Capps v. Kaplan

Filing 20

-CLERK TO FOLLOW UP-DECISION AND ORDER dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/21/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

EVONY CAPPS,
Petitioner,
No. 1:10-CV-0784(MAT)
DECISION AND ORDER

-vsSABRINA KAPLAN,
Respondent.

I.

Introduction
Proceeding

pro

se,

petitioner

Evony

Capps

(“Capps”

or

“Petitioner”) filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Capps is incarcerated as the result of a
judgment entered against her in Erie County Court of New York State
on February 21, 2007, following her guilty plea to one count of
first degree manslaughter (N.Y. Penal Law § 125.20(1)).
II.

Factual Background and Procedural History
The conviction here at issue stems from the fatal stabbing of

Arthur

Boyd

(“Boyd”

or

“the

deceased”)

on

the

evening

of

October 12, 2005, in front of the Shop Rite Market on Fillmore
Street in the City of Buffalo. According to an eyewitness, Capps
and Jalessa Clay (“Clay”), the girlfriend of the deceased, started
fighting, and other individuals joined in the altercation. Boyd
approached and attempted to intercede. During the melee, Boyd
sustained stab wounds to the neck and abdomen and was transported
by friends to the hospital.

Police officers who happened to be at the hospital upon Boyd’s
arrival spoke to one of the individuals accompanying him. This
person told police that he had witnessed the incident and that a
black female with blondish hair named “Ebony” had stabbed Boyd.
Based on this description of Boyd’s assailant, police officers
located Capps as she was walking home with one of her friends. At
the

police

station,

after

waiving

her

rights,

Capps

gave

a

statement admitting getting involved in a fight with Clay. The
girls had a “history” insofar as one of Capps’ friends had “maced”
the mother of one of Clay’s friends. According to Capps, Clay
instigated the fight by telling her she had a “smart mouth” that
needed to be punched, and then proceeded to punch her in the mouth.
The

two

young

women

started

fighting.

After

being

separated

briefly, they “went at it again”. While Capps was on top of Clay,
Boyd walked up and pulled Capps off of Clay and said, “[Y]ou
punched my baby’s mother”. Capps retorted with an expletive, Boyd
punched her, and they began fighting. Boyd was on top of her when
the police arrived but according to Capps, he got up and walked
away. Capps denied having a knife or stabbing anyone, and stated
she did not know who had been stabbed until after the police told
her his name. Capps said that the guy who had been fighting her on
the ground had been “fine” after he had gotten up.
Before Capps was taken to the holding center, the police
advised her that Boyd had died at the hospital as a result of the

-2-

injuries he had sustained that night, and that she was going to be
arrested. Capps made statements informing police of the location of
the knife used in the incident.
An autopsy revealed that Boyd died of a stab wound to the neck
with loss of blood. He also sustained a number of superficial cuts
on the face, shoulder and upper right arm.
Capps subsequently was indicted on one count of second degree
(intentional) murder and fourth degree criminal possession of a
weapon (a folding knife).
On February 8, 2006, the parties appeared before Erie County
Court Judge Timothy J. Drury for a Wade/Huntley hearing. The
prosecutor

requested

an

adjournment

to

continue

further

plea

discussions.
The

parties

returned

to

court

on

November

8,

2006.

The

prosecutor indicated that an offer to plead guilty to one count of
first degree manslaughter had been extended to Capps. Noting that
Capps, “ha[d] been somewhat helpful, at least through a family
member,” at a recently concluded trial, Judge Drury stated that if
Capps accepted the plea, he would cap the sentence at 14 or
15 years determinate, with 5 years of post-release supervision.
On November 29, 2006, the parties appeared before Judge Drury,
and Capps entered a plea of guilty to one count of first degree
manslaughter in full satisfaction of the indictment.

-3-

On February 21, 2007, Capps appeared for sentencing before
Erie County Court Judge Sheila DiTullio.1

In light of the sentence

cap articulated by Judge Drury in November 2007, the prosecutor
urged imposition of a 15-year determinate sentence, and defense
counsel requested a sentence of 14 years. Judge DiTullio sentenced
Capps to 15 years, determinate, plus 5 years of post-release
supervision.
Through new counsel, Capps appealed her conviction to the
Appellate Division, Fourth Department, of New York State Supreme
Court, arguing that her appellate rights waiver did not preclude
her challenge to the severity of the sentence, and that the trial
court should have afforded her youthful offender status. The
Appellate Division unanimously affirmed the conviction on June 5,
2009. People

v.

Capps,

63

A.D.3d

1632

(4th

Dep’t 2009).

