Raymond v. People of State of New York
Filing
9
MEMORANDUM AND OPINION. For the reasons set forth herein, 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 Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appe al from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any 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 1/11/2019. (Allen, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-6383 (JFB)
_____________________
CARL RAYMOND,
Petitioner,
VERSUS
THE PEOPLE OF
THE STATE OF NEW YORK,
Respondent.
___________________
MEMORANDUM AND ORDER
January 11, 2019
____________________
JOSEPH F. BIANCO, District Judge:
Carl Raymond (hereinafter “petitioner”
or “Raymond”) petitions this Court for a writ
of habeas corpus, pursuant to 28 U.S.C. §
2254, challenging his conviction in New
York State court. On January 18, 2013,
petitioner pled guilty to Assault in the First
Degree, in violation of New York Penal Law
§120.10(1), a Class “B” felony. Petitioner
was thereafter sentenced to a determinate
sentence of imprisonment of seven years,
with three years’ post-release supervision.
plea; and (3) he is actually innocent. For the
reasons discussed below, petitioner’s request
for a writ of habeas corpus is denied in its
entirety.
In the instant habeas corpus action,
petitioner challenges his conviction as
unconstitutional on the following grounds:
(1) he was denied effective assistance of
counsel; (2) he lacked competency to take a
According to respondent, on or about
November 1, 2009, in Hempstead, New
York, petitioner was riding in the backseat of
a rental car driven by petitioner’s girlfriend
and victim, Santelli. (Resp’t Affidavit in
I. BACKGROUND AND PROCEDURAL
HISTORY
A. Background
The following facts are adduced from the
instant petition and underlying record.
Opposition, ECF No. 7, at ¶ 5.)1 A third
individual named Hannah Matos (hereinafter
“Matos”) was riding in the front passenger
seat. (Id.) After an argument between
petitioner and the victim, petitioner, from the
back seat of the car, reached over the driver’s
seat and choked the victim. (Id.) Petitioner
then placed a knife to the victim’s throat and
demanded Matos get out of the vehicle. (Id.)
Once Matos exited the vehicle, petitioner
slashed the victim’s face with a knife. (Id.)
While trying to protect herself, the victim
placed her hands over her face which resulted
in numerous stab wounds to her hands. (Id.)
Additionally, petitioner stabbed the victim
deeply in her thigh. (Id.) The victim got out
of the car and petitioner got into the driver’s
seat and drove away with the victim’s purse,
wallet and phone. (Id.) From outside the
vehicle, Matos witnessed these events. (Id. at
¶ 6.) As a result of the attack, the victim
suffered numerous slash and stab wounds to
her face, hands, elbow, and right thigh which
resulted in scarring and follow-on physical
therapy. (Id.)
to blame him by repeatedly stabbing herself.
(Id. at ¶ 8.)
Petitioner was charged in an indictment
with, inter alia, two counts of assault in the
first degree, and two counts of assault in the
second degree. (Id. ¶ 9.) After a competency
exam and two commitments to the MidHudson Psychiatric Facility, petitioner was
found competent to stand trial. (Id. ¶ 10.)
On January 18, 2013, petitioner pled
guilty in Nassau County Supreme Court, to
Assault in the First Degree, a Class “B”
felony. (P. at 6.) 2 At that plea proceeding,
petitioner first stated that he had spoken to his
lawyer about pleading guilty, and that
petitioner was satisfied with his counsel’s
representation in the case. (Id. at 4.) As to the
factual basis for the plea, petitioner
acknowledged that he cut the victim in the ear
with a sharp object, and that the cut extended
down her cheek. (Id. at 5-6.) The court fully
explained to petitioner the nature of the
charges against him and of the rights he was
waiving by pleading guilty, including his
right to appeal. (Id. at 5-8.). The court
confirmed that his waiver of the right to
appeal was voluntary. (Id. at 8.). Petitioner
was also advised by the court of the potential
penalties that he faced, including the fact that
the determinate sentence of imprisonment
would be followed by a period of post-release
supervision of three years. (Id. at 8-9.) The
court then explained the conditions of that
post-release supervision, with petitioner
stating that he understood. (Id. at 9.) After
confirming that petitioner had not been
While the victim was being taken to the
hospital, a Nassau County police detective
interviewed Matos about petitioner’s attack.
(Id. at ¶ 7.) Matos identified the petitioner
from a photo pack and recounted a version of
events that was substantially similar to that
recounted by the victim. (Id.) The petitioner,
after the attack, sought treatment for his
lacerated left pinky finger and then went to
the Hempstead Police Department, where he
filed a report claiming, among other things,
that the victim had attacked him and sought
June 7, 2013 transcript of petitioner’s sentencing
proceeding. (ECF No. 7-4.) Numbers in parentheses
preceded by “H.” refer to pages in the September 10,
2010 transcript of petitioner’s pre-trial hearing. (ECF
No. 7-1.)
1
The Court uses the pagination assigned by the
electronic case filing system.
