Hunter v. Chappius
DECISION AND ORDER denying the amended petition consistent with this Decision and Order and dismissing the case. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.). Signed by Hon. Michael A. Telesca on 11/15/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER D. HUNTER,
DECISION AND ORDER
-vsPAUL CHAPPIUS, JR.,
Pro se petitioner Christopher D. Hunter (“petitioner” or
“Hunter”) seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on the basis that he is being unconstitutionally detained in
respondent Paul Chappius, Jr.’s (“respondent”) custody. Petitioner
is incarcerated pursuant to a judgment entered against him on
December 17, 2007, in Monroe County Court of New York State
(“Monroe County Court” or the “trial court”), following a jury
verdict convicting him of murder in the second degree. Petitioner
was sentenced to an indeterminate prison term of 25 years to life.
Petitioner asserts that the following claims in his petition:
(1) the prosecutor’s remarks in summation regarding mercy deprived
him of a fair trial; (2) the trial court erred when it told the
jury that mercy was an element of the defense of extreme emotional
disturbance; (3) petitioner was deprived of the right to be present
ineffective for not objecting to the prosecutor’s summation remarks
and for failing to provide notice of a psychiatric defense; and
(5) appellate counsel was ineffective for failing to argue that
trial counsel was ineffective
for failing to call an expert to
support petitioner’s extreme emotional disturbance defense.
the reasons discussed below, the Court finds that petitioner has
not shown he is entitled to federal habeas relief.
Factual Background and Procedural History
The Underlying Crime
Petitioner met Melissa Hammond in 2000; they began a romantic
relationship and ultimately married in 2005 and had three children.
Between 2001 and 2006, petitioner was twice convicted of driving
Petitioner served nine months in jail for his
second DWI offense, and was released on September 12, 2006.
in jail, petitioner came to believe that Ms. Hammond was seeing
He sent her several letters in which he discussed his
jealousy, and these letters were admitted into evidence at trial.
Sometime between petitioner’s release from prison and October 5,
2006, Ms. Hammond and her children left the marital home and moved
in with Lisa Kildorf, a coworker of Ms. Hammond’s at a company
coworker, when she spotted petitioner.
Ms. Hammond fled, while
Mr. Whisonant ordered petitioner to leave the premises. Petitioner
petitioner accused Mr. Whisonant of engaging in sexual relations
with Ms. Hammond.
The two men exited the building and walked to
petitioner’s car, where they had a fight.
Petitioner tried to
reach inside his trunk and Mr. Whisonant picked him up and threw
him to the ground.
Petitioner then drove away, and Mr. Whisonant
called the police.
Ms. Hammond subsequently obtained an order of
protection against petitioner.
Petitioner testified at trial that he was drinking heavily
during this time period and that, on October 16, 2006, he tried and
failed to end his own life.
Petitioner moved in with his mother
and found a job, but was laid off on November 16, 2006.
On November 17, 2006, petitioner wrote a letter to his mother
in which he stated, among other things: “I feel like I have no
choice but to take her life”; “I swear I thought me and her was
going to be together forever”; “I can’t live with the fact of
another man with my wife. So I did what I had to do”; “I know
you’ll never forgive me for what I’m gonna do, but I couldn’t live
like this”; and “so just letting you thank you [sic] for trying,
but my life is over and so is hers. Till death do us part.”
Petitioner testified at trial that he was drunk when he authored
At roughly 4:00 p.m. on November 18, 2006, Robert Moore, Jr.
was driving past petitioner’s mother’s house when he saw a man and
a woman, whom he did not recognize, in a yard.
Mr. Moore saw the
man, whom he would later identify as petitioner, throw the woman to
the ground and stab her in the torso.
The woman screamed and
Mr. Moore yelled repeatedly for petitioner to stop.
Mr. Moore did
not have a charged cell phone, so he called police from a pay
Mr. Moore saw petitioner stab the woman in her body and
neck, ultimately leaving the knife in her neck, where it made a
pulsating motion and eventually stopped moving.
removed the knife from the woman’s neck, leaned close to her, and
said something to her that Mr. Moore could not hear.
