Hibbert v. Lempke

Filing 12

-CLERK TO FOLLOW UP- DECISION AND ORDER that Everton Hibberts request for writ of habeas corpus is denied. The Petition (Dkt. #1) is dismissed with prejudice. Because Petitioner has failed to make a substantial showing of a denial of a constitutional right, 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. The Clerk of the Court is directed to close this case. The Clerk of the Court is further directed to re-close Hibbert v. Poole, No. 03-CV-6050 (W.D.N.Y.). Signed by Hon. Michael A. Telesca on 8/24/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EVERTON HIBBERT,
Petitioner,

DECISION AND ORDER
No. 6:14-cv-06424-MAT

-vsJOHN LEMPKE, Superintendent of
the Wende Correctional
Facility,
Respondent.

I.

Introduction
Proceeding pro se, Everton Hibbert (“Petitioner”) filed a

petition (Dkt #1) for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on the basis that he is being unconstitutionally detained in
Respondent’s custody. Petitioner is incarcerated pursuant to a
judgment of conviction entered in New York State Supreme Court,
Monroe County (Mark, J.), following his guilty plea to one count of
second degree murder (N.Y. Penal Law (“P.L.”) § 125.25(1)) and one
count of second degree criminal possession of a weapon (P.L.
§ 265.03 former (2)). Petitioner originally was sentenced on
October 17, 2000, but subsequently was resentenced pursuant to N.Y.
Correction Law (“Corr. Law”) § 601-d on August 29, 2011. The
judgment of resentencing is the judgment he challenges in the
instant habeas proceeding.

II.

Factual Background and Procedural History
The conviction here at issue stems from Petitioner’s entry of

a guilty plea to charges of second degree murder and second degree
criminal possession of a weapon in connection with the shooting
death of his estranged girlfriend, Ella Reaves, on March 24, 2000,
in the Town of Pittsford, New York. Petitioner was sentenced to an
indeterminate term of incarceration of 20 years to life on the
murder conviction, along with a concurrent determinate term of
15 years on the weapons-possession conviction. Petitioner filed a
Section 2254 petition with regard to underlying convictions, which
was denied by this Court (Bianchini, M.J.) on February 16, 2006.
Hibbert v. Poole, No. 03-CV-6050 (W.D.N.Y. Feb. 16, 2006). The
United States Court of Appeals for the Second Circuit denied
Petitioner’s

request

for

a

certificate

of

appealability

and

dismissed his appeal. See Dkt #22 (Mandate) in Hibbert v. Poole,
No. 03-CV-6050 (W.D.N.Y. Jan. 16, 2007).
Petitioner subsequently sought permission to file a second or
successive petition, which the Second Circuit denied. See Dkt #24
(Mandate) in Hibbert v. Poole, No. 03-CV-6050 (W.D.N.Y. Feb. 29,
2008). Petitioner again requested permission to file a second or
successive petition, this time based on an alleged new rule of law
announced in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which the
Second Circuit denied because the Supreme Court had not held that
the Padilla rule is retroactive to cases on collateral review. See

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Dkt #26 (Mandate) in Hibbert v. Poole, No. 03-CV-6050 (W.D.N.Y.
Jan 16, 2013).
Meanwhile, Petitioner was required to be resentenced because
the Monroe County Supreme Court (Marks, J.) had

failed to advise

him that the determinate sentence on the weapons-possession count
included a mandatory term of post-release supervision (“PRS”) as
required by P.L. § 70.45. This error was brought to the attention
of the Monroe County Supreme Court (Valentino, J.) pursuant to
Corr. Law § 601–d. With the consent of the Monroe County District
Attorney’s Office, Petitioner was resentenced on August 29, 2011,
pursuant to P.L. § 70.85, to the bargained-for (and previously
imposed) determinate term of 15 years of imprisonment, without any
term of PRS. This sentence again was set to run concurrently with
the indeterminate term of imprisonment imposed on the murder count.
Defense counsel argued that “even though it may not functionally
change his sentence, we would regard it as an alteration of the
negotiated deal, [and] he would seek to withdraw his plea. He does
seek to

