Garner v. The People of the State of New York

Filing 31

DECISION and ORDER: ORDERED that the petition for a writ of habeas corpus, Dkt. No. 1 , is DENIED in its entirety and DISMISSED; and it is ORDERED that no certificate of appealability shall issue in this case because Petitioner has failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). Signed by Judge Glenn T. Suddaby on 9/10/2012. (ptm) (Copy served on petitioner by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DANA GARNER,
Petitioner,
v.

9:10-CV-1406
(GTS)

SUPERINTENDENT,
Respondent.

APPEARANCES:

OF COUNSEL:

DANA GARNER
09-B-3391
Petitioner, pro se
Mohawk Correctional Facility
P.O. Box 8451
Rome, NY 13440
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Respondent
120 Broadway
New York, NY 10271

LEILANI J. RODRIGUEZ, ESQ.
Ass't Attorney General

GLENN T. SUDDABY
United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Petitioner Dana Garner is incarcerated as the result of a 2009 judgment of conviction

in Oneida County Court. Petitioner pleaded guilty to attempted second degree burglary (N.Y.
PENAL LAW § 110.00/140.25). Dkt. No. 1, Petition ("Pet.") at 2. He seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) the county court lacked

jurisdiction; (2) his plea was induced by defense counsel's threats and misinformation; (3)
counsel placed his own interests before petitioner's interests when he denied the truth of
petitioner's version of events and attacked petitioner's credibility; and (4) counsel was
ineffective. Pet. at 7-8 (Grounds One through Four); Dkt. No. 7-1, Memorandum of Facts and
Memorandum of Law ("Mem."), at 1-12; Dkt. No. 8, Supplement to Memorandum of Law
("Supp. Mem.") at 1-3.
On April 19, 2011, respondent filed an answer, memorandum of law and the relevant
state court records. Dkt. No. 12, Response; Dkt. No. 13, Respondent's Memorandum of Law,
("R. Mem."); Dkt. No. 14, State Court Records.1 Petitioner has filed a reply, a supplemental
reply, and a supplemental affidavit. Dkt. No. 17, Reply Brief; Dkt. No. 18, Supplemental
Reply ("Supp. Reply"); Dkt. No. 29, Supplemental Affidavit ("Supp. Affidavit"). For the
reasons that follow, the petition is denied and dismissed.

II.

RELEVANT BACKGROUND
On May 21, 2009, a felony complaint was filed in Rome City Court accusing petitioner

of committing second degree burglary (N.Y. PENAL LAW § 140.25 (2)). Dkt. No. 14, Ex. D,
Felony Complaint. The complaint arose from petitioner's involvement in the February 21,

1

The court does not have the plea or sentencing transcripts. Respondent has informed the court that these
proceedings were not transcribed because petitioner did not perfect his direct appeal. R. Mem. at 3 n1. Based upon
a review of the records submitted by petitioner and respondent, the court finds that the current record suffices to
resolve the petition. Rule 5, Rules Governing Section 2254 Cases in the United States District Courts (providing that
the respondent must submit state court records he or she considers relevant, that the court may order that parts of
"untranscribed recordings be transcribed and furnished," and that if “a transcript cannot be obtained, the respondent
may submit a narrative summary of the evidence."); Williams v. Ercole, No. 1:09-CV-5169, 2010 WL 3785521 at *2
n. 1 (S.D.N.Y. Sept. 10, 2010). The background information in this Decision and Order is based upon the state court
records submitted by petitioner and respondent.

