Mahon v. Comm'n of N.Y. State Div. of Parole

Full title: KALONJI MAHON, Petitioner, v. COMMISSION OF NEW YORK STATE DIVISION OF…

Court: United States District Court, S.D. New York

Date published: Oct 3, 2022

Civil Action 19 Civ. 9498 (JLR) (SLC) (S.D.N.Y. Oct. 3, 2022)

Opinion

Civil Action 19 Civ. 9498 (JLR) (SLC)

10-03-2022

KALONJI MAHON, Petitioner, v. COMMISSION OF NEW YORK STATE DIVISION OF PAROLE, Respondent. v.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

THE HONORABLE JENNIFER L. ROCHON, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

On October 11, 2019, Kalonji Mahon (“Mahon”), filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2012 New York State conviction for narcotics offenses. (ECF No. 1 at 1 (the “Petition”)). Mahon challenges his conviction on three grounds: (1) his trial counsel was ineffective in five respects; (2) the trial court failed to hold an evidentiary hearing; and (3) prosecutorial misconduct. (Id. at 5-8). Respondent New York State Division of Parole (“Respondent”)¹ opposes the Petition on the grounds that: (1) all but one of the ineffective assistance of counsel claims and the prosecutorial misconduct claims are unexhausted and procedurally defaulted; (2) the New York appellate court's rejection of the exhausted ineffective assistance of counsel claim was not an unreasonable application of or contrary to well-established precedent; and (3) the trial court's application of state procedural law to deny Mahon's request for an evidentiary hearing does not present a federal constitutional claim cognizable under § 2254. (ECF No. 15).

1 Respondent is represented by the District Attorney for Bronx County, Darcel D. Clark (the “DA”). (ECF Nos. 8; 14 ¶ 3).

For the reasons set forth below, the Court respectfully recommends that the Petition be DENIED.

II.BACKGROUND

A. Factual Background

On the early morning of December 1, 2010, near Olinville Avenue in the Bronx, Sergeant John Urena of the Bronx Narcotics Division of the New York City Police Department (“NYPD”) was supervising a “buy-and-bust operation” conducted by an enforcement team that included Detectives Luis Rodriguez, Manuel Sanchez, and Frank Hernandez, and two undercover officers (“UC 212” and “UC 233,” together the “UCs”). (ECF No. 14-1 at 9-12, 452, 454, 519-20).² During a tactical meeting before the operation, Sergeant Urena discussed where the operation was to take place and distributed Kel transmitters (which permitted him to hear his team's statements during the operation), and Detective Rodriguez provided each of the UCs $30.00 in prerecorded buy money. (ECF No. 14-1 at 452-54, 521-22, 525-26).

2 Unless otherwise indicated, citations to page numbers refer to the ECF-assigned page numbers.

At approximately 1:25 a.m., after Sergeant Urena gave the “green light”-a radio signal informing the UCs that they could begin the operation-UC 212 exited her vehicle and began walking north on White Plains Road near Allerton Avenue. (ECF No. 14-1 at 456-58, 527). A person later identified as Mahon “engaged” with UC 212 as he pulled his white sedan up next to her and asked her where she was going, to which she responded that she was meeting a friend. (Id. at 13-14, 26-27, 43, 456-58, 527). Mahon parked his car, approached UC 212, and asked her what she was doing, to which she responded that she was “trying to cop something.” (Id. at 458, 495). Mahon asked her what she wanted, and she responded that she “wanted to cop three.” (Id. at 458, 495). Mahon said he had run “out of material,” but “his boys were gonna bring him some,” if she wanted to wait, which she agreed to do. (Id. at 458-59, 496). UC 212 and Mahon then walked south on White Plains Road toward Allerton Avenue. (Id. at 15). As UC 212 and Mahon reached the corner of Allerton and Olinville, Mahon made a call on the pay phone, telling the person on the other end that he was “by the train station” and “was waiting for him there.” (Id. at 459-60, 496). “A short time later,” (id. at 460), a white van pulled up, and Mahon climbed into the van, pulling from his sock or shoe “a knot of money,” which he handed to the driver of the van, later identified as Victor Gallegos. (Id. at 17, 460-61, 500-01, 521, 531). For “a minute or two,” Mahon remained in the van, which drove around the corner and parked, before he “jumped out” and the van drove away. (Id. at 461, 502, 532). UC 212 walked toward Mahon, who gave UC 212 “two Ziploc bags of crack,” telling her that “one was a twenty and one was a dime[,]” in exchange for the $30.00 in prerecorded buy money (the “Buy Money”). (Id. at 462, 502-503). UC 212 then walked alone toward Allerton. (Id. at 462).

After UC 212 gave “a positive buy sign,” i.e., a signal that a drug transaction had occurred, Sergeant Urena instructed the team to stop the van, exited his vehicle, and began to follow UC 212 and Mahon. (ECF No. 14-1 at 17-18, 43, 533). Sergeant Urena stopped Mahon near the intersection of White Plains Road and Britton. (Id. at 18, 43-44, 533). About five minutes later, UC 212 conducted a “driveby” and positively identified Mahon standing with Sergeant Urena and Detective Rodriguez. (Id. at 18-20, 474, 478-79). Sergeant Urena “patted [Mahon] down when [he] stopped him,” and Detective Rodriguez arrested and searched Mahon, recovering $207.00 (the “Cash”) from Mahon's pocket and one Ziploc of crack cocaine from his sock or sneaker. (Id. at 20, 23, 31-33, 44, 535, 559-60).

Mahon was transported to the 42nd Precinct, where another Ziploc bag of crack cocaine “fell out of [his] pants” and was recovered. (ECF No. 14-1 at 20-21, 34-35, 45, 536). UC 212 sealed the two Ziploc bags, which had remained in her custody since she purchased them from Mahon, along with a voucher in an evidence container, the seal for which Sergeant Urena signed. (Id. at 482-84, 546). Within the Cash recovered from Mahon, Detective Rodriguez identified the Buy Money. (Id. at 23-24, 36-38, 510, 537, 559).³ Of the Buy Money, $25.00 was returned to the buy-money fund, and $5.00 “was vouchered as evidence.” (ECF No. 14-1 at 39-40, 44, 537, 540-42). Gallegos, the van driver, and Deon Herring, who had been a passenger in the van, were also arrested. (Id. at 30, 521, 552).

3 A summary of the case that the DA prepared before trial and disclosed to the defense incorrectly stated that Detective Rodriguez recovered from Mahon $182.00 in total, of which “$25.00 [was the] prerecorded buy money recovered [] from his person.” (ECF No. 14-1 at 573).

B. Procedural Background

1. State Court Proceedings

a. Indictment and Pretrial Proceedings

On December 23, 2013, Mahon was charged in an indictment (the “Indictment”) with three offenses: (i) criminal sale of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.39 (“Count 1”); (ii) criminal possession of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.16 (“Count 2”); and (iii) criminal possession of a controlled substance in the seventh degree, in violation of N.Y. Penal Law § 220.03 (“Count 3”). (ECF No. 14-1 at 83, 664-67; 15-3 at 1 ¶ 3). Patrick L. Bruno, Esq. (“Bruno”) represented Mahon for all pre-trial proceedings, trial, and a portion of the post-trial proceedings. (ECF No. 14-1 at 1, 7, 50, 85, 178, 320, 426, 568, 621, 680, 686).

On May 10, 2012, Justice Gross held a Gethers/Mapp hearing⁴ seeking to suppress the Buy Money and the two Ziplocs of crack cocaine recovered from Mahon-i.e., the one found in sock or sneaker during the pat-down and the one that fell from his pants at the precinct-during the arrest. (ECF No. 14-1 at 2, 7-49 (the “Mapp Hearing”)). The prosecution called Sergeant Urena, who testified regarding his recollection of the buy-and-bust operation and Mahon's arrest on December 1, 2010. (Id. at 7-41; see § II.A, supra). New York State Supreme Court Justice Michael Gross found Sergeant Urena credible and determined that it was reasonable to detain Mahon briefly until UC 212 could positively identify Mahon as the person who sold the drugs to her. (ECF No. 14-1 at 41, 45). Because there was “reason to detain” Mahon and, following UC 212's positive identification, probable cause to arrest him, Justice Gross held that the search incident to arrest, which recovered the Cash and first Ziploc of crack cocaine, was proper, and the search “pursuant to processing at the precinct,” which recovered the second Ziploc of crack cocaine, was also proper. (Id. at 45-46). Accordingly, Justice Gross denied Mahon's motion to suppress the Cash and two Ziploc bags. (Id. at 46).

