Ali v. Unger

Filing 13

-CLERK TO FOLLOW UP-DECISION AND ORDER denying the application for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/23/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANDREW ALI,
Petitioner,
-vs-

No. 6:13-CV-6210(MAT)
DECISION AND ORDER

DAVID UNGER,
Respondent.

I.

Introduction
Andrew Ali (“Ali” or “Petitioner”) has filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he
is

being

unconstitutionally

Petitioner’s

incarceration

detained
is

the

in

Respondent’s

result

of

a

custody.

judgment

of

conviction entered against him on December 22, 2009, following a
jury trial in Erie County Court of New York State (Franczyk, J.) on
charges

of

Assault

in

the

First

Degree

(N.Y.

Penal

Law

§ 120.10(1)).
II.

Factual Background and Procedural History
A.

Petitioner’s Trial
1.

The Prosecution’s Case

On April 10, 2009, fourteen-year-old Paul Manning (“Manning”)
was at the Sprenger Basketball Court in the City of Buffalo, where
he became involved in a fight with a teenager whom he identified as
Robert Royal (“Royal”). After the fight, Royal left but did not
take his cell phone with him. Manning picked up the phone and left
as well.

While
containing

walking
Royal,

home,

Manning

Petitioner,

and

was

approached

several

other

by

a

truck

individuals.

According to Manning, the truck’s occupants told him and his
companions to stop. They then got out of the truck, armed with
baseball bats. Petitioner demanded to know why Manning had jumped
his nephew and threatened to kill Manning and his companions. At
that point, Royal’s brother got out of the truck and struck Manning
in the face, causing a lump on his eye. Petitioner and his
companions got back in the truck and drove away.
When Manning arrived home, he was asked what happened to his
eye by Ronald Brown (“Brown”), the father of his sister’s baby.
Manning did not reply at first, but he eventually directed Brown to
Petitioner’s residence at 1977 Bailey Avenue. En route to Bailey
Avenue, they were joined by four of Manning’s friends.
Once they arrived at Petitioner’s house, Brown and Manning
went up onto the porch, while the others remained on the sidewalk.
Brown knocked heavily on the front door leading to Petitioner’s
upstairs apartment, waited, and knocked again. According to Brown,
Petitioner came running down the stairs, opened the door, rushed
out at him, produced a knife from behind his back, and tried to
stab Brown in the face. Brown deflected the knife and tried to turn
and run away, but Petitioner stabbed him in the lower left side of
his back. T.291-92. Brown testified that as he was attempting to
run away, Petitioner was grabbing at his left shoulder. Brown ran

-2-

towards the right side of the porch to try to escape by jumping
over the railing. T.293. Petitioner grabbed him again from behind
and kept stabbing at him. T.294.
Brown finally was able to get away by jumping over the
railing. He hit a garbage can face-first as he landed, got up, and
ran down the street to his sister’s family’s house. No one answered
the door, so he staggered past three or four more houses before
finally

collapsing.

Several

passers-by

summoned

emergency

assistance.
Brown first regained consciousness in the hospital after his
surgery to repair the damage from the five stab wounds he sustained
(one on his hand, one on his chest, one on his back, and two on his
upper left arm). T.305-06. The ulnar nerve in his left arm had been
severed completely, and the left median nerve was almost totally
transected. At the time of trial, Brown still had pain, cramping,
and weakness in his hand and arm.
When Officer Mark Constantino (“Officer Constantino”) of the
Buffalo Police Department (“BPD”) responded to the scene,

he

observed Petitioner pacing back and forth on the porch with a knife
in his hand repeating, “[T]hese mother fuckers, these mother
fuckers . . . I stabbed him, I stabbed him.” T.406. Officer
Constantino ordered Petitioner to drop the knife and come down from
the porch. Petitioner complied, and they placed him in custody.
Petitioner told Constantino that he had stabbed Brown, but that it

-3-

was in self-defense because “they” kept trying to jump his stepson,
threw bricks at his house, and tried to kick in his door. T.415.
Detective Mark Vaughn (“Vaughn”) interviewed Petitioner and
took a statement from him at the BPD homicide office. Petitioner
told Vaughn that he had stabbed Brown on his front porch and
explained that it was the result of his stepson being “jumped” by
some boys earlier in the day. According to Petitioner, his stepson
“got the best of one of th[o]se boys” and someone in the group
stated, “[T]his shit ain’t over.” Petitioner related that a few
minutes after he and his stepson arrived home, the boys came to his
house and began throwing rocks at it. Petitioner went downstairs,
grabbed a knife, and got into a fistfight with one of the boys.
According to Petitioner, the boys came up onto the porch and jumped
him, so he started swinging the knife at him. When Petitioner was
able to free himself, he went upstairs and told his wife to call
911. Petitioner also stated that one of the boys had a black gun in
his right hand.
When Detective James Lema (“Lema”) interviewed Petitioner’s
wife, Zeina Ali (“Mrs. Ali”), he observed nothing out of the
ordinary with her demeanor. Lema also did not see any broken
windows in the apartment.
Detectives Reginald Minor (“Minor”) and Phil Torre (“Torre”)
of the BPD responded to the scene, where they found an eight-inch
butcher’s knife in Petitioner’s front yard. Minor testified that

-4-

there was blood on the knife, the porch railing, a nearby car, and
a garbage can. There were no signs of forced entry.

