Chinn v. Bradt
MEMORANDUM-DECISION AND ORDER denying and dismissing the 7 Amended Petition for Writ of Habeas Corpus. No Certificate of Appealability shall be issued. Signed by Senior Judge Thomas J. McAvoy on 6/19/2012. (amt) [Petitioner served via reg. mail]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
M. BRADT, Superintendent,
FOR THE PETITIONER:
Petitioner, pro se
Attica Correctional Facility
Attica, NY 14011
FOR THE RESPONDENT:
ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
New York, NY 10271
LISA E. FLEISCHMANN, ESQ.
Assistant Attorney General
THOMAS J. MCAVOY
Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
State Court Proceedings
The records supplied to this Court establish that an Onondaga County Grand Jury returned
an indictment against petitioner, pro se Sam Chinn which charged him with murder in the second
degree, contrary to New York Penal Law ("Penal Law") § 125.25(1); two counts of murder in the
first degree, in violation of Penal Law § 125.27(1)(a)(v) and (b), and § 125.27(1)(a)(viii) and (b);
and criminal possession of a weapon in the third degree, contrary to Penal Law § 265.02(1). See
Dkt. No. 18-1 at 6-7 ("Indictment"). Thereafter, the Onondaga County District Attorney ("District
Attorney") filed a notice of intent to seek the death penalty against petitioner. Dkt. No. 18-1 at 47.
On July 2, 1997, pursuant to a negotiated plea agreement, petitioner appeared before
Onondaga County Court Judge J. Kevin Mulroy and pleaded guilty to one count each of murder in
the first degree and murder in the second degree, in satisfaction of all charges brought against him in
the Indictment. Dkt. No. 12-1. On July 23, 1997, petitioner was sentenced by the trial court in
accordance with the terms of the plea agreement to concurrent prison terms of life without parole on
the first degree murder conviction, and twenty-five years to life on the second degree murder
conviction. Dkt. No. 12-2 at 4.
On August 20, 1997, petitioner filed a Notice of Appeal with the Onondaga County Court.
Dkt. No. 12-3. Thereafter, in an order dated May 19, 1998, the New York State, Supreme Court,
Appellate Division, Fourth Department granted petitioner's applications to prosecute his appeal in
forma pauperis and pro se, and ordered the Onondaga County Clerk's Office ("Onondaga County
Clerk") to provide petitioner with copies of all papers, including transcripts, filed with the
Onondaga County Clerk which related to that criminal matter. Dkt. No. 12-6 ("May, 1998 Order").
Pursuant to that order, the Onondaga County Clerk was specifically directed to provide petitioner
with "copies of all papers and transcript[s] of stenographic minutes . . . of all proceedings had and
filed in said Clerk's Office." Id.
Petitioner did not perfect that appeal, however, and on November 21, 2006, he filed a pro se
motion pursuant to New York's Criminal Procedure Law Section 440.10 in which he sought to
vacate the judgment of conviction based upon his claims that, among other things: (i) his guilty plea
was not knowingly, voluntarily, or intelligently made; (ii) his conviction was the product of
misconduct on the part of the police, the prosecutor, and the trial court; and (iii) he received the
ineffective assistance of counsel. Dkt. No. 12-8. The District Attorney opposed that motion, Dkt.
No. 12-11, and in an Order dated April 27, 2007, Onondaga County Court Judge William D. Walsh
denied petitioner's motion in its entirety. Dkt. No. 12-12 ("April, 2007 Order"). In that Order, the
county court noted that petitioner had: "filed and served a timely Notice of Appeal on August 20,
1997, and ha[d] yet to perfect that appeal. Inasmuch as the [petitioner's] claims rely heavily upon
the record, the instant motion must be denied."1 April, 2007 Order at 1. By application dated May
17, 2007, petitioner sought leave to appeal the April, 2007 Order, and also requested that the
Appellate Division consolidate petitioner's appeal of that Order with his pending direct appeal. Dkt.
No. 17. That application was opposed by the District Attorney, Dkt. No. 17-1, and on June 26,
2007, the Appellate Division denied petitioner’s application. Dkt. No. 17-2.
