Rosario v. Laffin
Filing
6
MEMORANDUM AND OPINION. For the reasons set forth herein, this Court finds that petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Both of petitioner's claims are plainly without merit, and one of his claims is p rocedurally barred. 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. Ordered by Judge Joseph F. Bianco on 6/11/2014. (Gibaldi, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
13-CV-00181 (JFB)
_____________________
LEONARDO ROSARIO,
Petitioner,
VERSUS
SUPERINTENDENT TIMOTHY LAFFIN,
Respondent.
___________________
MEMORANDUM AND ORDER
June 11, 2014
___________________
JOSEPH F. BIANCO, District Judge:
Before petitioner pleaded guilty to these
charges, the trial judge indicated his
intention to sentence petitioner to an
aggregate term of five years’ imprisonment,
followed by three years of post-release
supervision. After entry of petitioner’s guilty
plea, the trial judge sentenced petitioner
accordingly,
i.e.,
to
five
years’
imprisonment followed by three years of
post-release supervision. However, after
sentencing petitioner, the trial judge learned
that the law required him to impose five
years
of
post-release
supervision.
Consequently, the trial judge held a new
hearing, during which he explained the
mistake to petitioner and petitioner’s
counsel. Petitioner’s counsel indicated that it
would be appropriate for the judge to
modify petitioner’s sentence, and the judge
resentenced petitioner to five years of postrelease supervision to follow his five years
in prison.
Leonardo Rosario (“Rosario” or
“petitioner”) petitions this Court for a writ
of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging his conviction in a state
court. On December 9, 2008, petitioner
entered pleas of guilty to two counts of
assault in the second degree (N.Y. Penal
Law § 120.05), two counts of vehicular
assault in the second degree (N.Y. Penal
Law § 120.03), two counts of operating a
motor vehicle while under the influence of
alcohol as a felony (N.Y. Veh. & Traf. Law
§ 1192(3)), three counts of assault in the
third degree (N.Y. Penal Law § 120.00),
three counts of reckless endangerment in the
second degree (N.Y. Penal Law § 120.20),
one count of reckless driving (N.Y. Veh. &
Traf. Law § 1212), and one count of passing
a red light (N.Y. Veh. & Traf. Law
§ 1111.D1).
1
In the instant petition, petitioner raises
the following two issues related to his
resentencing: (1) ineffective assistance of
counsel, and (2) the trial judge’s failure to
advise him of his right to withdraw his
guilty plea. For the reasons set forth herein,
the Court concludes that there is no basis for
habeas relief, and denies the petition in its
entirety.
the report stated (erroneously) that the blood
sample had been drawn on June 5, 2008.
(Id.)
I. BACKGROUND
A Nassau County grand jury returned
indictments charging petitioner with two
counts of assault in the second degree (N.Y.
Penal Law § 120.05), two counts of
vehicular assault in the second degree (N.Y.
Penal Law § 120.03), two counts of
operating a motor vehicle while under the
influence of alcohol as a felony (N.Y. Veh.
& Traf. Law § 1192(3)), three counts of
assault in the third degree (N.Y. Penal Law
§ 120.00), three counts of reckless
endangerment in the second degree (N.Y.
Penal Law § 120.20), one count of reckless
driving (N.Y. Veh. & Traf. Law § 1212),
and one count of passing a red light (N.Y.
Veh. & Traf. Law § 1111.D1). (See
Decision & Order, People v. Rosario, Ind.
No. 1771N-08 (N.Y. Sup. Ct. Jan. 23,
2012).)
B. Procedural History
1. State Court Proceedings
a. Charges
A. Facts
The Court has adduced the following
facts from the instant petition and the
underlying record.
In the early morning of July 5, 2008,
petitioner drove his car through a red light at
the intersection of Merrick Avenue and
Sunrise Highway, and he collided with a taxi
cab. (See P. at 9–10; Decision & Order, at 1,
People v. Rosario, Ind. No. 1771N-08 (N.Y.
Sup. Ct. Jan. 23, 2012).)1 Four of the taxi’s
occupants were seriously injured. (Decision
& Order, at 1, People v. Rosario, Ind. No.
