Edwards v. Napoli

Filing 10

MEMORANDUM AND OPINION. For the reasons set forth in detail in the attached Memorandum and Order, IT IS HEREBY ORDERED that the petition for a writ of habeas corpus is denied in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/16/2011. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________

No 09-CV-103 (JFB)
_____________________

FELIX EDWARDS,
Petitioner,
VERSUS

D.F. NAPOLI, SUPERINTENDENT,
Respondent.
___________________
MEMORANDUM AND ORDER
December 16, 2011
___________________

concurrently, with a period of five years’
post-release supervision.1

JOSEPH F. BIANCO, District Judge:
Felix Edwards (hereinafter “petitioner”
or “Edwards”) petitions this Court for a writ
of habeas corpus, pursuant to 28 U.S.C. §
2254, challenging his conviction in state
court. Petitioner pled guilty to attempted
murder in the second degree (N.Y. Penal
Law § 125.25, as modified by Penal Law
§110.00); assault in the first degree (N.Y.
Penal Law § 120.10(1)); assault in the
second degree (N.Y. Penal Law §
120.05(2)); criminal possession of a weapon
in the third degree (N.Y. Penal Law §
265.02(1)); and bigamy (N.Y. Penal Law §
255.15). Petitioner was sentenced to eight
and one-half years on the attempted murder
in the second degree and the assault in the
first degree counts and one year on each of
the remaining counts, to be served

In the instant habeas petition, petitioner
challenges his conviction, claiming his
constitutional rights were violated because:
(1) his guilty plea was not voluntary,
knowing, or intelligent; (2) he was denied
effective assistance of trial counsel; and (3)
the sentence imposed was disproportionate
to the offense. (Pet. at 5-6.) For the reasons

1

The Court notes that Edwards’ petition states that he
was sentenced to a determinate sentence of eight and
one-half years on the attempted murder in the first
degree charge. (Pet. at 1.) However, the transcript
dated March 17, 2005 clearly indicates that petitioner
pled guilty to attempted murder in the second degree.
(March 17, 2005 Transcript (“Plea Tr.”) at 14.)
Moreover, on April 28, 2005, the court sentenced
petitioner to eight and one half years based upon
petitioner’s guilty plea of attempted murder in the
second degree. (April 28, 2005 Transcript (“S. Tr.”)
at 4.)

1

when petitioner was first asked whether he
was trying to kill Morris when he stabbed
her, the petitioner responded, “[N]o, sir.”
(Id. at 10-11.) As a follow-up question, the
defendant was asked, “You were not trying
to kill her?” and he responded “Yes, sir.”
(Id. at 11.) In an effort to clarify the
petitioner’s response, he was asked “Okay.
So I mean, having said ‘no’ then ‘yes’, you
did want to kill her at that time?” (Id.) In
response, petitioner clearly responded “Yes,
sir.” (Id.) Petitioner also acknowledged that
he had been previously convicted of a
misdemeanor. (Id. at 11-12.) Finally,
petitioner confirmed that he was married to
the victim on February 17, 1999, while he
was legally married to Diana Calender. (Id.
12-13.)

discussed below, petitioner’s request for a
writ of habeas corpus is denied in its
entirety.
I.

BACKGROUND AND PROCEDURAL
HISTORY
A.

Background

The following facts are adduced from
the instant petition and underlying record.
On March 17, 2005, petitioner pled
guilty to attempted murder in the second
degree (N.Y. Penal Law § 125.25, as
modified by Penal Law §110.00); assault in
the first degree (N.Y Penal Law §
120.10(1)); assault in the second degree
(N.Y. Penal Law § 120.05(2)); criminal
possession of a weapon in the third degree
(N.Y. Penal Law § 265.02(1)); and bigamy
(N.Y. Penal Law § 255.15). (Plea Tr. at 14.)
Before entering his plea, Edwards was fully
advised of the nature of the charges against
him and of the rights he was waiving by
entering a guilty plea, including the right to
appeal. (Id. at 5-7.) Furthermore, he denied
that he was subjected to any coercion. (Id. at
9.) He also indicated that no promises had
been made to him other than those stated in
open court in his presence. (Id.) Edwards
also stated that he was entering the plea of
his own free will. (Id.) At the outset of the
plea proceeding, petitioner stated under oath
that he had discussed the plea with counsel.
(Id. at 4-5.) Additionally, petitioner stated
that he was pleading guilty because he was
in fact guilty. (Id. at 9.)

