Elliot v. Kirkpatrick
Filing
54
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION for 46 Report and Recommendations. The Court agrees with Judge Fox's well-reasoned Report and hereby adopts its reasoning in its entirety. Accordingly, it is ordered that the Petition is D ISMISSED with prejudice. Since Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). Pursuant to 28 U.S.C. § 1915(a), any appeal from t his Order would not be taken in good faith; therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate all pending motions, adjourn a ll remaining dates, and close this case. The Clerk of Court is also directed to transmit a copy of this Opinion and Order to Petitioner at his address of record. (Signed by Judge Katherine Polk Failla on 11/13/2020) (rro) Transmission to Docket Assistant Clerk for processing.
Case 1:17-cv-07529-KPF-KNF Document 54 Filed 11/13/20 Page 1 of 20
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LAWRENCE ELLIOT,
Petitioner,
-v.MICHAEL KIRKPATRICK,
17 Civ. 7529 (KPF)
OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION
Respondent.
KATHERINE POLK FAILLA, District Judge:
Pending before the Court is the June 19, 2019 Report and
Recommendation from United States Magistrate Judge Kevin Nathaniel Fox
(the “Report” (Dkt. #46), attached), addressing Petitioner Lawrence Elliot’s
petition for a writ of habeas corpus (the “Petition”). Judge Fox recommends
that the Petition be dismissed in its entirety.
The Court has examined the Report, Petitioner’s August 2, 2019
objections to the report (Dkt. #50), 1 and Respondent’s September 3, 2019
submission in response to the objections (Dkt. #51), as well as the parties’
submissions before Judge Fox and the underlying record of the state
1
Petitioner’s September 11, 2019 supplemental response (Dkt. #52) was submitted without
the Court’s permission and well after the deadline to file his objections had passed. (See
Dkt. #49). Accordingly, the Court rejects this untimely and unsanctioned filing, as it
finds no grounds on which to excuse Petitioner’s untimeliness in the interest of justice.
See United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir. 1997) (observing that a
party’s failure to file timely objections may be excused “‘in the interest of justice’”)
(quoting Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)). Nonetheless, the Court has
reviewed this submission in order to discern pro se Petitioner’s strongest arguments, and
finds that the reply submission largely repeats previously-raised arguments and thus
need not be considered here. And to the extent Petitioner’s submission raises new
arguments and factual assertions, as discussed in greater detail below, the Court cannot
consider new arguments that Petitioner failed to raise before Judge Fox. See United
States v. Gladden, 394 F. Supp. 3d 465, 480 (S.D.N.Y. 2019).
Case 1:17-cv-07529-KPF-KNF Document 54 Filed 11/13/20 Page 2 of 20
proceedings. For the reasons set forth below, the Court finds no error in the
Report and adopts it in its entirety.
BACKGROUND 2
The relevant facts underlying this action are set forth in the Report, and
the Court assumes familiarity with them. A brief overview is set forth herein,
drawing from the recitation of the facts in the Report (see Report 1-2), as well
as from entries in the public docket.
On November 12, 2010, Petitioner was taken into custody in connection
with an ongoing investigation into a sexual assault and robbery that had
occurred the previous day. (Dkt. #2 at 7-8). According to testimony provided
by New York City Police Department (“NYPD”) detectives, while in an interview
room at the police station, Petitioner was asked by a detective for his
identification, and responded that he had identification in a “pouch” on his
person. (Id. at 8-9). Upon taking the pouch from Petitioner and emptying its
contents onto a table, the detective found the victim’s credit and debit cards.
(Id. at 9). The pouch and its contents were later vouchered by another NYPD
detective. (Id. at 10). The following day, the victim identified Petitioner as her
attacker in a lineup, and Petitioner was placed under arrest. (Id. at 9).