withdraw

his plea

on

independent grounds,

[i.e.,

a]

violation of [Padilla v. Kentucky, supra].” Resentencing Transcript
at 4-5.1
1

Petitioner relied on People v. Catu, 4 N.Y.3d 242 (2005), in
which the New York Court of Appeals held that when the sentencing
court does not inform a defendant who pleads guilty of a mandatory
term of PRS attached to his sentence, the plea cannot represent “a
voluntary and intelligent choice among the alternative courses of
action open to the defendant,” and the defendant has a right to
vacate the involuntary plea. Catu, 4 N.Y.3d at 245.
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Petitioner then appealed his resentencing to the Appellate
Division, Fourth Department, of New York State Supreme Court, which
unanimously affirmed the judgment. People v. Hibbert, 114 A.D.3d
1134 (4th Dep’t 2014). Leave to appeal to the New York Court of
Appeals

was

denied

on

February

7,

2014.

People

v.

Hibbert,

23 N.Y.3d 963 (2014).
Petitioner filed another motion for leave to file a successive
28 U.S.C. § 2254 petition in the Second Circuit, which that court
denied as unnecessary on July 1, 2014. See Dkt #28 (Mandate) in
Hibbert v. Poole, No. 03-CV-6050 (W.D.N.Y. Aug. 28, 2014). The
Second Circuit observed that “[a]lthough Petitioner previously
filed a

§

2254

petition

challenging

his

2000

conviction

and

sentence, see Hibbert v. Poole, 415 F. Supp. 2d 225 (W.D.N.Y.
2006), he was subsequently resentenced in 2011 pursuant to New York
Penal Law § 70.85[.]” Id. The Second Circuit accordingly found that
“Petitioner’s proposed § 2254 petition is not successive.” Id.
(citing Magwood v. Patterson, 561 U.S. 332, 341-42 (2010) (“[W]here
. . . there is a new judgment intervening between the two habeas
petitions, . . . an application challenging the resulting new
judgment is not second or successive at all.”) (internal quotation
marks omitted)).
Based on the Second Circuit’s July 1, 2014 order, Petitioner
filed the instant Section 2254 petition challenging the judgment of

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resentencing on July 16, 2014 (Dkt #1).2 Petitioner asserts the
following grounds for relief: (i) P.L. § 70.85 violates the Ex Post
Facto

clause

of

the

United

States

Constitution;

and

(ii)

a

mandatory period of PRS violates the Due Process Clause of the
Fifth Amendment, made applicable to the states by the Fourteenth
Amendment.
affirmative
claims.

Respondent
defense

Respondent

answered

the

of

procedural

also

argues

petition,

default

that

the

as

asserting
to

claims

the

Petitioner’s
lack

merit.

Petitioner filed a reply.
For the reasons discussed below, the Court denies Petitioner’s
request for a writ of habeas corpus and dismisses the petition.
III. General Legal Principles Applicable on Habeas Review
“It is well established that a federal habeas court does not
sit

to

correct

a

misapplication

of

state

law,

unless

such

misapplication violates the Constitution, laws, or treaties of the
United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.
2002) (citation omitted); see also 28 U.S.C. §§ 2254(a); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a

2

When the Clerk of Court received the Second Circuit’s mandate
on August 28, 2014, it was docketed in the closed 2003 habeas
proceeding. The 2003 proceeding was reopened, but this was
unnecessary since Petitioner had filed the instant proceeding
challenging the judgment of resentencing; Petitioner was not
seeking to re-open and amend his 2003 petition to add the claims
regarding re-sentencing. Accordingly, the 2003 proceeding may be
re-closed, as set forth further below.
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federal habeas court to reexamine state-court determinations on
state-law questions.”).
The Supreme Court has held that federal courts shall “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.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations
omitted). “This rule applies whether the state law ground is
substantive or procedural.” Id. (citations omitted). An adequate
and independent finding of procedural default precludes federal
habeas review of the federal claim, unless the habeas petitioner
can show “cause” for the default and “prejudice” attributable
thereto,

Murray

v.

