Cole v. Keyser

Filing 82

DECISION AND ORDER denying 45 Motion ; denying 48 Motion ; denying 50 Motion ; denying 51 Motion ; denying 54 Motion to Appoint Counsel ; denying 55 Motion ; denying 56 Motion ; denying 58 Motion ; denying 69 Motion to Comp el; denying 70 Motion to Appoint Counsel ; denying 71 Motion to Compel; denying 73 Motion ; denying 11 Motion ; denying 13 Motion ; denying 14 Motion ; denying 15 Motion ; denying 16 Motion ; denying 17 Motion ; denying [18 ] Motion ; denying 19 Motion ; denying 25 Motion consistent with this Decision and Order. The Petition for a writ of habeas corpus is denied and the Petition is dismissed. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.). Signed by Hon. Michael A. Telesca on 1/29/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN COLE,
Petitioner,
-vs-

No. 6:14-CV-06606(MAT)
DECISION AND ORDER

WILLIAM KEYSER, Superintendent,
Respondent.

INTRODUCTION
Proceeding pro se, John Cole (“Petitioner”) has filed a
Petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254,
challenging the constitutionality of the judgment entered against
him on October 11, 2011, in of New York State, Erie County Court
(DiTullio, J.), following a non-jury verdict convicting him of one
count of Robbery in the Third Degree (N.Y. Penal Law § 160.05).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.

Petitioner’s Trial
A.

The Prosecution’s Case

In August of 2010, Gloria Kozub lived (“Kozub”) at 238 West
Utica Street in the City of Buffalo with her then-fiancé, Antwan
Lindsay (“Lindsay”). According to Kozub, Petitioner also resided at
the apartment occasionally. At about 11 a.m. on August 12th, she was
waiting for the bus at 178 West Utica Street to go downtown to pay
her rent. Kozub was carrying $560 in cash ($550 for her current
rent and $10 for late fees). Kozub testified that Petitioner walked
up to her, using one crutch, and demanded money that she had

promised to give him. When Kozub informed Petitioner that she would
pay him after she had paid her rent, Petitioner punched her in the
left eye, pushed her to the ground, and snatched her purse.
Kozub acknowledged that, at the felony hearing, she mistakenly
testified that Petitioner struck her in the right eye rather than
the

left

eye.

She

explained

that

the

error

was

due

nervousness at testifying in court for the first time.

to

her

Kozub also

acknowledged that, although Petitioner had physically attacked her
in the past, she told an investigator otherwise because she was
attempting to protect Petitioner, who was Lindsay’s uncle.
Officer

Mary

May

(“Officer

May”)

of

the

Buffalo

Police

Department testified that she responded to Kozub’s 911 call. Kozub
named Petitioner as the person who had robbed her, describing him
as a 230-pound black male, between 6-foot-2 and 6-foot-5, who used
a crutch.

Kozub told Officer May that she had $560 in her purse

when Petitioner stole it. The following day, Kozub gave a written
statement to Detective Ed Cotter, who observed bruising to her left
eye.
Lieutenant Chris Kochersberger (“Lt. Kochersberger”) of the
BPD testified that after four days, he spotted Petitioner in the
neighborhood and arrested him for the robbery.
Lt.

Kochersberger

Petitioner

had

an

seized

$560.00

additional

from

$22.00,

-2-

At the time,

Petitioner’s
but

Lt.

wallet.

Kochersberger

recovered it in a different compartment of his wallet and did not
seize it as potential proceeds of the robbery.
Marian

Buckley

(“Buckley”),

an

employee

of

BCG

Property

Management, was in charge of collecting Kozub’s rent. She testified
that Kozub had made her rent payments over the past several months,
but she missed her payment for August 2010. Buckley indicated that
Kozub’s monthly rent was $550.00, but she occasionally paid an
extra $10.00 in order to make up for late payments.
B.

The Defense Case

Petitioner testified that he did not commit the alleged
robbery, and that he was not even in the area of 178 West Utica on
the morning in question. Petitioner stated that he was on Main and
Court Streets, the same place where he was arrested, sitting down
with some friends.
Petitioner

also

related

that

he

had

severe

degenerative

arthritis in both hip, and he required a crutch to walk. He
asserted that it was impossible for Kozub’s allegations to be true,
because, as a result of his medical condition since he could not
have physically performed the actions of which Kozub accused him.
Petitioner confirmed that Kozub had been dating Lindsay, his
nephew, who had a drug addiction. According to Petitioner, Lindsay
was physically abusing Kozub and was spending all of her money as
well as Rosalind’s money on crack cocaine. Petitioner insinuated

-3-

that Kozub and Lindsay were robbing disability checks from people
who lived in their house.
Petitioner asserted that Kozub had fabricated the robbery
incident in order to use the $560 to purchase more crack cocaine.1
Petitioner testified that the money in his wallet was from a
disability payment, and that the $560.00 was not separate from the
rest of the other cash in his wallet at the time of his arrest.
C.

