Daniels v. Stalone

Filing 9

DECISION AND ORDER denying 1 Petition for Writ of Habeas Corpus filed by Corey Daniels. Signed by Hon. Michael A. Telesca on 7/10/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is requested to mail a copy of this Decision and Order to pro se petitioner Corey Daniels. The Clerk of Court is further requested to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

COREY DANIELS,
Petitioner,

No. 1:14-cv-00219-MAT
DECISION AND ORDER

-vsSUPERINTENDENT STALONE,
Respondent.

I.

Introduction
Proceeding pro se, Corey Daniels (“Daniels” or “Petitioner”)

filed the instant petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging the constitutionality of a judgment
of conviction1 entered against him in New York State Supreme Court,
Monroe County (Valentino, J.) on April 14, 2009, following his
guilty plea to one count of Criminal Possession of a Controlled
Substance in the Third Degree (New York Penal Law (“P.L.”) §
220.16(1)), and one count of Criminal Possession of a Controlled
Substance in the Fifth Degree (P.L. § 220.06(5)). For the reasons
discussed herein, the petition is dismissed without prejudice based
on Petitioner’s failure to fully exhaust his State remedies.

1

Petitioner filed the instant petition while he was in custody pursuant to
this conviction. However, it appears that Petitioner was released during the
pendency of this petition, and convicted on new drug-related charges in Jefferson
County, New York. He is presently incarcerated pursuant to this new conviction.
See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ1/WINQ000 (last accessed July
7, 2017).

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II.

Factual Background and Procedural History
The conviction here at issue stems from an incident that

occurred in the City of Rochester on the morning of on July 3,
2008.

While

patrolling

an

area

known

for

drug

sales,

gang

activities, and armed robberies, an officer with the Rochester
Police Department (“RPD”) saw Petitioner, standing on the street,
engage

in

a

series

of

“complex

handshakes”

with

several

individuals. In the officer’s opinion, based on his professional
experience,

these

actions

were

either

hand-to-hand

drug

transactions or gang signals. According to the officer, when
Petitioner appeared to notice the officer, he attempted to secrete
himself

from

the

officer’s

view.

After

about

40

minutes

of

observing the area where Petitioner was standing, the officer saw
Petitioner enter a black SUV-type vehicle on the passenger side. As
the black vehicle pulled away, it made an illegal right-hand turn.
The RPD officer proceeded to stop the vehicle for the traffic
infraction he observed. While approaching the rear of the stopped
vehicle, the officer noticed that Petitioner appeared to be either
removing something from, or placing something into, one of his
pants pockets. The officer ordered Petitioner out of the vehicle
and conducted a pat-frisk for weapons. Upon feeling a hard object
in Petitioner’s pants pocket that he thought might be a firearm,
the RPD officer twice asked Petitioner what the hard object was.
Petitioner replied, “smokes it” in response to both inquiries. The

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officer then asked Petitioner whether the object was marijuana, and
Petitioner

responded,

“No,

drugs.”

Interpreting

this

as

Petitioner’s admission to possessing a contraband substance, the
officer

thereupon

removed

22

packets

of

crack

cocaine

from

Petitioner’s pants’ pocket. Petitioner was placed under arrest and
subsequently

indicted

on

two

counts:

third-

and

fifth-degree

criminal possession of a controlled substance. Petitioner pleaded
guilty to both charges on March 16, 2009, in exchange for a
sentence promise of two concurrent determinate prison terms of 3½
years, to be followed by 1½ years of post-release supervision.
Petitioner was sentenced as promised.
This conviction was unanimously affirmed by the Appellate
Division, Fourth Department, on February 8, 2013. See People v.
Daniels, 103 A.D.3d 1204 (4th Dep’t 2013), lv. denied, 22 N.Y.3d
1137 (2014).
While Petitioner’s direct appeal was pending, he filed this
timely habeas petition on March 31, 2013. Construed liberally, the
petition appears to assert the following claims: (1) Petitioner’s
plea was involuntary because his attorney erroneously advised him
that he potentially faced a 15-year determinate prison sentence
were he to be convicted of the charges in the indictment after a
jury trial (see Petition (“Pet.”) (Dkt #1), Grounds One and Two);
and (2) Petitioner’s inculpatory statements and the crack cocaine
were obtained pursuant to a search and seizure that was unlawful