2

2009 burglary of a home belonging to Damon M. Parmeter in Rome, New York. Id; Dkt. No.
14, Ex. A, Supporting Deposition of Damon Parmeter ("Parmeter Dep."). A 42-inch television,
a Playstation 3 gaming system, two Playstation 3 games, and an HDMI cord were removed
from Parmeter's home. Parmeter Dep. On February 25, 2009, David A. Davis bought the 42inch television from petitioner for $600.00. Dkt. No. 14, Ex. B, Supporting Deposition of
David Davis ("Davis Dep."); Ex. C, Supporting Deposition of Jason Davis. Petitioner told
Davis his landlord gave him the television as payment for work petitioner did for him. Davis
Dep. Davis did not know the television was stolen. Id. Petitioner also made admissions to
law enforcement. Dkt. No. 14, Ex. O, Letter from Frank Nebush, Jr., Esq., to petitioner, dated
Apr. 8, 2010 ("Nebush Letter"), at 1; Dkt. No. 7-1, Mem. at 1-5.
On July 13, 2009, petitioner signed a Memorandum of Understanding ("MOU") in
which he accepted the prosecutor's offer to plead guilty to the reduced charge of attempted
second degree burglary in exchange for a determinate sentence of five years in prison,
followed by five years postrelease supervision. Dkt. No. 1, MOU, Jul. 13, 2009; Nebush
Letter. He also agreed to be sentenced as a second violent felony offender, and waived
speedy trial concerns "for a reasonable time," waived the right to have the case presented to
the grand jury, and waived his right to appeal. Id. Sentencing was scheduled for midOctober 2009, and petitioner was permitted to remain free on his own recognizance until
sentencing in order to complete a construction job. Id.
On August 12, 2009, petitioner waived a felony preliminary hearing in Rome City Court
and agreed to have his case transferred to the Oneida County Superior Court. Dkt. No. 14,
Ex. F, Divestiture to Superior Court; Nebush Letter at 2. On August 31, 2009, petitioner
pleaded guilty under the terms of the MOU, and he was sentenced on October 19, 2009, to
3

the agreed upon sentence. Dkt. No. 14, Ex. I, Decision and Order, Donalty, J., Apr. 19, 2010
("Decision I"), at 1. On October 23, 2009, petitioner's counsel filed a timely notice of appeal,
but to date petitioner has not perfected his direct appeal. Id.; Dkt. No. 29, Decision and
Order, Appellate Division, Fourth Department, Aug. 3, 2012.2
On February 22, 2010, petitioner filed a motion to vacate his conviction pursuant to
New York Criminal Procedure Law ("CPL") § 440.10 in which he argued that: (1) Oneida
County Court lacked jurisdiction when he pleaded guilty because he was arraigned in Rome
City Court, a felony hearing was still pending there, and the waiver of his right to be indicted
by a grand jury was signed in his attorney's office and not in open court; and (2) he pleaded
guilty under duress because his attorney told him he faced up to fifteen years in prison if he
did not accept the plea. Dkt. No. 14, Ex. G, "Affidavit in Support of Motion to Vacate
Judgment 440.10(a)(h)" at ¶¶ 5-17. The prosecutor opposed the motion. Ex. H, Affirmation,
Steven G. Cox, Assistant District Attorney, Oneida County, Apr. 7, 2010.
On April 19, 2010, petitioner's section 440 motion was denied without a hearing.
Decision I. The court first denied the motion pursuant to CPL § 440.10(2)(b), because
petitioner's claims were record-based and although petitioner filed a timely notice of appeal,
he had not yet perfected his direct appeal. Id. at 2. Alternatively, the court rejected
petitioner's claims that his plea was entered under duress, and that counsel was ineffective,
on the merits. Id. at 2-7. First, the court found that petitioner "freely, knowingly and
voluntarily agreed to waive" his rights, and admitted the factual allegations that formed the

2

Petitioner states that on August 8, 2012, he mailed a request to the Appellate Division for poor person
status and for the appointment of counsel to represent him on his direct appeal. Dkt. No. 29, Supp. Aff. at 2. It is
unclear what claims petitioner intends to raise in his appeal.