Carrier,

477

U.S.

478,

485

(1986),

or

demonstrate that the failure to consider the federal claim on
habeas will result in a “‘fundamental miscarriage of justice,’” id.
at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)).
IV.

Discussion
A.

Unconstitutionality of N.Y. Penal Law § 70.85

Petitioner contends that P.L. § 70.85 violates the due process
clause and the Ex Post Facto clause of the Constitution. P.L.
§ 70.85 states in relevant part as follows:
This section shall apply only to cases in which a
determinate sentence . . . was required by law to include
a term of post-release supervision, but the court did not
explicitly state such a term when pronouncing sentence.
When such a case is again before the court pursuant to
section six hundred one-d of the correction law or
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otherwise, for consideration of whether to resentence,
the court may, notwithstanding any other provision of law
but only on consent of the district attorney, re-impose
the
originally
imposed
determinate
sentence
of
imprisonment
without
any
term
of
post-release
supervision, which then shall be deemed a lawful
sentence.
N.Y. PENAL LAW § 70.85.
On direct appeal, the Fourth Department held that Petitioner
had failed to preserve for review his contention that P.L. § 70.85
is unconstitutional. People v. Hibbert, 114 A.D.3d at 1134 (citing
N.Y. CRIM. PROC. LAW § 470.05(2)). The Fourth Department also found
that the constitutional claim was not properly before it “because
[Petitioner] failed to provide notice to the Attorney General of
his challenge to the constitutionality of the statute[.]” Id.
(citing N.Y. CIV. PRAC. LAW & R. § 1012(b); N.Y. EXEC. LAW § 71(3);
other citation omitted)). “[N]evertheless[,]” the Fourth Department
noted, the New York Court of Appeals has “determined that ‘[N.Y.
Penal

Law]

section

70.85

is

a

constitutionally

permissible

legislative remedy for the defectiveness of the plea[.]’” Id.
(quoting People v. Pignataro, 22 N.Y.3d 381, 387 (2013)).3
3

In Pignataro, the defendant challenged his resentencing under
N.Y. Penal Law § 70.85, claiming the statute is unconstitutional
because it deprives him of his right to vacate his guilty plea. The
Court of Appeals found that Section 70.85 “is a constitutionally
permissible legislative remedy for the defectiveness of the plea.
Defendant’s plea was knowing and voluntary because the legislature
has changed the sentencing laws governing pleas vulnerable to a
Catu challenge. Section 70.85 ensures that defendant, who is no
longer subject to PRS, pleaded guilty with the requisite awareness
of the direct consequences of his plea.” Pignataro, 22 N.Y.3d at
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Respondent argues that the Fourth Department relied on two
adequate and independent state grounds for its holding, namely, the
contemporaneous objection rule codified at N.Y. Criminal Procedure
Law (“C.P.L.”) § 470.05(2), and the notice rule codified at, inter
alia,

N.Y.

Executive

Law

(“Exec.

Law”)

§

71(3).

Therefore,

Respondent argues, Plaintiff’s claim is procedurally defaulted. See
Coleman,

501

U.S.

at

729-30

(stating

that

the

adequate

and

independent state ground doctrine “applies to bar federal habeas
when a state court declined to address a prisoner’s federal claims
because

the

prisoner

had

failed

to

meet

a

state

procedural

requirement”) (citing inter alia, Wainwright v. Sykes, 433 U.S. 72,
81, 87 (1977)).
The Court turns first to the Fourth Department’s reliance on
the New York state rule requiring notice to the Attorney General’s
Office of a party’s challenge to the constitutionality of a state
statute. The Court finds that this rule was an “independent” ground
for the Fourth Department’s ruling, even though the court ruled in
the alternative on the claim’s merits. See, e.g., Garcia v. Lewis,
188 F.3d 71, 77 (2d Cir. 1999) (“There is no question that the
Appellate Division’s explicit invocation of the procedural bar
constitutes an ‘independent’ state ground, even though the court
spoke

to

the

merits

of

Garcia’s

claim

in

an

holding[.]”) (internal and other citations omitted).