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under the Fourth Amendment (see Pet., Grounds Three and Four).
Respondent filed his answer, arguing that Petitioner has
presented

a

“mixed

petition”

containing

both

exhausted

and

unexhausted claims. Respondent states that the Fourth Amendment
claim is exhausted, having been fairly presented to the state
courts in the context of Petitioner’s direct appeal. However,
Respondent

argues,

the

claim

concerning

the

voluntariness

of

Petitioner’s plea is unexhausted. Respondent urges this Court to
dismiss the petition because Petitioner has a procedural vehicle to
exhaust the involuntary plea claim, namely, a motion to vacate
pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10
motion in the state trial court.
III. Exhaustion
It is well-settled that a Federal court may not consider the
merits of a State prisoner’s habeas claim unless the State has
first been given the “‘opportunity to . . . correct’ alleged
violations of its prisoners’ [F]ederal rights.” Baldwin v. Reese,
541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365
(1995)). In other words, the petitioner “must ‘fairly present’ his
claim in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting that
court to the federal nature of the claim.” Id. at 29; see also
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Respondent argues, and Petitioner does not dispute, that his

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habeas claim based on trial counsel’s alleged ineffectiveness—was
not raised in any State court proceeding. In New York, the proper
procedural vehicle for raising an ineffective assistance of counsel
claim

depends

on

the

nature

of

the

alleged

attorney

error

underlying the claim, and the type of proof on which it is based.
To properly exhaust a claim that relies on errors or omissions that
are clear on the face of the record of the petitioner’s trial or
pretrial proceedings, the petitioner must raise it on direct appeal
to the Appellate Division and then seek leave to appeal to the New
York Court of Appeals. See Sweet v. Bennett, 353 F.3d 135, 140 (2d
Cir. 2003) (“New York law requires a state court to deny a motion
to vacate a judgment based on a constitutional violation where the
defendant

unjustifiably

failed

to

argue

the

constitutional

violation on direct appeal despite a sufficient record.”) (citing
N.Y. CRIM. PROC. LAW § 440.10(2)(c)). “In contrast, to properly
exhaust an ineffective assistance of counsel claim that relies on
evidence outside the pretrial and trial record, [the] petitioner
must raise it as part of a motion to vacate judgment under C.P.L.
§ 440.10 and then seek leave to appeal to the Appellate Division.”
Anthoulis v. N.Y., No. 11 CIV. 1908 BMC, 2012 WL 194978, at *3
(E.D.N.Y. Jan. 23, 2012) (citing Sweet, 353 F.3d at 140; Caballero
v. Keane, 42 F.3d 738, 740–41 (2d Cir. 1994); Reyes v. Phillips,
No. 02 Civ. 7319, 2003 WL 42009 (S.D.N.Y. Jan. 6, 2003); People v.
Brown, 45 N.Y.2d 852, 853–54 (1978)).

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Here, Petitioner’s ineffective assistance claim relies on
alleged conversations between himself and his attorney, matters
which are not part of the pretrial record. See, e.g., Burnett v.
Lee, No. 13-CV-4425KAM, 2015 WL 4389888, at *10 (E.D.N.Y. July 15,
2015) (petitioner claimed he would “not have entered the negotiated
plea

had

his

retained

attorney

not

abandoned

him”

based

on

counsel’s “mistaken belief that he failed to make timely payment”;
the

alleged

error

that

is

the

basis

for

petitioner’s

ineffectiveness of counsel claim relies on evidence outside the
trial record and could not have been raised on direct appeal)
(citing Griffin v. Suffolk Cnty., No. 13–CV–4375, 2013 WL 6579839,
at *3 n. 3 (E.D.N.Y. Dec. 16, 2013)). Therefore, this is the type
of claim that is suitable for a C.P.L. § 440.10 motion to vacate,
“which permit[s] ‘evidentiary exploration’ of matters both on and
off the record[.]” Caballero, 42 F.3d at 740. Because there is no
time limit to filing a C.P.L. § 440.10 motion, Petitioner still may
seek review of his ineffective assistance of counsel claim by
filing such a motion in the State trial court. See N.Y. CRIM. PROC.
LAW § 440.10(1) (“At any time after the entry of a judgment, the
court in which it was entered may, upon motion of the defendant,
vacate such judgment upon [certain enumerated] . . . ground[s]. .
. .”). Accordingly, the Court finds that Petitioner’s claim of
ineffective assistance of counsel is unexhausted. See Caballero, 42
F.3d at 740 (holding that petitioner’s petition and supporting

