Ashby v. Stallone
ORDER DISMISSING the petition without prejudice; FURTHER, DENYING certificate of appealability; FURTHER, DENYING leave to appeal in forma pauperis. ADVISING petitioner that he must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of this order and that requests to proceed on appeal in forma pauperis must be filed with the United Stated Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 6/21/2017. (Chambers mailed a copy of this Order to Petitioner, Kevin Ashby). (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID STALLONE, Superintendent,
Cayuga Correctional Facility,
The pro se petitioner, Kevin Ashby, was convicted of insurance fraud in the third
degree and attempted grand larceny in the third degree in the County Court of Niagara
County, New York, on April 15, 2016. Docket Item 1 at 1. He challenges his conviction
in this Court under 28 U.S.C. § 2254,1 but he admitted in his petition that he had not
appealed his conviction. Docket Item 1 at 1-2. This Court therefore directed him to
show cause why his petition should not be dismissed for failure to exhaust state court
remedies. Docket Item 6.
Ashby responded that he had good reason for failing to exhaust his remedies: he
had procedurally defaulted on his claims, he said, and he therefore was entitled to relief
in this Court without having first sought that relief in the New York state courts. Docket
Item 7. Ashby also asserted that he was actually innocent and entitled to relief here for
that reason as well. Docket Item 7 at 16-17. But Ashby’s arguments are misplaced.
Ashby lists five grounds for habeas relief. See Docket Item 1. He claims that his
conviction was obtained by: (1) “use of evidence gained pursuant to an unconstitutional
search and seizure,” (2) “use of evidence obtained pursuant to an unlawful arrest,” (3)
“violation of the priv[i]lege against self[-]incrimination,” (4) “the unconstitutional denial of
effective assistance of counsel,” and (5) “malicious prosecution and prosecutorial
misconduct.” Id. at 4-5, 23.
For the reasons that follow, his petition is dismissed, without prejudice, for failing to
exhaust state court remedies.
A state prisoner ordinarily may obtain federal habeas relief only after exhausting
his claims in state court. 28 U.S.C. § 2254(b)(1), (c); O’Sullivan v. Boerckel, 526 U.S.
838, 839 (1999). In order to exhaust a claim, “state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845. One
can exhaust claims either through direct appeal or a collateral proceeding, see, e.g.,
Preiser v. Rodriguez, 411 U.S. 475 (1973), but a petitioner has exhausted state court
remedies only for those claims that have been “fairly presented” to the state courts,
Picard v. Connor, 404 U.S. 270, 275 (1971); Smith v. Duncan, 411 F.3d 340, 349 (2d
Cir. 2005). The exhaustion requirement “is principally designed to protect the state
courts’ role in the enforcement of federal law and prevent disruption of state judicial
proceedings.” Murray v. Carrier, 477 U.S. 478, 489 (1986) (citation and internal
quotation marks omitted), superseded by statute on other grounds, AEDPA, Pub.L. 104132, 110 Stat. 1214.
In his response to this Court’s order of January 18, 2017, directing him to show
cause why his petition should not be dismissed for the failure to exhaust state court
remedies, Ashby acknowledges that he has not yet appealed his conviction. Docket
Item 7 at 7-8; see also Docket Item 1 at 1-2 (petition stating the same). But he argues
that all his state court remedies nevertheless are exhausted because he has
procedurally defaulted on all his claims.
When a state court declines to address a prisoner’s federal claims because the
prisoner failed to meet a state procedural requirement, a federal court will not review
those claims as long as the state judgment rests on independent and adequate state
procedural grounds. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). But “a
procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case ‘clearly and
expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489
U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).
Moreover, even if a prisoner has defaulted in state court, he still might be able to obtain
federal habeas review if he can show “cause” for the procedural waiver and “prejudice”
attendant to it. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Murray, 477 U.S. at 485
(“[A] federal habeas petitioner who has failed to comply with a State’s
contemporaneous-objection rule at trial must show cause for the procedural default and
prejudice attributable thereto in order to obtain review of his defaulted constitutional
claim.”). Or a petitioner can obtain federal review by “demonstrating that failure to
consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually
innocent).” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing Coleman, 501 U.S.
A. Grounds One, Two, Three, and Five
In response to this Court’s order to show cause, Ashby argues that he has
procedurally defaulted but that the ineffective assistance of his trial counsel provides the
necessary “cause” for that default. Docket Item 7 at 3-4. His argument is not entirely
off base: procedural default can itself exhaust claims. “For exhaustion purposes, ‘a
federal habeas court need not require that a federal claim be presented to a state court
if it is clear that the state court would hold the claim procedurally barred.’” Grey v.
Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris, 489 U.S. at 263 n. 9). Under
such circumstances, the habeas petitioner can be declared to have exhausted his
claims either because he has no further “remedies available in the courts of the State,”
Grey, 933 F.2d at 120 (quoting 28 U.S.C. § 2254(b)), or because “there is an ‘absence
of available State corrective process,’” Aparicio, 269 F.3d at 90 (quoting 28 U.S.C.
Here, Ashby argues that he procedurally defaulted on his claims because his
lawyer failed to object to the admission of certain evidence at trial. Citing New York
Criminal Procedure Law (C.P.L.) § 470.05 as the basis of his default on Grounds One,
Two, Three, and Five, Ashby argues that “[d]ue to New York State’s statutory limitations
. . . appeals on matter that were not protested at trial are procedurally barred from
consideration on appeal.” Docket Item 7 at 3. Ashby is correct that under § 470.05
New York appellate courts generally will consider only objections and legal arguments
that have been preserved—that is, presented first to the trial court.2 See, e.g., People
v. Tevaha, 84 N.Y.2d 879, 881, 644 N.E.2d 1342, 1342 (1994) (unpreserved objection
to witness testimony); People v. McClain, 250 A.D.2d 871, 872-73, 672 N.Y.S.2d 503,
504-05 (3d Dep’t 1998) (unpreserved claims with respect to admission of evidence);
“For purposes of appeal, a question of law with respect to a ruling or instruction of a
criminal court during a trial or proceeding is presented when a protest thereto was
registered, by the party claiming error, at the time of such ruling or instruction or at any
subsequent time when the court had an opportunity of effectively changing the same.”
C.P.L. § 470.05(2).
People v. Smyth, 233 A.D.2d 746, 749, 650 N.Y.S.2d 821, 824 (1996) (unpreserved
claim of prosecutorial misconduct). That arguably suggests procedural default. See
Engle v. Isaac, 456 U.S. 107, 124-25 & n.28 (1982) (concluding respondents who had
failed to satisfy Ohio’s contemporaneous-objection rule had procedurally defaulted).
But it is not clear that a New York state court necessarily would find that the
failure to object precluded Ashby from raising his claims—that is, that he defaulted.
Simply because a New York court might find that Ashby waived his right to raise certain
issues by failing to object at trial does not mean that an appellate court necessarily
cannot or will not address those issues.
In fact, a New York intermediate appellate court can entertain even unpreserved
issues “as a matter of discretion in the interest of justice.” C.P.L. § 470.15(6). For
instance, a court might reverse or modify a judgment due to an unpreserved trial error
that deprived a defendant of a fair trial or resulted in an unduly harsh sentence. Id.
Although interest-of-justice review may result in reversal only rarely, New York courts
have used it, for example, to exonerate an innocent person, People v. Kidd, 76 A.D.2d
665, 669, 431 N.Y.S.2d 542, 545 (1st Dep’t 1980) (reversing and dismissing indictment
where there was “a grave risk that an innocent man has been convicted”), or to respond
to “[t]he cumulative harmful effect of the various errors,” People v. Langford, 153 A.D.2d
908, 910, 545 N.Y.S.2d 610, 611 (2d Dep’t 1989). Especially because Ashby raises his
“actual innocence,” see point II, infra, the New York courts must be given at least one
chance to address the issues he raises before he can raise them here.
Moreover, New York courts have found that “an issue of law is preserved even if
it is not specifically raised by the defendant so long as the trial court expressly rules on
the issue following an earlier objection.” Cotto v. Herbert, 331 F.3d 217, 244 (2d Cir.
2003). So the state court might find that Ashby actually did comply with § 470.05 in
form or in substance and therefore consider the issues he wishes to raise. In sum, it is
not “clear that the state court would hold [Ashby’s claims] procedurally barred.” 3 Grey,
933 F.2d at 120 (quoting Harris, 489 U.S. at 263 n.9). His failure to exhaust available
state court review therefore precludes his claims in this Court at this time.