2
Numbers in parentheses preceded by “P.” refer to
pages in the January 18, 2013 transcript of petitioner’s
guilty plea proceeding. (ECF No. 7-3.) Numbers in
parentheses preceded by “S.” refer to the pages in the
2
pressured in any way, the trial court accepted
his plea. (Id. at 10.)
inquire into his mental competency despite
his two prior commitments to mental-health
facilities; and (2) the court failed to inform
petitioner of the post-release supervision
component of his plea before he made factual
admissions of guilt and waived his right to
appeal. (ECF No. 7-5.) On August 13, 2016,
petitioner moved for permission to file a pro
se supplemental brief. (ECF No. 7-7.) The
Second Department granted petitioner’s
request on November 17, 2016. (ECF No. 79.) However, petitioner never filed a pro se
supplemental brief and, therefore, the Second
Department recalled and vacated its decision
granting petitioner permission to file on
January 11, 2017. (ECF No. 7-10.) On May
3, 2017, the Second Department unanimously
affirmed the trial court’s judgment of
conviction and sentence, finding petitioner’s
contentions were unpreserved and without
merit. People v. Raymond, 51 N.Y.S.3d 428,
(2d Dep’t 2017). The New York Court of
Appeals thereafter denied petitioner leave to
appeal. People v. Raymond, 29 N.Y.3d 1094
(2017).
Petitioner was sentenced on June 7, 2013.
(S. at 1.) Prior to sentencing petitioner, the
court first inquired about petitioner’s current
competency issues to which petitioner’s
counsel responded, “There is no issue, that’s
correct. He’s been found competent. We’re
not raising that.” (Id. at 3.)
After defense counsel asserted (as a
mitigating factor for sentencing) that
petitioner had defensive wounds on his hand,
the court asked whether petitioner’s counsel
had discussed with petitioner the issue of
self-defense. (Id. at 4.) Petitioner’s counsel
said:
Yes, I did. Absolutely. And, as well
as the issues of the psychiatric
defense and potential allegations of
an affirmative defense of mental
defect. We have gone through this. I
had extensive conversations with him
on it and based upon the evidence, the
strength of the evidence as well, he’s
made a decision to enter a plea of
guilty.
2. Section 440 Motions
On April 19, 2016, petitioner filed a pro
se motion in Supreme Court, Nassau County
to vacate his judgment of conviction under
New York Civil Procedure Law (“CPL”) §§
440.10 and 440.20 (“Section 440”). (ECF 716.) In his motion, petitioner claimed the
following: (1) his plea was invalid because
the sentencing court failed to advise him of
the post-release supervision; and (2) based on
jail-time calculations, petitioner had not been
credited with all the time he spent in Nassau
County Correctional Center. (Id at 2.)
(Id.) After being offered the opportunity to
be heard, petitioner declined. (Id. at 5.)
Finally, the court sentenced petitioner to the
bargained-for sentence of a determinate term
of seven years’ imprisonment with three
years of post-release supervision. (Id.)
B. Procedural History
1. Direct Appeal
Petitioner appealed to the Second
Department of the New York State Appellate
Division on or about July 23, 2016 raising
two claims of error: (1) petitioner’s plea was
involuntary because the trial court failed to
On June 16, 2016, the court denied
petitioner’s Section 440 motion, finding
petitioner’s first claim meritless because
3
“[d]uring the plea colloquy, the Court
advised the defendant that the promised
sentence included a term of three years’ postrelease supervision, explained in detail what
post-release supervision involved; and
ascertained that the defendant understood all
of this.” (ECF No. 7-17 at 1.) Further,
petitioner’s claim could not be “considered in
a post-judgment motion in any event, since
sufficient facts appear on the record to have
permitted adequate review of the claim on
direct appeal.” (Id.) As to petitioner’s
second claim, the court held that jail-time
calculation credit “is not a ground for either
vacating judgment or setting aside sentence.”
(Id.)
explain how any inaccuracy in the transcript
implicates the validity of his plea.” (Id. at 1.)
The court further found that petitioner’s
references to possible defenses, actual
innocence, and his competency to plead
guilty “are not only unsupported, but entirely
unexplained.” (Id. at n. 2.)
On January 6, 2017, petitioner filed a
third pro se Section 440 motion in Nassau
County Supreme Court to vacate his
judgment of conviction and for the
assignment of counsel. (ECF No. 7-24.) In
this motion, petitioner claimed a lack of
competency to take a plea due to a severe
mental health illness diagnosis and alleged
current mental health issues. (Id. at 2.)
Petitioner also stated that “[he] will be unable
to prosecute this action unless permitted to do
so as a poor person” due to his current mental
health issues. (Id.)
On July 22, 2016, petitioner, pro se,
moved to appeal from the denial of his
Section 440 motion and further moved to
consolidate the denial of the Section 440
motion into his direct appeal. (ECF No. 718.) Petitioner subsequently withdrew his
motion to appeal his Section 440 motion.
