Sell v. Conway

Filing 34

-CLERK TO FOLLOW UP- DECISION AND ORDER denying David Sells petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254; and dismissing the petition (Docket #1. The Court declines to grant a certificate of appealability because it finds that Petitioner has failed to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Signed by Hon. Michael A. Telesca on 6/16/14. (Clerk to close case.) (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DECISION AND ORDER
No. 6:10-CV-6182(MAT)

DAVID SELL,
Petitioner,
-vsJAMES T. CONWAY,
Respondent.
___________________________________
I.

Introduction
Pro se petitioner David Sell (“Petitioner”) has filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging

his

detention

in

state

custody.

Petitioner

is

incarcerated as the result of a judgment entered against him on
September 12, 1997, in New York State Supreme Court, Erie County
(Rossetti, J.) following a jury verdict convicting him of second
degree (intentional) murder in the second degree (New York Penal
Law (“P.L.”) § 125.25(1)); second degree criminal possession of a
weapon (P.L. § 265.03); and first degree reckless endangerment
(P.L. § 120.25). He was sentenced to an aggregate sentence of
43½ years to life.
II.

Factual Background and Procedural History
A.

Overview

The

charges

against

Petitioner

stem

from

a

shooting

on

October 21, 1995, which resulted in the death of Sheldon Newkirk
(“Newkirk”) and minor injuries to Gerald Webb (“Webb”). Over
defense objection, the trial court granted the prosecution’s motion

to amend the indictment on July 23, 1997, to include a theory of
accomplice liability under P.L. § 20.00, based upon the findings
that Newkirk’s body contained bullets fired from two different
guns.
B.

The Trial

A summary of the relevant trial testimony follows.
1.

Gerald Webb

Prior to the shooting, Webb had known Petitioner for about
three or four years. About two years prior to this incident, they
had had a falling out because Petitioner had made some remarks to
Webb that angered him. T.81.1 Webb and Sell had a physical fight
over Petitioner’s comments.
On the night of Friday, October 20, 1995, Webb went to a party
on

Boehm

Street

with

his

girlfriend,

Elizabeth

Hernandez

(“Hernandez”); his sister, Michele Bailey (“Bailey”); and his
sister’s boyfriend. Also present were Virgil Williams (“Williams”)
and Webb’s good friend, Newkirk. T.50-51. In the early morning
hours of October 21st, Webb left the party to go to the convenience
store on Genesee and Bailey Streets. T.52. He was accompanied by
Hernandez, Newkirk, Bailey, and Williams. As they were crossing the
street, “a car pulled up and tried to hit [them].” T.52. Webb
delivered a kick to the car and asked the driver (Petitioner),

1

Numerals preceded
Petitioner’s trial.

by

“T.”

refer

-2-

to

pages

from

the

transcript

of

“what the hell was wrong with him”. T.52. As Petitioner drove away,
he said, “I’ll be right back.” T.52, 53.
Webb and his friends continued on to the store. As they were
heading back down Boehm Street, Petitioner “flew by [them] in the
car.” T.54. When Webb and his companions got back to 29 Boehm, he
saw Petitioner turn the corner onto Warring Street. Petitioner got
out of the car and started coming back across the street towards
them carrying a chrome pistol. T.57. Webb believed it was a pistol
rather than a revolver because he did not see a round barrel. T.57.
There were about three men with Petitioner when he first started
walking across the street, but they “went other directions”,
leaving Petitioner by himself. T.57. According to Webb, Petitioner
was “twirling” the pistol in his right hand as he walked up to the
bottom of the steps of the porch. T.57.
Newkirk told Bailey and Hernandez to go upstairs and said to
Petitioner, “[A]in’t no need for no guns.” Newkirk grabbed Webb,
and they both turned to go into the house. T.58. That is when
Petitioner started shooting at Webb and Newkirk. T.58. Webb was
able to get to the door first; he looked around and saw Sell pull
the trigger and shoot Newkirk. T.59. As Webb stumbled on the steps,
bullets kept brushing his leg and his hands. The only injury he
suffered was a laceration on his right hand from being grazed by a
bullet. T.60.

-3-

When the shooting finally stopped, Webb ran upstairs to get a
towel so that he could tend to Newkirk, who was not responsive by
that point. When Webb returned to Newkirk’s side, Sell was gone,
the car he had arrived in was gone, and the people who had gotten
out of Sell’s car were gone. T.78.
Webb eventually learned about another shooting in the vicinity
at around the same time: Michael Ridgeway, a guest at the same
party

on

Ridgeway,

Boehm

Street,

out in

had

been

the street.

shot

Webb

by

his

brother,

learned about

the

Terry

Michael

Ridgeway shooting when he was in the patrol car going to give a
statement. T.66. Webb denied that he knew the Ridgeway brothers,
and maintained on cross-examination that he did not know them or
anything about their reputation on the street. T.69, 81. Neither
Webb nor any of his companions had a firearm that night. He did not
see anyone shooting back at Petitioner or any of “these people in
the street.” T.64.
Defense counsel impeached Webb with inconsistencies between
his trial testimony and his statement to the police. See T.70 et
seq. Webb admitted that there was no reference to his having kicked
Sell’s car. T.71.

Webb only described the weapon as a handgun; he

did not indicate whether it was an automatic or what color it was.
Id. Webb claimed that he told the police it “was like a silverish
color chrome gun”, but his statement did not reflect that. T.72.
Webb further admitted that the part about Sell coming down the

-4-

street twirling the gun was not contained in his statement to the
police. Id. Webb conceded that it was not until a year and two
months later that he told this story again to the prosecutor at the
grand jury. T.73. Webb claimed that he “was in shock” when he first
reported the incident. Id. On re-direct, the prosecutor pointed out
that the statement commenced at the point of the narrative when
Petitioner

approached

the

porch

where

Webb

and

Newkirk

were

standing. T.84.
When

asked

to

clarify

his

testimony

about

the

other

individuals who got out of the car with Petitioner, Webb stated
that Petitioner was the only one coming in his direction. T.74.
Webb did not know where the other individuals were. T.75. Although
his statement to the police indicated that the other individuals
“jumped out of the car and started shooting[,]” Webb claimed that
he did not remember telling the police that. T.75. Webb stated
these other people pulled around the corner, parked the car, got
out and “[t]hey just started–[Petitioner] started walking towards
us. Where the rest of them went I don’t know. I know where
[Petitioner] was at.” T.75.
2.

Gordon Maston

Twenty-two-year-old Maston met Petitioner at the end of 1992,
while they were both incarcerated. T.116. Maston considered Sell a
friend, and the two had not had any disputes. T.117. On the night
of the incident, Maston was walking by himself towards 29 Boehm

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from his sister’s house on Bailey Street when he saw Petitioner
“with a chrome gun shooting upon on the porch” and “somebody on the
side of the porch” also shooting at people on the porch. T.119.
Maston said the gun “could have been a chrome .380” or a “chrome
nine” but he did not know for certain. T.119; T.139. Maston
recalled that Petitioner “looked [him] dead in the face”, turned
away, and began shooting at the people on the porch. T.120. Maston
related,
After I saw him shoot, . . . I’m looking at him shoot, I
just couldn’t believe, you know what I’m saying, I was
seeing him doing that. So, I got behind the tree because
somebody was on the side of the street shooting too. When
the firing ceased I walked back up the street to my
sister’s house.
T.121, 135. As Maston was approaching the corner of Bailey and
Boehm, Petitioner was sitting his car. They looked at each other,
and said, “[W]hat’s up[?]” T.121. Petitioner replied, “[‘]I just
bodied a nigger, I got to bounce.[’]” Id.; see also T.136. Maston
thought Petitioner meant that he had just killed somebody. Id.
Before Maston could reply, Petitioner sped away in what Maston
described as a red Acura Integra, a “little compact car.” T.122,
137. Maston did not know where the Acura was parked during the
shooting. T.137. There was one other male black in the car with
Petitioner, whom Maston could not identify because he did not see
his face. T.138. Maston had not consumed any alcoholic beverages or
drugs that night, and recalled that the area was well-lit due to
the street lights.
-6-

Maston claimed that he did not know the identities of the
other people who were with Petitioner when he arrived on Boehm
Street.

