Cimino v. New York State

Filing 6

DECISION AND ORDER denying the application for a writ of habeas corpus and dismissing the petition. (Clerk to close case.)(JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAYMOND CIMINO,
Petitioner,

No. 6:17-cv-06446-MAT
DECISION AND ORDER

-vsNEW YORK STATE,
Respondent.

INTRODUCTION
Raymond Cimino (“Petitioner”) brings this pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254 (“Section 2254”), alleging
that he is being held in custody in violation of his constitutional
right of access to the courts. Petitioner is currently serving a
term of 15 years to life, pursuant to a November 8, 2002 judgment
entered in Monroe County Court of New York State, following a jury
verdict convicting him of two counts of attempted aggravated
assault

on

a

police

officer

(New

York

Penal

Law

(“P.L.”)

§§ 110.00, 120.11), and three counts of first-degree reckless
endangerment (P.L. 120.25). For the reasons discussed herein, the
request for a writ of habeas corpus is denied and the petition is
dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.

The 2014 Motion to Vacate
On July 1, 2014, Petitioner filed a motion in Monroe County

Court pursuant to New York Criminal Procedure Law (“CPL”) § 440.10

arguing that, inter alia, defense counsel Louis P. Pilato, Esq.
(“Trial Counsel”) had misadvised him about his sentencing exposure
while Petitioner was considering what he deemed a “plea offer.” In
support of the motion, Petitioner included a June 2014 affirmation
from Trial Counsel, stating that before trial, the prosecutor had
indicated that if Petitioner pleaded guilty to the indictment, “the
sentence would be a 15 year determinate sentence of imprisonment to
be followed by 5 [years] of post-release supervision (PRS).” Trial
Counsel affirmed that he told Petitioner that the prosecutor’s
“offer” was not “all that beneficial since it basically consisted
of the maximum sentence that could be imposed.” (SR.429-30).1 Trial
Counsel also stated that he had not anticipated that the prosecutor
would ask the County Court to exercise its discretion to sentence
Petitioner as a persistent felony offender (“PFO”) under P.L.
§

70.08.

(SR.9,

200,

429-30).

According

to

Trial

Counsel’s

recollection, the prosecutor expressed “the exact opposite” of an
“intention or desire to treat [Petitioner] as a possible PFO if
there was a conviction,” and, therefore, Trial Counsel never
advised Petitioner that the possibility of enhanced sentencing
“even remotely exist[ed].” (SR.429-30). Petitioner claimed that he
would have pleaded guilty, and accepted a 15-year determinate
prison sentence rather than risk the possibility of a life term,

1

Citations to “SR.” in parentheses refer to pages in the separately bound
volume of State court records filed by Respondent.

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had

Trial

Counsel

advised

him

that

he

was

eligible

for

PFO

treatment. (SR.7).
The County Court issued a decision and order on November 13,
2014, denying the motion on procedural and substantive grounds.
(SR.236-43). Citing CPL § 440.10(3)(c),2 the County Court held that
Petitioner

could

have

brought

it

in

a

prior

motion

but

unjustifiably did not. (SR.238). Substantively, the County Court
did not credit Petitioner’s claim that he and Trial Counsel were
unaware that the prosecutor would seek enhanced sentencing. At the
sentencing hearing, the County Court recalled, neither Petitioner
nor Trial Counsel expressed “surprise or indignation that the
prosecutor would be pursuing a ‘persistent felony’ adjudication.”
(SR.239). The County Court likewise did not credit Petitioner’s
assertion that the prosecutor in fact had extended a plea offer,
noting that the prosecutor’s opposition papers did not concede the
existence of such an offer. In addition, the County Court noted
that

Trial

Counsel’s

affirmation

did

not

indicate

that

the

prosecutor had extended a plea bargain offer, since Trial Counsel
stated that Petitioner would have had to plead guilty to the entire
indictment. (SR.239-40). And, the County Court stated, it did not
believe that Petitioner actually would have pleaded guilty, even if

2

“Notwithstanding the provisions of [CPL § 440.10(1)], the court may deny
a motion to vacate a judgment when: (c) [u]pon a previous motion made pursuant
to this section, the defendant was in a position adequately to raise the ground
or issue underlying the present motion but did not do so.” N.Y. CRIM. PROC. LAW §
440.10(3)(c).

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the prosecutor had offered a determinate 15-year sentence, given
that Petitioner had “continually professed his innocence throughout
the post-trial litigation.” (SR.240-41).
II.

The CPL § 440.20 Motion and the Screening Order
On February 2, 2016, Petitioner filed a pro se motion in the

County Court to set aside his sentence pursuant to CPL § 440.20.
(SR.304-34). On April 22, 2016, the County Court denied the motion
as meritless and noted that Petitioner could have raised the claim
in

an

earlier

CPL

§ 440

motion.

