Smith v. Thompson
DECISION AND ORDER denying Petitioners request for a writ of habeas corpus (Docket No. 1). (Clerk to close case.) Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 10/31/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RIAN T. SMITH,
-vJAMES THOMPSON, Superintendent of
Collins Correctional Facility
DECISION AND ORDER
Pro se petitioner Rian T. Smith (“Petitioner”), an inmate
confined at Collins Correctional Facility has petitioned this Court
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“2254”).
On May 3, 2012, Petitioner was convicted by guilty plea in New York
criminal possession of a controlled substance in the fifth degree.
He is currently serving a second felony offender sentence of four
years’ imprisonment, to be followed by two years of post-release
For the reasons set forth below, habeas relief is
denied and the petition is dismissed.
II. Factual Background and Procedural History
On November 26, 2011, police officers executing a search
warrant on a Niagara Falls apartment searched Petitioner and seized
cocaine from his front pants pocket. (SR16.)
The warrant did not
include Petitioner’s name, but he was “present” during the search.
(Id.) Police charged Petitioner by felony complaint with third- and
fourth-degree criminal possession of a controlled substance, class
Petitioner waived indictment and consented to being charged by a
Superior Court Information with one count of third-degree criminal
possession of a controlled substance.
The Guilty Plea
On May 3, 2012, the County Court (Morinello, J.) found that
contributing factor to his criminal behavior, and that he was
eligible for the judicial diversion program. (P. 4.)
In order to
participate, Petitioner would be required to plead guilty to
fifth-degree criminal possession of a controlled substance and to
waive his right to appeal. Petitioner agreed to participate in the
program, and agreed to the foregoing conditions. (P. 4-5, 8, 10-11,
Prior to Petitioner entering his guilty plea, Defense counsel
confirmed that the People had provided sufficient discovery to
enable him to advise Petitioner adequately, and he indicated that
there was no defense to the charges. (P. 15.) Petitioner confirmed
that he had sufficient time to speak with his attorney and that he
was satisfied with counsel’s services. (P. 12-14.) The County Court
directed defense counsel to review the judicial diversion program’s
contract with Petitioner. (P. 17.) The County Court explained the
contract to Petitioner as well, specifically highlighting that the
promised sentence would be based on whether Petitioner successfully
completed the program. The contract required that Petitioner remain
in drug treatment and lead a law-abiding life. (SR-97.) Under the
contract’s terms, Petitioner agreed to plead guilty to fifth-degree
criminal possession of a controlled substance. In exchange for
Petitioner’s successful completion of the program, the County Court
would allow Petitioner to withdraw his felony guilty plea and plead
guilty to a misdemeanor in exchange for a conditional discharge.
If Petitioner failed to complete the program, the County Court
promised to sentence him, as a second felony offender, to a
determinate prison term of four years followed by two years of
post-release supervision. Petitioner confirmed that he understood
the contract and signed it. (P. 14-15, 17-18.)
Since the terms of the plea bargain also required Petitioner
to waive his right to appeal, the County Court explained that by
signing the appeal waiver, Petitioner was giving up his right to
appeal all issues other than his constitutional rights to a speedy
trial, to challenge his competency and to challenge the imposition
of an illegal sentence. (P. 8.) The County Court further explained
that Petitioner was also giving up his right to ask for relief by
means of a motion under New York Criminal Procedure Law (“C.P.L.”)
attorney had explained the waiver to him and Petitioner signed it
in open court. (P. 9.)
Next to Petitioner’s signature was a
pre-printed statement acknowledging that he was signing the waiver
attorney.” (P. 8-10; SR-96.) The County Court found that Petitioner
knowingly executed the waiver. (P. 10.)
With regard to the knowing, intelligent, and voluntary nature
of his plea, Petitioner confirmed that no one, including his
attorney, had threatened or forced him in any way to plead guilty
and that he was pleading guilty freely and voluntarily. (P. 14.)
Petitioner also confirmed that he understood that he was giving up
his right to a jury trial, at which the People would have to prove
his guilt beyond a reasonable doubt. (P. 13-14.)
After Petitioner violated the terms of the appeal several
times, the County Court removed Petitioner from the diversion
program. The County Court sentenced him on November 29, 2012, as a
second felony offender, to a determinate prison term of four years
plus two years of post-release supervision. (S. at 11.)