387.
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alternative

The adequacy of a state procedural bar is itself a federal
question, Lee v. Kemna, 534 U.S. 362, 375 (2002), and thus the
habeas court “must ascertain whether the state rule at issue . . .
is firmly established and regularly followed, and further whether
application of that rule in th[e] [particular] case would be
exorbitant.” Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007).
This requires the habeas court to examine the procedural bar in
question and the state case law construing it. Id. (citation
omitted). As a matter of New York state law, e.g., N.Y. Civil
Practice

Law

&

Rules

(“C.P.L.R.”)

§

1012(b),

“[w]hen

the

constitutionality of a statute of the state . . . is involved in an
action to which the state is not a party, the attorney-general,
shall be notified and permitted to intervene in support of its
constitutionality.” N.Y. CIV. PRAC. LAW & R. § 1012(b). Similarly,
N.Y. Exec. Law § 71(3) states in relevant part that “[t]he court
having jurisdiction

in

an

action

or proceeding

in

which

the

constitutionality of a statute . . . is challenged, shall not
consider any challenge to the constitutionality of such statute .
. . unless proof of service of the notice required by this section
or required by subdivision (b) of section one thousand twelve of
the civil practice law and rules is filed with such court.” N.Y.
EXEC. LAW § 71(3). Based upon the Court’s review, the New York state

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caselaw4

interpreting

this

notice

rule

“displays

consistent

application in a context similar to” Petitioner’s case. Richardson
v. Greene, 497 F.3d 212, 220 (2d Cir. 2007). Therefore, the Court
concludes that the notice rule “is firmly established, regularly
followed, and hence adequate for purposes of the independent and
adequate state ground doctrine.” Id. Because the Court has found
that the notice rule codified at

C.P.L.R. § 1012(b) and Exec. Law

§ 71(3) is an adequate and independent state ground for the Fourth
Department’s

ruling

dismissing

Petitioner’s

constitutional

challenges to P.L. § 70.85, the Court need not consider the
adequacy and independence of C.P.L. § 470.05(2) in this instance.
The

Fourth

Department’s

reliance

on

an

adequate

and

independent state ground creates a procedural bar to federal habeas
review of Petitioner’s Ex Post Facto and due process attacks on
P.L. § 70.85 unless he can demonstrate cause and prejudice, or that
he is actually, i.e., factually, innocent. See, e.g., Murray v.
Carrier, 477 U.S. 478, 485 (1986). As cause for the default,
4

See, e.g., People v. Mills, 117 A.D.3d 1555, 1556 (4th Dep’t
2014) (“[D]efendant’s contention that Penal Law § 70.85 is an
unconstitutional ex post facto law is not properly before us
inasmuch as he failed to notify the Attorney General that he would
be raising that contention[.]”) (citations omitted); People v.
Beaty, 128 A.D.3d 1391, 1392 (4th Dep’t 2015) (same) (citing People
v. Williams, 82 A.D.2d 1576, 1577 (4th Dep’t 2011)); People v.
Whitehead, 46 A.D.3d 715, 715 (2d Dep’t 2007) (defendant’s
constitutional challenge to section of criminal procedure law was
“not properly before this court due to the defendant’s failure to
notify the Attorney General that he was challenging the
constitutionality of a state statute”) (citing N.Y. CIV. PRAC. LAW &
R. § 1012(b)(1), (3)).
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Petitioner has asserted that all of the attorneys who represented
him in state court have been ineffective. See Reply (Dkt #9),
pp. 14-15. Interpreting these allegations liberally, Petitioner
suggests that the attorney who represented him in connection with
resentencing was ineffective in failing to provide the required
notice to the Attorney General’s Office or otherwise preserve
Petitioner’s

constitutional

claim

to

P.L.