4 A Mapp hearing is held to determine whether physical evidence sought to be used against a criminal defendant was obtained illegally by law enforcement officers and, thus, is inadmissible at the criminal defendant's trial. See Mapp v. Ohio, 367 U.S. 643 (1961). A Gethers hearing is held to determine whether probable cause existed to detain a suspect pending an “on-the-scene confirmatory identification.” People v. Gethers, 86 N.Y.2d 159, 161 (1995); see Brown v. Brown, No. 08 Civ. 10844 (RJS) (KNF), 2009 WL 3353022, at *1 n.1 (S.D.N.Y. Oct. 19, 2009), adopted by, 2012 WL 2899049 (S.D.N.Y. July 16, 2012).

The same day as the Mapp Hearing, Justice Gross held a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), to determine whether evidence of Mahon's criminal record would be admissible at trial if he chose to testify. (ECF No. 14-1 at 50-61 (the “Sandoval Hearing”)).⁵ Justice Gross excluded evidence of Mahon's January 2007 and December 1992 convictions for possession of a controlled substance, but held that the prosecution would be permitted to question Mahon about his July 2009 conviction for criminal facilitation (the “2009 Conviction”) and his March 1995 conviction for multiple counts of assault (the “1995 Conviction”) because they reflected on his willingness to “plac[e] self-interest over societal interest.” (Id. at 58-61).

5 See, e.g., Reyes v. Harold, No. 17 Civ. 2881 (KPF) (DF), 2022 WL 842969, at *4 n.6 (S.D.N.Y. Mar. 22, 2022) (describing purpose of Sandoval hearings).

Following the Sandoval Hearing, Justice Gross addressed several pretrial matters, including Mahon's complaint that Bruno was “ignoring the agency defense issue.” (ECF No. 14-1 at 73).⁶ Bruno explained that he had chosen not to press an agency defense on Mahon's behalf, based on: (i) his review of the grand jury minutes, which contained Mahon's testimony that he had not been “working to assist” UC 212; (ii) Mahon's four prior drug-related convictions; and (iii) his understanding of agency case law. (Id. at 73-74).

6 “[A]n exception to the usual New York rule that any transfer of illegal drugs to another person is considered a sale, the agency defense . . . generally posits (with some exceptions) that, where a defendant has acquired drugs acting as the agent of a would-be purchaser, his delivery of those drugs to his principal is not considered a sale.” Harris v. Alexander, 548 F.3d 200, 202 (2d Cir. 2008).

b. Trial

On May 11, 2012, the trial commenced with jury selection, and on May 17, 2012, after preliminary jury instructions, counsel gave their opening statements and the prosecution began its case-in-chief. (ECF No. 14-1 at 85-425; 442-47). The prosecution called as witnesses UC 212, Sergeant Urena, and two criminalists in the NYPD Controlled Substance Analysis Section. (Id. at 447-512, 518-70, 591-611). Mahon did not present a defense case or testify. (Id. at 612).

In a conference outside the presence of the jury, Bruno notified Justice Gross that Mahon had renewed his request for an agency charge, and Bruno had reiterated the reasons why he had concluded that an agency charge was not warranted. (ECF No. 14-1 at 587-88). Justice Gross, “[v]iewing the evidence in the light most favorable to the defense,” found that “there [was] no basis for submitting the defense of agency to the jury[.]” (Id. at 588).

In his closing argument, Bruno contested the credibility of Sergeant Urena and UC 212 to support the defense that “the buy money never changed hands” and the drug sale never occurred. (ECF No. 14-1 at 634, 638).⁷ Consistent with his prior ruling, Justice Gross did not include an agency charge in the jury instructions. (Id. at 652-71). On May 21, 2012, after less than a day of deliberations, the jury returned a verdict of guilty on Counts 1 and 2. (Id. at 677). Because it reached a verdict as to Counts 1 and 2, the jury was not required to deliberate as to Count 3, which was a lesser included offense of Counts 1 and 2. (Id. at 668; ECF No. 15-4 at 6).

7 Bruno's argument focused on the comparison of Sergeant Urena's testimony during the Mapp Hearing (see p.5, infra), that the Cash recovered from Mahon totaled $182.00, to his testimony under cross-examination at trial that the Cash recovered from Mahon totaled $207.00. (Compare ECF No. 14-1 at 20, 23, 31-32, 44 with ECF No. 14-1 at 560-63; see also id. at 567-69, 633, 644-45). Sergeant Urena confirmed in his trial testimony that the Cash recovered from Mahon totaled $207.00, and that $30.00 was the Buy Money, of which $25.00 was returned to the buy-money fund while $5.00 was vouchered as corresponding to prerecorded buy money. (Id. at 564-65, 575-76).

c. Post-Trial Proceedings

On June 8, 2012, Justice Gross attempted to conduct a sentencing proceeding, but had to adjourn after Mahon interrupted repeatedly to argue that Bruno was ineffective, fainted, and had to be removed from the courtroom to receive medical treatment. (ECF No. 14-1 at 680, 682- 84, 687).

On June 9, 2012, Mahon filed a pro se motion pursuant to New York Criminal Procedure Law § 330.30. (ECF No. 15-1 (the “Mahon's 330.30 Motion”)). In Mahon's 330.30 Motion, he asked Justice Gross to set aside the verdict on ten grounds, including ineffective assistance of counsel, prosecutorial misconduct, denial of the agency defense, Brady ⁸ and Rosario ⁹ violations with respect to UC 212's memo book¹⁰ and other NYPD evidence, and violation of his Sixth Amendment right to be present at all stages of the proceeding. (Id. at 4).

8 Brady v. Maryland, 373 U.S. 83 (1963) requires the prosecution to disclose to a defendant evidence that is favorable to the defendant, material either to guilt or to punishment, and that is known to the government.

9 In People v. Rosario, the New York Court of Appeals held that a criminal defendant is entitled to inspect the prior statements of a prosecution witness, prior to cross-examination and whether or not the statements vary from the witness's statements on the stand, “[a]s long as the statement[s] relate[] to the subject matter of the witness' testimony and contain[] nothing that must be kept confidential.” 9 N.Y.2d 286, 289 (1961).

10 At the Mapp Hearing, the prosecution informed Justice Gross that UC 212 had “lost her memo book.” (ECF No. 14-1 at 3).

On June 11, 2012, Justice Gross attempted to resume the sentencing proceeding, but Mahon interrupted to argue that the jury verdict should be set aside due to Bruno's ineffective assistance and prosecutorial misconduct, and refused to acknowledge Bruno as his counsel. (ECF No. 14-1 at 686-89, 692-93). Bruno declined to adopt Mahon's 330.30 Motion. (Id. at 692). When Justice Gross attempted to arraign Mahon on the predicate statement, i.e., the 1995 Conviction, a violent felony that subjected him to an enhanced sentence (ECF No. 14 at 3 n.3), Mahon requested an adjournment to refile his 330.30 Motion and declined to acknowledge Bruno as his counsel. (ECF No. 14-1 at 694-95). Justice Gross reluctantly agreed to adjourn the proceedings and appoint new counsel for Mahon. (ECF No. 14-1 at 701).

On June 12, 2012, Brian J. Sullivan (“Sullivan”) was appointed to replace Bruno as Mahon's counsel. (ECF No. 14-1 at 703; 15-2 at 3). On July 14, 2012, Sullivan, like Bruno, declined to adopt Mahon's 330.30 Motion and filed a separate 330.30 motion to set aside the verdict. (ECF No. 15-2 (the “Counseled 330.30 Motion,” with Mahon's 330.30 Motion, the “330.30 Motions”); see ECF No. 14 ¶ 10). In the Counseled 330.30 Motion, Sullivan asserted several grounds, including, as is relevant here, prosecutorial misconduct in failing to instruct the grand jury on the agency defense, Justice Gross's failure to charge the trial jury on the agency defense, and Bruno's ineffectiveness in failing to interview and call Detective Rodriguez as a witness. (ECF No. 15-2 at 7-21).

On September 24, 2012, Justice Gross denied the 330.30 Motions (the “330.30 Decision”),¹¹ determined that Mahon was a violent predicate felony offender based on the 1995 Conviction, and sentenced him to two eight-year determinate terms of incarceration to run concurrently, followed by three years of supervised release. (ECF Nos. 14-1 at 706, 713-24; 14 ¶ 11; 15-4 at 3).¹² Justice Gross also suspended Mahon's driving privileges pursuant to New York Vehicle and Traffic Law. (ECF No. 14-1 at 724). On October 1, 2012, Mahon filed a timely notice of appeal. (ECF Nos. 14 ¶ 12; 15-4 at 4).

11 At the September 24, 2012 proceeding, Justice Gross stated that he provided copies of the 330.30 Decision to the parties, but a copy of the 330.30 Decision does not appear in the record. (ECF No. 14-1 at 706). A summary of the 330.30 Decision appears in the 440.10 Decision, discussed infra. As is relevant here, in the 330.30 Decision, Justice Gross held that Mahon's argument that the court failed to deliver an agency charge was unpreserved and without merit, and that his ineffective assistance claims lacked merit because the trial record showed that Bruno provided him “with meaningful representation throughout the trial” and the “decision not to call [Detective Rodriguez] reflected an intelligent trial strategy.” (ECF No. 15-4 at 3-4).

