Perez v. Miller

Filing 10

DECISION AND ORDER denying 9 Motion to Appoint Counsel. Petitioners application for assignment of pro bono counsel, ECF No. 9, is denied. Petitioner must move forward with this case either by obtaining counsel on his own, or by representing himsel f. Petitioner shall have until January 29, 2016, to reply to Respondents memorandum in opposition, and to identify any further evidence necessary for the Court to consider before rendering judgment on his petition.igned by Hon. Charles J. Siragusa on 12/15/15. Copy of this order and the NEF mailed to pro se plaintiff at Sing Sing (location per NYS DOCCS). (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NEFTALI PEREZ,
Petitioner,
DECISION & ORDER
-vs14-CV-06223
CHRISTOPHER MILLER, SUPERINTENDENT
GREAT MEADOW CORRECTIONAL FACILITY,
Respondent.

APPEARANCES
For Petitioner:

Neftali Perez, pro se
80 A 2470
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821-0051

For Defendant:

Paul Lyons, A.A.G.
Office of New York State Attorney General
120 Broadway
New York, NY 10271
[phone]
INTRODUCTION

Siragusa, J. Before the Court is Petitioner Neftali Perez’s (“Petitioner”) application for appointment of counsel pursuant to 28 U.S.C. § 1915(d) to provide legal assistance in pursuing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1
For the reasons stated below the application is denied with prejudice.
BACKGROUND
In order to determine whether the Court should “request an attorney to represent
any person unable to afford counsel,” 28 U.S.C. § 1915 (1996), “the Court must decide
1

Petitioner erroneously cites to 18 U.S.C. § 3006(g). Since this is not a criminal proceeding, that statute
is inapplicable here.

whether, ‘from the face of the pleadings,’ the claims asserted by the plaintiff ‘may have
merit,’ or the plaintiff ‘appears to have some chance of success.’” Martinson v. U.S. Parole Comm’n., No. 02CIV.4913 (DLC)(DF), 2004 WL 203005, at *2 (S.D.N.Y. Feb. 2,
2004) (quoting Stewart v. McMikens, 677 F. Supp. 226, 228 (S.D.N.Y.1988), and Baskerville v. Goord, No. 97 Civ. 6413(BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May
16, 2001)).2Therefore, the Court takes the following facts from the petition, and the answer, solely for the purpose of determining whether Petitioner’s claims may have merit,
or he appears to have some chance of success. Respondent notes that the original
state criminal charge and subsequent conviction resulted from an event,
[o]n April 23, 2010, at Elmira Correctional Facility, petitioner and another
inmate, Ariel Echevarria-Perez, entered into a dispute after EchevarriaPerez “disrespected” petitioner. Echeverria-Perez was the initial aggressor, attacking petitioner with a “shank” – a 9-1/2 inch sharpened metal object…petitioner assaulted Echeverria-Perez with the same shank, slashing
and stabbing him about the head and body, causing a stab wound to his
right chest and multiple deep lacerations on his head and left wrist, including transections of the left radial and ulnar arteries.
Respondent’s Memorandum of Law in Opposition to the Petition for a Writ of Habeas
Corpus at 1, Oct. 8, 2014, ECF No. 7.
On May 27, 2010, Petitioner was charged with: Attempted Murder in the Second
Degree (N.Y. Penal Law §§ 110.00/125.25(1)); Assault in the First Degree (N.Y. Penal
Law § 120.10(1)); Assault in the Second Degree (N.Y. Penal Law § 120.05(7)); and
three counts of Promoting Prison Contraband in the First Degree (N.Y. Penal Law
§ 205.25(2)). State Court Record 66–68, Oct. 8, 2014, ECF No. 8-1 (Indictment No.
2010-129).

2

Pleadings are defined in Fed. R. Civ. P. 7(a) to include a complaint and an answer, which the Court interprets her to include the petition and answer with its attached state record.

