Strain v. ADA Perez
Filing
15
MEMORANDUM-DECISION AND ORDER denying and dismissing the 5 Amended Petition for Writ of Habeas Corpus filed by Stephen Strain. No Certificate of Appealability shall be issued. Signed by Senior Judge Thomas J. McAvoy on 5/24/2012. (amt) [Petitioner served via reg. mail]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
STEPHEN STRAIN,
Petitioner,
9:11-CV-0345
(TJM)
v.
ADA PEREZ, Warden,
Respondent.
APPEARANCES:
OF COUNSEL:
FOR THE PETITIONER:
STEPHEN STRAIN
Petitioner, pro se
No. 09-A-5979
Downstate Correctional Facility
121 Red Schoolhouse Road
P.O. Box F
Fishkill, NY 12524-0445
FOR THE RESPONDENT:
ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
120 Broadway
New York, NY 10271
ALYSON J. GILL, ESQ.
Assistant Attorney General
THOMAS J. MCAVOY
Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
I.
BACKGROUND
A.
State Court Proceedings
The records supplied to this Court establish that in a letter dated May 19, 2009, the
Rensselaer County District Attorney ("District Attorney") offered petitioner, pro se Stephen Strain
an opportunity to plead guilty to attempted robbery in the second degree, in violation of New York
Penal Law ("Penal Law") §§ 110.00 and 160.10, in satisfaction of charges that were brought against
him in a felony complaint which included a charge of attempted robbery in the first degree. Dkt.
No. 1 at 36.1 That letter noted that if petitioner accepted that offer, he would receive a determinate,
seven year prison term, to be followed by five years of post release supervision. Id. That
correspondence further provided that if the offer was not accepted prior to June 4, 2009, it would be
withdrawn. Id. Petitioner did not accept that offer, and a Rensselaer County Grand Jury thereafter
charged him with attempted robbery in the first degree, in violation of Penal Law §§ 110.00 and
160.15(3); burglary in the second degree, contrary to Penal Law § 140.25(1)(c); and criminal
possession of a weapon in the third degree, in violation Penal Law § 265.02(1). See Appellant’s
Brief on Appeal ("App. Br.") (Dkt. No. 13-2) at 3.2
On September 25, 2009, petitioner appeared before the county court for purposes of entering
a guilty plea. At that time, defense counsel noted that petitioner would be pleading guilty to the
second count in the indictment (i.e., burglary in the second degree) in full satisfaction of all charges
returned against petitioner in that instrument. See Transcript of Change of Plea ("Plea Tr.") (Dkt.
No. 1 at 15) at 3. Petitioner’s counsel also noted at that time that under the terms of that plea
proposal, petitioner "would receive an eight and a half year determinate sentence [and] . . . five
years post release supervision." Id. After the trial court informed petitioner of the various rights he
1
Petitioner attached various state court records to the original petition he filed with the Court.
2
This Court was not provided with a copy of the Indictment returned against petitioner.
2
was waiving by entering a guilty plea, petitioner answered a series of questions posed to him by the
court which ensured that petitioner’s plea was knowingly, intelligently and voluntarily made. Id. at
4-9. He then admitted to entering a Domino’s pizza restaurant in Rensselaer County on May 9,
2009, and using or threatening to use a dangerous instrument while intending to commit a crime at
that establishment. Id. at 9-10. The trial court thereafter accepted petitioner’s guilty plea. Id. at 10.
On November 2, 2009, the District Attorney prepared a second felony offender statement
relating to petitioner in which the prosecutor declared that on March 3, 2003, petitioner was
convicted of robbery in the third degree in Albany County Court, and thereafter sentenced to an
indeterminate prison term of one to three years. See Second Felony Offender Statement ("SFOS")
(Dkt. No. 13-1).
On November 23, 2009, petitioner appeared with counsel for purposes of sentencing on the
burglary conviction. See Transcript of Sentencing ("Sentencing Tr.") (Dkt. No. 1 at 29). At that
proceeding, petitioner admitted to the previous conviction referenced in the SFOS, Sentencing Tr. at
5, and the county court then imposed the agreed-upon sentence of eight and one-half years, to be
followed by a five year period of post-release supervision. Id. at 5-6.
With the assistance of counsel, petitioner filed an appeal of the foregoing with the New York
State, Supreme Court, Appellate Division, Third Department. See App. Br. The District Attorney
filed a brief in opposition to that appeal, Dkt. No. 13-3, and on September 23, 2010, the Appellate
Division affirmed the judgment of conviction. People v. Strain, 76 A.D.3d 1123 (3d Dep’t 2010).
Petitioner did not file an application seeking leave to appeal that decision with the New York Court
of Appeals.
Petitioner thereafter filed a motion to set aside the imposed sentence pursuant to New York
3
Criminal Procedure Law ("CPL") § 440.20 ("CPL Motion") (Dkt. No. 13-8). In that application,
petitioner claimed he had received the ineffective assistance of counsel because his attorney did not
object to the District Attorney's alleged failure to comply with CPL § 400.21 concerning the filing
of a second felony offender statement,3 or thereafter contest the fact that petitioner was sentenced as
a second felony offender. CPL Motion at 3-5. The county court denied petitioner’s application,
finding that: (1) the District Attorney complied with CPL § 400.21; (2) petitioner was properly
sentenced as a second felony offender; and (3) petitioner had received the effective assistance of
counsel. See Decision and Order of Rensselaer County Court Judge Robert M. Jacon (1/21/11)
("January, 2011 Decision") (Dkt. No. 13-5) at 2-4. Petitioner did not seek leave to appeal the
January, 2011 Decision from the Appellate Division.
