Koso v. The Attorney General of the State of NY

Filing 5

MEMORANDUM AND ORDER. For the reasons set forth in the attached Memorandum and Order, petitioner has exhausted her Eighth Amendment claim concerning her probation term, but has not exhausted her claim concerning the restitution order. Nor has petit ioner exhausted any of the other claims raised in her petition. Thus, petitioner must file a letter with the Court within thirty (30) days indicating whether she wishes to: (1) dismiss the entire petition without prejudice so she can exhaust her une xhausted claims; or (2) proceed only with her Eighth Amendment challenge to her probation term. The Clerk of Court is directed to send a copy of this Memorandum and Order to petitioner. Ordered by Judge Joan M. Azrack on 3/20/2015. (Petilla, Charlotte)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------------------------------------------------X
LINDA A. KOSO,
12–CV–1723 (JMA)
MEMORANDUM AND ORDER

Petitioner,
v.

THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK,

Respondent.
-------------------------------------------------------------------------------------------------------------X
AZRACK, District Judge:
Linda A. Koso (“Koso”), proceeding pro se, petitions this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging her conviction for larceny. Koso’s conviction
arises out of an information charging her with stealing over $119,000 from her disabled
boyfriend. Koso pleaded guilty to larceny in the third degree and was sentenced to five years of
probation, $45,702 in restitution, and 840 hours of community service in lieu of six months in
jail.1
Citing a number of alleged deficiencies concerning her conviction and sentence, Koso
seeks: (1) relief from the restitution order; (2) return of any restitution previously paid; (3)
termination of her probation; and (4) relief from her probation violation resulting from her failure
to make monthly restitution payments. (Pet. at 13–14, ECF No. 1.) The Attorney General of the
State of New York (“respondent”) opposes the petition, arguing that most of Koso’s claims are
either unexhausted or meritless.
As explained below, Koso’s petition contains exhausted and unexhausted claims. Thus,

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 Before sentencing, Koso also paid $74,151 in restitution.

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within thirty (30) days of this Order, Koso must notify the Court by letter whether she wishes to:
(1) proceed only with her Eighth Amendment claim concerning her probation term; or (2)
voluntarily dismiss her petition without prejudice so that she can exhaust her unexhausted
claims.
I.

BACKGROUND

The following facts are drawn from the petition and underlying record.
Koso was charged with one count of grand larceny in the second degree for cashing
$119,853 in checks made out to her then-boyfriend from his insurance company. (Plea Tr. at
11–12, ECF No. 4-5.) On May 5, 2009, Koso pleaded guilty to larceny in the third degree.
During the plea hearing, the prosecutor recited the terms of Koso’s plea agreement for the
record. (Plea Tr. 6–7.) Pursuant to the plea agreement, sentencing would be deferred six
months to permit Koso to pay $75,000 in restitution. If Koso paid that amount by the time of
sentencing, the prosecutor would recommend that Koso be sentenced to: (1) 840 hours of
community service in lieu of six months in jail; (2) five years of probation; and (3) restitution in
the amount of $44,853. (Id.)
By November 23, 2009, the date of Koso’s sentencing, she had paid $74,151 in
restitution.2 Before the sentence was imposed, Koso explained to the judge that she may have
problems fulfilling the community service requirement given her mental health issues, but
ultimately did not object to the community service requirement. (Sentencing Tr. at 4–5, ECF
No. 4-6.) Thereafter, the Court sentenced Koso in accordance with the plea agreement.
On June 6, 2011, Koso, represented by new counsel, filed a motion in the Appellate

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Although the amount paid was less than $75,000, the prosecutor agreed to proceed with the plea agreement.