On December 3, 2010, a New York County grand jury charged Petitioner
with three counts each of predatory sexual assault and first-degree criminal
2
This Opinion draws its facts largely from the Report (Dkt. #46), Petitioner’s objections to
the Report (the “Objections” (Dkt. #50)), the Petition (Dkt. #2), Respondent’s opposition
brief to the Petition (the “Opposition” (Dkt. #10)), and the state court record (Dkt. #11-1
to 11-6).
2
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sexual act; two counts each of first-degree sexual abuse and fourth-degree
criminal possession of stolen property; and one count each of first-degree
robbery, first-degree burglary, second-degree kidnapping, and second-degree
strangulation. (Dkt. #10 at 2-3). On May 14, 2013, Justice Melissa C. Jackson
of the New York County Supreme Court held an evidentiary hearing on
Petitioner’s motion to suppress the credit and debit cards recovered from his
pouch. (See Dkt. #11-4 at 1-107). Three NYPD detectives testified at the
hearing, while the defense presented no evidence. (See generally id.). Justice
Jackson subsequently denied Petitioner’s suppression motion in a ruling from
the bench, concluding that the search of the pouch was a valid search incident
to arrest. (Id. at 97-104). Alternatively, Justice Jackson found that the
victim’s cards were “an inevitable discovery” in the course of a proper pedigree
inquiry, because the cards had been reported stolen and the police knew that
Petitioner had used and possessed them from video surveillance footage of him
at an ATM taken prior to his arrest. (Id. at 104).
At a pretrial hearing on June 12, 2013, the Assistant District Attorney
informed the court that she had discussed a potential plea with defense
counsel, and understood that Petitioner was not amenable to the prosecution’s
offer. (Dkt. #11-4 at 111). In response, the court sought to confirm that
Petitioner understood the “maximum” sentence that would accompany a
conviction after trial. (Id.). The court noted in this regard that Petitioner would
face “significant consequences should he be convicted at trial,” and determined
3
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that Petitioner was facing an aggregate prison sentence of 125 years to life if
convicted of all charges in the indictment. (Id. at 111-12).
On June 18, 2013, after a series of pretrial decisions unfavorable to
Petitioner and the completion of jury selection (see generally Dkt. #11-4, 11-5,
11-6), defense counsel informed the court that Petitioner wished to withdraw
his previously entered plea of not guilty and enter into a plea agreement
negotiated with the prosecution (see Dkt. #11-6 at 70). Following a plea
colloquy, Petitioner proceeded to plead guilty to one count of predatory sexual
assault under New York Penal Law § 130.95(3) and waived his right to appeal.
(Report 1; see also Dkt. #11-6 at 70-75).
At Petitioner’s sentencing on July 10, 2013, he made a pro se motion to
withdraw his guilty plea, arguing that it had been coerced. (Dkt. #11-6 at 8892). Justice Jackson denied Petitioner’s motion and sentenced him to a term
of incarceration of 13 years to life, in accordance with the terms of his plea
agreement. (Report 1; Dkt. #11-6 at 93-94). 3
Thereafter, Petitioner, with the assistance of counsel, appealed his
conviction to the Appellate Division, First Department. (See Dkt. #11-3 at 348). Petitioner raised two arguments on appeal. First, Petitioner argued that
his plea should be vacated as involuntary because the trial court had
3
Petitioner subsequently submitted two letters, both dated June 25, 2013, to the Chief
Administrative Judge of New York State Supreme Court and the New York State
Commission on Judicial Conduct, in which he requested an investigation of Justice
Jackson on the grounds that, inter alia, Justice Jackson had demonstrated bias,
prevented defense counsel from “performing his duties in an effective manner,” and
threatened Petitioner with a “draconian sentence.” (Dkt. #11-2 at 9-12).