-2-

In a letter dated August 26, 2010, addressed to the state judge, Petitioner’s former counsel stated that he “[spoke] at length with [petitioner], and he wishes to accept
the plea bargain offer.” State Court Record 117–18. Counsel’s letter also “advise[d] the
Court and the People of what [counsel] expect[ed] to be the general substance of [petitioner’s] allocution in advance of the plea,” writing:
The alleged victim (“Echeverria”) was the initial aggressor, attacking [petitioner] with a sharpened metal object. [Petitioner] was, at first, acting in
self-defense. There came a point, however, that [petitioner] was able to
take the metal object away from Echeverria, and had injured and subdued
him to the extent that he no longer posed a threat. At that point, [petitioner]
engaged in a new assault, using the deadly weapon/dangerous instrument
with the intent to cause serious physical injury to Mr. Echeverria. Having
successfully defended himself, this later assault was intended to send a
message to other inmates.
State Court Record 117.
Petitioner appeared before Chemung County Court Judge James T. Hayden on
August 27, 2010, with counsel to accept a plea that offered a maximum of 15 years and
5 years of post-release supervision. State Court Record 11–12. The judge asked Petitioner the following questions, to which he gave the following answers:
THE COURT: By pleading guilty, you would be giving up that right [against
self-incrimination], because one of the things I’m going to ask you to do is
to tell me what you did.
THE DEFENDANT: I understand.
THE COURT: Understand? Knowing that, do you still wish to plead guilty?
THE DEFENDANT: Yes, guilty with an explanation.
THE COURT: Just a minute. Is there anything at this point in the process
you do not understand?
THE DEFENDANT: Yes, I am understanding, you’re translating for me in
Spanish.
THE COURT: Do you need to ask your lawyer any additional questions?
THE DEFENDANT: No. He knows what he has to do, I’ve explained it to
him.

-3-

THE COURT: The Court is satisfied defendant is knowingly, voluntarily,
and intelligently offering the plea, we will entertain it.
What is it you did back on April 23rd, 2010, in the County of Chemung,
that causes you to want to plead guilty?
THE DEFENDANT: I was coming out of my work, I went to my cell, and I
came out to get a cup of coffee. But the other individual came out of his
cell to go to work, but he attacks me with a knife, wounding me here in my
hands. And so, I came and I took it away from him. And the circumstances
are, that led me to then attack him, because he had attacked me first.
And I told the superintendent when I had my hearing that I was going to
declare myself guilty, because I did it, but I took the knife away from him.
The knife was his, and I attacked him with it.
The superintendent said I was right, that I had done it in self-defense. So
then he gave me two years for the knife. He gave me two and a half years
in the box.
THE COURT: After you took the knife from the other man, what did you do
with the knife?
THE DEFENDANT: I attacked him, because he attacked me. That’s what I
said.
THE COURT: Where did – did you strike him with the knife?
THE DEFENDANT: And when the guards came, and they told me to let
him go. I dropped it on the floor, the knife on the floor, because the guards
hadn’t been there, they didn’t see it when he attacked me.
THE COURT: That was not my question. Did you strike the other person
with the knife?
THE DEFENDANT: With the same knife, his knife.
THE COURT: Where did you strike him?
THE DEFENDANT: Up here, (indicating), around the neck.
THE COURT: And when you struck him with the knife, did you cut him?
THE DEFENDANT: Yes, I did, I cut him.
THE COURT: And is it your understanding that he was badly wounded?
THE DEFENDANT: Well, according to what they said in the hospital, he
was bad. But I don’t know, I haven’t seen him anymore.
THE COURT: At the time you struck him with the knife, did he have any
kind of weapon in his hands?
THE DEFENDANT: No, he didn’t. He was trying to get me, but I was getting him. He was punching at me, and I hit him with the knife.

-4-

THE COURT: Has your lawyer explained to you that you have the right to
raise a claim of self-defense at trial?
THE DEFENDANT: Yes.
THE COURT: Are you telling me that you would rather take advantage of
the plea bargain than risk going to trial?
THE DEFENDANT: I am guilty, because I did hit him with the knife, I did
stab him with the knife.
THE COURT: That wasn’t my question. Are you telling me that you would
rather take advantage of the plea bargain offered to you than risk going to
trial?
THE DEFENDANT: Exactly.
THE COURT: All right. The Court is satisfied defendant has offered sufficient factors to justify the plea, and the Court is also satisfied that he has
discussed the Case option of raising a claim of self-defense at trial, and
that he is choosing not to take that option.
State Court Record 14–18.
After entering the plea, Petitioner appealed to the Appellate Division, Third Department. Petitioner claimed: the trial court erred in accepting his guilty plea because
Petitioner continued to assert self-defense, and that Petitioner’s trial counsel was ineffective for advising him to plead guilty when he maintained self-defense. State Court
Record 26–60. The Appellate Division, Third Department affirmed the plea agreement,
writing:
Initially, inasmuch as the record before us does not indicate that defendant
moved to withdraw his plea or sought to vacate the judgment of conviction, “he has failed to preserve his challenge to the sufficiency of the plea
allocution premised on County Court’s alleged failure to make an adequate inquiry concerning his claim of self-defense” (People v. Simpson, 19
A.D.3d 945, 945, 797 N.Y.S.2d 322 [2005]; see People v. Richardson, 275
A.D.2d 864, 865, 714 N.Y.S.2d 140 [2000], lv. denied 95 N.Y.2d 937, 721
N.Y.S.2d 614, 744 N.E.2d 150 [2000]) and his claim that he was denied
the effective assistance of counsel (see People v. Gomez, 72 A.D.3d
1337, 1337, 899 N.Y.S.2d 435 [2010]). Moreover, the narrow exception to
the preservation requirement is not applicable here because, even assuming that defendant’s remarks raised a legitimate claim of self-defense, the
court satisfied its duty of further inquiry (see People v. Lopez, 71 N.Y.2d
662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]; People v. Simpson, 19