12 Mahon was removed from the courtroom due to his disruptive behavior and was not present when Justice Gross pronounced the sentence. (ECF No. 14-1 at 708, 711-12, 721, 724).

d. The 440.10 Motion

On April 1, 2015, before perfecting his direct appeal, Mahon filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10(1)(h) on the numerous grounds, including ineffective assistance of counsel, prosecutorial misconduct,¹³ and trial court error¹⁴ (the “440.10 Motion”). (See ECF Nos. 14 ¶ 13; 15-3 at 2 ¶ 6; 15-4 at 5).¹⁵Mahon argued that Bruno was ineffective based on his failures to: (i) contact, interview, or call Detective Rodriguez as a witness; (ii) object to discovery and Rosario violations; (iii) request a bill of particulars; (iv) object to the material variance in evidence concerning the Buy Money; (v) object to the introduction of Mahon's unnoticed statements; (vi) object to the prosecution's inflammatory remarks and use of a prejudicial photograph during closing argument; (vii) object to the jury instructions; (viii) request an agency charge; (ix) pursue a Batson challenge; and (x) assert an Antommarchi claim.¹⁶ (ECF No. 15-3 at 2-3; 15-4 at 5-6). The DA opposed the 440.10 Motion. (ECF No. 15-3).

13 Mahon alleged prosecutorial misconduct based on: (i) withholding of Rosario and discovery materials; (ii) use of inflammatory remarks and a prejudicial photo during closing argument; and (iii) introducing Mahon's unnoticed statements into evidence in violation of N.Y. Crim. P. L. § 710.30(1)(a). (ECF No. 15-4 at 15-16).

14 The alleged trial court errors were: (i) failure to give an agency charge; (ii) violation of Antommarchi (see n.16, infra); (iii) failure to order an examination under N.Y. Crim. P. L. § 730; (iv) failure to conduct a speedy trial; (v) failure to certify the trial transcript; (vi) imposed a sentence without a presentence report; and (vii) violated Mahon's right to a public trial. (ECF No. 15-4 at 18).

15 Although the DA's declaration in opposition to the Petition purports to attach as Exhibit 3 Mahon's 440.10 Motion, the actual Exhibit 3 is the DA's affirmation and memorandum of law in opposition to the 440.10 Motion. (Compare ECF No. 14 ¶ 13 with ECF No. 15-3). Mahon's 440.10 Motion does not appear in the record.

16 In People v. Antommarchi, 80 N.Y.2d 247 (1992), the New York Court of Appeals, based on N.Y. Criminal Procedure Law § 260.20, “held that a criminal defendant has a right to be present during a sidebar voir dire of a potential juror when the questioning pertains to the potential juror's background, i.e., matters that touch upon the ability to objectively weigh the evidence.” Diaz v. Herbert, 317 F.Supp.2d 462, 473 (S.D.N.Y. 2004).

On January 5, 2016, Justice Gross denied the 440.10 Motion in its entirety. (ECF No. 15-4 (the “440.10 Decision”)). Justice Gross concluded that “the majority of” Mahon's claims were procedurally barred because they could have been raised on direct appeal, were rejected on the merits in the 330.30 Decision, or lacked supporting sworn allegations of fact. (Id. at 4-5 (citing N.Y. Crim. P. L. §§ 440.10(2)(c), (3)(b), 440.30(1)). Specifically, the ineffective assistance claims had already been rejected in the 330.30 Decision (see N.Y. Crim. P.L. § 440.10(3)(b)), were procedurally barred because they could have been raised on direct appeal (see N.Y. Crim. P.L. § 440.10(2)(c)), and were meritless because Bruno provided Mahon “with meaningful representation” that “did not fall outside the ‘wide range of professionally competent assistance.'” (ECF No. 15-4 at 6-8 (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). As to Bruno's failure to contest the alleged inconsistency in the evidence concerning the Buy Money, Justice Gross pointed out that “the inconsistency [could] be found in only one document - a summary of the case prepared by an assistant district attorney, which reflected the recovery of twenty-five dollars in buy money from [Mahon][,]” but “all of the police paperwork, including the reports personally prepared by Detective Rodriguez, consistently recited the recovery of thirty dollars in prerecorded buy money from [Mahon][,]” $25.00 of which was returned to the buy-money fund and $5.00 of which was vouchered in evidence. (Id. at 9-11). Justice Gross also examined and rejected as meritless Mahon's other complaints about Bruno's representation. (Id. at 11-15). As to the prosecutorial misconduct claims, Justice Gross found that they were also procedurally barred under § 440.10(2)(c) and meritless. (Id. at 15-18). Finally, Justice Gross rejected Mahon's claims based on alleged trial errors as procedurally barred under § 440.10(2)(c), previously decided in the 330.30 Decision, unsubstantiated under § 440.30(4)(b), and without merit. (Id. at 18-21).

e. State Court Appeals

On January 24, 2016, Mahon filed a pro se application pursuant to N.Y. Criminal Procedure Law § 460.15 for leave to appeal from the 440.10 Decision and consolidate that appeal with his direct appeal. (ECF No. 15-5 (the “460.15 Application”)). The First Department granted the 460.15 Application, (ECF No. 14 ¶ 16), and on November 6, 2017, Mahon, through Megan D. Byrne, Esq. (“Byrne”) of the Center for Appellate Litigation, filed an appellate brief that raised five arguments: (i) Justice Gross erred in failing to deliver an agency charge; (ii) Mahon's conviction was against the weight of the evidence; (iii) Bruno's representation was ineffective for failing to call Detective Rodriguez as a witness, misstating the evidence, and failing to assert the agency defense; (iv) Justice Gross erred in denying the 440.10 Motion without a hearing; and (v) Mahon's sentence was excessive. (ECF No. 15-6 at 24-54 (the “Appellate Brief”)).

On April 24, 2018, the Appellate Division, First Department unanimously affirmed Mahon's conviction and the 440.10 Decision. People v. Mahon, 160 A.D.3d 563 (1st Dep't 2018) (the “State Court Decision”). First, as to the agency defense, the First Department held that, “[r]egardless of whether there was a reasonable view of the evidence supporting an agency defense, it would have been inappropriate for the court to instruct the jury regarding that defense after [Bruno] expressly opposed such a charge[,]” and, “[i]n any event, there was no reasonable view of the evidence to support such a charge.” Id. at 563. The First Department explained that “[t]he totality of the evidence, including, among other things, [Mahon's] statements during the transaction, made clear that he was not assisting the buyer in making a purchase, but was instead a participant in the sale as part of a drug trafficking operation.” Id.

Second, the First Department held that “[t]he verdict was not against the weight of the evidence[.]” Mahon, 160 A.D.3d at 563 Third, the court held that Mahon “received effective assistance under the state and federal standards[.]” Id. The First Department explained that Mahon had:

not shown that any of [Bruno's] alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived [Mahon] of a fair trial or affected the outcome of the case. [Bruno] explained that an agency defense would be difficult to establish without testimony from [Mahon], which would be undermined by [Mahon's] contradictory grand jury testimony. [Bruno] also explained that an agency defense would open the door to evidence of [his] considerable history of drug crimes . . . . Instead, [Bruno] pursued an objectively reasonable, although unsuccessful, strategy in which he indirectly presented an agency defense and argued [that Mahon] lacked the intention to make a drug sale because his true purpose was to flirt and spend time with [UC 212]. [Mahon] has also failed to establish that a true agency defense had any greater chance of success, or that [Bruno's] choice of strategy caused him any prejudice.

Id. at 563-64). The First Department also rejected Mahon's “remaining challenges to [Bruno's] performance,” as well as his challenges to the 440.10 Decision and his sentence. Id. at 564.

Mahon, through Byrne, sought leave to appeal to the Court of Appeals on the sole ground that Bruno's representation was ineffective for failing to assert an agency defense. (ECF No. 15-9 at 1, 3 (the “Leave Application”)). On June 29, 2018, Associate Judge Leslie Stein denied the Leave Application. People v. Mahon, 31 N.Y.3d 1119 (2018).

2. Federal Habeas Corpus Petition

In the Petition, which is dated September 27, 2019 and was filed on October 11, 2019, Mahon alleges that Bruno was ineffective in five respects: (i) he failed to call or impeach witnesses; (ii) he failed to request an agency defense jury instruction; (iii) he used false testimony in the closing argument; (iv) he failed to object to the prosecutor's use incorrect photographic evidence; and (v) he failed to object during the prosecutor's closing argument. (ECF No. 1 at 5). Mahon also objected to Justice Gross's issuance of the 440.10 Decision without a hearing. (Id. at 6-7). The Honorable Vernon S. Broderick, to whom this case was then assigned, referred the Petition for a report and recommendation. (ECF No. 11).