4
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threatened to give him the maximum sentence of 125 years to life if he were
convicted at trial, and coerced him into pleading guilty by offering to endorse
the significantly lower sentence proposed by the prosecution for his pretrial
plea. (Id. at 25-30). Second, he argued that the trial court erred in denying his
pretrial motion to suppress credit cards recovered as the result of a warrantless
search where: (i) there was no exigency justifying a search incident to arrest;
(ii) the prosecutor did not proffer an established inventory search procedure;
(iii) the inevitable discovery doctrine did not apply to evidence recovered during
an illegal search; and (iv) the evidence was not in “plain view” from a lawful
vantage point when seized. (Id. at 31-45).
On March 31, 2016, the Appellate Division affirmed Petitioner’s
conviction on appeal. (Report 1 (citing People v. Elliot, 27 N.Y.S.3d 386, 386
(1st Dep’t 2016))). The court held that Petitioner had failed to preserve his
involuntary plea claim, and alternatively that the argument was meritless. (Id.
at 1-2). The Court further held that Petitioner’s waiver of his right to appeal
foreclosed review of his suppression claim, and alternatively that his
suppression claim was meritless. (Id. at 2). Petitioner sought leave to appeal
the Appellate Division’s decision, but the New York Court of Appeals denied his
application. (Id. at 2 (citing People v. Elliot, 27 N.Y.3d 1131 (2016))).
On September 25, 2017, Petitioner filed the instant Petition for habeas
corpus pursuant to 28 U.S.C. § 2254, raising the same two claims that he
asserted on direct appeal. (Dkt. #2). On October 6, 2017, the Court granted
Petitioner’s request to proceed in forma pauperis (Dkt. #3), and referred the
5
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matter to Magistrate Judge Fox for a report and recommendation (Dkt. #5). On
December 22, 2017, Respondent submitted an answer (Dkt. #11), and an
opposition brief (Dkt. #10). Petitioner submitted a reply on June 7, 2019.
(Dkt. #45). 4
On August 19, 2019, Judge Fox issued the Report and recommended
that the Court dismiss the Petition in its entirety. (Report 6). Petitioner’s
objections to the Report were filed on August 9, 2019. (Dkt. #50). Respondent
submitted an opposition to the objections on September 3, 2019 (Dkt. #51), to
which Petitioner filed a reply on September 19, 2019 (Dkt. #52).
DISCUSSION
A.
Applicable Law
A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court
may also accept those portions of a report to which no specific, written
objection is made, as long as the factual and legal bases supporting the
4
Prior to filing his reply brief, Petitioner made two submissions (see Dkt. #16, 21) that
Judge Fox construed as applications for leave to amend the Petition and stay the
proceedings so as to allow Petitioner to exhaust his state court remedies as to: (i) a coram
nobis application challenging his appellate counsel’s performance; and (ii) a motion to
vacate Petitioner’s judgment of conviction pursuant to New York Criminal Procedure Law
§ 440.10 that asserted ineffective assistance of trial counsel and the trial court’s bias.
(Dkt. #17, 23). In an order issued on March 30, 2018, Judge Fox denied Petitioner’s
application, finding that his claims were barred by the statute of limitations and did not
relate back to the initial Petition. (Dkt. #23). Following the March 30, 2018 Order,
Petitioner again moved for permission to amend his Petition (Dkt. #39), and his renewed
motion was denied by Judge Fox on January 25, 2019 (Dkt. #40). Petitioner has
continued to argue that he should be granted leave to amend his Petition, both in his
reply to Respondent’s opposition brief as well as his Objections. (Dkt. #45, 50).
6
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findings are not clearly erroneous. See Ramirez v. United States, 898
F. Supp. 2d 659, 663 (S.D.N.Y. 2012) (citation omitted). A magistrate judge’s
decision is clearly erroneous only if the district court is “‘left with the definite
and firm conviction that a mistake has been committed.’” Easley v. Cromartie,
532 U.S. 234, 242 (2001) (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)).
Where a party submits timely objections to a report and
recommendation, as Petitioner has done here, the Court is obligated to review
the contested issues de novo. See Fed. R. Civ. P. 72(b)(3); Hynes v. Squillace,
143 F.3d 653, 656 (2d Cir. 1998). However, where objections are “conclusory
or general,” or where the petitioner “simply reiterates his original arguments,”
the report should be reviewed only for clear error. Walker v. Vaughan, 216
F. Supp. 2d 290, 292 (S.D.N.Y. 2002) (internal quotation marks and citation
omitted); see also Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211
(S.D.N.Y. 2013) (“Objections that are merely perfunctory responses argued in
an attempt to engage the district court in a rehashing of the same arguments
set forth in the original papers will not suffice to invoke de novo review.”