Rochester Police Department (“RPD”) Sergeant Gustavo Venosa
reported to the scene of the stabbing.
At the scene, Sergeant
Venosa saw petitioner, who had smudged blood on his shirt and blood
dripping from his right hand. Petitioner did not flee, but instead
held his hands up and allowed Sergeant Venosa to secure them.
petitioner responded “that was my wife,” at which point Sergeant
Venosa saw Ms. Hammond’s body lying approximately 50 feet away.
Sergeant Venosa called an ambulance.
Emergency medical personnel
arrived and cut away Ms. Hammond’s clothing, revealing multiple
puncture wounds to her neck and torso.
Sergeant Venosa found a
large knife lying five or six feet from Ms. Hammond’s body.
At trial, petitioner testified that he had awoken at 7:00 a.m.
on November 18, 2006, still drunk from the previous evening.
further claimed that he had been drunk and eaten no food for three
According to petitioner, he was using a knife to repair a
window in his car when Ms. Hammond arrived at his mother’s house.
Petitioner claimed that, as she was leaving, he asked Ms. Hammond
who she was staying with and she told him that she was staying with
At that point, petitioner testified, he “lost it,”
“went into a rage,” “flipped out,” “blanked out,” and “snapped.” He
stated that he did not recall stabbing Ms. Hammond, but did recall
her asking him “why did you do this to me?”
He also recalled
having thrown the knife into the street.
Sergeant Venosa took petitioner to the hospital to obtain
stitches for his hand.
Sergeant Venosa testified that he did not
believe that petitioner was intoxicated because he did not smell of
alcohol, walk off balance, or slur his speech.
At the hospital,
Investigator Galetta also testified that he did not
notice any signs that petitioner was intoxicated.
petitioner told Investigator Galetta that he was “looking at 25"
and that he had “cried . . . a river every day” regarding his
After the hospital, Sergeant Venosa drove petitioner to the
Sergeant Venosa if he was “the only one that has ever done anything
this stupid before?”
Sergeant Venosa did not respond to this
At the public safety building, petitioner waived his Miranda
rights and agreed to speak with the police.
interviewed petitioner for 45 minutes, after which petitioner
agreed to provide a written statement.
Petitioner reviewed and
signed the written statement, which he told the officers was
truthful and accurate.
The statement, which was read into the
record at trial, indicated that Ms. Hammond had come to drop off
together, to which Ms. Hammond had replied “we’ll see,” and that
petitioner “snapped” because he “just couldn’t let her go.”
statement further indicated that everything had gone blank for a
moment, then Ms. Hammond was on the ground asking petitioner why he
had done what he did, whereupon petitioner laid down on top of her
petitioner had seen blood and cuts and knew that he had plunged a
knife into Ms. Hammond.
building, RPD Officer Tomesha Angelo investigated the scene of the
stabbing and spoke to petitioner’s mother.
gave Officer Angelo the letter petitioner had written the previous
night and showed Officer Angelo petitioner’s room.
testified at trial that she did not recall seeing any signs of
drinking alcohol in petitioner’s room or elsewhere in his mother’s
Deputy Medical Examiner Dr. Scott LaPoint performed an autopsy
on Ms. Hammond.
Dr. LaPoint testified at trial that Ms. Hammond
had 59 stab wounds on her body, as well as some incise wounds
(wounds that are wider than they are deep).
All the wounds were
Ms. Hammond’s brother-in-law, Calvin Miller, Jr., identified at
trial as a filet knife belonging to petitioner.
further testified that Ms. Hammond had sustained injuries to her
heart, both lungs, her liver, one kidney, her stomach, her colon,
her esophagus, and her genitals.
One cut had severed her left ear.
bleeding caused by the stab wounds, any number of which could have
individually caused her death.
A Monroe County Grand Jury charged petitioner with seconddegree intentional murder.
Prior to petitioner’s trial, the
prosecution sought a ruling, pursuant to People v. Sandoval,
34 N.Y. 2d 371 (1974), and People v. Molineux, 168 N.Y. 264 (1901),
permitting the use at trial evidence of petitioner’s five prior
misdemeanor and felony convictions and six letters that he had
written to his wife.
