Monroe v. Rock

Filing 14

DECISION AND ORDER granting in part and denying in part 11 Motion to Appoint Counsel. For the reasons stated in this Decision and Order, Tyrone Monroes motion to vacate (Dkt #11) is granted to the extent that the petition (Dkt #1) is re-instated. Monroes request for a writ of habeas corpus is denied on the merits, and the petition (Dkt #1) is dismissed. The motion to appoint counsel (Dkt #11) is denied as moot. Because Monroe has failed to make a substantial showing of the denial of a consti tutional right, see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. Signed by Hon. Michael A. Telesca on 3/29/17. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TYRONE MONROE,
Petitioner,
No. 6:09-cv-06366(MAT)
DECISION AND ORDER

-vDAVID ROCK,
Respondent.

I.

Introduction
Presently

before the

Court

is

the

motion to

vacate

the

judgment and to appoint counsel by pro se habeas petitioner Tyrone
Monroe

(“Monroe”

or

“Petitioner”).

For

the

reasons

discussed

herein, the motion to vacate is granted, the petition is reinstated, and the request for a writ of habeas corpus is denied on
the merits. The motion to appoint counsel is denied as moot.
II.

The Motion to Vacate and to Appoint Counsel
On July 15, 2009, while represented by retained counsel

(“Habeas Counsel”), Petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In a Decision and Order
entered May 10, 2011, this Court found that Habeas Counsel filed
the instant petition after the one-year limitations period under
28 U.S.C. § 2244(d)(1) had expired on October 4, 2008. The Court
further found that Petitioner did not have sufficient statutory
tolling under 28 U.S.C. § 2244(d)(2), and that he was not entitled
to have the limitations period equitably tolled. Accordingly, the

Court dismissed the petition as untimely, and judgment was entered
in Respondent’s favor on May 11, 2011. Petitioner did not appeal to
the Second Circuit, due to the fact that he apparently was not
timely informed by Habeas Counsel of this Court’s dismissal of the
petition.
Petitioner, acting pro se, has filed a letter seeking to “get
back [into Court] to be able to have [his] petition heard” and to
be “appointed an attorney to help [him] get back in court[.]”
(Dkt #10, p. 1 of 2). The Court has construed this letter as a
motion to appoint counsel and a motion to vacate the judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure
(“Rule 60(b)”). Petitioner has submitted copies of correspondence
(Dkt #11,

pp.

4-5

of 18)

from

the

Departmental

Disciplinary

Committee for the Supreme Court, Appellate Division, First Judicial
Department (“the Disciplinary Committee”) dated March 1, 2016, in
response to his complaint against Habeas Counsel, who, at the time
she represented Petitioner, had offices in New York City. Following
its investigation, the Disciplinary Committee found that Habeas
Counsel violated New York Rules of Professional Conduct (“NY RPC”)
1.4(a)(iii)

and

1.16(3)

by

(1)

failing

to

promptly

inform

Petitioner that his habeas corpus petition had been dismissed as
time-barred and, (2) even after he filed a complaint against her
and requested a copy of the decision, failing to send him one. The
Disciplinary Committee stated that Habeas Counsel had no records to

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support her contention that she had promptly notified Petitioner by
mail, and his grandmother by telephone call, that the petition had
been dismissed in May of 2011. As a consequence of these failures,
Habeas Counsel received an “admonition” from the Disciplinary
Committee.
In addressing the arguments raised now by Petitioner, the
Court is mindful that “the submissions of a pro se litigant must be
construed

liberally

and

interpreted

‘to

raise

the

strongest

arguments that they suggest.’” The Court accordingly interprets
Petitioner’s motion as arguing that he is entitled to vacatur due
to Habeas Counsel’s professional failures, based on Rule 60(b)(6),
which permits relief from judgment “where there are extraordinary
circumstances, or where the judgment may work an extreme and undue
hardship,

and

should

be

liberally

construed

when

substantial

justice will thus be served.” United Airlines, Inc. v. Brien, 588
F.3d 158,

176

(2d

Cir. 2009) (quotation omitted).