1771N-08 (N.Y. Sup. Ct. Jan. 23, 2012).)
Upon arriving at the scene of the accident,
police officers observed petitioner leaning
against his car in order to maintain his
balance. (Id.) Petitioner told the police
officers that he had consumed vodka within
four hours of the accident. (Id.) The officers
arrested petitioner at approximately 3:35
a.m., and took him to the Nassau County
Medical Center. (Id. at 1–2.)
b. Guilty Plea
Represented by counsel, petitioner
entered pleas of guilty to all charges against
him on December 9, 2008. (P. at 13.) Before
petitioner entered guilty pleas, the trial judge
advised petitioner of the rights he was
relinquishing. (See id. at 5–6.) The trial
judge also informed petitioner of the
maximum sentences for each charge.
Concerning assault in the second degree, he
told petitioner that each count carried “a
maximum sentence of seven years plus three
years post-release supervision.” (Id. at 7.)
The trial judge indicated, however, that he
intended to “cap [his] sentence in the
aggregate of five years,” in addition to
Petitioner’s blood was drawn at the
hospital, and analysis of his blood showed a
blood alcohol content of .12 percent. (Id. at
2.) The relevant forensic report indicates
that the crime laboratory received the
specimen on July 8, 2008, and that the date
of incident was July 5, 2008. (Id.) However,
1
“P.” refers to the plea transcript.
2
“three years of post-release supervision.”
(Id. at 8.) The trial judge continued, “If, in
my judgment, I feel that I must sentence you
to more than five years, I will let you
withdraw your plea and you will not be in
any worse legal position than you are here
today.” (Id. at 9.) Petitioner stated that he
understood what the trial judge had just told
him. (Id.)
driving while intoxicated. (Id. at 13–14.)3
He further sentenced petitioner to one year’s
imprisonment for each count of assault in
the third degree and reckless endangerment.
(Id. at 14.) Finally, he sentenced petitioner
to thirty days’ imprisonment for reckless
driving, and fifteen days’ imprisonment for
passing a red light. (Id.) The trial judge
ordered all sentences to run concurrently,
thereby resulting in an aggregate sentence of
five years’ imprisonment followed by three
years of post-release supervision. (Id.)
As part of the plea colloquy, petitioner
admitted to the facts supporting the charges
to which he was pleading guilty.
Specifically, he admitted that, on July 5,
2008, he was driving recklessly while
intoxicated, ran a red light at the intersection
of Merrick Avenue and Sunrise Highway,
and assaulted two people with his vehicle,
causing them serious physical injury. (Id. at
9–10.) Petitioner then entered pleas of guilty
to all charges against him. (Id. at 12–13.)
d. Resentencing
On June 2, 2009, the trial judge
informed petitioner and his counsel that he
had made a mistake in sentencing petitioner.
Specifically, he explained that the law
required him to sentence petitioner to five
years of post-release supervision, instead of
the three years of post-release supervision
that he had imposed. (See R. at 2.4) The trial
judge told petitioner, “You had to have been
aware of that at the time of the sentence. So,
you have various options, which I’m sure
you can talk about with your attorney.” (Id.)
The trial judge then informed petitioner’s
counsel that he could resentence petitioner
to five years of post-release supervision, and
petitioner’s counsel indicated that such a
sentence would be appropriate. (Id. at 3.)
Accordingly, the trial judge adjusted
petitioner’s sentence to include five years’
post-release supervision. (Id.)
c. Sentencing
Petitioner and his counsel appeared in
court for sentencing on February 20, 2009.
Petitioner’s counsel requested leniency. (S.
at 9.2) Specifically, petitioner’s counsel
asked the trial judge “to cap [petitioner’s]
punishment at five years,” as the trial judge
had indicated he would do at petitioner’s
plea hearing. (Id. at 8.)
The trial judge followed defense
counsel’s recommendation and imposed the
following sentence. For each count of
assault in the second degree, he sentenced
petitioner to five years’ imprisonment
followed by three years of post-release
supervision. (Id. at 13.) He sentenced
petitioner to a term of one-and-one-third to
four years’ imprisonment for each count of
vehicular assault in the second degree and
2
Petitioner’s counsel also requested that
petitioner be imprisoned at the Fishkill
Correctional Facility, where he could
receive treatment for his problem of driving
3
After sentencing, defendant admitted to having been
convicted of a prior felony conviction for driving
while intoxicated. (S. at 16–17.) As a result, the trial
judge increased petitioner’s sentence for vehicular
assault to a term of two to four years’ imprisonment
for each count. (Id. at 18.)