Maston

did

see

one

other

person

shooting

besides

Petitioner, but Maston said, “I can’t describe him. He was dark. .
. . [Petitioner] is light, you know what I’m saying. The other
character was dark skinned. Then he was on the side of the house
behind the rail.” T.132. Maston did not know who the second shooter
was, and he did not give a description of him to the police or
prosecutor. T.134. He did not see what kind of gun the other
shooter had because he “wasn’t paying attention to that” and it was
dark on the side of the house where the person was, and so Maston
could not see his face. T.139.

Maston testified that he had

heard of the Ridgeway brothers and their conviction for a murder
about twenty-five years ago, based upon a news story he watched.
T.135.
Maston admitted that he did not contact the prosecutor about
his having witnessed the murder until 1997; he claimed that he
waited to do so until Petitioner was caught, which was the “proper
time.” T.126. Maston admitted that he contacted his attorney to
have the attorney contact the prosecutor on his behalf about the
Petitioner case after he (Maston) had been indicted on a robbery
charge. T.127. Maston admitted that he had a pending robbery charge
that arose from an incident involving his ex-girlfriend, explaining
that he wanted to take his car out of her name, and that she gave

-7-

him the title, but then “called the cops and said that [he] took
[his] title at gunpoint.” T.122-23. While that case was pending,
Maston advised the district attorney’s office that he had witnessed
the Newkirk/Webb shooting on Boehm Street. Maston testified that
despite providing information regarding Petitioner’s prosecution,
he nevertheless was indicted for the robbery involving the car
title. T.123. He testified on cross-examination that he received
“[n]o deal.” Id.; see also T.130 (Q: “You’re not expecting to
receive

any

benefit

from

this

[i.e.,

testifying

against

Petitioner]?” A: “No, I’m not.”).
3.

Gail Buchanan

Thirty-one-year-old Gail Buchanan (“Buchanan”), who lived at
70 Warring on the date of the shooting, was friends with Newkirk,
the murder victim. On the night of October 20th , Buchanan went to
a party hosted by Gail Borum (“Borum”) at 77 Warring. T.145.
Buchanan said that Petitioner and Morrow were at the party. At some
point, one of the speakers blew, and so Petitioner and Morrow left
to go get new ones. T.148-49. They were gone for about 30 to
45 minutes. Id. Buchanan heard their car arriving back at the party
but said, but they never came back in the house. Buchanan looked
outside the door and saw Petitioner, who “seemed like he was upset
and he was saying he was going back around the corner. Someone told
him let that shit go, it’s not worth it and he was like no, I’m
going back around there.” T.149. Buchanan went back into the house

-8-

to use the bathroom. Upon hearing gunshots, she returned outside to
see that everyone had left the house. She looked down towards the
corner of Warring and Boehm where all she could see was “just a big
commotion.” T.149, 154. She then went across the street to her
house to check on her kids. Id. Buchanan testified that she heard
approximately four or five shots fired. T.155. Buchanan said that
she did not know the Ridgeway brothers and did not know whether
they were at the party at Borum’s house. T.151.
4.

Adrian Morrow

Morrow had met Sell on the street about eight months prior to
the shooting. T.157. At Borum’s party on October 20th, he and
Petitioner, along with Fred Parsons (“Parsons”) and a person named
“Klee”, left to go pick up some speakers at Morrow’s house at
260 Percy. On the way back, Petitioner got into an argument with
three guys on the corner because “[a]pparently somebody kicked the
car.” T.160. Morrow did not see anyone kick the car. Petitioner got
out and “was arguing” with the guys on the corner. Then Petitioner
got back into the car, and they drove down Boehm and turned onto
Warring. Id. They popped the trunk,

and Morrow removed a speaker

and brought it into the house. When he returned, everyone had gone.
Gunshots

rang

out

around

the

corner,

so

Morrow

ran

in

that

direction. T.161.
Once at Boehm, Morrow saw Newkirk lying down on the porch.
Sell was shooting “up in the air . . . [l]ike at the top of the

-9-

house.” T.161. Morrow testified that he heard “a lot of shots”
before he got to the corner. Sell was firing a chrome-colored
pistol. T.162.
According to Morrow, Michael Ridgeway was there, although he
was still standing at the time Morrow arrived on the scene. T.163.
Terry Ridgeway and Petitioner’s friend, “Klee”, both had handguns,
but Morrow did not actually see them shooting. T.174. Neither
Parsons nor Michael Ridgeway had guns. T.178,
At some point during the incident, Morrow saw Michael Ridgeway
fall to the ground. He first thought Michael Ridgeway was “playing
‘cause he was drunk.” T.163.

Morrow grabbed Michael Ridgeway’s

arm, pulled him up, and that is when he saw blood coming from the
back of his head. Id. Petitioner, Terry Ridgeway, and “Klee” all
left, but Morrow did not know where they went. T.164. Morrow
described himself as “hysterical” by that point.
Morrow admitted that he had been convicted of third degree
assault in 1992, for which he received a probationary sentence.
Three years later, he was convicted of attempting resisting arrest.
Most recently he had pled guilty to a drug charge in federal court.
T.165. By the time he came forward in Sell’s case, he had already
been indicted and pled guilty in federal court. The prosecutor
asked Morrow, “And according to federal law you’re locked into a
specific sentence, is that not true?” T.165. Morrow replied, “Yes.”
T.165. On cross-examination, Morrow admitted that his sentencing

-10-

hearing had been adjourned, although he claimed not to know the
reason for the adjournment. T.179-80. Morrow denied that he entered
into a cooperation agreement with the United States Attorney’s
Office “so that he could get a better deal for himself.” T.180.
Morrow admitted knowing that the federal prosecutor had submitted
a request on July 8th to adjourn his sentencing that had been
scheduled for July 11th but claimed not to know the reason for the
adjournment. Defense counsel marked the adjournment motion as an
exhibit (Defendant’s Exhibit D) for identification purposes. T.180.
Morrow claimed that although his attorney had shown him the papers
submitted on his behalf and dealt with by the attorney in federal
court, Morrow had never seen the letter from the prosecutor marked
as Defendant’s Exhibit D. T.182.

Morrow said, “I don’t know why

[it was adjourned]. My lawyer just called me and said that it was
adjourned to August 15.” T.183. The trial court interjected,
“That’s enough. You don’t know why. Next question.” T.183.
5.

