Granados v. Singas et al.

Filing 17

ORDER granting 12 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, respondents motion to dismiss is granted in its entirety. Ordered by Judge Joseph F. Bianco on 10/24/2016. (Consalvo, Mikayla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-2212 (JFB)
_____________________

JOSE DEJESUS GRANADOS,
Petitioner,
VERSUS

HON. MADELINE SINGAS AND MICHAEL SPOSATO,
Respondents.
___________________
MEMORANDUM AND ORDER
October 24, 2016
___________________

JOSEPH F. BIANCO, District Judge:
On May 3, 2016, Jose DeJesus Granados
(“petitioner” or “Granados”) petitioned this
Court for a writ of habeas corpus, pursuant to
28 U.S.C. §§ 2241 and 2254, challenging his
conviction in New York State Court for one
count of rape in the third degree and one
count of criminal sexual act in the third
degree. (Pet. for Habeas Corpus (“Pet.”),
ECF No. 1.) Petitioner pled guilty to these
charges in 2009 and was sentenced to ten
years of probation and also adjudicated a
level one sex offender.
In the instant habeas petition, Granados
principally challenges his conviction on the
following grounds: (1) his guilty plea in 2009
was not knowing and voluntary because he
received ineffective assistance of counsel, (2)
the District Attorney’s office in the County of
Nassau (the “State”) failed to disclose Brady
material, and (3) he is actually innocent.
Respondents, Madeline Singas, District
Attorney, County of Nassau, and Michael

Sposato, Sheriff, Nassau County, have
moved to dismiss his petition, arguing that it
is untimely and that Granados has failed to
establish his actual innocence. For the
reasons that follow, this Court grants
respondents’ motion to dismiss.
I. BACKGROUND
The Court has adduced the following
facts from the instant petition and underlying
record.
A.

Factual Background

According to the police, on or about June
11, 2009, the victim’s mother found an
explicit picture of petitioner’s genitalia on the
victim’s phone. She reported the discovery
to the police, who performed an
investigation. Petitioner, who was thirtythree years old at the time, was questioned by
the police and admitted that he had engaged
in sexual intercourse with the fifteen-year-old

victim. The police located the same explicit
image on petitioner’s phone that had been
discovered on the victim’s phone. Petitioner
was charged with four counts of rape in the
third degree and six counts of criminal sexual
act in the third degree.

Petitioner was sentenced to probation on
January 8, 2010.
When asked at his
sentencing if he had anything he wanted to
say, he stated only that “I’m very sorry, and
I’m thankful, and I’m grateful for this
opportunity.” (January 8, 2010 Minutes of
Sentencing at 3.) Petitioner did not appeal
from his judgment of conviction or from his
sex offender designation. His judgment of
conviction became final on February 8, 2010.
On November 9, 2010, he was deported.

On November 12, 2009, petitioner pled
guilty to one count of rape in the third degree
and one count of criminal sexual act in the
third degree. At the plea colloquy, he
admitted that he had oral sex and sexual
intercourse with the victim. (November 12,
2009 Minutes of Plea at 11-12.) At the outset
of the plea proceedings, petitioner was
instructed to inform the court if there was
anything in the proceeding that he did not
understand. (Id. at 4.) The court asked him
whether he had a chance to discuss the plea
with his attorney prior to the plea allocution
and whether he was satisfied with the manner
in which his attorney had represented him,
and he answered “yes” to both questions. (Id.
at 6.) In addition, the court asked him
whether he “underst[ood] that by pleading
guilty . . . in th[e] case, [his] plea may result
in deportation or denial of naturalization.”
(Id. at 5.) He responded in the affirmative.
(Id.) He also stated that he understood that
he would be required to register as a person
convicted of a sex offense. (Id. at 9.) As part
of the plea allocution, petitioner also affirmed
that he was aware that by pleading guilty he
was giving up his right to a trial with the
assistance of his attorney, his right to
confront the witnesses testifying against him,
the right to call his own witnesses, and the
right to testify in his own defense, and,
further, that, were he to go to trial, the State
would have to prove his guilt beyond a
reasonable doubt. (Id. at 6.) At the end of the
plea colloquy, the judge concluded that
petitioner understood the nature of the
charges against him, the consequences of his
plea, and the rights he was waiving, and his
guilty plea was entered. (Id. at 11.)

