govinfo:USCOURTS-nynd-9_23-cv-00440-1

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
____________________________________________ 
 
ALI MUHAMMAD, 
 
 Petitioner, 
vs. 9:23-CV-440 
 (MAD/MJK) 
AMY LAMANNA, 
 
 Respondent. 
____________________________________________ 
 
APPEARANCES: OF COUNSEL: 
 
ALI MUHAMMAD 
Clinton Correctional Facility 
P.O. Box 2001 
Dannemora, New York 12929 
Petitioner, Pro se 
 
OFFICE OF THE NEW YORK STATE PRISCILLA I. STEWARD, AAG 
ATTORNEY GENERAL 
28 Liberty Street 
New York, New York 10005 
Attorney for Respondent 
 
Mae A. D'Agostino, U.S. District Judge: 
 
MEMORANDUM-DECISION AND ORDER 
I. INTRODUCTION 
 Petitioner Ali Muhammad seeks federal habeas relief pursuant to 28 U.S.C. § 2254. 
See Dkt. No. 1. On April 12, 2023, the Court administratively closed the action for Petitioner's 
failure to properly commence it. See Dkt. No. 3 at 1. Petitioner was provided thirty days to either 
(1) pay the court's filing fee of five dollars; or (2) submit a completed, signed, and properly 
certified application to proceed in forma pauperis ("IFP"). See id. at 2. On April 26, 2023, the 

 
 
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Court received a properly certified IFP application, and the action was reopened. See Dkt. No. 4; 
Dkt. No. 5; Dkt. No. 6. 
 On May 17, 2023, the Court noted that Petitioner's claims appeared to be unexhausted and, 
as to some claims, procedurally defaulted. See Dkt. No. 7. Accordingly, the Court ordered 
Petitioner to "file an affirmation clarifying the identified exhaustion issues and providing the 
Court with information including any cause for his failure to exhaust any of his claims and what, 
if any, prejudice he has suffered." Id. at 1. Petitioner filed an affirmation, as directed by the 
Court. See Dkt. No. 10. On June 22, 2023, the Court ordered that Respondent Amy Lamanna 
answer the petition. See Dkt. No. 11. Respondent answered the petition on November 2, 2023, 
opposing the requested relief. See Dkt. No. 18; Dkt. No. 19. Petitioner filed a reply in support of 
the petition. See Dkt. No. 30. 
On February 27, 2026, Magistrate Judge Mitchell J. Katz issued a Report-
Recommendation and Order ("R&R"), recommending that the petition be denied and dismissed as 
procedurally barred. See Dkt. No. 37. On May 6, 2026, Petitioner filed objections to the R&R, 
see Dkt. No. 40, and, on May 20, 2026, Respondent responded in opposition to Petitioner's 
objections, see Dkt. No. 41. 
For the reasons that follow, the Court adopts the R&R in its entirety. 
II. BACKGROUND 
Neither party challenges Magistrate Judge Katz's recitation of the facts in the R&R. See 
Dkt. No. 37 at 2-7. The Court finds no clear error in that recitation; therefore, the Court 
incorporates the "Relevant Background" section of the R&R into this Memorandum-Decision and 
Order. See id.; see also Nyarko v. M&A Projects Restoration Inc., No. 1:18-CV-05194, 2021 WL 

 
 
