Cruz v. Colvin

• Court: District Court, E.D. New York
• Decided: August 14, 2019
• Docket: 2:17-cv-03757
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

_____________________

No 17-CV-3757 (JFB) _____________________

EDUARDO CRUZ,

Petitioner,

VERSUS

JOHN COLVIN,

Respondent.

MEMORANDUM AND ORDER August 14, 2019

JOSEPH F. BIANCO, Circuit Judge (sitting by § 135.05; escape in the third degree, N.Y.P.L. designation): § 205.05; resisting arrest, N.Y.P.L. § 205.30; criminal possession of stolen property in the Eduardo Cruz (“petitioner”), proceeding fifth degree, N.Y.P.L. § 164.50; and one count pro se, petitions this Court for a writ of habeas of attempted unlawful imprisonment in the corpus, pursuant to 28 U.S.C. § 2254, second degree, N.Y.P.L. §§ 110.00/135.05. challenging his conviction entered on July 19, Petitioner was sentenced to an aggregate 2013, in the Supreme Court of the State of determinate term of twenty-five years’ New York, Nassau County (the “trial court”). incarceration followed by five years of post- Following a jury trial, petitioner was convicted release supervision. Five orders of protection of nine counts of robbery in the first degree, were signed ordering petitioner to stay away N.Y. Penal Law (“N.Y.P.L.”) § 160.15(3), from Shabnam Muzafar, Ashad Sumra, (4); five counts of robbery in the second Ghulam Sumra, Harris Sumra, and degree, N.Y.P.L. § 160.10(1), (2)(a); five Mohammad Shafique until September 18, counts of burglary in the first degree, N.Y.P.L. 2044. Petitioner was also required to pay § 140.30(2), (3), (4); one count of burglary in $2,819.34 in restitution. the second degree, N.Y.P.L. § 104.25(2); two counts of assault in the second degree, In the instant case, petitioner challenges N.Y.P.L. § 120.05(6); two counts of criminal his conviction on the following grounds: possession of a weapon in the fourth degree, (1) his arrest was the product of a Fourth N.Y.P.L. § 265.01(2); three counts of unlawful Amendment violation; (2) his confession was imprisonment in the second degree, N.Y.P.L. involuntary; (3) there was insufficient evidence to find physical injury; (4) he encountered Shabnam Muzafar (“Muzafar”) in received ineffective assistance of counsel; and the kitchen. (Tr. 325, 327.) He approached (5) the concurrent inclusory counts should be Muzafar from behind, held a knife to her neck, dismissed. and moved her into her bedroom. (Tr. 325- 327.) While petitioner held Muzafar down, For the reasons set forth below, the co-defendants Gustavo Arroyo (“Arroyo”), petition for a writ of habeas corpus is denied carrying a knife, and Carlos Segura in its entirety. Specifically, the Court (“Segura”), carrying a gun, entered the home concludes that petitioner’s first and third and tied her up. (Tr. 327-30, 332-33, 593, claims are procedurally barred from habeas 595.) review. Moreover, the Court concludes that all of petitioner’s claims, including the first and At this point Arshad Sumra (“Sumra”), third claim, are without merit. Muzafar’s husband, knocked on the front door after returning home from dropping his son off I. BACKGROUND at school. (Tr. 333-334, 589-90.) Segura went A. Factual Background to answer the door, while petitioner received a phone call. (Tr. 334, 594.) Segura opened the On September 19, 2011, petitioner was door, placed a gun on Sumra’s neck, and arrested, along with three other co-defendants, proceeded to walk him to the bedroom where and charged with nine counts of robbery in the Muzafar was tied up. (Tr. 334-335, 592-593.) first degree, five counts of robbery in the The three co-defendants proceeded to ransack second degree, five counts of burglary in the the room, beat the victims, and tie up Sumra first degree, one count of burglary in the and Mohamed Shafique (“Shafique”), who second degree, two counts of assault in the was visiting from Pakistan and staying at the second degree, two counts of criminal house. (Tr. 322, 334, 336-37, 340-41, 343, possession of a weapon in the fourth degree, 596-97). After the co-defendants demanded three counts of unlawful imprisonment in the money, Sumra pointed them to a jacket that second degree, one count of escape in the third had about 6,000 dollars and Muzafar’s jewelry degree, one count of resisting arrest, one in it, which the co-defendants took. (Tr. 337- charge of criminal possession of stolen 40, 598-99.) He also told them that his property in the fifth degree, and one count of brother, Ghulam Sumra (“Ghulam”), was in attempted unlawful imprisonment in the the basement and had money, prompting second degree. (Tr. 7; Resp’t’s Aff. ¶ 25, ECF petitioner to go downstairs. (Tr. 595-96, 600.) No. 7.)1 These charges arose from petitioner’s participation in a home invasion that occurred Once downstairs, petitioner put a knife to at 1350 Bellmore Avenue in North Bellmore, Ghulam’s throat and demanded money from New York. him. (Tr. 905-06.) Petitioner then stole Ghulam’s cellphone and money and tied him 1. The Evidence up with the wire of the cellphone charger. Petitioner also spoke on his [petitioner’s] a. The Home Invasion phone before exiting the room. (Tr. 906.) On September 19, 2011, at approximately Phone records introduced into evidence at trial 8:30 a.m., petitioner entered the home at 1350 corroborate that a cellphone associated with Bellmore Avenue in Nassau County, and petitioner was in communication with a cellphone associated with Dario Guerrero

