Dollison v. Nassau County

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

_____________________

No 17-CV-2804 (JFB) _____________________

MICHAEL C. DOLLISON,

Petitioner,

VERSUS

NASSAU COUNTY,

Respondent.

MEMORANDUM AND ORDER August 2, 2019

JOSEPH F. BIANCO, Circuit Judge (sitting by the first second-degree assault charge and a designation): concurrent determinate term of five years’ imprisonment with five years of post-release Michael C. Dollison (“petitioner”), supervision on the second second-degree proceeding pro se, petitions this Court for a assault charge. writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in New In the instant habeas petition, petitioner York state court. On April 30, 2014, after a challenges his conviction and sentence on the bench trial, petitioner was found guilty of two following grounds: (1) the failure of counts of assault in the second degree, in petitioner’s trial attorney to investigate violation of N.Y. Penal Law § 120.05(3), a deprived petitioner of the effective assistance class “D” felony; and one count of trespass, of counsel; (2) his trial attorney’s additional in violation of N.Y. Penal Law § 140.05, a failure to call unnamed witnesses deprived violation as defined by N.Y. Penal Law petitioner of the effective assistance of § 10.00(3).1 Petitioner was thereafter counsel; (3) not every police officer involved sentenced as a second felony offender to a in the arrest testified at the pre-trial hearing determinate term of five years’ imprisonment or at trial; and (4) one of the arresting police with five years of post-release supervision on officers, Officer Brendan Gibbs, testified

1 N.Y. Penal Law § 10.00(3) (“‘Violation’ means an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.”) inconsistently regarding the time that he against him on the grounds that his right to a received the radio report notification of speedy trial had been denied. (ECF No. 12- petitioner’s trespass. For the reasons 15.) Subsequent to the denial of that motion, discussed below, petitioner’s request for a petitioner filed a pro se motion to renew and writ of habeas corpus is denied in its entirety. reargue the motion to dismiss the indictment against him on similar grounds. (ECF No. 12- I. BACKGROUND 16.) The state trial judge denied that motion in an oral decision at petitioner’s trial. (T. 6.)2 A. Factual Background Prior to trial, in November 2013, petitioner The following facts are adduced from the also filed a state petition for a writ of habeas instant petition and underlying record. corpus, arguing that his speedy trial rights had been violated, and claiming that he never gave Petitioner broke into a suite of offices in his attorney permission to waive his speedy Valley Stream, New York, on November 12, trial rights. (ECF No. 12-1.) Petitioner’s 2012. (Resp. Aff., ECF No. 12, ¶ 5.) The application for a state writ of habeas corpus break-in set off the office’s security alarms, was denied on February 11, 2014. People ex and the owner notified the police. (Id.) rel. Dollison v. Sposato, 2014 N.Y. App. Div. Nassau County Police Officer Anthony Henry LEXIS 9226 (2d Dep’t Feb. 11, 2014). The arrived at the offices during the break-in, New York Court of Appeals denied the motion where he encountered petitioner. (Id. ¶ 6.) He for leave to appeal and petitioner’s request for confronted and questioned petitioner as to reargument of the motion. People ex rel. whether he had identification. (Id.) In Dollison v. Sposato, 23 N.Y.3d 906 (2014); response to Officer Henry’s inquiry about People ex rel. Dollison v. Sposato, 24 N.Y.3d identification, petitioner indicated that 1064 (2014). someone was waiting for him downstairs, and

then ran. (Id.) Officer Henry radioed that he These motions and the state habeas was in pursuit of petitioner on foot (id.) and petition are not relevant to petitioner’s instant subsequently, Nassau County Police Officers habeas petition before this Court. Brendan Gibbs and Rashaan Neubia came across petitioner a quarter block from the 2. Pre-Trial Suppression Hearing offices, and asked petitioner to stop (id. ¶ 7). After petitioner attempted to flee again, A pre-trial suppression hearing was held Officers Gibbs and Neubia pursued him, on March 11, 12, and 17, 2014. (ECF No. 12- eventually catching him. (Id.) During the 23.) As is relevant to the instant petition, attempt to arrest petitioner, a struggle ensued Officer Gibbs testified at this hearing between petitioner and Officers Gibbs and regarding petitioner’s arrest. (H. 26-46.)3 Neubia, which resulted in both officers suffering injuries. (Id. ¶¶ 8-9.) 3. Trial

B. Procedural History During a two-day bench trial in April 2014, evidence was received by the court, including: 1. Pre-Trial Motions the map of the area where the incident took

Prior to trial, in December 2012, petitioner place (T. 123); the arrest photo of petitioner filed a pro se motion to dismiss the indictment (id.); certified medical records for Officer

