Charleston v. Gonyea
Filing
22
MEMORANDUM DECISION AND ORDER: For all of the reasons set forth above, the petition for habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. Charleston has not made a substantial showing of a denial of a f ederal right pursuant to 28 U.S.C. § 2253(c), and appellate review is therefore unwarranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). (Signed by Judge Katherine B. Forrest on 3/20/2013) Copies Sent By Chambers. (ago)
USDC SD,,\Y
DOC{"lI'T
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ELECII~O,\ICALLY
FILED
DOC #:_ _ _ _ _ _ __
DATE FI LF. I) :...QU::W+-~\+-JI1f++
JAMES CHARLESTON,
Petitioner,
11 Civ. 5694 (KBF)
MEMORANDUM
DECISION & ORDER
·v·
P. GONYEA, Superintendent, Mohawk
Correctional Facility, State of New York,
Respondent.
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KATHERINE B. FORREST, District Judge:
On July 29, 2011, James Charleston, pro se, filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2554. Charleston seeks relief from
his June 8,2009, conviction following a guilty plea in Supreme Court, New York
County, for Attempted Criminal Sale of a Controlled Substance in the Third Degree.
He was sentenced to four years in prison and one and one-half years of post-release
supervISIOn.
At his sentencing, Charleston's attorney "announced" that he wished to
withdraw his plea; the court denied that motion. In December 2010, Charleston
appealed his conviction; in October 2011, after two substitutions of counsel and
other procedural delays in which Charleston himself played an active role, the First
Department unanimously affirmed his conviction. Leave to appeal to the New York
Court of Appeals was denied. People v. Charleston, 88 A.D.3d 549, leave denied, 19
N.y'3d 863 (2012).
1
Charleston brought his pro se habeas petition while still in custody. He was
released and commenced his period of supervision on April 16, 2012; that period
terminates on October 16, 2013. 1 In his petition, he asserts four grounds as bases
for relief: (1) the state court's failure to hold a hearing on his post-conviction claim
of innocence violated his due process rights; (2) ineffective assistance of counsel; (3)
the government's failure to produce arrest records of another individual violated
Brady v. Maryland, 373 U.S. 83 (1963); and (4) the delay in resolving his direct
appeal was excessive and violated his due process rights.
FACTUAL BACKGROUND
On September 20, 2008, Charleston was arrested for selling crack cocaine to
an undercover police officer on Seventh Avenue between 145th and 146th Streets in
Manhattan, close to a school. After the undercover officer purchased the drugs from
Charleston, he transmitted detailed descriptions of Charleston to a nearby arrest
team. When the team arrived on the scene, the undercover officer identified
Charleston, who was then arrested. Officers also arrested two other individuals at
the scene, Rhonda McCrimmons and Bruce Paul. Upon searching Charleston, the
team discovered the pre-recorded buy money it had given the undercover officer in
order to purchase the drugs.
On September 30,2008, a New York County grand jury indicted Charleston
on charges of (1) Criminal Sale of a Controlled Substance in the Third Degree; (2)
1
See Letter from Leilani Rodriguez to the Court, dated March 18, 2013. (ECF No. 21).
2
Criminal Possession of a Controlled Substance in the Third Degree; and (3)
Criminal Sale of a Controlled Substance in or near School Grounds.
On April 28, 2009, a state court judge denied Charleston's motion to suppress
both the pre-recorded buy money and the undercover officer's post-arrest
identification. In June 2009, Charleston pled guilty to Attempted Criminal Sale of
a Controlled Substance in the Third Degree. In his allocution, he waived his rights
to a trial and not to incriminate himself, and admitted his guilt. He was
subsequently sentenced to four years imprisonment and one and one-half years of
post-release supervision.
According to Charleston, he had previously provided his attorney with a pro
se motion to withdraw his plea on the basis of his innocence - and that such motion
had not been submitted to the trial court. However, at Charleston's sentencing, his
attorney informed the court that Charleston wished to withdraw his guilty plea. No
basis for the motion was provided; when the Court asked Charleston whether he
wanted to add anything to the record, he declined. The court denied the motion.