Torre

testified there was a small amount of blood on the porch and a
blood trail that led over the railing to a vehicle parked in the
driveway and continued to the area in the street where Brown was
treated by paramedics. T.460-61. Although Torre observed a couple
of stones and sticks on the front lawn, he did not see any sticks,
stones, or bricks in the street. No other weapons besides the
butcher’s knife were recovered at the scene.
2.

The Defense Case

Casey Shemski (“Shemski”) testified that he saw seven to ten
teenagers standing outside Petitioner’s house, saw “something” in
their hands, and heard the sound of glass crashing. According to
Shemski, he observed a man “breaking into” the door going to the
upper apartment. T.514. He heard a loud commotion “for a few
seconds” coming from the front hallway and then he saw “a guy
running out of [the] house and . . . [Petitioner] chasing after
him. . . .” T.514. Petitioner chased the man down the street about
50 to 100 feet and then “casually walked upstairs.” T.515. Shemski
did not hear Petitioner say, “I stabbed that mother fucker,” but he
did hear Mrs. Ali screaming.
Johnny Kidd (“Kidd”), Petitioner’s downstairs neighbor, heard
a loud commotion on Petitioner’s stairs. Kid saw a group of ten to
fifteen young black males standing outside in front of Petitioner’s

-5-

house. T.524-26. He could not see anything in their hands. T.525.
Kidd did not see the stabbing. Kidd stated that after he heard the
noise in the hallway, about “five or six seconds later” he “looked
out because [Petitioner] was chasing somebody and they were gone.”
T.527.
Mrs. Ali testified that she and Petitioner were in their
kitchen preparing fish and cabbage for dinner when they heard a
loud commotion downstairs. Looking outside, they saw a group of
young men. Petitioner asked them to go away but they refused.
T.530. When she went to the top of the stairs, she saw a young man
standing at the bottom of the stairs with a brick in his hand.
Petitioner started to go downstairs and yelled for Mrs. Ali to call
911. He returned about 30 to 45 seconds later and was “really
emotional.” T.532. He asked her to call 911 again because he had
stabbed one of the men. T.532.
3.

The Justification Charge and Jury Deliberations

At trial counsel’s request, the trial court charged
the jury pursuant to P.L. § 35.20(3), which permits a person in
possession or control of a dwelling “who reasonably believes that
another person is committing or attempting to commit a burglary of
such dwelling . . . [to] use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.” N.Y. PENAL LAW § 35.20(3).

-6-

During deliberations, the jury sent out a note which asked for
“more clarification on part of a structure (dwelling), a threat in
regards to inside your home or outside your home.” T.645. At the
prosecutor’s request, and with no objection from defense counsel,
the trial court instructed the jury that the front porch was not a
part of “a dwelling.” T.649-50, 655.
4.

Verdict and Sentence

The jury returned a verdict finding Petitioner guilty as
charged in

the

indictment

of

first

degree

assault.

Prior to

sentencing, defense counsel made a motion to set aside the verdict
pursuant to New York Criminal Procedure Law (“C.P.L.”) § 330.30,
which the trial court denied. The trial court sentenced Petitioner
to a determinate term of seven years in prison to be followed by
five years of post-release supervision.
B.

Post-Conviction State-Court Proceedings

Represented by new counsel, Petitioner appealed his conviction
to the Appellate Division, Fourth Department, of New York State
Supreme Court. The conviction was unanimously affirmed, and leave
to appeal to the New York Court of Appeals was denied. People v.
Ali, 89 A.D.3d 1412 (4th Dep’t 2011), lv. denied, 18 N.Y.3d 881
(2012).
C.

The Federal Habeas Proceeding

This timely habeas petition followed in which Petitioner
asserts the same grounds for relief that he raised on direct

-7-

appeal. Respondent argues that three of Petitioner’s claims are
procedurally defaulted due to the Appellate Division’s reliance on
an adequate and independent state ground to dismiss them, and that
all of the claims do not warrant habeas relief. Petitioner did not
file a reply brief.
For the reasons that follow, the request for a writ of habeas
corpus is denied, and the petition is dismissed.
III. The Adequate and Independent
Procedural Default
A.