The Verdict and Sentence

The trial court found Petitioner guilty as charged in the
indictment. Petitioner was sentenced, as a second felony offender,
to an indeterminate term of three and one-half to seven years in
prison.
D.

The Direct Appeal and Post-Judgment Motions

Represented by new counsel, Petitioner appealed his conviction
to the Appellate Division, Fourth Department, of New York State
Supreme Court (“Fourth Department”). The conviction was unanimously
affirmed on November 8, 2013. People v. Cole, 111 A.D.3d 1301, 974
N.Y.S.2d 709 (4th Dep’t 2013). As appellate counsel explained to
Petitioner, because the arguments raised on appeal relied on the
Fourth Department’s statutory power to review questions of fact,
and the New York Court of Appeals only may review questions of law,
appellate counsel did not seek leave to appeal.

1

Kozub admitted that Lindsay abused crack cocaine, and that some other
individuals who stayed at 238 West Utica also used crack cocaine.

-4-

Petitioner filed a pro se motion to vacate the judgment
pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 on
March 19, 2012, in the trial court. The motion was denied without
a hearing on December 17, 2012.2
Likewise, Petitioner’s pro se application for a writ of error
coram nobis was denied on March 21, 2014. People v. Cole, 115
A.D.3d 1274 (4th Dep’t), lv. denied, 23 N.Y.3d 1019, recons. denied,
23 N.Y.3d 1060 (2014).3
E.

The Federal Habeas Proceeding

Petitioner then timely instituted this action by filing a
petition on October 20, 2014. Respondent answered the petition and
filed a memorandum of law in opposition, along with the relevant
state court records. Before and after Respondent answered the
petition,

Petitioner

filed

a

slew

of

miscellaneous

motions,

including multiple motions for discovery and for appointment of
counsel.
For the reasons discussed below, the request for a writ of
habeas corpus is denied, the petition is dismissed, and the pending
motions are dismissed as without merit.
III. Discussion
2

All documents related to Petitioner’s CPL § 440.10 motion are attached as
Respondent’s Exhibit C (“Resp’t Ex. C.”) in the separately bound volume of state
court records submitted by Respondent in connection with his answer.
3

All documents related to Petitioner’s coram nobis motion, including the
briefs, the Trial Court’s order, and leave application, are attached as Resp’t
Ex. D.

-5-

A.

Failure of the Prosecutor to Disclose Favorable Evidence
(Ground One)

As his first ground for relief, Petitioner asserts that the
“[p]rosecutor failed to disclose evidence favorable to [him],”
namely, a “[v]ideotape . . . that show[s] [he] was not at the crime
at the time alleged crime took place. Videotape is in prosecutor’s
possession but never disclosed.” (Pet. at 7, ¶ 12(a)). Petitioner
is referring to the videotape footage from a surveillance camera
located at Main Street and Court Street, which Petitioner claims
would have his established defense—that he was sitting with friends
at Main and Court Streets at the time Kozub was robbed, and
therefore was not the perpetrator.
Respondent argues that Petitioner has procedurally defaulted
on this claim by failing to raise it on direct appeal “or, to the
extent that a CPL 440.10 motion was the appropriate vehicle,” by
failing to seek leave to appeal the denial of his CPL § 440.10
motion in the Fourth Department. (See Respondent’s Memorandum of
Law (“Resp’t Mem.”) at 4-5). What Respondent appears to be arguing
is that if the claim is considered a record-based claim that should
have been raised on direct appeal, then it is unexhausted, but must
be deemed exhausted and procedurally defaulted because Petitioner
no longer has any state remedies available to him. See Grey v.
Hoke,

933

F.2d

117,

120-21

(2d

Cir.

1991).

Alternatively,

Respondent appears to argue, if the claim is based on matters
dehors the record and properly was raised in his CPL § 440.10
-6-

motion, then the claim is unexhausted because he did not seek leave
to appeal the denial of that motion by the Trial Court; because he
could still apply for permission to file a late leave application
with the Fourth Department, the claim cannot be deemed exhausted
under controlling Circuit precedent. See Pesina v. Johnson,

913

F.2d 53, 54 (2d Cir. 1990) (per curiam).
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be

granted

unless

it

appears

that-(A)

the

applicant has

exhausted the remedies available in the courts of the State . . .
.”

28

U.S.C.

§

2254(b)(1)(A).