§

70.85.

Although

ineffective assistance of counsel may constitute cause for a
petitioner’s

failure

to

pursue

a

constitutional

claim,

e.g.,

Edwards v. Carpenter, 120 S. Ct. 1587, 1591 (2000), it also must
rise to the level of a constitutional violation, see id. (stating
that “ineffective assistance adequate to establish cause for the
procedural default of some other constitutional claim is itself an
independent

constitutional

claim”

(emphases

in

original).

Furthermore, the ineffective assistance claim sought to be used as
“cause” must itself be exhausted and not procedurally defaulted.
See Murray,

477

U.S.

at

488-89

(stating

that

the

exhaustion

doctrine “generally requires that a claim of ineffective assistance
be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default”) (citation
omitted). Petitioner has not alleged or demonstrated that he has an
exhausted, meritorious claim of ineffective assistance of counsel
sufficient to constitute “cause” for the procedural default of his
P.L. § 70.85 claim.

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Moreover, Petitioner has not demonstrated that he suffered
actual prejudice as the result of the state courts’ application of
P.L. § 70.85 to his case. First, he did not personally sustain an
ex post facto violation. “A penal law violates the ex post facto
clause of the constitution if it disadvantages an offender for an
act he committed before the law was enacted.” Shields v. Henderson,
No. CV–85–1251, 1987 WL 13213, at *1 (E.D.N.Y. June 23, 1987)
(citing Weaver v. Graham, 450 U.S. 24, 29 (1981)). The application
of P.L. § 70.85 did not disadvantage Petitioner because he was
resentenced to the same term of imprisonment, without a term of
post-release supervision. Second, Petitioner cannot show that his
due process rights were compromised because the Supreme Court “has
never held that a mandatory period of post-release supervision is
a direct consequence of a guilty plea so as to implicate a
defendant’s due process right to enter a knowing and voluntary plea
of guilty.” Williams v. Conway, No. 07-CV-756(Sr), 2011 WL 5326264,
at *4 (W.D.N.Y. Nov. 4, 2011) (citing, inter alia, Pignataro v.
Poole, No. 09–1396, 381 F. App’x 4, 2010 WL 2501009, at *2 (2d Cir.
June

18,

2010)

(post-release

supervision

was

“not

definite,

immediate and largely automatic” so as to be considered a direct
consequence of plea “because it was subject to change[,]” including
resentencing by the trial court); Lockhart v. Chandler, 446 F.3d
721, 724 (7th Cir. 2006) (“There is no Supreme Court precedent for
the proposition that a defendant must be advised of a term of

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[mandatory supervised release] at the time he attempts to enter a
plea of guilty.”)). As noted above, Petitioner never has been
subjected to any period of post-release supervision. Petitioner
thus cannot overcome the procedural default by showing cause and
prejudice.
Petitioner has not argued that he is actually innocent of the
crimes to which he pled guilty, and therefore he cannot demonstrate
that his case falls into the narrow fundamental miscarriage of
justice exception. See McCleskey v. Zant, 499 U.S. 467, 502 (1991)
(declining to find fundamental miscarriage of justice; petitioner
“cannot demonstrate that the alleged [constitutional] violation
caused the conviction of an innocent person”) (citation omitted).
Petitioner’s constitutional claims regarding P.L. § 70.85 are
subject to an unexcused procedural default, and are dismissed on
that basis.
V.

Conclusion
For the reasons stated above, Everton Hibbert’s request for

writ

of

habeas

corpus

is

denied.

The

Petition

(Dkt.

#1)

is

dismissed with prejudice. Because Petitioner has failed to make a
“substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability.

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The Clerk of the Court is directed to close this case. The
Clerk of the Court is further directed to re-close Hibbert v.
Poole, No. 03-CV-6050 (W.D.N.Y.).
SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

August 24, 2015
Rochester, New York

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