Toliver v. Artus

Filing 18

DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. (Clerk to close case) Signed by Hon. Michael A. Telesca on 1/3/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SAMUEL R. TOLIVER,
DECISION AND ORDER
No. 11-CV-1051MAT

Petitioner,
-vsDALE ARTUS, SUPERINTENDENT
WENDE CORRECTIONAL FACILITY

Respondent.
________________________________
I.

Introduction
Pro se Petitioner Samuel R. Toliver (“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 June 25, 2009, in New York State, County Court,
Erie County, convicting him, upon a plea of guilty, of Assault in
the First Degree (N.Y. Penal Law (“Penal Law”) § 120.10[4]).
II.

Factual Background and Procedural History
A.

Indictment, Plea, and Sentencing

Erie County Indictment No. 01196-2007 charged Petitioner with
two counts of Attempted Robbery in the First Degree (Penal Law
§§ 110.00, 160.15[1], [4]), two counts of Burglary in the Second
Degree (Penal Law § 140.25[1][b], [d]), and two counts of Assault
in the First Degree (Penal Law § 120.10[1], [4]).

-1-

The charges

arose from an incident that occurred on June 13, 2003, wherein
Petitioner, armed with a handgun, entered a Goodwill store in the
Town of Cheektowaga, New York after it had closed and attempted to
forcibly steal money from the assistant manager of the store,
Teresa Harris (“Harris”), causing serious physical injury to her by
striking her on the head with a handgun.

See Erie County Ind.

No. 01196-2007, dated 06/12/08 at Resp’t Ex. A.
On April 27, 2009, Petitioner pleaded guilty in Erie County
Court before the Hon. Shirley Troutman to Assault in the First
Degree (Penal Law § 120.10[4]) in satisfaction of the indictment.
See Plea Mins. [P.M.] of 04/27/2009.
Prior to sentencing, Petitioner, represented by new counsel,
moved to withdraw his guilty plea on the basis that his plea was
not entered knowingly and voluntarily.
Petitioner’s

motion.

Sentencing

subsequently

sentenced,

as

a

The county court denied

Mins.

second

[S.M.]

felony

2-4.
offender,

He
to

was
a

determinate term of fifteen years imprisonment and five years postrelease supervision.
B.

S.M. 9.

Petitioner’s Direct Appeal

Petitioner

appealed

his

judgment

of

conviction

in

the

Appellate Division, Fourth Department on the following grounds:
(1) the trial court erred in denying his motion to withdraw his
plea

which

was

not

knowingly,

intelligently,

and

voluntarily

entered; (2) his appeal waiver was ineffective to preclude his

-2-

challenge to the county court’s harsh and excessive sentence; and
(3) his sentence was unduly harsh and severe and should be modified
in the interest of justice.
at Resp’t Ex. B.

See Pet’r Br. on Appeal, Points I-III

Petitioner also forwarded a pro se appellate

brief to the Appellate Division, which was returned to Petitioner
because he “failed to include 10 copies of the brief and proof of
service of one copy of the brief on all parties.”

Letter of the

Appellate

Ex.

Division,

dated

09/16/2010

at

Resp’t

B.

The

Appellate Division unanimously affirmed the judgment of conviction,
and leave to appeal was denied.

People v. Toliver, 82 A.D.3d 1581

(4th Dep’t 2011); lv. denied, 17 N.Y.3d 862 (2011).

Petitioner

filed a motion for reconsideration in the New York Court of
Appeals, which was denied on September 14, 2011.
C.

Id.

Petitioner’s Motion to Vacate the Judgment of Conviction

On or about November 14, 2011, Petitioner filed a motion,
pursuant to N.Y. Crim. Proc. Law (“CPL”) § 440.10, to vacate his
judgment of conviction on the following grounds: (1) that he was
denied

effective

consented

to

a

assistance
confirmatory

of

counsel

DNA

test

because

his

attorney

without

having

fully

investigated his case; (2) prosecutorial misconduct; (3) the trial
court lacked jurisdiction to try him on the indictment because the
Cheektowaga officers were without authority to enter the City of
-3-

Buffalo to make the arrest; and (4) a Miranda violation.
Motion to Vacate at Resp’t Ex. E.

