Toye v. Racette

Filing 58

ORDER adopting 44 Report and Recommendations; the petition is denied and dismissed. ORDERED that no Certificate of Appealability ("COA") be issued because Petitioner has failed to make "a substantial showing of the denial of a con stitutional right" as required by 28 U.S.C. § 2253(c)(2). Any further request for a COA must be addressed to the Court of Appeals, in accord with Fed. R. App. P. 22(b). Signed by Judge Brenda K. Sannes on 2/2/18. (Copy served on petitioner via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
LIONEL TOYE,
Petitioner,
v.

9:15-CV-515 (BKS/DJS)

STEVEN RACETTE,
Respondent.
________________________________________________
Appearances:
Lionel Toye
11-A-0726
Attica Correctional Facility
Box 149
Attica, NY 14011
Petitioner, pro se
Michelle Elaine Maerov, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
120 Broadway
New York, NY 10271
Attorney for Respondent
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Pro se Lionel Toye petitions this Court for a writ of habeas corpus, under 28 U.S.C. §

2254, challenging his state conviction for robbery in the first degree, in violation of N.Y. Penal
Law § 160.15(4), and criminal possession of stolen property in the fifth degree, in violation of
N.Y. Penal Law § 165.40. (Dkt. No. 1); see People v. Toye, 107 A.D.3d 1149, 967 N.Y.S.2d 210
(3d Dept. 2013). The Respondent has filed a response to the petition, and Petitioner has

submitted a traverse and supplemental replies in response. (Dkt. Nos. 8, 32, 35, 37). This matter
was referred to United States Magistrate Judge Daniel J. Stewart who, on June 7, 2017, issued a
Report-Recommendation and Order recommending that the petition be denied and dismissed.
(Dkt. No. 44). Magistrate Judge Stewart recommended that no Certificate of Appealability be
issued because Petitioner has failed to make “a substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. § 2253(c)(2). (Dkt. No. 44, at 30-31). Magistrate
Judge Stewart informed the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days
within which to file written objections to the report and that the failure to object to the report
within fourteen days would preclude appellate review. Petitioner filed objections to the ReportRecommendation on July 31, 2017 and also filed supplemental objections on August 21, 2017.
(Dkt. Nos. 55, 57).
II.

STANDARD OF REVIEW
This Court reviews de novo those portions of the Magistrate Judge’s findings and

recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper
objection is one that identifies the specific portions of the [Report and Recommendation] that the
objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atlantic
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (citation omitted). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009).
III.

DISCUSSION
Petitioner has asserted claims challenging: (1) the sufficiency of the evidence of robbery

in the first degree; (2) ineffective assistance of counsel; (3) the failure to reduce the robbery
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conviction to robbery in the second degree; (4) the suggestive nature of the show-up
identification procedure; and (5) the harsh and excessive nature of the sentence. (Dkt. No. 1).
Petitioner seeks an evidentiary hearing. (Dkt. Nos. 38-1, 41).
After thoroughly reviewing the facts and the law, Magistrate Judge Stewart
recommended that Petitioner’s sufficiency challenge be denied because he failed to meet his
heavy burden of establishing that the Appellate Division’s rejection of his sufficiency claim was
objectively unreasonable. (Dkt. No. 44, at 22-24). With respect to a reduction of the offense to
robbery in the second degree, Magistrate Judge Stewart noted that Petitioner’s counsel had
declined to seek this lesser included offense after conferring with Petitioner; that the claim was
procedurally defaulted; and that Petitioner failed to establish cause for the procedural default or
evidence that he is actually innocent. (Dkt. No. 44, at 24-27).
Magistrate Judge Stewart concluded that the county court’s denial of Petitioner’s
ineffective assistance of counsel claim was not an objectively unreasonable application of the
standards in Strickland v. Washington, 466 U.S. 668 (1984), and that his ineffective assistance
claim arising out of the grand jury proceeding was not cognizable on habeas review. (Dkt. No.
44, at 13-22). Magistrate Judge Stewart denied Petitioner’s request for an evidentiary hearing on
the ineffective assistance of counsel claim noting that “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the merits.” (Dkt. No. 44,
at 17-18) (quoting Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011)).
Magistrate Judge Stewart concluded that the New York State Appellate Division’s
rejection of Petitioner’s suggestive identification procedure claim was neither contrary to, nor an
unreasonable application of clearly established Supreme Court precedent. (Dkt. No. 44, at 2729). While the Petitioner did not exhaust his remedies regarding his challenge to the harshness