(citation, quotation marks, and alteration omitted)). And although pro se filings
are read liberally and interpreted “to raise the strongest arguments that they
suggest,” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (citation omitted),
“even a pro se party’s objections ... must be specific and clearly aimed at
particular findings in the magistrate’s proposal[,]” DiPilato v. 7-Eleven, Inc., 662
F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (citation omitted). Finally, “it is sufficient
7
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that the court arrive at its own independent conclusion regarding those
portions of the report to which objections are made”; the court “need not
conduct a de novo hearing on the matter.” In re Hulley Enters. Ltd., 400 F.
Supp. 3d 62, 69 (S.D.N.Y. 2019) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189-90 (S.D.N.Y. 1985)).
B.
Analysis
1.
Petitioner’s Involuntary Plea Claim Is Procedurally Barred and
Without Merit
In his briefing before Judge Fox, Petitioner contended that his guilty plea
was coerced and involuntary as a matter of law because “the court threatened
to give him the maximum sentence of 125 years to life if he were convicted after
trial, but offered a significantly lower sentence for his pretrial plea.” (Report 2).
Petitioner asserted that the trial court should have granted his pro se motion to
withdraw his plea made during sentencing. (Id.). Respondent argued that
Petitioner’s involuntary plea claim was procedurally barred from federal review
and meritless. (Id. at 3).
Following a review of the relevant state law, Judge Fox correctly
determined that Petitioner’s claim was procedurally barred from federal habeas
review because it had been denied as unpreserved by the state appellate court.
(Report 5). The Appellate Division determined that Petitioner had failed to
preserve his involuntary plea claim for appellate review because his “remarks
at sentencing neither clearly requested to withdraw the plea nor articulated the
ground he raises on appeal[.]” People v. Elliot, 27 N.Y.S.3d 386, 386 (1st Dep’t
8
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2016). Judge Fox further concluded that New York’s contemporaneous
objection rule 5 provided an independent and adequate state-law procedural
ground for the Appellate Division’s refusal to review Petitioner’s claim that itself
foreclosed federal habeas review. (Report 4-5).
To overcome this bar, Petitioner was required either to establish “‘cause’
to excuse the procedural default and demonstrate that he suffered actual
prejudice from the alleged error,” Davila v. Davis, — U.S. —, 137 S. Ct. 2058,
2062 (2017), or to demonstrate that he was “actually innocent” of his offenses
of conviction, Murray v. Carrier, 477 U.S. 478, 496 (1986). Judge Fox correctly
concluded that Petitioner had made neither of these showings. (Report 3-5). 6
On this basis, the Report properly determined that Petitioner’s claim was
barred from habeas relief.
Additionally, the Court agrees with Respondent that even if Petitioner
had established cause to excuse procedural default or offered evidence to
5
This rule “preserves for review only those questions of law as to which ‘a protest ... was
registered, by the party claiming error, at the time of such ruling or instruction or at any
subsequent time when the court had an opportunity of effectively changing the same.’”
Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999) (quoting N.Y. C.P.L. § 470.05).
6
In his reply to Respondent’s Opposition, Petitioner quoted from the transcript of his
attempted plea withdrawal in which he asserted to the trial court that he was “not guilty.”
(Dkt. #45 at 6). However, this transcript excerpt does not suffice to demonstrate
Petitioner’s “actual” innocence for these purposes. See Murray v. Carrier, 477 U.S. 478,
496 (1986) (determining that a federal court may grant the writ of habeas corpus “in an
extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent” (emphases added)).
