Rivera v. Artus

Filing 18

DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Benjamin Rivera and denying a certificate of appealability. Signed by Hon. Michael A. Telesca on 10/16/17. A copy of this Decision and Order was sent by U.S. Mail on today's date by Chambers' staff.(AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BENJAMIN RIVERA,
Petitioner,
No. 14-CV-6300(MAT)
DECISION AND ORDER

-vsDALE ARTUS, Superintendent,
Attica Correctional Facility,
Respondent.

I.

Introduction
Pro se petitioner Benjamin Rivera (“petitioner” or “Rivera”)

seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the
basis that he is being unconstitutionally detained in Respondent’s
custody. Petitioner is incarcerated pursuant to a judgment entered
against him on July 21, 1989, in Monroe County Court of New York
State (“Monroe County Court”), following a jury verdict convicting
him of murder in the second degree. Petitioner was sentenced to an
indeterminate prison term of 18 years to life.
Petitioner asserts that the following claims in his petition:
(1)

ineffective

assistance

of

trial

counsel;

(2)

ineffective

assistance of appellate counsel; and (3) failure by the prosecution
to produce exculpatory evidence.

For the reasons discussed below,

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

Background

On

October

16,

1988,

petitioner,

George

Rios

(“Rios”),

Heriberto Mateo (“Mateo”), and Jose Vargas (“Vargas”) traveled
together

to

a

home

on

Jay

Street

in

Rochester,

where

they

encountered Willie Cruz. Cruz testified at petitioner’s trial that
a blue Chrysler New Yorker parked in front of the driveway and that
three men, including petitioner, got out.

According to Cruz, Rios

brandished a firearm and demand that Cruz hand over his money and
drugs.

Cruz emptied his pockets, demonstrating that he had no

money or drugs on him. Michael Laskey (“Laskey”) and Ivan McIntyre
(“McIntyre”),

friends

of

Cruz’s

who

were

inside

the

house,

witnessed this interaction and came outside to assist Cruz.

Cruz

testified at trial that McIntyre asked Rios what was going on, at
which point petitioner told Rios to shoot McIntyre, which Rios in
fact did.

McIntyre died as a result of the gunshot wound.

Cruz

had known petitioner for approximately six years and identified him
at trial as the individual who told Rios to shoot McIntyre.
Aundrea Ownes (“Ownes”) was called as a defense witness at
trial.

She testified that on October 16, 1988 at roughly 12:30

a.m. she was driving home from a friend’s house when she stopped at
the traffic light on the corner of Jay and Saxton Streets.

Ownes

further testified that she saw a “Spanish” man with a light
complexion, wearing jeans and sneakers, walking down the street
towards Jay Street.

Ownes then heard a loud noise that sounded

like a gunshot, whereafter the man she had seen previously ran into

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the middle of the street and waved down and entered a blue Chrysler
New Yorker, which drove away.

At trial, petitioner’s counsel,

Maureen Pineau, Esq. (“trial counsel”) argued that petitioner was
the man Ownes had seen and that Ownes’ testimony showed Petitioner
was not present when McIntyre was murdered.
Trial counsel also called Peter Kristal, Esq. (“Kristal”) as
a witness.

Kristal, who had formerly served as Cruz’s attorney,

testified that Cruz had told him he was afraid of Vargas and did
not want to say anything about his involvement in the crime.
Kristal further testified that Cruz had made no statements to him
about petitioner.
Petitioner was charged with, and the trial court instructed
the

jury

as

to

the

elements

of,

both

second-degree

murder

(intentional murder) and second-degree murder (felony murder). The
jury found petitioner not guilty on the intentional murder charge
and guilty on the felony murder charge.

On June 21, 1989,

petitioner was sentenced to an indeterminate prison term of 18
years to life.
Trial counsel represented petitioner on direct appeal before
the

Appellate

Division”).