2 Citations to “T.” refer to the transcript of petitioner’s 3 Citations to “H.” refer to the transcript of the bench trial on April 29 and 30, 2014. (ECF No. 12-22.) suppression hearing. (ECF No. 12-23.) Gibbs and Officer Neubia (T. 12); security 3d 672, 672 (2nd Dep’t 2016). The Second footage of the office, and the suspect inside of Department concluded that the evidence was the office (T. 93); testimony from Officer legally sufficient to support both convictions Anthony Henry who responded to the scene at for assault in the second degree and that the the office building, pursued the suspect in the convictions were not against the weight of trespass when he ran from the office building, evidence. Id. at 672-73. On April 8, 2016, and transmitted a description of the suspect via the New York Court of Appeals denied the police radio dispatch system (T. 20-26); petitioner’s application for leave to appeal. testimony from Officer Gibbs who, along with People v. Dollison, 27 N.Y.3d 997 (2016). Officer Neubia, apprehended petitioner, sustained injuries during the arrest, and 5. Section 440 Motion identified the suspect as petitioner at trial (T. 35-39, 44); testimony from Officer Neubia On May 17, 2016, petitioner filed a pro se who also apprehended the trespass suspect, motion in Supreme Court, Nassau County, to sustained injuries during the arrest, and set aside his sentence pursuant to New York identified the suspect as petitioner during trial Criminal Procedure Law § 440.10 (the (T. 69-73); and testimony from Kevin Rapp, “Section 440 Motion”). (ECF No. 14-1.) In the owner of RPG Consultants, the business this motion, petitioner alleged that was the target of the trespass at issue in the “police/prosecutorial misconduct” and underlying criminal case here, and who “defendant lack of competence.” (Id. at 1.) testified about the video footage of the trespass Specifically, petitioner argued that (T. 87, 90-95). “counselor den[ied] motion(s) without client consent,” and “was inform[ed] that client Following the bench trial, petitioner was ha[d] important documents so attorney/client found guilty of two counts of assault in the can build a defence [sic]” and engaged in second degree in violation of N.Y. Penal Law “unprofessional conduct.” (Id. at 4.) § 120.05, as well as one count of trespass, in violation of N.Y. Penal Law § 140.05. (Resp. The trial court construed the Section 440 Aff. ¶ 13.) The trespass count was a lesser- Motion as “focus[ing] on the alleged included offense of the charged offense of shortcomings of his fourth and final attorney, burglary in the third degree. Because the court and on this Court’s denial of his pretrial found the defendant guilty of felony assault, motion to relieve that attorney.” (ECF No. the court did not consider the charge of 12-17.) The court denied petitioner’s resisting arrest, a concurrent misdemeanor. Section 440 motion on May 24, 2016, (T. 113-14.) concluding that the “claim cannot be entertained in a CPL 440.10 motion because 4. Direct Appeal . . . it seems to rely on matters appearing on the record that consequently could have been Petitioner timely appealed his conviction. raised on the defendant’s direct appeal,” and, (Resp. Aff. ¶ 14.) The sole claim raised on therefore, the matter was barred by New York appeal was that “the evidence [at trial] was legally insufficient to prove that either police officer suffered a physical injury within the meaning of Penal Law § 10.00 (9), as required for his conviction of two counts of assault in the second degree (see Penal Law § 120.05 [3]).” People v. Dollison, 24 N.Y.S. Criminal Procedure Law § 440.10(2)(c).4 trial. (Pet. at 4-5.) 6 On April 19, 2017, a (Id.) transfer order was issued, transferring the petition to this Court because petitioner was Petitioner did not seek leave to appeal the challenging a judgment of conviction that denial to the Appellate Division, Second was issued in Nassau County, which is Department. Subsequent to his Section 440 located in this District, and the case was Motion, petitioner made two additional transferred on May 10, 2017. (ECF Nos. motions in state court that are immaterial to 6,7.) Respondent filed a memorandum of law petitioner’s instant petition for a writ of opposing petitioner’s application on October habeas corpus.5 23, 2017. (ECF No. 12.) Petitioner did not

6. The Instant Petition submit a reply.7

On February 21, 2017, petitioner, The Court has fully considered the proceeding pro se, moved before the United parties’ submissions, as well as the States District Court for the Western District underlying record. of New York for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The Court construes petitioner’s stated grounds for II. STANDARD OF REVIEW relief to be as follows: (1) the failure of To determine whether petitioner is entitled petitioner’s trial attorney to investigate to a writ of habeas corpus, a federal court must deprived petitioner of the effective assistance apply the standard of review set forth in 28 of counsel; (2) the trial attorney’s additional U.S.C. § 2254, as amended by the failure to call unnamed witnesses deprived Antiterrorism and Effective Death Penalty Act petitioner of the effective assistance of (“AEDPA”), which provides, in relevant part: counsel; (3) not every police officer involved in the arrest testified at the pre-trial hearing; (d) An application for a writ of habeas and (4) one officer testified to hearing the corpus on behalf of a person in custody radio report of petitioner’s trespass at pursuant to the judgment of a State different times at the pre-trial hearing and the court shall not be granted with respect

