Jones v. Perez

Filing 6

-CLERK TO FOLLOW UP- DECISION AND ORDER dismissing the petition for a writ of habeas corpus. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/21/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KENNETH JONES,
Petitioner,
No. 6:14-CV-6502(MAT)
DECISION AND ORDER

-vsADA PEREZ,
Respondent.

I.

Introduction
Proceeding

petition

for

a

pro

se,

writ

Kenneth

of

Jones

habeas

corpus

(“Petitioner”)
pursuant

to

filed

28

a

U.S.C.

§ 2254, alleging that he is in state custody in violation of his
federal

constitutional

rights.

Petitioner

is

incarcerated

pursuant to a judgment of conviction entered against him in Erie
County Court (Pietruszka, J.) of New York State on October 17,
2011,

following his guilty plea to one count of assault in the

first degree (N.Y. Penal Law (“P.L.”) § 120.10(1)).
II.

Factual Background and Procedural History
After Petitioner was arrested and charged in the non-fatal

stabbing of Melquiaedes Torres, he was indicted on one count of
assault

in

the

first

degree

(N.Y.

Penal

Law

§

120.10(1)).

Petitioner elected to enter a plea of guilty to the sole count
charged
status

in
by

the

indictment,

the

plea

court.

and

was

denied

Petitioner

was

youthful

offender

sentenced

to

a

determinate

term

of

15

years

plus

5

years

of

post-release

supervision.
On direct appeal, the Appellate Division, Fourth Department,
of

New

York

State

Supreme

Court

unanimously

affirmed

the

conviction. People v. Jones, 107 A.D.3d 1611 (4th Dep’t 2013).
However,

that

contention

valid

waiver

regarding

the

did

denial

“not
of

encompass
his

request

[Petitioner]’s
for

youthful

offender status because ‘[n]o mention of youthful offender status
was made before [he] waived his right to appeal during the plea
colloquy[.]’”

Id.

(quotation

omitted).

The

Appellate Division

summarily rejected Petitioner’s contention that the trial court
abused

its

discretion

in

denying

his

request

for

youthful

offender status. Id. (citations omitted). Finally, the Appellate
Division
because

declined
his

valid

to

consider

appellate

Petitioner’s
rights

waiver

sentencing

claim

encompassed

his

challenge to the severity of his sentence. The New York State
Court

of

Appeals

denied

leave

to

appeal

and

denied

reconsideration. People v. Jones, 21 N.Y.3d 1043, reconsideration
denied, 22 N.Y.3d 956 (2013).
This timely habeas petition followed. Respondent answered
the petition, but Petitioner failed to timely file a reply. For
the reasons discussed below, the petition is dismissed.

2

III.

Discussion
A. Validity of Appellate Rights Waiver
Petitioner asserts that his waiver of appellate rights was

invalid and insufficient to preclude the denial of his request
for

youthful

sentence

as

Division

offender
harsh

held

and

that

status

and

to

excessive.

Petitioner’s

On

preclude

review

appeal,

appellate

the

rights

of

his

Appellate
waiver

was

knowing, voluntary and intelligent. People v. Jones, 107 A.D.3d
at 1611 (citations omitted).
Petitioner has not cited, and the Court is not aware of, any
federal

precedent

standing

for

the

proposition

that

specific

language must be used by the trial judge in apprising a defendant
pleading guilty of the individual rights relinquished. See Roland
v.

Rivera,

No.

06–CV–6543(VEB)(DGL),

2011

WL

1343142,

at

*4

(W.D.N.Y. Jan. 6, 2011) (rejecting as not cognizable petitioner’s
claim that the trial court failed to conduct a proper inquiry
into his understanding of the appellate rights waiver) (citing
Salaam v. Giambruno, 559 F.Supp.2d 292 (W.D.N.Y. 2008); Nicholas
v.

Smith,

No.

02

CV

6411(ARR),

2007

WL

1213417,

at

*10–11

(E.D.N.Y. Apr. 24, 2007)). The Court need not consider whether
Petitioner has a viable federal constitutional claim regarding
the alleged deficiency in his appellate rights waiver, because,
as discussed below, the underlying claims are not cognizable on
habeas review.

3

B.

Harsh and Severe Sentence

On appeal, Petitioner asserted that his 15-year determinate
sentence was unduly harsh and severe, and that the sentencing
judge abused his discretion in not imposing a shorter sentence.
Petitioner

urged

discretionary

the

authority

Appellate
under

New

Division
York

to

State

exercise
law

to

its

review

factual questions and reduce the length of his sentence in the
interests of justice. Thus, Petitioner’s claims with respect to
his sentence, based solely on state law, are not appropriate for
federal

habeas

review.

E.g.,

Holliday

v.

New

York,

No. 10–CV–0193(MAT), 2011 WL 2669615, at *2 (W.D.N.Y. July 7,
2011).
The Second Circuit has stated that no federal constitutional
issue amenable to habeas review is presented where the sentence
is within the range prescribed by state law. White v. Keane, 969
F.2d

1381,

1383

(2d

Cir.1992)

(citation

omitted).