-5-

A.D.3d at 945, 797 N.Y.S.2d 322 [2005]; People v. Moore, 270 A.D.2d
715, 716, 705 N.Y.S.2d 425 [2000], lv. denied 95 N.Y.2d 800, 711
N.Y.S.2d 168, 733 N.E.2d 240 [2000]). The court specifically questioned
defendant about his right to raise the claim of self-defense and confirmed
that defendant had already discussed a possible claim of self-defense with
his counsel. The record amply supports the conclusion that defendant fully
understood the nature of the charge and waived any claim of self-defense
in exchange for the favorable plea agreement (see People v. Rush, 79
A.D.3d 1522, 1523, 914 N.Y.S.2d 349 [2010], lv. denied 16 N.Y.3d 836,
921 N.Y.S.2d 200, 946 N.E.2d 188 [2011]). Accordingly, defendant has
presented no basis for reversal herein.
People v. Perez, 101 A.D.3d 1162, 955 N.Y.S.2d 435, 2012 N.Y. Slip Op. 08355 (N.Y.
App. Div. 3rd Dep’t 2012). Petitioner then filed an application for leave to appeal to New
York Court of Appeals, raising the same issues. State Court Record 170–73. On February 6, 2013, the Appellate Division issued an order denying leave to appeal to the Court
of Appeals. State Court Record 177–78. Petitioner has not filed any state collateral proceedings. Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in
State Custody ¶ 11, May 2, 2014, ECF No. 1.
STANDARD OF LAW
The Court has a limited degree of discretion when deciding if an indigent individual should receive appointed legal counsel. Hodge v Police Officers, 802 F.2d 58 (2d
Cir. 1986), provides the requirements that must be met for counsel to be appointed to a
civil litigant:
Clear legal principles in this circuit governing § 1915(d) appointment of
counsel are few. Of course, the statute must be understood to guarantee
indigents “meaningful access” to the courts as required by the Constitution, Bounds v. Smith, 430 U.S. 817, 823, 97 S. Ct. 1491, 1495, 52
L.Ed.2d 72 (1977), but no court has yet held “meaningful access” to mean
that indigents must always be supplied with counsel in civil as well as
criminal cases. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).
In this circuit, Miller v. Pleasure held that where “the plaintiff’s claims are
so highly dubious that a judge cannot properly ask a member of the bar to
assume this thankless burden,” appointment of counsel is properly denied.
296 F.2d at 285. In habeas corpus cases, counsel must be appointed for
qualified indigents when a hearing is required; the court may appoint
-6-

counsel at an earlier stage if it deems appointment desirable. Rules Governing Section 2254 Cases in the United States District Courts, Rule 8(c)
and Advisory Committee Notes.
Hodge, 802 F.2d at 60. As the district court observed in Martinson v. United
States Parole Comm’n, No. No. 02CIV.4913 (DLC)(DF), 2004 WL 203005, at *2
(S.D.N.Y. Feb. 2, 2004):
The governing rules require the appointment of counsel only when an evidentiary hearing is needed. Rule 8(c) of the Rules Governing § 2254 Cases. The appointment of counsel in all other cases is discretionary. See id.;
Peralta v. Bennett, No. 01 Civ. 8049(SHS) (DF), 2002 WL 334513, at *1
(S.D.N.Y. Mar. 1, 2002); see also Jackson v. Moscicki, Nos. 99 Civ.
2427(JGK), 99 Civ. 9746(JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27,
2000).
Another important criterion a court must consider is the merit of a claim; frivolous
claims that will not be successful do not require assignment of legal counsel. Moreover,
As a threshold matter, the Seventh Circuit explained, the district court
must consider the merits of the indigent’s claim. “Even where the claim is
not frivolous, counsel is often unwarranted where the indigent’s chances
of success are extremely slim.” 650 F.2d at 887 (citing Miller, 296 F.2d
283). As indicated above, this is already part of the law in this circuit, and
it is a requirement that must be taken seriously. If mere bald assertions by
an indigent, which technically put a fact in issue and suffice to avert summary judgment, required appointment of an attorney under § 1915(d), the
demand for such representation could be overwhelming. If, however, the
indigent appears to have some chance of success, the Maclin [v. Freake,
650 F.2d 885 (7th Cir. 1981) (per curiam)] case cites other factors the trial
judge should consider.
Id.
ANALYSIS
Respondent’s counsel’s argument that Petitioner is procedurally barred from obtaining a writ of habeas corpus from the Court is well taken. It appears from the pleadings that Petitioner had an independent and adequate state procedure he needed to
use in order to preserve his challenge to the sufficiency of plea allocution by either moving the state trial court to vacate the judgment or enter a different plea. Further, Peti-

