Bishop v. Uhler
DECISION AND ORDER denying Petitioners request for a writ of habeas corpus and dismissing the petition (Dkt #1). (The Clerk of Court is directed to close this case and mail a copy of this Decision and Order to Petitioner.) Motions terminated: 12 MOTION for Extension of Time to File filed by Lance R. Bishop.. Signed by Hon. Michael A. Telesca on 10/25/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LANCE R. BISHOP,
DECISION AND ORDER
Proceeding pro se, Lance R. Bishop (“Petitioner”) instituted
this proceeding pursuant to 28 U.S.C. § 2254, alleging that he is
being unlawfully detained in Respondent’s custody. Petitioner is
presently incarcerated as the result of a judgment of conviction
entered against him in New York State Monroe County Court (Keenan,
Factual Background and Procedural History
The conviction here at issue stems from the shooting death of
September 27, 2008, in the City of Rochester. Petitioner was
alleged to have intentionally shot Robinson-Brown three times,
killing him. A Monroe County grand jury indicted Petitioner for
Murder in the Second Degree (intentional murder) under New York
Penal Law (“P.L.”) § 125.25(1)); Criminal Possession of a Weapon in
the Second Degree (possession of a loaded firearm outside of home
or business) under P.L. § 265.03(3)); and Criminal Possession of a
Weapon in the Third Degree (possession of a weapon after conviction
of a crime) under P.L. § 265.02(1)).
Just prior to the commencement of Petitioner’s trial, the
parties reached an agreement pursuant to which Petitioner would
plead guilty to Manslaughter in the First Degree in satisfaction of
determinate sentence of between 20 and 25 years’ imprisonment, plus
5 years of post-release supervision (“PRS”). On May 8, 2009,
Petitioner pled guilty before the County Court, which sentenced him
to 23 years’ imprisonment plus 5 years’ PRS.
Petitioner pursued a direct appeal to the Appellate Division,
unanimously affirmed the conviction. People v. Bishop, 115 A.D.3d
1243 (4th Dep’t 2014). The New York Court of Appeals denied leave
to appeal on June 24, 2014, and denied reconsideration on December
24 N.Y.3d 1082 (2014).
While his direct appeal was pending, Petitioner twice moved
the County Court to vacate the judgment pursuant to New York
Criminal Procedure Law (“C.P.L.”) § 440.10. The first motion raised
no issues relevant to Petitioner’s habeas claims. The second C.P.L.
§ 440.10 motion raised the issue of whether the County Court,
during the plea colloquy, adequately inquired as to the existence
of a justification defense, but Petitioner withdrew the motion
before it was decided.
After the Appellate Division affirmed the judgment, Petitioner
filed three more motions to vacate in the County Court. While the
third and fifth motions raised no issues relevant to the habeas
jurisdictional claim Petitioner had raised on direct appeal; this
claim was found to be procedurally barred under N.Y. Crim. Proc. L.
§ 440.20(2) because it had been determined on the merits on direct
appeal. Petitioner did not seek leave to appeal to the Appellate
Division with regard to any of the five motions to vacate.
asserting the following grounds for relief: (1) his guilty plea was
not entered voluntarily and intelligently in violation of the Due
Process Clause of the Fourteenth Amendment; and (2) the indictment
was defective on several bases. Petitioner also sought permission
to amend the petition and have it held in abeyance, which the Court
(Siragusa, D.J.) denied. Respondent then answered the petition and
interposed the affirmative defenses of exhaustion and procedural
default. Respondent alternatively argued that none of Petitioner’s
claims has merit. Petitioner did not file a traverse.
For the reasons discussed below, the petition is dismissed.
Involuntariness of the Guilty Plea (Ground One)
Petitioner contends that his guilty plea was involuntary
because the County Court failed to inquire as to the existence of
a justification defense, the County Court failed to ask whether the
plea had been induced by improper promises, and the County Court
did not explicitly advise Petitioner of the right to testify at
trial and the right to remain silent.
