Izaguirre v. Lee

Filing 16

MEMORANDUM AND OPINION. For the reasons set forth herein, petitioner is not entitled to habeas relief. Accordingly, this petition for a writ of habeas corpus is denied in its entirety. 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). In addition, because the petition clearly lacks merit, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal fro m this Memorandum and Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/10/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________

No 16-CV-7179 (JFB)
_____________________

RAUL IZAGUIRRE,
Petitioner,
VERSUS

WILLIAM LEE,
Respondent.
___________________
MEMORANDUM AND ORDER
October 10, 2017
___________________

JOSEPH F. BIANCO, District Judge:

granted habeas relief on the ground that
petitioner’s sentence was “unconstitutionally
vindictive.” Izaguirre v. Lee (“Izaguirre I”),
856 F. Supp. 2d 551, 572-80 (E.D.N.Y.
2012). 1 The Court accordingly ordered that
“[p]etitioner be resentenced before a judge
other than the one who delivered the sentence
at issue . . . .” Id. at 580.

Raul Izaguirre (hereinafter “petitioner”)
again petitions this Court for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254,
challenging his resentence in Supreme Court,
Nassau County. Petitioner was convicted in
a judgment rendered on September 9, 2005,
following a jury trial, of manslaughter in the
First Degree (N.Y. Penal Law § 125.20(1))
and was sentenced in County Court, Nassau
County to twenty-five years in prison with
five years of post-release supervision.

Following the Memorandum and Order,
New York Supreme Court Justice Arthur M.
Diamond resentenced petitioner to an
identical term of twenty-five years’
imprisonment with five years’ post-release
supervision on June 14, 2012. In the instant
petition (“Pet.,” ECF No. 1), petitioner
challenges that resentence on the following
grounds: (1) the resentencing court ignored

Petitioner then challenged his conviction
and sentence in this Court, and by
Memorandum and Order (the “Memorandum
and Order”) dated April 25, 2012, the Court
1

The Court, however, found that petitioner was not
entitled to habeas relief based on his claims that
(1) there was insufficient evidence to support his

conviction; (2) the state court improperly attempted to
persuade petitioner to plead guilty; and (3) the
sentence was harsh and excessive. Id. at 555.

1

this Court’s mandate in Izaguirre I; (2) the
resentence was unconstitutionally vindictive;
(3) the resentence was harsh and excessive;
and (4) the resentencing court failed to obtain
an updated probation report prior to imposing
resentence. For the reasons set forth below,
the Court concludes that none of these claims
merits habeas relief.

an eyewitness to the killing. Id. On the first
day of trial, petitioner’s counsel, outside the
presence of the jury, made a lengthy
statement for the record. Id. Defense counsel
expressed his preparedness to proceed to
trial, but nevertheless indicated that he
believed a guilty plea to a lesser charge would
have “been in [petitioner’s] best interest.” Id.
Petitioner’s counsel said:

I. BACKGROUND
I told [petitioner], that he is a young
person, that he should be able to go
home and raise his family, rather than
his grandchildren, and I believe that at
this point in time, right before the
selection of the jury, he should
reconsidering [sic] his options . . . .

A. Facts
The Court summarized the facts
pertaining to petitioner’s conviction in
Izaguirre I, 856 F. Supp. 2d at 557-59, and it
assumes the parties’ familiarity with them. In
short, after Marvin Valle (“Valle”) was found
dead on June 24, 2003, petitioner was
arrested and indicted for that homicide. Id.

Judge Donnino spoke with him. I,
again, spoke with him, and I have
expressed with him my concerns, the
fact that he could be convicted based
on the evidence . . . .

B. Procedural History
1. Izaguirre I

I believe he, in his mind, believes that
under New York State law that he
could not be convicted unless
somebody comes in and directly
indicates that they saw him stab the
deceased.

a. State Court Proceedings
As set forth in the Memorandum and
Order, 2 prior to trial in County Court, Nassau
County, the Nassau County District
Attorney’s Office (the “State”) engaged in
substantial plea bargaining with petitioner.
Id. at 559. In return for his willingness to
enter a plea of guilty, the State offered to
reduce petitioner’s criminal manslaughter
charge to a class C violent felony, punishable
by a sentencing range of three-and-one-half
to fifteen years in prison. Id. According to
petitioner, the State offered to recommend an
eight-year prison sentence and two years of
supervised release. Id. Petitioner steadfastly
refused to enter a guilty plea, apparently
acting under the mistaken belief that he could
not be convicted lest the prosecution produce

I have tried to express to him the fact
that’s not required. I have gone
through this with him numerous times
explaining to him the law and the
consequences of his decision.
Id. Counsel then went on to make clear that,
notwithstanding his prior efforts to educate
his client with regard to the perils of going to
trial, petitioner still had a chance to plead
guilty to his crime:

2

The Memorandum and Order cited to the record
underlying the first habeas petition in Izaguirre v. Lee,

10-CV-3216 (JFB), but the Court has omitted those
citations herein and instead references Izaguirre I.

2

see daylight again, because you will
probably sit in a New York State
facility for at least 20 years and then
be deported to . . . Honduras, and I
don’t know what they will do to you
in Honduras after having served a
prison sentence here.