In opposition to the Petition, Respondent argues that: (i) apart from the agency charge, Mahon failed to exhaust his ineffective assistance claims; (ii) the State Court Decision that Mahon was not denied ineffective assistance was neither an unreasonable application of nor contrary to well-established Supreme Court precedent; (iii) the prosecutorial misconduct claim is unexhausted, barred by adequate and independent state grounds, and meritless; and (iv) the denial of the 440.10 motion without an evidentiary hearing does not present a cognizable claim. (ECF No. 15 at 6-34).

On May 22, 2020, Mahon filed a reply declaration and memorandum of law in further support of the Petition. (ECF Nos. 18; 19 (the “Reply”)).

The Court observed that, according to the New York State Department of Corrections and Community Supervision Inmate Lookup, Mahon completed his prison term on February 14, 2019, and his post-release supervision was to have expired on February 14, 2022. See N.Y. Dep't of Corr. & Cmty. Supervision, Inmate Lookup, http://nysdoccslookup.doccs.ny.gov/ (last visited September 28, 2022). On March 16, 2022, the Court ordered Mahon to show cause by April 1, 2022 why the Petition should not be dismissed as moot. (ECF No. 21 (the “OTSC”)). On April 20, 2022, Mahon filed a declaration in response to the OTSC in which he asserted that the continuing consequences from his conviction included: a recent parole violation; the risk of future parole violations; the inability to apply for jobs, housing, and educational opportunities; the inability to vote, have a liquor license, or own a firearm; and the risk of future sentencing as a “predicate felony offender.” (ECF No. 22 at 4-9 (the “OTSC Declaration”)). Given Mahon's pro se status and the explanations for his delayed filing,¹⁷ the Court accepted the late-filed OTSC Declaration and afforded Respondent an opportunity to reply, which she has not done. (ECF No. 24).

17 Mahon also submitted a declaration from his mother, Cassandra Mahon, who attested that, due to her travel to visit her ill sister, she was delayed in relaying mail to her son, who does not reside with her. (ECF No. 23). The Court appreciates Mrs. Mahon's efforts on her son's behalf.

The Court's subsequent review of publicly available information reflects that Mahon's parole status remains “active.” See N.Y. Dep't of Corr. & Cmty. Supervision, Parolee Lookup https://publicapps.doccs.ny.gov/ParoleeLookup/Default (last visited Sept. 28, 2022). Records of the New York City Department of Correction also reflect that on August 24, 2022, Mahon was arrested on an unspecified charge, for which he was released from custody on August 31, 2022. See N.Y.C. Dep't of Corr., Inmate Lookup Service, https://a073-ils-web.nyc.gov/inmatelookup/pages/home/home.jsf (last visited Sept. 28, 2022).

On September 23, 2022, this case was reassigned to the Honorable Jennifer L. Rochon. (ECF min entry Sept. 23, 2022).

III.LEGAL STANDARDS

A. Habeas Corpus Jurisdiction

Federal habeas corpus jurisdiction exists only if the petitioner is “in custody[.]” 28 U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016); Johnson v. Levine, No. 00 Civ. 8402 (AKH), 2001 WL 282719, at *1 (S.D.N.Y. Mar. 21, 2001) (“It is axiomatic that district courts have jurisdiction to entertain a petition for a writ of habeas corpus only in those cases where the petitioner making the application is in custody.”). The Supreme Court has explained “that, besides physical imprisonment, there are other restraints on a [person's] liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v. Cunningham, 371 U.S. 236, 240 (1963). For example, if a petitioner is on parole with conditions to report to a parole officer, remain in a particular community, residence, or job, or refrain from certain activities, see id. at 242, or has continuing obligations to appear in court under threat of an arrest warrant, the Supreme Court has recognized habeas corpus jurisdiction continues to exist. See Hensley v. Mun. Ct., San Jose-Milpitas Jud'l Dist., 411 U.S. 345, 351 (1973); Nowakowski, 835 F.3d at 216 (collecting cases providing examples of “a variety of nonconfinement restraints on liberty [that] satisf[ied] the custodial requirement”).

Where a federal habeas corpus petitioner has completed his sentence, the court must evaluate whether the petition has become moot. See Carafas v. LaVallee, 391 U.S. 234, 237 (1968). “Unlike the ‘in custody' requirement, mootness is not fixed at the time of filing but must be considered at every stage of the habeas proceeding.” Nowakowski, 835 F.3d at 217. If a petitioner's sentence has expired, “some concrete and continuing injury other than the now ended incarceration (or parole)-some ‘collateral consequence' of the conviction-[must exist] if the suit is to be maintained.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). The Supreme Court has acknowledged that the inability to engage in certain businesses, serve as a labor union official, vote, and serve as a juror constitute “collateral consequences” of a conviction that preclude a finding of mootness. See Carafas, 391 U.S. at 237-38 (collecting cases); see also Fiswick v. United States, 329 U.S. 211, 222 (1946) (finding that “disabilities or burdens [that] may flow from” a conviction gave petitioner “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him” and prevented finding of mootness). The burden is on the petitioner to “demonstrate concrete injury-in-fact to survive dismissal as a result of his release from custody.” Johnson, 2001 WL 282719, at *1 (citing Spencer, 523 U.S. at 13).

B. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application or, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

“A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground.” Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. 2022) (citing Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). “A decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established federal law ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decision but unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

The Second Circuit recently reiterated the Supreme Court's instruction to district courts that “[a] writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'” Jordan, 33 F.4th at 150 (quoting Williams, 529 U.S. at 411). “Rather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal citations omitted)). Thus, a district court should grant a writ on unreasonableness grounds only if “the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “In other words, the existence of ‘reasonable arguments on both sides' is ‘all [the state] needs to prevail in [an] AEDPA case.'” Jordan, 33 F.4th at 151 (quoting White v. Woodall, 572 U.S. 415, 427 (2009)).

C. Exhaustion

The AEDPA also provides that a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims in federal constitutional terms to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). “To satisfy § 2254's exhaustion requirement, a petitioner must present the substance of ‘the same federal constitutional claim[s] that he now urges upon the federal courts[.]'” Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001)). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted).

In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d. 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially presented on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06 Civ. 6965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see N.Y. Crim. Proc. L. § 440.10(2)(c). For claims involving matters “not reflected in, or fully explained by, the record,” People v. Moreno-Grantini, 167 A.D.3d 471, 472 (1st Dep't 2018), “a petitioner must assert the claim in a [] § 440.10 motion. If that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies.” Moreno-Gratini v. Sticht, No. 19 Civ. 5964 (GHW) (SN), 2022 WL 1425712, at *7 (S.D.N.Y. Apr. 18, 2022); see N.Y. Crim. Proc. L. § 450.90; see also Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that no further appellate review is available after Appellate Division denies leave to appeal denial of § 440.10 motion).

A court may excuse a procedural default “if the petitioner demonstrates either cause for the default and actual prejudice from the alleged violation of federal law, or that the failure to consider the claims will ‘result in a fundamental miscarriage of justice.'” Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y. 2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). In this context, “cause” means “‘some objective factor external to the defense [that] impeded counsel's efforts' to raise the claim in state court.” Id. at 520 (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “Actual prejudice” requires the petitioner to show “‘actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Id. (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]'” Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish actual innocence, petitioner must demonstrate that ‘in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (internal citations omitted); see Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘Actual innocence' means factual innocence, not mere legal insufficiency”).

D. Adequate and Independent State Grounds

“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)). “The state-law ground may be substantive or procedural.” Moreno-Gratini, 2022 WL 1425712, at *5; see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (“When the state court's decision rests on an independent procedural bar . . . a federal court must still determine whether that state procedural ground is adequate to support the judgment.”). “Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)). Only if the state court's decision rests on an “independent procedural bar” that is “‘adequate to support the judgment'” will federal habeas review be barred. Id. at 191-92 (quoting Jimenez, 458 F.3d at 138). “A state procedural bar is ‘adequate' if it ‘is firmly established and regularly followed by the state in question' in the ‘specific circumstances presented in a case.'” Moreno-Gratini, 2022 WL 1425712, at *6 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal citation omitted)).

IV.DISCUSSION

A. Habeas Corpus Jurisdiction

To determine whether federal habeas corpus jurisdiction exists, the Court must assess whether Mahon was “in custody” within the meaning of § 2254(a) when the Petition was filed, and whether the Petition has since become moot. See Nowakowski, 835 F.3d at 217.¹⁸

18 Respondent has taken no position on whether Mahon failed to satisfy the in-custody requirement or whether the Petition has become moot.

First, the Court finds that Mahon was in custody when the Petition was filed in October 2019 because his term of supervised release had not yet expired. See Maleng, 490 U.S. at 491; Jones, 371 U.S. at 242-44; Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994); see also Plato v. Morrissey, 638 F.Supp.2d 338, 343 (W.D.N.Y. 2009) (noting that “the Supreme Court and the Second Circuit have recognized that a prisoner who has been released from physical custody but has been placed on parole/supervised release remains ‘in custody' for habeas purposes where such status results in restrictions on freedom and liberty”).

