Martinez v. Superintendent of Eastern Correctional Facility

Filing 45

OPINION AND ORDER. For the reasons set forth herein, Martinez's petition for a writ of habeas corpus is denied. Since petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appeal ability shall not issue. 28 U.S.C. § 2253(c) (2). The court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith and therefore in forma pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment for respondent. Ordered by Judge Nina Gershon on 10/31/2016. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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David MARTINEZ,

OPINION AND ORDER
Petitioner,
11-cv-4330 (NG)
- v. -

SUPERINTENDENT OF EASTERN
CORRECTIONAL FACILITY,
Respondent.

FILEU

JN OU:RK'S OFFJO!
U.I. DISTRICT COURT E.D.N.Y.

* OCT312016 *
BROOKLYN OFFICE

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GERSHON, United States District Judge:

Petitioner David Martinez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254
vacating his conviction in New York Supreme Court, Nassau County by guilty plea, on murder,
robbery, assault, and related firearm charges, or in the alternative, eliminating the supervised
release component of his sentence. Martinez filed his habeas petition prose on August 30, 2011,
more than three years after his state conviction had become final, and long after the expiration of
the one-year limitations period provided by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), 28 U.S.C. § 2244(d)(l).
I dismissed Martinez's petition by order dated April 15, 2014, concluding that he was not
entitled to equitable tolling and that post-conviction remedies he pursued in state court did not
trigger statutory tolling because they were initiated after the limitations period had run. Martinez
v. Superintendent of E. Corr. Facility, 15 F. Supp. 3d 226 (E.D.N.Y. 2014). The Second Circuit
vacated that decision and remanded for further proceedings on the issue of equitable tolling.
Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27 (2d Cir. 2015).

On remand, I appointed counsel for Martinez. After conducting a hearing on April 13,
2016, at which Martinez and his sister testified, both credibly, I conclude, for reasons to follow,
that Martinez is entitled to equitable tolling and his petition is therefore timely.
As to the merits, Martinez asserts five claims: (1) his plea was not knowing and voluntary;
(2) he was denied effective assistance of trial counsel; (3) he was denied effective assistance of
appellate counsel; (4) his sentence was coerced and excessive in violation of the 8th Amendment;
and (5) the supervised release component of his sentence is in violation of the 8th and 14th
Amendments. Counsel supplemented claims (1) and (3) of the prose petition. At the request of
this court, Randall Bekoff, Esq., petitioner's trial counsel, filed an affidavit dated July 29, 2016
setting forth in detail the circumstances surrounding the plea and sentencing. His affidavit is not
contested by petitioner. For the reasons stated below, Martinez's application for a writ of habeas
corpus is denied.
Martinez's Conviction and Sentence

On July 20, 2007, Martinez pleaded guilty before Justice David J. Ayres in New York
Supreme Court to attempted murder in the first degree, N.Y. Penal Law §§ 110.00, 125.25, two
counts ofrobbery in the first degree,§ 160.15, two counts of assault in the first degree,§ 120.10,
criminal use of a firearm in the first degree, § 265.09, criminal possession of a weapon in the
second degree, § 265.03, and criminal possession of a weapon in the third degree, § 265.02. The
top count carried a possible penalty of 25 years of confinement. Justice Ayres agreed to sentence
Martinez to no more than twelve years' imprisonment followed by a term of supervised release
and restitution.
Leading up to the plea, Martinez and his attorney were under the impression that, as part
of the plea agreement, Justice Ayres had agreed to sentence Martinez to ten years in prison. At ·

