Haynes v. People Of The State Of New York
Filing
13
MEMORANDUM AND OPINION: For the reasons stated herein, the Court finds that the petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. All of petitioners claims are plainly without merit. Therefore, the petition for a w rit of habeas corpus is denied. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close this case. Ordered by Judge Joseph F. Bianco on 12/21/2012.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-5867 (JFB)
_____________________
JAMES T. HAYNES,
Petitioner,
VERSUS
PEOPLE OF THE STATE OF NEW YORK,
Respondent.
___________________
MEMORANDUM AND ORDER
December 21, 2012
__________________
JOSEPH F. BIANCO, District Judge:
James T. Haynes (hereinafter “Haynes”
or “petitioner”) petitions this Court for a
writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction in
County Court, Suffolk County. Petitioner
pled guilty to attempted burglary in the
second degree, a Class D Violent Felony
(N.Y. Penal Law §§ 110.0 and 140.25(2)).
Petitioner was sentenced to an indeterminate
period of imprisonment of twelve years to
life as a persistent violent felony offender.
The court also imposed a mandatory
surcharge of $375.00 and issued the victim a
permanent order of protection against
petitioner.
In the instant petition, petitioner
challenges his conviction on the following
grounds: (1) New York’s Sentence
Enhancement Statute is unconstitutional; (2)
petitioner was improperly adjudicated as a
persistent violent felony offender; (3)
petitioner’s guilty plea was less than
voluntary, knowing and intelligent; and (4)
petitioner was denied effective assistance of
counsel. (Pet. at 2-3.)
For the reasons set forth below, the
petition is denied in its entirety.
I. BACKGROUND
A. Facts
The Court has adduced the following
facts from the instant petition and the
underlying record.1
1
The following facts were taken from the pre-trial
hearing transcripts (“Apr. 9 H.” and “Apr. 21 H.”),
the plea minutes (“P.”), and the sentencing minutes
(“S.”). At the pre-trial hearings, Detective Donald
Truesdell from the Suffolk County Police
Department, Police Officer Brian Rathburn of the
Suffolk County Police Department, Police Officer
At approximately 9:15 a.m. on
September 10, 2007, petitioner rode his
bicycle to 450 Patchogue Yaphank Road,
New York and illegally entered the building
located there. (Apr. 9 H. at 33.) Once inside,
petitioner encountered Kimberly Quinones
(“Quinones”), a resident of the home, and
robbed her. (Id. at 33-34.) Petitioner
proceeded to take $300.00 in cash, a
quantity of marijuana from the night stand, a
cell phone battery, and the house phone. (Id.
at 34.) He then rode off on his bicycle to a
nearby Hess gas station and bought
cigarettes and mints.2 (Id. at 35.)
“I went to the house to look for ‘Boo’
Jackson[,] who is a drug dealer in Coram
and stole a .40 caliber pistol from a friend[.]
I was there to get the gun[;] the girl
answered the door and said Boo didn’t sell
drugs or have a pistol. She gave me all of
her money and told me to leave.” (Apr. 21
H. at 52.) During this brief questioning,
petitioner did not indicate to police officers
that he did not wish to speak with them.4
(Apr. 9 H. at 73.)
Approximately ten minutes after
receiving the initial burglary notification,
Officer Bowen transported Quinones to the
gas station to determine if petitioner was the
individual who robbed her. (Apr. 21 H. at 57.) As Officer Bowen drove past petitioner,
Quinones immediately identified petitioner
as the person who had committed the
burglary. (Id. at 8-9.) While Quinones was
driven past petitioner, Haynes stated, “That
was the lady’s house that I was in.” (Id. at
31.)
Shortly after receiving a local
notification on a burglary suspect, Police
Officers Frascogna and Rowe arrived at the
gas station and found petitioner, who
matched the description of the suspect,
sitting on a fence behind the station. (Apr.
21 H. at 29.) The officers approached
petitioner, asked him to identify himself, and
to explain what he was doing there. (Id. at
29-30.) Haynes identified himself and
informed the police that he was waiting for a
cab. (Id.) The officers also questioned
petitioner about whether he had anything on
him; petitioner indicated that he possessed
marijuana. (Id. at 30.) Petitioner then handed
the marijuana over to the police officers; the
officers proceeded to search petitioner and
recovered $294.56, a pack of Newport
cigarettes, a pack of mints, and a cell phone
battery. (Id. at 30-31). While stopped,
petitioner also informed police officers that
he had just come from a house on County
Road 101.3 (Apr. 9 H. at 72.) Petitioner said,
At the Fifth Precinct, petitioner stated
that he entered the victim’s home and took
$300.00 in cash, a quantity of marijuana, a
cell phone battery, and the house phone.5
(Apr. 9 H. at 34.) As petitioner recounted
the events that had taken place earlier,
Detective Truesdell reduced petitioner’s
statements to a written document, which
petitioner signed after having it read back to
him. (Id. at 29-32.) Additionally, petitioner
offered to show Detective Truesdell where
10:00 a.m. to assist Officers Frascogna and Rowe.
(Apr. 9 H. at 69, 72.)
4
During a pre-trial hearing, Officer Rathburn noted
that petitioner appeared calm and relaxed. Officer
Rathburn also stated that no threats or promises were
made to petitioner while questioned. (Id. at 73.)
5
Prior to taking petitioner’s statement, Detective
Truesdell informed petitioner of his constitutional
rights, which petitioner voluntarily waived. (Id. at 1220.) Detective Truesdell noted that at no point before
or during the statement did petitioner appear
confused or fail to cooperate. (Id. at 17-18.)
Eric Bowen of the Suffolk County Police
Department, and Police Officer Marc Frascogna of
the Suffolk County Police Department all testified.
2
The Hess gas station is located at the corner of Old
Dock Road and Horseblock Road, approximately a
mile from the victim’s home. (Apr. 21 H. at 7.)
3
Police Officer Rathburn testified to hearing this
statement from petitioner. Officers Rathburn and
Valenti had arrived at the gas station shortly after
2
As a threshold matter, the court
determined that the People’s witnesses
(Detective Truesdell and Police Officers
Rathburn, Bowen and Frascogna) were
accurate and truthful in their testimony.
(Opinion of the County Court of the State of
New York, Suffolk County, dated May 19,
2008 at 1.) The court then found that there
was no evidence to suggest that petitioner’s
statement at the Fifth Precinct was
involuntary or in any respects coerced. (Id.
at 2.) The court proceeded to find that
Detective Truesdell read petitioner the
Miranda warnings before questioning him,
and that petitioner voluntarily agreed to
waive his rights and to speak with the
police. (Id.) Therefore, the court concluded
that petitioner “gave a voluntary, uncoerced
confession to the police only after having
been advised of, and knowingly waiving, his
Miranda rights.” (Id.) The court also noted
that the statement petitioner made after
Quinones was driven through the gas station
was spontaneous and not made in response
to any questioning. (Id.) Accordingly, the
court denied petitioner’s motion to suppress
his statements. (Id.)
he had disposed of the house phone after the
burglary, and proceeded to do so after his
statement had been taken. (Id. at 35.)
Detective Truesdell found the phone in the
location given to him by petitioner. (Id. at
36.)
B. Procedural History
1. Trial Court Proceedings
a. Huntley/Mapp Hearing
Petitioner was indicted in October 2007
under indictment number 3211-07. On April
9, 2008, and April 21, 2008, a suppression
hearing was held to determine the
admissibility of alleged statements made by
petitioner to the police, and to determine if
the identification procedure used by law
enforcement was permissible. (Opinion of
the County Court of the State of New York,
Suffolk County, dated May 19, 2008 at 1.)