Virgil Williams

Twenty-two-year-old Williams was dating Webb’s sister and had
known Newkirk for about six months prior to the shooting. Williams
did not know Sell and had no prior dispute with him. T195-96.
As Williams, Webb, Bailey, and Hernandez were on their way
back from the store to Newkirk’s house, “a car came speeding around
the corner and we was [sic] walking in the middle of the street and
it almost hit us.” T.196. They started “yelling at the car or at

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the driver of the car slow down, watch where you [sic] going.”
T.197. The driver “backed up and he was like, what you say[?]”
T.197. They repeated what they said–“slow down, watch where you
[sic] going, you almost hit us.” Id. The driver replied, “I’ll be
back” and pulled away, making a left turn at the next corner onto
Warring, and then got out of the car and came back. T.197, 213.
Williams identified Sell in court as the driver of the car, having
identified him officially for the first time at the grand jury
T.197, 215.
Williams and his friends had not quite made it to 29 Boehm
when he saw Sell “come back around the corner by his self [sic]
with a gun in his hand.” T.197-98. According to Williams, the gun
was definitely a black pistol, not a revolver. T.198, 216. It
appeared to Williams that Sell was twirling the gun in his hand.
Id.

Williams “guess[ed]” the pistol “would be a nine or something

like that,” meaning a 9mm. T.215. Williams went up to Newkirk’s
house to alert his friends that Sell was approaching.
On cross-examination, defense counsel confronted Williams with
his

statement

to

the

police

immediately

after

the

shooting.

Williams stated that he told the police the shooter was 5'10"-tall,
with thick eyebrows, a slight goatee, and a light complexion.
T.208. However, the statement says “black male, light skinned,
medium build, box haircut grown out, five ten, thin mustache, dark
jeans, colored shirt with light stripes going across it. T.209.

-12-

(Sell is only 5'5"-tall. T.210).

When Sell got to the bottom of

the stairs to the porch, he stood there holding the gun and “was
making threats like watch you [sic] all say to me. Now, what’s your
problem.” T.199. Newkirk said, “There is no need for no [sic]
guns.” T.199.
At that point, Williams opened the door and told the girls to
go upstairs. Williams related that Newkirk and Webb were standing
side by side. Webb was “like yelling” at Sell” and was “a little
more madder [sic]” than the others because he was the closest to
being hit by Sell’s car. T.199. Williams grabbed Webb, but Webb
“snatched away” from him. T.200. Williams looked at Newkirk who
“was like[,] ‘I got this.’” Id. Williams thought that meant Newkirk
knew Sell because “they were talking and I’m feeling, you know, as
though Sheldon might have got the situation at hand.” T.200.
Williams then proceeded to go upstairs. When he got to the top, he
heard about six shots. Returning downstairs, he saw Newkirk lying
in the doorway.
B.

The Verdict and Sentence

The jury returned a verdict finding Sell guilty of Newkirk’s
murder, of recklessly endangering Webb’s life, and of criminal
possession of a weapon, as charged in the amended indictment. He
was sentenced as a second violent felony offender to an aggregate
term of imprisonment of 43½ years to life.

-13-

C.

The Direct Appeal and State-Court Collateral Motions

The Appellate Division, Fourth Department, of New York State
Supreme Court, unanimously affirmed Petitioner’s conviction on
direct appeal. People v. Sell, 283 A.D.2d 920 (4th Dep’t), lv.
denied, 96 N.Y.2d 867 (2001).
On August 5, 2002, represented by attorney Gregory McPhee,
Esq. (“Attorney

McPhee”),

Sell

filed

a

motion to

vacate

the

judgment pursuant to New York Criminal Procedure Law (“C.P.L.”)
§

440.10,

claiming

that

the

prosecution

failed

to

disclose

cooperation agreements entered into with Maston and Morrow whereby
they would receive favorable treatment in pending criminal matters
in exchange for their assistance in prosecuting Sell. Sell also
alleged that Maston and Morrow testified falsely in connection with
these agreements, and that the prosecutor failed to correct their
testimony.

Sell

further

argued

that

trial

counsel

provided

ineffective representation on numerous grounds. The trial court
denied

the

motion

as

without

merit,

and

did

not

conduct

an

evidentiary hearing.
A justice of the

Appellate Division granted leave to appeal

the denial of C.P.L. § 440.10 relief, and assigned counsel Randall
Unger,

Esq.,

perfected

the

appeal.

The

Appellate

Division

unanimously affirmed the trial court’s decision without discussion
in a summary order entered October 3, 2008.

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In a second C.P.L. § 440.10 motion dated March 18, 2009, which
he filed pro se, Petitioner contended that the counts of murder and
reckless endangerment should have been submitted to the jury in the
alternative, trial counsel was ineffective in failing to object to
the allegedly erroneous jury instructions in this regard, and in
failing to use the grand jury minutes to renew a motion to dismiss
the indictment. After the trial court denied relief, the Appellate
Division denied permission to appeal by an order dated March 12,
2009.
D.

The Federal Habeas Petition

This timely habeas petition followed in which Sell raises six
claims, each of which Respondent admits was raised either in his
direct appeal or in a subsequent collateral attack. Petitioner
submitted a reply brief in response to Respondent’s opposition
papers

and,

subsequently,

filed

a

letter-motion

to

stay

the

petition. Respondent opposed the motion to stay, which was denied
without prejudice by the Court (Payson, M.J.) on March 30, 2012.
Petitioner did not re-submit his motion to stay. On June 28, 2013,
the Court (Payson, M.J.) granted Petitioner’s request to supplement
the petition with the transcript of Maston’s state-court plea
minutes. On May 16, 2014, the matter was transferred to the
undersigned. For the reasons that follow, the petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
petition is dismissed.

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III. Merits of the Petition
A.

Ground One: Violation of the Equal Protection Clause in
the Prosecutor’s Use of Peremptory Strikes
1.

Background

Sell argues that the prosecutor violated the Equal Protection
Clause

because

he

had

an

improper

discriminatory

purpose

in

peremptorily striking a male Hispanic juror, Luis Irene (“Irene”).
Sell himself is Hispanic. The prosecutor explained that he was
striking Irene because
[e]very question he’s asked is with – has been [answered]
with a smirk, a shake of the head. He just doesn’t seem
serious at all. Even when the Court was asking him
questions and I know it’s not portrayed in the record,
but certainly the Court was observing of the carefree
nature that this person has been answering the questions
in this case . . . .
JS.133-34.2 As Respondent points out, neither defense counsel nor
the

trial

court

expressed

disagreement

with

the

prosecutor’s

observations.
On direct appeal, Petitioner’s only argument for a finding of
pretext was that the prospective juror’s ties to individuals in the
law enforcement community typically would have resulted in a
peremptory challenge by the defense, not the prosecution. The
Appellate Division noted that “[t]he findings of the trial court,
which was in the best position to view the prospective juror’s

2

Numerals preceded by “JS.” refer to pages from the transcript of jury
selection.

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demeanor, [we]re to be accorded great deference.” Sell, 283 A.D.2d
at 921 (internal citations omitted). The explanation offered by the
prosecution–“that the prospective juror had revealed himself to be
a glib or unserious person–[was] race-neutral and not pretextual.”
Id.
2.

