Flowers v. Perez
MEMORANDUM AND ORDER - The Petitioner's writ of habeas corpus (Docket Entry 1) is DENIED. The Court declines to issue a certificate of appealability because the Petitioner has not made a substantial showing that he was denied a constitutional r ight. See 28 U.S.C. § 2253(c)(2). The Court also certifies that any appeal of this Order would not be taken in good faith, and thus his in forma pauperis status is DENIED for the purposes of any appeal. The Clerk of the Court is respectfully directed to CLOSE this case and mail copies of this Order to the pro se litigant. So Ordered by Judge Joanna Seybert on 8/22/2017. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RANDOLPH N. FLOWERS,
MEMORANDUM & ORDER
Randolph N. Flowers, pro se
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, New York 12788
Alyson Gill, Esq.
New York State Attorney General’s Office
300 Motor Parkway, Suite 230
Hauppauge, New York 11788
Marian M. Tang, Esq.
District Attorney’s Office, Suffolk County
Criminal Courts Building
200 Center Drive
Riverhead, New York 11901
SEYBERT, District Judge:
In 2008, Randolph Flowers, along with two accomplices,
staged a home invasion where he struck the victim with a weapon.
After Flowers was arrested, a Suffolk County jury convicted him
of one count of first-degree burglary in violation of New York
Penal Law § 140.30(4) and one count of second-degree assault in
violation of New York Penal Law § 120.05(6).
His appeals proved
unsuccessful, and so Flowers filed this pro se Petition for a
writ of habeas corpus.
See 28 U.S.C. § 2254.
He raises five
(3) deficiencies in the grand jury proceeding; (4) whether his
assistance of counsel.
For the following reasons, his Petition
is DENIED in its entirety.
The Court will start with a general overview, adding
practice, the facts are viewed in the light most favorable to
The Offense Conduct
All dates refer to the year 2009 unless otherwise stated.
Citations to the record are as follows: Tang Aff. (Docket
Entry 7); Flowers’s brief on direct appeal (Appellant’s Br.,
Docket Entry 8 at 1–34); a letter from the Legal Aid Society
dated June 27, 2012 (Legal Aid Ltr., Docket Entry 8 at 103–04);
Flowers’s Section 440.20 Motion (440.20 Mot., Docket Entry 8 at
109–27); Gaynor Flowers’s Affidavit (Flowers’s Aff., Docket
Entry 8 at 126–27); the procedural history of the 440.20 motion
(440.20 Decisions, Docket Entry 8 at 139, 178); 2/25 Tr. (Docket
Entry 8-1 at 1–5); 5/11 Tr. (Docket Entry 8-1 at 27–216);
5/13 Tr. (Docket Entry 8-3 at 1–97); 5/14 Tr. (Docket Entry 8-3
at 98–217); 5/15 Tr. (Docket Entry 8-4 at 1–129); 5/18 Tr.
(Docket Entry 8-4 at 130–210 & Docket Entry 8-5 at 1–81);
5/19 Tr. (Docket Entry 8-5 at 82–220); 5/20 Tr. (Docket Entry 86 at 1–97); 5/22 Tr. (Docket Entry 8-6 at 135–49); and the
sentencing transcript (S. Tr., Docket Entry 8-6 at 150–63);
Pet’r’s Reply Br., (Docket Entry 11).
Flowers hatched a plan to rob his former landlord at a threebedroom apartment in Huntington Station.
(5/15 Tr. 47:23–48:3,
Flowers brought a silver B.B. gun, which
resembled a pistol, and recruited two other men.
Donning black masks and gloves, the trio arrived
(5/15 Tr. 53:5–25.)
Inside the apartment was Francisco Garcia, a Honduran
immigrant, who awoke from a knock at the door.
(5/14 Tr. 63:21–
forgot his key, Garcia unlocked the door and opened it.
three men burst in, and Flowers smashed Garcia in the face with
(5/14 Tr. 67:2–20, 69:8–15.)
The men threw Garcia on
his bed, kicked him, and stole at least one cell phone.2
Tr. 73:4–15; 5/15 Tr. 55:9–15.)