“To

fulfill

the

exhaustion

requirement, a petitioner must have presented the substance of his
federal claims ‘to the highest court of the pertinent state.’”
Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (quotation
omitted), cert. denied, 514 U.S. 1054 (1995). A petitioner can
fulfill the exhaustion requirement by means of a direct appeal or
a

collateral

motion,

so

long

as

he

“invok[es]

one

complete

round[,]” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), of the
state’s established appellate review process. See, e.g., Felder v.
Goord, 564 F. Supp.2d 201, 215 (S.D.N.Y. 2008) (“In order to comply
with 28 U.S.C. § 2254(c), a New York State petitioner for federal
habeas corpus who fails to raise a claim on direct appeal must
exhaust

all

available

post-conviction

-7-

remedies

under

[CPL]

§ 440.10.”) (citing Bacchi v. Senkowski, 884 F. Supp. 724, 730–31
(E.D.N.Y. 1995)).
Here, Petitioner did raise this issue in his CPL § 440.10
motion to vacate the judgment, stating that as a result of state
interference in denying him the appointment of “permanent” counsel
at critical stages of the proceeding, the Buffalo police destroyed
critical

exonerating

evidence

(i.e.,

the

surveillance

camera

videotape footage). In a decision and order dated December 20,
2012, the trial court denied the motion, finding that Petitioner
first was appointed counsel at his arraignment on August 17, 2010,
at his arraignment, and that he was “continuously represented by
counsel thereafter.” (CPL § 440.10 Order at 4). The trial court
also noted that Petitioner failed to offer any evidence that the
“prosecution ever possessed the video surveillance recording of the
crime scene of interfered in any way with respect to the defense
gaining access to said videotape.” (Id. at 5). In any event, the
trial court found, that because the claims forming the basis of the
alleged prosecutorial misconduct “are ones that appeared or could
have been made to appear on the face of the trial record, the
proper method to challenge such errors is by way of an appeal[.]”
(Id.

(citing

People

v.

Cooks,

67

N.Y.2d

100,

103

(1986)).

Petitioner subsequently filed an application for leave to appeal to
the Fourth Department, but his papers were returned to him because
he failed to include all necessary papers required by N.Y. Comp.

-8-

Code R. & Regs., tit. 22, § 1000.13(a)(5). (See Resp’t Ex. C).
Thus, it does not appear that Petitioner fully exhausted this
claim. However, the Court need not resolve the potentially complex
procedural default and exhaustion issues presented by this claim,
as it is easily resolved on the merits against Petitioner. See
Boddie v. New York State Div. of Parole, 285 F. Supp.2d 421, 428
(S.D.N.Y. 2003) (citation omitted).
1.

Factual Background of Claim

Petitioner indicates that on August 30, 2010, the attorney
assigned to his case, Shawn McDonald, Esq.

(“trial counsel”)

visited Petitioner in jail. However, the jail’s visitor record
submitted by Petitioner in connection with his post-judgment coram
nobis motion indicates that Attorney McDonald visited him on
September 1, 2010, from 3 p.m. to 3:40 p.m. (See Resp’t Ex. D).
Petitioner asserts that at their first meeting, which the record
indicates was on September 1st, not August 30th, he directed trial
counsel

to

immediately

obtain

a

court

order

to

secure

the

videocamera footage recorded by the surveillance camera at Main and
Court Streets on the morning of August 12, 2010. On September 2,
2010, trial counsel submitted a request pursuant to the Freedom of
Information Law (“FOIL”), see N.Y. Public Officers Law, Art. 6,
requesting a copy of the “[r]ecording of Buffalo street camera
located at Main and Court Street, for the date9s0 of 8/12/10,
starting at approximately 10:30 AM until 12:30 PM.” (See Resp’t

-9-

Ex.

C).

The

record

indicates

that

Captain

Mark

Antonio

(“Capt. Antonio”) of the Buffalo Police Department subsequently
advised trial counsel that the surveillance camera footage was no
longer available.
Petitioner further pursued the issue by filing his own FOIL
request on December 19, 2010, with the Buffalo Police Department.
By

letters

dated

January

3,

2011,

and

January

6,

2011,4

Capt. Antonio informed him that the footage from the surveillance
camera at Main and Court Streets was no longer available because
“the request [from Trial Counsel] came to [him] after September 2,
2010[,] and at that time [the Buffalo Police Department] only
preserved footage for a period of 15-18 days due to a lack of
memory

with

the

computers.”

(See

Resp’t

Ex.

C).

Petitioner

subsequently filed an appeal with the City of Buffalo Department of
Law. In a letter dated February 3, 2011, Petitioner’s FOIL appeal
was denied as moot because he had failed to show that the requested
records actually existed, a condition precedent to bringing a FOIL
appeal. (See Resp’t Ex. C).
Petitioner

apparently

sent

further

correspondence

to

Capt. Antonio, who responded in a letter dated October 27, 2011,
indicating that the department “only store[s] footage for a period
of 20 days.” (See Resp’t Ex. C).
4

The January 6th letter clarified what was apparently to be a typographical
error (the date indicated in the January 3rd letter was 3/12/2010 rather than
8/12/2010). (See Resp’t Ex. C).