However, no decision or order regarding
petitioner’s withdrawal was entered and the
Section 440 motion was never considered by
the Second Department. (ECF No. 7 at 1314.)
On January 19, 2017, the court denied
petitioner’s third Section 440 motion,
explaining the following:
[T]he defendant’s competency issues
were well-known to the attorneys and
the Court during the pendency of his
case. His counsel considered raising
a psychiatric defense, and the
defendant
was
consequently
examined for that purpose by a
forensic psychiatrist. At one point,
the defendant was found to be
incompetent to proceed to trial and
was committed to the State
Commissioner of Mental Health for
treatment. After treatment, he was
found mentally competent by his
mental-health treatment providers,
and, after CPL art[.] 730 proceedings,
was found fit to proceed by this
Court. Just one week after that, he
On September 14, 2016, petitioner filed a
second pro se motion in Nassau County
Supreme Court to vacate his conviction under
CPL § 440.10. (ECF No. 7-23 at n.1.) In this
motion, petitioner alleged his plea transcript
was not accurate and “alludes to possible
defenses, actual innocence, and his
competency to plead guilty.” (Id. at n. 2, 3.)
The trial court denied petitioner’s second
Section 440 motion on September 16, 2016,
stating that petitioner “offers no support” that
the transcript of his plea proceeding is not
accurate, and, “more importantly, does not
4
The trial court denied petitioner’s fourth
Section 440 motion on October 2, 2017.
(ECF No. 7-32.) The trial court found
petitioner’s motion for the assignment of
counsel failed to establish that he was “not
engaging in repetitious litigiousness of the
same or specious issues.” (Id. at 3.) As to
petitioner’s claim that he was not mentally
competent to take a plea, this “was resolved
in the trial court and on appeal.” (Id.)
pled guilty. And, of course, the Court
was well aware of the defendant’s
mental-health history when it found
his guilty plea to be knowing,
intelligent, and voluntary.
(ECF No. 7-25 at 1-2.) The court further
explained that, “[a]s to [petitioner’s] claim
that he is not sufficiently mentally competent
now to litigate a CPL 440.10 motion, the
Court notes that, since his conviction, the
defendant has filed two CPL art. 440 motions
and eight other post-judgment motions, all
pro se. The most recent of these motions was
filed only four months ago.” (Id. at 2.)
Moreover, the court emphasized, “[b]ased on
his history of motion practice – and, indeed,
on his current letter application for assigned
counsel – the Court has no doubt that the
defendant is capable of identifying and
setting out any prospective CPL 440.10 claim
in sufficient detail to permit the Court to
evaluate it for the purpose of determining
whether assignment of counsel is warranted.”
(Id.)
On October 27, 2017, petitioner filed a
fifth pro se motion in Nassau County
Supreme Court to vacate his judgment of
conviction under CPL § 440.10. (ECF No. 730.) In his motion, petitioner alleged “by
reason of mental disease or mental defect
[petitioner] was incapable of understanding
or participating in the proceedings.” (Id. at
4.) Additionally, petitioner brought two new
allegations for the first time. First, petitioner
claimed that “the [j]udgment was procured
by duress” as he “was lock[ed] in a cell for 22
hours a day for three years or more than 730
days”, while also being starved for a “long
period before taking the plea.” (Id.) Second,
petitioner claimed that he was denied the
effective assistance of legal counsel because
“[d]efense counsel lied to court about
discussing [the] issue of self defense to
defendant and was forced to take a plea.”
(Id.) Once again, petitioner requested the
assignment for counsel to assist in the Section
440 motion. (Id. at 5.)
On February 10, 2017, petitioner, pro se,
moved to appeal the denial of his third
Section 440 motion. (ECF No. 7 at 15.) On
June 16, 2017, the Second Department
denied petitioner’s motion as “neither
appealable as of right nor by permission.”
(ECF No. 7-28.)
On September 23, 2017, petitioner filed a
fourth pro se motion in Nassau County
Supreme Court to vacate his judgment of
conviction under CPL § 440.10. (ECF No.729.) Petitioner alleged that he lacked the
mental competency to plead guilty and again
alleged current mental health issues, while
requesting assignment of counsel. (Id. at 2.)
On December 7, 2017, the court denied
petitioner’s fifth Section 440 motion. (ECF
No. 7-32.) The court stated that “defendant’s
application relating purportedly to him not
being mentally fit to plead guilty was
addressed both by this Court in its previous
decision and by the Appellate Division on the
appeal from judgment and found to be
5
meritless.” (Id. at 1.) As to petitioner’s claim
that the judgment was procured by duress, the
court stated that this “conclusory allegation,
raised now for the first time, years after his
plea, sentence, appeal, and prior CPL 440
application, is plainly an incredible attempt to
find some reason to vacate his conviction.”