See Pet’r

In a Memorandum and Order dated

March 1, 2012, the Erie County Court (Hon. Kenneth F. Case) denied
Petitioner’s motion.

See Mem. and Order of the Erie County Court,

dated 05/01/2012 at Resp’t Ex. E.

The Appellate Division denied

leave to appeal on May 22, 2012. See Appellate Division decision,
dated 05/22/2012 at Resp’t Ex. F.
D.

The Federal Habeas Corpus Petition

This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) that the trial court erred in
denying his motion to withdraw his plea because his plea was
unlawfully induced or not made voluntarily; (2) he was denied
effective assistance of counsel; and (3) his “[c]onviction [was]
obtained by the use of evidence gained pursuant to an unlawful
arrest/unconstitutional

search

and

seizure;

and

(4)

his

“[c]onviction [was] obtained by a violation of the privilege of
self-incrimination.”

See Pet. ¶ 12A-D and Supp. Aff. at p 10-43

(Dkt. No. 1). Respondent filed an answer and supporting memorandum
in opposition to the petition (Dkt. Nos. 12-14), and Petitioner
filed a reply (Dkt. No. 15) and memorandum1 (Dkt. No. 16).
1

In his Memorandum, Petitioner raises, improperly, a new, stand-alone
ineffective assistance of appellate counsel claim. See Rule 2(c) of the Rules
Governing Section 2254, Cases in the United States District Courts (“The

-4-

For the reasons that follow, Petitioner’s request for habeas
relief is denied and the petition is dismissed.
III. The 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
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. Attorney
General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied,
464 U.S. 1048 (1984).
IV.

The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by

a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.

petition must . . . specify all the grounds for relief available to the
petitioner. . . .”); see also Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir.
1993 (“[a]rguments may not be made for the first time in a reply brief."). To
the extent that Petitioner responds, in his reply memorandum, to Respondent’s
contentions in opposition to his petition, those responses have been
considered by the Court. His new, stand-alone ineffective assistance of
appellate counsel claim, on other hand, is not considered by this Court.

-5-

A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”

28 U.S.C.

§ 2254(d)(1)-(2).
V.

Analysis of the Petition

1.

Trial Court Erred in Denying Motion to Withdraw Guilty Plea
(Ground One)
At ground one of the petition, Petitioner argues, as he did on

direct appeal, that the trial court erred in denying his motion to
withdraw his guilty plea because his plea was unlawfully induced or
not made voluntarily.

See Pet. ¶ 12A, Supp. Aff. at p 10-18.

According to Petitioner, he should have been permitted to withdraw
his guilty plea because “he was not advised of the consequences of
his plea, the range of sentence he could receive, the rights he was
giving up nor the effect of a previous conviction on that plea.”
Pet. ¶ 12A; see also Supp. Aff. at 11-12.

In his supporting

affidavit, he also claims that the plea was involuntary because the
county court “never clarified nor made inquiry into whether [his]
answers to the court[‘][s] . . . questions were read from a paper

-6-

and did

not

request to

examine the

paper

from which

.

.

.

Petitioner was reading.” Supp. Aff. at 13. The Appellate Division
adjudicated this claim on the merits.
82.

Toliver, 82 A.D.3d at 1581-

Therefore, the AEDPA standard of review applies, and, under

that standard, Petitioner’s claim is meritless.
Due process requires that a guilty plea be voluntary, as well
as knowing and intelligent.

See, e.g., Bousley v. United States,

523 U.S. 614, 618 (1998);

Brady v. United States, 397 U.S. 742,

748

case,

(1970).

demonstrates

In
that

this
he

Petitioner’s

knowingly,

voluntarily

plea
and

transcript

intelligently

pleaded guilty to the charge of first-degree assault.

