Gumpton v. Niagara County Court
Filing
26
DECISION AND ORDER denying the petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/21/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PRISCILLA GUMPTON,
Petitioner,
DECISION AND ORDER
No. 12-CV-0076MAT
-vsNIAGARA COUNTY COURT,
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Priscilla Gumpton (“Petitioner”) has filed
a timely petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging the constitutionality of her custody pursuant to
a judgment entered August 26, 2009, in New York State, County
Court, Niagara County, convicting her, upon a plea of guilty, of
one count of Grand Larceny in the Third Degree (N.Y. Penal Law
(“Penal Law”) § 155.35), three counts of Grand Larceny in the
Fourth Degree (Penal Law § 155.30[1]), and one count of Criminal
Possession of Stolen Property in the Third Degree (Penal Law
§ 165.50).
Petitioner was sentenced to an indeterminate aggregate
prison term of from seven and one-half to fifteen years.
II.
Factual Background and Procedural History
A.
Introduction
On October 24, 2008, a Niagara County grand jury charged
Petitioner, and others, with three counts of fourth-degree grand
larceny, and one count each of third-degree grand larceny and
third-degree
possession
of
No. 2008-491 at Resp’t Ex. E.
stolen
property.
See
Indictment
The charges arose from incidents in
August and September 2008, in which Petitioner, and several others,
stole thousands of dollars worth of merchandise from a Walmart and
a
Blockbuster
locations.
B.
video
store
in
Lockport,
New
York
and
other
Id.
The Guilty Plea
On March 18, 2009, Petitioner and her attorney appeared before
Niagara County Court Judge Matthew J. Murphy, III, and pleaded
guilty
to
all
counts
of
the
indictment
in
exchange
for
the
prosecutor’s agreement not to seek sentencing as a persistent
felony offender.
Plea Mins. [P.M.] 7.
Petitioner admitted that,
on or about September 5, 2008, she, and others, exited the Lockport
Walmart store with over $1,000 worth of merchandise without paying
for it.
P.M. 27-28.
She also admitted that on August 28, 2008,
she, and others, gathered approximately $3,000 worth of merchandise
in the Lockport Walmart and left the store without paying for it.
P.M. 28-29.
Finally, she admitted that on or about August 2, 2008,
she, and others, exited the Lockport Blockbuster video store with
over
$1,000
worth
of
merchandise
P.M. 29-30.
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without
paying
for
it.
C.
Petitioner’s Pro Se Correspondence to the County Court
and the Motion to Withdraw the Plea
Following the entry of her guilty plea, Petitioner submitted
several letters to the County Court, including one dated April 20,
2009 in which she sought to withdraw her guilty plea.
See Niagara
County Court Clerk Minutes at Resp’t Ex. E.
On June 25, 2009, Petitioner filed a formal pro se motion to
withdraw her guilty plea. See Pet’r Notice of Motion and Affidavit
dated 06/05/2009 at Resp’t Ex. E.
In it, she argued that she was
not guilty, but had pleaded guilty because she felt intimidated by
the presence of investigators in the court room, one of whom had
told her that he had listened to her phone calls and would keep her
truck, and that he was out to get her because she was “the ring
leader.”
Id. at 19.
She also alleged that the attorney assigned
to represent her, Alan J. Roscetti, had “laughed in [her] face,”
was uninterested in her case, and told her that he “could win the
case but the Wal-mart employees are lying or being told what to
say.” Id.
The People opposed the motion, noting, inter alia, that
Petitioner had “previously plead guilty to crimes in New York State
more than 25 times, three times to felonies.” People’s Response to
Defendant’s Motion to Withdraw Plea at p 2 at Resp’t Ex. E.
On July 22, 2009, Petitioner appeared in county court with her
newly-assigned
counsel,
attorney
Yvonne
Vertlieb,
for
oral
arguments on the motion. Mins. of 07/22/2009. On August 25, 2009,
the county court denied Petitioner’s motion in a written order.
-3-
See Decision and Order of the Niagara County Court dated 08/25/2009
at Resp’t Ex. E.
D.
On
Sentencing
August
26,
2009,
Petitioner
appeared
for
sentencing,
admitted her previous conviction of fourth-degree grand larceny,
and was adjudicated a second felony offender.
Sentencing Mins.
[S.M.] 3-4.
The county court sentenced Petitioner to an indeterminate
aggregate prison term of from seven and one-half to fifteen years.
