Williams v. Conway
DECISION AND ORDER denying petition for writ of habeas corpus and directing the Clerk of the Court to enter judgment in favor of respondent. Signed by Hon. H. Kenneth Schroeder, Jr on 11/4/2011. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GABRIEL M. WILLIAMS,
JAMES T. CONWAY, Superintendent
Attica Correctional Facility,
DECISION AND ORDER
In accordance with 28 U.S.C. § 636(c), the parties have consented to
have the undersigned conduct all further proceedings, including entry of judgment, with
respect to this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. #7.
Petitioner has filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging that his guilty plea was involuntary and his counsel
ineffective because he was not advised that he would be subject to post-release
supervision. Dkt. #1. In an amended petition, petitioner continues to claim that his due
process rights were violated when his attorney and the sentencing court failed to inform
him that his sentence would include post-release supervision, thereby requiring that his
plea be vacated, even though petitioner was re-sentenced to the same term of
imprisonment without a period of post-release supervision. Dkt. #24. For the following
reasons, the petition is denied.
Petitioner was charged with attempted murder in the second degree, in
violation of Penal Law §§ 125.25 & 110.00; two counts of assault in the first degree,
in violation of Penal Law §§ 120.10 & 120.10; two counts of robbery in the first
degree, in violation of Penal Law §§ 160.15 and 160.15; criminal possession of a
weapon in the second degree, in violation of Penal Law § 265.03; and unauthorized
use of a vehicle in the first degree, in violation of Penal Law § 165.08, following his
statement to law enforcement admitting that on April 25, 2001 he repeatedly shot
another occupant of his apartment building, pushed him down the stairs, took his keys
and wallet out of his pocket, dragged the victim to the front of the basement, mopped
up the victim’s blood, picked up the shells from the gun, cleaned himself up and took
the victim’s car to the Galleria Mall where he used the victim’s credit card to buy a pair
On October 9, 2001, petitioner entered a plea of guilty to one count of
assault in the first degree in violation of Penal Law § 120.10 and one count of
robbery in the first degree in violation of Penal Law § 160.15. Dkt. #1. On December
19, 2001, petitioner was sentenced concurrently to a determinate term of imprisonment
of 20 years. Dkt. #1.
By Memorandum and Order dated April 14, 2004, Hon. Sheila A. DiTullio,
J.C.C., denied petitioner’s motion pursuant to Criminal Procedure Law § 440.20. to set
aside his sentence as invalid because he had not been informed of the automatic fiveyear post-release supervision mandated by Penal Law § 70.45 because the 20-year
concurrent sentence was not “unauthorized, illegally imposed or otherwise invalid as a
matter of law.” Dkt. #1, p.13. The New York State Supreme Court, Appellate Division,
Fourth Department, denied leave to appeal on July 16, 2004. Dkt. #1, p.15.
On direct appeal, petitioner argued that his appeal waiver was invalid; the
trial court abused its discretion by failing to afford him youthful offender status; and his
sentence was harsh and excessive. People v, Williams, 15 A.D. 3d 863 (4th Dep’t.
2005). The judgment of conviction was unanimously affirmed by the Appellate Division
on February 4, 2005. Id. To the extent that petitioner contended that his plea was not
knowing, voluntary or intelligent, the Appellate Division determined that “by failing to
move to withdraw his plea or vacate the judgment of conviction,” petitioner failed to
preserve the issue for review. The Appellate Division further determined that
petitioner’s claim that his plea was affected by ineffective assistance of counsel
involved matters beyond the record which were not reviewable on direct appeal. Id.
The Court of Appeals denied leave to appeal and denied reconsideration. People v,
Williams, 5 N.Y.3d 771 (2005) and 5 N.Y.3d 811 (2005).
By Memorandum and Order dated August 11, 2005, Hon. Sheila A.
DiTullio, J.C.C., denied petitioner’s motion pursuant to Criminal Procedure Law
§ 440.10. to vacate judgment on the ground that his plea was not voluntary and that
counsel failed to provide effective assistance. Dkt. #1, p.18. As pertains to the
argument raised in the current petition, Judge DiTullio found that
The allegation that counsel failed to advise defendant of the
period of post-release supervision is made solely by
defendant and lacks independent evidentiary support, such
as an affidavit from counsel. Taking into account that
defendant does not allege a viable defense to the charges,
the court finds no reasonable possibility that defendant
would have rejected the plea solely because the sentence
entailed post-release supervision. This portion of the motion
is therefore denied (CPL § 440.30[d]).