On April 28, 2005, petitioner was
sentenced to determinate sentences of eight
and one-half years on the attempted murder
in the second degree count and on the
assault in the first degree count, with a
period of five years post-release supervision.
(S. Tr. at 4.)
Further, petitioner was
sentenced
to
one-year
terms
of
imprisonment for each of the remaining
counts, with all sentences to run
concurrently. (Id. at 4.)
B.

Petitioner moved the Supreme Court,
Appellate Division, Second Judicial
Department, to modify his sentence on the
ground that his sentence was excessive.2

2

Petitioner failed to submit his motion to the
Supreme Court of the State of New York, Appellate
Division, Second Department, seeking a modification
of his sentence. Respondent alleges that petitioner
moved on September 27, 2006 and “[p]redicated his
application, in part, on his enrollment and
participation in programs while incarcerated.”
(Return ¶ 7.) However, Edwards’ petition indicates
that the ground he raised on appeal to the Second
Judicial was “the sentence imposed was

During his plea, petitioner admitted that
on August 15, 2004, he was with his wife,
Shontay Morris (“Morris”), at 179 Sycamore
Avenue in Islandia, Suffolk County, New
York. (Id. at 10.) Petitioner then allocuted
that he stabbed Morris in the throat twice
with a pocketknife. (Id.) At the hearing,

Procedural History

2

(Pet. Appendix 1.) On December 19, 2006,
the Supreme Court of the State of New
York,
Appellate
Division,
Second
Department, denied petitioner’s request.
(Id.)

proceedings. See Letter dated June 28,
2007, Edwards v. Ekpe, No. 07-CV-1414
(JFB) (E.D.N.Y. July 2, 2007), ECF No. 10.
By Order dated July 5, 2007, this Court
granted petitioner’s request for a thirty (30)
day extension to commence his state court
proceedings. See Order dated July 5, 2007,
Edwards v. Ekpe, No. 07-CV-1414 (JFB)
(E.D.N.Y. July 5, 2007), ECF No. 11. By
letter dated August 17, 2007, petitioner
requested that this Court permit him to
withdraw his petition, without prejudice to
replead, in order to secure certain
documents. See Letter dated August 17,
2007, Edwards v. Ekpe, No. 07-CV-1414
(JFB) (E.D.N.Y. Aug. 17, 2007), ECF No.
13. By Order dated August 21, 2007, this
Court granted petitioner’s request and
dismissed the petition without prejudice.
See Order dated August 21, 2007, Edwards
v. Ekpe, No. 07-CV-1414 (JFB) (E.D.N.Y.
Aug. 21, 2007), ECF No. 14; Pet. at A3.

Petitioner applied for leave to appeal to
the New York State Court of Appeals, but
his application was denied because the Court
of Appeals determined that “[t]here is no
question of law presented which ought to be
reviewed by the Court of Appeals….” (Pet.
at A2.)
On March 28, 2007, petitioner filed his
first application for a writ of habeas corpus
with this Court. See Petition, Edwards v.
Ekpe, No. 07-cv-1414(JFB) (E.D.N.Y. Mar.
28, 2007), ECF No. 3. By letter dated May
20, 2007, petitioner asked this court to stay
his action so that he could exhaust his state
law claims. See Letter dated May 20, 2007,
Edwards v. Ekpe, No. 07-cv-1414(JFB)
(E.D.N.Y. May 23, 2007), ECF No. 6. By
Order dated June 6, 2007, this Court granted
petitioner’s stay and directed him to
commence his state court proceedings
within thirty (30) days and to file an
amended petition within twenty (20) days of
exhausting his state law claims. See Order
June 6, 2007, Edwards v. Ekpe, No. 07-CV1414 (JFB) (E.D.N.Y. Jun. 6, 2007), ECF
No. 8. By letter dated June 28, 2007,
petitioner asked this court for an extension
of time to commence his state court

On or about February 15, 2008,
petitioner filed a motion pursuant to N.Y.
Crim. Proc. Law § 440.10 for an order
vacating his judgment of conviction
claiming that his plea was “unknowing and
unintelligent” because petitioner had no
intent to kill the victim; and that petitioner
received ineffective representation of
counsel. (Pet. at 3; Pet CPL §440.10
Motion) Respondent filed an affidavit in
opposition arguing that: (1) petitioner was
procedurally barred from presenting these
meritless arguments to the court since these
claims rely solely and wholly on the record
for their support; (2) petitioner neglected to
raise these claims in his appeal; and (3) that
his claims lack merit and were belied by the
record. (Return at ¶ 16.)

disproportionate to the offense in violation of the
Eighth Amendment of the Constitution of the United
States, was Harsh and Excessive and should be
modified in the interest of justice.” (Pet. at 2.)
Additionally, the Second Department’s decision only
addressed the excessive sentence claim. (Id. at A1.)
The court stated “Appeal by defendant, as limited by
his motion, from a sentence of the county Courts,
Suffolk County (Gazzillo, J.) imposed April 28,
2005, on the ground that the sentence is excessive.
ORDERED that the sentence is affirmed. No
opinion.” (Id.)

