Blocker v. Graham

Filing 31

DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Marlo J. Blocker. Signed by Hon. Charles J. Siragusa on 2/2/22. Copy of this NEF and order mailed to pro se petitioner at Auburn.(KAP)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARLO J. BLOCKER,
-vs-

No. 6:17-cv-06648-CJS
DECISION AND ORDER

Petitioner,

SUPERINTENDENT HAROLD GRAHAM,
Respondent.

APPEARANCES
For Petitioner:

Marlo J. Blocker, Pro Se
DIN 10-B-0352
Auburn Correctional Facility
Box 618
Auburn, New York 13021

For Respondent:

Michelle Maerov, A.A.G.
Paul B. Lyons, A.A.G.
New York State Attorney General’s Office
28 Liberty Street
New York, New York 10005
INTRODUCTION

Marlo J. Blocker (“Blocker” or “Petitioner”), proceeding pro se, seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Blocker is in Respondent’s
custody pursuant to a judgment entered on January 13, 2010, in New York State, Monroe
County Court (Geraci, J.), following a jury verdict convicting him of several weaponspossession offenses. For the reasons discussed herein, the request for a writ of a habeas
corpus is denied.

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BACKGROUND
I.

Pre-Trial Proceedings
The conviction at issue here stems from a traffic stop of Blocker’s car on January 2,

2009, which resulted in the seizure of a sawed-off shotgun and a handgun. Blocker, along
with his two passengers, Craig Madison (“Madison”) and Freddie Collins (“Collins”), were
indicted as accessories with four counts of second-degree criminal possession of a
weapon (New York Penal Law (“P.L.”) §§ 265.03(1)(b), (3)) for possessing the handgun
and shotgun with intent to use them unlawfully against another person, and for
possessing the weapons outside a home or business; and three counts of third-degree
criminal possession of a weapon (id. §§ 265.02(1), (3)) for knowingly possessing the
handgun and the shotgun, and for possessing a defaced shotgun. As owner of the
vehicle, Blocker was charged with unlawful window-tinting (New York Vehicle & Traffic
Law § 375). See SR.010-024. 1
On June 5, 2009, and June 16, 2009, Monroe County Court Judge Frank P. Geraci,
Jr. (“trial court”) held an evidentiary hearing on the three defendants’ motions challenging
the legality of the traffic stop, arrests, search of the car, and seizure of the shotgun and
handgun. The trial court denied the suppression motions in full at the end of the second
hearing. See H2. 63–72. 2 In particular, the trial court ruled that the traffic stop was proper,
H2. 70, and the glove box was properly searched. H2. 71.

Citations to “SR. #” refer to the Bates-stamped page numbers in the lower right corner of the state court
records filed electronically by Respondent at ECF No. 21-2.
1

Citations to “H1. #” and “H2. #” refer to pages of the June 5, 2009, and June 16, 2009, hearing transcripts,
respectively. The two transcripts are separately paginated. They are docketed at ECF No. 21-3, pages 14
to 244. Citations to “Tr. #” refer to pages of the trial transcript, docketed at ECF No. 21-3, pages 521 to
1023. Citations to “S. #” refer to pages of the sentencing transcript, docketed at ECF No. 21-3, pages 1024
to 1058. Unless otherwise indicated, when the Court refers to page numbers, it will be to the page numbers
2

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A week later, Madison pleaded guilty to the indictment in exchange for a
determinate sentence of seven years’ imprisonment plus five years’ post-release
supervision. Tr. 364. Blocker and Collins proceeded to a joint jury trial in October 2009.
II.

Trial
A. The People’s Case
On January 2, 2009, at approximately 12:01 a.m., Officers Thomas Luciano

(“Luciano”), Aaron Wilcox (“Wilcox”), and Bradley Pike (“Pike”) of the Rochester Police
Department (“RPD”) Tactical Unit were driving south on Conkey Avenue in separate
marked patrol cars. The officers explained that they had just cleared an unrelated report
of “shots fired.” Tr. 219–21, 240, 249–50, 261, 300–01. Luciano, in the lead position,
testified that he stopped at the four-way stop at Conkey and Clifford Avenues and then
turned left onto Clifford, heading east. Tr. 221.
As Luciano turned, he observed a black Ford Taurus station wagon travelling
westbound on Clifford Avenue as it pulled up to the stop sign at Conkey Avenue. Tr. 221,
247. According to Luciano, the station wagon’s side and rear windows were tinted so
darkly he could barely see through them. Tr. 221, 232. Suspecting a window-tinting
violation, Luciano radioed Wilcox and Pike of his intention to stop the station wagon.
Luciano said that he activated his emergency lights, drove past the wagon, parked his
patrol car in the eastbound lane, and walked toward the driver’s side of the station wagon.
Tr. 221–22.

provided by the parties or indicated on the original document, rather than the pagination automatically
generated by CM/ECF.

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Wilcox, who was next in line, testified that he parked in the intersection, activated
his emergency lights, and focused a spotlight on the station wagon’s un-tinted windshield,
illuminating the interior. Tr. 301, 304.
Pike testified that after parking his car on Conkey Avenue, he approached the Ford
Taurus from the front, on the passenger’s side. Tr. 250, 262–63. Pike related that he saw
the front-seat passenger, later identified as Madison, “bending forward, he was seatbelted in, and [Pike] could see his back coming away from the seat and he was leaning
forward, possibly grabbing something or stashing something.” Tr. 250–52, 262–63.
According to Pike, Madison’s “shoulders [were] moving away from the seat bending down,
forward, possibly grabbing a weapon or trying to conceal one.” Tr. 263. Pike testified that
he alerted the other officers by yelling, “he’s reaching, he’s reaching!” Tr. 251–52.
Pike said he then ran up to the front passenger’s-side door but found his view
obstructed by the tinting on the side windows. Tr. 251–52, 264. Pike testified that when
he opened up the passenger’s-side door and trained his flashlight on Madison, he
“immediately noticed that [Madison’s] hands were close together, his legs were close,
tight; his hands were palms down. It appeared that he was either covering something or
holding something.” Tr. 252, 264. Pike said that he observed the “slide” of a shotgun,
which was “resting against the seat right between [Madison’s] legs.” Tr. 252, 257, 264,
268.
Pike testified that he yelled, “gun, gun, gun” while drawing his weapon and
grabbing the shotgun. Tr. 252–53. Luciano testified that, after hearing Pike yell, he
pointed his gun at Blocker, who was in the driver’s seat. Tr. 222–23, 233–36. Luciano
stated that he first noticed the shotgun when he observed Pike reach between Madison’s

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legs and remove it. Tr. 235, 239, 244–45. Luciano described the shotgun as lying
“between [Madison’s] knees.” Tr. 243–44.
Pike testified that after grabbing the shotgun, he arrested Madison, placed him in
handcuffs, searched him, and recovered the following items from his pockets: three live
rounds of 20-gauge shotgun ammunition, a camouflage-patterned neoprene face mask,
and gloves. Tr. 254–57, 265–66. Luciano recounted that his search of Blocker yielded no
contraband but he discovered that the Taurus was registered to Blocker. Tr. 225, 236–
37, 241.
Responding officer Matt Klein (“Klein”) testified that he searched the backseat
passenger, later identified as Collins, who was wearing a “level 1 bullet-proof vest” with
“a trauma plate” under his clothing. Tr. 288–89.
Since the car had to be towed, Luciano testified that the police first searched it for
personal property pursuant to RPD policy. Tr. 225–26. Officer Nicholas Romeo (“Romeo”)
arrived and conducted the search while the car was still running. When he opened the
glove box, he found a black handgun. Tr. 275–76. Luciano and Pike testified that the
glove box was directly in front of where Madison had been sitting. Tr. 239–40, 263, 270.
Police technician Richard Martin (“Martin”) testified that the shotgun contained
three live rounds of ammunition in the magazine and one live round in the chamber; the
handgun had eight live rounds in the magazine. Tr. 314–17. Fingerprint testing of the
handgun and shells yielded no results. Tr. 317, 330–31.
Firearms examiner Eric Freemesser (“Freemesser”) testified that both the sawedoff shotgun and the handgun were operable, and that the shotgun’s serial number had
been intentionally scratched off. Tr. 339–40, 342, 347. Freemesser stated that though he

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recovered the shotgun's serial number, he could not determine ownership of either
weapon. Tr. 349. According to Freemesser’s measurements, the overall length of the
shotgun was 25 inches and the barrel-length was 14 inches. Tr. 343.
B. The Defense Case
Blocker’s theory of the case was that the shotgun and the handgun belonged to
the front seat passenger, Madison, and that Blocker’s only connection to Madison was
that he had agreed to give Collins and Madison a ride. Tr. 215–16. In support of this
theory, Blocker’s attorney subpoenaed Madison to testify at trial. Tr. 7.
Just prior to taking the stand, Madison announced that he would invoke his Fifth
Amendment right against self-incrimination. Tr. 363–69, 372–74. Although this prevented
Madison from being called to testify, the trial court ruled that a portion of Madison’s plea
colloquy could be admitted into evidence as a statement against penal interest. Tr. 373–
74, 377–92. The following excerpt from Madison’s plea colloquy was read into the record:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

While you were in that motor vehicle, did you possess a sawed-off
shotgun, a 20-gauge sawed-off shotgun?
Yes.
And did you know that that gun was loaded at that time?
Yes.
And you knew that was less than 26 inches, the shotgun, correct?
Yes.
Were you also in possession of a loaded handgun that was in the
glove compartment?
Yes.
And that was a 9-millimeter pistol, correct?
Yes.
And you’re aware that the handgun was there?
Yes.
And you could have used it if you wanted to?
Yes.