(Id. at 2.) With regards to petitioner’s claim
of ineffective assistance of counsel, the court
stated, “On its face, the allegation is again
conclusory, unsupported by any explanation
of what the advice was, or by an affidavit of
his attorney as to what the advice was or an
explanation of why one could not be
obtained.” (Id.) The court further noted:
“return many of [petitioner’s] phone calls and
written correspondence;” and (3) choosing to
raise “issues that [have not] me[t] the
preservation requirement.” (ECF No. 7-20.)
The Appellate Division, Second
Department, denied petitioner’s writ of error
coram nobis, concluding petitioner “failed to
establish that he was denied the effective
assistance of appellate counsel.” (ECF No.
7-22.)
4. The Instant Petition
On October 26, 2017, petitioner, pro se,
moved before this Court for a writ of habeas
corpus, under 28 U.S.C. § 2254, on the
following grounds: (1) petitioner was denied
effective assistance of counsel because (a)
counsel failed to address the potential selfdefense justification; (b) counsel failed to
properly advise petitioner whether to take a
plea or go to trial and (c) counsel refused to
go to trial because he did not receive adequate
compensation; and (2) petitioner lacked
competency to take a plea. (Pet., ECF No. 1)
Petitioner also sent a supplemental letter to
the Court on December 15, 2017. (ECF No.
6.) In that letter, petitioner claimed that
Matos, the passenger witness, had a “sharp
object” which he observed prior to leaving
the scene. (Id. at 1.) Petitioner also attached
news articles and a Commonwealth of
Pennsylvania opinion detailing a domestic
violence incident involving an individual
named “Matos,” and asserts it is the same
individual who was the witness in the instant
case. (Id.) Petitioner does not specifically
request the December 15, 2017 letter be
considered as an addition to his habeas
corpus petition. However, in an abundance
of caution, this Court has fully considered
this supplemental submission, which the
Court liberally construes as a claim of actual
[T]here is nothing in the plea and
sentence record to support the
allegation; on the contrary, the
defendant’s correction of the court
during the plea colloquy that he only
sliced his female victim from her ear
to her cheek (which scared her) and
no other place did not suggest
coercion or self-defense.”
(Id.) The court incorporated its October 2,
2017 decision, stating that “to the extent the
same issues are raised they are denied for the
same reasons as previously stated, as well as
for the procedural default attending their
unjustified repetition.” (Id. at 1.)
3. Motion for a Writ of Error Coram
Nobis
On May 6, 2017, petitioner, pro se, filed
a writ of error coram nobis, arguing that his
appellate counsel was ineffective for the
following reasons: (1) counsel did not
include “many of the issues [petitioner]
instruct[ed] [his] appella[te] [counsel] to
raise[,] like ineffective assistance of
counsel;” (2) failing to “communicat[e]” and
6
innocence. Respondent filed a memorandum
of law opposing the petitioner’s application
on February 6, 2018, arguing petitioner’s
claims of ineffective assistance of counsel
and actual innocence are unexhausted and
that all his claims are meritless. (ECF No. 7.)
Petitioner did not file a reply brief, but did
submit another letter to the Court, dated
October 10, 2018, arguing that there was
falsification of evidence in the grand jury
regarding his mental illness. (ECF No. 8.)
The Court has fully considered the parties’
submissions, as well as the underlying
record.
of the evidence presented by the
State court proceedings.
28 U.S.C. § 2552. “Clearly established
Federal law” is comprised of “the holdings,
as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the
relevant state-court decision.” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
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.
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
(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
7
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)).
United States Supreme Court to exhaust his
claims, see Lawrence v. Florida, 549 U.S.
327, 333 (2007), petitioner must fairly
present his federal constitutional claims to
the highest state court having jurisdiction
over them. See Daye v. Att’y 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
the 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)
(alternation in original)).
II. DISCUSSION
Petitioner argues that he is entitled to
habeas relief on three grounds: (1) he was
denied effective assistance of counsel; (2) he
lacked competency to take a plea; and (3) he
is actually innocent. (Pet. at 5-6; ECF No. 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.
On the contrary, to provide the State with the
necessary “opportunity,” the prisoner must
“fairly present” his claim 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
(holding that if a habeas petitioner claims that
a state court trial denied him a constitutional
right, “he must say so, not only in federal
court, but in state court.”) “A petitioner has
‘fairly presented’ his claim only if he has
‘informed the state court of both the factual
and the 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
Respondent argues that petitioner’s
claims that he was denied effective assistance
of counsel and that he is actually innocent are
unexhausted and, in any event, without
factual support and contrary to defendant’s
knowing and voluntary admissions at his plea
proceeding. (ECF No. 7 at 20.) Additionally,
respondent argues that petitioner’s claim that
he lacked competency to take a plea is
meritless. (Id. at 21.)
As explained below, the Court concludes
that petitioner’s claims of ineffective
assistant of counsel and actual innocence are
unexhausted, and in any event, are without
merit. The Court further concludes that,
petitioner’s claim that his guilty plea was not
knowing, voluntary, or intelligent due to a
lack of competency is also without merit.
