Lovick v. Martuscello

Filing 12

ORDER. Lovick's petition is denied. I decline to issue a certificate of appealability. Ordered by Judge Edward R. Korman on 3/30/2018. (Ward, Andrew)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

TYRON LOVICK,
Petitioner,
– against –

MEMORANDUM & ORDER

SUPERINTENDENT D. MARTUSCELLO,

16-CV-6871 (ERK)

Respondent.

KORMAN, J.:
In a pro se habeas petition, Tyron Lovick raises two arguments against his New York state
guilty plea to first-degree robbery and first-degree assault. These arguments fail for several
reasons.
Lovick’s first argument is that his guilty plea to first-degree assault is invalid because he
never allocated to one of the elements of the crime: “intent to cause serious physical injury to
another person.” N.Y. Penal Law § 120.10(1). This argument is procedurally barred. Lovick never
attempted to withdraw or otherwise challenge his plea because of the purported problem, and, for
that reason, the last state court to issue a reasoned decision, the Appellate Division, Second
Department, found the argument “unpreserved for appellate review.” People v. Lovick, 127 A.D.3d
1108, 1109 (2d Dep’t 2015), leave to appeal denied, 26 N.Y.3d 1146 (2016). This is an
“independent and adequate state ground” for me to reject Lovick’s argument. Whitley v. Ercole,
642 F.3d 278, 285 (2d Cir. 2011).
But even if I reached the merits, as the Second Department did in the alternative, the claim
would fail. The heart of Lovick’s argument is that during allocution he denied intending to cause
serious physical injury to the assault victim, a man whom Lovick had shot during the robbery.

True, when asked whether he intended to seriously injure the victim, Lovick said “No, but it
happened accidentally.” Tr. of Plea Hr’g at 8–9, People v. Lovick, 4037/12 (N.Y. Sup. Ct. May 29,
2013) available here at Dkt. 6, Ex. A. But the colloquy continued and established that Lovick had
intended to shoot:
THE COURT:

So how did that happen accidentally?

THE DEFENDANT:

Because I was just trying to get away when I [robbed the
victim’s daughter], and then he had grabbed me. It was a whole
tussle getting away.

THE COURT:

It’s his fault that you shot him?

THE DEFENDANT:

No, it’s my fault.

THE COURT:

So you intended to shoot him, is that right, in order to get away?

THE DEFENDANT:

Yeah, but—

THE COURT:

But what? Did you intended to shoot him?

THE DEFENDANT:

Yeah.

Id. at 9. This follow-up established that there was no error, let alone error contrary to clearly
established federal law, see 28 U.S.C. § 2254(d)(1). As the Second Department correctly
determined, Lovick intended to shoot his victim, and an intent to seriously injure is readily
inferable. Oyague v. Artuz, 393 F.3d 99, 106–07 (2d Cir. 2004) (on habeas, finding sufficient a
plea to first-degree assault because intent was “readily inferable” from the defendant shooting a
victim (quoting People v. McGowen, 42 N.Y.2d 905, 906 (1977)). Moreover, the trial judge’s
interrogation as to intent supports the presumption that Lovick was advised that intent was an
element of first-degree assault. See Marshall v. Lonberger, 459 U.S. 422, 436–38 (1983); Oppel
v. Meachum, 851 F.2d 34, 38 (2d Cir. 1988) (per curiam).

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Second, Lovick argues as to both crimes that he did not knowingly and intelligently waive
his right to appeal—presumably his right to appeal his sentence. This argument fails because
habeas relief requires a violation of “clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), and “the Supreme Court has never addressed
the requirements of a valid waiver to appeal a sentence,” Veliz v. Griffin, 17-CV-824 (BMC), 2017
WL 836560, at *3 (E.D.N.Y. Mar. 2, 2017). Moreover, it is clear from the plea discussion that
Lovick did knowingly and intelligently waive his right to appeal. 1 He would also fail on the

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THE COURT:

Mr. Lovick, I hold here in my hand what we call a waiver
of a right to appeal. Is this your signature here?

THE DEFENDANT:

Yes.

THE COURT:

Now, did you sign this document here in open court?

THE DEFENDANT:

Yes.

THE COURT:

And before you signed it, did you have enough time to
talk to your lawyer about it?

[COUNSEL]:

Let me just say one thing with him, please.

THE COURT:

Absolutely. Take your time. Let the record reflect that
the defendant and defense counsel are having a
conversation.

[COUNSEL]:

All right.

THE COURT:

So did you have enough time to talk to your lawyer about
it before you signed it?

THE DEFENDANT:

Yes.

THE COURT:

Just now?

THE DEFENDANT:

Yes.

THE COURT:

Do you have any other questions you would like to ask
him?

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ultimate issue, whether his sentence was excessive. “No federal constitutional issue is presented
where, as here, the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d
1381, 1383 (2d Cir. 1992) (per curiam).
To the extent Lovick also argues—in passing, without citation—that his counsel was
ineffective for not explaining the appeal waiver sooner, the issue was not raised in state court,
see 28 U.S.C. § 2254(b)(1)(A), and there was no prejudice because Lovick received an adequate
explanation at the plea colloquy, e.g., Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992);
Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999).

THE DEFENDANT:

No.

THE COURT:

Do you understand that by signing this document you are
giving up your right to appeal any issue that may arise
from this case including sentencing; do you understand
that?

THE DEFENDANT:

Yes.

THE COURT:

Do you also understand, Mr. Lovick, that a waiver of a
right to appeal is not a legal requirement of every guilty
plea but part of the negotiations of this plea; do you
understand that?

THE DEFENDANT:

Yes.

THE COURT:

Also, Mr. Lovick, had you not signed this document, and
had you wanted to appeal and you didn’t have the money
for a lawyer, a lawyer would have been appointed to
assist you; do you understand that?

THE DEFENDANT:

Yes.

THE COURT:

I find the defendant made a knowing and voluntary waiver of his
right to appeal, therefore, I’ll execute this document.

Plea Tr. at 10–12.
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Lovick’s petition for a writ of habeas corpus is DENIED. Because Lovick has not made a
substantial showing of the denial of a federal constitutional right, I decline to issue a certificate of
appealability. 28 U.S.C. § 2253(c)(2).
SO ORDERED.

Edward R. Korman

Brooklyn, New York
March 30, 2018

Edward R. Korman
United States District Judge

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