B.
This Action
Petitioner commenced the present action by filing a petition seeking a writ of habeas corpus
on March 17, 2011 in the Eastern District of New York. Dkt. No. 1. Since the conviction
challenged herein occurred within the geographical boundaries of the Northern District of New
York, on March 28, 2011, United States District Judge Allyne R. Ross transferred this matter to this
District. Dkt. No. 2. This Court thereafter directed petitioner to file an amended pleading if he
wished to proceed with this action (Dkt. No. 4), and on April 21, 2011, petitioner filed an amended
petition in compliance with the terms of that order ("Am. Pet.") (Dkt. No. 5).
In that pleading, petitioner claims that: (1) his trial attorney rendered ineffective assistance;
and (2) he was illegally sentenced by the county court as a second felony offender. See Am. Pet.,
3
CPL § 400.21 discusses the procedure to be followed where the prosecutor alleges that a criminal
defendant should be sentenced as a second felony offender.
4
Grounds One, Two.4 On September 19, 2011, the Office of the Attorney General of the State of
New York, acting on respondent’s behalf, filed an answer in opposition to petitioner’s amended
pleading. Dkt. No. 11. At that time, respondent’s counsel also filed a memorandum of law in
opposition to the amended pleading ("Resp. Mem.") (Dkt. No. 10), together with various state court
records related to the criminal matter challenged herein (Dkt. No. 13).
On October 3, 2011, petitioner filed a reply memorandum of law in further support of his
habeas application. Dkt. No. 14 ("Reply").
This matter is currently before this Court for disposition.
II.
DISCUSSION
A.
Exhaustion Doctrine
Respondent contends that this Court must deny and dismiss petitioner's amended petition
because he failed to fully exhaust his habeas claims in the state courts. See Resp. Mem. at 8-9.
Respondent specifically argues that petitioner raised his claims alleging ineffective assistance of
counsel in his CPL Motion, but that he never sought leave to appeal the denial of that application
from the Appellate Division. Resp. Mem. at 8. With respect to petitioner’s second and final claim,
respondent argues that this theory is unexhausted because when petitioner asserted his challenge to
the sentence imposed on him in the context of his direct appeal, "[p]etitioner relied only on New
York’s Criminal Procedure Law and state cases to support his claims, and did not rely at all on the
United States Constitution or federal cases." Id. Respondent contends that such ground is also
unexhausted because petitioner never sought leave to appeal the Appellate Division’s order that
4
Petitioner attached a supporting memorandum of law to his amended pleading. See Attachment to Am.
Pet. ("Supp. Mem.") (Dkt. No. 5-1).
5
denied petitioner’s direct appeal from New York’s Court of Appeals. Id.
In light of the foregoing, a brief review of the exhaustion doctrine applicable to federal
habeas corpus petitions is in order.
A federal district court may not grant the habeas petition of a state prisoner "'unless it
appears that . . . the applicant has exhausted the remedies available in the courts of the State.'"
Richardson v. Superintendent of Mid-Orange Correctional Facility, 621 F.3d 196, 201 (2d Cir.
2010) (quoting 28 U.S.C. § 2254(b)(1)(A)), cert. denied sub nom. Richardson v. Inserra, ___ U.S.
___, 131 S.Ct. 1019 (2011). This is because "[s]tate courts, like federal courts, are obliged to
enforce federal law." Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005) (quoting O'Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999)). As the Supreme Court noted in O'Sullivan, "[c]omity . . .
dictates that when a prisoner alleges that his continued confinement for a state court conviction
violates federal law, the state courts should have the first opportunity to review th[e] claim and
provide any necessary relief." Id., 526 U.S. at 844 (citations omitted); see also Smith, 411 F.3d at
347 (quoting O'Sullivan).
A petitioner exhausts his state remedies in the federal habeas context by: "(i) present[ing]
the federal constitutional claim asserted in the petition to the highest state court (after preserving it
as required by state law in lower courts); and (ii) inform[ing] that court (and lower courts) about
both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen., 280 F.3d 87, 94
(2d Cir. 2001) (citations omitted); see also Aller v. Lape, No. 09-CV-1192, 2011 WL 1827443, at
*3 (E.D.N.Y. May 12, 2011) (citing Ramirez) (other citation omitted). A petitioner fairly presents
the federal nature of his claims to the state courts by:
(a) reliance on pertinent federal cases employing constitutional
6
analysis, (b) reliance on state cases employing constitutional analysis
in like fact situations, (c) assertion of the claim in terms so particular
as to call to mind a specific right protected by the Constitution, and
(d) allegation of a pattern of facts that is well within the mainstream
of constitutional litigation.
