Lewis v. Graham
MEMORANDUM DECISION: ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) ("To obtain a certificate of appealability, a prisoner must 'demonstrat[e] that jurists of reason could disagreewith the district court's resolution of his constitutional claims or that jurists could conclude thei ssues presented are adequate to deserve encouragement to proceed further.' " (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1. Signed by Judge James K. Singleton on 6/19/2014. (ptm) (Copy served on petitioner by regular mail)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
CHRISTOPHER MILLER, Superintendent,
Great Meadow Correctional Facility,1
Reuben Lewis, a New York state prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Lewis is currently in the custody
of the New York State Department of Corrections and Community Supervision and is
incarcerated at the Great Meadow Correctional Facility. Respondent has answered, and Lewis
I. BACKGROUND/PRIOR PROCEEDINGS
On August 21, 2007, while confined at the Clinton Correctional Facility, Lewis was
charged with attempted aggravated assault on a peace officer and assault on a peace officer after
he threw a container filled with hot water at Steven Taylor, a corrections officer, and caused him
to fall down seventeen stairs.
On February 28, 2008, Lewis appeared with his attorney before the county court. The
prosecutor stated that the People were extending an offer to Lewis that would require him to
Christopher Miller, Superintendent, Great Meadow Correctional Facility, is
substituted for Harold Graham, Superintendent, Auburn Correctional Facility. FED. R. CIV. P.
plead guilty to second-degree assault in full satisfaction of the indictment. Lewis would be
sentenced as a second violent felony offender to a determinate sentence of five years’
imprisonment plus five years of post-release supervision, fines, and fees. The prosecutor
stressed that the offer was to the lower of the two charged offenses and was the minimum
sentence for a conviction of second-degree assault. Defense confirmed his understanding of the
plea offer and stated that he had relayed it to Lewis on numerous occasions. Defense counsel
stated that Lewis was undecided about whether to accept the offer.
Lewis then informed the court that he and his attorney were “in disagreement” because
“[t]here was a matter of motions to be filed.” The court interrupted Lewis, stating, “Before you
go there, this isn’t a discussion as to what has been done or might be done or could be done.
This is a question of whether the offer that’s been made is acceptable to you. That’s a yes or
no.” Lewis explained to the court that, before he could make a decision about the offer, he
needed to see the medical records of Taylor’s injuries. Lewis further stated that he had asked his
attorney to file an omnibus motion to obtain the information and that counsel “doesn’t seem to
be willing to obtain the information that would help [Lewis] make the best decision.” Defense
counsel explained that he had filed a discovery demand and a bill of particulars. The court
acknowledged the filings and indicated that the prosecution had filed a response to the discovery
motion. Lewis reiterated that he had not received any discovery material. In response, the court
stated, “I’m not asking you to plead to something you didn’t do. The question is, did you do it.”
The court informed Lewis that “it’s never going to get better than five years determinative with a
five-year post release . . . unless [he was] acquitted” after trial.
The court further informed Lewis that it had reviewed the grand jury minutes and
determined that the prosecution had established a prima facie case for the charges in the
indictment. The court stated that there would be no need for a suppression hearing because the
prosecutor had indicated that he would not introduce at trial Lewis’s statements to the police but
that Lewis would be entitled to a Sandoval2 and Ventimiglia3 hearing, which would be conducted
before trial. When the court asked Lewis what else he wanted done, Lewis replied that he
“would like to see some type of medical report that the person was injured and how this person
At the court’s request, the prosecutor stated that he had a copy of Taylor’s medical
records which he would be willing to provide to defense counsel. The prosecutor further stated,
“I do want to point out if this goes to trial and the People win, I’m going to be looking for 15
years prison on the top count as well as seven years prison on the Assault, Second, to run
consecutive with each other.” The court told defense counsel that he could have a short amount
of time to review the medical records with Lewis and announced a brief recess for that purpose.