Additionally, in his Objections, Petitioner purports to establish cause to excuse
procedural default and resulting injustice, asserting that he had been temporarily
removed from Rikers Island on the day he was to be interviewed for his presentence
investigation report. (Dkt. #50 at 6). While is it unclear how these allegations are
intended to establish cause to excuse the failures outlined by the Appellate Division, even
were they relevant, a court will not consider new arguments that litigants elected not to
raise before the magistrate judge. See Gladden, 394 F. Supp. 3d at 480.
9
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demonstrate his innocence — and Petitioner failed to do either — his claim
cannot succeed on the merits. Petitioner argued that his plea had been
coerced based on statements made by the trial court that if he were convicted,
he would “probably” be given the “maximum” sentence. (Dkt. #2 at 12-13
(quoting the June 12, 2013 pre-plea proceeding)). However, these statements
could not be said to have a coercive impact because Petitioner rejected the plea
at the time the statements were made. (Id. at 13). 7 Indeed, Petitioner only
accepted the plea six days later, following several unfavorable pretrial rulings.
(See generally Dkt. #11-4, 11-5).
Moreover, Petitioner’s statements at his guilty plea represented “a
voluntary and intelligent choice among the alternative courses of action open to
[him].” North Carolina v. Alford, 400 U.S. 25, 31 (1970). Petitioner was
represented by counsel during the plea colloquy, and stated under oath that
among other things, he had had sufficient time to talk with counsel before
pleading guilty and that he was satisfied with his attorney’s representation.
(Dkt. #11-6 at 72). Significantly, when asked by the court whether anyone had
forced him to plead guilty, Petitioner responded, “No.” (Id. at 74). As
Respondent correctly noted, Petitioner had pleaded guilty on several prior
occasions to criminal conduct (Dkt. #10 at 28), further suggesting that his plea
in the underlying case was not involuntary. See Riggins v. Rock, No. 12 Civ.
7
While Petitioner now characterizes the trial court’s statements as coercive, they could also
be viewed as providing a candid assessment of the choices Petitioner faced, and of the
risks in proceeding to trial. Indeed, at the time she made the challenged statements,
Justice Jackson proceeded to emphasize: “I just want to make that clear that your client
understands that this is his choice.” (Dkt. #11-4 at 113).
10
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3903 (NSR) (GAY), 2013 WL 5738232, at *12 (S.D.N.Y. Oct. 21, 2013) (noting
that the fact that petitioner was “not a novice to the criminal justice system”
supported a finding that he had knowingly and voluntarily entered into a guilty
plea).
This record amply demonstrates that Petitioner’s plea was knowingly and
voluntarily entered. Thus, even if Petitioner’s involuntary plea claim were not
procedurally barred, its lack of merit would foreclose it from federal habeas
review. Accordingly, the Court finds no clear error in the Report’s
recommendation as to this claim.
2.
Petitioner’s Fourth Amendment Claim Does Not Provide
Grounds for Habeas Relief
Petitioner’s second claim was that the trial court erred in denying his
“motion to suppress evidence obtained as the result of a warrantless search.”
(Report 2). Specifically, Petitioner challenged the trial court’s decision to admit
credit cards recovered from a pouch he had on his person when he was taken
into custody. (Id. at 2-3). Judge Fox agreed with Respondent that Petitioner’s
Fourth Amendment claim was precluded from federal habeas review pursuant
to the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 482 (1976),
which holds that where a habeas petitioner was provided “an opportunity for
full and fair litigation of [his] Fourth Amendment claim, the Constitution does
not require that [he] be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at
his trial.” Id.