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the plea, however, Justice Ayres informed Martinez that he would be willing to commit only to
sentence Martinez to no more than twelve years, with a possibility of sentencing him to ten years.
After adjourning to confer with his attorney, Martinez decided to proceed with the plea under this
agreement. Justice Ayres confirmed with Martinez's counsel that Martinez understood that the
maximum possible sentence would be twelve years and not ten. Justice Ayres twice more asked
Martinez personally if he understood that the maximum sentence could be twelve years. Martinez
indicated both times that he did. Martinez also stated that no one forced him to plead guilty, and
he agreed to waive his right to appeal.
In January 2008, approximately a month prior to his sentencing, Martinez appeared again
with counsel before Justice Ayres to sign a Post Release Supervision Advisement. Martinez signed
the document in open court acknowledging that he understood that he would be under supervised
release for five years after his release from prison.
On February 11, 2008, Justice Ayres sentenced Martinez to twelve years' imprisonment,
five years' supervised release, and restitution. During the sentencing proceeding, Martinez's
attorney stated that he had reviewed the sentencing agreement with Martinez that same day, and
Martinez himself stated that he understood the supervised release component of his sentence.
Equitable Tolling

In my earlier order dismissing Martinez's petition as time-barred, I relied on Doe v.
Menefee, 391 F.3d 147 (2d Cir. 2004), to conclude that, although the attorney Martinez's family

had hired after his sentence, Anthony Denaro, Esq., had effectively abandoned him, Martinez did
not act with the diligence needed to equitably toll the statute oflimitations. After clarifying aspects
of Doe, the Second Circuit vacated the dismissal and remanded for an evidentiary hearing on the
subject of reasonable diligence.

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Addressing the diligence inquiry applicable in cases involving a counseled litigant, Doe
had reasoned that "it would be inequitable to require less diligence from petitioners who are able
to hire attorneys than from those who are forced to proceed prose." 391 F.3d at 175. Observing
that I had placed emphasis on this language in dismissing Martinez's petition, the Circuit clarified
its import in the remand order:
Although we do not require less diligence from counseled litigants, it should be
recognized that a counseled litigant may display the same level of diligence in a
different way. A litigant with an attorney, for example, may reasonably delegate
certain tasks and decisions to the attorney. The litigant may then reasonably rely
upon the attorney to do the necessary work, if, as here, the attorney leads the
client to believe that he is fully engaged in the matter.
Martinez, 806 F.3d at 33.

With this principle established, the Circuit analyzed the four factors Doe identified as being
"relevant to a diligence inquiry 'in the attorney incompetence context': ( 1) 'the purpose for which
the petitioner retained the lawyer,' (2) 'his ability to evaluate the lawyer's performance,' (3) 'his
financial and logistical ability to consult other lawyers or obtain new representation,' and (4) 'his
ability to comprehend legal materials and file the petition on his own.'" Id. at 31-3 2 (quoting Doe,
391 F.3d at 175 (2d Cir. 2004)).
The Circuit concluded that the first factor weighs in Martinez's favor because he explicitly
hired Denaro for all post-conviction relief, which would encompass any federal habeas petition.
"The timely filing of that petition thus fit squarely within Martinez's reasonable expectations." Id.
at 32. The second factor also favors Martinez, the Circuit concluded, because Martinez's ability
to evaluate Denaro' s work was compromised by Denaro' s assurances-for example, that he was
"working very hard to make this happen for you"-and had the effect of "conceal[ing] his firm's
poor performance." Id. As to the third and fourth factors, the Circuit held further inquiry was
required. In addition, while indicating that Martinez's actions "all indicate diligence," the Circuit
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noted there were gaps in the record for portions of the period Martinez seeks to toll and directed
further inquiry concerning Martinez's "activity level during these time periods." Id. at 34.
Guided by the Circuit's clarification of Doe v. Menefee, I now make the following findings
relevant to the decision whether Martinez exercised reasonable diligence.
First, as I previously held, and as confirmed by the proceedings on remand, Martinez hired
Denaro to, among other things, file a timely federal habeas corpus petition. As for the second
factor, Martinez's ability to evaluate his lawyer's performance, I conclude that it was severely
compromised by Denaro's active concealment of his firm's failures to act on Martinez's behalf.
As the Circuit noted, Martinez promptly obtained counsel and, at least initially, made efforts to
ensure that the attorney was diligently pursuing post-conviction relief. Although he did not press
the attorney for a period of about five months, this inactivity is reasonably attributable to Denaro's
extraordinary misconduct in affirmatively misleading Martinez into thinking that Denaro's firm
was actively working on Martinez's behalf.