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir.) (citation omitted), cert. denied, ___ U.S. ___, 132
S.Ct. 265 (2011); see also Clark v. Bradt, No. 10-CV-0964, 2012 WL 28275, at *4 (W.D.N.Y. Jan.
5, 2012) (citation omitted).
1.
Ground One
In his initial ground, petitioner argues that his trial attorney rendered ineffective assistance
by failing to: (i) advise the District Attorney and the trial court that petitioner wished to accept the
prosecution’s initial plea proposal that would have resulted in petitioner receiving a seven year
determinate sentence;5 and (ii) object to the prosecution’s alleged failure to file a predicate felony
statement, and the subsequent sentencing of petitioner as a second felony offender. Am. Pet.,
Ground One.
In his CPL Motion, petitioner did not argue that his trial attorney wrongfully failed to accept,
on petitioner's behalf, the initial plea proposal offered by the District Attorney. Nor did petitioner
claim in that collateral challenge to his conviction that his attorney failed to inform petitioner about
the initial plea offer. Compare CPL Motion with Am. Pet., Ground One. Therefore, this aspect of
petitioner's initial ground for relief is plainly unexhausted.6
5
Though not clear from petitioner's pro se submissions, petitioner may also be (alternatively) claiming in
this ground that his attorney wrongfully failed to communicate to petitioner the initial plea proposal offered by the
prosecution. See Am. Pet., Ground One; Supp. Mem. at 7-8.
6
Although respondent contends that petitioner claimed in his CPL Motion that counsel never informed
petitioner of the initial plea proposal, see Resp. Mem. at 11, the Court’s review of the CPL Motion fails to confirm
that assertion.
7
Next, as noted ante, petitioner argued in his collateral challenge that his attorney rendered
ineffective assistance by not objecting to the District Attorney’s alleged failure to file a SFOS, and
by failing to object to the trial court’s decision to thereafter sentence petitioner as a second felony
offender. See CPL Motion at 3-5. In addressing the substance of those claims, the county court
recognized a criminal defendant’s "State and Federal constitutional right" to the effective assistance
of counsel, and cited the Supreme Court’s case in Hill v. Lockhart, 474 U.S. 52 (1985) in resolving
the issue before it. See January, 2011 Decision at 3. Petitioner’s CPL Motion therefore alerted the
trial court to the federal nature of this aspect of his ineffective assistance claim. Carvajal, 633 F.3d
at 104; Clark, 2012 WL 28275, at *4. However, petitioner failed to seek leave to appeal the denial
of that application from the Appellate Division. Furthermore, the time within which petitioner
could properly file an application seeking appellate review of the January, 2011 Decision has now
passed. Sumpter v. Sears, No. 09-CV-0689, 2012 WL 95214, at *2 (E.D.N.Y. Jan. 12, 2012)
(noting that an individual has thirty days after service of order denying a CPL motion within which
to file an application seeking leave to appeal) (citations omitted). This Court therefore finds that
this claim must be "deemed exhausted" for purposes of this habeas action. Santos v. Rock, No. 10
CIV. 2896, 2011 WL 3449595, at *8-9 (S.D.N.Y. Aug. 5, 2011) (finding claims asserted in CPL §
440 motion to be procedurally defaulted due to petitioner’s failure to seek leave to appeal the denial
of such motion); Fountaine v. Burge, 06-CV-6305, 2010 WL 173557, at *4 (W.D.N.Y. Jan. 13,
2010) (same); Castillo v. Hodges, No. 01 CIV. 2172, 2004 WL 613075, at *4-5 (S.D.N.Y. Mar. 29,
2004) (same).7
7
There is authority which stands for the proposition that courts may not properly "deem" CPL § 440
motions exhausted where the petitioner never sought leave to appeal the denial of such a motion from the Appellate
Division in light of the Second Circuit’s decision in Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). See
8
2.
Ground Two
Turning to petitioner's second and final ground, in the portion of petitioner's appellate brief
wherein counsel claimed that the sentence imposed on petitioner was illegal, appellate counsel
failed to cite any provision of the United States Constitution, federal law, or opinion decided by any
federal court. See App. Br. Additionally, none of the state cases cited by appellate counsel in the
portion of petitioner's brief that concerned the issue of whether petitioner was properly sentenced as
a second felony offender employed any constitutional analysis in like-fact situations. See id. at 8-11
(citing People v. Kluck, 156 A.D.2d 830 (3d Dep’t 1989); People v. Woodard, 48 A.D.2d 980 (3d
Dep't 1975); People v. Ladson, 30 A.D.3d 836 (3d Dep't 2006); People v. Bryant, 47 A.D.2d 51 (2d
Dep’t 1975); People v. Farrow, 69 A.D.3d 980 (3d Dep't 2010); People v. Mosley, 54 A.D.3d 1098
(3d Dep't 2008); and People v. Anthony, 52 A.D.3d 864 (3d Dep't 2008)). Nor does petitioner’s
claim that he was improperly sentenced as a second felony offender call to mind a specific right
protected by the United States Constitution, or allege a pattern of facts that is well within the
mainstream of constitutional litigation. See Santos v. Payant, 538 F.Supp.2d 549, 554 (E.D.N.Y.
