Peters v. Graham
DECISION AND ORDER denying 13 Amended Petition for Writ of Habeas Corpus. Signed by Hon. Michael A. Telesca on 06/28/2017. (CDH) -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HAROLD D. GRAHAM, Superintendent of
Auburn Correctional Facility,
DECISION AND ORDER
Petitioner Lucious Peters ("Petitioner"), an inmate confined
at the Auburn Correctional Facility in Auburn, New York, has
petitioned this Court for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
On December 8, 2006, Petitioner was convicted in
Monroe County Court of murder in the second degree pursuant to N.Y.
Penal Law § 125.25(3) and on January 10, 2007, he was sentenced to
an indeterminate term of incarceration of 25 years to life.
Petitioner seeks a writ of habeas corpus on the ground that his
trial counsel provided ineffective legal assistance.
reasons set forth below, habeas relief is denied and the amended
petition (Docket No. 13) is dismissed.
II. Factual Background
On March 9, 2006, Herschel Scriven (“Scriven”) was backing out
of a friend’s driveway when three men approached the car, intending
to commit an armed robbery. Scriven continued backing out, and the
would-be robbers fired multiple shots into the vehicle.
was struck in the head and killed by a single shotgun slog.
On April 3, 2006, in the course of investigating Scriven’s
murder, Investigators Randall Benjamin and Neil O’Brien located
petitioner at Monroe Community College (“MCC”) and told him they
wanted him to come to the Public Safety Building (“PSB”) to discuss
a prior arrest related to a stolen car.
Petitioner agreed to
accompany the investigators to the PSB and, at approximately 8:12
a.m., he was placed in an interview room and provided with Miranda
Petitioner indicated that he understood his rights and
agreed to speak to the investigators. The interview lasted several
hours and culminated in petitioner signing a written statement.
According to petitioner’s written statement, on March 9, 2006,
individual whose name petitioner did not know but referred to as
Petitioner and the others had pulled over and were
throwing bottles out of the car when someone started talking about
getting “jukes,” which meant robbery.
Petitioner claimed that he
has “just laughed” when “jukes” were mentioned. Brandon, Tank, and
petitioner then exited the car, while Rouse remained behind the
Tank was carrying a shotgun, Brandon was carrying a silver
handgun, and petitioner was carrying a plastic silver pellet gun.
Petitioner was walking behind Brandon and Tank when he saw a car
running in a driveway.
Brandon and Tank approached the car, but
according to petitioner, he had changed his mind and so he “backed
Brandon spoke to the driver of the car, who continued to
Brandon and Tank then shot at the vehicle, which crashed
into a tree. Brandon, Tank, and petitioner ran back to Jacob’s car
and jumped in, and Jacob drove away.
indictment against petitioner and two co-defendants, Antwon Owens
and Jacob Rouse.
The indictment alleged that Owens had committed
murder in the first degree by intentionally shooting and killing
Scriven in the course of and in furtherance of a robbery or
The indictment further alleged that petitioner
and Rouse had committed felony murder (murder in the second degree)
by participating in a robbery or attempted robbery during the
course of which a participant caused Scriven’s death.
A jury trial was held from December 4, 2006, through December
8, 2006, before the Hon. Frank P. Geraci, Jr. At trial, petitioner
elected to testify in his own defense. Petitioner was found guilty
on one county of murder in the second degree.
On January 10, 2007,
he was sentenced to 25 years to life imprisonment.
Petitioner timely appealed to the Appellate Division, Fourth
Department (the “Fourth Department”). On direct appeal, petitioner
argued that: (1) the evidence at trial was insufficient; (2)
suppressed; (3) the trial court erred in ruling that petitioner
adjudication and a prior adjournment in contemplation of dismissal;
(4) petitioner was denied the effective assistance of counsel; and
(5) the sentence was unduly harsh and severe.
On December 23,
2011, the Fourth Department issued a decision unanimously affirming
the judgment and specifically finding that petitioner’s claim of
ineffective assistance of counsel lacked merit.
See People v.
Peters, 90 A.D.3d 1507 (4th Dep’t 2011).
Petitioner subsequently filed a pro se motion to vacate the
judgment pursuant to C.P.L. § 440.10 in Monroe County Court,
asserting that he was denied the effective assistance of counsel
because: (1) trial counsel failed to offer “impactful” advice
regarding plea offers; (2) trial counsel failed to “investigate
into latent errors of District Attorney’s Affirmation”; (3) trial
counsel failed to investigate relevant witnesses; (4) trial counsel
failed to investigate or prepare a pre-sentence memorandum; (5)
trial counsel failed to fully cross-examine the People’s witnesses;
(6) trial counsel failed to prepare petitioner for his trial
discourage petitioner from testifying.