Here,

Petitioner was a first-time felony offender convicted of assault
in the first degree (N.Y. Penal Law § 120.10(1)), a class B
violent felony offense. See N.Y. PENAL LAW § 70.02(1)(a). At the
time of sentencing in October 2011, the required sentence for a
class

B

violent

felony

offense

was

a

determinate

term

of

imprisonment fixed in whole or half years, in accordance with the
provisions of P.L. § 70.02(3). N.Y. PENAL LAW § 70.02(2)(a) (eff.
until Sept. 1, 2015, pursuant to L.1995, c. 3, § 74, par. d.).

4

Section 70.02(3) provided that the term of a determinate sentence
for a class B felony must be at least 5 years and must not exceed
25 years. N.Y. PENAL LAW § 70.02(3)(a). Petitioner was sentenced
to a determinate term of 15 years, well within the statutorily
prescribed range. Accordingly, Petitioner’s claim that the court
abused its discretion and imposed an excessive sentence fails to
present

a

federal

review.

E.g.,

constitutional

Peppard

v.

issue

Fischer,

cognizable

739

on

F.Supp.2d

habeas

303,

309

abused

its

(W.D.N.Y. 2010) (collecting cases).
C.

Denial of Youthful Offender Status

Petitioner

contends

that

the

trial

court

discretion in declining to accord him youthful offender status.
As Respondent argues, this claim is not cognizable on Federal
habeas review.
Under

New

York

law,

“[t]he

decision

whether

to

grant

youthful offender status to an eligible youth generally ‘lies
within the sound discretion of the sentencing court.’” People v.
Victor

J.,

283

A.D.2d

205,

206

(1st

Dep’t

2001)

(citation

omitted). The Second Circuit has explained that “[t]he granting
or denial of youthful offender treatment is analogous to that of
sentencing where courts have wide discretion even though there
are few or no statutory guidelines for the exercise of such
discretion.” United States ex rel. Frasier v. Casscles, 531 F.2d
645,

647

(2d

Cir.

1976)

(citations

5

omitted).

“[I]t

is

well

established

that

independent

due

the

United

process

States

right

Constitution

either

to

grants

youthful

no

offender

treatment or to any particular procedure for denying it, so long
as the trial judge imposed a sentence that was lawful under state
law. . . .” Auyeung v. David, 00 Civ. 1353, 2000 WL 1877036, at
*3

(S.D.N.Y.

647–48)).
within

As

the

regarding

Dec.

26,

discussed

statutorily
the

state

2000)
above,

(citing

Petitioner’s

permitted

court’s

Frasier,

range.

refusal

to

531

F.2d

sentence

Therefore,
afford

at

is

well-

his

claim

him

youthful

offender status does not present a constitutional issue. E.g.,
Murphy v. Artus, 07 Civ. 9468, 2009 WL 855892, at *7 (S.D.N.Y.
Apr. 1, 2009) (citation omitted).
D.

Involuntary Guilty Plea

Respondent states that, construed liberally, Petitioner’s
pleadings

can

be

read

to

assert

that

his

guilty

plea

was

involuntary. In particular, Respondent cites the point heading
regarding Ground I of Petitioner’s memorandum of law. The Court
has reviewed the memorandum of law and agrees that Petitioner is
asserting that his plea was involuntary, due to the “purported
appeal

waiver

challenge”
status

and

to

being
the

to

ineffective

trial

the

court’s

length

of

to

preclude

denial
his

of

Petitioner[’s]

youthful

sentence.

offender

Petitioner’s

involuntariness argument is similar to arguments raised elsewhere
in his petition regarding the validity of his appellate rights

6

waiver. To the extent that Petitioner’s involuntariness claim is
interpreted as a due process claim, separate and apart from his
claims concerning his appellate rights waiver, Respondent argues
that it is unexhausted because it was not presented to the state
courts in constitutional terms. “In New York, claims about the
voluntariness of a guilty plea must be presented to the state
court in one of three ways: a motion to withdraw the plea before
sentencing,

a

post-judgment

New

York

Criminal

Procedure

Law

(“C.P.L.”) § 440.10 motion in the trial court, or on direct
appeal if the record permits.” McCormick v. Hunt, 461 F. Supp.2d
104, 109 (W.D.N.Y. 2006) (citation omitted). Here, Petitioner
utilized none of these methods, and has raised the voluntariness
claim for the first time in his habeas petition.
Respondent

contends

that

the

claim

should

be

deemed

exhausted and procedurally defaulted because state procedural bar
rules operate to deny Petitioner of any available remedies in the
state courts. In the interest of judicial economy, the Court
declines
default

to

resolve

issues

and

the

exhaustion

proceeds

instead

and
to

potential
the

procedural

merits

of

the

voluntariness claim.
In evaluating whether a plea was voluntarily made, courts
consider (1) whether the defendant had the competent advice of
counsel; (2) whether he understood the consequences of pleading
guilty; and (3) whether the plea resulted from coercion, be it