After the recess, both Lewis and his counsel acknowledged that Lewis had an opportunity
to review the medical records. Defense counsel then stated that Lewis wished to avail himself of
the plea offer, and Lewis was sworn under oath. While under oath, Lewis told the court that he
People v. Sandoval, 314 N.E.2d 413 (N.Y. 1974) (a short-hand reference to the
New York procedure under which the trial court determines in advance whether evidence of
prior convictions is admissible in the event that the defendant testifies).
People v. Ventimiglia, 420 N.E.2d 59 (N.Y. 1981) (a short-hand reference to the
New York procedure under which the trial court determines in advance whether evidence of
uncharged crimes is probative for the purpose of showing, e.g., (1) motive, (2) intent, (3)
absence of mistake or accident, (4) common scheme or plan; or (5) identity, and for determining
whether that probative value outweighs the prejudice).
was not under the care of a physician or psychiatrist, was not taking medications of any kind,
and knew of no reason why he could not enter a guilty plea. Lewis confirmed his understanding
that, by entering a plea, he was giving up his right to remain silent and admitting that he
committed the crime. He further informed the court that no one had promised him anything or
threatened him to get him to enter a plea. Lewis acknowledged that he understood that he was
giving up his rights to a jury trial, to have the prosecution prove each and every element of the
crimes charged, and to cross-examine or present witnesses. He acknowledged his understanding
that his guilty plea was “the same as if [he] had been convicted after trial.” Lewis also said that
he understood that he was waiving his right to make motions directed at evidence that the
prosecutor intended to use against him at trial. The court explained to Lewis that, as part of his
plea, Lewis would waive his right to appeal as well as his right to bring motions pursuant to New
York Criminal Procedure Law (“CPL”) § 440. Lewis stated that he understood.
Lewis then acknowledged that he was willing to enter a plea to second-degree assault in
satisfaction of the indictment. Lewis admitted that he had assaulted an individual on or about
February 9, 2007, and he entered the guilty plea. The court then “accept[ed] the plea as having
been knowingly, intelligently and voluntarily made.”
On June 17, 2008, Lewis again appeared in court with his attorney for sentencing.
Defense counsel told the court that, when the parties agreed that Lewis would be sentenced to a
five-year prison term on a guilty plea to second-degree assault, it was with the understanding that
Lewis would be sentenced as a second violent felony offender. However, after Lewis entered his
plea, the prosecution served the defense with a statement of a predicate felony conviction.
Counsel argued that if Lewis was sentenced as a non-violent second felony offender, the
minimum prison sentence available to him was three years. The court noted that the statement of
a predicate felony conviction indicated that Lewis had been convicted of attempted first-degree
rape and two counts of first-degree sexual assault. The court and the prosecutor agreed that
those crimes were violent felonies. Defense counsel additionally noted that the prior convictions
were being appealed but acknowledged that the appeal had no bearing on the sentence in the
instant case. Defense counsel then informed the court that Lewis wished to go along with the
Lewis then addressed the court, complaining that no motions had been filed in his case
and that, although he had reviewed the medical report, he had not seen evidence concerning the
manner in which Taylor was injured. After the court asked Lewis if he wished to withdraw his
plea, Lewis replied, “no, that’s not what I want to do, Your Honor. I don’t want to withdraw the
plea.” The court told Lewis:
I think the facts were laid out sufficiently and I think you evaluated what your
risks were in proceeding to trial and so that you made a judgment call. And whether you
feel you did it or you didn’t do it, you felt that your risk in getting convicted was too
great and that you would have ended up with a worse sentence had you gone to trial, I
assume that’s what you’re saying to me when you entered the plea in the first instance.
Lewis responded, “Essentially, yes.” The court then sentenced Lewis “as a second felony
offender, second violent felony offender” to a determinate prison term of five years plus five
years of post-release supervision.
