Williams v. Rock

Filing 9

MEMORANDUM & ORDER re: 1 Petition for Writ of Habeas Corpus is DENIED. Certificate of Appealability DENIED and this case is CLOSED. Ordered by Judge Joanna Seybert on 8/6/2013. (c/m Petitioner) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SHANE WILLIAMS,
Petitioner,
MEMORANDUM & ORDER
09-CV-3576(JS)

-againstSUPERINTENDENT DAVID ROCK,

Respondent.
----------------------------------X
APPEARANCES
For Petitioner:
Shane Williams, pro se
06A3334
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582
For Defendant:

Grazia Divincenzo, Esq.
Suffolk County District Attorney’s Office
Criminal Courts Building
200 Center Drive
Riverhead, NY 11901

SEYBERT, District Judge:
Shane Williams (“Petitioner”) petitions this Court for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.

For the

following reasons, his Petition1 is DENIED.
BACKGROUND
On May 26, 2006, Petitioner was convicted of three counts
of committing a Criminal Sexual Act in the First Degree, N.Y. PENAL

1

Petitioner included in his Petition an application to proceed
in forma pauperis. The Court does not need to address this
application in this Order as the IFP application was processed
according to Administrative Order 2001-06 which deemed it
GRANTED.

LAW § 130.50, five counts of Sexual Abuse in the First Degree, N.Y.
PENAL LAW § 130.65, and one count of Robbery in the Second Degree,
N.Y. PENAL LAW § 160.10, and was sentenced to determinate terms of
imprisonment totaling twenty-six years with five years of postrelease supervision.

(Pet. ¶¶ 2-5; Return ¶ 2; Sentencing Tr. May

26, 2006, at 8-11).
Petitioner appealed the judgment of conviction to the
Appellate

Division,

Second

Department

on

the

grounds

that:

(1) Petitioner’s statements should have been suppressed because the
police strategically thwarted his arraignment on an unrelated,
subsequent robbery charge in order to keep Petitioner in custody
and extract a confession on the original criminal charges; (2) the
evidence did not establish Petitioner’s guilt beyond a reasonable
doubt and the verdict was against the weight of the evidence; and
(3)

the

twenty-six

year

determinate

sentence

imposed

for

Petitioner’s first felony conviction was unduly harsh and excessive
and should be modified in the interests of justice.

(Pet. ¶¶ 8-9;

Return ¶ 17).
On July 15, 2008, the Appellate Division affirmed the
judgment of conviction.

People v. Williams, 53 A.D.3d 591, 861

N.Y.S.2d 420 (2d Dep’t 2008).

The court held that Petitioner had

not preserved for appellate review his contentions “that his
statements to law enforcement officials should have been suppressed
2

because the police intentionally delayed his arraignment” and that
the

evidence

did

reasonable doubt.”

not

“establish

Petitioner’s

guilt

beyond

a

Id. at 592, 861 N.Y.S.2d at 420 (citing N.Y.

CRIM. PROC. LAW § 470.05(2); People v. Ramos, 99 N.Y.2d 27, 34, 750
N.Y.S.2d 821, 825, 780 N.E.2d 506, 510 (2002)).

Notwithstanding

the determination that these claims were unpreserved, the court
held “[i]n any event” that these claims lacked merit. Williams, 53
A.D.3d at 592, 861 N.Y.S.2d at 420.

Acknowledging that “undue

delay is but one factor in assessing the voluntariness of a
confession”,

the

Appellate

Division

held

that

the

pre-trial

Huntley2 hearing record established that Petitioner’s statements
were “voluntarily made after he was advised of his rights” and thus
were properly admitted into evidence.
421 (citations omitted).

Id. at 592, 861 N.Y.S.2d at

The Appellate Division also ruled that,

upon viewing the evidence in the light most favorable to the
prosecution, that the evidence was legally sufficient to establish
Petitioner’s guilt beyond a reasonable doubt.

Id.