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
8
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 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).
the denial of his fifth motion.
Thus,
petitioner did not “fairly present” this claim
to the highest state court having jurisdiction.
See Galarza v. Keane, 252 F.3d 630, 638 (2d
Cir. 2001) (quoting Daye, 696 F.2d at 191 n.
3; see also Safran v. Dep’t of Corr. & Cmty.
Supervision, 12-CV-4160 (PKC), 2014 U.S.
Dist. LEXIS 60228, at *24 (E.D.N.Y. Apr.
30, 2014) (failing to seek leave to appeal the
denial of a Section 440 motion renders claim
unexhausted.).
2. Application
With regards to petitioner’s remaining
arguments concerning ineffective assistance
of counsel and his claim of actual innocence,
petitioner first mentions these issues in his
petition for a writ of habeas corpus before this
Court and, therefore, has failed to “fairly
present” his claim 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, 526 U.S. at 845; see also
Duncan, 513 U.S. at 365-66; Bowyer v.
Griffen, No. 13-CV-00164S(F), 2017 U.S.
Dist. LEXIS 19525, at *26 (W.D.N.Y. Feb.
9, 2017) (failure to include actual innocence
claim in applying for leave to appeal to
Appellate Division from denial of Section
440 motion renders claim unexhausted.).
Petitioner raises three grounds to support
his ineffective assistance of counsel claim:
(1) that counsel failed to address the potential
self-defense justification; (2) counsel failed
to properly advise petitioner whether to take
a plea or go to trial and (3) counsel refused to
go to trial because he did not receive adequate
compensation. (Pet. at 5.) Respondent argues
that petitioner’s claims of ineffective
assistance of counsel and of actual innocence
are unexhausted. The Court agrees.
Petitioner’s
claim
of
ineffective
assistance of counsel is based on counsel’s
alleged failure to advise him of a self-defense
justification.
This rationale was first
mentioned in his fifth Section 440 motion,
dated October 27, 2017. (ECF No. 7-30.)
The county court denied petitioner’s claim
because “[o]n its face, the allegation is again
conclusory, unsupported by any explanation
of what the advice was, or by an affidavit of
his attorney as to what the advice was or an
explanation of why one could not be
obtained.” (ECF No. 7-32.) Further, the
court noted during the plea, “defendant’s
correction of the court … that he only sliced
his female victim from ear to her cheek … did
not suggest coercion or self-defense.” (Id.)
Petitioner did not seek leave to appeal from
Petitioner has provided no explanation
for his failure to properly exhaust these
claims in state court and, therefore, they are
deemed unexhausted. As such, petitioner’s
claims are barred from review by this Court.3
However, in an abundance of caution, the
Court proceeds to evaluate the merits of all of
petitioner’s claims and, for the reasons
3
Even assuming arguendo that petitioner has now
procedurally defaulted on these claims in state court
by failing to raise them previously, he has not
demonstrated “cause and prejudice,” nor has he shown
a fundamental miscarriage of justice (such as actual
innocence) for the reasons discussed infra. See
Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir. 2006).
9
discussed below, finds each of them to be
without merit.
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 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. at 319 (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); see also Premo v. Moore, 562
U.S. 115, 126 (2011) (“In applying and
defining this standard substantial deference
must be accorded to counsel's judgment.”).
“A lawyer’s decision not to pursue a defense
does not constitute deficient performance if,
as is typically the case, the lawyer has a
reasonable justification for the decision,”
DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir.
1996), and “strategic choices made after
thorough investigation of law and facts
relevant to plausible options are virtually
unchallengeable.” Id. at 588 (citing
Strickland, 466 U.S. at 690-91). Moreover,
“strategic choices made after less than
complete investigation are reasonable
precisely to the extent that reasonable
professional
judgments
support
the
limitations on investigation.” Id. (quoting
Strickland, 466 U.S. at 690-91).
B. The Merits
1. Ineffective Assistance of Trial
Counsel
Notwithstanding
that
petitioner’s
ineffective counsel claim is unexhausted, the
Court nonetheless proceeds to analyze the
claim’s merits. Petitioner argues that he was
denied the effective assistance of trial
counsel on the following grounds: (1)
counsel failed to address the potential selfdefense justification and lied to the court
about same; (2) counsel failed to properly
advise petitioner whether to take a plea or go
to trial; and (3) counsel refused to go to trial
because he did not receive adequate
compensation. (Pet. at 5.) As set forth
below, having reviewed the record, the Court
concludes that petitioner has failed to
demonstrate that his counsel was ineffective
in any way.
a. Standard
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
for counsel’s unprofessional errors, the result
of the proceeding would have been
different.” Id. at 688, 694.