Meanwhile, Velasquez, who was already home, heard the
commotion from Garcia’s room.
(5/15 Tr. 9:12–18.)
knocked on Garcia’s door and threatened to call the police.
(5/15 Tr. 10:14-16.)
At this point, the intruders fled, and
Velasquez went to the front door and watched the men run away
Garcia was missing one of two cell phones and $125 in cash, but
other testimony suggests that Flowers and his accomplices stole
only two cell phones. (5/14 Tr. 75:20-76:3; 5/15 Tr. 55:9–15.)
Flowers as one of the perpetrators because the two had prior
(5/15 Tr. 4:17–5:25.)
Flowers and the accomplices returned to Dickinson’s
car, telling him that they “kicked somebody in the face, and
somebody got hit with a gun.”
(5/15 Tr. 54:11–13.)
(5/15 Tr. 54:2-8.)
Around the same time, Velasquez
called 911 and informed them of the break-in.
(5/15 Tr. 43:10–
Following a brief investigation, Flowers was arrested on
(5/18 Tr. 30:4-18.)
February 2, 2008.3
Burglary in the first-degree and Assault in the second-degree.4
(5/22 Tr. 10:9–16.)
The State’s case included testimony from a
number of key witnesses: (1) the victim, Francisco Garcia, (5/14
Velasquez (5/15 Tr. 8:24–9:15); (3) the getaway driver, Daniel
dispatcher, (5/13 Tr. 86:12–19, 89:14–25); (5) the crime scene
One accomplice pled guilty to one count of Attempted Gang
Assault in the second degree. The third accomplice is still at
large. (Tang Aff. at 2 n.2.)
Additional counts were dismissed before jury deliberations.
(5/20 Tr. 2:11–15.)
Rocchio, a first responder, (5/13 Tr. 33:6–14, 34:25–36:2); and
(7) Detective Daniel Murphy, the lead detective in the case,
(5/18 Tr. 2:22–23, 4:14–24).5
The defense presented Flowers’s fiancée, Maureen Mohr,
as an alibi witness.
(5/19 Tr. 16:12–13, 18:19–20:24.)
Velasquez described, because he injured his leg in a motorcycle
(5/19 Tr. 78:14–19, 79:6–17, 80:2–6, 84:22–85:14.)
Flowers to concurrent terms: a fifteen-year term followed by
five years of supervised release for first-degree burglary and a
five-year term followed by three years of supervised release for
(S. Tr. 12:5–13.)
At his sentencing,
persuaded the judge to grant a sentence lower than the maximum.
(S. Tr. 12:18–25.)
During jury selection, Flowers’s lawyer informed the court that
he had received a partial Rosario package, which included the
As relevant to the appellate court’s decision, Detective Murphy
testified that Velasquez saw a confirmatory photo array and
immediately picked out Flowers. (5/18 Tr. 13:4–11.)
established the date of the attack as August 17, 2007, but the
(5/11 Tr. 28:12–24.)
Using this “incorrect” date as support,
Flowers’s lawyer made an application to the court to dismiss the
indictment as “based upon insufficient facts inconsistent with
the Indictment itself.”
(5/11 Tr. 29:15–25.)
contested the motion, arguing that the sole reference to the
correct date was provided by German Velasquez, other witnesses,
the felony complaint, and the bill of particulars.
The court ultimately denied the motion, in
(5/11 Tr. 34:6–13.)
The court also noted that any
Flowers, with aid of appellate counsel, appealed to
the Second Department, presenting four bases of error: (1) the
evidence was legally insufficient for a jury to convict him;
bolster testimony; (3) he was denied his right to a grand jury;
and (4) the sentence was excessive.
(Appellant’s Br. at 7.)6
The page numbers correspond with CM/ECF’s numeration of Docket
People v. Flowers, 95 A.D.3d 1233, 1233–34, 945 N.Y.S.2d 701,
702–03 (2d Dep’t 2012).
First, the sufficiency-of-the-evidence
argument was “unpreserved for appellate review,” the court said,
and, at any rate, there was no shortage of evidence at trial to
support the convictions.
