Cruz v. Noeth
Filing
15
DECISION AND ORDER denying the petition for a writ of habeas corpus and dismissing the petition. 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). (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/6/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANGEL CRUZ,
Petitioner,
No. 6:17-cv-06549-MAT
DECISION AND ORDER
-vsJOSEPH NOETH, Superintendent,
Respondent.
I.
Introduction
This is a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Angel Cruz (“Petitioner”) challenging
the judgment of conviction entered against him on August 28, 2008,
in New York State, Monroe County Court (Keenan, J.) on various
counts of conspiracy, criminal possession of a weapon, and criminal
sale and possession of a controlled substance. For the reasons
discussed below, the Court denies Petitioner’s request for a writ
of habeas corpus.
II.
Factual Background and Procedural History
Between February 23, 2007, and May 23, 2007, the New York
State Attorney General’s Organized Crime Task Force, together with
the New York State Police, investigated a cocaine distribution ring
operating in and around the City of Rochester. The investigation
involved the use of electronic surveillance to monitor and record
conversations conducted over a number of “target telephones” used
by members of the criminal organization, including Petitioner.
Ultimately, the investigators seized bulk quantities of cocaine,
over $40,000 dollars in cash, and weapons and ammunition belonging
to members of the organization.
In August 2007, a Monroe County grand jury handed down a
20-count indictment (“First Indictment”) charging Petitioner and
ten
others
with
a
variety
of
offenses
arising
from
their
involvement in the distribution ring. Petitioner was charged with
second-degree conspiracy, third-degree criminal possession of a
weapon, and several drug-possession and drug-sale offenses. The
weapon-possession count was dismissed due to a defect in the grand
jury charge but the prosecutor was allowed to resubmit the claim.
A Monroe County grand jury thereafter returned an indictment
(“Second Indictment”) charging Petitioner with criminal possession
of a weapon in the second, third, and fourth degrees.
At a consolidated jury trial on both indictments conducted on
August 25 through August 29, 2008, before Monroe County Court Judge
Richard Keenan (“the trial court”) twenty-eight of the recorded
telephone conversations were introduced into evidence. A police
officer provided testimony regarding the meaning of the coded
language that was used by Petitioner and others on the calls. Other
police officers testified regarding their execution of search
warrants
at
Petitioner’s
residence
and
SUV,
from
which
they
recovered $40,000 in cash, drug paraphernalia, a box of 9 mm
-2-
ammunition, and a loaded 9 mm pistol. The police also testified
regarding their execution of warrants at the residences of coconspirators Wender Deleon (“Deleon”) and Francisco Garcia, from
which they recovered cocaine and drug paraphernalia. A police
officer
testified
regarding
his
May
23,
2007
pre-arranged,
undercover purchase of cocaine from Deleon, which marked the end of
the investigation. Petitioner did not present any witnesses at
trial.
The
jury
returned
a
verdict
convicting
Petitioner
of
second-degree conspiracy, attempted first-degree and attempted
third-degree
criminal
second-degree
criminal
possession
sale
of
of
a
a
controlled
controlled
substance,
substance,
and
third-degree criminal possession of a controlled substance under
the First Indictment. He was convicted of second-degree criminal
possession of a weapon and third-degree criminal possession of a
weapon under the Second Indictment.
On August 28, 2008, Petitioner was sentenced, as a second
felony offender, to an indeterminate prison term of 12½ to 25 years
on the conspiracy count. With regard to the controlled substance
convictions, Petitioner was sentenced as a second felony drug
offender previously convicted of a violent felony and received
determinate
prison
terms
of
20
years
followed
by
5
years’
post-release supervision (“PRS”) on the attempted first-degree
possession count, 9 years’ imprisonment plus 3 years’ PRS on the
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attempted third-degree possession count, 15 years’ imprisonment
plus 5 years’ PRS on the second-degree sale count, and 15 years’
imprisonment plus 3 years’ PRS on the third-degree possession
count. He was sentenced as a persistent violent felony offender to
an
indeterminate
prison
term
of
20
years
to
life
on
the
second-degree weapon-possession count, and as a second felony
offender to an indeterminate prison term of 3½ to 7 years on the
third-degree weapon-possession count. All sentences were ordered to
run concurrently.