On November 17, 2012, prior to sentencing, Petitioner filed,
pro se, an “Informal Request for 440 motion pursuant to CPL
§440.10" along with an affidavit. (SR6-8.) In the affidavit,
Petitioner averred that police violated his Fourth Amendment rights
and that his counsel was ineffective for not investigating his
case. (SR7.) The County Court denied the motion on the record at
Petitioner’s sentencing, explaining that Petitioner specifically
waived his right to challenge his conviction and sentence by means
of a motion pursuant to C.P.L. Articles 330 or 440 when he pleaded
guilty. (S. at 2.) The County Court also denied Petitioner’s
request to withdraw his guilty plea. (Id.)
Petitioner’s Direct Appeal
Petitioner timely appealed his conviction and sentence to the
Appellate Division, Fourth Department, of New York State Supreme
Court (the “Fourth Department”) in December 2012. (SR91.) On direct
appeal, Petitioner’s appellate counsel argued that: (1) trial
counsel was ineffective because he did not challenge the search
(2) Petitioner’s waiver of his right to appeal under the plea was
invalid, (3) the court erred by refusing to permit Petitioner to
withdraw his guilty plea, and (4) Petitioner’s sentence was harsh
and excessive. (SR70-86.) Petitioner submitted a supplemental pro
se brief contending that (1) his plea violated his constitutional
rights, (2) the search and seizure violated the Fourth Amendment,
Petitioner into taking the plea bargain, (b) failed to conduct a
reasonable investigation or move for a suppression hearing, and (c)
had a conflict of interest. (SR114-32.)
On November 14, 2014, the Fourth Department issued a decision
unanimously affirming the judgment and specifically finding that
Petitioner’s claim of ineffective assistance of trial counsel
See People v. Smith, 122 A.D.3d 1300 (4th Dep’t
The court did not specifically reach Petitioner’s argument
Petitioner sought leave to appeal the Fourth Department’s decision
in the New York Court of Appeals on the ground of ineffective
assistance of counsel. (SR226.) The Fourth Department denied leave
on June 29, 2015. (SR227.)
Petitioner’s Post-Judgment Collateral Motions
Petitioner filed a pro se CPL § 440.10 motion in December 2012
arguing that he was illegally searched in violation of his 4th,
5th, and 14th Amendment rights, and received ineffective assistance
(1) failed to move to suppress evidence, (2) failed to investigate
the search warrant, (3) failed to seek a suppression hearing,
(4) coerced him into waiving his right to appeal and post-judgment
review, and (5) coerced him into entering a judicial diversion
program. (SR11-12, 38, 40, 44-49.) On October 30, 2013, the County
Court (Morinello, J.) denied Petitioner’s claim of ineffective
assistance of counsel in its entirety, concluding that Petitioner’s
allegations in his affidavit were contradicted by the court record
and unsupported by any other evidence. (SR61.) The County Court did
not consider Petitioner’s illegal search claim.
leave to appeal on the same grounds, but the Fourth Department
denied leave. (SR62-69.)
Petitioner’s Initial § 2254 Motion
During the pendency of his direct appeal and second CPL
§ 440.10 motion, Petitioner filed a petition for a writ of habeas
corpus pursuant to § 2254 in this Court.
Smith v. Graham, No.
In June 2013, before the County Court
decided his second CPL § 440.10 motion, and before the Fourth
Department decided his direct appeal, Respondent moved to dismiss
the § 2254 petition because Petitioner’s claims were unexhausted.
On March 3, 2014, the Court (Arcara, D.J.) dismissed the petition,
without prejudice, pending Petitioner’s exhaustion of his state
The Pending Habeas Petition
In his petition and memorandum of law, both dated August 9,
2015, Petitioner appears to allege the following claims, which the
Court has renumbered as follows: (1) his attorney was ineffective
because he: (a) failed to investigate Fourth Amendment issues
(Petition (“Pet.”) (Docket No. 1), Ground Four; (b) failed to move
to suppress evidence (id.); (c) coerced him to sign a waiver of
indictment (id.); (d) coerced him to sign a waiver of his right to
appeal (id.); and (e) coerced him to sign the judicial diversion
program contract (id.); and (2) the search and seizure was illegal
because the police lacked probable cause to search him (Pet.,
Ground Two). In connection with his search and seizure claim,
Petitioner also asserts that it was unlawful because he had a
legitimate expectation of privacy in the apartment searched (Pet.,
Respondent filed an answer and memorandum of law in opposition
to the petition. Petitioner did not file a traverse.