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4472618, *1 (E.D.N.Y. Sept. 30, 2021) (citing J.E. ex rel. Edwards v. Ctr. Moriches Union Free 
Sch. Dist., 898 F. Supp. 2d 516, 525 (E.D.N.Y. 2012)) (additional citation omitted). 
III. DISCUSSION 
A. Standard of Review 
When a party files specific objections to a magistrate judge's report-recommendation, the 
district court makes a "de novo determination of those portions of the report or specified proposed 
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, "[i]f 
a party fails to properly object to the R&R, the district judge reviews the R&R only for clear 
error." Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 359 (2d Cir. 2025) (citing Fed. R. 
Civ. P. 72(b) advisory committee's note to 1983 amendment). In other words, "'[a] plaintiff is 
deemed to have [forfeited] an objection to a magistrate judge's report if he does not present his 
claims to the district court.'" Id. (quoting Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017)). 
A proper objection must be both timely and specific. See id. "'[A] party must object to 
the finding or recommendation on that issue with sufficient specificity so as reasonably to alert 
the district court of the true ground for the objection.'" Id. (quoting Martin, 858 F.3d at 245). A 
party does not properly raise a specific objection by "'[m]erely referring the court to previously 
filed papers or arguments,'" id. (quoting Mario v. P & C Food Mkts., 313 F.3d 758, 766 (2d Cir. 
2002)), or asserting "new arguments not previously made before the magistrate judge[,]" id. 
(citations omitted); see Bus. for a Better N.Y. v. Angello, 341 Fed. Appx. 701, 706 (2d Cir. 2009) 
(summary order) (noting that a court need not consider arguments "raised for the first time in the 
objections to the report and recommendation"). 
"When performing . . . a 'clear error' review, 'the court need only satisfy itself that there is 
no clear error on the face of the record in order to accept the recommendation.'" Taylor v. Astrue, 

 
 
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32 F. Supp. 3d 253, 261 (N.D.N.Y. 2012) (citation and footnote omitted). 
After appropriate review, "the court may accept, reject, or modify, in whole or in part, the 
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). 
"[I]n a pro se case, the court must view the submissions by a more lenient standard than 
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289, 
295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations 
omitted). The Second Circuit has stated that courts are obligated to "make reasonable allowances 
to protect pro se litigants" from inadvertently forfeiting legal rights merely "because of their lack 
of legal training." Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). 
B. The Petition and the R&R 
 Petitioner contends that he is entitled to federal habeas relief because (1) the trial court 
erred when it denied Petitioner's trial counsel's request for a missing witness charge; (2) 
Petitioner's Fourth Amendment rights were violated when he was subjected to an illegal 
search and seizure at his residence on December 20, 2017; (3) the trial court erred in allowing law 
enforcement officers to identify petitioner based on surveillance videos; and (4) one of the trial 
witnesses, who Petitioner later discovered was testifying for the prosecution pursuant to a 
cooperation agreement, lied under oath and told the jury that he was receiving no benefit in 
exchange for his testimony. See Dkt. No. 1 at 5-11. 
 Magistrate Judge Katz recommends denial and dismissal of the petition because all of 
Petitioner's habeas claims are unexhausted and procedurally defaulted, as he failed to assert them 
on direct appeal. See Dkt. No. 37 at 8-18. 
C. Exhaustion and Procedural Default 
 Magistrate Judge Katz first recommends that this Court find all four of Petitioner's claims 

 
 
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to be unexhausted because he failed to provide the state courts the opportunity to resolve the 
constitutional issues raised. See Dkt. No. 37 at 8-12. And, based upon a finding that the claims 
are unexhausted, Magistrate Judge Katz recommends that this Court find the claims to be 
procedurally defaulted. See id. at 12-14. 
 Petitioner does not object to a finding of failure to exhaust and procedural default. See 
Dkt. No. 40. Indeed, Petitioner explicitly concedes that his habeas claims are procedurally 
defaulted because he failed to raise them in the state courts. See id. at 1. As Petitioner does not 
object to this portion of the R&R, the Court will review it for clear error. 
 In recommending that this Court find Petitioner's claims are unexhausted and procedurally 
defaulted, Magistrate Judge Katz employed the proper standards, accurately recited the facts, and 
reasonably applied the law to those facts. See Dkt. No. 37 at 8-14. As the R&R explains, see id. 
at 8-10, prior to seeking federal habeas relief, a petitioner must exhaust available state remedies or 
establish either an absence of available state remedies or that such remedies cannot adequately 
protect his rights. See Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (citing 28 U.S.C. § 
2254(b)(1)). Magistrate Judge Katz explained further that "'[w]hen a "petitioner fail[s] to exhaust 
state remedies and the court to which the petitioner would be required to present his claims in 
order to meet the exhaustion requirement would now find the claims procedurally barred," the 
federal habeas court should consider the claim to be procedurally defaulted.'" Dkt. No. 37 at 12 
(quoting Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008)). 
 The Court agrees with Magistrate Judge Katz. All four claims in the petition are 
unexhausted and procedurally barred because: (1) all of the present claims are based on the record 
before the state courts; (2) none of these claims were included in Petitioner's direct appeal in the 
state courts; (3) Petitioner completed the one round of appellate review to which he was entitled; 

