Johnson v. Berbary
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 12/30/10. (JMC)
Johnson v. Berbary
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ___________________________________ PHILLIP JOHNSON, Petitioner, -vsJAMES BERBARY, Respondent. ________________________________ I. Introduction Pro se petitioner Phillip Johnson ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 5, 2006, in New York State, Supreme Court, Erie County, convicting him, upon a plea of guilty, of one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law ("Penal Law") § 265.02 [ii]). For the reasons stated below, habeas relief is denied and the petition is dismissed. II. Factual Background and Procedural History Under Indictment No. 00119-2005, Petitioner was charged with two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02  and [iii]) and one count of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45). See Resp't Ex. A. -1DECISION AND ORDER No. 09-CV-0168T
On June 1, 2005, Petitioner pleaded guilty to one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [iii]) in full satisfaction of the indictment. Mins. [P.M.] 14-15. On January 5, 2006, Petitioner was sentenced, as a second felony offender,1 to three years imprisonment and five years postrelease supervision. Sentencing Mins. [S.M.] 2-3, 15. The Plea
sentence was set to run consecutive to an unrelated conviction in Monroe County. S.M. 15.
A timely notice of appeal was filed on Petitioner's behalf by his trial attorney (Giovanni Genovese, Esq.). By order dated April 3, 2006, the Appellate Division, Fourth Department ("Fourth
Department") permitted Petitioner to conduct his appeal as a poor person, and an attorney was assigned to represent Petitioner (David C. Schopp, Esq.). Subsequently, owing to Petitioner's abandonment
of his appeal, appellate counsel filed a motion to be relieved. That motion was granted. See Resp't Ex. B. By order dated
Petitioner did not perfect his direct appeal.
November 3, 2008, the Fourth Department dismissed Petitioner's direct appeal. See Resp't Ex. B.
On or about February 8, 2007, Petitioner filed a motion to set aside the verdict, pursuant to N.Y. Crim. Proc. Law ("CPL") §
The record reflects that the People initially alleged Petitioner's s t a t u s as a second violent felony offender. However, after a review of the r e l e v a n t files, the People moved Petitioner as a second felony offender. S.M. 2-3.
440.20, which was denied. Ex. C.
Leave to appeal was denied.
On or about November 10, 2007, Petitioner filed an application for a writ of error coram nobis in the Fourth Department, arguing that he received ineffective assistance of appellate counsel.2 That motion was summarily denied by the Fourth Department, and leave to appeal was denied. See Resp't Ex. E.
On or about January 10, 2008, Petitioner filed a motion to vacate his judgment of conviction, pursuant to CPL § 440.10, which was denied. Leave to appeal was denied. See Resp't Ex. D.
This habeas corpus petition followed, wherein Petitioner seeks relief on the (2) following that the grounds: (1) that was his sentence and was (3)
ineffective assistance of appellate counsel. (Dkt. # 1).
See Pet. ¶ 22A-D
III. General Principles Applicable to Habeas Review A. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or
P e t i t i o n e r ' s direct appeal had not been perfected, nor dismissed at the t i m e Petitioner filed his coram nobis application in the Fourth Department.
Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state
court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." 362, 413 (2000). Williams v. Taylor, 529 U.S.
The phrase, "clearly established Federal law, as
determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan
v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004). A state court decision is based on an "unreasonable
application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. also id. at 408-10. Williams, 529 U.S. at 413; see
"[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v.
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Rather, "[t]he state
court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id.
This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted). Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner]
shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see
also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state
court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." (2003). B. Exhaustion Miller-El v. Cockrell, 537 U.S. 322, 340
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . . ." 28
U.S.C. § 2254(b)(1)(A); U.S. 838, 843-44 (1999);
see, e.g., O'Sullivan v. Boerckel, 526 accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995)." IV. 1. Petitioner's Claims Claim One - "Illegal" Sentence Petitioner argues that his sentence was "illegal." To support this contention, he states, "the only way a person can be convicted of a class D-felony such person would be having to be attempting to commit a class c-felony [and] I was not ne[i]ther was I charged of such." Pet. ¶ 22A. Petitioner raised this claim in his CPL § See Mem. & Order
440.20 motion, and it was denied on the merits.3
of the Supreme Court, Erie County (Hon. Richard C. Kloch, Sr.), dated 11/16/07 at 2 (hereinafter "440.20 Dec.") (Resp't Ex. C). To the extent Petitioner challenges the length of his
sentence, such a claim is not cognizable on habeas review.