Petitioner

acknowledged that he understood that “by pleading guilty to [the]
charge [he] could be sentenced up to a maximum sentence of up to 25
years followed by five years of postrelease supervision.”

P.M. 7.

He also stated that he understood that if it turned out he had a
prior

felony

conviction,

“the

law

would

require

sentencing judge] sentence [him] in a specific way.”

that

[the

P.M. 11.

The

sentencing judge clarified that this meant “there would be a
mandatory

minimum

sentence

that

the

[c]ourt

would

consider,” and Petitioner responded that he understood.

have

to

P.M. 11.

Petitioner also stated that he understood the rights he would be
giving up by pleading guilty, including his rights to a jury trial,
-7-

to require the People to call witnesses and testify against him and
have his attorney question those witnesses, to testify in his own
defense,

to

require

the

People

to

prove

his

guilt

beyond

a

reasonable doubt, and to challenge the legality of any statements
he made to the police, and evidence received, and the manner in
which the police investigated the case.

P.M. 8-10.

Further,

Petitioner agreed to waive his right to appeal his conviction.
P.M. 13.

In response to the trial court’s inquiry, Petitioner

acknowledged that he had discussed the plea with his attorney and
wished “to resolve all of the counts in the indictment by pleading
guilty under the fifth count to assault in the first degree in
violation of Penal Law section 120.10 subdivision four which is a
Class B violent felony.”

P.M. 6.

He acknowledged that he

understood he was confessing his guilt by pleading guilty, and that
he was entering the guilty plea because he believed he was, in
fact,

guilty.

P.M.

7,

18.

The

record

also

reflects

that

Petitioner made out a sufficient factual basis to the crime.

P.M.

14-16.
Moreover, once a guilty plea is accepted by the court, there
is “no absolute right” to withdraw it.

Murray v. McGinnis, No. 00

Civ. 3510(RWS), 2001 U.S. Dist. LEXIS 108, 2001 WL 26213, at *4
(S.D.N.Y. Jan. 10, 2001) (citing U.S. ex rel. Scott v. Mancusi, 429
-8-

F.2d 104, 109 (2d Cir. 1970)); see also Thomas v. Senkowski, 968
F.Supp. 953, 956 (S.D.N.Y. 1997) (“With respect to a motion to
withdraw a guilty plea, the nature and extent of the fact-finding
procedures requisite to the disposition of such motions rest
largely in the discretion of the Judge to whom the motion is
made.”) (internal quotation marks and citations omitted). All that
is

required

is

that

the

court

provide

the

defendant

with

a

“reasonable opportunity to present his contentions.”

Id. Here,

Petitioner

prior

sentencing.

was

provided

with

such

an

opportunity

to

The record reflects that Petitioner presented his

contentions to the county court by way of a filed motion to
withdraw the guilty plea and oral argument. S.M. 2-4.

During oral

argument, Petitioner’s attorney explained to the court that the
motion included his client’s affidavit, which set forth the reasons
for withdrawing the guilty plea.

S.M. at 2-3.

Petitioner’s

attorney stated that “it appears that my client’s application is
grounded upon non-record occurrences which affected his ability to
knowingly and voluntarily enter a guilty plea, and we would rest on
the substance of my client’s affidavit without repeating it at this
point.”

S.M. 3.

After reviewing the papers filed and considering

the arguments presented by both parties, the county court denied
Petitioner’s motion, stating as follows:
-9-

[t]he defendant claims that he did not
knowingly and intelligently enter into
the plea that this Court previously
accepted; and states that there were
things said by his attorney that should
cause the Court to allow him to withdraw
the plea. He claims misrepresentation by
prior counsel.
Notably, the Court asked if anyone
promised the defendant anything else. I
took the time throughout the plea,
interrupted it to allow the defendant to
repeatedly speak to counsel about any
concerns.
This Court stated to Mr.
Toliver that the Court was prepared to
and the People were ready to give him the
original jury trial he demanded.
Mr. Toliver, it is this Court’s belief
that you knowingly and intelligently
entered into the plea and, therefore,
your request to withdraw your plea is
denied.
S.M. 4.