Division,

Fourth

Department

(the

“Appellate

In her brief, she argued that (1) the evidence was

legally insufficient to support petitioner’s conviction, (2) the
verdict was against the weight of the evidence, because Cruz’s
testimony was not credible, (3) the trial court’s jury charge

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deprived petitioner of a fair trial, (4) the cumulative effect of
various evidentiary rulings made by the trial court deprived
petitioner of a fair trial, and (5) petitioner’s sentence should be
modified in the interests of judgment.
unanimously

affirmed

petitioner’s

The Appellate Division

judgment

of

conviction

by

Memorandum and Order dated February 1, 1991. See People v. Rivera,
170 A.D.2d 962 (4th Dep’t 1991). Petitioner sought leave to appeal
his claims based on legal sufficiency and the jury charge before
the New York Court of Appeals (the “Court of Appeals”), which
denied his request on May 7, 1991.
On April 6, 2006, petitioner filed a pro se motion pursuant to
New York Criminal Procedure Law

§ 440.10. In his pro se motion,

petitioner argued that trial counsel was ineffective for having
failed to call co-defendants Mateo and Rios as witnesses at trial.
Petitioner submitted with his motion an affidavit from Rios dated
July 28, 2003, in which Rios stated that on October 16, 1988, he,
petitioner, and Vargas were passengers in a stolen vehicle driven
by Mateo.

Rios further stated that he spotted Cruz, who he knew to

be a drug dealer, and decided to rob him.

According to Rios’

affidavit, he announced his robbery plan to his companions, and
petitioner tried to dissuade him from going through with it, at
which point Rios told petitioner that he should walk to the corner
if he was not “down with it.”

Rios’ affidavit goes on to state

that as he and Vargas were walking away from Cruz, who had no money

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or drugs, two individuals approached them, and one had his hand at
his waist as though he had a gun.

At that point, Rios stated,

Vargas told Rios to shoot the man, and Rios did, whereupon he and
Vargas ran back to the car and Mateo drove away, stopping to pick
petitioner up at the corner.

Rios’ affidavit states that no one

acting on petitioner’s behalf had previously approached him to find
out what he knew and that, had he been asked to testify, he would
have testified to the statements set forth in the affidavit.
Petitioner also attached to his pro se motion a copy of
Mateo’s plea allocution. In his plea allocution, Mateo stated that
on October 16, 1988, he drove Rios and Vargas to petitioner’s house
in a stolen car. According to Mateo, petitioner retrieved a duffle
bag that had a gun in it, and Mateo then drove to Jay Street.
Mateo further stated that, once they arrived at Jay Street, Vargas
announced that he intended to commit a robbery and petitioner
walked to the street corner.

Mateo went on to state that an

individual had jumped out and charged at Rios, that Vargas told
Rios to shoot the individual in question, and that Rios did shoot
him.

Rios and Vargas then re-entered the car, and Mateo pulled

around the corner

to pick up petitioner.

All four of them

(petitioner, Mateo, Vargas, and Rios) then drove to a house on
Hoelzter

Street,

where

Rios

and

individual Mateo did not know.

-5-

Vargas

gave

the

gun

to

an

Mateo had previously given a statement to the police on
October 16, 1988, which differed in material respects from his plea
allocution.

In his original statement, Mateo told police that he

stole the car at issue in Henrietta, then returned to Rochester,
where he, petitioner, Vargas, and Rios devised a plan to rob a drug
house.

Mateo told the police that petitioner had offered the use

of his gun to effectuate the robbery and that Mateo drove to
petitioner’s house where petitioner retrieved a gym bag containing
a single barrel 12-gauge shotgun.

The four companions then drove

to Jay Street, looking for a drug house to rob.