By papers dated November 24, 2009, Lewis moved pro se pursuant to CPL § 440.10 to
vacate the judgment on the ground that his guilty plea was involuntarily entered because he
received ineffective assistance of counsel. He claimed that his counsel was ineffective because
he: 1) misled Lewis to believe that he had filed pre-trial motions when he had not; 2) advised
Lewis to waive his right to challenge the prosecution’s evidence through motion practice; 3)
advised Lewis to accept the plea offer even though there was insufficient evidence to establish
the serious physical injury element of the assault on a peace officer charge; and 4) coerced Lewis
to plead guilty to avoid facing additional prison time if he was convicted after trial.
On January 7, 2010, the county court denied Lewis’s motion on the ground that, under
CPL § 440.10(2)(b), a CPL § 440.10 motion must be denied when the underlying judgment is
appealable or pending on appeal. The court additionally found that “no facts have been put forth
that the issues raised by the motion were not raised in the appeal that is pending.” Lewis sought
leave to appeal the denial of his motion to the Appellate Division and to consolidate the matter
with his direct appeal. The Appellate Division denied Lewis’s leave application on February 26,
Through counsel, Lewis appealed his conviction, arguing that: 1) his trial counsel was
ineffective because he failed to file an omnibus motion in spite of Lewis’s request, failed to
ensure that Lewis could review grand jury minutes and other discovery material, and failed to
obtain Taylor’s medical records showing his alleged injuries; and 2) Lewis’s waiver of his right
to appeal did not encompass his ineffective assistance of counsel claim. Lewis filed a pro se
supplemental appellate brief, again claiming that he was denied effective assistance of counsel
and that he seemed to be proceeding pro se even though he had not been advised of the risks of
proceeding pro se.
On May 20, 2010, The Appellate Division affirmed the judgment of conviction in its
entirety in a reasoned opinion. People v. Lewis, 899 N.Y.S.2d 923 (N.Y. App. Div. 2010). The
appellate court held that, “[t]o the extent that [Lewis’s ineffective assistance of counsel claim]
impacts the voluntariness of [his] plea, it survives the waiver of his right to appeal.” Id. It
nevertheless concluded that the ineffective assistance of counsel claim was “unpreserved for
review inasmuch as [Lewis] did not move to withdraw the plea or vacate the judgment of
conviction.” Id. The court further concluded that “any challenge involving matters outside the
record are more properly the subject of a CPL article 440 motion.” Id.
By pro se letter dated May 27, 2010, Lewis sought leave to appeal to the Court of
Appeals, arguing that, because he had previously filed a § 440.10 motion to vacate the judgment,
the Appellate Division improperly held that he had not preserved his appellate claim. Lewis’s
appellate counsel also filed a letter with the Court of Appeals seeking leave to appeal to that
court on the grounds raised before the Appellate Division.
By pro se papers dated October 5, 2010, Lewis moved to reargue his direct appeal in the
Appellate Division on the ground that the court overlooked the fact that he had filed a motion to
vacate the judgment that was denied by the trial court and from which the Appellate Division
had denied leave to appeal. On January 6, 2011, the Appellate Division granted Lewis’s motion
for reargument, vacated the May 20, 2010, order, and again affirmed the judgment of conviction.
People v Lewis, 918 N.Y.S.2d 597 (N.Y. App. Div. 2011). The Appellate Division found that,
although Lewis was “initially hesitant” to enter the plea due to his counsel’s failure to make
certain pretrial motions or obtain evidence of the victim’s injuries, the prosecution subsequently
provided Lewis and his attorney with a copy of Taylor’s medical records. Id. The appellate
court acknowledged that, after Lewis and his attorney had an opportunity to examine the records,
Lewis entered his plea. Id. The court found that Lewis “acknowledged that he was entering the
plea voluntarily, and that he understood the rights he was relinquishing and that he had assaulted
the victim.” Id. The court concluded that, given those facts and “the fact that counsel did make
appropriate discovery demands and negotiated a favorable plea,” the court was “satisfied that
[Lewis] was afforded meaningful representation.” Id.