After ruling on Petitioner’s motion, the sentencing judge

permitted

Petitioner to

address

the

court,

at

which

time

he

explained that, at the time of the plea, he had been “distressed”
and “upset” and “didn’t know what [he] was saying.”

S.M. 6.

He

went on to state that “[j]ust because I recited something on
papers, that don’t necessarily mean that I admit I knew what I was
reading.”

S.M. 6.

The sentencing judge then asked Petitioner,

“[w]hat are you referring to as having read?”
response, Petitioner stated:

-10-

S.M. 6.

In

Mr. Johnson (Petitioner’s attorney at the
plea) told me to recite what was on the paper,
all he said was, read this, and I read it. He
didn’t tell me, if you read this, this is
what’s going to happen, this is what this
means or anything like that.
He said read
this, and that’s that, and that’s what I did.
I made a statement. I never said I was guilty
or anything.
S.M. 6-7.

In response to Petitioner’s statement, the sentencing

judge read back to Petitioner the relevant portions of his plea
transcript, highlighting that “[Petitioner] did everything that was
alleged and [Petitioner] knowingly pled guilty to it.”

S.M. 9.

The trial court then sentenced Petitioner, in accordance with the
plea agreement, to a determinate term of imprisonment of fifteen
years with five years of post-release supervision.
Petitioner’s

after-the-fact

contentions

that

S.M. 9.
“he

was

not

advised of the consequences of his plea, the range of sentence he
could receive, the rights he was giving up[,] nor the effect of a
previous conviction on that plea” (Pet. ¶ 12A) is clearly belied by
the record, as set forth above.

There is no evidence in the record

–- nor has Petitioner pointed to any other evidence –- that
suggests

Petitioner’s

guilty

plea

voluntary, knowing, and intelligent.

was

anything

other

than

Notably, at no point during

the plea proceedings did Petitioner express hesitation at entering
his guilty plea or indicate that he did not understand was what was
-11-

occurring.

In fact, Petitioner explicitly stated that “[he]

underst[ood] everything” when the trial court asked him at the plea
proceeding, “[o]ther than your perhaps being a little nervous, is
there any reason why you wouldn’t understand what’s going on at
this time?”

P.M. 7.

Indeed, self-inculpatory statements made by a defendant under
oath at a plea hearing “carry a strong presumption of verity,” and
a court, in reviewing belated claims of innocence, must draw all
permissible inferences in favor of the government and against the
defendant. United States v. Maher, 108 F.3d 1513, 1530 (2d Cir.
1997) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
Moreover, a trial judge who addressed a defendant individually in
taking a defendant’s guilty plea, and had the opportunity to
observe

the

defendant’s

demeanor

and

observe

his

or

her

credibility, is entitled to reject belated claims of innocence that
contradict credible pleas of guilty.

Maher, 108 F.3d at 1531; see

also United States v. Lasky, 23 F. Supp. 2d 236, 243 (E.D.N.Y.
1998).

Petitioner’s post-plea claims directly contradict the

statements that he made under oath at the plea hearing in which he
admitted to the crime of first-degree assault.

It was therefore

not unreasonable for the county court -- which had addressed
Petitioner individually in taking his guilty plea, and had the
-12-

opportunity to observe his demeanor and observe his credibility -to deny his motion to withdraw his guilty plea.
Accordingly, this Court cannot find that the county court’s
denial of Petitioner’s motion to withdraw his guilty plea, as
affirmed

by

the

Appellate

Division,

was

contrary

to

or

unreasonable application of clearly established federal law.

an
Nor

can it be said that the state court determination was based on an
unreasonable determination of the facts in light of the evidence
presented

in

§ 2254(d)(1)(2).

2.

the

state

court

proceeding.

28

U.S.C.

This claim is therefore denied in its entirety.