-10-

Petitioner subsequently litigated the denial of his request
for the surveillance camera footage in his CPL § 440.10 motion, as
discussed above.
2.
As

a

Relevant Legal Principles
matter

of

due

process,

the

government

“has

a

constitutional duty to disclose favorable evidence to the accused
where

such

evidence

is

‘material’

either

to

guilt

or

to

punishment.” United States v. Coppa, 267 F.3d 132, 139 (2d Cir.
2001)

(quoting

Brady

v.

Maryland,

373

U.S.

83,

87

(1963)).

“Favorable evidence includes not only evidence that tends to
exculpate the accused, but also evidence that is useful to impeach
the credibility of a government witness.” Id. (citing Giglio v.
United States, 405 U.S. 150, 154 (1972)). Evidence is “material”
for Brady purposes if it “could reasonably [have been] taken to put
the whole case in such a different light as to undermine confidence
in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). To
prove a “true” Brady violation, a petitioner must establish the
following elements: (1) the willful or inadvertent suppression by
the government (2) of evidence that is favorable to the accused,
(3) the non-disclosure of which resulted in prejudice to the
accused. E.g., Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
3.

Application

In denying the CPL § 440.10 motion, the trial court found,
inter alia, that Petitioner had failed to demonstrate “suppression”

-11-

of the videotape, because he failed to offer any evidence that the
“prosecution ever possessed the video surveillance recording of the
crime scene [sic]5. . . .” (CPL § 440.10 Order at 5).

However,

“a

prosecutor can be held to have suppressed evidence within the
meaning of Brady even if the defendant has not requested such
evidence, and a prosecutor can ‘suppress’ evidence even if he has
acted in good faith and even if the evidence is ‘known only to
police investigators and not to the prosecutor,’” Coppa, 267 F.3d
at 140 (internal citations omitted; quoting Kyles, 514 U.S. at 438
(explaining that the government should actively seek Brady material
in its files and in the files of related agencies reasonably
expected to have possession of such information)). Although the
trial court misstated the law, the error was harmless because this
Court finds an independent basis to conclude that Petitioner has
failed to demonstrate “suppression” of the videotape.
The documents in the record indicate that the Buffalo Police
Department retained the surveillance videocamera footage for at
most 20 days (as indicated in Capt. Antonio’s letter), and possibly
only 15 to 18 days (according to the City’s Department of Law).
Twenty

days

September

1,

from
2010.

Thursday,
Trial

August

counsel’s

12,

2010,

letter

was

request

Wednesday,
was

dated

5

Petitioner does not allege that the surveillance camera from which he
sought footage was located at the crime scene at 178 West Utica Street. Rather,
the camera in question was located at Main and Court Streets, where Petitioner
testified he was hanging out with friends at the time of the robbery. (E.g.,
Trial Transcript at 123, 128-20).

-12-

September 2, 2010, which was 21 days after the date of the
incident. Therefore, the 20 days for which footage is retained had
expired the day before trial counsel mailed his letter to the
Buffalo Police Department. There is no suggestion that, at that
point

in

time,

either

the

Buffalo

Police

Department

or

the

prosecution had actual or constructive knowledge that Petitioner
was claiming that he was at Main and Court Streets at the time of
the crime involving Kozub, or Petitioner was going to assert that
the footage from the surveillance videocamera at that location
would establish that he was not at the crime scene at the relevant
time. Assuming arguendo the police had knowledge of the videocamera
footage

simply

because

it

was

a

camera

operated

by

their

department, Petitioner did not establish that the police had actual
or constructive knowledge that the videocamera footage for that day
and location was in any way relevant to the investigation into
Petitioner’s involvement in the Kozub robbery. The prosecution
likewise

had

no

actual

or

constructive

knowledge

that

the

videocamera footage for that day and location was in any way
relevant to the investigation into Petitioner’s involvement in the
Kozub robbery, let alone that, according to Petitioner, it was
potentially exculpatory. Therefore, Petitioner has not demonstrated
that the prosecution “suppressed” the videocamera footage for
purposes of the Brady analysis. See, e.g., Shakur v. United States,
32 F. Supp.2d 651, 673 (S.D.N.Y. 1999) (defendant’s claim that the

-13-

government violated its Brady obligations of disclosure failed
because (1) the prosecution team had no knowledge, actual or
imputed, of [the police officer] or his undercover reports, and so,
not

possessing

that

information,

cannot

be

faulted

for

not

disclosing it”).
To the extent the petition can be construed as asserting a
claim under California v. Trombetta, 467 U.S. 479, 488 (1984), and
Arizona v. Youngblood, 488 U.S. 51, 58 (1988), such a claim is
without merit. In Trombetta, the Supreme Court held that any duty
of a state to preserve evidence “must be limited to evidence that
might be expected to play a significant role in the suspect’s
defense.” 467 U.S. at 488. Even assuming arguendo that the police
and the prosecution had no reason to expect that the surveillance
camera footage from a location other than the location where the
robbery occurred would be relevant to Petitioner’s defense, “unless
a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute
a denial of due process of law.” Youngblood,

488 U.S. at 58.

Petitioner has not shown bad faith on the part of the Buffalo
Police

Department

in

failing

to

retain

the

video

footage.

