Collazo v. Heath

Filing 42

MEMORANDUM AND ORDER - 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 as to whether Petitioner was entitl ed to habeas relief, the Court does not issue a Certificate of Appealability. Certificate of Appealability Denied Re: 1 Petition for Writ of Habeas Corpus. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Petitioner and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/3/2014. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
PEDRO COLLAZO,
Petitioner,
-against-

MEMORANDUM & ORDER
10-CV-0406(JS)

PHILIP P. HEATH, Superintendent of
Sing Sing Correctional Facility,
Respondent.
----------------------------------X
APPEARANCES
For Petitioner:
Pedro Collazo, pro se
06-A-1536
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
For Respondent:

Karla L. Lato, Esq.
Suffolk County District Attorney’s Office
200 Center Drive
Riverhead, NY 11901

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

For the

following reasons, his Petition is DENIED.
BACKGROUND
I.

Factual Background
“On July 5, 2004, Petitioner was working as a doorman and

bouncer at the Kactus Restaurant in Lake Ronkonkoma, New York.”
(Resp’t’s Resp., Docket Entry 18, ¶ 3.)

After ejecting a patron,

Ulices Islas-Garrido, Petitioner asked his girlfriend to bring
Petitioner’s loaded shotgun to the restaurant in case Garrido

returned to the restaurant to cause trouble. (Resp’t’s Resp. ¶ 18.)
When Petitioner attempted to drive his car out of the parking lot
at 2 a.m., Garrido used his truck to block Petitioner’s car.
(Resp’t’s Resp. ¶ 3.)

Petitioner pointed his loaded shotgun at

Garrido’s truck and fired; Petitioner hit Garrido “square in the
chest and caus[ed] his death.”

(Resp’t’s Resp. ¶ 3.)

Petitioner

fled the scene and according to his girlfriend, Petitioner threw
the shotgun off a bridge into water.

(Resp’t’s Resp. ¶ 3.)

“On

July 8, 2004, Petitioner surrendered at his attorney’s office and
was charged with Murder in the Second Degree” in violation of New
York Penal Law (“N.Y.P.L.”) § 125.25(2).

(Resp’t’s Resp. ¶ 3.)

II. Procedural Background
On

February

2,

2005,

Petitioner

pleaded

guilty

to

Manslaughter in the First Degree in exchange for a prison sentence
of fourteen years.

(Resp’t’s Resp. ¶ 4; see also Feb. 2, 2005

Minutes of Disposition “Plea Tr.” 2:11-3:7; Plea Tr. 21:5-10.)
During the plea agreement hearing, the court, before accepting
Petitioner’s guilty plea, asked Petitioner a series of questions.1
The Court:
want to do?

First of all, is this what you

Petitioner: Yeah.
4:16-18.)

I guess so.

1

(Plea Tr.

Petitioner was sworn before answering the questions.
Tr. 3:25-4:2.)
2

(See Plea

. . .
The Court: Have you discussed this matter with
your attorney[?]
Petitioner: Yes.

(Plea Tr. 4:25-5:4.)

. . .
The Court: Are you satisfied [with] the manner
in which [your attorney] has represented you
in this case?
Petitioner: Yeah.

(Plea Tr. 5:9-12.)

. . .
The Court: Are you entering this plea bargain,
including the waiver of your right to appeal,
voluntary[ily] and of your own free will?
Petitioner: Yes.

(Plea Tr. 7:6-10.)

. . .
The Court [regarding the medication Petitioner
was taking while in prison]: [I]t doesn’t
impact your ability to make decisions?
Petitioner: I don’t think so.2 (Plea Tr. 8:2325.)
After

Petitioner

answered

the

court’s

and

the

prosecutor’s questions, the court accepted Petitioner’s guilty
plea.

(Plea Tr. 21:19-21.)
After the plea agreement hearing, Petitioner, with new

2

The Court: But you have been taking it for seven months and
haven’t had any difficulty with that?
Petitioner: No.

(Plea Tr. 9:2-5.)
3

counsel, sought to withdraw his guilty plea arguing: (i) his
original counsel did not adequately prepare a defense and refused
to proceed to trial without payment and (ii) his plea was invalid
because of the medication he was taking while in prison. (Resp’t’s
Resp. ¶ 5.)