On or about August 11, 2008, petitioner filed a pro se brief and record on appeal in the
Fourth Department, and served a copy of his pro se brief on the District Attorney.2 See Dkt. Nos.
17-5; 19-8 at ¶ 5. However, on August 20, 2008, those submissions were returned to petitioner by
the Appellate Division, which noted, inter alia, that his submissions did "not contain a stipulation to
That court also found petitioner's claim of ineffective assistance of counsel to be "directly contradicted by
the plea minutes." April, 2007 Order at 2.
This Court was not provided with a copy of the papers submitted by petitioner on August 11, 2008.
the contents of the record or an order settling the record." Dkt. No. 17-5.3
On June 1, 2009, the District Attorney moved to dismiss petitioner's appeal, based in part on
his failure to perfect that appeal for over eleven years. Dkt. No. 17-6. That application was
opposed by petitioner, Dkt. No. 17-8, and on July 28, 2009, the Appellate Division conditionally
granted that application and ordered the dismissal of the appeal "unless the appeal is perfected on or
before November 25, 2009." Dkt. No. 17-9. Petitioner thereafter sought and received additional
extensions of that deadline from the Appellate Division, the last of which extended petitioner's
deadline for perfecting his appeal to January 17, 2012. Dkt. No. 19-19.4
The record further reflects that on September 1, 2009, petitioner filed a motion seeking to
settle the record on appeal with the Onondaga County Court.5 Dkt. No. 17-10. On October 9, 2009,
the District Attorney filed a response to petitioner's application in which the District Attorney
objected to the settlement of the record in the manner proposed by petitioner. Dkt. No. 18-3. On
December 21, 2009, Judge Walsh issued a Decision/Order in which that court settled the record and
discussed in detail the items that were to be included in the record on appeal. Dkt. No. 18-5
("December, 2009 Order").
On May 25, 2010, petitioner filed a petition pursuant to New York's Civil Practice Law and
Rules ("CPLR"), Article 78, in Onondaga County Supreme Court, requesting that such court deem
The Appellate Division also noted in that order that petitioner's appellate brief exceeded the seventy page
limit allowed by that court's rules. Dkt. No. 17-5.
Although it is unclear to this Court whether any further extensions of that deadline have been sought
and/or received by petitioner, nothing filed herein suggests that petitioner's appeal has been dismissed by the
Petitioner had previously submitted an application seeking a "reconstruction hearing" and which also
sought to "settle the record," however that application was denied on October 18, 1999 by County Court Judge
James T. King. Dkt. No. 17-10 at 18.
"abandon[ed] and not enforceable" decisions or orders that were apparently referenced in the
December, 2009 Order settling the record but which, according to the petitioner, did not "appear on
the County Court Clerk's list as filed." Dkt. No. 18-6 at 3-4. Petitioner alternatively requested in
that application that the District Attorney be directed to provide petitioner with a copy of all items
contained in the "appeal record" that had not been previously provided to petitioner. Id. at 3. In
response to that application, Acting Onondaga County Supreme Court Justice John J. Brunetti sent a
letter to petitioner in which the court requested that petitioner specifically inform chambers as to
what he was requesting that the court "order the District Attorney's Office to do;" and for the legal
authority supporting petitioner's request. Dkt. No. 18-8. The petitioner thereafter filed responses to
the trial court's inquiry, Dkt. Nos. 18-9, 18-10, and on July 12, 2010, Justice Brunetti issued a
Decision/Order/Judgment in which he determined that petitioner could not obtain the relief he
sought by way of an Article 78 proceeding, and therefore denied the application. Dkt. No. 18-11
("July, 2010 Order"). Petitioner's request to appeal that decision to the Appellate Division was
denied by that court in its order entered September 20, 2010. Dkt. No. 19-2 ("September, 2010
Order"). On October 14, 2010, petitioner filed an application with New York's Court of Appeals in
which he sought leave to appeal the September, 2010 Order. Dkt. No. 19-3. On December 14,
2010, New York's Court of Appeals dismissed petitioner's leave application. Dkt. No. 19-4.
