Cummins v. Lee, 1:10-cv-01026

Background

Victim Alonzo Mack was fatally shot in a Brooklyn apartment on April 2, 2003; 14‑year‑old Brenda Jones testified she opened the door to a masked man and later identified petitioner Glen Cummins by body build and voice.
Abdul Mohammed (cooperating witness) testified Cummins was a Crips member who had said he would "187" (kill) Mack, later showed a .40 handgun, and made post‑shooting statements implying he had done the killing.
Defense cross‑examination elicited parts of Jones’s and Mohammed’s testimony; the People then called Detective Phillip O’Rourke as a gang‑language expert over defense objection.
A jury convicted Cummins of second‑degree murder, first‑degree burglary, and third‑degree witness tampering; sentencing yielded 25 years‑to‑life plus concurrent and consecutive terms.
On direct appeal Cummins argued ineffective assistance (for eliciting testimony and opening the door to the expert), prosecutorial misconduct, improper jury charge, and insufficient evidence; the Appellate Division affirmed, finding counsel’s representation meaningful and many claims unpreserved.
Cummins filed a §2254 habeas petition raising the same claims; the district court denied habeas relief, holding ineffective‑assistance claims meritless and remaining claims procedurally barred; certificate of appealability denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel opened the door to O’Rourke’s gang‑expert testimony and thus rendered ineffective assistance	Cummins: Cross‑examination of Mohammed implicitly credited him and opened the door to prejudicial gang‑expert testimony	People/Appellate Division: Expert was admissible based on direct testimony and overall record; trial court properly exercised discretion	Denied on the merits — counsel’s strategy reasonable; expert testimony was cumulative and trial charge limited prejudice
Whether counsel elicited damaging facts from Jones and Mohammed and was ineffective	Cummins: Defense elicited inculpatory details (physical build, voice ID, threats) that prejudiced him	People: Cross‑examination tactics were reasonable impeachment efforts and within trial strategy	Denied on the merits — tactical choices fell within reasonable professional assistance
Whether prosecution committed misconduct (eliciting fear testimony; improper summation)	Cummins: Prosecutor elicited and emphasized Jones’s fear and made improper remarks in summation	People: Remarks were fair responses to defense summation or fair comment on evidence	Procedurally barred on habeas — unpreserved in state court; Appellate Division found objections lacking or insufficient
Whether jury charge and sufficiency of evidence for witness‑tampering were defective	Cummins: Jury charge inadequate and evidence insufficient for tampering conviction	People: Claims were unpreserved; charge and evidence were proper	Procedurally barred on habeas — unpreserved; no cause/actual prejudice or miscarriage of justice shown

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA standard: "clearly established Federal law" means Supreme Court holdings)
Harrington v. Richter, 562 U.S. 86 (2011) (deference to state court adjudications of ineffective assistance claims)
Johnson v. Williams, 568 U.S. 289 (2013) (clarifying §2254 review standards)
Coleman v. Thompson, 501 U.S. 722 (1991) (procedural default doctrine and excuse standards)
Dunham v. Travis, 313 F.3d 724 (2d Cir. 2002) (strategic cross‑examination choices ordinarily do not support IAC claims)
United States v. Nersesian, 824 F.2d 1294 (2d Cir. 1987) (deference to counsel’s strategic decisions in cross‑examination)
Whitley v. Ercole, 642 F.3d 278 (2d Cir. 2011) (New York contemporaneous‑objection rule is an adequate state ground)
Frady v. United States, 456 U.S. 152 (1982) (instructions must be read in context of overall charge)