Tineo v. Heath
OPINION & ORDER re 1 Petition for Writ of Habeas Corpus filed by Michael Tineo. SO ORDERED that grounds one (I) and five (5) of the petition are dismissed, the petition is otherwise denied in its entirety and the proceeding is dismissed. The Cle rk of the Court shall enter judgment in favor of respondent, close this proceeding and serve notice of entry of this Order on all parties in accordance with Rule 77(d)(l) of the Federal Rules of Civil Procedure, including mailing a copy of the Order to the prose petitioner at his last known address. As petitioner has failed to make a substantial showing of a violation of a constitutional right, a certificate of appealability will not issue. Petitioner has a right to seek a certificate of appealability from the United States Court of Appeals for the Second Circuit. CM to pro se petitioner. Ordered by Judge Sandra J. Feuerstein on 9/19/2012. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
OPINION & ORDER
CV -09-3357 (SJF)
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N y
PHILIP D. HEATH, Superintendent
Sing Sing Correctional Facility,
SEP 19 2012
LONG ISLAND OFFICE
On January 9, 2006, a judgment of conviction was entered against petitioner Michael
Tineo ("petitioner") in the Supreme Court of the State ofNew York, Suffolk County (Mullen, J.)
("the hearing court"), upon (1) his plea of guilty to murder in the second degree (N.Y. Penal Law
§ 125.25), criminal possession of a controlled substance in the third degree (N.Y. Penal Law§
220.16), criminal possession of a controlled substance in the fourth degree (N.Y. Penal Law §
220.09), criminal possession of a weapon in the second degree (N.Y. Penal Law§ 265.03),
criminal possession of a weapon in the third degree (N.Y. Penal Law§ 265.02), reckless
endangerment in the first degree (N.Y. Penal Law§ 120.25), criminal mischief in the fourth
degree (N.Y. Penal Law§ 145.00) and resisting arrest (N.Y. Penal Law§ 205.30); and (2)
imposition of sentence. On July 24, 2009, petitioner filed a petition in this Court seeking a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth herein, the petition is
denied in its entirety.
In August and September 2005, a pretrial hearing was held before the hearing court to
determine, inter alia, whether petitioner's statements to law enforcement officers should be
suppressed and whether there was probable cause for petitioner's arrest. By decision and order
dated October 28, 2005, the hearing court held that petitioner's statements to law enforcement
officers, as well as other physical evidence, were all admissible at trial, finding, inter alia: (a)
that petitioner's right to counsel during custodial interrogation was not violated since (I) he had
not established "that counsel had actually 'entered' the matter about which [he] was being
questioned," People v. Tineo, 10 Misc.3d 1071(A), 2005 WL 3636712, at* 6 (N.Y. Sup. Pet. 28,
2005), at the time that he made statements to law enforcement officers because when his mother,
who is an attorney, called police headquarters on November 26, 2004 at approximately II :40
a.m. looking for him, she was calling in her capacity as his mother, not as an attorney
representing him, and (2) "there was nothing to show that [petitioner's arrest] [was] so closely
related transactionally, or in space or time, [with a prior arrest four and one-half (4 \1,) months
earlier] that questioning on the one would inevitably elicit incriminating responses regarding the
other[,]" id.; (b) that "the totality of circumstances show that [petitioner] was given his [Miranda]
rights, understood them, voluntarily waived them, and spoke to the detectives at length," id. at *
8; and (c) that the law enforcement officers had probable cause to arrest petitioner on the murder
charge and "[h]is flight and resistance just gave them an additional reason," id. at* 9.
On November 18, 2005, petitioner pleaded guilty to murder in the second degree (N.Y.
Penal Law§ 125.25), criminal possession of a controlled substance in the third degree (N.Y.
Penal Law§ 220.16), criminal possession of a controlled substance in the fourth degree (N.Y.