Petitioner commenced this action by filing a habeas corpus petition pursuant to 28 U.S.C. §
2254 on April 1, 2011. See Dkt. No. 1 at 13. Since that pleading did not comply with the Federal
Rules of Civil Procedure and the Rules Governing Section 2254 cases in the United States District
Courts, on May 3, 2011, this Court directed petitioner to file an amended pleading if he wished to
proceed with this action. Dkt. No. 6. Petitioner filed that amended petition on May 26, 2011. Dkt.
No. 7 ("Am. Pet.").
In his amended pleading, petitioner does not challenge his murder convictions, but instead
asserts various claims related to his failure to perfect his appeal concerning those convictions.
Specifically, in his initial ground, petitioner asserts that his direct appeal is subject to dismissal by
the Appellate Division due to the misconduct of the "Onondaga County Justice System" and the
"New York State Courts." Am. Pet., Ground One. He argues that notwithstanding the fact that the
Appellate Division granted him permission to pursue his appeal, he was "only provided with a set of
transcripts;" he did not receive copies of "Orders, Motions, and Replies" filed in the related criminal
matter. Id. In his second ground, petitioner requests that this Court direct the Appellate Division to
consider petitioner's appeal of the July, 2010 Order, and also appears to argue that Justice Brunetti
erred when he concluded, in his July, 2010 Order, that such court did not have the authority to grant
petitioner the relief he sought under Article 78. Am. Pet., Ground Two. That claim also appears to
seek an order from this Court directing either the Onondaga County Court or the Onondaga County
Clerk to provide petitioner with all materials he believes he needs in order to pursue his direct
appeal. Id. In his third ground, petitioner argues that New York's Court of Appeals wrongfully
denied his October 14, 2010 application seeking leave to appeal the September, 2010 Order, and
seeks an order from this Court directing New York's Court of Appeals to consider various claims
asserted by petitioner in his leave application. Am. Pet., Ground Three. In his final ground,
petitioner claims that Justice Brunetti "violated/nullified [petitioner's] right" to pursue his direct
appeal when that court denied petitioner's Article 78 Petition. Am. Pet., Ground Four.
On September 1, 2011, the Office of the Attorney General for the State of New York, acting
on respondent's behalf, filed a response in opposition to petitioner's amended pleading. See Dkt.
No. 11. Respondent attached a memorandum of law in opposition to such petition to his response,
Dkt. No. 11-1, and also provided this Court with various state court records relating to the criminal
proceedings referenced by petitioner in this action. See Dkt. Nos. 12, 17-19.
This matter is currently before this Court for disposition.
In his initial ground, petitioner appears to argue that he has been denied his right to pursue
his appeal due to the misconduct of various entities within Onondaga County and the New York
State court system. Am. Pet., Ground One.
It is well-settled that "a discriminatory denial of the statutory right of appeal is a violation of
the Equal Protection Clause of the Fourteenth Amendment." Dowd v. U.S. ex rel. Cook, 340 U.S.
206, 208 (1951) (citation omitted). The appellate procedure provided by a State must "affor[d]
adequate and effective appellate review to indigent defendants," a threshold that is met where the
procedure "reasonably ensures that an indigent's appeal will be resolved in a way that is related to
the merit of that appeal." Smith v. Robbins, 528 U.S. 259, 276-77 (2000) (citations and footnote
omitted); see also Quinones v. New York State Division of Parole, No. 07 CIV. 8633, 2008 WL
2276540, at *4 (S.D.N.Y. June 2, 2008) (citing Robbins). Additionally, a State must provide an
indigent party with a "record of sufficient completeness to permit proper consideration of [his]
claims." Draper v. Washington, 372 U.S. 487, 499 (1963) (internal quotation marks omitted).
However, "[a] 'record of sufficient completeness' does not translate automatically into a complete
verbatim transcript." Mayer v. City of Chicago, 404 U.S. 189, 194 (1971).
In order to properly consider petitioner's initial ground, the Court reviews the record to
ascertain to what extent he has been provided materials necessary for him to pursue his appeal.