The second prong focuses on prejudice to
the petitioner. The petitioner is required to
show that there is “a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. 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
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
10
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).
b. Application
As noted, petitioner asserts that his
counsel failed to inform him about the selfdefense justification defense and was not
truthful. (Pet. at 5.) However, petitioner
supplies no support for this conclusory
assertion, and the record is contrary to this
claim. (Id.) In particular, during the
sentencing, the court asked petitioner’s trial
counsel whether he had discussed the defense
of self-justification and counsel responded, “I
had extensive conversations with him on [the
self-defense justification, psychiatric defense
and affirmative defense of mental defect] and
based upon the evidence, the strength of the
evidence as well, he’s made a decision to
enter a plea of guilty.” (S. at 4.) (emphasis
added.) Petitioner did not contradict this
statement on the record by counsel, and there
is no basis in the record to conclude that his
counsel was not truthful in making this
statement to the court. (Id.) Therefore, this
claim fails to satisfy the first prong of
Strickland.
In the context of a guilty plea, in order to
satisfy the “prejudice” prong, “the
[petitioner] must show that there is a
reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill,
474 U.S. at 59.
Petitioner additionally contends that his
counsel was deficient for failing to properly
advise him whether to take a plea or go to
trial. (Pet. at 5.) However, based upon the
record before this Court, it was not
objectively unreasonable for petitioner’s trial
counsel to advise petitioner to plead guilty to
first degree assault instead of going to trial.
If petitioner had gone to trial and been
convicted, he would have faced up to twentyfive years in prison. See NY C.L.S. Penal §
70.00 (2)(b). Instead, counsel was able to
negotiate a plea under which the petitioner
would receive no more than eight years’
imprisonment and could receive as little as
seven years’ imprisonment. (P. at 8-9.)
Given the evidence regarding the crime, and
the highly favorable plea deal, petitioner has
pointed to nothing in the record to suggest
that counsel’s advice regarding the guilty
plea was deficient in any way.
“In evaluating the prejudice suffered by a
petitioner as a result of counsel’s deficient
performance, the court looks to the
‘cumulative weight of error’ in order to
determine whether the prejudice ‘reache[s]
the constitutional threshold.’” Sommerville
v. Conway, 281 F. Supp. 2d 515, 519
(E.D.N.Y. 2003) (quoting Lindstadt v.
Keane, 239 F.3d 191, 202 (2d. Cir. 2001)).
“In cases where a defendant complains that
ineffective assistance led him to accept a plea
offer as opposed to proceeding to trial, the
defendant will have to show 'a reasonable
probability that, but for counsel's errors, he
would not have pleaded guilty and would
have insisted on going to trial.’” Missouri v.
Frye, 566 U.S. 134, 148 (2012) (quoting Hill
474 U.S. at 59).
11
the victim “got out of the car, and it was then
that Miss Matos realized that her friend had
been cut and was bleeding.” (H. at 8.) Matos
told Detective Rogan petitioner’s name and,
upon review of the photographic array,
immediately identified the petitioner, stating,
“[t]hat’s the person that was in the back seat
of the car with us.” (Id. at 9-12.) Matos told
Detective Rogan that “[s]he believed that
[petitioner] was the one that had cut her
friend.” (Id. at 12.) After speaking with the
victim, Detective Rogan testified that her
story was similar to Matos’s version of
events, and the victim indicated that
petitioner was her attacker. (Id. at 19-20.)
Petitioner spoke to Detective Rogan on the
telephone and mentioned that Santelli, the
victim, had a cut on her hand and her thigh.
(Id. at 18.)
Petitioner also argues that his trial
counsel was ineffective because his counsel
refused to go to trial because he did not
receive adequate compensation (Pet. at 5.)
This conclusory claim has no evidentiary
support. At no time during the plea hearing
did petitioner inform the trial court that his
counsel refused to go to trial because of a lack
of compensation. Critically, petitioner, under
oath, stated during the plea hearing that he
was “satisfied with the services of [his]
lawyer.” (P. at 4.); see Hayes v. Tracy, No.
03CV5237(SLT), 2005 WL 486912 at *6
(finding that petitioner’s statements, under
oath, that he was satisfied with representation
undermined his ineffective assistance
claims). Further, petitioner stated no one
“ha[d] threatened or forced [him] or
pressured [him] to plead guilty against [his]
will” and neither the court nor his lawyer
“said anything to [him] to have [him] plead
guilty against [his] will[.]” (P. at 9-10.)
Moreover, the Court notes that petitioner
failed to raise this claim in any of his many
post-judgment motions; rather, it appears for
the first time in this petition. In sum,
petitioner’s claim fails under the Strickland’s
first prong in that he has not shown the
requisite deficiency in trial counsel.
Given the advantageous nature of the plea
and the evidence regarding the case, as well
as the weakness of petitioner’s purported
defense, the Court is unpersuaded that
petitioner would have gone to trial absent
these alleged errors. See Hayes, 2005 WL
486912, at *6 (E.D.N.Y. Jan. 11, 2005)
(There was no “reasonable probability that
Petitioner would not have taken the plea
agreement . . . .” ). In short, based upon the
record, petitioner has failed to demonstrate
with “reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Petitioner’s failure to show deficient
performance disposes of his ineffective
assistance claim. However, under the second
prong of Strickland, petitioner also has failed
to meet his burden. In other words, even if
petitioner could establish that counsel erred,
the Court also finds that any alleged
deficiencies in representation did not result in
prejudice to petitioner’s case.