On June 19, 2008, in a written decision,
the County Court of Suffolk denied
petitioner’s motion to vacate in its entirety.
(Pet. at A4.) In its decision, the court noted

3

Penalty Act (“AEDPA”), which provides, in
relevant part:

that none of the issues raised by the
defendant were proper because a motion
pursuant to CPL § 440.10 “[i]s not to be
used as a vehicle for a second appeal or as a
substitute for direct appeal.”
(Id.)
Moreover, the court found that petitioner
“knowingly, voluntarily and intelligently”
entered his guilty plea. (Id.) The Court also
found that “[d]efendant failed to show that
his sentence is ‘unauthorized, illegally
imposed or otherwise invalid as a matter of
law.’” (Id.)

(d) 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 of, clearly
established
Federal
law,
as
determined by the Supreme Court of
the United States; or

On December 12, 2008, the Supreme
Court of the State of New York, Appellate
Division, Second Department, denied
petitioner’s application for leave to appeal
the Suffolk County Court’s June 18, 2008
decision. (Id. at A5.) Petitioner never
sought leave to the New York State Court of
Appeals. (Id. at 4.)
C.

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

The Instant Petition

28 U.S.C. § 2554. “Clearly established
Federal law” is compromised of “the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of
the relevant state-court decision.” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).

On January 7, 2009, petitioner moved
before this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, on the
grounds that his guilty plea was unknowing
and unintelligent; his trial counsel was
ineffective for advising him to plead guilty;
and
the
sentence
imposed
was
disproportionate to the offense in violation
of the Eighth Amendment. (Pet. at 9.)
Respondent filed a memorandum of law
opposing the petitioner application on or
about February 19, 2009. The Court has
fully considered all submissions of the
parties.
II.

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 federal law if a state court
“identifies the correct governing legal
principles from [the Supreme Court’s]

STANDARD OF REVIEW

To determine whether petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standard of review set
forth in 28 U.S.C. § 2254, as amended by
the Antiterrorism and Effective Death

4

the highest state court having jurisdiction
over them. See Daye v. Attorney Gen. of
N.Y., 696 F.2d 186, 191 n.3 (2d Cir. 1982)
(en banc). Exhaustion of state remedies
requires that a petitioner “fairly presen[t]
federal claims to the state courts in order to
give the State the opportunity to pass upon
and correct alleged violations of its
prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995) (quoting Picard v.
Connor, 404 U.S. 270, 275 (1971)
(quotation marks omitted) (alteration in
original)).

decisions but unreasonably applies that
principle to the facts of [a] prisoner’s case.”
Id.
AEDPA establishes a deferential
standard of review: “a federal habeas court
may not issue the writ simply because the
court concludes in its independent judgment
that the relevant state-court decisions
applied clearly established federal law
erroneously or incorrectly. Rather, that
application
must
be
unreasonable.”
Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d
Cir. 2001) (quoting Williams, 529 U.S. at
411). The Second Circuit added that, while
“[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.”
Id. (quoting Francis S. v. Stone, 221 F.3d
100, 111 (2d Cir. 2000)). Finally, “if the
federal claim was not adjudicated on the
merits, ‘AEDPA deference is not required,
and conclusions of law and mixed feelings
of fact and conclusions of law are reviewed
de novo.’” Dolphy v. Mantello, 552 F.3d
236, 238 (2d Cir. 2009) (quoting Spears v.
Greiner, 459 F. 3d 200, 203 (2d Cir. 2006)).
III.
A.
1.

However, “it is not sufficient merely that
the federal habeas applicant has been
through the state courts.” Picard, 404 U.S.
at 275-76. On the contrary, to provide the
State with the necessary “opportunity,” the
prisoner must “fairly present” his claims in
each appropriate state court (including a
state supreme court with powers of
discretionary review), alerting that court to
the federal nature of the claim and “giv[ing]
the state courts one full opportunity to
resolve any constitutional issues by invoking
one complete round of the State’s
established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see also Duncan, 513 U.S. at 36566. “A petitioner has ‘fairly presented’ his
claim only if he has ‘informed the state court
of both the factual and legal premises of the
claim he asserts in federal court.’” Jones v.
Keane, 329 F.3d 290, 294-95 (2d Cir. 2003)
(quoting Dorsey v. Kelly, 112 F.3d 50, 52
(2d Cir. 1997)). “Specifically, [petitioner]
must have set forth in state court all of the
essential factual allegations asserted in his
federal petition; if material factual allegation
were omitted, the state court has not had a
fair opportunity to rule on the claim.” Daye,
696 F.2d at 191-92 (citing Picard, 404 U.S.
at 276; United States ex rel. Cleveland v.
Casscles, 479 F.2d 15, 19-20 (2d Cir.
1973)). To that end, “[t]he chief purposes of