Ineffective Assistance of Counsel (Ground Two)
At ground two of the petition, Petitioner argues that he was

denied the effective assistance of counsel.

Specifically, he

claims that “counsel failed to protect the most basic rights of his
client, failed to inform [Petitioner] of the consequences of [the]
plea, [and] threatened [Petitioner] [with] an extreme sentence if
[Petitioner] did not plead guilty.”
19-31.

Pet. ¶ 12B, Supp. Aff. at p

Petitioner also claims that counsel “failed to protect

[Petitioner’s] rights . . . by allowing the government to illegally
obtain [a DNA sample] that was used against [Petitioner] to coerce

-13-

the plea.”

Pet. ¶ 12B.

For the reasons discussed below, this

claim does not warrant habeas relief.
(A)

Exhaustion

Initially, Petitioner’s claims that “counsel failed to protect
the most basic rights of his client, failed to inform [Petitioner]
of the consequences of [the] plea, [and] threatened [Petitioner]
[with] an extreme sentence if [Petitioner] did not plead guilty”
are unexhausted because they were not properly raised in the state
courts.

To the extent the claims are record-based, Petitioner

failed to raise them on direct appeal.2

To the extent the claims

involve matters dehors the record, Petitioner did not raise them in
a motion to vacate, although he still could.

Petitioner’s failure

to exhaust the claims, however, is not fatal to the Court’s
disposition of them on the merits.

Because the Court finds the

claims to be wholly meritless,3 it has the discretion to dismiss

2

As Petitioner points out in his reply, he did raise a stand-alone ineffective
assistance of counsel claim on what appears to be the same basis in his pro se
leave application to the New York Court of Appeals. However, a claim raised for
the first time in an application for discretionary review has not been properly
exhausted. See St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) (citing
Castille v. Peoples, 489 U.S. 346, 351 (1989).
3

The habeas statute does not articulate a standard for denying a petition
containing unexhausted claims on the merits, and neither the Supreme Court nor
the Second Circuit has established one. The various formulations suggested by
district courts in the Second Circuit share “the common thread of disposing of
unexhausted claims that are unquestionably meritless.” Keating v. New York, 708
F. Supp. 2d 292, 299 n.11 (E.D.N.Y. 2010) (citing Williams v. Artus, 691 F.

-14-

the petition notwithstanding Petitioner’s failure to exhaust.
28 U.S.C. § 2254(b)(2);

See

Pratt v. Greiner, 306 F.3d 1190, 1197

(2d Cir. 2002).
Petitioner’s remaining ineffective assistance claim –- i.e.,
that counsel “failed to protect [Petitioner’s] rights . . . by
allowing the government to illegally obtain [a DNA sample] that was
used against [Petitioner] to coerce the plea” -- is exhausted, as
it was properly raised in the state court as a stand-alone claim in
Petitioner’s motion to vacate.
Resp’t Ex. E.

See Pet’r Motion to Vacate at

In reviewing this claim, the Erie County Court

determined that it lacked merit.

See Mem. and Order of the Erie

County Court, dated 03/01/2012 at 3-4 at Resp’t Ex. E. Because the
state court adjudicated this particular claim on the merits, the
AEDPA standard of review applies to it.
(B)
Under

Petitioner’s Ineffective Assistance of Counsel Claims are
Meritless under Strickland v. Washington
the

standard

promulgated

by

the

Supreme

Court

in

Strickland v. Washington, 466 U.S. 668 (1984), a petitioner is
required to demonstrate both deficient performance and prejudice as

Supp.2d 515, 526-27 (S.D.N.Y. 2010) (relying upon 28 U.S.C. § 2254(b)(2) where
unexhausted claims were “plainly meritless”); Robinson v. Phillips, No.
04-CV-3446 (FB), 2009 U.S. Dist. LEXIS 99417, 2009 WL 3459479, at *1 (E.D.N.Y.
Oct. 23, 2009) (relying upon 28 U.S.C. § 2254(b)(2) where unexhausted claims were
“patently frivolous”)).