Tr. 405–06.

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C. The Verdict
The jury returned a verdict on October 22, 2009, acquitting Blocker on count four
(third-degree criminal possession of a weapon on the theory that the sawed-off shotgun
was defaced) and convicting him on the remaining counts. 3
D. The Motion to Set Aside the Verdict
On December 2, 2009, the parties appeared before the trial court. At that time, trial
counsel asked for an adjournment so that Blocker could file a motion to set aside the
verdict. On January 10, 2010, trial counsel submitted a motion pursuant to New York
Criminal Procedure Law (“C.P.L.”) § 330.30(1) and (3), attaching an affidavit signed by
Blocker, SR. 63–65, and a sworn statement by Mizael Rosario (“Rosario”) dated
October 28, 2009, SR. 66–67, who allegedly observed the traffic stop of Blocker’s vehicle.
Among other things, Blocker’s affidavit argued that certain alleged inconsistencies
in the police officers’ testimony rendered application of the automobile presumption
incredible. Rosario’s affidavit recounted his observations of a white unmarked vehicle
which drove up quickly behind Blocker’s vehicle and pulled in so closely behind him that
there was “no way for the Taurus to move any direction.” It appeared to Rosario that the
white vehicle was involved with the police in stopping the Taurus, because the officer who
was at the front “seemed to give the white car some type of signal.” Rosario explained
that the officer “put his thumb in the air,” and then “the white car back [sic] up real fast
and left.” Id.

Collins was convicted of the same weapons charges and as sentenced to an aggregate nine-year
determinate term of imprisonment plus five years of post-release supervision. His conviction was affirmed
on direct appeal. People v. Collins, 105 A.D.3d 1378 (4th Dep’t), Iv. denied, 21 N.Y.3d 1003 (2013).
3

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E. Sentencing
Sentencing was held on January 13, 2010. At the start of the hearing, the trial court
heard argument on the C.P.L. § 330.30 motion. S. 2–9. The trial court found that the
motion had “no merit to it whatsoever.” S. 9.
The trial court then sentenced Blocker as a second felony offender to a twelveyear determinate term with five years’ post-release supervision on each of the four counts
of second-degree criminal possession of a weapon. S. 25–26. On each of the two counts
of third-degree criminal possession of a weapon, the trial court sentenced Blocker to an
indeterminate term of three and one-half to seven years’ imprisonment. S. 26. All
sentences were set to run concurrently. Id. The trial court conditionally discharged the
traffic infraction. Id.
III.

Direct Appeal
Represented by new counsel, Blocker appealed to the Appellate Division, Fourth

Department, of New York State Supreme Court (“Appellate Division”). Blocker argued
that: (1) trial counsel was ineffective for failing to move to suppress the guns seized by
the police, failing to move for a separate trial from Collins, failing to investigate the witness
(Rosario) he produced after trial, failing to follow up on his subpoena for 911 call
recordings, and failing to object to prosecutorial misconduct during opening statements,
closing statements, and during the police officers’ direct examinations; (2) the seizure of
the handgun violated his Fourth Amendment rights because it was an invalid inventory
search; (3) the trial court erred in instructing the jury on accessorial liability under P.L. §
20.00 because there was no proof upon which a jury could find that Blocker solicited,
requested, commanded, importuned or intentionally aided the person who actually

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committed the illegal act; and (4) the verdicts regarding both the handgun and shotgun
were against the weight of the evidence. SR. 093–119.
On October 2, 2015, the Appellate Division unanimously affirmed the conviction.
People v. Blocker, 132 A.D.3d 1287 (4th Dep’t 2015). The New York Court of Appeals
denied leave to appeal on April 22, 2016. People v. Blocker, 27 N.Y.3d 992 (2016).
IV.

The Federal Habeas Proceeding
Blocker commenced this habeas proceeding by filing a pro se Petition, ECF No. 1,

reasserting the arguments made in appellate counsel’s brief on direct appeal. See id. at
3-10, ¶ 12 (incorporating grounds raised on direct appeal).
Respondent filed a Memorandum of Law in Opposition, ECF No. 20; and a
Response, ECF No. 21, attaching the state court records and trial transcripts, ECF Nos.
21-1 through 21-3. Respondent argues that the Petition is untimely; that Ground One
asserting ineffective assistance of trial counsel is partially unexhausted and entirely
meritless; that federal habeas review is unavailable for Grounds Two and Four; and that
Ground Three is unexhausted but must be deemed exhausted and procedurally defaulted
and is, in any event, without merit.
Blocker filed a Reply contesting Respondent’s timeliness argument, asserting that
his claims are cognizable and meritorious, and arguing that the procedural default should
be excused because he is actually innocent. See ECF No. 30.
DISCUSSION
I.

Timeliness
Respondent contends that that the Petition is untimely under 28 U.S.C. §

2244(d)(1)(A) because it was filed more than one year after Blocker’s conviction became

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final on July 21, 2017. Respondent’s argument involves interpreting the last sentence of
Rule 3(d) of the Rules Governing Section 2254 Cases in the District Courts, which
provides as follows:
A paper filed by an inmate confined in an institution is timely if deposited in
the institution’s internal mailing system on or before the last day for filing. If
an institution has a system designed for legal mail, the inmate must use that
system to receive the benefit of this rule. Timely filing may be shown by a
declaration in compliance with 28 U.S.C. § 1746 or by a notarized
statement, either of which must set forth the date of deposit and state that
firstclass postage has been prepaid.
Rules Governing § 2254 Cases in the District Courts, Rule 3(d), 28 U.S.C. foll. § 2254.
According to Respondent, Habeas Rule 3(d) “expressly requires petitioners to file a
declaration or notarized statement that ‘set[s] forth the date of deposit and state[s] that
first-class postage has been prepaid.’” ECF No. 20 at 23 (quoting Rules Governing § 2254
Cases in the District Courts, Rule 3(d), 28 U.S.C. foll. § 2254).
The Second Circuit has not interpreted this aspect of Habeas Rule 3(d) and there
are no cases within the Circuit that are on point. The only decision cited by Respondent
is an unpublished district court decision, Brown v. Smithem, No. 15-CV-1458 (BKS/CFH),
2017 WL 1155825, at *4 (N.D.N.Y. Feb. 28, 2017), report and recommendation adopted,
No. 915CV01458BKSCFH, 2017 WL 1155827 (N.D.N.Y. Mar. 27, 2017), which did not
involve a § 2254 petition; did not mention or interpret Habeas Rule 3(d); and is, in any
event, factually distinguishable from Blocker’s case.
Moreover, Respondent’s interpretation of Habeas Rule 3(d) has not been favored
by the circuit courts of appeal that have considered the issue. See, e.g., Houser v. United
States, 808 F. App’x 969, 971 (11th Cir. 2020) (unpublished op.) (“[W]e have never held
that in order to be timely filed, a § 2255 motion must contain a declaration in compliance

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with § 1746. Indeed, the plain language of Rule 3(d), which provides that ‘[t]imely filing
may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized
statement,’ undermines such a contention. See Rule 3(d), Rules Governing Section 2255
Proceedings (emphasis added). The plain language of the rule indicates that there are
multiple ways in which a prisoner can demonstrate the timeliness of a filing, including, but
not limited to, filing a declaration in compliance with § 1746.”).
When faced with “an enigmatic threshold issue,” the Court “occasionally may avoid
addressing [it] by cutting directly to the merits.” Ramos-Martinez v. United States, 638
F.3d 315, 324 (1st Cir. 2011) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(disclaiming any intention “to suggest that the procedural-bar issue must invariably be
resolved first” in a habeas case, and explaining that “[j]udicial economy might counsel”
going directly to the merits if the merits were easily resolvable against the petitioner)). In
general, this approach “requires . . . that the outcome on the merits is both clear and
favorable to the party advocating the threshold issue.” Id. at 324–25 (citing Lambrix, 520
U.S. at 525).
Here, the timeliness issue involves a novel and rather complicated issue of law
which is entirely unsettled within this Circuit. Even if the Court were to find the Petition
untimely, it still would have to analyze whether Blocker has a viable actual innocence
claim to allow him to avoid the statute of limitations, which it must do in any event since
Blocker has argued he is actually innocent in response to Respondent’s assertion of the
affirmative defense of procedural default. See McQuiggin v. Perkins, 569 U.S. 383, 386
(2013) (holding that “actual innocence, if proved, serves as a gateway through which a

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petitioner may pass whether the impediment is a procedural bar, . . . or . . . expiration of
the statute of limitations”).
In addition, as part of the timeliness analysis, the Court would have to assess
whether Blocker is entitled to equitable tolling of the limitations period. On the record as
it stands, the Court might be inclined to find equitable tolling since, based on the letters
attached to the Petition, the delay in processing the Petition for mailing appears to be
attributable to prison officials. Indeed, Blocker might be entitled to the later start date of
the statute of limitations afforded by 28 U.S.C. § 2244(d)(1)(B), which applies when a
state-created impediment prevents timely filing.
In contrast, the “outcome on the [Petition] is both clear and favorable,” RamosMartinez, 638 F.3d at 324–25, to Respondent. In addition, Respondent’s timeliness
argument does not implicate the Court’s subject matter jurisdiction. See Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir.) (joining sister circuits and holding that the statute of
limitations in AEDPA is not jurisdictional), cert. denied, 531 U.S. 840 (2000). Accordingly,
in the interests of judicial economy and fairness, the Court finds it appropriate to bypass
the timeliness issue and proceed directly to the Petition’s merits.
II.

