Summary
comparing Harvey v. Horan, 278 F. 3d 370, 375-77 (4th Cir. 2002), with Godschalk v. Montgomery County Dist. Attorney's Office, 177 F. Supp. 2d 366, 370 (E.D. Pa. 2001)
Summary of this case from Sireci v. Secretary, Florida Department of CorrectionsOpinion
03 CV 5767 (JG).
August 27, 2004
MEDHAT SHENOUDA, No. 93-A-4870, Arthur Kill Correctional Facility, Staten Island, New York, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Anne C. Feigus, Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Medhat Shenouda, an inmate at the Arthur Kill Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument today and now, for the reasons set forth below, deny the petition.
BACKGROUND
During the period of time between July 15 and 19, 1992, Shenouda repeatedly injected his wife, Georgette Shenouda ("Georgette"), who was at the time a patient at Brookdale Hospital ("Brookdale"), with large doses of insulin, intending to kill her. Shenouda was charged with attempted murder in the second degree. After Shenouda's first trial ended in a mistrial, he was convicted by a jury of attempted murder in the second degree and sentenced to a term of imprisonment of eight-and-one-third to twenty-five years.
On appeal, Shenouda argued that the trial court had erred in admitting into evidence three syringes, on the ground that the state had failed to establish that the syringes had any connection to the charged crime. On May 7, 2001, the Appellate Division, Second Department, unanimously affirmed. People v. Shenouda, 723 N.Y.S.2d 873, 874 (2d Dep't 2001). Leave to appeal to the Court of Appeals was denied on June 28, 2001. People v. Shenouda, 96 N.Y.2d 868 (2001) (Graffeo, J.).
On July 24, 2001, Shenouda moved, pursuant to New York Criminal Procedure Law §§ 440.10 and 440.30(1-a), to vacate his conviction and to obtain DNA testing of thirteen syringes recovered from a hospital waste container, three of which the state had introduced into evidence at Shenouda's trials. Shenouda sought to overturn his conviction on the grounds that (1) the state had withheldBrady and Rosario material; and (2) trial counsel was ineffective and (3) had a conflict of interest.
The New York Supreme Court denied Shenouda's motion in its entirety. People v. Shenouda, Indictment No. 9013/92, slip op. (N.Y.Sup.Ct. Oct. 29, 2001). After granting reargument, the court, on November 19, 2001, adhered to its October 29, 2001 decision. After allowing Shenouda to submit additional papers (Shenouda had not had an opportunity to reply to the state's answer), the court again denied Shenouda's motion on March 15, 2002.
On August 16, 2002, the Appellate Division granted Shenouda leave to appeal those portions of the lower court's March 15, 2002 order denying Shenouda's motion to vacate his conviction and for DNA testing which were not appealable as of right. After granting Shenouda's motion to represent himself on the appeal, the Appellate Division unanimously affirmed the lower court's denial of Shenouda's motion. People v. Shenouda, 762 N.Y.S.2d 886, 886 (2d Dep't 2003). Leave to appeal was denied on October 9, 2003. People v. Shenouda, 100 N.Y.2d 645 (2003) (Graffeo, J.). In the instant petition, Shenouda raises the same claims he raised on direct appeal and in his §§ 440.10 and 440.30(1-a) motion.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt."Id. at 2151.
Under the "unreasonable application" standard set forth inWilliams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable.");Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1041 (2003)).
B. Shenouda's Claims
1. The Three Syringes
Shenouda claims that the trial court erred in admitting into evidence three syringes removed from a hospital waste container. Specifically, Shenouda asserts that the state failed to establish that the syringes had any connection to the charged crime. In rejecting this claim, the Appellate Division held:
The Supreme Court providently exercised its discretion by admitting into evidence three syringes turned over to the police. The connection between the defendant and the syringes was not so tenuous as to be improbable. Any uncertainty as to the identification of the syringes affects only the weight to be given to them, not their admissibility.Shenouda, 723 N.Y.S.2d at 874 (citations omitted).
Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, petitioner bears a "heavy burden."Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993),aff'd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).
