Weiss v. Superintendent

Filing 32

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge Therese Wiley Dancks' Report and Recommendation (Dkt. No. 27 ) is ADOPTED in its entirety. ORDERED that the petition (Dkt. No. 1) is DENIED and DISMISSED. ORDERED that, because Wei ss has failed to make a substantial showing of the denial of a constitutional rights, no certificate of appealability shall issue pursuant to 28 U.S.C. § 2253(c)(2). ORDERED that the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 10/11/16. (served on petitioner by regular and certified mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MICHELLE WEISS,
Petitioner,

9:13-cv-419
(GLS/TWD)

v.
SUPERINTENDENT,
Respondent.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PETITIONER:
Michelle Weiss
Pro Se
1122 Windy Hill Road
Harker Heights, TX 76548
FOR THE RESPONDENT:
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
120 Broadway
New York, NY 10271

LISA E. FLEISCHMANN
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Petitioner pro se Michele Weiss commenced this habeas corpus
action, alleging that, in prosecuting her and seeking that she be sentenced

as a second felony offender under New York law, the state violated a plea
agreement it entered into regarding a prior conviction. (See generally Pet.,
Dkt. No. 1; Dkt. No. 2.) In a Report and Recommendation (R&R) dated
September 12, 2016, Magistrate Judge Thérèse Wiley Dancks
recommended that the petition be denied and dismissed, and that no
certificate of appealability issue. (Dkt. No. 27.) Pending are Weiss’
objections to the R&R. (Dkt. No. 28.) For the reasons that follow, the R&R
is adopted in its entirety, and the petition is denied and dismissed.
II. Background
The facts, which are more fully stated in the R&R, are nuanced. As
pertinent here, in mid-2007, Weiss pleaded guilty, pursuant to a plea
agreement, to attempted bribing a witness, see N.Y. Penal Law §§ 110.00,
215.00. (Dkt. No. 15, Attach. 5 at 22-36.) In connection with the plea
agreement, the state promised that it would not prosecute Weiss for
perjury related to her contention that her ex-husband assaulted her at a
youth football game in 2005, an event which was then under investigation.
(Id. at 25; Dkt. No. 15, Attach. 2 at 75.) Weiss was sentenced to probation
for a term of five years, which has since expired. (Dkt. No. 15, Attach. 5 at
31.)
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During a deposition in late 2007, Weiss provided sworn testimony in
which she made certain assertions regarding the alleged assault by her exhusband at the football game in 2005. (Dkt. No. 15, Attach. 2 at 40-44.)
As a result, the state charged her with three counts of perjury for which she
was later indicted. (Id. at 7-9.) One count was dismissed by County Court,
but her motion seeking dismissal of all counts for a breach of the plea
agreement was denied. (Dkt. No. 15, Attach. 5 at 55-63.) County Court
reasoned that the plea agreement related to the bribing a witness
conviction did not include any promise to forego prosecution for future
criminal conduct. (Id. at 63.) In 2010, following a jury trial on the
remaining counts, Weiss was found guilty. (Dkt. No. 15, Attach. 2 at 198375.) County Court (Cerio, J.) refused to sentence Weiss as a second
felony offender over the state’s objection; instead, the court imposed two
concurrent five-year terms of probation, and both parties appealed. (Id. at
170-02, 191; Dkt. No. 15, Attach. 7.)
On appeal, the Appellate Division, Third Department, affirmed the
conviction, but vacated the judgment for resentencing, finding that County
Court erred by failing to sentence Weiss as a second felony offender. (Dkt.
No. 15, Attach. 7); People v. Weiss, 99 A.D.3d 1035 (3d Dep’t 2012). The
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New York Court of Appeals denied Weiss’ motion for leave to appeal. See
People v. Weiss, 20 N.Y.3d 1015 (2013). Weiss thereafter commenced
this action. (See generally Pet.)
III. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y.S. Div. of Parole, No. Civ.
904CV484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error.1 See id.
IV. Discussion
In essence, Weiss alleges that her conviction for perjury is
unconstitutional because it violates a previous plea agreement and that
she was improperly sentenced as a second felony offender. (Dkt. No. 2 at

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“[A] report is clearly erroneous if the court determines that there is a mistake of fact or
law which is obvious and affects substantial rights.” Almonte, 2006 WL 149049, at *6.

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6-14.) Judge Dancks misunderstood or omitted important underlying facts,
contends Weiss, which “fatally undermine[s] the [R&R].” (Dkt. No. 28 at 34.) Weiss also argues at some length that the controlling factual findings
of the state court are those of Judge Cerio, not the Appellate Division, and
Judge Dancks’ failure to adhere to the facts as expressed by Judge Cerio
is erroneous. (Id. at 8-11.) The objections — which are better drafted than
most pro se submissions — largely fail to appreciate the intricacies of
habeas corpus jurisprudence, which is undoubtedly a specialized area of
law.
Several of Weiss’ objections are properly characterized as specific
and, therefore, trigger de novo review, while the remainder are a
repackaged version of what she previously argued in the papers
considered by Judge Dancks and warrant review for clear error only. Upon
review, the court reaches the identical conclusion as reached by Judge
Dancks, although a few specific comments are warranted.
As noted in the R&R, to the extent the petition can be read to attack
the conviction stemming from the 2007 plea agreement — which
admittedly conflicts with Weiss’ own characterization of the relief she
seeks, (Dkt. No. 21 at 3) — because her term of probation has expired,
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she is no longer “in custody” on that conviction within the meaning of
§ 2254(a), and she cannot seek habeas relief related thereto. See
Finkelstein v. Spitzer, 455 F.3d 131, 133 (2d Cir. 2006). Moving on to
Weiss’ indirect challenge to the 2007 conviction insofar as it had an impact
on sentencing for perjury, the R&R’s explanation of the controlling law is on
point: Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001),
prohibits such an attack. Only in circumstances not present here may a
petitioner challenge a prior conviction that is subsequently used to
enhance the sentence for a later conviction. Id. at 403-05.
Finally, Weiss’ contention that Judge Cerio’s factual findings are
controlling, (Dkt. No. 28 at 8-11), is mistaken. The Appellate Division is
required under New York law to review questions of both fact and law
when an appeal is taken from a trial court judgment, see N.Y. C.P.L.R.
5701(c), and its factual findings, which are the last such findings on the
primary issue in this case, are “presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). Weiss has failed to rebut the presumption by “clear and
convincing evidence.” Id. In any event, the factual findings are less the
issue here than the legal result that flows from the facts.
The well-reasoned analysis in the R&R is wholly adopted and, as it
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concludes, the state court’s rejection of Weiss’ arguments regarding the
plea agreement and the corresponding effects that it had is neither
contrary to nor involved an unreasonable application of clearly established
federal law as determined by the Supreme Court of the United States. See
28 U.S.C. § 2254(d)(1).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Thérèse Wiley Dancks’ Report and
Recommendation (Dkt. No. 27) is ADOPTED in its entirety; and it is further
ORDERED that the petition (Dkt. No. 1) is DENIED and DISMISSED;
and it is further
ORDERED that, because Weiss has failed to make a substantial
showing of the denial of a constitutional rights, no certificate of
appealability shall issue pursuant to 28 U.S.C. § 2253(c)(2); and it is
further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

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IT IS SO ORDERED.
October 11, 2016
Albany, New York

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