Dkt. #1, p.20. The Appellate Division granted leave to appeal and affirmed Judge
DiTullio’s determination by Order entered March 16, 2007. People v. Williams, 38
A.D.3d 1301 (4th Dep’t 2007). The New York State Court of Appeals denied leave to
appeal. People v. Williams, 9 N.Y.3d 871 (2007).
Petitioner commenced an action pursuant to article 78 of the New York
Civil Practice Law and Rules (“CPLR”), alleging that the Department of Correctional
Services illegally added a period of post-release supervision to his determinate
sentence. Dkt. #16, p.3. The Hon. Mark H. Dadd, Acting Supreme Court Justice,
vacated the period of post release supervision imposed by the Department of
Correctional Services, explaining:
It appears that the petitioner is subject to a period of postrelease supervision that was imposed by the Department of
Correctional Services. The respondent has not disputed
that the sentencing court failed to impose such a term on his
December 19, 2001 sentence. Thus, the period of postrelease supervision was invalid.
Dkt. #16, p.4. Upon appeal, the Appellate Division determined that Judge DiTullio’s
sentence to a determinate term of imprisonment of twenty years was illegal, because it
did not include a period of post-release supervision. People v. Williams, 82 A.D.3d
1576, 1577 (4th Dep’t 2011). The Appellate Division explained that
The Department of Correctional Services (DOCS)
subsequently administratively imposed a five-year period of
PRS, which defendant successfully challenged in a CPLR
article 78 proceeding. In granting defendant’s petition,
Supreme Court vacated the PRS component of the
sentence imposed by DOCS. Defendant thereafter wrote a
letter to County Court requesting a “resentencing hearing.”
The court granted defendant’s request and appointed
defense counsel to represent him. When defendant
appeared in court with defense counsel for resentencing,
defendant requested that the court vacate his guilty plea.
The court denied that request and instead resentenced
defendant to the original sentence of a determinate term of
imprisonment of 20 years with no postrelease supervision.
Id. The Appellate Division then rejected the defendant’s argument that the court erred
in refusing to vacate his guilty plea and in resentencing him to the sentence originally
Because the original sentence was imposed between
September 1, 1998 and June 30, 2008, the court was
authorized to resentence defendant pursuant to Penal Law
§ 70.85. The statute provides that, with the consent of the
District Attorney, a court that imposed a determinate term of
imprisonment without the mandatory period of PRS may,
upon resentencing, “reimpose the originally imposed
determinate sentence of imprisonment without any term of
[PRS], which then shall be deemed a lawful sentence. As
the Court of Appeals recognized in People v. Boyd, 12
N.Y.3d 390, the purpose underlying section 70.85, as noted
in the Governor’s Approval Memorandum concerning that
statute, was to “‘avoid the need for pleas to be vacated
when the District Attorney consents to resentencing without
a term of PRS.’” We thus conclude that, inasmuch as the
court properly resentenced defendant pursuant to section
70.85, defendant was not entitled to vacatur of his plea.
Id. at 1577-78. The Court of Appeals denied leave to appeal by Order entered July 7,
2011. People v. Williams, 17 N.Y.3d 810 (2011).
DISCUSSION AND ANALYSIS
Before a federal court can address the merits of any federal issue
contained in a petition for a writ of habeas corpus, the petitioner must have “exhausted
the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); See
O’Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999). “Exhaustion of state remedies
requires presentation of the claim to the highest state court from which a decision can
be obtained.” Hogan v. Ward, 998 F. Supp. 290, 293 (W.D.N.Y. 1998), citing Daye v.
