Winebrenner v. Graham
DECISION AND ORDER denying petitioners request for writ of habeas corpus and dismissing the petition (Doc. 1). (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/4/17. 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
No. 1:13-CV-01226 (MAT)
DECISION AND ORDER
-vsHAROLD H. GRAHAM, Superintendent
of Auburn Correctional Facility,
Cyril Winebrenner (“petitioner”), proceeding pro se, petitions
this Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner is incarcerated pursuant to a judgment entered
March 30, 2005, in Monroe County Court (Marks, J.), following his
plea of guilty to murder in the first degree (N.Y. Penal Law
§ 125.27(1)(a)(vi) and (b)). Petitioner is currently serving a
sentence of life imprisonment without the possibility of parole.
Factual Background and Procedural History
By Monroe County Indictment Number 393/2003, petitioner was
charged with the murder for hire of his half-sister, Tabatha
Bryant. Kevin Bryant, Tabatha’s husband and petitioner’s brotherin-law, hired petitioner to perform the murder for a sum of
$5,000.00. On July 13, 2003, petitioner approached Tabatha, who was
in her house asleep, and shot and stabbed her to death. Petitioner
thereafter pleaded guilty to one count of murder in the first
possibility of parole. The Monroe County District Attorney’s Office
initially sought the death penalty for the crime, but after the
New York State Court of Appeals held New York’s death penalty
statute unconstitutional, see People v. LaValle, 3 N.Y.3d 88
(2004), the DA’s office withdrew its notice of intent to seek the
Following his plea and sentence, petitioner filed a direct
counseled appeal to the New York State Supreme Court, Appellate
Division, Fourth Department, in which he argued that (1) trial
counsel was ineffective for failing to investigate his history of
mental illness with respect to a competency argument; and (2) the
trial court abused its discretion in failing to order a competency
examination pursuant to New York Criminal Procedure Law (“CPL”)
§ 730(1) before accepting his guilty plea.
judgment of conviction. See People v. Winebrenner, 96 A.D.3d 1615
(4th Dep’t 2012), lv. denied, 19 N.Y.3d 1029. The Fourth Department
found that the trial court did not err in failing to sua sponte
order a competency examination prior to petitioner’s plea, and that
the court likewise did not err in failing to subsequently order an
examination because “the evidence contained in the presentence
report [“PSI”] and sentencing memorandum [which the court received
after the plea] did not raise any doubt about [petitioner]’s
competency at the time of the plea or at the time of sentencing.”
ineffective assistance argument, finding that petitioner “failed to
explanations . . . for the absence of a psychiatric . . . defense”
and therefore denied this contention on the merits. Id. at 1617.
The court also found that the ineffective assistance argument
relied on matters outside the record and was therefore not properly
presented on direct appeal. Id.
On May 4, 2013, petitioner filed a motion to renew his direct
appeal, arguing that his appellate counsel had denied him the right
to file a pro se supplemental motion and that the trial court
sentenced him vindictively when petitioner refused to testify
petitioner’s motion as one for a writ of error coram nobis, and
denied the motion. On September 27, 2013, the Fourth Department
denied petitioner’s motion to reargue. See People v. Winebrenner,
107 A.D.3d 1647 (4th Dep’t 2013), rearg. denied, 109 A.D.3d 1218,
lv. denied, 22 N.Y.3d 960.
Petitioner filed a second coram nobis motion, while his first
remained pending, on September 3, 2013. Petitioner argued that
efforts to file a pro se supplemental brief on direct appeal, and
that counsel failed to argue that petitioner’s indictment was
duplicitous in violation of federal due process principles. The
Fourth Department denied the motion on November 8, 2013, and
petitioner did not seek leave to appeal. See People v. Winebrenner,
111 A.D.3d 1366 (4th Dep’t 2013) (denying coram nobis motion).
The instant petition contends that (1) petitioner’s sentence
investigating petitioner’s history of mental illness; (3) the trial
court abused its discretion by failing to order a competency
petitioner’s efforts to file a pro se supplemental brief; and
(5) the indictment was duplicitous. For the reasons discussed
below, the petition is dismissed.