1 Citations to “Tr.” refer to the transcript of petitioner’s trial. (ECF Nos. 7-12 to 7-15.) (“Guerrero”), the driver of the getaway car, a police spotlight on the car.” (Id.) The during the relevant time period. (Tr. 1096.) suspects were described as two Black males, one Hispanic male, and one unknown fourth While Cruz was downstairs, Harris Sumra person. (Id.) (“Harris”), Muzafar’s and Sumra’s son, arrived at the house. (Tr. 345, 600-01.) As As Sergeant Lezamiz approached the Harris approached the house, he noticed a intersection of Mill Road and Merrick Road, white car resembling a law enforcement he noticed a car stuck in traffic that matched vehicle that had a spotlight and no front license the one described in the transmissions. (Tr. plate. (Tr. 815.) He began knocking on the 950.) By the time Sergeant Lezamiz turned door of the house, when he saw the man in the around, the car was gone. (Id.) He radioed in driver’s seat of the white car, who was on the that he had spotted the vehicle and assigned phone and looking at him. (Tr. 816.) Arroyo officers to canvas the Meadowbrook Parkway, answered the door and tried to pull Harris which was where he thought the car was inside. (Tr. 817, 824.) As Arroyo tried to grab heading. (Tr. 951.) Harris, Harris’s shirt ripped allowing him to Sergeant Lezamiz continued on Merrick escape Arroyo’s grip and run for help. (Id.) Road toward the scene of the crime when he Gina Weiss (“Weiss”), who was driving again spotted the vehicle. (Id.) He turned on in the neighborhood, saw Harris searching for his sirens and lights and the vehicle pulled help and stopped her car to help him. (Tr. 430- over near Babylon Turnpike and Merrick 32.) As Harris was explaining what had Road. (Id.) Sergeant Lezamiz exited his car, happened to Weiss, the perpetrators got into drew his gun, and demanded that the suspects the white car, which began heading south on exit their vehicle. (Tr. 952.) As the suspects Bellmore Avenue. (Tr. 431-32, 435-37, 818.) exited the vehicle, Sergeant Lezamiz saw Andrew Smart (“Smart”), a driver who petitioner reach for his waistband. (Tr. 953.) happened to be passing by, saw the white car Sergeant Lezamiz therefore commanded the make a sharp U-turn and saw people running suspects to put their hands above their head, from the house into the car. (Tr. 284-86.) He which they did. (Id.) He further instructed pulled up next to Weiss to ask what happened them to lay face down on the sidewalk and and then proceeded to follow the white car. they complied. (Tr. 954.) (Id.) Both Smart and Weiss called police to report what they had seen. (Tr. 288, 432.) While petitioner was on the ground, Sergeant Lezamiz put his weight on petitioner b. The Arrest to arrest him first, because he believed that At 9:04 a.m. on September 19, 2011, petitioner was armed with a weapon from Sergeant John Lezamiz (“Sergeant Lezamiz”) petitioner’s earlier motions towards his received a radio transmission, stating that waistband. (Tr. 953, 956.) Sergeant Lezamiz there was an armed burglary in progress at handcuffed one of petitioner’s hands, but 1350 Bellmore Avenue where victims were struggled to simultaneously handcuff tied up. (Tr. 948.) As Sergeant Lezamiz petitioner’s other hand and keep his gun began driving towards the address, more drawn. (Tr. 956.) As Sergeant Lezamiz was transmissions came in with details of the attempting to handcuff petitioner, Arroyo got incident. (Tr. 949.) Sergeant Lezamiz learned up and began to run east on Merrick Road that four suspects were in a “white Crown towards Lindenmere. (Id.) Sergeant Lezamiz Victoria with Pennsylvania plates, tinted yelled at Arroyo to stop, but remained on top windows, bumper stickers on the back, and… of petitioner to keep him under control. (Tr. 957.) Guerrero and Segura then got up and ran (Tr. 407.) Billelo brought petitioner to room back in their car. (Id.) While still attempting number three, where he remained with to maintain control of petitioner, Sergeant petitioner until Detective John Espina Lezamiz turned towards Guerrero and Segura (“Detective Espina”) arrived. (Tr. 930-31, and demanded that they get out of their car. 980-81.) The officers each testified that no (Id.) Petitioner then overpowered Sergeant officer interrogated or coerced petitioner in Lezamiz, escaped from underneath him, and between the time of apprehension and began to run away towards East Lake School. transportation to the room in the First Precinct. (Id.) Guerrero began driving at Sergeant (Tr. 410-11, 931.) Lezamiz who responded by firing four rounds Upon entering room number three, at into the car, causing Guerrero to swerve about 3:05 p.m., Detective Espina began around him and continue east on Merrick collecting pedigree information from Road. (Id.) petitioner. (Tr. 982.) Petitioner spoke only Sergeant Lezamiz proceeded to transmit Spanish and Detective Espina was a fluent his location, as well as the direction in which Spanish speaker. (Tr. 976, 981.) At about 5:30 both Arroyo and the vehicle fled. (Tr. 958-59.) p.m., Detective Espina returned to petitioner Officer Daniel Clarke (“Officer Clarke”) and after collecting pedigree information from Officer John Billelo (“Officer Billelo”) went petitioner’s co-defendants. (Tr. 984-85, 996, to Sergeant Lezamiz’s location in their marked 1016-17.) Detective Espina read petitioner his police car. (Tr. 959.) Those officers saw Miranda rights in Spanish off of a card that Sergeant Lezamiz running and gesturing they both signed. (Tr. 986-87.) Detective toward petitioner and so they continued in Pollock (“Pollock”) also signed the card as a their car to catch petitioner. (Tr. 402, 923, witness to the interaction. (Tr. 986.) 959-60.) Officer Clarke and Officer Billelo Petitioner then waived his Miranda rights. caught up with petitioner and tried to stop him (Tr. 989-90.) Petitioner then spoke with in their car. (Tr. 403, 923.) Unable to do so, Detective Espina about the incident. (Tr. 990- both officers got out of their car and began 95.) Detective Espina left the room after the chasing petitioner on foot. (Tr. 403, 923.) In questioning, but returned to take a buccal a continued effort to escape, petitioner jumped swab from petitioner at 9:15 a.m. the next over a fence onto a residential property and hid morning, and to take a written statement. (Tr. in ornamental grass. (Tr. 403, 924.) Shortly 996-97.) after, Officer Clarke found petitioner with one B. Procedural History hand handcuffed and yelled to Officer Billelo that he found petitioner hiding in the grass. 1. Pre-Trial Hearing (Tr. 404, 926-27.) At approximately 9:20 a.m., Sergeant Lezamiz arrived at 17 Babylon A pre-trial hearing was held, beginning on Road, where petitioner was found, and April 12, 2012, regarding whether there was proceeded to track down Arroyo. (Tr. 404, probable cause to arrest petitioner and his co- 406, 927-28, 960-61). defendants, and the admissibility of petitioner’s statements and other evidence. c. Post-Arrest Events (See generally H.)2 As relates to petitioner, the proceedings included Mapp and Huntley Officer Clarke and Officer Billelo hearings. (H. 3.) After that hearing, the court transported petitioner to the First Precinct.

2 Citations to “H.” refer to the transcript of petitioner’s pre-trial hearing. (ECF Nos. 7-10 and 7-11.) granted petitioner’s severance motion. and sentences charging resisting arrest and (Resp’t’s Aff. ¶ 27.) escape in the third degree must be vacated because the arrest lacked probable cause; (3) 2. Jury Trial two counts of robbery in the second degree, Following a jury trial, petitioner was two counts of burglary in the second degree, convicted on October 2, 2013, of nine counts and two counts of assault in the second degree of robbery in the first degree, N.Y.P.L. should be dismissed against the weight of the § 160.15(3), (4); five counts of robbery in the evidence because there was no legally second degree, N.Y.P.L. § 160.10(1), (2)(a); sufficient evidence of physical injury; (4) the five counts of burglary in the first degree, convictions and sentences for six counts of N.Y.P.L. § 140.30(2), (3), (4); one count of robbery in the first degree and two counts of burglary in the second degree, N.Y.P.L. burglary in the second degree should be § 104.25(2); two counts of assault in the vacated as the government failed to prove second degree, N.Y.P.L. § 120.05(6); two beyond a reasonable doubt that any property counts of criminal possession of a weapon in was taken from Arshad Sumra or Shabnam the fourth degree, N.Y.P.L. § 265.01(2); three Muzafar; (5) the defendant’s convictions and counts of unlawful imprisonment in the second sentences should be set aside as he received degree, N.Y.P.L. § 135.05; escape in the third ineffective assistance of counsel; (6) the court degree, N.Y.P.L. § 205.05; resisting arrest, erred when it failed to dismiss the concurrent N.Y.P.L. § 205.30; criminal possession of inclusory counts in the indictment; (7) the stolen property, N.Y.P.L. § 164.50; and one defendant’s verbal, written and video recorded count of attempted unlawful imprisonment in statements should have been suppressed as the second degree, N.Y.P.L. they were involuntary; and (8) the defendant’s §§ 110.00/135.05. (See S. at 4-53). Petitioner sentence should be set aside as retaliatory (in was sentenced to an aggregate determinate response to petitioner exercising his right to a term of twenty-five years’ incarceration jury trial), excessive, and harsh. (ECF No. 7- followed by five years of post-release 1.) supervision. (Id at 5.) Five orders of The Second Department affirmed protection were signed ordering petitioner to petitioner’s judgment of conviction. People v. stay away from Muzafar, Sumra, Ghulam, Cruz, 137 A.D.3d 1158 (N.Y. App. Div. Harris, and Shafique until September 18, 2016). The Second Department held that: 2044. (Id.) Petitioner was also required to pay (1) the contention that there was no probable $2,819.34 in restitution. (Id.) cause for arrest was unpreserved for appellate 3. Direct Appeal review, and in any event, the police only needed reasonable suspicion to stop the Petitioner appealed his conviction to the vehicle the defendant was in, which they had New York Supreme Court, Appellate from the radio transmissions they received, Division, Second Department. He raised the and this reasonable suspicion “escalated to following issues on appeal: (1) two cellphones probable cause for arrest when, according to and the defendant’s verbal and written the police sergeant’s hearing testimony, the statements should have been suppressed as defendant ‘knock[ed]’ the police sergeant off fruit of an arrest that violated the Fourth of him and fled the scene;” (2) the contention Amendment; (2) the defendant’s convictions that “the two counts of robbery in the second