Failure of Court to
At the arraignment on October 16, 2008, the prosecution served
notice of its intent to offer evidence at trial of a pre-arrest
conversation between Petitioner and Investigator Glenn Weather of
the Rochester Police Department concerning an injury sustained by
Investigator Weather asked Mr. Bishop if he was okay and
if he needed any medical attention, as he understood he
had been quite injured. The defendant said he was okay,
and that a private doctor had treated him. The defendant
said that he would have to go to Strong Memorial to be
treated for nerve damage, but was feeling okay.
Numerals preceded by “SCR” refer to page citations in the volume of
documents entitled “State Court Record” (Dkt #21-1), and numerals preceded by
“TR” refer to page citations in the volume of documents entitled “Transcripts”
The subject of Petitioner’s injuries arose later in connection
with his pretrial bail application on February 11, 2009. At that
time, trial counsel advised the County Court as follows:
I think the Court’s also aware [of] what I anticipate as
a potential defense. Mr. Bishop, in fact, had sustained
some injuries that evening. And I believe that several
witnesses will attest to this being the product of a
fight rather than a flat out assault of some sort.
(T.13-14). The prosecutor disagreed with this characterization,
instead describing the shooting as “an actual execution of the
victim” after the alleged struggle began. (T.14-15).
Petitioner claims that the County Court, at the plea hearing,
should have revisited the issue of the injuries he sustained around
the time of the incident to ensure that he was aware he was giving
up a potential defense of justification.
On direct appeal, the
Appellate Division relied on New York’s contemporaneous objection
rule codified at C.P.L. § 470.05(2) in declining to address the
claim’s merits. See Bishop, 115 A.D.3d at 1244 (claim was not
preserved for review as a result of failure to move to withdraw the
plea or to vacate the judgment of conviction and, “[f]urthermore,
‘[n]othing in the plea allocution raised the possibility that [a
justification defense was] applicable in this case, and defendant’s
contention therefore does not fall within the narrow exception to
the preservation rule’”) (brackets in original; quotations and
citations omitted). Respondent argues that the Appellate Division’s
reliance on C.P.L. § 470.05(2) was an adequate and independent
state ground that renders the claim procedurally defaulted.
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). Here, the Appellate Division “actually . . . relied on
the procedural bar as an independent basis for its disposition of
the case” by “clearly and expressly stat[ing] that its judgment
rest[ed] on a state procedural bar.” Harris v. Reed, 489 U.S. 255,
Petitioner’s contention regarding the County Court’s failure to
inquire into a potential justification defense. See id. The fact
that the Appellate Division ruled in the alternative on the merits
of the claim does not alter this result. Velasquez v. Leonardo, 898
F.2d 7, 9 (2d Cir. 1990) (citation omitted). Furthermore, it was a
fully “adequate” basis for the decision because it was “based on a
rule that is ‘firmly established and regularly followed’ by the
state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999)
(quotation omitted). “In New York, the ‘firmly established and
regularly followed rule,’ for preserving a claim that a guilty plea
was involuntarily entered requires a defendant to move to withdraw
the plea or to vacate the judgment of conviction.”
Kirkpatrick, 741 F. Supp.2d 447, 453–54 (W.D.N.Y. 2010) (internal
39 A.D.3d 1021, 1022 (3d Dep’t 2007) (“[D]efendant’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[.]”)). Thus, the procedural bar
relied upon by the Appellate Division is both independent and
adequate and operates to bar habeas review of the merits of
Petitioner’s claim, unless he can show “cause” for the default and
“prejudice” attributable thereto, Murray v. Carrier, 477 U.S. 478,
485 397 (1986), or demonstrate that the failure to consider the
federal claim on habeas will result in a “fundamental miscarriage
of justice,” id. at 495 (quotation omitted).
prejudice, or that a fundamental miscarriage of justice will occur
if this Court declines to consider the claim. Indeed, the Court
finds that prejudice is lacking because the Supreme Court has never
held that it is constitutionally imperative that a defendant be
aware of the defenses he is forgoing by pleading guilty. See, e.g.,
United States v. Broce, 488 U.S. 563, 573 (1989) (“Our decisions
have not suggested that conscious waiver is necessary with respect
to each potential defense relinquished by a plea of guilty.”);
Brady v. United States, 397 U.S. 742, 757 (1970) (“A defendant is
not entitled to withdraw his plea merely because he discovers long
after the plea has been accepted that his calculus misapprehended
the quality of the State’s case or the likely penalties attached to
alternative courses of action.”).