-15-

a result of that performance in order to state a successful claim
for ineffective assistance of counsel.
plea

negotiations

defendants

are

assistance of competent counsel.’”

Id. at 688, 694.

‘entitled

to

the

“During

effective

Lafler v. Cooper, 132 S. Ct.

1376, 1384 (2012) (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)).

The Supreme Court has held that “the two-part Strickland

v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52,
58 (1985).
The performance prong of Strickland requires a defendant to
show

“‘that

counsel’s

representation

fell

below

an

objective

standard of reasonableness[,]’” Hill, 474 U.S. at 57 (quoting
Strickland, 466 U.S. at 688), “keep[ing] in mind that counsel’s
function, as elaborated in prevailing professional norms, is to
make the adversarial testing process work in the particular case.”
Strickland, 466 U.S. at 690.
have provided

effective

Counsel is “strongly presumed” to

assistance

and

to

have

and

made all

significant decisions in the exercise of reasonable professional
judgment.”
With

Id.
regard to

prejudice,

“[i]n

the

context

of

pleas

a

defendant must show the outcome of the plea process would have been
different with competent advice.”
-16-

Lafler, 132 S. Ct. at 1384

(citing Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012);

Hill, 474

U.S. at 59 (“The . . . ‘prejudice,’ requirement . . . focuses on
whether counsel’s constitutionally ineffective performance affected
the outcome of the plea process")).

Thus, a petitioner who pleads

guilty and who seeks to establish counsel’s ineffectiveness under
Strickland “must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”

Hill, 474 U.S. at 59.

In the context of federal habeas corpus review of a Strickland
claim under § 2254(d)(1) of AEDPA, “[t]he question ‘is not whether
a federal court believes the state court’s determination’ under the
Strickland standard ‘was incorrect but whether that determination
was unreasonable-a substantially higher threshold.’”

Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)).

“[B]ecause the Strickland standard is

a general standard, a state court has even more latitude to
reasonably determine that a petitioner has not satisfied that
standard.”

Knowles,

556

U.S.

at

123

(citing

Yarborough

v.

Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938
(2004)).

In applying these principles to Petitioner’s ineffective

assistance of counsel claims, the Court finds them meritless.
With respect to Petitioner’s claims that counsel did not to
protect Petitioner’s rights, that he failed to inform Petitioner of
the consequences of the plea, and that he threatened Petitioner to

-17-

plead

guilty,

Petitioner

has

offered

assertions to buttress his claim.

nothing

more

than

bald

Further, his self-serving

statements are unsupported and unsubstantiated by anything in the
record.

And, Petitioner’s contentions are contradicted by his own

sworn statements at the plea proceeding (see discussion supra at
section V, 1).
Specifically,

the

record

reflects

that:

Petitioner

had

discussed with his attorney resolving his case with a plea and that
it was Petitioner’s decision to do so; that Petitioner was pleading
guilty because he was in fact guilty of assault in the first
degree; that he could be sentenced up to a maximum of 25 years
imprisonment followed by five years of post-release supervision by
pleading guilty, and that the court would have to consider a
mandatory minimum sentence if it turned out Petitioner had a prior
felony conviction; that Petitioner understood he was giving up
certain rights by pleading guilty; that Petitioner, nor any member
of his family, had been threatened or abused in any way in order to
get him to plead guilty; and, that he was entering the guilty plea
on account of his own free will.

P.M. 18.

notes

to

that

immediately

prior

Additionally, the Court

entry

of

the

guilty

plea,

Petitioner was specifically asked by the county court if he needed
a

further

opportunity

to

speak

to

his

attorney.

hesitation, Petitioner replied in the negative.

-18-

P.M. 18.

Without

As discussed supra, the Supreme Court has stated that solemn
declarations in open court carry a strong presumption of verity.
Blackledge,

431

U.S.

at

74

(1977).

As

a

result,

a

habeas

petitioner faces the weighty burden of proving that he is entitled
to relief.

