Pace v. Miller

Filing 21

DECISION AND ORDER the Petition, Dkt. No. 1 , is DENIED AND DISMISSED in its entirety. 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 certif icate 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 e ncouragement to proceed further.'") (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003))). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See FED. R. APP. P. 22(d); 2d Cir. R. 22.1. Signed by U.S. District Judge Glenn T Suddaby on 8/29/2024. (Copy served upon petitioner via regular mail) (sal )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

WILLIE PACE,
v.

Petitioner,

MILLER,

9:22-CV-0742
(GTS)

Respondent.

APPEARANCES:

OF COUNSEL:

WILLIE PACE
Petitioner, pro se
19-A-2122
Wallkill Correctional Facility
Box G
Wallkill, NY 12589
HON. LETITIA JAMES
Attorney for Respondents
Attorney General of New York
28 Liberty Street
New York, NY 10005

DANIEL P. HUGHES, ESQ.
Ass't Attorney General

GLENN T. SUDDABY
United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Petitioner pro se Wille Pace seeks federal habeas corpus relief pursuant to 28

U.S.C. § 2254. Dkt. No. 1, Petition (“Pet.”). Respondent opposed the petition. Dkt.

No. 18, Answer; Dkt. No. 18-1, Response Memorandum (“Resp.”); Dkt. No. 18-2–18-3,
Supporting Exhibits. Petitioner did not reply. 1
For the reasons below, the petition is denied and dismissed.
II.

RELEVANT BACKGROUND
A. Arrest
On October 15, 2018, the Kingston Police Department (“KPD”) responded to an

“alleged harassment” involving a woman, Shakira Green, and petitioner. Dkt. No. 18-3
at 26-27. Upon arriving on the scene, police interviewed Ms. Green who reported
arguing with petitioner multiple times earlier in the day. Id. at 27-28. Green stated that
petitioner, the father of her child, was unhappy with custody arrangements and
threatened to “boom her[,]” or shoot her. Id. at 28. During the arguments, petitioner
also pantomimed firing a gun in Green’s direction and reached for the waistband of his
pants, indicating he had a gun. Id. at 28-29. Ms. Green then signed a complaint
against petitioner. Id. at 31-32.
Later, on the same day, while patrolling Officer Michael Pederson of the KPD was
advised petitioner’s car was spotted near his location. Dkt. No. 18-3 at 46-47. Officer
Pederson, already aware of the complaint against petitioner and “familiar with” petitioner
based on “prior police interaction[,]” headed to petitioner’s alleged location to monitor
the situation. Id. at 44-46. After arriving at the scene, Officer Pederson, along with
another officer in the area, found petitioner in a driveway next to his vehicle talking to
three individuals. Id. at 47. Eventually, petitioner boarded his vehicle and began to
drive away. Id. at 49. Knowing petitioner did not have a valid drivers’ license, Officer
For the sake of clarity, citations to parties’ submissions refer to the pagination generated by CM/ECF,
the Court’s electronic filing system.

1

Pederson stopped petitioner’s car, and, upon approaching the vehicle, “immediately
smell[ed] a strong odor of marijuana.” Id. at 49, 54-55. Upon questioning, petitioner
admitted to smoking marijuana but stated that he threw the remaining marijuana out of
the car once he saw police approaching. Id. at 56. At that time, Officer Pederson
arrested petitioner in connection with the signed complaint, and other members of the
KPD transported petitioner to the police station. Id. at 56-57. Because of the strong
smell of marijuana, Officer Pederson then searched the car. Id. at 56-57. Officer
Pederson discovered a T-shirt under a seat which, upon closer examination, held an
unregistered revolver. Id. at 56-57.
On December 17, 2018, an Ulster County grand jury returned a one-count
indictment charging petitioner with Criminal Possession of a Weapon in the Second
Degree. Dkt. No. 18-2 at 13.
B. Pre-Trial Hearing
Petitioner filed a pre-trial motion in the Supreme Court, Ulster County seeking to
suppress the gun seized from petitioner’s car. Dkt. No. 18-3 at 83. Petitioner argued
that the discovery of the gun was the product of an illegal search because: (1) one of
the officers at the scene was unsure as to whether the marijuana odor came from
petitioner or the vehicle; and (2) the officers knew or should have known that the heavy
object inside the T-shirt was not marijuana, making it unreasonable to have unwrapped
and “searched” the T-shirt. Id. at 84.
After a hearing, the trial court published a written decision on May 17, 2019,
denying petitioner’s motion. Dkt. No. 18-3 at 83-85. First, the trial court noted that, not
only was there a smell of marijuana, but that petitioner admitted to having marijuana in