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Division under Section 470.15(c)(2) of the New York Criminal Procedure Law seeking a
conditional discharge and a reduction in her community service requirement.3,4 Koso argued that
these modifications to her sentence were “in the interest of justice on the ground that the
sentence imposed [was] unduly harsh and severe” and “excessive.” (Not. of Mot. for Sentence
Reduction & Mem. of Law. in Sup. of Mot. to Reduce Sentence at 4, ECF No. 4-2.) The
Appellate Division affirmed the sentence without an opinion. Koso then requested leave to
renew her motion before the New York Court of Appeals, which was also denied.
On April 6, 2012, Koso filed her petition in this Court. In her petition, Koso indicated
that although she had, with difficulty, completed the community service requirement, she had
been unable to pay $800 a month in restitution, and was thus in violation of her probation. (Pet.
at 9–10.)
On June 29, 2012, respondent filed its opposition to the petition. Although Koso had the
opportunity to file a reply, she never did.
II.

DISCUSSION

Construing her petition liberally, Koso argues, in conclusory fashion, that she is entitled
to habeas relief because: (1) her sentence was cruel and unusual, in violation of the Eighth
Amendment; (2) she did not understand the consequences of pleading guilty; (3) she received

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New York Criminal Procedure Law § 470.15(2)(c) provides:
Upon such an appeal, the intermediate appellate court must either affirm or
reverse or modify the criminal court judgment, sentence or order. The ways in
which it may modify a judgment include, but are not limited to, the following:
. . . (c) Upon a determination that a sentence imposed upon a valid conviction is
illegal or unduly harsh or severe, the court may modify the judgment by
reversing it with respect to the sentence and by otherwise affirming it.

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The procedural history of Koso’s motion is unclear. Although the motion was not filed until over a year after
Koso was sentenced, the Appellate Division appointed Koso counsel to pursue that motion on June 24, 2010,
suggesting that Koso initiated efforts to modify her sentence at some point before the actual motion was filed.
(Statement Pursuant to CPLP 5531, ECF 4-2.) Thus, the Court is unable to determine how much time elapsed on
Koso’s one-year clock. See 28 U.S.C. § 2244(d)(1).

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ineffective assistance of counsel because her plea counsel (a) ignored “a folder full of evidence
to support [her] innocence” and (b) had been a lawyer for less than five years at the time he
represented Koso; and (4) she is innocent. (Pet. at 1–2, 5–10.) Respondent has not construed the
petition as alleging actual innocence, and argues that all of Koso’s other claims are unexhausted
or otherwise meritless.
A. Exhaustion
An individual in state custody pursuant to a state court judgment may seek a writ of
habeas corpus from a district court “on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”

28 U.S.C. § 2254(a); see also

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110
Stat. 1214 (1996). “An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that--(A) the
applicant has exhausted the remedies available in the courts of the State.”

28 U.S.C. §

2254(b)(1)(A). “The exhaustion requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 191
(2d Cir. 1982) (citations omitted).

A claim is “fairly presented” where the petitioner has

“informed the state court of both the factual and the legal premises of the claim he asserts in
federal court.” Id.
Generally, courts will not consider unexhausted claims. There are, however, certain
exceptions to this rule. First, in certain circumstances, “[a]n application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Dismissal on the merits
is only appropriate where the claim is “plainly meritless” or “patently frivolous.” See Williams

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v. Artus, 691 F. Supp. 2d 515, 526 (S.D.N.Y. 2010) (“If the unexhausted claims are ‘plainly
meritless,’ the district court can dismiss these claims on the merits.”) (citation omitted);
Robinson v. Phillips, No. 04–CV–3446, 2009 WL 3459479, at *1 (E.D.N.Y. Oct. 23, 2009) (“If
the basis of a claim has not been presented to a state court, AEDPA nonetheless permits a district
court to deny a claim on the merits if it is ‘patently frivolous.’”) (citations omitted).
Second, a court may deem unexhausted claims exhausted where the state court to which
the petitioner must present those claims would find them procedurally barred. See Jackson v.
Conway, 763 F.3d 115, 143–44 (2d Cir. 2014). In those circumstances, those claims are deemed
exhausted, but procedurally defaulted. See Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008)
(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). For example, where a petitioner
fails to assert an error of record in her sole appeal as of right, her claim may be procedurally
barred under New York law and thus deemed exhausted by procedural default. See, e.g.,
Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir. 2006).