The

Court

additionally construes Petitioner’s motion as arguing that Habeas
Counsel’s

professional

failures

constitute

“extraordinary

circumstances” warranting equitable tolling of the one-year statute
of limitations applicable to Section 2254 petitions, so as to
render the petition timely. See, e.g., Dillon v. Conway, 642 F.3d
358, 363 (2d Cir. 2011) (“Instances which justify equitable tolling
include . . . an attorney’s failure to file a habeas petition on
behalf of a prisoner, despite explicit directions from the prisoner

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to do so[.]”) (internal and other citations omitted). In the
interest

of

judicial

economy,

the

Court

has

assumed

without

deciding that vacatur of the judgment is warranted, and that the
statute of limitations should be equitably tolled, in order to
reach the merits of the sole ground for relief raised in the
petition—that

Petitioner’s

assigned

trial

counsel

provided

ineffective assistance in connection with plea discussions. Because
Respondent fully briefed the merits of Petitioner’s habeas claim
when he originally answered the petition and asserted the defense
of untimeliness, the petition may be deemed submitted and ready for
decision.
Because the Court is granting Petitioner’s motion to vacate,
and re-opening his Section 2254 proceeding, Petitioner does not
require the assistance of counsel to “help [him] get back in
court[.]” Therefore, Petitioner’s motion to appoint counsel is
denied.
For

the

reasons

discussed

below,

the

Court

finds

that

Petitioner is not entitled to habeas relief. The request for a writ
of habeas corpus is denied, and the petition is dismissed.
III. Factual Background
A. The Indictments
There are three indictments returned by Monroe County grand
juries against Petitioner that have relevance to the factual
background of the instant petition. First, Indictment #2003/663

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charged Petitioner with Assault in the First Degree, Assault in the
Second Degree, and two counts of Criminal Possession of a Weapon in
the Second Degree, which allegedly were committed on July 22, 2003,
and

August

15,

2003,

and

involved

the

same

victim,

Derrick

Thompson. Second, Indictment #2003/641 charged Petitioner with two
counts of

Robbery

in

the

First

Degree,

which

allegedly

were

committed on September 26, 2003, and September 27, 2003; these
charges were unrelated to the charges involving Thompson. A third
indictment, #2004/118, charged Petitioner with Criminal Possession
of a Controlled Substance in the Third Degree (“CPCS-3rd”), and
Criminal Possession of a Controlled Substance in the Fourth Degree
(“CPCS-4th”); both counts were alleged to have been committed on
October 1, 2003.
On December 22, 2003, arraignment on Indictment #2003/641 and
Indictment #2003/663 was held before Hon. John R. Schwartz, Acting
County

Court

(Transcript

Judge,

of

Monroe

12/22/03

County

Hearing,

Court

Dkt

of

#1-2,

New
pp.

York
2-5

of

State
84).

Petitioner appeared with his assigned counsel, Mark D. Funk, Esq.
(“Defense Counsel”) and entered pleas of “not guilty” to all counts
of both indictments.
On March 1, 2004, Petitioner appeared with Defense Counsel
before Judge Schwartz (Transcript of 3/1/04 Hearing, Dkt #1-2,
pp. 7-12 of 84) and entered pleas of “not guilty” to the charges in
Indictment #2004/118. Also on that date, Defense Counsel placed on

-5-

the record the status of the off-the-record plea discussions
between

himself,

Assistant

District

Attorney

Finocchio

(“the

Prosecutor”), and Judge Schwartz with regard to the charges in
Indictment #2003/663. Defense Counsel noted that at the last court
appearance, Judge Schwartz said that if Petitioner were to plead
guilty with regard to Indictment #2003/663, the judge would make a
sentence promise of 20 years to life.1 Defense Counsel stated that
he had discussed the plea offer with Petitioner, as well as the
fact that with the filing of Indictment #2004/118, Petitioner now
had five separate felony charges pending against him which carried
potential indeterminate sentences with life in prison as the
maximum term, and for which consecutive sentences could be imposed.
Defense Counsel indicated that Petitioner did not wish to accept
that plea offer.
At some point, Indictment #2003/663 was re-assigned to Monroe
County Court Judge Patricia D. Marks, for trial. After a jury
trial, Petitioner was convicted of Assault in the First Degree and
two counts of CPW-2nd as charged in Indictment #2003/663.2
On May 14, 2004, the parties appeared before Judge Schwartz
(Transcript of 5/14/04 Hearing, Dkt #1-2, pp. 14-24 of 84), and the