III. Standard of Review
28 U.S.C. § 2254 “authorizes a federal court to grant a writ
only where a state holds a Petitioner in its custody in violation
of ‘the Constitution or laws or treaties of the United States.’”
Word v. Lord, 648 F.3d 129, 131 (2d Cir. 2011) (quoting 28 U.S.C.
Because the instant petition post-dates the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which amended 28 U.S.C. § 2254, Petitioner can obtain a
writ of habeas corpus only if he can demonstrate that the state
courts’ adjudication on the merits of his claims “(1) resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
28 U.S.C. § 2254(d).
Grounds Asserted in the Petition
Ineffective Assistance of Counsel
contends that counsel: (1) coerced him to sign (a) a waiver of
indictment, (b) a waiver of the right to appeal, and (c) a judicial
Amendment issues; and (3) failed to move to suppress evidence.
Respondent argues that Petitioner’s claims that his attorney
was ineffective because he coerced Petitioner to sign the appeal
Respondent further argues that Petitioner’s Fourth Amendment claims
are barred under the doctrine of Stone v. Powell, 428 U.S. 465,
Under well-established Supreme Court authority, in order to
prevail on an ineffective assistance of counsel claim a petitioner
must show both that (1) his or her counsel’s performance was
deficient, in that it failed to conform to an objective standard of
reasonableness, and (2) that deficiency caused actual prejudice to
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
be constitutionally deficient, the attorney’s conduct must fall
“outside the wide range of professionally competent assistance.”
Id. at 690.
Courts judge an attorney’s performance against this
standard in light of the totality of the circumstances and from the
perspective of counsel at the time of trial, with every effort
being made to “eliminate the distorting effects of hindsight.” Id.
Courts generally presume under Strickland that an attorney
attorneys “a heavy measure of deference” by assuming that they will
judgment. Id. at 691. A defendant establishes prejudice by showing
that there is a “reasonable probability” that but for counsel’s
Id. at 694.
Ineffective Assistance of
Events Prior to Guilty Plea
represented by counsel may not assert independent claims relating
to events occurring prior to the entry of the guilty plea.” United
States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (quoting Tollett
v. Henderson, 411 U.S. 258, 267 (1973)).
Instead, “’[h]e may only
attack the voluntary and intelligent character of the guilty plea
by showing that the advice he received from counsel was not within
[acceptable] standards.’” Coffin, 76 F.3d at 497 (quoting Tollett,
411 U.S. at 267 (second alteration in original)).
ineffective assistance of counsel relating to events prior to the
plea that do not impact the voluntariness of the plea do not
survive a guilty plea.” Vasquez v. Parrott, 397 F.Supp.2d 452, 463
n.5 (S.D.N.Y. 2005).
violations of his Fourth Amendment rights and did not move to
suppress certain evidence resulting from that violation.
suppression-related allegations of ineffective assistance on direct
appeal, the Fourth Department found that his contentions did “not
survive [his] plea or [his] valid waiver of the right to appeal
because [he] failed to demonstrate that the plea bargaining process
was infected by [the] allegedly ineffective assistance or that [he]
entered the plea because of [his] attorney[‘s] allegedly poor
performance.” Smith, 122 A.D.3d at 1301 (alterations in original).
To raise a claim of ineffective assistance of counsel related
to events that occurred prior to the entry of the guilty plea,
assistance in those matters pertained to counsel’s advice regarding
Petitioner’s decision whether to plead guilty.
Parisi v. United
States, 529 F.3d 134, 138-39 (2d Cir. 2008) (citations omitted).
Here, however, Petitioner has not demonstrated a link between
the errors purportedly committed by counsel prior to the plea and
the allegedly involuntary nature of Petitioner’s decision to plead
See Cortez v. United States, Nos. 09 CV 7220(DAB), 05 CR
55(DAB), 2011 WL 666245, at *6 (S.D.N.Y. Feb. 10, 2011) (“While the
strategic bargaining position, Petitioner has not connected the
purported ineffectiveness with the knowing and voluntary nature of
his decision to plead guilty.”) (citing Parisi, 529 F.3d 138-39).
Because the instant claims do not relate to the voluntariness
of the plea itself, Parisi bars this Court from review.
