Kirkwood v. Cuomo et al

Filing 26

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 22 Motion for Bail Pending Determination of Habeas PetitionSo Ordered. Signed by Hon. Hugh B. Scott on 5/13/2011. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHERRON KIRKWOOD,
Petitioner,

Hon. Hugh B. Scott
v.
10CV118S
Order
ANDREW CUOMO,
DAVID UNGER,
Respondents.

Before the Court is petitioner’s motion for bail pending action on his Habeas Petition
(Docket No. 22). Responses to this motion were due by April 14, 2011, with any reply from
petitioner due April 28, 2011, and the motion was deemed submitted (without oral argument) on
April 28, 2011 (Docket No. 23). Respondents submitted their attorney’s Opposing Affidavit
(Docket No. 24), and petitioner submitted an Opposing Affidavit in Reply (Docket No. 25).
BACKGROUND
In his Habeas Petition, petitioner contends (among other claims) that his guilty pleas in
two cases on November 20, 2006, were unlawfully induced and was not voluntarily made, that
his confession was coerced, that he was misadvised by counsel and rendered ineffective
assistance of counsel, and that the evidence against him was obtained pursuant to an
unconstitutional search (Docket No. 11, Amend. Pet.; see Docket No. 20, Resp’ts’ Memo. at 12). Respondents filed papers opposing granting habeas relief arguing that petitioner failed to
exhaust his claims (see Docket No. 20).

Petitioner now moves for bail, arguing that he has served more than half of his sentence,
is scheduled to be released in September 2011, and that he satisfied all of the programs
requirements while incarcerated (Docket No. 22, Notice of Motion at 1). He also contends that
the District Attorney has conceded that petitioner’s constitutional rights were violated and thus
his conviction was illegally obtained (id. at 1-2). He argues that there is a strong possibility that
his Petition for Habeas Corpus would be granted (id., Pet’r Aff. ¶ 4). Petitioner contends that, if
released on bond or his own recognizance, that he would stay with his wife and children, that he
would not be a flight risk, and that he would be receiving medical treatments for his spine at a
chiropractor in Buffalo, New York (id., Notice of Motion at 2, Pet’r Aff. ¶ 5).
Respondents argue (as asserted in their Answer, Docket No. 19) that petitioner has not
exhausted his habeas claims and thus is not entitled to bail since he needs to show both the
existence of a substantial constitutional claim and extraordinary circumstances warrant that relief
(Docket No. 24, Respts’ Atty. Aff. ¶¶ 10, 8), see Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.
1981) (reversing grant of bail pending habeas proceeding); Ostrer v. United States, 584 F.2d 594,
596 n.1 (2d Cir. 1978). They contend that petitioner has not presented a clear case on the law or
facts for a constitutional violation (id. ¶¶ 9, 10).
Plaintiff, in his reply, indicates that the state court “knew or should have known” that in
Indictment No. 02826-2005 (hereinafter “2005 Indictment”) evidence obtained against him was
illegally obtained and that he was a victim of prosecutorial misconduct in the prosecution of
Indictment No. 01706-2006 (the “2006 Indictment”) (Docket No. 25, Pl. Reply Aff. ¶¶ 4, 5).
Although respondents consider the Habeas Petition to address only his conviction under the 2005
Indictment, petitioner claims that the Petition relates to convictions under both Indictments (id.
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¶ 7). Petitioner contends that the prosecution “clearly admit[ted] guilt” in the Answer of
August 5, 2010, to the allegations that petitioner’s constitutional rights were violated (id. ¶ 8; cf.
Docket No. 19, Ans. ¶ 1).
DISCUSSION
Two factors must be considered in assessing the propriety of granting bail pending a
determination of merits of a Petition for Writ of Habeas Corpus: first, the petitioner must be
found to be an exceptionally strong candidate for bail, that is, the risk of flight must be de
minimis, and, second, because the presumption of innocence fades upon conviction, and can be
of no significance after defendant’s appeal has been rejected, the petitioner must raise substantial
constitutional claims upon which he has a high probability of success. The petitioner must
present both a clear case on the law and a clear, and readily evident, case on the facts.
The burden upon the petitioner is very high, see Grune v. Coughlin, 913 F.2d 41, 44 (2d
Cir. 1990) (“the standard for bail pending habeas litigation is a difficult one to meet”). The
Second Circuit has held that “a habeas petitioner should be granted bail only in unusual cases,”
Argro v. United States, 505 F.2d 1374, 1377-78 (2d Cir. 1974), or when “extraordinary or
exceptional circumstances exist which make the grant of bail necessary to make the habeas
remedy effective,” Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); see Ostrer v. United
States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); see also Galante v. Warden, Metropolitan
Correctional Center, 573 F.2d 707 (2d Cir. 1977); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir.
2001) (court has inherent power to grant bail to habeas petitioners within their jurisdiction, but
such power is limited and should be granted only in unusual cases or when extraordinary or
exceptional circumstances exist).
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Petitioner here has not met this heavy burden in this case. He has not shown that the
Petition raises substantial claims or that extraordinary circumstances exist to make the grant of
bail necessary “to make the habeas remedy effective,” Grune, supra, 913 F.2d at 44; see Mapp,
supra, 241 F.3d at 226. Petitioner argues that respondents admit to violations of his
constitutional rights in their Answer to the Habeas Petition (Docket No. 25, Pl. Reply Aff. ¶ 8).
This is not the case. Respondents admitted the allegations in paragraphs 2, 6, 7, 12-14, 16-21,
26, and 27 in the Amended Petition (Docket No. 19, Ans. ¶ 1), none of these allege a
constitutional violation. Paragraph 2 of the Amended Petition alleged the date of conviction;
paragraphs 6 and 7 alleged whether the case was tried and, if so, whether it was before a judge or
jury. Paragraph 12 alleged that no certiorari petition was filed with the United States Supreme
Court. Paragraph 13 asserted the result of any certiorari petition had it been filed. Paragraph 14
described the collateral review of his conviction in state court with paragraph 16 discussing that
proceeding. Paragraphs 17, 18, 19, 20 noted the appellate status of that proceeding before the
United States Court of Appeals for the Second Circuit and the New York State Court of Appeals,
while paragraph 21 (left blank in the form Petition) would have stated why petitioner had not
appealed. In Paragraph 26, petitioner affirms that he was sentenced on more than one count of an
Indictment or more than one Indictment, while paragraph 27 petitioner states whether there is a
future sentence after service of the sentence imposed by the convictions under review. (Docket
No. 11, Am. Pet.) Respondents’ admission of what petitioner’s alleged he asserted in the state
court is not admission of any violation, it merely concedes what the petitioner raised in state
courts. Respondents affirmatively denied the grounds of relief sought in the Petition in their
Answer (Docket No. 19, Ans. ¶ 2 (denying allegations in Am. Pet. ¶¶ 22-25)). Thus, there is no
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factual basis for petitioner to contend that respondents have conceded anything to justify the
grant of bail pending decision of this Habeas Petition.
CONCLUSION
Therefore, his application (Docket No. 22) for bail pending determination of his Habeas
Petition is denied.
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
May 13, 2011

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