 
 
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and (4) Petitioner cannot exhaust his four claims through subsequent collateral attack because 
such post-judgment motions cannot serve as a substitute for a direct appeal. See id. at 13-14. 
The Court discerns no clear error in this portion of the R&R, especially in light of 
Petitioner's concessions. Accordingly, the Court adopts Magistrate Judge Katz's recommendation 
that this Court find Petitioner's claims procedurally defaulted. 
D. Cause and Prejudice or Actual Innocence 
 As Magistrate Judge Katz further explains, when a petitioner procedurally defaults on his 
federal habeas claims, the petition must be dismissed unless either the cause and prejudice 
exception or the actual innocence exception applies. See Dkt. No. 37 at 14. Petitioner contends 
that he did not raise his habeas claims on direct appeal because his counsel refused to do so. See 
Dkt. No. 40 at 2. Additionally, throughout his submissions, Petitioner argues that he is actually 
innocent and that his trial and appellate counsel failed to adequately investigate his claims of 
innocence.
1 See id.; Dkt. No. 30 at 4. 
"'Where a defendant has procedurally defaulted a claim by failing to raise it on direct 
review, the claim may be raised in habeas only if the defendant can first demonstrate either cause 
and actual prejudice, or that he is actually innocent.'" Clark, 510 F.3d at 393 (quoting Bousley v. 
United States, 523 U.S. 614, 622 (1998)); see Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012) 
(discussing actual innocence exception). 
Magistrate Judge Katz recommends that this Court find neither exception excuses 
Petitioner's procedural default. See Dkt. No. 37 at 14-18. In his objections to the R&R, Petitioner 
argues that the default should be excused because (1) it took three years for Petitioner to obtain a 
 
1 Petitioner does not bring a habeas claim for ineffective assistance of counsel. See generally 
Dkt. No. 1. His arguments regarding his counsels' performance are made in the context of 
whether an exception to Petitioner's procedural default is applicable. See generally Dkt. No. 40. 

 
 
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copy of the trial transcript; (2) Petitioner's personal copy of his file had been either lost during 
transfers between correctional facilities or destroyed by corrections officer; and (3) he is actually 
innocent and his trial counsel was ineffective for failing to adequately investigate his claims of 
innocence. See Dkt. No. 40 at 2-3. Petitioner's specific objections trigger de novo review of this 
portion of the R&R. 
1. Cause and Prejudice 
"Cause" exists if "the prisoner can show that some objective factor external to the defense 
impeded counsel's effort to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 
478, 488 (1986). "Prejudice exists if there is a 'reasonable probability' that the result of the 
proceeding would have been different absent the alleged constitutional violation." Walley v. 
Lamanna, No. 9:22-CV-0308, 2025 WL 2711567, *5 (N.D.N.Y. Apr. 2, 2025), R. & R. adopted, 
2025 WL 2710765 (N.D.N.Y. Sept. 23, 2025) (quoting Stickler v. Greene, 527 U.S. 263, 289 
(1999)). 
In certain circumstances, constitutionally ineffective assistance of counsel can establish 
"cause" sufficient to overcome procedural default. See Murray, 477 U.S. at 488 ("Ineffective 
assistance of counsel, then, is cause for a procedural default"). Generally, to prevail on an 
ineffective-assistance-of-counsel claim, a petitioner must show (1) that his counsel's performance 
fell below an objective standard of reasonableness and (2) that a reasonable probability exists that 
but for counsel's error, the result of the proceeding would have been different. Strickland v. 
Washington, 466 U.S. 668, 688, 694 (1984). However, ineffective assistance of counsel "must 'be 
presented to the state courts as an independent claim before it may be used to establish cause for a 
procedural default.'" Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (citation omitted). 