Lewis’s appellate attorney sought leave to appeal to the Court of Appeals, raising the
same ineffective assistance of counsel claims raised in the main appellate brief. Lewis also filed
a pro se letter asking the court to review “the material contained in his post conviction motion.”
The Court of Appeals denied the leave applications on May 17, 2011.
Lewis timely filed a Petition for a Writ of Habeas Corpus to this Court on June 6, 2011.
II. GROUNDS RAISED
In his pro se Petition, Lewis raises three grounds for habeas relief. First, Lewis argues
that his plea was unknowing because his counsel misrepresented the sentence exposure and
coerced him to accept the plea. Lewis likewise contends that his counsel “failed to file any pretrial motion[s] after repeated requests.” Third, Lewis asserts that the court failed to investigate
his claims of conflict with his attorney. Finally, Lewis claims that the court failed to make clear
whether he was adjudicated as a second felony offender or a second violent felony offender.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson,
229 F.3d 112, 118 (2d Cir. 2000). Under the AEDPA, the state court’s findings of fact are
presumed to be correct unless the petitioner rebuts this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Respondent correctly contends that Lewis has failed to exhaust his claim that the trial
court failed to clarify whether he was adjudicated a second violent felony offender or a nonviolent second felony offender. This Court may not consider claims that have not been fairly
presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29
(2004) (citing cases). To be deemed exhausted, a claim must have been presented to the highest
state court that may consider the issue presented. See O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). In New York, to invoke one complete round of the State’s established appellate process,
a criminal defendant must first appeal his or her conviction to the Appellate Division and then
seek further review by applying to the Court of Appeals for leave to appeal. Galdamez v. Keane,
394 F.3d 68, 74 (2d Cir. 2005). Because Lewis did not raise this claim before the state courts
and instead raises it for the first time in this Petition, this claim is unexhausted.
“[W]hen a ‘petitioner failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred,’ the federal habeas court should consider the
claim to be procedurally defaulted.” Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (citation
omitted); see also Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). A habeas petitioner may only
avoid dismissal of his procedurally defaulted claims if he can demonstrate “cause for the default
and prejudice from the asserted error,” House v. Bell, 547 U.S. 518, 536 (2006), or a
“fundamental miscarriage of justice,” Murray v. Carrier, 477 U.S. 478, 495-96 (1986),
superceded by statute on other grounds, United States v. Gonzalez-Largo, No. 2:07-cr-0014,
2012 WL 3245522, at *2 (D. Nev. Aug. 7, 2012). A miscarriage of justice is satisfied by a
showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). Lewis does not
claim that cause exists for his procedural default, nor does he assert actual innocence. Because
Lewis may not now return to state court to exhaust the claim, it may be deemed exhausted but
procedurally defaulted from habeas review. See Ramirez v. Att’y Gen., 280 F.3d 87, 94 (2d Cir.
This Court nonetheless may deny his claim on the merits and with prejudice. See 28
U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.”). This is particularly true where the grounds raised are meritless. See Rhines v. Weber,
544 U.S. 269, 277 (2005). Accordingly, this Court declines to dismiss the claim solely on
exhaustion grounds and will instead reach the merits of the claim as discussed below.
Claim 1. Involuntary Plea
Lewis first argues that counsel “misrepresented the sentence exposure and coerced [him]
to accept [the] plea.” He further alleges:
In trial counsel’s letters to [Lewis], he coerced [Lewis] to accept [the] plea by
repeatedly advising him to do so or be found guilty of two (2) higher degrees of felonies
which carry a penalty of 7-15 [years’] imprisonment. There was insufficient evidence to
support the higher degree of felony. This was not challenged by counsel. Also, counsel
informed [Lewis] that he would be at the mercy of the judge if he went to trial.