4
“R.” refers to the resentencing transcript.
“S.” refers to the sentencing transcript.
3
while intoxicated. (Id.) The trial judge
agreed to make such a recommendation. (Id.
at 3–4.)
failed to advise him of the mandatory fiveyears of post-release supervision that
resulted from his guilty plea. (Id. at 11–13.)
e. Direct Appeal
The Nassau County District Attorney
opposed the motion on August 17, 2011.
(See generally Mem. in Opp. to Mot. to
Vacate J., People v. Rosario, Ind. No.
1771N-08 (N.Y. Sup. Ct. Aug. 17, 2011).)
Represented by new counsel, petitioner
replied on November 14, 2011. (See
generally Reply Mem. in Supp. of Mot. to
Vacate J., People v. Rosario, Ind. No.
1771N-08 (N.Y. Sup. Ct. Nov. 14, 2011).)
In his reply, petitioner argued that the trial
judge had committed error by failing to
advise him of his options at resentencing.
(Id. at 9.) Specifically, in the midst of his
ineffective assistance of counsel argument,
petitioner
wrote,
“The
Court,
understandably, but incorrectly assumed that
Mr. Rosario’s attorney had discussed the resentencing with Mr. Rosario. Unfortunately
based upon that misunderstanding the Court
did not inquire of Mr. Rosario if he knew
and understood [his] various rights, or
options, at the time of his sentence. There is
simply nothing in the sentencing record to
allow this or any court to reason that the
sentence was a knowing sentence on behalf
of Mr. Rosario. In fact with the attached
affidavit of Mr. Rosario, it is quite clear and
irrefutable that he was not aware of his
rights.” (Id. at 9 ¶ 29.)
Petitioner filed an appeal in the Supreme
Court, Appellate Division (the “Appellate
Division”), arguing that his sentence was
excessive. (See generally Appellant Br.,
People v. Rosario, AD No. 2009-06536
(N.Y. App. Div.).) On January 25, 2011, the
Appellate
Division
determined
that
petitioner’s argument was without merit, and
affirmed the judgment of conviction and
sentence. See People v. Rosario, 915
N.Y.S.2d 511 (N.Y. App. Div. 2011). The
New York Court of Appeals denied
petitioner’s application for leave to appeal
on April 11, 2011. See People v. Rosario, 16
N.Y.3d 862 (2011).
f. Collateral Attack in State Court
On June 28, 2011, petitioner, proceeding
pro se, filed a motion to vacate his judgment
of conviction pursuant to N.Y. Crim. Proc.
Law § 440.10 in New York Supreme Court.
(See generally Mot. to Vacate J., People v.
Rosario, Ind. No. 1771N-08 (N.Y. Sup. Ct.
June 28, 2011).) For the first time, petitioner
contended that the indictments against him
had been supported by legally insufficient
evidence because the forensic report stated
mistakenly that the blood sample showing a
blood alcohol content of .12 percent had
been drawn on June 5, 2008. (Id. at 5–9.)
Petitioner also argued that he was denied the
right to effective assistance of counsel, in
that his counsel had failed to inform him that
he could have withdrawn his guilty plea
after learning that the court mistakenly
sentenced him to three years of post-release
supervision. (Id. at 9–10.) Finally, petitioner
asserted that his guilty plea had not been
made
knowingly,
voluntarily,
and
intelligently, because the trial judge had
On January 23, 2012, the court denied
petitioner’s motion in its entirety. (See
Decision & Order, People v. Rosario, Ind.
No. 1771N-08 (N.Y. Sup. Ct. Jan. 23,
2012).) As to petitioner’s claim concerning
the blood test, the court concluded that
petitioner’s guilty plea precluded him from
challenging the sufficiency of the evidence
presented to the grand jury. (Id. at 6.) In
addition, the court determined that petitioner
received effective assistance of counsel
during resentencing. (Id. at 8.)