III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
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 petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
Procedurally Defaulted Claims (Grounds One and Five)
duplicitous (grounds one and five of his petition) are record-based
and could have been raised on direct appeal; thus, they are deemed
exhausted but procedurally barred. See Quiles v. Chappius, 2014 WL
4652742, *15 (S.D.N.Y. Sept. 18, 2014), aff’d, 648 F. App’x 83
(2d Cir. 2016)
‘deemed’ exhausted but procedurally barred because [p]etitioner may
not raise them again in state court and fully exhaust them”)
DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (per
miscarriage-of-justice exception, he has made no factual showing
that he is “‘actually innocent’ (meaning factually innocent) of the
crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95,
108 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
Ineffective Assistance of Trial Counsel (Ground Two)
Petitioner contends that his trial counsel was ineffective for
failing to investigate a possible psychiatric defense and for
allowing petitioner to plead guilty without so investigating. These
claims are unexhausted but based largely on matters outside the
record, as the Fourth Department noted. Because the claims are not
record-based, the Court will address them on the merits. See
28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
To establish ineffective assistance of counsel at either the
trial or appellate level, a defendant first must show that “counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and
second, that “there is a reasonable probability that, absent the
errors [by counsel], the fact finder would have had a reasonable
doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668,
consider alleged errors by counsel “in the aggregate.” Lindstadt v.
Keane, 239 F.3d 191, 199 (2d Cir. 2001).
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the
guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Rather, a petitioner “may only attack the voluntary and intelligent
character of the guilty plea by showing that the advice he received
from counsel was not within [constitutional] standards.” Id.; see
also United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003) (“It
is well settled that a defendant who knowingly and voluntarily
enters a guilty plea waives all non-jurisdictional defects in the
Petitioner’s ineffective assistance claims relate to matters
occurring prior to the entry of his guilty plea. Therefore, the
claims are barred under the precedent cited above. Moreover,
“establishe[d] that defense counsel attempted to obtain the records
related to defendant’s hospital admission but had no success.”
correctly found that the record of the plea proceeding revealed
that petitioner spoke coherently about his role in the crime,
appropriately to the trial court’s questions, and defense counsel
raised no issue regarding petitioner’s fitness to proceed. Id.
Accordingly, petitioner’s ineffective assistance of trial counsel
claims are dismissed as meritless.
Trial Court’s Failure to Sua Sponte Order Competency
Examination (Ground Three)
The Fourth Department’s rejection of this claim was not
contrary to, nor an unreasonable application of, relevant federal
precedent. The Supreme Court has held that a trial judge must raise
competency on its own motion only where “the evidence raises a
‘bona fide doubt’ as to defendant’s competence to stand trial.”
Pate v. Robinson, 383 U.S. 375, 385 (1966); see also Silverstein v.
Henderson, 706 F.2d 361, 369 (2d Cir. 1983) (“[T]he trial court
believing that the defendant may be incompetent to stand trial.”).
Here, as the Fourth Department found, the record of petitioner’s
plea indicates that he was fully competent at the time his plea was
documents the trial court received after the plea “established
that, 10 months before the crime and 2 ½ years before the plea,
defendant had a 24-hour hospitalization that was allegedly caused
by a conversion disorder,” no evidence in the record indicated that
this isolated incident affected petitioner’s competency at the time
of the plea.
Pate, 383 U.S. at 385. Accordingly, the trial court
was not presented with a “bona fide doubt” such that it was
required to order a competency examination on its own motion. This
claim is therefore dismissed.
Ineffective Assistance of Appellate Counsel (Ground Four)
Finally, petitioner contends that his appellate counsel was
ineffective for failing to raise the issue of the vindictiveness of
petitioner’s sentence and for “hamper[ing]” petitioner in the
filing of a pro se supplemental brief. Doc. 1 at 9. Petitioner’s
argument that his sentence was “unconstitutionally vindictive” is
not cognizable on habeas review, because the sentence fell within
the lawful range of state law sentences upon a conviction of murder
in the first degree and petitioner has presented no evidence that
petitioner by the trial court for the exercise of petitioner’s
rights. See Cox v. Herbert, 420 F. Supp. 2d 144, 158 (W.D.N.Y.
2006) (“A petitioner’s challenge to the term of his sentence
generally does not present a cognizable constitutional issue if the
sentence falls within the applicable statutory range.”). It is
axiomatic that counsel was not ineffective for failing to raise
this meritless claim. See, e.g., Allah v. Duncan, 2003 WL 23278846,
*6 (E.D.N.Y. Dec. 11, 2003).
Petitioner has put forth no evidence to establish his second
claim, that appellate counsel somehow hampered him in the filing of
petitioner, as petitioner has argued, that he could not file a pro
Division, such advice did not constitute ineffective assistance.
See People v. White, 73 N.Y.2d 468, 469 (1989) (noting that
“decision [to accept pro se supplemental briefs] lies within the
petitioner’s ineffective assistance of appellate counsel claims are
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied and the petition (Doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. The Clerk
of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
May 4, 2017
Rochester, New York.
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