Id. at 1233–34, 945 N.Y.S.2d at 702–
appellate review, as defense counsel either failed to object to
Id. at 1234, 945 N.Y.S.2d at 703.
The court further
complainant’s identification of the defendant from a photo array
was improper, the error was harmless” because the trial evidence
Third, the court determined that the grand-
jury arguments were “not reviewable” because Flowers’s “guilt
alternatively, the arguments lacked merit.
Flowers requested leave to appeal, which was denied by
the New York Court of Appeals.
People v. Flowers, 19 N.Y.3d
1025, 978 N.E.2d 110, 953 N.Y.S.2d 558 (2012).
Flowers then filed a pro se motion to set aside his
(440.20 Mot. at 109–10.)
In this 440.20 motion, he argued that
his sentence was excessive and in retaliation for his decision
to reject a plea deal and proceed to trial.
(Id. at 114–17.)
(Id. at 111–12.)
Flowers attached a sworn
statement from his mother detailing a supposed plea deal that
the trial judge offered during jury deliberations.
The Suffolk County Supreme Court denied the motion.
(440.20 Decisions at 139.)
The court concluded that Flowers’s
ineffective-assistance-of-counsel claim was based on the trial
record and accordingly “not available for review under Article
sentencing claims, the court determined that Flowers “had a full
and fair opportunity to litigate his sentence” before the Second
Department and thus rejected those claims.
sought leave to appeal to the Second Department, but his request
(Id. at 178.)
This Petition followed.
The Legal Standard
Congress enacted the Antiterrorism and Effective Death
(1996), to restrict “the power of federal courts to grant writs
of habeas corpus to state prisoners.”
Williams v. Taylor, 529
U.S. 362, 399, 120 S. Ct. 1495, 1516, 146 L. Ed. 2d 389 (2000).
deference to state court decisions.
See Virginia v. LeBlanc,
137 S. Ct. 1726, 1729, 198 L. Ed. 2d 186 (2017).
is straightforward: A high bar for relief “avoids unnecessarily
concluded litigation, denying society the right to punish some
degree matched by few exercises of federal judicial authority.’”
Id. (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct.
770, 787, 178 L. Ed. 2d 624 (2011)) (brackets omitted).
To warrant relief, a state prisoner must show “that he
treaties of the United States.”
28 U.S.C. § 2254(a).
that his claims are cognizable in federal court, the prisoner
must comply with three requirements; he must: (1) exhaust state
remedies, (2) follow procedural requirements, and (3) satisfy
AEDPA’s steep standard of review.
See 28 U.S.C. § 2254.
remedies by presenting his claims to the state court for review.
28 U.S.C. § 2254(b)(1)(A).
violations of its prisoners’ federal rights.’”
See Jackson v.
Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v.
Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438
(1971)); Davila v. Davis, 137 S. Ct. 2058, 2070, 198 L. Ed. 2d
The next step also provides due deference to state
A federal court will not review a habeas petition if
requirements for presenting his claims, thereby “depriv[ing] the
Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555,
115 L. Ed. 2d 640 (1991).
This procedural bar applies even if
the state court addressed the merits in the alternative but
decided the claim on independent procedural grounds.
v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
To secure review of
defaulted claims, a state prisoner must show either (1) “cause
for the default and actual prejudice as a result” or (2) actual
Coleman, 501 U.S. at 750, 111 S. Ct. at 2565.
habeas corpus unless the state court’s 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) resulted in a decision
determination of the facts in light of the
28 U.SC. § 2254(d).
The Supreme Court has construed AEDPA “to
give independent meaning to ‘contrary [to]’ and ‘unreasonable.’”
Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000).
conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently
Ct. at 1523.
A decision involves “an unreasonable application”
Williams, 529 U.S. at 412–13, 120 S.
principle to the facts of the prisoner’s case.”
Id. at 413, 120
reasonable jurists agree that the state court was wrong; rather,
unreasonable to all reasonable jurists.’”
Jones, 229 F.3d at
119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir.
decisions be given the benefit of the doubt.’”