See id.

Petitioner has failed to do so, and his claims

are therefore meritless.
Similarly, Petitioner’s contention that counsel “failed to
protect [his] rights by allowing the government to illegally obtain
[a DNA sample] that was used against him to coerce the plea,” (Pet.
¶ 12B) is also meritless.

The record reflects that Petitioner,

apparently assuring defense counsel that he was innocent and that
the DNA sample would lead to his exoneration, allowed his attorney
to consent to the taking of the DNA sample without challenge.

On

July 23, 2008, the parties appeared in court for arguments on the
People’s motion to obtain a buccal swab from Petitioner.

In

support of the motion, the prosecutor argued that the People were
seeking the
07/23/2008

DNA
2.

sample

“for

Initially,

comparison purposes.”

Petitioner’s

attorney

Mins. of
opposed

the

application, stating that “[the People] already have a DNA sample
from my client and I believe that that would be sufficient at this
point.

One

[Petitioner].”

second,

your

Honor,

Mins. of 07/23/2008 2.

if

I

just

may

talk

to

A discussion was held off

the record, and, after conferring with Petitioner, defense counsel
stated, “Your Honor, it’s my client’s standpoint that they have the

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wrong guy.

This would be in furtherance of his exoneration and

we’ll consent to it.”

Mins. of 07/23/2008 3.

At no point after

counsel made this statement did Petitioner object or otherwise
indicate to the court he did not wish to consent or that counsel
had misrepresented his position.

Insofar as defense counsel

appears to have consented to the taking of the DNA comparison
sample (via buccal swabbinh) based on Petitioner’s assurances that
he was innocent and said sample would exonerate him, the Court
cannot find that counsel acted in an objectively unreasonable
manner.
In

any

event,

even

assuming

error,

Petitioner

has

not

demonstrated that “there is a reasonable probability that, but for
counsel’s error, [he] would not have pleaded guilty and would have
insisted on going to trial.”

Hill, 474 U.S. at 59.

Petitioner

asserts that the prejudice resulting from counsel’s error is
“obvious.”

Supp. Aff. at p 23.

It is not, however, obvious to

this Court. Petitioner maintains that “by allowing Petitioner to
submit to a DNA sample, counsel . . . supplied proof positive
evidence that the people did not previously have, evidence that
linked . . . Petitioner directly to the crime . . . .”
Court finds Petitioner’s argument unavailing.

Id.

The

The record reflects

that the People requested the buccal swab at issue only for
“comparison”

and

“probability”

purposes

because

a

sample

of

Petitioner’s DNA was already in the state databank as the result of

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a prior felony conviction, and had ben used to “link” Petitioner to
the instant crime.

Mins. of 07/23/08 at 3.

Moreover, Petitioner,

faced with mounting evidence against him, availed himself of an
advantageous plea that allowed him to plead guilty to one count of
a six count indictment.

Certainly, Petitioner’s dissatisfaction

with the outcome of the proceeding is not a valid basis on which to
find

that

defense

counsel

provided

ineffective

assistance

of

counsel. See United States v. Garguilo, 324 F.2d 795, 797 (2d Cir.
1963) (“A convicted defendant is a dissatisfied client, and the
very fact of his conviction will seem to him proof positive of his
counsel's

incompetence.”).

adjudication

of

this

claim

Accordingly,
was

neither

the

state

contrary

to

court’s
nor

an

unreasonable application of clearly established Supreme Court law.
In sum, Petitioner’s ineffective assistance of counsel is
meritless and provides no basis for habeas relief.

The claim is

therefore denied in its entirety.
3.

Fourth Amendment Claim (Ground Three)
At ground three of the petition, Petitioner appears to be

challenging the lawfullness of his arrest on Fourth Amendment

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grounds.4

See Pet. ¶ 12C, Supp. Aff. at p 32-39.

For the reasons

stated below, this claim provides no basis for habeas relief.
As an initial matter, this claim is unexhausted because it is
raised for the first time in the habeas petition.
§ 2254(b)(1)(A).

