Hunter v. Chappius

Filing 26

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,
Petitioner,
No. 15-CV-6423(MAT)
DECISION AND ORDER

-vsPAUL CHAPPIUS, JR.,
Respondent.

I.

Introduction
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
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.

For

the reasons discussed below, the Court finds that petitioner has
not shown he is entitled to federal habeas relief.
II.

Factual Background and Procedural History
A.

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
while

intoxicated

(“DWI”)

unlicensed driving.

and

once

convicted

of

aggravated

Petitioner served nine months in jail for his

second DWI offense, and was released on September 12, 2006.

While

in jail, petitioner came to believe that Ms. Hammond was seeing
other men.

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
called TenCate.
On

October

workplace.

Ms.

5,

2006,

Hammond

petitioner

was

came

with Kimberly

coworker, when she spotted petitioner.

-2-

to

Ms. Hammond’s

Whisonant,

a

male

Ms. Hammond fled, while

Mr. Whisonant ordered petitioner to leave the premises. Petitioner
and

Mr.

Whisonant

had

a

verbal

confrontation,

during

which

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
this letter.

-3-

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
phone.

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.

Petitioner then

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.
Sergeant

Venosa

asked

petitioner

if

his

hand

was

okay

and

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.

-4-

At trial, petitioner testified that he had awoken at 7:00 a.m.
on November 18, 2006, still drunk from the previous evening.

He

further claimed that he had been drunk and eaten no food for three
days.

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
another man.

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.
RPD

Investigator

petitioner.

Gary

Galetta

joined

At the hospital,

Sergeant

Venosa

and

Investigator Galetta also testified that he did not

notice any signs that petitioner was intoxicated.

Unprompted,

petitioner told Investigator Galetta that he was “looking at 25"
and that he had “cried . . . a river every day” regarding his
marital problems.
After the hospital, Sergeant Venosa drove petitioner to the
public safety

building.

While

-5-

in

the car,

petitioner

asked

Sergeant Venosa if he was “the only one that has ever done anything
this stupid before?”

Sergeant Venosa did not respond to this

unprompted remark.
At the public safety building, petitioner waived his Miranda
rights and agreed to speak with the police.

Investigator Galetta

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
their children,

that

petitioner

had

asked

if

they

could

get

together, to which Ms. Hammond had replied “we’ll see,” and that
petitioner “snapped” because he “just couldn’t let her go.”

The

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
and

prayed

for

her.

Petitioner’s

statement

also

said

that

petitioner had seen blood and cuts and knew that he had plunged a
knife into Ms. Hammond.
While

petitioner

was

at

the

hospital

and

public

safety

building, RPD Officer Tomesha Angelo investigated the scene of the
stabbing and spoke to petitioner’s mother.

Petitioner’s mother

gave Officer Angelo the letter petitioner had written the previous
night and showed Officer Angelo petitioner’s room.

-6-

Officer Angelo

testified at trial that she did not recall seeing any signs of
drinking alcohol in petitioner’s room or elsewhere in his mother’s
home.
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).
consistent

with

the

knife

recovered

from

All the wounds were
the

scene,

which

Ms. Hammond’s brother-in-law, Calvin Miller, Jr., identified at
trial as a filet knife belonging to petitioner.

Dr. LaPoint

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.
Ms. Hammond’s

death

was

One cut had severed her left ear.

caused

by

the internal

and

external

bleeding caused by the stab wounds, any number of which could have
individually caused her death.
B.

Pre-trial Proceedings

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,

-7-

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.

The

trial court thereafter, in petitioner’s presence, announced the
substance of its rulings in open court.
C.

Trial, Verdict, and Sentencing

Petitioner’s jury trial commenced on October 23, 2007.

On

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.
D.

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.
denied

the

motion,

holding

that

The Monroe County Court

petitioner

had

failed

to

demonstrate the absence of a strategic reason for counsel’s failure
to

file

a

§

250.10

notice,

and

explaining

that

psychiatric

testimony is not required to prove the defense of extreme emotional

-8-

disturbance.

There is no indication in the record that petitioner

sought leave to appeal this decision.
E.

