Washington v. Tynon
Filing
35
MEMORANDUM AND OPINION. For the reasons set forth herein, this Court finds that the petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254 and the petition (ECF No. 1) is denied in its entirety. Ordered by Judge Joseph F. Bianco on 11/20/2018. (Chill, Alana)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
№ 17-CV-1715(JFB);
KEVIN WASHINGTON,
Petitioner,
VERSUS
T. TYNON, SUPERINTENDENT OF
WASHINGTON CORRECTIONAL
FACILITY,
Respondent.
MEMORANDUM AND ORDER
November 20, 2018
In the instant habeas action, petitioner
challenges his conviction and sentence,
arguing that his guilty plea is invalid, that his
counsel rendered ineffective assistance on
multiple grounds, and that his rights under
the Equal Protection Clause of the Fourteenth
Amendment have been violated. For the
reasons discussed below, petitioner’s request
for a writ of habeas corpus is denied in its
entirety.
JOSEPH F. BIANCO, District Judge:
Kevin Washington (“Washington” or
“petitioner”), proceeding pro se, petitions
this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his
conviction in state court. On October 23,
2013, petitioner entered a guilty plea to four
counts of Robbery in the First Degree, in
violation of New York Penal Law §
160.15(3) and one count of Petit Larceny, in
violation of New York Penal Law § 155.25.
Petitioner was thereafter sentenced to eight
years of imprisonment as to the robbery
charges, to run concurrently with one year as
to the petit larceny charge, followed by five
years of post-release supervision.
I.
BACKGROUND AND
PROCEDURAL HISTORY
A. Background
The following facts are adduced from the
1
than the court’s promise of a maximum term
of eight years’ imprisonment, no other
promises had been made to coerce his guilty
plea. (P. 6, 8-9.)
The petitioner admitted to committing
robberies on the following dates: (1) June 27,
2012 in Uniondale, New York (see P. 9, Opp.
9, ECF No. 33); (2) August 16, 2012 in
Baldwin, New York; (3) August 27, 2012 in
Westbury, New York; and (4) September 11,
2012 in Hicksville, New York. (P. 9-11.)
Petitioner stated that, during all of the
robberies, he displayed a knife to individuals,
and demanded and successfully obtained
their money. (P. 9-11.) Additionally,
petitioner admitted that on August 1, 2012, in
East Meadow, New York, he took money
from a gas station cash register without
permission to do so, committing petit larceny.
(P. 11-12.)
petition (Pet., ECF No. 1)1 and the underlying
record.
On October 23, 2013, petitioner entered a
guilty plea in the Supreme Court of Nassau
County to four counts of Robbery in the First
Degree, in violation of New York Penal Law
§ 160.15(3), a Class “B” violent felony, and
one count of Petit Larceny, in violation of
New York Penal Law § 155.25, a Class “A”
misdemeanor. (See P. 2, 13.)2
At the outset of petitioner’s guilty plea
proceeding, the court ensured that he was
competent to proceed, and the following
exchange took place:
The Court: Do you feel in good
physical and mental health as you
stand here today?
Satisfied with the allocution, the Court
stated:
The Defendant: Yes.
The Court: Have you taken any
alcohol or any drugs in the last
twenty-four hours?
Court is satisfied that the defendant
understands the nature of the charges,
the nature of the plea, the possible
consequences of his plea, the
defendant has discussed his legal
rights with his attorney. Defendant
understands he is waiving his
Constitutional rights, the plea is
voluntary and of his own free will.
Court is further satisfied that the
defendant has acknowledged his guilt
and
is
willing
to
assume
responsibility for it. By pleading
guilty, the defendant has ensured
prompt and certain punishment to
himself without delay. The Court
believes it is in the interest of justice
to accept the plea from this
defendant.
The Defendant: No.
The Court: Have you ever been
treated, confined to a hospital for any
mental illness?
The Defendant: No.
(P. 4.) Further, petitioner stated that he was
satisfied with his attorney’s representation
and had discussed the choice to enter the plea
with counsel. (P. 4-5.) The Court reviewed
the constitutional rights petitioner was
forfeiting by pleading guilty.
(P. 5.)
Petitioner informed the court that he had not
been threatened to plead guilty, and that other
1
The court uses the pagination assigned by the
electronic case filing system when citing to case
documents.
Numbers in parentheses preceded by “P.” refer to
pages in the October 23, 2013 transcript of petitioner’s
guilty plea proceeding. (ECF No. 33-2.)
2
2
to understand the proceedings against him or
to assist in his defense.” (See id. 2, 5.)
(P. 12-13.)
Prior to adjourning for
sentencing, defense counsel stated:
Petitioner was sentenced on April 24,
2014.
At the sentencing hearing, the
prosecution recommended a term of ten
years’ imprisonment. (S. 2.)4 Subsequently,
defense counsel argued for a lesser sentence
of six or seven years, emphasizing that
petitioner had a limited criminal history and
that the crimes did not involve the use of
physical violence. (S. 2-4.) Petitioner spoke
on his own behalf, stating:
Mr. Shanahan: Judge, there was a
730.30 exam which we were not
opposing. The result was that he
was competent. Neither party was
asking for a hearing, but I believe
we had to put that on the record.
The Court: Okay.
Mr. Shanahan: And we had to
confirm the findings. I think the
Court has to confirm it.
First, I would like to apologize to the
judge, to my family. Like Mr.
Shanahan said, I was going through a
divorce.