On February 2, 2012, Petitioner moved pro se for vacatur of
his conviction in the trial court pursuant to New York Criminal
Procedure Law (“CPL”) § 440.10. Petitioner argued that trial
counsel was ineffective for failing to file a motion to suppress
evidence derived from the eavesdropping warrants on the ground that
the
People
failed
to
furnish
the
warrants
and
accompanying
applications within 15 days of arraignment as required by CPL
§ 700.70. The trial court denied the motion pursuant to CPL
§ 440.10(2)(b), finding that sufficient facts appeared on the
record to permit review of this claim on Petitioner’s pending
direct appeal. Petitioner unsuccessfully sought leave to appeal to
the Appellate Division, Fourth Department, of New York State
Supreme Court (“Fourth Department”).
Petitioner, through counsel, pursued a direct appeal of his
conviction
to
the
Fourth
Department.
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The
Fourth
Department
unanimously affirmed the judgment of conviction on the first
indictment
(“First
Judgment
of
Conviction”)
but
modified
the
judgment on the second indictment (“Second Judgment of Conviction”)
by
vacating
Petitioner’s
sentence
for
second-degree
criminal
possession of a weapon and remitting the matter to the trial court
for resentencing. See People v. Cruz, 134 A.D.3d 1455 (4th Dep’t
2015); People v. Cruz, 134 A.D.3d 1458 (4th Dep’t 2015). Petitioner
unsuccessfully sought leave to appeal from the portion of the order
affirming his convictions to the New York Court of Appeals. See
People v. Cruz, 27 N.Y.3d 1067 (2016).
On
August
29,
2016,
the
trial
court
again
adjudicated
Petitioner a persistent violent felony offender and resentenced him
to an indeterminate prison term of 16 years to life on the
conviction for second-degree criminal possession of a weapon.
Petitioner
initiated
an
appeal
in
the
Fourth
Department
but
withdrew it on October 24, 2017.
Petitioner then commenced this habeas corpus proceeding. In
the petition (Docket No. 2) and attached exhibits (Docket Nos. 2-1,
2-2), Petitioner challenges his confinement on both judgments of
conviction, arguing that his trial attorney was ineffective for not
moving to suppress evidence derived from the eavesdropping warrants
on the ground that the People failed to furnish the warrants and
accompanying applications within 15 days of his arraignment as
-5-
required by CPL § 700.70. Respondent answered the petition, and
Petitioner filed a Reply.
III. Discussion
A.
The Petition Is Untimely with Respect to the First
Judgment of Conviction
Respondent argues that the petition is untimely with respect
to the First Judgment of Conviction because it was filed more than
a year from the date the judgment became final. Respondent further
contends that Petitioner is not entitled to equitable tolling of
the limitations period.
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which governs the instant petition, requires that a
federal habeas corpus petition be filed within one year of the date
of several occurrences. 28 U.S.C. § 2244(d)(1)-(4). The applicable
event in the present case is the date on which Petitioner’s state
court conviction becomes final. 28 U.S.C. § 2244(d)(1).
For AEDPA
purposes, a petitioner’s conviction becomes final when the time to
seek direct review in the United States Supreme Court by writ of
certiorari expires. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.),
cert. denied, 534 U.S. 924 (2001).
Here, the Fourth Department affirmed the First Judgment of
Conviction on December 23, 2015, and Petitioner was denied leave to
appeal on May 9, 2016. His convictions upon the First Judgment of
Conviction became final 90 days later on August 7, 2016, the date
his time to seek a writ of certiorari to the Supreme Court expired.
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Consequently, Petitioner had one year from that date, or until
August 7, 2017, to file his habeas petition. E.g., Warren v.
Garvin, 219 F.3d 111, 113 (2d Cir. 2000).
Although Petitioner’s habeas petition is dated August 7, 2017,
the filing letter accompanying the petition is dated August 11,
2017 (Docket No. 2-5), and the affidavit of service states that
Petitioner mailed his petition to
the Court on the same date (Docket No. 2-3). Because a pro se
federal habeas petition is deemed “filed” on the date it is given
to prison officials for mailing, Houston v. Lack, 487 U.S. 266, 270
(1988), Petitioner’s habeas petition should be deemed filed no
earlier than August 11, 2017, four days after the expiration of the
one-year
statute
of
limitations.