2007) (citations omitted). Petitioner has therefore not exhausted his second and final claim.8
Quintana v. McCoy, 03 Civ. 5747, 2006 W L 300470 at *5 (S.D.N.Y. Feb. 6, 2006). However, 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 such a 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. CV-91-2331, 1992 W L 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).
8
To the extent that petitioner's CPL Motion may be liberally construed as having asserted a claim that his
sentence was illegal, separate and apart from his ineffective assistance claim relating to his sentence, see January,
2011 Decision at 2, any such claim is necessarily unexhausted because, as noted above, petitioner failed to seek
leave to appeal that order from the Appellate Division.
9
Furthermore, to satisfy the exhaustion requirement applicable to habeas actions, a petitioner
must have articulated the federal nature of his claims in an application seeking leave to appeal filed
with the New York Court of Appeals. See Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005)
(citations omitted); Jamison v. Bradt, No. 09-CV-0747, 2011 WL 2728394, at *4 (W.D.N.Y. July
12, 2011) (noting that petitioner failed to properly exhaust ground for relief because he did not
include claim in his application seeking leave to appeal) (citations omitted). Since petitioner failed
to seek leave to appeal concerning the Appellate Division’s decision denying his appeal, his second
ground for relief is unexhausted for this reason as well.
3.
Consequences of Failure to Exhaust
When claims have not been fully exhausted by a habeas petitioner, a federal court may find
that there is an absence of available state remedies when "it is clear that the unexhausted claim is
procedurally barred by state law and, as such, its presentation in the state forum would be futile.”
Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); Robinson v. Superintendent, Green Haven
Correctional Facility, No. 09-CV-1904, 2012 WL 123263, at *4 (E.D.N.Y. Jan. 17, 2012) (citing
Aparicio). Therefore, this Court must determine whether it would be futile for petitioner to now
present the above claims to the state courts in federal terms.
Petitioner's CPL Motion only challenged the effectiveness of his counsel with respect to
petitioner's sentencing, and was filed pursuant to CPL § 440.20, not CPL § 440.10. In New York,
"there is no time limit on claims pursuant to CPL § 440.10, and a defendant may move at nisi prius
to vacate the judgment at any time." Ptak v. Superintendent, No. 9:08-CV-0409 (TJM), 2009 WL
2496607, at *6 (N.D.N.Y. Aug 13, 2009) (internal quotation marks and citation omitted). Since
petitioner may still file a CPL § 440.10 motion with the county court in which he argues that his
10
counsel wrongfully failed to either accept the initial plea proposal, or inform petitioner of that offer,
this Court may not properly deem this aspect of his initial ground for relief to be exhausted. Ptak,
2009 WL 2496607, at *6.
However, as is discussed more fully above, petitioner may not now properly file an
application with the Appellate Division seeking leave to appeal the denial of his CPL Motion
wherein he argued that his counsel was ineffective in allowing petitioner to be sentenced as a second
felony offender because the time to seek such leave has passed. Sumpter, 2012 WL 95214, at *2;
Santos, 2011 WL 3449595, at *8-9; Fountaine, 2010 WL 173557, at *4; Castillo, 2004 WL 613075,
at *4-5. Therefore, this theory is both deemed exhausted and procedurally defaulted. See Aparicio,
269 F.3d at 90 (citing Coleman, 501 U.S. at 735 n.1); see also Moore v. Ercole, No. 09-CV-1003,
2012 WL 407084, at *7 (E.D.N.Y. Feb. 8, 2012) (holding that unexhausted claims which petitioner
can no longer pursue in state court are "deemed exhausted and procedurally defaulted") (citation
omitted).
With respect to petitioner's second ground, he cannot now file a second appeal with the
Third Department in which he argues the federal nature of his sentencing claim because a defendant
is "entitled to one (and only one) appeal to the Appellate Division." See Aparicio, 269 F.3d at 91
(citation omitted); Allison v. Khahaifa, No. 10-CV-3453, 2011 WL 3298876, at *8 (E.D.N.Y. Aug.
1, 2011) (quoting Aparicio) (other citation omitted). Moreover, petitioner may not now properly file
an application seeking leave to appeal concerning the Appellate Division's order denying his appeal
because such application must be filed with the Court of Appeals "within thirty days after service
upon the appellant of a copy of the order sought to be appealed." See CPL § 460.10(5)(a). Thus,
the claims asserted by petitioner in his final ground for relief are also deemed exhausted and
11
procedurally defaulted. Garcia-Lopez v. Fischer, No. 05 CIV 10340, 2007 WL 1459253, at *4 n. 3
(S.D.N.Y. May 17, 2007); Castro v. Fisher, No. 04 CIV. 0346, 2004 WL 2525876, at *8 (S.D.N.Y.
Nov. 8, 2004) (habeas claim is procedurally defaulted where petitioner did not seek leave to appeal
from New York's Court of Appeals within thirty days of the party's receipt of the Appellate
Division's order); see also St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004); Hall v.
Bezio, No. 9:10-CV-0837 (DNH), 2011 WL 3566845, at *6 (N.D.N.Y. Aug. 12, 2011).