Second, New York State records indicate that, although his supervised release was to have expired on February 14, 2022, while the Petition was pending, his parole remains “active,” i.e., he is subject to ongoing supervision requirements that “fall[] within the category of restraints that satisfy the statutory requirement of custody.” Nowakowski, 835 F.3d at 217. (See § III.A, supra). That his parole status remains active indicates that he is subject to restrictions that are “not shared by the public generally,” Jones, 371 U.S. at 240, and, in the event of a violation, is at risk of “future adverse consequences during the term of the sentence, including arrest for noncompliance and modification or revocation” of his supervised release. Nowakowski, 835 F.3d at 217. Accordingly, Mahon continues to satisfy the “in custody” requirement for habeas corpus jurisdiction.

Third, the Court finds that Mahon has satisfied his burden “to identify at least some collateral consequence that threatens [him]” to prevent his Petition from becoming moot. Nowakowski, 835 F.3d at 225. In the OTSC Declaration, Mahon describes a recent parole violation, as well as the risk of a future finding that he is in violation, which is plausible given his admission that he has “absconded from parole supervision.” (ECF No. 22 at 4-5, 7, 11). In addition, Mahon describes how, due to his conviction, he is unable to apply for certain employment, housing, and educational opportunities, vote, obtain a liquor license, or own a firearm. (ECF No. 22 at 6-8). Mahon also cites the risk of sentencing as a “predicate felony offender,” which is a tangible possibility given the evidence of his August 2022 arrest. (ECF No. 22 at 8; see N.Y.C. Dep't of Corr., Inmate Lookup Service, https://a073-ils-web.nyc.gov/inmatelookup/pages/home/home.jsf (last visited Sept. 28, 2022)). The Court finds that these circumstances constitute collateral consequences such that the Petition is not moot. See Carafas, 391 U.S. 237-38 (finding that, inter alia, inability to vote was a disability or burden flowing from conviction that prevented petition from being moot); Barnes v. Bradt, No. 09 Civ. 9533 (PGG) (FM), 2012 WL 2512218, at *3 (S.D.N.Y. June 29, 2012) (finding that petition was not moot where conviction had “continuing collateral consequences”) (citation omitted); Marple v. Manson, 373 F.Supp. 757, 760 (D. Conn. 1974) (finding that petition was not moot where risk of sentencing as persistent felony offender constituted possible collateral consequences from the challenged conviction).

Accordingly, we respectfully recommend that the Court exercise jurisdiction over the Petition, and that the Petition has not become moot.

B. Ineffective Assistance of Counsel

In the Petition, Mahon alleges that Bruno was ineffective in five respects: (i) he failed to call or impeach witnesses; (ii) he failed to assert an agency defense; (iii) he used false testimony in the closing argument; (iv) he used incorrect photographic evidence; and (v) he failed to object to the prosecutor's closing argument. (ECF No. 1 at 5). The Court finds that none of the five grounds provides a basis for federal habeas corpus relief.

1. Exhaustion

To exhaust a claim of ineffective assistance of counsel, the petitioner must have “asserted in state court the specific conduct giving rise to the claim.” Moreno-Gratini, 2022 WL 1425712, at *7; see Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (“[T]o reach the merits of [an ineffective assistance claim], all of [the] allegations must have been presented to the state courts.”); Castillo v. Walsh, 443 F.Supp.2d 557, 566-67 (S.D.N.Y. 2006) (same).

Respondent argues that, of the five ineffective assistance claims against Bruno, only the claim based on failure to assert an agency defense has been exhausted. (ECF No. 15 at 7). Respondent cites the Leave Application, in which Byrne limited Mahon's request for leave to appeal to the ineffective assistance claim based on the agency defense. (Id. at 7-8). In his Reply, Mahon responds that he did not knowingly waive the other four ineffective assistance arguments, and asserts that Byrne herself was ineffective for failing to raise them. (ECF No. 19).

The Court agrees with Respondent that, by failing to raise the four other claims of Bruno's ineffective assistance in the Leave Application, Mahon failed to exhaust these claims. See Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir. 1991) (explaining that “a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition”)); McGann v. Kelly, 891 F.Supp. 128, 134 (S.D.N.Y. 1995) (“By failing to raise his ineffective assistance of counsel claim in his leave application, petitioner did not fairly apprise the Court of Appeals of the factual and legal premises underlying his claim.”)

Although the failure to exhaust the other four ineffective assistance arguments could be excused by demonstrating cause and prejudice, or a fundamental miscarriage of justice, see Wainwright v. Sykes, 433 U.S. 72, 87 (1977), the Court finds that Mahon has not met this standard. As an initial matter, an ineffective assistance of counsel claim generally cannot serve as the “cause” excusing the failure to exhaust a claim in state court, see Murray v. Carrier, 477 U.S. 478, 488-89 (1986), unless the “assistance [was] so ineffective as to violate the Federal Constitution.” Edwards v. Carpenter. 529 U.S. 446, 451 (2000). Neither in any state court proceeding nor in the Petition, however, did Mahon assert a claim that Byrne was ineffective on appeal. See Williams v. Goord, 277 F.Supp.2d 309, 321 (S.D.N.Y. 2003) (noting that a claim of ineffective assistance of counsel must be exhausted by filing a petition for a writ of error coram nobis) (citing Garcia v. Keane, 973 F.Supp. 364, 369 (S.D.N.Y. 1997)). (See generally ECF No. 1).

In any event, Mahon's correspondence with Byrne as well as the Leave Application do not evidence any “objective factor external to the defense” that impeded Byrne from raising those arguments in the Leave Application, McCleskey, 499 U.S. at 493, but rather reflect Byrne's diligent efforts to progress Mahon's appeal raising the strongest arguments and to communicate with him about her strategic choices. See Smith v. Robbins, 528 U.S. 259, 288 (2000) (explaining that “[a]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal”); Stephanski v. Sup't Upstate Corr. Fac., 433 F.Supp.2d 273, 288 (W.D.N.Y. 2006) (explaining that appellate counsel's failure to “include every permissible claim” in an application for leave for discretionary appeal “does not give rise to a Sixth Amendment ineffective assistance claim”) (citing Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)).

Finally, even if Mahon had shown adequate cause, the Court's analysis below demonstrates that the other four claims are procedurally defaulted (see § IV.B.2, infra), and he has not shown prejudice nor pointed to any evidence to support a finding of actual innocence.¹⁹

19 As Respondent notes, because the Petition contains both exhausted and unexhausted claims, the Court could hold the Petition in abeyance to permit Mahon to present the unexhausted claims in New York State Court, see McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002), or allow Mahon to withdraw the unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 510 (1982), but asks the Court to reject the claims on the merits. (ECF No. 15 at 8-9).

2. Procedural Default

A federal court “need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred” due to a state procedural rule. Harris v. Reed, 489 U.S. 255, 263 n.9 (1989). The Supreme Court has explained that it “would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity” to require a petitioner to exhaust a claim in state court if the result of that review is “predetermined.” Castille v. Peoples, 489 U.S. 346, 350 (1989). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of § 2254(b).” Fisher v. Sup't, No. 12 Civ. 6703 (JPO), 2014 WL 128015, at *8 (S.D.N.Y. Jan. 14, 2014) (citing Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). “Accordingly, where a petitioner cannot resort to state court to present a constitutional claim, a federal court will deem the claim exhausted but procedurally defaulted.” Id. (citing Grey, 933 F.2d at 120-21); see Hayward v. Brown, No. 09 Civ. 6495 (LAK) (AJP), 2010 WL 2629037, at *26 (S.D.N.Y. July 1, 2010). “A petitioner may overcome a procedural bar only by demonstrating either cause for the default and resultant prejudice, or that the failure to consider the federal habeas claim will result in a fundamental miscarriage of justice.” Id. at *10 (citing Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)). Dismissal based on a procedural default constitutes a disposition on the merits such that “any future presentation of the claim would be a second or successive habeas petition, requiring authorization . . . pursuant to 28 U.S.C. § 2244(b)(3)(A).” Aparicio, 269 F.3d at 90.