On February 16, 2006, the court denied Petitioner’s

motion to withdraw.

People v. Collazo (“Collazo I”), 11 Misc. 3d

1052(A), 10, 814 N.Y.S.2d 892, (N.Y. County Ct. 2006). In response
to Petitioner’s ineffective assistance of counsel claim, the court
held Petitioner’s “attorney negotiated a very advantageous plea
arrangement[,] which eliminated his client’s exposure to much more
severe incarceration. . . .

Moreover . . . [Petitioner] swore he

was satisfied with his attorney’s performance.”

Id. at 7.

As to

Petitioner’s waiver claim, the court held the plea agreement
hearing transcript “demonstrate[d] [Petitioner’s] knowing, active
participation in the process”.3
court

sentenced

Petitioner

Id. at 6.

to

an

On March 8, 2006, the

agreed-upon

incarceration and five years of supervised release.

3

fourteen-year
(Sentencing

After reviewing the Petitioner’s responses at the hearing, the
court held, additionally, that: “[Petitioner] had sufficient time
to discuss the plea with his attorney . . . [;][Petitioner]
understood the rights he was waiving; [] [Petitioner] was
entering into the plea . . . voluntarily; [Petitioner] was
pleading guilty because he was in fact guilty; . . . [Petitioner]
rejected an additional opportunity to supply any reason why the
plea should not be accepted[;] and . . . [Petitioner] offered his
plea of guilty.” Collazo, 814 N.Y.S.2d 892, at 8 (emphasis in
original).
4

Tr. 9:9-13.)
Petitioner

appealed

the

judgment

to

the

Appellate

Division, Second Department, which on November 27, 2007, affirmed
the judgment.

People v. Collazo (“Collazo II”), 45 A.D.3d 857,

857, 845 N.Y.S.2d 757 (2d Dep’t 2007).

The Second Department held

that “[t]he decision whether to permit a defendant to withdraw a
previously-entered plea of guilty rests within the sound discretion
of the court[.]”

Id. (internal citations omitted).

The Second

Department held, additionally, that “the record reflects that
[Petitioner’s] plea of guilty was knowingly, intelligently, and
voluntarily entered[.]”
Finally,

it

counsel.

Id.

held

Id.

Petitioner

(internal citations omitted).
received

effective

assistance

of

Petitioner applied for leave to appeal to the New

York Court of Appeals, which denied the application on August 7,
2008.

People v. Collazo (“Collazo III”), 10 N.Y.3d 763, 763, 883

N.E.2d 1259, 854 N.Y.S.2d 324 (N.Y. 2008).
Petitioner filed a motion to vacate in county court,
which the court denied.4

(See Resp’t’s Resp. ¶ 7.)

filed

writ

a

petition

for

a

of

4

coram

nobis

in

Petitioner
the

Second

“The County Court held that all but one issue raised in
[P]etitioner’s motion were previously raised on appeal and
determined on the merits. As to the new violation of his
constitutional rights . . . [the court] found [the issue] to be a
record-based claim and [it] should have been raised on direct
appeal.” (See Resp’t’s Resp. ¶ 7, D.E. 18.)
5

Department, which argued that he was denied effective assistance of
counsel as to his appellate counsel.

(See Resp’t’s Resp. ¶ 8.)

The Second Department denied the petition because “[Petitioner]
failed to establish that he was denied the effective assistance of
appellate counsel.”

People v. Collazo (“Collazo IV”), 60 A.D.3d

965, 965, 874 N.Y.S.2d 825 (N.Y. App. Div. 2d Dep’t 2009).
Petitioner filed another petition for a writ of coram
nobis in the Appellate Division, Second Department, which argued
that he was denied effective assistance of counsel as to his
appellate counsel.
Division

denied

(See Resp’t’s Resp. ¶ 9.)

the

petition

because

The Appellate

“[Petitioner]

failed

to

establish that he was denied the effective assistance of counsel.”
People v. Collazo (“Collazo V”), 68 A.D.3d 779, 779, 888 N.Y.S.2d
909 (2d Dep’t 2009). Petitioner applied for leave to appeal to the
New York Court of Appeals, which denied the application on January
29, 2010.

