Reidy v. Commissioner of New York State DOCCS
Filing
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-CLERK TO FOLLOW UP-ORDER denying re 1 Petition for Writ of Habeas Corpus filed by Jesse Reidy and dismissing the complaint. The Court denies a certificate of appealability because petitioner has failed to make a substantial showing of a constitutional violation. Signed by Hon. David G. Larimer on 10/4/16. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
JESSE REIDY,
Petitioner,
DECISION AND ORDER
14-CV-6668L
v.
JOSEPH SMITH,
Respondent.
________________________________________________
Petitioner, Jessie Reidy (“Reidy”), has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 relative to a criminal conviction of attempted rape in the first
degree. The petition is in all respects denied, and the case is dismissed.
Reidy was originally charged with rape in the first degree in Erie County Supreme Court,
New York. Reidy pleaded guilty to attempted rape in the first degree (N.Y. Penal Law §
130.35[4], 110.00) on March 23, 2007. On June 21, 2007, Reidy was sentenced to a term of 42
months imprisonment with five years post-release supervision.
Reidy filed no direct appeal from that judgment and sentence, nor did he file any postjudgment motions for relief from the judgment. Reidy’s time to appeal in state court lapsed on
or about July 21, 2007. See People v. Varenga, 26 N.Y.3d 529, 538 (2015) (“where ... a
defendant does not take a direct appeal from the judgment of conviction and sentence, the
judgment becomes final 30 days after sentencing, when the defendant’s automatic right to seek
direct appellate review of the judgment expires pursuant to CPL 460.10(1)(a)”).
Reidy was, pursuant to his sentence, released from state custody. In January 2013, he
was charged in federal court with a violation of 18 U.S.C. § 922(g) (felon in possession of a
firearm). Reidy was indicted in federal court on March 20, 2013.
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Reidy was recommitted to state custody on October 1, 2013, based on his violation of the
conditions of his post-release supervision. It appears that he was discharged from state prison as
of May 28, 2015, but is now serving a separate federal sentence.1 Reidy filed the instant petition
in federal court on December 1, 2014.
In his federal habeas petition, Reidy is proceeding pro se. He now contends that his trial
counsel was ineffective and that some of the evidence against him, specifically admissions, were
unlawfully obtained by the police.
Reidy’s petition must be dismissed. It is untimely by several years, and his claims have
not been exhausted as required by statute.
With respect to exhaustion, 28 U.S.C. § 2244(d)(1) requires that petitions seeking habeas
corpus relief must be filed within one year of the underlying judgment becoming final. In this
case, Reidy’s judgment became final thirty days when his sentence was imposed on July 21,
2007. Since Reidy filed no direct appeal and filed no other state proceedings attacking that
judgment, that is the date from which the one-year period for filing a habeas corpus petition
runs. Reidy’s petition was filed more than seven years later. For that reason alone, his petition
must be denied and the case dismissed. Reidy has demonstrated no reason for this Court to
accept his petition filed at this late date. See, e.g., Williams v. Tarascio, No. 16-cv-190, 2016
WL 3198206, at *2 (D.Conn. June 8, 2016); Quezada v. Capra, No. 13-CV-8574, 2015 WL
2130217, at *5 (S.D.N.Y. May 6, 2015).
Most likely, what moved petitioner to file when he did was the fact that he became reincarcerated upon a violation of the terms of his post-release supervision. That circumstance
does not toll or excuse Reidy’s failure to timely file the habeas corpus petition, which relates to
matters occurring upon his original arrest and prosecution, and which has no relevance to the
violation of the terms of his post-release supervision.
1
Reidy was sentenced on March 5, 2014 by a judge of this Court (13-CR-00072) to a 60-month term of imprisonment
for a firearms offense concurrent with his state court conviction that is the subject of the instant habeas corpus petition
(NYS Dkt. No. 06-02212).
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Reidy has also failed to comply with the well-recognized requirement that claims
presented to federal court on a habeas corpus petition must first be presented to the state court,
and that the petitioner must exhaust his state remedies. That principle has long been recognized.