I started seeing a
psychologist. They started giving me
medication,
because
this
is
something that is not in my character
to have ever done at 40-something
years old. Why I would start doing
something like that in my right frame
of mind? So I ask for forgiveness and
I would even like to make restitution
to these gas stations that I apparently
robbed. I was not in my right mind.
I don’t remember half the stuff that I
pled out to.
The Court: All right. Then I’m
confirming those findings.
(P. 14.)
Notable for the purpose of this petition,
prior to petitioner’s guilty plea, on May 23,
2013, defense counsel made an application to
the court for an Article 730 exam due to
“some of [petitioner’s] background and some
of [petitioner’s] psychiatric history.” (Adj.
2.)3 In response to this request, on September
23, 2013, the Nassau County Department of
Human Services issued a mental health
report, pursuant to Article 730 of New York
Criminal Procedure Law (“CPL”). (See
Exam. Report, ECF No. 33-15.) According
to this report, Allen Reichman, M.D., a
qualified psychiatrist, and Anthony V.
Satoro, Psy. D, a certified psychologist,
examined petitioner to determine whether he
was mentally fit to proceed. (See id. 2, 5.)
Based on these examinations, the report
concluded that petitioner “does not as a result
of mental disease or defect lack the capacity
(S. 4.) In response to petitioner’s statement,
the court asked defense counsel if he was
waiving an application to reopen the plea, to
which counsel responded:
No, Judge.
I’ve had numerous
conversations with him. There is no
- - he understands what he did. He
has a recollection of what he did,
although he feels that he may not
have been in the right frame of mind.
Numbers in parentheses preceded by “Adj.” refer to
the pages in the May 23, 2013 adjournment of
petitioner’s state court case. (ECF No. 33-1.)
Numbers in parentheses preceded by “S.” refer to
pages in the April 24, 2014 transcript of petitioner’s
sentencing proceeding. (ECF No. 33-3.)
3
4
3
(S. 4-5.) Defense counsel indicated that he
was “consenting to let the plea stand.” (S. 5.)
The Court then imposed a sentence of eight
years of incarceration followed by five years
of post-release supervision as to the robbery
charges, to run concurrently with one year of
incarceration as to the petit larceny charge.
(S. 5-6.)
appeal was denied on May 17, 2016. People
v. Washington, 27 N.Y.3d 1076 (N.Y. 2016).
2. First Section 440 Motion
On July 25, 2016, petitioner filed a pro se
motion in Supreme Court of the State of New
York, Nassau County, to vacate his
conviction pursuant to New York Criminal
Procedure Law (“CPL”) § 440.10. (See
Section 440 Mot., ECF No. 33-10.) In this
motion, petitioner argued that he received
ineffective assistance of counsel when his
attorney failed to: (1) discuss his mental state
and prescribed medications during his plea
proceedings; (2) obtain a “proper diagnosis”
of his condition “so a proper medical
evaluation could [have been] given to [the
trial court]”; (3) provide petitioner’s
“doctor’s notes and letters” to the trial court;
(4) inform the trial court about the side effects
of petitioner’s prescribed medications; and
(5) tell the trial court that petitioner had “no
criminal history in the system before taking
the medication” and advocate for reduced
charges because the relevant charges did not
involve violent acts. (Section 440 Mot. 4.)
B. Procedural History
1. Direct Appeal
On May 1, 2015, petitioner appealed to
the Second Department of the New York
State Appellate Division. On direct appeal,
petitioner argued that his guilty plea was
invalid as the trial court was aware of
petitioner’s “documented history of mental
illness” and failed to “conduct a sufficient
inquiry [into his mental health] prior to the
entry of the guilty plea.” (See App. Div. Br.
16-23, ECF No. 33-4.)
On December 16, 2015, the Second
Department affirmed the trial court’s
judgment of conviction and sentence, as
petitioner’s contention that his plea was not
knowing and voluntary because the plea court
did not inquire into his mental capacity was
both “unpreserved for appellate review” and
because “nothing in the record indicate[d] a
need for the plea court to have conducted a
full inquiry into the defendant’s mental health
before accepting his plea of guilty.” People
v. Washington, 134 A.D.3d 963, 963-64
(N.Y. App. Div. 2015).
The Second
Department emphasized that “[u]pon
examination six weeks earlier by a
psychiatrist and a psychologist, the defendant
had been found fit to proceed in the criminal
action, and the defendant’s demeanor at the
plea allocution and responses to the plea
court’s inquiries were appropriate.” Id. at
964. Petitioner sought leave to appeal to the
New York Court of Appeals, and leave to
The Supreme Court of the State of New
York, Nassau County denied petitioner’s
Section 440.10 motion as procedurally barred
and without merit, stating that, “the
arguments raised on appeal and repeat[ed] in
his present motion were rejected on the merits
by the Appellate Division when [the] court
concluded that defendant’s plea was
voluntary” and “such allegations are based
upon defendant’s unsubstantiated allegations
of fact which are contradicted by the Court
record.” (Court Order Denying Section
440.10 Mot. 1, ECF No. 33-13.) Respondent
asserts that petitioner did not seek leave to
appeal the denial of his Section 440.10
motion. (Opp. 16.)
3. Second 440 Motion/Petition
4
on direct appeal or in petitioner’s first Section
440 motion. (See id. at 2.) Additionally, the
court found that “the voluntariness and
ineffectiveness claims” were previously
raised and denied, and thus were procedurally
barred from further review. (See id.) The
Supreme Court of the State of New York,
Nassau County concluded that all petitioner’s
claims were without merit. (See id. at 3.)
for State Habeas Relief
On March 2, 2017, petitioner filed a pro
se motion in Supreme Court of the State of
New York, Nassau County, again arguing for
relief under Section 440.10, or in the
alternative, for state habeas corpus relief.