The

Appellate Division held that Capps’ appellate rights waiver was
valid and encompassed her sentencing challenge as well as her
contention that the County Court should have granted youthful
offender status. In any event, the Appellate Division held, Capps
failed to preserve the latter contention because she did not
request youthful offender status during plea proceedings or at
sentencing.

The New York Court of Appeals denied leave to appeal.

People v. Capps, 13 N.Y.3d 795 (2009).
1

Judge Drury left the Erie County Court bench in 2007, after
being elected to the position of justice on the Erie County Supreme
Court.
-4-

On September 21, 2010, Capps filed the instant petition,
asserting the following grounds for relief: (1) her appellate
rights waiver was invalid and did not preclude

her challenge to

the harshness of her sentence; (2) her conviction was obtained by
an unknowing, unlawful and involuntary guilty plea because the
trial court should have afforded her youthful offender status; and
(3) trial counsel was ineffective in failing to preserve issues for
appeal.
On

initial

screening,

and

interpreting

the

petition’s

allegations to raise the strongest arguments they suggested, the
Court (Siragusa, D.J.) determined that the petition appeared to
contain one unexhausted claim, namely, that trial counsel was
ineffective in failing to preserve the youthful offender status
issue for appellate review. At Capps’ request, the petition was
stayed so that she could return to state court and exhaust her
ineffective assistance claim.
Capps filed a motion to vacate the judgment pursuant to
New York Criminal Procedure Law (“C.P.L.”) § 440.10 in Erie County
Court asserting that trial counsel was ineffective in failing to
seek

youthful

offender

status,

which

rendered

the

issue

unreviewable on appeal; and that the trial court should have, on
its own motion, granted youthful offender status to Capps at
sentencing.

-5-

On December 31, 2013, Judge DiTullio issued a decision and
order denying Capps’ motion to vacate. Judge DiTullio found that
counsel

provided

competent

representation

and

successfully

negotiated a plea agreement whereby Capps, facing a potential life
sentence, was allowed to plead to a reduced charge and receive
significantly less prison time. Furthermore, because she would not
have

granted

youthful

offender

status

given

the

facts

and

circumstances of Capps’ crime, Judge DiTullio found that counsel
was not ineffective for failing to make a motion with little to no
chance of success. With regard to ground two of Capps’ motion,
Judge DiTullio found that she did not abuse her discretion in
declining to consider youthful offender treatment.
In response to a February 28, 2014 request from this Court for
a status update, the Erie County District Attorney’s Office filed
a letter on March 21, 2014, explaining that Capps attempted to file
a motion for leave to appeal the denial of her C.P.L. § 440.10
motion

with

the

Appellate

Division,

Fourth

Department,

on

February 3, 2014. However, her papers were returned to her as
improperly filed.
This Court’s Pro Se Office contacted the Office of the Clerk
of the Appellate Division, Fourth Department and was advised that
Capps had made no attempts to re-file the motion for leave to
appeal. As a result, an order was entered lifting the stay of this
habeas proceeding. Capps has not requested further time to attempt

-6-

to re-file her leave application or objected to the lifting of the
stay.
Respondent filed an amended memorandum of law addressing
Capps’ ineffective assistance of trial counsel claim. Capps did not
file a reply brief.
For the reasons set forth below, the petition is dismissed.
III.

Exhaustion
Pursuant to 28 U.S.C. § 2254(b), as amended, a court may not

grant a petition for habeas corpus unless the petitioner has
exhausted

all

state

judicial

remedies.

See

28

U.S.C.

§ 2254(b)(1)(A), (2). The exhaustion requirement “mandates that
federal claims be presented to the highest court of the pertinent
state before a federal court may consider the petition.” Pesina v.
Johnson,

913 F.2d 53, 54 (2d Cir. 1990) (per curiam) (citation

omitted). Respondent argues that Petitioner’s second and third
claims are unexhausted.
With regard to Petitioner’s second claim, that her plea was
involuntary because the trial court did not afford her youthful
offender status, Respondent notes that Petitioner failed to move to
vacate her guilty plea before sentencing and failed to argue on
direct

appeal

that

her

plea

was

not

knowing,

voluntary

and

intelligent. Petitioner did not seek a stay of the petition with
regard to this claim, most likely because the judge who performed