In sum, petitioner is unable to satisfy
either of Strickland’s prongs, and as such, his
ineffective assistance of counsel claims are
without merit. Accordingly, petitioner’s
request for habeas relief on these grounds is
denied.
A review of the record reveals that the
evidence against petitioner was extremely
strong. Detective Edward Rogan of the Fifth
Squad, Nassau County Police testified on
September 10, 2010 that during an interview
with Matos, she told him “a struggle . . .
ensued within the car” and both Matos and
2. Competency to Take a Plea
Petitioner additionally claims that his
guilty plea was not knowing, voluntary or
intelligent because he was not competent to
12
take a plea. (Pet. at 6.) As set forth below,
the Court concludes that this claim is without
merit.
voluntariness of the plea depends upon
whether counsel’s advice was within the
range of competence demanded of attorneys
in criminal cases. Id. (citations omitted.) As
discussed supra, the Court determines that
trial counsel’s advice was well within the
range of competence demanded by attorneys
in criminal cases. Furthermore, the Court,
after examining the circumstances of
petitioner’s guilty plea, concludes that his
plea was done knowingly, intelligently, and
voluntarily.
a. Standard
As a threshold matter, to the extent
petitioner’s claims do not relate to the
validity of his guilty plea, but are attacks on
antecedent constitutional violations, federal
habeas relief is precluded. A petitioner who
pleads guilty forfeits the right to argue issues
collateral to the guilty plea. “State law treats
a guilty plea as ‘a break in the chain of events
[that] preceded it in the criminal process.’”
Haring v. Prosise, 462 U.S. 306, 321 (1983)
(quoting Tollett v. Henderson, 411 U.S. 258,
267 (1973)). Accordingly, a guilty plea
“conclusively resolves the question of factual
guilt supporting the conviction, thereby
rendering any antecedent constitutional
violation bearing on factual guilt a nonissue.” United States v. Gregg, 463 F.3d 160,
164 (2d Cir. 2006). Once a defendant has
admitted guilt, “he may not thereafter raise
independent claims relating to the
deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.”
Tollett, 411 U.S. at 267. As such, “‘[t]he only
proper focus of a federal habeas inquiry in
such a situation is the voluntary and
intelligent character of the guilty plea.’”
Amparo v. Henderson, No. CV-86-4310,
1989 WL 126831, at *2 (E.D.N.Y. Oct. 18,
1989) (quoting Isaraphanich v. United
States, 632 F. Supp. 1531, 1533 (S.D.N.Y.
1986)).
The Supreme Court has held that, under
the Due Process Clause of the United States
Constitution, 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, 488 F.3d 492, 497 (2d Cir. 2006)
(quoting Bradshaw v. Stumpf, 545 U.S. 175,
183 (2005)). Normally, a guilty plea may not
be collaterally attacked, since it constitutes an
admission 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 grounds
that it was not knowing and voluntary.
United States v. Simmons, 164 F.3d 76, 79
(2d Cir. 1998). A conviction which 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).
“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 fairly 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. People of New York, No. 07 CV
In evaluating the validity of a guilty plea,
the well-established standard is for the court
to look at “whether the plea represents a
voluntary and intelligent choice among the
alternative courses of action open to the
defendant.” Hill, 474 U.S. at 56 (1985)
(quoting North Carolina v. Alford, 400 U.S.
25, 31 (1970)). Where a defendant is
represented by counsel at the plea, and enters
the plea upon the advice of counsel, the
13
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)) (internal quotations omitted). 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, misrepresentations, or
perhaps by promises that are by their nature
improper.’” Morales v. United States, No. 08
Civ. 3901, 2009 WL 3353064, at *5
(S.D.N.Y. Oct. 20, 2009) (quoting Bousley v.
United States, 523 U.S. 614, 619 (1998)
(internal quotations omitted.)).
support his assertion that his plea was not
knowing, intelligent, and voluntary. Just one
week before his plea, petitioner was deemed
competent. (ECF No. 7-25.) Petitioner was
fully advised at the time of his plea of the
nature of the charges and the effect of a guilty
plea. At the outset of the plea proceedings,
the court advised petitioner that he should
speak with his attorney if there was anything
that he did not understand and that the court
would also answer any questions that
petitioner might have. (P. at 4.) Petitioner
specifically informed the court that he had
time to speak with his attorney about his case
and consequences of a guilty plea, while
confirming that he was satisfied with the
manner of his attorney’s representation. (Id.)