Penal Law§ 220.09), criminal possession of a weapon in the second degree (N.Y. Penal Law§
265.03), criminal possession of a weapon in the third degree (N.Y. Penal Law§ 265.02), reckless
endangerment in the first degree (N.Y. Penal Law§ 120.25), criminal mischief in the fourth
degree (N.Y. Penal Law§ 145.00) and resisting arrest (N.Y. Penal Law§ 205.30). During his
plea allocution, petitioner admitted: (I) that on November 20,2004, (a) he brought a weapon,
which he knew to be loaded and operable, to the premises located at 323 Montgomery Avenue,
North Babylon, (b) he met Frank Howell ("Howell") at that location and (c) he shot the loaded
weapon at Howell with the intent to cause his death; (2) that he secreted a computer containing
one hundred forty-eight ( 148) bags of what he knew to be heroin and the gun with which he shot
Howell, and which he had defaced for the purpose of concealment, at the premises located at 97
Garden City Avenue, Wyandanch; (3) that he exercised dominion and control over the bags of
heroin, which had an aggregate weight of more than one-eighth (1/8) of an ounce, and possessed
them with the intent to sell; (4) that on November 25,2004, while he was operating a motor
vehicle at the location of Belmont Avenue in North Babylon, (a) he hit his vehicle into another
vehicle with the intent to damage the property of another and (b) he then drove his vehicle into
close proximity of a person standing by a vehicle in front of him, almost striking that person; and
(5) that in the late hours of November 25, 2004 into the early morning hours of November 26,
2004, he intentionally resisted arrest from police officers by fleeing and refusing to be
handcuffed. (P. 6-14). In addition, defense counsel stipulated that gunshot wounds to Howell's
head, neck and chest resulted in his death, (P. 7), and that the weight of the heroin possessed by
petitioner was more than one-eighth (118) of an ounce, (P. 9). During the plea allocution, defense
counsel indicated, inter alia, that petitioner would not have pleaded guilty to any of the counts in
the indictment had the hearing court granted his motion to suppress and that he intended to
appeal the order denying his motion to suppress. (P. 16).
On January 9, 2006, petitioner was sentenced to concurrent terms of imprisonment of
twenty (20) years to life on the conviction of murder in the second degree, ten (1 0) years on the
conviction of criminal possession of a controlled substance in the third degree, five (5) years on
the conviction of criminal possession of a controlled substance in the fourth degree, eight (8)
years on the conviction of criminal possession of a weapon in the second degree, four (4) years
on the conviction of criminal possession of a weapon in the third degree, two and one-third (21/3) to seven (7) years on the conviction of reckless endangerment in the first degree and one (I)
year on each of the convictions of criminal mischief in the fourth degree and resisting arrest. (S.
20-21 ). On March 6, 2006, the hearing court modified the improper sentence on the conviction
for criminal possession of a weapon in the third degree by instead imposing an indeterminate
term of imprisonment of one (1) to three (3) years. (S2. 5). During the January 9, 2006
sentencing proceedings, defense counsel reiterated that petitioner had reserved his right to appeal
from the denial of his motion to suppress, (S. 3-4), and the hearing court indicated that petitioner
was not waiving his right to appeal, (S. 22).
Petitioner appealed his judgment of conviction to the Supreme Court of the State of New
York, Appellate Division, Second Judicial Department ("Appellate Division") on the grounds,
inter alia: (I) that there was no probable cause for his arrest (Point I); (2) that his right to counsel
was violated when law enforcement officers (a) questioned him after his mother had called police
headquarters, identified herself as an attorney and inquired about petitioner's whereabouts (Point
II), and (b) questioned him about a prior arrest on which petitioner was represented by counsel
(Point III); and (3) that the hearing court erred in concluding that his confession was voluntary
because (a) the State failed to call the detectives who allegedly mistreated him to testify at the
suppression hearing and (b) it had erroneously excluded as irrelevant the testimony of another
individual who had been arrested in the same case and allegedly beaten as well (Point IV).
By order dated June 26, 2007, the Appellate Division affirmed the judgment of
conviction, finding, inter alia: (l) that petitioner's arrest was lawful since his "conduct upon the
approach by the police broke the chain of events and dissipated the taint of any illegality in their
initial approach;" (2) that the hearing court properly denied petitioner's motion to suppress since
his "statements to law enforcement officials were voluntarily made;" (3) that petitioner's "right
to counsel did not attach when his mother, who is an attorney, aware that [petitioner] was
missing, called the police in an effort to locate him;" and (4) that petitioner's remaining
contentions were without merit. People v. Tineo, 41 A.D.3d 876, 876-77, 840 N.Y.S.2d 369 (2d
Dept. 2007). On October I, 2007, the Court of Appeals of the State ofNew York denied
petitioner's application for leave to appeal to that court from the June 26, 2007 order of the
Appellate Division People v. Tineo, 9 N.Y. 3d 965, 848 N.Y.S.2d 33, 878 N.E.2d 617 (2007).
By order dated January 28, 2009, the Court of Appeals of the State of New York denied
petitioner's application for reconsideration of its October I, 2007 order. People v. Tineo, 9
N.Y.3d 1039, 852 N.Y.S.2d 25, 881 N.E.2d 1212 (2008).