People v. Collazo (“Collazo VI”), 13 N.Y.3d 938, 938,

922 N.E.2d 917, 895 N.Y.S.2d 328 (N.Y. 2010).
III.

The Petition
Petitioner argues that he was denied his rights to: (i)

effective assistance of counsel, under the Sixth Amendment, when
his trial attorney refused to assist him; (ii) effective assistance
of

counsel

and

a

fair

and

impartial

trial,

under

the

Sixth

Amendment, when the trial court refused to appoint new trial
6

counsel; (iii) due process, under the Fourteenth Amendment, as
Petitioner’s plea was not knowing, voluntary, or intelligent; (iv)
due process, under the Fourteenth Amendment, as to the trial
court’s alleged Brady violation; and (v) effective assistance of
counsel, under the Sixth Amendment, as to Petitioner’s appellate
counsel.

(Pet. ¶ 12 at 6-13, D.E. 1.)
DISCUSSION

I.

Legal Standard
“The writ of habeas corpus stands as a safeguard against

imprisonment of those held in violation of the law.” Harrington v.
Richter, --- U.S. ----, 131 S. Ct. 770, 780, 178 L. Ed. 2d 624
(2011).
The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus [on] behalf of a person in custody
pursuant to the judgment of a State court only
on the ground that he is in custody in
violation of the Constitution or laws or
treaties of the United States.
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254(a).
A federal court may grant a writ of habeas corpus to a
state prisoner when prior state adjudication of the prisoner’s case
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as

7

determined by the Supreme Court of the United States.”

Id.

§ 2254(d)(1). “This is a difficult to meet, and highly deferential
standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.”

Cullen

v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d
557 (2011) (internal citations and quotation marks omitted).
During a review of a petition for a writ of habeas
corpus, federal courts presume that the state court’s factual
determinations are correct.
A.

See 28 U.S.C. § 2254(e)(1).

Exhaustion
1.

Standard

A state prisoner seeking federal habeas review of his
state

conviction

is

required

to

available to him in state court.

first

exhaust

all

remedies

See 28 U.S.C. § 2254(b)(1)(A).

“Exhaustion requires a petitioner fairly to present the federal
claim in state court.”
2003).

Jones v. Keane, 329 F.3d 290, 294 (2d Cir.

Presentation means a petitioner “has informed the State

court of both the factual and the legal premises of the claim he
asserts in Federal court.”

Id. at 295 (internal quotation marks

and citations omitted).
II.

Grounds One and Five: Ineffective Assistance of Counsel
A.

Standard
“It has long been recognized that the right to counsel is
8

the right to the effective assistance of counsel.”

McMann v.

Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d
763 (1970) (citing Reece v. Georgia, 350 U.S. 85, 90, 76 S. Ct.
167, 170, 100 L. Ed. 77 (1955); Glasser v. United States, 315 U.S.
60, 69-70, 62 S. Ct. 457, 464-65, 86 L. Ed. 680 (1942); Avery v.
Alabama,

308

U.S.

444,

446,

60

S.

Ct.

321,

84

L.

Ed.

377

(1940); Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 59-60, 77
L. Ed. 158 (1932)).
“[T]he proper standard for attorney performance is that
of reasonably effective assistance[;] . . . the defendant must show
that counsel's representation fell below an objective standard of
reasonableness.”

Strickland v. Washington, 466 U.S. 668, 687-88,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“The proper measure of

attorney performance remains simply reasonableness under prevailing
professional norms.”
“[A]
counsel’s

court

conduct

Id. at 688.
must

falls

indulge

within

the

a

strong
wide

presumption

range

of

that

reasonable

professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound [] strategy.”

Id. at 689 (internal

quotation marks and citation omitted); see also Forbes v. United
States, 574 F.3d 101, 106 (2d Cir. 2009) (applying Strickland to
appellate counsel).

“[Appellate] counsel does not have a duty to
9

advance every non[-]frivolous argument that could be made.”

Mayo

v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Jones v.
Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 3314, 77 L. Ed. 2d 987
(1983)).
“Solemn

declarations

presumption of verity.
allegations

in

open

court

carry

a

strong

The subsequent presentation of conclusory

unsupported

by

specifics

is

subject

to

summary

dismissal, as are contentions that in the face of the record are
wholly incredible.”

