Munson v. Rock et al
Filing
14
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 6/23/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY MUNSON,
No. 09-CV-6655(MAT)
DECISION AND ORDER
Petitioner,
-vsDAVID ROCK,
Respondent.
I.
Introduction
Pro se petitioner Timothy Munson (“Munson” or “Petitioner”)
filed this Petition for a writ of habeas corpus challenging the
constitutionality of his conviction following a guilty plea to
first degree assault. Also pending is Munson’s motion to stay the
petition and motion to invoke discovery procedures (Docket No. 11).
For the reasons that follow, the petition is dismissed and the
motion to stay and motion for discovery are denied with prejudice.
II.
Factual Background and Procedural History
While on parole, Munson robbed Devon Crittendon at gunpoint
and also shot him during commission of the robbery. Petitioner was
convicted on March 15, 2005, after a guilty plea in Monroe County
Supreme Court of first degree assault in full satisfaction of the
indictment.
He
was
sentenced
as
a
second
felony
offender
to
fourteen years in state prison with five years of post-release
supervision.
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Before perfecting his direct appeal, Petitioner submitted a
pro se motion to vacate the judgment under New York Criminal
Procedure Law (“C.P.L.”) § 440.10 on the ground that his counsel
was allegedly ineffective in regard to sentencing advice. That
motion was summarily denied on October 19, 2006, and leave to
appeal was denied on July 24, 2007.
Represented by counsel, Petitioner subsequently perfected his
direct appeal. The Fourth Department unanimously affirmed the
conviction in a summary order on June 6, 2008. Leave to appeal was
denied on September 15, 2008.
III. Timeliness
Respondent argues that the Petition is untimely under 28
U.S.C. § 2244(d)(1) and that Munson is not entitled to equitable
tolling of the statute of limitations. The Court agrees with
Respondent that Petitioner’s conviction became final on December
14, 2008, and the limitations period expired one year from that
date.
Respondent argues that the Petition was filed on the date that
it was received by the Court, which was December 14, 2009. This
argument ignores the well-settled “prisoner mailbox rule”. In
Houston v. Lack, the United States Supreme Court held that a pro se
habeas petitioner's notice of appeal is deemed filed on the date of
its submission to prison authorities for mailing, as opposed to the
date of its receipt by the court clerk.
-2-
487 U.S. 166, 276 (1988).
The rule is premised on the fact that a pro se prisoner's mail must
go through the conduit of prison authorities whom he cannot control
and whose interests might be adverse to his. See Houston, 487 U.S.
at 271.
“Where it is unclear when a pro se state prisoner mailed his
or her habeas petition, the court assumes that the petition is
filed on the day it is signed and dated.” Porter v. Greiner, No.
00-6047, 2005 WL 3344828, at *7 (E.D.N.Y. Nov. 18, 2005)(citing
Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2d Cir. 2000) (“[W]e
treat the petitioner's petition as having been given to prison
officials for filing, and therefore having been filed, on the date
that appears on his petition . . . .”)).
The Court construes the
date Petitioner signed the Petition (November 30, 2009) as the
effective filing date. The Petition accordingly is timely.
III. Exhaustion and Procedural Default
Respondent
raises
procedural
default
Respondent
argues
the
with
that
defenses
regard
certain
of
non-exhaustion
Petitioner’s
claims,
habeas
although
and
claims.
technically
unexhausted, must be “deemed exhausted” and procedurally defaulted
due to the absence of further appellate review. See, e.g., Grey v.
Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Respondent argues that
other of Petitioner’s claims are unexcused procedural defaults
because
the
independent
C.P.L.
state
§
440.10
grounds
to
court
relied
dismiss
-3-
them.
upon
adequate
E.g.,
Coleman
and
v.
Thompson, 501 U.S. 722, 729-30, 749-50 (1991) (“This Court will not
review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment.”)
(citations
omitted);
accord,
e.g.,
Velasquez
v.
Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam) (“[F]ederal
habeas review is foreclosed when a state court has expressly relied
on a procedural default as an independent and adequate state
ground,
even
where
the
state
court
has
also
ruled
in
the
alternative on the merits of the federal claim.”).
Respondent argues, in the alternative, that Munson’s claims
are wholly without merit. The Court agrees. Because the claims are
easily denied on the merits, the Court has reviewed their substance
rather
than
addressing
default. See, e.g.,
the
affirmative
defense
of
procedural
Dunham v. Travis, 313 F.3d 724, 729-30 (2d
Cir. 2002) (“[H]urdling the procedural question to reach the merits
of a habeas petition” may be justified if the underlying issues
“were easily resolvable against the habeas petitioner, whereas the
procedural-bar issue involved complicated issues of state law.”)