The record indicates that defense counsel accurately explained Lewis’s sentencing
exposure to him. Because Lewis was charged with two violent class C felonies and was a
second violent felony offender, he faced a minimum determinate prison sentence of 7 years and a
maximum determinate prison sentence of 15 years. See N.Y. PENAL LAW § 70.04(3)(b). At the
plea proceedings, the prosecutor stated that, if Lewis rejected the plea offer and was convicted of
both counts after trial, the prosecution would seek the maximum prison sentence, with both
counts to run consecutively, for an aggregate prison sentence of 22 years. Although defense
counsel’s recitation of Lewis’s maximum sentence exposure may have had a “discouraging
effect on . . . [his] assertion of his trial rights,” these circumstances are “an inevitable—and
permissible—attribute of any legitimate system which tolerates and encourages the negotiation
of pleas.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Chaffin v. Stynchcombe,
412 U.S. 17, 31 (1973) (internal quotation marks omitted)). Accordingly, the state court’s
decision on the merits of Lewis’s involuntary plea claim based on alleged sentencing threats
neither contravened nor unreasonably applied clearly established Supreme Court precedent.
To the extent that Lewis complains that his plea was involuntary because his counsel did
not obtain discovery that would enable Lewis to challenge the prosecution’s evidence, the record
demonstrates otherwise. As the appellate court found, the record shows that “counsel did make
appropriate discovery demands” by seeking from the prosecution all discovery to which the
defense was entitled. Lewis, 918 N.Y.S.2d at 598.
Moreover, Lewis’s assertion that counsel coerced him into accepting the plea is belied by
the record. Prior to accepting Lewis’s plea, the court stated, “Do you understand that nobody
can force you or threaten you into entering a plea? You must do so voluntarily.” When asked
whether “anybody promised [him] anything or threatened [him] to enter a plea,” Lewis answered
in the negative. A criminal defendant’s self-inculpatory statements made under oath at his plea
allocution “carry a strong presumption of verity,” United States v. Maher, 108 F.3d 1513, 1530
(2d Cir. 1997) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)), and “are generally treated
as conclusive in the face of the defendant’s later attempt to contradict them,” Adames v. United
States, 171 F.3d 728, 732 (2d Cir. 1999). An independent review of the record therefore fully
comports with the state court’s decision on direct appeal rejecting Lewis’s contention that his
plea was involuntary, and Lewis’s claim that his plea was involuntary also fails on habeas
Claim 2. Ineffective Assistance of Counsel
Lewis similarly asserts that his trial counsel was ineffective because he “failed to file any
pre-trial motion[s] after repeated requests” from Lewis. According to Lewis, “[c]ounsel failed to
challenge the indictment and the evidence to support the charges contained in the superseding
indictment. [Lewis] made numerous requests on the record.”
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a
reasonable probability that the outcome might have been different as a result of a legal error, the
defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376,
1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at
393-95. Thus, Lewis must show that his counsel’s representation was not within the range of
competence demanded of attorneys in criminal cases, and that there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).
New York’s test for ineffective assistance of counsel under the state constitution differs
slightly from the federal Strickland standard. “The first prong of the New York test is the same
as the federal test; a defendant must show that his attorney’s performance fell below an objective
standard of reasonableness.” Rosario v. Ercole, 601 F.3d 118, 124 (2d Cir. 2010) (citing People
v. Turner, 840 N.E.2d 123 (N.Y. 2005)). The difference is in the second prong. Under the New
York test, the court need not find that counsel’s inadequate efforts resulted in a reasonable
probability that, but for counsel’s error, the outcome would have been different. “Instead, the
‘question is whether the attorney’s conduct constituted egregious and prejudicial error such that
defendant did not receive a fair trial.’” Id. at 124 (quoting People v. Benevento, 697 N.E.2d 584,
588 (N.Y. 1998)). “Thus, under New York law the focus of the inquiry is ultimately whether the
error affected the ‘fairness of the process as a whole.’” Id. (quoting Benevento, 697 N.E.2d at
588). “The efficacy of the attorney’s efforts is assessed by looking at the totality of the
circumstances and the law at the time of the case and asking whether there was ‘meaningful
representation.’” Id. (quoting People v. Baldi, 429 N.E.2d 400, 405 (N.Y. 1981)).