S.M. 12-13.
E.
Direct Appeal
Through
counsel,
Petitioner
appealed
her
judgment
of
conviction in the Appellate Division, Fourth Department on the
following grounds: (1) the court abused its discretion in denying
her motion to withdraw her guilty plea; and (2) the sentences were
harsh and should be modified to run concurrently with each other.
See Pet’r Br. on Appeal at Resp’t Ex. D.
The Appellate Division
unanimously affirmed Petitioner’s conviction on February 18, 2011,
and leave to appeal was denied.
People v. Gumpton, 81 A.D.3d 1441
(4th Dep’t 2011) (Resp’t Ex. G); lv. denied, 17 N.Y.3d 795 (2011)
(Resp’t Ex. I).
F.
The Habeas Corpus Petition
On or about January 30, 2012, Petitioner filed the instant
habeas corpus petition, wherein she seeks relief on the following
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grounds that: (1) she was not arrested on September 11, 2008, and
“was arrested for allegedly committing prior crimes only”; (2) she
was forced and intimidated to plead guilty by the presence of an
investigator in the courtroom and by her attorney’s desire for
“sexual favors” in exchange for lesser time; (3) the police had no
probable
cause
to
seize
and
search
Petitioner’s
vehicle
on
September 11, 2008 because she committed no crime on that date; and
(4) she was convicted of a crime that she did not commit on
September 11, 2008.
See Pet. ¶ 22, Grounds One-Four (Dkt. No. 1),
Exhibits (Dkt. Nos. 4, 8).
supporting
memorandum
in
Respondent filed an affidavit and
opposition
to
the
habeas
petition
(Dkt. No. 10), and Petitioner filed a reply memorandum,1 with
supporting exhibits, on July 26, 2012.
reasons that
follow,
habeas
relief
Dkt. Nos. 20, 21.
is
denied
and
the
For the
habeas
petition is dismissed.
1
The Court notes that a fairly significant portion of Petitioner’s 117 page
hand-written reply memorandum contains nothing more than quoted portions of the
pre-plea and plea transcripts. Similarly, a number of Petitioner’s ten exhibits
submitted in support of her reply memorandum are portions of the record on
appeal, which were submitted to the Court by Respondent and were reviewed in
conjunction with the habeas petition.
Moreover, as the Court understands
Petitioner’s pleadings, it appears that her reply memorandum raises new factual
allegations that were not raised in the habeas petition. See 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.”). Her reply memorandum also appears to raise, improperly, new
claims, namely, ineffective assistance of counsel, “double jeopardy,” “conflict
of interest,” “tainted evidence,” and claims related to defects in the grand jury
proceedings. See Rule 2(c) of the Rules Governing Section 2254, Cases in the
United States District Courts (“The petition must . . . specify all the grounds
for relief available to the petitioner. . . .”). To the extent that Petitioner
responds, in her reply, to Respondent’s contentions in opposition to her
petition, those responses have been considered by the Court.
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G.
Request for an Evidentiary Hearing and Motion to Set
Aside the Sentence
On May 8, 2012, Petitioner filed a Motion for an Evidentiary
Hearing and Motion to Set Aside the Sentence.2
For the reasons
that follow, both motions are denied.
With
respect
to
Petitioner’s
request
for
an
evidentiary
hearing, “[a] district court has broad discretion to hear further
evidence in habeas cases.”
Nieblas v. Smith, 204 F.3d 29, 31
(2d Cir. 1999) (citing Townsend v. Sain, 372 U.S. 293, 318 (1963)).
“[W]here specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed,
be able to demonstrate that he is . . . entitled to relief, it is
the duty of the court to provide the necessary facilities and
procedures for an adequate inquiry.”
Bracy v. Gramley, 520 U.S.
899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300
(1969));
see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(“In deciding whether to grant an evidentiary hearing, a federal
court
must
consider
whether
such
a
hearing
could
enable
an
applicant to prove the petition’s factual allegations, which, if
true, would entitle the applicant to federal habeas relief.”).
As
2
By way of this same motion, Petitioner also requested that the Court
appoint her counsel. Dkt. No. 12. In an Order dated May 14, 2012, this Court
(Hon. Leslie G. Foschio) denied that request, and instructed Respondent to file
a response to the motion for evidentiary hearing and motion to set aside the
sentence. Dkt. No. 13. In compliance with the Court’s instruction, Respondent
filed a response on May 23, 2012, and Petitioner filed a Memorandum/Declaration
in response thereto on August 30, 2012. Dkt. No. 22.
