Cummings v. Conway
Filing
18
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the action. Signed by Hon. Michael A. Telesca on 6/23/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DARNELL J. CUMMINGS, 04-B-2123,
Petitioner,
-v-
09-CV-740(MAT)
DECISION AND ORDER
JAMES CONWAY, SUPERINTENDENT,
ATTICA CORRECTIONAL FACILITY,
Respondent.
I.
Introduction
Pro se petitioner Darnell Cummings (“petitioner”) seeks relief
pursuant to 28 U.S.C. § 2254 alleging that his conviction of four
counts of Robbery in the First Degree(N.Y. Penal L. § 160.15(4))
and one count of Criminal Possession of a Weapon in the Second
Degree (former N.Y. Penal L. § 265.03(2)) in Monroe County Supreme
Court was unconstitutionally obtained. Petitioner pleaded guilty on
May
27,
2004,
before
Justice
Joseph
D.
Valentino.
He
was
subsequently sentenced to fourteen years of imprisonment with five
years of post-release supervision.
II.
Factual Background and Procedural History
The challenged conviction stems from an incident that occurred
on August 8, 2003, wherein petitioner, armed with a loaded handgun,
forcibly stole money from three people at an auto parts store in
Rochester, New York. In attempting to flee, petitioner stole a
vehicle from a woman, at whom he pointed the same handgun. Plea Tr.
dated 5/27/2004 at 7-17.
Petitioner pleaded guilty to the indictment charging him with
four counts of first-degree robbery and one count of second-degree
weapon possession in exchange for a fourteen-year sentence.1 Plea
Tr. dated 5/27/2004 at 2-18. Petitioner did not move to withdraw
his plea prior to or at the sentencing proceeding on August 3,
2004.
Petitioner was adjudicated a second felony offender and was
sentenced to the agreed-upon term of imprisonment of fourteen
years. Sentencing Tr. dated 8/3/2004 at 8.
Following his conviction, petitioner’s appellate counsel filed
a brief in the Appellate Division, Fourth Department, raising the
sole ground that the petitioner’s sentence was harsh and excessive.
The
Appellate
Division
unanimously
affirmed
the
judgment
of
conviction. People v. Cummings, 48 A.D.3d 1074 (4th Dept.), lv.
denied, 10 N.Y.3d 861 (2008).
Prior to perfecting his appeal, petitioner moved pro se in
state court to vacate the judgment of conviction pursuant to N.Y.
Crim. Proc. L. § 440.10. See Resp’t Appx. F. The grounds alleged
therein were: (1) defense counsel coerced petitioner’s guilty plea,
knowing
that
he
was
mentally
incompetent;
and
(2)
the
identification evidence was suggestive. Id. The state supreme court
1
The plea also satisfied two pending, unrelated charges of forth-degree
grand larceny and first-degree robbery. Plea Tr. 3, 18.
2
denied petitioner’s motion on procedural grounds.2 See Decision and
Order, Supreme Court, Monroe County (Valentino, J.), Indictment No.
2003-0461, dated 10/20/2006 (Resp’t Appx. H). Leave to appeal that
decision was denied by the Fourth Department on June 19, 2007.
Resp’t Appx. I.
Petitioner now seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254 on the grounds that he was denied the right to
effective assistance of trial and appellate counsel. For the
reasons that follow, the petition is dismissed.
III. Discussion
A.
Timeliness
The respondent has asserted the defense of untimeliness.
Resp’t
Mem.
3.
The
Court
disagrees
with
respondent
that
the
petition is untimely.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, a one-year
statute of limitations applies to the filing of applications for a
writ of habeas corpus. 28 U.S.C. § 2244(d)(1). In general, the
one-year period runs from the date on which the petitioner's state
criminal judgment becomes final. Ross v. Artuz, 150 F.3d 97, 98 (2d
Cir.1998) (citing 28 U.S.C. § 2244(d) (1)(A)); accord Smith v.
2
The county court denied petitioner’s motion pursuant to N.Y. Crim.
Proc. L. § 440.10(2)(b), which mandates denial of the motion where “[t]he
judgment is, at the time of the motion, appealable or pending on appeal, and
sufficient facts appear on the record with respect to the ground or issue
raised upon the motion to permit adequate review thereof upon such an appeal.”
3
McGinnis, 208 F.3d 13, 16 (2d Cir.), cert. denied, 531 U.S. 840
(2000). A conviction is considered “final” “once ‘the judgment of
conviction
[has
been]
rendered,
the
availability
of
appeal
exhausted, and the time for petition for certiorari ... elapsed.’”
McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.2003) (quoting Teague v.
Lane, 489 U.S. 288, 295
(1989) (citation and internal quotation
marks omitted in original), citing Clay v. United States, 537 U.S.
522
(2003)
(noting
the
“long-recognized,
clear
meaning”
of
“finality” in the post-conviction relief context as the time when
the Supreme Court “affirms a conviction on the merits on direct
review or denies a petition for a writ of certiorari, or when the
time for filing a certiorari petition expires”)).
The New York Court of Appeals denied petitioner’s leave
application on May 8, 2008. Petitioner did not seek certiorari from
the United States Supreme Court, and thus his conviction became
final
for
AEDPA
purposes
90
days
later,
on
August
6,
2008.
Petitioner had one year from that date to timely file his habeas
petition. The instant petition was filed July 28, 2009 pursuant to
the “prisoner mailbox rule” which deems litigation papers mailed by
a pro se prisoner to the clerk of the court as “filed” the moment
the papers are turned over to prison authorities for posting to the
court through the prison log system. Houston v. Lack, 487 U.S. 266,
276 (1988). Respondent, in his calculations, appears to have failed
to consider the prison mailbox rule in asserting this defense. It
4
is true that petition was not received by the Clerk of the District
Court for filing until August 24, 2009, in which case the petition
would have indeed been 18 days past the expiration of the statute
of limitations. However, the petition indicates that it was signed
and notarized on July 28, 2009, which is the relevant date for
determining timeliness. Conception v. Brown, No. 07–CV–0214(VEB),
2011 WL 1675080 *3 (W.D.N.Y. May 4, 2011) (Bianchini, M.J.).
Accordingly, the petition is not subject to dismissal on the ground
that it is time-barred.
B.
General Principles Applicable to Federal Habeas Review
1.
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a
petitioner
seeking
federal
review
of
his
conviction
must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to or
involved an unreasonable application of clearly established Supreme
Court precedent, or resulted in a decision that was based on an
unreasonable
factual
determination
in
light
of
the
evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams
v. Taylor, 529 U.S. 362, 375–76 (2000).
2.
Exhaustion Requirement
“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
5
the remedies available in the courts of the State ....” 28 U.S.C.
§ 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838,
843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion
requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Att’y General, 696
F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048
(1984). “The exhaustion requirement is principally designed to
protect the state courts' role in the enforcement of federal law
and prevent disruption of state judicial proceedings, and is not
satisfied unless the federal claim has been fairly presented to the
state
courts.”
Jimenez
v.
Walker,
458
F.3d
130,
148-149
(2d
Cir.2006) (internal citations and quotation marks omitted).
In the past, a state prisoner's federal habeas petition had to
be dismissed if the petitioner did not exhaust available state
remedies as to any of his federal claims. See Rose v. Lundy, 455
U.S. 509, 522 (1982). “This exhaustion requirement is ... grounded
in principles of comity; in a federal system, the States should
have
the
first
opportunity
to
address
and
correct
alleged
violations of [a] state prisoner's federal rights.” Coleman v.
Thompson, 501 U.S. 722, 731 (1991). However, the state may waive
the exhaustion requirement, but a “State shall not be deemed to
have waived the exhaustion requirement or be estopped from reliance
6
upon the requirement unless the State, through counsel, expressly
waives the requirement.” 28 U.S.C. § 2254(b)(3).
An exception to the exhaustion requirement set forth in Rose
v. Lundy, supra, has been provided for by statute. Now, pursuant to
the 1996 amendments to 28 U.S.C. § 2254, a district court may, in
its discretion, deny on the merits habeas petitions containing
unexhausted claims. See 28 U.S.C. § 2254(b)(2) (“An application for
a
writ
of
habeas
notwithstanding
remedies
the
corpus
may
be
of
in
courts
available
failure
the
the
denied
on
applicant
of
the
the
to
merits,
exhaust
state.”).
the
Section
2254(b)(2) allows a district court to reach the merits of a habeas
corpus petition despite nonexhaustion, thereby “effectuat[ing]
congressional
intent,
conserv[ing]
judicial
resources,
and
afford[ing] petitioner prompt adjudication of his claim.” Steele v.
Walter, 11 F.Supp.2d 252, 257 (W.D.N.Y.1998) (quoting Cowan v.
Artuz,
No.
95
Civ.
9967(RPP)(THK),
1996
WL
631726,
at
*5
(S.D.N.Y.1996)) (quoted in Loving v. O'Keefe, 960 F.Supp. 46, 49
(S.D.N.Y.1997)).
C.