[Petitioner] has indicated to me that
he understands it and that he wishes
to proceed. But I want to be clear, the
fact that he has this last opportunity
right before the jury is brought into
this courtroom to review his options,
to see that this might be in his best
interest to take this disposition.

Your best chance is, if you wish to
plead guilty, is to enter a plea, take the
ten years, and hope they will forget
about your immigration hold . . . .

Id. at 559-60.
The presiding County Court justice then
asked, “Mr. Izaguirre, do you understand that
if you are found guilty after this trial you will
do 25 years in prison?” Id. at 560. After
petitioner responded that he understood but
maintained his innocence, the court made
additional remarks in an apparent attempt to
correct
petitioner’s
possible
legal
misapprehension and to fully apprise
petitioner of his options:

So, I hope that you understand all of
these factors and you understand that
the evidence is against you, there are
numerous statements that [the State]
claim[s] you made to other people in
which you admitted to this
...
I don’t know whether you are guilty
or not guilty, but I know that the
district attorney is prepared to put
forward a case . . . and only you know
what the truth is here and only you
know what is in your best interest.

Mr. Izaguirre, I don’t know whether
you are guilty or not guilty, but what
your lawyer seems to feel is that you
don’t understand the law of the State
of New York, which would make
sense since you are not a lawyer and
have never been in any kind of trouble
before.

But once I bring that jury in and we
start selecting them, any question as
to whether you want to plead guilty or
not is going to disappear. Do you
understand?

The prisons are filled with people
who were convicted of crimes where
there was no eye witness, and they are
filled with people who feel they were
wrongfully convicted because there
wasn’t enough evidence, or who have
convinced themselves that there
wasn’t enough evidence.
Those
people are not necessarily the kind of
people you want to spend the next 20
years of your life with.

Id.
After answering in the affirmative,
petitioner proceeded to trial by jury on
February 23, 2005, and the jury found him
guilty of Manslaughter in the First Degree on
March 18, 2005. Id. On September 9, 2005,
the County Court sentenced petitioner to
twenty-five years’ imprisonment with five
years of post-release supervision. Id. at 561.

You are a very young man. You also
have an immigration hold. You will
probably, if you get convicted, never

3

b. Federal Habeas Proceeding

raise[d] a reasonable likelihood of
actual vindictiveness.

Following a direct state-court appeal of
the conviction and sentence, as well as a
collateral proceeding instituted pursuant to
New York Criminal Procedure Law
§ 440.10, petitioner sought federal habeas
relief on July 6, 2010.
Id.
In the
Memorandum and Order, this Court denied
relief based on petitioner’s claims that
(1) there was insufficient evidence to support
petitioner’s conviction; (2) the state court
improperly attempted to persuade petitioner
to plead guilty; and (3) the sentence was
harsh and excessive. Id. at 555.

Id. Finally, the Court found that “the County
Court [did not] affirmatively state sufficient
reasons for the sentence imposed in order to
rebut the presumption that it was motivated
by actual vindictiveness in imposing the
maximum statutory sentence as promised.”
Id. at 577.
As a result, the Court granted petitioner
habeas relief and directed that “a writ of
habeas corpus shall issue unless, within
ninety days of the date of [the] Memorandum
and Order, [p]etitioner is resentenced before
a judge other than the one who delivered the
sentence at issue in the instant petition.” Id.
at 580.

However, with respect to petitioner’s
claim
that
the
sentence
was
“unconstitutionally vindictive,” the Court
determined, “[a]fter carefully reviewing the
record, [that] there [was] no question that . . .
a reasonable likelihood
of actual
vindictiveness exist[ed] before the trial even
began [because] the County Court plainly
told [p]etitioner the sentence he would
receive—namely,
the
non-mandatory,
statutory maximum—if he were convicted at
trial.” Id. at 574. Moreover,

2. Resentencing
a. Supreme Court Proceeding
Following the Memorandum and Order,
petitioner appeared for resentencing on June
14, 2012 in Supreme Court, Nassau County
before the Honorable Arthur M. Diamond.
(S. 3 at 1.) At that hearing, the State said that
Valle’s family was “satisfied with [the] 25year sentence that” was previously imposed
and that petitioner committed a “brutal
crime.” (Id. at 3.) The State also highlighted
the “great anguish” that petitioner had
inflicted on Valle’s family and said that
petitioner had “expressed no remorse for his
brutal acts . . . .” (Id. at 4-5.) Accordingly,
the State requested a sentence of “at least 15
years’ imprisonment” and that Justice
Diamond “keep in mind the family’s feeling
that the 25-year sentence that was originally
imposed was an appropriate sentence.” (Id.
at 5-6.) Valle’s father also spoke at that

[f]ollowing the jury rendering a guilty
verdict, the County Court did, in fact,
sentence [p]etitioner to 25 years’
imprisonment. Although it [was]
possible that no actual vindictiveness
existed on the part of the County
Court during the sentencing process,
the pre-trial announcement that
[p]etitioner would receive the
statutory
maximum
sentence
followed by the post-trial issuance of
the promised statutory maximum
sentence (which was discretionary,
rather than mandatory) certainly

3

“S.” refers to the transcript of the June 14, 2012
resentencing proceeding. (ECF No. 12-11.)