1

At this point, all of the parties assumed, incorrectly, that Petitioner was
a persistent violent felony offender under P.L. § 70.08.
2

This conviction was affirmed on direct appeal, People v. Monroe, 39 A.D.3d
1279 (4th Dep’t), lv. denied, 9 N.Y.3d 867 (2007), and is not at issue in the
present habeas proceeding.
-6-

Prosecutor stated that Petitioner would be entering a guilty plea
to count two of Indictment #2003/641, i.e., Petitioner “would be
pleading to robbery first under count two to satisfy robbery first
degree under count one” of Indictment #2003/641. In addition, the
Prosecutor

noted,

the

plea would

be in

Indictment #2004/118 charging CPCS-3rd
sentence,

Judge

Schwartz

had

agreed

full

satisfaction

of

and CPCS-4th. As to the
to

impose

a

determinate

sentence in the range of 10 to 20 years, which automatically would
include a 5-year term of post-release supervision. In addition,
Judge Schwartz had agreed that any sentence he imposed would run
concurrently to, and not be greater than, the sentence Petitioner
received from Judge Marks for his convictions under Indictment
#2003/663. Defense Counsel then stated that up until the prior
evening, he and the Prosecutor believed that if Petitioner were
convicted on the first-degree assault charges under Indictment
#2003/663, he would be considered a mandatory persistent violent
felony offender under P.L. § 70.10. However, after doing some
research, Defense Counsel concluded that Petitioner “did not fit
into that sentencing category,” although he was eligible to be
found by Judge Marks to be a discretionary persistent felony
offender under P.L. § 70.10; in that case, he could receive an
indeterminate sentence with a minimum ranging from 15 to 25 years,
and a maximum term of life in prison. If, however, Judge Marks did
not

adjudicate

him

to

be

a

discretionary

-7-

persistent

felony

offender, he would be considered a second violent felony offender;
in that case, he faced a determinate sentence in the range of 10 to
40

years,

supervision.
Petitioner

plus

a

mandatory

Under

further

indicated

his

5-year

period

questioning
understanding

by

of

post-release

Judge

of

the

Schwartz,
sentencing

possibilities, and then proceeded to plead guilty to one count of
first-degree robbery (P.L. § 160.15(4)) as alleged in count two of
Indictment #2003/641.
On

May

20,

2004,

prior

to

Petitioner’s

sentencing

on

Indictment #2003/663, the Prosecutor filed an application for a
persistent felony offender (“PFO”) hearing pursuant to P.L. § 70.10
and New York Criminal Procedure Law (“C.P.L.”) § 400.20 (PFO
Application, Dkt #1-2, pp. 26-29 of 84). On May 21, 2004, the
parties appeared before Judge Marks for sentencing on Indictment
#2003/663 (Transcript of 5/21/04 Sentencing, Dkt #1-2, pp. 43-53 of
84). Judge Marks acknowledged receipt of the PFO Application, and
stated that “[i]n light of the fact that this involves two separate
incidents and a potential sentence of up to a maximum of forty
years,

the

need

for

[p]ersistent

[f]elony

treatment

is

not

necessary[,] though [Petitioner] otherwise qualifies.”3 (Dkt #1-2,

3

When the state court has found, pursuant to C.P.L. § 400.21, that a person
is a persistent felony offender, and when the court is of the opinion that the
defendant’s history and character, and the nature and circumstances of his
criminal conduct, indicate that extended incarceration and life-time supervision
will best serve the public interest, the court, in lieu of imposing the sentence
of imprisonment authorized by P.L. §§ 70.00, 70.02, 70.04, 70.06 or 70.80(5) for
the crime of which such person presently stands convicted, may impose the
sentence of imprisonment authorized by that section for a class A-I felony. N.Y.
PENAL LAW § 70.10(2).
-8-

p. 45 of 84). The Prosecutor then submitted a second violent felony
offender4 information to Judge Marks, alleging, as the necessary
predicate violent felony conviction, Petitioner’s March 28, 1996
convictions on charges of Assault in the Second Degree and Robbery
in

the

Second

Degree.