See Rose v. Lundy, 455 U.S. 509 (1982); Boyland v. Artus, No. 14-CV-1047, 2016 WL 4718196,
at *4 (W.D.N.Y. Sept. 8, 2016). Reidy has never presented any of his current claims in state
court.
Federal courts have recognized an exception to the exhaustion requirement where the
petitioner claims “actual innocence.” Reidy now claims, years after he admitted his guilt, that he
is innocent of the underlying charge.
Reidy has presented virtually no evidence supporting this claim. He has attacked the
credibility of some of the witnesses who testified against him, but these arguments could have
been raised long ago.
To proceed on an actual-innocence claim, a petitioner must present a claim that is both
“credible” and “compelling.” Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (quoting House
v. Bell, 547 U.S. 518, 521 (2006)). “[T]o be ‘credible,’ [the claim] must be supported by ‘new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.’” Id. (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995)). “For the claim to be ‘compelling,’ the petitioner must
demonstrate that ‘more likely than not, in light of the new evidence, no reasonable juror would
find him guilty beyond a reasonable doubt–or to remove the double negative, that more likely
than not any reasonable juror would have reasonable doubt.’” Rivas, 687 F.3d at 541 (quoting
House, 547 U.S. at 538).
Reidy has met neither standard here. He has not presented any new evidence, nor do his
arguments present a credible claim of innocence.
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As pointed out by respondent, Reidy made confessions to law enforcement, which he
never sought to suppress, and he admitted his guilt again in his sworn allocution at the time he
pleaded guilty in state court.
The transcript of the plea proceeding of March 23, 2007 is a part of the record before this
Court. That plea colloquy before Justice Penny M. Wolfgang was precise and thorough, and left
no doubt regarding Reidy’s guilt. During the plea colloquy, Reidy was advised that he would
receive the minimum sentence of 42 months, plus five years post-release supervision. He
admitted that on July 1, 2006, he had sexual intercourse with a 12-year-old girl, at her home.
When the prosecutor pointed out that Reidy had sexual contact multiple times with the victim, he
admitted that as well.
Reidy’s assertion that his inculpatory statements were unlawfully obtained is also
untimely, and unexhausted. Reidy failed to present this claim to the state courts, either prior to
or after his plea. His latter-day doubts about the strength of the evidence against him, years after
he admitted his guilt in open court, can hardly be said to amount to an “extraordinary” case that
would warrant excusing Reidy’s failure to exhaust his state remedies.
Grasping at whatever straws he can, Reidy also now claims that his lawyer was
ineffective. He has provided no cogent basis for that assertion. Reidy’s counsel obtained a
favorable plea and sentence, especially considering that seriousness of the charges against Reidy.
Counsel is “strongly presumed” to have rendered adequate assistance, with a high level
of deference placed upon the strategic decisions counsel makes. Strickland v. United States, 466
U.S. 668, 689 (1984). That “heavy measure of deference to counsel’s judgments” applies to plea
negotiations no less than to other matters. Romero v. United States, No. 05-cr-184, 2015 WL
5148802, at *4 (S.D.N.Y. Aug. 21, 2015) (quoting Strickland, 466 U.S. at 691).
“The Supreme Court has specifically cautioned that in the plea context, courts must be
wary of the ‘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
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entered.’” Espinal v. Lee, No. 13 Civ. 8692, 2014 WL 5643418, at *10 (S.D.N.Y. Nov. 3, 2014)
(quoting Premo v. Moore, 562 U.S. 115 (2011)). Reidy’s belated regrets now, almost a decade
after the incidents charged, do not give rise to a viable habeas claim.
CONCLUSION
The petition for habeas corpus relief is in all respects denied and the case dismissed.
Petitioner, Jesse Reidy, has failed to timely file the petition and has completely failed to exhaust
state court remedies concerning the claims he now raises.
The Court denies a certificate of appealability because the petitioner has failed to make a
substantial showing of a constitutional violation.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 4, 2016.
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