The Court finds the ineffective assistance claims listed as (i), (iii), (iv), and (v) above, i.e., those not based on Bruno's failure to assert the agency defense, to be exhausted but procedurally defaulted because New York's Criminal Procedure Law bars Mahon from now raising alternative arguments that Bruno was ineffective. First, Mahon cannot again directly appeal his conviction because he already filed the Leave Application, the sole opportunity to which he is entitled. See N.Y. Crim. P. L. § 450.10(1) (preserving one appeal as of right from a criminal conviction); id. § 460.10(5) (application for certificate for leave to appeal in criminal case must be made within 30 days of service of judgment); see also Fisher, 2014 WL 128015, at *10 (finding that claim was procedurally barred due to previous application for leave to appeal to the Court of Appeals). Second, Mahon cannot raise in a § 440.10 motion any claim that could have been raised or was decided on direct review. See N.Y. Crim. P.L. § 440.10(2)(a), (c). In the Appellate Brief, Mahon only raised argument (ii), i.e., Bruno's failure to assert the agency defense, and did not raise-but could have raised-any other arguments about his trial counsel's allegedly deficient representation. (ECF No. 15-6). Therefore, even if afforded the opportunity, Mahon could not raise new ineffective assistance arguments in a § 440.10 motion. See Harrison v. Smith, No. 05 Civ. 5953, 2012 WL 3822211, at *3-5 (S.D.N.Y. Sept. 4, 2012) (holding that claims of ineffective trial counsel not raised on direct appeal were procedurally defaulted under New York law). Therefore, arguments (i), (iii), (iv), and (v) are procedurally defaulted.

Mahon has also not made the showing required to overcome procedural default. As noted, Mahon does not point to “some objective factor external to the defense” that prevented Byrne from raising the alternative ineffective assistance arguments, nor is Byrne's decision not to raise the arguments the requisite cause. Murray, 477 U.S. at 488, 496; id. at 486. For the same reasons set forth above (see § IV.B.1, supra), Mahon has not shown prejudice because the ineffective assistance of counsel claims are meritless. (See § IV.B.3.a, infra). See Fisher, 2014 WL 128015, at *12 (holding that, because ineffective assistance claims were meritless, petitioner could not demonstrate that he was prejudiced by procedural default). Finally, the record contains no evidence that Mahon is actually innocent or that failure to consider the alternative arguments would cause a fundamental miscarriage of justice. See id. at *13.

3. Legal Standard for Ineffective Assistance of Counsel Claims

The Sixth Amendment to the United States Constitution provides that a criminal defendant “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI. “The Supreme Court has construed this clause to afford criminal defendants the right to the effective assistance of counsel.” Jackson v. Ercole, No. 07 Civ. 0457 (KMK) (PED), 2010 WL 8357326, at *11 (S.D.N.Y. Dec. 23, 2010) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)), adopted by, 2012 WL 292324 (S.D.N.Y. Jan. 30, 2012). “[T]o prove ineffective assistance, [a petitioner] must show (1) ‘that counsel's representation fell below an objective standard of reasonableness'; and (2) ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008) (quoting Strickland, 466 U.S. at 694); see Massaro v. United States, 538 U.S. 500, 505 (2003) (explaining that “a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial”); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (same); Baghoumian v. United States, No. 14 Civ. 8683 (PGG), 2019 WL 2209205, at *8 (S.D.N.Y. May 22, 2019) (same). A petitioner “‘must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense.'” Garner v. Lee, 908 F.3d 845, 861 (2d Cir. 2018) (quoting Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (internal citation omitted)).

With respect to the first prong, “[a] defense counsel's performance is unreasonable when it is so deficient that it falls outside the ‘wide range of professionally competent assistance.'” Kovacs v. United States, 744 F.3d 44, 50 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 690). “[T]he record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). In evaluating counsel's performance, “‘[j]udicial scrutiny . . . must be highly deferential,'” and a petitioner must overcome the “presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689) (internal quotations omitted); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a “strong presumption” of competence). As set forth in Strickland, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 690-91. A petitioner “will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there was no tactical justification for the course taken.” Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (citation omitted).

The Court finds that Mahon has failed to meet the Strickland standard as to any of the ineffective assistance claims against Bruno.

a. Agency Defense

Because Mahon, in the Leave Application, exhausted the claim that Bruno was ineffective in failing to present an agency defense, the question for the Court under AEDPA is whether the State Court Decision holding that he “received effective assistance under the state and federal standards,” 160 A.D.3d at 563, was “contrary to, or involved an unreasonable interpretation of, clearly established Federal law established by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1); see Woods v. Donald, 575 U.S. 312, 317 (2015) (under AEDPA, federal courts must afford “both the state court and the defense attorney the benefit of the doubt”); Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (noting that AEDPA review of ineffective assistance of counsel claims is “doubly deferential”).

Mahon's claim that Bruno was ineffective for failing to assert an agency defense fails to meet this highly deferential standard. First, Bruno's strategic decision not to present a defense that had little evidentiary support and had no serious chance of succeeding was not “so deficient” as to “fall[] outside the ‘wide range of professionally competent assistance.'” Kovacs, 744 F.3d at 50 (quoting Strickland, 466 U.S. at 690). Under New York law, “one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics.” People v. Lam Lek Chong, 45 N.Y.2d 64, 73 (1978) (citation omitted). To support an agency defense, “the evidence must be indicative of a relationship with the buyer and not merely raise ambiguities about the defendant's connection to the seller.” People v. Herring, 83 N.Y.2d 782, 782 (1994). Here, the evidence did not demonstrate a prior relationship between Mahon and UC 212, or that Mahon was acting on UC 212's behalf. (See, e.g., ECF No. 14-1 at 492 (UC 212 agreeing that “a man, it turns out it's Mahon, a man now sort of slows down” his car driving past her on the opposite side of the street)). Rather, the evidence demonstrated that Mahon previously knew Gallegos, who drove the white van that Mahon climbed into, and to whom Mahon handed the cash. (ECF No. 14-1 at 460-61, 500-02, 521, 531-32). Thus, because there was no evidence of a relationship between Mahon and UC 212, or evidence that Mahon agreed to participate in the drug transaction “only because he wished to serve as an agent for the buyer, a complete stranger[,]” Herring, 83 N.Y.2d at 782, “there is no reasonable view of the evidence that would have supported an agency charge[,]” and Bruno “was not ineffective for failing to request a jury charge unsupported by the evidence.” Vaughn v. Giambruno, No. 03 Civ. 5403 (WHP) (THK), 2005 WL 1995391, at *9 (S.D.N.Y. Aug. 19, 2005); see Williams v. McCoy, No. 00 Civ. 6683 (MBM), 2002 WL 3145696, at * (S.D.N.Y. Oct. 28, 2002) (holding that counsel was not ineffective for failing to request agency charge that evidence did not support).

Even if the evidence had supported an agency defense, the defense “is not a complete defense” and a defendant may still be found guilty of possession. Lam Lek Chong, 45 N.Y.2d at 73. The “agency defense, under most circumstances, would constitute a mitigating rather than an exculpatory defense.” Brown v. Ebert, No. 05 Civ. 5579 (DLC) (KNF), 2006 WL 1273830, at *4 (S.D.N.Y. May 9, 2006), adopted by, 2006 WL 3851152 (S.D.N.Y. Dec. 29, 2006). Further, under New York law, “where agency is asserted as a defense at trial, the State may introduce evidence of prior narcotics-related activities on their direct case to demonstrate intent to sell.” Johnson v. Mazzuca, No. 04 CV 5246 (JFB), 2006 WL 2376383, at *10 (E.D.N.Y. Aug. 16, 2006) (collecting New York cases); see People v. Blue, 107 A.D.3d 443, 443-44 (1st Dep't 2013) (“Prior drug sale convictions are clearly admissible in response to an agency defense . . . to rebut the claim of lack of intent to sell implicit in [the] defense.”). Mahon had at least two prior drug convictions that the prosecution could have introduced had Mahon asserted an agency defense (ECF No. 14-1 at 50-61), and therefore, Bruno's decision, which he made after considering the facts and the law (id. at 73-74), not to press the defense was a valid trial strategy that does not support an ineffective assistance claim. See Weeks v. Senkowski, 275 F.Supp.2d 331, 338-39 (E.D.N.Y. 2003) (“[S]trategic choices made by counsel after a thorough investigation of the facts and law are ‘virtually unchallengeable[.]'”) (quoting Strickland, 466 U.S. at 690-91).

Finally, Mahon has not established that the result of his trial would have been different had Bruno asserted an agency defense. In addition to the criminal sale charge in Count 1, the Indictment also charged Mahon with two counts of possession that were clearly established by the evidence-and essentially undisputed-and subjected him to similar penalties. (ECF No. 14-1 at 46 (denying motion to suppress two Ziploc bags containing crack); see also id. at 83, 664-67; ECF No. 15-1 at 1 ¶ 3). Thus, even had (i) the evidence supported an agency defense, (ii) Bruno asserted that defense, and (iii) the jury found Mahon not guilty on Count 1, he would still have been convicted on Count 2 and been sentenced to an eight-year determinate term of imprisonment and three years of probation. (ECF No. 14-1 at 724 (“There will be an identical sentence on count two, criminal possession of a controlled substance in the third degree, to be followed by a period of three years post release supervision.”)). Therefore, Mahon has not shown that the result of the proceeding would have been different had Bruno chosen to assert the agency defense.