Federal courts may only consider the merits of procedurally defaulted claims where the
petitioner can establish both cause for his procedural default and resulting prejudice or,
alternatively, that a fundamental miscarriage of justice would occur absent federal court review of
the claims. Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009) (citation omitted); Smith v. Fischer,
No. 07 CIV. 2966, 2012 WL 695432, at *16 (S.D.N.Y. Mar. 5, 2012) (citations omitted).
To establish legal "cause" which would enable this Court to consider his procedurally
forfeited claims, petitioner must show that some objective, external factor impeded his ability to
fully exhaust them. See Eckhardt v. Superintendent, Attica Correctional Facility, No.
9:04-CV-0559 (GLS/GHL), 2008 WL 8156688, at *7 (N.D.N.Y. Mar. 25, 2008); Doleo v. Reynolds,
No. 00 CIV.7927, 2002 WL 922260, at *3 (S.D.N.Y. May 7, 2002). "Cause may be established by
'showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that
'some interference by officials' . . . made compliance impracticable . . . [or that] the procedural
default is the result of ineffective assistance of counsel.'" McCallie v. Poole, No. 07-CV-0473, 2011
WL 1672063, at *3 (W.D.N.Y. May 3, 2011) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)); see also Maxis v. Philips, No. 10-CV-1016, 2011 WL 1397184, at *5 (E.D.N.Y. Apr. 13,
2011) (citations omitted).
12
In his Reply, petitioner claims that because the county court denied his CPL Motion on
procedural grounds, that decision "forfeit[ed] appealability to the intermediate appellate division as
to the arguments of issue." Reply at 1. However, petitioner has cited no authority, and this Court's
research has disclosed none, which stands for the proposition that a party may not seek leave to
appeal the denial of a CPL motion from the Appellate Division where the county court denied such
application on procedural grounds. In fact, case law in this Circuit demonstrates that a party is
required to seek leave under such circumstances in order to properly exhaust his claims. See
Fountaine, 2010 WL 173557, at *4 (observing that certain of petitioner's claims which had been
"denied on state procedural grounds" were unexhausted because that petitioner failed to seek leave
to appeal the denial of his CPL motion from the Appellate Division). Petitioner has failed to
establish cause for his failure to exhaust his ineffective assistance claim as it relates to his
sentencing.9
With respect to petitioner's claim which argues, as he did in his direct appeal, that he could
not be properly sentenced as a second felony offender, petitioner asserts that he has demonstrated
legal cause excusing his failure to file a leave application with New York's Court of Appeals
because he purportedly asked his appellate attorney to file such an application, but such counsel
wrongfully failed to file same on petitioner's behalf. Reply at 1. However, petitioner never filed a
coram nobis application with the Appellate Division in which he argued that his counsel rendered
ineffective assistance by failing to file a leave application with New York's Court of Appeals. See,
9
Habeas corpus petitioners bear the burden of demonstrating that they have exhausted available state
remedies. Bessaha v. Rock, No. 09-CV-3581, 2012 W L 1458195, at *10 (E.D.N.Y. Apr. 27, 2012) (citations
omitted); Brown v. Superintendent, Oneida Correctional Facility, No. 07-CV-1809, 2011 W L 317726, at *3
(E.D.N.Y. Jan. 28, 2011) (citation omitted).
13
e.g., Am. Pet. at ¶ 7 (petitioner listing the sole collateral challenge he filed concerning his
conviction as the CPL Motion). Thus, petitioner's claim that his appellate counsel rendered
ineffective assistance by failing to file a leave application on petitioner's behalf is itself
unexhausted. A petitioner may not properly assert an ineffective assistance claim as cause excusing
a procedural default when that claim is itself procedurally barred. See Reyes v. Keane, 118 F.3d
136, 140 (2d Cir. 1997) ("a petitioner may not bring an ineffective assistance claim as cause for a
default when that ineffective assistance claim itself is procedurally barred") (citation omitted); see
also Tucker v. Artus, No. 07 CIV. 10944, 2011 WL 7109332, at *14 (S.D.N.Y. Dec. 12, 2011).
Petitioner has therefore failed to establish cause for his failure to exhaust his second ground for
relief.
Since petitioner has not established that legal cause exists which excuses his procedural
defaults, and nothing in the record before this Court suggests that his defaults may be properly
excused, this Court need not consider whether he has suffered the requisite prejudice because
federal habeas relief is unavailable under this limited exception permitting review of procedurally
forfeited claims unless the petitioner demonstrates both cause and prejudice. See Stepney v. Lopes,
760 F.2d 40, 45 (2d Cir. 1985); Collazo v. Lee, No. 11 CIV. 1804, 2011 WL 6026301, at *3
(E.D.N.Y. Dec. 2, 2011) (finding that because petitioner "failed to show 'cause' for his procedural
default, this Court does not need to determine whether he suffered prejudice because relief is
unavailable unless both cause and prejudice have been established") (citing Stepney); Tillery v.
Lempke, No. 9:10-CV-1298 (GTS), 2011 WL 5975068, at *4 (N.D.N.Y. Nov. 29, 2011) (citations
omitted).
