Harris v. Sheahan
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the action. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/15/17. Copy of Decision and Order sent by first class mail to Petitioner. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KADEEM HARRIS, 10-B-1512,
DECISION AND ORDER
Pro se petitioner Kadeem Harris (“Petitioner”) seeks relief
§ 160.15(2), entered in Erie County Court (Pietruszka, J.), was
Factual Background and Procedural History
Petitioner was charged by a Superior Court Information in
Erie County Court with Robbery in the First Degree, see N.Y.
package that encompassed eight felony charges incurred in three
separate incidents between the months of April and July, 2009,
The offense underlying Petitioner’s conviction involved Petitioner and another
participant forcibly stealing two gold necklaces from the victim while armed with
a deadly weapon. The victim sustained injuries from a gunshot wound sustained
when he struggled with Petitioner over the gun.
Reckless Endangerment, Criminal Possession of Stolen Property,
and Unauthorized Use of a Vehicle. On October 8, 2009, Petitioner
entered a plea of guilty to Robbery in the First Degree. Plea Tr.
10/8/2009 at 2-12.
negotiated by Petitioner’s counsel at the time was pursuant to
followed by five years of post-release supervision. Sentencing
Tr. 5/17/2010 at 3-4. Petitioner retained new counsel for his
ineffective assistance of counsel at sentencing; invalid waiver
unanimously affirmed the judgment of conviction, and leave to
appeal to the New York State Court of Appeals was denied on
June 22, 2012.
People v. Harris, 94 A.D.3d 1484 (4th Dept.); lv.
denied, 19 N.Y.3d 961 (2012).
The instant petition (“Pet.”) followed, raising two grounds
for relief: ineffective assistance of counsel and invalid waiver
of appellate rights. Pet. at 6-8. For the following reasons,
Petitioner’s request for habeas relief is denied.
Standard of Review
The instant petition is governed by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). AEDPA “revised the conditions under which federal
courts may grant habeas relief to a person in state custody.”
Kruelski v. Conn. Superior Ct. for Jud. Dist. of Danbury, 316
F.3d 103, 106 (2d Cir. 2003) (citing 28 U.S.C. § 2254). Under
AEDPA, a federal court may grant a writ of habeas corpus under 28
U.S.C. § 2254 only if the state court’s adjudication of the
Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or involved an “unreasonable
determination of the facts” in light of the evidence presented,
28 U.S.C. § 2254(d)(2). Habeas petitioners have “the burden to
show by clear and convincing evidence that the state court’s
F.Supp.2d 206, 211 (W.D.N.Y. 1998).
Habeas Corpus Petition
Ineffective Assistance of Sentencing Counsel
In support of his habeas petition, Petitioner argues that
his attorney during the sentencing proceeding was ineffective for
(Dkt. # 23) at 7-8.2
The Appellate Division found that, “to the
extent that defendant’s contention that he was denied effective
assistance of counsel survives his guilty plea and valid waiver
of the right to appeal . . . we conclude that it lacks merit.”
Harris, 94 A.D.3d at 1485 (citation omitted).
objective standard of reasonableness . . .
norms,” and (2) the petitioner suffered prejudice as a result of
defense counsel's deficient performance. 466 U.S. at 688, 692.
Under the first prong, the court must “eliminate the distorting
perspective at the time,” and “indulge a strong presumption that
prejudice, a petitioner must show that “there is a reasonable
probability that, but for counsel's errors, the outcome of the
proceeding would have been different.” Id. at 694. “A reasonable
probability is one sufficient to undermine confidence in the
Petitioner’s Memorandum raises additional, unexhausted grounds for relief
based on his previous attorney’s alleged ineffectiveness. Earlier in these
proceedings, the Court (Arcara, D.J.) denied Petitioner’s Motion for a Stay
and Abeyance (Dkt. # 9) and Motion to Amend the Petition (Dkt. # 7), thereby
precluding Petitioner from asserting those new claims here. (Dkt. # 15).
outcome of the trial or appeal.” Dunham v. Travis, 313 F.3d 724,
730 (citing Strickland, 466 U.S. at 694).
