.
6

“In New York, a Huntley hearing is held if the prosecution intends to offer a
defendant's confession. If the confession is challenged, a hearing is held in which the
prosecution has the burden of proving, beyond a reasonable doubt, that a defendant's
7

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enforcement officers with whom Harris spoke testified at the hearing. See id. at 22-23.
After considering the evidence and testimony presented at the Huntley hearing, the trial
court ruled that Harris’s statements made to Wing upon his arrival as well as the
statements that were reduced to writing were admissible. Docket Item 12-2 at 775-779.
Consequently, Harris’s entire written statement was read to the jury at trial.
Docket Item 12-2 at 775-779; Docket Item 12-3 at 580-590. In addition, Harris, the
officers who spoke with and questioned him, the fire investigators, Mazur, and the
physicians who treated Mazur all testified. Docket Item 12-3 at 122-975. After hearing
testimony from twenty-two witnesses and viewing more than eighty pieces of evidence,
the jury convicted Harris of assault in the first degree, arson in the second degree,
reckless endangerment in the first degree, and one count of assault in the second
degree. 8 Docket Item 12-2 at 178, 967; Docket Item 12-3 at 123-25; 1115-16. The trial
court sentenced Harris
to serve, consecutively, an 18[-]year determinate term of imprisonment for
the crime of assault in the first degree, and a 10[-]year determinate term of
imprisonment for the crime of arson in the second degree, and concurrently
a 5[-]year determinate term of imprisonment for the crime of assault in the
second degree, and an indeterminate term of imprisonment having a
minimum of 2-1/3 years and a maximum of 7 years for reckless
endangerment in the first degree.
Docket Item 12-2 at 66 (capitalization removed) (responding affidavit to Harris’s 440
motion); see also id. at 574 (appellate brief), 967 (state court judgment).

statement was voluntary.” Thomas v. Lord, 396 F. Supp. 2d 327, 335-36 (E.D.N.Y.
2005) (citing People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179
(1965)).
The jury acquitted Harris on the other count of assault in the second degree.
Docket Item 12-3 at 1116.
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III.

POST-TRIAL PROCEEDINGS
Harris challenged his conviction in a collateral proceeding under New York

Criminal Procedure Law § 440, alleging that his trial attorney was inadequate because
he ignored Harris’s request to seek a handwriting expert to challenge parts of his
statements that were not signed by him. Docket Item 12-2 at 1-6, 178. After a hearing
in which Harris, his trial attorney, the prosecuting attorney, investigators Stebbins and
Gould, and a handwriting expert testified, Docket Item 12-3 at 1146-1489, the court
denied Harris’s petition, Docket Item 12-2 at 184.
In its decision and order, id. at 178-184, the court credited counsel’s testimony
that he did not know that Harris wanted to challenge the authenticity of signatures on his
statements to police until Harris was “actually sitting in the chair testifying as a witness
at trial,” id. at 182. As a result, the court discounted Harris’s testimony that he told
counsel before trial that some of the signatures on the documents were not his and
needed to be examined. See id. at 181-82.
The court also found the testimony of the handwriting expert who testified at the
post-trial hearing to be of “dubious value.” Id. at 180-81. More specifically, the court
noted that (1) the expert’s testimony “regarding which signatures were authentic varied
considerably [from] his previously prepared reports”; (2) the expert “did not remember
making one or both of the reports”; (3) the expert did not witness Harris’s exemplars but
“admitted that it is important to witness the preparation of exemplars”; (4) the expert
said that “exemplars prepared after the questioned documents [were completed] should
not be used for comparison” but admitted that the document that he used “was
purportedly made by the defendant subsequent to the questioned documents”; and (5)
the expert “used photocopies” for comparison, “admitted that originals should be used if
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possible,” and did not suggest any “inability to gain access to the originals.” Id. The
court also noted the expert’s testimony that mental state and physical limitations can
affect a signature and observed that “[n]o evidence was presented that [the expert] was
aware of the defendant’s attempt to stab himself in the neck and his subsequent
shackling prior to the signing of the third statement, or that he took those factors or
others, such as possible fatigue, into consideration when formulating his opinion.” Id. at
181.
Harris appealed that decision to the New York State Supreme Court, Appellate
Division, Fourth Department, and the Fourth Department consolidated the appeal with
others that Harris had filed. Id. at 213-14, 324-26, 388-89. Among the issues Harris
raised in the consolidated appeal were the invalidity of his Miranda waiver and the
ineffective assistance of trial counsel. Id. at 569-575. With respect to the latter, Harris
argued that his attorney failed to 1) object to the duplicitous count of assault in the first
degree and to reading Harris’s entire statement to the jury, 2) request an intoxication
jury instruction, and 3) procure a handwriting expert. Id.
The Fourth Department affirmed. People v. Harris, 129 A.D.3d 1522, 1526, 11
N.Y.S.3d 359, 365 (4th Dep’t 2015). First, the Fourth Department found that Harris
received Miranda warnings, confirmed that he understood them, and waived his right to
remain silent; the court therefore concluded that “the [trial] court properly refused to
suppress statements made by [Harris] at the crime scene and, subsequently, at the
police station.” Id. at 1522, 11 N.Y.S.3d at 361. The Fourth Department did not
address any failure of counsel to object to the reading of Harris’s entire statement at