(internal quotation marks and citation omitted).
IV.
Merits of the Petition
A.
Claims Pertaining to the Voluntariness of Petitioner’s
Guilty Plea
Petitioner challenges his conviction on the grounds that his
guilty plea was (1) unlawfully induced when he was forced to choose
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a charge to which he pled guilty and was not given an explanation
of the crime’s elements (Ground 1); (2) invalid because that crime
(first
degree
assault
under
New
York
Penal
Law
(“P.L.”)
§
120.10(4)) was not submitted to the Grand Jury (Grounds 2 and 3);
(3)
coerced
by
defense
counsel’s
erroneous
sentencing
advice
(Ground 2); and (4) tainted by the prosecutor’s alleged bad faith
in
belatedly
disclosing
incriminatory
audio-recordings
of
Petitioner, while incarcerated, attempting to intimidate a witness
(Ground 2).
1.
Involuntariness of the Guilty Plea
Petitioner contends that his guilty plea was coerced because
he was forced, at the last minute, to pick the charge to which he
would plead guilty. This is refuted by the transcript of the plea
proceeding, which shows that the decision was made with the advice
of counsel.
Although the prosecution offered a plea to first degree
robbery, defense counsel, after consulting with Munson, requested
that his client be allowed to plead guilty to first degree assault.
Trial counsel explained that Munson “would have a much better
colloquy to the third count than the first.”
The plea transcript also refutes Petitioner’s claim that he
did not understand the nature of the crime to which he was pleading
guilty. Munson confirmed in his plea allocution that he fully
understood the consequences of his decision to forego trial, that
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he had sufficient time to discuss the case with his attorney, and
that he understood the terms of the plea agreement. Petitioner then
admitted all of the necessary elements of first degree assault. A
district court on habeas review may rely on a petitioner's sworn
statements and hold him to them. See Blackledge v. Allison, 431
U.S. 63, 74 (1977) (“[T]he representations of the defendant, his
lawyer, and the prosecutor at . . . a [plea] hearing, as well as
any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity.
The subsequent presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal, as are contentions
that in the face of the record are wholly incredible.”) (citations
omitted).
2.
Failure of the Prosecution to Submit the Charge to
Which Petitioner Allocuted to the Grand Jury
Petitioner contends that his guilty plea to first degree
assault was invalid as a matter of law because he allegedly pled
guilty to a crime which was never submitted to the grand jury.
Petitioner also submits these factual allegations as a separate
basis for habeas relief.
Inasmuch as these claims relates to alleged defects in the
indictment and grand jury proceeding, they have been waived by
Munson’s knowing, voluntary, and intelligent guilty plea. Tollett
v. Henderson, 411 U.S. 258, 267 (1973) (finding that a defendant's
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properly counseled and entered plea of guilty admits all of the
elements of a formal criminal charge and waives a multitude of
federal constitutional rights); accord United States v. Coffin, 76
F.3d 494, 497 (2d Cir. 1996) (“A defendant who pleads guilty
unconditionally
while
represented
by
counsel
may
not
assert
independent claims relating to events occurring prior to the entry
of the guilty plea.”); Whitehead v. Senkowski, 943 F.2d 230, 233
(2d Cir. 1991) (“Generally a knowing and voluntary guilty plea
precludes federal habeas corpus review of claims relating to
constitutional rights at issue prior to the entry of the plea.”).
Accordingly, this claim does not present a basis for habeas relief.
3.
Ineffective Assistance of Trial Counsel
A guilty plea operates as a waiver of important constitutional
rights, and is valid only if done knowingly, intelligently, and
voluntarily
“‘with
sufficient
awareness
of
the
relevant
circumstances and likely consequences.’” Bradshaw v. Stumpf, 545
U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742,
748 (1970)); see also Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(stating
that
a
guilty
plea
must
represent
a
voluntary
and
intelligent choice among the alternative courses of action open to
the petitioner). “[A] plea's validity may not be collaterally
attacked merely because the defendant made what turned out, in
retrospect,
(citations
to
be
a
omitted).
poor
deal.”
Rather,
a
-7-
Bradshaw,
defendant
545
may
U.S.
at
186
challenged
the
validity of his guilty plea only if can show either that he entered
into the unfavorable deal due to constitutionally-defective advice
from counsel or that he could not understand the terms of the
bargain. Id. (citing Tollett v. Henderson, 411 U.S. 258, 267
(1973)).
