Jacobs v. Demars
Filing
9
MEMORANDUM AND OPINION. For the reasons set forth herein, the Court concludes that the petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Petitioners claims of ineffective assistance of counsel and excessive sentence are barred from review in light of the state courts decision on adequate and independent procedural grounds. Petitioners claims are also plainly without merit. Therefore, the petition for a writ of habeas corpus is denied. Because petitioner has fail ed 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 7/30/2014. (Chipev, George)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-3684 (JFB)
_____________________
ABDUR JACOBS,
Petitioner,
VERSUS
JOHN DEMARS,
Respondent.
___________________
MEMORANDUM AND ORDER
July 30, 2014
___________________
JOSEPH F. BIANCO, District Judge:
Pro se petitioner Abdur Jacobs
(“petitioner” or “Jacobs”) petitions this
Court for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, challenging his
November 19, 2010 conviction in the
Supreme Court of the State of New York,
County of Nassau (the “trial court”). Jacobs
pled guilty to one count of criminal
possession of a weapon in the second
degree, N.Y. Penal Law (“N.Y.P.L.”)
§ 265.03(3), concurrent with a violation of
probation. Petitioner was sentenced to a
determinate term of six years’ imprisonment
and three years’ post-release supervision for
the criminal possession charge, and to an
indeterminate term of up to four years’
imprisonment for the probation violation, to
run concurrently. Pursuant to the terms of
his plea agreement, petitioner waived his
right to appeal.
Petitioner now challenges his sentence
(not his conviction), arguing that: (1) he
received ineffective assistance of counsel,
and (2) his sentence should be reduced
because it was excessive. For the following
reasons, the Court concludes that Jacobs’
claims are procedurally barred due to his
guilty plea and voluntary waiver of his right
to appeal. The Court has also, in an
abundance of caution, reviewed petitioners’
claims on the merits and concludes that
these claims are without merit and provide
no basis for habeas relief in this case.
I.
BACKGROUND
A.
Facts
The Court has adduced the following
facts from the instant petition and
underlying state court record.
1.
The Weapon Possession Charges
On December 11, 2009, petitioner’s
residence in Hempstead, New York, was
searched by police officers pursuant to a
warrant. (Richards Aff. ¶ 5.) Officers
discovered three loaded handguns, one
unloaded handgun, a silencer, ammunition,
and two bags of marijuana inside
petitioner’s home. (Id.) Another team of
officers stopped petitioner while he was
driving and arrested him pursuant to a
probation violation warrant. (Id.) Under
Nassau County Indictment Number 1406N10, petitioner was charged with three counts
of criminal possession of a weapon in the
second degree, N.Y.P.L. § 265.03(3), five
counts of criminal possession of a weapon in
the third degree, N.Y.P.L. § 265.02(1), three
counts of criminal possession of a weapon in
the fourth degree, N.Y.P.L. § 265.01(1), one
count of attempted criminal possession of a
weapon in the second degree, N.Y.P.L.
§§ 110.00, 265.03(3), one count of
attempted criminal possession of a weapon
in the third degree, N.Y.P.L. §§ 110.00,
265.02(1), one count of attempted criminal
possession of a weapon in the fourth degree,
N.Y.P.L. §§ 110.00, 265.01(1), one count of
aggravated unlicensed operation of a motor
vehicle in the second degree, N.Y. Veh. &
Traf. Law § 511.2(a)(iv), and one count of
criminal possession of marijuana in the fifth
degree, N.Y.P.L. § 221.10(2).
2.
petitioner had discussed the case with his
attorney, including his waiver of his right to
appeal. (See id. at 4–7.) The court confirmed
that petitioner was in good physical and
mental health at the time of the proceeding,
and could understand English. (Id. at 4–5.)
The court then asked, “Are you satisfied
with the manner in which Mr. Lemke has
represented you?” (Id. at 6.) Petitioner
replied, “Yes, sir.” (Id.) The court also
confirmed that Jacobs understood that he
was giving up his right to a trial by jury,
during which the People would have the
burden of proving guilt beyond a reasonable
doubt. (Id.) Pursuant to the People’s request
for a waiver of his right to appeal, the court
then explained to petitioner: “The People are
requiring you to waive your right to appeal.