The Petition Is a Mixed Petition but May Be Denied Under the Authority of
28 U.S.C. § 2254(b)(2)
Under 28 U.S.C. § 2254(b)(1), a prisoner in state custody must exhaust his or her

state court remedies by “fairly present[ing]” each claim for habeas relief in “each
appropriate state court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese,
541 U.S. 27, 29 (2004) (citations omitted). The exhaustion requirement is not satisfied
when the petitioner has “employed the wrong procedural vehicle in raising his claim and
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presented it to the wrong state court.” Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985)
(citing Ex parte Hawk, 321 U.S. 114 (1944) (per curiam); other citations omitted). In
addition, the Second Circuit generally has required habeas petitioners to present all
factual allegations supporting ineffective assistance claims to the state courts before filing
in federal court. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (“Since
Rodriguez’s claim of ineffective assistance of counsel can turn on the cumulative effect
of all of counsel’s actions, all his allegations of ineffective assistance should be reviewed
together [by the state courts in the first instance].”) (citation omitted).
Respondent asserts that some of Blocker’s allegations of ineffective assistance of
trial counsel are unexhausted because he incorrectly raised them on direct appeal rather
than in a collateral motion to vacate the judgment pursuant to C.P.L. § 440.10. As
Respondent points out, the Appellate Division considered the merits of the record-based
ineffectiveness claims, see Blocker, 132 A.D.3d at 1287-88 (finding that trial counsel
provided meaningful representation), but held that the claims asserting ineffective
assistance of trial counsel based on the failure to move for severance and failure to
conduct an adequate investigation were “based on matters outside the record and
therefore must be raised in a motion pursuant to C.P.L. [§] 440.10.” Id. (citation omitted).
There is no record of Blocker ever filing a C.P.L. § 440.10 motion.
In his Reply, Blocker does not address Respondent’s exhaustion argument apart
from insisting, without explanation, that his ineffectiveness claims are fully exhausted.
They are not. “Courts in the Second Circuit have held that when[, as here,] the Appellate
Division indicates that a claim for ineffective assistance of counsel is unreviewable on
direct appeal because it is based upon matters “dehors the record” and the petitioner fails

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to subsequently file a CPL § 440.10 motion, the claim for ineffective assistance of counsel
is unexhausted.” Smalls v. Lee, No. 12CV2083KMKLMS, 2016 WL 5334986, at *11
(S.D.N.Y. Sept. 22, 2016) (collecting cases). Because there is no time-limit on filing a
C.P.L. § 440.10 motion, and because a C.P.L. § 440.10 motion based on off-the-record
ineffectiveness claims would not be barred by any procedural rule, Blocker still has
remedies available in the state. Therefore, he has not fulfilled the exhaustion requirement.
See, e.g., Acosta v. Couture, No. 99 CIV 9727 (LMM), 2003 WL 272052, at *6 (S.D.N.Y.
Jan. 23, 2003) (ineffective assistance of trial counsel claim was unexhausted because it
“was not properly raised in the state court and [petitioner] may still file a CPL § 440.10
motion”).
Because Ground One is unexhausted, and the remaining claims in the Petition
are exhausted, the Petition is a so-called “mixed petition.” See Zarvela v. Artuz, 254 F.3d
374, 378 (2d Cir. 2001). Courts in this Circuit have identified four procedural options
available when confronted with a mixed petition: “(1) dismiss the petition in its entirety
without prejudice; (2) deny the entire petition on the merits [pursuant to 28 U.S.C. §
2254(b)(2)]; (3) allow the petitioner to delete the unexhausted claims and proceed with
his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner
to exhaust his unexhausted claims.” Wesley-Rosa v. Kaplan, 274 F. Supp. 3d 126, 128
(E.D.N.Y. 2017) (quotation omitted).
Dismissal of the Petition without prejudice with leave to refile would jeopardize
Blocker’s ability to obtain habeas review because the statute of limitations has long since
expired. The first option therefore is inappropriate. See Zarvela, 254 F.3d at 382 (finding
that outright dismissal was not appropriate because, “with so little time remaining on his

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statutory one-year limitations period, a complete dismissal “’jeopardize[d] the timeliness
of a collateral attack’”) (quotation omitted; alteration in original).
Blocker has not requested that the Petition be stayed and held in abeyance so that
he may return to state court and file a C.P.L. § 440.10 motion. In any event, the Court
finds that granting stay would be an abuse of discretion because Blocker does not have
“good cause” for failing to complete exhaustion before filing in federal court. Indeed,
Blocker has been on notice since his direct appeal that some of his claims were not
properly before the Appellate Division and instead should be raised in a C.P.L. § 440.10
motion. “The absence of ‘good cause’ for the failure to exhaust is fatal to Petitioner’s
ability to fulfill the Rhines standard.” Carr v. Graham, 27 F. Supp.3d 363, 365 (W.D.N.Y.
2014) (citing Rhines v. Weber, 544 U.S. 269, 277–78 (2005) (“Because granting a stay
effectively excuses a petitioner’s failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court determines there was good
cause for the petitioner’s failure to exhaust his claims first in state court.”)). Therefore, the
fourth option is inappropriate.
It is unnecessary to determine whether Blocker wishes to delete his unexhausted
claim because, under either the second or third options, the outcome is same—the
Petition must be dismissed. As discussed further below, Grounds Two and Four are not
cognizable, and Ground Three is subject to an unexcused procedural default. All the
claims of ineffective assistance in Ground One—both unexhausted and exhausted—“are
unquestionably meritless, and their lack of merit is not subject to debate by reasonable
jurists.” Mills v. Lempke, No. 11-CV-0440 MAT, 2013 WL 435477, at *5 (W.D.N.Y. Feb. 4,

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2013) (citations omitted). Accordingly, reliance on 28 U.S.C. § 2254(b)(2) to deny this
mixed petition is appropriate. Id.
III.

Petitioner Was Not Denied the Effective Assistance of Trial Counsel
(Ground One)
A. Legal Standard
To succeed on a claim of ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984), the petitioner must establish that counsel’s performance “fell below
an objective standard of reasonableness[,]” id. at 688, and that the petitioner suffered
prejudice as a result, see id. at 694. Prejudice, for Strickland purposes, is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “The habeas petitioner bears the burden of establishing
both deficient performance and prejudice.” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir.
2005) (citation omitted).
B. Trial Counsel’s Alleged Errors
1. Failure to Seek Suppression of the Handgun and Shotgun
Blocker asserts that although trial counsel’s omnibus motion challenged the traffic
stop under the Fourth Amendment rights, he unreasonably “did not move to suppress the
guns seized by the police after [the] stop.” SR. 093–095; ECF No. 1, Ground One
(incorporating direct appeal arguments). Blocker continues, “[t]he papers were so badly
drafted that they did not indicate what the result of any unlawful arrest would be.” SR.
094. The Appellate Division denied this aspect of Blocker’s ineffectiveness claim, finding
that he had “failed to demonstrate that the alleged deficiencies in the pretrial suppression
motion compromised his defense or his right to a fair trial, inasmuch as County Court

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addressed his challenge to the legality of the search of his vehicle.” Blocker, 132 A.D.3d
at 1287.
Respondent argues that trial counsel’s omnibus motion was not deficient because
it effectively sought suppression of the weapons. Respondent notes that trial counsel
asserted that “the arrest of the defendant was not founded on reasonable suspicion to
believe that criminal acts had been committed and hence such arrest was in violation of
the defendant’s Fourth Amendment Rights[,]” SR.032, and cited Mapp v. Ohio, 367 U.S.
643 (1961). See SR. 025–026, 032. “A Mapp hearing is called for when the defendant
alleges that physical evidence sought to be used against him or her was obtained illegally
by law enforcement officers and is inadmissible at trial.” Montgomery v. Wood, 727 F.
Supp. 2d 171, 186 (W.D.N.Y. 2010) (citations omitted). Moreover, the People’s response
described Blocker’s omnibus motion as seeking “to suppress any evidence obtained in
connection with the arrest of the defendant.” SR. 042 (emphasis supplied).
Then, at the suppression hearing, trial counsel argued that because the police had
no basis to arrest petitioner, they also had no basis to take possession of, or search, the
Ford Taurus station wagon. Therefore, trial counsel contended, the handgun and the
shotgun should be suppressed. H2. 50–51. Trial counsel effectively made a “fruit of the
poisonous tree” argument 4 which, if successful, would have resulted in suppression of
the weapons.