DISCUSSION
Procedural Bar
Failure to Exhaust

As a threshold matter, a district court
shall not review a habeas petition unless
“the applicant has exhausted the remedies
available in the courts of the state.” 28
U.S.C. § 2254(b)(1)(A). Although a state
prisoner need not petition for certiorari to
the United States Supreme Court to exhaust
his claims, see Lawrence v. Florida, 549
U.S. 327, 333 (2007), petitioner must fairly
present his federal constitutional claims to

5

those claims in a federal habeas
proceedings.” Woodford v. Ngo, 548 U.S.
81, 93 (2006) (citing Gray v. Netherland,
518 U.S. 152, 162 (1996); Coleman, 501
U.S. at 744-51). “[T]he procedural bar that
gives rise to exhaustion provides an
independent and adequate state-law ground
for the conviction and sentence, and thus
prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the
default.” Netherland, 518 U.S. at 162
(citations omitted).

the exhaustion doctrine would be frustrated
if the federal habeas court were to rule on a
claim whose fundamental legal basis was
substantially different from that asserted in
state court.” Id. at 192 (footnote omitted).
2.

State Procedural Requirements

Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural
requirements deprives the state courts of an
opportunity to address the federal
constitutional or statutory issues in a
petitioner’s claim. Coleman v. Thompson,
501 U.S. 722, 731-32 (1991). “[A] claim is
procedurally defaulted for the purposes of
federal habeas review where ‘the petitioner
failed 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.’” Reyes
v. Keane, 118 F.3d 136, 140 (2d Cir. 1997)
(quoting Coleman, 501 U.S. at 735)
(additional citations and emphasis omitted).
Where the petitioner “can no longer obtain
state-court review of his present claims on
account of his procedural default, those
claims are . . . to be deemed exhausted.”
DiGuglielmo v. Smith, 366 F.3d 130, 135
(2d Cir. 2004) (citing Harris v. Reed, 489
U.S. 255, 263 n. 9 (1989); Grey v. Hoke,
933 F.2d 117, 120 (2d Cir. 1991)).
Therefore, for exhaustion purposes, “a
federal habeas 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.” Keane, 118
F.3d at 139 (quoting Hoke, 933 F.2d at 120).

The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect that state
judgments must be accorded. See House v.
Bell, 547 U.S. 518, 536 (2006). Petitioner’s
federal claims also may be procedurally
barred from habeas corpus review if they
were decided at the state level on adequate
and independent grounds. See Coleman,
501 U.S. at 729-33. The purpose of this rule
is to maintain the delicate balance of
federalism by retaining a state’s rights to
enforce its laws and to maintain its judicial
procedures as it sees fit. Id. at 730-31.
Once it is determined that a claim is
procedurally barred under state rules, a
federal court may still review such a claim
on its merits if the petitioner can
demonstrate both cause for the default and
prejudice results therefrom, or if he can
demonstrate that the failure to consider the
claim will result in a miscarriage of justice.
Id. at 750 (citations omitted). A miscarriage
of justice is demonstrated in extraordinary
cases, such as where a constitutional
violation results in the conviction of an
individual who is actually innocent. Murray
v. Carrier, 477 U.S. 478, 496 (1986).

However, “exhaustion in this sense does
not automatically entitle the habeas
petitioner to litigate his or her claims in
federal court. Instead if the petitioner
procedurally defaulted on those claims, the
prisoner generally is barred from asserting

6

3.

Application

To overcome a procedural bar, petitioner
must “demonstrate cause for the default and
actual prejudice as a result of the alleged
violation of federal law, or demonstrate that
failure to consider the claims will result in a
fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. However,
petitioner has failed to meet his burden.
Petitioner has not provided any explanation
for his failure to properly exhaust all of his
claims in state court.