The facts relevant to this claim are as follows. On the morning of July 16, 1992, Dr. Joel Goldman, Chief of Endocrinology and Metabolism at Brookdale, shared with Dr. Richard Cofsky his suspicion that Shenouda had injected Georgette with insulin. Shortly thereafter, Cofsky noticed the plunger of a syringe protruding from Shenouda's pocket. As the syringe was not in a container, Cofsky warned Shenouda and offered to dispose of it for him. At that point, Shenouda walked into the surgical intensive-care-unit annex and went over to a Sharps container near bed 14. Shenouda took the syringe out of his pocket, allowing Cofsky to see that it was a 10 cc syringe, one-third to one-half filled with a clear fluid, and capped. Shenouda told Cofsky that the syringe contained Verapamil, a medication given to slow a rapid heart rhythm. Shenouda then made a throwing motion with his arm and Cofsky heard the syringe enter the Sharps container.
Later that morning, Jessie Parker, Brookdale's Director of Building Services, was told to remove the Sharps container near bed 14 in an inconspicuous manner. Therefore, around 11:30 a.m., Parker asked an employee to retrieve that Sharps container and another one near bed 15. At Parker's request, the employee placed his mask over the top of the container from bed 14 to avoid confusion. Parker took the two containers to his office, designated one "14" and the other "15" in black marker, sealed them in a red infectious-waste bag, and placed the bag in a storeroom that was off the regular master key system of the hospital.
A few hours later, Ed Glickman, the senior associate administrator, told Parker that the bag should be refrigerated in a secure location. They decided on the morgue. At the instructions of Vito Buccellato, the morgue's director, the bag was sealed in a box bearing a notation that it was to be opened only by Buccellato. This box was then placed on a shelf in the back of the morgue.
On July 22, 1992, the police asked Parker to identify the box in the morgue. Parker brought the box from the freezer section of the morgue into the hallway, where he opened the box, unsealed the bag, and pried the lid off of the Sharps container marked "14." Glickman, Detective John Schwartz, a Dr. Kahn, and an attorney for Brookdale were also present. Inside the container were, inter alia, intravenous tubings, scissors, and forty syringes. Of the forty syringes, about thirteen were 10 cc syringes, three of which were capped. Schwartz placed all of the 10 cc syringes into a red bag, placed the bag inside the Sharps container, sealed the container back inside the box, and returned the box to the morgue. Parker then locked the morgue.
On July 24, 1992, Detective Thomas Rhatigan, accompanied by crime scene officers, went to the morgue and vouchered the three capped 10 cc syringes recovered from Sharps container 14, packed them in ice in a hospital styrofoam cooler, and stored the cooler in a refrigerated police storage facility. On July 27, 1992, the three syringes were packed in dry ice and shipped to a lab in Pennsylvania, where each tested positive for the presence of insulin.
Based on these facts, the trial court's decision to admit the syringes into evidence was not erroneous, and certainly the Appellate Division's conclusion upholding the conviction was not unreasonable. Cofsky witnessed Shenouda throw one capped 10 cc syringe into the Sharps container near bed 14. Based in part on the violent swings in Georgette's condition, the state's expert believed that she must have been injected with insulin multiple times. It was the state's theory that Shenouda threw the other syringes in the same Sharps container. That the defense could argue that the jury should afford this evidence little weight did not render it inadmissible.
In any event, admission of the three syringes did not remove a reasonable doubt that would otherwise have existed. Aside from lies Shenouda told his coworkers well before Georgette entered the hospital — that she was dying of cancer, among others — it was undisputed at trial that Georgette had been injected with high doses of insulin. Shenouda was routinely alone at his wife's bedside and had ready access to both insulin and syringes. He explicitly ordered Susan Fiore not to perform an important test on Georgette's blood — a test that would have indicated whether Georgette's body was producing the insulin or whether it was coming from an external source. He was also observed leaving his wife's room with fresh scratches on his neck, only hours before she was discovered in one of her unconscious states. Furthermore, even if the syringes had been excluded, Cofsky's observations of the syringe in Shenouda's pocket would have been admissible. For all of the foregoing reasons, this claim does not support issuance of the writ.