4
Thereafter, petitioner, proceeding pro se,
filed a motion in the Appellate Division on
February 22, 2012, seeking leave to appeal
the denial of his § 440.10 motion. (Mot. for
Leave to Appeal, People v. Rosario, AD No.
2012-04195 (App. Div. Feb. 22, 2012).) He
asserted that the indictments to which he had
pleaded guilty were unsupported by
sufficient evidence, and that he had been
denied the effective assistance of counsel at
resentencing. (See id.). The Appellate
Division denied the motion on July 12,
2012. (See Decision & Order, People v.
Rosario, AD No. 2012-04195 (App. Div.
July 12, 2012).) Petitioner then sought leave
to appeal the Appellate Division’s order to
the Court of Appeals, contending “that the
trial court’s refusal to allow [him] to
withdraw his guilty plea was an abuse of
discretion as a matter of law.” (Application,
People v. Rosario, Ind. No. 1771N/08 (N.Y.
July 26, 2012).) The Court of Appeals
dismissed petitioner’s application on
November 5, 2012. (Order Dismissing
Leave, People v. Rosario, Ind. No.
1771N/08 (N.Y. Nov. 5, 2012).)
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:
(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—
(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. The Instant Petition
Petitioner filed a pro se petition for a
writ of habeas corpus on January 7, 2013.
The petition raises two issues related to
petitioner’s resentencing. First, petitioner
argues that he was denied effective
assistance of counsel based on counsel’s
failure to advise him of his right to withdraw
his guilty plea at resentencing. (Pet. 6.5)
Second, petitioner claims that the trial judge
erred by failing to inform him of the options
available to him at resentencing. (Id.)
Respondent filed a memorandum of law in
opposition to the petition on April 4, 2013.
(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
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)).
“Pet.” refers to Rosario’s petition filed in this case.
The Court cites to the page numbers assigned by
ECF.
5
5
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.
III. DISCUSSION
A. Procedural Bar
As an initial matter, respondent contends
that petitioner’s claim concerning the trial
judge’s failure to inform him about postrelease supervision is unexhausted. For the
following reasons, the Court concludes that
the claim is exhausted but procedurally
barred.
1. Exhaustion
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) (citing
Fay v. Noia, 372 U.S. 391, 435–38 (1963)),
petitioner must fairly present his federal
constitutional claims to the highest state
court having jurisdiction over them. See
Daye v. Attorney Gen. of N.Y., 696 F.2d 186,
191 (2d Cir. 1982) (en banc). Exhaustion of
state remedies requires that a petitioner
“fairly presen[t] 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)
(quoting Picard v. Connor, 404 U.S. 270,
275 (1971)) (alteration in original)
(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). Additionally,
while “‘[s]ome 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 . . . are
reviewed de novo.’” Dolphy v. Mantello,
552 F.3d 236, 238 (2d Cir. 2009) (quoting
Spears v. Greiner, 459 F.3d 200, 203 (2d
Cir. 2006)).
Passage through the state courts, in and
of itself, “is not sufficient.” Picard, 404 U.S.
at 275. 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
6
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 365–66. “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) (quoting Dorsey v. Kelly,
112 F.3d 50, 52 (2d Cir. 1997)) (internal
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 191–92.
2. State Procedural Requirements
As with a failure to exhaust a claim, a
failure to satisfy the state’s procedural
requirements deprives the state courts of an
opportunity to address the federal
constitutional or statutory issues in a
petitioner’s claim. Coleman, 501 U.S. at
731–32. “[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) (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). Notably, 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.” Reyes, 118 F.3d at 139
(quoting Grey v. Hoke, 933 F.2d 117, 120
(2d Cir. 1991)).
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.” Daye, 696 F.2d at 192 (footnote
omitted). Therefore, the only exception to
this rule would be if the petitioner can show
“good cause” for not exhausting the claim.
Rhines v. Weber, 544 U.S. 270, 277 (2005).
The petitioner should “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 v.
Thompson, 501 U.S. 722, 750 (1991). The
court will allow “stay and abeyance” and
hear unexhausted claims in very limited
circumstances. Rhines, 544 U.S. at 277.