If a claim has been procedurally

defaulted, a petitioner may overcome the default only by demonstrating a “fundamental
miscarriage of justice,” Murray v. Carrier, 477 U.S. 478, 495–96 (1986), or “cause for the default
and prejudice from the asserted error,” House v. Bell, 547 U.S. 518, 536 (2006).
In her motion before the Appellate Division, Koso did not raise: (1) ineffective assistance
of counsel; (2) the validity of her plea; or (3) her innocence. (See generally Not. of Mot. for
Sentence Reduction & Mem. of Law. in Sup. of Mot. to Reduce Sentence.) Because Koso may
seek relief for those claims via a motion pursuant to Section 440.10 of the New York Criminal
Procedure Law, those claims are unexhausted.
Whether Koso exhausted her Eighth Amendment claim raises a closer question. Koso’s
motion, generously read, sought reconsideration of her probation term as well as her community

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service requirement due to her “patent mental disabilities.” (Mem. of Law. in Sup. of Mot. to
Reduce Sentence at 9.) It did not seek modification of the restitution order. Her motion
primarily invoked “the Appellate Division’s unique discretion to modify legal sentences in the
interests of justice.” Rivera v. Greiner, 272 F. Supp. 2d 197, 201 (E.D.N.Y. 2003). Courts in
this Circuit have held that such motions do not, without more, exhaust potential Eighth
Amendment claims. See Baide-Ferrero v. Ercole, No. 06–CV–6961, 2010 WL 1257615, at *4
(S.D.N.Y. Mar. 31, 2010) (“Although New York’s Appellate Division has discretion to reduce a
sentence in the interest of justice, a federal habeas court considering a state-court conviction has
no such power, and a claim that a sentence should be reduced in the interest of justice does not
allege a violation of a federally protected right.”) (internal citation omitted); Stallings v. Woods,
No. 04–CV–4714, 2006 WL 842380, at *22 (E.D.N.Y. Mar. 27, 2006) (petition seeking sentence
reduction pursuant to Appellate Division’s authority to reduce an unduly harsh sentence in the
interest of justice did not suggest the federal nature of the claim); Rivera, 272 F. Supp. 2d at 201
(Eighth Amendment claim not exhausted where “petitioner, in seeking a reduction of sentence,
invoked only the Appellate Division’s unique discretion to modify legal sentences in the interests
of justice.”). However, Koso’s motion asserted that her sentence was “excessive,” and cited the
Eighth Amendment and Weems v. United States, 217 U.S. 349 (1910) for the proposition that
“[i]t is a precept of justice that punishment should be graduated and proportional to the offense.”
(Mem. of Law. in Sup. of Mot. to Reduce Sentence at 4.) In these circumstances, Koso fairly
presented and exhausted her Eighth Amendment claim concerning the probation term (and her
community service requirement, which is now moot), but did not exhaust her claim as to the
restitution order. Cf. Diaz v. LeFevre, 688 F. Supp. 945, 947 (S.D.N.Y. 1988) (finding Eighth
Amendment claim exhausted where petitioner argued in state court that sentence was