Jones v. Murphy,
694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565
U.S. 65, 66, 132 S. Ct. 490, 491, 181 L. Ed. 2d 468 (2011)).
This standard is “‘difficult to meet,’” and deliberately so.
White v. Woodall, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698
(2014) (quoting Metrish v. Lancaster, 569 U.S. 351, ---, 133 S.
Ct. 1781, 1786, 185 L. Ed. 2d 988 (2013)), reh’g denied, 134 S.
Ct. 2835 (2014).
Section 2254(d), as amended by AEDPA, “stops
short of imposing a complete bar on federal-court relitigation
of claims already rejected in state proceedings.”
562 U.S. at 102, 131 S. Ct. at 786.
Thus, a petition must show
Id. at 103, 131 S. Ct. at 786–87.
Flowers renews the arguments made in his direct appeal
and his 440.20 motion: (1) the evidence was legally insufficient
for a jury to convict him, (Pet. at 3); (2) the trial allowed
witness bolstering in violation of People v. Trowbridge, 305
N.Y. 471, 113 N.E.2d 841 (1953), (id. at 7); (3) Flowers was
deprived of his right to a grand jury because of deficiencies
with the indictment, (id. at 6, 9); (4) the sentence imposed was
excessive and retaliatory, (id. at 3, 10); and (5) his trial
counsel was constitutionally ineffective, (id. at 4).
Pro se submissions, like those from Flowers, require
flexible construction, and so the Court must interpret them “‘to
raise the strongest arguments that they suggest.’”
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
leeway does not excuse Flowers “‘from compl[ying] with relevant
rules of procedural and substantive law,’” Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983) (quoting Birl v. Estelle, 660 F.2d
592, 593 (5th Cir. Nov. 1981)), as he “bears the burden of
constitutional rights have been violated,” Jones v. Vacco, 126
F.3d 408, 415 (2d Cir. 1997).
Sufficiency of the Evidence
evidence to support his convictions.7
(Pet. at 3.)
If Flowers also challenges the weight of the evidence, that
claim is not cognizable. See Correa v. Duncan, 172 F. Supp. 2d
argument is that the victim established the incorrect date of
the crime during his grand jury testimony.
(Legal Aid Ltr. at
Any corrections, Flowers argues, “did not establish
the facts of the crime charged, but simply proved [his] presence
at the incident location at that later date.”
(Id. at 103.)
The Second Department, which issued the “last reasoned state
judgment,” Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000),
held that this claim was “unpreserved for appellate review, as
defense counsel made only a general motion for a trial order of
dismissal based upon the People’s alleged failure to make out a
prima facie case,” Flowers, 95 A.D.3d at 1233–34, 945 N.Y.S.2d
Thus, Flowers’s claim is procedurally defaulted.
course, Flowers can secure review of this default claim if he
can show either (1) cause and ensuing prejudice or (2) actual
Coleman, 501 U.S. at 750, 111 S. Ct. at 2565.
nothing in the record supports either exception.
claim is meritless.8
A defendant challenging the sufficiency of
378, 381 (E.D.N.Y. 2001) (“A ‘weight of the evidence’ argument
is a pure state law claim grounded in New York Criminal
Procedure Law § 470.15(5), whereas a legal sufficiency claim is
based on federal due process principles.”); Douglas v.
Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002) (recognizing
that a federal court can address legal sufficiency claims but
not “weight of the evidence” claims).
The Second Department’s alternative ruling on the merits does
not change this outcome. See Flowers, 95 A.D.3d at 1233, 945
the evidence “‘bears a heavy burden, as the standard of review
is exceedingly deferential.’”
United States v. Brock, 789 F.3d
60, 63 (2d Cir. 2015) (quoting United States v. Coplan, 703 F.3d
46, 62 (2d Cir. 2012)).
The Court “‘must view the evidence in
inference that could have been drawn in the Government’s favor,
and deferring to the jury’s assessment of witness credibility.’”
Id. (quoting U.S. v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008).
The verdict will stand if “‘any rational trier of fact could
federal court must look to state law to determine the elements
of the crime.”
Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d
Pertinently, a person is guilty of first-degree
[H]e knowingly enters or remains unlawfully
in a dwelling with intent to commit a crime
therein, and when, in effecting entry or
while in the dwelling or in immediate flight
N.Y.S.2d at 702 (“In any event, viewing the evidence in the
light most favorable to the prosecution, we find it was legally
sufficient to establish the defendant’s guilt beyond a
reasonable doubt.”) (internal citation omitted). Indeed,
“federal habeas review is foreclosed where the state court has
also expressly relied on the petitioner’s procedural default,”
Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007), and the
Second Circuit has “decline[d] to read a contingent observation
as an ‘adjudication on the merits.’” Bell v. Miller, 500 F.3d
149, 155 (2d Cir. 2007).
therefrom, he or another participant in the
4. Displays what appears to be a
revolver, rifle, shotgun, machine
other firearm. . . .
NEW YORK PENAL LAW § 140.30(4).
A person is guilty of second-
degree assault if:
In the course of and in furtherance of the
commission or attempted commission of a
felony, other than a felony defined in
article one hundred thirty which requires
immediate flight therefrom, he, or another
participant if there be any, causes physical
injury to a person other than one of the
Id. § 120.05(6).
Addressing these crimes in tandem, the Court concludes
testified about the facts of the home invasion and described how
he was struck in the head with a weapon.
(5/14 Tr. 67:15–20.)
stated, with complete certainty, that he saw Flowers and the
accomplices fleeing the crime scene.
(5/15 Tr. 9:17–18, 11:3–
Daniel Dickinson, the getaway driver, also placed
(5/15 Tr. 50:11–13, 55:9–14.)
On top of
that, the State’s case included testimony from Detective Murphy
and Officer Rocchio, both of whom provided details about their
(5/13 Tr. 37:22–39:12, 5/18 Tr. 13:4–11.)
To be sure, Flowers challenged this evidence, stating
that he was at home with his fiancée on the night in question.
But at the same time, the State offered a bevy of witnesses,
which, at various points, contradicted this claim.
And so the
N.E.2d 841 (1953), which prohibits witnesses from repeating a
defendant identification made by another person.
Id. at 477,
reiterate German Velasquez’s eyewitness account.
OFFICER ROCCHIO: Both individuals, Francisco
Garcia through broken-up English, and German
individuals breaking in, they had a handgun,
and they beat him up and fled the scene. So
that categorized it differently.
indicated that he knew who was involved in
(Pet. at 7.)
Here are snippets of their respective testimony:
That he’d seen him there, he
was a prior tenant, Mr. Flowers.
provided what we consider a photo array,
which is six photos on a piece of paper, and
asked him to confirm--not to confirm. Asked
him on a sheet of paper if he recognized
anybody. He then immediately picked out Mr.
Flowers. (5/18 Tr. 13:4–11.)
Bolstering arguments, however, do “not rise to the level of a
Slavin v. Artus, No. 05-CV-0870, 2010 WL
185108, at *7 (E.D.N.Y. Jan. 13, 2010) (collecting cases).
criminal jurisprudence based on the United States Constitution.
It is at most a New York State rule or policy, derived from
People v. Trowbridge . . . .”
582 (S.D.N.Y. 1985).
Snow v. Reid, 619 F. Supp. 579,
In sum, this claim fails to present a
cognizable issue for federal courts.
Grand Jury Deficiencies
Shifting to the grand-jury argument, Flowers asserts
that the indictment contained a single reference to an incorrect
date, thereby depriving him of his right to a grand jury.
at 6, 9.)
This, too, presents no federal issue for this Court
See Davis v. Mantello, 42 F. App’x 488, 490–91 (2d
proceedings are not cognizable in a habeas corpus proceeding in
In New York, a grand jury indictment arises
from the “State Constitution and other state laws . . . and
federal habeas relief may not be granted for violations of state
Robinson v. LaClair, No. 09-CV-3501, 2011 WL 115490, at
*8 (E.D.N.Y. Jan. 13, 2011).