Petitioner’s trial counsel, Michael Doran,
Esq. (“trial counsel”) agreed on the record to a proceeding whereby
the trial court would render a decision on the parties’ written
submissions, rather than holding a hearing.
Prior to opening
statements, the trial court called the prosecutor and defense
counsel to the bench to apprise them of its Sandoval and Molineux
rulings; petitioner was not present at this bench conference.
trial court thereafter, in petitioner’s presence, announced the
substance of its rulings in open court.
Trial, Verdict, and Sentencing
Petitioner’s jury trial commenced on October 23, 2007.
October 30, 2007, the jury found petitioner guilty of second-degree
murder. On December 17, 2007, the trial court sentenced petitioner
to an indeterminate prison term of 25 years to life.
Post-conviction Motion to Vacate
Prior to perfecting his direct appeal, petitioner moved pro se
to vacate the judgment on the ground that his trial counsel
provided ineffective assistance.
In particular, petitioner argued
that trial counsel was ineffective for having failed to file a
notice of intent to present a psychiatric defense pursuant to
New York Criminal Procedure Law § 250.10.
The Monroe County Court
demonstrate the absence of a strategic reason for counsel’s failure
testimony is not required to prove the defense of extreme emotional
There is no indication in the record that petitioner
sought leave to appeal this decision.
Petitioner appealed his conviction to the Appellate Division,
Fourth Department (the “Appellate Division”), arguing that (1) on
petitioner no more mercy than he had shown his wife, (2) the trial
court erred when, in overruling defense counsel’s objection to that
remark, it stated that mercy was an element of the defense of
extreme emotional disturbance, and (3) petitioner was deprived of
his statutory right to be present at a hearing on the prosecution’s
pre-trial Sandoval and Molineux motions.
Petitioner also filed a
prosecutor’s summation remarks deprived him of a fair trial, due
process, and the right of confrontation, (2) trial counsel was
summation remarks, and (3) his constitutional rights were impaired
by the lack of a hearing on the prosecution’s pre-trial motions.
On March 28, 2014, the Appellate Division unanimously affirmed
See People v. Hunter, 115 A.D.3d 1330
response to trial counsel’s summation and that, in any event, they
were not so egregious as to deprive petitioner of a fair trial.
The Appellate Division further found that, although the trial court
had erroneously stated that mercy was an element of the defense of
statement in its instructions to the jury, and properly stated the
statutory elements of the defense.
With respect to petitioner’s claim that he had been denied the
right to be present during a material stage of trial, the Appellate
Division explained that defense counsel had agreed, on the record,
that the trial court would decide the admissibility issues on
petitioner had the opportunity to contribute to defense counsel’s
written submission and that his physical presence was not required
The Appellate Division expressly stated that it had
review petitioner’s pro se contentions at that they lacked merit.
Petitioner sought leave to appeal to the New York Court of
Appeals (the “Court of Appeals”) with respect to all of the issues
raised on direct appeal.
The Court of Appeals denied petitioner’s
request on July 7, 2014.
The Instant Petition
Petitioner commenced the instant action on July 20, 2015.
his petition, he contends that (1) the prosecutor’s remarks in
summation regarding mercy deprived him of a fair trial; (2) the
trial court erred when it told the jury that mercy was an element
deprived him of a fair trial; (3) he was deprived of the right to
be present at all material stages of his trial; (4) trial counsel
was ineffective for not objecting to the prosecutor’s summation
remarks and for failing to provide notice of a psychiatric defense;
and (5) appellate counsel was ineffective for failing to argue that
trial counsel was ineffective for failing to call an expert to
support petitioner’s extreme emotional disturbance defense.
In his response to the petition, respondent contended that
subsequently requested that the matter be stayed to permit him an
opportunity to return to state court and fully exhaust his claims.
The Court granted petitioner’s request on September 19, 2016.