3 “S.” refers to the transcript of petitioner’s sentencing. (ECF No. 7-16.) degree, two counts of burglary in the second law in opposition to the petition on August 24, degree, and two counts of assault in the second 2017. (ECF No. 7.) Petitioner filed a reply on degree should be dismissed against the weight January 8, 2018. (ECF No. 10.) The Court has of the evidence because there was no proof of fully considered the arguments and physical injury” fails because it was submissions of the parties. unpreserved for appellate review and the evidence was legally sufficient to support the II. STANDARD OF REVIEW finding of physical injury and the verdict was To determine whether a petitioner is not against the weight of the evidence; (3) the entitled to a writ of habeas corpus, a federal contention that there was not legally sufficient court must apply the standard of review set evidence that property was stolen is forth in 28 U.S.C. § 2254, as amended by the unpreserved for appellate review, the evidence Antiterrorism and Effective Death Penalty Act was legally sufficient, and the verdict was not (“AEDPA”), which provides, in relevant part: against the weight of the evidence; (4) defendant received effective assistance of (d) An application for a writ of habeas counsel; (5) the hearing court properly denied corpus on behalf of a person in the suppression of the statements the custody pursuant to the judgment of a defendant made after arrest because the State court shall not be granted with defendant knowingly and willingly waived his respect to any claim that was Miranda rights; and (6) the claim that the adjudicated on the merits in State defendant’s sentence was retaliatory is court proceedings unless the unpreserved and without merit. Id. at 1158-60. adjudication of the claim – On April 29, 2016, petitioner filed an (1) resulted in a decision that was application with the New York Court of contrary to, or involved an Appeals for leave to appeal from the Second unreasonable application of, Department’s order on his claims regarding his clearly established Federal law, as arrest lacking probable cause, dismissal of determined by the Supreme Court concurrent inclusory counts, and ineffective of the United States; or assistance of counsel. (See ECF No. 7-4.) (2) resulted in a decision that was The Court of Appeals denied petitioner’s based on an unreasonable application for leave to appeal on June 3, 2016. determination of the facts in light Id. of the evidence presented in the 4. Instant Petition State court proceeding. On May 7, 2013, petitioner, proceeding 28 U.S.C. § 2254. “‘Clearly established pro se, filed the instant petition for a writ of Federal law’ means ‘the holdings, as opposed habeas corpus pursuant to 28 U.S.C. § 2254. to the dicta, of [the Supreme] Court’s Petitioner claims that: (1) the police officers decisions as of the time of the relevant state- lacked probable cause to stop, detain, and court decision.’” Green v. Travis, 414 F.3d arrest him; (2) his confession was involuntary; 288, 296 (2d Cir. 2005) (quoting Williams v. (3) there was insufficient evidence to find Taylor, 529 U.S. 362, 412 (2000)). physical injury; (4) he received ineffective A decision is “contrary to” clearly assistance of counsel; and (5) concurrent established federal law, as determined by the inclusory counts should be dismissed. (Pet. 2, Supreme Court, “if the state court arrives at a ECF No. 1; Pet’r’s Mem. of Law 35, ECF No. conclusion opposite to that reached by [the 1-2.) Respondent filed its memorandum of Supreme Court] on a question of law or if the petitioner is not entitled to habeas relief, and state court decides a case differently than [the denies the instant petition in its entirety. Supreme Court] has on a set of materially A. Procedural Bar indistinguishable facts.” Williams, 529 U.S. at 412-13. A decision is an “unreasonable As a threshold matter, respondent argues application” of clearly established federal law that two of petitioner’s grounds for habeas if a state court “identifies the correct governing relief are procedurally barred from habeas legal principle from [the Supreme Court’s] review by this Court. Specifically, respondent decisions but unreasonably applies that argues that petitioner failed to preserve the principle to the facts of [a] prisoner’s case.” Fourth Amendment claim and the legal Id. at 413. sufficiency claim with respect to the proof of physical injury. For the reasons set forth AEDPA establishes a deferential standard below, this Court agrees that these claims are of review: “a federal habeas court may not procedurally barred. In addition, even issue the writ simply because that court assuming arguendo that these claims are not concludes in its independent judgment that the barred from review, they are without merit. relevant state-court decision applied clearly established federal law erroneously or 1. Independent and Adequate State incorrectly. Rather, that application must be Ground unreasonable.” Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 A petitioner’s federal claims may be U.S. at 411). The Second Circuit added that, procedurally barred from habeas corpus while “[s]ome increment of incorrectness review if they were decided at the state level beyond error is required . . . the increment need on “independent and adequate” state not be great; otherwise, habeas relief would be procedural grounds. Coleman v. Thompson, limited to state court decisions so far off the 501 U.S. 722, 729-33 (1991). To be mark as to suggest judicial incompetence.” Id. independent, the “state court must actually (quoting Francis S. v. Stone, 221 F.3d 100, 111 have relied on the procedural bar as an (2d Cir. 2000)). Finally, “if the federal claim independent basis for its disposition of the was not adjudicated on the merits, ‘AEDPA case,” Harris v. Reed, 489 U.S. 255, 261-62 deference is not required, and conclusions of (1989), by “‘clearly and expressly’ stat[ing] law and mixed findings of fact and conclusions that its judgment rests on a state procedural of law are review de novo.’” Dolphy v. bar,” id. at 263 (quoting Caldwell v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) Mississippi, 472 U.S. 320, 327 (1985)). The (quoting Spears v. Greiner, 459 F.3d 200, 203 procedural rule at issue is adequate if it is (2d Cir. 2006)). “‘firmly established and regularly followed’ by the state in question.” Garcia v. Lewis, 188 III. DISCUSSION F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Petitioner argues that he is entitled to Georgia, 498 U.S. 411, 423-24 (1999)). In habeas relief on five grounds: (1) his arrest addition, a state court’s reliance on an was the product of a Fourth Amendment independent and adequate procedural bar violation; (2) his confession was involuntary; precludes habeas review even if the state court (3) there was insufficient evidence to find also rejected the claim on the merits in the physical injury; (4) he received ineffective alternative. See, e.g., id.at 264 n.10 (holding assistance of counsel; and (5) concurrent that “a state court need not fear reaching the inclusory counts should be dismissed. For the merits of a federal claim in an alternative following reasons, the Court concludes that holding,” so long as the state court “explicitly invokes a state procedural bar rule as a counsel.” McLeod v. Graham, No. 10 Civ. separate basis for decision” (emphasis in 3778 (BMC), 2010 WL 5125317, at *3 original)); Glenn v. Bartlett, 98 F.3d 721, 725 (E.D.N.Y. Dec. 9, 2010) (citing Bossett v. (2d Cir. 1996) (same). Walker, 41 F.3d 825, 829 (2d Cir. 1994)). Prejudice can be demonstrated by showing The procedural bar is based on the that the error “worked to his actual and “comity and respect” that state judgments substantial disadvantage, infecting his entire must be accorded. House v. Bell, 547 U.S. trial with error of constitutional dimensions.” 518, 536 (2006). Its purpose is to maintain the Torres v. Senkowski, 316 F.3d 147, 152 (2d delicate balance of federalism by retaining a Cir. 2003). A miscarriage of justice is state’s rights to enforce its laws and to demonstrated in extraordinary cases, such as maintain its judicial procedures as it sees fit. where a constitutional violation results in the Coleman, 501 U.S. at 730-31. Generally, the conviction of an individual who is actually Second Circuit has deferred to state findings of innocent. Murray v. Carrier, 477 U.S. 478, procedural default as long as they are 496 (1986). To overcome procedural default supported by a “fair and substantial basis” in based on miscarriage of justice, petitioner state law. Garcia, 188 F.3d at 78. However, must demonstrate that “in light of new there is a “small category” of “exceptional evidence, it is more likely than not that no cases in which [an] exorbitant application of a reasonable juror would have found petitioner generally sound [procedural] rule renders the guilty beyond a reasonable doubt” and would state ground inadequate to stop consideration require “new reliable evidence . . . that was not of a federal question.” Lee v. Kemna, 534 U.S. presented at trial.” House, 547 U.S. at 536-37. 362, 376, 381 (2002). Nevertheless, 2. New York’s Preservation Doctrine “principles of comity . . . counsel that a federal court that deems a state procedural rule On direct appeal, the Second Department inadequate should not reach that conclusion concluded that petitioner’s claims challenging ‘lightly or without clear support in state law.’” his warrantless arrest under Aguilar-Spinelli Garcia, 188 F.3d at 77 (quoting Meadows v. and his contention that there was insufficient Holland, 831 F.2d 493, 497 (4th Cir. 1987) evidence relating to physical injuries to the (en banc), vacated on other grounds, 489 U.S. victims were unpreserved for review under 1049 (1989)). C.P.L. § 470.05. Cruz, 137 A.D.3d at 1159. If a claim is procedurally barred, a federal habeas court may not review the claim on the “New York’s contemporaneous objection merits unless the petitioner can demonstrate rule provides that a party seeking to preserve a both cause for the default and prejudice claim of error at trial must lodge a protest to resulting therefrom, or if he can demonstrate the objectionable ruling ‘at the time of such that the failure to consider the claim will result ruling . . . or at any subsequent time when the in a miscarriage of justice. Coleman, 501 U.S. [trial] court had an opportunity of effectively at 750. Petitioner may demonstrate cause by changing the same.’” Whitley v. Ercole, 642 showing one of the following: “(1) the factual F.3d 278, 286 (2d Cir. 2011) (quoting C.P.L. or legal basis for a petitioner’s claim was not § 470.05(2)). “New York courts consistently reasonably available to counsel, (2) some interpret § 470.05(2) to require that a interference by state officials made defendant specify the grounds of alleged error compliance with the procedural rule in sufficient detail so that the trial court may impracticable, or (3) the procedural default have a fair opportunity to rectify any error.” was the result of ineffective assistance of Garvey v. Duncan, 485 F.3d 709, 715 (2d Cir. 2007) (citation omitted). Thus “[a] general the New York preservation doctrine provides objection is not sufficient to preserve an issue” an independent and adequate ground for because a “defendant must specifically focus decision on habeas review. on the alleged error.” Id. at 714 (collecting authority); see also, e.g., McCall v. Capra, 102 3. Application F. Supp. 3d 427, 445 (E.D.N.Y. 2015) (“‘The word objection alone [is] insufficient to a. Fourth Amendment Claim preserve the issue for [appellate] review’ in the The Court concludes that petitioner’s New York state courts.” (quoting People v. claim regarding the alleged lack of probable Tevaha, 644 N.E.2d 1342, 1342 (N.Y. cause for his arrest because the government 1994))); Umoja v. Griffin, No. 11 CV failed to satisfy the Aguilar-Spinelli test is 0736(PKC)(LB), 2014 WL 2453620, at *21 procedurally barred because this claim was (E.D.N.Y. May, 29 2014) (holding that decided at the state level on independent and petitioner’s claim was procedurally barred adequate state procedural grounds. despite “petitioner’s counsel’s timely object[ions]” because “counsel was not On direct appeal, the Second Department specific in his objections”); Adams v. found that this claim was “unpreserved for Artus, No. 09–cv–1941 (SLT)(VVP), 2012 appellate review, since the defendant failed to WL 1077451, at *7 (E.D.N.Y. Feb. 24, raise this specific argument in support of 2012) (finding that because counsel “twice suppression before the hearing court,” and was only stated ‘Objection’ . . . these objections did nonetheless meritless. Cruz, 137 A.D.3d at not likely meet the specificity required to be 1159 (citing C.P.L § 470.05[2]). As discussed, preserved on appeal under New York’s New York’s preservation doctrine is an preservation rule.”). independent and adequate ground for decision on habeas review. The Second Circuit has “held repeatedly that the contemporaneous objection rule is a Furthermore, petitioner has not firmly established and regularly followed New demonstrated cause for the default, prejudice, York procedural rule.” Downs v. Lape, 657 or a miscarriage of justice. Petitioner has not F.3d 97, 104 (2d Cir. 2011) (first citing demonstrated cause for the default because the Whitley, 642 F.3d at 286-87; then citing factual and legal basis for petitioner’s claim Richardson v. Greene, 497 F.3d 212, 219 (2d was available to counsel, there was no Cir. 2007); then citing Garvey, 485 F.3d at interference by state officials that made 718; then citing Taylor v. Harris, 640 F.2d 1, compliance with the procedural rules 2 (2d Cir. 1981) (per curiam)). Furthermore, impracticable, and, as discussed below, the Second Circuit has “observed and deferred counsel was not ineffective for deciding not to to New York’s consistent application of its raise the Fourth Amendment claim. contemporaneous objection rules.” Garcia, Additionally, petitioner has not demonstrated 188 F.3d at 79 (citation omitted); see also prejudice or a miscarriage of justice because, Bossett, 41 F.3d at 829 n.2 (respecting state as discussed below, the claim is meritless and court’s application of § 470.05(2) as an would not have affected the trial. Therefore, adequate bar to federal habeas review); because the Fourth Amendment claim was Fernandez v. Leonardo, 931 F.2d 214, 216 (2d procedurally barred on independent and Cir. 1991) (noting that failure to make adequate state grounds, and because petitioner objection at trial constitutes adequate has not shown cause for the default, prejudice, procedural default under § 470.05(2)). Thus, or a miscarriage of justice, the claim is procedurally barred from habeas corpus cause and reasonable suspicion to arrest him. review. The Court disagrees. As set forth below, petitioner is not entitled to relief on this ground b. Legal Sufficiency Claim because: (1) petitioner had a full and fair Petitioner claims there was legally opportunity to litigate this Fourth Amendment insufficient evidence to establish the victims’ claim in state court; (2) the two-prong Aguilar- injuries. The Second Department found that Spinelli test that petitioner relies upon is a this claim was “unpreserved for appellate legal doctrine of state, not federal, law; and (3) review, as it was not raised with specificity in the claim is without merit. his motion for a trial order of dismissal.” Cruz, a. Petitioner had a full and fair 137 A.D.3d at 1159. The Second Department opportunity to litigate this Fourth also rejected petitioner’s claims on the Amendment claim in state court. merits. Id. Although the Second Department