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trial, finding that the claim was not properly before the court because it was “raised for
the first time” in Harris’s reply brief. Id. at 1525, 11 N.Y.S.3d at 364.
The court also rejected Harris’s challenges to counsel’s failure to object to the
jury charge on assault or to request an intoxication instruction. Id., 11 N.Y.S.3d at 364.
More specifically, the court found that contrary to Harris’s argument on appeal, charging
the jury in the disjunctive did not make the assault count duplicitous because
[w]here an offense may be committed by doing any one of several things,
the indictment may, in a single count, group them together and charge the
defendant with having committed them all, and a conviction may be had on
proof of the commission of any one of the things, without proof of the
commission of the others.
Id., 11 N.Y.S.3d at 363-64 (citations and internal quotation marks omitted). And the
court rejected any ineffective assistance claim based on the failure to request an
intoxication charge “because the record [did] not contain evidence that defendant’s use
of intoxicants was of such nature or quantity to support the inference that their ingestion
was sufficient to affect defendant’s ability to form the necessary criminal intent.” 9 Id., 11
N.Y.S.3d at 364 (citations and internal quotation marks omitted). Finally, the Fourth

Detective Gould testified that when he encountered Harris “at the scene and
during the course of the next five hours,” he did not “detect the odor of alcohol or
intoxication about him.” Docket Item 12-3 at 80. Gould said that in his opinion, Harris
“was not intoxicated at all. . . . I couldn’t even tell he had been drinking the night before.”
Id. at 559-61. Len Carlsen, who was with Harris before the incident, testified that he
saw Harris drink three or four beers before they left the house and thought Harris was
drinking a “little fast.” Id. at 444. Harris himself testified that he remembered making a
written statement that over the course of the evening, from approximately 8:00 p.m. to
1:30 a.m., he “had less than a beer, a Coors Light” and two Citron and 7-Ups, and that
his statement was accurate. Id. at 903-06. He also said that his last drink was around
12:30 a.m. and that he had five to six drinks in total. Id. at 925.
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Department agreed with the county court’s rejection of Harris’s challenge to counsel’s
failure to procure a handwriting expert. Id. at 1526, 11 N.Y.S.3d at 364.
In sum, the Fourth Department affirmed Harris’s conviction, his resentencing, 10
and the denial of his § 440 motion. Id. at 1522, 11 N.Y.S.3d at 361. The New York
Court of Appeals denied all applications for further review. See People v. Harris, 27
N.Y.3d 998, 59 N.E.3d 1220 (2016); People v. Harris, 138 A.D.3d 1513, 29 N.Y.S.3d
225 (2016); People v. Harris, 28 N.Y.3d 1028, 68 N.E.3d 109 (2016).
Harris filed his petition in this Court on July 14, 2017. Docket Item 1. The
respondent answered and filed a memorandum of law in opposition on September 9,
2019. Docket Item 11; Docket Item 12. Harris was given the opportunity to reply,
Docket Item 3 at 2, but he did not do so.
LEGAL PRINCIPLES
“[A] person in custody pursuant to the judgment of a State court may petition a
district court for a writ of habeas corpus on the ground that [he or she] is in custody in
violation of the Constitution or laws or treaties of the United States.” Orlando v. Nassau
Cnty. Dist. Att’y’s Off., 915 F.3d 113, 120 (2d Cir. 2019) (internal quotation marks
omitted) (quoting 28 U.S.C. § 2254(a)). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”),
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
On March 7, 2011, the Seneca County Court re-sentenced Harris to include
periods of post-release supervision, as required by NYPL § 70.45. Docket Item 12-2 at
996; Docket Item 12-3 at 1494-1504.
10