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affidavits

“raise

a

matter

clearly

outside

of

the

trial

record-allegations that his attorney conducted his defense under
the influence of drugs”; these allegations had not been presented
to the state courts and were unexhausted, but could be raised in a
C.P.L. § 440.10 motion); see also, e.g., Carpenter v. Unger, No.
10–cv–1240, 2014 WL 4105398, at *25 (N.D.N.Y. Aug. 20, 2014)
(finding petitioner’s claim of ineffective assistance of counsel
during plea proceedings unexhausted, but not procedurally barred
because claim relied on evidence outside the record and could be
raised on collateral review); Griffin, 2013 WL 6579839, at *3
(finding non-record based claims, including ineffective assistance
of counsel, unexhausted but not procedurally barred because statecourt remedy was still available pursuant to C.P.L. § 440.10).
The issue thus becomes how to deal with the petition, which
contains an exhausted claim and an unexhausted claim. As Respondent
observes, the Court has several options in such circumstances. If
the

Court

determines

that

Petitioner’s

unexhausted

claim

is

“plainly meritless,” the Court can deny it on the merits and rule
on Petitioner’s remaining exhausted claim, pursuant to 28 U.S.C. §
2254(b)(2) (stating that “[a]n 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 State”). However, the record does not reflect how counsel
advised Petitioner as to his post-trial sentencing exposure. Due to

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the paucity of the record, the Court accordingly cannot say that
the unexhausted ineffective assistance of counsel claim is “plainly
meritless.”
The Court also could “stay the petition and hold it in
abeyance while the petitioner returns to state court to exhaust his
previously

unexhausted

claims.”

Rhines,

544

U.S.

at

275–77.

However, to date, Petitioner has not requested a stay, despite the
fact that Respondent’s memorandum of law placed him on notice that
his ineffective assistance claim is unexhausted and, moreover, laid
out the various methods for dealing with an unexhausted claim such
as this.
Even had Petitioner requested a stay, the Court finds that it
would be an abuse of discretion to hold the petition in abeyance,
because Petitioner has not made any attempt to show that “good
cause”

exists

for

not

exhausting

his

ineffectiveness

claim.

Although “good cause” has not been defined by the Supreme Court or
any circuit court of appeals, “the majority of those lower courts
which have addressed the issue at length have analogized the ‘good
cause’ requirement to the requirement that a habeas petitioner
demonstrate ‘cause’ to excuse other types of procedural defaults.
Ramdeo v. Phillips, No. 04-CV-1157(SLT), 2006 WL 297462, at *5
(E.D.N.Y. Feb. 8, 2006) (collecting cases). “These courts have
reasoned that ‘good cause,’ like ‘cause’ in the procedural default
context, must arise ‘from an objective factor external to the

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petitioner which cannot fairly be attributed to him or her.’” Id.
(quoting Hernandez v. Sullivan, 397 F. Supp.2d 1205, 1207 (C.D.
Cal. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 753 (1991);
other citations omitted). Other courts have fashioned a more
lenient standard and instead looked to see whether some “reasonable
confusion” caused the petitioner’s failure to exhaust. See, e.g.,
Whitley v. Ercole, 509 F. Supp. 2d 410, 419 (S.D.N.Y. 2007)
(holding