-7-

tioner it appears so far that Petitioner may have failed to,
preserve his challenge to the sufficiency of the plea allocution premised on
County Court’s alleged failure to make an adequate inquiry concerning his
claim of self-defense (People v. Simpson, 19 A.D.3d 945, 945, 797
N.Y.S.2d 322 [2005]; see People v. Richardson, 275 A.D.2d 864, 865, 714
N.Y.S.2d 140 [2000], lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744
N.E.2d 150 [2000]) and his claim that he was denied the effective assistance of counsel (see People v. Gomez, 72 A.D.3d 1337, 1337, 899
N.Y.S.2d 435 [2010]).
People v. Perez, 101 A.D.3d 1162, 1162 (N.Y. App. Div. 3d Dep’t 2012). This procedure
is the “sort of firmly established and regularly followed state practice that can prevent
implementation of federal constitutional rights,” James v. Kentucky, 466 U.S. 341, 348–
49 (1984), because it meets the requirements set forth in Cotto v. Herbert, 331 F.3d 217
(2d Cir. 2003). Cotto sets forth three important guidelines that must be considered when
examining the legitimacy of a procedural default: (1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the
state rule would have changed the trial court’s decision; (2) whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had “substantially complied” with the rule given “the
realities of trial,” and, therefore, whether demanding perfect compliance with the rule
would serve a legitimate governmental interest. Id. at 240.
Applying the three Cotto factors, the Court notes first that the trial judge in taking
the plea specifically raised the issue of self defense with Petitioner. Although Petitioner
in his petition suggests his self-defense was ignored (“THE COURT ERRED IN ACCEPTING DEFENDANT’S PLEA WHEN DEFENDANT CONTINUED TO ASSERT
SELF DEFENSE”), Pet. ¶ 10(f), the transcript of his plea proceeding, partially quoted
above starting at 3, belies any assertion that Petitioner insisted in raising a claim of self-

-8-

defense at his plea colloquy. Thus, Petitioner’s plea never “was ‘actually relied on’ by
the trial court in the sense that the trial court never was given occasion to consider—
and conceivably cure by granting his motion to withdraw his plea—the alleged insufficiency.” Brea v. New York City Probation Dept., No. 03 Civ. 4822, 2004 WL 389011, at
*7 (S.D.N.Y. Mar. 3, 2004).
Regarding the second Cotto factor, ample case law exists that requires Petitioner
to preserve his challenge to the involuntariness of his plea prior to moving to appeal.
See, e.g., People v. Clarke, 93 N.Y.2d 904, 906 (1999) (“this case does not qualify for
the narrow, rare exception to the requirement that the claim of an invalid guilty plea
must be appropriately preserved”); People v. Lopez, 71 N.Y.2d 662, 665–66 (1988) (“in
order to preserve a challenge to the factual sufficiency of a plea allocution there must
have been a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate
the judgment of conviction under CPL 440.10”); People v. Claudio, 64 N.Y.2d 858, 858–
59 (1985) (“the argument that defendant’s guilty plea should not have been accepted is
also not preserved for appellate review because defendant neither moved to withdraw
the plea before sentencing nor raised the issue by a motion to vacate the judgment of
conviction”); People v. Hilliard, 39 A.D.3d 1021, 1022 (N.Y. App. Div. 3d Dep’t 2007)
(“defendant’s assertion that his guilty plea was involuntarily entered is unpreserved for
our review in light of his failure to move to withdraw the plea or vacate the judgment of
conviction”); People v. Peterson, 35 A.D.3d 1195, 1196 (N.Y. App. Div. 4th Dep’t 2006)
(“by failing to move to withdraw his plea or to vacate the judgment, defendant failed to
preserve [his contention that his plea was not knowingly, voluntarily or intelligently entered] for our review”). The same procedural ground that requires Petitioner to preserve

