Douglas v. Capra
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 disagree with the district court's resolution of his constitutional claims or that jurists could conclude t he 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. Signed by Judge James K. Singleton on 5/29/2014. (ptm) (Copy served on petitioner by regular mail)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MICHAEL CAPRA, Superintendent, Sing
Sing Correctional Facility,
Marcello Douglas, 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. Douglas is currently in the
custody of the New York State Department of Corrections and Community Supervision and is
incarcerated at Sing Sing Correctional Facility. Respondent has answered, and Douglas has not
I. BACKGROUND/PRIOR PROCEEDINGS
On direct appeal of his conviction, the Appellate Division described the following facts
underlying Douglas’s case:
[Douglas], armed with a semiautomatic handgun, approached an SUV containing
multiple individuals and fired the gun several times into the driver’s side of the car. The
driver was struck multiple times in the chest and abdomen. He underwent surgery,
during which portions of his liver and intestine had to be removed; a bullet that was
located approximately one centimeter from his heart could not be removed.
Shortly after the shooting, [Douglas] was arrested, interrogated by police and
confessed to the shooting. He was subsequently charged with attempted murder in the
second degree, assault in the first degree and two counts of criminal possession of a
weapon in the second degree. After his motion to suppress his statements to the police
was denied, [Douglas] pleaded guilty to all charges. Pursuant to a plea agreement,
County Court sentenced [Douglas] to an aggregate prison term of 12 years to be followed
by five years of postrelease supervision.
People v. Douglas, 931 N.Y.S.2d 799, 799 (N.Y. App. Div. 2011).
Through counsel, Douglas appealed his conviction, arguing that: 1) the trial court erred
when it denied his motion to suppress; and 2) his sentence is unduly harsh and should be reduced
in the interest of justice. The Appellate Division affirmed his conviction in a reasoned opinion.
Douglas, 931 N.Y.S.2d at 799. Douglas sought leave to appeal the decision to the Court of
Appeals, which was summarily denied on January 11, 2012.
Gregory timely filed a Petition for a Writ of Habeas Corpus to this Court on January 9,
II. GROUNDS RAISED
In his pro se Petition before this Court, Douglas raises the same arguments that he
presented to the state courts on direct appeal. First, he argues the trial court erred when it denied
his motion to suppress his statements to the police. He additionally claims that his sentence is
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).
Douglas has not replied to Respondent’s answer. The relevant statute provides that
“[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show
cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the
extent that the judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also
Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no
evidence offered to contradict the allegations of the return, the court must accept those
allegations as true. United States ex rel. Catalano v. Shaughnessy, 197 F.2d 65, 66-67 (2d Cir.
1952) (per curiam).
Claim One: Erroneous Denial of Suppression Motion
Douglas first argues that statements he made to the police “should have been suppressed
because [he] was taken into custody and interrogated and was only advised of his rights under
Miranda after he made an incriminating statement.” The appellate court denied this claim,
[Douglas] contends that County Court should have accepted his testimony at the
suppression hearing that Detectives Robert Henry and Brian Robertson interrogated him
and extracted his confession prior to turning on a recording device and reading him his
Miranda rights. In contrast, the People presented the detectives’ testimony that
[Douglas] was read his Miranda rights before he was initially questioned and was read
them again when the recorder was turned on to memorialize [Douglas’s] inculpatory
statements concerning his involvement in the shooting. The recording device also
captured Robertson stating that he was “going to—again . . . go over . . . [Miranda]
warnings” and further reflects that [Douglas] was asked if he was treated fairly or if he
had any complaints regarding his treatment, to which he answered that he had been
treated fairly. County Court was in the best position to observe the witnesses, and its
credibility determinations are entitled to great deference. Accordingly, we find no basis
to disturb its determination to credit the detectives’ testimony over [Douglas’s] version
of the events and to deny [Douglas’s] motion to suppress his confession.
Douglas, 931 N.Y.S.2d at 800 (internal citations omitted).
In general, a defendant who pleads guilty to a charged offense “may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). However, “when state
law permits a defendant to plead guilty without forfeiting his right to judicial review of specified
Miranda v. Arizona, 384 U.S. 436 (1966).
constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in
a federal habeas corpus proceeding.” Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).