At the suppression hearing, petitioner’s
attorney argued that the oral statements
made by Haynes at the gas station were
inadmissible. (Apr. 21 H. at 53-54.) In
support of her argument, petitioner’s
attorney said that the police officers had
failed to warn petitioner of his Miranda
rights before the contested statements were
made, even though petitioner was allegedly
under custody at the time. (Id. at 53.) With
respect to petitioner’s statements at the Fifth
Precinct, petitioner’s attorney urged that
they be suppressed because the police had
already failed to warn petitioner of his
Miranda rights at the gas station; therefore,
the recital of later Miranda warnings could
not correct this failure. (Id. at 53-54).
Additionally, petitioner’s attorney argued
that the exigent circumstances necessary to
justify show-up identifications were not
present in this case. (Id. at 51.)
The court also denied petitioner’s
motion to suppress the out-of-court
identification employed at the gas station.
(Id. at 3.) The court found that petitioner’s
apprehension near the scene of the crime,
along with the temporal proximity to the
commission of the crime, was sufficient to
deem
the
show-up
identification
permissible. (Id.)
b. The Plea Proceeding
On May 19, 2008, petitioner pled guilty
to attempted burglary in the second degree, a
Class D Violent Felony (N.Y. Penal Law
§§ 110.00 and 140.25(2)). (P. at 20-21.) In
exchange, the court agreed that it would
impose a sentence of no more than 12 years
to life imprisonment. (Id. at 3.) Before
3
c. Sentencing
entering his plea, Haynes 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 6-8.) Petitioner stated that he was entering
the plea voluntarily and of his own free will.
(Id. at 8-9.) Petitioner also denied that he
was subjected to any threats or coercion. (Id.
at 9.) Moreover, petitioner confirmed that
he was not under the influence of any drugs,
medicine, alcohol, or any substance that
could affect or impair his ability during the
proceedings. (Id. at 9.) Finally, petitioner
stated under oath that he had enough time to
discuss the plea with his attorney and that he
was satisfied with her representation in the
case. (Id. at 5-6.)
On July 30, 2008, petitioner was
sentenced as a persistent violent felony
offender to an indeterminate period of
imprisonment of twelve years to life. (S. at
7.) Further, the court imposed a mandatory
surcharge of $375.00 upon petitioner and
issued a permanent order of protection
against him in favor of the victim, Miss
Quinones. (Id. at 6.)
During
the
sentencing
hearing,
petitioner’s counsel addressed his persistent
violent felony offender status. (Id. at 4.)
Petitioner’s counsel stated, “I would just
want to point that out, that the initial crime
that categorized him as a prior violent I
believe happened in 1983. Judge, I have
gone over the dates with my client. This is
the category he does fall into.” (Id.)
Before entering his plea, petitioner
consulted with his attorney and admitted to
the accusations made in a predicate
statement pursuant to § 400.16(2) of the
New York Criminal Procedure Law. (Id. at
15, 18.) In its statement, the People accused
Haynes of being previously subjected to two
predicate violent felony convictions as
defined in Penal Law § 70.04(1)(b). (Id. at
16.) Specifically, the People accused Haynes
of being convicted of attempted burglary in
the second degree on December 20, 2000,
and of receiving a subsequent sentence of 7
years’ incarceration on January 9, 2001. (Id.
at 17.) Additionally, the People accused
Haynes of being convicted of robbery in the
second degree on August 4, 1983, and of
receiving a subsequent sentence of one and a
half to four and a half years’ incarceration
on August 4, 1983. (Id.) By admitting to this
statement, petitioner recognized that the
court would classify him as a persistent
violent felony offender. (Id.) Petitioner did
not raise any constitutional or other
objections to the prior convictions contained
in the predicate felony statement, even after
being questioned by the court. (Id. at 17.)
2. Petitioner’s State Appeals
Petitioner appealed his conviction to the
Appellate Division, Second Department on
the following grounds: (1) New York’s
Sentence
Enhancement
Statute
is
unconstitutional;
(2)
petitioner
was
improperly adjudicated as a persistent
violent felony offender; (3) petitioner’s
guilty plea was less than voluntary,
knowing, and intelligent; and (4) petitioner
was denied effective assistance of counsel.6
See People v. Haynes, 70 A.D.3d 718, 71819 (2d Dep’t 2010). In a decision dated
February 2, 2010, a panel of the Appellate
Division affirmed petitioner’s conviction. Id.
Although the predicate statement filed by
the People failed to set forth any tolling
periods, the court concluded that petitioner’s
valid waiver of his right to appeal precluded
6
In petitioner’s brief on appeal, he did not raise the
voluntariness of his plea as a separate argument, but
instead incorporated this argument within his other
three arguments. (Def.-Appellant Br., Sept. 22,
2009.)
4
Division. (Pet. at 3.) On June 23, 2010, the
application was denied. Id.
him from challenging the legality of the
procedure used in sentencing him as a
persistent violent felony offender. Id. The
court also found petitioner’s contention that
the omission of the tolling information
rendered his plea less than knowing,
voluntary, and intelligent to be unpreserved
for appellate review because petitioner did
not move to withdraw his plea on that basis.
Id. at 719. In any event, the court found that
the omission of the tolling information in the
statement was harmless; petitioner did not
dispute that his incarceration was long
enough that the prior sentence was imposed
within the 10-year limitation period. Id.
C. The Instant Petition
Petitioner filed the instant petition on
December 12, 2010. Respondent filed its
response on February 25, 2011. The Court
has fully considered the submissions and
arguments of the parties.
II. 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
Penalty Act (“AEDPA”), which provides, in
relevant part:
Further, the court concluded that
petitioner’s valid waiver of his right to
appeal precluded review of his contention
that his adjudication as a persistent violent
felony offender violated the principles
announced in Apprendi v. New Jersey, 530
U.S. 466 (2000). 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—
With respect to petitioner’s claim that he
was denied effective assistance of counsel,
the court held that petitioner’s valid waiver
of his right to appeal also precluded review,
except to the extent that the alleged
ineffective assistance of counsel may have
affected the voluntariness of petitioner’s
plea. Id. Furthermore, the court stated that
this contention was not properly presented
on direct appeal to the extent it was
premised on his attorney’s failure to
investigate, because such a claim involves
matters outside the record. Id. Finally, the
court found that to the extent the claim can
be reviewed because it concerned an alleged
effect on the voluntariness of petitioner’s
plea of guilty, petitioner was afforded
meaningful representation. Id.
(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.
28 U.S.C. § 2254(d). “‘Clearly established
Federal law’” is comprised of “‘the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of
Petitioner applied for leave to appeal to
the Court of Appeals, raising the same
grounds he did in his appeal to the Appellate
5
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)).
238 (2d Cir. 2009) (quoting Spears v.
Greiner, 459 F.3d 200, 203 (2d Cir. 2006)).
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 412-13. A decision is
an “unreasonable application” of clearly
established federal law if a 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.”
Id. at 413.
A. Procedural Bar
III. DISCUSSION
1. 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
the highest state court having jurisdiction
over them. See Daye v. Att’y Gen. of N.Y.,
696 F.2d 186, 191 (2d Cir. 1982) (en banc).
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.”
Duncan v. Henry, 513 U.S. 364, 365 (1995)
(internal alteration, citation, and quotation
marks omitted).
AEDPA establishes a deferential
standard of review: “‘a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also 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 “‘some
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 findings of
fact and conclusions of law are reviewed de
novo.’” Dolphy v. Mantello, 552 F.3d 236,
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 claim 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 3656
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 (internal citation and quotation marks
omitted).
66. “A petitioner has ‘fairly presented’ his
claim only if he has informed the state court
of both the factual and the legal premises of
the claim he asserts in federal court.” Jones
v. Keane, 329 F.3d 290, 294-95 (2d Cir.