Petitioner argued on appeal that “defense counsel apparently
was operating under the misapprehension that he was precluded
from asking the court to consider youthful offender treatment”
for Petitioner. Pet’r App. Br. at 4.3 Specifically, that defense
counsel was “unaware that [Petitioner’s] plea to an armed felony
did not automatically render him ineligible for youthful offender
The transcript reveals otherwise. Here, defense counsel, who
was retained for sentencing purposes only, acknowledged that he
understood the existence of a Farrar plea and the agreed-upon
sentence. He then placed on the record:
I would just like to point out, Judge,
that while in school my client has
received his GED, has done incredibly
well in his scores, and committed all
of these offense prior to the age of
19. Now, normally Judge, I would be
arguing for youthful offender
adjudication. I understand I am
prohibited from doing that in this
Just for the record, Mr. Harris has
already had a youthful offender
New York’s youthful offender statute excepts from the definition of
“eligible youth” a person convicted of an “armed felony”, which includes
first-degree robbery. See N.Y. Crim. Proc. L. §§ 1.20(41) & 720.10. In such
circumstances, youthful offender status could be afforded only if the state
court found mitigating circumstances or “minor” participation on the part of
the defendant. Id. § 720.10(3).
That does not preclude him from the
I’m just making sure that’s on the
record as well.
Sentencing Tr. at 3-4.
Petitioner cannot establish either prong of the Strickland
test on this record. In four months, Petitioner was arrested on
three separate felony cases encompassing multiple charges. His
initial counsel worked to secure a plea agreement to one Class B
Petitioner the possibility of seven additional felony convictions
on his criminal record. Petitioner’s new counsel reviewed the
file and made the comments above for the record. Id. The state
court reiterated that it had already committed to a definite
sentence of nine and one half years, and that Petitioner had
freely accepted that agreement. Id. This Court does not read
counsel’s comments that he was “prohibited” from seeking youthful
offender under the statute; rather, that he was prohibited by the
counsel made his understanding of the statute clear by indicating
to the state court that Petitioner’s previous adjudication did
not preclude another. Id.
Significantly, counsel did not object
or move to withdraw the plea, nor does Petitioner assert that he
should have done so. Simply put, counsel’s acknowledgement that
beneficial to Petitioner, was not objectively unreasonable under
Even assuming that Petitioner’s sentencing counsel’s failure
to formally request youthful offender status was constitutionally
deficient, he does not establish that he suffered prejudice as a
resolving multiple felony counts arising from separate incidents.
See Reznikov v. David, No. 05-CV-1006, 2009 WL 424742, at *8
(E.D.N.Y. Feb. 20, 2009) (“the negotiated plea agreement provided
belies any claim of prejudice.”)(collecting cases finding lack of
prejudice where petitioner received beneficial guilty pleas). In
any event, there is nothing in the record before the Court that
offender status. Cf. Craft v. Kirkpatrick, No. 10-CV-6049, 2011
WL 2622402, at *7 (W.D.N.Y. July 5, 2011) (petitioner could not
establish prejudice prong under Strickland where attorney failed
to request youthful offender status and where presentence report
generally N.Y. Crim. Proc. L. §§ 1.20(41)(b) & 720.10(3); Penal
L. §§ 70.02(1)(a) & 160.15(2).
For these reasons, Ground One of the Petition is denied as
ineffective assistance of counsel claim was not contrary to, or
involved an unreasonable application of Strickland v. Washington.
Waiver of Appeal
waiver was invalid. Pet. at 8. On this point, the Appellate
voluntarily waived his right to appeal as a condition of the
plea; that the County Court engaged Petitioner in an adequate
colloquy to ensure that the waiver of the right to appeal was
knowing and voluntary; and that his “monosyllabic affirmative
[waiver] unknowing and involuntary.” Harris, 94 A.D.3d at 1985
(internal quotation omitted).