Blackledge v. Allison, 431 U.S. 63, 74, 97 S.

Ct. 1621, 52 L. Ed. 2d 136 (citing Machibroda v. United States, 368
U.S. 487, 495-96, 82 S. Ct. 510, 514, 7 L. Ed. 2d 473 (1962); Price
v. Johnston, 334 U.S. 266, 286-87, 68 S. Ct. 1049, 1060-61, 92 L.
Ed. 1356 (1948)).

When seeking post-conviction relief, “a court

must presume that the proceedings were correct, and the burden of
showing otherwise rests on the petitioner.”

United States v.

Mandanici, 205 F.3d 519, 524 (2d Cir. 2000) (citing Nicks v. United
States, 955 F.2d 161, 167 (2d Cir. 1992)).
B.

Analysis
1.

Trial Counsel

As previously noted, the Court asked Petitioner about his
trial counsel’s representation.
The Court: Have you discussed this matter with
your attorney . . . .[?]

10

Petitioner: Yes.

(Plea Tr. 4:25-5:4.)

. . .
The Court: Are you satisfied [with] the manner
[in] which [your attorney] has represented you
in this case?
Petitioner: Yeah.

(Plea Tr. 5:9-12.)

Petitioner stated explicitly that he was satisfied with
his trial attorney.

Petitioner fails to overcome the presumption

that his sworn testimony was true. See Blackledge, 431 U.S. at 74.
Moreover, the county court, in denying Petitioner’s motion to
withdraw his plea, noted that “following months of appearances,
[Petitioner’s trial] attorney negotiated a very advantageous plea
arrangement which eliminated his client’s exposure to much more
severe incarceration.”
Second

Department

held

assistance of counsel.
ruling

was

Collazo I, 11 Misc. 3d 1052(A) at 9.

reasonable

that

Petitioner

The Court agrees.
and

did

not

received

The

effective

The Second Department’s

misapply

Federal

law.

Petitioner’s claim as to his trial counsel is DENIED.
2.

Appellate Counsel

Petitioner’s claim regarding his appellate counsel’s
representation is meritless.

Petitioner pleaded guilty.

As held

below, Petitioner’s plea foreclosed the possibility of a Brady
violation

in

the

present

case;

11

thus,

assuming,

arguendo,

ineffective assistance occurred, it lacked prejudice.

Moreover,

appellate counsel did not have the duty to file frivolous claims.
See Mayo, 13 F.3d at 533.

The Second Department twice denied

Petitioner’s claim of ineffective appellate counsel.
60 A.D.3d 965; Collazo V, 68 A.D.3d at 780.

Collazo IV,

The Court finds the

Second Department’s holdings did not unreasonably apply Federal
law.

Petitioner’s claim as to his appellate counsel is DENIED.

III.

Ground Two: Trial Court’s Refusal to Appoint New Counsel
Petitioner claims that he pleaded guilty because the

trial court refused to appoint CJA-counsel and Petitioner could not
afford to pay another attorney.

(See Pet. ¶ 12 at 7.)

As

recounted: (i) Petitioner affirmed that he was satisfied with his
attorney’s representation (see Plea Tr. 5:9-12); (ii) Petitioner
wrote a pre-plea letter to the trial judge that asked the Judge to
approve a plea deal so “justice would be served” (see infra 14; see
also Collazo I, 11 Misc. 3d 1052(A) at 8); and (iii) Petitioner
affirmed his plea was voluntary.

(Plea Tr. 7:6-10.)

Petitioner

fails to overcome the presumption that his sworn testimony is
correct.
IV.

The Court DENIES Petitioner’s claim.

Ground Three: Involuntary Waiver
A.

Standard
“In the absence of special circumstances, the validity of

a plea of guilty is determined by reference to whether it was
12

intelligent and voluntary.”

Miller v. Angliker, 848 F.2d 1312,

1320 (2d Cir. 1988) (citing Brady v. United States, 397 U.S. 742,
90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Boykin v. Alabama, 395
U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)).