Additionally, the court should not grant a
petitioner stay and abeyance if the claim
would be meritless even if it was exhausted.
(Id.)
Even where a petitioner properly
exhausts his claim, however, exhaustion
“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
7
federal habeas corpus review of the
defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the
default.” Gray, 518 U.S. at 162 (citations
omitted).
the instant case, the Court concludes that
petitioner has not met that burden with
respect to his claim that the trial judge failed
to advise him of his right to withdraw his
guilty plea.6 Specifically, petitioner did not
raise this claim at all in his February 22,
2012 motion to the Appellate Division, in
which he sought leave to appeal the denial
of his § 440.10 motion. Even though
petitioner had raised the issue in his
§ 440.10 motion in the trial court,7 his
failure to raise the claim before the
Appellate Division deprived the Appellate
Division of the opportunity to review it.
Accordingly, the claim is unexhausted. See,
e.g., Edsall v. Marshall, No. 08-CV-0673
(MAT), 2010 WL 4140715, at *5 n.3
(W.D.N.Y. Oct. 21, 2010) (“Because the
Appellate Division was not given the
opportunity to review this claim, it is
technically unexhausted.” (citing Pesina v.
Johnson, 913 F.2d 53 (2d Cir. 1990))); cf.
Jordan v. Lefevre, 206 F.3d 196, 198 (2d
Cir. 2000) (holding that a claim was
unexhausted where petitioner had raised it in
lower courts, but had failed to raise it in his
application for leave to appeal to the New
York Court of Appeals); Grey, 933 F.2d at
120 (same).
The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect accorded to
state judgments. See House v. Bell, 547 U.S.
518, 536 (2006). 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. Coleman, 501 U.S.
at 730–31.
Once it is determined that a claim is
procedurally barred under state rules, a
federal court still may 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. 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). To overcome procedural default
based on miscarriage of justice, the
petitioner must demonstrate that, “in light of
new evidence, ‘it is more likely than not that
no reasonable juror would have found
petitioner guilty beyond a reasonable
doubt’” and would require “‘new reliable
evidence . . . that was not presented at
trial.’” House, 547 U.S. at 537 (quoting
Schlup v. Delo, 513 U.S. 324, 327 (1995)).
When a claim in a federal habeas
petition has not been exhausted, the federal
court may determine that no available
procedures remain in state court by which a
petitioner may exhaust the claims. See 28
U.S.C. § 2254(b) (petition shall not be
6
Respondent does not dispute that petitioner has
properly exhausted his ineffective assistance of
counsel claim.
7
Contrary to respondent’s argument, petitioner did
not raise this claim for the first time in the trial court
in his reply brief. As noted supra, in petitioner’s
opening brief in support of his § 440.10 motion,
petitioner challenged the validity of his guilty plea in
light of the fact that the trial judge had failed to
advise him of the mandatory five-years of postrelease supervision.
3. Application
“The burden of proving exhaustion lies
with the habeas petitioner.” Cartagena v.
Corcoran, No. 04-CV-4329 (JS), 2009 WL
1406914, at *3 (E.D.N.Y. May 19, 2009). In
8
granted unless exhaustion has occurred or
“there is absence of available State
corrective process”); see also Aparicio v.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001). “In
such a case the habeas court theoretically
has the power to deem the claim exhausted.”
Aparico, 269 F.3d at 90 (citing Reyes v.
Keane, 118 F.3d 136, 139 (2d Cir. 1997)).
Such is the case here. The time has passed
for petitioner to move in the Appellate
Division for leave to appeal the denial of his
§ 440.10 motion on the basis of his guilty
plea claim. See N.Y. CPL § 460.10(4)(a)
(“Within thirty days after service upon the
defendant of a copy of the order sought to be
appealed, the defendant must make
application pursuant to section 460.15 for a
certificate granting leave to appeal to the
intermediate appellate court.”). Accordingly,
the Court deems this claim exhausted but
procedurally barred. See, e.g., Edmee v.
Coxsackie Corr. Facility, No. 09-CV-3940
(BMC), 2009 WL 3318790, at *2 (E.D.N.Y.