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discussed infra, it is abundantly clear that Petitioner’s claims
provide no basis for habeas relief as they are unexhausted and
meritless.
Thus, Petitioner’s request for an evidentiary hearing
is denied.
With respect to Petitioner’s motion to set aside her sentence,
that motion is also denied.
First, as Respondent correctly points
out in its opposing declaration (Dkt. No. 14 at ¶ 6), the relief
Petitioner seeks is traditionally reserved for the state courts by
way of a N.Y. Crim. Proc. Law (“CPL”) § 440.20, and thus is not
appropriate in the federal habeas context.
Second, and in any
event, Petitioner has not provided any basis for vacatur of her
sentence insofar as she does not challenge the constitutionality of
her sentence in the instant habeas petition, and all of the claims
upon which she seeks habeas relief are unexhausted and meritless.
Accordingly,
her
motion
to
set
aside
the
sentence
is
denied
(Dkt. No. 14).
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).
-7-
“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).
All of Petitioner’s claims are raised for
the first time in the habeas petition and are therefore unexhausted
for purposes of federal habeas review.
IV.
Analysis of the Petition
1.
Grounds One, Three and Four are Procedurally Defaulted and, in
any event, Waived by Petitioner’s Guilty Plea
At grounds one, three, and four of the petition, Petitioner
claims that she is entitled to habeas relief because: (1) she was
not arrested on September 11, 2008, and “was arrested for allegedly
committing prior crimes only”; (2) the police lacked probable cause
to search and seize her vehicle on September 11, 2008 because she
committed no crime on that date; and (3) she was convicted of a
crime that she did not commit on September 11, 2008.
¶ 22, Grounds One, Three, and Four.
See Pet.
For the reasons discussed
below, these claims provide no basis for habeas relief.
Initially, these claims are unexhausted because they are
raised for the first time in the habeas petition.
§ 2254(b)(1)(A).3
See 28 U.S.C.
However, where, as here, a petitioner would face
3
The Court notes that Petitioner appears to have raised some or all of these
claims in an unfiled CPL § 440.10 motion dated October 13, 2011, which is
attached to the habeas petition.
See Dkt. No. 4.
In its sworn opposing
declaration, Respondent states that neither the motion to vacate attached to the
habeas petition, nor any other type of post-conviction motion, was ever filed in
state court or served upon the Niagara County District Attorney in this matter.
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an absence of state corrective procedure if she were to return to
state court to exhaust her record-based claims, the Court may deem
the claims exhausted but procedurally defaulted.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
See Aparicio v.
Petitioner used her one
right to direct appeal, and collateral review of these record-based
claims
(by
way
§ 440.10(2)(c).
of
motion
to
vacate)
is
foreclosed
by
CPL
See N.Y. Ct. Rules § 500.20(a) (permitting the
filing of only one direct appeal and one application for leave to
appeal to the Court of Appeals);
CPL § 440.10(2)(c) (motion to
vacate must be denied where record-based claim could have been
raised on direct appeal but unjustifiably was not).
Accordingly,
the Court deems these claims exhausted but procedurally defaulted
from habeas review.
Federal courts may only consider the merits of procedurally
defaulted claims where the petitioner can establish both cause for
her procedural default and resulting prejudice or, alternatively,
that a fundamental miscarriage of justice would occur absent
federal court review of the claims.
Acosta v. Artuz, 575 F.3d 177,
184 (2d Cir. 2009) (citation omitted);
Smith v. Fischer, No. 07
CIV. 2966, 2012 U.S. Dist. LEXIS 29010, 2012 WL 695432, at *16
(S.D.N.Y. Mar. 5, 2012) (citations omitted).
To establish legal
“cause” which would enable this Court to consider Petitioner’s
See Resp’t Opposing Declaration (Dkt. No. 10) at ¶ 4. Given this information,
the Court finds that grounds one, three and four of the habeas petition remain
unexhausted.
-9-
procedurally forfeited claims, she must show that some objective,
external factor impeded her ability to fully exhaust it.
Eckhardt
v.