 
 
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Here, there is nothing in the record to indicate that Petitioner raised an ineffective 
assistance of counsel claim in state court. Therefore, after carefully engaging in de novo review, 
the Court agrees with Magistrate Judge Katz that Petitioner cannot excuse his default on the basis 
of alleged ineffective assistance of counsel. See Dkt. No. 37 at 15.2 
Additionally, Petitioner's arguments that it took three years to obtain a copy of the trial 
transcript and that Petitioner's personal copy of the file had been either lost or destroyed fail to 
establish cause for his default. Petitioner was expressly given the opportunity to "provid[e] the 
Court with information including any cause for his failure to exhaust any of his claims and what, 
if any, prejudice he has suffered." Dkt. No. 7 at 1. Petitioner submitted an affirmation regarding 
the exhaustion issue; however, Petitioner's affirmation contains no further argument regarding 
why he failed to raise his current claims in the state courts. See generally Dkt. No. 8. The first 
mention of the file-related arguments as an excuse for procedural default appears to be in 
Petitioner's objections to the R&R. See Dkt. No. 40. The Court need not consider Petitioner's 
arguments that were not raised before Magistrate Judge Katz. See Nambiar, 158 F.4th at 359; 
Bus. for a Better N.Y., 341 Fed. Appx. at 706. 
Nevertheless, even if the Court were to consider the file-related arguments, Petitioner has 
failed to show how his purported inability to access his file of the state court proceedings caused 
his failure to brief his current claims during his direct appeal. As Respondent correctly notes, 
 
2 The R&R states that "[i]n this case, [Petitioner] has not ever alleged that his counsel was 
ineffective." Dkt. No. 37 at 15. It is true that Petitioner does not use the term "ineffective 
assistance of counsel" in his filings. Throughout the petition, Petitioner alleges that his trial 
and/or appellate counsel failed to make certain arguments or "investigate" Petitioner's claims. 
Dkt. No. 1 at 5-10. However, all four of the claims presently before this Court take issue with 
trial court rulings, not necessarily the representation provided. See id. In any event, Petitioner 
concedes his procedural default and Magistrate Judge Katz correctly determined that Petitioner is 
unable to rely upon ineffective assistance to establish cause. 

 
 
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"Petitioner, who was represented by counsel on appeal, has not claimed that appellate counsel did 
not possess [P]etitioner's case file during the appeal." Dkt. No. 41 at 2. Moreover, it is clear from 
the record that Petitioner's trial court proceedings concluded in October 2018, see Dkt. No. 37 at 
6, and the Appellate Division did not issue its decision affirming Petitioner's conviction until 
April 22, 2022, see People v. Muhammad, 204 A.D.3d 1402 (2022). Thus, even if there was a 
delay in Petitioner's receipt of trial court transcripts, he ostensibly received them before his appeal 
was decided. Despite multiple opportunities to do so, Petitioner offers no information about how 
his inability to access his personal copy of the file at certain times impeded his ability to raise his 
present claims in state court. See generally Dkt. No. 40. 
For these reasons, the Court agrees that Petitioner has not demonstrated cause for his 
procedural default. Because Petitioner has not demonstrated cause, the Court need not reach the 
prejudice prong. See Rosario v. Colvin, No. 9:18-CV-0988, 2020 WL 360882, *4 (N.D.N.Y. Jan. 
22, 2020) ("If a petitioner fails to establish cause, a court need not decide whether he suffered 
actual prejudice, because federal habeas relief is generally unavailable as to procedurally 
defaulted claims unless both cause and prejudice are demonstrated") (citing Murray, 477 U.S. at 
496) (additional citation omitted). 
 2. Actual Innocence 
 The actual innocence exception is often referred to as the fundamental miscarriage of 
justice exception. See Rivas, 687 F.3d at 540. "'[T]he miscarriage of justice exception is 
concerned with actual as compared to legal innocence.'" Calderon v. Thompson, 523 U.S. 538, 
559 (1998) (citation omitted). "[A]ctual innocence means factual innocence, not mere legal 
insufficiency." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United 
States, 523 U.S. 614, 623 (1998)) (internal quotation marks omitted). A petitioner must 