And “even if a defective state
indictment constituted proper grounds for federal habeas review,
any injury that petitioner claims from the defective indictment
was cured by the jury’s verdict of guilt beyond a reasonable
doubt at his trial.”
Thus, this claim also fails.
Next, Flowers argues that his sentence was excessive
and in retaliation for rejecting a plea deal.
(Pet. at 3, 10.)
To begin, there are no grounds for habeas corpus relief when, as
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
year sentence, (S. Tr. 12:5–8), is less than the twenty-year
burglary, New York Penal Law §§ 70.02(3)(a), 140.30(4).
class D felony like second-degree assault, the maximum is seven
years, id. §§ 70.02(3)(a), 120.05(6), and Flowers’s sentence was
excessive because they both fall within the permissible ranges.9
Flowers requests judicial notice of the fact that, (Pet’r’s
Reply Br. at 9), one of his accomplices pled guilty and received
three years of probation. See FED. R. EVID. 201(b) (allowing
courts to take judicial notice of facts that “can be accurately
and readily determined from sources whose accuracy cannot
construing his arguments, Flowers relies on statements made by
the trial judge throughout the case.
For example, the judge
said this before jury selection:
THE COURT: As far as I can see--and I know
your attorney has spoken to you about it-this is a case that I don’t think you’re
going to win on trial.
The chances of
winning are not good.
there’s DNA evidence that’s involved that
will hurt your chances very, very greatly.
. . . [T]he absolute minimum if you lost at
trial is five years and it could be as much
as twenty five years. . . . They’re willing
to take Count 2 of the indictment in
satisfaction of the entire indictment with a
bargained-for four years sentence. . . . As
of today, I don’t know whether they’ll offer
you this plea again.
(2/25 Tr. 2:10–4:10.)
The trial judge reiterated his dim view
of Flowers’s chances right before the jury began deliberations.
(5/21 Tr. 36:9–16.)
Yet there is no indication in the record
that the trial judge punished Flowers with a heavier sentence.
ultimate sentence (fifteen years), (2/25 Tr. 3:17–22; S. Tr.
12:5-8), but that is the point of the bargaining process: accept
a deal or take your chances at trial.
With this in mind, courts
will not presume a retaliatory motive based on “the mere fact
that the sentence imposed following trial is greater than the
reasonably be questioned”). But this request is irrelevant
because Flowers was sentenced within permissible ranges.
offer made during plea negotiations.”
Walker v. Walker, 259 F.
Supp. 2d 221, 226 (E.D.N.Y. 2003); Echevarria-Perez v. Burge,
779 F. Supp. 2d 326, 338 (W.D.N.Y 2011).
White v. Lamas, 905 F. Supp. 2d 624 (E.D. Pa. 2012),
which Flowers relies on, offers no assistance.
There, the trial
judge imposed the maximum sentence in retaliation, the district
court concluded, because the petitioner had rejected a lenient
Id. at 642.
In reaching this conclusion, the court
evaluated the judge’s comments during the sentencing hearing:
“I would have expected a man of your stature not to make
a family go through that incredibly painful trial for a
case that was not winnable.”
The “Commonwealth made you what I deemed to be a cake
offer. It was a cake offer. . . . You threw all of that
back and you rolled the dice.”
You “had that opportunity to get less [than the minimum
sentence]. It’s not appropriate to give you a three to
six minimum. It’s really not.”
Id. (internal quotation marks omitted) (alteration in original).
“These comments made in the context of sentencing,” the court
petitioner’s decision to reject the plea offer and proceed to
Id. at 642–43.
And for present purposes, the court
made an important observation: “In cases where petitioners have
unsuccessfully presented a claim of judicial vindictiveness, the
facts show that the judicial comments at issue were not made in
the sentencing context.”
Id. at 643.
That is the case here.
Although the judge challenged Flowers’s decision to reject his
plea offer, those comments occurred outside of the sentencing
focused on the fact that “the trial brought out several things
that are disturbing.”
(S. Tr. 11:9–10.)
For example, the trial
judge criticized Flowers for presenting his fiancée as an alibi
witness in the face of overwhelming evidence.