On December 15, 2009, Charleston, acting pro se, moved to vacate the
judgment of conviction, claiming ineffective assistance of counsel. He also
requested a hearing on the issue of his actual innocence on the basis that one of the
two other individuals arrested on the same day, Bruce Paul, had been the seller.
The court denied Charleston's motion.
In connection with its decision, the trial court had conducted an in camera
review of Paul's arrest records and had also reviewed photographs of the two men.
3
The court noted that Charleston's admission of guilt at the plea allocution along
with the statement of another individual arrested with Charleston, Rhonda
McCrimmon, that she had worked with Charleston to sell crack cocaine to the
undercover officer, provided strong evidence of Charleston's guilt. The court also
noted that based upon its review of the photographs, Charleston and Paul do not
look alike. The court found that contrary to his assertion of ineffective assistance of
counsel, Charleston's lawyer had ably represented him at the suppression hearing
and then obtained a beneficial plea deal for him. Charleston moved the Appellate
Division for leave to appeal this decision but on September 7, 2010, that application
was denied.
In December 2010, Charleston appealed his conviction to the First
Department. His appeal was based on three arguments: (1) the trial court erred in
denying his motion to withdraw his guilty plea; (2) the government violated People
v. Rosario, 9 N.Y.2d 286 (1961), by failing to turn over the police paperwork relating
to Paul; and (3) his sentence was excessive. On October 20, 2011, the First
Department unanimously affirmed his conviction; on May 24,2012, the New York
Court of Appeals denied his application for leave for to appeal. Charleston filed the
instant petition pro se on August 4, 2011 (it is dated July 29, 2011); it became fully
briefed on July 27, 2012.2
2 The petition was originally dismissed as jurisdictionally defective because petitioner's direct
appeals were then still pending. (ECF No.5.) Petitioner appealed the dismissal to the Second
Circuit; the dismissal was vacated and remanded back to this Court for decision. (ECF No.7.) This
petition is timely; it must be filed within one year of petitioner's state court conviction becoming
final; and it was.
4
DISCUSSION
A. Standard of Review
To prevail on a petition for habeas corpus, the Antiterrorism and Effective
Death Penalty Act ("AEDPA"), requires that a petitioner demonstrate that the state
court's decision was "contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court" or "was based on an
unreasonable determination of the facts in light of the evidence presented." 28
U.S.C. § 2254(d)(1)-(2). This is a high burden and a reviewing court must give a
state court decision due deference. See Harrington v. Richter, 131 S. Ct. 770, 786
87 (2011) ("If this standard is difficult to meet, that is because it was meant to be.");
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (noting that section 2254's "highly
deferential" standard "demands that state-court decisions be given the benefit of the
doubt").
B. Failure to Hold a Post-Conviction Evidentiary Hearing
Petitioner's first argument for relief is based on the trial court's failure to
hold a post-conviction hearing on his assertion of "actual innocence." However, no
constitutional provision requires that state courts grant such post-conviction
review, Pennsylvania v. Finley, 481 U.S. 551, 557 (1987), and most federal courts
have rejected due process claims arising out of the conduct of post-conviction
proceedings. See, e.g., Jones v. Duncan, 162 F. Supp. 2d 204, 217 (S.D.N.Y. 2001)
(stating that "federal habeas review is unavailable to redress alleged procedural
errors in state post-conviction proceedings") (citing Franza v. Stinson, 58 F. Supp.
2d 124, 151 (S.D.N.Y. 1999».
5
Although the Second Circuit has not spoken directly on this issue, district courts
within the circuit have adopted the rule articulated in Jones. See, e.g., Word v.
Lord, 04 Civ. 328,2009 WL 4790222, at *6 (S.D.N.Y. Dec. 11,2009) (collecting
cases). This Court adopts the rationale set forth in Jones and finds that the state
court's refusal to hold an evidentiary hearing on Charleston's motion does not give
rise to habeas relief.