At an unknown date, petitioner reentered
the United States without first applying for
leave to do so.
He was arrested by
Immigration and Customs Enforcement on
March 12, 2015 and charged with reentry
after removal.
B.

Procedural Background

On April 16, 2015, petitioner moved in
New York State court pursuant to New York
Criminal Procedure Law § 440.10(1)(h) to
vacate his sentence. In connection with this
motion, he submitted an affidavit (the “Cruz
Affidavit”) prepared by his wife, Leyda Cruz,
who is the victim’s aunt. In her affidavit,
Cruz states that she was informed by the
victim’s mother that the victim “has been
hospitalized at North Shore University
Hospital and diagnosed as a paranoid
schizophrenic with hallucinations for which
she takes medication . . . [and has been]
diagnosed as bi-polar.” (Cruz Aff. ¶ 3.) She
also claims that “sometime after the alleged
rape on January 3, 2009 when it was reported
to the police . . . , my niece was taken to a
medical doctor who determined that she was
still a virgin. She told me that Detective
Trujillo had investigated the case and was
aware of the medical doctor’s report.” (Id. ¶
4.) Finally, she states that “I believe [the
victim] fabricated this story.” (Id. ¶ 7.)
2

On August 17, 2015, Nassau County
Supreme Court denied the petition.
Petitioner moved for leave to appeal from the
denial of his motion to the Appellate
Division, Second Department, but his motion
for leave to appeal was denied on January 22,
2016.

(B) the date on which the
impediment to filing an
application created by State
action in violation of the
Constitution or laws of the
United States is removed, if
the applicant was prevented
from filing by such State
action;

On May 3, 2016, petitioner filed a
petition for writ of habeas corpus in this
Court pursuant to 28 U.S.C. §§ 2241 and
2254. On June 23, 2016, respondents moved
to dismiss the petition pursuant to Federal
Rule of Civil Procedure 12(b)(6). On June
28, 2016, petitioner submitted a letter in
opposition to the motion to dismiss. Oral
argument was scheduled for July 28, 2016,
but both parties rested on their papers. On
October 5, 2016, petitioner was sentenced to
time-served on his illegal reentry charge.

(C) the date on which the
constitutional right asserted
was initially recognized by
the Supreme Court, if the right
has been newly recognized by
the Supreme Court and made
retroactively applicable to
cases on collateral review; or
(D) the date on which the
factual predicate of the claim
or claims could have been
discovered
through
the
exercise of due diligence.

II. DISCUSSION
a.

Timeliness of Petition

On April 24, 1996, Congress enacted the
Antiterrorism and Effective Death Penalty
Act (“AEDPA”), Pub. L. No 104-132, 110
Stat. 1214, which, among other things,
amended 28 U.S.C. § 2244(d)(1) to provide a
one-year limitation period for filing a petition
for a writ of habeas corpus by a person in
state custody pursuant to a state court
judgment. The general rule is that the
limitation period will begin to run on “the
date on which the judgment became final by
the conclusion of direct review or the
expiration of the time for seeking such
review.”
28 U.S.C. § 2244(d)(1)(A).
However, the statute also provides three
exceptions under which the one-year
limitation period will commence on a later
date, specifically:

§§ 2244(d)(1)(B)-(D). With respect to the
final exception (§ 2244(d)(1)(D)), the
“burden of demonstrating due diligence rests
with petitioner.” Shabazz v. Filion, 402 F.
App’x 629, 630 (2d Cir. 2010). Additionally,
evidence is not newly discovered simply
because petitioner did not possess it until
recently. Rather, if the evidence could have
been obtained earlier, “the date when the
evidence was actually obtained has no effect
on the AEDPA limitation period.” Duamutef
v. Mazzuca, No. 01CIV2553WHPGWG,
2002 WL 413812, at *9 (S.D.N.Y. Mar. 15,
2002).