4

hearing and requested “justice for [his] son
. . . .” (Id. at 6.)

b. Appellate Proceedings
On December 4, 2015, petitioner
appealed the resentence to the Appellate
Division, Second Department and asked that
it be vacated on the grounds that (1) the
resentencing court ignored this Court’s
mandate in the Memorandum and Order;
(2) the resentence was unconstitutionally
vindictive; (3) the resentence was harsh and
excessive; and (4) the resentencing court
improperly failed to obtain an updated
probation report. (See Pet’r’s Appellate Br.,
ECF No. 12-12.)

4

In response, petitioner’s counsel noted
that the “probation report which was
prepared . . . seven years ago” indicated that
petitioner “was a hard-working immigrant
pursuing a better life in the United Sates
without criminal incident” before his arrest.
(Id. at 7-8.) He also said that “[p]rison ha[d]
been difficult for” petitioner, who had “not
had any disciplinary issues since his nine
years of incarceration” at that time. (Id. at 8.)
Finally, petitioner’s counsel noted that Valle
“had too much to drink” prior to his death and
said that “a stupid alcohol-fueled fight”
precipitated petitioner’s killing of Valle. (Id.
at 9.) Thus, petitioner’s counsel said that “the
facts argue[d] for a sentence at the low end of
the [applicable] range.” (Id. at 9.) Petitioner
also spoke at the resentencing hearing and
said that he felt “very sorry” for Valle’s
family and that he had “had very tough times
in prison.” (Id. at 10.)

The Second Department affirmed the
resentence on July 27, 2016 after concluding
that (1) “the resentence was not
presumptively vindictive, but rather a proper
exercise of discretion by the Supreme Court”;
(2) “the resentence imposed was not
excessive”; and (3) petitioner’s “remaining
contentions [were] unpreserved for appellate
review and, in any event, without merit.”
People v. Izaguirre, 35 N.Y.S.3d 655, 655
(App. Div. 2d Dep’t 2016). The New York
Court of Appeals denied petitioner leave to
appeal on November 15, 2016. People v.
Izaguirre, 28 N.Y.3d 1073 (2016).

After hearing that testimony and
argument, and upon review of the
Memorandum and Order, “the entire trial
transcript[,] and the probation report,” Justice
Diamond concluded that (1) petitioner’s guilt
was established beyond a reasonable doubt;
(2) there was no justification or defense for
petitioner’s “senseless” and “cruel” crime;
and (3) petitioner’s “refusal even at this date
to accept responsibility or show any remorse
for what he did” was striking. (Id. at 11.)
Therefore, Justice Diamond imposed “the
maximum [sentence] that [was] allowed by
law” for petitioner’s conviction of
Manslaughter in the First Degree: twentyfive years’ imprisonment to be followed by
five years of post-release supervision. (Id. at
12.)

C. The Instant Petition
On December 22, 2016, petitioner moved
before this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, on the
following grounds: (1) the resentencing court
ignored this Court’s mandate in Izaguirre I;
(2) the resentence was unconstitutionally
vindictive; (3) the resentence was harsh and
excessive; and (4) the resentencing court
improperly failed to obtain an updated
probation report prior to imposing
resentence. (Pet. at 6-11.) Respondent filed

4

Petitioner was represented by a different attorney at
the resentencing hearing than his trial counsel. (Id. at
9-10.)

5

Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).

a memorandum of law opposing petitioner’s
application on March 13, 2017 (ECF No. 12),
and petitioner replied on April 6, 2017 (ECF
No. 15).

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 413. A decision is an “unreasonable
application” of clearly established federal
law if a state court “identifies the correct
governing legal principles from [the Supreme
Court’s] decisions but unreasonably applies
that principle to the facts of [a] prisoner’s
case.” Id.

The Court has fully considered the
parties’ submissions, as well as the
underlying record.
II. STANDARD OF REVIEW
To determine whether petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standard of review set
forth in 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty
Act (“AEDPA”), which provides, in relevant
part:
(d) An application for a writ of habeas
corpus on behalf of a person in
custody pursuant to the judgment of a
State court shall not be granted with
respect to any claim that was
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim –

AEDPA establishes a deferential
standard of review: “a federal habeas court
may not issue the writ simply because the
court concludes in its independent judgment
that the relevant state-court decisions applied
clearly established federal law erroneously or
incorrectly. Rather, that application must be
unreasonable.” Gilchrist v. O’Keefe, 260
F.3d 87, 93 (2d Cir. 2001) (quoting Williams,
529 U.S. at 411). The Second Circuit added
that, while “[s]ome increment
of
incorrectness beyond error is required . . . the
increment need not be great; otherwise,
habeas relief would be limited to state court
decisions so far off the mark as to suggest
judicial incompetence.” Id. (quoting Francis
S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Finally, “if the federal claim was not
adjudicated on the merits, ‘AEDPA
deference is not required, and conclusions of
law and mixed feelings of fact and
conclusions of law 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)).

(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 that was
based on an unreasonable
determination of the facts in light
of the evidence presented by the
State court proceedings.
28 U.S.C. § 2554. “Clearly established
Federal law” means “the holdings, as
opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the
relevant state-court decision.” Green v.