2. DNA Testing
Shenouda claims that the state courts wrongly declined to order DNA testing of the three syringes. In affirming the denial of Shenouda's motion to test the syringes, the Appellate Division held:
Contrary to the defendant's contention, that branch of his motion which was to direct the performance of a forensic DNA test on specified evidence pursuant to CPL 440.30(1-a) was properly denied. The defendant failed to show that the evidence sought to be tested was available in quantities sufficient to make testing feasible. In any event, even if there had been sufficient DNA evidence to be tested and those results were admitted into evidence, the defendant failed to show that there exists a reasonable probability that the verdict would have been more favorable to him.Shenouda, 762 N.Y.S.2d at 886 (quotation marks and citations omitted).
To the extent Shenouda claims a violation of a right conferred by New York statute, his claim is not cognizable on habeas review. See 28 U.S.C. § 2254(d)(1). Furthermore, the Supreme Court has not established, clearly or otherwise, a constitutional right to postconviction DNA testing. Compare Harvey v. Horan, 278 F.3d 370, 375-77 (4th Cir. 2002) (declining to declare, in the context of 28 U.S.C. § 1983, a general constitutional right to postconviction DNA testing exists), with Godschalk v. Montgomery County Dist. Attorney's Office, 177 F. Supp. 2d 366, 370 (E.D. Pa. 2001) (finding a due process right of access to genetic material for the limited purpose of DNA testing). See generally Harvey v. Horan, 285 F.3d 298, 300-04 (4th Cir. 2002) (Wilkinson, C.J., concurring in denial of rehearing and rehearing en banc) (discussing, in the context of 28 U.S.C. § 1983, the state of the law with regard to postconviction DNA testing); id. at 312-24 (Luttig, J., concurring in denial of rehearing en banc) (arguing, in the § 1983 context, that a constitutional right to postconviction DNA testing exists). This claim therefore does not justify issuance of the writ.
In any event, even if such a right was clearly established at the time of the Appellate Division's decision, that court's decision would not be unreasonable, as an expert witness concluded that DNA testing of the syringes was not feasible.
3. Prosecutorial Misconduct
Shenouda claims that the state committed "outrageous misconduct" throughout the state proceedings, including lying under oath, perjury, forgery, the filing of false documents, and obstruction of justice. Shenouda also claims that the state withheld material it should have disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 9 N.Y.2d 286 (1961). Those claims predicated solely on Rosario are not cognizable on habeas review. See 28 U.S.C. § 2254(d)(1). I discuss Shenouda's other misconduct claims below.
In denying Shenouda's § 440.10 motion, the court held:
The defendant's application is filled with accusations of misconduct by the prosecutor and his defense counsel. He accuses the District Attorney of engaging in "perjury" and "forgery" and asserts that the prosecutor responding to his motion has "insulted and viciously attacked the integrity of the judicial system." He claims that his trial counsel had a conflict of interest because having worked as a special prosecutor in another case he "was in the employ of the prosecution's office" and, therefore, had a conflict of interest in representing the defendant. The defendant's underlying claims for the motion, however, remain the same for this application as they did for the original application, and the new papers submitted by the defendant have failed to persuade this court to change its original decision denying the motion.
. . . .
The defendant's claim that he was denied Rosario and Brady material, i.e., laboratory test reports, is refuted by the record. It appears from the record that defense counsel had all laboratory reports. Indeed, since Rosario material is furnished to a defendant's attorney, the burden is on the defendant to show that his attorney failed to receive such documents. This he has failed to do.People v. Shenouda, Indictment No. 9013/92, slip op. at 1-2 (N.Y.Sup.Ct. Mar. 15, 2002). Affirming, the Appellate Division held, "The Supreme Court . . . properly denied that branch of the defendant's motion which was to vacate his judgment of conviction on Rosario and Brady grounds, because it was based solely on the defendant's own unsubstantiated allegations and was belied by the record." Shenouda, 762 N.Y.S.2d at 886 (citations omitted).