4

basis of the charge against him. Id. at 2-3. Petitioner was represented by counsel, informed
of his rights on the record, and there was no "indication of duress and coercion on the
record." Id. The court also noted that petitioner "had an opportunity to place sufficient facts
on the record to provide a basis for appellate review" before sentencing, but that he failed to
do so. Id. at 3.
Next, the court found that counsel's representation of petitioner was "nothing other
than effective and was more than meaningful." Decision I at 3. The court noted that the
maximum sentence petitioner faced was fifteen years in prison if he was convicted of second
degree burglary, and that his plea to the reduced charge of attempted second degree
burglary, together with the negotiated five-year determinate sentence, was favorable to
petitioner. Id. at 4. Finally, the court found that petitioner failed to show that but for counsel's
alleged errors, he would not have pleaded guilty. Id. at 5-6.
On May 10, 2010, petitioner sought leave to appeal the denial of his section 440
motion in the Appellate Division, Fourth Department. Dkt. No. 14, Ex. J, "Notice of
Application" and "Affidavit in Support of Motion Pursuant to C.P.L. 460.15." In his affidavit,
petitioner argued that the Oneida County Court lacked jurisdiction; the judgment was
obtained in violation of his rights; the prosecutor failed to conduct a preliminary hearing in
order to circumvent petitioner's rights; and the evidence was insufficient. Id. at 1-2. On June
22, 2010, the Appellate Division denied leave to appeal. Dkt. No. 14, Ex. K, Order denying
Leave to Appeal, Jun. 22, 2010. Petitioner's application for permission to appeal to the New
York Court of Appeals was dismissed on August 19, 2010 because the Appellate Division's
order was not appealable. Dkt. No. 14, Ex. L, Certificate Dismissing Application, Graffeo, J.,
Aug. 19, 2010.
5

On August 30, 2010, petitioner filed a second section 440 motion in which he argued
that his plea was the product of counsel's threats and misinformation; that counsel placed his
interests above petitioner's by denying the truth of petitioner's allegations and attacking
petitioner's credibility; and counsel was ineffective for advising him to plead guilty when an
investigation would have shown that there was no evidence to support the charges. Dkt. No.
14, Ex. M, "Notice of Motion to Vacate Judgment 440.10" and "Affidavit in Support of Motion
to Vacate Judgment." On September 8, 2010, the state court denied the motion pursuant to
CPL § 440.10(2)(b), again noting that petitioner "filed a timely Notice of Appeal within thirty
days of the date of conviction," that he waived his right to appeal, and that section 440
motions were not substitutes for appeal. Dkt. No. 14, Ex. N, Decision and Order, Donalty, J.,
Sept. 8, 2010 ("Decision II") at 2. The court further found that petitioner was advised of his
rights, "freely, knowingly and voluntarily agreed to waive them," and that he admitted "the
factual allegations which form[ed] the basis for the charges in the indictment." Id. at 2.
Finally, the court rejected petitioner's ineffective assistance claims on the merits for
substantially the same reasons set forth in the court's decision rejecting petitioner's first
section 440 motion. Id. at 2-4. Petitioner did not seek permission to appeal the denial of his
second section 440 motion.
This action followed.
III.

DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal

court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state
court only if, based upon the record before the state court, the adjudication of the claim (1)
6

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) was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 1400 (2011) (citing 28
U.S.C. §§2254(d)(1), (2)); Premo v. Moore, __ U.S. __,131 S. Ct. 733, 739 (2011); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). The AEDPA "imposes a highly deferential standard for
evaluating state-court rulings" and "demands that state-court decisions be given the benefit of
the doubt." Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (per curiam) (quoting Renico v.
Lett, 130 S. Ct. 1855, 1862 (2010)) (internal quotation marks omitted). Federal habeas
courts must presume that the state courts' factual findings are correct unless a petitioner
rebuts that presumption with "‘clear and convincing evidence.'" Schriro, 550 U.S. at 473-74
(quoting § 2254(e)(1)). "The question under AEDPA is not whether a federal court believes
the state court's determination was incorrect but whether that determination was
unreasonable - a substantially higher threshold." Id. at 473.
B.

The defective jurisdiction claims

In Ground One of his petition, petitioner claims that the Oneida County Court lacked
jurisdiction to accept his plea because a felony preliminary hearing was still pending in Rome
City Court and he did not waive his rights to a preliminary hearing or to have the case
presented to a grand jury. Pet. at 5, 7; Mem. at 6-9. He further argues that although he
signed a waiver of these rights on July 13, 2009, the waiver was signed in his attorney's office
and not in open court. Mem. at 6-8.
Petitioner raised his defective jurisdiction claims in his first section 440 motion. Dkt.
No. 14, Ex. G. The state court denied the claims under CPL §440.10(2)(b), which provides
7