6

However, “it is not sufficient merely that
the federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
To provide the State with the necessary
“opportunity,” the prisoner must “‘fairly
present[]’” his claims in each appropriate
state court (including a state supreme court
with powers of discretionary review),
alerting that court to the federal nature of the
claim and “giv[ing] the state courts one full
opportunity to resolve any constitutional
issues by invoking one complete round of the
State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see also Duncan, 513 U.S. at 365-66.
“A petitioner has ‘fairly presented’ his claim
only if he has ‘informed the state court of
both the factual and legal premises of the
claim he asserts in federal court.’” Jones v.
Keane, 329 F.3d 290, 294-95 (2d Cir.
2003) (quoting Dorsey v. Kelly, 112 F.3d 50,
52 (2d Cir. 1997)). “Specifically, [petitioner]
must have set forth in state court all of the
essential factual allegations asserted in his
federal petition.” Daye, 696 F.2d at 19192 (citing Picard, 404 U.S. at 276; United
States ex rel. Cleveland v. Casscles, 479 F.2d
15, 19-20 (2d Cir. 1973)). To that end, “[t]he
chief purposes of the exhaustion doctrine
would be frustrated if the federal habeas court
were to rule on a claim whose fundamental
legal basis was substantially different from
that asserted in state court.” Id. at
192 (footnote omitted).

III. DISCUSSION
Petitioner argues that he is entitled to
habeas relief on the following grounds:
(1) the resentencing court ignored this
Court’s mandate in the Memorandum and
Order;
(2)
the
resentence
was
unconstitutionally vindictive; (3) the
resentence was harsh and excessive; and
(4) the resentencing court improperly failed
to obtain an updated probation report prior to
imposing resentence. Respondent argues that
the first and fourth claims are procedurally
barred from federal review and that they,
along with petitioner’s other challenges, are
also meritless. For the following reasons, the
Court concludes that petitioner is not entitled
to habeas relief and denies the instant
petition.
A. Procedural Requirements
1. Exhaustion
As a threshold matter, a district court
shall not review a habeas petition unless “the
applicant has exhausted the remedies
available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). Although a state
prisoner need not petition for certiorari to the
United States Supreme Court to exhaust his
claims, see Lawrence v. Florida, 549 U.S.
327, 333 (2007), he still must fairly present
his federal constitutional claims to the
highest state court having jurisdiction over
them, see Daye v. Attorney Gen. of N.Y., 696
F.2d 186, 191 n.3 (2d Cir. 1982) (en banc).
Exhaustion of state remedies requires that a
petitioner “‘fairly presen[t]’ federal claims to
the state courts in order to give the State the
‘opportunity to pass upon and correct’
alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (quoting Picard v. Connor, 404 U.S.
270, 275 (1971)) (alteration in original).

2. State Procedural Requirements
Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural
requirements deprives the state courts of an
opportunity to address the federal
constitutional or statutory issues in a
petitioner’s
claim.
See Coleman
v.
Thompson, 501 U.S. 722, 731-32 (1991).
“[A] claim is procedurally defaulted for the
purposes of federal habeas review where ‘the

7

Once it is determined that a claim is
procedurally barred under state rules, a
federal court may still review such a claim on
its merits if the petitioner can demonstrate
both cause for the default and prejudice
resulting therefrom, or if he can demonstrate
that the failure to consider the claim will
result in a miscarriage of justice. Id. at
750 (citations omitted). A miscarriage of
justice is demonstrated in extraordinary
cases, such as where a constitutional
violation results in the conviction of an
individual who is actually innocent. Murray
v. Carrier, 477 U.S. 478, 496 (1986).

petitioner failed to exhaust state remedies and
the court to which the petitioner would be
required to present his claims in order to meet
the exhaustion requirement would now find
the claims procedurally barred.’” Reyes v.
Keane, 118 F.3d 136, 140 (2d Cir.
1997) (quoting Coleman, 501 U.S. at 735)
(emphasis omitted).
Where the petitioner “can no longer
obtain state-court review of his present
claims on account of his procedural default,
those claims are now to be deemed
exhausted.” DiGuglielmo v. Smith, 366 F.3d
130, 135 (2d Cir. 2004) (citing Harris v.
Reed, 489 U.S. 255, 263 n.9 (1989); Grey v.
Hoke, 933 F.2d 117, 120 (2d Cir. 1991)).
Therefore, “[f]or exhaustion purposes, ‘a
federal habeas court need not require that a
federal claim be presented to a state court if
it is clear that the state court would hold the
claim procedurally barred.’” Keane, 118
F.3d at 139 (quoting Hoke, 933 F.2d at 120).

B. Analysis
1. Failure to Follow Izaguirre I
Petitioner first argues that he is entitled to
habeas relief because, following the
Memorandum and Order, “the newly
assigned judge, Arthur Diamond, ignored his
mandate, and re-imposed the very same
sentence” that petitioner received from the
County Court. (Pet. at 6.) As discussed
below, the Court concludes that this claim is
procedurally defaulted and, in any case, lacks
merit.