1

such an appeal expires. See Gonzalez v. Thaler, 132
S. Ct. 641, 653-54, 181 L. Ed. 2d 619 (2012). Under

As noted above, petitioner’s judgment of
conviction became final on February 8,
2010. 1 Accordingly, under § 2244(d)(1)(A)
of the AEDPA, petitioner had one year, until

If a petitioner does not file a direct appeal of his
conviction, it becomes “final” when his time to file

3

February 8, 2011, to file his habeas petition.
Granados’s petition, filed over five years
after the deadline, is plainly untimely unless
one of the exceptions enumerated in §§
2244(d)(1)(B),
2244(d)(1)(C),
or
2244(d)(1)(D) applies. 2
However, an
examination of Granados’s claims reveals
that no such exceptions apply. Granados
does not argue (nor is there any basis in the
record to support an argument) that there was
any legal impediment barring him from filing
his petition, that there has been any
intervening and applicable establishment of a
constitutional right to which he would be
retroactively entitled, or that the factual
predicate for his claims was not discoverable
through the exercise of due diligence in the
year prior to the filing of his habeas claim.

to New York Criminal Procedure Law §
240.20, interview any alleged witnesses, visit
the crime scene, or hire an investigator. (Pet.
¶ 11.) Granados also argues that his
counsel’s advice concerning whether to
accept the guilty plea was inadequate because
he failed to inform petitioner of his right to a
trial, discovery, motion practice, and an
appeal; the possibilities of success at trial; or
how the victim might be impeached. (Pet. ¶
16.) Finally, Granados alleges that his
counsel did not convey to him the
immigration consequences of his guilty plea,
specifically, that he could face deportation as
a consequence of his plea. (Pet. ¶ 10.)
From a review of these arguments, it is
clear that none of the exceptions to the
general rule that the one-year limitation
period runs from the date the judgment
becomes final apply in the instant case.

1. Ineffective Assistance Claim
Granados’s principal argument in his
petition is that because of the ineffective
representation of his counsel, his guilty plea
was not knowing and voluntary and therefore
should be withdrawn. Granados asserts that
his counsel’s performance was deficient in a
number of respects. Granados alleges that his
counsel was ineffective in the investigation
of the crime based on his failure to file any
motions, make discovery demands pursuant

First, petitioner does not identify any
legal bar that prevented him from seeking
habeas relief based on the ineffective
assistance of his counsel. Second, he does
not identify a new constitutional right
pertaining to his counsel’s performance that
would operate retroactively to provide him
with relief. 3 The third and final possible
justification for the belated filing of his

New York law, a petitioner has thirty days during
which to file his appeal. See N.Y. Crim. Pro. L. §
460.10(1)(a). Accordingly, as petitioner’s judgment
of conviction was entered on January 8, 2010, it
became final thirty days later, on February 8, 2010,
when his time to appeal the judgment expired.
2
Petitioner filed his state petition in 2015, at which
time the time period in which he was able to file his
federal habeas petition was stayed. Therefore, the
relevant question is whether any of these exceptions
applied in 2015, i.e., six years after the entry of his
guilty plea in 2009 and five years after the one-year
limitation period provided for by AEDPA.
3
Petitioner does note that Padilla v. Kentucky, which
requires an attorney to advise her client of the
immigration consequences of his plea, was issued after
his conviction, and he argues that his guilty plea

should be withdrawn because his counsel allegedly
failed to advise him that he could be deported as a
result of his plea. (Pet. ¶ 10.) See also Padilla v.
Kentucky, 130 S. Ct. 1473 (2010). However, the
Supreme Court has made clear that Padilla’s holding
does not apply retroactively to defendants whose
convictions, like Granados’s, became final before
Padilla was decided. Chaidez v. United States, 133 S.
Ct. 1103, 1105 (2013); see, e.g., Desrosiers v. Lee, No.
11-CV-00804 CBA, 2013 WL 702912, at *4
(E.D.N.Y. Feb. 26, 2013) (applying Chaidez).
Accordingly, Padilla’s holding does not apply to
petitioner’s case. In any event, as noted supra, the
court advised him at the time of his plea that he could
be deported due to his guilty plea.