That means once I sentence you, you have
no right to appeal the plea, the sentence, or
any decisions I have made in connection
with this case. Do you understand that?” (Id.
at 7.) Petitioner replied, “I understand.
But—” (Id.) After a discussion between
petitioner and counsel, the court continued,
“Do you waive your right to appeal at this
time?”, to which petitioner responded, “Yes,
sir.” (Id. at 8.)
The Plea Proceeding1
During the proceedings, the court
explained that petitioner, upon pleading
guilty, would also be admitting to a violation
of probation and could be receiving
additional jail time. (Id.) Petitioner made no
objection. (Id.) After petitioner again
confirmed his desire to plead guilty, the
court informed him that despite a possible
sentence of up to fifteen years, the court
“promised to sentence [petitioner] to six
years determinate, with three years postrelease supervision.” (Id. at 10.) The court
continued to caution petitioner: “If, after
reading the probation report, I cannot keep
my promise, I will permit you to withdraw
your plea of guilty, reinstate your plea of not
guilty, and you’ll be permitted to go to trial.
Do you understand that?” (Id. at 10–11.)
On November 15, 2010, pursuant to a
plea agreement, petitioner pled guilty to one
count of criminal possession of a weapon in
the second degree, N.Y.P.L. § 265.03(3),
and the remaining charges were dismissed.
(Plea Tr. at 2, 9.) The People recommended
a term of imprisonment of five years and
sought a waiver of petitioner’s right to
appeal. (Id. at 3.) Petitioner’s counsel stated
that petitioner “join[ed] in the People’s
application, in all respects.” (Id.)
At the commencement of the
proceeding, the trial court verified that
1
“Plea Tr.” refers to the plea trial transcript.
2
Petitioner responded, “Yes, sir.” (Id. at 11.)
The court addressed petitioner to verify that
no other promises had been made. (Id.)
Defense counsel also indicated that this “is a
full and complete recitation of [the]
understanding, beyond the fact that
[counsel] would try to convince [the Court]
on the date of sentence to give [petitioner]
five years determinate.” (Id.) After finding
that petitioner understood that he was
waiving his rights and that the plea was
voluntary (id. at 12), the court asked, “How
do you plead?” (id. at 14). Petitioner
responded, “Guilty.” (Id. at 14.)
3.
that petitioner was “on probation for stealing
something from a thirty-six year old
woman” (id.), continued: “If you’ve got a
really, really, really, sensitive, empathizing
judge, you might get two opportunities [to
put your life in order]. Even that sensitive
and empathizing Judge, be they the most
liberal, turn-the-other-cheek individual you
ever faced in life, would never allow an
individual to walk away from a violation of
probation that involved four guns and a
silencer, with numerous rounds of
ammunition.” (Id. at 6.) The court
continued, “[Y]ou did admit your guilt.
That’s why you’re not doing more than six
years.” (Id.) It explained that the possible
sentence that could be imposed under the
indictment was fifteen years, but maintained
its commitment from the plea proceedings
and ordered a determinate sentence of six
years’ imprisonment and three years’ postrelease supervision. (Id. at 7.) The court also
sentenced petitioner for his violation of
probation to a term of one-and-a-third to
four years imprisonment, to run concurrently
with the sentence imposed under Indictment
1406N-10. (Id. at 7–8.) Finally, the court
reminded petitioner that, while he had the
right to appeal the violation of probation
sentence and proceedings, he had waived his
right to appeal with respect to the criminal
possession of a weapon charge. (Id. at 8.)
The Sentencing2
On January 20, 2011, petitioner and his
attorney, Dennis Lemke, Esq., appeared for
sentencing. The People recommended a
sentence of five years’ incarceration with
respect to the criminal possession charge.