-7-

the initial screening did not notify Petitioner that the claim
appeared to be unexhausted.
The Court agrees with Respondent that the claim was not raised
in state court in any procedural vehicle. However, the claim does
not remain unexhausted. Instead, it must be “deemed exhausted”
because Petitioner no longer has “remedies available” in state
court under 28 U.S.C. § 2254(b). Bossett v. Walker, 41 F.3d 825,
828 (2d Cir. 1994) (citations omitted). First, Capps has already
completed her direct appeal. By statute, New York law used to
provide for only a single application for direct review. Spence v.
Superintendent, Great Meadow Corr. Fac., 219 F.3d 162, 170 (2d Cir.
2000) (relying on former New York Rules for the Court of Appeals
§ 500.10(a) (discussing leave applications for criminal appeals)).
Section

500.10

has

since

been

amended,

and

criminal

leave

applications are now addressed in N.Y. R. Ct. § 500.20. Although
Rule 500.20 “does not specifically state that there may be only one
application

for

appeal,

see

N.Y.

R.

Ct.

§

500.20,

such

a

restriction may be inferred,” since “[b]oth Rule 500.20(d) and CPL
§ 460.10(5) provide a 30–day window for any such application to be
filed;

this

applications

time

limit

permitted.”

would

be

Colon

v.

meaningless
Connell,

were
No.

multiple
07

Civ.

7169(BSJ)(JCF), 2009 WL 2002036, at *6 n. 4 (S.D.N.Y. July 9, 2009)
(noting that both N.Y. R. Ct. § 500.20(d) and N.Y. Crim. Proc. Law
§ 460.10(5) provide a 30–day window for any such application to be

-8-

filed;

“this

time

limit

would

be

meaningless

were

multiple

applications permitted”); accord, e.g., Cunningham v. Conway, 717
F.

Supp.2d

339,

365

(W.D.N.Y.

2010)

(collecting

cases).

In

addition, § 500.20(a)(2) provides that the leave letter must
indicate that “that no application for the same relief has been
addressed to a justice of the Appellate Division, as only one
application is available[.]” N.Y. R. CT. § 500.20(a)(2).
Second, Capps cannot seek collateral review of her guilty plea
claim. See N.Y. CRIM. PROC. LAW § 440.10(2)(c) (barring collateral
review if claim could have been raised on direct review but was
not). In this case, “sufficient facts appear on the record of the
proceedings underlying the judgment” to have permitted Capps to
raise the claim regarding the voluntariness of her guilty plea on
direct appeal. See Bossett, 41 F.3d at 828.
Because it would be fruitless to require Capps to pursue this
claim in state court, it is deemed exhausted. See id. However,
these same procedural defaults prevent the Court from addressing
the claim’s merits unless Petitioner shows cause for the default
and resultant prejudice, Coleman v. Thompson, 501 U.S. 722, 749–50
(1991), or that a fundamental miscarriage of justice would occur if
the the Court declines to consider the claim. See Murray v.
Carrier, 477 U.S. 478, 496 (1986).
Capps has not attempted to show cause or prejudice, or a
fundamental miscarriage of justice. Although Capps does make an

-9-

ineffective assistance of counsel claim, it concerns only trial
counsel, not appellate counsel. It thus does not explain her
failure to raise the pertinent issue on appeal, and cannot provide
“cause” for defaulting the claim. See Bossett, 41 F.3d at 829.
Accordingly, Petitioner’s claim regarding the voluntariness of her
guilty plea is dismissed without reaching the merits.
With

regard

to

Petitioner’s

third

claim

asserting

trial

counsel’s ineffectiveness, Respondent argues that by failing to
appeal the denial of her C.P.L. § 440.10 motion, Capps has not
fulfilled the exhaustion

requirement. See Pesina, 913 F.2d at 54

(“[B]y failing to appeal the denial of his Section 440.10 motion,
[the petitioner] has not fulfilled this requirement with respect to
his ineffective assistance claim.”). Here, Capps did attempt to
file an application to appeal but her papers were returned to her
as

“improperly

filed”.

Respondent

did

not

indicate

why

the

Appellate Division found the papers to be improperly filed, and did
not provide the Court with a copy of the Appellate Division’s
correspondence.
There is a 30-day time-limit for appealing denials of § 440.10
motions. See N.Y. CRIM. PROC. LAW § 460.10(4)(a) (“Within thirty days
after service upon the defendant of a copy of the order sought to
be appealed, the defendant must make application pursuant to
section 460.15 for a certificate granting leave to appeal to the
intermediate appellate court”). Based on the date of the C.P.L.