alternatively addressed the merits of the legal i. Legal Standard sufficiency claim, it nevertheless relied on the procedural bar as an independent basis for its It is well-settled that “[w]here the State disposition of the claim. The Second has provided an opportunity for full and fair Department clearly expressed that its litigation of a Fourth Amendment claim, a judgment rests on the state procedural bar, by state prisoner may not be granted federal stating the claim was unpreserved and by habeas corpus relief on the ground that citing C.P.L. § 470.05(2). Id. at 1159. evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Further, petitioner has not established Stone v. Powell, 428 U.S. 465, 494 (1976). cause for the default, nor has he demonstrated The Second Circuit has further explained that, prejudice or a miscarriage of justice because, under Powell, “review of fourth amendment as discussed infra, the claim is meritless and claims in habeas petitions would be would not have affected the trial. Because the undertaken in only one of two instances: (a) if legal sufficiency claim was procedurally the state has provided no corrective procedures barred on independent and adequate state at all to redress the alleged fourth amendment grounds, and because petitioner has not shown violations; or (b) if the state has provided a cause for the default, prejudice, or a corrective mechanism, but the defendant was miscarriage of justice, the claim is precluded from using that mechanism because procedurally barred from habeas corpus of an unconscionable breakdown in the review. underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. B. Merits Henderson, 568 F.2d 830, 839 (2d Cir. 1977) 1. Fourth Amendment (en banc)). Courts have viewed such a breakdown to occur when the state court As already noted, the Fourth Amendment “failed to conduct a reasoned method of claim is procedurally barred. In an abundance inquiry into the relevant questions of fact and of caution, the Court has considered this claim, law.” Capellan, 975 F.2d at 71 (citations and and finds it to be without merit. quotations omitted). Petitioner argues that he is entitled to ii. Application habeas relief because his arrest violated the Fourth Amendment. Specifically, petitioner With respect to the existence of corrective argues that the police officers lacked probable procedures, it is clear that New York has adequate corrective procedures, which are set conducting habeas review, a federal court is forth in New York Criminal Procedure Law limited to deciding whether a conviction (“C.P.L.”) § 710.10, et seq., for litigating violated the Constitution, laws, or treaties of Fourth Amendment claims. See, e.g., the United States.”). Capellan, 975 F.2d at 70 n.1 (“[T]he ‘federal courts have approved New York’s procedure “Aguilar, Spinelli, and their progeny for litigating Fourth Amendment claims . . . as focus on whether information provided by an being facially adequate.’” (quoting Holmes v. anonymous informant is sufficiently reliable Scully, 706 F. Supp. 195, 201 (E.D.N.Y. to support a warrant without other supporting 1989))). Moreover, in the instant case, there is information.” Greene v. Brown, No. 06 Civ. absolutely no evidence of an unconscionable 5532(LAP)(GWG), 2010 WL 1541429, at *1 breakdown in the underlying process. To the (S.D.N.Y. Apr. 15, 2010) (citing Illinois v. contrary, petitioner was afforded a pre-trial Gates, 462 U.S. 213, 238-39 (1983)); see also suppression hearing at which his counsel could Spinelli v. United States, 393 U.S. 410 (1969); have made, but did not make, the Aguilar- Aguilar v. Texas, 378 U.S. 108 (1964). The Spinelli argument. On appeal, the Second Supreme Court has “abandoned the two- Department concluded that this claim was pronged Aguilar-Spinelli test for determining unpreserved for appellate review, and that in whether an informant’s tip suffices to establish any event, there was probable cause for arrest. probable cause for the issuance of a warrant Cruz, 137 A.D.3d at 1159. Thus, the record and substituted in its place a ‘totality of the reveals no “‘disruption or obstruction of a state circumstances’ approach.’” United States v. proceeding’ typifying an unconscionable Leon, 468 U.S. 897, 904 n.5 (1984) (citing. breakdown,” Capellan, 975 F.2d at 70 Illinois v. Gates, 462 U.S. 213 (1983)). (quoting Shaw v. Scully, 654 F. Supp. 859, 864 However, New York state law has rejected the (S.D.N.Y. 1987)); rather, the record clearly federal approach, and adheres to the more establishes that the state court conducted a stringent requirements of the Aguilar-Spinelli reasoned and thorough method of inquiry into test. See Freeman v. Kadien, 684 F.3d 30, 34 the relevant facts. In short, having fully (2d Cir. 2012). The Aguilar-Spinelli test is a availed himself of New York’s corrective specific doctrine under New procedures regarding his Fourth Amendment York state law and, thus, is not cognizable on claim, petitioner has had an opportunity for federal habeas review. See id. (citing People full and fair litigation of the claim and may not v. Griminger, 71 N.Y.2d 635, 639 (1988)). raise it on federal habeas review. See, e.g., Garret v. Smith, 2006 WL 2265094, at *8 ii. Application (E.D.N.Y. Aug. 8, 2006). The Court concludes that petitioner’s 1. The Aguilar-Spinelli test is a legal claim that there was no probable cause to doctrine of New York State law arrest because the Aguilar-Spinelli test was not satisfied presents a question of state law that is i. Legal Standard not cognizable on federal habeas review. See Freeman, 684 F.3d at 34. For the purposes of federal habeas corpus review, a habeas petition can only be granted In any event, even assuming arguendo to remedy some violation of federal law. that this Court could review petitioner’s Estelle v. McGuire, 502 U.S. 62, 67 (1991) Fourth Amendment Aguilar-Spinelli claim, (citations omitted) (“[F]ederal habeas corpus the claim is meritless. Here, the Second does not lie for errors of state law . . . In Department concluded that the police were “required to meet the less demanding attempt to fight or flee”); People v. Medina, 37 reasonable suspicion standard” to stop the A.D.3d 240, 242 (N.Y. App. Div. 2007) (“The vehicle in which petitioner was a passenger, police conducted a lawful investigatory and did so “on the basis of the information a detention, fully supported by reasonable police sergeant received from police radio suspicion that defendant had been involved in transmissions.” Cruz, 137 A.D.3d at 1158. a violent crime, and this detention was not Further, the Second Department concluded transformed into an arrest when the police that, “[r]easonable suspicion then escalated to ordered defendant out of his vehicle, placed probable cause for arrest when, according to him on the ground in handcuffs, and held him the police sergeant’s hearing testimony, the for approximately 30 minutes, since all of defendant ‘knock[ed]’ the police sergeant off these police actions were justified by the of him and fled the scene . . . .” Id. particular exigencies involved in the investigation . . . .”). Further, the Court agrees The Court agrees that, under New York that reasonable suspicion escalated to probable law, the detailed description that Sergeant cause to arrest once petitioner fled the scene. Lezamiz received from the radio transmission, See People v. McDonald, 285 A.D.2d 615, including a description of the occupants in the 615-16 (N.Y. App. Div. 2001) (reasonable car, the color, make, and model of the car, as suspicion to stop vehicle based on information well as the distinguishing characteristics of the contained in radio transmission escalated to car including the bumper stickers and the probable cause when defendant fled from the spotlight on the roof were sufficient to give scene). rise to reasonable suspicion to stop the car. See People v. Ceruti, 133 A.D.3d 610, 610 Thus, based on a review of the record, the (N.Y. App. Div. 2015) (“[T]he police had Court concludes that the Second Department’s reasonable suspicion to stop the vehicle that decision that there was probable cause to arrest [the defendant] was driving based upon a radio was neither contrary to, or an unreasonable transmission indicating, inter alia, the make application of, clearly established federal law, and color of the vehicle allegedly involved in nor was it an unreasonable determination of the robbery . . . .”). Additionally, the Court the facts in light of the evidence. Thus, the notes that Sergeant Lezamiz’s use of Court rejects petitioner’s claim on the merits. handcuffs during the stop, upon the suspicion 2. Voluntariness of Confession Claim that petitioner had a weapon (H. 25-26), and with the understanding that a handgun had Petitioner claims that his confession been used during the home invasion (H. 17), should