T h e Supreme Court, Erie County ruled as follows: "The defendant seeks to v a c a t e his sentence on the weapons charge because he alleges that he did not p l e a d to that portion of the statute which directs that the conviction was for a n attempt to commit a class C felony. He is correct that he did not plead to a n attempt to commit a class C felony; he pled guilty to a class D felony as p r e s c r i b e d by the statute which is a violent felony offense. PL § 60.05 (6) m a n d a t e s that a determinate sentence must be imposed upon conviction of Criminal P o s s e s s i o n of a Weapon in the Third Degree. Said statute requires that the s e n t e n c e may not be less than three (3) years nor greater than (7) years. Any d e t e r m i n a t e sentence also requires a period of five (5) years post release s u p e r v i s i o n . " 440.20 Dec. at 2 (internal citations omitted). To the extent that P e t i t i o n e r calls upon this Court to make a determination that the Erie County S u p r e m e Court's statutory interpretation of New York's Penal Law (and/or the a c c o m p a n y i n g sections of New York's sentencing scheme) that relate to P e t i t i o n e r ' s claim was incorrect, such a request is outside the purview of this Court. See Estelle v. McGuire, 502 U.S. 62, 67-8 (1991) ("[I]t is not the p r o v i n c e of a federal habeas court to reexamine state-court determinations on s t a t e - l a w questions.").
well-settled that a habeas petitioner's challenge to the length of his or her prison term does not present a cognizable constitutional issue if the sentence falls within the statutory range. Townsend
v. Burke, 334 U.S. 736, 741 (1948) ("The [petitioner's] sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of habeas
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)
("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.") (citing Underwood v. Kelly, 692 F.Supp 146 (E.D.N.Y. 1988), aff' mem., 875 F.2d 857 (2d Cir. 1989)); accord Ross v. Gavin, 101 F.3d 687 (2d Because Petitioner's sentence
Cir. 1996) (unpublished opinion).
falls within the permissible statutory range, he may not challenge the length of the sentence in the instant proceeding. Here, Petitioner pled guilty to Criminal Possession of a Weapon in the Third Degree, a class D violent felony. 15. See P.M. 14-
His plea exposed him to a potential sentence of between three See Penal Law § 70.06 [c]. He was sentenced,
and seven years.
as a second felony offender, to a determinate three year term of imprisonment and five years post-release supervision. This term is well within the range set by New York law. S.M. 15.
Accordingly, "illegal" dismissed. 2. is not
Petitioner's cognizable by
Claim Two - "Illegal" Indictment Petitioner contends, for what appears to be the same reasons
he advances in his first claim above, that the indictment was "illegal." He states, "if I wasn't attempting to commit a Class
C-Felony I wasn't suppose[d] to be indicted on a Class-D Felony ne[i]ther." Pet. ¶ 22B. Petitioner raised this claim in his CPL See Mem. &
§ 440.10 motion, and it was rejected on the merits.4
Order of the Supreme Court, Erie County (Hon. Richard C. Kloch, Sr.), dated 05/29/08 at 2 (hereinafter "440.10 Dec.") (Resp't Ex. D). As an initial matter, Petitioner's claim that the indictment was "illegal" has been waived by his plea of guilty. Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (finding that a defendant's properly counseled and entered plea of guilty admits all of the elements of a formal criminal charge and waives a multitude of
T h e Supreme Court, Erie County ruled as follows: "Resolution of this motion r e q u i r e s examination of the charge to which the defendant pled guilty. He did n o t plead to an attempt to commit a class C felony; rather, he pled guilty to a C l a s s D felony, to wit: Criminal Possession of a Weapon in the Third Degree. C r i m i n a l Possession of a Weapon in the Third Degree requires proof of the p o s s e s s i o n of a weapon outside the home or business while having been convicted o f a felony or misdemeanor within the last five (5) years (PL § 265.02 [ii]). A n examination of the defendant's colloquy his admission to having committed all o f the elements of the crime. The defendant's assertion that there was i n s u f f i c i e n t evidence is of no moment because by admitting to the elements of c r i m i n a l possession of a weapon, he waived any evidentiary challenges to the a c c u s a t i o n lodged against him." 440.10 Dec. at 2.
federal constitutional rights); accord United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) ("A defendant who pleads guilty unconditionally while represented by counsel may not assert
independent claims relating to events occurring prior to the entry of the guilty plea."); see also United States v. Garcia, 339 F.3d
116, 117 (2d Cir. 2003) (per curiam) ("It is well settled that a defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional v. defects 943 in F.2d the 230, prior 233 proceedings."); (2d Cir. 1991)
("Generally a knowing and voluntary guilty plea precludes federal habeas corpus review of claims relating to constitutional rights at issue prior to the entry of the plea."). Thus, Petitioner's
challenge to the indictment is barred by his knowing, voluntary, and intelligent plea of guilty. Even assuming, arguendo, that this claim was not waived by the guilty plea, it is not cognizable, and, in any event, meritless. "Although the Due Process Clause [of the Fourteenth Amendment] guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury." Alexander v. Louisiana, 405 U.S. 625, 633 (1972); 1990). see Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir.
Thus, a claim based on a grand jury indictment free of
defect does not provide a basis for habeas review because the claim
does not present a federal question, as required by 28 U.S.C. § 2254(a). Generally, "habeas corpus is not available to test the
sufficiency of the indictment." Dros, 403 F.2d 42, 43 (1967).
United States ex rel Mintzer v.
