Johnson v. Graham

Filing 30

DECISION AND ORDER: For the reasons stated in this decision and in the Report and Recommendation, Docket Item 20, Johnson's application for a writ of habeas corpus, Docket Item 1, is DENIED, and the petition is DISMISSED. The Clerk of the Cour t shall close the case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/9/2022. (Chambers has mailed a copy of this decision to the pro se petitioner at the address listed on the docket and at Wende Correctional Facility). (WMH)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES D. JOHNSON,
Petitioner,
v.
SUPERINTENDENT HAROLD GRAHAM,

17-CV-629-LJV-HKS
DECISION & ORDER

Respondent.

On July 10, 2017, the pro se petitioner, Charles D. Johnson, filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Docket Item 1. In November 2013,
Johnson pleaded guilty to first-degree rape in Genesee County Court and waived
certain appeal rights. Id. In his petition to this Court, he argues that his appeal waiver
was not knowingly, intelligently, and voluntarily made and that the appeal waiver form
that he signed included “conflicts” that the trial court should have explained to him and
“cured.” Id. On May 22, 2018, the respondent answered the petition, Docket Items 910, and on November 12, 2019, Johnson replied, Docket Item 17. 1
In the meantime, this Court referred this case to United States Magistrate Judge
H. Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B).
Docket Item 15. On March 11, 2020, Judge Schroeder issued a Report and
Recommendation (“R&R”) finding that the application for a writ of habeas corpus should

Johnson also filed a “letter of memorandum” on April 6, 2020, which
supplemented the arguments raised in his petition and again responded to the
respondent’s answer. See Docket Items 21-22. This Court has considered that
memorandum in this decision.
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be denied and the petition dismissed. Docket Item 20. Johnson objected to the R&R
on July 8, 2021, 2 Docket Item 26, and the respondent responded to Johnson’s objection
on December 9, 2021, Docket Item 29. Johnson did not reply, and the time to do so
has expired. See Docket Item 28.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
This Court has carefully and thoroughly reviewed the R&R; the record in this
case; the letter memorandum, objection, and response; and the materials submitted to
Judge Schroeder. Based on that de novo review, the Court accepts and adopts Judge
Schroeder’s recommendation to deny Johnson’s application and dismiss the petition.

Although Judge Schroeder issued the R&R in March 2020, Johnson did not
receive a copy of the R&R until more than a year later; he then promptly filed his
objection. See Docket Items 24-27. The respondent has not challenged the timeliness
of Johnson’s objection, see generally Docket Item 29, and this Court accepts Johnson’s
objection as timely.
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FACTUAL BACKGROUND 3
On May 31, 2013, Johnson was charged in an eight-count indictment with firstdegree rape and other crimes related to a burglary and sexual assault that took place in
LeRoy, New York. Docket Item 10-2 at 43-45. At his arraignment in Genesee County
Court, Johnson informed the judge that he “d[id not] want” his assigned lawyer to
represent him and instead “want[ed] to represent [himself]” until he could retain other
counsel. Docket Item 10-3 at 8-11. The trial court deferred consideration of Johnson’s
request until “when and if [counsel] doesn’t appear.” Id. at 11. Johnson subsequently
sent the court a letter “saying [he] d[id not] want to terminate [his counsel’s] services per
se” but still “want[ed] to . . . represent [himself].” Id. at 14. After receiving that letter, the
court held a hearing on July 29, 2013, and determined that Johnson had adequately
waived his right to counsel and could proceed pro se with the assistance of “standby
counsel.” Id. at 13-35.
About four months later, Johnson pleaded guilty to one count of first-degree rape.
As part of the plea resolution, Johnson agreed to waive his right to appeal, and his
sentencing exposure was limited to a range of eight to eighteen years of incarceration
with a maximum term of twenty-five years of post-release supervision. Id. at 36-59.
During the plea proceeding, the trial court addressed Johnson’s waiver of appellate
review:

The Court assumes familiarity with the facts as stated in the R&R, see Docket
Item 20 at 2-7, and includes only a brief recitation of the facts relevant to Johnson’s
objection.
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THE COURT:

Now, ordinarily, sir, after somebody is convicted and
sentenced in this court, they have the right to take an
appeal to the Appellate Division, Fourth Department.
Some people get to take an appeal to the next highest
court, which is the highest court in the state, the Court of
Appeals. Some people exhaust their state appeals and
file appeals in the federal system. And some people come
back here and ask to have their conviction vacated or
modified.
The [P]eople have indicated that in order to give you this
limitation on incarceration and the lesser crime that you
are pleading to, they are requiring you to waive all rights
to appeal; and once you are convicted and sentenced
here, there will be no review by any other court. Do you
understand that?

[JOHNSON]:

Yes, I do.