Analysis

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court
established

adopted

a

three-step burden-shifting

approach

for

determining whether peremptory challenges have been used in a
discriminatory manner. See 476 U.S. at 93-98. First, the movant
must establish a prima facie case of discrimination; second, the
non-movant must then provide a neutral justification for the
peremptory challenge; and, third, the trial court must evaluate
whether

the

movant

has

satisfied

his

ultimate

burden

of

establishing that the peremptory challenge was the result of
“purposeful discrimination.” Id.
Here,

the

state

courts

applied

the

correct

analytical

framework in considering and ruling on defense counsel’s objection
to the peremptory strike. After defense counsel made his motion,
the trial court asked for a non-discriminatory basis for excluding
the juror. The prosecutor then articulated a facially race-neutral
explanation for his challenge. See United States v. Biaggi, 853
F.2d 89, 96 (2d Cir. 1988) (“The [trial] court found . . . that
several of those [prospective jurors] excused by the government had

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displayed angry, arrogant, or flippant demeanors that led the
government to be concerned that they might be insufficiently
serious about jury duty and perhaps even disdainful of the judicial
process.”). After hearing the defense’s rebuttal, the trial court
nevertheless found the prosecutor’s proffered non-discriminatory
reason to be credible and ruled that it was nonpretextual.
At issue here is step three of the Batson analysis, which
requires a trial court to make “an ultimate determination on the
issue

of

discriminatory

intent

based

on

all

the

facts

and

circumstances.” United States v. Alvarado, 923 F.2d 253, 256 (2d
Cir.

1991).

“This

final

step

involves

evaluating

‘the

persuasiveness of the justification’ proffered by the prosecutor,
but ‘the ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.’”
Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting Elem, 514 U.S.
at 768). The determination at step three is a finding of fact that
is accorded “great deference” and reviewed for clear error on
direct appeal; “the decisive question will be whether counsel's
race-neutral explanation for a peremptory challenge should be
believed.” Hernandez v. New York, 500 U.S. 352, 364-65 (1991). When
the race-neutral explanation given is in turn based on the demeanor
of the juror, the trial judge’s ‘first hand observations’ are of
great importance.”

Thaler

v.

Haynes,

559

U.S.

43,

49

(2010)

(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)). Thus,

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habeas relief is warranted only “if it was unreasonable to credit
the

prosecutor’s

challenge.”

race-neutral

Rice,

546

U.S.

explanations

at

338–39

for

the

Batson

28

U.S.C.

(applying

§ 2254(d)(2) as the standard of review in a Batson claim alleging
error at step three).3
The prosecutor’s assertion that Mr. Irene appeared “glib” and
“not serious” about the jury selection process is not contradicted
by any evidence in the record. Notably, defense counsel did not
offer

any

rebuttal

to

the

prosecutor’s

assertion

regarding

Mr. Irene’s demeanor. As Respondent points out, Petitioner’s only
argument (which was not raised before the trial court) for a
finding

of

pretext

is

that

the

prospective

juror’s

ties

to

individuals in the law enforcement community typically would have
resulted in a peremptory strike by defense counsel.
Background factors that are ordinarily viewed as favorable to
the

prosecution–e.g.,

a

personal

relationship

with

law

enforcement–have been considered by New York State courts in
determining whether a prima facie case of discrimination has been
shown, see, e.g., People v Rodriguez, 211 A.D.2d 275, 278 (1st Dep’t
1995).

Given

the

procedural

posture

of

Petitioner’s

Batson

challenge, the Court is no longer concerned with whether a prima
facie case was established, because the prosecutor offered a
3

This review focuses on the state trial court’s factual determination, even
where, as here, there is a state appellate court opinion addressing the claim on
direct review. See, e.g., Rice, 546 U.S. at 338–39.

-19-

neutral reason for the strike, and the trial court ruled on the
ultimate issue of discrimation. See Johnson v. California, 545 U.S.
162, 168 (2005) (“‘If a race-neutral explanation is tendered, the
trial court must then decide . . . whether the opponent of the
strike has proved purposeful racial discrimination.’”) (quoting
Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam)). In any
event,

the

plausibility

of

the

prosecutor’s

reason

might

be

undermined if Sell could show that the prosecutor had kept other,
non-minority jurors who possessed background factors typically
associated with a bias in favor of the prosecution. Jordan v.
Lefevre, 293 F.3d at 587, 594 (2d Cir. 2002). This, however, Sell
has failed to do.
B.

Ground Two: Erroneous Denial of Motion to Remove a Sworn
Juror
1.

Background

After being impaneled, a juror contacted the trial judge to
disclose that he had served 8 years as a Justice of the Peace at
least 10 years earlier. The juror had not revealed that fact during
his voir dire, explaining that he had forgotten it until after he
had left court that day. In moving to discharge the juror, defense
counsel stated that, if he had known earlier of the juror’s
background, he would have exercised a peremptory challenge to
discharge the juror. The trial court denied the request to remove
the juror.

-20-

On direct appeal, appellate counsel argued that the juror was
grossly unqualified to serve. The Appellate Division found this
claim to be unpreserved4 and without merit. The Appellate Division
further held that trial court had properly denied the defense
motion to discharge the impaneled juror.
2.

Analysis

A trial judge’s determination regarding a juror’s impartiality
is a factual determination. E.g., Thompson v. Keohane, 516 U.S. 99,
111

(1995)

(citation

omitted).

As

this

“determination

is

essentially one of credibility, and therefore largely one of
demeanor,” “the trial court’s resolution of such questions is
entitled . . . to ‘special deference.’” Patton v. Yount, 467 U.S.
1025, 1037-38 (1984) (quotation omitted).
Here, defense counsel did not claim that there had been
“deliberate concealment” by the juror regarding his service as a
Justice of the Peace. The juror came forward as soon as he
remembered his omission and informed the court and counsel. When
questioned by the trial court and counsel, the juror repeatedly and
unequivocally assured the court that nothing in his background,
including his service as a Justice of the Peace, would affect his
ability to be impartial. It is noteworthy that defense counsel
essentially conceded that there was no basis to challenge this
4

Respondent has not asserted the affirmative defense of procedural default
based upon the Appellate Division’s reliance on the contemporaneous objection
rule to deny the claim.

-21-

juror for cause. See JS.213-14 (Defense counsel stated, “Is he
grossly unqualified? The answer is probably not. Is he unqualified?
Can I challenge him for cause? Probably not.”).

Rather, defense

counsel merely asserted that he would have exercised a peremptory
challenge had he known about the juror’s stint as a Town Justice.
Furthermore, defense counsel opted not to seek the juror’s removal
on the ground that he had “a state of mind that is likely to
preclude him from rendering an impartial verdict based upon the
evidence,” N.Y. CRIM. PROC. LAW § 270.20(1)(b). Nor did defense
counsel argue that the juror’s answers during voir dire revealed
actual or potential bias. Sell has failed to demonstrate that the
trial court’s finding regarding this juror’s impartiality and
ability to serve amounted to error, much less “manifest error,”
Patton, 467 U.S. at 1031, 1037-38.
C.

Ground Three: Due Process Violations by the Prosecutor

Petitioner raises two violations of Brady v. Maryland, 373
U.S. 83 (1963), in his petition. One pertains to a cooperation
agreement between Morrow and the United States Attorney’s Office
(“the USAO”), and the other relates to a cooperation agreement
between Maston and the Erie County District Attorney’s Office (“the
ECDAO”).

-22-

1.

The Cooperation Agreement With Morrow
a.