The record reflects that after the Appellate Division issued its May, 1998 Order granting
petitioner's application to proceed with his appeal pro se, the Onondaga County Clerk sent a letter to
petitioner dated October 6, 1998 which enclosed "a copy of all the material in [his] file" that was
maintained by that office, which included copies of transcripts contained in his criminal trial. See
Dkt. No. 12-7; see also Am. Pet. at 7 (petitioner acknowledging that he received "a set of
transcripts" from the Onondaga County Clerk). By letter dated August 29, 2000, petitioner was also
provided copies of "all the discovery materials" that related to petitioner which were included in the
files of the Capital Defender's Office. Dkt. No. 12-9 at 129. On November 26, 2001, that office
provided petitioner with other documents in its possession, including the notification filed by the
District Attorney of his intent of seek the death penalty, an order to show cause concerning the
prosecution's request that petitioner submit to fingerprinting, and copies of letters exchanged
between petitioner's attorneys and the District Attorney's office regarding discovery material. Dkt.
No. 12-9 at 145. Additionally, in an order issued by the Appellate Division on January 25, 2011
which granted petitioner an extension of time within which to perfect his appeal, that court
specifically advised him that he could "move for the production of evidence and necessary
documentation for the perfection of his appeal before Onondaga County Court." See Dkt. No. 19-17
("January, 2011 Order") at 1. Thus, the record firmly establishes that petitioner has been provided
with copies of all materials contained in the Onondaga County Clerk's file concerning petitioner, as
well as various other documents that were in the possession of defense counsel. Furthermore, in its
January, 2011 Order, the Appellate Division specifically noted that petitioner had the right to seek
the production of any other materials necessary for him to perfect his appeal. January, 2011 Order
at 1. Nothing before this Court suggests – much less establishes – that petitioner has been denied
his right to pursue his appeal of the convictions referenced in his petition, or that the manner in
which New York's appellate procedure has operated with respect to him has not reasonably ensured
that his appeal can be resolved in a manner consistent with his constitutional rights. Therefore, his
initial ground for relief is denied.
Grounds Two and Three
In his second ground, petitioner seems to claim that Justice Brunetti erred when he
concluded in his July, 2010 Order that petitioner could not obtain the relief he sought in his Article
78 Petition by way of a proceeding brought pursuant to that statute. Am. Pet., Ground Two. He
further contends that the Appellate Division wrongfully denied petitioner's application seeking leave
to appeal Justice Brunetti's July, 2010 Order. Am. Pet., Ground Two. Petitioner's third ground for
relief similarly argues that New York's Court of Appeals improperly denied petitioner permission to
appeal the Appellate Division's September, 2010 Order.6 Am. Pet., Ground Three.
The aspect of petitioner's second ground which claims that Justice Brunetti wrongfully
determined that petitioner was not entitled to the relief he sought by way of an Article 78 Petition, as
well as the portion of his third ground in which he claims that New York's Court of Appeals
wrongfully denied petitioner's application for review under N.Y.Ct.Rules, § 500.11, appears to
overlook the fact that "federal courts must of course defer to state-court interpretations of the state's
laws, so long as those interpretations are themselves constitutional." DiGuglielmo v. Smith, 366
Petitioner sought that review pursuant Section 500.11 of New York Court of Appeals Rules of Practice,
which affords that court alternative procedures for selecting cases for discretionary review. See Dkt. No. 19-3 at 5-6;
see also N.Y.Ct.Rules, § 500.11.
F.3d 130, 137 (2d Cir. 2004) (quoting Davis v. Strack, 270 F.3d 111, 123 n.4 (2d Cir. 2001)).