After review, I agree with the state courts that the record does not support Shenouda's claims. The claim Shenouda advances most vigorously in his memorandum in support of his petition — that the medical examiner produced two reports regarding the syringes and that one was not turned over to Shenouda — is clearly contradicted by defense counsel's cross-examination of the medical examiner, Dr. Robert Schaler. The substance of defense counsel's questions and Schaler's answers (Tr. at 1202-04) make clear that the report the state turned over prior to trial was the same report it later appended to its October 25, 2001 papers in opposition to Shenouda's § 440 motion (Resp. Ex. G, pt. 1). Furthermore, though Shenouda asserts that the state withheld this alleged other report in order to hide from him the fact that a syringe contained human blood, defense counsel explicitly asked Schaler about his finding that one of the syringes contained human blood (Tr. at 1202). Shenouda's misconduct claims are factually meritless and therefore do not justify issuance of the writ.
4. Ineffective Assistance of Trial Counsel
Shenouda alleges a variety of reasons why his trial attorneys were ineffective. These include defense counsel's alleged failure to investigate certain evidence, and an alleged conflict of interest on the part of one of his attorneys. Denying his § 440.10 motion, the state court held:
A review of the record also refutes defendant's claim that he was afforded ineffective assistance of counsel. He had two retained attorneys working in his behalf. His first trial ended in a hung jury with these same attorneys. At his request, the court assigned these same two attorneys to represent him at the retrial. Their vigorous cross-examination of the People's witnesses and presentation of a defense case, including calling the victim and a retained expert in the defendant's behalf, undermine any claims that the assistance of counsel was incompetent.
The defendant received two fair trials, the second of which ended with a guilty verdict. Claims of inadequate DNA testing of syringes recovered from a refuse receptacle and ineffective assistance of trial counsel made some eight years after the trial are stale and unsupported by the record. For these reasons the defendant's motion is denied in all respects.People v. Shenouda, Indictment No. 9013/92, slip op. at 2 (N.Y.Sup.Ct. Oct. 29, 2001). And the court's determination did not change after rehearing:
The defendant's final claim that his attorney provided ineffective assistance of counsel is also refuted by the record, which demonstrates that his two attorneys provided highly competent representation at two trials. The defendant is apparently under an erroneous impression that because his trial counsel once worked as a special prosecutor he was an employee of the District Attorney, when the reality is that a special prosecutor is selected by the court in cases where the District Attorney must disqualify himself from any involvement in the case.People v. Shenouda, Indictment No. 9013/92, slip op. at 3 (N.Y.Sup.Ct. Mar. 15, 2002). The Appellate Division affirmed, stating that Shenouda had "received meaningful representation."Shenouda, 762 N.Y.S.2d at 886.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Shenouda must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,"id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
The record makes clear that Shenouda's attorney's presentation was more than constitutionally adequate. Defense counsel's opening was pointed and laid the groundwork for cross-examination of many of the state's witnesses. Counsel's cross-examination of various doctors and nurses was consistently informed, and demonstrated counsel's thorough knowledge of the complex medical issues involved in the case. Cross-examination also revealed that counsel had reviewed the relevant documents prior to trial, as they confronted witnesses with them frequently. Counsel also made appropriate objections throughout trial, including a strenuous objection to the three syringes discussed above. Shenouda's attorneys also put on a defense case, which included testimony from Georgette and an endocrinology expert. Finally, counsel made a sweeping summation, specifically addressing each weakness in the state's case and offering innocent explanations for damaging evidence. Indeed, in light of the overwhelming circumstantial evidence of guilt, counsel performed admirably.
Shenouda claims that his attorneys should have independently tested the syringes for insulin, Verapamil, and DNA. However, his assertion that counsel's failure to test the syringes cannot be attributed to strategy is mistaken. Surely counsel was entitled to believe, based on what they already knew — including the medical examiner's report stating that the syringes contained insulin — that the results of any such tests would only hurt their client's case. Indeed, counsel had won Shenouda a mistrial in his first case despite, or perhaps because of, the fact that they had not performed independent tests. In any event, it is not the province of this Court to second-guess counsel's trial strategy. For these reasons, this claim does not justify issuance of the writ.
CONCLUSION
For the foregoing reasons, the petition is denied. As Shenouda has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.