2003) (internal citation and quotation marks
omitted). “Specifically, [petitioner] must
have set forth in state court all of the
essential factual allegations asserted in his
federal petition; if material factual
allegations were omitted, the state court has
not had a fair opportunity to rule on the
claim.” Daye, 696 F.2d at 191 (internal
citations omitted). To that end, “[t]he chief
purposes of 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.)
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 those claims, the
prisoner generally is barred from asserting
those claims in a federal habeas
proceeding.” 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).
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 issue 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 n.1)
(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,
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 may also be procedurally
barred from habeas corpus review if they
were decided at the state level on adequate
and independent procedural 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 73031.
Once it is determined that a claim is
procedurally barred under state rules, a
7
appeal such challenges. Haynes, 70 A.D.3d
at 718-19. In foreclosing its review, the
Appellate Division relied on New York law
regarding the validity of waivers of appeal.
Id. (citing People v. Lassiter, 48 A.D.3d 700
(2d Dep’t 2008); People v. Backus, 43
A.D.3d 409, 410 (2d Dep’t 2007)).
federal court may still review such a claim
on its merits if the petitioner can
demonstrate both cause for the default and
prejudice resulting 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).
Courts within this Circuit have held that
affirmative waiver of a petitioner’s right to
appeal can provide an adequate and
independent state ground on which to deny
habeas relief, and this Court agrees with the
analysis contained in these decisions. See,
e.g., Colon v. New York, No. 08 Civ.
0170(DC), 2009 WL 1116478, at *4
(S.D.N.Y. Apr. 27, 2009) (“Waiver of a
right to appeal is an adequate and
independent state ground for the Appellate
Division to have denied [petitioner]’s
appeal.”); Gordon v. Poole, No. 07-CV-474,
2008 WL 495510, at *3 (W.D.N.Y. Feb. 21,
2008) (“A state procedural bar arises
through a failure to make a timely appeal, or
through a failure to preserve a claim of
appeal through contemporaneous objection,
or waiver of right to appeal with guilty
plea.” (internal citation omitted)). Therefore,
the individual claims related to New York’s
persistent violent felony offender statute
cannot be reviewed by this Court because
the Appellate Division dismissed them on an
independent and adequate state procedural
ground. See Coleman, 501 U.S. at 729-31.
When a state court relies on an independent
and adequate state law ground – such as, in
this case, a valid waiver of right to appeal –
federal habeas review is denied. See Spikes
v. Graham, No. 9:07-CV-1129 (DNH/GHL),
2010 WL 4005044, at *11 (N.D.N.Y. July
14, 2010). Accordingly, petitioner’s two
separate claims related to New York’s
persistent violent felony offender statute are
3. Application
a. Claims Relating to New York’s
Persistent Violent Felony Offender
Statute
Petitioner makes two separate claims in
relation to New York’s recidivist persistent
violent felony offender statute. First,
petitioner argues that New York’s persistent
violent
felony
offender
statute
is
unconstitutional because it violates the
principles announced by the Supreme Court
in Apprendi. (Pet’r’s Br. at 9.) Second,
petitioner argues that he was improperly
adjudicated as a persistent violent felony
offender because the People violated N.Y.
Crim. Proc. Law § 400.16(2). (Id. at 10.)
Respondent argues that both claims are
procedurally barred because petitioner
validly waived his right to appeal such
claims during the plea hearing. (Resp’t’s Br.
at 9-11.) Because a valid waiver of the right
to appeal constitutes an independent and
adequate state law ground, and because the
waiver was valid (for reasons discussed
infra), both claims are barred from federal
habeas review.
The Appellate Division declined to
review the merits of petitioner’s claims with
respect to the Persistent Violent Felony
Offender Statute because it found that
petitioner had validly waived his right to
8
procedurally barred from review by this
Court.7
properly before this Court, as discussed
infra, these claims are clearly without merit.
In order for a petitioner to overcome a
procedural bar, the 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 with
respect to either claim regarding New
York’s persistent violent felony statute.
Moreover, petitioner has not demonstrated
that a fundamental miscarriage of justice
will take place if the Court fails to consider
these procedurally defaulted claims. Thus,
petitioner’s claims regarding New York’s
persistent violent felony offender statute are
not reviewable by this Court. However,
assuming arguendo that these claims were
b. Ineffective Assistance of Counsel
Petitioner argues that he was denied
effective assistance of counsel because
counsel failed to: (1) investigate the
constitutionality of his 1983 conviction; (2)
challenge the prosecutor’s statement to the
court that petitioner had two prior
convictions, thereby violating Crawford v.
Washington, 541 U.S. 36 (2004); and (3)
address petitioner’s drug use at either the
plea or sentencing hearing. (Pet’r’s Br. at 47.) Respondent contends that petitioner’s
valid waiver of his right to appeal at the plea
hearing precludes federal habeas review of
this claim, except to the extent that the
alleged ineffective assistance of counsel
may have affected the voluntariness of
petitioner’s plea. (Resp’t’s Br. at 14-15.)
Moreover, insofar as petitioner’s ineffective
assistance of counsel claim is based on his
attorney’s failure to investigate, respondent
argues that it involves matters outside the
record and it is not properly presented on
direct appeal. (Id.) The Court finds that
petitioner’s valid waiver of his right to
appeal constitutes an independent and
adequate state law ground which bars
federal review of petitioner’s ineffective
assistance of counsel claim, except to the
extent the claim may have affected the
voluntariness
of
petitioner’s
plea.
Furthermore, to the extent petitioner’s
ineffective assistance of counsel claim is
based on his attorney’s failure to investigate,
this Court determines that the claim is
unexhausted and thus not reviewable.
7
Moreover, the Appellate Division’s reliance on a
defendant’s valid waiver of the right to appeal as a
procedural bar was not exorbitant in this case. The
Supreme Court concluded that in a limited category
of “exceptional cases,” when the state appellate court
has applied a firmly established and regularly
followed procedural ground in an “exorbitant”
manner, so that the application of the ground was
inadequate, federal courts are not barred from
reviewing such a claim on the merits. See Lee v.
Kemna, 534 U.S. 362, 376, 381 (2002). In Cotto v.
Herbert, 331 F.3d 217 (2d Cir. 2003), the Second
Circuit stated that the factors to consider in making
this determination are “(1) whether the alleged
procedural violation was actually relied on in the trial
court, and whether perfect compliance with the state
rule would have changed the trial court's decision; (2)
whether state [case law] indicated that compliance
with the rule was demanded in the specific
circumstances presented; and (3) whether petitioner
had “substantially complied” with the rule given “the
realities of trial,” and, therefore, whether demanding
perfect compliance with the rule would serve a
legitimate governmental interest.” Id. at 240. Having
reviewed these factors, the Court concludes that the
Appellate Division did not apply the procedural bar
of valid waiver of right to appeal in an exorbitant
manner.
The Appellate Division concluded that
“defendant’s valid waiver of his right to
appeal precludes appellate review of his
contention that he was denied the effective
assistance of counsel, except to the extent
that the alleged ineffective assistance of
9
procedurally barred from federal habeas
review.8
counsel may have affected the voluntariness
of his plea.” Haynes, 70 A.D.3d at 719
(citing People v. Perazzo, 65 A.D.3d 1058,
1059 (2d Dep’t 2009); People v. Velez, 64
A.D.3d 799 (2d Dep’t 2009)). As discussed
supra, established New York law recognizes
the validity of waivers of appeal, and federal
courts have thus found valid waivers of the
right to appeal to constitute an independent
and adequate state-law ground that
precludes review. See id. (citing Lassiter, 48
A.D.3d at 700; Backus, 43 A.D.3d at 409);
Gordon, 2008 WL 495510 at *3. New York
law exempts from the general bar produced
by such waivers those claims that affect the
voluntariness of a defendant’s plea. See
Cross v. Perez, 823 F. Supp. 2d 142, 153
(E.D.N.Y. 2011) (“To survive the waiver,
according to New York courts, the claim of
ineffective assistance must directly pertain
to the defendant’s decision to plead guilty –
in other words, the claim must go to the very
heart of the process.” (internal citation and
quotation marks omitted)); People v.