The
petition
is
therefore
untimely.
Petitioner cannot avail himself of the doctrine of equitable
tolling, which requires a showing that “ ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.”
Lawrence
v.
Florida,
549
U.S.
327,
336
(2007).
There
is
no
indication on the record of any “extraordinary circumstances”
impeding
Petitioner
from
timely
exhausting
his
ineffective
assistance claim. Petitioner’s pro se status, limited education,
and ignorance of the law are not extraordinary circumstances.
Francis
v.
Miller,
198
F.
Supp.2d
-7-
232,
235
(E.D.N.Y.
See
2002)
(petitioner’s
assertions
that
“he
has
limited
education,
is
ignorant of the law and legal procedure, lacked funds to hire
another attorney, had limited access to legal assistance that was
available to prisoners, and was allowed limited use of the prison
law library . . . are not extraordinary circumstances that warrant
equitable tolling for the extended period of delay”) (citing Smith
v.
McGinnis,
208
F.3d
13,
16
(2d
Cir.
2000)
(per
curiam)
(petitioner’s pro se status does not merit equitable tolling);
other citations omitted).
Petitioner claims that he is entitled to equitable tolling due
to the fact he was subjected to a “prison lockdown” of unspecified
duration prior to the expiration of AEDPA’s limitations period.1 It
is well-settled, however, that “[r]outine experiences of prison
life,” such as “solitary confinement, lock-downs, and restricted
access
to
the
law
library
do
not
qualify
as
‘extraordinary
circumstances’ warranting equitable tolling.” Brown v. Bullis,
No. 9:11-CV-647, 2013 WL 1294488, at *4 (N.D.N.Y. Mar. 26, 2013)
(quoting Belot v. Burge, No. 03–CV–1478, 2005 WL 6777981 (S.D.N.Y.
July 14, 2005), aff’d, 490 F.3d 201 (2d Cir. 2007)); see also Lindo
v. Lefever, 193 F. Supp.2d 659, 663 (E.D.N.Y. 2002) (“Transfers
between
prison
facilities,
solitary
confinement,
lockdowns,
restricted access to the law library and an inability to secure
1
Petitioner sent a letter (Docket No. 1-1) to the Court dated August 6,
2017, requesting an extension of the deadline to file his petition for this
reason.
-8-
court documents do not qualify as extraordinary circumstances.”)
(citations omitted).
Even assuming, for purposes of argument only, that Petitioner
could show “extraordinary circumstances,” he cannot demonstrate the
second required element—that he acted with reasonable diligence
throughout the period he seeks to have tolled. As Respondent points
out, Petitioner had a year to prepare and file his petition, but he
apparently
waited
until
days
before
the
expiration
of
the
limitations period to complete his petition and file it. Petitioner
offers no reason why he could not “have started his preparation
earlier and filed an unpolished petition within the allotted time,
rather
than
wait[ing]
to
file
until
after
the
deadline
had
expired.” Belot, 490 F.3d at 207-08.
The Supreme Court has held that a petitioner’s showing of
“actual innocence” (i.e., factual, as opposed to legal, innocence)
may warrant an “equitable exception” to the AEDPA limitations
period. See McQuiggin v. Perkins, 569 U.S. 383, 392-94 (2013)
(actual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar or
expiration of AEDPA’s statute of limitations). The showing required
consists of “‘evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is
also
satisfied
that
the
trial
was
free
of
nonharmless
constitutional error.’” Id. at 401 (quotation omitted). Here,
-9-
however, Petitioner has offered no grounds that would come close to
meeting this exceedingly high standard. Therefore, Petitioner is
not entitled to equitable exception to the limitations period based
on “actual innocence.”