THE COURT:

And do you understand that that waiver goes to almost all
issues of conviction and sentence, including the terms and
length of your sentence, whether your sentence is
excessive, you won’t be able to file an appeal on your own.
You won’t get an assigned attorney to file an appeal, you
won’t be able to retain an attorney to file an appeal, you
won’t get waived filing fees. There is just going to be no
review by any other court. Do you understand that?

[JOHNSON]:

Yes, I do.

Id. at 45-46.
After that exchange, Johnson and standby counsel—who accompanied Johnson
at the proceeding—signed a written “waiver of right to appeal” form. Id. at 46; Docket
Item 10-2 at 219. That waiver form confirmed that Johnson “ha[d] been advised of [his]
rights being waived, specifically” his rights:

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(1) to take an appeal; (2) to prosecute the appeal as a poor person; (3) to
have an attorney assigned if [he] [could not] afford to pay one; (4) to submit
a brief; and (5) to argue before an appellate court any issues relating to [his]
conviction or sentence.
Docket Item 10-2 at 219.
The form then listed several claims that fell outside the scope of the appellate
waiver, including challenges to “the jurisdiction of the court, any constitutional speedy
trial claim, the legality of the sentence, [Johnson’s] competency to stand trial[,] and the
voluntariness of th[e] waiver.” Id. The form said that Johnson had “waiv[ed] [his] right
to appeal voluntarily and knowingly, after [his] appellate rights were fully explained by
the court and [his] standby attorney.” 4 Id. Finally, the waiver form represented that
Johnson “had a full opportunity to discuss these matters with [his] attorney and any
questions [he] had ha[d] been answered to [his] satisfaction.” Id. The court did not
discuss the contents of the written waiver at the plea proceeding. See generally Docket
Item 10-3 at 36-59.
The court then accepted Johnson’s guilty plea and appeal waiver. See id.
Before sentencing, however, Johnson—now represented by counsel—moved to
withdraw his guilty plea. See Docket Item 10-2 at 220-38. On January 17, 2014, the
court denied that motion and sentenced Johnson to the top of the sentencing range
contemplated in the plea agreement—eighteen years of imprisonment and twenty-five
years of post-release supervision. 5 Docket Item 19 at 17.

“Standby” is included as a handwritten addition before “attorney” on the waiver
form. Docket Item 10-2 at 219.
4

The trial court also ordered restitution, issued an order of protection, and
imposed various fees. Docket Item 19 at 17.
5

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Johnson appealed his conviction to the New York State Supreme Court,
Appellate Division, Fourth Department, arguing that he did not knowingly, intelligently,
and voluntarily waive his right to appeal and that the Appellate Division therefore should
disregard his appeal waiver and review whether his sentence was unduly harsh and
excessive. See Docket Item 10-2 at 1-19. The Appellate Division affirmed Johnson’s
conviction on April 29, 2016, finding that Johnson could not pursue his sentencingrelated challenge on appeal because he had “knowingly, intelligently[,] and voluntarily
waived his right to appeal.” People v. Johnson, 138 A.D.3d 1413, 1413 (4th Dep’t
2016). The New York State Court of Appeals denied leave to appeal on July 13, 2016.
People v. Johnson, 27 N.Y.3d 1152, 62 N.E.3d 126 (2016).
DISCUSSION
Judge Schroeder recommended denying Johnson’s petition because he
concluded that Johnson’s appellate-waiver claims are “rooted in state law” and therefore
are not cognizable on federal habeas review. See Docket Item 20 at 9. “In New York[,]
the right to an initial appeal is provided by statute.” People v. Seaberg, 74 N.Y.2d 1, 7,
541 N.E.2d 1022, 1024 (1989). “[I]n People v. Seaberg,” the New York State Court of
Appeals held that “defendants may validly waive their right to appeal, provided the
‘[waiver] is fair, free from oppressiveness, and sensitive to the interests of both the
accused and the People.’” People v. Thomas, 34 N.Y.3d 545, 557, 144 N.E.3d 970,
976 (2019). That is, “[a] waiver of the right to appeal is effective” under New York law
“[if] the record demonstrates that it was made knowingly, intelligently and voluntarily.”
People v. Lopez, 6 N.Y.3d 248, 256, 844 N.E.2d 1145, 1149 (2006).

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In his objection, Johnson maintains that “under New York law[, his] appeal
[waiver] was not knowing and voluntary.” Docket Item 26 at 4. But as Judge Schroeder
noted, “federal habeas relief is not available to redress [] errors of state law.” Docket
Item 20 at 9. In fact, under 28 U.S.C. § 2254(d), a federal court “shall not” grant a state
prisoner’s habeas petition based on a claim adjudicated on the merits in state court
“unless the adjudication of the claim[]” resulted in a decision that “was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law, as determined
by the Supreme Court of the United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). So “[i]n conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not
the province of a federal habeas court to reexamine state-court determinations on statelaw questions.”).
Whether Johnson’s appellate-waiver claims are cognizable on federal habeas
review therefore depends not on whether his appeal waiver was valid under state law,
but whether the Appellate Division’s decision to enforce that waiver “was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law, as determined
by the Supreme Court of the United States.” 6 28 U.S.C. § 2254(d)(1). Johnson argues