the car. Dkt. No. 18-3 at 84. The trial court thus rejected petitioner’s first argument, and
concluded that the smell, coupled with petitioner’s admission, made the search proper
and “reasonably related in scope to police observations[.]” Id. at 84. The trial court also
rejected petitioner’s second contention, noting that “if probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle
and its contents that may conceal the object of the search.” Id. at 85 (internal citation
omitted).
C. Plea Agreement
Following the trial court’s decision, petitioner accepted a plea deal in May 2019
and pled guilty to one count of Criminal Possession of a Weapon in the Second Degree.
Dkt. No. 18-2 at 72-98. In exchange for petitioner’s guilty plea, the judge stated he
planned to sentence petitioner to a 10-year term of imprisonment with 5 years of postrelease supervision and the prosecution agreed to drop three unrelated drug charges
pending against petitioner in Kingston City Court. Id. at 73-74, 79. Petitioner confirmed
that he understood the terms of the plea offer, id. at 81, confirmed that the plea offer, as
recited, constituted the entirety of the promises that the prosecutors and court made to
him, id. at 90, and that no one pressured him into accepting the plea offer, id.
Additionally, petitioner swore he had no mental condition nor had consumed any alcohol
or drugs prior to the hearing that could affect his understanding of the plea offer. Id. at
81. Petitioner stated that he understood that, by accepting the plea agreement, he
forfeited his rights to remain silent, to a jury trial, to a presumption of innocence, and to
call and confront witnesses. Id. at 82-83. Petitioner also confirmed he understood that

he voluntarily waived his right to appeal. Id. at 89-91. Based on petitioner’s
affirmations, the Court accepted petitioner’s guilty plea. Id. at 93.
On the same day, the trial court, in accordance with the plea agreement,
sentenced petitioner to a 10-year term of imprisonment with 5 years of supervised
release. Dkt. No. 18-2 at 94-98.
D. Direct Appeal
Despite waving his right to an appeal in connection with his plea deal, petitioner
appealed his conviction to the New York Appellate Division, Third Department (“Third
Department”). Dkt. No. 18-2 at 1-10. Petitioner argued inter alia that his guilty plea was
not knowing and intelligent due to his defense counsel’s failure to: (1) object when the
trial judge gave petitioner inaccurate information regarding the appellate waiver; (2)
ensure that petitioner “understood the meaning of terms used by [the trial judge]”; (3)
ensure that petitioner understood that he retained “certain appellate arguments” despite
the appellate waiver. Id. at 3.
The Third Department denied petitioner’s appeal. Dkt. No. 18-2 at 103-06. The
Third Department first noted that “[t]o the extent that [petitioner is challenging] the
validity of his waiver of the right to appeal, we find any such challenge to be
unpersuasive.” Id. at 104. The Third Department reasoned that the trial court’s
“explanation of the waiver arguably could have been more expansive[,]” but “the record
reflects that [petitioner] was aware [of the] appeal waiver” and that petitioner had an
opportunity to discuss the waiver with his defense counsel and “understood the nature
of the appeal waiver[.]” Id.

The Third Department then found petitioner’s claim of ineffective assistance of
counsel meritless. Dkt. No. 18-2 at 104-105. The court stated that, as the appellate
waiver was valid, defense counsel could not “be faulted for failing to correct or challenge
the adequacy of the [trial court’s] colloquy [on the waiver.]” Id. at 105. The Third
Department also noted that “given the favorable plea agreement, which included the
dismissal of other pending charges . . ., [the court] find[s] that [petitioner] received
meaningful representation. Id. at 105.
Petitioner filed for leave to appeal to the New York State Court of Appeals. Dkt.
No. 18-2 at 107-114. On July 8, 2021, the Court of Appeals denied petitioner leave to
appeal. Id. at 117.
Petitioner subsequently filed the instant petition on April 20, 2022. Pet. at 1.
III.