Finklestein, 25 A.D.3d 456, 457 (1st Dep’t
2009) (“Although defendant waived his
right to appeal, his claim that his attorney
rendered ineffective assistance . . . is
reviewable to the extent it affects the
voluntariness of his plea . . . .”).
In addition, the Appellate Division ruled
that, to the extent petitioner’s ineffective
assistance of counsel claim is based on his
attorney’s failure to investigate, the claim
was not properly before the court because it
relied on matters outside the record. Haynes,
70 A.D.3d at 719. Petitioner may raise
arguments outside the record in a motion to
vacate judgment pursuant to N.Y. Crim.
Proc. Law § 440.10. Because, petitioner’s
ineffective assistance of counsel claim with
respect to his attorney’s failure to investigate
is unexhausted, it is not properly reviewable
by this Court.
Even if an independent and adequate
state ground bars the petitioner’s claim, a
federal court may review the merits of the
claim if petitioner can demonstrate both
cause for the default and prejudice resulting
therefrom, or if he can demonstrate that the
failure to consider the claim will result in a
miscarriage of justice. Coleman, 501 U.S. at
750. Petitioner has failed to meet his burden
with respect to both the state procedural
requirement and exhaustion components of
his ineffective assistance of counsel claim.
First, petitioner shows no external cause or
prejudice to warrant the setting aside of his
waiver. Second, petitioner has not provided
any explanation for his failure to properly
exhaust his ineffective assistance of counsel
claim in state court. Finally, petitioner has
not demonstrated that a fundamental
miscarriage of justice will result if the Court
fails to consider his procedurally defaulted
In addressing petitioner’s claim, the
Appellate Division relied on established
New York law that the valid waiver of
petitioner’s right to appeal precluded
appellate review of his ineffective assistance
of counsel claim, with exception to any
alleged effect this claim may have on the
voluntariness of his plea.
Petitioner’s
ineffective assistance of counsel claim, with
the exception described above, cannot be
reviewed because the Appellate Division
relied on an independent and adequate state
procedural ground. See Coleman, 501 U.S.
at 729-31. This claim is therefore
8
Additionally, the Appellate Division’s reliance on a
defendant’s valid waiver of the right to appeal as a
procedural bar was not exorbitant in this case. See
Lee, 534 U.S. at 376. Having considered the factors
set forth in Cotto, 331 F.3d at 240, in connection with
this exception, the Court concludes that the Appellate
Division did not apply the procedural bar of valid
waiver of right to appeal in an exorbitant manner.
10
claim. Accordingly, petitioner’s ineffective
assistance of counsel claim is not reviewable
by this Court, except to the extent it
concerns the voluntariness of petitioner’s
plea. However, assuming arguendo that this
claim was properly before this Court, as
discussed infra, this claim is clearly without
merit.
2d 295, 300-01 (W.D.N.Y. 2004) (citing
New York cases); accord Larweth v.
Conway, 493 F. Supp. 2d 662, 668-69
(W.D.N.Y. June 29, 2007) (“In New York,
the firmly established and regularly
followed rule for preserving a claim that a
guilty plea was involuntarily entered
requires a defendant to move to withdraw
the plea or to vacate the judgment of
conviction.” (internal citations and quotation
marks omitted)); Vibbert v. Superintendent,
No. 09-CV-506 (GTS/DRH), 2010 WL
1817821, at *3 (N.D.N.Y Mar. 26, 2010)
(Report and Recommendation) (“[A]lthough
[petitioner]’s contention that his plea was
not knowingly entered survives the waiver
of the right to appeal, by failing to move to
withdraw his plea or to vacate the judgment
before his initial appeal, [petitioner] failed to
preserve his claim for federal habeas review.
The procedural bar relied upon by the
Appellate Division in this case was firmly
established and regularly followed, and
therefore constitutes an adequate state-law
ground barring review of the merits of
[petitioner]’s claim.” (internal citation and
quotation marks omitted)).
c. Validity of Guilty Plea
Petitioner argues that his guilty plea was
not knowing, intelligent, and voluntary
because: (1) the statement according to
which he was adjudicated as a persistent
violent felony offender was defective; and
(2) he received ineffective assistance of
counsel. (Pet’r’s Br. at 7.) As to petitioner’s
first argument, respondent argues that
petitioner’s claim is procedurally barred
because petitioner failed to withdraw his
plea on the basis that it was not knowing,
voluntary and intelligent. (Resp’t’s Br. at
18.) The Court agrees with respondent and
finds this claim to be procedurally barred
because petitioner did not move to withdraw
his plea on the basis of its purported
involuntary nature, or to vacate the
judgment of conviction. This leaves the
claim unpreserved for review and serves as
an independent and adequate state law
ground wherefrom federal habeas review is
denied.
The
Appellate
Division
found
“defendant’s contention that the omission of
the tolling information rendered his plea less
than knowing, voluntary and intelligent is
unpreserved for appellate review because he
did not move to withdraw his plea on this
basis.” Haynes, 70 A.D.3d at 719 (internal
citations omitted). The Appellate Division
thus disposed of petitioner’s claim based on
established New York law that a defendant’s
failure to withdraw a plea or to vacate a
judgment of conviction leaves his claim of
an involuntary guilty plea unpreserved for
review. Therefore, petitioner’s claim cannot
be reviewed by this Court because it was
decided on an independent and adequate
In order to preserve a claim that a guilty
plea was involuntarily made, New York
courts have held that “a defendant must
either move to withdraw the plea under
C.P.L. § 220.60(3) or move to vacate the
judgment of conviction under C.P.L.
§ 440.10.”9 Snitzel v. Murry, 371 F. Supp.
9
C.P.L. § 220.60(3) provides that: “At any time
before the imposition of a sentence, the court in its
discretion may permit a defendant who has entered a
plea of guilty to the entire indictment or to part of the
indictment, or a plea of not responsible by reason of
mental disease or defect, to withdraw such plea, and
in such event the entire indictment, as existed at the
time of such plea, is restored.”
11
state procedural ground. See Coleman, 501
U.S. at 729-31. Accordingly, federal habeas
review of this claim is foreclosed.10
B. The Merits
1. Constitutionality of New York’s
Persistent Violent Felony Offender
Notwithstanding petitioner’s failure to
preserve his claim of an involuntary guilty
plea, this Court may still review the merits
of this claim if petitioner can demonstrate
both cause for the default and prejudice
resulting therefrom, or if he can demonstrate
that the failure to consider the claim will
result in a miscarriage of justice. Coleman,
501 U.S. at 750. Here, petitioner has failed
to demonstrate cause or prejudice. Petitioner
does not offer any arguments for why he did
not move to withdraw his plea or to vacate
his judgment of conviction. To the extent
petitioner suggests that the procedural
default was a result of ineffective assistance
of counsel, “[w]here, as here, a petitioner
cannot prevail on the merits of his claim[],
he cannot overcome a procedural bar by
claiming ineffective assistance of counsel.”
McLeod v. Graham, No. 10 Civ.
3778(BMC), 2010 WL 5125317, at *4
(E.D.N.Y. Dec. 9, 2010) (citing Aparcio v.
Artuz, 269 F.3d 78, 99 n.10 (2d Cir. 2001);
Larrea v. Bennett, 368 F.3d 179, 182 (2d
Cir. 2004)). Petitioner has also failed to
show that a miscarriage of justice would
occur if the Court failed to review his claim
on the merits. Thus, petitioner’s claim of an
involuntary guilty plea is barred from
federal habeas review on state procedural
grounds. However, assuming arguendo that
this claim was properly before this Court, as
discussed infra, this claim is clearly without
merit.