By order dated December 23, 2008, the Appellate Division denied petitioner's application
for a writ of error coram nobis to vacate its June 26, 2007 order on the ground of ineffective
assistance of appellate counsel, finding that petitioner had "failed to establish that he was denied
the effective assistance of appellate counsel." People v. Tineo, 57 A.D.3d 923, 923, 868
N.Y.S.2d 923 (2d Dept. 2008). On March 30, 2009, the Court of Appeals of the State of New
York denied petitioner's application for leave to appeal to that court from the December 23, 2008
order of the Appellate Division. People v. Tineo, 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d
On July 24, 2009, petitioner filed a petition in this Court seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, alleging: (1) that the hearing court erred in denying his motion to
suppress his statements to law enforcement officers because (a) the statements were involuntary
based upon the totality of circumstances (Ground One), (b) the State failed to rebut his claim of
abuse by producing the testimony of the officers who he claimed mistreated him (Ground Two)
and (c) his Fifth Amendment right to counsel had been violated (Grounds Three and Four); and
(2) that he was arrested without probable cause (Ground Five). Respondent filed his return on
Respondent's contention that petitioner's guilty plea precludes him from seeking habeas
review of any of his claims is without merit. Although "[g]enerally, a petitioner who pleads
guilty may not challenge his conviction on the basis that his constitutional rights were violated
during a pre-plea hearing," Mapp v. Phillip, No. 04-CV-1889, 2005 WL 1541044, at* 5
(E.D.N.Y. June 29, 2005) (citing Tollett v. Henderson, 411 U.S. 258,267, 93 S. Ct. 1602, 36 L.
Ed. 2d 235 (1973)), "[a]n exception is made where the applicable state law permits a defendant
who has pleaded guilty to appeal specified constitutional issues." Id. (citing Lefkowitz v.
Newsome, 420 U.S. 283, 289,95 S. Ct. 886,43 L. Ed. 2d 196 (1975)).
Section 710.70(2) of the New York Criminal Procedure Law provides that "[a]n order
finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing
judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of
guilty." Thus, "[a]lthough a guilty plea 'generally results in a forfeiture of the right to appellate
review of any nonjurisdictional defects in the proceedings,' section 71 0. 70(2) has been
recognized as a limited exception permitting appellate review, notwithstanding the entry of a
guilty plea." People v. Elmer, 19 N.Y.3d 501, 509, 950 N.Y.S.2d 77, 973 N.E.2d 172 (N.Y.
2012) (quoting People v. Fernandez, 67 N.Y.2d 686, 688,499 N.Y.S.2d 919,490 N.E.2d 838
(N.Y. 1986)); see also De Vonish v. Walsh, No. 08 Civ. 10845,2011 WL 6224576, at* 2
(S.D.N.Y. Dec. 14, 2011). Since there is no procedural rule barring appellate review of the
denial of a motion to suppress under New York law, there is likewise no procedural bar to federal
habeas review of such a claim. See Lefkowitz, 420 U.S. at 293, 95 S. Ct. 886 ("[W]hen state law
permits a defendant to plead guilty without forfeiting his right to judicial review of specified
constitutional issues [in higher State courts], the defendant is not foreclosed from pursuing those
constitutional claims in a federal habeas corpus proceeding."); see also Reiff v. Department of
Probation, 474 F. Supp. 276, 278 (E.D.N.Y. 1979) (accord).
Respondent acknowledges that his position is contrary to well-established Supreme Court
precedent, (Resp. Mem. at 3 (citing Lefkowitz, 420 U.S. 283,95 S. Ct. 886)), but nevertheless
argues that the law should be reconsidered. However, this Court is not the appropriate forum to
"reconsider" clearly established federal law as set forth by Supreme Court precedent. In any
event, respondent's arguments for reconsideration are unpersuasive.
Although the statutory right to appeal the denial of a motion to suppress notwithstanding
a guilty plea can be waived as part of a plea bargain agreement,~ People v. Seaberg, 74 N.Y.2d
I, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 (1989); De Vonisll, 2011 WL 6224576, at* 2; Mapp,
2005 WL 1541044, at* 5, no such waiver is presented in this case. Indeed, respondent admits
that petitioner pleaded guilty with the understanding that under New York law his guilty plea did
not prohibit an appeal from the Decision and Order issued after the pre-trial suppression hearing
* * *." (Resp. Mem. at 3, 4). Respondent's argument that in pleading guilty, petitioner did not
rely on any specific condition that his ability to seek federal habeas review would survive his
guilty plea, (Resp. Mem. at 4), is a distinction without a difference that does not warrant
reconsideration of clearly established federal law. Accordingly, petitioner's guilty plea does not
preclude federal habeas review of any of the claims asserted in his petition.
Stone v. Powell
In Stone v. Powell, the Supreme Court held that
"where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial."