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (reciting the
standard).
A state court’s decision is “contrary to” clearly established federal law if “the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law” or if the state court decides a case with facts “materially
indistinguishable from a relevant Supreme Court precedent” and reaches the opposite
result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (opinion for the Court by
O'Connor, J.). A state court’s decision is an “unreasonable application” of clearly
established federal law when the state court identifies the correct legal principle “but
unreasonably applies that principle to the facts of the . . . case.” Id. at 413. “[A] statecourt factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” Wood v. Allen,
558 U.S. 290, 301 (2010).
AEDPA “imposes a highly deferential standard for evaluating state-court rulings
and demands that state-court decisions be given the benefit of the doubt.” Hardy v.
Cross, 565 U.S. 65, 66 (2011) (per curiam) (quoting Felkner v. Jackson, 562 U.S. 594,
598 (2011) (per curiam)). “When a state court has applied clearly established federal
law to reasonably determined facts in the process of adjudicating a claim on the merits,
a federal habeas court may not disturb the state court’s decision unless its error lies

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‘beyond any possibility for fair[-]minded disagreement.’” Shinn v. Kayer, 141 S. Ct. 517,
520 (2020) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
DISCUSSION
Harris contends (1) that he did not “validly and indisputably” waive his Miranda
rights; (2) that his trial counsel was ineffective for failing to (a) procure a handwriting
expert, (b) object to the duplicitous count of assault in the first degree, (c) request an
intoxication charge, and (d) object to the in-court reading of Harris’s entire statement to
police; and (3) that his appellate counsel was ineffective for failing to argue that trial
counsel should have objected when Harris’s entire statement to police was read at trial.
Docket Item 1 at 1, 5. For the reasons that follow, each of those claims lacks merit.
I.

MIRANDA WAIVER
Under Miranda v. Arizona, 384 U.S. 436 (1966), an individual who is “taken into

custody or otherwise deprived of his freedom by the authorities in any significant way
and is subjected to questioning” must
be warned prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an
attorney[,] one will be appointed for him prior to any questioning if he so
desires.
Id. at 478-79. Harris contends that his conviction was unconstitutionally obtained
because he “did not validly and indisputably waive his Miranda rights.” Docket Item 1 at
5.
Harris raised that issue on appeal, and the Fourth Department rejected it. More
specifically, the court concluded that Harris’s non-custodial statements were admissible
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because he was not in custody when he made them and that his custodial statements
were admissible because he was read his rights; he said that he understood and waived
those rights; he nevertheless chose to speak with the police; and he never requested an
attorney. Harris, 129 A.D.3d at 1522-24, 11 N.Y.S.3d at 361-62. This Court agrees
with the Fourth Department.
First, the Fourth Department concluded that the statements Harris made to Wing
before Harris was given Miranda warnings were admissible both because Harris was
not in custody at the time and because Wing’s questions—was anyone inside the house
and how did the fire start—were based on a legitimate concern for public safety. Id. at
1522-23, 11 N.Y.S.3d at 362 (citing People v. Doll, 21 N.Y.S.3d 665, 670, 998 N.E.2d
384, 387 (2013)). The Supreme Court has held that noncustodial statements, see
Pennsylvania v. Muniz, 496 U.S. 582, 604-05 (1990) (non-custodial statement about the
petitioner’s intoxication), and statements made to officers asking questions “reasonably
prompted by a concern for the public safety,” New York v. Quarles, 467 U.S. 649, 656
(1984) (public safety exception), may be admitted even in the absence of Miranda
warnings. And this Court agrees with the Fourth Department that based on the record
here, Harris’s statements to Wing were admissible for both those reasons.
The Fourth Department also found that although Harris “did not explicitly waive
his Miranda rights while at the crime scene or before the interview process began at the
police station . . .[, he] agreed to speak with investigators after confirming that he had
been issued Miranda warnings and understood those warnings.” Harris, 129 A.D.3d at
1523, 11 N.Y.S.3d at 362 (citing People v. Jones, 120 A.D.3d 1595, 1595, 992 N.Y.S.2d
823, 824 (2014)). The Supreme Court has held that a defendant can waive his or her