See Trombetta, 467 U.S. at 488 (noting no due process violation
where failure to preserve evidence was in good faith and in accord
with normal practice).

-14-

B.

Ineffective Assistance of Trial Counsel (Ground Two)

As ground two of the petition, Petitioner asserts a claim of
ineffective assistance of trial counsel, but his allegations are
virtually

incomprehensible;

he

mainly

seems

to

reference

his

previous filings in state court and he does not set forth any nonconclusory facts in support of this ground for relief. “It is
well-established that ‘[c]onclusory allegations . . . not supported
by a statement of specific facts do not warrant habeas relief.’”
Webb v. Griffin, No. 10-CV-0585(MAT), 2011 WL 3738974, at *8
(W.D.N.Y. Aug. 24, 2011) (quoting James v. Borg, 24 F.3d 20, 26
(9th Cir.) (citation omitted), cert. denied, 513 U.S. 935 (1994);
citing United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir.
1994)). The Court “is not required to fashion [Petitioner’s]
arguments for him where his allegations are merely conclusory in
nature and without supporting factual averments.” Fisher, 38 F.3d
at 1147.
Moreover, Petitioner concedes that he did not raise his
ineffective assistance of trial counsel claim on direct appeal—an
omission for which he blames appellate counsel—or in a CPL § 440.10
motion

to

vacate.

Therefore,

it

appears

that

ground

two

is

unexhausted.
Petitioner

states

that

he

raised

ineffective

assistance

counsel trial counsel claims in his coram nobis application, but in
that pleading, he only asserted ineffective assistance of trial

-15-

counsel as the basis for finding appellate counsel ineffective.
According to the prevailing Second Circuit precedent on this issue,
a coram nobis motion is the incorrect procedural vehicle for
exhausting a claim of trial counsel’s ineffectiveness. See Turner
v. Artuz, 262 F.3d 118, 121 (2d Cir. 2001) (“[A] petitioner cannot
show exhaustion unless he has ‘fairly presented to an appropriate
state court the same federal constitutional claim that he now urges
upon the federal courts[,]’” but “[t]he only constitutional claim
Turner was permitted to raise in seeking a writ of error coram
nobis was ineffective assistance of appellate counsel, a claim that
is distinct from [the prosecutorial misconduct] claims . . . in
procedural

terms

constitutional

under

sources.”)

state

law

(quotation

and

in

omitted;

their

federal

emphasis

in

original); accord, e.g., Rush v. Lempke, 500 F. App’x 12, 15
(2d Cir. 2012) (summary order).
To the extent that Plaintiff’s ineffective assistance of trial
counsel claims are matters of record that could have been raised on
direct appeal, they must be deemed exhausted and procedurally
defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)
(when a “petitioner failed to exhaust state remedies and the court
to which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims
procedurally barred,” federal habeas courts also must deem the
claim procedurally defaulted); Sweet v. Bennett, 353 F.3d 135,

-16-

139-40 (2d Cir. 2003) (habeas petitioner’s claim that trial counsel
rendered ineffective assistance in failing to object when trial
court instructed jury on second degree murder and first degree
manslaughter in the conjunctive, rather than in the alternative,
was procedurally defaulted, since petitioner failed to raise claim
on direct appeal, as required under New York law; counsel’s alleged
error was particularly well-established in the trial record). The
on-the-record ineffective assistance claims must be dismissed as
subject to an unexcused procedural default, because Petitioner
cannot show cause or prejudice, or that failure to consider the
claims will result in a fundamental miscarriage of justice. See
Coleman, 501 U.S. at 748. Petitioner contends that appellate
counsel’s ineffectiveness in failing to assert the on-the-record
claims is “cause” to excuse the procedural default, but Petitioner
does not have a meritorious claim of ineffective assistance of
appellate counsel, as discussed infra. This forecloses him from
showing cause. His inability to show cause obviates the need to
consider prejudice. See Stepney v. Lopes.
As for the miscarriage of justice exception, a petitioner
needs to show that he is “factually” as opposed to “legally”
innocent. See Bousley v. United States, 523 U.S. 614, 623 (1998).
To be “credible,” a claim of actual innocence must be supported by
“new

reliable

evidence–whether

it

be

exculpatory

scientific

evidence, trustworthy eyewitness accounts, or critical physical

-17-

evidence–that was not presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995) (emphasis supplied). The Court recognizes that
Petitioner maintains his innocence based on the surveillance camera
footage

of

Main

and

Court

Streets

which

the

Buffalo

Police

Department discarded (due to computer memory storage limitations)
prior

to

receiving

Trial

Counsel’s

FOIL

request.