“As a general

matter, a plea is deemed ‘intelligent’ if the accused had the
advice of counsel and understood the consequences of his plea, even
if only in a fairly rudimentary way; it is deemed ‘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.” Id. (citing Brady, 397
U.S. at 750, 90 S. Ct. at 1470).
B.

Analysis
During the plea hearing, Petitioner affirmed, under oath,

that no one had threatened, forced, or coerced him to accept the
plea bargain.

(See Plea Tr. 7:16-18.)

Petitioner affirmed he

understood the ramifications of accepting the plea bargain.
e.g., Plea Tr. 5:14-7:2.)

(See,

Regarding his medication, Petitioner

affirmed that he did not think it was impacting his ability to make
decisions.

(See Plea Tr. 8:23-9:5.)

When asked by the court if

“[he] was pleading guilty because [he was] in fact guilty”,
Petitioner answered affirmatively.

(See Plea Tr. 12:19-21.)

After telling the prosecutor that his gunshots were
accidental (Plea Tr. 18:13-17), Petitioner admitted that he pointed
13

his gun at Garrido, intentionally pulled the gun’s trigger, and
intended to kill Garrido. (Plea Tr. 19:13-20:7.) Before accepting
the plea, the court informed Petitioner that he could not withdraw
his guilty plea once the court accepted it.
Petitioner pleaded guilty.

After this warning,

(Plea Tr. 21:11-18.)

In rejecting Petitioner’s motion to withdraw his plea,
the county court (presided over by the same judge, Judge Ralph
Gazzillo,

who

oversaw

Petitioner’s

criminal

case)

noted

that

Petitioner sent a “pre-plea, unsolicited letter” to Judge Gazzillo
wherein Petitioner “attempted to persuade [Judge Gazzillo]” to
accept Petitioner’s plea agreement. Collazo I, 11 Misc. 3d 1052(A)
at 8-9.
the

The county court held, additionally, that the record (and

judge’s

own

recollection)

“demonstrate[d]

[Petitioner’s]

appropriate, consistent, quick, crisp, and unequivocal answers,
thereby demonstrating his understanding, knowing, and voluntary
participation in the process.” Id. at 5. Petitioner wanted a plea
agreement; he received, and accepted, a plea offer.

Petitioner

cannot now claim he did not make such an agreement as a way to
avoid the agreement he clearly sought.
The Second Department held that “the record reflects that
[Petitioner’s] plea of guilty was knowingly, intelligently, and
voluntarily entered.” Collazo, 45 A.D.3d 857. The Court concurs.
The record is clear that Petitioner knowingly accepted his guilty
14

plea.

The Appellate Division’s ruling was clearly reasonable and

did not misapply Federal law.
V.

Petitioner’s claim is DENIED.

Ground Four: Brady Violation
A.

Standard
The “suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”

Brady v. Maryland,

373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
“Such evidence is material ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the

result

of

the

proceeding

would

have

been

different.’”

Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144 L. Ed.
2d 286 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682,
105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
“Objections to the nature of the evidence obtained by and
available to the prosecution will not survive a plea of guilty and
are not available on an application for a writ of habeas corpus.”
U. S. ex rel. Mendez v. Fish, 259 F. Supp. 146, 148 (S.D.N.Y. 1965)
(citing United States ex rel. Boucher v. Reincke, 341 F.2d 977,
980-91 (2d Cir. 1965); United States v. Salzano, 241 F.2d 849 (2d
Cir. 1957) (per curiam); Winston v. United States, 224 F.2d 337 (2d
Cir. 1955)(per curiam); United States v. State of Louisiana ex rel.
15

Miles v. Walker, 222 F. Supp. 975 (E.D. La. 1963)).
B.

Analysis
Petitioner

pleaded

guilty

and,

objections are not available for review.
148.

therefore,

Brady

Fish, 259 F. Supp. at

Petitioner admitted that he intentionally shot Garrido and

that he was guilty.

(See, e.g., Plea Tr.

12:19-21.)

Any further

evidentiary disclosure, therefore, would not have changed the
disposition of the underlying case.
280.

Petitioner’s

claim

is

See Strickler, 527 U.S. at

DENIED

both

procedurally

and

substantively.
VI.

Evidentiary Hearing
A.