Because

“[r]esolution of issues of credibility is primarily a matter to be
determined

by

the

finder

of

fact,

2

which

saw

and

heard

the

“A Huntley hearing is a pre-trial proceeding to determine the
admissibility of a confession or admission.” Acosta v. Artuz,
575 F.3d 177, 187 n.3 (2d Cir. 2009); see also People v.
Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 843, 204 N.E.2d
179, 183 (1965).
3

witnesses,” the Appellate Division “accorded great deference” in
reviewing the underlying factual record to hold that the verdict of
guilt was not against the weight of the evidence.
omitted).

Id. (citations

Further, the Appellate Division held that the sentence

imposed was not excessive. Id.

Petitioner sought leave to appeal

the Appellate Division’s July 15, 2008 affirmation of his judgment
of conviction and sentence to the Court of Appeals, which was
denied on September 11, 2008.

People v. Williams, 11 N.Y.3d 796,

866 N.Y.S.2d 622, 896 N.E.2d 108 (2008).
On May 20, 2009, Petitioner filed a motion pursuant to
N.Y. CRIM. PROC. LAW § 440.10 (“440.10 Motion”) in the Supreme Court,
Suffolk County, claiming that his trial counsel was ineffective for
failing to preserve the arguments, raised on appeal, that his
statements should have been suppressed and that the evidence was
legally insufficient to support his conviction.

The court denied

the motion on July 1, 2009, finding that, because Petitioner had
presented arguments that were raised and rejected upon the direct
appeal from his conviction to the Appellate Division, Article 440
of the N.Y. Criminal Procedure Law “is not available to re-litigate
matters already resolved.”

People v. Williams, No. 2456-2005

(Suff. Cnty. Ct. July 1, 2009).

Petitioner sought leave to appeal

in the Appellate Division, and on September 23, 2009, the Appellate
Division denied Petitioner’s application.
4

People v. Williams, No.

2006-07568 (2d Dep’t Sept. 23, 2009).
On

August

13,

2009,

Petitioner

application for a writ of habeas corpus.

filed

the

instant

In response to this

Court’s September 11, 2009 Order to Show Cause, the District
Attorney of Suffolk County, as attorney for Respondent, filed a
Return to the Petition together with an Affirmation from Edward J.
Vitale, Esq., Petitioner’s trial counsel.
DISCUSSION
I.

Standard of Review
Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), a federal court may grant a writ of habeas
corpus to a state prisoner when prior state adjudication of the
prisoner’s case: (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.”
(2).

28 U.S.C. § 2254(d)(1)-

A state court decision is contrary to clearly established

federal law if it “applies a rule that contradicts the governing
law set forth in [Supreme Court] cases, or if it confronts a set of
facts that is materially indistinguishable from a decision of [the
Supreme] Court but reaches a different result.”
5

Brown v. Payton,

544 U.S. 133, 141, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005).

“A

state-court decision involves an unreasonable application of [the
Supreme] Court’s clearly established precedents if the state court
applies [them] to the facts in an objectively unreasonable manner.”
Id.

Clearly established federal law “refers to the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of the
time

of

the

relevant

state-court

decision.”

Yarborough

v.

Alvarado, 541 U.S. 652, 660–61, 124 S. Ct. 2140, 158 L. Ed. 2d 938
(2004) (internal quotation marks and citation omitted).
II.

The Petition
Petitioner seeks federal habeas relief on the following

grounds: (1) Petitioner’s statements should have been suppressed
because the police strategically thwarted his arraignment in order
to keep him in custody and extract a confession; (2) the evidence
did not establish Petitioner’s guilt beyond a reasonable doubt and
the verdict was against the weight of the evidence; (3) the twentysix year determinate sentence imposed for Petitioner’s first felony
conviction was unduly harsh and excessive and should be modified in
the interests of justice (Pet. ¶¶ 9(f), 12); and (4) trial counsel
was ineffective for failing to preserve for appellate review
Petitioner’s

claims

concerning

6

suppression

and

the

legal

sufficiency of the evidence3 (Pet’r Ltr., Docket Entry 1-2).
Petitioner relies on the arguments he made previously on direct
appeal and in his 440.10 Motion to vacate.

For the reasons that

follow, habeas relief is DENIED.
A.

Procedural Default
“In the context of federal habeas petitions brought by

state prisoners, an independent and adequate finding by the state
court that a claim was procedurally barred by state law prevents
subsequent habeas review of that claim in federal court.”