The

Prosecutor

requested

consecutive,

determinate sentence of 15 years and 25 years on the first-degree
assault

convictions

involving

the

July

22nd

and

August

15th

incidents, respectively, with a concurrent 15-year term on the CPW2nd

conviction,

for

an

aggregate

sentence

of

40

years’

imprisonment, plus 5 years of post-release supervision. Defense
Counsel requested the minimum sentences of 7 and 15 years on the
first-degree assault convictions involving the July 22nd and August
15th incidents, respectively. Judge Marks sentenced Petitioner to
concurrent, 7-year sentences on the first-degree assault and CPW2nd convictions involving the July 22nd incident; and concurrent
sentences of 25 years on the first-degree assault conviction
involving the August 15th incident, and 15 years on the CPW-2nd
conviction involving the August 15th incident, plus 5 years of postrelease supervision on all of the sentences. Judge Marks directed
that the sentences pertaining to the August 15th incident were to
be served consecutively to those pertaining

to the July 22nd

4

A second violent felony offender is a person who stands convicted of a
violent felony offense as defined in P.L. § 70.02(1) after having previously
been subjected to a predicate violent felony conviction as defined in P.L.
§ 70.04(1)(b). See N.Y. PENAL LAW § 70.04(1)(a).
-9-

incident, for an aggregate sentence of 22 years plus 5 years of
post-release supervision. (Dkt #1-2, pp. 52 of 84).
On June 21, 2004, the parties appeared before Judge Schwartz
for sentencing on Indictment #2003/641 (Transcript of 6/21/04
Sentencing, Dkt #1-2, pp. 31-41 of 84). Petitioner was sentenced to
the

previously

agreed-upon

15-year

determinate

sentence

plus

5 years of post-release supervision, to run concurrently to the
sentence imposed by Judge Marks.
B.

The C.P.L. § 440.10 Motion to Vacate

Petitioner filed a pro se motion to vacate the judgment
pursuant to C.P.L. § 440.10 in Monroe County Court, asserting that
he was denied the effective assistance of counsel because Defense
Counsel, during

pre-plea

discussions

on

Indictment

#2003/663,

erroneously informed him that he was a “mandatory persistent
violent felony offender” and, as a consequence, was eligible to
receive a potential term of life in prison. Petitioner contends
that as a result of this erroneous belief, Defense Counsel failed
to counsel him properly as to his options, and also failed to
correct the Prosecutor, who shared the same mistaken belief about
Petitioner’s

recidivist

status.

Although

Defense

Counsel

subsequently realized his error, it was not until after Petitioner
proceeded to trial on Indictment #2003/663 and was convicted. The
Monroe County District Attorney’s Office, in support of their
opposition to the motion, submitted an Answering Affirmation signed
by the Prosecutor.
-10-

The C.P.L. § 440.10 motion was heard by Judge Marks (“the 440
Court”). In a written decision and order dated February 8, 2008
(C.P.L. § 440.10 Order, Dkt #1-2, pp. 60-66 of 84), the 440 Court
denied the motion without a hearing. As an initial matter, the 440
Court

agreed

that

Defense

Counsel’s

“misapprehension

[about

Petitioner’s recidivist status], as a matter of law, falls below
the requirements of reasonably effective assistance of counsel and,
therefore,

the

first

prong

of

the

Strickland

standard

is

satisfied[.]” (Dkt #1-2, p. 64 of 84 (citations omitted)). However,
the 440 Court determined, that Petitioner could not demonstrate
prejudice attributable to Defense Counsel’s deficient performance.
(Id.). The Appellate Division, Fourth Department, of New York State
Supreme Court denied Petitioner’s request for leave to appeal.
In

February

2009,

Petitioner

retained

Habeas

Counsel

to

prepare his petition, which asserts the ineffective assistance
claim raised in the C.P.L. § 440.10 Motion. There is no dispute
that this claim is fully exhausted, having been fairly presented to
the

state

courts

in

federal

constitutional

terms

during

one

complete round of New York’s established review process. See, e.g.,
Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005).
IV.