B. Ground Four
Because he raised ineffective assistance of counsel (Ground Four of his petition)
at trial, Docket Item 1 at 5 (¶ 13), Ashby does not rely on C.P.L. § 470.05 to support
federal habeas review of that claim. Instead, he argues that because evidence of his
ineffective-assistance claim lies outside the trial record and transcript, “there are state
statutory limitations which will render direct appellate review ineffective at protecting the
rights of the petitioner.” Docket Item 7 at 14. In other words, Ashby argues, “the state
appellate court’s narrow statutory standard for scope of review . . . makes the process
ineffective, ineffectual or inadequate.” Id. at 6-7. He also maintains that his counsel’s
intentional ineffective assistance constitutes cause for his procedural default on Ground
Four. Id. at 14.
As previously noted, a habeas petitioner need not exhaust all available state
court remedies in the rare event that “there is an absence of available [s]tate corrective
Additionally, as discussed below, Ashby’s ineffective-assistance claim is not
exhausted. Therefore, he could not use that claim to show cause for his purported
procedural default on the other grounds of his petition. Otherwise, “if a petitioner could
raise his ineffective assistance claim for the first time on federal habeas in order to show
cause for a procedural default, the federal habeas court would find itself in the
anomalous position of adjudicating an unexhausted constitutional claim for which state
court review might still be available.” Murray, 477 U.S. at 489.
process” or if “circumstances exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254 (b)(1)(B)(i), (ii). But neither is the case here.
Indeed, Ashby admits that even with respect to his direct appeal, “counsel’s
unabashedly deficient representation is not entirely barred from review on the state
court level through direct appeal.” Id. at 7.
Ashby is correct that ineffective-assistance claims like his can be difficult to raise
on direct appeal because the trial “record in many cases will not disclose the facts
necessary to decide” whether counsel’s assistance was constitutionally ineffective.
Massaro v. United States, 538 U.S. 500, 505 (2003). But just because it might be
difficult to bring his ineffective-assistance claim on direct appeal does not mean that
New York’s appellate procedures are ineffective in protecting Ashby’s constitutional
rights. In fact, even if he could not effectively raise his claim on direct appeal, Ashby
still could collaterally attack his conviction under C.P.L. § 440.10(1), supplement the trial
record, and present his claim to a New York court. See People v. Freeman, 93 A.D.3d
805, 806, 940 N.Y.S.2d 314, 315 (2d Dep’t 2012) (“Since the defendant’s claim cannot
be resolved without reference to matter outside the record, a CPL 440.10 proceeding is
the appropriate forum for reviewing the ineffective assistance claim in its entirety.”).
Under such circumstances,4 asserting federal court jurisdiction without first having
sought collateral review in state court would infringe on “[t]he principle of comity . . .
To obtain habeas relief, a petitioner need not “ask the state for collateral relief, based
on the same evidence and issues already decided by direct review.” Brown v. Allen,
344 U.S. 443, 447 (1953); accord Daye v. Att’y Gen. of State of N.Y., 696 F.2d 186,
190-91 n.3 (2d Cir. 1982) (en banc) (“[A] petitioner need not give the state court system
more than one full opportunity to rule on his claims; if he has presented his claims to the
highest state court on direct appeal he need not also seek state collateral relief.”). But
when collateral review remains an option for a state court to address an issue that has
[, which] would be ill served by a rule that allowed a federal district court ‘to upset a
state court conviction without an opportunity to the state courts to correct a
constitutional violation.’” Murray, 477 U.S. at 489 (quoting Darr v. Burford, 339 U.S.
200, 204 (1950)).
Ashby also argues that because he is actually innocent, his petition is in “a
further, narrow class of cases” that permits federal habeas review without exhausting
state court remedies. Docket Item 7 at 16 (quoting Murray, 477 U.S. at 485). Again, his
argument is misguided.
“A habeas petitioner may bypass [a procedural default] by demonstrating a
constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he
is actually innocent of the crime for which he has been convicted.” Dunham v. Travis,
313 F.3d 724, 730 (2d Cir. 2002) (citations omitted). This actual-innocence exception
applies in the “extraordinary case, where a constitutional violation has probably resulted
in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. “Actual
innocence means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998).
But actual innocence does not negate the requirement that state courts be given
a chance to consider an issue before a federal court does. In other words, a showing of
actual innocence may excuse a petitioner’s failure to bring a habeas claim within the
not been or cannot be considered on direct appeal, a petitioner must pursue that
avenue as “an available option.” 28 U.S.C. § 2254. In other words, when collateral
review is available, the barriers to direct appeal that the claim itself might present do not
render the state corrective process unavailable so as to excuse exhaustion of collateral
state court remedies.
limitations period, but it will not excuse the failure to exhaust state court remedies.