(Sentencing Tr. at 2.) Lemke said, “I believe
there had been a six year commitment from
the Court to run concurrent to one and-athird to four. Or if the Court wishes to
follow the People’s recommendation of five
years concurrent to one and-a-third to four, I
would not object—” (Id. at 3.) Counsel
continued by requesting that the Court
redact any reference to gang association
from the probation report (Id. at 3–4.) The
court deferred the application, pending a
determination of the existence of
corroborating evidence. (Id.) Petitioner was
invited to address the court prior to
sentencing, but declined to do so. (Id.)
B.
Petitioner appealed his conviction to the
Appellate Division, Second Department,
arguing that (1) he received ineffective
assistance of counsel because counsel did
not argue at sentencing for a five-year,
rather than a six-year, term of imprisonment;
and (2) the sentence was excessive because
the prosecutor recommended a five-year
sentence. (See Br. For Appellant, July 20,
2012, ECF No. 5.) On December 19, 2012,
the Appellate Division affirmed petitioner’s
conviction and sentence, finding that
The court then addressed petitioner and
stated: “As far as I’m concerned, I’m
showing you mercy by the sentence I’m
giving you. Because, quite frankly, you and
I have both, I guess, known---if I’m not
mistaken, you were on probation once
before, correct?” (Id. at 5.) The court, noting
2
State Court Appeals
“Sentencing Tr.” refers to the sentencing transcript.
3
petitioner’s valid waiver of his right to
appeal precludes review of his contentions
that the sentence imposed was excessive and
that he received ineffective assistance of
counsel. People v. Jacobs, 955 N.Y.S.2d
525 (N.Y. App. Div. 2012).
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.
Petitioner requested that the Court of
Appeals grant him leave to appeal from the
Appellate Division’s decision affirming his
judgment. On February 20, 2013, the Court
denied the request. People v. Jacobs, 20
N.Y.3d 1062 (2013).
C.
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)).
The Instant Petition
On June 27, 2013, petitioner filed the
instant petition before this Court for a writ
of habeas corpus. This Court issued an
Order to Show Cause on July 1, 2013.
Respondent submitted the opposition on
August 29, 2013. Petitioner replied on
September 10, 2013. The Court has fully
considered the submissions and arguments
of the parties.
II.
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.
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—
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
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of, clearly
4
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)).
III.
they were decided at the state level on
“independent and adequate” state procedural
grounds. Coleman v. Thompson, 501 U.S.
722, 729–33 (1991); see, e.g., Michigan v.
Long, 463 U.S. 1032, 1041 (1983). The
procedural rule at issue is adequate if it is
“firmly established and regularly followed
by the state in question.” Garcia v. Lewis,
188 F.3d 71, 77 (2d Cir. 1999) (internal
quotation
marks
omitted).
To
be
independent, the “state court must actually
have relied on the procedural bar as an
independent basis for its disposition of the
case,” by “clearly and expressly stat[ing]
that its judgment rests on a state procedural
bar.” Harris v. Reed, 489 U.S. 255, 261–63
(1989) (internal quotation marks omitted). In
addition, a state court’s reliance on an
independent and adequate procedural bar
precludes habeas review even if the state
court also rejected the claim on the merits in
the alternative. See, e.g., id. at 264 n.10
(holding that “a state court need not fear
reaching the merits of a federal claim in an
alternative holding,” so long as the state
court “explicitly invokes a state procedural
bar rule as a separate basis for decision”
(emphasis in original)); Glenn v. Bartlett, 98
F.3d 721, 725 (2d Cir. 1996) (same).
DISCUSSION
Petitioner argues that he is entitled to
habeas relief because: (1) he received
ineffective assistance of counsel due to
counsel’s failure to argue for a five year
sentence; and (2) his sentence was excessive
because two prosecutors recommended a
five year sentence, yet the sentence imposed
was six years’ imprisonment. For the
reasons set forth below, petitioner’s request
for a writ of habeas corpus is denied in its
entirety. Specifically, the Court concludes
that petitioner’s claims are procedurally
barred from federal habeas review because
they were decided at the state level on
adequate and independent procedural
grounds. Due to petitioner’s valid waiver of
his right to appeal, review of his claims is
precluded. Further, petitioner has failed to
demonstrate cause for the default and
prejudice resulting therefrom, or that a
miscarriage of justice would result from the
preclusion of these claims. The Court has
also considered the claims on the merits and
concludes that petitioner has failed to
demonstrate any basis for habeas relief.