To prevail on a claim of ineffective assistance of counsel,
the defendant must meet the two-pronged standard of 1) showing that
counsel's
conduct
reasonableness”
affirmatively
reasonable
falls
below
under
“prevailing
proving
“an
prejudice,
probability
that,
but
objective
professional
that
for
is,
standard
norms”
of
and
2)
demonstrating
a
counsel's
unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). In the
context of a guilty plea, the criminal defendant must also show a
reasonable possibility that but for counsel's errors, the outcome
would have been different–i.e., that he would not have pleaded
guilty and would likely have been acquitted at trial, or would have
received a significantly more favorable sentence. Hill v. Lockhart,
474 U.S. at 59-60; accord Carrion v. Smith, 549 F.3d 583, 588 (2d
Cir. 2008).
“When
a
state
court
guilty
plea
is
alleged
to
be
constitutionally invalid because the defendant was not told or was
misinformed about sentencing information requisite to an informed
plea, the issue is “whether the defendant was aware of actual
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sentencing possibilities, and, if not, whether accurate information
would have made any difference in his decision to enter a plea.’”
Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir. 1980) (quoting Caputo v.
Henderson, 541 F.2d 979, 984 (2d Cir. 1976); Kelleher v. Henderson,
531 F.2d 78 (2d Cir. 1976)). See also Joyner v. Vacco, 97 cv 7047,
2000 WL 282901, at *7 (S.D.N.Y. Mar. 15, 2000) (“As a practical
matter, the two-part Hunter test is seldom met. In particular,
courts have often found that even though a petitioner had been
inaccurately informed of the actual sentence facing him, accurate
information would not have changed his decision to plead guilty. A
petitioner's chances of success at trial, and his understanding of
those
chances,
is
an
important
consideration
in
making
this
determination.”).
Munson asserts that his guilty plea was coerced because his
attorney allegedly gave him incorrect legal advice in regard to the
sentencing consequences should he be convicted after trial of all
counts. However, Munson’s claim is contradicted by Exhibit A
submitted in support of his Petition, a letter from trial counsel
James S. Hinman, Esq., dated November 29, 2005. Attorney Hinman
thoroughly explains the discussions leading up to Munson’s decision
to plead guilty and indicates that trial counsel did not give
Munson the allegedly faulty sentencing advice about which Munson
complains. Because Munson’s claim is factually baseless, it is
dismissed.
-9-
4.
Munson
Prosecutorial Bad Faith During Plea Negotiations
faults
the
prosecution
for
the
allegedly
belated
disclosure of jailhouse recordings memorializing his attempts to
intimidate
a
witness.
Petitioner
claims
this
undermined
the
fairness of the plea proceedings, but he has not demonstrated how
his ultimate decision was affected by this alleged error. As
Respondent argues, evidence that Munson was caught on tape trying
to improperly influence a witness was a valid factor in his
decision to plead guilty. This claim is patently without merit and
is dismissed.
B.
Improper Amendment of the Indictment
As Ground Four of the Petition, Munson asserts that the
assault count to which he pled guilty allegedly was illegally
amended under C.P.L. § 200.70(1).
As discussed above, this claim
has been waived by his valid guilty plea. Tollett v. Henderson, 411
U.S. at 267.
C.
Ineffective Assistance of Trial Counsel
As Ground Five of the Petition, Munson asserts that trial
counsel’s
performance
was
constitutionally
defective.
In
particular, he contends that trial counsel (1) gave him incorrect
sentencing advice; (2) failed to seek sanctions for the late
disclosure of the jailhouse tapes; (3) failed to argue that the
photo array was unduly suggestive because the witness allegedly
viewed Petitioner’s photographs and/or his brother’s photographs
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prior to the identification procedure; and (4) failed to move to
dismiss the indictment as jurisdictionally defective.
As discussed above, Munson’s claim that trial counsel provided
incorrect advice about his sentencing exposure is unsubstantiated.
With regard to the failure to seek discovery sanctions, the
failure to challenge the photo array as unduly suggestive, and the
failure to move to dismiss the indictment, these alleged errors do
not pertain to the quality of counsel’s representation in regard to
Munson’s decision to plead guilty. Therefore, they are not proper
bases on which to challenge counsel’s performance. See Tollett, 411
U.S. at 267 (After entering a guilty plea, a criminal defendant may
not
“thereafter
raise
independent
claims
relating
to
the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea [.]”); see also Vasquez v.
Parrott, 397 F. Supp.2d 452, 464 (S.D.N.Y. 2005)( “The petitioner's
unconditional guilty plea waives the separate claim that he was
denied effective assistance of counsel because of his counsel's
failure to support the second speedy trial motion, because that
motion did not relate to the character of his guilty plea.” ).
In addition, Munson’s contention about counsel’s performance
regarding the identification procedure is contradicted by the
record: At the Wade hearing, trial counsel did challenge the photo
array as unduly suggestive, on the basis urged by Munson here.