State

Ground

Doctrine

and

General Legal Principles

“Federal courts generally will not consider a federal issue in
a case ‘if the decision of the state court rests on a state law
ground that is independent of the federal question and adequate to
support the

judgment.’”

Garvey

v.

Duncan,

485

F.3d

709, 714

(2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002)
(alteration and emphases omitted in Garvey)). Only a “firmly
established

and

regularly

followed

state

practice”

may

be

interposed by a state to prevent subsequent review by this Court of
a federal constitutional claim. Id. (citing Lee, 534 U.S. at 375).
The adequate and independent state law ground doctrine encompasses
both procedural and substantive rules. Coleman v. Thompson, 501
U.S. 722, 743–44 (1991).
Here, the state law ground on which the Appellate Division
rejected three of Petitioner’s claims was the failure to comply
with New York State’s preservation rule, which requires defense
-8-

counsel to lodge a contemporaneous and specific objection to any
alleged legal error in order to preserve the issue for appellate
review. See N.Y. CRIM. P. LAW § 470.05(2); see also Cotto v. Herbert,
331 F.3d 217, 239 (2d Cir. 2003). Codified at C.P.L. § 470.05(2),
the contemporaneous objection rule “require[s], at the very least,
that any matter which a party wishes the appellate court to decide
have been brought to the attention of the trial court at a time and
in a way that gave the latter the opportunity to remedy the problem
and thereby avert reversible error.” Garcia v. Lewis, 188 F.3d 71,
78 (2d Cir. 1999) (quoting People v. Luperon, 85 N.Y.2d 71, 78
(1995)). Because a general objection would not alert the trial
court to the defendant’s position, New York’s appellate courts
“uniformly instruct that to preserve a particular issue for appeal,
defendant must specifically focus on the alleged error.” Garvey,
485 F.3d at 714–15 (citing New York cases).
The adequacy of a state procedural bar is itself a federal
question, Lee, 534 U.S. at 375, and thus the habeas court “must
ascertain

whether

the

state

rule

at

issue

.

.

.

is

firmly

established and regularly followed, and further whether application
of that rule in th[e] [particular] case would be exorbitant.”
Garvey, 485 F.3d at 714. This requires the habeas court to examine
the procedural bar in question and the state case law construing
it. Id. (citing Cotto, 331 F.3d at 243).

-9-

B.

Application to Petitioner’s Claims
1.

The Erroneous Supplemental Jury Instruction Claim
Is Procedurally Defaulted.

Ali contends, as he did on direct appeal, that the trial
court’s supplemental instruction concerning whether a vestibule and
outdoor porch constituted parts of the dwelling was erroneous and
confused the jury. The prosecution argued that the claim was
unpreserved

due

to

the

lack

of

a

timely

objection,

and

the

Appellate Division agreed, noting that defense counsel “in fact
requested

a

portion

of

the

supplemental

instruction,

thereby

waiving any objection thereto, and he failed to object to the
remainder of the instruction, thereby failing to preserve his
contention

.

instruction[.]”

.

.

with

People

v.

respect
Ali,

89

to

the

A.D.3d

remainder
at

1413

of

the

(internal

citations omitted).
The Appellate Division’s reliance on the preservation rule to
dismiss the jury instruction claim certainly is independent of the
judgment. Indeed, the Appellate Division declined to exercise its
interests-of-justice jurisdiction to review the merits of the
unpreserved claim. Moreover, the application of the contemporaneous
objection rule is adequate—i.e., firmly established and regularly
followed in circumstances similar to the case at bar. See, e.g.,
People v. Swail, 19 A.D.3d 1013, 1013 (4th Dep’t 2005) (“Defendant
did not object to the supplemental charge given by County Court in
response to a question from the jury, and thus he has failed to
-10-

preserve his contention with respect to that charge . . .[.]”)
(citations omitted); People v. Rodriguez, 187 A.D.2d 465, 465
(2d Dept. 1992) (“The defendant’s contention that the trial court’s
charge was erroneous is unpreserved for appellate review, as the
defendant . . . failed to object to the trial court’s additional
instruction

after

receiving

a

question

from

the

jury

during

deliberations[.]”) (citations omitted). As these cases indicate,
appellate courts in New York routinely and consistently apply this
rule in cases where the defendant challenges a supplemental jury
instruction,

and

Ali

has

not

established

that

the

Appellate

Division’s application of the rule in his case departed from its
regular application in similar cases. The transcript makes clear
that the trial court offered Ali’s defense counsel the opportunity
to object to its delivery of the supplemental jury instruction, but
he declined to do so. Indeed, defense counsel acquiesced in one
portion of the jury instruction and failed to object to the
remainder of the charge.
Because the Appellate Division’s denial of the supplemental
jury instruction claim rested on a state ground that was both
independent of the federal question and adequate to support the
judgment, the claim is subject to a procedural default.
2.