Petitioner denied any coercion, or that any
promises had been made to him other than
those stated in open court. (Id. at 9-10.) He
stated that he was entering the plea of his own
free will. (Id. at 10.) Petitioner indicated
that he understood the rights he was giving up
– including his right to appeal. (Id. at 6-8.)
The Court has read the plea transcript in its
entirety and there is no indication that
petitioner was confused or incompetent. In
fact, petitioner was responsive to the court’s
questions and answered all questions in a
coherent manner.
b. Application
The petitioner argues that his guilty plea
was not knowing, intelligent, or voluntary
because he was not competent to take a plea
due to two prior commitments to MidHudson Psychiatric Facility under CPL Art.
730 during the pendency of his case. The
Court rejects this argument on the merits.
The Court has reviewed the record of
petitioner’s guilty plea and finds that it
reflects a knowing, intelligent and voluntary
plea.
As a threshold matter, petitioner’s very
same argument was rejected by Nassau
County Court on the merits in its January 19,
2017 decision on his January 6, 2017 Section
440 motion. People v. Raymond, Ind. No.
383N-2010 (Cnty. Ct., Nassau Cnty., Jan. 19,
2017) (ECF No. 7-25.) “Thus, because the
[Nassau] County Court’s decision was an
adjudication on the merits,” see 28 U.S.C. §
2254(d), it is entitled to the deferential
standard of review under AEDPA. See e.g.,
Dolphy, 522 F.3d at 238 (“When the state
court has adjudicated the merits of the
petitioner’s claim, we apply the deferential
standard of review established by
[AEDPA]…”).
In sum, having carefully reviewed the
record, there is no basis to conclude that the
state court’s decision regarding the validity
of the guilty plea was contrary to, or involved
an unreasonable application of, clearly
established federal law, nor was it based on
an unreasonable determination of the facts in
light of the record. Accordingly, this claim
does not warrant habeas relief in this case.
3. Actual Innocence
Notwithstanding that the Court has
determined that petitioner has not exhausted
his claim of actual innocence, the Court
nonetheless proceeds to analyze its merits.
Petitioner argues in a letter to the Court dated
In any event, upon reviewing petitioner’s
plea allocution, the Court finds nothing to
14
December 15, 2017, that he is actually
innocent, stating “I did not produce such
laceration or inten[d] for such,” and “I did not
cause laceration from [Santelli’s] ear to her
cheeks or lips and no bodily cuts. I was not
the last person with her at the time. I left her
with Hannah Matos who became a witness in
this case and she had a sharp object with her
at that time.” (ECF No. 6.)
violence incident involving an individual
named Matos whom he asserts is the same
person who provided information leading to
his arrest and prosecution.
Assuming
arguendo that this is the same person, the
articles still do not provide the requisite
credible evidence of actual innocence. As a
threshold matter, the domestic violence
incident involving Matos is alleged to have
occurred years after her role as a witness in
petitioner’s arrest. Moreover, any evidence
that Matos attacked her ex-boyfriend years
after the events in this case does not suggest
that petitioner was innocent of assaulting the
victim in this case. To the extent petitioner
believes that this alleged subsequent crime by
Matos also generally undermines her
credibility, any such credibility issues are not
sufficient to support a claim of actual
innocence, especially in light of petitioner’s
sworn acknowledgment at this guilty plea
proceeding that he cut the victim’s ear and
side of her cheek. In short, these allegations
regarding Matos do not support his
conclusory assertion of actual innocence in
light of the entire record in this case.4
Accordingly, petitioner’s actual innocence
claim is without merit and does not support
habeas relief.
a. Standard
In order to establish actual innocence,
“petitioner must demonstrate that, in light of
all the evidence, it is more likely than not that
no reasonable juror would have convicted
him.” Fountain v. United States, 357 F.3d
250, 255 (2d Cir. 2004) (quoting Bousley,
523 U.S. at 623). Furthermore, in the context
of a habeas petition following a guilty plea,
“‘actual innocence’ means factual innocence,
not mere legal insufficiency.” Id. (quoting
Bousley, 523 U.S. at 623) (emphasis added).
“To be credible, such a claim requires
petitioner to support his allegations of
constitutional error with new reliable
evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence – that
was not presented at trial. Because such
evidence is obviously unavailable in the vast
majority of cases, claims of actual innocence
are rarely successful.” Schlup v. Delo, 513
U.S. 298, 324 (1995).
IV.
CONCLUSION
For the foregoing reasons, this Court
finds that 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.
b. Application
Here, petitioner does not provide “new
reliable evidence” such as “exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.”
Schlup, 513 U.S. at 324. Instead, he provides
news articles and a Commonwealth of
Pennsylvania opinion detailing a domestic
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 Court certifies pursuant to
The Court also concludes that petitioner’s conclusory
claims of falsification of evidence in the grand jury
and in his diagnosis of mental illness (as set forth in
his October 15, 2018 letter) do not support any claim
4
of actual innocence or undermine his guilty plea, and
do not provide any basis for habeas relief in this
particular case.
15
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