-10-

§ 440.10 decision (December 31, 2013) and the date of Capps’
application for leave to appeal (February 3, 2014),2 the Court
surmises that the application was found to be “improperly filed”
because it was untimely. However, the Court cannot say this for
certain due to the incomplete record received from Respondent.
Because the 30-day time-limit in C.P.L. § 460.10(4)(a) has long
since passed, it seems that Capps would face a procedural bar if
she were attempt to re-file her notice of appeal, and therefore
that the claim should be deemed exhausted.
However, there is Second Circuit precedent that holds to the
contrary. See Pesina, 913 F.2d at 54. In Pesina, the Second Circuit
rejected the argument that because the statutory time limit for
seeking leave to appeal the denial of a C.P.L. § 440.10 motion had
passed, the petitioner had in fact exhausted the claims in that
motion. The Second Circuit stated that regardless of how unlikely
it was that the petitioner would have his ineffective assistance
claim held to be procedurally barred by a state court, it had “no
authority to declare as a matter of state law that an appeal from
the denial of his original Section 440.10 motion is unavailable or
that he cannot raise the ineffective assistance claim in a new
Section 440.10 action.” Pesina, 913 F.2d at 54. Thus, under Pesina,
which has not been overruled or abrogated by the Second Circuit,

2

See Letter dated March 10, 2014, from Respondent’s Attorney to
the Court (Dkt #14).
-11-

the Court must treat the ineffective assistance of trial counsel
claim

as

unexhausted.3

See

Priester

v.

Senkowski,

No. 01CIV.3441(LMM)(GWG), 2002 WL 1448303, at *7 (S.D.N.Y. July 3,
2002) (applying Pesina to similar situation, but noting that case
has been undermined by later Supreme Court authority).
The habeas statute, as amended, now permits a district court
to deny (but not grant) a petition containing unexhausted claims on
the merits. See 28 U.S.C. § 2254(b)(2). The statute does not
articulate a standard for addressing such unexhausted claims, and
neither the Supreme Court nor the Second Circuit has
one. Among

the

district

courts

in

this Circuit,

established
the

various

formulations share “the common thread of disposing of unexhausted
claims that are unquestionably meritless.” Keating v. N.Y., 708 F.
Supp.2d 292, 299 n. 11 (E.D.N.Y. 2010) (citing Williams v. Artus,
691

F.

Supp.2d

515,

526–27

(S.D.N.Y.

2010)

(relying

upon

§ 2254(b)(2) where unexhausted claims were “plainly meritless”);
Robinson v. Phillips, No. 04–CV–3446 (FB), 2009 WL 3459479, at *1
(E.D.N.Y.

Oct.23,

2009)

(relying

upon

§

2254(b)(2)

where

unexhausted claims were “patently frivolous”)). Here, as discussed
further below, the unexhausted claim is plainly and unquestionably
without merit. Therefore, the Court finds that it is appropriate to

3

Furthermore, it is possible that Capps could bring another
C.P.L. § 440.10 motion and have her claims considered on the merits
by the County Court. See Pesina, 913 F.2d at 54.
-12-

deny the entire petition on the merits under the authority of
28 U.S.C. § 2254(b)(2).4
IV.

Discussion
A.

Validity of Appellate Rights Waiver

Capps asserts that her waiver of appellate rights was invalid
and insufficient to preclude review of her sentence as harsh and
excessive. Petitioner has not cited, and the Court is not aware of,
any federal precedent standing for the proposition that specific
language must be used by the trial judge in apprising a defendant
pleading guilty of the individual rights relinquished. Roland v.
Rivera, No. 06–CV–6543(VEB)(DGL), 2011 WL 1343142, at *4 (W.D.N.Y.
Jan. 6, 2011) (rejecting as not cognizable petitioner’s claim that
the trial court failed to conduct a proper inquiry into his
understanding of the waiver of appellate rights) (citing Salaam v.
Giambruno, 559 F. Supp.2d 292 (W.D.N.Y. 2008); Nicholas v. Smith,
No. 02 CV 6411(ARR), 2007 WL 1213417, at *10–11 (E.D.N.Y. Apr. 24,
2007)). The Court need not consider whether Petitioner has a viable
federal constitutional claim regarding the alleged deficiency in
her appellate rights waiver, because, as discussed below, her
underlying sentencing claim is not cognizable on habeas review.
Here, Capps pleaded guilty to one count of first degree
manslaughter, a class B violent felony which carried with it a

4

Capps did not seek an extension of the stay to either re-file
her leave application or file a second C.P.L. § 440.10 motion.
-13-

potential maximum determinate sentence of 25 years plus a mandatory
term of up to 5 years of post-release supervision. See N.Y. PENAL LAW
§ § 125.20(1), 70.02(3)(a). Petitioner was promised a sentence of
either 14 or 15 years determinate, plus a 5-year term of postrelease supervision. She ultimately was sentenced to a 15-year
determinate term plus 5 years of post-release supervision. It is
well settled that no federal constitutional issue cognizable on
habeas review is presented where, as here, a habeas petitioner’s
sentence is within the statutorily prescribed range. White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v.
Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff’d mem., 875 F.2d 857
(2d Cir. 1989), cert. denied, 493 U.S. 837 (1989)).
B.