that a court must deny a motion to vacate a judgment if that judgment "is, at the time of the
motion, appealable or pending on appeal, and sufficient facts appear on the record with
respect to the ground or issue raised upon the motion to permit adequate review" of the claim
on direct appeal. CPL § 440.10(2)(b); Decision I at 1-2. The denial of a claim under CPL
§440.10(2)(b) rests upon an independent and adequate state ground and this claim is
therefore procedurally defaulted. Holland v. Irvin, 45 F. App'x. 17, 20 (2d Cir. 2002);
McCormick v. Morrisey, 770 F. Supp. 2d 556, 563 (W.D.N.Y. 2011); Brown v. New York
State, 374 F. Supp. 2d 314, 318-19 (W.D.N.Y. 2005).
This claim may only be reviewed if petitioner demonstrates (1) good cause for the
default and actual resulting prejudice; or (2) that the denial of habeas relief would leave
unremedied a "fundamental miscarriage of justice," i.e., that he is actually innocent. Calderon
v. Thompson, 523 U.S. 538, 559 (1998); Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003);
McCormick, 770 F. Supp. 2d at 563-64. To establish cause, a petitioner must show that
some objective external factor impeded his or her ability to comply with the relevant
procedural rule. Maples v. Thomas, __U.S.__, 132 S. Ct. 912, 922 (2012); Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).
In an apparent attempt to establish cause, petitioner argues that this court must
review his defective jurisdiction claim because the state court disposed of it without specifying
if its decision rested on the merits or on a procedural bar. Supp. Reply at 2-3. The state
court was clear, however, that petitioner's motion was denied in its entirety based upon CPL
§ 440.10(2)(b). Decision I at 2.3 Additionally, in a letter filed August 15, 2012, petitioner

3
The fact that the state court explicitly reviewed the merits of his ineffective assistance of counsel claim in
the alternative does not change that result. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("Moreover, a state

8

appears to argue that he did not know counsel filed a timely notice of appeal until three years
after his plea. Dkt. No. 29, Supp. Affidavit at 1-2. As petitioner notes, however, the Oneida
County Court stated in its April 19, 2010, Decision and Order denying his first section 440
motion that petitioner filed a timely notice of appeal, and denied his section 440 motion
because the claims raised in the motion could have been raised on direct appeal. Dkt. No.
29, Supp. Affidavit at 1; Decision I at 1. Petitioner is not excused from showing cause
because he was proceeding pro se, or was unaware of the applicable procedure or law.
Faison v. McKinney, No. 1:07-CV-8561, 2009 WL 4729931 at *11 (S.D.N.Y. Dec. 10, 2009)
(stating that it is “well established that a pro se petitioner is not excused from showing cause
merely because of his pro se status or ignorance of his rights.”) (quoting Robertson v.
Abramajtys, 144 F. Supp. 2d 829, 838 (E.D. Mich. 2001) (collecting cases)); Neff v. United
States, 971 F. Supp. 771, 774 (E.D.N.Y.1997) (“An appellant's ignorance of the law does not
satisfy the cause and prejudice requirements necessary to excuse appellant's failure to seek
relief on direct appeal.”). Since petitioner has failed to show cause for his procedural default,
the court need not decide whether he suffered actual prejudice, because federal habeas relief
is generally unavailable as to procedurally defaulted claims unless both cause and prejudice
are demonstrated. See Murray, 477 U.S. at 496 (referring to the "cause-and-prejudice
standard");Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir.1985) (same).
Finally, petitioner appears to argue that it would be a "miscarriage of justice" to deny

court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the
adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient
basis for the state court's judgment, even when the state court also relies on federal law.").