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Miranda rights “even absent formal or express statements of waiver.” Berghuis, 560
U.S. at 383. Thus, “[a]n ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to
admit a suspect’s statement into evidence,” id. at 384 (quoting North Carolina v. Butler,
441 U.S. 369, 376 (1979)), as long as “the prosecution shows that a Miranda warning
was given and that it was understood by the accused,” id. Again, this Court agrees with
the Fourth Department’s conclusion that Harris waived his right to remain silent even
though that waiver was not explicit.
Finally, the Fourth Department concluded that “because [Harris] was issued the
Miranda warnings at the crime scene, reaffirmed his understanding of those warnings[,]
. . . and implicitly waived those rights at the crime scene, there was no need to repeat
the warnings before [he] was questioned at the station a short time later.” Harris, 129
A.D.3d at 1524, 11 N.Y.S.3d at 363 (citing People v. Johnson, 20 A.D.3d 939, 939, 798
N.Y.S.2d 637, 638 (2005)). The Supreme Court has held that once Mirandized, “[p]olice
are not required to rewarn suspects from time to time.” Berghuis, 560 U.S. at 386. So
this Court agrees with the Fourth Department that there was no need to repeat the
warnings when Harris was questioned at the police station.
Accordingly, Harris’s contention that his conviction was unconstitutionally
obtained because he did not validly and indisputably waive his Miranda rights is
meritless. Because Supreme Court precedent supports the conclusions reached by the
Fourth Department, its denial of Harris’s Miranda claim is neither contrary to nor an
unreasonable application of federal law. 28 U.S.C. § 2254(d)(1). In fact, the Fourth
Department’s conclusions were entirely consistent with federal law, and this Court

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agrees with those conclusions. This Court therefore denies Harris’s request for habeas
relief based on an allegedly invalid Miranda waiver.
II.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL 11
In ground two of his petition, Harris contends that his trial attorney was ineffective

when he failed to (a) retain a handwriting expert, (b) object to the duplicitous count of
assault in the first degree, (c) request a jury instruction on intoxication, and (d) object at
trial to the reading of Harris’s entire statement to police. Docket Item 1 at 5.
Under Strickland v. Washington, 466 U.S. 668 (1984), an ineffective assistance
of counsel claim “has two components.” Id. at 687. “First, the defendant must show
that counsel’s performance was deficient.” Id. “Second, the defendant must show that
the deficient performance prejudiced the defense.” Id.
Under the first component, there is a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. Under
The respondent argues that because Harris failed to pursue all his claims to
the highest state court, any unexhausted claims or claims that have been procedurally
defaulted should be dismissed. Docket Item 11 at 35-39. The respondent may well be
correct, see Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022) (“AEDPA requires state
prisoners to ‘exhaust the remedies available in the courts of the State’ before seeking
federal habeas relief” (citing 28 U.S.C. § 2254(b)(1)(A))), but this Court does not reach
those issues because Harris’s claims are substantively meritless. See 28 U.S.C. §
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.”); Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (stating that
bypassing procedural questions to reach the merits of a habeas petition may be justified
“if the [underlying issues] are easily resolvable against the habeas petitioner, whereas
the procedural bar issue involved complicated issues of state law”); Anderson v.
Graham, 2018 WL 1428249, at *2 (W.D.N.Y. Mar. 22, 2018) (“the Court declines to
resolve the issues raised by Respondent’s assertion of the defenses of non-exhaustion
and procedural default, and instead proceeds directly to consideration of the merits of
Petitioner’s claims”).
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the second, the petitioner must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. Failure to establish either component is fatal to an ineffective assistance claim. Id.
at 697.
“[W]hile in some instances ‘even an isolated error’ can support an ineffectiveassistance claim if it is ‘sufficiently egregious and prejudicial,’ it is difficult to establish
ineffective assistance when counsel’s overall performance indicates active and capable
advocacy.” Harrington, 562 U.S. at 111 (quoting Murray v. Carrier, 477 U.S. 478, 496
(1986)). On habeas review, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.” Id. at 101.
A.