Respondent raises the defense of non-exhaustion with regard to
involuntariness of his guilty plea, namely,
that the County Court
failed to ask whether he had been induced by improper promises to
accept the plea and failed to explicitly advise him that he was
giving up his right to testify and to remain silent. As Respondent
points out, Petitioner has never fairly presented these claims in
Federal constitutional terms to the State courts in the course of
completing one round of the State’s established appellate review
process, thereby rendering these claims unexhausted. See Baldwin v.
Reese, 541 U.S. 27, 29 (2004).
In the exhaustion context, “‘a federal habeas court need not
require that a federal claim be presented to a state court if it is
clear that the state court would hold the claim procedurally
barred.’” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quotation
omitted). “In such a case, a petitioner no longer has ‘remedies
available in the courts of the State’ within the meaning of
28 U.S.C. § 2254(b).” Grey, 933 F.2d at 120. If the petitioner no
longer has “remedies available” in the state courts under 28 U.S.C.
§ 2254(b), the federal courts “deem the claims exhausted.” Bossett
v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S.
1054 (1995). However, the State’s barriers to relief that cause the
Court to deem Petitioner’s claims exhausted also renders them
procedurally defaulted. See, e.g., Ramirez v. Att’y Gen’l of N.Y.,
280 F.3d 87, 94 (2d Cir. 2001) (“Even if a federal claim has not
been presented to the highest state court or preserved in lower
state courts under state law, it will be deemed exhausted if it is,
as a result, then procedurally barred under state law.”) (citing
Grey, 933 F.2d at 120–21).
Petitioner makes no showing of cause and prejudice or that
miscarriage of justice, i.e., that he is “actually innocent.” See,
e.g., Schlup v. Delo, 513 U.S. 298, 321 (1995). These claims are
therefore dismissed as procedurally defaulted.
Claims Relating to the Insufficiency of the Indictment
Petitioner’s second ground in the petition challenges the
sufficiency of the indictment as amended at the plea hearing, when
the County Court reduced the first count of the indictment from
murder to the lesser-included offense of first-degree manslaughter
in order to effectuate the plea bargain. In so doing, the County
first-degree manslaughter. Specifically, the County Court stated
that the indictment was amended to charge “Manslaughter in the 1st
Degree in violation of . . . [P.L.] Section 120.20 subdivision 1.”
(TR.66). However, P.L. § 120.20(1) does not exist. First-degree
manslaughter, as a lesser-included offense of second-degree murder,
is defined in P.L. § 125.20(1), and therefore the County Court
should have stated that the indictment was amended to charge a
violation of P.L. § 125.20(1).
Petitioner contends that the County Court’s misstatement of a
digit of the statutory section number for first-degree manslaughter
deprived it of jurisdiction to adjudicate his plea, failed to
provide adequate notice of the charge against him, and foreclosed
Petitioner’s due process challenge to the amended indictment is
procedurally barred as a consequence of both his guilty plea and
his waiver of appellate rights.
The Jurisdictional Claim
Petitioner’s “challenge to the alleged amendment to the indictment”
was “unavailing” because “[a]lthough the indictment was amended at
the beginning of the plea proceeding to reflect the charge to which
defendant ultimately pleaded guilty under the agreement,” the
“County Court’s reference to an incorrect Penal Law provision,
while referring to the crime of manslaughter in the first degree by
name, was akin to a mere ‘misnomer in the designation of the crime
Bishop, 115 A.D.3d at 1244 (quotation and citations omitted). The
“misstatement” was simply “‘an irregularity’” that did “not survive
[his] plea of guilty[.]” Id. (quotation and citations omitted). The
rejecting Petitioner’s challenge to the indictment, as discussed
It is well established that “[a] knowing and voluntary guilty
proceedings.” United States v. Coffin, 76 F.3d 494, 496 (2d Cir.
