Casado v. Sheehan

Filing 11

DECISION AND ORDER denying the Petitioner's request for a writ of habeas corpus and dismissing the petition. (clerk to close case.) (copy of Decision and Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 5/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSE CASADO, 09-B-2428,
Petitioner,

No. 1:14-CV-00742 (MAT)
DECISION AND ORDER

-vsMICHAEL SHEEHAN, Superintendent of
Five Points Correctional Facility,
Respondent.

I.

Introduction
Jose Casado (“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 August 3,
2009, in New York State Supreme Court, Monroe County (Doyle, J.),
following a jury trial, in which he was convicted of attempted
aggravated murder of a police officer (N.Y. Penal Law §§ 110.00,
125.26), attempted aggravated assault on a police officer (N.Y.
Penal Law §§ 110.00, 120.11), and criminal possession of a weapon
in the second degree (N.Y. Penal Law § 265.03). Petitioner is
currently serving an aggregate prison sentence of 40 years to life.
II.

Procedural History
Following his conviction, petitioner filed a direct counseled

appeal to the New York State Supreme Court, Appellate Division,
Fourth Department, in which he argued that (1) his indictment was
rendered duplicitous by facts established at trial and (2) the
trial court improperly allowed the People to present evidence of

prior

bad

acts.

unanimously

On

affirmed

October

5,

2012,

petitioner’s

the

judgment

Fourth
of

Department

conviction.

See

People v. Casado, 99 A.D.3d 1208 (4th Dep’t 2012), lv. denied,
20 N.Y.3d 985. As relevant here, the Fourth Department found that
“inasmuch as the evidence establishe[d] only a single act of
attempted aggravated murder and attempted aggravated assault as
against

Officer

Hickey,

i.e.,

the

two

shots

defendant

fired

directly at Officer Hickey, . . . counts one and two of the
indictment were not rendered duplicitous by the trial testimony.”
Id. at 1210.
On March 2, 2014, petitioner filed a motion to vacate the
judgment of conviction pursuant to New York Criminal Procedure Law
§ 440.10. Petitioner argued that trial counsel was ineffective for
failure to (1) negotiate a plea bargain; (2) request a jury charge
on a lesser included offense; and (3) object to prosecutorial
misconduct on summation. On July 17, 2014, Justice Doyle denied
petitioner’s CPL 440.10 motion, finding that petitioner “fail[ed]
to

allege

sufficient

facts

to

support

his

claim

and

[the

allegations were] conclusory in nature.” SR, Exh. J.1 Moreover, as
the prosecutor pointed out in opposition to petitioner’s motion,
petitioner was not extended a plea offer due to the nature of the
charges against him. Justice Doyle denied petitioner’s argument

1

References to “SR” are to the state court record manually filed with the
Court on April 6, 2016.

2

that defense counsel failed to object to prosecutorial misconduct
because it was record-based but had not been raised on direct
appeal. Id. (citing CPL § 440.10(2)(c)).
The instant petition (doc. 1) contends that (1) the indictment
was rendered duplicitous by facts established at trial (ground
one); (2) trial counsel was ineffective for failing to (a) preserve
a claim regarding the duplicitous indictment; (b) negotiate a plea
bargain; (c) consult petitioner before deciding not to request a
jury charge for a lesser included offense; and (d) failing to
object to prosecutorial misconduct (grounds two and three); and
(3) the trial court refused to hold an evidentiary hearing and
refused to assign counsel to represent petitioner on his collateral
attack on the judgment (ground four). 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
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 petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established

3

Federal
United

law,

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

or

Court

of

involved

the
an

“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
A.

Duplicitous Indictment

As

discussed

above,

the

Fourth

Department

rejected

petitioner’s claim that his indictment was rendered duplicitous by
the facts established at trial. In that case, as in this petition,
petitioner argued that the two shots he fired in the direction of
the police officer victim were separate incidents and it was
impossible to determine the particular act for which the jury
convicted him. The Fourth Department correctly found that the two
shots constituted a single act and the indictment was therefore not
duplicitous. See United States v. Kurniawan, 627 F. App’x 24, 27
(2d Cir. 2015) (“[T]his court has long held that acts that could be
charged as separate counts of an indictment may instead be charged
in a single count if those acts could be characterized as part of
a

single

continuing

scheme.”)

(internal

quotation

marks

and

citation omitted).
In any event, “[p]rocedural rules create the prohibition of
duplicitous counts – there is no constitutional right against
duplicity per se. In New York, this rule is found in [CPL §]
200.30(1), which specifies that ‘[e]ach count of an indictment may

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charge one offense only.’” Jones v. Lee, 2013 WL 3514436, *7
(S.D.N.Y. July 12, 2013). “Such state law requirements cannot be
considered by federal courts on habeas review.” Id. A duplicitous
count violates a defendant’s constitutional rights only where it
violates “the Sixth Amendment’s guarantee that an accused may be
adequately informed of the nature and the cause of the accusation
and the Fifth Amendment’s interdiction against double jeopardy.”
Id. (internal quotation marks omitted) (quoting United States v.
Kearney, 444 F. Supp. 1290, 1292 (S.D.N.Y. 1978) (quoting U.S.
Const. amend. VI)). Petitioner has not, and cannot, show that the
indictment faired to inform him of the nature of the accusation
against him with regard to these charges. Accordingly, his claim is
dismissed.
B.