As a threshold matter, respondent argues
that petitioner’s claims that his trial counsel
was ineffective and that his guilty plea was
unknowing
and
unintelligent
are
procedurally barred from habeas review by
the Court. The Court agrees.
Edward’s petition indicates that the only
ground he raised on his appeal to the
Supreme Court, Appellate Division, Second
Department, was that “the sentence imposed
was disproportionate to the offense in
violation of the Eighth Amendment of the
Constitution of the United States, was harsh
and excessive and should be modified in the
interest of justice.” (Pet. at 2.) Furthermore,
the Second Department clearly indicated
that the only ground raised by petitioner was
that his sentence was excessive. (Pet. at
A1.) Thus, the petitioner’s claims that his
trial counsel was ineffective and that his
plea was unknowing and unintelligent were
not properly raised on appeal, and therefore,
were not fairly presented to “[t]he state
courts in order to give the State the
opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.”
Duncan, 513 U.S. at 365 (quoting Picard,
404 U.S. at 275. Accordingly, the claims
were not properly exhausted and cannot be
considered by this Court.3

Thus, because petitioner has not
provided a satisfactory explanation for his
failure to properly exhaust these claims in
state court, and because petitioner has
demonstrated neither prejudice resulting
from the default nor a miscarriage of justice,
the instance petition is procedurally barred
from review by this Court. In any event,
assuming arguendo that this claim is
reviewable, it is without merit, as set forth
infra.
B.
1.

Validity of Guilty Plea

Although petitioner’s claim that his
guilty plea is invalid is procedurally barred,
the Court finds that, assuming arguendo that
petitioner’s claim was properly before this
Court, the claim is without merit.

The well-established standard for
determining the validity of a guilty plea is
“whether the plea represents a voluntary and
intelligent choice among the alternative
courses of action open to the defendant.”
Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting North Carolina v. Alford, 400 U.S.

3

It should be noted that the petitioner attempted to
correct his procedural default by raising the issues of
ineffective assistance of counsel and his unintelligent
and unknowing guilty plea by moving pursuant to
N.Y. Crim. Proc. Law § 440.10 for an order vacating
his judgment. (Pet. at A4.) However, the County
Court, Suffolk County, properly denied defendant’s
motion because a motion to vacate a judgment “[i]s
not to be used as a vehicle for a second appeal or as a
substitute for a direct appeal.” (Pet. at A4.) Petitioner
sought leave of the Supreme Court of the State of
New York, Appellate Division, Second Department,
to appeal the decision of the County Court but his
application was denied. (Pet. at A5.) However,
petitioner did not appeal to the highest state court.

The Merits

(Pet. at 4.) Thus, the claim is still not properly
exhausted and also is procedurally barred because it
was denied on an adequate and independent state
procedural rule.

7

and it is considered ‘voluntary’ if it is not
the product of actual or threatened physical
harm, mental coercion overbearing the
defendant’s will, or the defendant’s sheer
inability to weigh his options rationally.’”
Manzullo v. People of New York, No. 07 CV
744(SJF), 2010 WL 1292302, at *5
(E.D.N.Y. Mar. 29, 2010) (quoting Miller v.
Angliker, 848 F.2d 1312, 1320 (2d Cir.
1988)). Indeed, a “‘plea of guilty entered by
one fully aware of the direct consequences’
of the plea is voluntary in a constitutional
sense ‘unless induced by threats,
misrepresentations, or perhaps by promises
that are by their nature improper.’” Morales
v. United States, No. 08 Civ. 3901, 2009
WL 3353064, at *5 (S.D.N.Y. Oct. 20,
2009) (quoting Bousley, 523 U.S. at 619
(internal quotations omitted)).

25, 31 (1970)). Where a defendant is
represented by counsel at the plea, and
enters the plea upon the advice of counsel,
the voluntariness of the plea depends upon
whether counsel’s advice was within the
range of competence demanded of attorneys
in criminal cases. Id. (citations omitted).
As will be discussed in more detail infra, the
Court determines that trial counsel’s advice
was well within the range of competence
demanded by attorneys in criminal cases.
Moreover, the Court proceeds to examine
the entire circumstances of petitioner’s
guilty plea, and concludes that petitioner’s
guilty plea was done knowingly,
intelligently, and voluntarily.
The Supreme Court has held that, under
the Due Process Clause of the United States
Constitution, a trial court can only accept a
guilty plea which is “done voluntarily,
knowingly, and intelligently, with sufficient
awareness of relevant circumstances and
likely consequences.” United States v.
Adams, 448 F.3d 492, 497 (2d Cir. 2006)
(quoting Bradshaw v. Stumpf, 545 U.S. 175,
183 (2005)); accord Godinez v. Moran, 509
U.S. 389, 400 (1993). Normally, a guilty
plea may not be collaterally attacked, since
it constitutes an admission to all elements of
the charged crime. Salas v. United States,
139 F.3d 322, 324 (2d Cir. 1998). However,
a defendant may challenge a guilty plea on
the grounds that it was not knowing and
voluntary. United States v. Simmons, 164
F.3d 76, 79 (2d Cir. 1998). A conviction
which is based upon an involuntary plea of
guilty is inconsistent with due process of
law and is subject to collateral attack by
federal habeas corpus.
McMann v.
Richardson, 397 U.S. 759, 772 (1970).