Under the fruit of the poisonous tree doctrine, “evidence obtained following an illegal seizure generally
must be excluded unless the government shows[, by a preponderance of the evidence,] (1) that the
evidence would have been discovered inevitably, (2) that the evidence was discovered from a separate,
independent source, or (3) that the discovery of the evidence was so attenuated from the illegal seizure
that the taint of the unlawful police conduct was dissipated.” United States v. Johnson, 365 F. Supp. 3d 89,
99 (D.D.C. 2019) (citing Utah v. Strieff, 579 U.S. 232, 237 (2016); United States v. Holmes, 505 F.3d 1288,
1293 (D.C. Cir. 2007)).
4

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In its findings of fact and conclusions of law, the trial court determined that the
traffic stop, the arrest, and the search of Blocker’s car all were “proper” and, accordingly,
the trial court denied “the motion to suppress the sawed-off shotgun, [and] any other
property seized from the vehicle, including the revolver. . . .” H2. 71–72. As Respondent
argues, since the trial court considered and decided the suppression arguments that
Blocker complains trial counsel failed to raise, he cannot demonstrate that he was
prejudiced by the alleged omission. See, e.g., Curzi v. United States, 773 F. Supp. 535,
545 (E.D.N.Y. 1991) (finding no prejudice where co-defendants’ counsel made the
suppression motion that petitioner faulted his counsel for not making), aff’d sub nom.
Laaman v. United States, 973 F.2d 107, 113 (2d Cir. 1992).
2. Failure to Challenge the Legality of the Inventory Search
On direct appeal, Blocker faulted trial counsel for failing to argue the People did
not establish that the search of the car, including the glove box, constituted a valid
“inventory search” under New York law. See SR. 094–095; ECF No. 1, Ground One
(incorporating direct appeal arguments). Although the Appellate Division did not expressly
discuss the inventory-search issue, it “reject[ed] defendant’s contention that he was
denied effective assistance of counsel[.]” Blocker, 132 A.D.3d at 1287.
At the outset, Respondent concedes that the search of Blocker’s car did not
constitute a valid “inventory search” under New York law because, as appellate counsel
pointed out on appeal, the prosecution did not present evidence of any police policy
regarding inventory searches, and the officer who conducted the search did not make a
meaningful inventory list. See ECF No. 20 at 52 n.11 (citing People v. Gomez, 13 N.Y.3d

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6, 11 (2009); other citation omitted). 5 Nevertheless, Blocker has not shown that there is
a reasonable probability that the outcome of the suppression hearing would have been
different had trial counsel explicitly argued that the People failed to establish compliance
with the rules regarding inventory searches.
In fact, Collins’ attorney made the argument that Blocker faults trial counsel for not
making—that “there was no inventory search,” but rather the police officers conducted “a
search for evidence.” H2. 57–58. The trial court rejected this proposition, finding that
Blocker’s car “was ultimately searched prior to being towed pursuant to a general order
of the Rochester Police Department [that] required that the vehicle be searched.” H2. 68;
see also H2. 71. Thus, Blocker cannot establish that the outcome of the suppression
hearing would have been different had his attorney raised this argument. Blocker’s failure
to demonstrate prejudice obviates the need to consider whether trial counsel’s
performance was deficient. See Strickland, 466 U.S. at 697 (stating that where the court
can “dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,” it
need not address the performance prong).
3. Failure to Object to Prosecutorial Misconduct
Blocker reasserts his claim, raised on direct appeal, that trial counsel erred by
failing to object when the prosecutor “used every opportunity to tell jurors that the
neighborhood in which this car was stopped was a high-crime one with a lot of violence.”
SR.102-05; see ECF No. 1, Ground One (incorporating direct appeal arguments).
Generally, the doctrine of Stone v. Powell, 428 U.S. 465 (1976), precludes habeas review of Fourth
Amendment claims so long as the petitioner had a full and fair opportunity to litigate them in state court. In
Kimmelman v. Morrison, 477 U.S. 365 (1986), “the Supreme Court rejected arguments that Stone v. Powell
bars Sixth Amendment ineffective assistance of counsel claims premised on counsel’s failure to raise
Fourth Amendment objections.” Shaw v. Scully, 654 F. Supp. 859, 865 (S.D.N.Y. 1987) (noting that “[w]hile
the Court may not sidestep Stone v. Powell by equating ineffective assistance of counsel with
unconscionable breakdown, it may . . . consider the ineffective assistance claim independently”).
5

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According to Blocker, the prosecutor made a “safe-streets” appeal “in an implicit
manner” during his opening and statements and during his direct examination of officers
Pike, Luciano, and Wilcox. He complains that during opening statements, the prosecutor
told the jurors they were “going to hear this is a rough neighborhood.” Tr. 210; that when
Pike saw Madison “lean forward and reach down with both arms,” he knew from “his
training . . . that’s life threatening” so Pike yelled, “‘he’s reaching,’” Tr. 211; that during a
“routine traffic stop,” “officers’ lives are now in jeopardy or possibly in jeopardy,” Tr. 209
“[a]nd that’s what happened in this case.” Tr. 209.
Blocker further contends that when questioning Pike, Luciano, and Wilcox, the
prosecutor improperly elicited testimony that the RPD Tactical Unit is “a violence
suppression unit out looking for guns and drugs,” Tr. 250; the area of the traffic stop was
a high-crime neighborhood, Tr. 250–51; “[t]here had been a spike in violence” in the area
which the Tactical Unit was “assigned to address,” Tr. 219–20; per RPD policy, backup
units are called even for routine traffic stops because they are dangerous, especially in
the neighborhood at issue, Tr. 223, 225–51, 302; Pike covered the passenger side of the
car during the traffic stop “[f]or officer safety” because they were in a “very high-risk
neighborhood,” Tr. 250–51; Pike concluded that Madison’s action of leaning forward and
reaching down in the car was life threatening, based on his training, experience, and the
dangerousness of the neighborhood, Tr. 251–52; and the three police officers testified
they did not wear a bulletproof vest at home and that every time they were wearing the
vests they were also carrying guns. Tr. 231, 259–60, 292–92.
Finally, Blocker takes issue with the prosecutor’s comments, at the very end of his
summation, that Collins was wearing a bullet proof vest and was “ready for combat,” Tr.

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435; that Blocker, Collins, and Madison were driving around “looking for trouble”; and that
“the police, thankfully, stumbled upon them before they did what they were going to do.”
Tr. 436–37.
In his appellate brief, Blocker argued that this line of argument and testimony
implied “that a guilty verdict is necessary to help prevent the spike in violent crime in the
neighborhood,” and therefore amounted to an improper “safe streets” argument. SR. 102–
03. The People’s opposition brief responded that “[w]hile testimony and argument
concerning the level of violence on the streets in the City of Rochester were arguably
improper, the conduct was not repeated or inflammatory.” SR. 128. The Appellate Division
denied the claim, finding that “although counsel failed to object to comments by the
prosecutor that the People concede supported an improper ‘safe streets’ argument, it
cannot be said that, viewing counsel’s representation in totality, such error deprived
defendant of meaningful representation.” Blocker, 132 A.D.3d at 1288 (citations and
internal quotation marks omitted).
Respondent agrees that New York courts have criticized prosecutors for making
“improper ‘safe streets’ appeal[s]” “by suggesting to the jury that the community must be
protected from the defendant.” People v. Brown, 17 N.Y.3d 742, 743 (2011); accord, e.g.,
People v. Tolliver, 267 A.D.2d 1007, 1007 (4th Dep’t 1999) (stating that the “prosecutor
improperly made a ‘safe streets’ comment by urging the jury to do justice for the safety of
the neighborhood where the crime was committed”). Respondent contests the Appellate
Division’s statement that the People conceded an improper safe streets argument by the
prosecutor, asserting that the People’s appellate brief merely granted the point for the
sake of argument. Respondent further argues that because the prosecutor did not

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expressly ask the jury to convict Blocker to protect the community, he did not make a
“safe streets” argument. For purposes of disposing of this claim, the Court will assume
that the prosecutor made an implicit “safe streets” appeal through his argument and
questioning. Nonetheless, Blocker has not demonstrated that trial counsel’s failure to
object was professionally unreasonable or resulted in prejudice to the defense.
“As with trial decisions to offer or stipulate to certain evidence, decisions such as
when to object and on what grounds are primarily matters of ‘trial strategy and tactics[.]’”
United States v. Cohen, 427 F.3d 164, 170–71 (2d Cir. 2005) (quoting Brown v. Artuz,
124 F.3d 73, 77 (2d Cir.1997) (internal quotation marks omitted in original)). Thus, they
“are ‘virtually unchallengeable’ absent exceptional grounds for doing so.” Id. (quoting
United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004); internal quotation marks
omitted in original; further citations omitted).
It is telling that, out of all the allegedly improper prosecutorial comments and
questions identified by Blocker’s appellate counsel and discussed above, co-defendant
Collins’ attorney only objected on three occasions. See Tr. 302 (objecting to Wilcox’s
testimony that the area of the traffic was a very violent one on the basis it was cumulative
and bolstering of the other officers’ testimony); Tr. 292 (objecting when the third officer
was asked whether he wore a bullet-proof vest at home on the basis it was not relevant);
Tr. 435–46 (objecting, on the basis of “[b]urden shifting,” to summation comment that
there was “no explanation” for Collins wearing a bullet-proof vest). These objections were
overruled.
Notably, on Collins’ direct appeal, he did not raise a claim of ineffective assistance
of counsel based on his attorney’s failure to register more objections to the prosecutor’s