Torres

v. Ercole, No. 08-CV-0414(JS)(AKT), 2012 WL 911871, at *3 (E.D.N.Y.
Mar. 16, 2012) (citing

Harris v. Reed, 489 U.S. 255, 262, 109 S.

Ct. 1038, 103 L. Ed. 2d 308 (1989)); see also Coleman v. Thompson,
501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).
Further, federal habeas review is unavailable where a state court
has relied on “an independent and adequate state procedural ground,

3

Whether Petitioner seeks habeas review of his ineffective
assistance of counsel claim is far from clear. This claim is not
raised in the Petition; rather, Petitioner filed a letter on
August 13, 2009 along with his Petition requesting that this
Court stay determination of his Petition pending the exhaustion
of his appeal of the denial of his 440.10 Motion to the Appellate
Division. The Appellate Division has since denied Petitioner’s
application for leave to appeal, People v. Williams, No. 200607568 (2d Dep’t Sept. 23, 2009) and Petitioner has not sought
leave to amend his Petition. Nevertheless, given that the
Respondent has addressed the ineffective assistance of counsel
claim in its Return and waived the exhaustion requirement (see
Resp. Br. at 10), the Court has construed the claim as a ground
for relief in his Petition.
7

‘even where the state court has also ruled in the alternative on
the merits of the federal claim.’”

Torres, 2012 WL 911871, at *3

(quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)).

A

state prisoner may overcome this barrier to federal review by
showing “cause for the default and prejudice attributable thereto,”
or by demonstrating “that failure to consider the federal claim
will result in a fundamental miscarriage of justice.” Torres, 2012
WL 911871, at *3 (quoting Harris, 489 U.S. at 262 (internal
quotation marks omitted); see also Coleman, 501 U.S. at 750 (“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.”).
Here, Petitioner’s claims that his statements should have
been suppressed and that the evidence did not establish his guilt
beyond a reasonable doubt are procedurally barred.

On direct

appeal, the Second Department explicitly held that Petitioner’s
contention that “his statements to law enforcement officials should
have been suppressed because the police intentionally prevented his
arraignment in order to isolate and interrogate him for a prolonged
8

period

of

time

.

.

.

is

unpreserved

for

appellate

review.”

Williams,

53

omitted).

Similarly, the Appellate Division expressly stated that

A.D.3d

at

592,

861

N.Y.S.2d

at

420

(citations

Petitioner’s “claim of legal insufficiency is unpreserved for
appellate review.”

Id. at 592, 861 N.Y.S.2d at 421 (citing N.Y.

CRIM. PROC. LAW § 470.05[2]).

The fact that the Second Department

went on to rule on the merits of the claims “[i]n any event,” id.,
does not change the fact that an adequate and independent state
procedural rule bars these claims, see Glenn v. Bartlett, 98 F.3d
721, 724-725 (2d Cir. 1996) (When a state court expressly relies
upon a state procedural bar in denying a claim and rules “in any
event” on the merits, such a claim is not preserved for federal
habeas review, absent a showing of cause and prejudice.); Velasquez
v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (finding an adequate and
independent state procedural bar where Appellate Division held that
federal claims were unpreserved while, “in any event,” finding them
to be without merit); Smith v. Herbert, 275 F. Supp. 2d 361, 367
(E.D.N.Y. 2003) (holding that “[w]hen a state court ‘says that a
claim is not preserved for appellate review and then ruled ‘in any
event’ on the merits, such a claim is not preserved’” (quoting
Glenn v. Bartlett, 98 F.2d 721, 724-25 (2d Cir. 1996)).

Moreover,

Petitioner has not attempted to show cause for the defaults or
prejudice, nor has he attempted to show that failure to review the
9

claims would result in a fundamental miscarriage of justice.

B.

Unduly Harsh Sentence
Petitioner also asserts that his sentence was unduly

harsh and severe in violation of the Eighth Amendment.4
Appellate

Division,

Second

Department,

rejected

The

Petitioner’s

contentions and affirmed the sentence. Williams, 53 A.D.3d at 592,
861 N.Y.S.2d at 420 (“The sentence imposed was not excessive.”).
Given the adjudication of this claim on the merits in state court,
habeas relief in this Court is unavailable unless the adjudication
of the claim “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 . . . .”