State Court Collateral Proceedings
On November 10, 2016, while this matter was stayed, petitioner
filed a motion for a writ of error coram nobis in the Appellate
Division, arguing that appellate counsel was ineffective for having
failed to argue that trial counsel was ineffective for having
failed to file notice pursuant to § 250.10.
In connection with his
appellate counsel, William G. Pixley, Esq. (“appellate counsel”)
explaining that he did not make this argument on direct appeal
because the “real question” was whether trial counsel failed to
explore the possibility of retaining a psychiatric expert due to
budgetary concerns, and the evidence needed to establish this claim
was not in the record.
The Appellate Division summarily denied petitioner’s coram
nobis motion on December 23, 2016.
Petitioner sought leave to
appeal to the Court of Appeals, which denied his application on
April 18, 2017.
Petitioner subsequently filed an amended petition
in this Court, raising the same claims set forth in his initial
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
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).
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)).
The Prosecutor’s Summation Remarks Regarding Mercy
Petitioner contends that the prosecutor’s summation remarks
regarding mercy deprived him of a fair trial.
petitioner takes issue with the prosecutor’s statement that the
jury should show petitioner no more mercy than petitioner showed
Ms. Hammond. Petitioner contends that this statement was “patently
prosecutorial misconduct on a writ of habeas corpus is ‘the narrow
one of due process, and not the broad exercise of supervisory
Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
question . . . is whether the prosecutorial remarks were so
prejudicial that they rendered the trial in question fundamentally
Id. (internal quotation omitted).
summation are permissible if they constitute a fair comment on the
evidence at trial and reasonable inference therefrom, or a fair
response to remarks made by the defense counsel during summation.”
(internal quotation omitted).
Here, the Appellate Division found, and the Court agrees, that
the prosecutor’s remarks about mercy were “a fair response to
defense counsel’s summation.”
Hunter, 115 A.D.3d at 1331.
summation, defense counsel had argued extensively that petitioner’s
specifically asked the jury “[a]re we tough and cold, or can we see
in fellow human beings those frailties that sometimes we need to
that allow a person to become so frazzled, so frenzied, that we
could do this to someone else?”
Defense counsel further described
petitioner as “a man with all the weight of the world on his
shoulder[s]” and “a man beyond human endurance.”
counsel did not specifically use the word “mercy,” his summation
remarks plainly encouraged the jury to feel sympathy for petitioner
and his circumstances, rather than acting “tough” or “cold.”
prosecutor’s remarks were directly responsive to defense counsel’s
Accordingly, the Court cannot find that the
contrary to, or an unreasonable application of, established federal
The Trial Court’s Erroneous Statement
Trial counsel objected to the prosecutor’s summation remarks
erroneously stated that “mercy” was an element of an extreme
emotional disturbance defense, but subsequently corrected the error
while instructing the jury.
Petitioner argues that the trial
court’s incorrect statement resulted in an unfair trial, because it
emboldened the prosecution to improperly argue that the jury should
not “cut [petitioner] a break” when he had not done so for
Petitioner’s argument is without merit.
With respect to the
trial court’s misstatement, an isolated error later corrected by
the trial court does not constitute a due process violation.
e.g., Baker v. Greene, 2010 WL 3504783, at *5 (W.D.N.Y. Sept. 2,
2010) (habeas relief not warranted where trial court said “this
defendant” instead of “the shooter,” but immediately corrected
itself); Freeman v. United States, 2005 WL 1498289, at *6 (E.D.N.Y.
June 17, 2005) (trial court’s misstatement that petitioner had
pleaded “not innocent,” which was subsequently corrected, did not
warrant habeas relief).
“[J]uries are presumed to follow their
instructions,” Richardson v. Marsh, 481 U.S. 200, 211 (1987), and
the jurors here were properly instructed on the elements of a
defense of extreme emotional disturbance.
Petitioner has not
demonstrated that the trial court’s isolated misstatement entitles
him to habeas relief.
Petitioner’s argument that the trial court’s misstatement
emboldened the prosecutor fairs no better.
The prosecutor’s statement that the jury should not
As discussed above,
directly responsive to defense counsel’s summation.