PETITION

Petitioner challenges his 2019 judgment of conviction entered by guilty plea in
the Supreme Court, Ulster County. Pet. at 1-14. Petitioner argues he is entitled to
federal habeas corpus relief because: (1) police conducted an improper warrantless
search of his vehicle, id. at 5-6; (2) trial counsel was ineffective for failing to call
petitioner to testify at his grand jury, id. at 6-8; and (3) the stop of his vehicle was
pretextual, id. at 9-11. 2 Petitioner seeks a reduced sentence to the 7-year minimum.
Pet. at 14.
IV.

DISCUSSION 3

Petitioner had a fourth claim, concerning DNA evidence on the revolver, that he voluntarily withdrew as
the claim was unexhausted in state court. See Dkt. No. 7 at 1.
3 Respondent argues that all three claims are unexhausted and that Claims 1 and 3 are procedurally
barred. Resp. at 13-16, 19-20. While the Court is inclined to agree, the petition is plainly meritless, and,
as such, the Court exercises its power under 28 U.S.C. § 2254(b)(2) to deny the petition on the merits for
the reasons discussed below.
2

A. Claim 1: Warrantless Search
Petitioner’s Claims 1 and 3 challenge the legality of KPD’s warrantless search of his
vehicle under the Fourth Amendment. Pet. at 5-6, 9-11. Both claims are barred by
Stone v. Powell, 428 U.S. 465 (1976). Further, following petitioner’s guilty plea and
appellate waiver, Tollett v. Henderson, 411 U.S. 258 (1973), foreclosed federal review of
petitioner’s Fourth Amendment claims.
i.

Stone v. Powell

In Stone v. Powell, the Supreme Court held that “where the state has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, . . . a state prisoner
[is not entitled to] federal habeas corpus relief on the ground that evidence [was]
obtained in an unconstitutional search and seizure[.]” 428 U.S. at 482. Building on
Stone, the Second Circuit has held that habeas review of Fourth Amendment search
and seizure issues may only proceed if: “(a) [] the state has provided no corrective
procedures at all to redress the alleged [F]ourth [A]mendment violations; or (b) [] the
state has provided a corrective mechanism, but the [petitioner] was precluded from
using that mechanism because of an unconscionable breakdown in the underlying
process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson,
568 F.2d 830, 840 (2d Cir. 1977).
Petitioner’s Fourth Amendment claims are barred by Stone unless petitioner can
demonstrate that he did not receive a full and fair opportunity to litigate his Fourth
Amendment claim under either prong of the Capellan test. Capellan, 975 F.2d at 70.
Petitioner does not contend that New York courts failed to provide him with
corrective procedures under the first prong of the Capellan test. Even if petitioner did

make such an argument, numerous federal courts have recognized that New York’s
corrective procedures, of which petitioner availed himself, see Dkt. No. 18-3 at 1-82, are
facially adequate for adjudicating suppression claims. Capellan, 975 F.2d at 70 n.1
(“Indeed, [] federal courts have approved New York’s procedure for litigating Fourth
Amendment claims, embodied in [N.Y. C.P.L.] § 710.10 et seq.”) (internal quotation
marks omitted); Bradley v. LaClair, 599 F. Supp. 2d 395, 409 (W.D.N.Y. 2009) (finding
that New York’s “procedure for litigating Fourth Amendment claims” has been found “by
the federal courts in this Circuit to be facially adequate”) (internal quotation marks
omitted). The Court finds no reason to break with Second Circuit precedent. Thus,
petitioner cannot avoid Stone’s Fourth Amendment bar based on Capellan’s first prong.
Petitioner also does not contend, nor does the record reflect, that there was an
unconscionable breakdown in the state’s corrective procedures. In fact, petitioner
received a suppress hearing, at which he was represented by counsel and argued
before a neutral judge that the warrantless search of his vehicle violated the Fourth
Amendment. See Dkt. No. 18-3 at 1-83. What the Court sees is a situation where
petitioner thinks that the trial court rendered an erroneous decision during an otherwise
uneventful criminal proceeding. However, a “mere disagreement” with a state court’s
Fourth Amendment decision “is not the equivalent of an unconscionable breakdown in
the state’s corrective process.” Capellan, 975 F.2d at 72.
ii.