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of the sentence, Magistrate Judge Stewart recommended that this claim be denied on the merits
because it was within the range prescribed by law and therefore does not provide a basis for
habeas relief. (Dkt. No. 44, at 29-30).
A.

Petitioner’s Objections to the Report-Recommendation

Petitioner objects to Magistrate Judge Stewart’s recommendation regarding his
ineffective assistance of counsel claim and the denial of his request for an evidentiary hearing.
(Dkt. Nos. 55, 57). Specifically, Petitioner argues that the county court unreasonably applied
Strickland or made an unreasonable determination of the facts in light of the record before it
regarding ineffective assistance concerning a pre-indictment plea offer of two to four years. 28
U.S.C. § 2254(d)(1), (2). Petitioner claims that before he was indicted for first degree robbery, a
Class B felony, the District Attorney’s Office offered a plea to robbery in the third degree, a nonviolent Class D felony, with an indeterminate sentence of two to four years and that “his attorney
allowed him to reject such offer without giving him any advice as to the wisdom of so doing.”
(Dkt. No. 55 at 1). Petitioner claims by rejecting this pre-indictment plea offer he subjected
himself to indictment for robbery in the first degree, with increased time for imprisonment, and a
hearing under N.Y. Crim. Proc. Law § 400.16 as a persistent violent felony offender. (Id. at 7).
Petitioner claims that the county court acted prematurely by denying the § 440.10 motion five
days after the People responded to the motion, without given Petitioner time to file a reply. (Dkt.
No. 55 at 13). Petitioner seeks “an evidentiary hearing to resolve factual disputes” underlying
his claim that he was not adequately advised regarding the plea offer. (Id. at 11). He asserts that
the lack of factual development in the county court “was not due to any fault of Petitioner’s, but
rather to the failure of the state court to hold a hearing.” (Id. at 10). 1
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Petitioner also challenges Magistrate Judge Stewart’s conclusions: (1) that there is no federallycognizable ineffective assistance claim concerning advice regarding the state grand jury process; and (2)
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B.