Petitioner’s Habeas Claims
1.
Petitioner
Ineffective Assistance of Trial Counsel
alleges
that
his
trial
attorney
was
constitutionally ineffective for: (1) failing to properly challenge
the show-up identification procedures; (2) failing to request pretrial hearings; (3) neglecting to conduct sufficient pre-trial
7
investigation; and (4) failing to review records and interview
witnesses. Petition (“Pet.”) ¶ 14(a). Petitioner did not raise any
of these grounds on direct appeal or in his motion to vacate
pursuant to N.Y. Crim. Proc. L. § 440.10. They are therefore
unexhausted. Notwithstanding petitioner’s failure to exhaust his
ineffective assistance of counsel claims, this Court has discretion
under 28 U.S.C. § 2254(b)(2) to deny on the merits a habeas
petition containing unexhausted claims. See Pratt v. Greiner, 306
F.3d 1190, 1196–97 (2d Cir.2002); see also Smith v. Texas, 550 U.S.
297, 324 (2007) (“In the absence of any legal obligation to
consider a preliminary nonmerits issue, a court may choose in some
circumstances to bypass the preliminary issue and rest its decision
on the merits.”) (citing 28 U.S.C. § 2254(b)(2) (federal habeas
court may reject claim on merits without reaching question of
exhaustion)). “Section 2254(b) merely gives the Court discretion to
deny unexhausted petitions on the merits; it does not require the
Court to determine unexhausted claims.” Otero v. Stinson, 51
F.Supp.2d 415, 420 (S.D.N.Y.1999).
“Section 2254(b) (2), however, ‘does not provide a standard
for determining when a court should dismiss a petition on the
merits rather than requiring complete exhaustion.’” Otero, 51
F.Supp.2d at 420 (quoting Lambert v. Blackwell, 134 F.3d 506, 516
(3d Cir.1997)). Neither the Supreme Court nor the Second Circuit
has established what standard a district court should use to
8
determine when to dismiss a petition on the merits rather than
requiring complete exhaustion. Several district judges in this
Circuit have expressed the test as whether the unexhausted claim is
“patently frivolous.” E.g., Turner v. Senkowski, No. 97–CV–653,
1998 WL 912011 at *4 (W.D.N.Y. Nov. 23, 1998); Youngblood v.
Greiner, 97 Civ. 3289, 1998 WL 720681 at *6 (S.D.N.Y. Oct.13,
1998); Colon v. Johnson, 19 F.Supp.2d 112, 120, 122 (S.D.N.Y.1998);
Hogan v. Ward, 998 F.Supp. 290, 293 (W.D.N.Y.1998). “The Third,
Fifth,
and
Ninth
Circuits
have
held
that
section
2254(b)(2)
embodies the Supreme Court's pre-AEDPA holding in Granberry v.
Greer [, 481 U.S. 129, 135 (1987) ] which states that a court may
deny an unexhausted claim on the merits if it is ‘perfectly clear
that the applicant does not raise even a colorable federal claim.’”
Fayton v. Connolly, No. 06 Civ. 3685(SAS), 2009 WL 1615995, at *4
& n.45 (S.D.N.Y. June 9, 2009) (quoting Cassett v. Stewart, 406
F.3d 614, 623 (9th Cir.2005); Jones v. Morton, 195 F.3d 153, 156 n.
2 (3d Cir.1999); Mercadel v. Cain, 179 F.3d 271, 276 n.4 (5th
Cir.1999)). Under either standard, petitioner fails to establish
that he is entitled to habeas relief.
It is undisputed that petitioner pleaded guilty. Plea Tr. 1018.
In so doing, petitioner “waived all claims of ineffective
assistance of counsel relating to events prior to the guilty plea
that did not affect the voluntariness of his plea.” Vasquez v.
Parrott. 397 F.Supp.2d 452, 463 (S.D.N.Y.2005) (citing Tollett v.
9
Henderson, 411 U.S. 258, 267 (1973); United States v. Torres, 129
F.3d 710, 715-16 (2d Cir.1997); United States v. Coffin, 76 F.3d
494, 497-98 (2d Cir.1996);
Fields v. Att’y Gen. of the State of
Maryland,
1294-95
956
F.2d
1290,
(4th
Cir.1992)
(collecting
cases)). None of the claims contained in the habeas petition
challenge the voluntariness of his plea, and, in any event, the
transcript of the plea proceeding indicates that petitioner’s plea
was
knowingly,
voluntarily,
and
intelligently
entered.