be suppressed because it was did not transform the stop into an arrest. See involuntary. Specifically, he contends that the United States v. Fiseku, 915 F.3d 863, 873 (2d statements he made after he received Miranda Cir. 2018) (finding no Fourth Amendment warnings were coerced because he was violation when officer handcuffed suspects “deprived of food, water, sleep for 36 to 38 during an investigatory stop where he came hours of interrogation.” (Pet. 7.) The Court across three suspects in the woods and his finds this claim to be without merit. “goal was not simply to identify the men, but to confirm or rebut his suspicion that they had a. Legal Standard committed, or were poised to commit, a home The “ultimate issue of voluntariness [of a invasion or some other crime” and “the confession] is a legal question requiring likelihood of ongoing or imminent criminal independent federal determination.” Nelson v. activity heightened the risk that one or more Walker, 121 F.3d 828, 833 (2d Cir. 1997) suspects might be armed and that they might (citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)); see also Mincey v. Arizona, 437 to use the bathroom or sleep, (Pet’r’s Memo. U.S. 385, 396 (1978) (holding that the Court is of Law 22-24). not bound by a state court’s determination that However, there is sufficient evidence to a statement was voluntary; “[i]nstead, the support the Second Department’s Court is under a duty to make an independent determination that petitioner voluntarily made evaluation of the record”); Nova v. Bartlett, incriminating statements after being advised 211 F.3d 705, 707 (2d Cir. 2000). Factual of his Miranda rights. See Cruz, 137 A.D.3d questions underlying a legal determination are at 1158. As an initial matter, the factual entitled to a presumption of correctness under findings were made after extensive 28 U.S.C. § 2254(d). Nelson, 121 F.3d at 833. development of the material facts at the However, the Second Circuit has noted that suppression hearing. The hearing court “the statutory presumption refers to historical determined that, although petitioner was facts, that is, recitals of external events and the detained for a day and a half (aligning with credibility of the witnesses narrating them.” petitioner’s assessment of how long he was in Id. (internal quotation marks omitted) custody), he was not interrogated (quoting Green v. Scully, 850 F.2d 894, 900 continuously over that period, and was only (2d Cir. 1988)). Thus, “[i]f ‘the material facts actually questioned for slightly over three were not adequately developed at the State hours. (See Hg. Ct. Decision 7, ECF No 7-7.) court hearing or the District Court finds that Further, the hearing court concluded that the factual determination is not fairly petitioner was offered food and water, was supported by the record,’ the presumption of given the opportunity to sleep, did not correctness is set aside.” Id. (quoting Pagan v. complain of fatigue, and was not denied the Keene, 984 F.2d 61, 64 (2d Cir. 1993)). ability to use the bathroom. (See id. at 13; H. When evaluating the voluntariness of a 694, 702-03, 790-94, 796-97.) Additionally, confession, no one factor is determinative; Detective Espina advised petitioner of his rather, the totality of the circumstances must Miranda rights prior to questioning, and be evaluated. Green v. Scully, 850 F.2d 894, petitioner waived each right and indicated his 901 (2d Cir. 1988). The factors to be understanding of the rights by writing “yes” considered include (1) the characteristics of next to the question “do you understand” the accused, (2) the conditions of (which was written and answered in Spanish) interrogation, and (3) the conduct of law and by signing the rights card. (H. 495-98, enforcement officials. Id. at 901-02. 501-03 697-701.) Before petitioner signed a written statement that Detective Espina b. Application prepared, and which petitioner did not edit or Petitioner contends that his confession alter, petitioner again waived his rights by was coerced because he was in custody for 36 initialing the second and third paragraphs of to 38 hours, was “unable to speak English,” the statement which restated petitioner’s was “barely naked in a hospital gown . . . and Miranda rights. (H. at 606-07.) Further, a bloody face [because he was beaten to a pulp Detective Espina spoke to petitioner in while being interrogated]” and “food only Spanish (H. 482), and did not have his service being provided after the fact of the weapon on him at any point when questioning constitutional violation had taken place” petitioner (H. 483). (Pet’r’s Reply 16), and was denied the ability Here, the totality of the circumstances, including that petitioner was questioned in Spanish for an aggregate period of approximately three hours, was not deprived in state court will not be reversed if, “after of food, water, or sleep, or the ability to use viewing the evidence in the light most the bathroom, and that petitioner waived his favorable to the prosecution, any rational trier Miranda rights, do not suggest that of fact could have found the essential elements petitioner’s confession was the product of of the crime beyond a reasonable doubt.” conduct that would overbear his will to resist. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Thus, the evidence in the record supports the see also Policano v. Herbert, 507 F.3d 111, conclusion that petitioner’s confession was 115-16 (2d Cir. 2007) (stating that “[i]n a “the product of an essentially free and challenge to a state criminal conviction unconstrained choice by its maker.” United brought under 28 U.S.C. § 2254 . . . the States v. Moreno, 701 F.3d 64, 76 (2d Cir. applicant is entitled to habeas corpus relief if it 2012) (internal quotation marks omitted) is found that upon the record evidence adduced (quoting United States v. Arango-Correa, 851 at the trial no rational trier of fact could have F.2d 54, 57 (2d Cir. 1988)). In sum, the state found proof of guilt beyond a reasonable court’s determination on this issue was not doubt” (quoting Jackson, 443 U.S. at 324)); contrary to, or an unreasonable application of, Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d clearly established federal law, nor was it an Cir. 2002) (“[W]e review the evidence in the unreasonable determination of the facts in light most favorable to the State and the light of the evidence. Accordingly, habeas applicant is entitled to habeas corpus relief relief on this ground is denied. only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on 3. Insufficient Evidence of Physical the evidence adduced at trial.”). A criminal Injury conviction will stand so long as “a reasonable Petitioner claims generally in his habeas mind ‘might fairly conclude guilt beyond a petition that there was “legal insufficiency of reasonable doubt.’” United States v. Strauss, evidence” and that “the evidence failed to 999 F.2d 692, 696 (2d Cir. 1993) (quoting prove elements of charge.” (Pet. 8.) However, United States v. Mariani, 725 F.2d 862, 865 in the supporting memorandum of law, (2d Cir. 1984)). Even when “faced with a petitioner focuses on the evidence with respect record of historical facts that supports to proof of physical injury to Sumra and conflicting inferences [a court] must Muzafar. (Pet’r’s Memo. of Law 27.) Though presume—even if it does not affirmatively the Court concludes that this claim is appear in the record—that the trier of fact unpreserved for appellate review, in an resolves any such conflicts in favor of the abundance of caution, the Court has prosecution, and must defer to that resolution.” considered this claim on the merits, and finds Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. it to be without merit. 