Ineffective Assistance of Counsel

In this case, the county court denied Petitioner’s § 440.10 motion to vacate based on
ineffective assistance of counsel under N.Y. Crim. Proc. Law § 440.10(4)(d), which provides
that “[u]pon considering the merits of the motion, the court may deny it without conducting a
hearing” if certain conditions exist, including the condition here that “there was no reasonable
possibility” that the Petitioner’s allegation was true. (Dkt. No. 20-1). The Court finds that this
was a decision on the merits. See Carrion v. Smith, 549 F.3d 583, 587 (2d Cir. 2008); Garcia v.
Portuondo, 104 Fed. App’x 776, 789 (2d Cir. 2004); Munck v. Amoia, No. 9:16-CV-0118 (GLS),
2016 U.S. Dist. LEXIS 106831, at *13 n.3,2016 WL 4275737, at *4 n.3 (N.D.N.Y. Aug. 12,
2016) (agreeing with “decisions finding that a state court rejection of a CPL § 440.10 motion
pursuant to CPL 440.30(4)(d), is merit based”). A habeas corpus application regarding any
claim adjudicated on the merits must be denied unless the state court’s adjudication “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
To demonstrate constitutionally ineffective assistance of counsel, a petitioner “must (1)
demonstrate that his counsel’s performance fell below an objective standard of reasonableness in
light of prevailing professional norms; and (2) affirmatively prove prejudice arising from
counsel’s deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (internal
quotation marks omitted); see Strickland, 466 U.S. at 688. ”Strickland does not guarantee
perfect representation, only a reasonably competent attorney.” Harrington v. Richter, 562 U.S.
that the Appellate Division’s sufficiency ruling was not objectively unreasonable (Dkt. No. 57, at 1-18).
The Court has reviewed these claims de novo and agrees with Magistrate Judge Stewart, for the reasons
set forth in the Report-Recommendation. (Dkt. No. 44, at 18-19, 22-24).
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86, 110 (2011) (quoting Strickland, 466 U.S. at 687) (internal quotation marks and further
citation omitted). As a general matter, there is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
With respect to plea negotiations, it is “a lawyer’s general duty to advise a defendant
concerning acceptance of a plea bargain.” Fulton v. Graham, 802 F.3d 257, 265 (2d Cir. 2015)
(quoting Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999)). Adequate advice usually
includes “providing information about ‘the strengths and weaknesses of the case against [the
defendant] as well as the alternative sentences to which he will most likely be exposed.’”
Fulton, 802 F.3d at 265 (quoting Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000)). To
establish prejudice with respect to alleged ineffective assistance resulting in a rejection of the
plea offer, “a defendant must show the outcome of the plea process would have been different
with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012).
Meeting this burden is “never an easy task . . . [and] establishing that a state court's
application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Premo v.
Moore, 562 U.S. 115, 122 (2011) (citations and internal quotation marks omitted). When
evaluating an ineffective assistance claim under section 2254(d), “[t]he question is not whether a
federal court believes the state court’s determination under the Strickland standard was incorrect
but whether that determination was unreasonable-a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks and citation omitted).
C.

Petitioner’s Motion Under N.Y. Crim. Proc. Law § 440.10

In support of his motion to vacate, Petitioner submitted a sworn affidavit asserting that
his attorney, Joseph McCoy, “failed to advise defendant on propriety of accepting plea offer of
2-4 years, and instead simply communicated offer without benefit of his professional opinion or

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advice.” (Dkt. No. 20-1 at 45). Petitioner asserted that McCoy did not “advise the defendant of
his possible or potential sentencing exposure after indictment.” (Id. at 47). Petitioner noted that
after he complained about McCoy, the court assigned another attorney, Mr. Berry, to his case.
(Id. at 48). Petitioner asserts that Berry “noted the rejected plea offer,” but that Berry “did not
consult with defendant, as to whether or not accepting plea offer would have been advisable,”
and that Berry “did not counsel or advise defendant on propriety of accepting plea.” (Id. at 48).
The court assigned a third attorney, George Mehm, to represent Petitioner following the
Petitioner’s complaints about Mr. Berry. (Id.). Mehm was, according to Petitioner, “like his
predecessors.” (Id. at 54.) Petitioner asserted that Mehm “did not discuss possible plea
negotiations, despite the defendant’s willingness to plea, and avoid enhanced sentencing.” (Id.).
Petitioner retained private counsel Glen Hammond to represent him at trial. (Id. at 48).
Petitioner asserted that Hammond “failed to confer with defendant regarding any possible
defenses.” (Id.) The New York Appellate Division considered and rejected Petitioner’s
ineffective assistance claim regarding Hammond’s trial performance. People v. Toye, 107
A.D.3d 1149, 1152, 967 N.Y.S.2d 210, 213-14 (3d Dept. 2013).
The People opposed Petitioner’s motion to vacate, arguing that the court should deny it
under N.Y. Crim. Proc. Law § 440.30(4)(d) because the facts necessary to support the motion
were “made solely by the defendant and . . . unsupported by any other affidavit or evidence,” and
under “all the circumstances attending the case, there is no reasonable possibility” that the
Petitioner’s allegations are true. (Dkt. No. 20-1, at 15). 2 The Assistant District Attorney noted
that the Petitioner admits that he was aware of the two-to-four year plea offer; that the
2