4

petition is that the factual predicates for his
ineffective assistance claims were not
discoverable with an exercise of reasonable
diligence until the year prior to the filing of
the habeas petition. Petitioner does not
attempt to make this argument and failing to
assert the claim can alone be grounds to find
the exception inapplicable.
See, e.g.,
Goodwin v. Pallito, No. 2:14 CV 110 (WKS),
2015 WL 778613, at *4 (D. Vt. Feb. 24,
2015) (concluding that § 2244(d)(1)(D)
would not apply where petitioner “d[id] not
assert that he observed the alleged ineffective
conduct only recently”). Nevertheless, the
Court independently examined the record and
did not identify any basis to conclude that the
facts underlying his ineffective assistance
claim would have been undiscoverable until
2015.

provided ineffective assistance by failing to
conduct a pretrial investigation uncovering
the new evidence and allowing [medical
examiner’s allegedly false] testimony to go
unchallenged” because this allegedly
ineffective conduct occurred, and the
petitioner was on notice of it, at the time of
the trial); Yekimoff v. New York State Div. of
Parole, No. 02-CIV. 8710(BSJ)(DF), 2004
WL 1542256, at *4 (S.D.N.Y. July 8, 2004)
(refusing to apply § 2244(d)(1)(D) to the
petitioner’s claim of ineffective assistance
leading up to guilty plea because factual
predicate of this claim would have been
evident prior to entry of plea), supplemented,
2004 WL 2211661 (S.D.N.Y. Oct. 4, 2004).
Likewise, there were a number of alleged
deficiencies in petitioner’s representation
that, taking petitioner’s allegations as true,
would have become apparent during the 2009
plea colloquy. For instance, his attorney’s
alleged failure to advise him concerning his
trial rights would have been evident when the
judge explicitly advised petitioner that he
was giving up these rights by pleading guilty
at his plea colloquy. Similarly, with respect
to petitioner’s argument that his counsel was
ineffective because he failed to warn
Granados
about
the
immigration
consequences of pleading guilty, the judge
expressly advised him that his guilty plea
could result in his deportation. He also
certainly
became
aware
of
these
consequences when he was deported in
2010. 4 See, e.g., Chang-Cruz v. Hendricks,
CIV. 12-7167(KM), 2013 WL 5966420, at *3

For instance, petitioner argues that his
attorney was ineffective for failing to
properly investigate the claim. However, his
attorney’s allegedly deficient performance
took place prior to the entry of his guilty plea
in 2009. Although Granados would likely
have known that his attorney did not
undertake any investigation of his case at the
time of his guilty plea, he certainly could
have uncovered his attorney’s alleged
dereliction with reasonable diligence within
the year following his conviction. See Hector
v. Greiner, No. 99 CV 7863 (FB), 2000 WL
1240010, at *1-2 (E.D.N.Y. Aug. 29, 2000)
(holding that § 2244(d)(1)(D) would not
operate to save untimely ineffective
assistance claim alleging “trial attorney
4

Additionally, petitioner appears to separately assert
that his attorney was ineffective because he failed to
advise Granados that he would be arrested upon
reentry following his deportation. This argument is
not properly before this Court because it has not been
exhausted in state court. Although petitioner did assert
his ineffective assistance claim in his state court
petition, he did not raise this particular deficiency as a
basis for his claim. “In order to have fully exhausted
his claim of ineffective assistance of trial counsel for

federal habeas corpus purposes, petitioner must have
presented each factual contention comprising the basis
for that claim to the state courts . . . . ‘To have raised
only certain of the alleged instances of ineffective
assistance to the state courts does not satisfy the
exhaustion requirements of 28 U.S.C. § 2254(b).’”
Collins v. Herbert, 992 F. Supp. 238, 241 (W.D.N.Y.
1997) (quoting Minor v. Henderson, 754 F. Supp.
1010, 1020 (S.D.N.Y. 1991)). In any event, the Court
rejects any argument that counsel was constitutionally

5

(D.N.J. Nov. 7, 2013) (noting that statute of
limitations under AEDPA on ineffective
assistance claim based on counsel’s failure to
advise
regarding
the
immigration
consequences of the petitioner’s guilty plea
would have commenced after being
“instructed by the state court at the plea
hearing that his guilty plea could impact his
immigration status,” even if the “precise legal
consequences” of his guilty plea did not
materialize until removal proceedings were
commenced against him); Lopez v. Endicott,
No. 06-C-0668 (WEC), 2007 WL 4410391,
at *4 (E.D. Wis. Dec. 13, 2007) (same). The
same analysis applies with respect to
petitioner’s claim that his attorney failed to
advise him that he would be required to
register as a sex offender, another fact of
which the court advised him at the time of his
plea.