428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d I 067 (1976); see also Graham v. Costello, 299
F.3d 129, 133-34 (2d Cir. 2002) ("As a general rule, Fourth Amendment claims are not
reviewable by the federal courts when raised in a petition brought under Section 2254 unless the
state prisoner shows that he or she has not had a full and fair opportunity to litigate that claim in
the state court. • * * [T]he bar to federal habeas review of Fourth Amendment claims is
permanent and incurable absent a showing tha:t the state failed to provide a full and fair
opportunity to litigate the claim * * * .") The Second Circuit "has interpreted Powell as requiring
only that the state courts provide an opportunity for full and fair litigation of a fourth amendment
claim," Capellan v. Riley. 975 F.2d 67, 71 (2d Cir. 1992) (emphasis in original), and "has
developed a litmus test to discern when a state prisoner has been denied [such] an opportunity *
Id., at 70. Pursuant to that test, habeas review of Fourth Amendment claims is permitted
"in only one of two instances: (a) if the state has provided no corrective procedures at all to
redress the alleged fourth amendment violations; or (b) if the state has provided a corrective
mechanism, but the defendant was precluded from using that mechanism because of an
unconscionable breakdown in the underlying process." Id. Even if the state courts erroneously
decided the Fourth Amendment issue, "a petitioner cannot gain federal review of a fourth
amendment claim simply because the federal court may have reached a different result." Id. at
71. "[A] mere disagreement with the outcome of a state court ruling is not the equivalent of an
unconscionable breakdown in the state's corrective process." Id. at 72. The focus, then, is not
"on the correctness of the outcome resulting from the application of adequate state court
corrective procedures, [but] rather * * * on the existence and application of the corrective
procedures themselves***." Id. at 71 (emphasis in original).
Petitioner does not contend that New York failed to provide a corrective procedure to
redress his alleged Fourth Amendment claims. Rather, petitioner contends that he was not
afforded a full and fair opportunity to litigate his Fourth Amendment claims in state court
because the State's case "was based, in its entirety, on uncorroborated hearsay evidence which
was used to assert, without proof, completely unsubstantiated claims." (Pet. Mem.
[unpaginated]). Petitioner further contends that "it is impossible and constitutionally invalid for
the [hearing] Court to have legitimately found that there was probable cause for [his] arrest*
*" (I d.)
Petitioner's Fourth Amendment claims were fully considered by the hearing court and
appellate courts, resulting in a finding by the Appellate Division that petitioner's arrest was
justified. Thus, contrary to petitioner's contention, he not only had a full and fair opportunity to
litigate his Fourth Amendment claims, he actually fully and fairly litigated those claims. His
"mere disagreement" with the outcome of the state courts' rulings does not constitute "an
unconscionable breakdown in the state's corrective process." Capellan, 975 F.2d at 72. Since,
under Powell, petitioner's Fourth Amendment claim is not cognizable on federal habeas review,
that claim (Ground Five) is dismissed.
Respondent contends that petitioner did not exhaust his claim that the hearing court erred
in denying his motion to suppress his statements to law enforcement officers as involuntarily
made based upon the totality of the circumstances ("totality of circumstances claim") since he did
not present the same factual arguments supporting that claim to the state appellate courts.
"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 unless it appears that the applicant has
exhausted the remedies available in the courts of the State." 28 U.S.C. §2254(b)(1)(A); see also
Cullen v. Pinholster, 131 S. Ct. 1388, 1399, 179 L. Ed. 2d 557 (2011) ("Section 2254(b) requires
that prisoners must ordinarily exhaust state remedies before filing for federal habeas relief.");
Jones v. Murphy,- F.3d - , 2012 WL 3764937, at* (2d Cir. Aug. 29, 2012) ("Under AEDPA,
a prisoner in custody pursuant to a state court judgment must generally exhaust state court
remedies before seeking federal habeas corpus review.") "Exhaustion of state remedies requires
that a petitioner fairly present 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," Cornell v.
Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d
Cir. 20 II), cert. denied, 132 S. Ct. 265, 181 L. Ed. 2d !55 (2011 )), i.e., the "petitioner must
'present his [or her] claim to the highest court of the state.'" Galdamez v. Keane, 394 F.3d 68,
73 (2d Cir. 2005) (alterations in original) (quoting Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.
2000)). "In developing and refining the 'fairly present[ed]' standard, the Supreme Court has
concentrated on the degree of similarity between the claims that a petitioner presented to the state
and federal courts." Smith v. Duncan, 411 F.3d 340, 349 (2d Cir. 2005) (alteration in original,
On direct appeal to the Appellate Division, petitioner argued, in relevant part, that the
hearing court erred in concluding that his confession was voluntary because (a) the government
failed to call the detectives who allegedly mistreated him to testify at the suppression hearing and
(b) it had erroneously excluded as irrelevant the testimony of another individual who had been
arrested in the same case and allegedly beaten as well. Petitioner did not raise his totality of
circumstances claim on direct appeal.