Petitioner claims that New York’s
persistent violent felony offender sentencing
statute,
Penal
Law
§ 70.08,
is
unconstitutional and in contravention of
Supreme Court rulings because it denies him
the right to a jury trial. (Pet’r’s Br. at 9.)
Petitioner presumably relies on Apprendi,
530 U.S. at 490, and Ring v. Arizona, 536
U.S. 584, 597 n.4 (2002). For the reasons set
forth below, petitioner’s claim fails on the
merits and does not provide a basis for
habeas relief.
Penal Law § 70.08 requires that, when
the sentencing court finds that a person who
“stands convicted of a violent felony
offense” has previously “been subjected to
two or more predicate violent felony
convictions,” then it “must impose an
indeterminate sentence of imprisonment, the
maximum term of which shall be life
imprisonment,” and the minimum term of
which depends on the nature of the violent
felony offense for which the defendant
stands convicted. N.Y. Penal Law § 70.08.
In Apprendi, the Supreme Court
determined that “[o]ther than the fact of a
prior conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490; see also
Cunningham v. California, 549 U.S. 270,
281 (2007); People v. Quinones, 12 N.Y.3d
116, 122-24; People v. Rivera, 5 N.Y.3d 61,
67 (2005).
10
In addition, the Appellate Division’s reliance on
the procedural ground with respect to petitioner’s
claim of an involuntary guilty plea was not exorbitant
in this case. See Lee, 534 U.S. at 376. Having
considered the factors set forth in Cotto, 331 F.3d at
240, in connection with this exception, the Court
concludes that the Appellate Division did not apply
the independent and adequate state law ground in an
exorbitant manner.
Although the Second Circuit has not
ruled on the validity of Penal Law § 70.08 in
light of Apprendi challenges, it has
addressed the validity of New York’s
12
parallel recidivist enhancement statute,
Penal Law § 70.10, in appeals raising
identical contentions. Under Penal Law
§ 70.10, the court is allowed to enhance a
convicted felon’s sentence if that felon has
both: (1) two prior felony convictions; and
(2) a history and character such that the
court may find extended incarceration to be
warranted and in the public’s best interest.
Id. The Second Circuit held that it was not
unreasonable for the state courts to uphold
this statute because this recidivist sentencing
scheme was distinct from those that had
been struck down by the Supreme Court in
the wake of Apprendi. See Portalatin v.
Graham, 624 F.3d 69, 93 (2d Cir. 2010) (en
banc). Under Penal Law § 70.10, unlike the
statutes that had been overturned, “the
predicate felonies alone expand the
indeterminate sentencing range within which
the judge has the discretion to operate, and
that discretion is cabined only by an
assessment of defendant's criminal history.”
Id. at 94.
established Supreme Court precedent.”);
Martin v. Ercole, No. 07-CV-7171(KMK),
2012 WL 4465854, at *3 (S.D.N.Y. Sept.
27, 2012) (“[C]ourts have consistently
rejected the claim . . . that sentences based
on a judge's determination that the defendant
is a persistent violent felon, pursuant to N.Y.
Penal Law § 70.08, are unconstitutional.”).
Moreover, the Second Circuit’s decisions
upholding Penal Law § 70.10, which
provides more discretion to trial courts than
70.08, “confirm[s], a fortiori, the
constitutionality of § 70.08.” Boutte v.
Poole, No. 07 Civ. 8412(GEL), 2008 WL
3166696, at *4 (S.D.N.Y. Aug. 4, 2008).
Unlike New York’s persistent felony
offender statute, the persistent violent felony
offender statute pursuant to which petitioner
was sentenced requires only a finding that
the defendant had two or more predicate
violent felony offenses. See N.Y. Penal Law
§ 70.08. Because Penal Law § 70.08
enhances a defendant’s liability based solely
on the facts of prior convictions, district
courts in this circuit have rejected similar
challenges to this statute based on the
principles articulated in Apprendi; the Court
agrees with the analysis contained in these
decisions. See, e.g., Crowder v. Ercole, No.
09-cv-3401(CBA), 2012 WL 5386042, at
*16 (E.D.N.Y. Nov. 2, 2012) (“Apprendi,
however, explicitly carved out an exception
for the fact of a prior conviction . . . Thus,
the Appellate Division's determination that
New York's persistent violent felony
offender is constitutional was not contrary to
or an unreasonable application of clearly
Petitioner claims that he was improperly
adjudicated as a persistent violent felony
offender because the prosecution failed to
fully comply with N.Y. Crim. Proc. Law
§ 400.16(2).11 (Pet’r’s Br. at 10.)
Specifically, petitioner asserts that he was
unable to ascertain the appropriate use of a
1983 conviction as a predicate felony
because of the prosecution’s error. (Id.) For
the reasons discussed infra, petitioner’s
claim fails on the merits, and the Court
denies relief.
In sum, the Appellate Division’s
affirmance of petitioner’s conviction and
enhanced sentence is consistent with
Apprendi. Petitioner’s claim on this ground
therefore fails.
2. Adjudication as a Persistent Violent
Felony Offender
11
N.Y. Crim. Proc. Law § 400.16(2) provides that:
“The requirements set forth in subdivision[]
two . . . of section 400.15 with respect to the
statement to be filed . . . shall also apply to a
determination of whether a defendant has been
subject to two or more violent predicate felony
convictions and is a persistent violent felony
offender.”
13
In addressing the legality of the
procedure used to adjudicate petitioner as a
persistent violent felony offender, the
Appellate Division noted that “the defendant
does not dispute that his incarceration was
long enough that the prior sentence was
imposed within the 10-year limitation
period. Under the circumstances, the
omission of the tolling information in the
statement was harmless.” Haynes, 70
A.D.3d at 719. Because the Appellate
Division’s decision was on the merits,12 this
Court will apply the deferential AEDPA
standard of review to petitioner’s claim. See,
e.g., Dolphy v. Mantello, 552 F.3d 236, 238
(2d Cir. 2009) (“When the state court has
adjudicated the merits of the petitioner’s
claim, we apply the deferential standard of
review established by [AEDPA] . . . .”).
§ 70.04(1)(b)(iv). If the sentencing of a prior
conviction exceeds this ten year limitation
period, the prosecutor must file a statement
that includes “the date of commencement
and the date of termination as well as the
place of imprisonment for each period of
incarceration . . . .” N.Y. C.P.L. § 400.15(2).
Although petitioner contends that the
prosecutor violated N.Y. Crim. Proc. Law
§ 400.16(2) by failing to include the date of
commencement and the date of termination,
as well as the place of imprisonment for
each period of incarceration, this claim
asserts only a state law violation, which is
not cognizable on federal habeas corpus
review. See Estelle v. McGuire, 502 U.S.
62, 67-68 (1991) (“[I]t is not the province of
a federal habeas court to reexamine statecourt determinations on state-law questions.
In conducting habeas review, a federal court
is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of
the United States.”); Knapp v. Leonardo, 46
F.3d 170, 181 (2d Cir. 1995).
i. No Review of State Law Violations
For a conviction to qualify as a predicate
felony under New York Penal Law
§ 70.08(1)(a), the sentencing of such
conviction “must have been imposed not
more than ten years before commission of
the felony of which the defendant presently
stands convicted.”13 N.Y. Penal Law
ii. Failure to Raise an Objection
Even assuming, arguendo, that this state
law claim can be reviewed in federal court,
petitioner’s contention fails because during
the plea proceeding, petitioner did not
contest the use of the prior convictions
contained in the predicate felony statement.