The C.P.L. § 440.10 motion
was denied without a hearing by Judge Vincent M. Dinolfo in a
Department denied Petitioner’s request for leave to appeal on
October 30, 2013.
28 U.S.C. § 2254 “authorizes a federal court to grant a writ
only where a state holds a petitioner in its custody in violation
of ‘the Constitution or laws or treaties of the United States.’”
Word v. Lord, 648 F.3d 129, 131 (2d Cir.2011) (quoting 28 U.S.C. §
2254(a)). Because the instant petition post-dates the enactment of
(“AEDPA”), which amended 28 U.S.C. § 2254, petitioner can obtain a
writ of habeas corpus only if he can demonstrate that the state
courts’ adjudication on the merits of his ineffective assistance
claim “(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d); see also, e.g.,
Harrington v. Richter, 562 U.S. 86, 98 (2011) (“By its terms
§ 2254(d) bars relitigation of any claim ‘adjudicated on the
§§ 2254(d)(1) and (2).”).
The United States Supreme Court has determined that Strickland
established law” for purposes of reviewing ineffective assistance
claims under AEDPA. Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir.
2010) (citing Williams v. Taylor, 529 U.S. 362, 390-91 (2000)). The
Strickland test comprises two necessary components: a deficient
performance, and resulting prejudice. Strickland, 466 U.S. at 687.
See Harrington, 562 U.S. at 101 (“The pivotal question is whether
the state court’s application of the Strickland standard was
counsel’s performance fell below
Strickland’s standard.”). In
Harrington, the Supreme Court emphasized the extremely high bar set
by Strickland in conjunction with § 2254(d):
The standards created by Strickland and § 2254(d) are
both “highly deferential,” and when the two apply in
tandem, review is “doubly” so[.] The Strickland standard
is a general one, so the range of reasonable applications
is substantial. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
Harrington, 562 U.S. at 105 (internal quotations and citations
omitted; emphasis supplied).
Here, petitioner has made the following arguments in support
of his ineffective assistance of counsel claim: (1) counsel failed
to investigate the People’s assertion that petitioner’s brother,
Silas Peters, told police petitioner had admitted to him that he
participated in Scriven’s murder; (2) counsel failed to properly
advise petitioner regarding two plea offers; (3) counsel failed to
properly advise petitioner regarding his trial testimony; (4)
counsel failed to effectively cross-examine Shannon McCaffrey; (5)
counsel failed to call Billie Jo Pullen as a defense witness; (6)
counsel failed to “contest the People’s case”; (7) counsel failed
to object to admission of photographs of the decedent; (8) counsel
failed to file a pre-sentence memorandum; and (9) counsel failed to
challenge Investigator Benjamin’s credibility. See Docket 13 at 35.
The Court considers each of these arguments below.
Statement of Silas Peters
investigate the People’s assertion that his brother, Silas Peters,
had informed the police that petitioner confessed involvement in
attempted robbery/murder to him.
Specifically, in an affirmation
submitted in response to an omnibus motion filed by petitioner’s
trial counsel, then-District Attorney Michael C. Green stated that
there was probable cause to arrest petitioner on April 3, 2006,
because police were aware he had confessed to his brother.
Docket No. 13 at 96.
In an affidavit dated March 12, 2013, Silas
involvement in the crime.
Id. at 66.
Petitioner has submitted no evidence that trial counsel failed
to investigate the veracity of the police’s claims.
affidavit does not address at all whether trial counsel spoke to
him, not has petitioner provided any other facts from which the
Petitioner’s argument therefore fails the first prong of the
See Burton v. Phillips, 303 F. App’x 954, 956 (2d
Cir. 2008) (claim failed the first prong of Strickland where party
“adduced no evidence to support his claim that trial counsel failed
to conduct a reasonable investigation”).
It is entirely possible
that trial counsel spoke with Silas Peters and concluded either
that he was not credible or that there were other, strategic
reasons not to challenge the People’s assertion, and plaintiff has
provided no evidence to the contrary.
Significantly, the record
indicates that plaintiff initially voluntarily spoke with police
and that other witnesses beside Silas Peters had incriminated him.
The People made reference to Silas Peters’ statements only as an
See Docket No. 13 at 96.
Under these circumstances, the Court
Strickland in denying petitioner’s claim.