Discussion
Because Monroe’s petition post-dates the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
which amended 28 U.S.C. § 2254, he can obtain a writ of habeas
corpus

only

if

he

can

demonstrate
-11-

that

the

state

court’s

adjudication on the merits of his ineffective assistance claim
“(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 proceeding.” 28 U.S.C. § 2254(d); see also, e.g.,
Harrington v. Richter, 562 U.S. 86, 98 (2011) (“By its terms
§ 2254(d) bars relitigation of any claim ‘adjudicated on the
merits’

in

state

court,

subject

only

to

the

exceptions

in

§§ 2254(d)(1) and (2).”).
The United States Supreme Court has determined that Strickland
v. Washington, supra, qualified as “clearly established law” for
purposes of reviewing ineffective assistance claims under AEDPA.
Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citing
Williams v. Taylor, 529 U.S. 362, 390-91 (2000)). The Strickland
test comprises two necessary components: a deficient performance,
and resulting prejudice. Strickland, 466 U.S. at 687. Here, the 440
Court explicitly applied the Strickland standard. Therefore, this
Court

must

determine

if

the

440

Court

unreasonably

applied

Strickland to Petitioner’s case. See Harrington, 562 U.S. at 101
(“The pivotal question is whether the state court’s application of
the Strickland standard was unreasonable. This is different from
asking

whether

Strickland’s

defense

standard.”).

counsel’s
In

performance

Harrington,
-12-

the

fell

below

Supreme

Court

emphasized the extremely high bar set by Strickland in conjunction
with § 2254(d):
The standards created by Strickland and § 2254(d) are
both “highly deferential,” and when the two apply in
tandem, review is “doubly” so[.] The Strickland standard
is a general one, so the range of reasonable applications
is substantial. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.
Harrington, 562 U.S. at 105 (internal quotations and citations
omitted; emphasis supplied).
The 440 Court found that Petitioner had shown that Defense
Counsel’s performance was deficient under Strickland, but that
Petitioner had not established he was prejudiced thereby. This
Court’s analysis therefore will focus solely on whether the 440
Court

unreasonably

applied

Strickland’s

prejudice

prong

to

Petitioner’s case.
A defendant shows prejudice under Strickland by proving that
“‘there

is

a

reasonable

probability

that,

but

for

counsel’s

unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Williams, 529 U.S. at 390-91
(quoting Strickland, 466 U.S. at 694). Here, the 440 Court stated
that to establish prejudice in the context of the ineffective
assistance claim asserted by Petitioner, he needed to show that the
prosecution (1) “would have offered a more favorable plea deal if
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they had

known

the

correct

sentencing

status,”

and

(2) that

Petitioner would have accepted such offer and pled guilty. (Dkt #12, p. 64 of 84).
The Court will consider the second element first—whether he
would have accepted a more advantageous bargain had one been
argued, demonstrating a “reasonable probability” that “but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir.
2000) (quotation omitted). In Mask, which the 440 Court cited, the
defendant’s

attorney

erroneously

advised

him

that

he

was

a

persistent violent felony offender and that the prosecution’s offer
of 10 years to life was the best offer the State could make. Mask
rejected the offer and, after being convicted, was sentenced to 20
to 40 years in prison. After his conviction, it was revealed that
Mask was not in fact a persistent violent felon and that therefore
he would have been eligible for a lower plea offer. In support of
his habeas petition, the defendant submitted an equivocal affidavit
stating he would have “been willing to consider pleading guilty if
the prosecution had offered a guilty plea of less than 10 years to
life.

I

rejected

the

10

to

life

plea

offer

because

it

was

unreasonable. . . . A plea offer that I would have considered to be
reasonable would have been 8 to 16 years.” Mask, 233 F.3d at 141.
In Mask, the state court found that the “‘[d]efendant has not shown
that but for the error, which was shared by all parties including
the [c]ourt, he would have been offered and would have accepted a
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more advantageous bargain,’ and that Mask’s contentions thus amount
to ‘speculation.’” Id. at 140 (quotation to record omitted). The
Second