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questions and commentary or a stand-alone claim of prosecutorial misconduct. See
Collins, 105 A.D.3d at 1378. Blocker thus has not overcome the “strong presumption”
that trial counsel’s decision not to object fell “within the wide range of reasonable
professional assistance[.]” Strickland, 466 U.S. at 689.
Furthermore, Blocker is unable to establish prejudice. His only argument on direct
appeal as to the effect of the prosecutor’s commentary and questioning was that “[t]he
jury heard all of it as if it should be something considered by them in arriving at a verdict.”
SR. 104–05. However, that statement ignores the only issue that matters for purposes of
showing prejudice—the effect on the verdict of what the jury heard. It also does not
accurately reflect the record. The trial court instructed the jury during its opening remarks,
just prior to summations, and in its final charge that the attorney’s opening and closing
statements were not evidence. Tr. 202, 408, 444. The jury is presumed to have followed
the court’s instructions, and Blocker has offered no reason why the presumption should
not apply here. See, e.g., Greer v. Miller, 483 U.S. 756, 767 n.8 (1987); Richardson v.
Marsh, 481 U.S. 200, 211 (1987).
4. Failure to Introduce Madison’s Pre-Trial Statement
Blocker reasserts his appellate argument that trial counsel erred in not seeking to
introduce an alleged statement by Madison to the police in which he admitted that both
the shotgun and the handgun were his alone. SR. 97–98 (citing S. 19–20). According to
Blocker, trial counsel erroneously concluded that Madison’s statement was not admissible
as a statement against penal interest. Id. Respondent argues that appellate counsel’s
argument is based on an earlier misconstruction of the relevant facts by Blocker and trial
counsel. The Court agrees.

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At sentencing, in connection with the C.P.L. § 330.30 motion, trial counsel asserted
that Madison had signed a statement in which he admitted possessing both weapons in
the car, and further stated that Blocker “had no involvement.” S. 19–20. However, a
colloquy that took place out of the presence of the jury indicates that trial counsel’s
characterization of Madison’s statement was incorrect. See Tr. 389–90. Madison’s only
police statement, dated January 2, 2009, asserted, “‘[t]he shotgun is mine, I don’t know
anything about that handgun[,]’” Tr.390, but it did not claim that Blocker “had no
involvement.” See id.
In any event, Madison’s actual statement to the police was not helpful to the
defense, as evidenced by the fact that the prosecutor sought to introduce it. Tr. 389–90.
However, the trial court correctly ruled that Madison’ statement to the police, unlike his
plea colloquy, was not a declaration against penal interest and accordingly was
inadmissible. Tr. 391–92.
Thus, while trial counsel made a mistake as to the contents of Madison’s statement
to the police, he was correct on the legal issue—the statement was inadmissible. Blocker
has not shown that trial counsel erred in a manner that was professionally unreasonable
or resulted in prejudice to the defense.
5. Failure to Conduct an Inadequate Investigation
a. Failure to Discover Witness Prior to Suppression Hearing
Blocker contends, as he did on direct appeal, that trial counsel was ineffective
because he did not discover Rosario, who ultimately signed an affidavit submitted as part
of the C.P.L. § 330.30 motion, in time to testify at the suppression hearing and at trial.
SR. 096–097. According to Blocker, Rosario “would have contradicted police testimony
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at the suppression hearing and at trial,” because, as noted above, Rosario stated in his
affidavit that he saw the police approach Blocker’s car “with guns drawn from the
beginning.” SR. 096.
The decision “whether to call any witnesses on behalf of the defendant, and if so
which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys
in almost every trial.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987),
cert. denied, 484 U.S. 958 (1987). Such decisions, “if reasonably made, will not constitute
a basis for an ineffective assistance claim.” Id.
“Moreover, a petitioner does not show that he was prejudiced by trial counsel’s
alleged deficient performance merely by asserting that certain witnesses might have
supplied relevant testimony; rather, he must state exactly what testimony they would have
supplied and how such testimony would have changed the result.” Carr v. Senkowski, No.
01-CV-689, 2007 WL 3124624, at *20 (W.D.N.Y. Oct. 23, 2007) (citing, inter alia,
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). “[I]n order for the [petitioner]
to demonstrate the requisite Strickland prejudice, the [petitioner] must show not only that
this testimony would have been favorable, but also that the witness would have testified
at trial.” Id. at *22 (citing Alexander, 775 F.2d at 602).
This claim is defective for several reasons. First, Blocker has not demonstrated
what trial counsel did and did not do as far as his investigation into Blocker’s case. As the
Supreme Court has held, “the absence of evidence cannot overcome the strong
presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance.” Burt v. Titlow, 571 U.S. 12, 23 (2013).

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Second, even assuming that trial counsel should have discovered Rosario earlier,
Blocker has not established that Rosario would have testified at the suppression hearing
or at trial.
Third, even if Rosario would have been willing to testify, Blocker has not
established a reasonable probability that Rosario’s observations about the police officers
approaching Blocker’s vehicle with guns drawn would have changed the outcome of the
suppression hearing. According to appellate counsel, Rosario’s testimony was “critical”
because there was “no other challenge to [the police witnesses’] credibility so testimony
from [Rosario] could have led either County Court or jurors to question the truthfulness of
Officer Pike’s testimony about Mr. Madison leaning forward and reaching, if nothing else.”
SR. 096.
Significantly, however, Rosario did not state that he could see inside Blocker’s car;
his affidavit contains no information that would have substantively contradicted Pike’s
observations of Madison’s movements inside the vehicle. Rather, appellate counsel
appears to be arguing that if the factfinder accepted Rosario’s testimony that the police
approached the car with guns drawn, it “could have” caused the factfinder to reject, as a
fabrication, Pike’s testimony about what he observed Madison doing in the front seat. This
is pure conjecture and surmise, which does not suffice to show a reasonable probability
that the factfinder would have made that inferential leap. See, e.g., Scott v. Racette, No.
1:15-CV-00043-MAT, 2018 WL 451825, at *9 (W.D.N.Y. Jan. 17, 2018) (“Petitioner offers
nothing but speculation as to how their testimony would have helped the defense, which
is insufficient to show that counsel was ineffective.”) (citing Eisemann v. Herbert, 401 F.3d
102, 108 (2d Cir. 2005) (ineffective assistance claim based on failure to call a witness

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lacked merit where “there is nothing in the record that provides the slightest indication as
to what [the witness] would have said if called or even that he would have said anything
at all” and it was “speculation to suggest that his testimony would have been exculpatory”)
(citation omitted)); Mills v. Lempke, No. 11-CV-0440 MAT, 2013 WL 435477, at *19
(W.D.N.Y. Feb. 4, 2013) (“Mills’ assertions of prejudice [from trial counsel’s failure to call
a witness] are based purely upon his own self-serving speculation.”).
Even if the factfinder drew the desired inference from Rosario’s proposed
testimony, there is no reasonable probability that the outcome of the hearing would have
been different. As appellate counsel conceded, Rosario’s “testimony might not have
effected [sic] the legality of the approach for the traffic infraction[,]” SR.096 (citing People
v. Clark, 172 A.D.2d 679, 680 (2d Dep’t 1991) (“The fact that the officers had their
weapons drawn did not transform the lawful detentive stop into an arrest since the
reasonableness of the officers’ conduct must be viewed against the realities of the
dangers posed to officers in nighttime street encounters with suspected criminals[.]”)).
This concession by appellate counsel undermines any argument that the absence of
Rosario’s testimony had more than a conceivable effect on the trial. See Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (“[Prejudice] requires a ‘substantial,’ not just
‘conceivable,’ likelihood of a different result.”) (quotation omitted).
b. Failure to Obtain 911 Call Recordings
Petitioner reasserts his appellate argument that trial counsel erroneously waited
until sentencing to subpoena the recordings of certain 911 calls. SR. 097. At the
sentencing hearing, in connection with his contention that the traffic stop was “suspect”
and warranted setting aside the verdict, trial counsel stated that he “had subpoenaed the

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nineone-one records for some correlation of all those calls” but he had not yet received
the records. S.8. Petitioner stated on direct appeal that it was unclear why trial counsel
had requested the 911 recordings, but “[r]egardless, there is no reason to have such
recordings before sentencing but not to have them prior to trial.” SR. 097. Petitioner’s
failure to articulate how the 911 recordings would have helped the defense amounts to
an admission that he cannot prove prejudice.
Construing Blocker’s pro se Petition to raise the strongest arguments it suggests,
the Court finds that trial counsel may have been referring to the police officers’ testimony
that, prior to the traffic stop, they had been returning from clearing an unrelated report of
shots fired. Trial counsel may have wanted to review the contemporaneous 911 call
records to see if there had been a “shots fired” report as the officers claimed. However,
since Blocker has never obtained the 911 call records, it is pure speculation that trial
counsel’s failure to obtain them prejudiced his defense either at the suppression hearing
or at trial. See, e.g., Maddox v. Lord, 818 F.2d 1058, 1062 (2d Cir. 1987) (“[P]etitioner
contends that her trial counsel unreasonably failed to investigate the prosecution’s
forensic evidence. Even assuming the failure to be unreasonable, petitioner has not met
the second prong of the Strickland test because she has not shown that such alleged
failure prejudiced her defense. Although she offers an affidavit from an expert who will
testify as to the path and trajectory of the bullets fired from the rifle, there is no indication
that this evidence would be in any way exculpatory.”).

