Horton v. Recktenwald

Filing 28

DECISION AND ORDER denying 22 Motion for Reconsideration because Petitioners Objections to the R&R provide no basis for the Court to deviate from its prior ruling that the R&R (Dkt #13) should be adopted in its entirety and that Petitioners reque st for a writ of habeas corpus must be denied. Because Petitioner has failed to make a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. (Copy of this Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 7/11/17. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHARLES HORTON,
Petitioner,
DECISION and ORDER
No. 1:15-cv-843(MAT)(MJR)

-vsMONICA RECKTENWALD, Warden,
Respondent.

Pro se petitioner Charles Horton (“Petitioner”) instituted
this proceeding by filing a petition (Dkt #1) for a writ of habeas
corpus

pursuant

to

28

U.S.C.

§

2254.

On

February

6,

2017,

United States Magistrate Judge Michael J. Roemer issued a Report
and Recommendation (“R&R”) recommending, inter alia, denial of the
petition (Dkt #1). The R&R stated that any objections were to be
filed within fourteen days. Petitioner subsequently was given an
extension

of

time

to

file

objections

until

May

2,

2017.

No

objections had arrived at the Court prior to the Court’s issuance
of its Decision and Order (Dkt #13) on May 4, 2017, adopting the
R&R in its entirety.1
On May 15, 2017, the Court received Petitioner’s motion for
reconsideration, arguing that his objections were timely filed, but

1

Specifically, the Court
certificate of appealability,
(Dkt #11), and denied the
Statute—Notice, Certification,
§2403” (Dkt #12).

dismissed the petition, declined to grant a
denied the motion for appointment of counsel
“Motion for Constitutional Challenge to a
and Intervention Pursuant to Rule 5.1/28 U.S.C.

not specifying the date on which they were filed. Respondent, in
her opposition to the motion for reconsideration, asserts that
Petitioner

“did

not

file

his

objections

until

May

5,

2017,

rendering them untimely.”
The Court did not receive any objections from Petitioner until
May 30, 2017, which apparently were mailed on May 24, 2017, and,
according to Petitioner, are a duplicate copy of the objections he
filed earlier. The objections bear Petitioner’s signature and are
dated in two places with two different dates (April 27, 2017, and
April 28, 2017). Petitioner asserts that these were timely mailed
but never received by the Court.

According to the prison mailbox

rule, these objections would have been timely, even if received on
May 5, 2017, because they are dated prior to May 2, 2017. As noted
above, Petitioner was given an extension of time until May 2, 2017,
to file objections to the R&R. The Court therefore will reconsider
the R&R in light of Petitioner’s objections. As discussed further
below, the Court rejects Petitioner’s objections and adheres to its
Decision and Order adopting the R&R.
DISCUSSION
I.

Constitutional Challenge to a State Statute and Failure to
Rule on Actual Innocence Claim (Objections, pp. 1-9; 10-13)
Petitioner asserts that the Appellate Division erred by not

ruling on his actual innocence claim. It appears that he is
referring to the Appellate Division’s denial of his application for
leave to appeal the County Court’s denial of his second motion to
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vacate pursuant to New York Criminal Procedure Law (“C.P.L”)
§ 440.10. This Court previously determined that the R&R correctly
found

these

allegations

could

not

be

construed

to

raise

a

constitutional issue cognizable on federal habeas review. First, an
appellate court’s denial of discretionary leave to appeal does not
raise a constitutional issue. See, e.g., Shaut v. Bennet, 289 F.
Supp.

2d

354,

Petitioner’s

370

leave

(W.D.N.Y.

2003).

application

Second,

asserts

that

to
he

the
is

extent

actually

innocent, the United States Supreme Court has never ruled that a
freestanding claim of actual innocence may serve as a basis for
federal

habeas

relief.

In

the

absence

of

any

Supreme

Court

authority, the Appellate Division’s decision declining to hear
Petitioner’s actual innocence claim cannot be contrary to, or an
unreasonable application of, clearly established federal law as set
forth by the United States Supreme Court. See Wright v. Patten, 552
U.S. 120, 126 (2008) (“Because our cases give no clear answer to
the question presented, let alone one in Van Patten’s favor, ‘it
cannot be said that the state court unreasonabl[y] appli[ed]
clearly established Federal law.’ Under the explicit terms of
§

2254(d)(1),

therefore,

relief

is

unauthorized.”)