They agreed to

target Cruz, whom they knew to be a drug dealer, as well as a green
house they believed to be a drug house. Mateo told the police that
petitioner, Vargas, and Rios chased Cruz to the rear of the
property, at which point an individual exited and Rios shot him.
Mateo stated that petitioner had already run from the scene by the
time the individual who was shot fell to the ground and that he,
Vargas, and Rios picked petitioner up on Saxton Street. Mateo
further told the police that petitioner then directed him to the
house on Hoelzter Street, where petitioner and Vargas gave the gun
to a man, and petitioner told the man to hold onto it and that
petitioner would be in touch.
After filing his pro se motion, petitioner obtained counsel,
and filed a supplemental § 440.10 motion. In his supplemental
motion, petitioner asserted that trial counsel was ineffective for

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having sought a missing witness charge with respect to the People’s
failure to call Mateo rather than having called him as a witness,
that the People violated the rule set forth in Brady v. Maryland,
373 U.S. 83 (1963), by failing to produce exculpatory evidence
(namely, Mateo’s plea colloquy), and that newly discovered evidence
(namely,

Rios’

July

28,

2003

affidavit)

warranted

vacating

petitioner’s conviction.
The

Monroe

County

Court

(Renzi,

J.)

held

petitioner’s § 440.10 motion on December 8, 2006.

a

hearing

on

At the hearing,

in addition to the information contained in his affidavit, Rios
testified that he had been friends with petitioner for most of his
life and that, despite having had many court appearances with
petitioner, he had never volunteered the information contained in
his

affidavit.

It

was

not

until

15

years

later,

when

an

investigator showed up “out of the blue” that Rios offered up his
version of events.
Retired

Rochester

Police

Department

Investigator

William

Barnes (“Barnes”) testified at the hearing before the Monroe County
Court. Barnes stated that he had interviewed Rios on October 16,
1988. According to Barnes, Rios told him that Cruz owed petitioner
money for heroin and that petitioner had driven Vargas, Mateo, and
Rios to Jay Street.

Rios further told Barnes that petitioner was

armed with a shotgun and Vargas was armed with .45 caliber firearm.
Rios went on to tell Barnes that, as they were walking up the

-7-

driveway of a house in order to rob Cruz, a man exited the house
and petitioner shot him.
On March 2, 2007, the Monroe County Court issued a Decision
and Order denying petitioner’s § 440.10 motion.

The Monroe County

Court found that petitioner’s ineffective assistance of counsel
claim was procedurally barred for failure to raise it on direct
appeal and that, in any event, trial counsel had provided a
competent and effective defense.

The Monroe County Court further

found that petitioner’s Brady claim lacked merit, inasmuch as the
record showed that Mateo’s plea colloquy was known to all parties
at the time of petitioner’s trial.

Finally, the Monroe County

Court denied petitioner’s claim based on new evidence, finding that
Rios was not a credible witness.
Petitioner filed a counseled motion for leave to appeal the
Monroe County Court’s decision on his § 440.10 motion.

The

Appellate Division granted petitioner’s request on June 27, 2007.
On February 6, 2008, petitioner filed a pro se motion for writ
of

coram

nobis.

Petitioner

argued

that

trial

counsel

was

ineffective on direct appeal because (1) she had a conflict of
interest, having represented him at trial and (2) she did not
assert that she had been ineffective at trial by having failed to
call Mateo as a witness, having failed to object to the trial
court’s charge as to reasonable doubt and as to the felony murder
count, and having failed to object to the trial court responding to

-8-

a

juror’s

question

without

opportunity to be heard.

first

permitting

the

defense

an

The Appellate Division subsequently

issued an Order dated June 6, 2008, in which it found that
petitioner’s claim that trial counsel was ineffective for having
failed to object to the trial court’s instruction regarding the
elements

of

accordingly

felony
vacated

murder
its

was

potentially

February

1,

1991

meritorious,
order

and

affirming

petitioner’s judgment of conviction and agreed to hear petitioner’s
appeal de novo.
The Appellate Division subsequently consolidated petitioner’s
§ 440.10

appeal with the de novo appeal of his judgment of

conviction.

Gary Muldoon, Esq. (“appellate counsel”) represented

plaintiff in connection with the consolidated appeal, and filed a
brief contending that (1) the trial court erred in instructing the
jury with respect to felony murder, (2) the verdict was against the
weight of the evidence, and (3) the Monroe County Court erred in
failing to vacate petitioner’s conviction, because trial counsel
was ineffective when she failed to object to the trial court’s
instructions on felony murder and failed to interview or call
Mateo.