Presence at Material Stages of Trial
violated because he was not present at the bench conference where
applications under Sandoval and Molineux.
Petitioner argues that
he had a statutory right to be present and that he had personal
knowledge of relevant factual matters.
Petitioner’s argument is without merit.
First, to the extent
that it is based on New York statutory requirements, it is not
cognizable on federal habeas review. See, e.g., Saracina v. Artus,
452 F. App’x 44, 46 (2d Cir. 2011) (claims based on state law are
not cognizable on federal habeas review).
Second, petitioner has not shown that his constitutional
rights were violated.
A criminal defendant has “a due process
right to be present in his own person whenever his presence has a
relation, reasonably substantial, to the fulness of his opportunity
to defend against the charge.”
Kentucky v. Stincer, 482 U.S. 730,
745 (1987) (internal quotation omitted).
“Thus, a defendant is
guaranteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.”
As such, a due
process violation occurs only if the defendant’s absence affected
the fairness of the proceedings.
Here, the only relevant stage of the proceedings at which
petitioner was not present was the bench conference where the trial
court announced its rulings.
Petitioner has offered no credible
argument for how his absence at this bench conference impacted the
fairness of his trial.
As the Appellate Division explained on
direct appeal, petitioner had ample opportunity to contribute to
defense counsel’s written submissions on this point, and his
“physical presence was not required at that bench conference
[rulings] it had already made with respect to the People’s Sandoval
and Molineux applications, and defendant could not reasonably have
contributed his views even if he had been present.”
A.D.3d at 1331 (internal quotation omitted). The Court agrees, and
therefore finds that the Appellate Division’s decision was neither
contrary to, nor an unreasonable application of, existing federal
To the extent the petition may be read as contending that the
trial court was constitutionally required to hold a hearing on the
prosecution’s Sandoval and Molineux requests, there is no merit to
such a contention.
The right to such a hearing “derives from state
law, not [the] federal constitution.”
Pena v. Fischer, 2003 WL
1990331, at *10 (S.D.N.Y. Apr. 30, 2003).
Ineffective Assistance of Counsel
“The Sixth Amendment requires effective assistance of counsel
at [the] critical stages of a criminal proceeding.”
Cooper, 566 U.S. 156, 165 (2012).
“Pursuant to the well-known
two-part test of Strickland v. Washington . . . a habeas petitioner
(1) that his
expected of a reasonably competent practitioner; and (2) that he
was prejudiced by that substandard performance.’”
Chappius, 631 F. App’x 65, 66 (2d Cir. 2016) (quoting Pearson v.
Callahan, 555 U.S. 223, 241, (2009)).
Moreover, 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 v. Mirzayance, 556 U.S.
ineffective assistance of counsel, petitioner must show that the
Procedurally Barred Claim
Petitioner has made the following ineffective assistance of
counsel claims: (1) trial counsel was ineffective for not objecting
to the prosecutor’s summation remarks and for failing to provide
notice of a psychiatric defense under § 250.10; and (2) appellate
counsel was ineffective for failing to argue that trial counsel was
ineffective for failing to call an expert to support petitioner’s
extreme emotional disturbance defense.
As a threshold matter,
respondent argues that petitioner’s claim that trial counsel was
ineffective for having failed to provide notice of a psychiatric
defense is procedurally barred.
The Court agrees.
It is well-established that a state inmate who seeks federal
28 U.S.C. § 2254(b)(1).
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).
“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
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
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).
In this case, petitioner did not fully exhaust his claim that
While petitioner raised this claim in his
pre-appeal motion to vacate the judgment, he did not seek leave to
appeal the denial of that motion.
On direct appeal, petitioner
argued only that trial counsel was ineffective for having failed to
object to the prosecutor’s summation.
defaulted with respect to this claim.
Accordingly, petitioner has
Moreover, petitioner also
cannot return to state court to exhaust this claim, because he
already raised it in his pre-appeal motion to vacate the judgment,
and the time to appeal the denial of that motion has long since
Because his claim is procedurally barred, petitioner can seek
habeas review on this basis only if he can show either cause and
prejudice, or that he is actually innocent.
of these standards.