(internal

citation omitted in original)).
“In order to demonstrate actual innocence in a so-called
collateral proceeding, a petitioner must present ‘new reliable
evidence that was not presented at trial’ and ‘show that it is more

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likely than not that no reasonable juror would have found [him]
guilty beyond a reasonable doubt.’” Lucidore v. N.Y. State Div. of
Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo,
513 U.S. 298, 299, 327–28 (1995)). In his objections, Petitioner
asserts that his “affidavit, plea transcripts, etc. is [sic]
sufficiently detail[ed] to call [his] guilt into serious question”
because it “would have been impossible for [him] to have been
arrested for DWI then got release and return to [his] alledge [sic]
apartment to be arrest[ed] for possession [of] cocaine during the
same time of a traffic stop.” (Dkt #24, p. 12 of 29). Even assuming
that Petitioner’s actual innocence claim is cognizable as a standalone claim in this habeas proceeding, he has fallen far short of
the evidentiary showing contemplated.

Here, his “actual innocence

claim derives from evidence that was available to him and his
counsel at the time he entered a plea of guilty. Because no new
evidence is cited, he cannot rely on it in for purposes of his
actual innocence claim.” Germain v. Racette, No. 913CV1530MADDEP,
2015 WL 7709606, at *6 (N.D.N.Y. Sept. 10, 2015), report and
recommendation

adopted,

No.

913CV1530MADDEP,

2015

WL

7573225

(N.D.N.Y. Nov. 25, 2015) (citing Johnson v. Medina, 547 F. App’x
880, 885 (10th Cir.2013) (“Actual innocence claims focus on ‘new’
evidence–‘relevant evidence that was either excluded or unavailable
at trial.’”) (quoting Schlup v. Delo, 513 U.S. 298, 327–28 (1995);
citing Mardis v. Falk, No. 14–CV–2895, 2015 WL 1064444, at *4

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(D. Colo. Mar. 9, 2015) (rejecting actual innocence claim because
the petitioner “fail[ed] to provide any new reliable evidence to
support his claim”)).

“The Second Circuit has held that a habeas

court can consider a guilty plea in the context of making an actual
innocence determination.” Bower v. Walsh, 703 F. Supp.2d 204, 227
(S.D.N.Y. 2010) (citing Doe v. Menefee, 391 F.3d 147, 168–69
(2d Cir. 2004) (“In light of our determination that the 1993
proffer

session

admissions

are

reliable,

but

Doe’s

hearing

testimony that he never had sex with Edwin is not, we find that Doe
has not established that he lied under oath at his guilty plea.
Doe’s plea admission that he had sexual contact with Edwin may
therefore be considered as evidence of Doe’s guilt.”); Rosario v.
U.S., 164 F.3d 729, 734 (2d Cir. 1998) (considering petitioners’
inculpatory statements made during plea allocution in determining
whether no reasonable juror would find petitioners guilty)). Here,
despite

his

awareness

of

evidence

establishing

the

alleged

impossibility of his commission of the crime, Petitioner entered a
knowing, intelligent, and voluntary guilty plea, a factor that
militates

strongly

against

crediting

his

assertion

of

actual

innocence claim. Accord, e.g., Germain, 2015 WL 7709606, at *6
(citing Johnson, 547 F. App’x at 885 (“[The petitioner’s] plea of
guilty simply undermines his claim [in the context of actual
innocence] that another individual committed the crime to which he
pled guilty.”); Chestang v. Sisto, 522 F. App’x. 389 (9th Cir.

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2013) (concluding that, while pleading guilty does not foreclose
the possibility of finding actual innocence, a petitioner’s actual
innocence claim is seriously undermined by his entry of a guilty
plea)).
II.

Ineffective Assistance of Trial Counsel (Objections, pp. 1422)
Petitioner contends that his plea was the product of coercion

by his attorney, who allegedly told him, “Just plead guilty now and
you can revoke the plea and then go to trial in the future.”
(Dkt #24, p. 19 of 29). Petitioner’s allegations are fatally
undermined by his statements made under oath and open court, prior
to pleading guilty, that he was satisfied with the representation
he had received from counsel. “It is well established that ‘[a]
criminal defendant’s self-inculpatory statements made under oath at
this plea allocution carry a strong presumption of verity . . . and
are generally treated as conclusive in the face of the defendant’s
later attempt to contradict them.’” United States v. Grzybek, 283
F. App’x 843, 845 (2d Cir. 2008) (quoting Adames v. United States,
171 F.3d 728, 732 (2d Cir. 1999) (internal quotation marks and
citations omitted in original; ellipsis and brackets in original)).
Petitioner also contends that his attorney failed to advise
him of the collateral consequences of pleading guilty to a felony,
namely, that he would lose his right to vote, to hold public
office, or to possess a firearm. (Id., p. 20 of 29). These