(S. Tr. 11:19–
The trial judge also worried that the victim was targeted
because he was an immigrant and perhaps less likely to report
(S. Tr. 11:11–14.)
In other words, the record lacks
evidence that the trial judge made his decision based on the
8731450, at *17–18 (E.D. Pa. June 6, 2016) (distinguishing White
v. Lamas because “[p]etitioner’s disingenuous letter motivated
the judge’s sentencing, not petitioner’s earlier rejection of
the plea offer”), adopted by, 2017 WL 1331710 (E.D. Pa. Jan. 20,
Thus, the Court concludes that Flowers has failed to
provide evidence of retaliation.
One other issue requires attention.
In support of his
440.20 motion, Flowers attached a sworn affidavit in which his
mother states that the trial judge made an off-the-record plea
offer during jury deliberations.
(Flowers Aff. at 126.)
she concedes that she was neither present during this supposed
offer nor did she understand what was going on at the time.
(Id. at 126–27.)
What is more, there is no other mention of
Even if it did occur, the trial judge made no
indication that Flowers’s rejection of the deal motivated his
sentencing decision, as evidenced by the sentencing colloquy.
Thus, the Court concludes that Flowers’ sentence was neither
excessive nor retaliatory.
Ineffective Assistance of Counsel
Finally, Flowers argues that he was denied his Sixth
Amendment right to counsel because his trial counsel failed to
principle, there is “a strong presumption that counsel’s conduct
Strickland v. Washington, 466 U.S. 668, 689, 104
S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
After all, “there
are countless ways to provide effective assistance in any given
case,” and “[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.”
this presumption, Flowers must establish two elements: deficient
performance and prejudice.
Id. at 688–92, 104 S. Ct. at 2064–
In reviewing the totality of the evidence, the Court must
“use a ‘doubly deferential’ standard of review that gives both
the state court and the defense attorney the benefit of the
Burt v. Titlow, 134 S. Ct. 10, 13, 187 L. Ed. 2d 348
(2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.
Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011)).
Bearing in mind this
deferential standard, it is no surprise that “the great majority
Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.
To establish deficient performance, Flowers must prove
that “counsel’s representation fell below an objective standard
Strickland, 466 U.S. at 688, 104 S. Ct.
But even if Flowers can show deficient performance, he
must also establish prejudice--that is, “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
694, 104 S. Ct. at 2068.
A reasonable probability “lies between
prejudice that ‘had some conceivable effect’ and prejudice that
Lindstadt, 239 F.3d at 204 (quoting Strickland, 466 U.S. at 693,
104 S. Ct. at 2067–68)).
“In the context of sentencing, the
would have been different.”
Garafola v. United States, 909 F.
Supp. 2d 313, 331 (S.D.N.Y. 2012).
The Court concludes that Flowers’s lawyer “advocated
leniency in sentencing,” and “while counsel could attempt to
advocate in behalf of a client for a more lenient sentence, he
could not object as a matter of law to these legally imposed
See Willson v. Berbary, 421 F. Supp. 2d 589, 603
client’s character and history of nonviolent crimes.
Flowers rejected the plea offer was his fear of incarceration.
(S. Tr. 5:6–12, 6:7–11.)
Counsel further explained his client’s
remorse and the low chance of recidivism.
(S. Tr. 7:14–23,
Most importantly, counsel’s advocacy convinced the
COURT: So your attorney did a good job for you with persuading
me to sentence you as I have. . . . [B]ecause to be truthful
with you, up to this morning I was contemplating the maximum
assistance-of-counsel claim fails.
Entry 1) is DENIED.
The Court declines to issue a certificate
substantial showing that he was denied a constitutional right.
See 28 U.S.C. § 2253(c)(2).
The Court also certifies that any
appeal of this Order would not be taken in good faith, and thus
his in forma pauperis status is DENIED for the purposes of any
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.
Ct. 917, 921, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is
respectfully directed to CLOSE this case and mail copies of this
Order to the pro se litigant.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
22 , 2017
Central Islip, New York
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