C. Ineffective Assistance of Counsel
To support a claim of ineffective assistance of counsel, Charleston must
satisfy two inquiries: (1) that his attorney provided deficient representation, and (2)
even if that occurred, that he was actually prejudiced. Strickland v. Washington,
466 U.S. 681, 687-88 (1984).
Under the first Strickland inquiry, counsel's conduct must have "so
undermined the proper functioning of the adversarial process" that the process
cannot be relied on to produce a just result. Id. at 686. The law, however, provides
for a strong presumption that counsel has provided adequate assistance and utilized
reasonable professional judgment. Id. at 689. The second Strickland inquiry only
needs to follow if a court has determined that there has in fact been a deficiency in
representation. If such a determination has not been made, the court need go no
further. However, even assuming deficient assistance, a petitioner must prove that
but for the deficient representation, the result of the proceeding would have been
different. Id.
6
In addition to the Strickland test, a reviewing court is also required to ask
whether the allegedly deficient legal representation occurred before or after entry of
a guilty plea. Once a defendant has entered a guilty plea, and admitted his guilt, he
stands in a different position before the court: "[a] guilty plea represents a break in
the chain of events which has preceded it in the criminal process." Tollet v.
Henderson, 411 U.S. 258, 267 (1973). Having admitted his guilt, a defendant "may
not thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea." Id. (emphasis added.)
Here, Charleston raises six separate bases in support of his ineffective
assistance of counsel claim: (1) failure to investigate surveillance tapes that would
allegedly have exonerated him; (2) failure to move to dismiss the indictment as
jurisdictionally defective where it allegedly omitted elements of the crime and
allegedly accused Charleston of a crime for which he was not arrested; (3) failure to
impeach the sole prosecution witness at the suppression with prior statements; (4)
failure to move to dismiss the indictment based on lack of eye witness or physical
evidence; (5) failure to object or make a record with respect to allegedly false
testimony by a prosecution witness; and (6) refusal to make a motion to withdraw
his guilty plea. 3
Of Charleston's six arguments in support of his claim of ineffective assistance
of counsel, five occurred prior to the plea, when petitioner's plea "broke the chain of
3 Petitioner's Affidavit in Support lists eight bases for ineffective of counsel, however two of them
relate to alleged misconduct by the appellate court (failure to timely decide his appeal in violation of
his due process rights), and the prosecution's suppression of Paul's arrest paperwork that petitioner
asserts would have been exculpatory. (ECF No. 1 ~ 8.)
7
events". Bases (1) - (5) as set forth above cannot form the basis for habeas relief in
the absence of a determination that it was error not to allow withdrawal of the plea
itself. See. e.g., United States v. Coffin, 76 F.3d 494 (2d Cir. 1996). As set forth
below, this Court does not so find; and these five bases are therefore irrelevant on
this petition.
Charleston's only remaining basis for his ineffective assistance of counsel
claim was that his attorney failed to move to withdraw Charleston's guilty plea at
his sentencing hearing. Because such a motion was in fact made, this argument
immediately fails.
The recitation of facts above demonstrates that the issue of Charleston's
desire to withdraw his guilty plea was placed before the trial court; the court even
asked Charleston if he wanted to address this issue, but Charleston declined to do
so. The very issue petitioner therefore claims was not raised, was - this eliminates
the sole remaining basis for his ineffective assistance claim. That Charleston may
have himself previously drafted a pro se motion to withdraw the plea, and that this
pro se motion was not submitted to the court is irrelevant. The fact remains that a
motion was made - at his sentencing Charleston's attorney informed the court that
he wanted to withdraw his plea. That was sufficient to raise the issue.
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D. The Brady and Delay Claims
In his petition, Charleston also asserts that his constitutional rights were
violated when certain arrest materials relating to Paul were not provided to him,
and because of how long his appeal took.
There is no doubt or dispute that the Due Process clause of the Constitution
requires that the prosecution provide a criminal defendant with any favorable
evidence in its possession that is material to issues of guilt or punishment. Brady v.