Petitioner claims that his plea was
involuntary and unintelligent because he
agreed to it after denying an intrinsic
element of the crime of attempted murder.
(Pet. at 5.) Petitioner argues that he did not
know the charge required a specific element
of intent and that the lack of intent is a
potential defense to the charge of attempted
murder. (Id.) However, the Court finds that
there is nothing to support Edwards’s
assertion that his plea was not knowing,
intelligent, and voluntary. It is clear from
the record that Edwards was fully advised at
the time of his plea of the nature of the
charges and those rights he was waiving by
entering a guilty plea. (Plea. Tr. at 5-7.) He
denied any coercion, or that any promises
had been made to him other than those
stated in open court in his presence, and
stated that he was entering the plea of his
own free will. (Plea. Tr. at 9.) At the outset
of the plea proceeding, petitioner stated
under oath that he had discussed the plea
with counsel. (Plea. Tr. at 4-5.) Petitioner
indicated that he understood the rights he
was giving up by pleading guilty and that he

“A plea is considered ‘intelligent if the
accused had the advice of counsel and
understood the consequences of his plea,
even if only in a fairly rudimentary way,’

8

Notwithstanding that the Court has
determined that petitioner has procedurally
defaulted on his claim of ineffective
assistance of trial counsel, the Court
nonetheless proceeds to analyze the merits
of this claim. Petitioner argues that he was
denied the effective assistance of trial
counsel because his trial counsel advised
him to plead guilty to the charge of murder
in the second degree, even though he denied
the element of intent in the plea inquiry.
(Pet. at 5-6.) As a result, petitioner argues
that his guilty plea was not knowingly,
voluntarily, or intelligently made. (Id.) As
set forth infra, having reviewed the record,
the Court concludes that petitioner received
effective assistance of trial counsel.

waived his right to appeal. (Id. at 6-7.)
Petitioner told the court that he was entering
into the plea voluntarily and of his own free
will and that no one made him any improper
promises. (Id. at 6, 9.) Additionally,
petitioner stated that he was pleading guilty
because he was in fact guilty. (Id. at 9.)
Petitioner correctly argues that the
element of intent is an intrinsic element of
the crime of attempted murder. Under New
York State Penal Law § 125.25, as modified
by Penal Law § 110, a person is guilty of
attempted murder in the second degree when
“he engages in conduct which tends to effect
the commission of such crime, with the
intent to cause the death of another person,
he attempts to cause the death of such
person or of a third person.” Id. However,
contrary to petitioner’s claim that he denied
the element of intent, during his plea the
petitioner specifically admitted to intending
to kill Morris. (Plea Tr. at 11.) It is true
that when first asked whether he was trying
to kill Morris when he stabbed her twice in
the throat the petitioner responded, “[N]o,
sir.” (Id. at 10-11.) As a follow-up question
the defendant was asked, “You were not
trying to kill her?” and he responded, “Yes,
sir.” (Id.) In an effort to clarify the
petitioner’s response, he was asked “Okay.
So I mean, having said ‘no’ then ‘yes’, you
did want to kill her at that time.” (Id.) In
response, petitioner clearly responded, “Yes,
sir.” (Id.) Therefore, petitioner admitted to
all of the elements of the attempted murder
in the second degree charge, including
intent.

a.

Under the standard promulgated by
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: (1) “counsel’s representation fell
below
an
objective
standard
of
reasonableness,” and (2) “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.” Id.
at 688, 694.
The first prong requires a showing that
counsel’s performance was deficient.
However, constitutionally effective counsel
embraces a “wide range of professionally
competent assistance,” and “counsel is
strongly presumed to have rendered
adequate assistance and made all significant
decisions in the exercise of reasonable
professional judgment.” Greiner v. Wells,
417 F.3d 305, 319 (2d Cir. 2005) (quoting
Strickland, 466 U.S. at 690).
The
performance
inquiry
examines
the
reasonableness of trial counsel’s actions

Therefore, petitioner’s claim that his
guilty plea was not knowing, voluntary, and
intelligent is without merit. Thus, habeas
relief cannot be granted on this ground.
2.