Pursuant to New York Criminal Procedure Law (“C.P.L.”) § 710.70(2), a criminal defendant
may appeal an adverse decision on a pretrial motion to suppress evidence, despite being
convicted upon a guilty plea. See United States ex rel. Sanney v. Montanye, 500 F.2d 411, 414
(2d Cir. 1974) (holding that habeas petitioner did not waive by guilty plea constitutional claims
arising from “illegal interrogation,” including a claim challenging admissibility of statements
made without Miranda warnings). Because he sought to suppress his statements to the police
prior to pleading guilty, Douglas has not waived his right to challenge the admissibility of those
statements through a habeas corpus petition. See Perez v. Ercole, No. 09 Civ. 2180, 2010 WL
2541974, at *4 n.3 (S.D.N.Y. June 22, 2010).
The Supreme Court has held that an individual subjected to custodial interrogation by
law enforcement personnel “must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.” Miranda, 384 U.S. at 479. At the
suppression hearing, Detectives Robertson and Henry both testified that, following initial
introductions and Henry’s statement to the effect that Douglas had been implicated in a certain
matter by multiple witnesses, Robertson advised Douglas that he wanted to talk to him but that
first he was going to advise Douglas of his Miranda rights. According to both Robertson and
Henry, Robertson then read the Miranda warnings to Douglas. Moreover, in response to
Robertson’s inquiry, Douglas responded that he understood each right that had been explained
and that he was willing to speak to the detectives without the benefit of counsel. When the tape
recording device was turned on, Robertson remarked, “All right, Marcello, I’m going to—again
I’m going to go over, uh, Miranda warnings.” Douglas again confirmed on the recording that he
understood each of the rights of which he was advised.
Douglas nonetheless asserts in his Petition that he was advised of his Miranda rights only
after he had made the incriminating statements. But Douglas’s arguments are nothing more than
an attack on the testimony of the police officers. Douglas misperceives the role of a federal
court in a federal habeas proceeding attacking a state-court conviction. This Court is precluded
from either re-weighing the evidence or assessing the credibility of witnesses. This Court’s role
is simply to determine whether there is any evidence, if accepted as credible by the trier of fact,
sufficient to sustain the finding of fact. See Schlup v. Delo, 513 U.S. 298, 330 (1995). In the
absence of clear and convincing evidence to the contrary, this Court is bound by the factual
findings of the state court. 28 U.S.C. § 2254(e)(1); Miller-El, 537 U.S. at 340. Douglas is
therefore not entitled to relief on this claim.
Claim Two: Harsh and Excessive Sentence
Douglas additionally argues that his sentence is unduly harsh. Pet. at 4. Considering this
claim on direct appeal, the appellate court found no abuse of discretion and declined to reduce
the sentence in the interest of justice given “the violent nature of the crime and the serious effect
it had on the victim.” Douglas, 931 N.Y.S.2d at 800. In support of this claim, Douglas asserts
in his Petition that:
[Douglas] was an 18-year-old at the time of the instant offense; had one prior
Juvenile Adjudication; cooperated with authorities and expressed remorse. [Douglas]
has no prior adult criminal history, yet the sentencing court imposed a sentence
significantly longer than the permissible minimum, and [Douglas] submits the
circumstances of his case warrant a reduction of his sentence to the minimum.
Douglas was convicted, upon his guilty plea, of attempted murder in the second degree,
assault in the first degree and two counts of criminal possession of a weapon in the second
degree. Douglas, 931 N.Y.S.2d at 799. For the attempted murder and assault counts, the court
was required to impose a determinate sentence of between 5 and 25 years. N.Y. PENAL LAW
§ 70.02(3)(a). The imposed sentence of 12 years for attempted murder and 10 years for assault
falls within the statutory guidelines. For the second-degree weapon possession counts, the court
was required to impose a determinate sentence of between 3½ and 15 years. N.Y. PENAL LAW
§ 70.02(3)(b). The imposed sentence of 5 years also falls within the statutory guidelines. The
court was also required to impose a 5-year term of post-release supervision for each crime. N.Y.
PENAL LAW § 70.45(1). The sentences ran concurrently, resulting in an aggregate sentence of 12
years’ imprisonment plus 5 years of post-release supervision. Douglas, 931 N.Y.S.2d at 799800.
It is well-settled that an excessive sentence claim may not be raised as grounds for
federal habeas corpus relief if the sentence is within the range prescribed by state law. White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam); Bellavia v. Fogg, 613 F.2d 369, 373
(2d Cir. 1979) (setting mandatory sentences is solely the province of state legislature);
Hernandez v. Conway, 485 F. Supp. 2d 266, 284 (W.D.N.Y. 2007) (excessive sentence claim
does not present a federal question cognizable on habeas review where the sentence was within
the range prescribed by state law). Because the sentences imposed were within the statutory
range prescribed by New York law, Douglas cannot prevail on this claim either.
Douglas 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: May 29, 2014.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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