does not allege that he was prevented from
filing the claim or that there has been a recent
change in the law that would have triggered
the limitation period on a later date.
Petitioner does not contend that he only
recently became aware that the State
supposedly withheld the results of the
victim’s medical examination. Again, an
independent examination by this Court failed
to find any indication that he did recently
become aware of this: the Cruz affidavit is
silent with respect to when the information
pertaining to the examination was uncovered
or communicated to petitioner. Thus, the
Court has no basis to conclude that his Brady
claim is timely under § 2244(d)(1)(D)
because the allegations in the Cruz affidavit
were not—and could not have been—
uncovered with reasonable diligence until the
year before he filed his petition.

Accordingly,
because
Granados’s
ineffective assistance claim was not filed
within a year after his judgment of conviction
became final and none of the grounds that
could trigger the running of the limitation
period at a later date apply, petitioner’s claim
is untimely.

Therefore, petitioner’s Brady claim is
likewise time-barred.
3. Actual Innocence Claim
As detailed above, petitioner failed to file
his habeas claims within the applicable
limitation period. However, in McQuiggin v.
Perkins, the Supreme Court established that
“a convincing showing of actual innocence”
may “serve[] as a gateway” by which a
petitioner can pursue habeas relief that would
otherwise be barred by the statute of
limitations. 133 S. Ct. 1924, 1928 (2013).

2. Brady Claim
Petitioner also argues that he is entitled to
habeas relief on the basis that the State failed
to comply with its Brady obligations.
Specifically, he alleges that the State
withheld information pertaining to the
medical examination of the victim that
allegedly revealed that she was a virgin after
the assault. This claim is, likewise, untimely.

In establishing this exception, the
Supreme Court cautioned that the standard to
show an actual innocence claim is
demanding; the petitioner must demonstrate
that “‘in light of the new evidence, no juror,
acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.’” Id.

Again, petitioner asserts this claim well
after the one-year limitation period following
his judgment of conviction became final. He
ineffective for failing to advise petitioner that he
would be arrested for illegally reentering the United
States after deportation.

6

(rejecting actual innocence argument where
the petitioner provided no explanation as to
why he previously pleaded guilty); Germain
v. Racette, No. 913-CV-1530 (MAD)(DEP),
2015 WL 7709606, at *6 (N.D.N.Y. Sept. 10,
2015) (observing that entry of a knowing and
voluntary guilty plea is “a fact that works
against a finding of actual innocence”),
report and recommendation adopted, No.
913-CV-1530 (MAD)(DEP), 2015 WL
7573225 (N.D.N.Y. Nov. 25, 2015).
Additionally, the affidavit does not address
the fact that the explicit picture of petitioner’s
genitalia was found on the victim’s phone.

at 1928 (quoting Schlup v. Delo, 513 U.S.
298, 329 (1995)).
A claim of actual
innocence must be both “‘credible’ and
‘compelling.’” Rivas v. Fischer, 687 F.3d
514, 541 (2d Cir. 2012) (quoting House v.
Bell, 547 U.S. 518, 521 (2006)). To be
credible, a claim “must be supported by ‘new
reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that
was not presented at trial.’” Id. (quoting
Schlup, 513 U.S. at 324). “For the claim to
be ‘compelling,’ the petitioner must
demonstrate that ‘more likely than not, in
light of the new evidence, no reasonable juror
would find him guilty beyond a reasonable
doubt—or to remove the double negative,
that more likely than not any reasonable juror
would have reasonable doubt.’” Id. (quoting
House, 547 U.S. at 538).

Further, the Supreme Court in
McQuiggin also held that a petitioner is not
required to prove due diligence in order to
maintain a viable claim of actual innocence;
however, it did note that it was error to
“eliminate[] timing as a factor relevant in
evaluating the reliability of a petitioner’s
proof of innocence.” 133 S. Ct. at 1935. The
Court observed that a petitioner’s diligence
should be part of the “assessment [of]
whether actual innocence has been shown”
and a delay in presenting exculpatory
evidence can “seriously undermine the
credibility of [an] actual innocence claim.”
Id. at 1935-36.