Petitioner filed a pro se supplemental brief in which he

contended that the Monroe County Court erred in failing to vacate
his conviction because trial counsel was ineffective, because the
People violated Brady, and because of newly discovered evidence.

-9-

On March 25, 2011, the Appellate Division entered a Memorandum
and Order in which it unanimously affirmed petitioner’s judgment of
conviction and the Monroe County Court’s denial of his § 440.10
motion.

The Appellate Division found that plaintiff had failed to

preserve his arguments regarding the trial court’s instructions on
felony murder and response to the juror’s question, and that the
verdict was not against the weight of the evidence.

The Appellate

Division further found that trial counsel was not ineffective, that
there was no Brady violation, and that petitioner’s argument based
on Rios’ affidavit had not been brought with due diligence and was
based on unreliable testimony that was insufficient to warrant
vacatur.

See People v. Rivera, 82 A.D.3d 1590.

Petitioner filed

a counseled request for leave to appeal the Appellate Division’s
decision on his consolidated appeal, and the Court of Appeals
denied his request on June 8, 2011.
Petitioner filed a second pro se motion for a writ of error
coram nobis on June 17, 2011. In this motion, petitioner contended
that appellate counsel provided ineffective assistance because he
did not argue that trial counsel was ineffective for having failed
to object to the court’s response to a juror’s inquiry and having
failed to object to the trial court’s instructions on felony murder
and reasonable doubt.

The Appellate Division denied petitioner’s

motion on November 10, 2011.

Petitioner filed a pro se motion for

-10-

leave to appeal, which the Court of Appeals denied on February 14,
2012.
On June 12, 2012, Petitioner filed a third pro se motion for
a writ of error coram nobis.

Petitioner argued that appellate

counsel was ineffective for having failed to assert that trial
counsel’s failure to move to dismiss the felony murder charge on
the

ground

that

the

evidence

was

ineffective assistance of counsel.

legally

insufficient

was

The Appellate Division denied

petitioner’s motion on September 28, 2012, and the Court of Appeals
denied his request for leave to appeal on June 6, 2013.
Petitioner commenced this action on May 27, 2014, arguing that
he is entitled to a writ of habeas corpus because (1) trial counsel
was ineffective, (2) appellate counsel was ineffective, and (3) the
People failed to disclose Brady material (specifically, Mateo’s
plea colloquy).
III. Discussion
A.

Unexhausted and Procedurally Barred Claims

As a threshold matter, respondent contends that certain of
petitioner’s claims are unexhausted.

Specifically, respondent

contends that petitioner failed to exhaust his claims that: (1)
appellate counsel was ineffective for failing to argue that trial
counsel was ineffective for failing to call Mateo as a trial
witness; (2) trial counsel was ineffective for failing to move to
dismiss

the

felony

murder

count

-11-

on

the

ground

of

legal

insufficiency of the evidence, for failing to object to the charges
on reasonable doubt and felony murder, and for failing to object to
the trial court’s having answered a juror’s question; and (3) the
People failed to produce Brady material.
It is well-established that a state inmate who seeks federal
habeas

review

remedies.

must

first

exhaust

28 U.S.C. § 2254(b)(1).

his

available

state

court

This is so because “interests

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

Rhines v.

“In order to satisfy the

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

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

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

See id. (“[B]ecause the

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

is

clear

procedurally
Netherland,

that
barred

518

U.S.

the

habeas

under
152,

petitioner's

state
161

law.’”)

(1996)).

claims

are

now

(quoting

Coleman

However,

“[w]here

v.
a

procedural bar gives rise to exhaustion . . . it also ‘provides an
independent and adequate state-law ground for the conviction and
sentence, and thus prevents federal habeas corpus review of the
defaulted claim.’” Id. (quoting Netherland, 518 U.S. at 162). “For
a procedurally defaulted claim to escape this fate, the petitioner

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must show cause for the default and prejudice, or demonstrate that
failure to consider the claim will result in a miscarriage of
justice, (i.e., the petitioner is actually innocent).” Aparicio v.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
1.