Cobb v. Unger, No. 09-CV-0491, 2013 U.S. Dist. LEXIS 31572, at
*14-15 (W.D.N.Y. Mar. 5, 2013) (holding petitioner’s voluntary
guilty plea waived ineffective assistance of counsel claim alleging
counsel failed file pretrial motions or properly investigate case).
Petitioner’s Allegedly Coerced Waiver of
signing a Waiver of Appeal, Post-Judgment Review Rights, and a
Judicial Diversion Contract.”
Pet. at 5; Pet. Br. at 4.
Petitioner raised the issue of trial counsel’s alleged coercion on
direct appeal to the Fourth Department, that
court concluded that
the “County Court’s plea colloquy and defendant’s execution of a
written waiver of the right to appeal demonstrate that defendant’s
waiver of the right to appeal was a knowing and voluntary choice,”
and “defendant was adequately apprised . . . that the right to
appeal is separate and distinct from those rights automatically
forfeited upon a plea of guilty.’”
Smith, 122 A.D.3d at 1301
Petitioner also raised these arguments in his second CPL § 440.10
Motion. (SR44.) On October 30, 2013, the County Court denied that
motion “in all respects.” The County Court specifically found that
the plea minutes contradicted Petitioner’s claims that his attorney
coerced him to plead guilty and did not explain the appeal waiver.
(SR-59.) Petitioner sought leave to appeal “each and every part” of
the County Court’s order. (SR-62-67.) On December 19, 2013, the
Appellate Division, Fourth Department, denied leave to appeal.
Where a Petitioner claims that counsel was ineffective in
recommending a guilty plea, “in order to satisfy the ‘prejudice’
requirement, the [Petitioner] must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Lockhart, 474 U.S. 52, 59 (1985).
Significantly, Petitioner does
not provide any factual explanation as to how his counsel coerced
him into signing the diversion contract and waiving his right to
appeal and to post-judgment review.
Both the County Court and
confirmed that he had no questions and that he was signing the
waivers “freely and voluntarily,” after having consulted with his
attorney. (P. 8-10; SR96.) Because nothing in the record
Petitioner’s assertion that counsel coerced Petitioner, his claims
of coercion are therefore denied.
Petitioner’s Unexhausted Ineffective
Assistance of Counsel Claim
Petitioner’s claim that counsel was ineffective because he
coerced him to sign a waiver of indictment is unexhausted because
Petitioner has never raised it in state court.
Since the claim is
apparently based on matters outside the record, Petitioner should
have raised it in a C.P.L. § 440.10 motion. See, e.g., Alston v.
Donnelly, 461 F. Supp. 2d 112, 123 (W.D.N.Y. 2006) (“When a claim,
such as ineffective assistance of trial counsel, is based on
matters dehors the record, New York courts do not require a
defendant to raise it on direct appeal; rather, a collateral motion
under C.P.L. § 440.10 is the general avenue for pursuing such a
claim.”) (citations omitted). Petitioner here may still file such
a motion, but this Court declines to stay these proceedings pending
such a motion because the unexhausted ineffective assistance claim
is plainly meritless.
See Rhines v. Weber, 544 U.S. 269, 277
(2005) (“[T]he district court would abuse its discretion if it were
to grant [the petitioner] a stay when his unexhausted claims are
Pursuant to AEDPA, a district court now has the discretion to
claims. 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 state.”). Here, the Court finds that reliance on
28 U.S.C. § 2254(b)(2) “is appropriate” given that the claim is
“unquestionably meritless,” and its “lack of merit is not subject
to debate by reasonable jurists.” Mills v. Lempke, No. 11-CV-0440
MAT, 2013 WL 435477, at *5 (W.D.N.Y. Feb. 4, 2013) (citations
At the plea hearing, Petitioner stated under oath that he had
discussed the waiver with his attorney and understood that by
signing it, he was giving up his right to have the People present
his case to a grand jury, to testify before the grand jury, and to
have the grand jury determine whether to indict him. (March 22,
2015 Transcript at 4-5.)
These statements by Petitioner, made
under oath and in open court, “belie [his] claims of coercion,
misrepresentation.” Montstream v. Sup’t, Bedford Hills Corr. Fac.,
No. 06-CV-0787 RJA VEB, 2011 WL 284461, at *6 (W.D.N.Y. Jan. 4,
2011) (citing Blackledge v. Allison, 431 U.S. 63, 71-74 (1977)),
rep. and rec. adopted, 2011 WL 283252 (W.D.N.Y. Jan. 25, 2011),
aff’d, 486 F. App’x 164 (2d Cir. 2012).