Accordingly, having considered Mahon's arguments and the trial record, the Court concludes that the State Court Decision finding that Bruno was not ineffective for failing to assert an agency defense was neither contrary to, nor an unreasonable application of, clearly established federal law. See Velazquez v. Poole, 614 F.Supp.2d 284, 340 (E.D.N.Y. 2007) (holding that state court's decision rejecting claim that trial counsel was ineffective for failing to assert a defense was not contrary to or an unreasonable application of Strickland standard); see also Thompson v. Cunningham, No. 08 Civ. 10458 (VB), 2013 WL 3742490, at *19 (S.D.N.Y. June 28, 2013) (holding that state court's rejection of ineffective assistance of counsel claim based on failure to pursue a different trial strategy was not contrary to or an unreasonable application of clearly established federal law); Steward v. Graham, No. 01-cv-569 (GLS) (VEB), 2008 WL 2128172, at *11 (W.D.N.Y. May 19, 2008) (same).

b. Witnesses

The Court, like Respondent, construes Mahon's second ineffective assistance claim as based on Bruno's failure to interview and call witnesses, including Detective Rodriguez, or use impeachment evidence to show alleged discrepancies in the Buy Money. (ECF Nos. 1 at 5 (“Trial counsel did not call witness or use impeaching evidence.”); see also ECF No. 15 at 6, 23; 15-2 at 19-20 (Counseled 330.30 Motion); 15-6 at 41-42 (Appellate Brief)). The implication of Mahon's argument is that, had Detective Rodriguez testified at trial, his testimony would have been inconsistent with that of UC 212 and Sergeant Urena regarding the Cash that was recovered from Mahon on his arrest and the Buy Money that Detective Rodriguez vouchered, and, as a result, the jury would have found Mahon not guilty. (See ECF No. 15-2 at 19-20).

The Court finds that Bruno's decision not to call Detective Rodriguez as a trial witness was not objectively unreasonable. On direct examination, Sergeant Urena testified, based on the DA's Summary, that a total of $182.00, of which $30.00 was the Buy Money, was recovered from Mahon incident to arrest. (ECF No. 14-1 at 537-41; see n.3, supra). During Bruno's cross-examination, however, Sergeant Urena corrected the amount as $207.00, stating that he had forgotten to add to the $182.00 the $25.00 that was returned to the buy-money fund according to NYPD procedure. (ECF No. 14-1 at 559-64; see id. at 541). Sergeant Urena's testimony reflects that only $5.00 of the Buy Money was vouchered, while $25.00 was returned to the buy-money fund. (Id. at 540). The record therefore demonstrates that Bruno made the strategic decision to challenge the credibility of Sergeant Urena and UC 212 through aggressive cross-examination, rather than calling another NYPD witness, in order to elicit the purported inconsistencies in the DA's evidence. Mahon offers no evidence other than his conclusory assertions that Bruno's decision not to call Detective Rodriguez constituted unsound trial strategy. See Jackson, 2010 WL 8357326, at *12 (holding that petitioner failed to show that counsel's decision not to call alibi witness “constituted objectively unreasonable conduct”); Deans v. Ercole, No. 09 Civ. 56 (BMC), 2010 WL 1010743, at *7 (E.D.N.Y. Mar. 15, 2010) (same); see also Ryan v. Rivera, 21 Fed.Appx. 33, 34 (2d Cir. 2001) (explaining that, “when a party challenges matters of trial strategy, such as the decision not to call a witness, even greater deference is generally warranted”); United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (explaining that “counsel's decision as to whether to call specific witnesses-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation”) (citation omitted).

Even if Bruno was deficient in failing to call Detective Rodriguez, or to challenge the prosecution witnesses' credibility through some other means, Mahon makes no showing of the probability of a different result “sufficient to undermine confidence in the outcome” of the trial. Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 694). The hypothetical possibility that Detective Rodriguez would have testified so favorably to Mahon's defense as would have changed the jury's decision is “not enough to undermine the Court's confidence in the outcome of the trial.” Deans, 2010 WL 1010743, at *8; see also United States v. Vargas, 920 F.2d 167, 168-70 (2d Cir. 1990) (holding that conclusory allegations regarding testimony of uncalled witness were insufficient to demonstrate prejudice required under Strickland).

c. Closing argument

Mahon's third ineffective assistance claim is based on Bruno's assertion during closing argument that “the buy money never changed hands” between Mahon and UC 212 (ECF No. 14-1 at 634-35), despite the evidence to the contrary. (ECF Nos. 1 at 5 (objecting to Bruno's statement that Mahon “got no money from undercover officer”); 15 at 25). While “[t]he right to effective assistance extends to closing arguments[,]” it is equally well-settled that “deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003).

The Court finds that Bruno's conduct during his closing argument was not objectively unreasonable. In his closing argument, consistent with his approach throughout the trial, Bruno sought to portray Mahon's overtures to UC 212 as seeking a romantic entanglement, rather than a drug transaction, and to challenge the credibility of Sergeant Urena and UC 212. (See, e.g., ECF No. 14-1 at 630 (“She's trying to make an attempt at a date into a drug sale[.]”); id. 633-34 (pointing out Sergeant Urena correcting his testimony about the amount of cash recovered from Mahon); id. at 634 (arguing that “Mahon never saw 30 or 25 or 5”)). Bruno's statement that “the buy money never changed hands” was in furtherance of the assertion that the Buy Money was planted. (Id. at 634-35). Given “the dire facts facing” Bruno-including Mahon's undisputed possession of multiple bags of crack-the Court cannot say that Bruno's statement during closing argument was deficient, nor that the result of the trial would have been different had he not said it. Thornton v. Reynolds, No. 99 Civ. 10605 (GEL), 2001 WL 845452, at *1 (S.D.N.Y. July 26, 2001) (finding that “the choice of a meritless agency defense over a meritless entrapment defense was not deficient” representation under Strickland). Furthermore, “the jury was specifically instructed that defense counsel's closing argument was not evidence and could not be considered in reaching a verdict, and the jury is presumed to have followed that instruction appropriately.” Gillespie v. Uhler, 652 Fed.Appx. 61, 64 (2d Cir. 2016) (holding that misstatement during closing argument was “not sufficiently prejudicial under Strickland”) (citing United States v. Batista, 684 F.3d 333, 342 (2d Cir. 2012)). (See ECF No. 14-1 at 658-59 (instructing jury that “the closing arguments that you heard just now are not evidence”)).

d. Incorrect evidence

Mahon's fourth ineffective assistance claim is that Bruno was ineffective for failing to object when the prosecution introduced an allegedly incorrect photograph of the $5.00 of Buy Money. (ECF Nos. 1 at 5; 15 at 27). As discussed above, Sergeant Urena's testimony reflects that only $5.00 of the Buy Money was vouchered, while $25.00 was returned to the buy-money fund. (ECF No. 14-1 at 540). Bruno challenged the credibility of that testimony during both cross-examination and closing argument. (ECF No. 14-1 at 559-64, 644-45). Even if Mahon could establish that Bruno's failure to object to the photograph-the alleged inaccuracy of which Mahon fails to specify-he has not established “that there is a reasonable probability that, but for this failure, the proceeding would have resulted differently.” Wright v. Rivera, No. CV-06-1725 (SJF) (MDG), 2008 WL 4223723, at *19 (E.D.N.Y. Sept. 10, 2008) (rejecting claim that trial counsel's failure to object to prosecution's use of photographic evidence) (citing Stickland, 466 U.S. at 695-96). Accordingly, the Court finds Mahon's ineffective assistance claim based on Bruno's failure to object to the allegedly incorrect evidence lacks merit.

e. Prosecutor's closing argument

Mahon's fifth ineffective assistance claim argues that Bruno failed “to object to prosecutor's [sic] misrepresenting material evidence to jury [sic].” (ECF No. 1 at 5; see ECF No. 15 at 27-28). Mahon does not specify which of the prosecutor's statements he finds objectionable, and having reviewed the entire trial transcript, the Court finds no material misrepresentation, let alone any misstatements that “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations omitted); see Medina v. Gonyea, 111 F.Supp.3d 225, 237-38 (E.D.N.Y. 2015) (rejecting ineffective assistance claim based on defense counsel's failure to object to prosecutor's comments where decision to refrain from objecting reflected valid “strategic reasons” and petitioner failed to show prejudice); Warren v. Napoli, No. 05 Civ. 8438 (CM) (KNF), 2009 WL 2447757, at *13 (S.D.N.Y. Aug. 10, 2009) (rejecting ineffective assistance of counsel claim based on failure to object to prosecutor's comments during trial).

Accordingly, the Court concludes that none of Mahon's complaints about Bruno's conduct reflect a denial of his Sixth Amendment right to effective representation for which relief under § 2254 would be warranted, that the State Court Decision rejecting the claim based on Bruno's failure to assert the agency defense was not an unreasonable application of or contrary to Strickland, and respectfully recommends that his ineffective assistance claims be denied.