Background

On April 18, 1997, prior to the commencement of Sell’s trial,
Morrow pled guilty in federal court to possession of five grams of
cocaine with intent to distribute. Morrow signed a plea agreement,
the terms of which were explained to Morrow as follows by the
district judge: “You will cooperate with the prosecution, you will
give it complete and truthful information as to your knowledge of
all criminal activity by you and others in the area of dealing in
dealing with and using drugs.” Affidavit of Gregory McPhee, Esq.
dated August 5, 2002 (“8/5/02 McPhee Aff.”), Submitted in Support
of C.P.L. § 440.10 Motion, at 7 (quoting Transcript of Morrow’s
Plea Allocation (“Morrow Plea Tr.”) at 2, attached as Ex. C to the
8/05/02 McPhee Aff.). The district judge informed Morrow that if
the cooperation he gave to the Government was “of sufficient help
to it, it will make a motion . . . allowing [the judge] to reduce
that level of criminality by a certain amount, and that of course
will reduce the two figures that will control [Morrow’s] time of
imprisonment.” Id. at 8 (quoting Morrow Plea Tr. at 7). Morrow’s
sentencing was scheduled for July 11, 1997.
On July 8, 1997, however, the Assistant United States Attorney
Christopher

Buscaglia

(“AUSA

Buscaglia”)

moved

for,

and

was

granted, a 30-day adjournment because Morrow was cooperating “in
accordance with a Cooperation/Plea Agreement entered into between

-23-

the

government

and

himself,”

but

Morrow’s

“cooperation

was

incomplete.” See Ex. B to the Petition (Docket No. 1).5
On October 17, 1997, Morrow and his attorney appeared in
district court for sentencing. Morrow’s attorney joined in the
USAO’s downward-departure motion, claiming that Morrow’s “testimony
. . . eliminated the alibi defense that was being put forward by
Defendant David Sell.” See Transcript of Morrow’s Sentencing dated
10/17/1997 (“Morrow’s Sentencing Tr.”) at p. 3, Ex. C to the
Petition (Docket No. 1). AUSA Buscaglia stated that the information
Morrow had provided about drug-trafficking was not substantial
enough, standing alone, to warrant the downward departure. However,
the drug-related intelligence, combined with Morrow’s testimony at
Petitioner’s trial, justified the 5K.1 motion. The district judge
granted the motion and sentenced Morrow to a term of 57 months
(4 years and 9 months).6
b.

The Elements of a Brady Claim

In Brady, 373 U.S. 83, supra, the Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused

5

It appears that Petitioner’s trial counsel, Alan Goldstein, Esq. (“Attorney
Goldstein”) obtained a copy of the federal prosecutor’s July 18, 1997 request for
an adjournment, since he cross-examined Morrow with a document dated July 18,
1997, which he stated was a request by the federal prosecutor to adjourn Morrow’s
sentencing. Defense counsel marked the motion as Defendant’s Exhibit D for
identification purposes, but it was not entered into evidence because Morrow
testified that he did not recall seeing it.
6

Without a downward-departure, the mandatory minimum sentence for the crime
to which Morrow pled guilty was 10 years.

-24-

upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Id. at 87. The Supreme Court has
explained that “[t]here are three components to a true Brady
violation: The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” Strickler v.
Green, 527 U.S. 263, 281-82 (1999). As the Second Circuit has
noted, “[u]nquestionably agreements in general terms to reward
testimony by consideration create an incentive on the witness’ part
to testify favorably to the State and the existence of such an
understanding is important for purposes of impeachment.” DuBose v.
LeFevre,

619

F.2d

973,

979

(2d

Cir.

1980)

(citing

Boone

v.

Paderick, 541 F.2d 447, 451 (4th Cir. 1976)), cert. denied, 430
U.S. 959 (1977)).
c.
When

Analysis

asserted

the

claim

regarding

Morrow

in

his

C.P.L.

§ 440.10, Justice Rossetti (“the § 440 court”) acknowledged that
Morrow had a “federal plea deal” but found that it was “not subject
to disclosure” under Brady because the agreement, as memorialized
in the federal plea transcript, “required him only to assist the
authorities

with

respect

to

drug

activity[,]”

and

contained

“absolutely no reference” to Petitioner’s prosecution. See First

-25-

C.P.L. § 440.10 Order at 7. The § 440 court found that although
Morrow “certainly benefitted” from testifying against Petitioner,
as

evidenced

by

AUSA

Buscaglia’s

statement

that

Morrow’s

cooperation with the ECDAO was the main basis for the downwarddeparture

motion,

such

cooperation

“was

not

a

condition

of

[Morrow’s] federal plea agreement and therefore not subject to
disclosure.” Id. The § 440 court also found that Petitioner had
“failed to demonstrate that the District Attorney knew, or should
have

known,

that

Morrow

had

an

agreement

with

the

federal

prosecutor.” First C.P.L. § 440.10 Order at 6-7. That factual
finding of prosecutorial ignorance is binding on this Court unless
[Petitioner] can demonstrate by clear and convincing evidence, see
28 U.S.C. § 2254(e)(1), that it was erroneous.” Afrika v. Herbert,
2007 WL 2323500, at *17 (W.D.N.Y. Aug. 10, 2007) (citing Drake v.
Portuondo, 321 F.3d 338, 345 (2d Cir. 2003); Simmons v. Fisher,
No. 02 Civ. 4811(SHS)(MH), 2006 WL 2129770, at *11 (S.D.N.Y.
July 26, 2006)). Even assuming that Petitioner had shown by clear
and

convincing

constructive

evidence

knowledge

of

that
a

the

prosecutor

cooperation

had

agreement,

actual
the

or

Court

nevertheless finds that Petitioner has failed to establish a true
Brady violation, as discussed further below.
“Brady cannot be violated if the defendants had actual
knowledge of the relevant information or if the documents are part
of public records and ‘defense counsel should know of them and

-26-

fails to obtain them because of lack of diligence in his own
investigation.’”

United

States

v.

Zagari,

111

F.3d

307,

320

(2d Cir. 1997) (quoting United States v. Payne, 63 F.3d 1200, 1208
(2d Cir. 1995); further citation omitted). Respondent argues, as
the ECDAO did in the § 440 proceeding, that Petitioner’s trial
counsel,

Attorney

Goldstein,

was

aware,

based

on

Defendant’s

Exhibit D (i.e., the request for adjournment dated July 18, 1997),
that

Morrow

had

pled

guilty

in

federal

court

and

that

his

sentencing remained pending at the time of Petitioner’s trial. In
rebuttal, Attorney McPhee, Petitioner’s motion counsel, noted that
trial counsel Attorney Goldstein had stated that he had never been
shown a copy of any cooperation agreement with Morrow. However,
Attorney Goldstein did not acknowledge the existence of Defendant’s
Exhibit D, of which he certainly could have obtained a copy from
Attorney Goldstein. Apparently because it had not been submitted in
support of the § 440.10 motion, the § 440 court found that “without
the benefit of [D]efendant’s [E]xhibit D, [it] cannot conclude . .
.

that

counsel

had

actual

knowledge

of

the

existence

of

a

cooperation agreement, let alone its specific terms.” First C.P.L.
§ 440 Order at 6.

This Court notes that Attorney McPhee clearly

was engaging in some amount of gamesmanship by not attaching a copy
of Defendant’s Exhibit D in support of Petitioner’s C.P.L. § 440.10
motion or acknowledging its existence, although it certainly would
have been in trial counsel Attorney Goldstein’s possession.

-27-

Because

Petitioner

submitted

a

copy

of

the

July

18th

adjournment motion (Defendant’s Exhibit D) in support of his habeas
petition, this Court has had the opportunity to review it. The
document clearly states that Petitioner’s sentencing needed to be
adjourned because he had not finished cooperating with the USAO.
Based upon the Court’s review of relevant case law, the adjournment
motion gave Petitioner’s trial counsel sufficient facts for him to
have made further inquiry. See, e.g., United States v. Bermudez,
526 F.2d 89, 100 (2d Cir. 1975) (“[A]ppellant’s counsel could, with
due diligence, have discovered the existence of the alleged files.
He was aware of pending state court proceedings against Fiffe,
Miranda, Blanco and Juanita Guzman for dealing with state narcotics
officers during the same period of the present conspiracy because
he represented Guzman in that case. In view of that participation
he was plainly in a position to subpoena whatever state files he
now claims would have assisted preparation for cross-examination of
Fiffe.”).