4 New York Criminal Procedure Law § 440.10(2)(c) motion was removed from the calendar in a written states: “[T]he court must deny a motion to vacate a order by the state trial judge because it was not a request judgment when: Although sufficient facts appear on the for relief. (ECF No. 12-19.) record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, 6 Petitioner’s grounds for relief are stated in the petition adequate review of the ground or issue raised upon the as follows: (1) “No investigation by attorney before motion, no such appellate review or determination pretrial for case by the fourth attorney”; (2) “Attorney occurred owing to the defendant's unjustifiable failure didn’t have other witnesses to testify for defendant to take or perfect an appeal during the prescribed period defense in favor”; (3) “four officers didn’t testify at trial or to his unjustifiable failure to raise such ground or or pretrial only two or three”; and (4) “PO Gibbs – issue upon an appeal actually perfected by him.” people – direct/inconsistency P.O. Neubia during cross- examination.” (Pet.) 5 Specifically, petitioner filed two pro se motions before the County Court of Nassau County to (1) refund 7 The Court received a letter from petitioner, filed May petitioner for the expense of his DNA databank 22, 2019, seemingly requesting to be heard on the issues surcharge imposed on him at sentencing, arguing the raised in his habeas petition (as well as several other charge was redundant; and (2) requesting the minutes issues beyond the scope of his habeas petition). (ECF from three court appearances in his case. (ECF No. 12- No. 15.) The Court has determined that a hearing is not 18.) The first motion was denied in a written opinion necessary to resolve the questions raised in petitioner’s by the state trial judge. (ECF No. 12-21.) The second habeas petition. to any claim that was adjudicated on unreasonable.” Gilchrist v. O’Keefe, 260 F.3d the merits in State court proceedings 87, 93 (2d Cir. 2001) (quoting Williams, 529 unless the adjudication of the claim- U.S. at 411). While “[s]ome increment of incorrectness beyond error is required. . . the (1) resulted in a decision that was increment need not be great; otherwise, habeas contrary to, or involved an relief would be limited to state court decisions unreasonable application of, so far off the mark as to suggest judicial clearly establish Federal law, as incompetence.” Id. (quoting Francis S. v. determined by the Supreme Court Stone, 221 F.3d 100, 111 (2d Cir. 2000)). “If of the United States; or the federal claim was not adjudicated on the (2) resulted in a decision that was merits, ‘AEDPA deference is not required, and based on an unreasonable conclusions of law and mixed feelings of fact determination of the facts in light and conclusions of law are reviewed de of the evidence presented by the novo.’” Dolphy v. Mantello, 552 F.3d 236, State court proceedings. 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459 F. 3d 200, 203 (2d Cir. 2006)). 28 U.S.C. § 2254. “Clearly established Federal law” is comprised of “the holdings, as III. DISCUSSION opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state- Petitioner argues that he is entitled to court decision.” Green v. Travis, 414 F.3d habeas relief on four grounds: (1) the failure 288, 296 (2d Cir. 2005) (quoting Williams v. of petitioner’s trial attorney to investigate Taylor, 529 U.S. 362, 412 (2000)). deprived petitioner of the effective assistance of counsel; (2) the trial attorney’s additional A decision is “contrary to” clearly failure to call unnamed witnesses deprived established federal law, as determined by the petitioner of the effective assistance of Supreme Court, “if the state arrives at a counsel; (3) not every police officer involved conclusion opposite to that reached by [the in the arrest testified at the pre-trial hearing or Supreme Court] on a question of law or if the at trial; and (4) one officer testified to hearing state court decides a case differently that [the the radio report of petitioner’s trespass at Supreme Court] has on a set of materially different times at the pre-trial hearing and the indistinguishable facts.” Williams, 529 U.S. at trial. Respondent contends that petitioner’s 413. A decision is an “unreasonable claims are unexhausted and otherwise application” of clearly established federal law meritless. For the following reasons, the Court if a state court “identifies the correct governing concludes that petitioner is not entitled to legal principle from [the Supreme Court’s] habeas relief and denies the instant petition. decisions but unreasonably applies that principle to the facts of [a] prisoner’s case.” A. Procedural Requirements Id. 1. Exhaustion AEDPA establishes a deferential standard of review: “a federal habeas court may not As a threshold matter, a district court shall issue the writ simply because the court not review a habeas petition unless “the concludes in its independent judgment that the applicant has exhausted the remedies available relevant state-court decisions applied clearly in the courts of the State.” 28 U.S.C. established federal law erroneously or § 2254(b)(1)(A). Although a state prisoner incorrectly. Rather, that application must be need not petition for certiorari to the United States Supreme Court to exhaust his claims, whose fundamental legal basis was see Lawrence v. Florida, 549 U.S. 327, 333 substantially different from that asserted in (2007), he must fairly present his federal state court.” Id. at 192. constitutional claims to the highest state court with jurisdiction over them, see Daye v. 2. State Procedural Requirements Attorney Gen. of N.Y., 696 F.2d 186, 191 n.3 Like the failure to exhaust a claim, the (2d Cir. 1982) (en banc). Exhaustion of state failure to satisfy the state’s procedural remedies requires that a petitioner “‘fairly requirements deprives the state courts of an present[]’ federal claims to the state courts in opportunity to address the federal order to give the State the ‘“opportunity to constitutional or statutory issues in a pass upon and correct” alleged violations of its petitioner’s claim. See Coleman v. Thompson, prisoners’ federal rights.’” Duncan v. Henry, 501 U.S. 722, 731-32 (1991). “[A] claim is 513 U.S. 364, 365 (1995) (alteration in procedurally defaulted for the purposes of original) (quoting Picard v. Connor, 404 U.S. federal habeas review where ‘the petitioner 270, 275 (1971)). failed to exhaust state remedies and the court