Oct. 14, 2009) (“The failure to timely appeal
the denial of petitioner’s § 440.10 motion
means that the claim is not only
unexhausted, but procedurally barred under
state law because it is too late to take that
appeal and a state court would dismiss it on
that ground.”); Rodriguez v. Ercole, No. 08CV-2074, 2008 WL 4701043, at *9
(S.D.N.Y. Oct. 24, 2008) (same); Thomas v.
Greiner, 111 F. Supp. 2d 271, 276–78
(S.D.N.Y. 2000) (same).
neither cause and prejudice, nor a
fundamental
miscarriage
of
justice.
Moreover, there is no claim of actual
innocence. Thus, petitioner’s guilty plea
claim remains procedurally barred and
outside the scope of federal habeas review.
For the aforementioned reasons,
petitioner’s guilty plea claim is procedurally
barred. However, in an abundance of
caution, this Court addresses the merits of
that claims infra, and finds that it is
meritless.
B. Merits Analysis
1. Ineffective Assistance of Counsel
Petitioner contends that he received
ineffective
assistance
of
counsel—
specifically, that his counsel failed to advise
him of his right to withdraw his guilty plea
at his resentencing hearing. For the
following reasons, this Court determines that
petitioner is not entitled to habeas relief on
this basis.
a. Legal Standard
The standard for determining whether
counsel was constitutionally ineffective is
well
settled.
Under
Strickland
v.
Washington, a habeas petitioner is required
to establish two elements in order to state a
successful claim for ineffective assistance of
counsel: (1) “counsel’s representation fell
below
an
objective
standard
of
reasonableness”; and (2) “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.” 466
U.S. 668, 680, 694 (1984).
Where a claim is procedurally defaulted
from review because it was not fairly
presented to the state courts, the federal
court has the authority to consider the claim
only when the petitioner can establish both
cause for the procedural default and actual
prejudice resulting from it, or that the
federal court’s failure to consider the claim
will result in a fundamental miscarriage of
justice. See Schlup, 513 U.S. at 318–21;
Reed v. Ross, 468 U.S. 1, 11–13 (1984);
Grey, 933 F.2d at 121. Petitioner has shown
The first prong requires a showing that
counsel’s performance was deficient.
However,
“[c]onstitutionally
effective
counsel embraces a ‘wide range of
9
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
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,”
and “‘strategic choices made after thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable.’” DeLuca v. Lord, 77 F.3d
578, 588 & n.3 (2d Cir. 1996) (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).
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
guilt.’” 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
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 citation and
quotation marks omitted).
This Court proceeds to examine
petitioner’s ineffective assistance of counsel
claim, keeping in mind that he bears the
burden of establishing both deficient
performance and prejudice. United States v.
Birkin, 366 F.3d 95, 100 (2d Cir. 2004). As
set forth below, petitioner’s claim fails to
satisfy both prongs of the Strickland test.
b. Application
First, upon review of the record as a
whole, the Court concludes that petitioner
has not carried his burden to show deficient
performance on the part of his attorney.
Given petitioner’s two prior convictions for
drunk driving, petitioner faced up to seven
years’ imprisonment. (See Resp’t’s Mem. at
12.) Defense counsel secured a more lenient
sentence by effectively portraying petitioner
in the most favorable light to the Court. (See
S. at 7–9.) In addition, counsel ensured that
petitioner was provided with adequate
medical attention while in prison. (Id.)
Indeed, at the end of the first sentencing
proceeding, the sentencing judge recognized
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 they
‘undermine[] 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
10
counsel’s representation of petitioner, telling
petitioner that his attorney had “done an
outstanding job” for him. (Id. at 14–15.)
guilty plea had he been told that he could
have done so. Petitioner does not so allege
in his habeas petition, and, moreover, he has
“alleged no special circumstances that might
support the conclusion that he placed
particular emphasis on [post-release
supervision] in deciding whether or not to
plead guilty.” Hill v. Lockhart, 474 U.S. 52,
60 (1985). In fact, the record shows that
petitioner was most concerned about his
prison sentence, and by pleading guilty, he
secured less time in prison than he could
have received had he gone to trial. Petitioner
presents no facts establishing that he would
have sought to undo the results of his guilty
plea in order to avoid two more years of
post-release supervision.