9

his petition because, if he were granted a hearing,4 he could show that without his statement
to police, the evidence was insufficient to prove that he committed a burglary. Reply Brief at
3-4. But petitioner pleaded guilty to attempted second burglary, and the state court found
that he did so "freely, knowingly and voluntarily," and that he admitted "the factual allegations
which form[ed] the basis for the charges in the indictment." Decision I at 3. The state court
was free to credit petitioner's statements at his plea allocution, and this court cannot say that
decision was contrary to or an unreasonable application of Supreme Court precedent. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court [during a
plea colloquy] carry a strong presumption of verity."); United States v. Hernandez, 242 F.3d
110, 112-13 (2d Cir. 2001) (finding that habeas petitioner's claim of ineffective assistance of
counsel in regard to plea agreement and plea hearing failed on the merits where petitioner's
allegations contradicted his plea allocution statements); Baker v. Murray, 460 F. Supp. 2d
425, 433 (W.D.N.Y. 2006) ("petitioner has not provided credible evidence that would justify
overlooking his statements under oath that he was choosing to plead guilty of his own
accord."); Gomez v. Duncan, No. 1:02-CV-0846, 2004 WL 119360 at *19 (S.D.N.Y. Jan. 27,
2004) ("This Court may credit [petitioner's] statements at the plea allocution-that his guilty
plea was voluntary and not the result of any threats or promises-over his later allegations of
coercion.") (record citations omitted; citing cases), aff'd 317 F. App'x. 79 (2d Cir. 2009).
Although petitioner argues that his statement to police contradicted the statements of the

4

To the extent petitioner requests an evidentiary hearing, that request is denied. "In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to
prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro,
550 U.S. at 474. If the record refutes the petitioner's factual allegations or "otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing." Id. The record in this case shows that petitioner could
not develop facts at an evidentiary hearing that, if true, would entitle him to habeas relief.

10

prosecutor's witnesses, that claim is not based on new information that was unavailable at
the time of his plea. See Dkt. No. 7-1, Mem. at 1-6. Since petitioner has not produced any
new evidence that he is actually innocent, there is no basis to conclude that the failure to
consider the merits of his defective jurisdiction claims would result in a fundamental
miscarriage of justice. House v. Bell, 547 U.S. 518, 536-39 (2006); Schulp v. Delo, 513 U.S.
298, 327 (1995). Accordingly, petitioner's defective jurisdiction claim (Ground One) is
procedurally defaulted and dismissed.5
B.

Petitioner's claims that his guilty plea was induced by threats and
misinformation, and by ineffective assistance of counsel

Petitioner claims in Grounds Two, Three and Four of his petition that his guilty plea
was induced by threats made by his counsel, and that counsel's advice to plead guilty was
based upon misinformation or ineffectiveness. Pet. at 7-8. Specifically, petitioner claims that
counsel told him he could be convicted based upon only his statements to police, that he
faced fifteen years in prison if he rejected the plea offer and was indicted, and that prison
time petitioner owed on a parole violation would run concurrently to his sentence for

5
Even if these claims were not procedurally defaulted, no habeas relief would issue. Petitioner's guilty plea
forecloses the court's consideration of his claims that he was denied a felony preliminary hearing and the right to
have his case presented to the grand jury. Tollett v. Henderson, 411 U.S. 258, 266 (1973); Walter v. Superintendent,
No. 9:06-CV-0128, 2008 WL 4163122 at *13 (N.D.N.Y. Sept. 4, 2008). Additionally, these claims are not cognizable
because state defendants have no federal constitutional right to be tried for a felony only upon a grand jury
indictment. See Campbell v. Poole, 555 F. Supp. 2d 345, 377 (W.D.N.Y. 2008) ("The Fifth Amendment right to be
tried for a felony only upon a grand jury indictment was not incorporated by the Due Process Clause of the
Fourteenth Amendment, and therefore does not pertain to the states.") (citing Hurtado v. California, 110 U.S. 516
(1884)). Petitioner's claims are also meritless. He waived his right to a felony hearing, and his right to have his case
presented to a grand jury, in writing on July 13, 2009, and again in open court on August 12, 2009, and agreed to
have his case transferred to the Oneida County Superior Court in order to take advantage of the plea offer. Nebush
Letter; MOU. To the extent that petitioner claims that the waiver was invalid because it was signed in his attorney's
office in violation of section 195.20 of the Criminal Procedure Law, that claim is not cognizable because habeas relief
does not lie for errors of state law. Wilson v. Corcoran, __ U.S. __, 131 S. Ct. 13, 16 (2010) (it is only noncompliance
with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts"
(emphasis in original)) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.”).