At the least, the periods of inactivity do not

"overcome[] the acts of diligence that Martinez did exhibit." Martinez, 806 F.3d at 34.
As to the third Doe factor, I conclude from the credible evidence that neither Martinez nor
his family had the financial ability to hire another attorney. Finally, Martinez was a very young
man, only 19 at the time of his sentencing, with an 11th grade education and no legal experience
or training. Nevertheless, when he realized that Denaro was not acting on his behalf, he diligently
filed, prose, a state application, and filed letters to the Grievance Committee. Promptly after he
exhausted his state remedies, with the help of an inmate, he filed his pro se petition in this court.
In sum, under all the circumstances, the record establishes sufficient basis for equitable
tolling. I will therefore tum to the merits.

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The Merits
I.

Standard of Review
Under AEDP A, a federal court may not grant a writ of habeas corpus unless a state prisoner

has exhausted all available remedies in the state courts. 28 U.S.C. § 2254(b)(l)(A). A federal
court may, however, deny an application that is meritless, "notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State." § 2254(b)(2). Furthermore,
a federal court may not grant a writ of habeas corpus on any claim that was adjudicated on the
merits in state court unless it concludes the state court decision "(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." § 2254(d). Factual determinations made by a state court "shall be presumed to be
correct," and the applicant "shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence." § 2254(e)(1 ).
A state court decision is "contrary to clearly established federal law ifthe state court applies
a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a
case differently than the Supreme Court has done on a set of materially indistinguishable facts."

Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015) (internal quotation marks and alterations
omitted) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision involves an
unreasonable application of Supreme Court precedent if it "correctly identifies the governing legal
principle from the Supreme Court's decisions but unreasonably applies it to the facts of the
particular case." Id. (internal alterations omitted).

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II.

Martinez's Claim that His Plea Was Not Knowing and Voluntary

Martinez contends that his plea was not knowing and voluntary because the trial court did
not inform him of the duration of supervised release that would result from his plea. Respondent
argues that this claim was not exhausted. Since, in any event, I conclude that the claim should be
denied on the merits, I do not address the issue of exhaustion.
A guilty plea is valid only if it is voluntarily, knowingly, and intelligently given, "with
sufficient awareness of relevant circumstances and likely consequences." Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005). However, "there is no clearly established Supreme Court precedent that
a defendant must be advised of mandatory post-release supervision prior to entering a guilty plea."

Rosario v. Laffin, 2014 WL 2600169, at *12-13 (E.D.N.Y. June 11, 2014); accord Bonner v.
Ercole, 338 F. App'x 61, 62 (2d Cir. 2009). Indeed, "the Supreme Court has not considered the
issue of whether a trial court's failure to inform a defendant of a mandatory term of supervised
release makes the subsequent plea involuntary." Bonner, 338 F. App'x at 62. Tellingly, Martinez
cites only to New York state case law to argue that his guilty plea was involuntary. Therefore, it
cannot be said that the state court decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C.
§ 2254(b)(l)(A). Martinez's claim that his plea was not knowing and voluntary is denied.

III.

Martinez's Claim that He Was Denied Effective Assistance of Trial and Appellate
Counsel

Martinez next claims that he received ineffective assistance of counsel from both his trial
and appellate counsel. Specifically, he argues, trial counsel was ineffective by failing to object to
the court's imposition of a sentence in violation of the agreement struck with the court. Moreover,
he claims that his trial counsel coerced him into signing a waiver of appeal as part of his plea. As
for appellate counsel, Martinez contends that his attorney was ineffective by failing to challenge
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the voluntariness of the plea or, in fact, filing any motions on his behalf. His claims are denied as
meritless, so I do not address the issue of exhaustion raised by the respondent.
A.