(See State Habeas Corpus Pet. 3-4, ECF No.
33-11.) Petitioner again claimed that his
guilty plea was not voluntary due to his
mental illness and that his guilty plea was
coerced when his counsel informed him if he
failed to plead guilty, he would receive a
twenty-five year sentence. (See id. at 3.)
4. The Instant Petition
On March 1, 2017, petitioner moved
before this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254. (See Pet. 3-4.)5
Petitioner again claims that he is entitled to
habeas relief because his guilty plea was not
knowing and voluntary based on his mental
competence and coercive statements made by
his trial attorney. (Pet. 3.) Additionally,
petitioner contends that he received
ineffective assistance of counsel when his
attorney failed to: (1) inform the trial court
about his lack of criminal history; (2)
advocate for lesser charges because his
criminal conduct did not involve violence;
and (3) inform the trial court about the side
effects of his prescribed medication. (Pet. 34.) Further, petitioner claims that his rights
under the Equal Protection Clause of the
Fourteenth Amendment were violated
because a female individual who was
suffering from substance abuse issues and
mental illness was convicted of armed
robbery and received a jail sentence of one
year, in contrast to petitioner’s eight year
sentence. (See Pet., Ex. A 2-4.)
Additionally, petitioner claimed he was
denied effective assistance of counsel when
his attorney failed to: (1) tell the trial court
about his lack of criminal history; (2)
advocate for reduced charges because of a
lack of violence during the criminal acts; and
(3) inform the trial court about the side effects
of his prescribed medication. (See id. at 4.)
Further, petitioner stated that his rights under
the Equal Protection Clause of the Fourteenth
Amendment were violated, and he provided
an example of one female defendant with
mental illness and drug addiction who
received a lesser sentence than him for a
robbery-related conviction. (See id., Ex. A 810.)
On June 2, 2017, the Supreme Court of
the State of New York, Nassau County denied
this motion, first stating that “[u]pon review
of defendant’s second 440 motion, the Court
concludes that in sum and substance
defendant’s arguments are not appropriate for
habeas corpus relief.” (Court Order Denying
State Habeas Corpus Petition 1, ECF
No. 33-14.) The Supreme Court of the State
of New York, Nassau County found that all
of petitioner’s claims could have been raised
The Court notes that petitioner’s federal habeas corpus
petition is identical to the post-conviction motion filed
in state court on March 2, 2017.
On June 13, 2017, respondent filed a
motion to dismiss the petition, arguing that
this Court did not have jurisdiction to address
petitioner’s claims, as petitioner failed to
fully exhaust the existing state court remedies
5
5
by failing to seek leave to appeal the
Appellate Division’s denial of both Section
440.10 motions. (Resp. Motion to Dismiss
22-25, ECF No. 14.)6
and May 30, 2017.
(Resp. July 7, 2017 Letter, ECF No. 19.)7
On January 26, 2018, this Court ordered,
in pertinent part, that respondent “shall (i)
advise the Court of the status of any appeal of
the Nassau County Supreme Court’s order
dated May 30, 2017 . . . and (ii) brief the
merits of petitioner’s instant petition for a
writ of habeas corpus.” (ECF No. 25.)
On June 21, 2017, petitioner filed a
motion to dismiss respondent’s motion,
raising the same arguments contained in the
original petition for federal habeas relief and
claiming that he properly exhausted his
claims in state court by appealing to the
Appellate Division. (See Pet. Motion to
Dismiss 1-4, ECF No. 18.) Respondent filed
a response on July 7, 2017, explaining that
though petitioner claimed to have appealed to
the Appellate Division during his state court
proceedings, he did not appeal from the
Appellate Division’s denial of his postconviction motions:
In support of this claim [that
petitioner appealed to the Appellate
Division], petitioner attaches the
cover page of respondent’s brief
submitted to the Appellate Division
in opposition to petitioner’s direct
appeal from the judgment of
conviction. It appears that petitioner
has confused his judgment appeal
with an application for leave to
appeal from the denial of a postjudgment motion. In any event,
respondent has no record of petitioner
having sought leave to appeal the
[Nassau County] Supreme Court’s
decisions dated December 7, 2016,
On April 27, 2018 respondent filed its
brief in opposition to petitioner’s federal
habeas petition, including a discussion of the
merits of the habeas petition. (See Opp.) In
the opposition, respondent first contends that
all of petitioner’s claims are procedurally
barred from review because: (1) petitioner
failed to seek leave to appeal the Appellate
Division’s denial of his post-conviction
motions; (2) petitioner’s current claims were
decided by the state court on independent and
adequate state grounds; and (3) petitioner did
not provide any justification for his
procedural defaults.
(See Opp. 25-32.)