Petitioner argues that the Court has already deemed his
petition timely filed, based on a text order issued by the Court
(Geraci, J.) on October 5, 2017. That text order purported to grant
an extension of time to file the habeas petition, as requested in
Petitioner’s August 6, 2017 letter. There is a further notation in
the text order that the petition was deemed “timely filed.” (Docket
No. 5). Respondent argues, and this Court agrees, that the October
5, 2017 text order was premature and does not bar reconsideration
of the timeliness issue based on Respondent’s arguments in his
memorandum of law. See Gant v. Goord, No. 04-CV-6715, 2007 WL
2712344, at *1-2 (W.D.N.Y. Sept. 13, 2007) (finding that initial
order deeming petition “timely under 28 U.S.C. § 2244(d)(1)” did
not preclude dismissal of petition as untimely based on arguments
raised in respondent’s answer to petition). Notably, at the time
the text order
was
issued,
Respondent
“had
not
answered
the
petition nor yet had an opportunity to make an argument regarding
timeliness.” Id. at *2. Moreover, since Respondent had not filed
his answer, the state court records had not been submitted to the
Court. Therefore, there was insufficient information on which to
-10-
determine whether the petition was timely and, if not, whether
Petitioner was entitled to equitable tolling.
Nor is there any basis to construe Petitioner’s August 6, 2017
letter requesting an extension of time to file his petition be as
a timely petition for relief under 28 U.S.C. § 2254 (“Section
2254”). The Second Circuit has held, in the context of a 28 U.S.C.
§ 2255 (“Section 2255”) motion to set aside the sentence, that a
timely-filed motion for an extension of time may be construed as a
Section
2255
motion
where
the
motion
contains
“allegations
sufficient to support a claim for relief.” Green v. United States,
260 F.3d 78, 83 (2d Cir. 2001). However, the Second Circuit does
not appear to have extended its holding to proceedings under
Section 2254. In any event, Petitioner’s letter does not identify
any grounds for relief under, or cite to any legal authority
regarding, Section 2254. Therefore, even assuming that Green’s
holding also applies in the Section 2254 context, there is no basis
for construing the August 2017 letter as a substantive habeas
corpus petition. Accordingly, to the extent the petition challenges
the First Judgment of Conviction, it is dismissed as untimely and
not subject to equitable tolling.
B.
The Petition Is Meritless with Respect to the Second
Judgment of Conviction
1.
Background
Petitioner challenges the Second Judgment of Conviction on the
ground that trial counsel was ineffective due to the failure to
-11-
move to suppress evidence derived from the eavesdropping warrants.
According to Petitioner, trial counsel should have made a motion
based on
CPL
§
700.70
(“Section
700.70”),
which
provides
as
follows:
The contents of any intercepted communication, or
evidence derived therefrom, may not be received in
evidence or otherwise disclosed upon a trial of a
defendant unless the people, within fifteen days after
arraignment and before the commencement of the trial,
furnish the defendant with a copy of the eavesdropping
warrant, and accompanying application, under which
interception was authorized or approved.
N.Y. Crim. Proc. Law § 700.70. New York courts have strictly
construed Section 700.70. E.g., Gil v. Mazzuca, No. 03 CIV.3316 WHP
GWG, 2004 WL 389103, at *11 (S.D.N.Y. Mar. 3, 2004) (citing People
v. Schulz, 67 N.Y.2d 144, 147 (1986) (“Evidence derived from an
intercepted communication must be suppressed where there has been
a failure to comply with the notice provision of CPL § 700.70.”)),
report and recommendation adopted, No. 03CIV.3316(WHP)(GWG), 2004
WL 3524334 (S.D.N.Y. Sept. 19, 2004).
At
Petitioner’s
arraignment,
the
trial
court
asked
the
prosecutor to “provide a copy of the indictment to [trial counsel]
and as [the prosecution] ha[d] in the co-defendant’s cases[,]
provide
.
.
.
certain
recordings
of
search
warrants
and
eavesdropping warrants related to th[e] case.” (9/14/07 Transcript
(“Tr.”) at 4-5). The prosecutor stated, “[W]e have served a notice
of eavesdropping pursuant to Section 700.50 and 700.[70] of the
Criminal Procedure Law and those documents are on the disc that
-12-
I’ve given to [trial counsel] today.” (Id.). Trial counsel, who was
participating in this colloquy, did not dispute this statement.
(See id.).