28 U.S.C. § 2254(d)(1).

As is readily apparent,

Petitioner’s Eighth Amendment claim is meritless.
“No

federal

constitutional

issue

is

presented

where . . . the sentence is within the range prescribed by state
law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation

4

The Court notes that Petitioner’s challenge to his sentence
before this Court and to the state courts incorrectly relies on
the Seventh Amendment of United States Constitution. See Pet.
¶9(f); see also Appellant’s Br. at 27, People v. Williams, No.
2006-06156 (2d Dep’t Dec. 26, 2007). Given that an excessive
sentence claim is properly brought under the Eighth Amendment,
the Court so construes his claim here.
10

omitted); see also White v. Rock, No. 10-CV-5163, 2013 WL 1767784,
at *24 (E.D.N.Y. Apr. 22, 2013); Parson v. Sup. of Fishkill Corr.
Fac., No. 12-CV-2358, 2013 WL 1953181, at *2 (S.D.N.Y. May 13,
2013) (citing Santos v. Rock, No. 10-CV-2896, 2011 WL 3449595, at
*9 n.11 (S.D.N.Y. Aug. 5, 2011)).

Here, Petitioner was sentenced

to a determinate term of imprisonment totaling twenty-six years
with five years of post-release supervision broken down as follows:
(i) concurrent determinate term of imprisonment of twenty-two and
a half years on three counts of criminal sexual act in the first
degree

with

five

years

of

post-release

supervision,

(ii)

a

concurrent determinate term of imprisonment of seven years on five
counts of sex abuse in the first degree with three years of postrelease supervision; and (iii) a consecutive determinate term of
imprisonment of three and a half years on one count of robbery in
the second degree. (Sentencing Tr. 8-11, May 26, 2006.)

These

sentences are well within the maximum sentence prescribed by the
New

York

convicted.

Penal

Law

for

the

crimes

for

which

Petitioner

was

See N.Y. PENAL LAW § 130.50 (describing the offense of

criminal sexual act in the first degree as a Class B felony); Id.
§ 70.80(4)(a)(i) (stating that the sentence for a Class B felony
sex offense is a determinate term of at least five years and no
more than twenty-five years); Id. § 130.65 (describing the offense
of sexual abuse in the first degree as a Class D felony); Id. §
11

70.80(4)(a)(iii) (stating that the sentence for a Class D felony
sex offense is a determinate term of at least two years and no more
than seven years); Id. § 160.10 (describing the offense of robbery
in the second degree as a Class C felony); Id. § 70.00(2)(c)
(stating that the sentence for a Class C felony shall not exceed
fifteen years).

Accordingly, this claim is without merit.

See

Gonzalez v. Travis, 172 F. Supp. 2d 448, 457 (S.D.N.Y. 2001)
(finding excessive sentence claim not cognizable for habeas review
where sentence was within statutory range); Herrera v. Artuz, 171
F. Supp. 2d 146, 151 (S.D.N.Y. 2001) (holding the trial court’s
imposition of consecutive sentences was appropriate and did not
provide ground for habeas relief); McCalvin v. Senkowski, 160 F.
Supp. 2d 586, 589 (S.D.N.Y. 2001) (“Sentencing decisions are not
cognizable on habeas review unless the sentence imposed falls
outside the range prescribed by state law.”); Thomas v. Senkowski,
968

F.

Supp.

953,

956

(E.D.N.Y.

1997)

(dismissing

excessive

sentence claim where the petitioner’s sentence fell within the
range prescribed by state law).
C.

Ineffective Assistance of Trial Counsel
As noted above, see supra at p. 6 and note 2, Petitioner

now claims that his trial counsel was ineffective for failing to
preserve for appellate review his claims that his statements should
have been suppressed and that the evidence did not establish
12

Petitioner’s guilt beyond a reasonable doubt.5

The ineffective

assistance of counsel claim was raised by Petitioner in his 440.10
Motion and rejected by the County Court, Suffolk County, under N.Y.
CRIM. PROC. LAW § 440.10(2) because the underlying issues raised were
previously determined on the merits upon a direct appeal from
judgment of conviction and there had been no retroactive change in
the law controlling the issue.