Unexhausted Claim

Petitioner did not raise his claim that appellate counsel was
ineffective for failing to argue that trial counsel was ineffective
for failing to call Mateo as a trial witness in his second and
third motions for a writ of error coram nobis.
claim is unexhausted.

Accordingly, this

However, and unlike the claims discussed

below, it is not procedurally defaulted, because petitioner could
bring a fourth motion for a writ of error coram nobis.
“[A] district court faced with a habeas petition containing
unexhausted claims generally has three options.”
1331509 at *14.
without

Ortiz, 2011 WL

The Court may (1) dismiss the unexhausted claims

prejudice,

(2)

under

limited

circumstances,

stay

the

petition and hold it in abeyance while the petitioner returns to
state court and exhausts the claims at issue, or (3) if the
unexhausted claim is plainly meritless, deny it on the merits. See
id.

Here,

ineffective

the

Court

assistance

of

finds

that

appellate

petitioner’s
counsel

claim

unexhausted
is

plainly

meritless and accordingly denies it.
“Pursuant to the well-known two-part test of Strickland v.
Washington

.

.

.

a

habeas

petitioner

alleging

ineffective

assistance of counsel ‘must demonstrate (1) that his counsel’s
performance fell below what could be expected of a reasonably

-13-

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

Woodard v. Chappius, 631 F. App’x 65,

66 (2d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 241,
(2009)).

In this case, the Appellate Division determined, and the

Court agrees, that trial counsel’s decision not to call Mateo was
a legitimate strategic decision, and did not constitute deficient
performance.
“Counsel’s decision as to whether to call specific witnesses
- even ones that might offer exculpatory evidence - is ordinarily
not viewed as a lapse in professional representation.”

United

States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)(internal quotation
omitted). Here, trial counsel could reasonably have concluded that
the risks of calling Mateo to the stand outweighed the potential
benefits. Mateo’s statement to the police implicated petitioner in
planning the robbery and procuring and hiding the murder weapon.
Trial counsel’s decision to avoid having this negative information
presented to the jury was a reasonable strategy, as was seeking a
missing witness charge against the People with respect to Mateo’s
absence.

Trial counsel was thereby able to undermine Cruz’s

testimony without introducing to the jurors information suggesting
that petitioner was an active participant in the events of the
night in question.

Accordingly, petitioner cannot satisfy the

first prong of Strickland with respect to this claim.
Because petitioner’s ineffective assistance claim against
trial counsel was meritless, appellate counsel cannot have been
ineffective for failing to raise it.

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See Ortiz, 2011 WL 1331609,

at *15 (“Given that an appellate attorney need not bring every
potential non-frivolous claim in order to meet the Strickland
performance prong, failure to raise a plainly meritless claim, as
here, cannot be ineffective assistance of counsel.”). As such, the
Court finds petitioner’s unexhausted ineffective assistance of
appellate counsel claim plainly meritless and it is denied.
2.

Procedurally Barred Claims

Petitioner’s claim that trial counsel was ineffective for (1)
failing to move to dismiss the felony murder count on the ground of
legal insufficiency of the evidence, (2) failing to object to the
charges on reasonable doubt and felony murder, and (3) failing to
object to the trial court’s having answered a juror’s question, and
his claim that the People failed to produce Brady material were
either not raised in his de novo appeal or not raised in his
application for leave to appeal after having been denied by the
Appellate Division.

There is no reason petitioner could not have

raised these claims on direct appeal, as they were based on the
record and therefore available to him at that time.

Accordingly,

under New York law, further review of these claims is procedurally
barred.

See Ortiz, 2011 WL 1331509, at *7 (explaining that, under

New York law, unjustifiable failure to raise a claim on direct
appeal forfeits the right to collateral relief).
Petitioner cannot meet the high bar for granting relief on a
procedurally defaulted claim. Petitioner has not established cause
for his default, and he will not suffer any prejudice as a result
of the procedural bar.

As discussed below, there is no merit to

-15-

petitioner’s claims, and they would be denied even were the Court
to consider them on the merits.
Petitioner also cannot establish that he is actually innocent
of the crime for which he was convicted.