Advice Regarding Plea Offers
Petitioner claims that the District Attorney offered two plea
deals to him, one before trial for 15 years to life if he would
agree to testify against his co-defendants, and one after the
petitioner, his counsel failed to offer him “impactful” advice
concerning these alleged plea offers.
Docket No. 1 at 6; Docket
No. 13 at 3.
Petitioner’s claim fails the first prong of Strickland for the
petitioner’s self-serving, after-the-fact statements) that any plea
offers ever existed.
To the contrary, petitioner has attached to
his amended petition a letter dated October 24, 2013, from him to
his trial counsel, in which he asks whether a plea offer was ever
made and, if so, what it was.
See Docket No. 13 at 101.
counsel sent a responsive letter to petitioner in which he stated
that he had no record of a plea offer ever having been made and
that, had such an offer been made, he would have immediately
conveyed it to petitioner.
Id. at 102.
In another letter dated
March 29, 2013, trial counsel stated that no reduced offer was ever
made and that the only “plea” option was a plea to the charge.
petitioner that the only alternative to trial was a plea to the
charge, and that because of the high profile of the matter, it
would have been “political suicide” for the district attorney to
offer any lesser deal.
Id. Petitioner’s current claim that he was
offered two different plea offers is plainly contradicted by the
record, and the Court is not required to accept his uncorroborated,
ineffective assistance of counsel claim.
United States, 2004 WL 1900340, at *6 (S.D.N.Y. Aug.24, 2004) (“In
considering an ineffective counsel claim, a court need not accept
a petitioner’s uncorroborated, self-serving testimony as true.”).
Moreover, even assuming that there were plea offers made in
this matter, petitioner’s own allegations belie his claim of
ineffective assistance. Where a plea offer is made, defense counsel
“must give the client the benefit of [his] professional advice on
this crucial decision of whether to plead guilty.” Purdy v. United
States, 208 F.3d 41, 44 (2d Cir. 2000) (internal citation omitted).
“As part of this advice, counsel must communicate to the defendant
the terms of the plea offer . . . and should usually inform the
defendant of the strengths and weaknesses of the case against him,
as well as the alternative sentences to which he will most likely
(internal citations and quotations omitted).
However, “the ultimate decision whether to plead guilty must be
made by the defendant.”
Here, petitioner alleges that his counsel “laid out the
likelihood of . . . winning the case, and . . . said [he] should
consider taking the plea.”
Docket No. 13 at 50.
specifically alleges that counsel told him about the potential
sentence should he be convicted.
Indeed, it appears that
petitioner’s sole complaint is that his counsel failed to advocate
strongly enough that he take the alleged plea. However, the Second
specifically advise a client “to either plead guilty or not.”
Purdy, 208 F. 3d at 46.
In short, petitioner’s claim that trial
counsel did not “advise [him] on the importance of taking the plea
offer” (Docket No. 13 at 59) fails on its face to rise to the level
of ineffective assistance.
Advise Regarding Trial Testimony
Petitioner also contends that trial counsel failed to properly
advise him regarding whether or not to take the stand in his own
Specifically, petitioner argues that trial counsel advised him that
he had the right to testify if he chose, but did not explain
whether such testimony would be helpful.
alleges that, once he had decided to testify, defense counsel
failed to properly prepare him.
A criminal defendant has a fundamental right to testify in his
own defense, and counsel is required to advise his client of that
See United States v. Caracappa, 614 F.3d 30, 48 (2d Cir.
“[T]he ultimate decision whether to take the stand belongs
to the defendant, and counsel must abide by the defendant’s
decision on this matter.”
Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.
“[T]he burden of ensuring that the defendant is informed of
the nature and existence of the right to testify ... is a component
of the effective assistance of counsel.”
Chang v. United States,
250 F.3d 79, 83 (2d Cir. 2001).
Here, it is undisputed that trial
counsel informed petitioner of his absolute right to testify on his
Moreover, the record strongly supports the conclusion
that petitioner affirmatively and voluntarily decided to exercise
In the papers he submitted to the state court,
petitioner affirmed that he “wanted to testify.”
Docket 13 at 82.
Additionally, in a sworn affidavit dated April 8, 2013, petitioner
stated that he believed testifying at trial would help him.
The essence of petitioner’s argument seems to be that trial
counsel should have aggressively persuaded him not to testify (see,
e.g., Docket No. 1 at 6 (alleging counsel “failed to discourage
[petitioner] from testifying”)), but it is well-established that
defense counsel must honor his client’s decision with respect to
whether or not to testify on his own behalf.
assistance of counsel.