Standard
During

a

habeas

review,

“[t]he

granting

of

a[n]

[evidentiary] hearing is within the discretion of the District
Court[.]”

Thomas v. Arizona, 356 U.S. 390, 403, 78 S. Ct. 885,

892, 2 L. Ed. 2d 863 (1958) (citing Brown v. Allen, 344 U.S. 443,
463-65, 73 S. Ct. 397, 410-11, 97 L. Ed. 469 (1953)).
B.

Analysis
Petitioner seeks an evidentiary hearing “to develop the

factual basis of the [Brady] violation and ineffective counsel
claims raised in the Habeas Corpus petition[.]”
Docket Entry 41, ¶ 2.)

(Mot. to Compel,

For the reasons set forth above, such a

hearing could not advance the Petition as Petitioner’s claims are
16

meritless.
VII.

The Court DENIES Petitioner’s motion.

Motions for Stay and Abeyance; Discovery
A.

Standard
1.

Stay and Abeyance

“[A] district court might stay the petition and hold it
in abeyance while the petitioner returns to state court to exhaust
his previously unexhausted claims.

Once the petitioner exhausts

his state remedies, the district court will lift the stay and allow
the petitioner to proceed in federal court.”

Rhines v. Weber, 544

U.S. 269, 275-76, 125 S. Ct. 1528, 1534, 161 L. Ed. 2d 440 (2005).
“[S]tay

and

abeyance

should

be

available

only

in

limited

circumstances . . . . [S]tay and abeyance is only appropriate when
the

district

court

determines

there

was

good

cause

for

the

petitioner's failure to exhaust his claims first in state court.”
Id. at 277.
2.

Discovery

“A habeas petitioner, unlike the usual civil litigant in
federal court, is not entitled to discovery as a matter of ordinary
course.”

Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793,

1796-97, 138 L. Ed. 2d 97 (1997); see also Drake v. Portuondo, 321
F.3d 338, 346 (2d Cir. 2003).

Pursuant to the Rules Governing

Section 2254 Cases in the United States District Courts, “[a] judge
may, for good cause, authorize a party to conduct discovery under
17

the Federal Rules of Civil Procedure and may limit the extent of
discovery.”
B.

Analysis
The

Court

denies

Petitioner’s

Petitioner’s motion for discovery.

motion

to

stay

and

Petitioner pleaded guilty;

state courts, and this Court, found that Petitioner made his plea
knowingly, intelligently, and voluntarily. No good cause exists to
permit Petitioner to use the Court’s, or the Respondent’s, time to
conduct discovery, nor will justice be served by permitting a stay
and abeyance.

Discovery will not overturn Petitioner’s sworn

statement that he pointed the gun at Garrido, intended to kill
Garrido, and did, in fact, kill Garrido.
19:13-20:6.)
First Degree.

(See, e.g., Plea Tr.

Petitioner pleaded guilty to Manslaughter in the
(See Plea Tr. 21:5-10.)

“A person is guilty of

Manslaughter in the First Degree when: . . . 2. With intent to
cause the death of another

person,

he

causes

the

death

of

such person . . . under circumstances which do not constitute
murder because he acts under the
disturbance.”

influence

N.Y. PENAL LAW § 125.20.

of

extreme emotional

Petitioner’s discovery

requests would not disprove that he met this definition.

Indeed,

the prosecution asked Petitioner, at the plea hearing, if he
intentionally killed Garrido because Petitioner was in an emotional
state caused by Petitioner being scared for his girlfriend and
18

unborn child’s life (as his pregnant girlfriend was in the car with
Petitioner at the time of the shooting).

(Plea Tr. 20:8-13.)

Petitioner admitted he was scared at the time. (Plea. Tr. 20:14.)
This admission fits the definition of Manslaughter in the First
Degree.

Discovery will not further Petitioner’s case.
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 as to
whether Petitioner was entitled to habeas relief, the Court does
not issue a Certificate of Appealability. 28 U.S.C. § 2253(c); see
also Middleton v. Att’ys Gen., 396 F.3d 207, 209 (2d Cir. 2005).
The Clerk of the Court is directed to mail a copy of this
Memorandum and Order to the pro se Petitioner and to mark this
matter CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

March
3 , 2014
Central Islip, NY

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