Petitioner has wholly failed to establish that Justice Brunetti's interpretation of the scope of Article
78 in his July, 2010 Order is unconstitutional. Therefore, this Court must deny this aspect of
petitioner's second ground. Since petitioner has similarly failed to demonstrate that the decision by
New York's Court of Appeals to deny petitioner's leave application concerning the Appellate
Division's September, 2010 Order was, in any way, improper, this aspect of his third ground is
In recognition of petitioner's pro se status, the Court also liberally views the claims asserted
by petitioner in his second and third grounds as requests that this Court grant petitioner mandamus
relief that directs: (i) the Appellate Division to consider petitioner's appeal of the denial of his
Article 78 Petition (Am. Pet., Ground Two); and/or (iii) New York's Court of Appeals to consider
petitioner's appeal of the September, 2010 Order. Am. Pet., Ground Three. However, as the court
noted in Rahman v. McElroy, 884 F.Supp. 782 (S.D.N.Y. 1995):
"the common-law writ of mandamus . . . is intended to provide a
remedy for a plaintiff only if he has exhausted all other avenues of
relief and only if the defendant owes him a clear non-discretionary
Rahman, 884 F.Supp. at 787 (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)) (other citation
omitted); cf. Huli v. Way, 393 F.Supp.2d 266, 269-70 (S.D.N.Y. 2005) (in interpreting the federal
mandamus statute, 28 U.S.C. § 1361, court observed that mandamus relief if only available "where
the government official or agency owes the petitioner a 'clear nondiscretionary duty'") (quoting
Heckler, 466 U.S. at 616). Since the actions of the Appellate Division and New York's Court of
Appeals about which petitioner now complains necessarily involved discretionary functions of
those respective courts, rather than non-discretionary duties, petitioner is plainly not entitled to the
relief he seeks in such grounds if viewed as claims seeking mandamus relief.7
Moreover, these grounds appear to seek an order from this Court directing a state court
official to perform an action on behalf of the petitioner. Specifically, petitioner's second ground
may be broadly viewed as seeking an order from this Court directing state officials to provide
petitioner with all materials he claims he needs in order to pursue his direct appeal. See Am. Pet.,
Ground Two. Both his second and third grounds may be liberally construed as seeking an order
from this Court directing the Appellate Division and New York's Court of Appeals to grant the
applications for discretionary review filed by petitioner in those respective courts. Id., Grounds
Two, Three. However, it has been properly observed that "[d]istrict courts are not authorized . . . to
compel a state or state officials to perform a particular duty." Reyes v. New York, No. 08-CV-1679,
2008 WL 2120783, at *1 (E.D.N.Y. May 19, 2008) (citing Davis v. Lansing, 851 F.2d 72, 74 (2d
Cir. 1988)) (other citation omitted). This Court therefore cannot properly direct any state official to
provide petitioner with documents he believes are necessary to perfect his appeal, nor may it direct
judges or officials at either the Appellate Division or the New York Court of Appeals to grant
petitioner's applications for discretionary review concerning those courts.
In light of the foregoing, petitioner's second and third grounds for relief are denied.
In his final ground, petitioner claims that Justice Brunetti "violated/nullified [petitioner's]
It is of course well established that "a federal court, although it properly has jurisdiction, in the interest
of comity, should abstain from hearing a case that would interfere with an on-going state criminal proceeding." Kunz
v. New York State Commission on Judicial Conduct et al., 356 F.Supp.2d 188, 192 (N.D.N.Y. 2005) (Kahn, J.)
(citing Younger v. Harris, 401 U.S. 37 (1971)).
right" to pursue his direct appeal when that court issued the July, 2010 Order denying petitioner's
Article 78 Petition. Am. Pet., Ground Four. Thus, a brief review of Justice Brunetti's decision
denying petitioner's Article 78 Petition is warranted.
In his July, 2010 Order, Justice Brunetti held:
The Petitioner seeks to employ the procedures set forth in Article 78
of the Civil Practice Law and Rules as a substitute for, or as an
additional remedy for, the record on appeal provisions contained in
the Criminal Procedure Law and the Rules of the Fourth Department.
Because of that fact, the court concludes that Article 78 relief is not
available to the Petitioner.
July, 2010 Order at 1 (footnotes omitted). Thus, that order plainly did not preclude petitioner from
perfecting and/or pursuing his criminal appeal, but instead merely advised petitioner that the relief
he sought was not available pursuant to Article 78 of the CPLR. Furthermore, subsequent to that
decision of Justice Brunetti, the Appellate Division specifically advised petitioner of his right to
seek the production of evidence and documents necessary for him to perfect his appeal. January,
2011 Order at 1.
Petitioner has wholly failed to demonstrate that the actions of Justice Brunetti in issuing the
July, 2010 Order "violated/nullified" petitioner's appellate rights, or otherwise prevented him from
properly perfecting and/or pursuing his appeal of the criminal convictions referenced in this action.
Therefore, this final ground in the petition is denied.
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).8 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. 7) is DENIED and DISMISSED;
and it is further
ORDERED that no Certificate of Appealability shall issue because petitioner has failed
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:June 19, 2012
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).
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