Seay v. Khahaifa

Filing 10

DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 1/13/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SAMUEL SEAY,
No. 10-CV-0975(MAT)
DECISION AND ORDER

Petitioner,
-vsSUPERINTENDENT KHAHAIFA,
Respondent.

I.

Introduction
By

28

a

U.S.C.

petition

for

a

§

pro

se

2254,

writ

of

habeas

petitioner

corpus

Samuel

Seay

filed

under

(“Seay”

or

“Petitioner”) attacks the constitutionality of his detention in
Respondent’s custody. Petitioner is incarcerated pursuant to a
judgment of conviction entered against him on May 26, 2009, in Erie
County Court of New York State Supreme Court, following his guilty
plea to one count of second degree assault and one count of
aggravated criminal contempt.
II.

Factual Background and Procedural History
Petitioner’s conviction stems from an incident in which he

stabbed an acquaintance on February 15, 2008.

The victim, who had

an order of protection against Petitioner in place, was stabbed
multiple times. Petitioner was indicted on one count of assault in
the second degree, one count of aggravated criminal contempt, one
count of criminal possession of a weapon in the third degree, and
one count of criminal contempt in the second degree. With the

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assistance of counsel, Petitioner elected to plead guilty to second
degree

assault

and

second

degree

criminal

contempt

in

full

satisfaction of the indictment.
On May 26, 2009, Petitioner was sentenced, pursuant to the
plea agreement, to a determinate term of imprisonment of three
years followed by five years of post-release supervision for the
assault conviction and a concurrent term of one year for the
criminal contempt conviction. Petitioner’s counsel did not file a
Notice of Appeal, and Petitioner did not pursue a pro se direct
appeal of his conviction.
On September 16, 2009, Petitioner a pro se motion to vacate
the

judgment

to

New

York

Criminal

Procedure

Law

(“C.P.L.”)

§ 440.10, asserting that he had discovered new evidence, that
defense counsel had committed misconduct and had misrepresented
information in connection with his guilty plea; the indictment was
defective; and that his sentence was illegal. On November 9, 2009,
Petitioner filed a pro se motion to set aside his sentence pursuant
to C.P.L. § 440.20, claiming that the sentence did not comply with
the plea agreement.
On December 23, 2009, the trial court denied both motions on
the merits. Leave to appeal to the Appellate Division, Fourth
Department, of New York State Supreme Court was denied July 8,
2010. Petitioner then requested leave to appeal to the New York
Court

of

Appeals,

but

this

application

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was

dismissed

as

the

underlying order was not appealable as a matter of law. See N.Y.
Crim. Proc. Law § 450.10.
This timely habeas petition followed in which Petitioner
asserts a veritable laundry list of complaints. Respondent’s answer
to the petition asserts that virtually all of the claims are
unexhausted and procedurally defaulted and, in any event, uniformly
without merit. For the reasons set forth below, habeas relief is
denied, and the petition is dismissed.
III. Analysis of the Petition
A.

Ground One

Petitioner asserts that (1) defense counsel, the prosecutor,
and the trial court conducted a Sandoval hearing in his absence;
(2) defense counsel, the prosecutor, and the police knew that the
victim allegedly made “intrusions” into his home, “assaulting” him
by “throwing hot cooking grease burning the [Petitioner’s] scalp
and forehead while being asked to leave the [Petitioner’s] home”;
(3) Petitioner was coerced into pleading guilty or be subjected to
a “consecutive sentence from a CPL 710.30 statement [sic]” of which
Petitioner was “denied [sic] to review”; and (4) the trial court
“chose to suppress the officer’s statement and proceed with a
Huntley hearing without the presence or verification of Lieutenant
Paul Flanagan.”

Petition, ¶12(A) (Docket No. 1).

Before a federal court may consider the merits of a habeas
claim, a petitioner is first required to exhaust his available
state court remedies. See 28 U.S.C. § 2254(b)(1). To properly
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exhaust a habeas claim, a petitioner is required to present that
claim to each available level of the state courts. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (a habeas petitioner must invoke
“one complete round of the State’s established appellate review
process”).
As Respondent notes, these claims are unexhausted. Petitioner
did not perfect a direct appeal of his conviction, and although he
did collaterally challenge his conviction and sentence pursuant to
C.P.L. § 440.10 and C.P.L. § 440.20 motions, he did not raise the
allegations