Accordingly, Petitioner’s ineffective assistance of counsel
claims relating to events prior to his guilty plea are dismissed in
Illegal Search and Seizure
Petitioner also contends that, in searching his person and
privacy (2) acted without probable case, and (3) violated his
“Fourth, Fifth, and Fourteenth Amendment’s Equal Protection and Due
Process Clauses” because of a violation of the “exclusionary
Pet. at 6-7; Pet. Br. at 6-12.
Petitioner’s challenges to his search based on a legitimate
expectation of privacy, the exclusionary rule, and probable cause,
are Fourth Amendment claims.
Although raised by Petitioner in his
direct appeal and second CPL § 440.10 motion, state courts have
failed to adjudicate the claims.
AEDPA’s deferential standard does not apply where a petitioner
has presented a claim to a state habeas court but the state court
failed to adjudicate it; in such case, a federal district court
would normally address the claim de novo.
Borcyk v. Lempke, No.
10-CV-6137 MAT, 2012 WL 1252634, at *9 (W.D.N.Y. Apr. 13, 2012)
(citing Cone v. Bell, 556 U.S. 449, 472 (2009) (“Because the
Tennessee courts did not reach the merits of Cone’s [habeas] claim,
federal habeas review is not subject to the deferential standard
that applies under AEDPA to ‘any claim that was adjudicated on the
merits in State court proceedings.’ 28 U.S.C. § 2254(d). Instead,
the claim is reviewed de novo.”)).
However, because these claims
are Fourth Amendment claims which cannot be reviewed on the merits
in this habeas proceeding under the doctrine of Stone v. Powell,
the appropriate standard of review is immaterial.
“Where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be
granted habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his
Stone, 428 U.S. at 494.
“The Second Circuit has carved
warranted: (1) “[i]f the state provides no corrective procedures at
all to redress Fourth Amendment violations,” or (2) if “the state
provides the process but in fact the defendant is precluded from
utilizing it by reason of an unconscionable breakdown in that
Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977).
A state provides “full and fair opportunity” to litigate a
Fourth Amendment claim by providing a “‘statutory mechanism’ for
suppression of evidence tainted by an unlawful search and seizure.”
McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir.
Here, New York clearly affords defendants the requisite
See Capellan v. Riley, 975 F.2d 67, 70
(2d Cir. 1992) (noting federal courts have approved New York’s
advantage of the state’s corrective procedures.
As the Second
provided the opportunity to the state prisoner for full and fair
litigation of the Fourth Amendment claim.”
Gates, 568 F.2d at 839
(emphasis added). Stone thus bars Petitioner’s claim from habeas
Petitioner also challenges his search as a violation of the
Fourteenth Amendments. It is clear, however, that the basis of his
claim is that the search violated his Fourth Amendment rights.
“Attempts to find other names for that claim will not make it any
more cognizable in the context of a federal habeas petition.”
Herrera v. Kelly, 667 F. Supp. 963, 970 (E.D.N.Y. 1987) (holding
that habeas petitioner’s attempt to re-label Fourth Amendment
violation as due process and equal protection violations unavailing
under Stone); see also Graham v. Connor, 490 U.S. 386, 395 (1989)
(“Because the Fourth Amendment provides an explicit textual source
generalized notion of ‘substantive due process,’ must be the guide
for analyzing these claims.”).
Therefore, the analysis above under Stone equally applies to
bar Petitioner’s challenge to his search on Fifth and Fourteenth
Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir.
1986) (“Even though due process violations, unlike some Fourth
Amendment violations, are cognizable in a habeas proceeding in
federal court, petitioner may not cloak his or her Fourth Amendment
claim in due process clothing to circumvent Stone v. Powell.”
lawfulness of the search and seizure under the Fourth Amendment,
the Court need not address Respondent’s alternative argument that
these claims are precluded under Tollett v. Henderson based on
Petitioner’s voluntary guilty plea.
For the foregoing reasons, Petitioner’s request for a writ of
habeas corpus (Docket No. 1) is denied.
Because Petitioner has
declines to issue a certificate of appealability. The Petition is
dismissed in its entirety, and the Clerk of 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
October 31, 2017
Rochester, New York
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