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Munson’s claim of ineffective assistance of counsel appears to
be based on nothing more than his after-the-fact dissatisfaction
with
the
prosecution's
plea
offer
and
the
resultant
term
of
incarceration, which does not constitute a valid basis on which to
find that his counsel was ineffective. Albanese v. United States,
415 F. Supp.2d 244, 251 (S.D.N.Y. 2005)(citing United States v.
Garguilo, 324 F.2d 795, 797 (2d Cir. 1963) (“A convicted defendant
is a dissatisfied client, and the very fact of his conviction will
seem to him proof positive of his counsel's incompetence.”)).
D.
Suggestiveness of the Identification Procedure
As Ground Six, Munson repeats his allegations regarding the
alleged
suggestiveness
of
the
photo
array.
Although
a
voluntarily-entered and properly-counseled guilty plea generally
waives all constitutional challenges to events occurring prior to
its acceptance, United States v. Broce, 488 U.S. 563, 569 (1989),
an exception to this rule is made if the applicable state law
permits a defendant to appeal specified constitutional issues,
Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975). In such a case,
those same issues may also be pursued in a subsequent federal
habeas corpus petition. 420 U.S. at 293.
New York does statutorily preserve a defendant's right to
appeal
from
denial
of
a
motion
to
suppress
evidence,
notwithstanding a plea of guilty. See N.Y. Crim. Proc. Law §
710.70(2); accord Smoot v. McGinnis, No. CV 98-4145(RR), 2001 WL
-12-
1328593, at *4 (E.D.N.Y. Sept. 20, 2001) (citing Oquendo v. Scully,
No. CV 89-1208(RR), 1990 WL 88620, at *3 (E.D.N.Y. June 11, 1990)
(holding that petitioner who could challenge adverse suppression
ruling on appeal despite guilty plea due to C.P.L. § 710.70 could
raise same claim in federal habeas petition)). However, Munson’s
attack on the suggestiveness of the photo array does not warrant
habeas
relief.
unsubstantiated.
state
appellate
The
allegations
of
suggestiveness
are
The photo array was never incorporated into the
record,
and
Petitioner’s
allegations
are
not
supported by the testimony presented at the Wade hearing. This
claim accordingly is dismissed.
V.
The Motion to Stay (Docket No. 11)
Munson has requested a stay in the event that this Court were
to agree with Respondent’s argument that certain of his habeas
claims are unexhausted. However, the Court has considered all of
Munson’s habeas claims on the merits, and therefore his motion to
invoke the stay-and-abeyance procedure is denied as moot.
VI.
The Motion for Discovery (Docket No. 11)
Munson has requested permission to submit interrogatories to
his appellate counsel so that he can
appellate
counsel’s
alleged
substantiate a claim that
ineffectiveness
constitutes
“good
cause” under Rhines v. Weber, 544 U.S. 269 (2005), for purposes of
obtaining a stay.
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"[A] habeas petitioner, unlike the usual civil litigant in
federal court, is not entitled to discovery as a matter of ordinary
course." Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Drake
v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003). Rule 6(a) of the
Rules Governing § 2254 Cases provides that a habeas petitioner is
entitled to discovery "if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave to
do so, but not otherwise." See Bracy, 520 U.S. at 904. Whether a
petitioner has shown "good cause" depends on whether the petitioner
has set forth specific allegations that provide "reason to believe
that the petitioner may, if the facts are fully developed, be able
to demonstrate that he is . . . entitled to relief." Id. at 908-09
(quotation omitted).
Munson’s
interrogatories
pertain
to
appellate
counsel’s
alleged failure to properly exhaust the claims raised in Munson’s
pro
se
supplemental
brief
by
including
them
in
the
leave
application to the New York Court of Appeals. However, the Court
has
considered
all
of
Munson’s
habeas
claims
on
the
merits,
notwithstanding the failure to exhaust. Therefore, Munson’s motion
to invoke discovery procedures is denied as moot. Furthermore,
Munson has failed to demonstrate “good cause” under Bracy because
his
assertions
regarding
appellate
without merit.
VII. Conclusion
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counsel’s
performance
are
For the reasons stated above, Timothy Munson’s Petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the Petition is dismissed. Because Petitioner has failed to make a
substantial showing of a denial of a constitutional right, the
Court declines to issue a certificate of appealability. See 28
U.S.C. § 2253(c)(2).
Munson’s Motion for a Stay (Docket No. 11) and Motion for
Discovery (Docket No. 11) are denied with prejudice.
The
Court
hereby
certifies,
pursuant
to
28
U.S.C.
§
1915(a)(3), that any appeal from this judgment would not be taken
in good faith and therefore denies leave to appeal in forma
pauperis.
SO ORDERED.
S/Michael A. Telesca
___________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
June 23, 2011
Rochester, New York
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