However, “it is not sufficient merely that to which the petitioner would be required to the federal habeas applicant has been through present his claims in order to meet the the state courts.” Picard, 404 U.S. at 275-76. exhaustion requirement would now find the On the contrary, to provide the State with the claims procedurally barred.’” Reyes v. Keane, necessary “opportunity,” the prisoner must 118 F.3d 136, 140 (2d Cir. 1997) (quoting fairly present his claims in each appropriate Coleman, 501 U.S. at 735) (emphasis state court (including a state supreme court omitted). with powers of discretionary review), alerting Where petitioner “can no longer obtain that court to the federal nature of the claim and state-court review of his present claims on “giv[ing] the state courts one full opportunity account of his procedural default, those claims to resolve any constitutional issues by are . . . to be deemed exhausted.” DiGuglielmo invoking one complete round of the State’s v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) established appellate review process.” (first citing Harris v. Reed, 489 U.S. 255, 263 O’Sullivan v. Boerckel, 526 U.S. 838, 845 n.9 (1989); then citing Grey v. Hoke, 933 F.2d (1999); see also Duncan, 513 U.S. at 365-66. 117, 120 (2d Cir. 1991)). Therefore, ‘[f]or “A petitioner has ‘fairly presented’ his claim exhaustion purposes, ‘a federal habeas court only if he has ‘informed the state court of both need not require that a federal claim be the factual and legal premises of the claim he presented to a state court if it is clear that the asserts in federal court.’” Jones v. Keane, 329 state court would hold the claim procedurally F.3d 290, 294-95 (2d Cir. 2003) (quoting barred.’” Keane, 118 F.3d at 139 (quoting Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. Hoke, 933 F.2d at 120). 1997)). “Specifically [petitioner] must have set forth in state court all of the essential However, “exhaustion in this sense does factual allegations asserted in his federal not automatically entitle the habeas petitioner petition; if material factual allegations were to litigate his or her claims in federal court. omitted, the state court has not had a fair Instead, if petitioner procedurally defaulted opportunity to rule on the claim.” Daye, 696 [on] those claims, the prisoner generally is F.2d at 191-92 (collecting cases). barred from asserting those claims in a federal Accordingly, “[t]he chief purpose of the habeas proceeding.” Woodward v. Ngo, 548 exhaustion doctrine would be frustrated if the U.S. 81, 93 (2006) (first citing Gray v. federal habeas court were to rule on a claim Netherland, 518 U.S. 152, 162 (1996); then citing Coleman, 501 U.S. at 744-51)). In the appeal of his conviction to the Second Department, the sole issue raised by The procedural bar rule in the review of petitioner was that “the evidence [at trial] was applications for writs of habeas corpus is legally insufficient to prove that either police based on the comity and respect that state officer suffered a physical injury . . . as judgments must be accorded. See House v. required for his conviction of two counts of Bell, 547 U.S. 518, 536 (2006). Petitioner’s assault in the second degree.” Dollison, 24 federal claims may be procedurally barred N.Y.S.3d at 672 (citation omitted). Although from habeas corpus review if they were this claim is now exhausted (as petitioner decided at the state level on adequate and sought leave to appeal the decision of the independent grounds. See Coleman, 501 Second Department to the New York Court U.S. at 729-33. Once it is determined that a of Appeals), this claim is not raised in the claim is procedurally barred under state rules, instant habeas petition. a federal court may still review such a claim on its merits if the petitioner can demonstrate Additionally, although petitioner did file both cause for the default and prejudice a Section 440 Motion, the claims in the resulting therefrom, or if he can demonstrate Section 440 Motion differ from those that the failure to consider the claim will asserted in the instant petition. In the Section result in a miscarriage of justice. Id. at 750 440 Motion, petitioner generally claimed: (citations omitted). A miscarriage of justice “police/prosecutorial misconduct” and is demonstrated in extraordinary cases, such “defendant lack of competence,” and further as where a constitutional violation results in argued that his “counselor den[ied] the conviction of an individual who is motion(s) without client consent,” “was actually innocent. Murray v. Carrier, 477 inform[ed] that client ha[d] important U.S. 478, 296 (1986). documents so attorney/client can build a defense,” and engaged in “unprofessional 3. Analysis conduct.” (Section 440 Motion at 1, 4.) The trial court construed the Section 440 Motion The Court first considers whether as “focus[ing] on the alleged shortcomings of petitioner adequately exhausted the claims in his fourth and final attorney, and on this his current petition. As discussed above, in Court’s denial of his pretrial motion to relieve his habeas petition, petitioner argues: (1) the that attorney,” and denied the motion. (ECF failure of petitioner’s trial attorney to No. 12-17.) Petitioner did not appeal his investigate deprived petitioner of the unsuccessful Section 440 Motion on any effective assistance of counsel; (2) the trial grounds, nor did petitioner attempt to attorney’s additional failure to call unnamed challenge the state court’s construction of his witnesses deprived petitioner of the effective Section 440 Motion. assistance of counsel; (3) that not every police officer involved in the arrest testified It is well settled that “[t]he burden of at the pre-trial hearing or at trial; and (4) one proving exhaustion lies with the habeas officer testified to hearing the radio report of petitioner.” Cartagena v. Corcoran, No. 04- petitioner’s trespass at different times at the CV-4329(JS), 2009 WL 1406914, at *3 pre-trial hearing and the trial. Because (E.D.N.Y. May 19, 2009). As discussed petitioner failed to raise any of these claims above, to adequately exhaust each claim, a on direct appeal or in a Section 440 Motion, petitioner “must apprise the highest state the Court concludes that these claims are both court of both the factual and the legal unexhausted and procedurally barred. premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. attempt to present these claims, as the time to Keane, 394 F.3d 68, 73 (2d Cir. 2005). “A perfect an appeal has passed, and defendants petitioner may satisfy the exhaustion are afforded only one request for reargument requirement either through a full round of the or reconsideration in connection with a state’s appellate review process or through a criminal leave application. See N.Y. Rules of full round of postconviction proceedings . . . Court §§ 670.8(f), 500.20(d). [which] requires the use of any discretionary appeal procedures that are an established part Moreover, petitioner is procedurally of the state’s appellate or collateral review barred from raising these claims in state court process.” Warren v. Goord, No. 06-CV- in a collateral proceeding. See CPL 1423(RRM), 2013 WL 1310465, at *11 § 440.10(2)(c) (“[T]he court must deny a (E.D.N.Y. Mar. 28, 2013) (internal quotation motion to vacate a judgment when . . . marks and citations omitted). Here, none of [a]lthough sufficient facts appear on the the claims raised in the instant petition have record of the proceedings underlying the gone “through a full round of the state’s judgment to have permitted, upon appeal appellate process or through a full round of from such judgment, adequate review of the postconviction proceedings,” as these claims ground or issue raised upon the motion, no were not raised in either the direct appeal or such appellate review or determination in petitioner’s Section 440 Motion.8 Id. occurred owing to the defendant’s . . . Therefore, the claims in the instant petition unjustifiable failure to raise such ground or are not properly exhausted. issue upon an appeal actually perfected by him.”). Therefore, he has procedurally However, the district court may “deem [a] defaulted on these claims. See Finley v. Gra- claim exhausted” when it finds that no ham, No. 12CV9055 (KMK) (PED), 2016 available procedures remain in state court by WL 47333, at *9 n.14 (S.D.N.Y. Jan. 4, 2016) which a petitioner can fully exhaust his (“[T]he Second Circuit has routinely held claims. See Aparicio v. Artuz, 269 F.3d 78, § 440.10(2)(c) to be an adequate and 90 (2d Cir. 2001) (citing Reyes, 118 F.3d at independent state ground that precludes 139). Here, on direct appeal, petitioner did federal habeas review.” (collecting cases)) not raise his record-based claims that: his counsel was ineffective for allegedly failing Petitioner has offered no explanation for to conduct pre-trial investigations and for his failure to properly raise these claims in failing to call unnamed witnesses, not every state court, nor has he made a showing of police officer involved in the arrest testified prejudice or manifest injustice (such as actual at a pre-trial hearing or at trial, and that one innocence). See Coleman, 501 U.S. at of the officer’s testimony about the radio 750; Murray, 477 U.S. at 496. Therefore, all report of petitioner’s testimony was allegedly of his claims are procedurally barred.