1996) (citations omitted). In United States v. Cotton, 535 U.S.
625, 628 (2002), the Supreme Court addressed the jurisdictional
effect of an inadequate indictment. At issue in Cotton was whether
a district court could sentence defendants for possession of over
50 grams of cocaine under 18 U.S.C. § 841(b)(1)(A) when the
§ 841(b)(1)(C). The defendants in Cotton did not challenge the
indictment at trial or sentencing, but the Fourth Circuit vacated
their sentences under plain error review on the basis that an
indictment setting forth all the essential elements of an offense
is both mandatory and jurisdictional. The Supreme Court reversed,
explaining that jurisdiction refers to “the courts’ statutory or
constitutional power to adjudicate the case.” Id. at 630 (quotation
omitted; (citing Lamar v. United States, 240 U.S. 60, 65 (1916)
(“Jurisdiction is a matter of power, and covers wrong as well as
right decisions. . . . The objection that the indictment does not
charge a crime against the United States goes only to the merits of
the case.”); United States v. Williams, 341 U.S. 58, 68-69 (1951)
(stating that “[t]hough the trial court or an appellate court may
conclude that the statute [charged in the indictment] is wholly
unconstitutional, or that the facts stated in the indictment do not
constitute a crime or are not proven, [the court] has proceeded
with jurisdiction. . .”)).
Based on the foregoing precedent, the Appellate Division did
not err as a matter of Federal law in holding that the Court’s
misstatement in designating the crime charged did not give rise to
a jurisdictional defect. Because any defect was non-jurisdictional,
the Appellate Division correctly held that Petitioner’s voluntary
guilty plea precluded a challenge to the indictment. See United
States v. Rubin, 743 F.3d 31, 35 (2d Cir. 2014) (by pleading guilty
regarding online gambling, defendant waived his challenge that the
indictment failed to state an offense because it alleged that he
did nothing more than handle gambling funds, which was expressly
generally exempted from prosecution under the statute at issue;
holding that “even assuming arguendo that Count One alleged a
so-called ‘non-offense,’ [the defendant] Rubin’s unconditional
guilty plea precludes his argument on appeal”).
The Due Process Lack-of-Notice and Double Jeopardy
Respondent has construed Petitioner’s remaining two claims
based on the County Court’s misstatement as raising challenges
under the Fourteenth Amendment’s Due Process Clause and the Fifth
Amendment’s guarantee against double jeopardy, as made applicable
to the States through the Fourteenth Amendment. The Court agrees
with Respondent’s liberal interpretation of Petitioner’s pro se
submissions. See, e.g., Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (“It is well established that the
submissions of a pro se litigant must be construed liberally and
interpreted ‘to raise the strongest arguments that they suggest.’”)
(quotation and citations omitted).
An indictment fulfills the notice function of the Due Process
Clause by “contain[ing] the elements of the offense charged and
fairly inform[ing] a defendant of the charge against which he must
defend.” United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007).
defendant] him to
acquittal or conviction in bar of future prosecutions for the same
Amendment’s double jeopardy provision, which is incorporated in the
Fourteenth Amendment’s Due Process Clause, Benton v. Maryland, 395
U.S. 784, 794 (1969).
Respondent argues that because the alleged
indictment are non-jurisdictional, they do not survive Petitioner’s
counseled and voluntary guilty plea. See, e.g., United States v.