“The Supreme Court has

explained that the fundamental miscarriage of justice exception is
‘extremely rare’ and should be applied only in ‘the extraordinary
cases.’”
(quoting

Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003)
Schlup

v.

Delo,

513

U.S.

298,

321-22(1995)).

“To

establish actual innocence, [a] petitioner must demonstrate that,
in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.” Id. at 142 (internal
quotation omitted).

“[A]ctual innocence means factual innocence

rather than just legal insufficiency.”
omitted).

Id. (internal quotation

In this case, as the state courts have found on multiple

occasions, there was plainly sufficient evidence, including the
testimony of eyewitness Cruz, from which a reasonable juror could
have concluded that petitioner was guilty of felony murder.
B.

The Merits of Petitioner’s Claims
1.

Standard of Review

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

state

prisoner’s

habeas

application

unless

the

relevant

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

Knowles v. Mirzayance,

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

-16-

“The

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

Edwards v. Superintendent, Southport

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

“The petition may be

granted only if ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)).
2.

Ineffective Assistance of Counsel

Where, as here, the state court has rejected a claim of
ineffective assistance of counsel, a “doubly deferential [standard
of] judicial review” applies on federal habeas review. Knowles, 555
U.S. at 123.

Accordingly, to prevail on an claim of ineffective

assistance of counsel, petitioner must show that the state court’s
application of Strickland was objectively unreasonable.
Petitioner has argued that trial counsel was ineffective for
having failed to (1) move to dismiss the felony murder count on the
basis of legal insufficiency of the evidence, (2) object to the
trial court’s charges on reasonable doubt and the elements of
felony murder, (3) object to the trial court’s colloquy with a
juror in response to that juror’s question, and (4) call Mateo as
a trial witness. Petitioner has also argued that appellate counsel
was ineffective for having failed to assert that trial counsel was
ineffective on those same grounds.

As discussed above, some of

these claims are unexhausted. However, for the sake of judicial

-17-

efficiency, and because the claims are inextricably intertwined,
the

Court

has

considered

each

on

the

merits

and

finds

that

petitioner is not entitled to relief.
a.

Legal Sufficiency of the Evidence

Petitioner argues that trial counsel unreasonably failed to
move

to

dismiss

the

felony

murder

count

based

on

legal

insufficiency of the evidence. Respondent argues, and the Court
agrees, that there is no reasonable possibility such a motion would
have been granted.
Under New York law, an individual is guilty of felony murder
if “either acting alone or with one or more other persons, he
commits or attempts to commit [certain enumerated felonies] and, in
the course of and in furtherance of such crime or immediate flight
therefrom, he, or another participant, if there be any, causes the
death of a person other than one of the participants.”
Penal Law § 125.25.
for years

and

petitioner

was

New York

In this case, Cruz, who had known petitioner

identified

him

participating

at
in

trial,
an

testified

attempted

that

robbery

while

or

the

immediate flight therefrom, Rios, a co-participant, fatally shot
McIntyre when McIntyre tried to interfere with their unlawful
actitivites.
eyewitness

is

“[T]he

testimony

generally

of

sufficient

a

single,

to

support

uncorroborated
a

conviction.”

United States v. Frampton, 382 F.3d 213, 222 (2d Cir. 2004); see
also People v. Williams, 10 A.D.3d 213, 217 (1st Dep’t 2004),
aff'd, 5 N.Y.3d 732, (2005) (“The proof of defendant’s guilt,

-18-

consisting of an uncorroborated eyewitness identification, was . .
. plainly sufficient to support a conviction.”).
Trial counsel cannot be faulted for failing to make a motion
with

no

reasonable

likelihood

of

success.

Accordingly,

petitioner’s claim fails to satisfy the Strickland standard.
b.

Charge on Reasonable Doubt

At petitioner’s trial, the trial court charged the jury as
follows:

“if

you

find

that

the

People

have

proved

to

your

satisfaction and beyond a reasonable doubt each of these elements
as I have explained them . . . your verdict should be guilty.
you don’t
guilty.”

find

them

established,

your verdict

should

Docket No. 11-7 at 189 (emphasis added).

be

If
not

Petitioner

argues that these instructions were incorrect, because New York’s
Criminal Pattern Jury Instructions on Reasonable doubt use the word
“must,” rather than the word “should.”