“While there is no Second Circuit decision that directly addresses the possibility of an
‘actual innocence’ exception to the exhaustion requirement, other courts have held that
while a claim of actual innocence might avoid a procedural default, it will not excuse a
defendant from exhausting available state remedies . . . .” Saunders v. Comm’r, Dep’t
of Correction, 2011 WL 572313, at *3 (D. Conn. Feb. 15, 2011) (discussing Lambert v.
Blackwell, 134 F.3d 506 (3d Cir. 1997) and Graham v. Johnson, 94 F.3d 958 (5th Cir.
1996)). And that makes eminent sense given that actual innocence is most certainly an
issue that state courts will consider and therefore should be given the first chance to
resolve. See Johnson v. Glunt, 2014 WL 5334078, at *4 (E.D. Pa. Oct. 20, 2014)
(stating that if a court were to adopt an actual-innocence exception in such a case, “the
exhaustion requirement would be eviscerated, allowing the federal court to preempt
ongoing state court proceedings”).5
And even if actual innocence were a reason not to require exhaustion, Ashby’s
claim here still would fail. His attempts to show his actual innocence rest only on
evidence known at the time of his trial, but a successful showing of actual innocence in
the post-trial context must be established by new evidence. See House v Bell, 547 U.S.
518, 536-37 (2006); Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (quoting Schlup
v. Delo, 513 U.S. 298, 324 (1995) (stating that credible actual-innocence claim must be
supported by “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented
Indeed, one of the New York appellate court decisions cited above used actual
innocence as a reason to consider unpreserved error. See Kidd, 76 A.D.2d at 669, 431
N.Y.S.2d at 545.
at trial”)). Otherwise, a claim of actual innocence is really nothing more than an
invitation to revisit a jury’s prior decision.6
Just as comity dictates that a federal court give due deference to a state’s
contemporaneous-objection rule, Wainwright, 433 U.S. at 89, so too it requires that the
state be given an opportunity to address that rule in the first instance. A finding to the
contrary would allow prisoners to purposefully circumvent the exhaustion doctrine by
failing to object contemporaneously and then barraging federal courts with habeas
petitions claiming cause, prejudice, and actual innocence.
Ashby has neither exhausted his state court remedies nor provided this Court
with an excuse for his failure to do so. His petition (Docket Item 1) therefore is
dismissed pursuant to 28 U.S.C. § 2254(b)(1)(A). Because this dismissal is without
prejudice and does not constitute a dismissal on the merits for purposes of 28 U.S.C.
§ 2244(b), it does not preclude the filing of another petition after he has properly
exhausted his state court remedies. In other words, before Ashby can bring another
federal habeas petition, he must present his claims to New York courts and properly
exhaust his state court remedies. And he is reminded that exhaustion of state remedies
requires presentation of the claim to the highest state court from which a decision can
be obtained. See Daye, 696 F.2d at 190 n. 3 (2d Cir. 1982).
The petitioner additionally argues that he was the victim of racial discrimination, noting
that he is African-American and “[m]ost of the time the petitioner spent at trial, he was
surrounded by only Caucasians and non-minorities.” Docket Item 7 at 15. He
“concludes that his denial of a fair trial and due process was orchestrated out of
contempt for petitioner as a human-being, a man and a person of color.” Id. at 16. But
he does not state how or why such allegations would excuse failing to exhaust his state
Moreover, because the issues raised here are not the type of issues that a court
could resolve in a different manner, or because these issues are not debatable among
jurists of reason, Slack v. McDaniel, 529 U.S. 473, 484 (2000), this Court concludes that
the petitioner has failed to make a substantial showing of the denial of a constitutional
right, 28 U.S.C. § 2253(c)(2), and therefore denies a certificate of appealability. Further,
this Court certifies that any appeal from this order would not be taken in good faith and
therefore denies the petitioner leave to appeal in forma pauperis. Id. § 1915(a)(3);
Coppedge v. United States, 369 U.S. 438, 438 (1962).
The petitioner must file any notice of appeal with the Clerk’s Office, United States
District Court, Western District of New York, within 30 days of the date of this order.
Requests to proceed in forma pauperis on appeal must be filed with the United States
Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24
of the Federal Rules of Appellate Procedure.
IT IS HEREBY ORDERED that the petition (Docket Item 1) is dismissed without
prejudice; and it is further
ORDERED that a certificate of appealability is denied; and it is further
ORDERED that leave to appeal in forma pauperis is denied.
June 21, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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