(SR.349-53).

Observing

that

Petitioner already had filed numerous CPL § 440 motions as well as
two federal habeas petitions, a direct appeal, and a motion for a
writ of error coram nobis, the County Court found that Petitioner’s
“frivolous” arguments had resulted in a “waste of resources.”
(SR.352). The County Court therefore “enjoined [Petitioner] from
any further pro se motions without first seeking the permission of
th[e] [County] Court by specifically identifying and stating the
basis upon which he believes he is entitled to legal relief.”
(SR.353). Petitioner sought leave to appeal the denial of the CPL
§ 440.20 motion in the Appellate Division, Fourth Department, of
New York State Supreme Court (“Fourth Department”), but did not
challenge the County Court’s screening order. (SR.355-412).
III. The Proposed CPL § 440.10 Motion in 2016
Nine days after the County Court issued the screening order,
Petitioner requested permission to file another CPL § 440.10 in

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which he proposed to claim that he would have accepted a plea
bargain had Trial Counsel “been more knowledgeable of New York’s
persistent felony statute and advised [him] thereof [sic] [his]
true sentencing exposure.” (SR.423). In a decision and order dated,
the County Court denied the request, noting that Petitioner had
raised “the identical argument” in his 2014 CPL § 440.10 motion
which had been denied. (SR.424).
In papers dated October 1, 2016, and December 20, 2016,
Petitioner

renewed

his

request

for

permission

to

file

a

CPL

§ 440.10 motion. Petitioner included in his December 2016 papers a
letter from the trial judge, dated September 6, 2016. (SR.426-28).
In the letter, the trial judge stated that he “would have accepted
and

honored

aggregate

15

the

People’s

year

purposed

determinate

[sic]

prison

plea

term

agreement

plus

5

years

(An
of

postrelease supervision in exchange for [Petitioner’s] guilty plea
to the Indictment in its entirety) had [Petitioner] not rejected
the People’s offer.” (SR.428). Petitioner also enclosed a copy of
Trial Counsel’s June 2014 affirmation. (SR.429-30).
On January 26, 2017, the County Court reiterated its denial of
permission to file the proposed motion, finding that the trial
judge’s

letter

“sheds

no

additional

light

on

[Petitioner’s]

claims.” (SR.433). The County Court noted that Trial Counsel’s
letter “has been included by [Petitioner] in prior motions that
have been considered, and rejected[.]” (SR.433). The County Court

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concluded that Petitioner had presented “no additional grounds,
based in either fact or law, . . . which would cause this Court to
grant [Petitioner] leave to submit an additional motion pursuant to
CPL 440.” (SR.433).
IV.

The Motion for Poor Person Status
On March 18, 2017, Petitioner filed a motion for poor person

status in the Fourth Department in anticipation of moving to enjoin
enforcement of the County Court’s screening order. (SR.436-42). On
April 10, 2017, the Fourth Department denied the motion because
Petitioner “failed demonstrate merit to the proceeding.” (SR.443).
V. The Prior Federal Habeas Corpus Petitions
Petitioner has challenged his 2002 conviction in two prior
federal habeas corpus petitions under 28 U.S.C. § 2254 filed in
this Court. The first petition was denied on March 2, 2011. See
Decision & Order (Dkt #22) in Cimino v. Conway, 6:08-cv-06318-MAT
(W.D.N.Y. Mar. 2, 2011) (“Cimino I”). On September 1, 2011, the
Second Circuit denied Petitioner’s motion for a certificate of
appealability and dismissed his appeal. See Mandate (Dkt #26) in
Cimino I. In the second Section 2254 proceeding, this Court found
that the petition did not qualify as a successive petition because
it presented a sentencing claim that could not have been raised in
the previous petition. The Court denied the petition on the merits
on February 27, 2017. See Decision & Order (Dkt #12) in Cimino v.
Conway, 6:16-cv-06189-MAT (W.D.N.Y. Feb. 27, 2017)

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(“Cimino II”).

VI.