1994) (quoting Jackson, 443 U.S. at 326). a. Legal Standard When considering the sufficiency of the evidence of a state conviction, “[a] federal The law governing habeas relief from a court must look to state law to determine the state conviction based on insufficiency of the elements of the crime.” Quartararo v. evidence is well established. A petitioner Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). “bears a very heavy burden” when challenging the legal sufficiency of the evidence in an b. Application application for a writ of habeas corpus. Petitioner contends that there was Einaugler v. Supreme Court of N.Y., 109 F.3d insufficient evidence to establish Sumra’s and 836, 840 (2d Cir. 1997). A criminal conviction Muzafar’s physical injury, and that physical injury is an element of multiple charges of inflicting pain will often not inflict which petitioner was convicted. (Pet. 8; much of it. Pet’r’s Memo. of Law 27.) Id. at 447-48 (internal citations omitted). Viewing the facts in the light most favorable to the prosecution, the Court finds Considering these factors, the Court that, based on the evidence in the underlying concludes that there was legally sufficient record, a rational trier of fact could have evidence to establish both Muzafar’s and certainly found proof beyond a reasonable Sumra’s injuries. With respect to Muzafar, doubt that Sumra and Muzafar suffered jurors heard testimony from Muzafar that she physical injuries, as that term is defined under was beaten by petitioner and the other co- New York law. “‘Physical injury’ as used in defendants, and at the time of the trial was still the Penal Law, means ‘impairment of physical experiencing pain. (Tr. 350.) Further, jurors condition or substantial pain.’” People v. heard testimony from Sumra and an Chiddick, 8 N.Y.3d 445, 447 (2007) (quoting ambulance medical technician (“AMT”) that Penal Law § 10.00(9)). “‘[S]ubstantial pain’ Muzafar had a bloody nose, and was in an cannot be defined precisely, but it can be said ambulance. (Tr. 351.) The prosecution also that it is more than slight or trivial pain. presented evidence of ligature marks on Pain need not, however, be severe or intense to Muzafar’s hands and a red mark on Muzafar’s be substantial.” Id. In Chiddick, the New neck to the jury. (Tr. 237-38, 244.) Muzafar York Court of Appeals articulated several testified that the red mark was from a knife factors relevant to determining whether being held to her throat, and the AMT substantial pain existed, stating that: confirmed that the mark was consistent with having been caused by a sharp object. (Tr. Perhaps most important is the 244, 365-66.) The prosecution also presented injury defendant inflicted, viewed evidence in the form of Muzafar’s medical objectively. . . Also important is records, which indicated that her pain was the victim’s subjective description rated as an eight out of ten, and that the doctor of what he felt; sometimes an found injuries on her neck, chest, abdomen, objective account of the injury, shoulder, and stomach. (Resp’t’s Br. 12 unaccompanied by testimony (citing People’s Ex. 9 at 3-5.)). The Court about the degree of pain the victim concludes that this evidence is legally experienced, will be enough sufficient to conclude that Muzafar suffered . . . but sometimes it will not . . . . physical injury. It is also relevant that [the victim] The Court further concludes that there sought medical treatment for the was legally sufficient evidence to establish wound defendant inflicted--an Sumra’s injuries. Jurors heard testimony from indication that his pain was the AMT who attended to Sumra that Sumra significant. And finally, the had redness on his neck and an indentation on legislative history of the Penal his bicep that was consistent with blunt force Law shows that the motive of the trauma. (Tr. 272-273.) Both the AMT and offender may be relevant . . . Sumra testified that Sumra was treated in an . Motive is relevant because an ambulance. (Tr. 272, 603.) The jury also offender more interested in heard testimony that Sumra experienced pain displaying hostility than in in his shoulder, neck, face, and lip. (Tr. 272- 73, 275, 603.) The prosecution presented evidence that Sumra rated his pain at an eight The first prong requires a showing that out of ten. (Resp’t’s Br. 12 (citing People’s counsel’s performance was deficient. Ex. 11 at 5, 7)). The medical records also However, “[c]onstitutionally effective counsel established that Sumra was prescribed Toradol embraces a ‘wide range of professionally for his pain. (Id. (citing People’s Ex. 1 at 9)). competent assistance,’ and ‘counsel is strongly Thus, the Court concludes with respect to presumed to have rendered adequate Sumra that there was sufficient evidence to assistance and made all significant decisions in support the jury’s finding of physical injury. the exercise of reasonable professional judgment.’” Greiner v. Wells, 417 F.3d 305, Given the overwhelming evidence of 319 (2d Cir. 2005) (quoting Strickland, 466 significant physical injury to both Muzafar and U.S. at 690). The performance inquiry Sumra presented at trial, petitioner’s claim examines the reasonableness of trial counsel’s that there was legally insufficient evidence for actions under all circumstances, keeping in his conviction on multiple counts involving mind that a “fair assessment of attorney causing physical injury fails on the merits. performance requires that every effort be made 4. Ineffective Assistance of Counsel to eliminate the distorting effects of hindsight.” Greiner, 417 F.3d at 319 (quoting Petitioner contends that he received Rompilla v. Beard, 545 U.S. 374, 408 (2005)). ineffective assistance of trial counsel because In assessing performance, a court must apply a counsel “failed to make timely objections and “heavy measure of deference to counsel’s failed to challenge the people’s evidence.” judgments.” Greiner, 417 F.3d at 319 (Pet. 10.) In his memorandum of law in (internal quotation marks omitted) (quoting support of the petition, petitioner more Strickland, 466 U.S. at 691). “A lawyer’s specifically alleges that his trial counsel decision not to pursue a defense does not (1) failed to assert affirmative defenses; constitute deficient performance if, as is (2) failed to argue that petitioner’s arrest typically the case, the lawyer has a reasonable lacked probable cause at the pre-trial justification for the decision,” DeLuca v. suppression hearing; and (3) failed to object to Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996), and the admission of a three-page subscriber sheet “strategic choices made after thorough for cellphone records belonging to co- investigation of law and facts relevant to defendant Guerrero. (Pet’r’s Memo. of Law plausible options are virtually 31-33.) As discussed below, the Court finds unchallengeable,” id. (internal quotation each of petitioner’s ineffective assistance marks omitted) (quoting Strickland, 466 U.S. claims to be without merit. at 690). Moreover, “strategic choices made a. Legal Standard after less than complete investigation are reasonable precisely to the extent that Under the standard promulgated in reasonable professional judgments support the Strickland v. Washington, 466 U.S. 668 limitations on investigation.” DeLuca, 77 (1984), a petitioner is required to demonstrate F.3d at 588 (internal quotation marks omitted) two elements in order to state a successful (quoting Strickland, 466 U.S. at 690-91). claim for ineffective assistance of counsel: (1) “counsel’s representation fell below an The second prong focuses on prejudice to objective standard of reasonableness,” id. at the petitioner. The petitioner is required to 688, and (2) “there is a reasonable probability show that there is a “reasonable probability that, but for counsel’s unprofessional errors, that, but for counsel’s unprofessional errors, the result of the proceeding would have been the result of the proceeding would have been different,” id. at 694. different.” Strickland, 466 U.S. at 694. In this context, “reasonable probability” means that i. Failure to assert an affirmative defense the errors are of a magnitude such that they Petitioner claims that his trial counsel was “undermine[] confidence in the outcome.” ineffective for failing to request that the court Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. charge the jury with the affirmative defense, 2001) (internal quotation marks omitted) contained within N.Y.P.L. § 160.15(4) and (quoting Strickland, 466 U.S. at 694). “The N.Y.P.L. § 140.30(4), that a firearm displayed question to be asked in assessing the prejudice “was not a loaded weapon from which a shot, from counsel’s errors . . . is whether there is a readily capable of producing death or other reasonable probability that, absent the errors, serious physical injury, could be discharged.” the factfinder would have had a reasonable (Pet’r’s Memo. of Law 31). The Court doubt respecting guilt.” Henry v. Poole, 409 disagrees. F.3d 48, 63-64 (2d Cir. 2005) (internal quotation marks omitted) (quoting Strickland, As discussed above, “[a] lawyer’s 466 U.S. at 695). decision not to pursue a defense does not constitute deficient performance if, as is “An error by counsel, even if typically the case, the lawyer has a reasonable professionally unreasonable, does not warrant justification for the decision.” DeLuca, 77 setting aside the judgment of a criminal F.3d at 588 n.3. Further, “strategic choices proceeding if the error had no effect on the made after thorough investigation of law and judgment.” Lindstadt v. Keane, 239 F.3d 191, facts relevant to plausible options are virtually 204 (2d Cir. 2001) (internal quotation marks unchallengeable.” Id. (internal quotation omitted) (quoting Strickland, 466 U.S. at 691). marks omitted) (quoting Strickland, 466 U.S. Moreover, “[u]nlike the determination of trial at 690). counsel’s performance under the first prong of