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6. Failure to Move to Sever Petitioner’s Trial
Blocker repeats the claim asserted on direct appeal that trial counsel erred by not
moving for a separate trial from Collins. ECF No. 1, Ground One; SR. 093, SR. 098–101.
Blocker contends that a severance motion would have succeeded because his and
Collins’ defenses were incompatible. Moreover, he asserts, trial counsel’s failure to obtain
a severance prevented him from exercising his right to testify because he was afraid that
Collins’ attorney would have cross-examined him regarding his prior convictions.
Under New York law, “severance is compelled where the core of each defense is
in irreconcilable conflict with the other and where there is a significant danger, as both
defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer
defendant’s guilt.” People v. Mahboubian, 74 N.Y.2d 174, 184 (1989). Otherwise, an
application for severance is left to the discretion of the trial judge, whose ruling will
ordinarily not be disturbed. People v. Cardwell, 78 N.Y.2d 996, 997 (1991) (citation
omitted). Where, as here, “against the defendants is supplied by the same evidence, only
the most cogent reasons warrant a severance[.]” Mahboubian, 74 N.Y.2d at 183.
According to Blocker, his and Collins’ positions were so “completely inconsistent”
that Collins’ “attorney would have been obliged to impeach” Blocker as to his prior
convictions. SR. 099. Since Collins’ attorney would not have been subject to the court's
Sandoval ruling limiting cross-examination by the prosecutor, see People v. McGee, 68
N.Y.2d 328, 333 (1986), Blocker reasons that severance was necessary to avoid
prejudicing his defense. Courts in New York have routinely rejected such an argument.
See People v. Murray, 155 A.D.3d 1106, 1109 (3d Dep’t 2017) (“Although defendant
correctly notes that the codefendant would not be bound by County Court’s Sandoval
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ruling . . . , given that defendant and the codefendant were charged with similar crimes
and the People used the same evidence against them, such fact does not compel
separate trials.); People v. Hernandez, 260 A.D.2d 399, 400 (2d Dep’t 1999) (similar).
Blocker has alleged only one “inconsistency” between his and Collins’ respective
versions of events—Blocker claimed that he picked up Collins and Madison at the same
time, while Collins testified before the grand jury that Madison was already in the car when
Blocker picked up Collins. SR.099. This alleged inconsistency, which is not an
inconsistency between their actual defenses, would not have supported a motion to sever.
See Mahoubian, 74 N.Y.2d at 184 (“[S]everance is not required solely because of hostility
between the parties, differences in their trial strategies or inconsistencies in their
defenses.”) (citation and internal quotation mark omitted).
Since Blocker and Collins both blamed Madison alone for possessing both guns,
see Tr. 215–18, 381, 405–07, their defenses were not in irreconcilable conflict. “A
severance was therefore unwarranted, and any such motion is likely to have failed.
Because a motion to sever would have had little chance of success, trial counsel cannot
have provided ineffective assistance for failing to make such a motion.” Santana v. Capra,
284 F. Supp. 3d 525, 543 (S.D.N.Y. 2018) (severance would have been denied where
co-defendants’ defenses were substantially the same and they were charged with acting
in concert, such that the evidence against them was the same) (citing United States v.
Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (holding that counsel’s “failure to make a
meritless argument does not rise to the level of ineffective assistance”)).

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IV.

The Fourth Amendment Claim Is Barred (Ground Two)
Blocker asserts, as he did on direct appeal, that the trial court violated his Fourth

Amendment rights by finding that the search of the glove box was part of a valid inventory
search despite the People’s failure to meet their initial burden at the suppression hearing.
See SR. 107–112; ECF No. 1, Ground Two (incorporating direct appeal arguments).
Respondent argues that the Court should dismiss the claim as non-cognizable on federal
habeas review under the doctrine of Stone v. Powell, supra. See ECF No. 20 at 41.
The Supreme Court held in Stone that “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does
not require that a state prisoner be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
428 U.S. at 481–82 (emphasis supplied). Significantly, “all that must be shown is that the
State has provided an opportunity to litigate the habeas petitioner's Fourth Amendment
claim; it matters not whether the petitioner actually ‘took advantage of the State’s
procedure.’” McClelland v. Kirkpatrick, 778 F. Supp. 2d 316, 330–31 (W.D.N.Y. 2011)
(quoting Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002)).
The Second Circuit subsequently discerned two exceptions to Stone v. Powell’s
bar against reviewing Fourth Amendment claims. See Gates v. Henderson, 568 F.2d 830,
840 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038 (1978). First, “federal habeas
corpus remains available,” Gates explained, “[i]f the state provides no corrective
procedures at all to redress Fourth Amendment violations.” Id. Second, habeas review
“may still be warranted” “even where the state provides the process but in fact the
defendant is precluded from utilizing it by reason of an unconscionable breakdown in that

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process[.]” Id. (citing Frank v. Mangum, 237 U.S. 309 (1915); other citation omitted).
Some sort of “egregious” “disruption or obstruction of a state proceeding,” such as the
bribing of a trial judge, typifies an “unconscionable breakdown.” Capellan v. Riley, 975
F.2d 67, 70 (2d Cir. 1992).
Federal courts have approved N.Y. Crim. Proc. Law § 710.10 et seq. as being
“facially adequate” for litigating Fourth Amendment claims. Capellan, 975 F.2d at 70 n.1
(collecting cases). However, Blocker suggests that he was not afforded a full and fair
opportunity to litigate his Fourth Amendment claim in the state courts because trial
counsel was ineffective for failing to raise it at the suppression hearing, which resulted in
the Appellate Division dismissing it as unpreserved for review.
A “petitioner is not denied an opportunity for full and fair litigation of his claim if[, as
here,] he fails to raise and to preserve the claim in state court.” United States ex rel.
Bostick v. Peters, 3 F.3d 1023, 1027 (7th Cir. 1993) (citations omitted); see also Collins
v. Scully, 878 F. Supp. 452, 458 (E.D.N.Y. 1995) (“[P]etitioner had a full and fair
opportunity to raise a Fourth Amendment claim during two separate pre-trial suppression
hearings. In each instance, defense counsel did not specifically raise such a claim.
Accordingly, petitioner’s Fourth Amendment claim is not reviewable by this Court.”)
(footnotes omitted).
Further, trial counsel’s alleged ineffectiveness is not the type of “unconscionable
breakdown” in the state-afforded procedure for litigating Fourth Amendment issues
contemplated by the Second Circuit in Gates. See Crenshaw v. Sup’t Five Points Corr.
Fac., 372 F. Supp. 2d 361, 370 (W.D.N.Y. 2005) (stating that petitioner’s “assertions that
the state courts were incorrect and defense counsel incompetent do not constitute the

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sort of ‘breakdown’ referred to in Gates”); Shaw v. Scully, 654 F. Supp. 859, 865 (S.D.N.Y.
1987) (“Where petitioners have either taken advantage of an opportunity to present
Fourth Amendment claims or deliberately bypassed the procedure . . . courts within this
circuit have refused to equate ineffective assistance of counsel with unconscionable
breakdown.”); further citations omitted); Parker v. Ercole, 582 F. Supp. 2d 273, 288
(N.D.N.Y. 2008) (trial counsel’s failure to call petitioner and an FBI agent to testify at the
suppression hearing was “is insufficient to establish the sort of unconscionable
breakdown necessary for the Court address petitioner’s Fourth Amendment claims”).
Because Blocker had a full and fair opportunity to litigate his Fourth Amendment claim, it
must be dismissed as barred under the Stone v. Powell doctrine.
V.

The Jury Instruction Claim Must Be Deemed Exhausted and Procedurally
Defaulted (Ground Three)
Blocker reprises his argument, raised on direct appeal, that “[t]he trial court should

not have instructed the jury about accessorial liability when there was no proof to support
such charge.” SR. 113–16; ECF No. 1, Ground Three (incorporating direct appeal
arguments). Respondent argues that Ground Three is unexhausted because it was not
fairly presented in federal constitutional terms to the state courts, and that it must be
deemed exhausted and procedurally defaulted because Petitioner no longer has state
remedies available to exhaust it. See ECF No. 20 at 34–36. Alternatively, Respondent
contends that the claim is meritless. See id. at 36-40. The Court agrees that the claim
must be deemed exhausted and procedurally defaulted, and that Blocker has not
overcome the procedural default.
“Before a federal court may grant habeas relief to a prisoner in state custody, the
prisoner must exhaust his or her state court remedies.” Galdamez v. Keane, 394 F.3d 68,
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72 (2d Cir. 2005) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §
2254(b)(3), (c)). In general, the exhaustion requirement is satisfied “when a petitioner has:
(i) presented the federal constitutional claim asserted in the petition to the highest state
court (after preserving it as required by state law in lower courts) and (ii) informed that
court (and lower courts) about both the factual and legal bases for the federal claim.”
Ramirez v. Att’y Gen. of State of N.Y., 280 F.3d 87, 94 (2d Cir. 2001) (citing Picard v.
Connor, 404 U.S. 270, 276–77 (1971); other citation omitted).
The Supreme Court has explained that “[i]f state courts are to be given the
opportunity to correct alleged violations of prisoners’ federal rights, they must . . . be
alerted to the fact that the prisoners are asserting claims under the United States
Constitution.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995). A habeas petitioner need
not cite “book and verse” of the Constitution, however. Picard, 404 U.S. at 278. According
to the Second Circuit, “adequate notice to the state courts that they are to decide federal
constitutional claims at least includes: ‘(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases employing constitutional analysis in
like fact situations, (c) assertion of the claim in terms so particular as to call to mind a
specific right protected by the Constitution, and (d) allegation of a pattern of facts that is
well within the mainstream of constitutional litigation.’” Petrucelli v. Coombe, 735 F.2d
684, 687–88 (2d Cir. 1984) (quoting Daye v. Att’y Gen. of State of N.Y., 696 F.2d 186,
194 (2d Cir.1982) (en banc)).
Here, appellate counsel relied primarily on P.L. § 20.00, the provision on
accomplice liability, arguing that “no actual proof [was] offered at trial sufficient to present
that theory to the jury.” SR.113. Appellate counsel did not cite any federal cases