A.
Procedural Bar
1.
The procedural bar is based on the
“comity and respect” that state judgments
must be accorded. House v. Bell, 547 U.S.
518, 536 (2006). Its purpose 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.
Generally, the Second Circuit has deferred
to state findings of procedural default as
long as they are supported by a “fair and
substantial basis” in state law. Garcia, 188
F.3d at 78. However, there is a “small
category” of “exceptional cases in which
[an] exorbitant application of a generally
sound [procedural] rule renders the state
ground inadequate to stop consideration of a
Legal Standard
A petitioner’s federal claims may be
procedurally barred from habeas review if
5
reasonable doubt.” House, 547 U.S. at 536–
38.
federal question.” Lee v. Kemna, 534 U.S.
362, 376, 381 (2002). Nevertheless,
principles of comity “counsel that a federal
court that deems a state procedural rule
inadequate should not reach that conclusion
lightly or without clear support in state law.”
Garcia, 188 F.3d at 77 (citation and internal
quotation marks omitted).
2.
Application
The Court concludes that petitioner’s
claims are procedurally barred because they
were decided at the state level on adequate
and independent state procedural grounds.
If a claim is procedurally barred, a
federal habeas court may not review it on
the merits unless the petitioner demonstrates
both cause for the default and prejudice
resulting therefrom, or if he demonstrates
that the failure to consider the claim will
result in a miscarriage of justice. Coleman,
501 U.S. at 750. A petitioner may
demonstrate cause by showing one of the
following: “(1) the factual or legal basis for
a petitioner’s claim was not reasonably
available to counsel, (2) some interference
by state officials made compliance with the
procedural rule impracticable, or (3) the
procedural default was the result of
ineffective assistance of counsel.” McLeod
v. Graham, No. 10 Civ. 3778, 2010 WL
5125317, at *3 (E.D.N.Y Dec. 9, 2010)
(citing Bossett v. Walker, 41 F.3d 825, 829
(2d Cir. 1994)). Such prejudice can be
demonstrated by showing that the error
“worked to his actual and substantial
disadvantage, infecting his entire trial with
error of constitutional dimensions.” Torres
v. Senkowski, 316 F.3d 147, 152 (2d Cir.
2003) (citation and internal quotation marks
omitted). A miscarriage of justice is
demonstrated in extraordinary cases, such as
where a “constitutional violation has
probably resulted in the conviction of one
who is actually innocent.” Murray v.
Carrier, 477 U.S. 478, 496 (1986). To
overcome a procedural default based on a
miscarriage of justice, the petitioner must
demonstrate that “more likely than not, in
light of the new evidence, no reasonable
juror would find him guilty beyond a
The Appellate Division expressly held
that petitioner’s “valid waiver of his right to
appeal precludes review of his contention
that the sentence imposed was excessive, as
well as his contention that he received
ineffective assistance of counsel regarding
that sentence.” Jacobs, 955 N.Y.S.2d at 525
(citing People v. Lopez, 6 N.Y.3d 248, 255
(2006); People v. Collier, 895 N.Y.S.2d 848
(N.Y. App. Div. 2010)). “Accordingly, the
Appellate Division relied on an independent
state procedural ground barring claims that
do not relate to the voluntariness of a
defendant’s plea or the legality of his
sentence when there has been a valid waiver
of the right to appeal.” Burvick v. Brown,
No. 10-CV-5597 (JFB), 2013 WL 3441176,
at *6 (E.D.N.Y. July 9, 2013).