Superintendent,
Attica
Correctional
See
Facility,
No. 9:04-CV-0559 (GLS/GHL), 2008 U.S. Dist. LEXIS 118609, 2008 WL
8156688, at *7 (N.D.N.Y. Mar. 25, 2008); Doleo v. Reynolds, No. 00
CIV.7927, 2002 U.S. Dist. LEXIS 8090, 2002 WL 922260, at *3
(S.D.N.Y. May 7, 2002).
Petitioner does not allege cause and
prejudice for the default.
Moreover, even liberally construing
Petitioner’s contention that “no crime occurred on September 11,
2008” as a declaration of her innocence, she still has not and
cannot avail herself of the miscarriage of justice exception.
In
this case, having entered a knowing, voluntary and intelligent
guilty plea (see discussion infra at section IV, 2) admitting to
the factual basis supporting the elements of the crimes of which
she was convicted, Petitioner cannot now claim, to the extent she
does so in the petition, “actual innocence.”
See generally Schlup
v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851, 130 L. Ed. 2d 808
(1995)(a claim of actual innocence may bring the petitioner into
the
“narrow
class
of
cases
miscarriage of justice.”).
...
implicating
a
fundamental
Accordingly, Petitioner’s claims are
procedurally defaulted from habeas review, and are denied on that
basis.
In any event, even assuming arguendo, the claims were not
procedurally defaulted from habeas review based on Petitioner’s
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failure to exhaust them, they would still be barred from habeas
review by virtue of Petitioner’s knowing, intelligent and voluntary
guilty plea (see discussion infra at section IV, 2).
In Tollett v.
Henderson, 411 U.S. 258, 267 (1973), the Supreme Court held that
when a
criminal
defendant
on
advice
of
counsel
has
solemnly
admitted in open court that she is guilty of a charged offense, she
may not thereafter raise independent claims relating to deprivation
of constitutional rights that occurred prior to the plea.
Id.
She
may only attack the voluntary and intelligent character of the
plea.
Id.
“In other words, under Tollett, the only issue
reviewable by a federal court on a habeas petition is whether the
guilty
plea
voluntary.”
in
state
court
was
knowing,
intelligent,
and
Siao-Pao v. Keane, 878 F. Supp.2d 468, 472 (S.D.N.Y.
1995). Because all of Petitioner’s claims involve pre-plea matters
that do not directly challenge and/or implicate the voluntary
nature of the guilty plea itself, the claims are barred from habeas
review.
In sum, Petitioner’s claims are procedurally defaulted and
denied on that basis.
Further, even if these claims were not
procedurally defaulted, they would still be barred by Tollett v
Henderson.
Accordingly,
grounds
one,
three and four
of
petition provide no basis for habeas relief and are denied.
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the
2.
Ground Two is Unexhausted and Meritless
At ground two of the petition, Petitioner states that she was
“forced, intimidated, threatened, and sexually abused.”
Ground Two.
Pet. ¶ 22
In support of her claim, she explains that she was
forced and intimidated to plead guilty by the presence of an
investigator in the courtroom at the time she entered her plea, and
by her attorney’s desire for “sexual favors in exchange for lesser
time.”
Id.
For the reasons discussed below, this claim does not
warrant habeas relief.
Like grounds one, three and four of the habeas petition, this
claim was also not raised in the state courts and therefore remains
unexhausted for purposes of federal habeas review. However, unlike
Petitioner’s other record-based claims, this claim appears to
involve matters dehors the record and thus could still be raised in
a motion to vacate in state court. Petitioner’s failure to exhaust
this claim, however, is not fatal to the Court’s disposition of it
on the merits.
Because the Court finds the claim to be wholly
meritless,4
has
it
the
discretion
to
dismiss
the
petition
4
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.
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”)).
-12-
notwithstanding Petitioner’s failure to exhaust.
§ 2254(b)(2);
See 28 U.S.C.
Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir.
2002).
“The longstanding test for determining the validity of a
guilty plea
is
‘whether
the
plea represents
a
voluntary and
intelligent choice among the alternative courses of action open to
the defendant.’”
Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366
(1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
The Second Circuit has summarized the relevant factors as follows:
[A] plea is deemed ‘intelligent’ if the
accused had the advice of counsel and
understood the consequences of his plea, even
if only in a fairly rudimentary way; it is
deemed ‘voluntary’ if it is not the product of
actual or threatened physical harm, mental
coercion overbearing the defendant’s will, or
the defendant’s sheer inability to weigh his
options rationally.
Miller v. Angliker, 848 F.2d 1312, 1320 (2d
Cir. 1988).