The finding that petitioner has failed to demonstrate cause for his procedurally defaulted
14
claims does not necessarily preclude this Court from considering his grounds for relief, however,
because, as noted above, a federal court may nonetheless properly review such claims if it is
convinced that the failure to consider them would amount to a fundamental miscarriage of justice.
Acosta, 575 F.3d at 184 (citation omitted); Noakes v. Kaplan, No. 10 CIV. 5141, 2012 WL 718553,
at *11 (S.D.N.Y. Mar. 5, 2012); Tillery, 2011 WL 5975068, at *4 (citation omitted). However, in
discussing this limited exception to the rule prohibiting district courts from considering procedurally
barred claims, the Second Circuit has noted that:
The Supreme Court has explained that the fundamental miscarriage of
justice exception is “extremely rare” and should be applied only in
“the extraordinary cases.” Schlup v. Delo, 513 U.S. 298, 321-22, 115
S.Ct. 851, 130 L.Ed.2d 808 (1995). “ ‘[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003); see also Mastowski v. Superintendent,
10-CV-0445, 2011 WL 4955029, at *14 (W.D.N.Y. Oct. 18, 2011) (citations omitted).
The habeas claims that this Court must deem to be exhausted and also procedurally defaulted
are rooted in petitioner's assertion that he could not be properly sentenced as a second felony
offender. See Am. Pet., Grounds One, Two. To establish actual innocence in the context of a
challenge to the imposition of an enhanced sentence, a petitioner must demonstrate "'by clear and
convincing evidence' that ' he is actually innocent of the act on which his harsher sentence was
based.'" Breeden v. Ercole, No. 06 CV 3860, 2007 WL 3541184, at *2 (E.D.N.Y. Nov. 14, 2007)
(quoting Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 172 (2d Cir.
2000)). For the reasons discussed more fully below, petitioner has not demonstrated that he could
not be properly sentenced as a second felony offender. Moreover, petitioner admitted at his
15
sentencing hearing that he was convicted of the March, 2003 felony robbery conviction upon which
his enhanced sentence was based. See Sentencing Tr. at 5. Petitioner has therefore not
demonstrated that he is actually innocent of the second felony offender sentence imposed on him.
Since petitioner cannot now seek safe harbor from the dismissal of his defaulted claims
under this final exception permitting habeas review of those grounds, the Court denies, as
procedurally forfeited, the portion of petitioner's initial ground for relief which argues that his trial
counsel rendered ineffective assistance by failing to object to petitioner being sentenced as a second
felony offender. Additionally, his second ground for relief, which asserts that the county court
wrongfully sentenced him as a second felony offender, must also be denied as procedurally
defaulted.
B.
Substance of Petitioner's Claims10
1.
Standard of Review
Enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") brought about
significant new limitations on the power of a federal court to grant habeas relief to a state prisoner
under 28 U.S.C. § 2254. In discussing this deferential standard, the Supreme Court noted in
Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770 (2011) that:
Federal habeas relief may not be granted for claims subject to §
2254(d) unless it is shown that the earlier state court's decision “was
contrary to” federal law then clearly established in the holdings of this
Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it “was based on an
unreasonable determination of the facts” in light of the record before
the state court, § 2254(d)(2).
10
This Court also reviews the merits of petitioner's grounds for relief.
16
Harrington, 131 S.Ct. at 785; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing 28
U.S.C. § 2254(d)(1), (2)). In providing guidance concerning application of this standard, the
Supreme Court has observed that:
A state-court decision is contrary to this Court's clearly established
precedents if it applies a rule that contradicts the governing law set
forth in our cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of this Court but reaches a different
result. Williams v. Taylor, supra, at 405, 120 S.Ct. 1495; Early v.
Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per
curiam). A state-court decision involves an unreasonable application
of this Court's clearly established precedents if the state court applies
this Court's precedents to the facts in an objectively unreasonable
manner. Williams v. Taylor, supra, at 405, 120 S.Ct. 1495; Woodford
v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279
(2002) (per curiam).
Brown v. Payton, 544 U.S. 133, 141 (2005); see also Portalatin v. Graham, 624 F.3d 69, 79 (2d Cir.
2010) (citation omitted), cert. denied, ___ U.S. ___, 131 S.Ct. 1693 (2011).
For a federal court to properly find a state court's application of Supreme Court precedent to
be unreasonable in this context, the state court's decision must have been "more than incorrect or
erroneous. . . . The state court's application must have been objectively unreasonable." Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations omitted); Ryan v. Miller,
303 F.3d 231, 245 (2d Cir. 2002) (citation omitted); Kelly v. Conway, No. 10-CV-3053, 2011 WL
3555823, at *2 (E.D.N.Y. Aug. 11, 2011) (citations omitted). "While the precise method for
distinguishing objectively unreasonable decisions from merely erroneous ones is somewhat unclear,
it is well-established in this Circuit that the objectively unreasonable standard of § 2254(d)(1) means
that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas
relief." Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (internal quotation marks, citation and
17
alteration omitted). As the Court noted in Schriro, "[t]he 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." Schriro, 550 U.S. at 473 (citation omitted).
2.
Review of Petitioner's Claims
i.
Ground One
Prior to considering the substance of petitioner's claim alleging ineffective assistance of trial
counsel (Am. Pet., Ground One), the Court finds that a brief review of what petitioner must
demonstrate in order to prevail on such claim is appropriate.