11
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Judge Fox further explained that Petitioner had failed to establish either
of the limited circumstances in which he could receive federal habeas relief for
such a claim under Stone, namely, where (i) the state failed to provide a
“corrective procedure” to redress his Fourth Amendment claim; or (ii) the state
had such procedures but he was “precluded from utilizing it by reason of an
unconscionable breakdown in that process.” Gates v. Henderson, 568 F.2d
830, 840 (2d Cir. 1977). As Respondent observed in his Opposition, the trial
court held a hearing on Petitioner’s motion to suppress, during which
Petitioner was represented by counsel. (Dkt. #10 at 31). Following this
hearing, Justice Jackson ruled that while NYPD officers did not have
Petitioner’s permission to search the pouch, the credit cards were admissible
under New York law, among other reasons, because they resulted from a
search incident to a lawful arrest and were properly inventoried. (Report 2-3;
see also Dkt. #11-4 at 97-104).
Petitioner does not argue that he was not provided a correct procedure to
redress his Fourth Amendment claim. And indeed, there is no basis for such
an argument, as the Second Circuit has indicated that New York’s procedure
for litigating Fourth Amendment claims is “facially adequate.” Capellan v.
Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992) (citation omitted). Petitioner also has
not argued that the process by which he litigated his Fourth Amendment
claims resulted in an unconscionable breakdown. Rather, he has merely
disagreed with the trial court’s decision on his motion. See id. at 72 (“[A] mere
disagreement with the outcome of a state court ruling is not the equivalent of
12
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an unconscionable breakdown in the state’s corrective process.”). Because the
state did not fail to provide a “corrective procedure,” and because the record
reflects no “unconscionable breakdown” of that procedure, Judge Fox correctly
found that Petitioner’s Fourth Amendment claim could not be brought in a
habeas petition.
3.
Petitioner’s Remaining Objections Fail
In lieu of specific objections, Petitioner advances several arguments that
are conclusory, general, or reiterate those made in either his initial Petition or
his subsequent submissions before Judge Fox. (See, e.g., Dkt. #45). In
particular, with respect to Petitioner’s arguments regarding ineffective
assistance of counsel, as Respondent noted in his September 3, 2019 response
to the Objections (see Dkt. #51 at 1 n.1), Judge Fox previously denied
Petitioner’s motion to amend the Petition to add this claim, both because it was
barred by the statute of limitations and because it did not relate back to the
original Petition (see Dkt. #23). As to the remainder of Petitioner’s objections,
which include new factual assertions, “‘it is established law that a district
judge will not consider new arguments raised in objections to a magistrate
judge’s report and recommendation that could have been raised before the
magistrate but were not.’” United States v. Gladden, 394 F. Supp. 3d 465, 480
(S.D.N.Y. 2019) (citation omitted); see also Jackson v. Brandt, No. 10 Civ. 5858
(PAC) (KNF), 2012 WL 2512015, at *6 (S.D.N.Y. June 29, 2012). Therefore, the
Court will not consider the arguments that Petitioner raises for the very first
time in his papers objecting to the Report.
13
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CONCLUSION
The Court agrees with Judge Fox’s well-reasoned Report and hereby
adopts its reasoning in its entirety. Accordingly, it is ordered that the Petition
is DISMISSED with prejudice.
Since Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c). Pursuant to 28 U.S.C. § 1915(a), any appeal from this Order would
not be taken in good faith; therefore in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case. The Clerk of Court is also directed to
transmit a copy of this Opinion and Order to Petitioner at his address of record.
SO ORDERED.
Dated:
November 13, 2020
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
14
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------ ----------------------------X
LAWRENCE ELLIOT,
Petitioner,
-against-
REPORT AND RECOMMENDATION
MICHAEL KIRKPATRICK,
17-CV-7529 (KPF) (KNF)
Respondent.
----------------------------------------------- --------X
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE KATHERINE POLK FAILLA, UNITED STATES DISTRICT JUDGE
BACKGROUND
Lawrence Elliot ("Elliot"), proceeding Q!Q ~ filed a petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, alleging: (I) his guilty plea was "involuntary where the court
threatened to give him the maximum sentence of 125 years to life if he were convicted after trial,
but offered a significantly lower sentence for his pretrial plea"; and (2) the court erred in denying
his "motion to suppress evidence obtained as the result of a warrantless search." The respondent
opposes the petition.