A valid waiver of the right to appeal is
an adequate procedural ground barring
federal review of petitioner’s claims because
this rule is firmly established and regularly
followed. Id.; see also Lopez, 6 N.Y.3d at
256 (“[W]hen a defendant enters into a
guilty plea that includes a valid waiver of
the right to appeal, that waiver includes any
challenge to the severity of the sentence.”);
People v. Taubenkraut, 849 N.Y.S.2d 896,
897 (N.Y. App. Div. 2008) (“The
defendant’s valid and unrestricted waiver of
his right to appeal, as part of his plea
agreement, precludes appellate review of his
claims that the sentence imposed was
excessive.”); People v. Petgen, 55 N.Y.2d
529, 535 n.3 (1982) (“Indeed it may be
persuasively argued that even if there were
but one attorney, if the ineffective assistance
6
of counsel did not infect the plea bargaining
process itself, the defendant, having
admitted commission of the criminal act by
his guilty plea, should be held to have
forfeited any claim of ineffective assistance
of counsel not directly involved in the plea
bargaining process.”); People v. Cumba, 820
N.Y.S.2d 304, 304 (N.Y. App. Div. 2006)
(“By pleading guilty, the defendant forfeited
appellate review of his claims of ineffective
assistance of counsel insofar as they did not
directly involve the plea bargaining
process.”). As this Court recognized in
Burvick, 2013 WL 344176, at *6, federal
courts have held that New York law
allowing defendants to waive their right to
appeal as part of a plea agreement, as long
as the waiver is made voluntarily and is
knowing and intelligent, is an adequate and
independent state ground that bars habeas
review, and this Court agrees with those
decisions. See, e.g., Morales v. Woughter,
No. 09-CV-909, 2010 WL 2399992, at *4
(E.D.N.Y. June 10, 2010); Riley v. Goord,
No. 02 Civ. 5884, 2003 WL 22966278, at *6
(S.D.N.Y. Dec. 16, 2003).3
demonstrates that the failure to consider the
claim will result in a miscarriage of justice.
See Coleman, 501 U.S. at 748–51; Murray,
477 U.S. at 496. Petitioner has failed to meet
this burden. First, petitioner does not claim
that he is actually innocent. Further, he has
not demonstrated good cause for the default,
because it is apparent that both his plea and
the waiver of his right to appeal with respect
to the six-year sentence were voluntary and
knowing, as discussed infra. See Alvarez v.
Yelich, No. 09-CV-1343, 2012 WL
2952412, at *5 (E.D.N.Y. July 17, 2012)
(concluding that petitioner had not
demonstrated cause or prejudice to excuse
default where record established that
waivers of right to appeal were knowing and
voluntary). Petitioner never withdrew his
plea of guilty during the plea hearing when
he was warned that he might receive a
possible sentence of six years determinate,
with three years post-release supervision.
(Plea Tr. at 10.) He also did not address the
court at the sentencing hearing or object to
the imposition of the six year sentence.
(Sentencing Tr. at 5.) Thus, the Court
concludes that petitioner has failed to show
cause for the default and prejudice resulting
therefrom, or a miscarriage of justice.4
Accordingly, petitioner’s claims are
procedurally barred from review.
Therefore, the Court can review
petitioner’s claims only if petitioner
demonstrates both cause for the default and
prejudice resulting therefrom, or if he
B.
3
Although claims that relate to the voluntariness of a
defendant’s plea are not procedurally barred,
petitioner here makes no challenge, nor could such a
challenge be meritoriously asserted. At the plea
proceeding, the trial court confirmed that petitioner
was mentally and physically competent to proceed,
and that petitioner was satisfied with the
representation counsel had provided to him. (Plea Tr.
at 4–6.) As detailed supra, petitioner affirmatively
waived his right to appeal after the trial court
explained that, upon sentencing, petitioner would
have no right to appeal the plea, the sentence, or
other decisions by the trial court. (Id. at 7–8.)
Nothing in the record indicates that petitioner’s
waiver of his right to appeal was not made
voluntarily, intelligently, and knowingly. Thus, the
Court deems the waiver valid and comprehensive.
The Merits
In an abundance of caution, the Court
has considered petitioner’s claims regarding
ineffective assistance of counsel and the
excessiveness of his sentence on the merits.
These claims are, however, without merit
and do not provide any basis for habeas
relief in this case.
4
As discussed infra, petitioner also does not put forth
sufficient evidence to support a contention that, but
for the alleged ineffective assistance of his counsel,
he would have received a sentence of five years.
7
1.
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).
Ineffective Assistance of Counsel
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: (1) “counsel’s representation fell
below
an
objective
standard
of
reasonableness,” id. at 688, 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.