During an appearance before the trial court on December 5,
2007, trial counsel repeated his assertion that he “need[ed] the
search warrant, the application, and the wire taps, registers and
application.” (12/5/07 Tr. at 3). The prosecutor responded, “We
provided them on the disc I thought.” (Id.). At that time, an
off-the-record discussion occurred between the prosecutor, defense
counsel,
and
the
trial
court.
Afterwards,
the
trial
court
instructed defense counsel to advise it at the next scheduled date
if he had any problem obtaining the materials. The prosecutor
commented, “I assure you he’ll have no difficulty.” (Id. at 4).
Defense counsel made no representation that the prosecutor had
failed to provide the disc at arraignment or that the disc did not
contain the warrants and applications.
Nor
did
trial
counsel
raise
such
allegations
in
his
December 21, 2007 letter to the prosecutor, in which he noted that
the warrants and applications had not been included on another disc
provided by the prosecution which contained several hundred pages
of discovery.
On direct appeal, the Fourth Department rejected it the claim
of ineffective assistance on the merits, holding that Petitioner
had
-13-
failed to show that defense counsel did not have a
strategic reason for not making the motion pursuant to
CPL 700.70 inasmuch as the record shows no colorable
basis for such a motion. The record . . . indicates that
the People complied with CPL 700.70 by turning over a
disc
containing
the
eavesdropping
warrants
and
applications at the time defendant was arraigned.
(SR.1743). This ruling constitutes an adjudication on the merits
for purposes of 28 U.S.C. § 2254(d). See
Harrington v. Richter,
562 U.S. 86, 99 (2011) (“When a federal claim has been presented to
a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles
to the contrary.”) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)
(courts presume a merits determination when it is unclear whether
a decision appearing to rest on federal grounds was decided on
another basis)).
2.
“By
its
Standard Under 28 U.S.C. § 2254(d)
terms
§
2254(d)
bars
relitigation of
any
claim
‘adjudicated on the merits’ in state court, subject only to the
exceptions in §§ 2254(d)(1) and (2).” Harrington, 562 U.S. at 98.
A federal court may not grant habeas relief for claims subject to
§ 2254(d) unless the petitioner shows that the state court’s
decision “was contrary to” federal law then clearly established in
the holdings of the Supreme Court, 28 U.S.C. § 2254(d)(1); or that
it “involved an unreasonable application of” such law, 28 U.S.C.
§
2254(d)(1);
or
that
it
“was
-14-
based
on
an
unreasonable
determination of the facts” in light of the record before the state
court,
28
U.S.C.
§
2254(d)(2).
“Section
2254(d)(1)’s
backward-looking language—‘resulted in’ and ‘involved’—requires an
examination of the state-court decision at the time it was made. It
follows that the record under review is also limited to the record
in existence at that same time—i.e., the state-court record.”
Cullen v. Pinholster, 563 U.S. 170, 171 (2011).2
The clearly established Supreme Court precedent applicable to
claims of ineffective assistance of trial counsel is Strickland v.
Washington, 466 U.S. 668, 694 (1984). E.g., Williams v. Taylor, 529
U.S. 362, 390 (2000) To establish ineffective assistance of trial
counsel,
a
petitioner
must
demonstrate
that
counsel
provided
deficient performance in that the representation he received fell
below an objective standard of reasonableness. Petitioner also must
demonstrate that he was prejudiced by counsel’s performance, i.e.,
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694. As to the first Strickland
prong, “[a] fair assessment of attorney performance requires that
every effort
be
made
to
eliminate
the distorting
effects
of
2
Petitioner attempts to rely on additional, off-the-record written
correspondence to support his claim. See Petition (Docket No. 2) at 7 & Exhibits
6-9 (Docket No. 2-1, pp. 95-103 of 247). However, these documents were not before
the Fourth Department as part of the record on appeal, see State Court Record
(“SCR”) at 272-1661), when it adjudicated Petitioner’s ineffective assistance of
trial counsel claim. Therefore, this Court is foreclosed from considering them
on habeas review. Cullen v. Pinholster, 563 U.S. at 181-82.
-15-
hindsight. . . .” Id. at 689. “Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
3.