As this Court has stated, “when . . . the
defendant fails to raise an objection, and
when, as a result, the legality of the sentence
cannot be determined by this court upon the
information contained in the appellate
record, review as a matter of law should be
denied.” Delston v. New York, No. 07-CV-
12
An “adjudication on the merits” is one that (1)
disposes of the claim on substantive grounds, and (2)
reduces that disposition to judgment. Eze v.
Senkowski, 321 F.3d 110, 122 (2d Cir. 2003). “An
issue may be considered to be adjudicated on its
merits even when the state court does not specifically
mention the claim but uses general language referable
to the merits.” Id.
13
To calculate the ten year limitation period set forth
in Penal Law § 70.04(1)(b)(iv), subparagraph (v) of
the same subdivision states: “Any period of time
during which the person was incarcerated for any
reason between the time of the commission of the
previous felony and the time of commission of the
present felony shall be excluded and such ten year
period shall be extended by a period or periods equal
to the time served under such incarceration.” N.Y.
Penal Law § 70.04(1)(b)(v). Here, petitioner has not
provided information, nor does the record clearly
indicate, that the persistent violent felony offender
statute was inapplicable at his sentencing. Moreover,
the record indicates that petitioner has been convicted
ten times between the time of the commission of the
1983 felony and the time of commission of the
current felony. (NYS DCJS Repository Response,
ECF No. 10-3.)
14
4373(JFB), 2010 WL 3004591, at *10
(E.D.N.Y. July 29, 2010).14
During the course of petitioner’s plea,
the purpose of the predicate felony statement
was served. Thus, petitioner had notice of
the predicate felonies the People wished to
use against him in seeking a persistent
violent felony offender status; moreover,
petitioner had the opportunity to assert his
objections, such as the use of a prior
conviction exceeding the ten year limitation
period. As the transcript of the plea hearing
demonstrates,
petitioner
received
“reasonable notice and an opportunity to be
heard,” Oyler v. Boles, 368 U.S. 448, 452
(1962), relative to the predicate felonies that
were used to adjudicate him as a persistent
violent felony offender under New York’s
recidivist sentencing statute. Petitioner did
not controvert the use of his prior
convictions; petitioner cannot now challenge
the trial judge’s reliance on a conviction that
he did not contest at the plea hearing. See
Delston, 2010 WL 3004591, at *10. Given
petitioner’s notice of the predicate felonies
to serve in his adjudication as a persistent
violent felony offender, and his opportunity
to controvert the use thereon, review as a
matter of law is denied.15
At the plea proceeding, petitioner did not
contest the use of either the 1983 or 2001
convictions. (P. at 17.) When asked how he
wished to respond to these accusations,
petitioner voluntarily admitted them, instead
of standing mute or denying them. (Id. at
18.) Although not the case for the 2001
conviction, petitioner’s 1983 conviction
clearly falls outside the ten year limitation
period set forth in New York Penal Law §
70.04(1)(b)(iv); objecting on this ground at
the plea hearing would thus seem apparent,
even if specific factual information pursuant
to N.Y. Crim. Proc. Law § 400.16(2) was
omitted. However, petitioner failed to
contest the use of the 1983 conviction at the
time of his plea. (Id. at 17.) Moreover,
petitioner conferred with his attorney before
admitting to the predicate convictions. (Id. at
15.)
14
In Delston, the petitioner alleged that his
adjudication as a second felony offender was
improper on two grounds. First, the petitioner
contended that his adjudication was improper
because the prosecutor did not file the requisite prior
felony offender statement before the sentencing
proceeding. Because the sentencing court allegedly
failed to compare the statute on which the petitioner’s
felony conviction was based to the comparable New
York statute, petitioner also argued that the
sentencing court did not adequately determine if his
conduct would be a felony in New York. Id. In
rejecting petitioner’s claim, this Court noted that,
“‘the essential purpose of the predicate felony
statement has been served when the prosecution has
identified the prior conviction upon which it will rely
in seeking a second felony offender adjudication.
Once the predicate felony conviction has been
identified, the defendant is fully able to assert
whatever reason he might have for believing that
such conviction may not be used to enhance his
sentence.’” Id. (quoting People v. Sullivan, 153
A.D.2d 223, 232-33 (2d Dep’t 1990) (collecting
cases)). Delston therefore waived his right to
challenge the use of his prior conviction and its
validity by failing to contest the use thereof or
request a hearing thereon. Id.
iii. No Collateral Attack on Prior
Convictions
Even
assuming
arguendo
that
petitioner’s claim was reviewable and that
petitioner adequately stated his grounds for
contesting the 1983 conviction, the claim is
without merit. As the Supreme Court stated
15
To the extent that petitioner challenges his
adjudication as a persistent violent felony offender on
the ground that the 1983 conviction was
unconstitutional, petitioner waived his right to
controvert the validity of this conviction by failing to
raise such an objection at the time of his plea. See
Delston, 2010 WL 3004591, at *10; Phelps v.
McLellan, 95 Civ. 7868(JFK), 1998 WL 470511, at
*1 (S.D.N.Y. Aug. 11, 1998); People v. Dickerson,
202 A.D.2d 247, 247 (1st Dep’t 1994). In any event,
petitioner has not set forth an adequate basis for a
finding that the 1983 conviction was unconstitutional.
15
decision was either an unreasonable
determination or contrary to clearly
established federal law.
in Lackawanna County District Attorney v.
Coss,
once a state conviction is no longer
open to direct or collateral attack in
its own right . . . the conviction may
be regarded as conclusively valid. If
that conviction is later used to
enhance a criminal sentence, the
defendant generally may not
challenge the enhanced sentence
through a petition under § 2254 on
the ground that the prior conviction
was unconstitutionally obtained.
3. Validity of Guilty Plea
Petitioner argues that his guilty plea was
less than voluntary, knowing, and intelligent
because the predicate statement allocuted to
him by the court did not list specific factual
information set forth in N.Y. Crim. Proc.
Law § 400.15(2). (Pet’r’s Br. at 7-9.)
Petitioner also argues that his guilty plea
was involuntarily induced because he
received ineffective assistance of counsel.
(Id.) As discussed supra, this Court finds
that petitioner’s claim is procedurally barred
on an independent and adequate state-law
ground. Even if it were not, petitioner’s
claim is without merit. The Court therefore
denies petitioner habeas relief on this
ground.
532 U.S. 394, 403-04 (2001) (citation
omitted). The Court recognized an exception
to this general rule for Ҥ 2254 petitions that
challenge an enhanced sentence on the basis
that the prior conviction used to enhance the
sentence was obtained where there was a
failure to appoint counsel in violation of the
Sixth Amendment . . . .” Id. at 404. “Thus, it
is clear that the Supreme Court has sharply
distinguished between collateral attacks to
previous convictions used for enhancing a
sentence between those based on actual
failure to appoint counsel and those based
on other possible trial defects, including the
denial of the effective assistance of
counsel.” Bowers v. Miller, No. 05-CV6023L, 2009 WL 2045680, at *16
(W.D.N.Y. July 10, 2009).
In addressing the alleged effect of
petitioner’s factually insufficient predicate
felony statement on the voluntariness of his
plea, the Appellate Division stated that “the
omission of the tolling information in the
statement was harmless.” Haynes, 70
A.D.3d at 719. The Appellate Division’s
decision was clearly on the merits of the
petitioner’s claims; therefore, the deferential
AEDPA standard of review must be applied.
In applying this standard, the Court finds
that the Appellate Division’s decision was
not contrary to, or an unreasonable
application of, Supreme Court precedent.
Petitioner does not argue that he was
denied counsel in his 1983 conviction.
Rather, it appears that he argues his counsel
in the 1983 case was ineffective for failing
to procure youthful offender status.
Petitioner’s
1983
conviction
was
conclusively valid. As such, habeas relief is
not warranted.