In his initial application seeking leave to appeal to the New York State Court of Appeals,
dated August 2, 2007, petitioner indicated only that he was relying on the four (4) points raised in
his brief on the direct appeal from the judgment of conviction. In a letter to the New York State
Court of Appeals dated August 27,2007, "in further support of [petitioner's] application" for
leave to appeal to that court, petitioner raised, for the first time in any appellate court, a totality of
circumstances claim. However, "raising a federal claim for the first time in an application for
discretionary review to a state's highest court is insufficient for exhaustion purposes." St. Helen
v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d
Cir. 2000) (accord).
In his application for a writ of error coram nobis, petitioner effectively conceded the
failure to raise his totality of circumstances claim on direct appeal of his judgment of conviction
by arguing that his appellate counsel was ineffective, inter alia, for failing to raise such a claim.
"In a criminal action, the writ of error coram nobis lies in the state appellate court only to vacate
an order determining an appeal on the ground that the defendant was deprived of the effective
assistance of appellate counsel." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quotations,
alterations and citations omitted); see also Jones v. Senkowski, 42 Fed. Appx. 485, 486 (2d Cir.
May 22, 2002) (summary order) ("[A] motion [for a writ of error coram nobis] • • *has been
authorized by New York courts only for claims of ineffective assistance of appellate counsel.")
Thus, petitioner's totality of circumstances claim could be advanced in an application seeking a
writ of error coram nobis only as a predicate for the claim of ineffectiveness of appellate counsel.
Turner, 262 F.3d at 123. "The only constitutional claim [petitioner] was permitted to raise in
seeking a writ of error coram nobis was ineffective assistance of appellate counsel, a claim that is
distinct from [his totality of circumstances claim]
* * *."
Id.; see also Jones, 42 Fed. Appx. at
487 ("[A] claim of ineffective assistance of appellate counsel is 'distinct' from the claim whose
omission indicates such ineffectiveness.") "A court considering ineffective assistance might
never reach the underlying constitutional claims, and the rejection of the ineffective assistance
claim without detailed comment does not bespeak any necessary ruling on the underlying
constitutional claims." Turner, 262 F.3d at 123; ~also Jones, 42 Fed. Appx. at 487 ("While
consideration of petitioner's ineffective assistance claim may require the state court to evaluate
the strength of the omitted*
* * claim, the ruling would still be made on the ineffectiveness
claim-not the [omitted] claim, which would merely be considered as an element of the
ineffectiveness claim. As such, the coram nobis proceeding does not afford the petitioner a
'right' to raise the 'question presented' by his federal habeas petition in state court."); Luna v.
Artus, No. 10 Civ. 2565,2011 WL 4373933, at* 3 (S.D.N.Y. July 20, 2011), report and
recommendation adopted ]ly 2011 WL 4376524 (S.D.N.Y. Sept. 20, 2011) ("[A] coram nobis
petitioner challenging counsel's failure to raise a claim on appeal does not exhaust the underlying
claim."); McCoy v. Walsh, No. 03-cv-1661, 2009 WL 2707239, at* 3 (E.D.N.Y. Aug. 20, 2009)
(holding that the petitioner's filing of a coram nobis petition based upon his appellate counsel's
failure to raise a claim exhausted only his ineffective assistance of counsel claim, not the
underlying claim upon which it was based); Mateo v. Fishkill Correctional Facili!J. No. CV -043420,2007 WL 2362205, at* 8 (E.D.N.Y. Aug. 14, 2007); but see Aparicio v. Artuz, 269 F.3d
78, 92 (2d Cir. 2001) (fmding that the petitioner's ineffective assistance of trial counsel claim
had been adjudicated by the Appellate Division's denial of his application for a writ of error
coram nobis, even though that Appellate Division had not explicitly addressed that claim,
because the finding that the petitioner had not been denied the effective assistance of appellate
counsel disposed of the petitioner's "only proffered cause for the failure to raise the trial counsel
claim on direct appeal.") The Appellate Division found that petitioner "failed to establish that he
was denied the effective assistance of appellate counsel," People v. Tineo, 57 A.D.3d 923, 923,
868 N.Y.S.2d 923 (2d Dept. 2008), without speaking to the merits of the underlying
constitutional claims. Therefore, petitioner never exhausted his totality of circumstances claim in
However, to the extent that no state remedies remain "available" to petitioner, see 28
U.S.C. § 2254(b)(l)(B)(i), with regard to his unexhausted totality of circumstances claim, he has
met "the technical requirements for exhaustion." Coleman v. Thompson, 501 U.S. 722,732, 111
S. Ct. 2546, 115 L. Ed. 2d 640 (1991);
St. Helen, 374 F.3d at 183 ("[E]ven if a federal
claim has not been presented to the highest state court or preserved in lower state courts under
state law, it will be deemed exhausted if it has become procedurally barred under state law.")