Moreover,
at
resentencing,
the
sentencing judge told petitioner he had
“various options,” which he “could talk
about with [his] attorney.” (R. at 2.) Then
the sentencing court asked defense counsel
what he wanted to do, and defense counsel
indicated that defendant was ready to be
resentenced. (Id. at 2–3.) Moments later,
defense counsel informed the court that he
had spoken to petitioner before resentencing
about petitioner’s desire to serve his
sentence at Fishkill Correctional Facility, so
that petitioner could enter a drunk driving
rehabilitation program. (Id. at 3.) All of the
foregoing facts indicate that defense counsel
provided
effective
representation
at
sentencing and resentencing—and they also
suggest that defense counsel spoke to
petitioner about his options after learning
about the sentencing judge’s initial error
concerning post-release supervision. In sum,
“the overall favorable disposition of
petitioner’s case belies his ineffective
assistance claim[].” Belle v. Superintendent,
No. 11-CV-0657 (NAM), 2013 WL 992663,
at *12 (N.D.N.Y. Mar. 13, 2013); see also
Seifert v. Keane, 74 F. Supp. 2d 199, 206
(E.D.N.Y. 1999) (“Given the favorable
nature of petitioner’s plea, the court cannot
say that counsel’s performance was
deficient . . . .”), aff’d, 205 F.3d 1324 (2d
Cir. 2000).
2. Failure to Advise Petitioner of Right to
Withdraw Guilty Plea
Petitioner also asserts that the trial court
should have advised him of his right to
withdraw his guilty plea at the resentencing
hearing. The crux of this claim is that
petitioner’s guilty plea was not made
voluntarily, knowingly, and intelligently
because he was unaware of the post-release
supervision
term
accompanying
his
sentence. For the reasons discussed below,
the Court concludes that this claim has no
merit.
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, 474 U.S.
at 56 (internal quotation marks and citations
omitted); see also Parke v. Raley, 506 U.S.
20, 28–29 (1992) (plea is valid when it is
made knowingly and voluntarily). Where “a
defendant is represented by counsel during
the plea process, and enters his plea upon
the advice of counsel, the voluntariness of
Second, even assuming arguendo that
petitioner’s counsel failed to inform
petitioner of his right to withdraw his guilty
plea at the resentencing hearing, and that
such a failure fell below an objective
standard of reasonableness, the Court
concludes
that
petitioner
has
not
demonstrated prejudice from any deficient
performance. Nothing in the record indicates
that petitioner would have withdrawn his
11
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).
(1998) (internal alteration, citations, and
quotation marks omitted).
b. Application
Under New York law, the trial court
should have advised petitioner of the fiveyear mandatory post-release supervision. In
People v. Catu, the Court of Appeals held
that, “[b]ecause a defendant pleading guilty
to a determinate sentence must be aware of
the postrelease supervision component of
that sentence in order to knowingly,
voluntarily and intelligently choose among
alternative courses of action, the failure of a
court to advise of postrelease supervision
requires reversal of the conviction.” 4
N.Y.3d 242, 245 (2005). It follows that,
having erroneously informed petitioner that
he was subject to only three years of postrelease supervision at sentencing, the
sentencing court should have allowed
petitioner to withdraw his guilty plea under
New York law.
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 that is made “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). Although 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.”).
However, under AEDPA, this Court may
grant relief only if the state court
“unreasonably applied clearly established
Federal law.” Carey v. Musladin, 549 U.S.
70, 77 (2006) (alterations omitted) (quoting
28
U.S.C.
§ 2254(d)(1)).