"An indictment is sufficient when it
charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." Cir. 1992). Here, the indictment was sufficient to inform Petitioner of the charges against him since it recited the elements of the statute as well as the date and place. Furthermore, it also had Thus, United States v. Stavroulakis, 952 F.2d 686, 693 (2d
enough detail to allow him to plead double jeopardy.
Petitioner has failed to demonstrate that there was an error of state law, let alone an error of federal constitutional law. See
De Vonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994) (per curiam) ("An indictment is sufficient when it charges a crime (1) with sufficient precision to inform the defendant of the charges he must meet and (2) with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.")
Accordingly, Petitioner's claim that the
indictment was "illegal" is not cognizable and, in any event, meritless.
In sum, Petitioner's claim that the indictment was "illegal" presents no grounds for habeas relief. dismissed. 3. Claims Three and Four - Ineffective Assistance of Appellate Counsel Petitioner asserts that he received ineffective assistance of appellate counsel based on counsel's failure to: (1) perfect Petitioner's direct appeal; and (2) to advance those claims raised in the first two grounds of the instant habeas petition.5 ¶ 22D. Petitioner raised this claim in his See Pet. nobis The claim is therefore
application, which was summarily denied by the Fourth Department. See Order of the Fourth Department, dated July 24, 2008 (Resp't Ex. E). Summary denial of Petitioner's motion constitutes an
adjudication on the merits of this claim. F.3d 303, 311-12 (2d Cir. 2001).
Sellen v. Kuhlman, 261
It is well-settled that the failure to file a notice of appeal, when timely requested by a defendant following a
conviction, is deemed ineffective assistance of counsel within the meaning of the Sixth Amendment. F.3d 60, 64 (2d Cir. 2003); 137 (2d Cir. 2002); Cir. 1999); See United States v. Fuller, 332
Garcia v. United States, 278 F.3d 134,
McHale v. United States, 175 F.3d 115, 119 (2d
see also Roe v. Flores-Ortega, 528 U.S. 470, 477
T o reiterate, those two grounds are that Petitioner's sentence and the i n d i c t m e n t were "illegal." See Pet. ¶ 22A-B.
(2000) ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."). However, "[a]t
the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." Roe, 528 U.S. at 477. By the same reasoning, if a defendant does
not timely request that a notice of appeal be filed, or agrees, after further discussions with counsel, that one should not be filed, no ineffective assistance claim is made out simply because a notice of appeal is not filed. See id. at 479.
Here, the record reflects that, subsequent to the imposition of Petitioner's judgment of conviction, a notice of appeal was filed on his behalf. Genovese, dated See Notice of Appeal, signed by Attorney (Resp't Ex. B). Appellate counsel
(Attorney Schopp) was assigned to represent Petitioner in that appeal. The record further reflects that appellate counsel made
multiple attempts to contact Petitioner for purposes of discussing how Petitioner wished to proceed with the appeal. In his
correspondence to Petitioner, appellate counsel requested that Petitioner contact him to discuss which issues Petitioner wished to raise on appeal. In these same letters, appellate counsel also
informed Petitioner of potentially viable appellate claims, but advised Petitioner that the raising of said claims were, for
tactical reasons, not necessarily in Petitioner's best interest. The record reflects that Petitioner responded to only one of appellate counsel's letters, and that this letter was unresponsive to appellate counsel's inquiries. As a result, assigned appellate
counsel informed Petitioner that Petitioner's continued failure to assist in the prosecution of his direct appeal would result in counsel's decision to seek to be relieved. Affirmation dated 08/28/07 (Resp't Ex. B). See Notice of Motion & Ultimately, counsel See Order of Over a year
sought and obtained such relief on October 17, 2007. the Fourth Department, dated 10/17/07 (Resp't Ex. B).
later, on November 3, 2008, absent any activity from Petitioner, his direct appeal was dismissed by the Fourth Department. Order of the Fourth Department, dated 11/3/08 (Resp't Ex. B). Under these circumstances, this Court cannot find that See
appellate counsel provided constitutionally ineffective assistance of counsel. It is evident from the record that while an appeal was
filed on Petitioner's behalf, the failure to perfect that appeal was not attributable to appellate counsel. To the contrary,
appellate counsel made considerable efforts to contact Petitioner and to move forward with the appeal pursuant to Petitioner's wishes. After repeated efforts to obtain Petitioner's input to no
avail, appellate counsel moved to withdraw as assigned appellate counsel.
Accordingly, the state court's adjudication of this claim did not contravene or unreasonably apply settled Supreme Court law, and the claim is dismissed. V. Conclusion For the reasons stated above, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1) is denied, and the petition is dismissed. Because Petitioner has failed to make
"a substantial showing of a denial of a constitutional right," 28 U.S.C. § 2253(c)(2), I decline to issue a certificate of
appealability. See, e.g., Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000). The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. United States, 369 U.S. 438 (1962). Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure. IT IS SO ORDERED. S/Michael A. Telesca Coppedge v.
HONORABLE MICHAEL A. TELESCA United States District Judge DATED: December 30, 2010 Rochester, New York -14-
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