Strickland, the determination of prejudice Counsel’s decision not to pursue an ‘may be made with the benefit of hindsight.’” affirmative defense that would have Hemstreet v. Greiner, 491 F.3d 84, 91 (2d Cir. contradicted his theory of the case, which was 2007) (quoting Mayo v. Henderson, 13 F.3d a mistaken identity theory (Tr. 1080), is a 528, 534 (2d Cir. 1994)). sound trial strategy, see People v. Diaz, 149 b. Application A.D.3d 974, 974-75 (N.Y. App. Div. 2017); People v. Casseus, 120 A.D.3d 828, 829 (N.Y. As a threshold matter, the Court notes that App. Div. 2014). In Diaz, the defendant petitioner’s ineffective assistance of counsel claimed ineffective assistance of counsel at arguments were rejected by the Second trial because of counsel’s failure “to request Department on the merits. Cruz, 137 A.D.3d that the jury be charged on the affirmative at 1160 (noting that petitioner “received the defense to robbery in the first degree and effective assistance of counsel”). Thus, burglary in the first degree that the object because the Second Department’s decision displayed was not a loaded weapon from was an “adjudicat[ion] on the merits,” see 28 which a shot, capable of producing death or U.S.C. § 2254(d), it is entitled to the other serious physical injury, could be deferential standard of review under AEDPA. discharged.” 149 A.D.3d at 974. The court in See, e.g., Dolphy v. Mantello, 552 F.3d 236, Diaz held that counsel’s decision to not pursue 238 (2d Cir. 2009) (“When the state court has that affirmative defense was a legitimate adjudicated the merits of the petitioner’s decision and did not equate to ineffective claim, we apply the deferential standard of assistance of counsel because pursuing the review established by [AEDPA] . . . .”). affirmative defense would have required the defense to introduce evidence that would ii. Failure to argue that petitioners arrest undermine its own defense of lacked probable cause misidentification. Id. at 975. Further, the trial Petitioner claims his trial counsel was court “was not required to give the charge sua ineffective for failing to object at the sponte, since such an instruction would have suppression hearing to “the arrest of petitioner interfered with the defendant’s theory of the sans the requisite probable cause.” (Pet’r’s case.” Id. Mem. of Law 35; see Pet’r’s State Appellate As in Diaz, here, counsel’s decision not to Br., 60.) As set forth below, the Court finds assert the affirmative defense when it would this claim to be without merit. contradict his misidentification theory of the As an initial matter, the Court notes that case was a sound trial strategy. Had counsel petitioner’s trial counsel did litigate a motion pursued the affirmative defense, he would to suppress “property seized as a result of an have had to introduce evidence that unlawful search and seizure vis-à-vis contradicted the misidentification theory to warrantless arrests, reasonable establish that the gun was not capable of suspicion/probable cause, a vehicle search, discharging a shot. Thus, counsel’s decision consents, to search, and whether property was not to pursue the affirmative defense in order abandoned” and a hearing was held on these to maintain defendant’s theory of motions. (Hg. Ct. Decision 2.) Thus, misidentification does not “[fall] below an petitioner’s claim that his attorney was objective standard of reasonableness,” ineffective for failing to make this motion fails Strickland, 466 U.S. at 694, such that habeas at the outset. See United States v. Stevens, relief is warranted. 2002 WL 31111779, at *3 (E.D. Pa. Sept. 19, In any event, even assuming arguendo 2002) (“Counsel moved to suppress the that counsel erred in not requesting that the evidence . . . . Petitioner is not entitled to claim court charge the jury with the affirmative ineffective assistance of counsel merely defense, petitioner cannot demonstrate that he because he lost the motion.”). was prejudiced by counsel’s failure to do so. Petitioner has not adduced any evidence that However, even assuming arguendo that the firearm was unloaded, and as such there is petitioner’s trial counsel had failed to make the no indication whatsoever that an affirmative motion, as a general matter, in order to show defense relying on proof that the gun was ineffective assistance of counsel for failure to unloaded would have been successful. Thus, make a motion to suppress, “the underlying the Court concludes that the Second motion must be shown to be meritorious, and Department’s conclusion that petitioner there must be a reasonable probability that the received effective assistance of counsel was verdict would have been different if the neither contrary to, or an unreasonable evidence had been suppressed.” United States application of, clearly established federal law, v. Matos, 905 F.2d 30, 32 (2d Cir. 1990) nor was it based on an unreasonable (citing Kimmelman v. Morrison, 477 U.S. 365, determination of the facts. Accordingly, this 375-76 (1986)). ground does not provide a basis for habeas relief. The Court concludes that petitioner’s claim is without merit as the requisite probable