Standard

Ineffective Assistance of Trial
Counsel

9

context of a guilty plea, in order to satisfy
the “prejudice” prong, “the [petitioner] must
show that there is a reasonable probability
that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985).

under all circumstances, keeping in mind
that a “fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight.” Id. at 319 (quoting Rompilla v.
Beard, 545 U.S. 374, 408 (2005)). In
assessing performance, a court must apply a
“heavy measure of deference to counsel’s
judgments.” Id. 417 F.3d at 319 (quoting
Strickland, 466 U.S. at 691). “A lawyer’s
decision not to pursue a defense does not
constitute deficient performance if, as is
typically the case, the lawyer has reasonable
justification for the decision,” DeLuca v.
Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996),
and “strategic choices made after thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable.”
Id. at 588 (citing
Strickland, 466 U.S. at 690-91). Moreover,
“strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.” Id.

b.

Here, petitioner’s claim fails to satisfy
the first prong of Strickland. It was not
objectively unreasonable for petitioner’s
trial counsel to advise petitioner to plead
guilty to second-degree murder. Petitioner
argues that during the plea he clearly denied
the element of intent and that once he denied
the element of intent in the plea inquiry,
counsel should have interceded to protect his
right and explain the nature of the charges
he was pleading to. However, as discussed
supra, a review of the state court record in
this case, including the plea and sentence
transcripts, shows that petitioner’s plea was
voluntary, knowing and intelligent, and that
he clearly admitted to all elements of the
crime, including intent. Thus, petitioner’s
assertion is without merit.

The second prong focuses on prejudice
to the petitioner. The petitioner is required
to show that there is “a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. In this context,
“reasonable probability” means that the
errors were of a magnitude such that they
“undermine[]
confidence
in
the
[proceeding’s] outcome.” Pavel v. Hollins,
261 F.3d 210, 216 (2d Cir. 2001) (quoting
Strickland, 466 U.S. at 694). “The question
to be asked in assessing the prejudice from
counsel’s errors . . . is whether there is a
reasonable probability that, absent the
errors, the factfinder would have had a
reasonable doubt respecting guilt.” Henry v.
Poole, 409 F.3d 48, 63-64 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 695). In the

Application

Furthermore, a review of the record
demonstrates that petitioner received an
advantageous plea agreement by pleading
guilty to attempted second-degree murder, a
class B violent felony. See People v. Silent,
831 N.Y.S.2d 194, 195, 37 A.D.3d 625
(App. Div. 2007). Petitioner received a
sentence of eight and one-half years on the
attempted murder in the second degree
charge, avoiding a more severe sentence.
The maximum penalty for attempted murder
in the second degree is 25 years in prison.
See N.Y. Penal Law §§ 110.00, 70.00.
Under the plea agreement negotiated by
defense counsel, petitioner received the best

10

deal that was available. (Plea Tr. at 5.)4
Thus, the performance of trial counsel for
petitioner was not objectively unreasonable.
Accordingly,
petitioner’s
claim
of
ineffective assistance of counsel must fail.

(SAS)(THK), 2009 WL 1514373, at *15-16
(S.D.N.Y. May 28, 2009) (finding effective
assistance of counsel and dismissing habeas
petition when petitioner claimed that trial
counsel did not sufficiently challenge the
evidence supporting the indictment).

Although Edwards’ failure to show
deficient performance disposes of his
ineffective assistance claim, the Court also
finds that, even assuming arguendo that trial
counsel’s performance was deficient, any
alleged deficiencies in his trial counsel’s
performance did not result in prejudice to
petitioner’s case.
“In evaluating the
prejudice suffered by a petitioner as a result
of counsel’s deficient performance, the court
looks to the ‘cumulative weight error’ in
order to determine whether the prejudice
‘reache[s] the constitutional threshold.’”
Sommerville v. Conway, 281 F. Supp.2d
515, 519 (E.D.N.Y. 2003) (quoting
Lindstadt v. Keane, 239 F.3d 191, 202 (2d
Cir. 2001)). “The defendant must show that
there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694. For the reasons
discussed supra, particularly the favorable
plea bargain, there is no basis to conclude
that, absent counsel’s purported deficiencies
there was a reasonable probability that
petitioner would have insisted on going to
trial.

3.