inconsistent. Petitioner cannot return to the Because petitioner shows no cause for or Appellate Division or the Court of Appeals to prejudice from the failure to raise the claim,

8 Even assuming arguendo that petitioner’s Section 440 Motion. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. Motion could be liberally construed to have raised any 1990) (claims raised in Section 440 motion are not of the grounds raised in the instant petition, petitioner’s exhausted unless petitioner seeks leave to appeal any claims would still be unexhausted because petitioner denial of the motion). has failed to appeal his unsuccessful Section 440 Motion on any grounds. Further, petitioner never requested leave to appeal or reargue on the basis that the state court misconstrued his claims in the Section 440 and failing to consider it will not result in a the exercise of reasonable professional “fundamental miscarriage of justice,” his judgment.’” Greiner v. Wells, 417 F.3d 305, claim cannot proceed. Coleman, 501 U.S. at 319 (2d Cir. 2005) (quoting Strickland, 466 750. U.S. at 690). “The performance inquiry examines the reasonableness of trial counsel’s B. Merits actions under all the circumstances,” keeping in mind that a “fair assessment of attorney In an abundance of caution, the Court performance requires that every effort be made concludes that, even assuming arguendo that to eliminate the distorting effects of petitioner’s claims were properly exhausted hindsight.” Id. at 9 (quoting Rompilla v. in state court, habeas relief is not warranted.9 Beard, 545 U.S. 374, 408 (2005) (O’Connor,