Trial counsel did not

object to the trial court’s instruction, which petitioner contends
was error.
“[C]ounsel’s failure to object to a jury instruction (or to
request

an

additional

instruction)

constitutes

unreasonably

deficient performance only when the trial court’s instruction
contained clear and previously identified errors.”
Artuz, 269 F.3d 78, 99 (2d Cir. 2001).

Aparicio v.

Here, the trial court’s

instructions “[did] not unfairly characterize the jury’s duty under
the law.”

Manning v. Strack, 2002 WL 31780175, at *6 (E.D.N.Y.

Oct. 11, 2002) (noting that certain pattern jury instructions
recommend “that [the] jury be instructed that if it is convinced of

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defendant’s guilt beyond a reasonable doubt, it should vote to
convict”) (internal quotation removed). The word “should,” as used
in this context, properly conveyed to the jury that it was their
duty, in the event the People failed to prove guilt beyond a
reasonable doubt, to acquit petitioner.

See, e.g., Sanders v.

United States, 2009 WL 2242302, at *4 (E.D.N.Y. July 27, 2009) (“In
this case, the context of the jury instruction and its wording make
clear that the word ‘should’ is an imperative instructing the jury
to acquit if they determined that the government had not satisfied
its burden of proof.
jurors

convicted

There is no indication in the record that the

petitioner

based

on

a

standard

lower

than

reasonable doubt. Counsel was not ineffective for not objecting to
the Court’s jury charge and petitioner was not prejudiced by the
phrasing.”); see also United States v. Capoccia, 247 F. App’x 311,
316 (2d Cir. 2007) (“the court’s usage on two occasions of the
phrase ‘should acquit,’ rather than ‘must acquit,’ was not error
because ‘should’ (unlike, for example, ‘may’) was imperative, not
hortatory, and the jury’s obligation was also clear from context”).
Accordingly, petitioner has not established that trial counsel was
ineffective for having failed to object to the trial court’s charge
on reasonable doubt.
c.

Charge on Elements of Felony Murder

As set forth above, New York law as to felony murder provides
that it must have occurred “in the course of and in furtherance of
[an enumerated felony] or immediate flight therefrom.”

New York

Penal Law § 125.25[3] (emphasis added). At petitioner’s trial, the

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trial court misstated this standard its initial charge to the jury,
replacing the word “and” with the word “or” (i.e. “in the course of
or in furtherance of”), without objection from trial counsel.
However, thereafter, the trial court provided the jury with a
correct

reading

of

the

statute

on

three

separate

occasions.

Notably, on the last occasion that the trial court misread the
statute, it immediately corrected itself, and provided the jury
with the appropriate instruction. See Docket No. 11-7 at 205-206.
Respondent argues that, even assuming trial counsel was remiss
in failing to object to the trial court’s initial misstatement, no
prejudice resulted, because the trial court corrected its initial
erroneous instruction.

The Court agrees.

Under Strickland, to

show prejudice, petitioner must demonstrate that “his counsel’s
unreasonable conduct prejudiced the outcome of his trial, such that
our confidence in the outcome is undermined.” Cox v. Donnelly, 387
F.3d 193, 199 (2d Cir. 2004). Petitioner cannot meet that standard
here.

Had his counsel objected at the time the trial court gave

its initial instruction, the remedy would have been to provide the
jury with a corrected instruction, which is precisely what happened
anyway.

Where an initial error is corrected at the time of trial,

there is generally no prejudice under Strickland. See, e.g., Jones
v. Greene, 2007 WL 2089291, at *8 (S.D.N.Y. July 20, 2007) (no
prejudice where lawyer misspoke in opening statement but properly
summarized the elements of the offense in his closing).
d.

The Trial Court’s Colloquy with a Juror

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During jury deliberations in petitioner’s trial, the jury
requested to see certain information, only some of which had been
received in evidence.