The law is well settled that “where the defendant is

aware of the essential facts enabling him to take advantage of any
exculpatory evidence, the Government does not commit a Brady
violation by not bringing the evidence to the attention of the
defense.” United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978).
Under these circumstances, the Court finds that trial counsel was
on notice that Morrow had a cooperation agreement of some sort
which

may

have

warranted

additional

-28-

investigation.

See

United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993) (finding
that defendant “had sufficient access to the essential facts
enabling him to take advantage of any exculpatory material that may
have been available”, and therefore the government did not suppress
information in violation of Brady) (citations omitted).7 The Court
agrees with the Respondent’s attorney that “[c]ounsel had the
information he needed to investigate and call witnesses if he
wanted more information about that agreement [mentioned in AUSA
Buscaglia’s

letter].”

Second

Meyer

Aff.

at

3,

¶11

(internal

citation to record omitted). See, e.g., Raley v. Ylst, 470 F.3d
792, 804 (9th Cir. 2006) (“Petitioner possessed the salient facts
regarding

the

existence

of

the

records

that

he

claims

were

withheld. Petitioner knew that he had made frequent visits to
medical

personnel

medication

that

at
they

the

jail.

prescribed

He

knew

for

that

him.

he

Those

was
facts

taking
were

sufficient to alert defense counsel to the probability that the

7

Zackson is similar to the present case in that the defendant claimed that
he was misled by a federal agent’s affidavit into believing that a witness’
cooperation related only to one investigation. The agent’s affidavit did not
reveal that the witness held a more expansive role as an informant; this
information emerged at a hearing where the agent testified. Zackson argued that
the information was “suppressed” because the government never notified him of the
hearing date, nor of the substance of the agent’s testimony. The Second Circuit
noted that although Zackson might not have received prior notice of the witness’
hearing, “evidence in the record suggest[ed] that Zackson was nevertheless aware
that the issue of the extent of [the witness’] cooperation may have warranted
some additional investigation.” Zackson, 6 F.3d at 919. The panel concluded that
Zackson had sufficient access to the essential facts enabling him to take
advantage of any exculpatory material that may have been available, including
[the agent]’s testimony at the . . . hearing on [the witness]’s motion to
dismiss.” Id. Therefore, the court concluded, “the government did not suppress
the subject information in violation of Brady.”

-29-

jail had created medical records relating to Petitioner. Because
Petitioner knew of the existence of the evidence, his counsel could
have sought the documents through discovery.”).
Because

this

Court

has

found

that

there

has

not

been

“suppression” within the meaning of Brady it need not address the
question of whether the state prosecutor, ADA Cooper, had actual or
constructive knowledge of the cooperation agreement. Furthermore,
it need not address “materiality”. For the foregoing reasons,
Sell’s Brady claim involving the failure to disclose Morrow’s
cooperation agreement does not warrant habeas relief.
2.

The Cooperation Agreement With Maston
a.

Background

Prior to jury selection, the prosecutor, Assistant District
Attorney

Michael

Cooper

(“ADA

Cooper”)

informed

Petitioner’s

defense counsel that Maston had been convicted of seventh degree
criminal possession of a controlled substance and had a pending
second degree robbery charge. JS.11-12. ADA Cooper stated that “no
deals

or

promises

have

been

made

to

Gordon

Maston.”

JS.13.

Notwithstanding his information regarding Petitioner’s involvement,
the ECDAO “indicted him for a C violent felony anyway” and he “got
no deal whatsoever . . . .” JS.14. Petitioner’s defense counsel
asked for confirmation that “there have been no promises made” to
Maston regarding the second degree robbery charge, and ADA Cooper
replied, “That is correct.” Id. When asked to confirm that no other

-30-

matters or charges had been either terminated or discontinued or
not prosecuted based on his cooperation, ADA Cooper replied,
“Exactly. When I became aware of him as a witness he was indicted
anyway for a Class C violent felony and that’s it. No deals, no
nothing. I went and tried to make consideration and the word from
above was no and so he was indicted an no deal was given.” JS.14.
At trial, Maston testified on direct examination about his
pending robbery charge, explaining that his “girlfriend was angry”
because he wanted to take the title of his car out of her name and
put it in somebody else’s name, and “she called the cops and said
that [he] took [his] title at gunpoint.” While that case was
pending, Maston advised the ECDAO that he had witnessed the crime
at 29 Boehm Street. Maston testified that he had received “[n]o
deal” in exchange for being a witness against Petitioner. T.122-23.
On cross-examination, Maston maintained that he was “not expecting
to receive any benefit” from testifying against Petitioner. T.130.
Ultimately,

Maston

received

a

probation-only

sentence

in

connection with the second degree robbery charge pending in Erie
County Court. At sentencing n January 14, 1998, Maston’s attorney’s
noted that Judge DiTullio had “[given] a commitment [of probation],
and

the

reason

for

that

commitment

was

the

extraordinary

cooperation with the district attorney’s office.” Judge DiTullio in
fact imposed a 5-year probationary term, noting that although
Maston had been the instigator in the robbery charge, he had

-31-

provided critical assistance to the ECDAO by “fully cooperat[ing]”
in a “very serious case”–i.e., Petitioner’s prosecution.
When Petitioner raised his Brady claim involving Maston in his
C.P.L. § 440.10 motion, he supported it principally with Maston’s
sentencing transcript, the relevant excerpt of which is quoted
above. Petitioner also argued that the transcript of Maston’s bail
hearing supported the existence of a cooperation agreement with the
ECDAO. Maston, who allegedly was on probation at the time, received
a relatively favorable bail, which Petitioner argued was suggestive
of a cooperation agreement.
In denying the motion, the § 440 court found that “[t]he
record

establishe[d]

that

Maston’s

receiving

a

sentence

of

probation was at least partially the result of his assistance in
the prosecution of the defendant.” First C.P.L. § 440.10 Order at
4.

However,

“the evidence of a quid pro quo arrangement [was]

purely circumstantial[,]” First C.P.L. § 440.10 Order at 4, and, in
any event, “the existence of any such agreement was contradicted by
the prosecutor’s remarks on the record[,]” id. The § 440 court
concluded that notwithstanding the “circumstantial evidence” of a
“quid pro quo arrangement,” Maston had “failed to demonstrate the
existence of an understanding between” Maston and the ECDAO, “that
in exchange for Maston’s cooperation the People would offer a
particular plea or make a sentencing recommendation, that County

-32-

Court would commit to a particular sentence, or that some other
benefit would be conferred.” First C.P.L. § 440.10 Order at 4.
b.