Legal Standard

To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1)
"counsel's representation fell below an objective standard of reasonableness" and (2) that "the
deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 688, 694,
(1984). The standard set forth in Strickland "applies equally to claims of ineffective assistance of
appellate counsel on a defendant's first appeal as of right" as it does to trial counsel. Aparicio v.
Artuz, 269 F.3d 78, 95 (2001) (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)). Judicial

review of counsel's performance must be "highly deferential," and courts "must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Further, "an error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment." Id. at 691. To show prejudice, a petitioner must establish 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.
B.

Application
1.

Trial Counsel

Martinez's first claim, that his trial counsel failed to object to the sentence as greater than
promised, is meritless because counsel had no basis upon which to object. The sentence was, in
fact, within the bounds of the plea agreement. Martinez claims that he was guaranteed a ten year
sentence, but received seventeen: twelve years' imprisonment and five years' supervised release.
However, it is clear from the record that Martinez was not guaranteed a ten year sentence. While

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there was some misunderstanding at the beginning of the plea proceeding between defense counsel
and the court as to the agreed upon sentence, the court clarified in no uncertain terms that it would
commit to sentence Martinez only to no more than twelve years in prison. Martinez stated that he
understood the terms of this agreement and elected to continue with his guilty plea. Moreover,
Martinez subsequently stated at a court proceeding a month before his sentencing, as well as at his
sentencing, that he understood and accepted that the plea agreement included five years of
supervised release as part of the plea agreement. By the time the judge imposed the sentence,
Martinez had repeatedly affirmed his assent to a plea agreement that included a maximum possible
sentence of twelve years in prison followed by five years of supervised release. Therefore, when
the judge sentenced Martinez to twelve years in prison and five years of supervised release,
Martinez's counsel had no basis to object to the legality of the sentence. Furthermore, Martinez
at no point asked his attorney to object. To the contrary, Martinez repeatedly indicated that he
accepted the agreement. Therefore, in not objecting, Martinez's attorney followed his expressed
wishes.

Accordingly, his trial counsel's performance was not professionally unreasonable.

Strickland, 466 U.S. at 689.
Similarly, Martinez's claim that his trial counsel coerced him into waiving his appellate
rights is without merit. The analysis begins with the understanding that"[ c]ounsel's conclusion as
to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the
other, coercing a plea enjoys a wide range of reasonableness because 'representation is an art."'

Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 693)
(internal alterations omitted)).

Moreover, Martinez's conclusory statement that his counsel

coerced him, which he makes for the first time in this petition, is contradicted by his sworn
statement at the plea proceeding that no one forced him to plead guilty. See United States v.

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Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) ("[A] district court [is] entitled to rely upon the
defendant's sworn statements."); Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn
declarations in open court carry a strong presumption of verity."). Therefore, Martinez has failed
to show that his trial counsel coerced him into waiving his appellate rights.
2.

Appellate Counsel

Martinez's claim of ineffective assistance of appellate counsel also lacks merit because he
has not shown that he was prejudiced by appellate counsel's failings. Martinez has satisfied the
first prong of Strickland by making a sufficient showing that his appellate counsel's performance
was constitutionally deficient. I previously found that Martinez's appellate counsel "effectively
abandoned" him by "fail[ing] to pursue [his] legal matter in a timely manner." Martinez, 15 F.
Supp. 3d at 232. The Second Circuit concluded that Martinez's appellate counsel "showed a
greater interest in collecting fee payments than in providing Martinez with adequate
representation" because he "missed the habeas petition deadline and was barely responsive to
Martinez's case." Martinez, 806 F.3d at 29. Therefore, even in light of Strickland's "highly
deferential" standard, his appellate counsel's performance fell below "a professional standard of
reasonableness." Strickland, 466 U.S. at 689. Nevertheless, these shortcomings were not
prejudicial, and thus, fail to satisfy Strickland's second prong.
Under New York law, it is clear that a plea is not knowing and voluntary if the trial court
fails to inform the defendant of the precise duration of the supervised release component of his
sentence. Rosario, 2014 WL 2600169, at *12-13 (citing People v. Catu, 4 N.Y.3d 242 (2005)).
This rule applies even where the court, as here, informs the defendant at the plea that the sentence
will include some period of supervised release, but not the precise duration. People v. Boyd, 12
N.Y.3d 390 (2009). However, to challenge the plea on appeal or in a collateral attack, the defendant