He cannot meet either
With respect to cause and prejudice, petitioner has offered no
explanation for having failed to exhaust this claim.
also cannot show prejudice, because his claim is without merit.
First, and as the Monroe County Court found on petitioner’s motion
to vacate the judgment, petitioner filed a pro se § 250.10 notice
dated August 7, 2007.
Petitioner has not argued, nor does the
record support the conclusion, that this pro se notice was treated
as ineffective by the trial court. Accordingly, petitioner’s claim
must fail because notice of a psychiatric defense was in fact
Second, to the extent petitioner contends that trial
counsel was ineffective for having not called a psychiatric expert,
“[i]n general, whether or not to hire an expert is the type of
strategic choice by counsel that may not be second-guessed on
habeas corpus review.”
Murden v. Artuz, 253 F. Supp. 2d 376, 389
This is particularly true here, because under
New York law, psychiatric testimony is not required to prove an
extreme emotional disturbance defense.
N.Y.2d 887, 890 (1985).
See People v. Moye, 66
Moreover, petitioner has not provided any
evidence that he ever received psychiatric or mental health-related
treatment, nor has he identified any other evidence suggesting that
an expert could have offered admissible testimony to support his
Accordingly, he cannot show that trial counsel’s failure
to retain or call a psychiatric expert amounted to ineffective
assistance of counsel.
See Linnen v. Poole, 766 F. Supp. 2d 427,
463 (W.D.N.Y. 2011) (denying ineffective assistance of counsel
claim where counsel failed to call an expert to testify regarding
an extreme emotional disturbance defense).
Petitioner also has not argued that he is actually innocent of
killing Ms. Hammond, nor could he plausibly do so.
above, an eyewitness observed him stabbing her in broad daylight.
Moreover, petitioner has never denied stabbing Ms. Hammond, having
argued only that his doing so was the result of extreme emotional
In short, petitioner cannot overcome the procedural
bar, and is not entitled to federal habeas relief on this basis.
Performance of Trial Counsel
Petitioner has also argued (and has exhausted the claim) that
trial counsel was ineffective for having failed to object to the
prosecutor’s remarks in summation.
Although petitioner does not
identify the specific remarks he is referring to in his petition,
on direct appeal he objected to the following statements by the
prosecutor: (1) the statement that petitioner stabbed Ms. Hammond
“in the vagina” and, by doing so, sent her the message that he
owned her; (2) the statement that Ms. Hammond paid for petitioner’s
car; (3) the statement that petitioner did not tell Investigator
Galetta that Ms. Hammond had left him for another man; (4) the
statement that petitioner had been caught “red-handed”; (5) the
statement that jury should hold petitioner accountable; (6) the
prosecutor’s alleged suggestion that petitioner had committed two
additional crimes (assault on Mr. Whisonant and trespass); and
(7) the prosecutor’s reading of petitioner’s letters to Hammond to
As an initial matter, the record shows that trial counsel did
in fact object to some of these statements.
In particular, trial
counsel objected to the prosecutor’s statement that petitioner had
statement that Ms. Hammond had paid for petitioner’s car.
axiomatic that trial counsel cannot be faulted for allegedly not
making objections that he did in fact make.
Moreover, petitioner has failed to show that any of these
comments were in fact objectionable.
Under New York law, the
People v. Abraham, 22 N.Y.3d 140, 148 (2013) (internal
The prosecution is permitted to make “fair
comment on the evidence and the reasonable inferences to be drawn
therefrom,” and to respond to defense counsel’s summation.
v. Hawley, 112 A.D.3d 968, 969 (2d Dep’t 2013).
Ms. Hammond “in the vagina” to send a message that he owned her was
a fair comment on the evidence at trial.
Dr. LaPoint testified
that Ms. Hammond had sustained a “sharp force wound” on the right
established that he felt he owned Ms. Hammond - indeed, in one such
letter he described her as his “most prized possession,” and in
another, he told her that if he could not be with her, no one else
With respect to the statement that Ms. Hammond had paid for
petitioner’s car, trial counsel objected to this statement and the
objection was sustained.