Circuit

found

that

“the

state

court’s

insistence

on

certainty (an even higher standard than preponderance of the
evidence) represents an ‘unreasonable application of[ ] clearly
established Federal law,’ 28 U.S.C. § 2254(d)(1), in light of the
requirement that a petitioner need only show that but for counsel’s
errors there was a ‘reasonable probability’ that the result of the
plea bargaining process would have been different.” Id. (brackets
in original).
Here, Monroe is significantly more vague than the petitioner
in Mask. In his unsworn memorandum of law in support of his C.P.L.
§ 440.10 motion, he states merely that “it was reasonably probable
that [he] would have a accepted a plea bargain and not proceeded to
trial[,]” (C.P.L. § 440.10 Brief, Dkt #1, p. 37 of 59), but he does
not

indicate

what

sentence

would

resulted

in

a

“reasonable

probability” of acceptance on his part. In his reply to the
Prosecutor’s affidavit, Petitioner states that if his correct
status had been known, “any plea offers would have had to be less
than ending with life” (Dkt #1-2, p. 56 of 84), but does not give
any indication of what length of determinate sentence he deemed to
be reasonable. This distinguishes the present case from Mask, in
which the petitioner stated that he rejected the offered plea
because it was unreasonable, and affirmatively stated that he
viewed a plea of 8 to 16 years as reasonable; according to the
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Second Circuit, this “render[ed] it highly probable that he would
have accepted” a plea offer of 8 to 16 years. Mask, 233 F.3d at
141.
This brings the Court to another point of distinction between
the present case and Mask. There, the Second Circuit “disagree[d]
that the state court made any factual determination concerning
th[e] issue [of whether the prosecutor would have made a better
offer had she believed that she was permitted to do so] that the
district court was obligated to defer to.” Mask, 233 F.3d at 142
(noting that “[t]he state court simply stated that it had ‘serious
doubts’ as to whether the prosecutor would have made a better
offer”). Here, after noting that “it appears [Monroe] might have
accepted a plea offer with a determinate sentence,” the 440 Court
stated that “this is unclear from [his] papers and it is apparent
no such offer would have been made by the [Prosecutor].” (Dkt #1-2,
p. 65 of 84) (emphasis supplied). This constitutes a factual
finding to which this Court must defer under AEDPA:
In a proceeding instituted by an application for a writ
of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1). As discussed further below, Petitioner has
not borne the burden of rebutting the presumption of correctness by
clear and convincing evidence.

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The 440 Court found that Petitioner did not present any
evidence that the Prosecutor would have offered a more favorable
plea deal had the Prosecutor been aware that Petitioner was not
eligible for “persistent violent felony offender status;” rather,
the 440 Court explained, Petitioner simply relied on his own
assertion that the Prosecutor would have offered a determinate
sentence. The 440 Court rejected this as unconvincing based upon
the affidavit from the Prosecutor, in which she stated in part as
follows:
While defendant would ask th[e] [440] [c]ourt to believe
that had [she] known his sentencing status was that of
predicate [sic] violent felony offender during plea
negotiations [she] would have offered a plea to a reduced
Class C felony conditioned on the minimum sentences, his
claim is simply unsupported by the record. Defendant had
a criminal history dating back to the age of 17 . . . .
From the time [she] reviewed the charged offenses and
evaluated his criminal history [she] never wavered from
my position that [he] should receive an extended period
of incarceration with lifetime supervision. Given
defendant’s record and his numerous pending felony
charges, at no time would [she] have made an offer to
defendant which would have involved less than a life
sentence, whether as a persistent violent felony offender
or a persistent felony offender.
Answering Affirmation of Julie Finocchio, Esq. (“Prosecutor Aff.”),
¶ 29; see also id. ¶ 28 (Dkt #1, pp. 50-59 of 59). The 440 Court
accepted the Prosecutor’s representation that “had she known that
the defendant was not eligible to be sentenced as a persistent
violent felony offender, her plea offer would have still included
a life sentence for the defendant as a persistent felony offender

-17-

based upon the defendant’s extensive record.” (Dkt #1-2, p. 64 of
84).
Habeas Counsel argues that the assumptions by the Prosecutor
and the 440 Court are factually and legally incorrect because the
Prosecutor could not have offered a sentence containing a life term
based on Petitioner’s recidivist status at that point in time. This
analysis

must

impossibility

be
of

broken
having

down

into

Petitioner

two

parts.

sentenced

as

As
a

to

the

persistent

violent felony offender under P.L. § 70.08, Petitioner is correct.
During the plea discussions at issue, Petitioner stood convicted of
the following felonies: second-degree assault, a violent felony, on
March 28, 1996; second-degree robbery, also a violent felony, and
also on March 28, 1996; and fifth-degree criminal sale of a
controlled substance, a non-violent felony, on April 2, 1992.
Contrary to all the parties’ assumptions at that time, Petitioner
was not eligible for treatment as a persistent violent felony
offender under P.L. § 70.08 (sometimes referred to as New York’s
“mandatory” recidivist statute). To be a persistent violent felony
offender, a defendant must stand convicted of a violent felony
offense “after having previously been subjected to two or more
predicate

violent

felony

convictions

as

defined

in

[P.L.