Garcia, 339 F.3d 116, 117 (2d Cir. 2003) (“[A] defendant who
non-jurisdictional defects in the prior proceedings.”). The Court
notes that double jeopardy claims “are not automatically waived by
the entry of a guilty plea.” Padilla v. Brady, No. 13-CV-7908 JPO,
2015 WL 394090, at *2 (S.D.N.Y. Jan. 29, 2015) (citing Menna v.
New York, 423 U.S. 61, 62 (1975) (“Where the State is precluded by
the United States Constitution from haling a defendant into court
on a charge, federal law requires that a conviction on that charge
be set aside even if the conviction was entered pursuant to a
counseled plea of guilty.”) (citing Blackledge v. Perry, 417 U.S.
21, 30 (1974)). However, Petitioner here “raises a defective
indictment claim; the double jeopardy clause is implicated only
because protection from double jeopardy is one of the interests
furthered by a sufficiently precise indictment[,]” Padilla, 2015 WL
394090, at *2, “[a]nd defective indictment claims do not fall
within Menna’s exception to Tollett's general rule that petitioners
‘may only attack the voluntary and intelligent character of [a]
guilty plea. . . .’” Id. (quoting Tollett, 411 U.S. at 267).
Petitioner therefore waived this challenge when he pleaded guilty.
indictment for the same offenses in violation of double jeopardy).
With regard to the lack-of-notice claim, the Court finds that
this also was waived by Petitioner’s entry of the guilty plea.
During his plea colloquy, Petitioner knowingly, voluntarily, and
intelligently allocuted to all of the elements of first-degree
manslaughter as defined in P.L. § 125.20(1).2 Specifically, in
response to the prosecutor’s questioning, Petitioner admitted that
at about 8 a.m. on September 27, 2008, he was in the area of
Alphonse Street and Hudson Avenue in the City of Rochester, with a
person he knew as “Kenny.” Petitioner admitted that he was carrying
a loaded revolver, and that he shot Kenny three times with intent
to cause serious physical injury to him, and thereby caused Kenny’s
death. (TR.66-68). The County Court indicated that it was satisfied
with that allocution. When asked how he pled to “the reduced
Manslaughter 1st Degree charge under court 1 of the indictment,”
Petitioner responded, “Guilty.” The County Court then accepted the
“A person is guilty of manslaughter in the first degree when: 1. [w]ith
intent to cause serious physical injury to another person, he causes the death
of such person or of a third person. . . .” N.Y. Penal Law § 125.20(1).
The Supreme Court explained in Menna that “[i]n most cases,
factual guilt is a sufficient basis for the State’s imposition of
punishment.” 423 U.S. at 63 n. 2. “A guilty plea, therefore, simply
renders irrelevant those constitutional violations not logically
inconsistent with the valid establishment of factual guilt and
which do not stand in the way of conviction if factual guilt is
validly established.” Petitioner’s guilty plea, which followed an
adequate factual allocution, “render[ed] irrelevant[,]” id., the
alleged lack of notice due to the County Court’s misstatement in
amending the indictment. In other words, even assuming the County
inconsistent with the valid establishment of [Petitioner’s] factual
guilt[,]” id., of the crime of first-degree manslaughter.
In sum, the State’s establishment of Petitioner’s factual
guilt of the crime for which he was ultimately convicted and
sentenced forecloses his ability to challenge the County Court’s
mistaken reference, prior to the entry of the guilty plea, to a
non-existent section of New York’s Penal Law. Schwartz v. Connell,
No. 05 CIV. 10305(RPP), 2006 WL 3549660, at *4 (S.D.N.Y. Dec. 6,
2006) (“Petitioner’s claim is that the indictment was not specific
enough to alert him of the acts with which he was charged. His
irrelevant the sufficiency of the charging instrument.”).
For the foregoing reasons, Petitioner’s request for a writ of
habeas corpus is denied, and the petition (Dkt #1) is dismissed.
Because Petitioner has not “made a substantial showing of the
denial of a constitutional right[,]” 28 U.S.C. § 2253(c)(2), no
certificate of appealability shall issue. The Clerk of Court is
directed to close this case and mail a copy of this Decision and
Order to Petitioner.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
October 25, 2017
Rochester, New York.
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