Moreover, the record clearly established
that petitioner had no job or money and relied on Ms. Hammond to
unreasonable for the prosecutor to surmise that Ms. Hammond had
provided the money for petitioner’s car.
The prosecutor was also permitted to draw the inference that
petitioner had not told Investigator Galetta that Ms. Hammond had
left him for another man.
The written statement that petitioner
reviewed and signed made no mention of petitioner having stated
that Ms. Hammond was leaving him, but instead indicated that
immediately prior to the stabbing, Ms. Hammond had refused to
commit to meeting with petitioner.
There was nothing improper
about the prosecutor urging the jury to conclude that petitioner
had changed his story over time.
Petitioner argues that the prosecutor’s statement that he had
been caught “red-handed” was impermissible because it suggested
that the trial was a waste of time.
statement was factually accurate.
However, the prosecutor’s
An eyewitness saw petitioner
stab Ms. Hammond in broad daylight and, when Sergeant Venosa
arrived, petitioner literally had blood dripping from his hand. As
respondent correctly argues, the prosecutor was not prohibited from
accurately summarizing trial evidence simply because that evidence
was particularly damning for petitioner.
With respect to the prosecutor’s request that the jury hold
impermissible encouraged the jury to convict him based on public
However, a review of the record shows that this
is not the case. The prosecutor’s argument was not that petitioner
was a public safety risk, but was instead a direct response to
defense counsel’s suggestion that petitioner’s circumstances had
specifically argued that petitioner had failed to hold himself
accountable for his actions, and that it was up to the jury to do
This was not an impermissible “safe streets” argument, but an
argument aimed squarely at the defense’s theory of the case.
Moreover, defense counsel had raised the issue in his summation,
arguing that Mr. Whisonant had thrown petitioner to the ground,
appropriate for the prosecutor to respond to that argument with a
different characterization of the workplace encounter.
Finally, petitioner has argued that the prosecutor violated
the best evidence rule by reading his letters to Ms. Hammond to the
jury, and that counsel should have objected. Petitioner’s argument
misapprehends the application of the best evidence rule.
letters themselves were admitted into evidence, and the trial court
properly instructed the jury that it could review them if it
The best evidence rule simply does not prohibit the
reading of documents that have been admitted into evidence, and
trial counsel cannot be faulted for not having made such an
In sum, petitioner has failed to demonstrate that any of the
prosecutor’s summation remarks were objectionable.
therefore cannot find that trial counsel’s failure to objection
constituted deficient performance.
Moreover, petitioner also cannot demonstrate prejudice in any
event. The evidence at trial of his guilt was overwhelming, as was
disturbance, but out of a longstanding desire to harm Ms. Hammond.
unenviable task of defending a client who had written a letter
indicating that he intended to kill his wife and who had then in
fact stabbed his wife to death in broad daylight, in the presence
of an eyewitness.
Under these circumstances, petitioner cannot
show that the alleged errors made by trial counsel had any impact
on the ultimate outcome at trial.
For the foregoing reasons, the Court finds that the Appellate
Division’s rejection of petitioner’s ineffective assistance of
trial counsel claim was neither contrary to nor an unreasonable
application of established federal law.
Petitioner has therefore
failed to establish his entitlement to habeas relief.
Appellate Counsel’s Performance
ineffective, because he did not argue that trial counsel was
ineffective for having failed to file a § 250.10 notice.
argument is easily disposed of.
As discussed above, petitioner has not shown that trial
counsel’s decision not to file a § 250.10 notice or to call a
psychiatric expert at trial was deficient.
cannot be found ineffective for having failed to make a nonmeritorious ineffective assistance of trial counsel claim.
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.”). Moreover, the record shows that appellate counsel made
a reasoned, well-supported evaluation of this claim and exercised
reasonable professional judgment in deciding not to pursue it on
Accordingly, the Appellate Division’s rejection of
this claim was neither contrary to nor an unreasonable application
of established federal law.
No. 16) 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,
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).
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
Rochester, New York
November 15, 2017
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