Tollett v. Henderson

Under Tollett, “[w]hen a criminal defendant has [pled guilty] . . ., he may not
thereafter raise independent [federal habeas] claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.” 411 U.S. at 267;

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 nonjurisdictional defects in the prior proceedings.”). However, “when state law permits a
defendant to plead guilty without forfeiting his right to judicial review of specified
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); Persaud v. Kirkpatrick, No. 15-CV-5645, 2019 WL 2743588, at *8 (E.D.N.Y.
July 1, 2019) (noting that the Supreme Court “recognized an exception to the Tollett
rule” where federal courts could review habeas claims arising out state pre-plea
suppression rulings “when a state provides for appellate review of those issues after a
guilty plea.”).
New York law “specifically permits a defendant to appeal suppression claims
after pleading guilty.” Persaud, 2019 WL 2743588, at *8; N.Y. C.P.L. § 710.70(2). Thus,
under Lefkowitz, a New York prisoner retains their right to challenge pre-plea
suppression decisions via a federal habeas petition. However, when a “defendant
execute[s] a valid waiver of appeal[,]” New York law precludes the appeal of
suppression claims. Persaud, 2019 WL 2743588, at *8 (citing People v. Kemp, 94
N.Y.2d 831 833 (1999)). Consequently, once a New York defendant executes a valid
waiver of appeal, the defendant forfeits their right under Lefkowitz to collaterally attack
pre-plea suppression decisions via a federal habeas petition. Id.; Pena v. Graham, No.
08-CV-3828, 2009 WL 5173819, at *13-14 (S.D.N.Y. Dec. 30, 2009).

Here, petitioner knowingly and voluntarily 4 waived his right to appeal, and,
therefore, waived his right to appeal the trial court’s decision regarding the suppression
claims. As petitioner had no right to appeal the suppression claims in state court,
Lefkowitz does not now let petitioner challenge those suppression claims in federal
court. Without Lefkowitz, petitioner cannot avoid Tollett’s ban, and, as such, petitioner’s
guilty plea prohibits him from seeking habeas relief on “claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett, 411
U.S. at 267.
Accordingly, petitioner’s Fourth Amendment claims are barred by Stone and
Tollett and Claims 1 and 3 of the Petition are denied.
B. Claim 2: Ineffective Assistance of Counsel
Petitioner’s Claim 2 argues that his trial counsel was constitutionally ineffective for
failing to call petitioner to testify at his grand jury. Pet. at 6-8. As petitioner pled guilty,
federal review of petitioner’s ineffective counsel claim is foreclosed by Tollett. Further,
Claim 2 is meritless.
i.

Tollett v. Henderson
As discussed above, under Tollett, a petitioner who has pled guilty may not

pursue federal habeas relief for claims related to the “deprivation of constitutional rights
that occurred prior to the entry of the guilty plea[,]” including ineffective assistance of
counsel claims. 411 U.S. at 267.

Petitioner does not challenge the knowing and voluntary nature of his plea nor does the Court find
substantial evidence in the record that petitioner’s plea was not knowing and voluntary.

4

Only ineffective assistance claims that bear on the voluntariness of a guilty plea
can bypass the Tollett bar. 5 Gomez v. Miller, No. 9:19-CV-1571 (TJM), 2021 WL
5446979, at *12 (N.D.N.Y. Nov. 22, 2021). Such a voluntariness argument “is limited to
[solely] attacking the voluntary and intelligent character of the guilty plea by showing
that the advice [petitioner] received from counsel was not within acceptable standards.”
Id. (cleaned up). “Consequently . . . all claims of ineffective assistance of counsel
relating to events prior to the guilty plea that did not affect the voluntariness of the plea
[are waived].” Canal v. Donelli, No. 9:06-CV-1490 (TJM/DRH), 2008 WL 4287385, at *3
(N.D.N.Y. Sept. 17, 2008); Beckary v. Chappius, No. 1:11-CV-0850, 2012 WL 3045691,
at *10 (W.D.N.Y. July 25, 2012) (“[C]laims[ that] involve counsel’s pre-plea actions and
do not affect the voluntariness of the plea itself[ are] waived by [p]etitioner’s voluntary,
knowing[,] and intelligent guilty plea.”).
Here, petitioner claims that his trial counsel was ineffective for not allowing
petitioner “to testify at [his] grand jury when [petitioner had] requested to [testify].” Pet.
at 6. Petitioner’s argument does not touch on the voluntariness of his guilty plea.
Accordingly, Tollett bars petitioner’s ineffective assistance of counsel claim and Claim 2
is denied.
ii.