Maryland, 373 U.s. 83, 87 (1963). Material evidence is evidence that, if disclosed,
would have created a reasonable probability that the result of the proceeding in
question would have been different. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
A Brady violation requires that a court determine that three elements have been
met: (1) the evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) such evidence must have been
suppressed by the government; and (3) prejudice must have ensued. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
Here, petitioner's claim fails on the first factor. The trial court reviewed the
very information that petitioner here claims would have been exculpatory - and
found that it was not. That determination eliminates any basis for a Brady
violation. See United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (finding after in
camera review that sealed materials did not contain exculpatory information that
would support a Brady claim). The trial court determined that Paul's arrest papers
were not exculpatory as to petitioner. Furthermore, after examining pictures of the
9
two men, the court determined that they looked nothing alike, thereby undermining
a claim of mistaken identity in the arrest.
Petitioner's claim of undue delay is also without merit. It is certainly true
that once a state grants a defendant in a criminal case the right to appeal, due
process requires that the appeal be heard promptly. Elcock v. Henderson, 947 F.2d
1004, 1007 (2d Cir. 1991) (quoting Mathis v. Hood, 937 F.2d 790, 791 (2d Cir.
1990». To determine whether any delay has been excessive, the court examines
four factors; (1) was the delay in fact excessive; (2) if so, is there an acceptable
excuse for such delay; (3) did petitioner assert his right; and (4) did prejudice
ensue. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Elcock, 947 F.2d at 1007.
4
While the Second Circuit has been critical of long appellate delays, see
Muwwakkil v. Hoke, 968 F.2d 284 (2d Cir. 1992) (finding a thirteen-year delay
excessive); Cody v. Henderson, 936 F.2d 715 (2d Cir. 1992) (finding a ten-year delay
excessive), no such delay occurred here. Charleston's entire appellate process was
completed in less than three years - a time span that does not compare to the above
cases and cannot give rise to a constitutional violation. In fact, delays longer than
Charleston's have been found not to be excessive. See Vazquez v. Bennett, 00 Civ.
2070, 2002 WL 619282 (S.D.N.Y. April 17, 2002) (finding that a four-year delay in
deciding petitioner's direct appeal did not violate his due process rights). This
finding alone is fatal to petitioner's delay-based due process claim.
4
It is clear that petitioner did pursue his appeal; the third Barker factor has been met.
10
In addition, however, the majority of the delay was attributable to choices
made by Charleston himself. Cf. Barker, 407 U.S. at 529 ("We hardly need add that
if delay is attributable to the defendant, then his waiver may be given effect ....").
Charleston replaced his appellate counseL His direct appeal was decided only ten
months after his new counsel submitted a brief on his behalf.
Finally, Charleston was not prejudiced by the delay. As the Second Circuit
has recognized, prejudice does not ensue if the appeal would have had the same
result absent the delay. Diaz v. Henderson, 905 F. 2d 652,653 (2d Cir. 1990)
(finding that prejudice did not occur because defendant "could not conscientiously
claim that appeal would have had a different result absent the delay."). Here, the
Appellate Division found Charleston's claims meritless and affirmed his conviction.
Charleston puts forth no evidence that the delay impacted the First Department's
decision or that, absent the delay, the First Department would have decided his
appeal differently. Thus, the appellate delay did not affect the decision nor did it
prejudice Charleston's appeal. Lastly, the delay did not prevent Charleston from
any other post-conviction relief proceedings, as evidenced by the current petition.
11
CONCLUSION
For all of the reasons set forth above, the petition for habeas corpus is denied.
In addition, the Court declines to issue a certificate of appealability.
Charleston has not made a substantial showing of a denial of a federal right
pursuant to 28 U.S.C. § 2253(c), and appellate review is therefore unwarranted.
Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005).
The Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith. Coppedge v. United States, 369
U.S. 438, 445 (1962).
SO ORDERED:
Dated: New York, New York
March 20, 2013
Katherine B. Forrest
United States District Judge
Copy to:
James Charleston
Mohawk Correctional Facility
6100 School Road
P.O. Box 8451
Rome, NY 13442
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