1. Ineffective Assistance of Counsel J., concurring)). “In assessing performance, [a Claims court] must apply a ‘heavy measure of deference to counsel’s judgments.’” Id. Petitioner argues that he was denied (quoting Strickland, 466 U.S. at 691). “A effective assistance of counsel because his lawyer’s decision not to pursue a defense does attorney failed to (1) investigate “before not constitute deficient performance if, as is pretrial” and (2) did not “have other witnesses typically the case, the lawyer has reasonable to testify for defense.” (Pet. at 4-5.) For the justification for the decision.” DeLuca v. reasons set forth below, the Court concludes Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996). that these claims are without merit. “Strategic choices made through investigation of law and facts relevant to plausible options Under the standard promulgated by are virtually unchallengeable.” Id. at 558 Strickland v. Washington, 466 U.S. 668 (quoting Strickland, 466 U.S. at 690). (1984), a petitioner is required to demonstrate Moreover, “‘strategic choices made after less two elements in order to state a successful than complete investigation are reasonable claim for ineffective assistance of counsel: precisely to the extent that reasonable (1) “counsel’s representation fell below an professional judgments support the limitations objective standard of reasonableness,” and on investigation.’” Id. (quoting Strickland, (2) “there is a reasonable probability that, but 466 U.S. at 690-91). for counsel’s unprofessional errors, the result of the proceeding would have been different.” The second prong focuses on prejudice to Id. at 688, 694. the petitioner. A petitioner is required to show that there is a “reasonable probability that, but The first prong requires a showing that for counsel’s unprofessional errors, the result counsel’s performance was deficient. of the proceeding would have been different.” However, “[c]onstitutionally effective counsel Strickland, 466 U.S. at 694. In this context, embraces a ‘wide range of professionally “reasonable probability” means that the errors competent assistance’ and ‘counsel is strongly were of a magnitude such that they presumed to have rendered adequate “undermine . . . confidence in the assistance and made all significant decisions in [proceeding’s] outcome.” Pavel v. Hollins,

9 A majority of district courts in the Second Circuit dismiss unexhausted habeas claims on the merits if they are “patently frivolous” and/or fail to raise a federal question. See Wheeler v. Phillips, No. 05-CV-4399 (JFB), 2006 WL 2357973, at *5 (E.D.N.Y. Aug. 15, 2006) (collecting cases). 261 F.3d 210, 216 (2d Cir. 2001) (quoting as to what the investigation would have Strickland, 466 U.S. at 694). “[T]he question produced.” Taylor v. Poole, No. 07 Civ. to be asked in assessing the prejudice from 6318(RJH)(GWG), 2009 WL 2634724, at *14 counsel’s errors . . . is whether there is a (S.D.N.Y. Aug. 27, 2009). “[V]ague, reasonable probability that, absent the errors, conclusory, or speculative claims” will not the factfinder would have had a reasonable suffice. Id. Furthermore, when counsel’s doubt respecting guilt.” Henry v. Poole, 409 alleged failure to investigate includes potential F.3d 48, 63-64 (2d Cir. 2005) (quoting witnesses, “the petitioner must demonstrate Strickland, 466 U.S. at 695). The party that the witnesses would have testified at trial alleging ineffective assistance of counsel bears and explain the expected nature of the the burden of establishing both deficient witnesses’ testimony.” Id. at *15. performance and prejudice. United States v. Here, in support of his claim that counsel Birkin, 366 F.3d 95, 100 (2d Cir. 2004). failed to conduct sufficient pretrial For the reasons discussed below, assuming investigation, petitioner states only that he had arguendo that petitioner’s claims of “seen attorney twice in court pretrial” and that ineffective assistance of counsel are not he had “request[ed[ to dismiss attorney procedurally barred, the Court concludes that Gregory Madey and reasons on record Judge petitioner has failed to demonstrate that threating [sic] either take attorney assign or go counsel’s performance was unreasonable pro se. Client had little knowledge of case.” under Strickland. (Pet. 4.) Petitioner makes no specific arguments as to what specifically was a. Failure to Conduct Pretrial deficient with respect to counsel’s pretrial Investigation investigation, nor does petitioner make any assertions as to what a “sufficient” investigation would have produced. Thus, Petitioner argues that trial counsel was petitioner’s “bald assertion that counsel should ineffective for failing to conduct pretrial have conducted a more thorough pre-trial investigations. The Court disagrees. investigation fails to overcome the Failure to conduct adequate pretrial presumption that counsel acted reasonably.” investigations may serve as the basis for Matura v. United States, 875 F. Supp. 235, 237 ineffective assistance of counsel claims. See (S.D.N.Y. 1995); see Paige v. Lee, 99 F. Supp. Strickland, 466 U.S. at 690-91. “[C]ounsel has 3d 340, 349-50 (E.D.N.Y. 2015) (“Because a duty to make reasonable investigations or to Petitioner’s claim of ineffective assistance of make a reasonable decision that makes counsel based on failure to investigate is particular investigations unnecessary.” Id. at simply too vague and conclusory to state a 691. The reasonableness of counsel’s decision proper ground for habeas relief under either to not investigate must be assessed in light of Strickland prong, it must be dismissed as the totality of the circumstances. Id. There is meritless.”); see Madarikan v. United States, a “heavy measure of deference” afforded to No. 95 CV 2052(SJ), 1997 WL 597085, at *1 counsel’s judgments. Id. (E.D.N.Y. Sept. 24, 1997) (denying an ineffective assistance claim because To prevail on an ineffective assistance petitioner’s allegations were “conclusory, and claim for counsel’s alleged failure to g[a]ve no indication as to what exculpatory investigate, a petitioner has the “burden of evidence may have been revealed”). providing the court sufficiently precise