The Sixth Amendment to the United States Constitution provides, in part, that: "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence." U.S. Const., Amend. VI. To establish a violation of this right to the effective assistance
of counsel, a habeas petitioner must show both: (1) that counsel's representation fell below an
objective standard of reasonableness, measured in light of prevailing professional norms; and (2)
resulting prejudice, that is, a reasonable probability that, but for counsel's unprofessional
performance, the outcome of the proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 688, 692-94 (1984); Harrington, 131 S.Ct. at 787-88.11 In establishing prejudice in
the plea context, 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 58-59.
As noted ante, petitioner has claimed for the first time in this action that his trial attorney
11
Claims alleging ineffective assistance in the plea context are governed by the two part test set forth in
Strickland. See Hill, 474 U.S. at 58; Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 1405 (2012).
18
failed to accept the prosecution's initial plea offer in a timely fashion, or, alternatively, failed to
communicate the terms of that initial plea proposal to petitioner. However, this claim is not
credible. Other than petitioner's own statements regarding these claims, petitioner has offered no
proof to substantiate these assertions. Petitioner offers no explanation, theory or reason as to why
his counsel would not have accepted the initial plea proposal on behalf of petitioner – or informed
petitioner of that offer – yet several months later negotiate on petitioner's behalf, and thereafter
accept, a subsequent plea proposal offered by the prosecutor.12 Furthermore, at the proceeding
wherein petitioner pleaded guilty, defense counsel specifically noted that the plea proposal offered
by the District Attorney had been "modified," but that counsel had "had an opportunity to discuss
[the] offer" with petitioner, who was "prepared to accept that [offer] today." Plea Tr. at 3-4. That
statement strongly suggests that counsel had discussed the initial plea proposal with petitioner, who
eventually agreed to plead guilty to the modified plea proposal subsequently offered by the
prosecution. Significantly, petitioner never claimed at the hearing at which he entered his guilty
plea that he had directed his attorney to accept the earlier plea offer, or that petitioner was unaware
of the plea proposal before it had been "modified" by the prosecutor. Instead, petitioner assured the
trial court that counsel's understanding of the plea proposal comported with petitioner's
understanding of that agreement. Id. at 4.
It has been properly observed that "'in most circumstances a convicted felon's self-serving
testimony is not likely to be credible.'" Smith v. McGinnis, No. 02 CIV. 1185, 2003 WL 21488090,
at *4 (S.D.N.Y. June 25, 2003) (quoting Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2000)).
12
The county court specifically observed that "[t]he plea agreement [was] worked out by defense counsel,"
and that petitioner had "agreed to and [did] not object to" that plea agreement. January, 2011 Decision at 3.
19
Petitioner's self-serving claims that his attorney wrongfully failed to accept the initial plea offer on
petitioner's behalf, or, alternatively, that counsel did not disclose the terms of that initial plea
proposal to the petitioner, are not supported by the record and are plainly meritless. Therefore, the
Court denies these claims. See Ricks v. Superintendent of Marcy Correctional Facility, No.
10-CV-0785, 2012 WL 162608, at *2 (W.D.N.Y. Jan. 19, 2012) (observing that although neither
the Supreme Court nor the Second Circuit has established the standard of review that district courts
are to utilize in considering unexhausted habeas claims, "the common thread" in decisions that
dispose of unexhausted claims is that such grounds for relief are "unquestionably meritless") (other
quotation marks and citations omitted); Diaz v. Marshall, No. 04-CV-1650, 2011 WL 2802836, at
*8 (E.D.N.Y. July 14, 2011).
The second and final theory asserted by petitioner in support of his ineffective assistance
claim contends that petitioner was unaware that he would be sentenced as a second felony offender
until after the sentencing proceeding had begun, and that "[a]t no time did trial attorney object to the
absence of the predicate statement, nor did he offer any challenge as to the procedure." Am. Pet.,
Ground One; see also Supp. Mem. at 5-8. However, this claim appears to overlook the fact that, in
rejecting this claim brought in petitioner's CPL Motion, the trial court opined that petitioner's
counsel was "obvious[ly]" aware that petitioner was a second felony offender at the time of the plea
because the negotiated sentence was one that was imposed on second felony offenders. See January,
2011 Decision at 3-4. Additionally, the record supports the conclusion that the SFOS was provided
to the county court and defense counsel prior to petitioner's November 23, 2009 sentencing hearing.
Specifically, the District Attorney affirmed the veracity of the statements contained in that
statement, under penalty of perjury, on November 2, 2009. See SFOS at 2. It defies logic to assume
20
that the District Attorney would not file such notice with the trial court, and serve a copy of same on
defense counsel, soon after that statement was executed.13 Moreover, the trial court specifically
referred to the March, 2003 third degree robbery conviction referenced in the SFOS at petitioner's
sentencing. Compare Sentencing Tr. at 5 with SFOS at ¶ 4. Neither defense counsel nor petitioner
claimed at the time of petitioner's sentencing that no SFOS had been provided to the defense, or
filed in petitioner's criminal action. See Sentencing Tr. Nor did petitioner indicate at that time that
he was unaware that he was to be sentenced as a second felony offender. Id. Finally, in denying
petitioner's CPL Motion, the county court specifically determined that "[t]he Rensselaer County
District Attorney's Office provided copies [of the SFOS to] both the Court and the Defendant."