The Insufficiency Of
Procedurally Defaulted.

The

Evidence

Claim

Is

At trial, defense counsel made a general motion for a trial
order of dismissal at the close of the prosecution’s case, and he
-11-

made a renewed, general motion for a trial order of dismissal after
the defense rested. Both motions were denied. On appeal, Ali’s
appellate counsel argued specifically that the prosecution failed
disprove, beyond a reasonable doubt, his defense of justification.
The Appellate Division held that Ali had “failed to preserve for
[its] review his contention that the conviction is not based on
legally sufficient evidence[.]” People v. Ali, 89 A.D.3d at 1413
(citing People v. Hawkins, 11 N.Y.3d 484, 492 (2008) (“To preserve
for this Court's review a challenge to the legal sufficiency of a
conviction, a defendant must move for a trial order of dismissal,
and the argument must be ‘specifically directed’ at the error being
urged.

As

we

have

repeatedly

made

clear—and

underscore

again—general motions simply do not create questions of law for
this Court’s review[.]”) (internal and other citations omitted);
People v. Gray, 86 N.Y.2d 10, 19 (1995)). The Appellate Division
held that, in any event, the contention lacked merit. Ali, 89
A.D.3d at 1412-13 (citations omitted).
The fact that the Appellate Division ruled in the alternative
on the merits of the claim does not obviate a finding that the
failure to comply with the preservation rule was an independent
basis for the judgment. See Garcia v. Lewis, 188 F.3d 71, 77
(2d Cir. 1999) (“There is no question that the Appellate Division's
explicit

invocation

of

the

procedural

bar

constitutes

an

‘independent’ state ground, even though the court spoke to the

-12-

merits of [the] claim in an alternative holding.”) (citing Harris
v. Reed, 489 U.S. 255, 263, 264 n. 10 (1989)). The Court thus turns
to the issue of whether the state ground was “adequate”.
In the context of legal insufficiency claims, the New York
Court of Appeals has interpreted the contemporaneous objection rule
to require a motion for a trial order of dismissal to “specif[y]
the alleged infirmity” so as to “help[ ] to assure that legally
insufficient

charges

will

not

be

submitted

for

the

jury’s

consideration. . . .” Hawkins, 11 N.Y.3d at 492. Here, defense
counsel simply argued that the prosecution has “not presented a
prima facie case.” T.562. This objection, which did not identify
any particular

element

of

first

degree

assault on

which

the

prosecution’s proof was allegedly insufficient, was far too general
to constitute substantial compliance with New York’s preservation
rule. See Hawkins, 11 N.Y.3d at 493 (defense counsel’s objection
that “the People failed to prove that Mr. Hawkins acted with
Depraved Indifference Murder” “did little more than argue that the
People

failed

to

prove

the

essential

elements

of

depraved

indifference murder” and “could have been directed at either the
reckless mens rea element, or the objective circumstances evincing
a wanton, depraved indifference to human life, and did not alert
the trial court to the argument . . . being advanced [on appeal]:
that defendant acted intentionally, not recklessly in killing the
victim”). Under the circumstances, the Court finds that Appellate

-13-

Division’s application of the contemporaneous objection rule is
firmly established and regularly followed in cases that, in all
essential respects, are the same as Ali’s. Hence, the state ground
is “adequate” for purposes of the independent and adequate state
ground doctrine.
3.

The Batson Claim Is Procedurally Defaulted.

Ali presses the same Batson claim that he raised on direct
appeal–that

the

prosecutor’s

reason

for

striking

an

African-

American juror was merely a pretext for racial discrimination. The
Appellate Division held that Ali “failed to preserve for [its]
review his contention that the prosecutor’s reason for striking a
particular juror was pretextual, having failed to raise before the
trial court the specific claim he now raises on appeal[.]” Ali, 89
A.D.3d at 1413 (citations omitted).

Although the Appellate

Division analyzed the merits of the Batson claim in connection with
its

holding

ineffective

regarding
in

failing

Ali’s
to

claim
preserve

that
the

trial

counsel

was

Batson

claim,

the

contemporaneous objection rule here nevertheless was “independent”
of the judgment dismissing the underlying Batson claim. See Garcia
v. Lewis, 188 F.3d at 77.
Furthermore, the application of the contemporaneous objection
rule is “adequate”, i.e., firmly established and regularly followed
in cases similar to Ali’s. It is well-established under New York
law that a party “is not allowed to either interpose a vague Batson

-14-

objection or forego making a particularized objection to a juror
only to later pursue a reformulated, belatedly-specific claim on
appeal[.]” People v. Jones, 284 A.D.2d 46, 48 (1st Dept. 2001)
(collecting cases). Based upon the Court’s review, the case law
interpreting New York’s preservation rule with regard to Batson
challenges “displays consistent application in a context similar
to” Ali’s case, and therefore the Court concludes that the rule “is
firmly established, regularly followed, and hence adequate for
purposes of the independent and adequate state ground doctrine.”
Richardson v. Greene, 497 F.3d 212, 220 (2d Cir. 2007) (holding
that firmly established and regularly followed New procedural
preservation rule barred federal habeas review of petitioner’s
federal

Batson

claim

that

prosecutor’s

proffered

reason

for

striking African American juror was not race neutral; petitioner
failed to preserve issue for appeal by failing to raise specific
issue before trial court and court did not expressly decide the
issue) (citing Garvey, 485 F.3d at 715).
4.