Respondent then addresses the merits of
petitioner’s claims, arguing that: (1) the “plea
court’s determination that petitioner was
competent to plead guilty and did so
knowingly, intelligently, and voluntarily was
both objectively reasonable and in accord
with clearly established federal law”; (2) that
petitioner’s various grounds of ineffective
assistance of counsel are without merit; and
(3) that petitioner’s “proposal that he was
Prior to respondent’s motion to dismiss, petitioner
submitted three documents: (1) Petitioner’s April 10,
2017 Affidavit, ECF No. 9; (2) Petitioner’s May 19,
2017 Affidavit, ECF No. 12; and (3) Petitioner’s June
9, 2017 Letter, ECF No. 16; all of which have been
reviewed by the Court. To the extent that the Court
finds information provided in these documents relevant,
it is already incorporated into the discussion of
petitioner’s habeas claims.
as explained by former counsel and he “should not have
had to keep on appealing to this Court because due
process in this case is in violation of breaking the laws
of this state and federal law of the Constitution of the
United States from the beginning stages.” (See Pet. July
17, 2017 Letter 2, ECF No. 20.) As discussed below,
this assertion does not change the Court’s determination
regarding whether petitioner’s claims are properly
before this Court.
6
7
On July 17, 2017, petitioner filed a letter with the
Court, contending that he followed the appeal process
6
somehow denied his right to equal protection
is equally baseless.” (See Opp. 32-46.) 8
II.
opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the
relevant state-court decision.” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
STANDARD OF REVIEW
To determine whether a 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:
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 principle from [the Supreme
Court’s] decisions but unreasonably applies
that principle to the facts of [a] prisoner’s
case.” Id.
(d) An application for a writ of
habeas corpus on behalf of a person
in custody pursuant to the judgment
of a State court shall not be granted
with respect to any claim that was
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim (1) resulted in a decision that was
contrary to, or involved an
unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was
based on an unreasonable
determination of the facts in light
of the evidence presented in the
State court proceeding.
AEDPA establishes a deferential standard
of review: “a federal habeas court may not
issue the writ simply because that court
concludes in its independent judgment that
the relevant state-court decisions applied
clearly established federal law erroneously or
incorrectly. Rather, that application must
also be unreasonable.” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). The Second
Circuit added that, while “[s]ome increment
of incorrectness beyond error is required …
28 U.S.C. § 2254. “Clearly established
Federal law” means “the holdings, as
8
From June 2017 through April 2018, petitioner filed
nine additional documents: (1) Petitioner’s July 17,
2017 Letter, ECF No. 20; (2) Petitioner’s August 16,
2017 Letter, ECF No. 21; (3) Petitioner’s October 23,
2017 Letter, ECF No. 22; (4) Petitioner’s Supplemental
Petition for Habeas Corpus Relief, January 16, 2018,
ECF No. 24; (5) Petitioner’s January 26, 2018 Motion
for Declaratory Judgment, Preliminary Injunction and
Temporary Restraining Order, ECF No. 26; (6)
Petitioner’s February 28, 2018 Affidavit, ECF No. 29;
(7) Petitioner’s March 12, 2018 Letter, ECF No. 30; (8)
Petitioner’s March 30, 2018 Letter, ECF No. 31; (9)
Petitioner’s April 13, 2018 Opposition to Respondent’s
Answer to Motion for Declaratory Judgment, ECF No.
32. The Court has reviewed all aforementioned
documents. To the extent that the Court finds
information provided in these documents relevant, it is
incorporated into the discussion of petitioner’s habeas
claims. Additionally, the Court notes that petitioner’s
supplemental petition for habeas corpus relief raises
identical claims as the original habeas petition, thus
these claims are all addressed and denied by the Court.
As set forth below, all of petitioner’s claims for habeas
relief are denied, rendering petitioner’s outstanding
motion for declaratory judgment moot.
7
the increment need not be great; otherwise,
habeas relief would be limited to state court
decisions so far off the mark as to suggest
judicial incompetence.” Id. (quoting Francis
S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Finally, “if the federal claim was not
adjudicated on the merits, ‘AEDPA
deference is not required, and conclusions of
law and mixed findings of fact 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)).
III.
327, 333 (2007), petitioner must fairly
present his federal constitutional claims to the
highest state court having jurisdiction over
them, see Daye v. Attorney Gen. of N.Y., 696
F.2d 186, 191 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) (quotation marks omitted) (alteration
in original)).
DISCUSSION
However, “it is not sufficient merely that
the federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
On the contrary, 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; if material factual allegations were
omitted, the state court has not had a fair
opportunity to rule on the claim.” Daye, 696
F.2d at 191-92 (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
Petitioner claims that he is entitled to
habeas relief because his guilty plea is invalid
due to his mental illness and coercive conduct
by his attorney. (See Pet. 3.) Further,
petitioner contends that he is entitled to relief
because he received ineffective assistance of
counsel when his attorney failed to: (1) tell
the trial court about his lack of criminal
history; (2) seek reduced charges because his
conduct did not involve violent acts; and (3)
inform the court about the side effects of his
prescribed medication.
(Pet. 3-4.)
Respondent argues that petitioner’s claims
are procedurally barred from federal review
and without merit. (Opp. 25-46.) For the
reasons set forth below, the Court finds that
petitioner is not entitled to habeas relief.
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.
8
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).
defaulted [on] those claims, the prisoner
generally is barred from asserting those
claims in a federal habeas proceeding.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006)
(citing Gray v. Netherland, 518 U.S. 152, 162
(1996)).
2. State Procedural
Requirements
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.
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
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).
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).
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 Grey, 933 F.2d at 120).
3. Application
The Court first considers whether
petitioner adequately exhausted his claims
regarding his guilty plea, specifically, that his
guilty plea is invalid as (1) he was not
mentally fit to enter a guilty plea, and (2) he
was coerced into entering a guilty plea by his
attorney’s conduct. (See Pet. at 3-4.)