asserted

in

Ground

One

of

the

petition

in

those

applications.
Under the 1996 amendments to the federal habeas statute,
courts

now

have

the

authority

to

deny

petitions

containing

unexhausted claims on the merits. See 28 U.S.C. § 2254(b)(2). “[I]n
habeas corpus cases, ‘potentially complex and difficult issues
about the various obstacles to reaching the merits should not be
allowed to obscure the fact that the underlying claims are totally
without merit.’” Boddie v. New York State Division of Parole, 288
F. Supp.2d 431, 439 (S.D.N.Y. 2003) (quoting Brown v. Thomas,
No. 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003)).
Here, Seay’s claims in Ground One may be readily denied on the
merits and therefore the Court does not address the exhaustion
issue.
Petitioner’s claim that the trial court held a Sandoval
hearing without his knowledge is factually baseless. Nothing in the
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record indicates that a Sandoval hearing was ever conducted.
Similarly, Petitioner’s claim that the trial court proceeded with
a Huntley hearing without the officer’s presence is also factually
baseless. There is no indication in the record that a Huntley
hearing was held.
Petitioner’s claim that he was coerced into pleading guilty is
belied his sworn statements to the trial judge. A court may
ascertain that a defendant “knowingly” and “"voluntarily” entered
into a plea agreement from, among other things, his allocution
statements. United States v. Hernandez, 242 F.3d 110, 112 (2d Cir.
2001). Statements made by a defendant at a plea allocution carry a
“strong presumption of veracity.” United States v. Torres, 129 F.3d
710, 715 (2d Cir. 1997) (citing Blackledge v. Allison, 431 U.S. 63,
74 (1977)). Prior to pleading guilty, Petitioner assured the trial
court that he had had enough time to speak with his attorney before
pleading guilty and that he was satisfied with his attorney’s
services. Petitioner confirmed that no one, including the court,
his lawyer, or the police, had influenced him in any way to plead
guilty.
Petitioner’s contention that he was denied review of the
C.P.L.

§

710.30

notice

is

contradicted

by

the

record

which

demonstrates that a copy of the C.P.L. 710.30 notice was furnished
to Petitioner at his arraignment on July 24, 2008. See Respondent’s
Exhibit (“Resp’t Ex.”) A (Trial Court Notes of the Proceeding).

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B.

Ground Two

Under Ground Two, Petitioner asserts that (1) defense counsel,
in covert phone conversations with Petitioner’s family, persuaded
them to coerce him into pleading guilty; (2) defense counsel gave
him false information and coerced him into pleading guilty; (3)
defense counsel did not “protest the rights of the eyewitness to
testify in the grand jury proceedings, the witnesses were denied to
testify”; (4) Petitioner was not informed of a Sandoval hearing;
and (5) after Petitioner had been sentenced, he learned of the
“true” C.P.L. § 710.30 statement of Lieutenant Flanagan that
discusses the victim’s “intrusion” into Petitioner’s home; (6) the
C.P.L. § 710.30 statement “diverts” the

fact that Lieutenant

Flanagan did arrest petitioner without a warrant or without a 911
call to his residence; (7) defense counsel withheld the “true”
C.P.L. § 710.30 statement from Petitioner and the court; and
(8) Lieutenant Flanagan was not present at the Huntley hearing.
These claims are unexhausted but should be dismissed under the
authority set forth in 28 U.S.C. § 2254(b)(2). As discussed above,
all of the claims pertaining to the alleged Sandoval and Huntley
hearings and the C.P.L. § 710.30 are factually baseless.
Petitioner’s complaints about defense counsel’s allegedly
coercive behavior are unsupported by anything other than his own
self-serving,

unverified

assertions.

Furthermore,

his

claims

concerning trial counsel and his family are belied by the record.
As discussed above, Petitioner assured the trial court that no one
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coerced him into pleading guilty and that was entering the pleas
voluntarily and of his own free will. See Resp’t Ex. B at 9 (Plea
Minutes).
Finally, Petitioner’s assertions concerning defense counsel’s
preclusion of witnesses testifying in the grand jury are utterly
nonsensical and unsupported by any facts or law.
C.

Ground Three

Under Ground Three, Petitioner asserts that (1) the trial
court chose to suppress the C.P.L. § 710.30 statement without the
officer’s verification or presence in court; (2) Petitioner was
unaware of the “true” C.P.L. § 710.30 statement; (3) Petitioner was
unlawfully arrested after a forced entry into his home without a
warrant or 911 call; (4) that “charges in the indictment [were] not
indicted”; (5) Petitioner’s “NYSIIS” (“rap sheet”) contains an
error regarding his convictions; (6) Petitioner was illegally
sentenced; and (7) defense counsel failed to object to the grand
jury’s

refusal

to

hear

testimony

from

a

witness.