There Is
Defaults.

No

Basis

To

Excuse

The

Procedural

“[A] procedural default will be excused upon a showing of
cause and prejudice.” McCleskey v. Zant, 499 U.S. 467, 493 (1991)
(citation omitted); see also Murray v. Carrier, 477 U.S. 478, 485
(1986).

In

addition,

where

there

has

been

a

“fundamental

miscarriage of justice,” i.e., “where a constitutional violation

-15-

has probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default.” Murray,
477 U.S. at 496. Petitioner has not attempted to establish either
cause for his procedural defaults or that he would be prejudiced
should his claims not be reviewed by this Court. Likewise, he has
not attempted to show that a fundamental miscarriage of justice
would occur if this Court does not review his defaulted claims.
Petitioner therefore has not borne his burden of overcoming the
procedural bars. See McCleskey v. Zant, 499 U.S. 467, 494 (1991)
(citations omitted). The Batson, legal insufficiency, and jury
instruction claims are dismissed on the basis that they are subject
to unexcused procedural defaults.
IV.

Merits of the Petition
A.

General Legal Principles

The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to Ali’s petition, filed in 2013. Where the
relevant federal claim has been “adjudicated on the merits in State
court proceedings,” 28 U.S.C. § 2254(d), the habeas court has no
authority to issue the writ unless the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court

-16-

proceeding.” Parker v. Matthews, ___ U.S. ___, 132 S. Ct. 2148,
2151

(2012)

(quoting

28

U.S.C.

§

2254(d)).

A

state

court’s

determination that a claim lacks merit precludes federal habeas
relief so long as “fairminded jurists could disagree” on the
correctness of the state court’s decision. Yarborough v. Alvarado,
541 U.S. 652, 664 (2004).
B.

The Ineffective Assistance of Counsel Claim Does Not
Warrant Habeas Relief.
1.

Overview

Petitioner identifies the following errors by trial counsel:
(1) ineffective

cross-examination

of

Officer

Constantino;

(2)

failure to make a specific motion for a trial order of dismissal;
(3) failure

to

object

to

some

of

the

prosecutor’s

summation

comments; and (4) failure to make an adequate Batson objection. The
Appellate Division specifically addressed the fourth error alleged
by Ali regarding the Batson claim, holding that he “was not denied
effective assistance of counsel based on his attorney’s failure to
preserve th[e] Batson challenge for . . . review inasmuch as the
prosecutor offered a legitimate race neutral reason for striking
the prospective juror in question, and thus defendant’s challenge
would not have been successful[.]” People v. Ali, 89 A.D.3d at 1414
(citations omitted). With regard to Ali’s “further allegations of
ineffective

assistance,”

the

Appellate

Division

held

that

“[v]iewing the evidence, the law and the circumstances of this
case, in totality and as of the time of the representation,” Ali
-17-

“received

meaningful representation[.]”

Id.

(citing

People

v.

Baldi, 54 N.Y.2d 137, 147 (1980)).
Because Baldi is not “contrary to” Strickland v. Washington,
466 U.S. 668 (1984), the “clearly established federal law” for
evaluating ineffective assistance claims, Petitioner may obtain
relief

only

if

he

can

show

that

the

Appellate

Division

“unreasonably applied” Strickland. Rosario v. Ercole, 601 F.3d 118,
126 (2d Cir. 2010). Establishing ineffective representation under
Strickland means that the petitioner “must prove both incompetence
and prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)
(citing Strickland, 466 U.S. at 688). As discussed further below,
Petitioner cannot satisfy both prongs of Strickland on de novo
review of the merits, see Rosario, 601 F.3d at 126

(citing Henry

v. Poole, 409 F.3d 48, 67 (2d Cir. 2005), and necessarily cannot
satisfy AEDPA’s more demanding standard.
2.

Counsel’s Alleged Errors
a.

Ineffective Cross-Examination

Petitioner contends that trial counsel’s cross-examination of
Officer Constantino “doomed” his justification defense because he
elicited information that the officer did not see any evidence of
a burglary at Petitioner’s home. According to appellate counsel,
this testimony was “highly damaging” and deprived Petitioner of his
justification defense pursuant to P.L. § 35.20(3).