Direct Appeal

Petitioner appealed his conviction to the Appellate Division,
Fourth Department (the “Appellate Division”), arguing that (1) on
summation,

the

prosecutor

improperly

asked

the

jury

to

show

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.
pro

se

supplemental

brief

in

which

Petitioner also filed a

he

argued

that

(1)

the

prosecutor’s summation remarks deprived him of a fair trial, due
process, and the right of confrontation, (2) trial counsel was
ineffective

for

having

failed

to

object

to

the

prosecutor’s

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
petitioner’s conviction.
(4th

Dep’t

prosecutor’s

2014).
summation

See People v. Hunter, 115 A.D.3d 1330

The

Appellate

remarks

Division

concerning

found

mercy

that

were

a

the
fair

response to trial counsel’s summation and that, in any event, they
were not so egregious as to deprive petitioner of a fair trial.

-9-

The Appellate Division further found that, although the trial court
had erroneously stated that mercy was an element of the defense of
extreme emotional

disturbance,

it subsequently

corrected

that

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
written

submission.

The

Appellate

Division

concluded

that

petitioner had the opportunity to contribute to defense counsel’s
written submission and that his physical presence was not required
at

the

rulings.

bench

conference

where

the

trial court

announced its

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.
F.

The Instant Petition

Petitioner commenced the instant action on July 20, 2015.

In

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

-10-

of

the

defense

of

extreme

emotional

disturbance

and

thereby

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
certain

of

petitioner’s

claims

were

unexhausted.

Petitioner

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.
G.

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.
coram

nobis

motion,

petitioner

In connection with his

submitted

a

letter

from

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

-11-

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
petition.
III. Discussion
A.

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).

“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
-12-

Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)).
B.

The Prosecutor’s Summation Remarks Regarding Mercy

Petitioner contends that the prosecutor’s summation remarks
regarding mercy deprived him of a fair trial.

In particular,

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
improper.”
“The

appropriate

standard

of

review

for

a

claim

of

prosecutorial misconduct on a writ of habeas corpus is ‘the narrow
one of due process, and not the broad exercise of supervisory
power.’”

Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)

(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).

“The

question . . . is whether the prosecutorial remarks were so
prejudicial that they rendered the trial in question fundamentally
unfair.”

Id. (internal quotation omitted).

“[S]tatements during

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.”
Osorio

v.

Conway,

496

F.

Supp.

2d

285,

301

(S.D.N.Y.

2007)

(internal quotation omitted).
Here, the Appellate Division found, and the Court agrees, that
the prosecutor’s remarks about mercy were “a fair response to
-13-

defense counsel’s summation.”

Hunter, 115 A.D.3d at 1331.

In

summation, defense counsel had argued extensively that petitioner’s
actions

were

the

result

of

his

difficult

circumstances

and

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.”

While defense

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.”

The

prosecutor’s remarks were directly responsive to defense counsel’s
encouragement

to

understanding.
Appellate

the

jury

to

act

out

of

compassion

and

Accordingly, the Court cannot find that the

Division’s

rejection

of

petitioner’s

argument

was

contrary to, or an unreasonable application of, established federal
law.
C.

The Trial Court’s Erroneous Statement

Trial counsel objected to the prosecutor’s summation remarks
about mercy.

In

overruling

that objection,

the

trial

court

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

-14-

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
Ms. Hammond.
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.

See,

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.
defense

counsel’s

summation
notion

that

remarks
the

had

introduced
should

take

into
pity

the

proceedings

the

petitioner.

The prosecutor’s statement that the jury should not

-15-

jury

As discussed above,

on

cut petitioner

a

break, like

his

comments

about

mercy,

were

rights

were

directly responsive to defense counsel’s summation.
D.

Presence at Material Stages of Trial

Petitioner

contends

that

his

constitutional

violated because he was not present at the bench conference where
the

trial

court

announced

its

rulings

applications under Sandoval and Molineux.

on

the

prosecution’s

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.”

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Id.

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
inasmuch

as

the

court

was

simply

placing

on

the

record

the

[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.”

Hunter, 115

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
law.
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).

-17-

E.

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).

Lafler v.