However, “exhaustion in this sense does
not automatically entitle the habeas petitioner
to litigate his or her claims in federal court.
Instead, if the petitioner procedurally
defaulted [on] those claims, the prisoner
generally is barred from asserting those
claims
in
a
federal
habeas
proceedings.” Woodford v. Ngo, 548 U.S.
81, 93 (2006) (citing Gray v. Netherland, 518
U.S. 152, 162 (1996); Coleman, 501 U.S. at
744-51).

a. Procedural Bar
Under New York law, a defendant must
raise his objection before the trial court in
order to preserve that issue for state appellate
review. See N.Y. C.P.L. § 470.05(2); People
v. Gonzalez, 55 N.Y.2d 720, 722
(1981); People v. West, 56 N.Y.2d 662, 663
(1982). New York’s preservation doctrine is
firmly
established
and
regularly
followed. See Garvey v. Duncan, 485 F.3d
709, 715-16 (2d Cir. 2007); Glenn v.
Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996)
(finding that failure to preserve issue for
appeal was adequate and independent state
law ground precluding federal habeas review

The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect that state
judgments must be accorded. See House v.
Bell, 547 U.S. 518, 536 (2006). Petitioner’s
federal claims also may be procedurally
barred from habeas corpus review if they
were decided at the state level on adequate
and independent grounds. See Coleman, 501
U.S. at 729-33.

8

and
further
noting
that
“federal
habeas review is foreclosed when a state
court has expressly relied on a procedural
default as an independent and adequate
ground, even where the state court has also
ruled in the alternative on the merits of the
federal claim” (quoting Velasquez v.
Leonardo, 898 F.2d 7, 9 (2d Cir. 1990))); see
also Fernandez v. Leonardo, 931 F.2d 214,
215-16 (2d Cir. 1991).

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.”
Id. However, petitioner has not alleged any
of these factors in his petition or reply brief,
nor has he demonstrated that the failure to
consider this claim would result in a
miscarriage of justice. See id. Thus, the
Court finds that this aspect of petitioner’s
habeas petition is procedurally barred
from federal review.

In its state court appellate brief,
respondent argued that petitioner’s claim that
Justice Diamond failed to comply with the
Memorandum and Order was unpreserved
because he did not present that argument to
the resentencing court.
(See Resp’t’s
Appellate Br., ECF No. 12-13, at 23 (citing,
inter alia, N.Y. C.P.L. § 470.05(2)).) As
noted, the Second Department agreed that the
preservation doctrine precluded appellate
review of that contention. See Izaguirre, 35
N.Y.S.3d at 655. Therefore, petitioner’s
claim that the resentencing court violated this
Court’s directive in the Memorandum and
Order is also procedurally barred from
habeas review because the Second
Department relied on an independent and
adequate state procedural ground in
addressing that issue. See Garvey, 485 F.3d
at 715-16; Glenn, 98 F.3d at 724-25. 5

b. Merits
In any event, even if petitioner’s claim
that the resentencing court violated the
mandate in the Memorandum and Order were
not procedurally defaulted, the Court would
deny habeas relief on the merits.
After resentencing, but prior to filing his
direct appeal in state court, petitioner
informed this Court by letter dated August 8,
2012 that he intended to file another habeas
petition on this ground. Izaguirre v. Lee, 10CV-3216 (JFB), ECF No. 51. On August 29,
2012, the Court issued an Order concluding
that,

Nevertheless, even if an independent and
adequate state ground bars petitioner’s claim,
a claim may still be permissible for review in
federal court if the denial of habeas relief
would result in a miscarriage of justice.
Coleman, 501 U.S. at 750. Petitioner may
demonstrate cause by showing one of the

to the extent petitioner argues that
habeas relief should be granted
because respondent did not comply
with the Court’s [Memorandum and]
Order, that argument has no merit.
This Court ordered that petitioner be

5

In addition, the Second Department’s reliance on the
preservation doctrine was also not exorbitant in this
case. In Lee v. Kemna, 534 U.S. 362 (2002), the
Supreme Court concluded that there is a limited
category of “exceptional cases” in which the state
appellate court applied a firmly established and
regularly followed procedural ground in an
“exorbitant” manner so that the application of the

ground was inadequate, and a federal court was
therefore not barred from reviewing that claim on the
merits in a habeas appeal. Id. at 376. Having
considered the factors set forth in Cotto v. Herbert,
331 F.3d 217, 240 (2d Cir. 2003), in connection with
this exception, the Court concludes that the Second
Department did not apply the preservation doctrine in
an exorbitant manner with respect to this claim.

9

Court in Pearce in the context of a higher
sentence after a new trial. Pearce held that
the Due Process Clause of the Fourteenth
Amendment “requires that vindictiveness
against a defendant for having successfully
attacked his first conviction must play no part
in the sentence he receives after a new trial.”
395 U.S. at 725; accord, e.g., Bordenkircher
v. Hayes, 434 U.S. 357, 362 (1978). The
Supreme Court in Alabama v. Smith, 490
U.S. 794 (1989), summarized its precedents
on this issue:

re-sentenced within ninety days
before a different judge. That in fact
happened, as petitioner was resentenced by [Supreme Court] Justice
Diamond, not [County Court] Justice
Berkowitz. Although petitioner was
re-sentenced to the statutory
maximum of twenty-five years, this
Court did not preclude the state court
from imposing such a sentence at the
re-sentencing.
Id., ECF No. 54. Petitioner has not presented
any contrary arguments in the instant action
or identified any portion of the Memorandum
and Order that the resentencing court
allegedly violated. Further, as noted in the
August 29, 2012 Order, the Court did not
prohibit re-imposition of a twenty-five year
term
of
imprisonment
following
resentencing. Accordingly, the Court again
concludes that this clam does not merit
habeas relief.