 
 
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demonstrate, by clear and convincing evidence, that he is actually innocent, and must support his 
claims "with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy 
eyewitness accounts, or critical physical evidence—that was not presented at trial. " Schlup v. 
Delo, 513 U.S. 298, 323-24 (1995) (holding that the "clear and convincing" standard applies to a 
miscarriage of justice inquiry, unless a petitioner "who has been sentenced to death raises a claim 
of actual innocence to avoid a procedural bar to the consideration of the merits of his 
constitutional claims[,]" in which case a less stringent standard applies). In addition, a petitioner 
"asserting innocence as a gateway to defaulted claims must establish that, in light of new 
evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty 
beyond a reasonable doubt.'" House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 
U.S. at 327). 
 In recommending that the Court reject Petitioner's actual innocence argument, Magistrate 
Judge Katz observes that Petitioner fails to point to any new evidence that would tend to 
exculpate him. See Dkt. No. 37 at 17. And, in his objections, Petitioner again fails to present any 
new evidence. See Dkt. No. 40 at 1-3. Throughout his submissions, Petitioner merely challenges 
the strength of the evidence presented at trial and argues, without substantiation, that prosecution 
witnesses lied under oath. See id.; see also Dkt. No. 30 at 6-7. Petitioner's showing falls short of 
the high burden placed upon a petitioner invoking the actual innocence exception to avoid a 
procedural bar to the consideration of the merits of his constitutional claims. 
 Accordingly, upon conducting the requisite de novo review, the Court adopts Magistrate 
Judge Katz's recommendation that Petitioner has failed to sufficiently allege a miscarriage of 
justice that would excuse his procedural default. See Dkt. No. 37 at 16-18. 
E. Certificate of Appealability 

 
 
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Magistrate Judge Katz recommends that no certificate of appealability be issued by this 
Court. See Dkt. No. 37 at 18 n.5. Petitioner objects, contending that a certificate of appealability 
should be issued because he has made a "substantial showing of [the] denial of [a] constitutional 
right" as required by 28 U.S.C. § 2253(c)(2). Dkt. No. 40 at 3. Petitioner's objection to this 
portion of the R&R triggers de novo review. 
"To be appealable, a district court's denial of a § 2254 habeas petition must be 
accompanied by a certificate of appealability from either the district court or a circuit judge or 
justice." Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (citing 28 U.S.C. § 2253(c)) 
(additional citation omitted). As here, "[w]here . . . the denial of the habeas petition is based upon 
procedural grounds, the certificate of appealability must show that jurists of reason would find 
debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the 
applicant has established a valid constitutional violation." Id. (citing Slack v. McDaniel, 529 U.S. 
473, 478 (2000)) (emphasis in original). "Where a plain procedural bar is present and the district 
court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either 
that the district court erred in dismissing the petition or that the petitioner should be allowed to 
proceed further." Slack, 529 U.S. at 484. "In such a circumstance, no appeal would be 
warranted." Id. 
For the reasons above, after careful consideration, the Court agrees with Magistrate Judge 
Katz that Petitioner's claims are procedurally barred. See Dkt. No. 37 at 18. Accordingly, the 
Court declines to issue a Certificate of Appealability in this matter. 
IV. CONCLUSION 
 After carefully reviewing the R&R, the parties' filings, the entire record in this matter, and 
the applicable law, the Court hereby 

 
 
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 ORDERS that the R&R (Dkt. No. 37) is ADOPTED in its entirety; and the Court further 
 ORDERS that Plaintiff's Petition for Writ of Habeas Corpus (Dkt. No. 1) is DENIED and 
DISMISSED; and the Court further 
ORDERS that no Certificate of Appealability shall be issued in this case; and the Court 
further 
ORDERS that the Clerk of the Court shall enter judgment in favor of Respondent and 
close this case; and the Court further 
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision 
and Order on the parties in accordance with the Local Rules. 
IT IS SO ORDERED. 
Dated: June 4, 2026 
 Albany, New York 

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