Failure to Retain a Handwriting Expert

The Fourth Department’s conclusion that Harris was not prejudiced by the
absence of testimony from a handwriting expert was not an unreasonable determination
of the facts in light of the evidence presented in the state-court proceedings. Indeed,
“the decision to call or bypass particular witnesses is peculiarly a question of trial
strategy, which courts will practically never second-guess.” United States ex rel. Walker
v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974) (citation omitted). And that is
particularly true here, where the county court listed a host of reasons why the expert’s
post-trial testimony was deficient, see Docket Item 12-2 at 180-81; see also supra at 78, and where calling an expert may well have done more harm than good. 12

The facts on which the county court and, in turn, the Fourth Department, relied
are supported by the record, Docket Item 12-3 at 1146-1490, and Harris does not
contend otherwise, Docket Item 1. Moreover, Harris’s counsel may have decided that
calling a handwriting expert would unduly emphasize Harris’s confessions or prompt the
12

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Therefore, the Fourth Department’s decision rejecting Harris’s ineffective
assistance of counsel claim based on the handwriting issue was neither contrary to nor
an unreasonable application of federal law. 28 U.S.C. § 2254(d)(1)-(2). In fact,
because trial counsel’s decision was a matter of strategy and because that strategic
decision did not prejudice Harris, neither Strickland prong is satisfied. Strickland, 466
U.S. at 687, 697 (failure to establish either prong is fatal to an ineffective assistance
claim; a petitioner must show both that counsel’s performance was deficient and that
the deficient performance prejudiced him). Harris’s habeas claim that his trial attorney
was ineffective for failing to call a handwriting expert is therefore denied.
B.

Failure to Object to Duplicitous Count

Harris argues that he also was denied effective assistance of counsel when his
attorney failed to object to the duplicitous count of assault in the first degree. Docket
Item 1 at 5. The Fourth Department found that this issue was not preserved for review.
Harris, 129 A.D.3d at 1525, 11 N.Y.S.3d at 364. Nevertheless, the court addressed the
merits and rejected Harris’s argument because “[i]n charging the jury in the disjunctive,
rather than in the conjunctive, the court did not amend the indictment, permit the People
to change the theory of the prosecution, or render the count duplicitous.” Id., 11
N.Y.S.3d at 364. In fact, under New York law, when “an offense may be committed by
doing any one of several things, the indictment may, in a single count, group them
together and charge the defendant to have committed them all, and a conviction may be
had on proof of the commission of any one of the things, without proof of the
prosecution to remind the jury about the parts of his statement that Harris admitted
signing. Docket Item 12-3 at 890-959.
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commission of the others.” Bork v. People, 91 N.Y. 5, 13 (1883); see also People v.
Rooney, 57 N.Y.2d 822, 823, 455 N.Y.S.2d 595, 596 (1982) (“Not every fact mentioned
in an indictment is essential to establish the defendant’s guilt of the crime charged, and
thus it is not necessary in every case that the People prove all acts alleged in the
indictment when the remaining acts alleged are sufficient to sustain a conviction.”). So
trial counsel’s failure to object was not ineffective for a simple reason: “There can be no
denial of effective assistance of trial counsel arising from counsel’s failure to make a[n]
. . . argument that has little or no chance of success.” Harris, 129 A.D.3d at 1525, 11
N.Y.S.3d at 364.
Because “[f]ailure to make a meritless argument does not amount to ineffective
assistance,” United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) (applying
Strickland), the Fourth Department’s conclusion that trial counsel was not ineffective for
failing to object was neither contrary to nor an erroneous application of federal law.
Indeed, it was the correct conclusion, and Harris’s claim based on his counsel’s failure
to raise duplicity is denied.
C.

Failure to Request an Intoxication Jury Instruction

Harris also says that his trial counsel was ineffective for failing to request an
intoxication instruction. Docket Item 1 at 5. Under New York law, “[a]n intoxication
charge is warranted if, viewing the evidence in the light most favorable to the defendant,
‘there is sufficient evidence of intoxication in the record for a reasonable person to
entertain a doubt as to the element of intent on that basis.’” People v. Sirico, 17 N.Y.3d
744, 745, 952 N.E.2d 1006, 1007 (2011). More specifically, a defendant may be
entitled to an intoxication charge when there is evidence
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tending to corroborate his claim of intoxication, such as the number of
drinks, the period of time during which they were consumed, the lapse of
time between consumption and the event at issue, whether he consumed
alcohol on an empty stomach, whether his drinks were high in alcoholic
content, and the specific impact of the alcohol upon his behavior or mental
state.
People v. Beaty, 22 N.Y.3d 918, 921, 999 N.E.2d 535, 536-37 (2013) (quoting People v.
Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 310 (1994)).
At trial, Gould testified that when he first spoke with Harris in the back of Wing’s
patrol car shortly after 10:00 a.m., he did not detect an odor of alcohol and Harris did
not appear to be intoxicated—or even to have been drinking alcohol. See Docket Item
12-3 at 56, 513-16, 544, 559-61. Moreover, Harris himself testified that over the fourand-a-half hours from about 8:00 p.m. to 12:30 a.m., he “had less than a beer, a Coors
Light,” and two Citron and 7-Ups, id. at 903-06, perhaps a total of “five to six drinks,” id.
at 925. And no one testified that on the night before the fire Harris had consumed so
much alcohol that a reasonable juror might conclude that he was unable to form the
requisite criminal intent. Id. at 80-925. So the Fourth Department correctly “reject[ed
Harris’s] contention that defense counsel was ineffective based on his failure to request
an intoxication charge [because] [s]uch a charge was not warranted” in light of the
evidence. See Harris, 129 A.D.3d at 1525, 11 N.Y.S.3d at 364. For that reason,
Harris’s claim based on his trial attorney’s failure to request an intoxication charge is
denied.
D.