“Pursuant to the well-known

two-part test of Strickland v. Washington . . . a habeas petitioner
alleging

ineffective

(1) that his

assistance

counsel’s

of

performance

counsel
fell

‘must

below

demonstrate

what

could be

expected of a reasonably 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)).

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.
111,

123

(2009).

Knowles v. Mirzayance, 556 U.S.

Accordingly,

to

prevail

on

his

claim

of

ineffective assistance of counsel, petitioner must show that the
state

court’s

application

of

Strickland

was

objectively

unreasonable.
1.

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
-18-

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
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

-19-

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
trial

counsel

ineffectively

psychiatric defense.

failed

to

file

a

notice

of

a

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
expired.
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.

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He cannot meet either

With respect to cause and prejudice, petitioner has offered no
explanation for having failed to exhaust this claim.

Petitioner

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
filed.

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.”
(E.D.N.Y. 2001).

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
defense.

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,

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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.

As detailed

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
disturbance.

In short, petitioner cannot overcome the procedural

bar, and is not entitled to federal habeas relief on this basis.
2.

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

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additional crimes (assault on Mr. Whisonant and trespass); and
(7) the prosecutor’s reading of petitioner’s letters to Hammond to
the jury.
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
stabbed Ms.

Hammond

“in

the

vagina” and

to

the

prosecutor’s

statement that Ms. Hammond had paid for petitioner’s car.

It is

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

“prosecution

latitude

evidence.”

is

afforded

the

widest

to

comment

on

People v. Abraham, 22 N.Y.3d 140, 148 (2013) (internal

quotation omitted).

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.

People

v. Hawley, 112 A.D.3d 968, 969 (2d Dep’t 2013).
The

prosecutor’s

statement

that

petitioner

had

stabbed

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
side

of

her

genitals.

Petitioner’s

own

letters

from

jail

established that he felt he owned Ms. Hammond - indeed, in one such

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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
could.
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
pay

his

rent

and

provide

him

with

gas

money.

It

was

not

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

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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
petitioner

accountable,

petitioner

contends

that

this

request

impermissible encouraged the jury to convict him based on public
safety concerns.

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
driven

him

to

kill

Ms.

Hammond.

Indeed,

the

prosecutor

specifically argued that petitioner had failed to hold himself
accountable for his actions, and that it was up to the jury to do
so.

This was not an impermissible “safe streets” argument, but an

argument aimed squarely at the defense’s theory of the case.
Turning

to

the

interaction

with

contention,

the

prosecutor’s

Mr.

was

guilty

prosecutor

accurately

of

petitioner’s

contrary

to

petitioner’s

Whisonant,

prosecutor

petitioner

discussion

of

did

not

additional

summarized

Mr.

improperly
crimes.

suggest
Instead,

Whisonant’s

that
the

testimony.

Moreover, defense counsel had raised the issue in his summation,
arguing that Mr. Whisonant had thrown petitioner to the ground,
thereby

further

damaging

his

psychological

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state.

It

was

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.

The

letters themselves were admitted into evidence, and the trial court
properly instructed the jury that it could review them if it
wished.

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
argument.
In sum, petitioner has failed to demonstrate that any of the
prosecutor’s summation remarks were objectionable.

This Court

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
the

evidence

that

he

acted

not

out

of

extreme

emotional

disturbance, but out of a longstanding desire to harm Ms. Hammond.
As

respondent

correctly

points

out,

trial

counsel

had

the

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

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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.
3.
Petitioner

Appellate Counsel’s Performance
also

contends

that

appellate

counsel

was

ineffective, because he did not argue that trial counsel was
ineffective for having failed to file a § 250.10 notice.

This

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.

Appellate counsel

cannot be found ineffective for having failed to make a nonmeritorious 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.”). Moreover, the record shows that appellate counsel made
a reasoned, well-supported evaluation of this claim and exercised

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reasonable professional judgment in deciding not to pursue it on
direct appeal.

Accordingly, the Appellate Division’s rejection of

this claim was neither contrary to nor an unreasonable application
of established federal law.
IV.

Conclusion
For

the

foregoing

reasons,

No. 16) is denied and dismissed.

the

amended

petition

(Docket

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).
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
November 15, 2017

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