But

for

Petitioner’s claim that his sentence was illegal, all of the
remaining assertions in Ground Three are unexhausted and, moreover,
entirely meritless.
Petitioner’s first two contentions pertaining to the alleged
suppression of the C.P.L. § 710.30 notice are factually baseless,
as discussed above. The record reflects that Petitioner was given
a copy of the C.P.L. § 710.30 notice at his arraignment. His

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contention that the notice was somehow tainted or falsified is
wholly speculative.
With regard to Petitioner’s third contention that he was
subjected to an illegal arrest, habeas review of Fourth Amendment
claims

brought

by

petitioners

who

have

pleaded

guilty

is

foreclosed. This is because where, as here, a defendant enters a
counseled and voluntary guilty plea, it “conclusively establishes
his factual guilt on the . . . charge; how the supporting evidence
was recovered is irrelevant.” United States v. Gregg, 463 F.3d 160,
166 (2d Cir. 2006) (citing Menna v. New York, 423 U.S. 61, 62 n. 2
(1975)).
Petitioner’s fourth contention–that he was not indicted on
charge to which he pled guilty–is precluded from habeas review.
Inasmuch

as

this

claim

relates

to

an

alleged

defect

in

the

indictment, it was waived by Petitioner’s knowing, voluntary, and
intelligent guilty plea. Tollett v. Henderson, 411 U.S. 258, 267
(1973)

(explaining

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 federal constitutional
rights). Petitioner’s seventh contention–that counsel failed to
ensure the testimony of a particular witness before the grand
jury–is likewise foreclosed by Petitioner’s guilty plea. See id.
Petitioner’s fifth charge pertaining to an error in his “rap
sheet”

generated

the

by

New

York

State

Identification

and

Intelligence System is not cognizable on federal habeas review as
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it fails to allege any error of federal constitutional magnitude.
See 28 U.S.C. § 2254(a). NYSIIS is a creature of New York state
statute. People v. Jennings, 54 N.Y.2d 518, 521 n.2 (N.Y. 1984).
Petitioner must direct any request for redress to the New York
State Division of Criminal Justice Services, which is the agency
charged with the responsibility of maintaining criminal records.
Ortiz v. Supreme Court of N.Y. Cty., 199 A.D.2d 160, 160, 605
N.Y.S.2d 267, 267 (App. Div. 1st Dept. 1993).
Petitioner’s only exhausted claim in Ground Three, the sixth
contention pertaining to his allegedly illegal sentence, is without
merit. As the state court found, it is “patent that the terms
imposed were legal, valid and authorized by statute.” Erie County
Court Order dated 12/23/09 at 3 (citing N.Y. Penal Law §§ 60.05(6),
60.01(3), 70.06(6)(b), 70.15(1), 70.45(2)), attached to Petition
(Docket No. 1). Because Petitioner’s sentence was within the
applicable statutory limits, his claim presents no constitutional
question cognizable on federal habeas review. White v Keane, 969
F.2d 1381, 1383 (2d Cir. 1992).
D.

Ground Four (Addendum to Petition)

Under Ground Four, Petitioner contends that 1) defense counsel
and the prosecution withheld favorable evidence; 2) that the grand
jury proceedings were defective; 3) that counsel erred in failing
to file a timely notice of appeal despite Petitioner requesting
that he do so; and 4) defense counsel’s performance was deficient

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because he did not address injuries Petitioner claims he sustained
during the incident.
As discussed above, Petitioner’s allegations of defects in the
grand jury are foreclosed by his guilty plea. See Tollett v.
Henderson, 411 U.S. at 267 (explaining that “a counseled plea of
guilty is an admission of factual guilt so reliable that, where
voluntary and intelligent, it quite validly removes the issue of
factual guilt from the case”); Menna, 423 U.S. at 62 n. 2 (a guilty
plea “simply renders irrelevant those constitutional violations not
logically inconsistent with the valid establishment of factual
guilt and which do not stand in the way of conviction if factual
guilt is validly established”).
Petitioner’s contention that favorable evidence was withheld
is based solely on speculation and cannot form a basis for habeas
relief. See United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y.
1994) (As a matter of law, mere speculation by a defendant that the
government

has

not

fulfilled

its

obligations

under

Brady

v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is not
enough to establish that the government has, in fact, failed to
honor its discovery obligations.”).
Petitioner’s complaints regarding trial counsel’s performance–
the failure to file a notice of appeal and failure to notify the
court of injuries allegedly sustained by Petitioner during the
incident–do not pertain to counsel’s advice concerning Petitioner’s
decision to plead guilty. Habeas review of them therefore is
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foreclosed. See Tollett v. Henderson, 411 U.S. at 267 (stating that
a defendant who has pleaded guilty upon the advice of counsel “may
only attack the voluntary and intelligent character of the guilty
plea by showing that the advice he received from counsel” was
constitutionally deficient).
IV.

Conclusion
For the reasons stated above, Samuel Seay’s petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition (Docket No. 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).

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 in forma pauperis.
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

January 13, 2012
Rochester, New York

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