Ineffective Assistance of Trial Counsel

Capps asserts, as she did in support of her C.P.L. § 440.10
motion, that trial counsel was ineffective in failing to seek
youthful offender treatment at the plea proceeding or sentencing,
thereby failing to preserve the issue for appellate review.
To demonstrate a violation of her Sixth Amendment right to the
effective assistance of counsel, a petitioner must show that her
attorney’s representation was deficient in light of prevailing
professional norms and that prejudice inured to her as a result of
that deficient performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). To satisfy the first prong, counsel’s conduct must have
“so undermined the proper functioning of the adversarial process”

-14-

that the process “cannot be relied on as having produced a just
result[.]” Id. at 686. As to the second prong, the petitioner “must
show that there is a reasonable probability that, but for counsel’s
unprofessional” conduct, the result of the trial would have been
different. Id. at 694. “‘[T]here is no reason for a court deciding
an ineffective assistance claim . . . to address both components of
the inquiry if the defendant makes an insufficient showing on
one.’”

Greiner

v.

Wells,

417

F.3d

305,

319

(2d

Cir.

2005)

(alterations in original) (quoting Strickland, 466 U.S. at 697).
Here,

the

Appellate

Division’s

primary

reason

for

not

considering Petitioner’s claim regarding youthful offender status
was that such a contention was encompassed by her valid waiver of
appellate rights, which had nothing to do with trial counsel’s
performance. The lack of preservation by trial counsel simply was
an alternative basis for the Appellate Division to decline to
consider the youthful offender status claim. Thus,

Petitioner has

not shown a reasonable probability that the outcome of her appeal
would have been different but for trial counsel’s error. As a
result, she meet the prejudice prong of Strickland.
Moreover,

Petitioner

has

not

established

Strickland’s

deficient performance prong. In denying the C.P.L. § 440.10 motion,
Judge DiTullio stated that she would not have granted youthful
offender treatment even had trial counsel made such a request. It
is well-settled that the “[f]ailure to make a meritless argument

-15-

does not amount to ineffective assistance.” United States v. Arena,
180 F.3d 380, 396 (2d Cir. 1999), cert. denied, 531 U.S. 811
(2000).
C.

Failure to Grant Petitioner Youthful Offender Status

To the extent Petitioner’s second ground for relief can be
read to assert a stand-alone claim of error by the trial court in
not according her youthful offender status sua sponte, such a claim
is not cognizable on Federal habeas review. Under New York law,
“[t]he decision whether to grant youthful offender status to an
eligible youth generally ‘lies within the sound discretion of the
sentencing court.’” People v. Victor J., 283 A.D.2d 205, 206, 724
N.Y.S.2d 162 (1st Dep’t 2001) (citation omitted). The Second
Circuit has explained that “[t]he granting or denial of youthful
offender treatment is analogous to that of sentencing where courts
have wide discretion even though there are few or no statutory
guidelines for the exercise of such discretion.” United States ex
rel.

Frasier

(citations

v.

Casscles,

omitted).

If

531

the

F.2d

645,

reviewing

647

court

(2d

Cir.

determines

1976)
that

sentencing “judge has exercised has exercised [her] discretion
within statutory limits, appellate review is at an end.” Id.
(citations omitted). As discussed above, Capps’ sentence is wellwithin

the

statutorily

permitted

range.

Therefore,

her

claim

regarding the failure of the state court to accord her youthful
offender status does not present a constitutional issue cognizable

-16-

on federal habeas review. Accord

Murphy v. Artus, 07 Civ. 9468,

2009 WL 855892, at *7 (S.D.N.Y. Apr. 1, 2009) (citing Auyeung v.
David, 00 Civ. 1353, 2000 WL 1877036, at *3 (S.D.N.Y. Dec. 26,
2000) (citing Frasier, 531 F.2d at 647–48)).
V.

Conclusion
For the reasons discussed above, the petition (Dkt. #1) is

dismissed. Because Petitioner has failed to make a substantial
showing of a denial of a constitutional right, the Court declines
to

issue

a

certificate

of

appealability.

See

28

U.S.C.

§ 2253(c)(2). 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.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
November 21, 2014

-17-