7

physical or psychological. See Parke v. Raley, 506 U.S. 20, 29
(1992) (citations omitted). Petitioner asserts that his plea was
involuntary solely because he did not understand that, by waiving
his appellate rights, he was relinquishing his right to challenge
the denial

of

youthful

offender

status

and to

challenge his

sentence.
With regard to the effectiveness of the appellate waiver to
preclude review of the denial of youthful offender status, the
Appellate Division in fact agreed with Petitioner, and reviewed
the trial court’s decision regarding youthful offender status on
direct appeal. Therefore, Petitioner’s claim on that point is
moot.
The

Appellate

Division

did

not

agree

with

Petitioner

regarding the effectiveness of the waiver to preclude a challenge
to his sentence, however, and accordingly did not review his
sentencing

challenge.

Petitioner’s

assertion

that

he

did

not

understand he was giving up his right to raise a later challenge
to his sentence is belied by the following colloquy he had with
the trial court:
THE COURT: I want to be certain that you
understand what is involved in waiving your
right to appeal. You are giving up the right
to have any higher court look at this case to
see if there is any legal error which brought
about your conviction such as any pretrial
motion decided against you, anything you
might claim is improper or unfair or anything
you want to raise about the fairness of your
sentence. All of those rights would be gone;
8

you cannot raise those issues again at
later time. Do you understand that, sir?

a

DEFENDANT: Yes.
Plea Transcript, p. 8 (emphasis supplied). Thus, the record
contradicts Petitioner’s contention that the plea was involuntary
because he did not understand or agree that, as a part of the
plea agreement, he was giving up his right to contest the length
of his sentence.
E.

Constitutionally Disproportionate Sentence

In the second point of his memorandum of law, Petitioner
asserts that his sentence violates the Eighth and Fourteenth
Amendments because it is disproportionate to the seriousness of
his crime

and

does

not

take into

account

various mitigating

factors. Respondent has not addressed this claim, which is based
on the Eighth Amendment and is unexhausted, having never been
fairly presented to the state courts in federal constitutional
terms.

Although

Petitioner

challenged

his

sentence

on

direct

appeal, he requested only that the Appellate Division exercise
its statutory authority to reduce the sentence on the basis that
it was harsh and excessive. Because Petitioner could return to
state court and file a motion pursuant to C.P.L. § 440.20 to set
aside

the

sentence

on

the

ground

that

it

is

illegal

and

unconstitutional, his Eighth Amendment claim remains unexhausted.
Bester

v.

Conway,

778

F.Supp.2d

(citations omitted).
9

339,

348–49

(W.D.N.Y.

2011)

The Court has the discretion to dismiss the petition on the
merits notwithstanding Petitioner’s failure to exhaust all of his
claims. See 28 U.S.C. § 2254(b)(2). Because it has found all of
Petitioner’s claims to be without merit, the failure to exhaust
the

Eighth

Amendment

claim

does

not

preclude

this

Court’s

disposition of the instant habeas petition.
The Supreme Court has articulated a narrow principle of
“gross disproportionality”
sentence

violates

the

for

Eighth

measuring whether
Amendment

a

prisoner’s

proscription

against

“cruel and unusual punishment.” E.g., Harmelin v. Michigan, 501
U.S. 957, 998 (1991) (Kennedy, J., concurring). As that court has
noted, “‘outside the context of capital punishment, successful
challenges to the proportionality of particular sentences have
been exceedingly rare.’” Ewing v. California, 538 U.S. 11, 21
(2003) (quotation omitted). By way of illustration, in Rummel v.
Estelle, 445 U.S. 263 (1980), the Supreme Court held that a life
sentence imposed after only a third nonviolent felony conviction
did not constitute cruel and unusual punishment under the Eighth
Amendment.
Here, as explained above, Petitioner’s 15-year determinate
sentence fell roughly in the middle of the applicable sentencing
range for his conviction of the class B violent felony offense of
first degree assault with a dangerous instrument, with intent to
cause serious physical injury (P.L. § 120.10(1)). He received

10

10 years less than the 25-year maximum he could have received.
The

victim

in

this

case

survived

the

attack,

but

was

in

a

month-long coma as the result of the life-threatening injuries he
suffered. Petitioner has cited a number of factors in his favor,
such as his acceptance of responsibility and statements from
family

members

However,

that

looking

at

Eighth Amendment

this
the

and

act

was

Supreme

wholly
Court’s

disproportionality,

out

of

character.

precedents

e.g.,

on

Rummel,

the

supra,

this clearly does not present one of those rare and extreme cases
in

which

the

Supreme

Court

contemplated

intervention

by

a

reviewing court into a state’s sentencing decisions. Accordingly,
Petitioner's

claim

that

his

sentence

violated

the

Eighth Amendment cannot provide habeas relief.
IV.

Conclusion
For the reasons discussed above, the petition (Dkt.# 1) 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

§ 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

January 21, 2015
Rochester, New York.
11

U.S.C.