The course suggested
See, e.g., Edwards v. Superintendent,
Southport C.F., 991 F. Supp. 2d 348, 373 (E.D.N.Y. 2013) (defense
lawyer allegedly used fear and manipulative tactics to prevent
Petitioner acknowledges that trial
counsel informed him of his right to testify on his own behalf and
respected his decision in that regard.
The Court thus finds that
petitioner has failed to establish that counsel’s performance was
With respect to petitioner’s claim that counsel failed to
properly prepare him to testify, the sole factual argument offered
by petitioner is that counsel “failed to inform [him] on how [his]
character would be attacked when [he] took the stand. . . .”
Docket No. 13 at 60.
This vague allegation is insufficient to
establish ineffective assistance of counsel.
does not claim that his attorney failed to inform him that his
character would be attacked, just that counsel did not explain
exactly how that would occur.
A lawyer is not required, nor could
he reasonably be expected, to foresee the precise form that crossexamination will take.
Petitioner has also offered no details
regarding the information provided by counsel, nor has he suggested
what counsel should have done differently.
See Knox v. Rock, 2013
WL 474754, at *7 (W.D.N.Y. Feb. 6, 2013) (finding ineffective
assistance of counsel claim meritless where petitioner failed to
explain how counsel should have prepared him to testify); Rodriguez
(“[petitioner’s] occasionally combative tone on cross-examination
does not establish that defense counsel’s performance in preparing
Additionally, the record shows that petitioner’s counsel
attempted to limit cross-examination.
counsel made a motion pursuant to People v. Sandoval, 34 N.Y.2d 371
(1974) to prevent the People from cross-examining petitioner about
his prior criminal history.
his efforts failed.
It is not trial counsel’s fault that
Under these circumstances, the Court cannot
conclude that the state court’s application of Strickland was
Cross-Examination of Shannon McCaffrey
Petitioner contends that counsel failed to properly crossexamine witness Shannon McCaffrey.
Although petitioner offers no
detail to support this claim in his current papers, in the papers
he submitted to the state court, he made it clear that he believed
entrusted to the judgment of the lawyer,” and a court “should not
tactical justification for the course taken.” United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998).
defense at trial was essentially that he was a bystander who had
not participated in any robbery or attempted robbery.
examining McCaffrey, defense counsel focused on the fact that she
was unfamiliar with the details of the shooting - that she did not
know who the participants were, that she did not know what the car
looked like, and so forth. In other words, it appears that counsel
made a strategic decision to cast doubt on McCaffrey’s second-hand
illustrating the gaps in her knowledge.
This is a legitimate
strategic decision by counsel, and the state court thus reasonably
found that it did not rise to the level of ineffective assistance.
See Hill v. Bradt, 2015 WL 5692818, at *3 (W.D.N.Y. Sept. 28, 2015)
(“The fact that defense counsel’s questioning may not have elicited
the answers that would have been most beneficial to petitioner’s
ineffective assistance, but rather speaks to the strength of the
evidence against petitioner in this case.”).
Failure to Call Billie Jo Pullen
Petitioner argues that defense counsel should have called
Billie Jo Pullen as a witness.
Pullen apparently informed trial
counsel that she wished to be a character reference for petitioner,
and trial counsel informed her that he would call her if necessary.
ordinarily not viewed as a lapse in professional representation.”
United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)(internal
Particular deference is afforded to counsel’s
decision regarding whether to call a character witness.
Jelinek v. Costello, 247 F. Supp. 2d 212, 289 (E.D.N.Y. 2003)
(“Whether or not to call a character witness is eminently a
tactical decisions that another court is not in a good position to
Absent an extraordinary showing by the petitioner,
such a claim will not merit a finding that trial counsel performed
below the constitutional minimum.”).
Petitioner has made no
showing in this case that the failure to call Pullen was outside
the bounds of professional conduct and has therefore failed to show
deficient performance by counsel.
Failure to “Contest the People’s Case”
In his amended petition, petitioner claims that trial counsel
failed to “contest the People’s case.”
Docket No. 13 at 4.
sole specific deficiency identified by petitioner in connection
with this claim is that trial counsel should have “challenged” the
testimony of an eyewitness who stated that it could not have been
petitioner who he saw, because the individual he saw was lightskinned.
“[V]ague and conclusory allegations of ineffective assistance
of counsel are insufficient to overcome the strong presumption that
professional assistance.” Smith v. Ercole, 2010 WL 6595338, at *22
(N.D.N.Y. June 16, 2010) (internal quotation omitted).
claim that trial counsel failed to contest the People’s case is
precisely such a vague and conclusory allegation.