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must ordinarily preserve his claim in a post-allocution motion before sentencing. People v. Lauree,
8 N.Y.3d 541, 545 (2007). In Lauree, the New York Court of Appeals made an exception to this
preservation requirement where the defendant had not been informed of the supervised release
component of his sentence. Id. at 546. In Boyd, the Court extended this exception to cases where
a court informs the defendant at his plea that his sentence includes a period of supervised release,
without specifying the exact duration. 12 N.Y.3d at 393. However, in a series oflater cases, the
Court of Appeals explained that preservation was still required if the defendant had "ample
opportunity" to object to the imposition of supervised release. People v. Crowder, 24 N.Y.3d
1134, 1136 (2015); accord People v. Murray, 15 N.Y.3d 725, 726-27 (2010); People v. McAlpin,
17 N.Y.3d 936, 938 (2011).
Here, while Martinez was not informed at the plea proceeding of its duration, he was
informed that his sentence would include supervised release. Then, about a month before his
sentencing, Martinez appeared before the court with his attorney specifically to address his
supervised release. Martinez signed, in open court, a document acknowledging that he understood
that his sentence would include a five-year term of supervised release. At his sentencing, too,
when asked by the court, he stated that he understood the supervised release component of his
sentence and that he had reviewed it with his attorney. Together, these factors establish that
Martinez had ample opportunity to object to his supervised release. In light of these opportunities
and Martinez's failure to object, his claim is unpreserved. See Crowder, 24 N.Y.3d at 1136.
Therefore, even had his appellate counsel raised this claim after sentencing when he was retained,
New York courts would have r~jected it as unpreserved. Id. Accordingly, Martinez was not
prejudiced by his appellate counsel's deficient performance. Strickland, 466 U.S. at 694.

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IV.

Martinez's Claim That His Sentence Was Excessive and Coerced
Martinez's claims that his sentence as a whole and the supervised release component

specifically are excessive in violation of his 8th and 14th Amendment rights are without merit.
When a sentence is within the range prescribed by statute, "a claim of excessive punishment does
not present a constitutional question necessary for habeas corpus reversal." Underwood v. Kelly,
692 F. Supp. 146, 152 (E.D.N.Y. 1988); see also White v. Keane, 969 F.2d 1381, 1383 (2d Cir.
1992) ("No federal constitutional issue is presented where, as here, the sentence is within the range
prescribed by state law."). Martinez pleaded guilty to six class B felonies and one class C felony.
The statutory range for one of these class B felonies alone is five to twenty-five years in prison,
with two and one-half to five years of supervised release. N.Y. Penal Law§§ 70.02(l)(a), (3)(a),
70.45(2)(±).

Therefore, Martinez's sentence of twelve years' imprisonment and five years'

supervised release was within the range prescribed by state law, and so does not present a federal
constitutional issue. Keane, 969 F.2d at 1383. As such, his claim of excessive punishment is
denied.
Likewise, his claim that his sentence was coerced is meritless. As explained above,
Martinez indicated multiple times on the record that he understood and accepted the plea
agreement, and the sentence he received was within the agreed upon range.

Moreover, his

declaration on the record that he was not forced to plead guilty contradicts his conclusory claim of
coercion. See Hernandez, 242 F.3d at 112; Blackledge, 431 U.S. at 74. Accordingly, Martinez's
claim that his sentence was coerced is denied as well.
Conclusion
For the foregoing reasons, Martinez's petition for a writ of habeas corpus is denied. Since
petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate

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of appealability shall not issue. 28 U.S.C. § 2253(c) (2). The court certifies pursuant to 28 U.S.C.
§ 1915(a) that any appeal from this order would not be taken in good faith and therefore informa

pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
The Clerk of Court is directed to enter judgment for respondent.

SO ORDERED.

CK°l!11 c3Lq-f!wr..

/sl..

NINA GERSHON
United States District Judge

Dated: Brooklyn, New York
Octoberl;J_, 2016

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