See
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977) (Statements made
by a defendant at a plea hearing constitute a “formidable barrier”
that cannot be easily overcome in subsequent collateral proceedings
because
“[s]olemn
declarations
in
open
court
carry
a
strong
presumption of verity). Petitioner’s ineffective assistance of
trial counsel claims must therefore be dismissed.
2.
Likewise,
Ineffective Assistance of Appellate Counsel
petitioner
failed
to
challenge
his
appellate
counsel’s effectiveness by way of an application for writ of error
coram nobis in the Appellate Division, which renders his claim of
ineffective assistance of appellate counsel unexhausted. See Pet.
¶ 14(b). This claim must also be denied under the discretionary
authority of 28 U.S.C. § 2254(b)(2).
In order to show ineffective assistance of appellate counsel,
the petitioner must show that his attorney's performance fell below
an objective standard of reasonableness and that he was prejudiced
10
by counsel’s deficient performance. Strickland v. Washington, 466
U.S. 668, 686 (1984).
An appellate attorney is not required to
raise every nonfrivolous argument. Jones v. Barnes, 463 U.S. 745,
754 (1983). The petitioner must, instead, show that counsel omitted
“significant and obvious issues while pursuing issues that were
clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528,
532 (2d Cir.1994).
Petitioner contends that the “sole issue raised by counsel on
appeal
was
without
constitutional
merit,
violation.”
and
Pet.
not
¶
properly
14(b)(A).
presented
First,
as
a
appellate
counsel filed a well-written, well argued, and thorough brief
covering the sentencing issue. Appellate counsel raised the one
argument he believed had real merit, acknowledging “the importance
of winnowing out weaker arguments.” Barnes, 463 U.S. at 751-54.
Such discretion is clearly afforded appellate counsel. Simply
because appellate counsel chose to focus on one issue does not
indicate
that
he
was
ineffective.
See,
Tung
v.
Fischer,
No.
01CV3877(JG), 2003 WL 22999662, *17 (E.D.N.Y. Dec. 23, 2003)
(Appellate counsel could not be deemed ineffective for raising only
single issue on appeal, without more). Second, appellate counsel
had
no
reason
to
frame
the
sentencing
challenge
as
a
“constitutional violation” in order to exhaust it for habeas review
because it is well-settled that a permissible sentence under
New York’s statutory scheme is not a cognizable federal claim. See
11
White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992) (“No federal
constitutional issue is presented where, as here, the sentence is
within the range prescribed by state law.”).
Petitioner’s remaining arguments that appellate counsel was
ineffective for failing to raise claims of ineffective assistance
of trial counsel, coerced guilty plea, and impermissibly suggestive
identification procedure on direct appeal, are likewise without
force.
Petitioner
did
not
preserve
any
of
these
claims
for
appellate review in the state court proceedings. Although the
Appellate
Division
is
authorized
under
N.Y.
Crim.
Proc.
L.
§ 470.15(3) & (6) to exercise its discretion to review unpreserved
claims “in the interest of justice,” claims not raised in the trial
court are reviewed “sparingly” and “interests of justice” review is
not routinely performed. Quirama v. Michele, 983 F.2d 12, 14 (2d
Cir.1993) (citing Martinez v. Harris, 675 F.2d 51 (2d Cir.1982) (in
turn citing People v. Robinson, 36 N.Y.2d 224 (1975)). Given the
clear lack of preservation, it cannot be said that appellate
counsel was unreasonable in declining to include the claim in his
brief on appeal. See Aparicio v. Artuz, 269 F.3d 78, 96 (2d
Cir.2001) (holding that appellate counsel was not ineffective for
failing to raise a claim of Double Jeopardy that clearly had been
waived at the trial level and therefore not preserved for appellate
review); Clarke v. Goord, No. 07–CV–0366, 2007 WL 2324965, at *6
(E.D.N.Y. Aug. 10, 2007); Where, as here, there is no basis to
12
conclude that the appellate court would have considered these
issues on the merits, petitioner cannot demonstrate that the
outcome of the appeal would have been different had the unpreserved
issues been raised.
Because petitioner has not raised a “colorable federal claim”
warranting habeas relief, his claims relating to his appellate
counsel’s alleged ineffectiveness must be dismissed.
IV.
Conclusion
For the reasons stated above, Darnell Cummings’ petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the
action
is
dismissed.
Petitioner
has
failed
to
make
a
“substantial showing of a denial of a constitutional right”, 28
U.S.C. § 2253 (c)(2), the court declines the issue of 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 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. Coppedge v. United States, 369
U.S. 438 (1962).
SO ORDERED.
S/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
June 23, 2011
Rochester, New York
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