However,

Petitioner was aware of this evidence at the time of trial, and
therefore

it

cannot

be

considered

“new.”

Furthermore,

its

exculpatory value is entirely speculative as Petitioner has not
given any indication as to where the camera was aimed or whether
Petitioner in fact was within the area captured by the camera.
Finally, the Court has found that, prior to the Buffalo Police
Department’s destruction of the camera footage, the prosecution did
not have actual or constructive notice that the footage from the
camera at Main and Court Streets on August 12, 2010, was in any way
relevant to the incident involving Kozub, much less favorable to
Plaintiff.
To the extent that Petitioner’s ineffective assistance of
trial counsel claims are off-the-record matters that are properly
raised in a collateral motion to vacate pursuant to CPL § 440.10,
they are unexhausted, because Petitioner could seek permission to
file a late appeal with regard to the denial of his CPL § 440.10
motion. See Pesina, Alternatively, he could file another CPL
§ 440.10 motion, since “[t]here is no time limit on the filing of

-18-

CPL 440.10 motions[.]” People v. Jackson, 78 N.Y.2d 638, 646
(1991).

Because

the

unexhausted,

off-the-record

ineffective

assistance claims are entirely conclusory, the Court elects to
dismiss them pursuant to 28 U.S.C. § 2254(b)(2). See Webb, 2011 WL
3738974, at *9 (“[I]nvocation of § 2254(b)(2) is particularly
proper here, in light of Petitioner’s failure to set forth any
comprehensible allegations in support of his contention that he was
denied the effective assistance counsel.”) (citations omitted);
Hawkins v. Kirkpatrick, No. 11-CV-00172 MAT, 2012 WL 5499631, at *8
(W.D.N.Y. Nov. 13, 2012) (“Because the Court finds the claim to be
wholly meritless, it has the discretion to dismiss the petition
notwithstanding

Petitioner’s

failure

to

exhaust.”)

(citing

28 U.S.C. § 2254(b)(2); footnote omitted).
C.

Ineffective
Three)

Assistance

of

Appellate

Counsel (Ground

As his third ground for relief, Petitioner asserts that
appellate counsel was ineffective. Petitioner’s allegations on this
point again are difficult to comprehend, but the Court will presume
that Petitioner

intends to re-assert the claims of ineffective

assistance of appellate counsel that he raised in his motion for a
writ of error coram nobis. There, Petitioner faulted appellate
counsel for declining to argue that trial counsel was ineffective
for (1) failing to move to dismiss the indictment on the ground
that the prosecution did not indict him within 45 days; (2) failing
to preserve for appellate review his challenge to the sufficiency
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of the evidence; (3) failing to timely request the videotape
footage from the surveillance camera at Main and Court Streets;
(4) failing to investigate the case thoroughly and familiarize
himself with the record; (5) failing to secure alibi witnesses;
(6) failing to ensure that the trial court issued a written ruling
on

every

aspect

of

the

defense’s

pre-trial

omnibus

motion;

(7) failing to object to prosecutorial misconduct based on the
alleged withholding of the victim’s arrest record; and (8) failing
to argue that the indictment was defective because the victim
perjured herself before the grand jury. The Fourth Department
summarily denied Petitioner’s

application for coram nobis relief,

and his requests for leave to appeal and reconsideration were
denied by the Court of Appeals.
1.

Legal Principles

A lawyer’s representation is constitutionally deficient where
it (1) falls “below an objective standard of reasonableness;” and
(2) there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). Strickland’s two-pronged standard also applies to appellate
counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (citation
omitted), cert. denied, 513 U.S. 820 (1994). It is not sufficient
for a petitioner to show that appellate counsel omitted a colorable
argument. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, he

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must demonstrate that appellate counsel “omitted significant and
obvious

issues

while

pursuing

issues

that

were

clearly

and

significantly weaker.” Clark v. Stinson, 214 F.3d 315, 322 (2d Cir.
2000).
2.

Alleged Errors by Trial Counsel
Counsel Should Have Asserted
a.

that Appellate

Failure to Move to Dismiss the Indictment

Petitioner argues that appellate counsel should have argued
that trial counsel was ineffective due to his failure to move to
dismiss the indictment pursuant to CPL 190.80 on the basis that the
prosecution did not indict him within 45 days. “CPL § 190.80
provides for release from jail at the expiration of 45 days
‘without the occurrence of any grand jury action . . . .’” People
v. Hosler, 543 N.Y.S.2d 631, 631 (Sup. Ct. 1989) (quoting N.Y.
Crim. Proc. Law § 190.80).

CPL § 190.80 simply does not provide

for the dismissal of the indictment in the event that no grand jury
action is taken within 45 days.