Plainly Meritless

Even if Tollett did not bar petitioner’s ineffective assistance of counsel claim, the
claim is plainly meritless. To succeed on a claim of ineffective assistance of counsel, a

5 The Lefkowitz exception to the Tollett bar is only available for Sixth Amendment ineffective assistance
of counsel claims that concern pre-plea constitutional issues because, under New York law, an ineffective
assistance of counsel claim survives a guilty plea only to the extent the claimed ineffectiveness “infected”
the plea process. People v. Abdulla, 98 A.D.3d 1253, 1254 (4th Dept. 2012). Here, petitioner’s ineffective
assistance of counsel claim concerns the counsel’s actions at petitioner’s grand jury and petitioner does
not contend, nor can the Court imagine, that such actions “infected” his plea process.

petitioner must show that: “(1) counsel’s performance was objectively deficient, and (2)
petitioner was actually prejudiced as a result.” Harrington v. United States, 689 F.3d
124, 129 (2d Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
To satisfy the first Strickland prong, a petitioner must establish that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [to]
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Such errors
include omissions that cannot be explained convincingly as resulting from a sound trial
strategy, but instead arose from oversight, carelessness, ineptitude, or laziness.”
Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (cleaned up). When reviewing an
ineffective assistance claim, courts must be “highly deferential” and approach the
analysis with a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” Strickland, 466 U.S. at 689.
The second Strickland prong requires the petitioner to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Courts must look
to the “cumulative weight of error” to determine whether any potential prejudice
“reache[s] the constitutional threshold.” Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir.
2001). “The result of a [criminal] proceeding can be rendered unreliable, and hence the
proceeding itself unfair, even if the errors of counsel cannot be shown by a
preponderance of the evidence to have determined the outcome.” Strickland, 466 U.S.
at 694. Petitioner must meet both “the performance prong [and] the prejudice prong.”
Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).

To satisfy the first Strickland prong, petitioner claims that his trial counsel erred in
not calling him to testify at the grand jury. Pet. at 6-8. “However, courts consistently
have held that counsel’s failure to ensure that a defendant testifies before a grand jury
does not amount to ineffective assistance of counsel.” Chandler v. Moscicki, 253 F.
Supp. 2d 478, 491 (W.D.N.Y. 2003); (citing Kohler v. Kelly, 890 F. Supp. 207, 213
(W.D.N.Y. 1994) (listing cases)). This is especially true, where counsel possesses
strong tactical reasons to not call a defendant to testify. Here, given that police
recovered a gun in petitioner’s car, it is unlikely he could have avoided indictment. As
petitioner’s testimony would not help avoid indictment, testifying at the grand jury had
few advantages and numerous disadvantages, namely granting the prosecution an
advantage in pretrial discovery and providing impeachment and cross examination
material against petitioner at trial. Thus, the Court concludes that petitioner’s trial
counsel acted well within “the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690.
Even if petitioner could satisfy the first prong of Strickland, petitioner cannot
demonstrate prejudice. Given the relatively low burden of proof 6 to obtain a grand jury
indictment in New York and the overwhelming evidence against petitioner, it is highly
unlikely that petitioner testifying before the grand jury would have prevented his
indictment. Even if petitioner testified that the gun did not belong to him, the Court is
not convinced that there is a “reasonable probability” that the grand jury would not have
indicted considering the gun was found in his possession in his car in which petitioner

6 New York grand juries may “indict a person for an offense when (a) the evidence before it is legally
sufficient to establish that such person committed such offense . . . and (b) competent and admissible
evidence before it provides reasonable cause to believe that such person committed such offense.” N.Y.
C.P.L. § 190.65(1).

was driving alone. As such, the Court concludes that petitioner cannot prove counsel’s
actions harmed him. Petitioner’s Claim 2 is therefore denied.
V.

CONCLUSION

WHEREFORE, it is
ORDERED that the Petition, Dkt. No. 1, is DENIED AND DISMISSED in its
entirety;
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 v. Cockrell, 537 U.S. 322, 327 (2003))). Any further
request for a Certificate of Appealability must be addressed to the Court of Appeals.
See FED. R. APP. P. 22(d); 2d Cir. R. 22.1.
ORDERED that the Clerk serve a copy of this Decision and Order on the parties
in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 29, 2024
Syracuse, New York