With regard to
the specific issue of the eyewitness testimony, petitioner has
offered no explanation as to what he believes trial counsel should
have done. On cross-examination, the witness in question testified
petitioner as having been present immediately after the shooting,
and that petitioner was not the man he had described.
words, this witness’s testimony supported petitioner’s claim that
he had stayed away from the car and was not a participant in the
It is not clear what more petitioner believes
counsel could or should have done.
Failure to Object to Photographs
During petitioner’s trial, post-mortem photographs of Scriven
photographs as “gruesome and highly prejudicial” and contends that
trial counsel should have objected to their admission.
13 at 4.
“Under well-established New York law, the trial court has
discretion as to whether to introduce photographs of homicide
Hill, 2015 WL 5692818, at *8.
“‘[P]hotographs of a
corpse are admissible even though they portray a gruesome spectacle
and may tend to arouse passion and resentment against the defendant
in the minds of the jury.’” Id.
N.Y.2d 356, 369–70 (1973)).
(quoting People v. Pobliner, 32
The photographs in this case are not
particularly graphic or gruesome, and petitioner has not identified
any reason why they were inadmissible.
Counsel cannot be faulted
for failing to make an objection without sound basis in the law.
Failure to File a Pre-sentence Memorandum
Trial counsel did not submit a pre-sentence memorandum to the
In a letter dated March 19, 2013, trial counsel
stated that he did not submit such a memorandum because “[t]here
was no compelling mental or physical disability . . . of which
Lucious suffered, or any family/social/educational situation that
would be so compelling, that would have effected the ‘fairness’ of
the trial process, or change the sentence ultimately imposed by
There are times that a pre-sentencing memorandum
would be far less than helpful, if it has the effect of hardening
the judge’s view of what sentence to impose.”
Docket No. 13 at
Under New York law, “either the defendant or the prosecutor
may submit a pre-sentence memorandum setting forth any information
that is pertinent to sentencing.” Williams v. Allard, 2007 WL
2572103, at *3 n.9 (N.D.N.Y. Aug. 31, 2007).
Failure to submit a
pre-sentence memorandum does not generally constitute ineffective
assistance of counsel. See United States v. Flemings, 668 F. Supp.
304, 306 (S.D.N.Y. 1987) (“Although it is true that counsel did not
file a presentence memorandum, this omission does not constitute
ineffective assistance of counsel. Indeed, it is the Court’s
leniency, pointing out that petitioner did not personally harm
Scriven, that petitioner’s parents were elderly and unlikely to
attending college and attempting to better himself, and that
petitioner came from a good family and was part of the community.
“The comments made at sentencing show that counsel’s conduct did
not fall below an objective standard of reasonableness.” Bethea v.
Walsh, 2016 WL 258639, at *25 (E.D.N.Y. Jan. 19, 2016).
Investigator Benjamin’s Credibility
information and belief, Investigator Benjamin’s credibility has
been subsequently impeached by charges brought against him in
Docket No. 13 at 5.
Petitioner does not expand on
this alleged fact, nor has he explained how or why this relates to
his claim of ineffective assistance of counsel.
Again, “vague and
conclusory allegations of ineffective assistance of counsel are
insufficient to overcome the strong presumption that counsel's
conduct falls within the wide range of reasonable professional
Smith, 2010 WL 6595338, at *22 (internal quotation
Without more, petitioner’s claim that Investigator
Benjamin’s credibility was suspect simply does not establish that
his trial counsel was ineffective.
Lack of Prejudice
For all the reasons discussed above, the Court concludes that
petitioner’s counsel’s performance was not deficient.
even assuming arguendo that it were, petitioner has also failed to
The evidence against him at trial was quite
strong, and included his written statement that he participated in
the attempted robbery/shooting. See, e.g., Kliti v. Savage, 2013 WL
1192777, at *18 (E.D.N.Y. Mar. 22, 2013) (relatively minor errors
by counsel are not prejudicial under Strickland where the evidence
against petitioner is strong and includes inculpatory statements)
significant likelihood that the alleged errors of trial counsel
impacted the ultimate outcome of his case, and therefore cannot
His petition is also subject to denial on
For the foregoing reasons, petitioner’s request for a writ of
habeas corpus is denied on the merits, and the amended petition
(Docket No. 13) is dismissed.
Because Petitioner has failed to
make a substantial showing of the denial of a constitutional right,
certificate of appealability.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 28, 2017
Rochester, New York
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