A
reviewing court will uphold a guilty plea entered by a defendant
“‘fully aware of the direct consequences . . . unless induced by
threats . . . misrepresentation . . ., or perhaps by promises that
are by their nature improper.’”
Brady v. United States, 397 U.S.
742, 755 (1969) (quotation omitted).
Since a defendant who pleads
guilty waives several fundamental constitutional rights, in order
for the waiver to be valid under the due process clause, it must be
“‘an intentional relinquishment or abandonment of a known right or
privilege.’”
McCarthy v. United States, 394 U.S. 459, 465 (1969)
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(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
“Not only
must the plea of guilty be voluntary, it must also be a knowing and
intelligent act done with ‘sufficient awareness of the relevant
circumstances
and
likely
consequences.’”
United
States
v.
Rossillo, 853 F.2d 1062, 1064 (2d Cir. 1988) (quoting Brady, 397
U.S. at 748). Furthermore, “although ‘the governing standard as to
whether a plea of guilty is voluntary for purposes of the Federal
Constitution is a question of federal law,’ questions of historical
fact, including inferences properly drawn from such facts, are in
this context entitled to the presumption of correctness accorded
state court factual findings.’”
Parke v. Raley, 506 U.S. 20, 35
(1992) (quoting Marshall v. Lonberger, 459 U.S. 422, 431 (1983)
(internal citation omitted)).
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. The
subsequent
presentation
of
conclusory
allegations
unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.”
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Applying these standards to the instant case, the Court finds
no basis to conclude that Petitioner’s guilty plea was anything
other than knowing, intelligent, and voluntary.
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At the plea proceeding, the Court acknowledged that Petitioner
had been before the court “on many occasions” and that she knew the
“routine.”
P.M. 9.
The court also noted that the 43-year-old
Petitioner seemed “very intelligent and articulate in [the court’s]
dealings with” her and that “this is a very serious matter . . .
the net result of what happens today could result in [Petitioner]
spending as long as 26 years in state prison.”
P.M. 9-10.
Petitioner acknowledged that she had discussed the plea with her
attorney, and while she and counsel alluded to a prior, unstated
problem
with
each
other,
Petitioner
stated
that
she
had
no
complaints about her attorney. P.M. 9-11. Petitioner acknowledged
that by pleading guilty, she would waive her trial rights.
13-15, 16, 21.
P.M.
Petitioner denied that anyone had offered her
anything of value to plead guilty, or forced her or threatened her
to plead guilty, and that she was pleading guilty freely and
voluntarily, after a full consultation with her attorney. P.M. 1516.
Before entering the guilty plea, the court granted Petitioner
and her attorney a recess so they could discuss the fact that
Petitioner would waive her right to challenge the grand jury
process.
P.M. 19-20.
After this recess, Petitioner then admitted
her guilt to each of the five counts in the indictment.
P.M. 24-
30.
The Court agrees with Respondent (see Resp’t Mem. of Law at
22-24)
that
Petitioner’s
in-court,
-15-
under
oath
statements,
as
summarized above, undermine her after-the-fact contentions that she
felt intimidated to plead guilty by an investigator’s presence in
the courtroom, and by her attorney’s desire for “sexual favors in
exchange for lesser time.”
Pet. ¶ 22, Ground Two.
The record
reflects that, during the plea colloquy, Petitioner specifically
denied that anyone had forced her or threatened her to plead
guilty,
and
stated
that
she
was
pleading
guilty
freely
and
voluntarily, after a full consultation with her attorney. P.M. 1516.
The record reflects further that Petitioner, before giving an
unwavering admission of guilt, was afforded at least one prolonged
opportunity to confer with her attorney before entering her guilty
plea.
P.M. 19-20.
At no point before or after this recess did she
express hesitation or concern with entering her guilty plea for any
reason, including those she now cites in the habeas petition.
Given the record before this Court and Petitioner’s failure to
offer anything other than a series of self-serving allegations to
support her claim, the Court concludes that Petitioner’s plea was
knowing, intelligent, and voluntary.
In sum, Petitioner’s claim is meritless and provides no basis
for habeas relief.
V.
The claim is therefore denied in its entirety.
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,
and
the
petition
is
dismissed.
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Petitioner’s
motion
for
an
evidentiary hearing and motion to set aside the sentence is also
denied.
Dkt. No. 12.
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:
November 21, 2012
Rochester, New York
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