Ineffective Assistance of Trial Counsel

In grounds two and three of his petition, petitioner contends
that trial counsel was ineffective for failing to (1) preserve a
claim regarding the duplicitous indictment; (2) negotiate a plea
bargain; (3) consult petitioner before deciding not to request a
jury charge for a lesser included offense; and (4) object to
prosecutorial misconduct. For the reasons set forth below, these
claims are dismissed.
To establish ineffective assistance of counsel, a defendant
first must show that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by

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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, 687, 695 (1984). Under Strickland, the
Court is required to consider alleged errors by counsel “in the
aggregate.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Where a state court has denied a claim of ineffectiveness based on
a state law standard, a petitioner “must do more than show that he
would have satisfied Strickland’s test if his claim were being
analyzed in the first instance, because under § 2254(d)(1), it is
not

enough

to

convince

a

federal

habeas

court

that,

in

its

independent judgment, the state-court decision applied Strickland
incorrectly.” Bell v. Cone, 535 U.S. 685, 698–99 (2002). Rather,
petitioner must show that the state court “applied Strickland to
the facts of his case in an objectively unreasonable manner.” Id.
at

699. Initially,

regarding

petitioner’s

duplicity

argument,

counsel was not ineffective for failing to preserve a meritless
issue. See, e.g., Rivera v. Ercole, 2008 WL 627507, *3 (S.D.N.Y.
Mar. 7, 2008).
Petitioner raised his remaining arguments in his CPL § 440.10
motion. Petitioner’s claim regarding prosecutorial misconduct is
barred by an adequate and independent state law ground, because
Supreme Court denied the claim as record-based but not raised on
direct appeal, citing CPL § 440.10(2)(c). A denial based on CPL

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§ 440.10(2)(c) constitutes a denial on an adequate and independent
state ground. See Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir.
2003) (holding that CPL § 440.10(2)(c) constitutes adequate and
independent state law ground where basis of ineffective assistance
claim is apparent from trial record).
Petitioner’s

arguments

regarding

counsel’s

failure

to

negotiate a plea bargain and failure to request a lesser included
charge2 are not record-based, but in any event, they lack merit.
First, as the trial court’s decision on petitioner’s § 440.10
motion makes clear, petitioner was not in fact offered a plea
bargain – a decision wholly within the discretion of the prosecutor
– due to the nature of the charges, which involved crimes directed
against a police officer. Thus, as Supreme Court correctly decided,
this claim is meritless.
Finally, the Court finds that Supreme Court correctly denied
petitioner’s § 440.10 motion with regard to his argument that
counsel failed to request that a lesser included charge be put to
the jury. As was the case with his § 440.10 petition, petitioner
does not present this claim with any degree of specificity: his
petition merely contends that counsel was ineffective because he
did not “request submission of a lesser included offense.” Doc. 1
at 8. Petitioner has provided no facts or context to establish why
2
The Court notes that, as respondent argues, petitioner failed to raise
these claims in a motion for leave to appeal to the Fourth Department, and
therefore, the claims are unexhausted. The Court nevertheless addresses them on
the merits in the interest of judicial economy.

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counsel was ineffective for failing to do so, and regardless, the
proof of petitioner’s guilt on the crimes charged was overwhelming.
Thus, petitioner has failed to show that even if a lesser included
offense

was

charged,

there

would

have

been

a

“reasonable

probability that . . . the fact finder would have had a reasonable
doubt respecting guilt” as to the crimes charged. Strickland, 466
U.S. at 687, 695.
C.

Petitioner’s Right to Counsel for the Collateral Attack

Petitioner argues that the trial court erred in refusing to
hold an evidentiary hearing and refusing to assign counsel with
respect to his collateral attack on the judgment. Petitioner also
argues that, because he could not afford counsel and counsel was
not provided for the collateral attack, his equal protection rights
were violated. Petitioner has failed to present any facts as to why
the trial court erred in refusing him an evidentiary hearing on the
§

440

motion.

Moreover,

the

question

of

entitlement

to

an

evidentiary hearing in that proceeding is a matter of state law,
and therefore is not cognizable on habeas review. See Santos v.
Payant, 2005 WL 3593577, *4 (S.D.N.Y. Dec. 30, 2005) (holding that
petitioner’s

argument

that

trial

court

“fail[ed]

to

hold

an

evidentiary hearing on his § 440.10 motion . . . [was] not
cognizable on habeas review, as it present[ed] no constitutional
issue”).
Petitioner’s contention that he was entitled to an attorney to
represent him on the § 440.10 motion is meritless. “Given that a

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criminal defendant has no right to counsel beyond his first appeal
in pursuing state discretionary or collateral review, it would defy
logic . . . to hold that [the petitioner] had a right to counsel
to appeal a state collateral determination of his claims of trial
error.” Coleman v. Thompson, 501 U.S. 722, 756–57 (1991), modified
on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). Likewise,
petitioner’s equal protection rights were not violated simply
because he could not afford an attorney to represent him on a
motion for which he was not entitled to counsel. Accordingly,
petitioner’s claim on this ground is dismissed.
V. Conclusion
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
Dated:

May 30, 2017
Rochester, New York.

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