The New York Court of Appeals views the New York constitutional standard as being
somewhat more favorable to defendants than the federal Strickland standard. Turner, 840
N.E.2d at 126. “To meet the New York standard, a defendant need not demonstrate that the
outcome of the case would have been different but for counsel’s errors; a defendant need only
demonstrate that he was deprived of a fair trial overall.” Rosario, 601 F.3d at 124 (citing People
v. Caban, 833 N.E.2d 213, 222 (N.Y. 2005)). The Second Circuit has recognized that the New
York “meaningful representation” standard is not contrary to the federal Strickland standard. Id.
at 124, 126. The Second Circuit has likewise instructed that federal courts should, like the New
York courts, view the New York standard as being more favorable or generous to defendants
than the federal standard. Id. at 125.
Lewis’s claim must fail, however, even under the more lenient New York standard. First,
Lewis cannot show that he was prejudiced by counsel’s alleged failure to challenge the
indictment because the record indicates that the court determined that the prosecution met its
burden of proof before the grand jury and thus that the indictment was properly issued. See
Lockhart v. Fretwell, 506 U.S. 364, 374 (1993) (O’Connor, J., concurring) (failing to raise a
meritless objection cannot constitute prejudice under a Strickland ineffective assistance of
Furthermore, by pleading guilty, Lewis waived any argument that counsel was ineffective
for failing to challenge the indictment. “A defendant who pleads guilty unconditionally while
represented by counsel may not assert independent claims relating to events occurring prior to
the entry of the guilty plea. ‘He may only attack the voluntary and intelligent character of the
guilty plea by showing that the advice he received from counsel was not within [acceptable]
standards.’” United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (quoting Tollett v.
Henderson, 411 U.S. 258, 267 (1973)); see United States v. Garcia, 339 F.3d 116, 117 (2d Cir.
2003) (“It is well settled that a defendant who knowingly and voluntarily enters a guilty plea
waives all non-jurisdictional defects in the prior proceedings.”). This bar applies as well to
“ineffective assistance claims relating to events prior to the guilty plea.” Coffin, 76 F.3d at 498;
People v. Thomas, 768 N.Y.S.2d 519, 520 (N.Y. App. Div. 2003) (holding that a claim of
ineffective assistance of counsel, based on counsel’s failure to challenge the indictment, was
waived as the alleged failures did not undermine the voluntariness of defendant’s guilty plea).
By voluntarily pleading guilty, Lewis forfeited his right to bring claims premised on actions his
counsel should have taken prior to the plea process.4 Indeed, prior to pleading guilty, Lewis
confirmed that he understood that he was waiving his right to make motions directed at evidence
that the prosecutor intended to use against him at trial. Accordingly, Lewis’s guilty plea, which
the Court concludes was knowingly and voluntarily made, forecloses the remaining ineffective
assistance claims in his Petition.
Claim 3. Attorney Conflict
Lewis additionally claims that the trial court failed to investigate his claims of conflict
with his attorney.
A criminal defendant does not enjoy an unfettered right to counsel of his choice. United
States v. Brumer, 528 F.3d 157, 160 (2d Cir. 2008). However, “[i]t is settled that where a
defendant voices a seemingly substantial complaint about counsel, the court should inquire into
the reasons for dissatisfaction.” United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001)
(quoting McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981)). “When, for the first time, an
accused makes known to the court in some way that he has a complaint about his counsel, the
court must rule on the matter. If the reasons are made known to the court, the court may rule
without more.” Id. (citation and brackets omitted).