January, 2011 Decision at 4. These facts support the conclusion that the SFOS was filed with the
trial court, and served on defense counsel, prior to petitioner's sentencing hearing. Therefore, there
was no basis for counsel to either object to the alleged failure of the prosecutor to serve and/or file
the SFOS statement, or otherwise challenge the procedure by which petitioner was sentenced as a
second felony offender. Counsel therefore did not render ineffective assistance as to these matters.
Furthermore, as noted ante, petitioner admitted at his sentencing that he had been convicted
of the prior felony conviction referenced in the SFOS. Sentencing Tr. at 5. He therefore cannot
demonstrate that he was prejudiced by trial counsel's failure to object to the second felony offender
sentence imposed on petitioner. See People v. Buckman, 90 A.D.3d 1635, 1636 (4th Dep't 2011)
(rejecting challenge to alleged defects concerning felony offender statement where appellant had
"received adequate notice and an opportunity to be heard with respect to the prior conviction[s]")
13
The prosecutor specifically declared in the SFOS that such statement was being "filed pursuant to section
400.21" of the CPL. SFOS at ¶ 2 (emphasis added).
21
(internal quotation marks and citation omitted); Ladson, 30 A.D.3d at 837 (rejecting claim
challenging legality of second felony offender sentence where appellant admitted that "he was the
person convicted of the prior felony and . . . he was given sufficient notice of and an opportunity to
controvert the allegations made in the second felony offender statement.").
In light of the above, this Court also denies petitioner's initial ground for relief on the merits.
ii.
Ground Two
In his second and final ground, petitioner argues that the sentence imposed on him is
"illegal" because it was imposed on him without petitioner having received notice that the
prosecutor intended to have petitioner sentenced as a second felony offender. Am. Pet., Ground
Two. Petitioner also asserts that the trial court improperly failed to conduct a hearing required
under New York law prior to sentencing petitioner as a second felony offender, and that, for this
reason as well, the imposed sentence is illegal. Id.
However, as is discussed more fully above, the record supports the conclusion that petitioner
was properly sentenced as a second felony offender by the county court. Thus, any claim that the
sentence imposed on him was illegal because he was not properly found to be a second felony
offender is without substance.14 Additionally, there is no evidence that the agreed upon sentence
imposed on petitioner for his second degree burglary conviction is outside the statutory range
allowed by New York law. Thus, petitioner's sentencing claim "does not present a constitutional
14
Furthermore, as the court held in Saracina v. Artus, No. 10–3898–pr, 452 Fed.Appx. 44 (2d Cir. Dec.
20, 2011): "[w]hether a New York court erred in applying a New York recidivist sentencing enhancement statute is
a question of New York State law . . . [a]nd it is well-established that '[i]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.'" Saracina, 452 Fed.Appx. at 46 (quoting
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); see also Zayas v. Ercole, No. 08-CV-1037, 2009 W L 6338395, at
*14 (E.D.N.Y. Nov. 9, 2009) (holding that petitioner's claim that he was improperly sentenced as a persistent violent
felony offender "asserts a violation of state law, and thus is not cognizable on federal habeas corpus review")
(citation omitted).
22
claim amenable to review in a federal habeas corpus." Roundtree v. Kirkpatrick, No. 11-CV-6188,
2012 WL 1413054, at *23 (W.D.N.Y. Apr. 23, 2012); see Madrid v. Smith, No. 08-CV-5262, 2012
WL 912945, at *7 (E.D.N.Y. Mar. 13, 2012). That fact also prevents petitioner from prevailing on
any claim which argues that the imposed sentence violated his Eighth Amendment right to be free
from cruel and unusual punishment. Madrid, 2012 WL 912945, at *7; Rivera v. Graham, No. 11
CIV. 3546, 2012 WL 397826, at *6 (E.D.N.Y. Feb. 7, 2012). Petitioner's second and final ground
for relief is therefore also (alternatively) denied on the merits.
III.
CERTIFICATE OF APPEALABILITY
Finally, the Court notes that 28 U.S.C. § 2253(c) provides, in relevant part, as follows:
Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from . . . the final
order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court . . . .
28 U.S.C. § 2253(c)(1)(A).15 A Certificate of Appealability may only be issued “if the applicant
has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
Since petitioner has failed to make such a showing herein, the Court declines to issue any Certificate
of Appealability in this matter.
ACCORDINGLY, it is
ORDERED that petitioner's Amended Petition (Dkt. No. 5) is DENIED and DISMISSED;
and it is further
ORDERED that no Certificate of Appealability shall issue because petitioner has failed
15
Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may not proceed
“unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1).
23
to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. §
2253(c); and it is further
ORDERED that any state court records that were not filed in this action be returned
directly to the Attorney General at the conclusion of these proceedings (including any appeal of
this Decision and Order filed by any party).
IT IS SO ORDERED.
Dated: May 24, 2012
24
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