-18-

As an initial matter, it is well-settled that “the conduct of
examination and cross-examination is entrusted to the judgment of
the lawyer, and an appellate court on a cold record should not
second-guess

such

decisions

unless

there

is

no

strategic

or

tactical justification for the course taken.” United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curiam). Petitioner
seizes on one isolated portion of the cross-examination but ignores
the fact that counsel elicited admissions that Officer Constantino
did not witness the confrontation between Petitioner and Brown; did
not know how many people were with Brown; failed to tell Detective
Torre

that

Petitioner

had

mentioned

a

burglary

or

attempted

burglary; and failed to collect himself, or have Detective Torre
collect, swabs from the exterior door, entry walkway, or interior
door handle to submit for DNA testing. See T.433-34. Then, during
summation,

trial

Constantino’s

counsel

pointed

investigation,

out

the

characterized

flaws
his

in

Officer

demeanor

as

“defiant”, “defensive”, and argued that his testimony was unworthy
of belief. See T.568-69. Trial counsel thus suggested to the jury
that there was evidence to further substantiate Petitioner’s selfdefense claim, but due to Officer Constantino’s ineptitude, it was
not available for the jury to hear. Reviewing the whole

of

counsel’s cross-examination of Officer Constantino, the Court finds
that it was conducted in a competent manner.

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b.

Failure to Make a Specific Motion for a Trial
Order of Dismissal

Ali contends that trial counsel was ineffective because he
made only a general motion for a trial order of dismissal and
therefore failed to properly preserve the legal insufficiency issue
for appellate review. However, because the Appellate Division
examined

the

merits

of

Ali’s

legal

insufficiency

claim

notwithstanding the lack of preservation, Ali cannot demonstrate
that he was prejudiced by counsel’s omission. See, e.g., Waters v.
McGuiness, No. 99–CV–0615, 2003 WL 21508318, at *3 (E.D.N.Y. June
16,

2003)

(where

Appellate

Division

reached

the

merits

of

unpreserved legal insufficiency claim on direct appeal and held
that the verdict was legally sufficient and not against the weight
of the evidence, petitioner was not prejudiced even if counsel was
ineffective for failing to preserve the claim), aff’d, 99 F. App’x
318 (2d Cir. 2004); accord Swail v. Hunt, 742 F. Supp.2d 352, 360
(W.D.N.Y. 2010).
c.

Failure to Object to Prosecutorial Misconduct

Petitioner contends that trial counsel was ineffective because
he failed to object to certain of the prosecutor’s comments during
summation, and consequently failed to preserve the prosecutorial
misconduct

issue

for

appellate

review.

As

with

the

legal

insufficiency claim, the Appellate Division examined the merits of
Petitioner’s

prosecutorial

misconduct

claim

on

direct

appeal,

despite the lack of timely objections by defense counsel to most of
-20-

the comments. Thus, Petitioner cannot demonstrate that he was
prejudiced by counsel’s omissions. See Walker v. Bennett, 262 F.
Supp.2d 25, 40 (W.D.N.Y. 2003) (finding that petitioner was unable
to establish prejudice based on counsel’s failure to object to
prosecutor’s remarks; even if counsel had objected, petitioner’s
challenge “would have proven fruitless on appeal” since appellate
court

reviewed

prosecutorial

misconduct

claim

and

found

that

summation constituted fair response to defense remarks) (citing
Flores v. Keane, 211 F. Supp.2d 426, 435 (S.D.N.Y. 2001) (counsel
failed to preserve objection to prosecutor’s comments; petitioner
unable to establish prejudice to excuse procedural default where
state court held that if it were to consider claim, it would find
it unmeritorious)).
d.
Lastly,

Failure to Preserve Batson Claim

Petitioner

faults

trial

counsel

for

failing

to

properly preserve his Batson claim, made in regards to Juror Hakim,
a male African-American. The prosecutor gave, as her reason for
striking Juror Hakim, the fact that he had been a victim of a
mugging when he was fifteen-years-old. The prosecutor noted that
Petitioner’s stepson was around the same age when his cell phone
was taken after the fight at the basketball court with Manning, and
that this incident is what led to Petitioner becoming enraged and
stabbing Brown. The prosecutor opined that Juror Hakim might be
sympathetic to Petitioner because he was around the same age as

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Petitioner’s stepson when he was mugged. The trial court accepted
this as a race-neutral reason and asked if trial counsel had any
further argument. Trial counsel replied,

“I don’t see the nexus,

and although I don’t have it in my notes, I am assuming Your Honor
asked him if that [the past mugging] would have any effect on him.”
T.160. The trial judge noted that he believed he did ask the juror,
and that his answer was no. Id. The trial judge continued,
[A]s I parse it through in my mind, I do find that [the
prosecutor] has offered a sufficient explanation to
explain why she said she might be uncomfortable with this
particular juror independent of his race; that being he
. . . was a victim of a mugging when he was young. And I
do believe, from what I have heard, that the genesis of
this altercation had something to do with your client’s
son or stepson being mugged by the victim or relatives of
the victim. So I find that there’s a sufficient basis to
uphold this challenge on a peremptory basis.
T.160. Trial counsel did not take exception or offer any further
argument. T.161.
On direct appeal, Petitioner argued that the prosecutor’s
reason was pretextual because there were non-minority prospective
jurors who had been crime victims but had not been struck by the
prosecutor on that basis. See Petitioner’s Appellate Brief (“Pet’r
App.