C. Prosecutorial Misconduct

Mahon argues that the prosecutor engaged in misconduct by misrepresenting a photograph of the Buy Money, losing exhibits on appeal, “not impeaching” Sergeant Urena with his own memo book, and failing to call Detective Rodriguez as a witness at trial. (ECF No. 1 at 8). Respondent argues that these prosecutorial misconduct claims are unexhausted, procedurally defaulted, and meritless. (ECF No. 15 at 28-31).

1. Exhaustion

Respondent argues that Mahon has failed to exhaust his prosecutorial misconduct claims because the arguments he makes in the Petition “are not the ‘substantial equivalent' of those presented” in his 440.10 Motion or Leave Application. (ECF No. 15 at 28-30). In his 440.10 Motion, which he filed pro se, Mahon “claim[ed] that the prosecutor: (1) withheld Rosario and discovery materials; (2) engaged in prosecutorial misconduct during summation by introducing a prejudicial photograph of [Mahon] and making inflammatory remarks; and (3) violated the notice provisions of [N.Y. Criminal Procedure Law] § 710.30(1)(a) by introducing [his] unnoticed statements into evidence.” (ECF No. 15-4 at 15-16; see n.13, supra).²⁰ Respondent contends that, because Mahon's arguments in the 440.10 Motion alleged “impermissibly withholding various forms [of] discovery material,” whereas he now “appears to claim that the photo of the pre-recorded buy money turned over to the defense and admitted into evidence was fabricated[,]” he has failed to exhaust his current claims. (ECF No. 15 at 29). Similarly, in the 440.10 Motion Mahon alleged that the prosecution violated Rosario by withholding Sergeant Urena's memo book, whereas his current claim is based on the prosecutor's failure to impeach Sergeant Urena using the memo book. (Id. at 29; see ECF No. 1 at 8).

20 As explained above (see § II.B.1.d, supra), Justice Gross found that these arguments were procedurally barred under § 440.10(2)(c) because Mahon could have raised, but failed to raise, them on his direct appeal, and, in any event, lacked merit. (ECF No. 15-4 at 16).

As discussed above, in the Leave Application in support of his direct appeal, Mahon only raised Bruno's failure to assert the agency defense and request an agency charge. (See § II.B.1.e, supra). He made no mention of prosecutorial misconduct. (ECF No. 15-9). Further, Mahon did not raise any grounds of prosecutorial misconduct in the Appellate Brief (ECF No. 15-6), and the State Court Decision contains no ruling on that issue. Mahon, 160 A.D.3d 563. Accordingly, because Mahon did not “properly present[]” his prosecutorial misconduct claims in federal constitutional terms to the New York State courts, he has failed to exhaust these claims and the AEDPA bars the Court from now reviewing them. DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (affirming denial of habeas corpus relief due to failure to exhaust because “they were not properly presented to New York's highest court”); see Moreno-Gratini, 2022 WL 1425712, at *7 (finding claims not presented to New York Court of Appeals were unexhausted). And, for the same reasons discussed as to Mahon's alternative ineffective assistance claims, he is similarly unable to establish cause for his failure to exhaust, or that failure to consider the claims would result in a miscarriage of justice. (See § IV.B.1, supra).

2. Procedural Default

Because Mahon may not file another direct appeal raising his prosecutorial misconduct arguments, see N.Y. Crim. P. L. §§ 450.10(1), 450.10(5), and cannot raise in a § 440.10 motion claims such as these that could have been raised or were decided on direct appeal, see N.Y. Crim. P.L. § 440.10(2)(a), (c), Mahon's prosecutorial misconduct claims are also procedurally defaulted. (See § IV.B.2, supra). As discussed above, he has not shown cause to overcome that default (see id.), and, in any event, as discussed in the next section, the claims lack merit. See Moreno-Gratini, 2022 WL 1425712, at *7 (notwithstanding procedural default, concluding that claims lacked merit and did not warrant habeas corpus relief).

3. Merits

Mahon's prosecutorial misconduct arguments center on the evidence concerning the Buy Money-the photograph of the Buy Money, Sergeant Urena's testimony, and the absence of testimony from Detective Rodriguez. (ECF No. 1 at 8). In reviewing a claim of prosecutorial misconduct on a habeas corpus petition, the standard is whether the prosecutor engaged in “egregious misconduct . . . amount[ing] to a denial of constitutional due process.” Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)); see Rivera v. Rich, No. 9:20-CV-865 (GTS) (ATB), 2022 WL 1631938, at *14 (N.D.N.Y. Apr. 4, 2022) (quoting Floyd, 907 F.2d at 353), adopted by, 2022 WL 1624696 (N.D.N.Y. May 23, 2022).

Mahon has not met this standard. As the Court has explained several times throughout this Report and Recommendation, the evidence at trial established that UC 212 gave Mahon the Buy Money in the amount of $30.00 in exchange for two Ziploc bags containing crack, and Detective Rodriguez recovered that Buy Money from Mahon when he searched him incident to arrest, vouchered $5.00, and returned $25.00 to the Buy Money fund. (See §§ II.A-B, IV.B.3.b, supra). Mahon offers no evidentiary proof to support his speculation that the photograph of the Buy Money the prosecutor discussed during his closing argument was fabricated. See Gassner v. Crowley, No. 19-CV-1159-LJV-JJM, 2021 WL 7904018, at *7 (W.D.N.Y. Dec. 28, 2021) (rejecting “speculation” that arrest warrant was fabricated where “petitioner offer[ed] nothing to support [the] claim”); Sweeney v. Laffin, No. 12 Civ. 6483 (KMK) (LMS), 2017 WL 4342138, at *6 (S.D.N.Y. Sept. 28, 2017) (denying habeas corpus relief where petitioner failed to adduce evidence to support speculation that trial would have been different had expert witness testified). Nor would it make sense for the prosecution to impeach Sergeant Urena, a prosecution witness, with his own memo book. (ECF No. 15 at 31 n.5). Finally, Mahon fails to identify which exhibit the prosecution allegedly “lost” on appeal, nor is there any such suggestion in his Appellate Brief or any other defense filing in the record. (ECF Nos. 15-6; 15-9). Thus, the Court finds that none of the prosecutor's conduct was so egregious as to deprive [Mahon] of due process during his state criminal proceedings, and therefore, does not provide a basis for habeas corpus review.

In sum, should the Court find that Mahon's prosecutorial misconduct claims were exhausted and not procedurally defaulted, I respectfully recommend that they nevertheless be denied on the merits.

D. Lack of Evidentiary Hearing for the 440.10 Motion

Mahon's final claim is based on Justice Gross's issuance of the 440.10 Decision without holding an evidentiary hearing. (ECF No. 1 at 7). Under Supreme Court precedent, however, “there is no constitutional provision that requires a state to grant post-conviction review.” Roman v. Napoli, No. 08-CV-6561 (MAT), 2010 WL 4922627, at *12 (W.D.N.Y. Dec. 2, 2010) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). “Consequently, most courts sitting on habeas review ‘have rejected due process claims arising out of the conduct of state post-conviction proceedings, holding that such claims are not cognizable on habeas review[.]'” Id. (quoting Cruz v. Smith, No. 05 Civ. 10703 (LTS) (DF), 2010 WL 582348, at *29 (S.D.N.Y. Feb. 17, 2010) and collecting cases); see Fields v. Lee, No. 12 Civ. 4878 (CS) (JCM), 2016 WL 889788, at *21 (S.D.N.Y. Jan. 28, 2016) (“Claims relating to alleged errors in a state's post-conviction procedures are not cognizable on federal habeas review.”), adopted by, 2016 WL 879319 (S.D.N.Y. Mar. 7, 2016); Jones v. Duncan, 162 F.Supp.2d 204, 219 (S.D.N.Y. 2001) (holding that claim based on failure to conduct hearing for §§ 330.30 and 440.10 motions was “not cognizable on federal habeas review”). The rationale for this restraint is that § 2254 authorizes federal district courts “to review the constitutionality of a state criminal conviction, and not alleged infirmities in state post-conviction relief proceedings.” Roman, 2010 WL 4922627, at *12. Accordingly, the Court finds that Mahon's claim based on Justice Gross's failure to hold an evidentiary hearing before issuing the 440.10 Decision is not cognizable, and respectfully recommends dismissal on that basis.

V.CONCLUSION

For the reasons set forth above, the Court respectfully recommends that the Petition be DENIED because: (1) the State Court Decision denying Mahon's ineffective assistance claim based on his counsel's failure to assert an agency defense was neither contrary to nor an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d); (2) Mahon's four other ineffective assistance of counsel claims are unexhausted, procedurally defaulted, and without merit; (3) Mahon's prosecutorial misconduct claim is unexhausted, procedurally defaulted, and without merit; and (4) Mahon's evidentiary hearing claim is not cognizable under 28 U.S.C. § 2254.

Respondent shall promptly serve a copy of this Report and Recommendation on Mahon, and file proof of service on the docket by October 4, 2022.

The Clerk of Court is respectfully directed to mail a copy of the Report and Recommendation to Mahon.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rochon.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Mahon does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.