§ 70.04(1)(b)].” N.Y. PENAL LAW § 70.08(1)(a) (emphases supplied).
Here, although Petitioner, numerically speaking, had two predicate
violent felony convictions (second-degree assault and second-degree
robbery), as Habeas Counsel argued, they did not count as two
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predicate

violent

felonies

because

“judgment

convicting

[P]etitioner of the two prior violent felony offenses was entered
the same day,” and “the law treats them as a single offense.”
(Dkt #1, p. 21 of 59). Although Habeas Counsel’s statement is not
supported by any case citations, she is correct that the New York
Court

of

Appeals

has

held

that

P.L.

§

70.08(1)(b)

must

be

interpreted as containing a “sequentiality” requirement—that is,
the

second

predicate

violent

felony

offense

must

have

been

committed after sentence was imposed on the first. People v. Morse,
62 N.Y.2d 205, 219, 223-24 (1984); see also, e.g., People v.
Corselli, 512 N.Y.S.2d 478, 479 (2d Dep’t 1987) (relying on Morse,
supra, to find that “the sentencing court erred in adjudicating the
appellant

to

be

a

persistent

violent

felony

offender.

The

defendant’s prior violent felony convictions were rendered on
October 3, 1977. On those prior felony convictions, the defendant
received

concurrent

sentences.

Thus,

the

defendant’s

prior

convictions do not constitute two or more predicate convictions
since the proposed second predicate offense was not committed after
sentence

was

imposed

upon

the

first

predicate

offense[.]”).

(internal and other citation omitted). Therefore, the Court agrees
with Habeas Counsel that Petitioner was not a persistent violent
felony offender under P.L. § 70.08, and the Prosecutor could not
have offered a plea deal containing a request to have him sentenced
as such.

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However, at the time of the plea discussions, Petitioner did
satisfy the eligibility requirements for the persistent felony
offender

statute,

“discretionary”

P.L.

§

70.10

recidivist

(New

statute).

York’s

See

so-called

N.Y.

PENAL

LAW

§ 70.10(1)(a), (b)(i), (b)(ii), (b)(iv). That is, he had been
“convicted of two . . . felonies” for which “a sentence to a term
of imprisonment in excess of one year . . . [had been] imposed,”
N.Y. PENAL LAW § 70.10(1)(a), (b)(i). While the March 28, 1996
convictions still would only qualify as one predicate felony
conviction,

see

id.

§

70.10(b)(iv),

Petitioner

also

had

the

April 2, 1992 conviction for CSCS-5th, a non-violent felony, for
which he received a sentence “in excess of one year,” namely, an
indeterminate term of 1 to 3 years in prison. (Dkt #1-2, p. 27 of
84). While P.L. § 70.08 allows imposition of a life-term based
solely on the court’s finding of the requisite number of qualifying
predicate felonies, P.L. § 70.10 requires an additional step not
required by P.L. § 70.08—hence, why it is referred to as the
“discretionary” persistent felon statute. Thus, the 440 Court’s and
the Prosecutor’s statements to the effect that any plea offer would
have still included a life sentence for Petitioner as a persistent
felony

offender

based

upon

his

extensive

criminal

record

is

somewhat unclear, as it fails to clarify that an additional step
would have needed to occur: The Prosecutor would have had to
request

the

sentencing

court

to

find

“that

the

history

and

character of [Petitioner] and the nature and circumstances of his
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criminal conduct indicate that extended incarceration and life-time
supervision will best serve the public interest[,]” N.Y. PENAL LAW
§ 70.10(2). Thus, while any plea offered by the Prosecutor could
not have outright included a life term, the Prosecutor could have,
following