"When a '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,' the federal habeas court should consider the claim to be
procedurally defaulted." Clark v. Perez, 510 F.3d 382,390 (2d Cir. 2008) (quoting Coleman,
501 U.S. at 735 n. 1, Ill S. Ct. 2546); see also Jones, 2012 WL 3764937. Petitioner has
procedurally defaulted on his totality of circumstances claim because New York's procedural
rules now bar him from raising it in New York courts. See,~ St. Helen, 374 F.3d at 183.
"Further direct review by the Court of Appeals is no longer available, see N.Y. Court Rules,§
500.1 O(a) (authorizing only one request for review of a conviction), and the failure to have raised
the claim on direct review now forecloses further collateral review in state court, see N.Y. Crim.
Pro. Law§ 440.10(2)(c) (barring review if claim could have been raised on direct review)." St.
Helen, 374 FJd at 183-84; see also Aparicio, 269 FJd at 91 ("Petitioner was entitled to one (and
only one) appeal to the Appellate Division and one request for leave to appeal to the Court of
Appeals, both of which he pursued long ago. N.Y. Crim. Proc. Law§ 450.10(1); N.Y. Court R.
§ 500.1 O(a). New York does not otherwise permit collateral attacks on a conviction when the
defendant unjustifiably failed to raise the issue on direct appeal. N.Y. Crim. Proc. Law§
440.10(2)(c)."); Jones v. Keane, 329 F.3d 290,296 (2d Cir. 2003); Spence v. Superintendent.
Great Meadow Correctional Facilitv, 219 F.3d 162, 170 (2d Cir. 2000). Accordingly, although
petitioner's totality of circumstances claim is technically exhausted, it is procedurally defaulted.
"A state court's invocation of a procedural rule to deny a prisoner's claims precludes
federal review of the claims if* • * the state procedural rule is a nonfederal ground adequate to
support the judgment and the rule is firmly established and consistently followed." Martinez v.
Ryan, 132 S. Ct. 1309, 1316, 182 L. Ed. 2d 272 (2012); see also Clark, 510 F.3d at 390
("Ordinarily, a federal habeas court may not reach the merits if the state court's rejection of a
Section 440.10(2)(c) of the New York Criminal Procedure Law in effect at the time of
petitioner's direct appeal provided, in pertinent part, that "the court must deny a motion to vacate
a judgment when:* **Although sufficient facts appear on the record of the proceedings
underlying the judgment to have permitted, upon appeal from such judgment, adequate review of
the ground or issue raised upon the motion, no such appellate review or determination occurred
owing to the defendant's * * * unjustifiable failure to raise such ground or issue upon an appeal
actually perfected by him[.]" Since petitioner's totality of circumstances claim clearly appears on
the record of the suppression hearing, Section 440.1 0(2)(c) precludes petitioner from now raising
that claim in state court.
federal claim 'rests on a state law ground that is independent of the federal question and adequate
to support the judgment."' (quoting Coleman, 50! U.S. at 729, IllS. Ct. 2546)). Section
440.1 0(2)(c) has been held to be an independent and adequate state procedural rule barring
federal habeas review of a defaulted claim absent cause and prejudice, or a fundamental
miscarriage of justice. See Bousley v. United States, 523 U.S. 614,622, 118 S. Ct. 1604, 140 L.
Ed. 2d 828 ( 1998) ("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."'); see also Maples v.
Thomas, 132 S. Ct. 912,921,181 L. Ed. 2d 807 (2012) ("The barto federal review [of a
procedurally defaulted claim] may be lifted
* * * if the prisoner can demonstrate cause for the
procedural default in state court and actual prejudice as a result of the alleged violation of federal
law." (quotations, alterations and citations omitted)); Coleman, 501 U.S. at 750, 111 S. Ct. 2546
("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to
an independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can 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.")
"[Ojnly where a prisoner is impeded or obstructed in complying with the State's
established procedures will a federal habeas court excuse the prisoner from the usual sanction of
default." Martinez, 132 S. Ct. at 1318 (emphasis added) 2 ; see also Maples, 132 S. Ct. at 922
Although the Supreme Court indicated in Martinez that cause for a procedural default is
established "only where a prisoner is impeded or obstructed in complying with" a state
procedural rule, 132 S. Ct. at 1318 (emphasis added), the Second Circuit has recently held that
("Cause for a procedural default exists where something external to the petitioner, something that
cannot fairly be attributed to him, impeded his efforts to comply with the State's procedural
rule." (quotations, alterations, emphasis and citations omitted)).
Although "an attorney's errors during an appeal on direct review may provide cause to
excuse a procedural default* * *,"Martinez, 132 S. Ct. at 1317, "the mere fact that counsel
failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite
recognizing it, does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S.