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employing constitutional analysis. The sole decision cited was a state case, People v.
Crimmins, 36 N.Y.2d 230 (1975), which sets forth the standard for determining
harmlessness of non-constitutional errors in New York and, moreover, is “not the same
as the Federal rule” for assessing non-constitutional errors. Id. at 241.
Furthermore, “the assertion of this claim did not ‘call to mind a specific right
protected by the Constitution[.]’” Knoesel v. Duncan, No. 03-CV-2792(SLT), 2006 WL
2524198, at *16 (E.D.N.Y. Aug. 30, 2006) (quoting Daye, 696 F.2d at 194), because
“[e]rrors in jury instructions involve issues of state law and thus, rarely provide a sufficient
basis for federal habeas review,” McGhee v. Fischer, No. CV-05-3842 (DGT), 2006 WL
1788185, at *5 (E.D.N.Y. June 26, 2006).
Finally, a claim based on an erroneous jury instruction is not “well within the
mainstream of constitutional litigation[,]” Daye, 696 F.2d at 194. In Anderson v. Harless,
459 U.S. 4 (1982), the Supreme Court “held that a habeas petitioner had not fairly
presented a federal due process claim in state court when he argued that the trial court’s
jury instruction was ‘erroneous,’ and cited only a state law case” for support. Jackson v.
Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Anderson, 459 U.S. at 7). As the
Supreme Court explained, “[i]t is not enough that all the facts necessary to support [a]
federal claim were before the state courts, or that a somewhat similar state-law claim was
made.” Anderson, 459 U.S. at 6 (internal citations omitted).
Ground Three therefore was not fairly presented in federal constitutional terms to
the state courts, and it is unexhausted. When a petitioner has no available means of
exhausting a claim in state court, it will be “deemed exhausted.” Grey v. Hoke, 933 F.2d
117, 120 (2d Cir. 1991) (citing, inter alia, Castille v. Peoples, 489 U.S. 346, 351 (1989)

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(finding that “[t]he requisite exhaustion may nonetheless exist, of course, if it is clear that
respondent’s claims [that were not fairly presented] are now procedurally barred under
[the state’s] law”)).
Here, New York’s procedural rules prevent Blocker from attempting to raise
Ground Three for a second time before the New York Court of Appeals since he already
has used the one direct appeal to which he is entitled. Zacher v. Graham, No. 6:14-CV06027(MAT), 2016 WL 368086, at *7 (W.D.N.Y. Feb. 1, 2016) (citing Cunningham v.
Conway, 717 F. Supp. 2d 339, 365 (W.D.N.Y. 2010) (citing N.Y. R. Ct. § 500.20(a)(2),
(d); other citations omitted). Collateral review via a C.P.L. § 440.10 motion is foreclosed;
the trial court would be required to deny Ground Three as previously determined on the
merits on direct appeal. See Zacher, 2016 WL 368086, at *7 (citing N.Y. CRIM PROC. LAW
§ 440.10(2)(a)).
Ground Three must be “deemed exhausted.” Grey, 933 F.2d at 120–21. “[T]he
procedural rule that leads to the constructive exhaustion” of Ground Three “also creates
a procedural bar to this Court’s review of the claim[s].” Zacher, 2016 WL 368086, at *7
(citing Grey, 933 F.2d at 121); see also Gray v. Netherland, 518 U.S. 152, 161–62 (1996).
To overcome the procedural default of Ground Three, Blocker “must show cause
for the default and prejudice, or demonstrate that failure to consider the claim[s] 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) (citing Coleman v. Thompson, 501 U.S. 722, 748-50 (1991)).
“[T]he cause requirement is met if some objective factor, external to [the] [p]etitioner’s
defense, interfered with his ability to comply with the state’s procedural rule.” Gutierrez v.
Smith, 702 F.3d 103, 111 (2d Cir. 2012).

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“There is no doubt that ineffective assistance of counsel can serve as cause to
excuse procedural default.” Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir. 2016) (citing
Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000)). “Not just any deficiency in counsel’s
performance will do, however; the assistance must have been so ineffective as to violate
the Federal Constitution.” Edwards, 529 U.S. at 452.
As discussed above in connection with Ground One, Blocker does not have an
exhausted and meritorious claim of ineffective assistance that can serve as cause to
excuse the default of Ground Three. Absent evidence of “cause,” the Court need not
address the “prejudice” requirement. See, e.g., McCleskey v. Zant, 499 U.S. 467, 502
(1991) (stating that because petitioner “lacks cause for failing to raise the [constitutional]
claim in the first federal petition,” it “need not consider whether he would be prejudiced
by his inability to raise the alleged [constitutional] violation at this late date”) (citation
omitted).
Turning to the fundamental miscarriage of justice exception, the Court notes that
it is limited to “‘extraordinary case[s], where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.’” Rivas v. Fischer, 687 F.3d
514, 540 (2d Cir. 2012) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)); alteration
in Rivas)). “To satisfy the [relevant] standard, a claim of actual innocence must be both
‘credible’ and ‘compelling.’” Id. at 541 (quoting House v. Bell, 547 U.S. 518, 521, 538
(2006)).
“For the claim to be ‘credible,’ it must be supported by ‘new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.’” Id. (quoting Schlup v. Delo, 513 U.S.

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298, 324 (1995); citing House, 547 U.S. at 537). “For the claim to be ‘compelling,’ the
petitioner must demonstrate that ‘more likely than not, in light of the new evidence, no
reasonable juror would find him guilty beyond a reasonable doubt—or to remove the
double negative, that more likely than not any reasonable juror would have reasonable
doubt.’” Id. (quoting House, 547 U.S. at 538). It is well established that “‘actual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623–24 (1998). This “standard is demanding and permits review only in the
extraordinary case.” House, 547 U.S. at 538 (internal quotation marks and citations
omitted).
In his Reply, Blocker asserts that he has demonstrated the fundamental
miscarriage of justice exception because is “factually, actually innocent.” ECF No. 30 at
9. His actual innocence claim is detailed in an unsworn account of his actions on the
night of the traffic stop. Id. at 9–15. Blocker asserts that he was at home watching
television with his girlfriend and kids when Collins called and asked him for a ride to
Rochester’s west side. Blocker agreed and left his house at an unspecified time. He drove
to Madison’s apartment on Joseph Avenue and called Collins’ cell phone to tell him that
he (Blocker) was waiting outside. Within minutes, Collins and Madison got into Blocker’s
car. Madison and Blocker started chatting as they had not seen each other in a while.
After a few minutes, Blocker told Madison that he had to drop Collins off and get home to
his kids. At that point, Madison made Blocker aware that he was going with Collins to his
destination.
On the way to drop off Collins and Madison, they made two stops—one at a store
for Blocker to pick up diapers, baby wipes, and paper towels; and one on Avenue D during

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which Collins got out and spoke to an older man he said was his father. Blocker claims
he did not notice anything that would have suggested Collins and Madison were carrying
weapons or other contraband.
Regarding the traffic stop, Blocker asserts that his car was initially blocked in by a
white vehicle driven by a masked man with a female passenger who allegedly were
working in concert with the police. The police officers approached his car with guns drawn
and gave a signal to the people in the white car. As the white car drove away, Blocker
claims he heard an officer say, “If it were not for Linda Bloom; Pac-Tac, we would not
have caught these sons of bitches.” ECF No. 30 at 15.
Blocker then relates that after he was arrested, RPD Investigators Houlihan and
Brennan told him that Collins had been under surveillance because he had an ongoing
feud with Terence Washington (“Washington”); that they (the investigators) knew that
Blocker was not involved in the feud; and that they needed Blocker’s help in getting Collins
and Washington “off the streets, because they were crossing the line by shooting at old
church ladies[’] houses that had nothing to do with their beef.” To that end, Blocker says,
the investigators asked him to “give them a story with intent, that would suggest what
Collins and/or Madison planned to do with the recovered weapons.” They promised him
that if he assisted them, he would not be charged. When Blocker replied that he did not
know Madison and Collins were carrying weapons, the investigators urged him to “just
make up a story.” Blocker stated that he could not make up a story and “put himself or his
family in harms [sic] way,” to which the investigators responded that “he would be charged
with the same and exact charges as Collins and Madison.” ECF No. 30 at 15–16.