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
prejudice from counsel’s errors . . . is
whether there is a reasonable probability
that, absent the errors, the factfinder 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).
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
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
This Court proceeds to examine
petitioner’s claims, keeping in mind he bears
the burden of establishing both deficient
performance and prejudice. United States v.
Birkin, 366 F.3d 95, 100 (2d Cir. 2004).
8
b.
defendant’s attempts to cooperate with the
government, failed to challenge imposition
of aggravating role enhancement, and failed
to seek downward departure).5
Application
Petitioner argues that he received
ineffective assistance of counsel because his
attorney failed to provide the trial court at
sentencing with a reason why it should
impose a five-year sentence as opposed to a
six-year sentence. (Petitioner’s Reply Mem.
at 2.) Petitioner contends that, because
counsel remained silent, he was not given
the five-year sentence the court would have
entertained had counsel addressed the court.
(Id.) However, upon review of the record,
the Court determines that these contentions
are without merit.
Although
petitioner’s
failure
to
successfully satisfy the first prong of
Strickland disposes of his ineffective
assistance of counsel claim, even assuming
arguendo that petitioner satisfied this prong,
his claim lacks merit with respect to the
second prong of Strickland.
To demonstrate prejudice as a result of
the ineffective assistance of counsel,
petitioner “must show a reasonable
probability that, but for counsel’s
substandard performance, he would have
received a less severe sentence.” Gonzalez,
722 F.3d at 130. In the instant case, the
Court concludes that, even if counsel had
argued for a five-year sentence, it is unlikely
Petitioner’s claim fails to satisfy the first
prong of Strickland. Under the strong
presumption that counsel has given effective
assistance, Greiner, 417 F.3d at 319
(quoting Strickland, 466 U.S. at 691), this
Court does not regard counsel’s actions at
sentencing as objectively unreasonable.
Counsel did not remain silent at sentencing,
as petitioner suggests. Instead, counsel said
that “there had been a six year commitment
from the Court to run concurrent to the one
and-a-third to four. Or if the Court wishes to
follow the People’s recommendation of five
years concurrent to one and-a-third to four, I
would not object—”. (Sentencing Tr. at 3.)
He then continued to make requests of the
court during sentencing, including redacting
information on the probation report, even
though the court did not appear receptive to
the five year sentence request. (Id.) This
level of involvement in the sentencing
hearing can hardly be construed as standing
silent as petitioner contends. Cf. Gonzalez v.
United States, 722 F.3d 118, 124, 135–36
(2d Cir. 2013) (holding that where counsel
did little more than simply attend the
sentencing hearing and make a two-sentence
statement, counsel provided objectively
unreasonable assistance, particularly where
counsel did not submit a sentencing
memorandum, seek lenience based on
5
Relatedly, petitioner relies on Miller v. Martin, 481
F.3d 468 (7th Cir. 2007), to assert that defense
counsel’s decision to stand silent at sentencing
warrants a presumption of prejudice. In Miller, the
Seventh Circuit reiterated its holding that “the
effective abandonment of a defendant at sentencing”
calls for a presumption of prejudice. Id. at 472. For
that presumption to apply, however, “‘the attorney’s
failure must be complete,’” such that the advocacy is
ostensibly “non-existent.” Id. at 473 (quoting Bell v.
Cone, 535 U.S. 685 (2002)). Miller concerns notably
distinct circumstances from this case. There, during
sentencing, counsel only orally moved for a new trial
and explained that neither he nor the defendant would
participate in the proceedings. Id. He “did not offer a
shred of mitigating evidence, object to (or consult
with his client about) errors in the [presentence
report], or even lobby for a sentence lower than the
one urged by the State.” Id. Here, on the other hand,
counsel clearly participated in the sentencing
proceeding and acknowledged and agreed with the
prosecution’s recommendation of a five-year
sentence. Nothing in the record indicates that any
particular issues arose before or during the sentencing
hearing that affected (e.g., increased) petitioner’s
sentence. Thus, the Court cannot conclude that
Lemke failed to participate at all in the sentencing or
was constitutionally ineffective in any way.