“In order to assure the absence of
such a motivation [of vindictiveness],
we have concluded that whenever a
judge imposes a more severe sentence
upon a defendant after a new trial, the
reasons for him doing so must
affirmatively appear.” [Pearce, 395
U.S. at 726.]
Otherwise, a
presumption arises that a greater
sentence has been imposed for a
vindictive purpose—a presumption
that must be rebutted by “‘objective
information . . . justifying the
increased sentence.’” Texas v.
McCullough, 475 U.S. 134, 142
(1986) (quoting United States v.
Goodwin, 457 U.S. 368, 374 (1982)).

2. Vindictive Resentence
Like he did in Izaguirre I, petitioner
argues that, “[b]y again re-sentencing
[petitioner] to 25 years’ imprisonment, after
the [State] had agreed to a plea deal of ten
years or less, an inference arises that
[petitioner] was punished for exercising his
Sixth Amendment right to trial by jury.” (Pet.
at 8.) The Court disagrees.

Smith, 490 U.S. at 799; accord, e.g., Correia
v. Hall, 364 F.3d 385, 388 (1st Cir. 2004) (“In
the event a criminal defendant successfully
appeals his conviction and the same trial
judge imposes a stiffer sentence following a
retrial, the presumption arises that the harsher
sentence was a product of judicial
vindictiveness in response to the defendant’s
rightful recourse to the appellate process; yet
this presumption is rebuttable provided the
record contains objective evidence which
adequately explains the more severe
sentence.”).

As discussed in the Memorandum and
Order, a sentence is unconstitutionally
vindictive if it imposes greater punishment
because the defendant exercised a
constitutional right, such as the right to jury
trial or the right to appeal. Wasman v. United
States, 468 U.S. 559, 567-68 (1984)
(citing, inter alia, North Carolina v. Pearce,
395 U.S. 711, 725 (1969)). Claims of
unconstitutional vindictiveness by the court
were initially addressed by the Supreme

10

However, the Pearce framework was not
limited by the Supreme Court to sentencings
after re-trials, but rather has been applied by
the Supreme Court to other situations, such as
claims of prosecutorial vindictiveness in
connection with plea negotiations. See,
e.g., United States v. Goodwin, 457 U.S. 368,
373-83 (1982); Bordenkircher v. Hayes, 434
U.S. at 362. Although the Supreme Court
made clear in those cases that it would be
difficult to find such a presumption against a
prosecutor in the context of the regular giveand-take
of
plea
negotiations,
it
nonetheless made clear that this same rule
applies to all vindictiveness claims,
regardless of whether they involved a
prosecutor or judge, or whether they occurred
pre-trial, at trial, at sentencing, or at
resentencing after a new trial. In other words,
even though the ability to demonstrate a
“reasonable likelihood of vindictiveness” to
invoke the presumption might be more
difficult in one situation as opposed to
another, the rule is the same. Perhaps one of
the clearest articulations of this wellestablished
rule
is
contained
in
Goodwin, where the Supreme Court stated:

457 U.S. at 373. Therefore, as it did in
Izaguirre I, this Court concludes that
this Pearce standard was clearly established
federal law, as articulated by the Supreme
Court, at the time of the Second
Department’s decision affirming the
resentence. 6
However, the Court concludes that the
Pearce presumption does not apply to the
resentencing
proceeding.
In
the
Memorandum and Order, the Court found a
“reasonable likelihood of vindictiveness”
based on “the pre-trial announcement that
[p]etitioner would receive the statutory
maximum sentence followed by the post-trial
issuance of the promised statutory maximum
sentence (which was discretionary, rather
than mandatory) . . . .” Izaguirre I, 856 F.
Supp. 2d at 574. The Court emphasized,
however,
that it [did] not conclude that
the Pearce presumption
applies
simply because the post-trial sentence
exceeded a previous plea offer. Such
a conclusion would be contrary to
well-established Supreme Court
precedent and common sense.
Instead, consistent with well-settled
Supreme Court jurisprudence, the
Court [found] that the Pearce
presumption [was] warranted where
the trial court stated, pre-trial, in the
context of plea negotiations, that
she would impose the non-mandatory
statutory maximum if the defendant
went to trial, and then imposed that
sentence after trial.

[I]n certain cases in which action
detrimental to the defendant has been
taken after the exercise of a legal
right, the Court has found it necessary
to “presume” an improper vindictive
motive. Given the severity of such a
presumption, however—which may
operate in the absence of any proof of
an improper motive and thus may
block a legitimate response to
criminal conduct—the Court has
done so only in cases in which a
reasonable
likelihood
of
vindictiveness exists.

Id. at 577. Nothing analogous occurred in the
context of the resentencing proceeding.

As discussed in Izaguirre I, 856 F. Supp. 2d at 57374, other courts have reached the same conclusion.
See, e.g., Correia, 364 F.3d at 388 (“The same
[Pearce] presumption may arise when a criminal

defendant rejects a plea agreement—and with it the
prospect of a more lenient sentence—and elects
instead to exercise his constitutional right to a jury
trial.”).