The trial court conferred with counsel and

responded to the jury’s request. Directly following this exchange,
a juror, in open court, asked the trial court a question about the
felony murder count.

The trial court repeated its instructions

regarding felony murder, then conferred with counsel regarding
whether they had any requests.

The trial court again instructed

the jury with respect to the definition of felony murder, and the
juror indicated that his question had been answered. Petitioner
argues that the trial court’s actions violated New York Criminal
Procedure Law § 310.30, which requires the trial court to confer
with counsel before responding to a jury question, and that trial
counsel was therefore ineffective for not having objected.
As with petitioner’s previous argument, he has failed to
demonstrate any prejudice arising from the trial court’s colloquy
with the juror.

Trial counsel had an the opportunity to give input

into the trial court’s response to the juror, and petitioner has
not identified any additional information that should have been
provided.

As such, even assuming trial counsel’s decision not to

object constituted an error, the corresponding lack of prejudice
means that petitioner cannot sustain an ineffective assistance of
counsel claim.
e.

Failure to Call Mateo

Petitioner’s claim based on trial counsel’s failure to call
Mateo as a trial witness was analyzed in section I(A)(1) of this

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Decision and Order.

For the reasons discussed therein, the Court

finds that trial counsel’s decision not to call Mateo as a witness
as trial was objectively reasonable and cannot form the basis for
a claim of ineffective assistance of counsel.
f.

Performance of Appellate Counsel

Petitioner has argued that appellate counsel was ineffective
because he failed to make various claims of ineffective assistance
of trial counsel.
concluded

that

assistance.

For the reasons set forth above, the Court has
trial

counsel

did

not

provide

ineffective

It therefore follows that appellate counsel cannot be

found ineffective for having failed to make a non-meritorious
ineffective assistance of trial counsel claim.

See Ortiz, 2011 WL

1331609, at *15 (“Given that an appellate attorney need not bring
every potential non-frivolous claim in order to meet the Strickland
performance prong, failure to raise a plainly meritless claim, as
here, cannot be ineffective assistance of counsel.”).
3.

Brady Claim

The final claim set forth in the petition is that the People
violated Brady by failing to disclose Mateo’s plea colloquy.
discussed above, this claim is procedurally defaulted.

As

However,

even were the Court to consider the merits, petitioner has not
shown that any Brady violation occurred.
Pursuant to Brady, “the suppression by the prosecution of
evidence favorable to an accused 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.”

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Banks v. Dretke, 540 U.S. 668, 691 (2004) (internal quotation
omitted). However, there is no suppression, and therefore no Brady
violation, “if the defendant either knew, or should have known, of
the essential

facts

exculpatory evidence.”

permitting

him

to

take

advantage

of

any

United States v. Zackson, 6 F.3d 911, 918

(2d Cir. 1993) (internal quotation omitted).
Here, as the Appellate Division found, the record shows that
petitioner was fully aware of Mateo’s plea colloquy and there was
therefore no Brady violation. Specifically, the Appellate Division
noted that trial counsel made specific reference to Mateo’s plea
agreement when she requested a missing witness charge, and the
trial court, in granting that request, specifically referenced the
fact that Mateo had stated that it was Vargas, and not petitioner,
who told Rios to shoot McIntyre.

The Appellate Division’s holding

was neither contrary to nor an unreasonable application of Brady,
and petitioner is therefore not entitled to federal habeas relief
on this claim.
IV.

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

denied and dismissed.

No certificate of appealability shall issue

because petitioner has not shown “that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would
find it debatable whether th[is] . . . [C]ourt was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and
Fed. R. App. P. 24(a)(3), that any appeal from this Decision and
Order would not be taken in good faith, and therefore the Court
denies leave to appeal as a poor person. Coppedge v. United States,
369 U.S. 438, 445-46 (1962). Any application for leave to appeal in
forma pauperis must be made to the Second Circuit Court of Appeals
in accordance with Fed. R. App. P. 24(a)(1), (4), & (5).

The Clerk

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

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

Rochester, New York
October 16, 2017

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