Respondent contends that Petitioner did not alert the state
appellate court to the constitutional nature of his claim because
he did not cite to any federal law, label the claim federal, or
rely upon any constitutional case law or apply a constitutional
analysis. Resp’t Mem. (Dkt. # 4) at 10. On appeal, Petitioner did
not challenge the validity of his plea itself. Rather, relying
colloquy was inadequate to ensure that his waiver of appellate
rights was voluntary because it “elicited
. . .
responses to its questions.” Pet’r App. Br. at 7-8.
“In New York the right to an initial appeal is provided by
statute.” People v. Seaberg, 74 N.Y.2d 1, 7. (1989). It is true
that under New York state law, the record “must establish that
the defendant understood that the right to appeal is separate and
distinct from those rights automatically forfeited upon a plea of
guilty . . . .” People v. Lopez, 6 N.Y.3d 248, 256 (2006). But
federal habeas relief is not available to redress mere errors of
state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations
Petitioner did not brief this issue for habeas review,
and the Court is unaware of any federal precedent standing for
individual rights relinquished. Accordingly, Petitioner has not
alleged an error of constitutional magnitude redressable in this
habeas proceeding. See Salaam v. Giambruno, 559 F.Supp.2d 292,
appellate-rights waiver was invalid because the trial court “did
not ask petitioner to explain in his own words his understanding
of what this waiver meant” did not state a basis for habeas
relief); Nicholas v. Smith, No. 02 CV 6411, 2007 WL 1213417, at
*10–11 (E.D.N.Y. Apr. 24, 2007) (“[W]hile petitioner’s argument
enforcement of the waiver denied him of any rights under the
Even assuming Petitioner raised a claim cognizable on habeas
review, there is nothing in the record that indicates that the
waiver was not valid.
New York allows criminal defendants to waive their right to
appeal as a part of a plea agreement when the waiver is made
Bradshaw, 18 N.Y.3d 257 (2011); U.S. v. Hernandez, 242 F.3d 110,
113 (2d Cir. 2001) (per curiam) (“a knowing and voluntary waiver
of the right to appeal is generally enforceable” in the context
of a direct appeal from a criminal conviction); see also Steele
v. Filion, 377 F.Supp.2d 332, 334–35 (W.D.N.Y. 2005) (appeal
waivers set forth in plea agreements are constitutional provided
effective, a defendant must be informed of the nature of the
right and must evidence a full understanding of the consequences
of the waiver. U.S. v. Ready, 82 F.3d 551, 556–57 (2d Cir. 1996),
superseded on other grounds as stated in U.S. v. Cook, 722 F.3d
477, 481 (2d Cir. 2013).
During the plea allocution, the state court asked Petitioner
whether he understood that he was “giving up the right to appeal
this conviction as part of this plea agreement.” Plea Tr. at 1011. The court went on to state, “I want to be certain that you
understand what is involved in waiving your right to appeal,” and
explained that Petitioner would be giving up his right to have
any higher court look at the case for legal error, including pretrial motions and the fairness of the sentence. Id. The court
then apprised Petitioner of certain appeal rights that would not
acknowledged in the affirmative that he had the opportunity to
discuss the waiver of his right to appeal with his attorney, and
that he was waiving the right to appeal without any coercion from
anyone and as a free and voluntary choice on his part. Id.
Petitioner confirmed for the court that he wished to give up his
right to appeal the conviction. Id.
Based upon the foregoing, the Court finds that the Appellate
Division’s determination that Petitioner’s waiver of his right to
appeal was knowing and voluntary was not contrary to, or an
unreasonable application of, clearly established federal law as
determined by the Supreme Court. Ground Two of the Petition is
For the reasons set forth above, Kadeem Harris’ petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the action 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 the issue of certificate
of appealability. See, e.g., Lucidore v. NYS Div. of Parole, 209
F.3d 107, 111-113 (2d Cir. 2000). 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 as a poor person. Coppedge v. U.S., 369 U.S. 438
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
February 15, 2017
Rochester, New York
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