See N.Y. CRIM. PROC. LAW § 440.10

(2)(a); see also People v. Williams, No. 2456-2005 (Suffolk Cnty.
Ct. July 1, 2009).

Petitioner sought a certificate granting leave

to appeal that Decision and Order and the Appellate Division,
Second Department, denied his application. See People v. Williams,
No. 2009-07568, 2009 WL 3018195 (2d Dep’t Sept. 23, 2009).
Petitioner did not appeal from the Appellate Division’s September
23, 2009 denial, nor could he since further direct review by the
Court of Appeals is unavailable.

See N.Y. COMP. CODES R. & REGS.,

tit. 22, § 500.20(a) (authorizing only one request for review of a
conviction).

Accordingly, his ineffective assistance of counsel

5

As noted earlier, the ineffective assistance of counsel claim
is not properly before the Court. By letter filed on October 9,
2009, Petitioner advised the Court that the Appellate Division
had denied his application for leave to appeal the denial of his
440.10 Motion by Decision and Order dated September 23, 2009 and
enclosed a copy of the decision. (Pet’r Ltr., Docket Entry 1-2.)
Thus, Petitioner was certainly aware that his application had
been denied by the Appellate Division. Yet, to date, Petitioner
has not sought leave to amend his Petition.
13

claim is procedurally barred under state law.

See Grey v. Hoke,

933 F.2d 117, 120 (2d Cir. 1991); see also Broadnax v. Conway, No.
11-CV-0021, 2013 WL 1775693, at *11-12 (N.D.N.Y. Apr. 25, 2013).
Nevertheless, given that the Respondent has addressed
Petitioner’s ineffective assistance claim in its Return and has
waived the exhaustion requirement, together with the fact that
Petitioner is proceeding pro se, the Court now considers the
ineffective assistance of counsel claim.
As noted above, given that the Appellate Division denied
Petitioner’s application for leave to appeal from the denial by the
County Court, Suffolk County, of his 440.10 motion, further review
of this claim in state court is foreclosed.
& REGS.,
at

*11.

TIT.

See N.Y. COMP. CODES R.

22, § 500.20(a); see also Broadnax, 2013 WL 1775693,
Accordingly,

this

procedurally

barred

ineffective

assistance claim is now “deemed exhausted,” St. Helen v. Senkowski,
374 F.3d 181, 183-84 (2d Cir. 2004) (per curiam). Thus, the merits
of the ineffective assistance claim may only be reached “‘if the
defendant can first demonstrate either cause and actual prejudice,
or that he is actually innocent.’”

St. Helen, 374 F.3d at 184

(quoting Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct.
1604, 140 L. Ed. 2d 828 (1998) (internal quotation marks and
citations omitted)).

Petitioner has not met this standard.

“To

establish ‘cause,’ a defendant must show that ‘some objective
14

factor external to the defense impeded . . . efforts to comply with
the State’s procedural rule.’”

Collazo v. Lee, No. 11-CV-1804,

2011 WL 6026301, at *3 (E.D.N.Y. Dec. 2, 2011) (quoting Coleman,
501 U.S. at 753).

Here, Petitioner offers no explanation for his

failure to raise the ineffective assistance claim in his direct
appeal.

Given Petitioner’s failure to show “cause” for his

procedural default, this Court need not determine whether he
suffered prejudice because “relief is unavailable unless both cause
and prejudice have been established.” Collazo, 2011 WL 6026301, at
*3 (citing Stepney v. Lopes, 760 F.2d 40 (2d Cir. 1985)).
Furthermore, there is no evidence to show, nor does Petitioner even
claim, that he is actually innocent of the crimes of which he was
convicted.

Accordingly, Petitioner’s ineffective assistance of

counsel claim is denied.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

15

CONCLUSION
For the reasons set forth above, Petitioner’s application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
Because there can be no debate among reasonable jurists that
Petitioner was entitled to habeas relief, the Court does not issue
a Certificate of Appealability. Middleton v. Att’ys Gen., 396 F.3d
207, 209 (2d Cir. 2005); see also 28 U.S.C. § 2253(c) (“A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional
right.”).
The Clerk of the Court is directed to mark this matter
CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

August
6 , 2013
Central Islip, NY

16