“‘Clearly
established Federal law’ means ‘the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of
the relevant state-court decision.’” Green,
414 F.3d at 296 (quoting Williams, 529 U.S.
at 412). Therefore, this Court cannot grant a
petition for habeas corpus if the state court
unreasonably applied state law; instead, this
Court may grant relief only if the state court
unreasonably applied federal law that has
been clearly defined by Supreme Court
precedents (or was a result of an
unreasonable determination of the facts in
light of the record). See Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009)
(“[T]his Court has held on numerous
“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
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
12
occasions that it is not an unreasonable
application of clearly established Federal
law for a state court to decline to apply a
specific legal rule that has not been squarely
established by this Court.” (citations and
internal quotation marks omitted)).
inform petitioner of his right to withdraw his
guilty plea after realizing his error—is not a
basis for habeas relief. See Sanchez, 2007
WL 4927791, at *8 (“[B]ecause the
Supreme Court has never addressed the
issue of whether mandatory supervised
release is a direct consequence of one’s
conviction, the trial court’s failure to inform
Petitioner of his mandatory [post-release
supervision] cannot be a violation of clearly
established federal law. In other words,
Petitioner’s claim is without merit because
there is no clearly established Supreme
Court precedent for the trial court to have
unreasonably applied.”); see also Lockhart,
446 F.3d at 724; Wilens, 2014 WL 28995, at
*8; Facen, 787 F. Supp. 2d at 284; Menjivar
v. Sears, No. 06-CV-2854, 2007 WL
2274892, at *3 (E.D.N.Y. Aug. 7, 2007).8
“Unfortunately for Petitioner, 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. Many federal courts
in this Circuit have recently come to this
same conclusion.” Sanchez v. Keller, No.
06-CV-3370, 2007 WL 4927791, at *7
(S.D.N.Y. Dec. 4, 2007) (report &
recommendation); see, e.g., Wilens v.
Superintendent of Clinton Corr. Facility,
No. 11-CV-1938 (JFB), 2014 WL 28995, at
*8 (E.D.N.Y. Dec. 31, 2013) (holding that
“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”);
Facen v. Cully, 787 F. Supp. 2d 278, 284
(W.D.N.Y. 2011) (stating that “the Supreme
Court has never held that a mandatory term
of post-release supervision is a direct
consequence of a criminal conviction”);
Potter v. Green, No. 04-CV-1343, 2009 WL
2242342, at *6 (E.D.N.Y. July 24, 2009)
(“[T]here is no clearly established Supreme
Court precedent that requires a state court
judge to advise a defendant of mandatory
[post-release supervision] before accepting a
guilty plea.”). In fact, as noted by the
Seventh Circuit, “the Court has expressly
declined to decide such an issue in the very
similar context of parole.” Lockhart v.
Chandler, 446 F.3d 721, 724 (7th Cir. 2006)
(citing Lane v. Williams, 455 U.S. 624, 630
n.9 (1982)). This Court finds the analysis
contained in these cases to be persuasive.
In addition, although the foregoing
analysis could end this Court’s inquiry, the
Court notes that petitioner must also
demonstrate that “there is a reasonable
probability that, but for the error, he would
not have entered the plea.” Zhang v. United
States, 506 F.3d 162, 168 (2d Cir. 2007)
(citation and internal quotation marks
omitted). As discussed supra, petitioner
provides no evidence that he would have
withdrawn his guilty plea had the sentencing
court informed him of his opportunity to do
so, and it appears highly improbable that the
post-release supervision played any role in
his decision to accept or reject the plea.
Therefore, as in Sanchez, “[p]etitioner’s
claim—that the failure to inform him of
mandatory [post-release supervision] prior
to the entry of his guilty plea was a violation
of his due process rights—can be dismissed
as harmless error, because even if he had
known about the [post-release supervision],
such knowledge would likely not have
Accordingly, the failure of the state
court to inform petitioner of the correct
length of post-release supervision—or to
8
As stated supra, even if the state court did violate
New York law, petitioner is also not entitled to relief
because this claim is procedurally barred.
13
affected his decision.” 2007 WL 4927791, at
*9.
IV. CONCLUSION
For the reasons set forth herein, this
Court finds that petitioner has demonstrated
no basis for habeas relief under 28 U.S.C.
§ 2254. Both of petitioner’s claims are
plainly without merit, and one of his claims
is procedurally barred. 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: June 11, 2014
Central Islip, New York
* * *
Petitioner proceeds pro se. Respondent
is represented by Kathleen M. Rice, District
Attorney, Nassau County, by Ilisa T.
Fleischer, 262 Old Country Road, Mineola,
NY 11501.
14
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