6

11

Justice Diamond did not preside over
petitioner’s trial or first sentencing
proceeding, nor is he alleged to have
communicated with petitioner prior to
imposing resentence. Thus, as respondent
correctly notes, “Justice Diamond had no
‘personal stake’ in petitioner’s prior
conviction and no motivation to engage in
self-vindication.” (Resp’t’s Opp’n Br., ECF
No. 12, at 16.) Indeed, Justice Diamond was
“not even a County Court judge (as was the
trial judge).” (Id.)

Finally, even assuming that the Pearce
presumption applied, the Court finds—unlike
in Izaguirre I—that the resentencing court
“affirmatively state[d] sufficient reasons for
the sentence imposed in order to rebut the
presumption that it was motivated by actual
vindictiveness in imposing the maximum
statutory sentence . . . .” Izaguirre I, 856 F.
Supp. 2d at 577.
Before imposing
resentence, Justice Diamond reviewed the
Memorandum and Order, “the entire trial
transcript[,] and the probation report” and on
that basis concluded that (1) petitioner’s guilt
was established beyond a reasonable doubt;
(2) there was no justification or defense for
petitioner’s “senseless” and “cruel” crime;
and (3) petitioner’s “refusal even at this date
to accept responsibility or show any remorse
for what he did” was striking. (S. at 11.) He
also heard testimony and argument from the
State, Valle’s father, petitioner’s counsel, and
petitioner, and Justice Diamond stated, “I
don’t see anything here in front of me based
upon the proceedings here this morning to
sentence the petitioner to anything but the
maximum that is allowed by law.” (Id. at 12.)
In sum, the record reflects that Justice
Diamond imposed resentence following a de
novo appraisal of the relevant factors and
“based on objective information concerning
identifiable conduct on the part of the
defendant,” Pearce, 395 U.S. at 726; see also
Somerville v. Hunt, No. 08-CV-1307, 2011
WL 795073, at *10 (E.D.N.Y. Feb. 28,
2011), sufficient to overcome any
presumption of vindictiveness. 7

Further, there is no merit to petitioner’s
argument that the “presumption of
vindictiveness was triggered by [County
Court] Judge Berkowitz, when she
specifically told petitioner he ‘will do 25
years in prison’ if found guilty after trial,”
and that “[i]t was upon re-sentencing wherein
the objective information to rebut any
presumption of vindictiveness was to be
employed.” (Pet’r’s Reply Br., ECF No. 15,
at 7-8.) As set forth above, the Pearce
inquiry applies to the proceeding that is the
subject of the vindictiveness challenge—in
this case, the resentencing—and in the
Memorandum and Order, the Court
specifically directed that another judge
resentence petitioner so as to avoid any claim
as to a “reasonable likelihood of
vindictiveness.” There is no evidence in the
record that Justice Diamond made any
statements or exhibited any behavior that
warrants application of the Pearce
presumption, and therefore, petitioner is
mistaken to suggest that that presumption
“carried-over” from his prior County Court
sentencing proceeding.

Thus, for the foregoing reasons, the
Second Department’s determination that
petitioner’s vindictiveness claim lacked merit
was not contrary to or an unreasonable

7

Petitioner’s argument that the resentencing court “did
not consider any new conduct or events discovered
since sentencing which suitably explained an
imposition of the same 25-year sentence” is not a basis
for a finding of vindictiveness. (Pet’r’s Reply Br. at

8.) First, it does not follow that, because Justice
Diamond did not mention post-sentencing conduct, he
did not consider it. In any event, the failure to take
such conduct into consideration would not, by itself,
demonstrate vindictiveness.

12

that it is excessive is beyond this Court's
review.” Id. In any event, even if the Court
could review a sentence within the range
prescribed by state law, the Court would find
no basis in this case to conclude that
petitioner’s
resentence
was
grossly
disproportionate to the crime committed so as
to violate the Eighth Amendment given the
nature of petitioner’s crime. Id. at 571 n.14.

application of clearly established federal law.
See 28 U.S.C. § 2254(d).
3. Harsh and Excessive Resentence
Petitioner also alleges that his
“[re]sentence
of
twenty-five
years’
imprisonment was unduly harsh and
excessive.” (Pet. at 9.) However, the Court
squarely rejected an identical claim in
Izaguirre I, holding that, “to the extent that
[p]etitioner relie[d] on state law as a ground
for an excessive sentence claim, such a claim
is not cognizable on habeas review.” 856 F.
Supp. 2d at 571 (citing, inter alia, Wilson v.
Ercole, No. 06-cv-533 (DLI), 2009 WL
792089, at *11 (E.D.N.Y. Mar. 23, 2009)). In
addition,

Accordingly, the Second Department’s
determination that petitioner’s excessiveness
claim lacked merit was also not contrary to or
an unreasonable application of clearly
established federal law. See 28 U.S.C. §
2254(d).
4. Failure to Obtain a New Probation
Report

to the extent [p]etitioner argue[d] that
his [first] sentence was excessive and
therefore
cruel
and
unusual
punishment under the Eighth
Amendment, [p]etitioner’s claim
[was] not reviewable by this Court
since, “when a sentence is within [the
range of years prescribed by law], a
claim of excessive punishment does
not present a constitutional question
necessary
for
habeas
corpus
reversal.”