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allegations do not establish that counsel was constitutionally
ineffective. See Padilla v. Kentucky, 559 U.S. 356, 376–77 (2010)
(Alito, J., concurring) (“[C]riminal convictions can carry a wide
variety of consequences other than conviction and sentencing,
including civil commitment, civil forfeiture, the loss of the right
to vote, disqualification from public benefits, ineligibility to
possess firearms, dishonorable discharge from the Armed Forces, and
loss of business or professional licenses. . . . All of those
consequences are ‘seriou[s],’ but this Court has never held that a
criminal

defense

attorney’s

Sixth

Amendment

duties

extend

to

providing advice about such matters.”) (internal citations omitted;
brackets in original). Petitioner’s claims are wholly reliant on
his own self-serving affidavit, made after his conviction and
sentence

were

upheld.

However,

“self-serving

allegations

of

ineffective assistance of counsel are not enough to overturn a
knowing and voluntary guilty plea.” Eber-Schmid v. Cuomo, No. 09
CIV 8036 BSJAJP, 2010 WL 1640905, at *28 (S.D.N.Y. Apr. 22, 2010),
report and recommendation adopted, No. 09 CV 8036 BSJ AJP, 2012 WL
3105012 (S.D.N.Y. July 31, 2012) (citing United States v. Gordon,
156 F.3d 376, 380–81 (2d Cir. 1998) (Strickland’s “but for” test
requires “some further ‘objective evidence’” beyond a petitioner’s
“self-serving,

post-conviction

testimony”);

Potter

v.

Green,

No. 04–CV–1343, 2009 WL 2242342, at *15 (E.D.N.Y. July 24, 2009)
(“Petitioner’s only evidence showing that ‘but for’ counsel’s

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error, Petitioner would not have pled guilty is Petitioner’s
affidavit; however this statement alone is insufficient.”); Grullon
v. United States, 99 Civ. 1877, 2004 WL 1900340 at *6 (S.D.N.Y.
Aug. 24, 2004) (“In considering an ineffective counsel claim, a
court need not accept a petitioner’s uncorroborated, self-serving
testimony as true.”); other citation omitted).
Petitioner faults appellate counsel for failing to raise an
actual innocence claim on direct appeal. (Dkt #24, p. 21 of 29).
Under New York state law, a guilty plea is not an absolute bar to
asserting a claim of actual innocence. People v. Tiger, 48 N.Y.S.3d
685, 700-01 (2d Dep’t 2017). However, a defendant’s direct appeal
is not the proper procedural vehicle for asserting a claim of
actual innocence.

Such

a

claim

“must

be

based

upon reliable

evidence which was not presented at the [time of the plea][,]”
People v. Brockway, 51 N.Y.S.3d 306, 307 (4th Dep’t 2017) (quoting
People v. Hamilton, 979 N.Y.S.2d 97 (2d Dep’t 2014)), “and thus
must

be

raised

by

a

motion

pursuant

to

CPL

article

440[.]”

Id. (citation omitted). Moreover, New York state courts look with
disfavor on a defendant’s use of a guilty plea “as a device . . .
to avoid a trial while maintaining a claim of factual innocence[.]”
Id. (quotation omitted). Had appellate counsel asserted an actual
innocence argument on direct appeal, it would have been dismissed
pursuant to the foregoing precedent. Appellate counsel was not
ineffective in failing to raise a patently meritless argument.

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See Aparicio v. Artuz, 269 F.3d 78, 100 (2d Cir. 2001) (“[J]ust as
in

our

disposition

of

Petitioner’s

double

jeopardy

claim,

Petitioner’s appellate counsel was not ineffective for failing to
raise the meritless argument.”) (citation and footnote omitted).
CONCLUSION
For the reasons discussed above, Petitioner’s Objections to
the R&R provide no basis for the Court to deviate from its prior
ruling that the R&R (Dkt #13) should be adopted in its entirety and
that Petitioner’s request for a writ of habeas corpus must be
denied. Because Petitioner has failed to make a substantial showing
of

the

denial

of

a

constitutional

right,

no

certificate

appealability shall issue.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 11, 2017
Rochester, New York

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