information, that is, a comprehensive showing Additionally, to the extent petitioner is attempting to challenge the trial court’s do so, and asserts no other grounds for why his decision denying his request for new counsel request for new counsel was improperly in this Court, that claim is both unexhausted denied, the Court concludes that this claim is and meritless. The trial court denied meritless. petitioner’s Section 440 Motion, concluding that “the jailhouse boilerplate the defendant Moreover, petitioner fails to establish had submitted failed to establish good cause prejudice as a result of counsel’s alleged for relieving the defendant’s fourth court- failure to investigate or alleged improper appointed counsel . . . [and] the conclusory denial of his request for new counsel, and any statements the defendant makes in his attempt to do so would be futile in light of the [Section 440 Motion] do no better.” (Order overwhelming evidence of petitioner’s guilt, Denying Section 440 Motion, ECF No. 12- including the testimony of three police officers 17, 1.) Petitioner did not appeal this decision. regarding petitioner’s apprehension and arrest, as well as the video footage of petitioner at the In any event, the Court concludes that any scene of the trespass. See Gersten v. attempt by petitioner to challenge the denial of Senkowski, 426 F.3d 588, 611 (2d Cir. 2005); his motion to relieve his fourth court- United States v. Reiter, 897 F.2d 639, 645 (2d appointed counsel is meritless.10 “While the Cir. 1990). Sixth Amendment guarantees a right to b. Failure to Call Witnesses competent court-appointed counsel in criminal

cases, ‘a trial court may require a defendant to Petitioner also alleges that his counsel was proceed to trial with counsel not of defendant’s ineffective for failing to call unnamed choosing.’” United States v. Culbertson, 670 witnesses to testify on his behalf at trial. The F.3d 183, 192-93 (2d Cir. 2012), as amended Court disagrees. (Feb. 16, 2012) (quoting United States v. Oberoi, 547 F.3d 436, 458 (2d Cir. 2008)). In “Courts applying Strickland are especially particular, when “the court has already deferential to defense attorneys’ decisions replaced counsel more than once, and the case concerning which witnesses to put before the approaches trial, it is reasonable for the court jury. The decision not to call a particular to require an intractable defendant either to witness is typically a question of trial strategy proceed with the current appointed lawyer, or that reviewing courts are ill-suited to second- to proceed pro se.” Id. guess.” Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005) (internal citations and quotation Here, petitioner was given the opportunity marks omitted). Thus, “a petitioner’s to proceed pro se, and elected not to, and has speculative claim about the testimony of an again failed to assert any grounds as to why his uncalled witness is accorded little weight in counsel should have been relieved, or why the federal habeas review.” Morgan v. Lee, No. trial court erred in denying his motion for the 10-CV-3954 (NGG)(RER), 2012 WL court to appoint a fifth attorney for him. Thus, 12324986, at *6 n.10 (E.D.N.Y. Aug. 8, 2012) given that petitioner was offered the (quoting Muhammad v. Bennett, No. 96-CV- opportunity to proceed pro se and declined to 8430 (JSR)(HBP), 1998 WL 214884, at *1

10 The Court notes that petitioner does not claim in the instant petition (or elsewhere) that he was denied the opportunity to represent himself. In fact, petitioner asserts in the instant habeas petition that the trial judge informed him that he could either keep his appointed attorney or “go pro se.” (Pet. 4.) (S.D.N.Y. Apr. 29, 1998)). claim, petitioner fails to establish prejudice as a result of counsel’s alleged failure to identify Here, petitioner claims that his attorney and call witnesses to testify on behalf of did not have witnesses to testify in defendant’s petitioner, and any attempt to do so would be favor, alleging only that “there was a sheet for futile in light of the overwhelming evidence of pretrial/trial for witnesses [sic] that didn’t petitioner’s guilt. See Gersten, 426 F.3d at come as client request about the list.” (Pet. 4) 611; Reiter, 897 F.2d at 645. Petitioner’s conclusory allegations regarding his counsel’s alleged failure to call witnesses in his defense is unsupported by any factual 2. Claim Regarding Police Officer allegations as to the identities of any such Witnesses witnesses or what exculpatory testimony they Petitioner alleges that not every officer would have offered, and are therefore involved in his arrest testified at either the pre- meritless. See Miller v. Boucaud, No. 09-CV- trial hearing or trial, and therefore habeas 6598(MAT), 2012 WL 3262426, at *8-9 relief is warranted. (Pet. at 5.) The Court (W.D.N.Y. Aug. 8, 2012) (holding counsel disagrees. was not deficient for failing to investigate