Lastly, petitioner argues that the Court
should grant habeas relief because, “although
[petitioner] was re-sentenced on June 14,
2012—some seven years after his original
sentence on September 9, 2005—the
[Supreme] Court failed to obtain an updated
probation report.” (Pet. at 11.) However, this
claim is also procedurally defaulted and
otherwise lacks merit.
a. Procedural Default
As with petitioner’s first claim for relief,
respondent argued on direct appeal that this
argument was unpreserved because petitioner
did not ask the resentencing court for a new
probation report. (See Rep’t’s Appellate Br.
at 33 (citing Pet’r’s Appellate Br. at 22
(acknowledging that petitioner’s “counsel
did not request an updated probation
report”)).) Thus, the Second Department
found that the preservation doctrine
precluded appellate review. Izaguirre, 35
N.Y.S.3d at 655.

Id. (quoting Underwood v. Kelly, 692 F.
Supp. 146, 152 (E.D.N.Y. 1988), aff’d, 875
F.2d 857 (2d Cir. 1989)) (citing White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).
Here, as the Court previously found,
“[p]etitioner was convicted by a jury of
Manslaughter in the First Degree, a class B
violent felony punishable by as many as
twenty-five years in prison.” Id. (citing N.Y.
Penal L. §§ 120.20(1), 70.02(a)(1), (a)(3)).
“Thus, the twenty-five year sentence
imposed by the [Supreme] Court was within
the statutory range and [p]etitioner’s claim

As discussed supra, New York’s
preservation rule is an independent and
13

adequate state procedural ground.
See
Garvey, 485 F.3d at 715-16; Glenn, 98 F.3d
at 724-25. 8 In addition, petitioner has not
alleged or otherwise shown that denying
habeas relief based on this claim would result
in a miscarriage of justice. See Coleman, 501
U.S. at 750. Thus, the Court finds that this
aspect of petitioner’s habeas petition is
procedurally barred from federal review.

law.”), report
and
recommendation
adopted, No. 06 CIV. 3681 RO, 2010 WL
4258923 (S.D.N.Y. Oct. 27, 2010); People v.
Kuey, 83 N.Y.2d 278, 282 (1994) (holding
that, under New York Criminal Procedure
Law § 390.20, “the decision whether to
obtain an updated report at resentencing is a
matter resting in the sound discretion of the
sentencing Judge”).

b. Merits

Indeed, in his reply brief, petitioner cites
only New York cases in support of his claim
that Justice Diamond should have obtained a
new probation report prior to resentencing. 9
(See Pet’r’s Reply Br. at 11-12.) Further,
contrary to petitioner’s contention (id. at 1011), the Court does not find that the
resentencing court’s failure to obtain a new
probation report impacted the “fundamental
fairness” of that proceeding so as to
constitute a due process violation. See, e.g.,
Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.
1983). As discussed supra, the resentencing
hearing was conducted in a fair and impartial
manner.

Even if the procedural bar did not apply,
the Court would deny habeas relief on the
merits because petitioner’s probation report
claim does not implicate a federal right.
“[H]abeas corpus relief does not lie for
errors of state law.” Estelle v. McGuire, 502
U.S. 62, 67 (1991) (quoting Lewis v. Jeffers,
497 U.S. 764, 780 (1990)). As other courts
in this circuit have correctly held, “the failure
to await an updated presentence report is a
matter of state law that does not implicate
federal constitutional rights.” Roberts v.
Superintendent, Groveland Corr. Facility, 26
F. Supp. 2d 684, 686 (S.D.N.Y. 1998); see
also Franco v. Mazzuca, No. 00-CV-4340
(JBW), 2003 WL 21850280, at *4 (E.D.N.Y.
July 29, 2003) (“The instant claim—that the
court failed to order and consider an updated
probation report before sentencing—is
founded entirely on state law and does not
implicate any federal right.” (citing People v.
Thompson, 609 N.Y.S.2d 79, 79 (App. Div.
2d Dep’t 1994))); Guzman v. Rivera, No. 06
CIV. 3681 SCR LMS, 2010 WL 4242833, at
*8 (S.D.N.Y. Mar. 17, 2010) (“Respondent is
correct in the contention that the procedure of
sentencing is exclusively a matter of state

IV. CONCLUSION
For the foregoing reasons, petitioner is
not entitled to habeas relief. Accordingly,
this petition for a writ of habeas corpus is
denied in its entirety. 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). In addition, because the
petition clearly lacks merit, the Court
certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Memorandum and
Order would not be taken in good faith, and,

8

The Second Department’s reliance on the
preservation doctrine was also not exorbitant in this
case. See supra note 5.

Br. at 13.) Although that characterization is factually
correct, the district court nevertheless determined that
habeas relief was unwarranted based on the state
“court’s alleged failure to consult the update[d] report”
because that claim only implicated a state law issue.
Franco, 2003 WL 21850280, at *4.

9

Petitioner’s attempt to distinguish Franco on the
basis that “an updated pre-sentence report was in fact
prepared” in that case is unpersuasive. (Pet’r’s Reply

14

therefore, in forma pauperis status is denied
for the purpose of an appeal. See Coppedge
v. United States, 369 U.S. 438, 444-45
(1962). The Clerk of the Court shall close
this case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: October 10, 2017
Central Islip, New York
***
Petitioner is proceeding pro se. Respondent
is represented by Andrea M. DiGregorio,
Assistant District Attorney, Nassau County
District Attorney’s Office, 262 Old Country
Road, Mineola, New York 11501.

15