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“excessive”).
Although Koso did not challenge the restitution order in her motion before the Appellate
Division, she may still bring a motion pursuant to Section 440.20 of the New York Criminal
Procedure Law to set aside that aspect of her sentence. See Rivera, 272 F. Supp. 2d at 201
(concluding Eighth Amendment claim appeared not to be procedurally defaulted where
petitioner could still raise claim via a § 440.20 motion); see also People v. Collier, 912 N.Y.S.2d
722, 723 n.2 (N.Y. App. Div. 2010) (“To the extent that this Court's prior decisions may be read
to preclude a CPL 440.20 motion where the illegality of the sentence could have been raised on a
direct appeal, they should not be followed.”) (internal citations omitted). Thus, Koso has not
exhausted her claim concerning the restitution order.5
B. Mixed Petitions
Where, as here, the petition contains exhausted and unexhausted claims, the Court may
(1) dismiss the entire petition without prejudice; (2) deny the entire petition on the merits; (3)
allow the petitioner to proceed only with any exhausted claims; or (4) in limited circumstances,
stay the petition to permit the petitioner to exhaust the unexhausted claims. See 28 U.S.C. §
2254(b)(2); Rhines v. Weber, 544 U.S 269, 277–278 (2005); McCrae v. Artus, No. 10–CV–
2988, 2012 WL 3800840, * 8 (E.D.N.Y. 2012). A stay “is only appropriate when the district
court determines there was good cause for the petitioner’s failure to exhaust his claims first in
state court.” Rhines, 544 U.S. at 277.
Although the Court has serious doubts about the merits of Koso’s unexhausted claims,
the Court cannot, at this juncture, conclude that all of Koso’s unexhausted claims are “patently

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Respondent urges the Court “to note petitioner did knowingly and intelligently waive her right to appeal which
would preclude a challenge to her legal sentence.” (Resp.’s Opp. to Pet. at 9, ECF No. 4-1.) To the extent
respondent argues that Koso’s waiver of her right to appeal precludes this Court from reviewing Koso’s habeas
claims, respondent has cited no authority for that proposition. In any event, because at least one of Koso’s
unexhausted claims calls into question the validity of her waiver, the Court need not reach that issue.

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frivolous” or “plainly meritless.” Thus, the Court will not deny those claims on the merits. Nor
will the Court stay the petition. Koso has not given the Court any reason for her failure to
exhaust her unexhausted claims.6 Thus, the Court cannot conclude that good cause exists for
Koso’s failure to exhaust those claims.
That leaves Koso with the option of either voluntarily dismissing her petition without
prejudice or proceeding with only her Eighth Amendment claim concerning her probation term.
If Koso dismisses her petition without prejudice, respondent will likely argue that any
subsequent petition is time-barred, which would prohibit the Court from reviewing any of Koso’s
claims on the merits unless she could establish a basis for tolling the one-year statute of
limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.”).
Alternatively, if Koso proceeds with her exhausted claim, she “risks forfeiting federal review on
[her] unexhausted claims altogether, since a subsequent petition raising these claims after
exhaustion would run into the ‘second or successive petition’ bar found in 28 U.S.C. §
2244(b)(1).”7 Ayuso v. Lavalley, No. 12–CV–0932, 2012 WL 1531036, at *1 (E.D.N.Y. May 1,

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Koso appears to have told her appellate counsel about the problems with her plea counsel, but has not argued that
appellate counsel was ineffective. (Pet. at 6, 8.)
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Under the “second or successive petition” bar,
“a petitioner may not file a second habeas petition after his first petition was
adjudicated on the merits unless a three-judge panel of the court of appeals
determines that the petition ‘relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable,’ or that ‘the factual predicate for the claim could not
have been discovered previously through the exercise of due diligence,’ and ‘the
facts underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.’ This standard is extremely difficult
to meet.”

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2012).
Given these options, Koso must advise the Court by letter within thirty (30) days of the
date of this Order how she wishes to proceed.
III.

CONCLUSION

In sum, Koso has exhausted her Eighth Amendment claim concerning her probation term,
but has not exhausted her claim concerning the restitution order. Nor has Koso exhausted any of
the other claims raised in her petition. For these reasons, Koso must file a letter with the Court
within thirty (30) days indicating whether she wishes to: (1) dismiss the entire petition without
prejudice so she can exhaust her unexhausted claims; or (2) proceed only with her Eighth
Amendment challenge to her probation term.
The Clerk of Court is directed to send a copy of this Memorandum and Order to Koso.
SO ORDERED.
Dated: March 20, 2015
Central Islip, New York

/s/
JMA
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

Ayuso, 2012 WL 1531036, at *1 n.1 (quoting 28 U.S.C. § 2244(b)).

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