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
Petitioner first challenged the validity of
his guilty plea on direct appeal, claiming that
9
petitioner’s
“allegations
are
based
upon…unsubstantiated allegations of fact
which are contradicted by the Court record.”
(Court Order Denying Section 440.10 Mot.
1.) Instead of seeking leave to appeal this
denial, petitioner filed another Section 440.10
motion that essentially reworded his claims
of ineffective assistance of counsel. (See
State Habeas Corpus Petition at 3-4.) The
Supreme Court of the State of New York,
Nassau County again rejected petitioner’s
ineffective assistance of counsel claims,
denying the claims as they were: (1) “not
appropriate for habeas corpus relief,” (2)
procedurally barred by the denial of
petitioner’s first Section 440.10 motion, and
(3) entirely without merit. (See Court Order
Denying State Habeas Corpus Petition 1-3.)
Petitioner did not seek leave to appeal this
denial and has now raised the identical
ineffective assistance claims in the instant
petition. (Pet. 3-4.)
it should be invalidated due to his mental
fitness and the failure of the trial court to
make inquiries into his mental health. (See
App. Div. Br. 16-24.) In petitioner’s direct
appeal, he did not pursue the theory that his
guilty plea was coerced by his attorney’s
conduct. The Appellate Division denied
petitioner’s allegations regarding his guilty
plea, finding the claims to be “unpreserved
for appellate review” and that his guilty plea
was knowing and voluntary. Washington,
134 A.D.3d at 963-64. Subsequently, the
New York State Court of Appeals denied
petitioner’s leave to appeal this decision. See
Washington, 27 N.Y.3d at 1076. Though
petitioner did not specifically attack the
voluntary and knowing nature of his guilty
plea in the first Section 440.10 motion, he did
raise issues with the validity of his guilty plea
in his combined state habeas corpus petition
and second Section 440.10 motion. (See
State Habeas Corpus Petition 3-4.) There,
petitioner made the identical arguments
contained in the instant federal habeas
petition: that his guilty plea is invalid (1) due
to his mental state at the time he entered into
the plea and (2) because it was coerced by his
attorney’s conduct. (See Pet 3-4; State
Habeas Corpus Petition 3-4.) The Supreme
Court of the State of New York, Nassau
County found that, as the Appellate Division
reviewed the guilty plea in its entirety and
deemed it voluntary, the claims were
“procedurally barred and meritless.” (See
Court Order Denying State Habeas Petition at
2-3.) Petitioner failed to seek leave to appeal
this decision.
Additionally, petitioner claims that his
rights under the Equal Protection Clause of
the Fourteenth Amendment were violated.
This claim is identically phrased in the instant
federal habeas petition and petitioner’s
combined state habeas corpus petition and
second Section 440.10 motion. (See Pet. 3-4;
State Habeas Corpus Petition 8-10.) The
Supreme Court of the State of New York,
Nassau County acknowledged this claim, but
did not address the claim in detail. (See Court
Order Denying State Habeas Corpus Petition
1-3.) Instead, the court summarily denied all
of petitioner’s claims, concluding they were
“procedurally barred and meritless.” (See id.
at 2-3.) Petitioner did not seek leave to appeal
the Supreme Court of the State of New York,
Nassau County’s decisions.
Petitioner’s ineffective assistance of
counsel claims, though not raised on direct
appeal, were raised in petitioner’s first
Section 440.10 motion. (See Section 440.10
Mot. 4.) The Supreme Court of the State of
New York, Nassau County reviewed
petitioner’s claims and denied the motion in
its entirety by summarily finding that
It is well settled that “[t]he burden of
proving exhaustion lies with the habeas
petitioner.” Cartagena v. Corcoran, No. 04CV-4329(JS), 2009 WL 1406914, at *3
10
294 (“[E]ven when a state court says that a
claim is ‘not preserved for appellate review’
but then rules ‘in any event’ on the merits,
such a claim is procedurally defaulted.”)
(quoting Glenn v. Bartlett, 98 F.3d 721, 725
(2d Cir. 1996))
(E.D.N.Y. May 19, 2009). As discussed
above, to adequately exhaust each claim, a
petitioner “must apprise the highest state
court of both the factual and the legal
premises of the federal claims ultimately
asserted in the habeas petition.” Galdamez v.
Keane, 394 F.3d 68, 73 (2d Cir. 2005). “A
petitioner may satisfy the exhaustion
requirement either through a full round of the
state’s appellate review process or through a
full round of postconviction proceedings . . .
[which] requires the use of any discretionary
appeal procedures that are an established part
of the state’s appellate or collateral review
process.” Warren v. Goord, No. 06-CV1423(RRM), 2013 WL 1310465, at *11
(E.D.N.Y. Mar. 28, 2013) (internal quotation
marks and citations omitted).
As to all remaining claims, as petitioner
failed to seek leave to appeal the denial of his
first and second Section 440.10 motions,
petitioner has not advised the highest state
court of the “factual and legal premises” of
his claims for federal habeas relief.
Galdamaz, 394 F.3d at 73; see also Anthoulis
v. New York, No. 11 Civ. 1908(BMC), 2012
WL 194978, at *3 (E.D.N.Y. Jan 23, 2012).
Therefore, these claims are not properly
exhausted. However, the district court may
“deem [a] claim exhausted” when it finds that
no available procedures remain in state court
by which a petitioner can fully exhaust his
claims. See Aparicio v. Artuz, 269 F.3d 78,
90 (2d Cir. 2001) (citing Reyes, 118 F.3d at
139). In the instant matter, the time for
petitioner to seek leave to appeal the denial of
either Section 440.10 motion has long
expired.