Elliot pleaded guilty to one count of an indictment charging, inter alia, predatory sexual
assault under New York Penal Law§ 130.95(3) and waived his right to appeal. He was
sentenced to 13 years to life, in accordance with the plea agreement into which he had entered.
The state appellate court denied Elliot's appeal, finding that: (i) Elliot's claim "that his plea was
rendered involuntary by the court's allegedly coercive statements about his potential sentence is
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unpreserved because his remarks at sentencing neither clearly requested to withdraw the plea nor
articulated the ground he raises on appeal" and, alternatively, it is meritless; and (ii) the "waiver
of his right to appeal, which forecloses review of his suppression claim," was valid and,
alternatively, his erroneous suppression denial claim is meritless. People v. Elliot, 137 A.D.3d
715, 716, 27 N.Y.S.3d 386,386 (App. Div. !51 Dep't 2016). Leave to appeal from that decision
was denied by the New York Court of Appeals. People v. Elliot, 27N.Y.3d1131, 39 N.Y.S.3d
113 (2016).
PETITIONER,S CONTENTIONS
Elliot asserts that his guilty plea was involuntary and his .PIQ se motion to withdraw his
plea as coerced, made at sentencing, should have been granted. Elliot contends that "the court
threatened to give him the maximum sentence of 125 years to life if he were convicted after trial,
but offered a significantly lower sentence for his pretrial plea." Thus, his plea was coerced and
involuntary as a matter of law.
Elliot contends that the court erred in denying his motion to suppress evidence obtained
as the result ofa warrantless search where: (a) "there was not exigency justifying a search
incident to arrest"; (b) "the prosecutor did not proffer an established inventory search
procedure"; (c) "the inevitable discovery doctrine does not apply to evidence recovered during
an illegal search"; and (d) "the evidence was not in 'plain view' fro[m] a lawful vantage point
when seized." At the suppression hearing held to determine the admissibility of credit cards in
Elliot's name that were recovered from a pouch he had on his person when he was taken into
custody, New York City Police Department Detectives Kenneth Fiol ("Fiol"), Frank Humphreys
and Steven Lane ("Lane") testified. According to Ell~ot,
2
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[a]lthough Fiol had possession of the pouch for the purpose of finding petitioner's
identification, he did not "take possession" of it then because "that would have been
something done by the arresting officer." [M 41]. The pouch was filled with miscellaneous
papers [and] ID's, and it was kind of already popping open or popping out [M 26]. Fiol
just pretty much dumped [the pouch] onto a table. and proceeded to rummage through it
for identification [M 7].
•
Fiol testified that he did not obtain Elliot' s permission to search the pouch. Lane testified that
he did not search Elliot when he arrested him, since the credit cards in Elliot's name were
already recovered from the pouch when Elliot was taken into custody. The court rejected Elliot's
argument that the credit cards should be suppressed as the fruit of an illegal search. The court
ruled that the credit cards were admissible, as they resulted from a search incident to a lawful
arrest and were inventoried properly.
RESPONDENT'S CONTENTIONS
The respondent contends that Elliot's involuntary plea claim is barred on an adequate and
independent state-law ground, the preservation rule, and meritless. Elliot failed to preserve his
claim by making a motion to withdraw his plea or moving to vacate his conviction after
sentencing, pursuant to New York Criminal Procedure Law § 440.10. Moreover, Elliot did not
move to withdraw his plea at sentencing despite registering numerous complaints about the plea.
The respondent contends that Elliot's Fourth Amendment claim is barred from habeas
corpus review by: (i) the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S. Ct.
3037 ( 1976); and (ii) an independent state-law ground, namely, Elliot's waiver of his right to
appeal contained in the plea agreement. The respondent asserts that Elliot failed to establish
cause for his defaulted claims or resulting prejudice and he does not offer any evidence to
establish that he is actually innocent.