Under N.Y. Crim. Proc. Law § 440.30(4)(d), a court considering the merits of a motion to vacate may
deny it without conducting a hearing if “[a]n allegation of fact essential to support the motion (i) is
contradicted by a court record or other official document, or is made solely by the defendant and is
unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances
attending the case, there is no reasonable possibility that such allegation is true.”
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Petitioner’s claim that he was not properly counseled regarding the plea offer was unsupported
by any other affidavit or evidence; that during the course of this proceeding Petitioner asserted
that four consecutive attorneys all failed to counsel him at various stages in his case; and that
Petitioner’s claims were implausible. (Id. at 14-19). 3
The county court denied the Petitioner’s motion without a hearing in accord with N.Y.
Crim. Proc. Law § 440.30(4)(d) because the Petitioner’s claims were unsupported by any other
affidavit or evidence and “under the circumstances of this case, there is no reasonable possibility
that the allegations are true.” (Dkt. No. 20-1, at 4-11). The court found it significant that
Petitioner’s motion entirely omitted the post-indictment plea offer, of twelve to life, that he had
twice rejected. (Dkt. No. 20-1, at 7). The twelve-to-life offer was initially made a week after
indictment, and the court adjourned the proceedings to give Petitioner time to consider it. (Id.).
In an appearance on April 19, 2010, with his attorney Joseph McCoy, Petitioner “indicated his
understanding of the plea offer and stated that he was rejecting the plea offer.” (Dkt. No. 20-1, at
7). Because “[t]hat offer was then withdrawn and there was no plea offer in existence during the
time that Berry was representing” Petitioner, “[i]t would have been impossible for Berry to have
failed to counsel defendant on an offer that did not exist.” (Id.). Petitioner rejected the twelveto-life offer a second time, at the suppression hearing when Petitioner was represented by Mehm.
(Id. at 8). The court noted that the Petitioner “was fully informed of the offers being 12 to life
and he evidenced his unwillingness to plead by twice rejecting the plea offers.” (Id.).
With respect to a pre-indictment offer, the court noted that while pre-indictment
proposals for felony pleas are presented to the court for approval, the procedures do not provide

3

The two-to-four year plea offer was, according to this affidavit, “withdrawn after it was rejected early in
the proceedings.” (Dkt. No. 20-1, at 14). The Respondent notes that the district attorney’s records reflect
that a pre-indictment offer was made, but do not indicate the charge or the sentence that was offered.
(Dkt. No. 8-1, at 22 n.8)
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for a court appearance to reject a pre-indictment offer, and the court did not recall approving a
pre-indictment offer of two to four years, or find any records reflecting that offer. (Id. at 6, 8-9).
In any event, with respect to Petitioner’s claim that he was not counseled on that pre-indictment
offer, the court noted that Petitioner had failed to submit “any evidence in support of this
allegation concerning a lack of explanation or made sworn allegations of fact to support such an
allegation,” 4 and that Petitioner had failed to submit an affidavit from McCoy or explained the
absence of any such affidavit. (Id. at 9). The court noted that on July 15, 2010, Petitioner’s
second attorney – Berry – informed the court that Petitioner “indicated to me very clearly that he
didn’t accept two to four prior to indictment. Why would [he] take 12 to life or anything above
that?” (Id. at 9-10). Based on the record, the court found that “there were conversations
concerning plea offers and that defendant’s reason for not accepting a plea agreement was that he
did not want to plead guilty rather than being due to a lack of adequate explanation from his
attorney.” (Id. at 10). The court concluded that “under the circumstances of this case, there is no
reasonable possibility that the allegations are true,” denied the motion to vacate under §
440.30(4)(d). (Id. at 11).
D.