the plea,

moved

to

have

Petitioner sentenced

as

a

persistent felony offender. Assuming that the sentencing court
agreed with the Prosecutor that extended incarceration and lifetime
supervision of Petitioner, given his extremely length criminal
history, would best serve the public interest, see N.Y. PENAL LAW
§ 70.10(2). he still would have faced a life sentence, see id.
Habeas Counsel concedes as much but takes issue with the 440
Court’s analysis, asserting there is no reason to expect Petitioner
would have accepted a plea “for a life sentence on the back end
when the power to sentence him [to life] was only discretionary,”
(Dkt #1, p. 22 of 59). That may be the case, but the Court here is
concerned with the question of whether the Prosecutor would have
offered a plea involving determinate sentence and foregone the
opportunity, after the plea, to seek persistent felony offender
treatment

and

a

concomitant

sentence

involving

lifetime

supervision. Based on the record before the Court, there is no
reasonable probability of that occurring.
Habeas Counsel also asserts that there was “little likelihood”
(Petition, Dkt # 1, p. 22 of 59) that, if the Prosecutor requested
persistent felony offender status, the sentencing judge would have
granted

it.

Habeas

Counsel

notes
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that

when

the

Prosecutor

subsequently did request it, Judge Marks declined to grant it.
However, as noted above, that denial was rather equivocal insofar
as Judge Marks stated that “[i]n light of the fact that this
involves two separate incidents and a potential sentence of up to
a maximum of forty years, the need for [p]ersistent [f]elony
treatment

is

not

necessary[,]

though

[Petitioner]

otherwise

qualifies.” (Dkt #1-2, p. 45 of 84) (emphasis supplied). This
statement, in this Court’s opinion, does not signal a “little
likelihood” (Dkt # 1, p. 22 of 59) of Judge Marks declining to
grant persistent felony offender status, if the case were in a
different procedural posture. Moreover, if Petitioner had pled
guilty, the plea most likely would have been taken by Judge
Schwartz, because the case was only transferred to Judge Marks
because Judge Schwartz was unavailable to try it. In any event,
Habeas Counsel’s argument obscures the focal point of the Court’s
§ 2254(d) analysis, which is whether the 440 Court was objectively
unreasonable in concluding that there was no reasonable probability
that the Prosecutor would have offered him a determinate sentence
without the potential for lifetime supervision. To answer this
question,

the

Court

first

must

“determine

what

arguments

or

theories supported or, as here, could have supported, the state
court’s decision[.]” Harrington v. Richter, 562 U.S. at 102. This
Court has discussed at length the 440 Court’s and the Prosecutor’s
explanations above. While several points required some additional
explication by this Court, it is well-established that AEDPA does
-22-

not even require that there be an opinion from the state court
explaining its reasoning. Harrington, 562 U.S. at 98 (collecting
cases).
Harrington instructs that the habeas court next “must ask
whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior
decision of

th[e]

[Supreme]

Court.”

Id.

at

102.

Harrington

represents the Supreme Court’s most recent, “and arguably more
stringent, interpretation of the statutory language[,]” Parson v.
People of the State of N.Y., No. 13CV5745 (WHP)(MHD), 2014 WL
11201527, at *5 (S.D.N.Y. Dec. 30, 2014), rep. and rec. adopted,
No. 13CV5745(WHP) (MHD), 2016 WL 1248962 (S.D.N.Y. Mar. 24, 2016).
Here, the Court is compelled to answer this question affirmatively.
Stated another way, based on the present record, the Court cannot
conclude

that

justification

the
that

440

Court’s

there

was

decision
an

error

was
well

“so

lacking

understood

in
and

comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. Therefore, habeas
relief cannot issue.
V. Conclusion
For the foregoing reasons, Tyrone Monroe’s motion to vacate
(Dkt #11) is granted to the extent that the petition (Dkt #1) is
re-instated. Monroe’s request for a writ of habeas corpus is denied
on the merits, and the petition (Dkt #1) is dismissed. The motion
to appoint counsel (Dkt #11) is denied as moot. Because Monroe has
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failed

to

make

constitutional

a

substantial

right,

see

28

showing
U.S.C.

§

of

the

denial

2253(c)(2),

the

of

a

Court

declines to issue a certificate of appealability.
SO ORDERED.
S/Michael A. Telesca
_____________________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 29, 2017
Rochester, New York

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