Br.”)

at

21-22,

Resp’t

Ex.

A.

As

discussed

above,

the

Appellate Division held that this claim was unpreserved because
Petitioner had failed to raise that specific claim before the trial
court. People v. Ali, 89 A.D.3d at 1414 (citations omitted).
The Appellate Division then held that Petitioner was “was not
denied effective assistance of counsel based on his attorney’s
-22-

failure to preserve that Batson challenge . . . inasmuch as the
prosecutor offered a legitimate race neutral reason for striking
the prospective juror in question, and thus defendant’s challenge
would not have been successful[.]” Id. (citations omitted). The
Appellate Division thus did not address whether trial counsel was
ineffective in failing to argue that the prosecutor’s proffered
reason, although facially race-neutral, nevertheless was a pretext
for discrimination because the prosecutor did not strike similarlysituated, non-minority jurors on the same basis.
As courts in this Circuit have recognized, “a reason found to
be race-neutral in one case can be a pretext for discrimination in
another.” Jordan v. LeFevre, 22 F. Supp.2d 259, 274 (S.D.N.Y. 1998)
(citing cases), rev’d on other grounds, 206 F.3d 2000); see also
Owens v. Portuondo, No. 98 CIV. 6559(AJP), 1999 WL 378343, at *10
n.6 (S.D.N.Y. June 9, 1999). While the “uneven application of a
facially race neutral explanation does not, by itself, necessarily
establish the invalidity of the explanation.” Owens, 1999 WL
378343, at *11 (citing, inter alia, Matthews v. Evatt, 105 F.3d
907, 918 (4th Cir.), cert. denied, 118 S.Ct. 102 (1997)), “[t]he
force of a prosecutor’s explanation for challenging a minority
member of a venire is obviously weakened substantially by evidence
that non-minority members to whom the same explanation applies were
not challenged.”

United

States

v.

(2d Cir. 1991).

-23-

Alvarado,

951 F.2d

22,

25

Petitioner, on appeal, pointed out a number of jurors who
personally had been victims of crimes or whose family members had
been crime victims, but who were seated on the jury. See Pet’r App.
Br. at 22. In particular, Petitioner noted that Diane Bauer was a
victim of embezzlement; Martin McGuire had his car broken into;
Lyndsey D’Arcangeo’s great-aunt was assaulted and robbed; Frank
Capodagli’s wife was robbed; Diane Bassanello’s house was robbed
when she was a teenager; and Jennifer Davis’ home was burglarized
and her brother killed in a drive-by shooting. Id. (citations to
record omitted). However, as the prosecution argued on appeal,
apart from being crime victims, these jurors were different from
Juror Hakim with regard to the underlying circumstances of their
crimes. In other words, the prosecutor had a reasonable basis in
the record for treating Juror Hakim as not similarly situated to
the jurors identified by appellate counsel on appeal. The Court
notes that at trial, the prosecutor specifically referenced the
factors that made Juror Hakim’s situation similar to Petitioner’s.
The Court finds that even if trial counsel had argued the basis for
finding pretext that appellate counsel urged on appeal, the trial
judge still would have denied the Batson motion regarding Juror
Hakim. Thus, Petitioner cannot show that he was prejudiced by trial
counsel’s omission.

-24-

C.

The Prosecutorial
Habeas Relief.

Misconduct

Claim

Does

Not

Warrant

Petitioner argues, as he did on direct appeal, that he was
denied a fair trial based on prosecutorial misconduct during the
prosecutor’s summation. The Appellate Division held that “[t]he
majority of the comments in question were within the broad bounds
of rhetorical comment permissible during summations” and “were
either a fair response to defense counsel’s summation or fair
comment on the evidence. . . .” People v. Ali, 89 A.D.3d at 1414
(quotation omitted; alteration and ellipses in original). The
Appellate Division further found that “[e]ven assuming, arguendo,
that some of the prosecutor’s comments were beyond those bounds, .
. . they were not so egregious as to deprive defendant of a fair
trial[.]” Id. (quotation omitted). The Appellate Division’s meritsadjudication

of

the

prosecutorial

misconduct

claim

receives

deferential review under the AEDPA standard. Parker v. Matthews,
132 S. Ct. at 2153 (citation omitted). The “clearly established
Federal law” relevant here is the Supreme Court’s decision in
Darden v. Wainwright, 477 U.S. 168 (1986), in which it explained
that “a prosecutor’s improper comments will be held to violate the
Constitution only if they ‘“so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”’”
Parker, 132 S. Ct. at 2153 (quoting Darden, 477 U.S. at 181)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Habeas review of alleged improper prosecutorial comments thus is
-25-