Petitioner Has Not Satisfied the Requirements of 28
U.S.C. § 2254(d)
The Supreme Court has instructed that review under AEDPA is
highly deferential: “[A] habeas court must determine what arguments
or
theories
.
.
.
could
have
supporte[d]
the
state
court’s
decision; and then it must ask whether it is possible fairminded
jurists
could
disagree
that
those
arguments
or
theories
are
inconsistent with the holding in a prior decision of this Court.”
Cullen, 563 U.S. at 188 (quotation omitted). When a habeas court is
reviewing a claim under both Strickland and AEDPA, the review is
“doubly deferential.” Knowles v. Mizrayance, 129 S. Ct. 1411, 1413
(2009) (citation omitted). Thus, Petitioner here must demonstrate
that no “fairminded jurists could disagree” on the incorrectness of
the Fourth Department’s decision.
The Court finds that the Fourth Department had a reasonable
basis in law and the record before it for concluding that the
“record show[ed] no colorable basis” for a motion pursuant to CPL
700.70 and thus there was a strategic reason for trial counsel not
-16-
to
make
such
a
motion.
As
noted
above
in
Section
B.1,
the
transcript of the arraignment reveals that, in response to the
trial court’s request to provide the documents necessary under CPL
§ 700.70, the prosecutor replied that those documents were on the
computer disc given to defense counsel that day. Defense counsel,
despite being part of the colloquy, did not dispute this assertion.
Pointing to trial counsel’s later statements to the effect that he
“needed the documents,” Petitioner argues that this demonstrates
that the prosecution failed to provide them on the computer disc at
the arraignment. Petitioner points to trial counsel’s November 28,
2007 affirmation supporting the pre-trial omnibus motion, wherein
he asserted that “[b]efore Defendant can articulate his suppression
motion he needs to be provided with all warrants, applications,
affidavits in support, returns, inventories, pen registers, etc.”
(Appendix on Appeal (“App.”) at 41). But trial counsel did not
contend that the prosecutor had failed to give him the disc at
defendant’s arraignment; he simply said that he did not have the
documents.
Indeed,
trial
counsel
never
disputed
the
prosecutor’s
statement that she had provided the disc with the subject documents
at the arraignment. Significantly, it is unknown what was said
during
the
colloquy
that
occurred
among
trial
counsel,
the
prosecutor, and the trial court at the December 5, 2007 proceeding
after the prosecutor indicated that she “provided them on the disc,
-17-
I thought.” This gap in the record further undermines Petitioner’s
assertion trial counsel “clear[ly]” believed he did not timely
receive
the
CPL
§
700.70
materials.
Moreover,
Petitioner’s
appellate counsel made an important concession in his brief that,
“[a]dmittedly[,] there was a dispute about whether counsel was
given the material in a timely manner.” (SCR at 251). Thus, the
Court finds that the record equally permits a benign alternative
explanation
for
trial
counsel’s
decision
not
to
seek
suppression—that there was no basis for such a motion because he
simply had misplaced the disc that the prosecutor provided at the
arraignment hearing.
Reviewing Petitioner’s ineffective assistance claim under the
“doubly deferential” lens warranted by AEDPA’s overlay on the
Strickland
standard,
the
Court
“see[s]
nothing
objectively
unreasonable or contrary to common sense[,]” Santone v. Fischer,
689 F.3d 138, 155 (2d Cir. 2012), in the Fourth Department’s
conclusion that trial counsel did not lack a strategic reason for
his decision not to move for suppression. See, e.g., Sexton v.
Beaudreaux, 138 S. Ct. 2555, 2559 (2018) (state court’s denial of
habeas petition filed by state prisoner alleging that pretrial
identification procedure using two photographic lineups violated
due process and that counsel’s failure to file motion to suppress
identification was ineffective assistance was not unreasonable
application of Strickland where “there [was] at least one theory
-18-
that could have led a fairminded jurist to conclude that the
suppression motion would have failed”). Because Petitioner has
failed
to
fulfill
the
Strickland
prong
regarding
counsel’s
performance, the Court need not consider whether he can demonstrate
prejudice. See Strickland, 466 U.S. at 700 (“Failure to make the
required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim.”).
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
petition is dismissed. 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
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
November 6, 2018
Rochester, New York.
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