*
*
a. Legal Standard
“The longstanding test 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) (internal
quotation marks and citations omitted)); see
*
For these reasons, there is no basis for
this Court to conclude that the state court’s
16
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.”
Bousley v. United States, 523 U.S. 614, 619
(1998) (internal alteration, citations, and
quotation marks omitted).
also Parke v. Raley, 506 U.S. 20, 28-29
(1992) (plea is valid when it is both
knowingly and voluntarily made). Where “a
defendant is represented by counsel during
the plea process, and enters his 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.”
Hill, 474 U.S. at 56 (internal quotation
marks and citations omitted).
b. Application
There is nothing in the record to indicate
that petitioner’s plea was less than
voluntary, knowing, and intelligent. A
review of the transcript from the plea
hearing demonstrates that petitioner was
informed and aware of the consequences of
his guilty plea. In fact, petitioner fully
recognized the nature of the charges against
him and the rights he was waiving by
entering a guilty plea. (P. at 6-8.) Petitioner
assured the court that he was entering the
plea, including the waiver of his right to
appeal, freely and voluntarily. (Id. at 8.)
Moreover, petitioner denied that his decision
to plead guilty was the result of any threats
or coercion. (Id. at 9.) Petitioner also stated
to the court that he was not under the
influence of any drugs, medicine, alcohol or
any substance that could affect or impair his
ability during the plea proceeding. (Id.) To
the extent petitioner alleges that his guilty
plea was involuntarily induced due to the
ineffective assistance of his counsel,
petitioner has not put forth any information
in support of this contention. On the
contrary, petitioner stated at his plea hearing
that he had a sufficient amount of time to
discuss the plea with his attorney, and that
he
was
satisfied
with
counsel’s
representation. (Id. at 5-6.) During the plea
hearing, petitioner also consulted with his
attorney before and after the court allocuted
him to the predicate statement pursuant to
N.Y. Crim. Proc. Law § 400.16(2). (Id. at
15, 18.) Therefore, the record does not
indicate that petitioner’s guilty plea was less
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)
(internal quotation marks and citations
omitted); accord Godinez v. Moran, 509
U.S. 389, 400 (1993). While a guilty plea “is
not ordinarily subject to collateral attack,” it
“may be collaterally attacked if it was not
knowing or not voluntary . . . .” Salas v.
United States, 139 F.3d 322, 324 (2d Cir.
1998); see also U.S. ex rel Scott v.
Mancussi, 429 F.2d 104, 107 (2d Cir. 1970)
(“[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.”).
“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 rudimentary way,’ 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.
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
17
4-7.) As discussed supra, this Court finds
that petitioner’s ineffective assistance of
counsel claims are procedurally barred, and
to the extent that petitioner bases such
claims on his attorney’s failure to
investigate, this Court finds petitioner’s
claims unexhausted and thus not properly
reviewable. For the reasons set forth below,
this Court also determines that petitioner’s
claims of ineffective assistance of counsel
are without merit.
than voluntary, knowing, and intelligent
because he received ineffective assistance of
counsel.
In light of the statements set forth in the
transcript from the plea, petitioner’s
unsupported claim that his guilty plea was
not voluntary does not warrant habeas relief.
A criminal defendant’s self-inculpatory
“[s]olemn declarations in open court carry a
strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Such
statements “are generally treated as
conclusive in the face of the defendant’s
later attempt to contradict them.” Adames v.
United States, 171 F.3d 728, 732 (2d Cir.
1999) (citations omitted). Considering the
great weight given to a defendant’s
statements made during his plea, petitioner
has failed to demonstrate that his current
allegations merit serious consideration.
Therefore, the Court finds that petitioner’s
guilty plea was voluntary, knowing, and
intelligent.
The state court decision
regarding the voluntariness of petitioner’s
plea was neither contrary to nor an
unreasonable
application
of
clearly
established Supreme Court precedent, nor an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
In its decision, the Appellate Division
stated that “the defendant was afforded
meaningful representation.” Haynes, 70
A.D.3d at 718-19. Because the Appellate
Division disposed of petitioner’s claim on
the merits, this Court must apply the
deferential AEDPA standard of review. See,
e.g., Dolphy, 552 F.3d at 238.
a. Legal Standard
Under the standard promulgated in
Strickland v. Washington, 466 U.S. 668
(1984), a defendant is required to
demonstrate two elements in order to state a
successful claim for ineffective assistance of
counsel: that (1) “counsel’s representation
fell below an objective standard of
reasonableness,” 466 U.S. at 680, 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 694.
4. Ineffective Assistance of Counsel
Petitioner further contends that he
received ineffective assistance of counsel
because counsel failed to: (1) explore the
constitutionality of petitioner’s 1983
conviction; (2) challenge the inclusion of
petitioner’s prior violent felony convictions
in the predicate statement filed pursuant to
N.Y. Crim. Proc. Law § 400.16(2), as a
violation of the principles announced in
Crawford; and (3) address petitioner’s drug
use at either the plea or sentencing hearing,
despite the presentence investigation report
making note of such history. (Pet’r’s Br. at
The first prong requires a showing that
counsel’s performance was deficient.
However,
“[c]onstitutionally
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
18
professionally unreasonable, does not
warrant setting aside the judgment of a
criminal proceeding if the error had no
effect on the judgment.’” Lindstadt v.
Keane, 239 F.3d 191, 204 (2d Cir. 2001)
(quoting Strickland, 466 U.S. at 691).
Moreover, “[u]nlike the determination of
trial counsel’s performance under the first
prong of Strickland, the determination of
prejudice may be made with the benefit of
hindsight.” Hemstreet v. Greiner, 491 F. 3d
84, 91 (2d Cir. 2007) (internal quotation
marks and citations omitted).
performance
inquiry
examines
the
reasonableness of counsel’s actions 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. (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. (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 a
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 (quoting
Strickland, 466 U.S. at 690-91). “However,
‘strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.’” Id. (quoting
Strickland, 466 U.S. at 690-91.)
This Court proceeds to examine
petitioner’s claim, keeping in mind that the
habeas petitioner bears the burden of
establishing both deficient performance and
prejudice. United States v. Birkin, 366 F.3d
95, 100 (2d Cir. 2004).
b. Application
i. Failure to Explore the Constitutionality of
Petitioner’s 1983 Conviction
Petitioner alleges that the failure of
defense counsel to inquire into the validity
of his 1983 conviction constituted
ineffective assistance of counsel. (Pet’r’s Br.
at 6-7.) Petitioner argues that he could have
been adjudicated as a youthful offender
when he was convicted in 1983, and counsel
should have investigated whether his failure
to be adjudicated as such was
unconstitutional. (Id. at 6.) As discussed
supra, petitioner’s claim is procedurally
barred by his valid waiver of the right to
appeal. Furthermore, there is no evidence in
the record to support petitioner’s claim
based on counsel’s failure to investigate the
validity of his 1983 conviction. Therefore,
petitioner’s claim of ineffective assistance of
counsel is not exhausted and is procedurally
barred. Even assuming, arguendo, that
petitioner’s claim can be reviewed, it lacks
The second prong focuses on prejudice
to a petitioner. A 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.
“Reasonable probability” means that the
errors were of a magnitude such that it
“‘undermine[s] confidence in the outcome.’”
Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir.
2001) (quoting Strickland, 466 U.S. at 694).