See N.Y. CPL § 460.10(4)(a)
(“Within thirty days after service upon the
defendant of a copy of the order sought to be
appealed, the defendant must make
application, pursuant to section 460.15, for a
certificate granting leave to appeal to the
intermediate appellate court.”) Accordingly,
“[s]ince the petitioner can no longer move
timely for permission to appeal from the
denial of his CPL § 440.10, his . . . claim[s]
[are] procedurally barred, and [are] deemed
exhausted. Rodriguez v. Ercole, No. 08 Civ.
2074(CM)(KNF), 2008 WL 4701043, at *3
(S.D.N.Y. Oct. 24, 2008); see also Thomas v.
Greiner, 111 F. Supp. 2d 271, 276-77
(S.D.N.Y. 2000)
The only claim that petitioner may have
adequately exhausted is his claim that his plea
is invalid due to his mental competence.
Liberally construing this claim, it appears to
have concluded a “full round of the state’s
appellate review process,” as it was raised on
appeal to the Appellate Division and in his
petition to the New York State Court of
Appeals. Id. However, this claim is barred
from review because the Appellate Division
relied on a firmly established procedural rule
to deny the claim. The Appellate Division
ruled that petitioner’s “contention that his
plea of guilty was not knowing and voluntary
because the plea court failed to inquire into
his mental capacity at the time of the plea
allocution is unpreserved for appellate
review.” Washington, 134 A.D.3d at 963. It
is well settled that a statement that a claim
was “unpreserved” is sufficient to establish
that the state court was relying on a
procedural bar as an independent ground in
disposing of the issue, even if the state court
also reaches the merits of the claim. See
Figueroa v. Greiner, No. 02 Civ.
5444(DAB)(GWG), 2005 WL 249001, at *8
(S.D.N.Y. Feb. 3, 2005); Green, 414 F.3d at
To overcome a procedural bar petitioner
must “demonstrate cause for the default and
actual prejudice as a result of the alleged
11
violation of federal law, or demonstrate that
failure to consider the claims will result in a
fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. Petitioner has not
provided a satisfactory explanation for his
failure to properly adjudicate federal
constitutional issues in state court, nor has
petitioner demonstrated that denying habeas
relief would result in a miscarriage of justice.
See id.
(2005)); accord Godinez v. Moran, 509 U.S.
389, 400 (1993). Normally, a guilty plea may
not be collaterally attacked because it
constitutes an admission as to all elements of
the charged crime. Salas v. United States,
139 F.3d 322, 324 (2d Cir. 1998). However,
a defendant may challenge a guilty plea on
the ground that it was not made knowingly
and voluntarily. United States v. Simmons,
164 F.3d 76, 79 (2d Cir. 1998). A conviction
that is based upon an involuntary plea of
guilty is inconsistent with due process of law
and is subject to collateral attack by federal
habeas corpus. McMann v. Richardson, 397
U.S. 759, 772 (1970).
As such, petitioner’s claims are barred
from review by this Court. However, out of
an abundance of caution, the Court proceeds
to evaluate the merits of all of petitioner’s
claims, finding them to be entirely without
merit.
“A plea is considered ‘intelligent if the
accused had the advice of counsel and
understood the consequences of his plea,
even if only in a rudimentary way,’ and it is
considered ‘voluntary if it is not the product
of actual or threatened physical harm, mental
coercion overbearing the defendant's will, or
the defendant's sheer inability to weigh his
options rationally.’” Manzullo v. New York,
No. 07 CV 744(SJF), 2010 WL 1292302, at
*5 (E.D.N.Y. Mar. 29, 2010) (quoting Miller
v. Angliker, 848 F.2d 1312, 1320 (2d Cir.
1988)). Indeed, a “plea of guilty entered by
one fully aware of the direct consequences of
the plea is voluntary in a constitutional sense
unless induced by threats, mis-representation,
or perhaps by promises that are by their
nature improper.” Bousley v. United States,
523 U.S. 614, 619 (1998) (internal alterations
and citations omitted).
C. The Merits
1. Valid Guilty Plea
Petitioner claims that his guilty plea is
invalid, as it was not knowing and voluntary
due to his mental illness and because it was
entered into as a result of coercive statements
made by trial counsel. (Pet. 3.) Having
reviewed this claim, the Court finds it
meritless.
The well-established standard for
determining the validity of a guilty plea is
“‘whether the plea represents a voluntary and
intelligent choice among the alternative
courses of action open to the defendant.’”
Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting North Carolina v. Alford, 400 U.S.
25, 31 (1970)). The Supreme Court has held
that, under the Due Process Clause, a trial
court can only accept a guilty plea which is
“done
voluntarily,
knowingly,
and
intelligently, ‘with sufficient awareness of
the relevant circumstances and likely
consequences.’” United States v. Adams, 448
F.3d 492, 497 (2d Cir. 2006) (quoting
Bradshaw v. Stumpf, 545 U.S. 175, 183
The Court has reviewed the record of
petitioner’s guilty plea and finds nothing in
the record to support petitioner’s claim that it
was invalid. Instead, the Court agrees with
the Appellate Division’s determination that
petitioner’s guilty plea was knowing and
voluntary. See Washington, 134 A.D.3d at
963-64.