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PETITIO ER'S REPLY
In reply, Elliot inappropriately: (1) challenges the Court's March 30, 2018 denial of his
motion to amend the petition and for a stay of the proceedings; (2) renews his application for
appointment of counsel; and (3) makes new factual assertions.
LEGAL STANDARD
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim - (1) 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 (2) 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).
"[A] determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence." 28 U.S.C. § 2254(e)(l). A habeas corpus petitioner must exhaust all
remedies available in the state courts. See 28 U.S.C. § 2254(b)(l)(A).
Federal habeas courts reviewing convictions from state courts will not consider
claims that a state court refused to hear based on an adequate and independent state
procedural ground. A state prisoner may be able to overcome this bar, however, if
he can establish "cause" to excuse the procedural default and demonstrate that he
suffered actual prejudice from the alleged error. An attorney error does not qualify
as "cause" to excuse a procedural default unless the error amounted to
constitutionally ineffective assistance of counsel.
Davila v. Davis,_ U.S._, 137 S. Ct. 2058, 2062 (2017).
To establish cause for a procedural default, a petitioner must demonstrate that "some objective
factor external to the defense impeded counsel's efforts to comply with the State's procedural
rule." Murray v. Carrier, 477 U.S. 478,488, 106 S. Ct. 2639, 2645 (1986). "[F]ederal habeas
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review is foreclosed when a state court has expressly relied on a procedural default as an
independent and adequate state ground, even where the state court has also ruled in the
alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.
1990). New York's contemporaneous objection rule has been recognized by federal courts as an
independent and adequate state-law ground and "is not rendered 'inadequate' on account of
novelty or sporadic application." Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999). "[W]here the
State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the ·
Constitution does not require that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at his
trial." Stone, 428 U.S. at 482, 96 S. Ct. at 3046.
APPLICATION OF LEGAL STANDARD
Elliot's claim that his guilty plea was involuntary because "the court threatened to give
him the maximum sentence of 125 years to life if he were convicted after trial, but offered a
significantly lower sentence for his pretrial plea," is procedurally barred because it was denied as
unpreserved by the state court. Since New York's contemporaneous objection rule has been
recognized by federal courts as an independent and adequate state-law ground, see Garcia,
188 F.3d at 79, Elliot must establish cause to excuse his procedural default and resulting
prejudice or that he is actually innocent. See Murray. 477 U.S. at 496-97, 106 S. Ct. at 2649-50.
Elliot failed to establish cause for his procedural default and resulting prejudice and he does not
claim that he is actually innocent. Accordingly, granting habeas corpus relief on Elliot's claim
that his plea was not voluntary, is not warranted.
Elliot's claim that the court erred, by denying his "motion to suppress evidence obtained
as the result of a warrantless search," is precluded from federal habeas review. See Stone,
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428 U.S. at 482, 96 S. Ct. at 3046. Elliot does not assert that New York failed to provide a
corrective procedure to redress his Fourth Amendment claim or that he was "precluded from
utilizing it by reason of an unconscionable breakdown in that process." Gates v. Henderson, 568
F.2d 830, 840 (2d Cir. 1977). Accordingly, granting habeas corpus relief on Elliot's Fourth
Amendment claim is not warranted.
RECOMMENDATION
For the foregoing reasons, I recommend that the petition be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(l ) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be
filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable
Katherine Polk Failla, 40 Centre Street, Room 2103, New York, New York, 10007, and to the
chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any
requests for an extension of time for filing objections must be directed to Judge Failla. Failure
to file objections within f ourteen (14) days will result in a waiver of objections and will
preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Cephas v.
Nash, 328 F.3d 98, l 07 (2d Cir. 2003).
Respectfully submitted,
Dated: New York, New York
June 19, 2019
Copy mailed to:
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
Lawrence Elliot
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