Petitioner rests his actual innocence claim
on the affidavit prepared by his wife;
however, this submission does not contain
the type of credible and compelling evidence
required to show actual innocence. Her
affidavit is based entirely on hearsay, which
makes it “particularly suspect” under the
circumstances. See Herrera v. Collins, 113
S. Ct. 853, 869 (1993) (noting that
defendant’s affidavits submitted in support of
his actual innocence claims were
“particularly suspect” because they consisted
of hearsay). Nor are her vague assertions
about her niece’s mental health, about which
the record does not indicate Cruz has
personal knowledge, the kind of concrete
evidence that would cause “any reasonable
juror [to] have reasonable doubt” about
petitioner’s guilt. Rivas, 687 F.3d at 543. His
allegations of actual innocence are especially
unconvincing in light of the fact that
petitioner admitted to committing the crime,
both during his initial, recorded interview by
the police and then subsequently during his
guilty plea. See Herrera, 113 S. Ct. at 869

Petitioner’s contentions of actual
innocence are also undermined by the fact
that, though he was supposedly not guilty, he
took no effort to appeal his conviction for five
years. This delay is especially damaging to
petitioner’s claim because there is nothing in
the Cruz affidavit to suggest that some or all
of that information was not available many
years ago (for instance, as alleged, the
medical examination can be reasonably
inferred to have occurred around the time of
the assault) or that Granados could not have
uncovered it with reasonable diligence. Nor
does Granados even claim that he only
recently became aware of it. As noted,
7

although Granados is not required to prove
diligence to maintain his actual innocence
claim, the fact that he took no effort for many
years to obtain this supposedly exculpatory
evidence that he could have uncovered with
reasonable diligence several years earlier
further undermines his claim of actual
innocence.

McGinnis, No. 11-CV-3442 (JG), 2011 WL
5848579, at *6 (E.D.N.Y. Nov. 22, 2011)
(holding that a “long” three-year “period of
inaction reveals that [the petitioner] did not
diligently pursue his rights, making equitable
tolling inappropriate”); Morton v. Ercole,
No. 08 CIV. 0252 (RJS)(FM), 2010 WL
890036, at *2 (S.D.N.Y. Mar. 10, 2010)
(“Courts generally have found that periods of
delay lasting for more than a year do not
exhibit due diligence.”). Accordingly, the
Court concludes that Granados is not entitled
to equitable tolling.

b. Equitable Tolling
Although the instant petition is untimely,
in “rare and exceptional” circumstances, the
one-year statute of limitations is subject to
equitable tolling. See Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir. 2000); see also Warren
v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000).
In order to obtain the benefit of equitable
tolling, a petitioner must make two showings:
(1) he must demonstrate that “extraordinary
circumstances prevented him from filing his
petition on time”; and (2) he must have “acted
with reasonable diligence throughout the
period he seeks to toll.” Smith, 208 F.3d at
17 (citation omitted). The petitioner bears
the burden to affirmatively show that he is
entitled to equitable tolling. See Pace v.
DiGuglielmo, 125 S. Ct. 1807, 1814 (2005);
Muller v. Greiner, 139 F. App’x 344, 345 (2d
Cir. 2005).

III. CONCLUSION
For the reasons stated above,
respondents’ motion to dismiss is granted in
its entirety. 5
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated:

October 24, 2016
Central Islip, NY

***
Petitioner is represented by Thomas F. Liotti,
Law Offices of Thomas F. Liotti, 600 Old
Country Road, Suite 530, Garden City, NY
11530. Respondents are represented by
Monica Marie Cullen Leiter, Nassau County
District Attorneys Office, 262 Old Country
Road, Mineola, NY 11501.

Here, petitioner cannot satisfy either
prong.
He does not identify any
extraordinary circumstances that prevented
him from timely filing his petition, nor has
the Court located any such circumstances in
its review of the record. Further, as described
more fully above, there is no evidence that
Granados did anything to pursue his claim in
the five-year period between his conviction
and his state court appeal. See Cruz v.
5

Petitioner also challenges his guilty plea on the
ground that the plea court failed to advise him of the
consequences of his plea as required by the New York
Court of Appeals in People v. Peque, 22 N.Y.3d 168
(2013). However, this claim is factually untenable and

provides no basis for habeas relief in this case. As
indicated above, petitioner was expressly advised at
his plea colloquy that his guilty plea could result in his
deportation.

8