See 28 U.S.C.

Nonetheless, the Court finds the claim meritless

and denies it pursuant to 28 U.S.C. § 2254(b)(2).
In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the Supreme
Court explained that “[w]hen a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent
claims

relating

to

deprivation

of

constitutional

occurred prior to the entry of a guilty plea.”

rights

that

Accordingly,

Petitioner’s Fourth Amendment claim is barred from habeas review by
virtue of his voluntary, knowing, and intelligent guilty plea (see
sections V, 1-2, supra).
Moreover, even if this claim was not barred by Petitioner’s
valid guilty plea, it would still be barred from habeas review by
the doctrine set forth in Stone v. Powell, 428 U.S. 465, 494
(1976).

In that case, the Supreme Court found that “where the

4

At ground three of the petition, Petitioner states, in a rather confusing manner,
that, “[t]he police, outside of their territorial jurisdiction, stopped and
arrested the [P]etitioner without a warrant and without authority to do so.
Probable cause to arrest had not been clearly established owing to the absence
of a valid arrest warrant. Secondly, the government used this unlawful arrest
to obtain evidence from [P]etition[er] to indict.” Pet. ¶ 12C. The Court,
liberally construing Petitioner’s pro se pleadings, reads ground three of the
petition as an alleged violation of Petitioner’s Fourth Amendment right to be
free from unlawful searches and seizures.

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State has provided an opportunity for full and fair litigation of
a Fourth Amendment claim a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his
trial.”

Id. at 494 (internal citation omitted).

Accordingly, Petitioner’s Fourth Amendment claim provides no
basis for habeas relief and is denied in its entirety.
4.

Fifth Amendment Claim (Ground Four)
At ground four of the petition, Petitioner claims that his

conviction was obtained in violation of his Fifth Amendment right
against self-incrimination. See Pet. ¶ 12D, Supp. Aff. at p 39-43.
Specifically, he claims that “[he] has a right to be free from
bodily intrusion and to deny aiding the government in obtaining
evidence that can be used to convict.

As a result of [an] unlawful

arrest and subsequent seizure[,] the government obtained a DNA
sample from [him] and used this sample as evidence he committed a
crime and secured an indictment as a result.”

Pet. ¶ 12D.

For the

reasons stated below, this claim does not warrant habeas relief.
Initially, this claim, like the previous claim, is also
unexhausted because it is raised for the first time in the habeas
petition.

See 28 U.S.C. § 2254(b)(1)(A).

Nonetheless, the Court

finds this claim meritless as well and denies it pursuant to 28
U.S.C. § 2254(b)(2).

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The Fifth Amendment provides that “no person . . . shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. Amend. V.

The Fifth Amendment privilege does not

protect a person from being compelled to produce “real or physical
evidence,” but rather protects against the compulsion of evidence
that is “testimonial or communicative in nature.”
California, 384 U.S. 757, 764, 761 (1966).

Schmerber v.

Because the DNA sample

taken from Petitioner (via buccal swabbing) is not testimonial or
communicative in nature, his Fifth Amendment rights were not
violated.
because

it

See id., 384 U.S. at 765 (blood sample admissible
“was

neither

petitioner’s

testimony

nor

evidence

relating to some communicative act or writing” by defendant).
Moreover, the Court notes that, although Petitioner has framed
this claim as a Fifth Amendment violation, his supporting factual
allegations call to mind Petitioner’s Fourth Amendment right to be
free from unlawful seizures.

Thus, to the extent this claim can be

construed as such, it too fails on the merits because it is waived
by Petitioner’s voluntary, knowing, and intelligent guilty plea and
because of the doctrine set forth in Stone v. Powell.
Thus, Petitioner’s claim is meritless and provides no basis
for habeas relief.
V.

It is therefore denied.

Conclusion
For the reasons stated above, the petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,

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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), the Court declines 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.

Coppedge v.

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

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

January 3, 2013
Rochester, New York

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