cause for arrest existed, as discussed above in the Court’s discussion of petitioner’s Fourth Amendment claim. As the Court concluded with respect to the Fourth Amendment claim, 28 N.Y.3d 544, 552 (2016). As in Patterson, the Court agrees with the Second Department the subscriber sheets were not offered into that there was reasonable suspicion to stop the evidence for the truth of their contents, but car based on the information received over the rather were offered to demonstrate some radio transmission regarding the description of connection between petitioner’s cellphone and the car, and petitioner’s flight from that officer those of his co-defendants during the relevant gave rise to probable cause for his arrest. See time period relating to the underlying crime. Cruz, 137 A.D.3d at 1159. Thus, petitioner (See Tr. 1130.) Indeed, Ricardo Leal (“Leal”), cannot demonstrate prejudice on any issues a subpoena analyst at Sprint/Nextel, testified that petitioner has with respect to counsel’s that “anything that’s given [for subscriber handling of the Fourth Amendment claim. information] is not checked by the corporation. It is what it is. It could be false iii. Failure to object to the admission of the or it could be true . . . . It’s not verified in any three-page subscriber sheet for the way.” (Tr. 675.) Thus, the Court concludes cellphone records that, as in Patterson, the subscriber sheets were offered for the limited nonhearsay Petitioner claims that his trial counsel was purpose of providing information linking the ineffective for failing to object to the defendant to a particular cellphone, and trial admission of a three-page subscriber account counsel properly did not object to their sheet, which would have made the call detail admission. log of co-defendant Guerrero inadmissible because the subscriber sheets are not business Moreover, even assuming that counsel records. (Pet. 35; Pet’r’s State Appellate Br. had objected to the subscriber sheets on the 61.) Petitioner adopts his argument from his basis that they would not fall under the direct appeal, which is that “[w]ithout these business records exception (though any such separate three-page subscriber account sheets, objection would have failed as the subscriber the call detail logs . . . would not have been sheets were offered for a nonhearsay purpose), admissible and all of the cellphone evidence any such objection would not have prevented would have been excluded.” (Pet’r’s State the admission of the cellphone records into Appellate Br. 61.) As set forth below, the evidence. See People v. Bonhomme, 85 Court finds this claim to be without merit. A.D.3d 939, 940 (N.Y. App. Div. 2011) (the trial court “properly admitted the defendant’s As an initial matter, the Court concludes cellphone records through the testimony of the that the subscriber account sheets were not Sprint Nextel records custodian, who testified hearsay, but rather were properly admitted for that she was familiar with the record-keeping a nonhearsay purpose, and thus any objection practices of the company, that the defendant’s to their admission would have been meritless. cellphone records were made in the course of In People v. Patterson, the New York Court regular business, that it was the regular of Appeals held that subscriber information, as business to make the records, and that the it relates to cellphone records, is not hearsay records were made contemporaneously with where it is used to “to show that the account incoming and outgoing phone calls.”). Similar had some connection to the defendant” and not to the testimony that led to the admission of for the truth of the contents of the subscriber the cellphone records in Bonhomme, Leal’s information, because “it was simply irrelevant testimony here was that he was familiar with whether the information was true or false and the records that are kept by Sprint/Nextel, the the cellphone company representatives records are kept over the course of regular testified that the evidence was not verifiable.” business, and the records are made at the time the events occur. (Tr. 670-73.) Thus, *18. Here, as in Daughtry, petitioner did not petitioner’s contention that the cellphone frame his “sentencing claim in constitutional records would not have been admitted without terms, or allege a violation of federal law,” and the admission of the subscriber records is as such, this claim is not cognizable on federal unavailing. Because the subscriber sheet was habeas review. Jd. Thus, the Court concludes properly admitted for a limited nonhearsay that this claim presents an “issue of purely purpose, and the cellphone records were state law” and “is not cognizable under federal admissible under the business records habeas corpus review.” Estelle, 502 U.S. at exception rule, petitioner’s claim that his 67-68. counsel was ineffective for failing to object to IIL. CONCLUSION the subscriber sheets admission into evidence lacks merit. For the foregoing reasons, petitioner has 5. Inclusory Concurrent Counts demonstrated no basis for relief under 28 U.S.C. § 2254. Therefore, the petition for a a. Legal Standard writ of habeas corpus is denied. Because Claims that present issues of purely state petitioner has failed to make a substantial law are not cognizable under federal habeas showing of a denial of a constitutional right, sreview. Eg. Estelle, 502 U.S. at 67-68 no certificate of appealability shall issue. See corpur ee & , we 28 U.S.C. § 2253(c)(2). The Court certifies (holding that “a federal court is limited to nt to 28 USC. § 1915(a)(3) that an deciding whether a conviction violated the pursua a tak Constitution, laws, or treaties of the United appeal from this Order would not be taken □ States”). Generally, issues of inclusory good faith, and, therefore, in forma pauperis concurrent counts are purely matters of state status is denied for the purpose of any appeal. law. See Daughtry v. Conway, 2006 WL See Coppedge v. United States, 369 U.S. 438, ° 444-45 (1962). The Clerk of the Court shall 2850260, at *18 (S.D.N.Y. Sep. 29, 2006); close this case Gardner v. Greiner, 2000 WL 863956, at *3 ° (E.D.N.Y. Jun. 21, 2000). soo RED. ~ b. Application Here, the Court concludes that etitioner’s inclusory concurrent counts claim invokes only issues of state law. Petitioner SEPH F, BIANCO □□ claims that although “federal habeas courts United States Circuit Judge (sitting by have deemed claims of concurrent inclusory designation) counts as not cognizable under federal habeas petitions, some . . . have in the interest of Dated: August 14, 2019 justice deemed such claims to be cognizable.” Central Islip, New York (Pet’r’s Mem. of Law 36 (citing Daughtry, 2006 WL 2850260, at *18)). However, ses although the Daughtry court noted that the Petitioner proceeds pro se. Respondent is state appellate court could, in its discretion, represented by Madeline Singas, District modify a sentence in the interest of justice, the Attorney, Nassau County, 262 Old Country Daughtry court did not find the inclusory Road, Mineola, New York 11501. concurrent count cognizable on federal habeas review. See Daughtry, 2006 WL 2850260, at 20