Analysis

In Shabazz v. Artuz, 336 F.3d 154 (2d Cir. 2003), the Second
Circuit held that “[t]he government is free to reward witnesses for
their cooperation with favorable treatment in pending criminal
cases without disclosing to the defendant its intention to do so,
provided that it does not promise anything to the witnesses prior
to their testimony . . . .” Id. at 165 (emphasis in original).
“[T]he fact that a prosecutor afforded favorable treatment to a
government

witness,

standing

alone,

does

not

establish

the

existence of an underlying promise of leniency in exchange for
testimony.” Id. The issue is not whether the witness eventually
received

favorable

treatment

because

he

testified

at

the

defendant’s trial; rather, the “relevant inquiry” is whether the
prosecution “made an undisclosed promise of additional leniency in
exchange for [the witness]’s cooperation.” Id.
Federal courts have held that the existence of a cooperation
agreement between the prosecution and a witness is a factual
determination entitled to a presumption of correctness on habeas
review. See Shabazz, 336 F.3d at 162-63 (habeas petitioner did not
present evidence sufficient to rebut presumption of correctness
afforded state court factual findings in rejecting Brady claim
regarding undisclosed promises of leniency to prosecution witness);

-33-

see also Matthews v. Ishee, 486 F.3d 883, 895-96 (6th Cir. 2007)).
Here, the trial court explicitly found that the existence of a
cooperation agreement was contradicted by the prosecutor’s remarks
on the record, i.e., ADA Cooper’s statement that when he became
aware that Maston was a witness against Petitioner, he “went and
tried to make consideration and the word from above was no and so
[Maston] was indicted [on a class C felony] and no deal was given.”
T.14. Because Petitioner has not offered evidence to demonstrate
clearly and convincingly that the state court’s findings of fact
regarding

are

incorrect,

the

Court

finds

that

he

has

not

demonstrated the suppression of a cooperation agreement between
Maston and the ECDAO. See, e.g., Moore-El v. Luebbers, 446 F.3d
890, 900 (8th Cir. 2006); Wisehart v. Davis, 408 F.3d 321, 323-24
(7th Cir. 2005). This Brady claim accordingly is denied.
D.

Ground Four: Ineffective Assistance of Trial Counsel

To succeed on a claim of ineffective assistance of counsel
under Strickland

v.

Washington,

466

U.S.

668,

686

(1984),

a

petitioner has to show that his lawyer’s conduct “so undermined the
proper functioning of the adversarial process” that the process
“cannot

be

relied

on

as

having

produced

a

just

result.”

Specifically, a petitioner must show that “(1) his counsel’s
performance fell below an objective standard of reasonableness
under prevailing professional norms and (2) he was prejudiced by
counsel’s deficient performance.” Id.

-34-

Petitioner contends that trial counsel was ineffective because
he failed to object to the jury instructions and to object to the
allegedly inconsistent verdicts. On direct appeal, the Appellate
Division summarily

found

that

Petitioner

received

“meaningful

representation”.
The two errors that Petitioner assigns to trial counsel are
fundamentally the same, inasmuch as they focus on the allegedly
inconsistent mental states of the crimes charged. Accordingly, they
lack merit for essentially the same reasons. The Court turns first
to Petitioner’s claim that trial counsel was ineffective in failing
to object to the verdicts of intentional murder and reckless
endangerment on the basis that they were legally inconsistent.
“A verdict is inconsistent or repugnant—the difference is
inconsequential—where the defendant is convicted of an offense
containing

an

essential

element

that

the

jury

has

found

the

defendant did not commit[.]” People v. Trappier, 87 N.Y.2d 55, 58
(1995) (citing N.Y. CRIM. PROC. LAW § 300.30(5) (“Two counts are
‘inconsistent’ when guilt of the offense charged in one necessarily
negates guilt of the offense charged in the other[.]”)). In order
to

determine

whether

the

jury

reached

“an

inherently

self-contradictory verdict,” a reviewing court must examine the
essential elements of each count as charged. Id. (quotation and
citations omitted).

-35-

Petitioner relies upon People v. Gallagher, 69 N.Y.2d 525
(1987), to argue that he cannot be convicted of reckless and
intentional crimes based upon the same act. Gallagher held that a
jury’s finding that a defendant killed his victim with the intent
to cause death is inconsistent with a finding that the same killing
occurred recklessly and thus unintentionally. See id. at 529.
Petitioner

argues

that

because

an

act

can

be

intentional

or

reckless, but not both, he cannot be guilty both of intentional and
reckless conduct in regards to the shooting incident.
Although the criminal act here (the shooting) was the same
for the intentional murder and the reckless endangerment counts,
these counts entailed two distinct results and two different
victims, unlike in Gallagher. To be guilty of first degree reckless
endangerment, Petitioner must have recklessly created a grave risk
of Webb’s death. To be guilty of intentional murder, Petitioner
must have specifically intended to cause Newkirk’s death, and have
acted to effect such death. In Trappier, 87 N.Y.2d 55, supra, the
Court of Appeals held “[a] defendant could certainly intend one
result—serious physical injury—while recklessly creating a grave
risk that a different, more serious result—death—would ensue from
his actions.” Id. at 59. Here, Petitioner could have fired at
Newkirk with the intent to kill him and, simultaneously, could have
consciously disregarded a substantial and unjustifiable risk that,
by so doing, he would create a grave risk of death to Webb, who was

-36-

nearby. Because the jury reasonably could have determined that Sell
acted intentionally as to one result and recklessly as to a
distinct, second result, the verdicts were not inconsistent. See,
e.g., People v. Williams, 240 A.D.2d 441 (2d Dep’t 1997) (repugnant
verdict claim, although unpreserved, was in any event without merit
“as it was possible for the defendant to have had two different
mental states at two different times” and “it was not unreasonable
for the jury to find that the defendant acted recklessly in
shooting one victim and acted intentionally in shooting the other”)
(citation omitted). Therefore, an objection by trial counsel on the
basis of repugnancy would not have succeeded, and Sell accordingly
cannot demonstrate how he was prejudiced by counsel’s decision not
to do so. It necessarily follows that trial counsel cannot be found
ineffective in failing to request that the intentional murder count
and the reckless endangerment count should have been submitted to
the jury in the alternative.
E.

Ground Five:
Testimony

Petitioner

argues

Prosecutorial
that

both

Failure

Morrow

and

to

Correct False

Maston

testified

falsely regarding their cooperation agreements with the USAO and
the ECDAO, respectively, and that the prosecutor failed to correct
the false testimony.
As the Second Circuit has observed it long has been the
established law of the United States that “a conviction obtained
through testimony the prosecutor knows to be false is repugnant to
-37-

the Constitution.” Shih Wei Su v. Filion, 335 F.3d 119, 126
(2d Cir. 2003) (citation omitted).

“[T]he Supreme Court has not

deemed such errors to be ‘structural’ in the sense that they
‘affect[ ] the framework within which the trial proceeds.’” Id.
(quoting United States v. Feliciano, 223 F.3d 102, 111 (2d Cir.
2000); further quotation omitted; brackets in original). Thus, even
when a prosecutor elicits testimony he “knows or should know to be
false, or allows such testimony to go uncorrected, a showing of
prejudice

is

required.”

conviction

must

be

set

likelihood

that

the

Id.

at

aside

false

126-27.

In

such

unless

there

is

testimony

could

have

cases,

no

“the

‘reasonable

affected

the

judgment of the jury.’” Id. at 127 (quoting United States v. Agurs,
427 U.S. 97, 103 (1976); and citing Giglio v. United States, 405
U.S. 150, 154 (1972); other citation omitted).
1.

Morrow’s Allegedly False Testimony

According to Petitioner, ADA Cooper encouraged Morrow to
testify falsely when he asked him the following leading question at
Petitioner’s
hearing):

trial

(which

occurred

before

Morrow’s

sentencing

“And according to federal law you’re locked into a

specific sentence, is that not true?” T.165. Morrow replied, “Yes.”
T.165. ADA Cooper, however, had been copied on the letter from
Morrow’s defense counsel to AUSA Buscaglia discussing the downward
departure motion AUSA Buscaglia had promised to make on Morrow’s
behalf if Morrow provided substantially useful information pursuant

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to the cooperation agreement.