Prior to entering his plea, Lewis informed the court, “Well, Judge, at this point, my
attorney and I are in disagreement. There was a matter of motions to be filed.” The court,
having heard the basis of the alleged conflict, declined to inquire about the matter further
The Court further notes that, for the reasons discussed supra, Lewis fails to make
any plausible argument that his guilty plea was not voluntary and intelligent that would allow
him to now argue that this argument should not be waived.
because it wished to first address whether Lewis wished to avail himself of the plea offer.
Although a defendant’s Sixth Amendment right to counsel extends to plea negotiations, see
Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (“Before deciding whether to plead guilty, a
defendant is entitled to ‘the effective assistance of competent counsel.’” (citations omitted)), the
record does not indicate that any conflict with his attorney was so severe as to have deprived him
of competent counsel. Continued representation may violate the Sixth Amendment when the
dispute leads to a complete breakdown in communication between the defendant and his
attorney. United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997). While Lewis expressed
dissatisfaction with his counsel, at no point did he provide evidence of legitimate reasons for the
substitution of counsel, such as a conflict of interest or a complete breakdown of communication.
Although Lewis did have a right to proceed without incompetent counsel, there is simply no
evidence to suggest that his trial counsel was incompetent.
Moreover, there is no evidence to suggest that the trial court unreasonably ignored
Lewis’s concerns about his representation. Indeed, the record indicates that the counsel that
Lewis now complains about was appointed to represent him only after Lewis made similar
complaints about his previous counsel and she asked to be removed from his case. After the
court substituted Lewis’s counsel, it made the following admonishment:
Now, Mr. Lewis, let me offer you a bit of advice. You don’t have to take it if you
don’t want to. Very rarely do I re-assign attorneys, basically, because the attorney is
trained in the practice of law and you’re not. And so I usually give great deference to an
attorney’s position with regard to whatever the representation is, because they are
familiar with what there is and what there isn’t and what they can do and what they can’t
do. They can’t make up things out of whole cloth. They can’t create things that aren’t
And so it’s always extremely difficult, and I find it difficult to relieve an attorney
and assign a new one simply because this isn’t a game we’re playing. It’s an attempt to
allow the wheel of justice to turn in a way that allows everybody to have the same
playing field as on both sides, whether it’s the People or whether it’s the defendant.
So I’m going to advise you that the attorney I’m assigning to you needs to be
informed of what it is that you’re trying to say or do. But decisions made with regard to
what’s filed and what isn’t filed are going to be his. That’s what his job is. And until
you have a law degree and are licensed to practice law in the State of New York, he’s
going to be the spokesman for you okay?
Lewis therefore cannot prevail on his claim that the trial court failed to investigate the
conflict he had with counsel.
Claim 4. Adjudication of Prior Felony Status
Finally, Lewis argues that “the issue of whether [Lewis] was adjudicated as a second
felony offender or second violent felony offender was not clear.”
As an initial matter, Lewis’s claim is not cognizable on federal habeas review because it
does not have federal constitutional implications. Lewis does not contend that his sentence is
illegal under either state or federal law, and he does not point to any United States Supreme
Court authority establishing a federal right to clarification of a sentencing adjudication.
Moreover, the record establishes that Lewis was adjudicated as a second violent felony offender.
The predicate offenses used for his adjudication was his 2005 conviction for the crimes of
attempted first-degree rape and first-degree sexual abuse—both of which are violent felony
offenses. See N.Y. PENAL LAW § 70.02(1)(a),(c). Because sentencing in the instant case
involved another violent felony offense, see id. § 70.02(1)(c), his adjudication as a second
violent felony offender was mandated under New York law, id. § 70.02(1),(2). The record
suggests that defense counsel acknowledged that fact when, during the sentencing proceedings,
he abandoned his efforts to seek Lewis’s adjudication as a non-violent second felony offender.
Although the trial judge initially misspoke when pronouncing Lewis’s sentencing adjudication,
he corrected himself and stated that Lewis was to be sentenced as a second violent felony
offender. Lewis is therefore not entitled to relief on this ground.
Lewis is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1.
Dated: June 19, 2014.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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