Even if trial counsel had made the

motion as requested by Petitioner, the trial court could not have
granted the relief he sought, i.e., dismissal of the indictment.
Trial counsel’s failure to make such a motion was not deficient
performance; nor did it prejudice Petitioner. Appellate counsel was
not ineffective in declining to make an argument on appeal that had
no chance of success.

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b.

Failure
to
Argument

Preserve

Legal

Insufficiency

Petitioner argues trial counsel was ineffective due to his
failure to preserve, at trial, a challenge to the legal sufficiency
of the evidence. On direct appeal, appellate counsel argued both
that the verdict was against the weight of the evidence, and that
the evidence was legally insufficient. Appellate counsel also
suggested that if the Fourth Department declined to reach the legal
insufficiency issue, then it should deem trial counsel ineffective
due to his failure to make a timely trial order of dismissal to
preserve the claim for review. Thus, appellate counsel did assert
the claim that Petitioner contends was omitted. This claim of
appellate counsel’s ineffectiveness therefore is contradicted by
the record.
Moreover, the Fourth Department correctly held that “inasmuch
as

[Petitioner]’s

challenge

to

the

legal

sufficiency

of

the

evidence is without merit, there is also no merit to his further
contention that he was denied effective assistance of counsel
because defense counsel failed to preserve that challenge for our
review[.]” Cole, 111 A.D.3d at 1302 (citing People v. Stephenson,
104 A.D.3d 1277, 1279 (4th Dep’t 2013) (holding that defendant’s
contention that defense counsel was ineffective for failing to
preserve for our review his challenge to the legal sufficiency of
the evidence was without merit because the court “reviewed the
sufficiency of the evidence in determining whether the verdict is
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against the weight of the evidence,” and therefore “defendant was
not

prejudiced

by

defense

counsel’s

failure

to

preserve

the

sufficiency contention”); other citations omitted). This was a
correct application of federal law.
c.

Failure to Timely Request Videotape Footage

Petitioner contends that trial counsel was ineffective in
failing to submit a timely request for the videotape footage from
the surveillance camera at Main and Court Streets. As appellate
counsel explained to Petitioner in his April 15, 2013 letter, there
was “no document in evidence which reveal[ed] when [Petitioner]
requested

that

camera

footage

from

defense

counsel.”

(Resp’t

Ex. D). Because this claim would have relied on facts outside the
record, appellate counsel could not have properly raised it on
direct

appeal.

Appellate

counsel

did

not

render

ineffective

assistance in declining to raise a claim that the Fourth Department
would have rejected as dehors the record and properly raised, if at
all, in a CPL § 440.10 motion to vacate.
d.

Failure to Investigate

Petitioner accuses trial counsel of failing to investigate his
case, and failing to familiarize himself with “the record.” These
conclusory

allegations

do

demonstrate

ineffective

assistance,

because Petitioner has failed to show how the outcome of his trial
would have been different but for counsel’s unspecified failings.
Therefore, he cannot demonstrate prejudice. See, e.g., Maddox v.

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Lord, 818 F.2d 1058, 1062 (2d Cir. 1987) (“[P]etitioner contends
that her trial counsel unreasonably failed to investigate the
prosecution’s forensic evidence. Even assuming the failure to be
unreasonable, petitioner has not met the second prong of the
Strickland test because she has not shown that such alleged failure
prejudiced her defense.”). Appellate counsel cannot be faulted for
failing to raise a meritless claim of ineffective assistance of
trial counsel and, furthermore, the omission did not prejudice
Petitioner because the claim had no chance of success of appeal.
e.

Failing to Secure Alibi Witnesses

Petitioner contends that trial counsel erroneously failed to
secure alibi witnesses. The Court cannot discern that Petitioner
has ever identified any individuals who would have been willing or
able to provide alibi testimony for him. Therefore, this claim is
based

on

pure

conjecture.

Furthermore,

as

appellate

counsel

explained to Petitioner in his April 15, 2013 letter, there was
nothing in the record concerning any refusal by trial counsel to
secure alibi witnesses on Petitioner’s behalf. Therefore, this was
not an issue that appellate counsel properly could raise on direct
appeal. Appellate counsel was not ineffective for declining to
raise a claim that the Fourth Department would have rejected as
dehors the record and properly raised, if at all, in a CPL § 440.10
motion to vacate.

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f.

Failure to Demand Ruling on All Aspects of
Omnibus Motion

Petitioner faults trial counsel for not objecting when the
trial court did not rule on all matters within his omnibus motion.6
Again, this claim is contradicted by the record. As appellate
counsel explained to Petitioner in a letter dated April 15, 2013,
the trial judge “did rule on all relevant matters particular to
[his] particular case. A court can only rule on issues or hearings
that are relevant to the particular case, regardless of what is
contained in the Omnibus Motion.” (Resp’t Ex. D). Because trial
counsel was not ineffective in his handling of the omnibus motion,
appellate counsel did not err in declining to assert such a claim
on direct appeal.
g.