that

“a

petitioner’s

showing

of

his

confusion,

if

reasonable, concerning the delay in his state filing would satisfy
the Rhines requirement of ‘good cause’”) (citing Pace v. Guglielmo,
544 U.S. 408, 416, reh’g denied, 545 U.S. 1135 (2005)2).
The Court need not determine which standard applies because,
even under the more lenient standard, Petitioner has not even
attempted to demonstrate any cause for his failure to exhaust his
claims. E.g., Anthoulis, 2012 WL 194978, at *5 (finding stay
“inappropriate” where the petitioner had “not even attempted to
demonstrate any cause for his failure to exhaust his claims”).
Petitioner was aware of the basis of his ineffective assistance
claim at the time of his plea, and he was informed, by means of
Respondent’s

memorandum

of

law,

not

only

that

the

claim

was

2

Whitley and other cases following its approach relied on dictum from Pace
in which the Supreme Court responded to the petitioner’s argument that “a
petitioner trying in good faith to exhaust state remedies may litigate in state
court for years only to find out at the end that he was never ‘properly filed,’
and thus that his federal habeas petition is time barred.” 544 U.S. at 416. The
Supreme Court observed that “[a] petitioner’s reasonable confusion about whether
a state filing would be timely will ordinarily constitute ‘good cause’ for him
to file in federal court.” Id.

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unexhausted, but that he could request a stay of the petition while
he exhausted the claim by filing a C.P.L. § 440.10 motion. However,
Petitioner did not seek a stay from this Court. Therefore, the
Court would abuse its discretion if it were to authorize the use of
the stay-and-abeyance procedure.
The Court accordingly must dismiss the entire petition without
prejudice as a mixed petition. The dismissal without prejudice
protects Petitioner from the preclusive effect of 28 U.S.C. §
2244(b)(2)’s limitation on the filing of second or successive
petitions. See Anthoulis, 2012 WL 194978, at *5 n.2 (noting that
dismissal without prejudice for failure to exhaust does not decide
any of petitioner’s claims on the merits; therefore, the rule
against second or successive habeas petitions, 28 U.S.C. § 2244(b),
will not be implicated should petitioner ultimately re-file after
properly exhausting) (citing Slack v. McDaniel, 529 U.S. 473,
485–86, 542 (2000); other citations omitted). The dismissal without
prejudice

gives

Petitioner

the

opportunity

to

exhaust

his

unexhausted ineffective assistance claim, and then re-file a new §
2254 petition. However, Petitioner is cautioned that a re-filed
petition based on the claims asserted in this petition likely will
be

time-barred3

unless

Petitioner

can

avail

himself

of

the

3

As relevant here, the one-year statute of limitations began to run after
Petitioner’s conviction became final, because that is when his time for seeking
direct review expired. See 28 U.S.C. § 2244(d) (1)(A); Rivera v. Cuomo, 649 F.3d
132, 139 (2d Cir. 2011) (Section 2254 petitioner’s conviction became final “90
days after the New York Court of Appeals denie[d] leave to appeal, which is when
the petitioner’s time to apply for a writ of certiorari to the United States

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statutory tolling authorized by 28 U.S.C. § 2244(d)(2),4 or can
show that he is entitled to equitable tolling.5
IV.

Conclusion
For the foregoing reasons, the petition filed by Corey Daniels

is dismissed without prejudice for failure to exhaust. Because
there has not been a substantial showing of the denial of a
constitutional

right,

see

28

U.S.C.

§

2253(c)(2),

the

Court

declines to issue a certificate of appealability. The Clerk of
Court is directed to close this case.
SO ORDERED.
S/ Michael A. Telesca
__________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

July 10, 2017
Rochester, New York.

Supreme Court expire[d]”). Here, the New York Court of Appeals denied leave to
appeal on February 13, 2014. Petitioner’s one-year therefore began to run on
Wednesday, May 14, 2014.
4

Section 2244(d)(2) provides for tolling of the limitations period during
the pendency of “a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. §
2244(d)(2). However, the filing of a Section 2254 petition does not toll Section
2244(d)(1)’s statute of limitations. See Duncan v. Walker, 533 U.S. 167, 180
(2001) (holding that an application for federal habeas corpus review is not an
“application for State post-conviction or other collateral review,” 28 U.S.C. §
2244(d)(2), for purpose of that section’s tolling provision).
5

“Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S.
at 418.

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