Failure to Object to Reading Harris’s Entire Statement to Police

Harris also argues that his trial counsel was ineffective when he failed to object to
Harris’s entire statement to the police being read at trial. Docket Item 1 at 5. The
Fourth Department declined to address that claim because Harris raised it for the first
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time in his reply brief and it therefore was not properly before the court. 13 Harris, 129
A.D.3d at 1525, 11 N.Y.S.3d at 364.
Harris’s habeas petition does not say why counsel should have objected to the
in-court reading of his statement to police, see generally Docket Item 1, and his claim
fails for that reason alone. See generally United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (“It is not enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the ossature for the argument, and
put flesh on its bones.”). In his reply brief to the Fourth Department, Harris argued that
by not objecting to reading his statement, trial counsel effectively nullified a favorable
“pre-trial ruling that . . . [Harris’s] prior bad acts could not be admitted[,]” Docket Item 122 at 709, and perhaps that is the argument he wants to make here. But even if it is,
that argument fails as well.
In his Fourth Department reply brief, Harris noted that the statement read to the
jury referred to Harris’s admitting that he had “pushed and slapped two other women on
prior occasions.” Id. The reply brief argued that trial counsel’s failure to object to that

The Fourth Department did not resolve this claim on the merits, and the
respondent argues that it therefore is unexhausted; the respondent also says that the
claim is procedurally barred because it can no longer be raised in state court. Docket
Item 11 at 35-39. But perhaps Harris did raise the issue in his initial brief on appeal: he
contended that he was “deprived of his constitutional right to effective assistance of trial
counsel” when his attorney “failed to object to the prosecution’s reading to the jury of
various incompetent statements contained in appellant’s statements to the police.”
Docket Item 12-2 at 575. Nevertheless, even if that adequately raised the issue before
the Fourth Department, Harris never pursued it in the Court of Appeals, and he likely
has not exhausted it for that reason. 28 U.S.C. § 2254(b)(1)(A) (with limited exceptions,
a court shall not grant an application for a writ of habeas corpus “unless it appears
that— the applicant has exhausted the remedies available in the courts of the State”);
accord Shinn, 142 S. Ct. at 1732; see also supra n.11. In any event, and as noted
above, this Court does not address the exhaustion issue because Harris’s claims fail on
the merits.
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statement being read to the jury amounted to ineffective assistance because this
evidence “increased the possibility that the jury would convict [Harris] as a result of acts
for which he had not been indicted.” Id. at 710. But those arguments are misplaced.
Following a hearing, the trial court ruled that Harris’s entire written statement was
admissible. Id. at 634-35, 758, 775-779. In that statement, Harris said, “I have been
involved with incidents with two girls . . . . These incidents involve pushing and
slapping.” Id. at 786; Docket Item 12-3 at 588.
After ruling that the entire statement was admissible, but before trial, the court
also ruled that the People could not inquire about the “nature of the events” of two prior
convictions—assault in the third degree and endangerment of a child. Docket Item 123 at 127-28. More specifically, the court ruled that the prosecutor could ask only “if the
defendant has also been convicted of two other misdemeanors.” Id. The “incidents with
two girls” in Harris’s statement apparently were the bases for those misdemeanor
convictions. Id. at 588, 930, 1501. So, Harris argued in his Fourth Department reply
brief, his trial counsel was constitutionally ineffective by failing to object to reading his
statement about conduct involved in his prior convictions. Docket Item 12-2 at 709-10
(reply brief); Docket Item 12-3 at 570-71, 575, 580 (trial transcript).
Strickland counsels that in reviewing ineffective assistance claims, “every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. The inherent difficulties in such
an evaluation dictate a strong presumption that “counsel’s conduct falls within the wide
range of reasonable professional assistance” and place the burden on the petitioner to