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Blocker asserts that while they were both at the jail after being arrested, Madison
apologized to him for having gotten him involved with the police. According to Blocker,
Madison also told him that he had one gun in his waistline and one inside the sleeve of
his coat when he got into Blocker’s car. While Blocker was “inside of the store,” Madison
said he noticed a “strong physical presence of police” near Blocker’s vehicle. Because
the police appeared to be looking into Blocker’s car, Madison “got nervous and took the
gun out of his waistline and placed it in the glovebox.” ECF No. 30 at 17.
While the foregoing allegations are arguably “new” since they were “not heard by
the jury[,]” Rivas, 687 F.3d at 543, they are not “credible” because they lack any indicia
of reliability. Blocker’s Reply is unsworn, see ECF No. 30 at 43, and the allegations largely
consist of hearsay without any corroboration. See Atkins v. Chappius, No. 1:13-CV00956-CJS, 2020 WL 6264452, at *14 (W.D.N.Y. Oct. 23, 2020) (letter in support of
petitioner’s alibi lacked indicia of reliability because, although notarized, it was unsworn
as well as uncorroborated by any other evidence) (citing Barrientos v. Lee, No.
14CV3207-LTS-JCF, 2015 WL 3767238, at *12 (S.D.N.Y. June 17, 2015) (purportedly
exculpatory statement by former co-defendant made during an interrogation “lack[ed]
several indicia of reliability: the statement was only informally memorialized in handwritten
notes . . . and is uncorroborated by other evidence”)), appeal dismissed, No. 20-3914,
2021 WL 2011197 (2d Cir. Apr. 13, 2021); Lofland v. Horton, No. 2:18-CV-13006, 2019
WL 2247791, at *8 (E.D. Mich. May 24, 2019) (witness’s statement to police implicating
third-party as shooter was hearsay and “thus presumptively unreliable for supporting an
actual innocence claim”; it was “also ‘entitled to little weight because [it was] unsworn’”)
(quoting Bell v. Howes, 701 F. App’x, 408, 412 (6th Cir. 2017) (unpublished op.) (citing

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Herrera v. Collins, 506 U.S. 390, 417 (1993) (finding petitioner’s actual innocence
evidence to be “suspect” where it “consist[ed] of hearsay”)).
While Blocker’s failure to “meet the ‘credible’ prong of the [actual innocence]
standard is a sufficient basis to find that he is not entitled to have his procedurally
defaulted claims heard[,]” Vickers v. United States, No. 13-CR-0128-FPG, 2020 WL
6135859, at *5 (W.D.N.Y. Oct. 19, 2020) (citing Diaz v. Bellnier, 974 F. Supp. 2d 136, 146
(E.D.N.Y. 2013)), the Court also finds that his new evidence is not “compelling” proof of
Blocker’s innocence.
Blocker’s allegations about how the traffic stop occurred, although consistent with
Rosario’s statement, do not “directly support[] [his] factual innocence by indicating either
that he did not commit, or could not have committed, the crimes of conviction.” Hyman v.
Brown, 927 F.3d 639, 665 (2d Cir. 2019) (emphases removed). Instead, they constitute
impeachment evidence that attacks the credibility of the police witnesses. See Patterson
v. Bartlett, 56 F. App’x 762, 763 (9th Cir. 2002) (unpublished op.) (uncorroborated
affidavits obtained post-conviction constituted impeachment evidence attacking the
credibility of the victim and her mother and did not establish it was more likely than not
that no reasonable juror would have convicted petitioner in light of the new evidence).
Moreover, they are substantively relevant at most to the legality of the traffic stop, which
was already litigated at the suppression hearing and was not at issue during trial.
The alleged statements by Investigators Houlihan and Brennan that they knew
Blocker was “not involved in the feud” also do not “directly support[] petitioner’s factual
innocence.” Hyman, 927 F.3d at 665. At the outset, no one ever argued that Blocker was
part of that feud. For instance, the prosecutor asserted at the sentencing hearing that the

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sawed-off shotgun had been used in an earlier shooting directed at Washington’s
mother’s house, but he clarified that he was “not saying Mr. Blocker participated in those
events. . . .” S. 14–15. In addition, trial counsel acknowledged receipt of discovery and
Brady materials stating that those earlier incidents involving Collins and Washington did
not involve Blocker. S. 7.
Nonetheless, the fact that Blocker was not a participant in the Collins-Washington
feud does not exonerate him of the offenses with which he was charged. As the
prosecutor argued during his summation, the People were only required to prove the
elements of the crimes, which did not include “what they were going to do with the guns”
found in Blocker’s car. Tr. 433; see also Tr. 432. Indeed, Collins was found guilty of the
same charges as Blocker even though the jury never heard about the feud between him
and Washington. In short, Blocker still could be guilty of criminally possessing the
handgun and sawed-off shotgun even without any involvement in the feud between
Collins and Washington.
Similarly, the investigators’ alleged promise not to charge Blocker if he fabricated
a story inculpating Collins and Washington does not “directly support [his] factual
innocence.” Hyman, 927 F.3d at 665. It is simply impeachment material, which “is a step
removed from evidence pertaining to the crime itself” and “tends only to impeach the
credibility of” the witness. Calderon v. Thompson, 523 U.S. 538, 563 (1998). For this
reason, newly discovered impeachment evidence “will seldom, if ever” establish actual
innocence. Sawyer v. Whitley, 505 U.S. 333, 349 (1992). Moreover, since the prosecutor
did not utilize any of Blocker’s statements to the police, Investigators Houlihan and

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Brennan did not testify at trial. Thus, the defense had no need to impeach them, and this
evidence was immaterial to the trial.
Because Blocker has not presented any new, reliable evidence that he is actually
innocent of the crimes of which he was convicted, a miscarriage of justice will not occur
if the Court declines to review Ground Three on the merits. Accordingly, it is dismissed
as procedurally defaulted.
VI.

The Weight of the Evidence Claim Is Not Cognizable (Ground Four)
Blocker reprises his argument, raised on direct appeal, that the verdicts for

possessing each of the weapons was “against the weight of the evidence.” See, e.g., SR.
117 (“A verdict of not guilty would not have been unreasonable here since the proof that
Mr. Blocker knowingly possessed the guns came from the automobile presumption. This
Court should therefore engage in a de novo review of the evidence.”); SR. 119 (“The guilty
verdicts concerning the handgun were also against the weight of the evidence.”); ECF
No. 1, Ground Four (incorporating direct appeal arguments). Respondent argues that
Ground Four asserts a purely state-law claim that is not cognizable on habeas review.
A claim that a conviction is against the weight of the evidence originates from
C.P.L. § 470.15(5), which permits an appellate court to reverse or modify a conviction
where it determines “that a verdict of conviction resulting in a judgment was, in whole or
in part, against the weight of the evidence.” In People v. Bleakley, 69 N.Y.2d 490 (1987),
the New York Court of Appeals noted that attacks on a verdict based on the weight of the
evidence are different from those based on the legal sufficiency of the evidence. Id. at
495. Specifically, the “weight of the evidence” argument is a pure state law claim

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grounded in C.P.L. § 470.15(5), whereas a legal sufficiency claim is based on federal due
process principles. Id.
Here, Blocker only cited New York state case law involving the exercise of the
appellate court’s unique factual review power under C.P.L. § 470.15(5) to, “like the trier
of fact below, . . . weigh the relative probative force of conflicting testimony and the
relative strength of conflicting inferences that may be drawn from the testimony[.]”
Bleakley, 69 N.Y.2d at 495 (internal quotation marks and citations omitted). The Appellate
Division construed Blocker’s appeal as seeking reversal of his conviction because it was
against the weight of the evidence under New York law, not because it was based on
legally insufficient evidence. See Blocker, 132 A.D.3d at 228-29 (citing intermediate
appellate cases for their weight-of-the-evidence holdings). The Appellate Division
“conclude[d] that the verdict is not against the weight of the evidence[,]” since “[t]he jury
was entitled to reject the evidence that the weapons recovered from the vehicle were
possessed solely by one of the codefendants, and to find, based upon the automobile
presumption that defendant knowingly possessed those weapons[.]” Id.
“In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991) (citations and footnote omitted). The Supreme Court
has “stated many times” that ‘federal habeas corpus relief does not lie for errors of state
law.’” Id. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); citation omitted). Since
“the argument that a verdict is against the weight of the evidence states a claim under
state law,” it “is not cognizable on habeas corpus[.]” McKinnon v. Sup’t, Great Meadow
Corr. Facility, 422 F. App'x 69, 75 (2d Cir. 2011) (unpublished op.) (collecting cases).

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CONCLUSION
For the foregoing reasons, the request for a writ of habeas corpus is denied, and
the Petition, ECF No. 1, is dismissed. Because Blocker has failed to make a substantial
showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), the Court
declines to issue a certificate of appealability. The Clerk of Court is directed to close this
case.
IT IS SO ORDERED.

HON. CHARLES J. SIRAGUSA
United States District Judge
Dated:

February 2, 2022
Rochester, New York.

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