Failure to Object to Non-Disclosure of Alleged
Brady Material

Petitioner contends that the prosecutor committed misconduct
by allegedly withholding the victim’s arrest record from the
defense. As appellate counsel explained to Petitioner in his April
15, 2013 letter, Kozub’s arrest record was not “withheld” from the
defense;

rather,

the

prosecution

did

not

introduce

it

into

evidence. Therefore, the arrest record was not part of the record

6

CPL Article 255 lays out the general requirement of the pretrial omnibus
motion and the specific rules underlying the requirement that pretrial motions
should be combined in a single set of motion papers (i.e., an omnibus motion) and
heard by a single judge at an early stage in the proceedings. See § 8:1.The
omnibus motion, 7 N.Y. Prac., New York Pretrial Criminal Procedure § 8:1
(2d ed.).

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on appeal, and trial counsel’s handling of the arrest record was
not an issue that appellate counsel properly could raise on direct
appeal. Appellate counsel was not ineffective for declining to
raise a claim that the Fourth Department would have rejected as
dehors the record and properly raised, if at all, in a CPL § 440.10
motion to vacate.
h.

Failure to Argue Defective Indictment

Petitioner contends that trial counsel erroneously failed to
argue that the indictment was defective because the victim, Kozub,
perjured herself before the grand jury because she testified
different there and at trial concerning which eye (left or right)
was punched by Petitioner. “Merely pointing out inconsistencies is
insufficient

to

support

an

allegation

of

perjury.”

Ellis

v.

McGinnis, No. 00-CV-3246(FB), 2001 WL 726983, at *4 (E.D.N.Y.
June 28, 2001) (citing United States v. Bortnovsky, 879 F.2d 30, 33
(2d

Cir.

1989)

(presentation

of

a

witness

who

recants

or

contradicts prior testimony should not be confused with perjury);
United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995) (even a
direct

conflict

in

testimony

does

not

in

itself

constitute

perjury)). Petitioner has not demonstrated that Kozub perjured
herself before the grand jury or at trial. See Ellis, 2001 WL
726983, at *4 (finding that habeas petitioner could not demonstrate
perjury by prosecution witness; “[a]t best, [witness]’s testimony
at the . . . re-trial appears confused and inconsistent. Indeed,

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his testimony differs on direct and re-direct at that trial—on
direct he testified that there were two guns and on redirect he
said there was only one set of sparks”).

Appellate counsel was not

ineffective in failing to assert a claim that trial counsel was
ineffective in failing to make a meritless motion to dismiss the
indictment.
IV.

Pending Motions
A.

Discovery

Under Rule 6 of the Rules Governing Section 2254 Cases in the
United States District Courts, discovery is available only by leave
of the court. A petitioner must support the request with reasons
demonstrating

“good

cause”

for

invoking

discovery

mechanisms,

namely, “specific allegations” that give the court “reason to
believe that the petitioner may, if the facts are fully developed,
be able to demonstrate that he is . . . entitled to relief.” Bracy
v.

Gramley,

520

U.S.

899,

904

(1997)

(quotation

omitted).

Petitioner’s pleadings do not approach the showing necessary under
Bracy. The Motions to Compel Discovery (Dkt ##69 & 71) are denied
with prejudice.
B.
In

Appointment of Counsel
determining

whether

it

should

appoint

counsel

under

28 U.S.C. § 1915(d) for indigents in civil cases, such as petitions
for a writ of habeas corpus under 28 U.S.C. § 2254, the court first
should “determine whether the indigent’s position seems likely to
be of substance.” Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.

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1997). Petitioner cannot meet this threshold showing, given that
the Court has found that none of his claims warrant habeas relief.
Petitioner’s Motions to Appoint Counsel (Dkt ##54 & 70) are denied
with prejudice.
C.

Miscellaneous and Other Motions

Petitioner’s Motions to Suppress Evidence (Dkt ##11 & 51) and
Motions for Miscellaneous Relief (Dkt ##13, 14, 15, 16, 17, 18, 19,
25, 45, 48, 55, 56, 58, & 73)Dkt ##54 & 70 appear to relate either
to Petitioner’s requests for appointment of counsel or his demands
that Respondent produce documents or respond to interrogatories.
For the same reasons set forth in Sections A and B, supra, these
motions are denied with prejudice.
CONCLUSION
For the reasons stated above, the Petition (Dkt #1) for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
Petition is dismissed. Petitioner’s pending motions (Dkt ##11, 13,
14, 15, 16, 17, 18, 19, 25, 45, 48, 50, 51, 54, 55, 56, 58, 69, 70,
71, & 73) are denied with prejudice. Because Petitioner has failed
to make a substantial showing of a denial of a constitutional
right, the Court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 29, 2018
Rochester, New York.50,
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