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“overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). Harris has not met this burden here.
First, Harris did not and does not say why counsel’s decision was unreasonable.
For that reason alone, he has not carried the heavy burden of demonstrating that his
counsel was ineffective. Id. at 687. Moreover, the entire statement had been admitted
into evidence, and the snippet at issue did not violate the trial court’s ruling precluding
reference to the convictions because the prosecutor did not connect the misdemeanor
convictions with Harris’s admission that he had previously pushed and slapped “two
girls.” Docket Item 12-3 at 588. So there is no reason to believe that counsel’s
objection would have been sustained.
And even if all that were not true, there was no “reasonable probability” of a
different result if the snippet were excluded—that is, there is no reason to believe that
but for the reading of the snippet at trial, Harris would not have been convicted of
assault. Strickland, 466 U.S. at 694. Indeed, the trial court instructed the jury that with
respect to Harris’s statement to police, under no circumstances “should [they] consider
any incidents with the other female as a propensity of [Harris] to commit the crimes to
which he is now charged”; the evidence against Harris was overwhelming; and it is
unreasonable to think that a fleeting reference to prior incidents involving “pushing and
slapping”—included in a larger statement essentially admitting the crimes charged—had
any impact whatsoever on Harris’s conviction. 14 See Docket Item 12-3 at 1056, 1077-

As the respondent correctly observes, “the jury acquitted [Harris] of one of the
assault counts, something it would not likely have done had it acted based on
14

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78, 1081 (jury charge). For all those reasons, Harris’s claim based on trial counsel’s
failure to object to the reading of his statement lacks merit and is denied.
III.

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Finally, Harris argues that his right to effective assistance of counsel was violated

when appellate counsel failed to argue that trial counsel was ineffective by failing to
object to the reading of Harris’s entire statement to police. Docket Item 1 at 5.
As observed above, appellate counsel alluded to this issue in the primary brief to
the Fourth Department and fully developed it only in reply. Docket Item 12-2 at 575,
709-10. Perhaps, in hindsight, counsel might have fully briefed the issue in the first
brief. But Harris cannot show that appellate counsel was constitutionally ineffective by
focusing on some arguments at the expense of others, especially when the argument
he criticizes counsel for not pursuing lacks substantive merit. 15 See supra at 19-22.
Moreover, “[d]eclining to raise a claim on appeal . . . is not deficient performance
unless that claim was plainly stronger than those actually presented to the appellate
court.” Davila, 137 S. Ct. at 2067. Harris’s principal brief in the Fourth Department
raised four issues related to ineffective assistance of trial counsel and fully briefed two
of them. In the absence of any argument suggesting why objecting to the reading of
Harris’s statements was a stronger argument than those fully briefed, this Court must
presume that appellate counsel simply chose to focus on what he believed to be the

propensity, and not on the evidence of guilt presented at trial.” Docket Item 11 at 44
(citing Docket Item 12-3 at 1116).
Indeed, “[e]ffective appellate counsel should not raise every nonfrivolous
argument on appeal, but rather only those arguments most likely to succeed.” Davila v.
Davis, 137 S. Ct. 2058, 2067 (2017).
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stronger arguments. Therefore, this Court cannot conclude that appellate counsel was
ineffective when he focused on certain issues at the expense of others.
Harris therefore has established neither that appellate counsel performed
deficiently nor that there was a reasonable probability of a better outcome had counsel
fully briefed this issue in his opening appellate brief. His claim based on the alleged
ineffective assistance of appellate counsel therefore is denied.
CONCLUSION
For the reasons stated above, Harris’s petition for a writ of habeas corpus,
Docket Item 1, is DENIED, and the petition is DISMISSED. The Clerk of the Court shall
close the case.
The Court certifies under 28 U.S.C. § 2253(c)(2) that because the issues raised
here are not the type of issues that a court could resolve in a different manner, and
because these issues are not debatable among jurists of reason, the petitioner has
failed to make a substantial showing of the denial of a constitutional right. Accordingly,
the Court denies a certificate of appealability.

SO ORDERED.
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
Dated:

March 14, 2023
Buffalo, New York

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