11

attempted burglary. Pet. at 8, Grounds Two and Three. He further asserts that counsel
advised him to plead guilty even though a felony hearing was still pending in Rome City
Court. Id., Ground Four. Petitioner states that counsel put his own interests above
petitioner's by advising him to plead guilty without investigating his version of events, and by
attacking his credibility, and argues that had counsel conducted an investigation, he would
have discovered that there was no evidence petitioner committed a burglary. Id. at 8, Ground
Three; Mem. at 1-12; Supp. Mem. at 1-3; Reply Brief at 1-3; Supp. Reply at 1-6.
Petitioner raised these claims in his second section 440 motion, and the state court
rejected them pursuant to CPL § 440.10(2)(b), an adequate and independent state court
ground. Holland, 45 F. App'x. at 20. Additionally, petitioner did not seek leave to appeal the
denial of the second section 440 motion in the Appellate Division. Dkt. No. 14, Ex. M.
Therefore, he did not present these claims to the highest state court capable of reviewing
them, and they are unexhausted. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (explaining
that substantive exhaustion requires that a petitioner "fairly present" each claim for habeas
relief in "each appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the claim.") (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S.
270, 275 (1981)).
Petitioner cannot now seek leave to appeal the denial of his second section 440
motion in the Appellate Division, because he was required to do so within thirty days after
service of the court's order denying his motion. CPL §§ 450.15(1); 460.10 (4)(a); Sumpter v.
Sears, No. 1:09-CV-0689, 2012 WL 95214, at *2 (E.D.N.Y. Jan. 12, 2012). Although he
could arguably file another section 440 motion in an attempt to properly exhaust these claims,
12

that motion would again be met by section 440.10(2)(b), and by section 440.10(3)(b), which
provides that a court may deny a motion to vacate where the grounds raised were previously
determined on the merits in a prior motion. See Soto v. Portuondo, No. 1:02-CV-0028, 2004
WL 2501773, at *5 (E.D.N.Y. Nov. 5, 2004) (alluding to section 440.10(3)(b) as a procedural
bar). Based upon the state court's decisions rejecting petitioner's previous section 440
motions, there is no reason to believe the outcome would be any different.
Accordingly, petitioner's claims may be deemed exhausted6 for purposes of this action,
but they are also procedurally defaulted absent a showing of good cause for the default and
actual resulting prejudice, or that the denial of habeas relief would leave unremedied a
fundamental miscarriage of justice. Calderon, 523 U.S. at 559; Sweet, 353 F.3d at 141.
Petitioner has not established cause for his failure to seek review of his claims on direct
appeal, or for his failure to seek leave to appeal the denial of his second section 440 motion.
His claims that he did not know a timely notice of appeal had been filed, and that he did not
appeal the denial of his second 440 motion because he did not understand how to properly
raise his claims, are insufficient to establish cause. Washington v. James, 996 F.2d 1442,
1447 (2d Cir.1993) (“Ignorance or inadvertence will not constitute ‘cause.’"); Moore v. New
York, 378 F. Supp. 2d 202, 207 (W.D.N.Y. 2005) (same).
6

There is authority for the proposition that courts may not properly “deem” section 440 motions exhausted
if the petitioner never sought leave to appeal the denial of the motion in light of the Second Circuit's decision in
Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). See Quintana v. McCoy, 1:03-CV-5747, 2006 WL 300470 at *5
(S.D.N.Y. Feb. 6, 2006). But this court is persuaded that the Supreme Court's decision in Coleman v. Thompson,
501 U.S. 722 (1991), decided after the Second Circuit's decision in Pesina, makes clear that federal courts are to
determine whether an avenue of appeal regarding a habeas claim is available to a petitioner under state law, and
therefore whether a petitioner's request for review of that claim by a state court would be futile. See Thomas v.
Greiner, 111 F. Supp. 2d 271, 278 (S.D.N.Y. 2000) (holding that “[i]n order to comply with Coleman, the federal
courts must at some point do what Pesina declined to do -‘declare as a matter of state law that an appeal ... is
unavailable’”) (quoting Pesina); DeVito v. Racette, No. 1:91-CV-2331, 1992 WL 198150, at *5 (E.D.N.Y. Aug. 3,
1992) (observing that “Coleman appears to put to rest Pesina's concern that federal courts lack the ‘authority’ to
declare claims procedurally defaulted at the state level”) (citing Pesina ).