9
Keane, 969 F. 2d 1381, 1383 (2d Cir. 1992);
see also Alfini v. Lord, 245 F. Supp. 2d 493,
502 (E.D.N.Y. 2003) (“It is well settled that
an excessive sentence claim may not be
raised as grounds for habeas corpus relief if
the sentence is within the range prescribed
by state law.” (collecting cases)); McCalvin
v. Senkowski, 160 F. Supp. 2d 586, 589
(S.D.N.Y. 2001) (“Sentencing decisions are
not cognizable on habeas corpus review
unless the sentence imposed falls outside the
range prescribed by state law.”); Thomas v.
Senkowski, 968 F. Supp. 953, 956–57
(S.D.N.Y. 1997) (dismissing excessive
sentence claim where the petitioner’s
sentence fell within the range prescribed by
state law).
that the trial court would have imposed that
sentence. As the court indicated, it deemed
the six-year sentence to be a benefit for
petitioner,
particularly
given
the
circumstances of his violation of probation.
(See Sentencing Tr. at 5–7 (“As far as I’m
concerned, I’m showing you mercy by the
sentence I’m giving you. . . . Probation says
that you made a poor adjustment to
community supervision which, I guess, four
guns and a silencer with rounds of
ammunition would be an understatement. . .
. [Y]ou did admit your guilt. That’s why
you’re not doing more than six years.”).)
There is no reason to believe, in light of the
court’s reasoning, that any argument by
counsel would have resulted in a lower
sentence. Moreover, the lack of prejudice is
further demonstrated by the fact that
petitioner not only received the sentence that
was promised to him at the plea proceeding
by the court, but also received a sentence
that was advantageous to him and well
below the potential maximum of fifteen
years. In sum, counsel’s performance was
neither deficient nor prejudicial to petitioner
in any way. Accordingly, the ineffective
assistance of counsel claim does not provide
a basis for habeas relief in this case.
2.
Petitioner pled guilty to criminal
possession of a weapon in the second
degree, which carries a maximum sentence
of up to 15 years’ incarceration. N.Y.P.L.
§§ 265.03, 70.02(1)(b) (“For a class C
felony, the term must be at least three and
one-half years and must not exceed fifteen
years. . . .”). Thus, because petitioner’s
sentence was within the statutorily
prescribed range, there is no federal question
for habeas review.6 See Burvick, 2013 WL
3441176, at *11 (finding no federal question
for habeas review where sentence was
within statutorily prescribed range); Bell v.
Ercole, 631 F. Supp. 2d 406, 419 (S.D.N.Y.
2009) (finding no federal constitutional
issue where sentence of fourteen years fell
within New York statutory guidelines for
second felony offender convicted of
possession of weapon in second degree).
Excessive Sentence
In this case, petitioner was sentenced to
a determinate term of imprisonment
constituting six years for criminal
possession of a weapon in the second
degree, followed by three years of postrelease supervision. Petitioner challenges
this sentence as excessive in light of the
prosecution’s recommendation for a fiveyear sentence and counsel’s failure to argue
in favor of that sentence. (Petition, at 8.)
IV.
CONCLUSION
For the foregoing reasons, the Court
concludes
that
the
petitioner
has
For the purpose of habeas review, “[n]o
federal constitutional issue is presented
where, as here, the sentence is within the
range prescribed by state law.” White v.
6
In any event, for the reasons explained by the
sentencing court, this Court concludes that the
sentence was not excessive in light of the criminal
conduct that was the subject of the guilty plea.
10
demonstrated no basis for habeas relief
under 28 U.S.C. § 2254. Petitioner’s claims
of ineffective assistance of counsel and
excessive sentence are barred from review in
light of the state court’s decision on
adequate and independent procedural
grounds. Petitioner’s claims are also 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: July 30, 2014
Central Islip, New York
***
Petitioner proceeds pro se. Respondent is
represented by Kathleen M. Rice, by Jason
R. Richards and Kevin C. King, Nassau
County District Attorney’s Office, 262 Old
Country Road, Mineola, NY 11501.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?