-9-

his challenge to his plea has been used in New York courts, “‘[t]o the extent that a claim
of ineffective assistance of counsel impacts on the voluntariness of a defendant’s guilty
plea, . . . the claim must ordinarily be preserved by a motion to withdraw the plea or a
motion to vacate the judgment of conviction.’” People v. Dickson, 292 A.D.2d 643, 644
(3d Dep’t 2002) (citation omitted); accord, e.g., People v. Doe, 95 A.D.3d 1449, 1449
(3d Dep’t 2012); People v. Campbell, 89 A.D.3d 1279, 1279 (3d Dep’t 2011); People v.
Ross, 41 A.D.3d 870, 870 (2d Dep’t 2007); People v. Grant, 294 A.D.2d 671, 672 (3d
Dep’t 2002); People v. Johnson, 288 A.D.2d 501, 502 (3d Dep’t 2001). The Court
agrees with the state court
The third Cotto guideline is met because Petitioner never complied with procedural rule. He did not withdraw his plea or move to vacate the judgment before direct
appeal. “By definition, total noncompliance cannot also be ‘substantial compliance.’”
Clark v. Perez, 510 F.3d 382, 391 (2d Cir. 2008).
After meeting all three Cotto guidelines, the Court finds that the procedural bar is
legitimate. However, a court may nonetheless review a claim that is procedurally barred
if “the prisoner can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman v Thompson, 501 U.S. 722,
750 (1991). As the Court will examine below, Petitioner’s claims appear to lack merit.
Even though Petitioner’s claims appear to be frivolous due to a procedural bar,
the Court will also examine the merits of his Petition to determine if a miscarriage of justice would occur by not considering the claims. Prior to examining the merits, the issues
raised by Petitioner must meet the exhaustion rule requirement.

- 10 -

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the
State the “‘opportunity to pass upon and correct’ alleged violations of its
prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct.
887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971). To provide the State
with the necessary “opportunity,” the prisoner must “fairly present” his
claim in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal
nature of the claim. Duncan, supra, at 365–366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004). Petitioner has raised two claims in his petition: one for ineffective assistance of counsel, and the other for an involuntary plea. The
Court finds that the Petitioner did not exhaust all state remedies pertaining to his ineffective assistance of counsel claims because he did not indicate the potential federal
claim on any of his state papers, thus precluding him from raising this issue before the
Court. Although the Court agrees that Petitioner’s involuntary plea claim is exhausted, it
does not survive the requirements set forth in Hill v. Lockhart, 474 U.S. 52 (1985): “The
longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to
the defendant.’” Id. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)) (other citations omitted).
Petitioner admitted under oath that he was guilty, and provided an explanation of
his actions. He went far beyond self-defense and his legal counsel at the time advised
him to accept the plea bargain, specifically spelling out the justification for his advice.
When asked by the judge if he understood, Petitioner asserted he did understand what
the plea agreement meant. The above series of events satisfies the voluntary and intelligent requirements of Hill.

- 11 -

The Supreme Court shed light upon “a particular risk that an after-the-fact assessment will run counter to the deference that must be accorded counsel’s judgment
and perspective when the plea was negotiated, offered, and entered.” Premo v. Moore,
562 U.S. 115, 131 S. Ct. 733, 742 (2011). As Petitioner clearly reassessed his plea
agreement after receiving advice from a judge, he still “must convince the court that a
decision to reject the plea bargain would have been rational under the circumstances.”
Padilla v. Kentucky, 559 U.S. 356, 372, 130 1473, 1485 (2010). Petitioner has done little
more than assert self-defense. Further, Petitioner did not explain to the trial court how
proceeding to slash the inmate who initiated the assault, after Petitioner successfully
disarmed him, was within the realm of self-defense. Petitioner’s counsel’s August 26,
2010, letter to the state judge remarked that slashing the inmate was to gain respect,
not self-defense. State Court Record 117 (“Having successfully defended himself, this
later assault was intended to send a message to other inmates.”). Petitioner’s claim that
his plea was involuntary is not supported by the evidence as it exists at this time.
CONCLUSION
For the reasons stated above, Petitioner’s application for assignment of pro bono
counsel, ECF No. 9, is denied. Petitioner must move forward with this case either by obtaining counsel on his own, or by representing himself. Petitioner shall have until January 29, 2016, to reply to Respondent’s memorandum in opposition, and to identify any
further evidence necessary for the Court to consider before rendering judgment on his
petition.
DATED:

December 15, 2015
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

- 12 -