Petitioner asserts that after ADA

Cooper elicited this inaccurate testimony, he improperly allowed it
to stand uncorrected. The Court notes, however, that on crossexamination, Morrow admitted that he had not yet been sentenced.
The § 440 court found that because Petitioner had “failed to
substantiate that the District Attorney had actual or constructive
knowledge of . . . Morrow’s agreement with the federal prosecutor,
the [prosecution] cannot be made responsible for Morrow’s false
testimony or misstatements, if any, regarding that agreement.”
First C.P.L. § 440.10 Motion at 7. As noted above, this factual
determination is entitled to a presumption of correctness which
only may

be

rebutted by

clear

and

convincing

evidence.

This

Petitioner has not done.
Even assuming that Petitioner established that the prosecution
either sponsored or failed to correct false testimony, he must then
show the materiality of the false testimony–that it “could in any
reasonable likelihood have affected the judgment of the jury.”
Giglio, 405 U.S. at 154 (citations omitted).
Impeachment evidence has been held to be “material” “if the
witness whose testimony is attacked ‘supplied the only evidence
linking defendant(s) to the crime,’” United States v. Wong, 78 F.3d
73, 79 (2d Cir. 1996) (quoting United States v. Petrillo, 821 F.2d
85,

90

(2d

Cir.

1987)).

Similarly,

nondisclosed

impeachment

evidence has been found to be “material” “‘where the likely impact

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on the witness’s credibility would have undermined a critical
element of the prosecution’s case[,]’” Id. (quoting United States
v. Payne, 63 F.3d at 1210; citing United States v. Badalamente, 507
F.2d 12, 17-18 (2d Cir. 1974) (nondisclosure of “hysterical”
letters was material because letters would have had “powerful
adverse effect” on witness’s credibility, and credibility was
“crucial

to

the

determination

of

[the

defendant’s]

guilt

or

innocence”), cert. denied, 421 U.S. 911 (1975)).
This is not a case where the conviction depended on the
testimony of a single government witness, or on a witness whose
credibility was not attacked on cross-examination. See Wong, 78
F.3d at 82 (“[N]ew impeachment evidence may satisfy the ‘reasonable
likelihood’ standard where a conviction depends on the testimony of
a single government witness, or on a witness whose credibility was
not

attacked

on

cross-examination.”)

(citations

omitted).

Petitioner characterizes Morrow’s testimony as “extremely damaging”
testimony because Morrow described the argument which preceded the
shooting involving Sell and Webb, and thereby established a motive
for the crime. However, Morrow was not the only individual who
described that altercation. Webb, who was the person whom Sell
almost struck with his car, also testified about the incident.
Williams, who was walking with Webb, fully corroborated Webb’s
story about the car-kicking incident and ensuing altercation with
Sell, in which Sell threatened, “I’ll be right back.” Petitioner

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also notes that Morrow observed Sell firing a gun towards the top
of the house at 29 Boehm. However, by the time Morrow arrived at
the scene, Newkirk was already on the ground; Morrow thus did not
see Petitioner firing at Newkirk. Furthermore, there were a number
of other individuals besides Morrow who identified Petitioner as
the shooter and actually saw him fire at Newkirk. Under these
circumstances, even assuming Morrow gave false testimony, which the
prosecutor failed to correct, it would not have affected the
result. See Wong, 78 F.3d at 82 (“[W]here independent evidence
supports a defendant’s conviction, the subsequent discovery that a
witness’s testimony at trial was perjured will not warrant a new
trial.”) (citing United States v. Reyes, 49 F.3d 63, 68 (2d Cir.
1995) (where government agent subsequently discovered to have
perjured himself, new trial not warranted where “core of the
evidence” came from a different witness)).
3.

Maston’s Allegedly False Testimony

Petitioner contends that Maston testified falsely by denying,
on cross-examination, that he would receive any benefit in exchange
for his testimony. As discussed above, however, this Court has
concluded that Petitioner has not come forward with clear and
convincing evidence to overcome the presumption of correctness
afforded the C.P.L. § 440.10 court’s finding that Maston and the
ECDAO had not entered into a quid pro quo agreement at the time
Maston testified at trial. The Court necessarily also concludes

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that Petitioner is unable to prove that Maston testified falsely
when he denied that he would receive any consideration or benefit
in exchange for his testimony against Petitioner. Therefore, this
claim cannot provide a basis for habeas relief.
F.

Ground Six:

Defective Grand Jury Proceedings

Petitioner asserts that the grand jury process was undermined
by the prosecutor in connection with the testimony of Detective
Andrew Streicher, an evidence technician with the Buffalo Police
Department. This claim does not present a cognizable habeas claim,
as discussed below.
In Lopez v. Reilly, 865 F.2d 30 (2d Cir. 1989), the Second
Circuit relied upon United States v. Mechanik, 475 U.S. 66 (1986),
to conclude that “[i]f federal grand jury rights are not cognizable
on direct appeal where rendered harmless by a petit jury, similar
claims concerning a state grand jury proceeding are a fortiori
foreclosed in a collateral attack brought in a federal court.” 865
F.2d at 32 (citing Mechanik, 475 U.S. at 70). Under the authority
of Lopez, Petitioner’s claim concerning alleged misconduct by the
prosecutor at the grand jury must be dismissed as not cognizable on
federal habeas review. See, e.g., Jones v. Keane, 250 F. Supp.2d
217, 236 (W.D.N.Y. 2002) (dismissing as non-cognizable

habeas

claim that the prosecutor improperly cross-examined a witness at
the grand jury).

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G.

Ground Seven: Illegal Amendment of the Indictment

Petitioner claims that the prosecution unlawfully amended the
indictment to include a theory of accomplice liability. This
contention does not present a cognizable Federal constitutional
question and is, in any event, without merit.
The Fourteenth Amendment’s due process clause, as applied to
the States, requires that “[a] defendant is entitled to fair notice
of the charges against him.” LanFranco v. Murray, 313 F.3d 112, 119
(2d Cir. 2002). A defendant must be given notice of the “core of
criminality to be proven at trial”. United States v. Wozniak, 126
F.3d 105, 110 (2d Cir. 1997) (citation omitted). The theory of
liability is not a material or essential element of the offense
charged upon which the jury will determine guilt, and there is no
distinction under New York law between criminal liability as a
principal or as an accomplice. People v. Rivera, 646 N.E.2d 1098,
1099 (N.Y. 1995); N.Y. PENAL LAW § 20.00. Since there is no legal
distinction

between

liability

as

a

principal

or

criminal

culpability as an accomplice, it cannot be said that Petitioner
failed to receive adequate notice of his potential liability as an
accomplice under the indictment. See, e.g., Chandler v. Moscicki,
253 F. Supp.2d 478, 486-88 (W.D.N.Y. 2003).
IV.

Conclusion
For the reasons stated above, David Sell’s petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the

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petition (Docket #1) is dismissed. The Court declines to grant a
certificate of appealability because it finds that Petitioner has
failed

to

make

a

“substantial

showing

of

the

denial

of

constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

S/Michael A. Telesca

HON. MICHAEL A. TELESCA
United States District Judge
DATED:

June 16, 2014
Rochester, New York

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a