Analysis

After reviewing de novo Magistrate Judge Stewart’s recommendation regarding
ineffective assistance of counsel in connection with the pre-indictment plea offer, the Court
agrees that the county court decision was neither “contrary to” nor “an unreasonable application”
4

The Court notes that the Petitioner’s affidavit is sworn, and that he did provide some bare bones facts:
he stated that McCoy did not counsel or advise Petitioner “of propriety of accepting plea” or “of the
potential sentencing exposure after indictment.” (Dkt. No. 20-1, at 46-47). The county court recognized
these claims made by Petitioner, see Dkt. No. 20-1 at 5, and under the circumstances of this case,
considering Petitioner’s allegations against multiple counsel and his significant omissions, any failure to
consider the fact that his affidavit was sworn could not have had a meaningful effect on the county court’s
decision. See O’Quinn v. Spiller, 806 F.3d 974, 978 (7th Cir. 2015) (noting that “it cannot be argued that
[a] modest factual mistake had any meaningful effect on the state court’s decision. The factual error had
no constitutional significance”).
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of Strickland, and that it was not based on “an unreasonable determination of the facts in light of
the evidence presented.” 28 U.S.C. § 2254(d).
A state court’s determination of a factual issue is “presumed to be correct,” and that
presumption may be rebutted only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Here, the Petitioner challenged each of the four attorneys who represented him for failing to
provide adequate counsel; he entirely omitted any reference to the discussions that led to his
rejection of the post-indictment plea offers in proceedings before the county court judge; his
allegation that his third attorney – Mehm – failed to discuss plea negotiations was contradicted
by the record; and Petitioner failed to submit any other affidavit or evidence in support of his
bald allegations that McCoy failed to adequately advise him about the pre-indictment plea. The
Court also notes that Petitioner’s sworn assertion that McCoy did not advise him regarding the
plea offer is inconsistent with the Petitioner’s representations to the county court when he
rejected the twelve-to-life offer on April 19, 2010. Petitioner then described advice that McCoy
provided about the two-to-four year offer, which included advice about the impact of Petitioner’s
undischarged parole sentence. (Dkt. No. 10-1, at 8-9). Petitioner acknowledged that McCoy
correctly informed Petitioner that his parole sentence would run consecutively to the two-to-fouryear sentence. (Id.). 5 The presumption of correctness to the court’s factual findings –“there
were conversations concerning plea offers and that defendant’s reason for not accepting a plea
agreement was that he did not want to plead guilty rather than being due to a lack of adequate
explanation from his attorney,” and “there is no reasonable possibility the allegations are true” –

5

At that hearing Petitioner told the court that he would have taken the two-to-four-year offer if he had
known that the two years and three months left on his parole sentence “would go on the back,” making it
two to six, which he described as a “misconception . . . with my counsel.” (Dkt. No. 10-1, at 9).
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has not been rebutted. 6 And the county court’s denial of Petitioner’s ineffective assistance of
counsel claim in connection with the pre-indictment plea offer was not an unreasonable
determination of the facts in light of the evidence presented.
Finally, Magistrate Judge Stewart correctly determined that that there is no basis for an
evidentiary hearing because when a claim has been adjudicated on the merits in state court,
“review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).
The Court has reviewed the remaining portions of the Report-Recommendation for clear
error and found none. Therefore it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 44) 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 no Certificate of Appealability (“COA”) be issued because
Petitioner has failed to make “a substantial showing of the denial of a constitutional right” as
required by 28 U.S.C. § 2253(c)(2). Any further request for a COA must be addressed to the
Court of Appeals, in accord with Fed. R. App. P. 22(b); and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with

6

Even the letter to McCoy that Petitioner submitted to the county court, in his reply following
the court’s ruling, does not support the Petitioner’s allegation. The letter does not document any
complaint about inadequate advice; Petitioner complained about McCoy’s failure to give him
advance notice of the pre-indictment offer. In the letter, Petitioner asked McCoy for an affidavit
acknowledging that Petitioner complained to the court on April 5, 2010 about McCoy’s failure to
tell Petitioner about the offer until the grand jury date. (Dkt. No. 20-1 at 38; see also Dkt. No. 55
at 17 (letter to court reporter seeking a transcript of April 5, 2010 proceeding where Petitioner
informed Court that his attorney refused to notify him of the two-to-four year plea offer “in
advance” of the grand jury date)).
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the Local Rules.
IT IS SO ORDERED.
Dated: February 2, 2018

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