potential witnesses in part because petitioner It is well-established that “the failed to produce sworn statements from Government need not call every witness who potential witnesses regarding their alleged might have something to say.” United States exculpatory testimony); Brito v. Brown, No. v. Simmons, 338 F.2d 804, 806 (2d Cir. 1964); 09 Civ. 5754(JGK), 2011 WL 1542516, at *9- see Funches v. Walsh, No. 05 CIV. 2839 11 (S.D.N.Y. Apr. 21, 2011) (holding (NRB), 2006 WL 1063287, at *14 (S.D.N.Y. counsel’s decision not to investigate or present Apr. 21, 2006), aff’d, 264 F. App’x 45 (2d Cir. at trial three specific witnesses was not 2008) (“Surely, a prosecutor is not obligated to objectively unreasonable because petitioner call every possible witness.”). Thus, failed to demonstrate that they possessed petitioner’s conclusory claim that the other exculpatory evidence); Ortiz v. Heath, No. 10- two officers involved in his arrest should have CV-1492 (KAM), 2011 WL 1331509, at *11- testified at either the pre-trial suppression 12 (E.D.N.Y. Apr. 6, 2011) (finding counsel’s hearing or at trial is meritless, as the failure to investigate potential witnesses not government had no obligation to call those unreasonable because petitioner provided no witnesses in order to prove the case against indication as to whether they would have petitioner. See United States v. Danzey, 594 testified and what, if any, exculpatory F.2d 905, 916 (2d Cir. 1979) (“[T]he evidence they could have offered). Therefore, testimony of a single, uncorroborated because petitioner provides no indication that eyewitness is generally sufficient to support a any uncalled witnesses would have produced conviction.”)11 Thus, the Court concludes this exculpatory evidence, the Court concludes that ground for relief is without merit. petitioner has not satisfied the first prong of Strickland. 3. Claim Regarding Officer Gibbs’ Testimony Moreover, as discussed supra with regard

to petitioner’s other ineffective assistance Petitioner further asserts that Officer

11 To the extent petitioner seeks to make an argument relating to a missing witness instruction, any such argument is unavailing as petitioner was convicted after a bench trial. Gibbs’ testimony was inconsistent as between States v. Abel, 258 F.2d 485, 494 (2d Cir. the pre-trial suppression hearing and the trial. 1958), aff’d, 362 U.S. 217 (1960). (Pet. 5.) The Court agrees with respondent that Officer Gibbs’ testimony was not Here, the trial judge (who also conducted inconsistent, and even if the testimony was the suppression hearing) had the opportunity inconsistent, this would not be a valid ground to evaluate the testimony of Officer Gibbs both for habeas relief. at the suppression hearing and at trial, and was responsible for assessing the weight and At the pre-trial suppression hearing, on credibility of Officer Gibbs’ testimony as the direct examination, Officer Gibbs was asked, finder of fact. Given the deference owed to the “Directing your attention to approximately trial judge’s credibility determination, as well 8:52 p.m. that day . . . [w]hat, if anything, as the consistency between: (1) Officer Gibbs’ happened?” (H. 27.) Officer Gibbs responded testimony later at the pre-trial suppression that he was “in the station house doing hearing and his testimony during trial (2) paperwork and a radio call came out for an Officer Gibbs’s testimony and that of Officer alarm that was in Valley Stream . . . .” (Id.) Neubia; and (3) Officer Gibbs’ testimony and Later in his direct examination, Officer Gibbs the timeline of the evening in question testified clarified that he responded to the radio call to by Officer Henry, the Court concludes that notification for the alarm around 8:15 or 8:20 even assuming Officer Gibbs’ testimony was p.m. (Id. at 30.) At trial, Officer Gibbs inconsistent (which the Court concludes it was testified that he received the notification about not), the trial judge’s determination of guilt the alarm at 8:15 p.m. (T. 30.) Thus, although was not clearly erroneous, and thus habeas Officer Gibbs did initially respond in the relief is unwarranted on this ground. affirmative that he received the notification about the alarm around 8:52 p.m., Officer Gibbs later clarified that the notification was received around 8:15 p.m., and repeated that testimony during trial.

However, even assuming arguendo, that Officer Gibbs’ testimony regarding the time that he received the notification of the alarm was inconsistent, the Court concludes that habeas relief is not warranted on this ground. “In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference.” People v. Van Akin, 602 N.Y.S.2d 450, 450 (4th Dep’t 1993); see also United States v. Rojas, 458 F.2d 1355, 1356 (9th Cir. 1972) (“It [is] for the trial judge, as finder of fact, to assess the weight and credibility of the witnesses’ testimony.”). The trial court’s findings of fact may not be set aside unless they are clearly erroneous. United IV. CONCLUSION For the reasons set forth herein, the Court finds that petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Accordingly, this petition for a writ of habeas corpus is denied in its entirety. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall close this case.

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SEPH F. BIANCO United States Circuit Judge (sitting by designation) Dated: August 2, 2019 Central Islip, New York * * Petitioner proceeds pro se. Respondent is represented by William T. Hughes, Assistant District Attorney, Nassau County District Attorney’s Office, 262 Old Country Road, Mineola, NY 11501.