“the narrow one of due process, and not the broad exercise of
supervisory power.” Donnelly, 416 U.S. at 642.
Petitioner

first

contends

that the

prosecutor

improperly

instructed the jury on the law of justification. See T.591-92. When
counsel objected, the judge noted that he had explained to the jury
that he would allow counsel “some latitude to incorporate the law
as they understand it in their closing argument” but reminded the
jury that his instructions on the law controlled, and that if the
jury found “any discrepancy between counsel’s assessment of the
law” and his instructions, the jury “will disregard counsel’s
recitation. . . .” T.592. When trial counsel later objected again
on the same basis, the trial judge re-admonished the jury to rely
on the law as instructed by the trial court if either attorney
misstated the law. In light of the trial court’s sustaining of the
objection and curative measures, any misstatement by the prosecutor
did not undermine Petitioner’s right to a fair trial. See Harmon v.
Busby, EDCV 11-2025-DDP RNB, 2012 WL 5870797, at *27 (C.D. Cal.
Aug. 22, 2012).
Petitioner also asserts that the prosecutor improperly argued
that Mrs. Ali’s criminal history and prior bad acts undermined her
credibility. T.605. Petitioner has cited no authority for this
proposition and, in any event, the trial court sustained defense
counsel’s objection to the one comment about Mrs. Ali that was
factually

inaccurate.

Thus,

the

-26-

Court

finds

that

the

mischaracterization, as to which counsel’s objection was sustained,
did not prejudice Petitioner’s right to a fair trial.
Next, Petitioner urges, the prosecutor erred in arguing that
Petitioner and his wife had fabricated a story to support the selfdefense theory after the fact. Contrary to Petitioner’s contention,
the prosecutor was not commenting on matters not in evidence but
was suggesting that the jury draw inferences based on facts in
evidence, namely, that there were certain details which did not
appear in Petitioner’s first statements to the police and which
were not mentioned until after Petitioner and his wife had talked
on the phone about 75 times while he was in jail. See United States
v. Smith, 982 F.2d 681, 683 (1st Cir. 1993) (holding that the
prosecutor’s statement that a witness and defendant had “concocted”
their story was not improper because it suggested inferences that
the jury could draw from the conflicting evidence).
Finally,

Petitioner

argues,

the

prosecutor

impermissibly

shifted the burden of proof when she stated,
The only other thing I remember is that he [defense
counsel] was going to fight back with his own cold hard
evidence. Well, where did that come from? And where did
the cold hard evidence go? Because I didn’t see any cold
hard evidence come from the defense.
T.601. Trial counsel did say he was going to “fight back” during
his opening statement, but the prosecutor subtly mischaracterized
his reference to “hard facts”; trial counsel described what he
believed the “hard facts” would show, T.261, and did not say that

-27-

he was going to “fight back with cold, hard facts.” “It is
fundamental that the fifth amendment prohibits the prosecution from
commenting upon a defendant’s decision not to testify.” Griffin v.
California, 380 U.S. 609, 615 (1965). “A prosecutor may, consistent
with due process, ask a jury to convict based on the defendant’s
failure

to

present

evidence

supporting

the

defense

theory.”

Menendez v. Terhune, 422 F.3d 1012, 1034 (9th Cir. 2005); see also
United States v. Yuzary, 55 F.3d 47, 53 (2d Cir. 1995) (“‘The
prosecutor [wa]s entitled to comment on [Yuzary’s] failure . . . to
support his own factual theories with witnesses.’”) (quotations and
citations omitted; ellipsis and alterations in original)). Read in
context, the prosecutor’s remark was more of a comment on the
failure of defense counsel, as opposed to a failure by Petitioner
himself,

to

counter

or

explain

the

evidence

presented.

See

United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991) (citation
omitted). While the better practice would have been to avoid any
implication that the defense has a duty to present evidence, the
prosecutor’s remark did not render the trial fundamentally unfair.
The trial judge instructed the jury that counsels’ arguments were
not evidence;

that

Petitioner

was

not

required

to

prove

his

innocence; and that no inference could be drawn from his failure to
testify.

-28-

VI.

Conclusion
The application for a writ of habeas corpus is denied, and the

petition

is

dismissed.

Because

Petitioner

has

not

“made

a

substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

January 23, 2014
Rochester, New York

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