Finally, petitioner argues that his
sentence of eight and one-half years on the
attempted murder in the second-degree
count and on the assault in the first-degree
count, with a period of five years postrelease supervision, and one-year terms of
imprisonment regarding the counts of
assault in the second degree, criminal
possession of a weapon in the third degree
and bigamy, with all sentences to run
concurrently, contravenes the Eighth
Amendment’s prohibition of cruel and
unusual punishment. (Pet. at 5.) For the
reasons set forth below, the Court disagrees
and finds no basis for habeas relief in
connection with petitioner’s sentence on that
ground.
The Eighth Amendment, which prohibits
the infliction of “cruel and unusual
punishments,” U.S. Const. amend. VIII,
bans excessive prison terms that are “grossly
disproportionate” to the crime committed.
Lockyer v. Andrade, 538 U.S. 63, 72-73
(2003); Ewing v. California, 538 U.S. 11,
20-21
(2003).
The
“grossly
disproportionate” standard, however, is
“applicable only in the ‘exceedingly rare’
and ‘extreme’ case.” Lockyer, 538 U.S. at
73 (quoting Harmelin v. Michigan, 501 U.S.
957, 1001 (1991)). Moreover, a sentence
does not run afoul of the Eighth
Amendment’s prohibition of “cruel and
unusual punishments” if the sentence is
within the range prescribed by state law.
White v. Keane, 969 F.2d 1381, 1383 (2d
Cir. 1992) (“No federal constitutional issue

Accordingly, petitioner did not receive
constitutionally deficient assistance of trial
counsel with respect to his guilty plea.
Thus, Edwards’ request for habeas relief on
the ground of ineffective assistance of trial
counsel is denied. See, e.g., Jackson v.
Morgenthau,
No.
07
Civ.
2757

4

As further evidence that the petitioner received an
advantageous plea agreement, the court stated at the
defendant’s hearing before he entered his plea, “Put it
this way, this is the best deal that’s available.” (Plea.
Tr. at 5.)

Cruel and Unusual Punishment

11

possession of a weapon in the third degree
and bigamy, with all sentences to run
concurrently.
(S. Tr. at 4.)
Thus,
petitioner’s incarceration does not violate
the Eighth Amendment’s prohibition of
cruel and unusual punishment.
As
petitioner’s sentence falls within the range
established by state law, his claim does not
present a basis for federal habeas relief.5

is presented where, as here, the sentence is
within the range prescribed by state law.”);
see also Mendoza, 2008 WL 3211277, at *9
(denying the Eighth Amendment claim of a
drug offender sentenced to an indeterminate
term because petitioner’s sentence was
“within the statutory limits in place at the
time of his conviction and sentence”).
Here, petitioner’s sentence falls within
the statutory range prescribed by state law at
the time of the original offense. Petitioner
was convicted of attempted murder in the
second degree, a class “B” felony; assault in
the first degree, a class “B” felony; assault
in the second degree, a class “C” felony;
criminal possession of a weapon in the third
degree, a class “D” felony; and bigamy, a
class “E” felony. At the time of sentencing,
the range for a B violent felony was a
determinate sentence between five and
twenty-five years. See N.Y. Penal Law §
70.00. The range for a C violent felony was
a determinate sentence between two and
seven years. See Id. At the time of
sentencing, the range for a D felony was a
minimum
indeterminate
term
of
incarceration of one to three years with a
maximum
indeterminate
term
of
incarceration of two and third to seven
years, or a definite sentence of up to one
year. See Id. The range for an E felony was
a minimum indeterminate term of
incarceration of one to three years with a
maximum
indeterminate
term
of
incarceration of one and a third to four
years, or a definite sentence of up to one
year. See Id. Accordingly, consistent with
the statute’s prescribed range, petitioner was
sentenced to eight and one-half years on the
attempted murder in the first degree count
and on the assault in the first degree count,
with a period of five years post-release
supervision, and one-year terms of
imprisonment regarding the counts of
assault in the second degree, criminal

5

In any event, even if the Court could review the
sentence within the range prescribed by state law, the
Court would find no basis to conclude that
petitioner’s indeterminate sentence was grossly
disproportionate to the crime committed so as to
violate the Eighth Amendment given the nature of his
criminal activity.

12

IV.

CONCLUSION

In sum, the Court concludes that the
petitioner’s claims that his trial counsel was
ineffective and that he entered a plea that
was not knowing and voluntary are
procedurally barred from review. However,
even if those claims were not procedurally
barred, the Court finds that all the claims set
forth in the petition are substantively
without merit because the state court’s
ruling was not contrary to, or an
unreasonable application of, clearly
established federal law. Even if the Court
considered petitioner’s claims de novo, the
Court would conclude that they were all
without merits for the reasons discussed
supra. Therefore, the petition for a writ of
habeas corpus is denied in its entirety.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: December 16, 2011
Central Islip, New York
***
Petitioner is proceeding pro se. Respondent
is represented by Edward A. Bannan,
Assistant District Attorney, Suffolk County
District Attorney’s Office, 200 Center
Drive, Riverhead, NY 11901.

13