Attorney General of the State of New York, 696 F.2d 186, 190 n.3 (2d Cir. 1982); see
O’Sullivan, 526 U.S. at 839-40 (“a state prisoner must present his claims to a state
supreme [i.e., highest] court in a petition for discretionary review in order to satisfy the
Petitioner has exhausted his claim that his plea was involuntary and his
counsel ineffective because he was not advised that he would be subject to postrelease supervision. Petitioner raised that claim before the Appellate Division, which,
inter alia, affirmed Judge DiTullio’s decision denying petitioner’s request to vacate his
guilty plea. Petitioner unsuccessfully sought leave to appeal that decision from the New
York State Court of Appeals, thereby presenting his claim to New York’s highest court.
Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
where a state court has adjudicated the merits of a petitioner’s claim, relief may not be
granted 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).
Under federal law, a “plea of guilty is considered voluntary and intelligent if
the defendant enters the plea with full awareness of its ‘direct consequences.’” Wilson
v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005), quoting Brady v. United States, 397 U.S.
742, 748 (1970). However, the United States Supreme Court has never held that a
mandatory period of post-release supervision is a direct consequence of a guilty plea so
as to implicate a defendant’s due process right to enter a knowing and voluntary plea of
guilty. See Pignataro v. Poole, No. 09-1396, 2010 WL 2501009 (2d Cir. June 18, 2010)
(post-release supervision was not definite, immediate and largely automatic so as to be
considered a direct consequence because it was subject to change, including
resentencing by the trial court); Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir. 2006)
(“There is no Supreme Court precedent for the proposition that a defendant must be
advised of a term of [mandatory supervised release] at the time he attempts to enter a
plea of guilty.”); Facen v. Cully, 787 F,Supp.2d 278, (W.D.N.Y. 2011) (collecting district
court cases holding that a court’s failure to inform a defendant of a term of post-release
supervision cannot be a violation of clearly established federal law because the
Supreme Court has never held that a mandatory term of post-release supervision is a
direct consequence of a criminal conviction); Redcross v. Keller, No. 06-CV-3882, 2010
WL 3219320, at *6 (S.D.N.Y. Aug. 12, 2010) (the absence of a Supreme Court decision
holding that post-release supervision is a direct consequence of a plea of guilty which a
defendant must be aware is fatal to a habeas claim that a plea is unconstitutionally
involuntary because the defendant was not advised of post-release supervision); Lustyk
v. Murray, 03-CV-6186, 2004 WL 1949473, at *2 (W.D.N.Y. Aug. 30, 2004)( finding no
Supreme Court case holding that a mandatory term of parole or post-release
supervision is a direct consequence of a guilty plea and noting that, in general, habeas
relief cannot be granted if the Supreme Court has not ruled at all on a given issue since
there is no “clearly established” law). Thus, even if petitioner was subject to a
mandatory term of post-release supervision, that fact would not render his plea
involuntary for purposes of federal habeas review.1 As a matter of fact, however,
petitioner is not subject to a term of post-release supervision. Petitioner successfully
navigated state court remedies to remove the post-release supervision from his
sentence and receive a new sentencing hearing at which he received the sentence
originally imposed by the trial court, to wit, a determinate sentence of twenty years
W hile it would not affect the voluntariness of the plea, the im position of a m andatory period of
post-release supervision which was not im posed by the sentencing judge at sentencing would raise a due
process claim with respect to petitioner’s sentence. See Scott v. Fischer, 616 F.3d 100, 105-06 (2d Cir.
2010) (“In Early, we held that if a sentencing court does not explicitly im pose a term of [post-release
supervision] on a crim inal defendant, it is unconstitutional for [the Departm ent of Correctional Services]
subsequently to im pose one”); Early v. Murray, 462 F.3d 147, 149 (2d Cir. 2006) (inclusion of a five-year
period of post-release supervision in petitioner’s sentence when that post-release supervision was not
included in the sentence im posed at petitioner’s sentencing hearing violated his rights under the Due
Process Clause of the United States Constitution).
Based on the foregoing, the petition for writ of habeas corpus is DENIED.
The Clerk of the Court is directed to enter judgment in favor of respondent.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that an appeal from
this decision and order may not be taken in forma pauperis because such an appeal
would be frivolous and cannot be taken in good faith. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962). The Court also finds that the petition presents no
question of substance for appellate review, and that petitioner has failed to make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
Buffalo, New York
November 4, 2011
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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