13

Since petitioner has failed to establish cause, the court need not decide whether he
suffered actual prejudice, because federal habeas relief is generally unavailable as to
procedurally defaulted claims unless both cause and prejudice are demonstrated. Murray,
477 U.S. at 496; Stepney, 760 F.2d at 45. And, as previously noted, petitioner also has not
produced any new evidence that he is actually innocent. Therefore, there is no basis to
conclude that the failure to consider the merits of the claims set forth in Grounds Two through
Four of the petition would result in a fundamental miscarriage of justice. House, 547 U.S. at
536-39; Schlup, 513 U.S. at 327. Accordingly, these claims are procedurally defaulted and
are dismissed.7

III.

CONCLUSION

7

Even if these claims were not procedurally defaulted, the state court's decision denying petitioner's second
section 440 motion was not an unreasonable application of clearly established Supreme Court precedent.
Petitioner's claims that counsel failed to conduct an adequate investigation is foreclosed from habeas review by virtue
of his guilty plea because that claim does not relate to the nature of counsel's advice to plead guilty. Tollett, 411 U.S.
at 266; see Smith v. Burge, No. 1:03-CV-8648, 2005 WL 78583 at *7-8 (S.D.N.Y. Jan. 12, 2005) (guilty plea
foreclosed habeas review of claim that trial counsel failed to raise a defense prior to petitioner's plea). Further, "[t]o
establish ineffective assistance of counsel 'a defendant must show both deficient performance by counsel and
prejudice.'" Premo, 131 S. Ct. at 739 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)); Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). In the context of a guilty plea, a 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." Premo, 131 S. Ct. at 743 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Contrary to petitioner's
arguments, it is "not coercion if a defendant pleads guilty to avoid a harsher sentence." Spikes v. Graham, No.
9:07-CV-1129 (DNH/GHL), 2010 WL 4005044, at *7 (N.D.N.Y. July 14, 2010), adopted by 2010 WL 3999474
(N.D.N.Y. Oct. 12, 2010) (citing Brady v. United States, 397 U.S. 742, 752-53 (1970)); Gomez, 2004 WL 119360 at
*20 ("Every defendant involved in plea negotiations suffers the threat of conviction (often of greater charges or with
a greater penalty), and must face such difficult choices.") (internal quotation marks omitted).
Petitioner was charged with one count of second degree burglary, a class C violent felony, for which counsel
correctly informed him that, as a second violent felony offender, he faced a possible maximum sentence of fifteen
years in prison. N.Y. PENAL LAW §§ 140.25 (2); 70.02(1)(b); 70.04 (3)(b). Counsel negotiated a plea agreement that
reduced the charge to an attempted second degree burglary, a class D violent felony, and negotiated a determinate
term of five years in prison. See N.Y. PENAL LAW §§ 70.02 (1)(c); 70.04 (3)(c) Petitioner has not presented any
evidence demonstrating that counsel's advice to accept this plea fell below an objective standard of reasonableness.
Premo, 131 S. Ct. at 740. His dissatisfaction with the ultimate sentence imposed "is not a valid basis on which to
find that his counsel was ineffective." Ariola v. LaClair, No. 9:07-CV-0057, 2008 WL 2157131, at *16 (N.D.N.Y. Feb.
20, 2008); see United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963) ("A convicted defendant is a dissatisfied
client, and the very fact of his conviction will seem to him proof positive of his counsel's incompetence.").

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WHEREFORE, based upon the foregoing, it is
ORDERED that the petition for a writ of habeas corpus, Dkt. No. 1, is DENIED in its
entirety and DISMISSED; and it is
ORDERED that no certificate of appealability shall issue in this case because
Petitioner has failed to make a "substantial showing of the denial of a constitutional right"
pursuant to 28 U.S.C. § 2253(c)(2).8
IT IS SO ORDERED.
Dated:

September 10, 2012
SYRACUSE, NY

8

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) ("§ 2253 permits the issuance of a COA only where
a petitioner has made a 'substantial showing of the denial of a constitutional right'"); Richardson v. Greene, 497 F.3d
212, 217 (2d Cir. 2007) (holding that, if the court denies a habeas petition on procedural grounds, "the certificate of
appealability must show that jurists of reason would find debatable two issues: (1) that the district court was correct
in its procedural ruling, and (2) that the applicant has established a valid constitutional violation") (citation omitted)).

15