478,486, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). The Supreme Court has held that only
"[a]ttorney error that constitutes ineffective assistance of counsel [in violation of
the Sixth Amendment] is cause [for a procedural default]. * * * In the absence of
a constitutional violation, the petitioner bears the risk in federal habeas for all
"futility may [also] constitute cause 'where prior state case law has consistently rejected a
particular constitutional claim."' Gutierrez v. Smith,- F.3d - , 2012 WL 3764542, at* 5 (2d
Cir. Aug. 31, 20 12). However, the Supreme Court has held that neither "[p ]erceived futility
alone," Smith v. Murray, 477 U.S. 527, 534, 106 S. Ct. 2661 (1986), nor "[t]he novelty of [a]
legal claim" can constitute cause for a procedural default unless the claim was not "available at
a!T' to the petitioner at the time of the default. id. at 536. "[T]he question is not whether
subsequent legal developments have made counsel's task [in pursuing a claim] easier, but
whether at the time of the default the claim was 'available' at all." Smith, 477 U.S. at 537, 106
S. Ct. 2661 (emphasis added). Thus, "where the basis of a claim is available, and other defense
counsel have perceived and litigated that claim, the demands of comity and finality counsel
against labeling alleged unawareness of [that claim] as cause for a procedural default." Bousley.
523 U.S. at 623, n. 2 (quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558,71 L. Ed. 2d
783 (1982) (alterations omitted)); see also Smith, 477 U.S. at 537 (holding that where "[v]arious
forms of the claim [the petitioner] now advances had been percolating in the lower courts for
years at the time of his original appeal * * * it simply is not open to argument that the legal basis
of the claim [he] now presses on federal habeas was unavailable to counsel at the time of the
direct appeal."); United States v. Thorn, 659 F.3d 227,233 (2d Cir. 2011) (holding that the fact
that "a number of defense attorneys had argued" a similar claim previously, "preclude[ d] the
conclusion that the [claim] was not available at all to [the petitioner]." (emphasis added));
Fernandez v. Leonardo, 931 F.2d 214, 216-17 (2d Cir. 1991) (holding that the fact that other
defendants recognized the claim "strongly suggests that there was no cause for [the petitioner's]
procedural default.") However, since any perceived futility is not an issue in this case, it is
unnecessary to further address the issue.
attorney errors made in the course of the representation * * * [C]ounsel' s
ineffectiveness will constitute cause only if it is an independent constitutional
Coleman, 501 U.S. at 753-54, Ill S. Ct. 2546 (emphasis added); see also Murray, 477 U.S. at
488 ("So long as a defendant is represented by counsel whose performance is not constitutionally
ineffective under the standard established in Strickland v. Washington** •, [there is] no
inequity in requiring him to bear the risk of attorney error that results in a procedural default.");
Aparicio, 269 F. 3d at 93 (holding that the "conclusion that the performance of Petitioner's
* * * was not so deficient as to violate Petitioner's Sixth Amendment rights * *
* serves to reject the only cause Petitioner presented for the default.")
Since the Appellate
Division found that petitioner's appellate counsel was not constitutionally ineffective and
petitioner did not challenge that finding in his petition', thus effectively abandoning his claim
that his appellate counsel was constitutionally ineffective, petitioner has not established cause for
the procedural default of his totality of circumstances claim. Accordingly, petitioner's totality of
circumstances claim (Ground One) is dismissed as procedurally defaulted.
Standard of Review under AEDPA
Pursuant to 28 U.S.C. § 2254(d), an application for a writ of habeas corpus that has met
the procedural prerequisites of the AEDPA:
Petitioner improperly raises the issue of the effectiveness of his appellate counsel for
the first time in this proceeding in his reply brief, (Pet. Reply, p. 15). Since no such claim was
ever raised in his petition, I deem his ineffective assistance of appellate counsel claim to have
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 (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
"An 'adjudication on the merits' is one that '(1) disposes of the claim on the merits, and (2)
reduces its disposition to judgment."' Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (citing
Sellan v. Kuhlman, 261 F.3d 303,312 (2d Cir. 2001)); see also Hawthorne v. Schneiderman,F.3d - , 2012 WL 3553364, at* 3 (2d Cir. Aug. 20, 2012) (accord).
A state court determination is "contrary to * * *clearly established Federal law," 28 U.S.C.