12
Turning to the record of petitioner’s
guilty plea, petitioner confirmed under oath
that he understood the consequences of
entering a guilty plea, that he had not been
threatened to plead guilty, and engaged in a
detailed factual allocution. (P. 5-6, 9-12.)
The court ensured that petitioner was
competent to proceed, was in “good physical
and mental health,” had not taken any drugs
or alcohol before his plea proceedings, and
had not been “treated” or “confined to a
hospital for any mental illness.” (P. 3-4.)
Further, the fact that petitioner was found
mentally competent in an Article 730
examination was placed on the record. (P.
14.) Accordingly, the Court finds that
petitioner’s plea allocution demonstrates that
petitioner understood the proceedings and
freely entered the guilty plea.
which he pleaded guilty.
Additionally, in light of the statements
contained in the record, petitioner’s
conclusory allegations that he was coerced
into pleading guilty do not provide a basis for
habeas relief. A defendant’s self-inculpatory
“[solemn] declarations in open court carry a
strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977).
Accordingly, these statements “are generally
treated as conclusive in the face of the
defendant’s later attempt to contradict them.”
Adames v. United States, 171 F.3d 728, 732
(2d Cir. 1999) (citations omitted). Giving
weight to petitioner’s statements during his
guilty plea proceeding, the Court finds the
guilty plea valid and the state court’s
determination that the plea was knowing and
voluntary was neither contrary to, nor an
unreasonable
application
of,
clearly
established Supreme Court precedent, nor an
unreasonable determination of the facts.
Petitioner argues that his plea is invalid
because the trial court ignored submissions
from his personal physicians who found that
he suffered from mental illness, and he
attacks the validity of the Article 730
examination results that found him
competent. (Pet. 3.) Petitioner states that the
trial court “violate[d] [his] constitutional
rights by ignoring the fact[] that [he] was and
still suffers from…mental illness.” (Pet. 3.)
Though petitioner maintains that he suffers
from mental illness, “[i]t is well-established
that some degree of mental illness cannot be
equated with incompetence to stand trial.”
United States v. Vamos, 797 F.2d 1146, 1150
(2d Cir. 1986). This Court concludes that the
trial court took appropriate steps to confirm
that petitioner was mentally competent by
ordering the Article 730 examination that
confirmed he was competent to proceed, and
nothing in the record of the plea proceedings
suggests otherwise. Instead, the record of the
guilty plea indicates that petitioner
understood the proceedings in their entirety,
including the rights he forfeited by entering
the plea, as well as each of the charges to
2. Ineffective Assistance of
Counsel
Petitioner argues that he received
ineffective assistance of counsel because his
attorney failed to: (1) tell the trial court about
his limited criminal history; (2) seek reduced
charges because his crimes did not involve
violence; and (3) inform the trial court about
the side effects of his medication. (Pet. 3-4.)
For the reasons set forth below, petitioner’s
ineffective assistance of counsel claims are
without merit.
Under the standard promulgated by
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to demonstrate
two elements in order to state a successful
claim for ineffective assistance of counsel:
(1) “counsel's representation fell below an
objective standard of reasonableness,” and
(2) “there is a reasonable probability that, but
13
show that there is “a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. In
this context, “reasonable probability” means
that the errors were of a magnitude such that
they “undermine[ ] confidence in the
[proceeding's] outcome.” Pavel v. Hollins,
261 F.3d 210, 216 (2d Cir. 2001) (quoting
Strickland, 466 U.S. at 694).
“‘[T]he
question to be asked in assessing the
prejudice from counsel's errors ... is whether
there is a reasonable probability that, absent
the errors, the factfinder would have had a
reasonable doubt respecting guilt.’” Henry v.
Poole, 409 F.3d 48, 63-64 (2d Cir. 2005)
(quoting Strickland, 466 U.S. at 695). The
party alleging ineffective assistance of
counsel bears the burden of establishing both
deficient performance and prejudice. United
States v. Birkin, 366 F.3d 95, 100 (2d Cir.
2004). “In the context of a guilty plea,
Strickland’s prejudice prong requires a
defendant to demonstrate a reasonable
probability that, ‘but for counsel’s errors, he
would not have pleaded guilty and would
have insisted on going to trial.’” Munson v.
Rock, 507 F. App’x. 53, 56 (2d Cir. 2013)
(quoting Hill, 474 U.S. at 59).
for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 688, 694.
The first prong of the Strickland standard
requires a showing that counsel's
performance was deficient. However,
“[c]onstitutionally
effective
counsel
embraces a ‘wide range of professionally
competent assistance,’ and ‘counsel is
strongly presumed to have rendered adequate
assistance and made all significant decisions
in the exercise of reasonable professional
judgment.’” Greiner v. Wells, 417 F.3d 305,
319 (2d Cir. 2005) (quoting Strickland, 466
U.S. at 690). “The performance inquiry
examines the reasonableness of trial counsel's
actions under all the circumstances,” keeping
in mind that a “fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight.” Id. (quoting Rompilla v. Beard,
545 U.S. 374, 408 (2005) (O'Connor, J.,
concurring)). “In assessing performance, [a
court] must apply a ‘heavy measure of
deference to counsel's judgments.’” Id.
(quoting Strickland, 466 U.S. at 691). “A
lawyer's decision not to pursue a defense does
not constitute deficient performance if, as is
typically the case, the lawyer has reasonable
justification for the decision,” DeLuca v.
Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996),
and “‘strategic choices made after thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable,’” id. at 558 (quoting
Strickland, 466 U.S. at 690). Moreover,
“‘strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.’” Strickland,
466 U.S. at 690-91.
Assuming, arguendo, that petitioner’s
claims of ineffective assistance of counsel are
not procedurally barred, the Court agrees
with the state court that petitioner has failed
to demonstrate that counsel’s performance
was constitutionally defective. In addition,
petitioner has failed to demonstrate prejudice
resulting from the alleged deficiencies.
First, petitioner’s allegation that the trial
court was unaware of his criminal history is
not supported by the evidence in the record.
In contrast, as respondent points out, the trial
court was in possession of a Presentence
Investigation Report (“PSR”), which
contained petitioner’s criminal history, and
The second prong focuses on prejudice to
the petitioner. The petitioner is required to
14
the PSR was taken into consideration by the
court before the sentence was imposed. (See
PSR, ECF No 33-19; see also S. at 5.) This
conclusory allegation does not support a
finding of ineffective assistance of counsel
under Strickland’s first prong.
to seek reduced charges, as it was a sound
strategic decision for counsel to instead
negotiate a favorable plea disposition for
petitioner. See Hayes v. Tracy, No. 03-CV5237(SLT), 2005 WL 486912, at *6
(E.D.N.Y. Jan. 11, 2005).
With respect to petitioner’s claims that he
did not receive effective assistance because
his counsel failed to inform the trial court
about the side effects of his prescribed
medication, this Court finds this claim vague
and meritless. Petitioner does not provide
this Court guidance as to what alleged side
effects he suffered. Further, the record of the
underlying guilty plea contradicts this
assertion:
Even if the Court found that counsel had
erred in some way, petitioner has not shown
that he was prejudiced by counsel’s
representation. As set forth above, for a
petitioner to demonstrate prejudice, he “must
show that there is a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A
self-serving post-conviction statement, does
not, standing alone, establish prejudice.”
Hernandez v. Larkin, No. 12 Civ.
8090(AJN)(SN), 2013 WL 4453316, at *12
(S.D.N.Y. Aug. 19, 2013). Here, there is no
basis to believe that any motion for reduced
charges would have been successful. In
short, petitioner has failed to demonstrate any
prejudice resulting from these alleged errors
by counsel.
The Court: Do you feel in good
physical and mental health as you
stand here today?
The Defendant: Yes.
The Court: Have you taken any
alcohol or any drugs in the last
twenty-four hours?
Accordingly, as petitioner cannot satisfy
either of Strickland’s prongs, his ineffective
assistance of counsel claims must be denied.
The Defendant: No.
(P. at 4.)
3. Equal Protection
Finally, considering petitioner’s claim
that counsel was constitutionally ineffective
by failing to move for reduced charges
because petitioner’s conduct did not involve
violent acts, the Court finds that petitioner has
not established that his counsel erred.
“[S]trategic choices of trial counsel are
virtually unchallengeable in habeas corpus
proceedings.” Bonneau v. Scully, 86 Civ.
270(CSH), 1991 WL 90739, at *1 (S.D.N.Y.
May 23, 1991), aff’d, 956 F.2d 1160 (2d Cir.
1992) (internal quotation marks and citations
omitted). Considering the totality of the
circumstances, counsel did not err by failing
Petitioner claims that his sentence,
violates the Equal Protection Clause of the
Fourteenth Amendment. As the basis of this
claim, petitioner provides an example of one
female defendant convicted of armed robbery
who had mental illness and substance abuse
issues, and who received a lesser sentence
than petitioner. Liberally construing this
claim, it appears petitioner is arguing that a
similarly situated individual received a lesser
sentence based on gender. The Court finds
this claim to be without merit.
15
CONCLUSION
In the instant matter, petitioner was facing
four charges of Robbery in the First Degree,
Class "B" violent felonies, each carrying a
potential term of twenty-five years'
imprisonment. See N.Y. Penal Law §
70.02(1)(a), (3)(a). Ultimately, petitioner
was sentenced to eight years' imprisonment,
a term considerably lower than what is
permitted by statute.
United States District Judge
Dated: November 20, 2018
Central Islip, New York
It is well-established that "[n]o federal
constitutional issue is presented where, as
here, the sentence is within the range
prescribed by law." White v. Keane, 969 F.2d
1381, 1383 (2d Cir. 1992); McCalvin v.
Senkowski, 160 F. Supp. 2d 586, 589
(S.D.N.Y. 2001) ("Sentencing decisions are
not cognizable on habeas corpus review
unless the sentence imposed falls outside the
range prescribed by state law.").
Additionally, petitioner has failed to provide
a showing of gender-based differences in jail
sentences. Petitioner only provides a single
reference to a female defendant who received
a lesser sentence than he did. Therefore,
because petitioner has not set forth a plausible
Equal Protection claim and his sentence does
not exceed what is permissible by law, he has
not demonstrated that he is entitled to relief.
III.
* * *
Petitioner is proceeding pro se,
Washington Correctional Facility, Box 180,
72 Lock 11 Lane, Comstock, NY 12821.
Respondent is represented by Ilisa T.
Fleischer, Judith R. Sternberg, Nassau
County District Attorney's Office, 262 Old
Country Road, Mineola, NY 11501 and
Daniel Stephen Bresnahan, Queens County
District Attorney's Office, 125-01 Queens
Boulevard, Kew Gardens, NY 11415.
For the foregoing reasons, this Court finds
that the petitioner has demonstrated no basis
for habeas relief under 28 U.S.C. § 2254.
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). The Clerk of the Court shall
close this case.
16
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