“‘[T]he question to be asked in assessing the
prejudice from counsel’s errors . . . is
whether there is a reasonable probability
that, absent the errors, the fact finder would
have had a reasonable doubt respecting
guilty.’” Henry v. Poole, 409 F.3d 48, 63-64
(2d Cir. 2005) (quoting Strickland, 466 U.S.
at 695. “‘An error by counsel, even if
19
merit and cannot be the basis for habeas
relief.
during the plea hearing, petitioner did not
raise any constitutional objections to his
prior convictions when prompted by the
court. (P. at 18.) Thus, it was not
unreasonable for counsel to fail to inquire
into the constitutionality of petitioner’s 1983
conviction when the evidence does not
indicate that counsel was aware of any
reason to do so. Applying the appropriately
“heavy measure of deference to counsel’s
judgments” regarding which issues to
investigate and to what extent, Strickland,
466 U.S. at 691, the Court concludes that
counsel’s performance was not deficient.
Under New York law,
[w]here a defendant fails to
challenge the constitutionality of a
prior conviction at the appropriate
time, and fails to demonstrate good
cause for such failure, he waives any
future
challenge
to
the
constitutionality
of
the
prior
conviction for sentence enhancement
purposes . . . . Where such predicate
violent felony offender finding has
been made, it shall be binding upon
that defendant in any future
proceeding in which the issue may
arise. Furthermore, a defendant is
precluded by statute from contesting
the use of a prior conviction as a
predicate conviction where he has
previously been adjudicated a second
violent felony offender based on that
conviction.
Even if petitioner raised his concerns to
his counsel, given petitioner’s failure to
challenge the 1983 conviction at the
appropriate time, and the reliance on the
1983 conviction in the 2001 sentencing,
counsel’s performance in not challenging
the constitutionality of the 1983 conviction
was well within the objective standard for
reasonableness under Strickland. (See P. at
12 (“You’ve already been deemed what is
known as a prior violent felony offender.”)).
People v. Odom, 63 A.D.3d 408, 409 (1st
Dep’t 2009) (citations omitted).
Even if this Court assumes that counsel’s
performance was deficient, petitioner is
unable to demonstrate that he was
prejudiced as a result; therefore he does not
satisfy Strickland’s second prong. As
Petitioner has failed to satisfy either
prong of the Strickland test. First, as far as
the record before this Court shows, there
was nothing to put petitioner’s counsel on
notice that his 1983 conviction may have
possibly been unconstitutional.16 In fact,
cases be unreasonable under professional norms, this
is not such a case. It was not unreasonable for
counsel to fail to contest the prior guilty plea when he
was unaware of any grounds on which to contest it.”)
with Mask v. McGinnis, 28 F.Supp.2d 122, 123-35
(S.D.N.Y. 1998) (where New York law clearly
provides that, in order to be adjudicated a violent
persistent felony offender, a defendant must have at
least two prior convictions and sentence must have
been imposed for the prior convictions before
commission of the present felony, defense counsel’s
failure to recognize defendant’s status as a second
violent felony offender rather than a persistent violent
felony offender – by virtue of the fact that he had not
yet been sentenced on one of the two prior felony
convictions – constituted ineffective assistance), aff’d
233 F.3d 132 (2d Cir. 2000).
16
There is nothing in the record to suggest that
petitioner’s counsel was aware of any constitutional
problems with the prior convictions. Compare Nunez
v. Costello, 93 Civ. 5282(JSM), 1994 WL 719686, at
*4 (S.D.N.Y. Dec. 28, 1994) (“[T]he court refuses to
second-guess the failure of petitioner’s counsel at
sentencing to inquire as to the constitutionality of
petitioner’s [prior] conviction” because “[a]fter
conferring with counsel, petitioner voiced no
objection to the prior conviction.”) and Pendleton v.
Scully, 664 F.Supp. 100, 104 (S.D.N.Y. 1987)
(“While counsel’s failure to inquire into the
circumstances of the prior conviction might in some
20
establishes representation “below an
objective standard of reasonableness.”
Strickland, 466 U.S. at 680. Thus, the Court
does not find counsel’s performance to be
constitutionally defective in this respect.
Strickland makes clear, petitioner must show
that there is “a reasonable probability, that
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different.” Id. at 694. However, petitioner
does not allege that he would have chosen
not to plead guilty but for counsel’s failure
to investigate the validity of his 1983
conviction. Accordingly, petitioner’s claim
fails.
Notwithstanding petitioner’s failure to
satisfy the first prong of Strickland,
petitioner also is unable to demonstrate that
he was prejudiced as a result of counsel’s
failure to raise a Crawford challenge to the
predicate statement. Petitioner has not
alleged that, but for counsel’s purported
error, a reasonable probability exists that
“the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
Therefore, petitioner has failed to reach the
second prong of Strickland.
c. Failure to Challenge Predicate Statement
as a Violation of Crawford
Petitioner alleges that his counsel’s
failure to challenge the predicate statement
as a violation of Crawford constitutes
ineffective assistance of counsel. (Pet’r’s Br.
at 7.) As an initial matter, petitioner’s claim
of ineffective assistance of counsel is
procedurally barred through an independent
and adequate state-law ground, as discussed
supra. However, even assuming arguendo
that petitioner’s claim is reviewable,
petitioner has failed to satisfy the standard
set forth in Strickland. The claim is therefore
denied by this Court.
d. Failure to Address Petitioner’s Drug Use
Petitioner also alleges that his counsel’s
failure to address his drug use at either the
plea or sentencing hearing constitutes
ineffective assistance of counsel. (Pet’r’s Br.
at 7.) As a threshold matter, petitioner’s
ineffective assistance of counsel claim is
procedurally barred as discussed supra.
However, even assuming arguendo that this
claim could be reviewed, petitioner has
failed to satisfy the first prong of Strickland.
Although petitioner notes that his drug use
and its relation to the crime were mentioned
in the presentence investigation report, he
fails to suggest how or why counsel should
have presented this information to the court.
As petitioner has failed to demonstrate how
his counsel’s behavior in this regard fell
outside the “wide range of professionally
competent assistance,” Strickland, 466 U.S.
at 690, he does not meet the first prong of
Strickland. In any event, petitioner fails to
satisfy the second prong of Strickland
because he has not demonstrated how
counsel’s failure to address his drug use at
either the plea or sentencing hearing has
First, petitioner has failed to show that
counsel’s failure to raise a Crawford
challenge to the inclusion of his prior
convictions in the predicate statement
represents deficient performance. In fact, the
Second Circuit has found that the right of
confrontation does not pertain to sentencing
proceedings. See United States v. Martinez,
413 F.3d 239, 242 (2d Cir. 2005) (“Both the
Supreme Court and this Court, however,
have consistently held that the right of
confrontation does not apply to the
sentencing context and does not prohibit the
consideration of hearsay testimony in
sentencing proceedings.”). Because the right
of confrontation is inapplicable in
sentencing proceedings, petitioner has not
shown how counsel’s failure to raise a
Crawford challenge at the plea hearing
21
prejudiced him. This Court finds that
petitioner’s claim is without merit.
Because petitioner has not demonstrated
that he was denied effective assistance of
counsel or that he was prejudiced by any of
counsel’s alleged deficiencies, petitioner’s
claim for habeas relief on this ground fails.
IV. CONCLUSION
For the foregoing reasons, the Court
finds that the petitioner has demonstrated no
basis for habeas relief under 28 U.S.C.
§ 2254.
All of petitioner’s claims are
plainly without merit.
Therefore, the
petition for a writ of habeas corpus is
denied. Because petitioner has failed to
make a substantial showing of a denial of a
constitutional right, no certificate of
appealability shall issue. See 28 U.S.C.
§ 2253(c)(2). The Clerk of the Court shall
enter judgment accordingly and close this
case.
SO ORDERED.
_____________________
JOSEPH F. BIANCO
United States District Judge
Dated: December 21, 2012
Central Islip, New York
* * *
Petitioner is proceeding pro se. Respondent
is represented by Thomas Spota, District
Attorney of Suffolk County, by Karla L.
Lato, 200 Center Drive, Riverhead, NY
11901.
22
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