A state court’s decision is “contrary to” clearly established federal law if “the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law” or if the state court decides a case with facts “materially
indistinguishable from a relevant Supreme Court precedent” and reaches the opposite
result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court’s decision is an
“unreasonable application” of clearly established federal law when the state court
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that the Appellate Division’s decision “was . . . ‘contrary to’ established federal law”
because it “den[ied] [him] his fundamental right to an appellate proceeding regardless of
whether he signed an overbroad waiver.” Docket Item 26 at 4 (alterations and internal
quotation marks omitted). In support of his argument, Johnson quotes and relies on the
Supreme Court’s decision in Garza v. Idaho, 139 S. Ct. 738 (2019). See id.
In Garza, the Supreme Court addressed a Sixth Amendment ineffective
assistance of counsel claim based on an attorney’s failure to appeal a conviction.
There, the defendant told his attorney to appeal his conviction after he pleaded guilty,
but his attorney did not file a notice of appeal because of the appeal-waiver provisions
in the plea agreements. Garza, 139 S. Ct. at 742-43. After the state courts denied
relief on Garza’s ineffective assistance claim, the Supreme Court reversed and held that
“prejudice is presumed ‘when counsel’s constitutionally deficient performance deprives
a defendant of an appeal that he otherwise would have taken’” even when “the
defendant has signed an appeal waiver.” Id. at 744 (quoting Roe v. Flores-Ortega, 528
U.S. 470, 484 (2000)).
Garza is inapposite here: Johnson did not raise an ineffective assistance of
counsel claim on direct appeal and he does not raise one in his petition before this
Court. Indeed, because Johnson appealed his conviction despite his waiver, Garza
says nothing about the issue here. So Garza does not offer any “clearly established
[f]ederal law” to support Johnson’s petition. 7 See 28 U.S.C. § 2254(d)(1). And absent
identifies the correct legal principle “but unreasonably applies that principle to the facts
of the [] case.” Id. at 413.
While Johnson cites several circuit court cases interpreting the enforceability of
appeal waivers entered into by defendants in federal cases, see, e.g., Docket Item 21 at
3-5, he has not pointed to any clearly established federal law under 28 U.S.C. §
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that clearly established federal law, Johnson’s state law challenges to his appellate
waiver do not provide a basis for habeas relief. See Nicholas v. Smith, 2007 WL
1213417, at *11 (E.D.N.Y. Apr. 24, 2007) (“[W]hile petitioner’s argument that the appeal
waiver was invalid may have some basis in New York law, petitioner has not
demonstrated that the enforcement of the waiver denied him [] any rights under the
federal Constitution.”).
Johnson may well be correct that his appeal waiver was invalid under New York
law. Three years after Johnson’s conviction became final, the New York State Court of
Appeals reversed two Appellate Division decisions enforcing appeal waivers and waiver
forms that appear to be the same as Johnson’s. See Thomas, 34 N.Y.3d at 565-66,
144 N.E.3d at 983-84 (finding waivers of appellate rights to be invalid where the trial
court “mischaracteriz[ed] [the] appellate rights waived as encompassing not only an
absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel
and poor person relief, but also all postconviction relief separate from the direct appeal”
and “the written waivers,” which the “court failed to confirm that [the defendants]
understood,” “repeated many of the errors in [the court’s] colloquies”). Johnson
therefore may be able to revive his challenge to his appeal waiver and his sentence in
the New York State courts. See id. at 585, 144 N.E.3d at 998 (Garcia, J., concurring in
part and dissenting in part) (noting that Thomas may apply to cases “that have already

2254(d)(1) that would invalidate his appeal waiver in a state court case. And because
“the right to appeal in a criminal case is not of constitutional magnitude,” see United
States v. Teeter, 257 F.3d 14, 21-22 (1st Cir. 2001), Johnson’s claims all implicate New
York law.
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become final”). But for all reasons just stated and those in the R&R, Johnson cannot
pursue those state law claims on federal habeas review.
CONCLUSION
For the reasons stated above and in the R&R, Johnson’s application for a writ of
habeas corpus, Docket Item 1, is DENIED, and the petition is DISMISSED. The Clerk
of the Court shall close the case.
The Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore denies leave to appeal as a poor
person. Coppedge v. United States, 369 U.S. 438 (1962). The Court also certifies
under 28 U.S.C. § 2253(c)(2) that because the issues raised here are not the type of
issues that a court could resolve in a different manner, and because these issues are
not debatable among jurists of reason, the petitioner has failed to make a substantial
showing of the denial of a constitutional right. Accordingly, the Court denies a certificate
of appealability.
Johnson 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 judgment in
this action. Requests to proceed on appeal as a poor person 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.

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SO ORDERED.
Dated:

May 9, 2022
Buffalo, New York

LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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