§ 2254(d), "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 v. Taylor, 529 U.S. 362,412-13, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000); see also Lafler v. Cooper,- U.S.-, 132 S.Ct. 1376, 1390,
182 L. Ed. 2d 398 (2012) ("A decision is contrary to clearly established law if the state court
applies a rule that contradicts the governing law set forth in Supreme Court cases." (alterations,
quotations and citation omitted)). Alternatively, under the "unreasonable application" standard of
Section 2254(d), "a federal habeas court may grant the writ if the 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." Williams, 529 U.S. at 413, 120 S. Ct. 1495; see also
Thalerv. Haynes, 130 S. Ct. 1171, 1174, 175 L. Ed. 2d 1003 (2010) (accord). A state court's
"unreasonable application" of law must have been more than "incorrect or erroneous;" it must have
been "objectively unreasonable." Sellan, 261 F .3d at 315 (quotations and citation omitted); see
also Grayton v. Ercole,- F.3d. - , 2012 WL 3329715, at* 7 (2d Cir. Aug. 15, 2012) (holding
that a writ of habeas corpus "may only issue [under the 'unreasonable application' standard] where
the state court's application of the law was not only wrong, but unreasonable.")
Claims that were not adjudicated on the merits in state court are not subject to the
deferential standard that applies under AEDPA. See Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769,
1784, 173 L.Ed.2d 701 (2009) (citing 28 U.S.C. § 2254(d)). But where AEDPA's deferential
standard of review does apply, the "state court's findings of fact are presumed to be correct unless
the petitioner can rebut this presumption by clear and convincing evidence." Epps v. Poole, 687
F.3d 46, 50 (2d Cir. 2012); see also Schriro v. Landrigan, 550 U.S. 465,473-74, 127 S. Ct. 1933,
167 L. Ed. 2d 836 (2007); Parkerv. Ercole, 666 F.3d 830,834 (2d Cir. 2012). Under AEDPA's
deferential standard of review, "[f]ederal courts sitting in habeas are not an alternative forum for
trying facts and issues which a petitioner made insufficient effort to pursue in state proceedings."'
Cullen,131 S.Ct. at 1401 (quoting Williams, 529 U.S. at 437, 120 S.Ct. 1479).
Federal habeas review is limited to determining whether a petitioner's custody violates
federal law, see 28 U.S.C. § 2254(a), and "does not lie for errors of state law." Swarthout v.
Cooke,--- U.S.----, 131 S.Ct. 859,861, 178 L.Ed.2d 732 (2011); Wilson v. Corcoran,- U.S.-,
131 S. Ct. 13, 16, 178 L. Ed. 2d 276 (2010).
Fifth Amendment Claims
"The Fifth Amendment, which applies to the States by virtue of the Fourteenth
* * * provides that ' [n]o person ... shall be compelled in any criminal case to be a
witness against himself."' Marvland v. Shatzer, 130 S. Ct. 1213, 1219, 175 L. Ed. 2d 1045
(2010) (citation omitted). "In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), the [Supreme] Court adopted a set of prophylactic measures to protect a suspect's
Fifth Amendment right from the 'inherently compelling pressures' of custodial interrogation."
Id. "Critically, however, a suspect can waive the [Miranda] rights." Id.
"To establish a valid waiver, the State must show that the waiver was knowing,
intelligent, and voluntary***." Shatzer, 130 S. Ct. 1219. The inquiry into whether a defendant
has voluntarily, knowingly and intelligently waived the constitutional rights as set forth in
Miranda "has two distinct dimensions." Moran v. Burbine, 475 U.S. 412,421, 106 S. Ct. 1135,
89 L. Ed. 2d 410 (1986). "First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or
deception." Id.; see also United States v. Salim,- F.3d - , 2012 WL 3631159, at* 5 (2d Cir.
Aug. 24, 2012) (accord). "Second, the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to abandon it."
Moran, 475 U.S. at 421, 106 S. Ct. 1135; see also Berghuis v. Thompkins, 130 S. Ct. 2250,2260,
176 L. Ed. 2d 1098 (20 10) (accord).
Voluntariness of Petitioner's Statements to Officers4
Petitioner contends that the hearing court erred in failing to suppress his statements to law
enforcement officers because by failing to produce the testimony of the officers who allegedly
mistreated him, the State did not establish that his statements had been voluntarily made. The
Appellate Division rejected this claim, finding that "[t]he [hearing] court properly found the
Petitioner does not contend, and there is no basis in the record to conclude, that he did
not know about his constitutional rights under Miranda or understand those rights and the
consequences of waiving them.
[petitioner's] statements to law enforcement officials were voluntarily made." People v. Tineo,
41 A. D. 3d 876, 876, 840 N.Y.S.2d 369.
"The police may use a defendant's confession* * *without transgressing his Fifth
Amendment right only when the decision to confess is the defendant's free choice." Nelson v.
Walker, 121 F.3d 828, 833 (2d Cir. 1997) (quoting United States v. Anderson, 929 F.2d 96,98
(2d Cir. 1991)). "[A] confession produced by violence or threats of violence is involuntary and
cannot constitutionally be used against the person giving it." Sims v. Georgi
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