The Instant Habeas Proceeding
In the currently pending petition (“Cimino III”), Petitioner

asserts he was denied his constitutional right of access to the
courts by the County Court’s January ,

2017 order denying him

permission to file another CPL § 440.10 motion. Petitioner contends
that the Fourth Department further denied him meaningful access to
the court through its order dated denying his request to proceed as
a poor person and denying leave to appeal the County Court’s
January 2017 order. Respondent argues that the “access to the
courts” claim is not cognizable on habeas review, and, in any
event, is unexhausted and meritless.3 Petitioner responds that he
“fairly presented his Federal claim in a New York Civil Practice
Law and Rule Article 78 action, [in] which he was denied poor
person relief[,]” but “[n]o appeal lies to the New York State Court
of Appeals from the appellate [c]ourt’s decision, which denied the
Petitioner poor persons relief.” (Reply (Dkt #5) at 3). Although
Respondent has raised the affirmative defense of non-exhaustion,
the

Court

will

dispose

of

petition

on

the

merits

since

the

underlying issues are more easily resolved. See, e.g., Brown v.
Thomas, No. 02 Civ. 9257(GEL), 2003 WL 941940, at *1 (S.D.N.Y. Mar.
3

Respondent also argues that “[t]o the extent that this Court construes the
petition as raising a claim of ineffective assistance of trial counsel, the
petition is successive, and this Court must transfer it to the Court of Appeals.”
Respondent’s Memorandum of Law (“Resp’t Mem.”) at 16. The Court does not construe
the petition as raising such a claim and neither, apparently, does Petitioner.
The petition is clearly directed at the allegedly unconstitutional actions of the
County Court and the Fourth Department. Therefore, the Court need not undertake
a “second or successive petition” analysis.

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10, 2003) (declining to resolve complicated exhaustion issue in
parole

denial

“potentially

case

complex

and

noting

and

that

difficult

in

habeas

issues

corpus

about

the

cases

various

obstacles to reaching the merits should not be allowed to obscure
the fact that the underlying claims are totally without merit”); 28
U.S.C. § 2254(b)(2) (providing that a petition “may be denied on
the merits, notwithstanding the failure of the applicant to exhaust
the remedies in the courts of the State”).
DISCUSSION
Federal
available

habeas

only

to

corpus

relief

persons

who

under
can

28

U.S.C.

establish

§

2254

that

is

their

incarceration violates the Constitution, law or treaties of the
United States. See 28 U.S.C. § 2254(a) (“[A] district court shall
entertain an application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State court only
on

the

ground

that

he

is

in

custody

in

violation

of

the

Constitution or laws or treaties of the United States.”); Smith v.
Phillips, 455 U.S. 209, 221 (1982) (“A federally issued writ of
habeas corpus . . . reaches only convictions obtained in violation
of some provision of the United States Constitution.”).
that

a

State

court

erred

in

applying

its

own

laws

Claims
are

not

cognizable in a Federal habeas corpus proceeding. See id. at 221
(“Federal courts hold no supervisory authority over state judicial

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proceedings

and

may

intervene

only

to

correct

wrongs

of

constitutional dimension.”) (citations omitted).
Here, Petitioner challenges rulings by the State courts in
connection with various collateral motions for post-conviction
relief.

The constitution, however, does not require a state to

provide a criminal defendant any post-conviction avenues of relief.
See Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (“‘[I]t is
clear that the State need not provide any appeal at all.’”)
(quoting

Ross

v.

Moffitt,

417

U.S.

600,

610-11

(1974));

United States v. MacCollom, 426 U.S. 317, 323 (1976) (“The Due
Process Clause of the Fifth Amendment does not establish any right
to an appeal, and certainly does not establish any right to
collaterally attack a final judgment of conviction.”) (internal
citation and footnote omitted).

Post-conviction proceedings such

as motions to vacate under CPL § 440.10 and motions to set aside
the sentence under CPL § 440.20 thus are discretionary proceedings.
Turning to the State courts’ rulings themselves, the County
Court recognized in its screening order that although “the right to
defend pro se is constitutionally protected and statutorily granted
in New York, such right ‘is not absolute but subject to certain
restrictions.’” (SR.352 (citing People v. Moore, 17 Misc.3d 228,
232 (N.Y. Sup. Ct. 2007) (quoting People v. McIntyre, 36 N.Y.2d 10,
17 (1974)). Given that New York’s criminal justice system is
already “overburdened,” courts have condoned efforts “to curtail

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the waste of resources” resulting from “the proliferation of
frivolous” motions by pro se defendants. People v. Rivera, 159
Misc.2d 556, 561 (N.Y. Sup. Ct. 1993) (citations omitted). As the
County Court observed, the remedy most often imposed in cases
similar to Petitioner’s has been “enjoining a defendant from making
any further motions relating to his conviction and sentence without
first seeking leave from the [c]ourt.” (SR.352-53 (collecting
cases)). This Court’s review of the case law indicates that,
without a doubt, New York State courts have “authority to curtail
the waste of resources resulting from [frivolous pro se motions.”
Rivera, 159 Misc.2d at 561. In particular, screening orders such as
the one issued by the County Court here are well within a court’s
discretion. See, e.g., People v. Davis, 32 Misc.3d 1201(A), 2011 WL
2518627 (N.Y. Sup. Ct. 2011) (“Defendant’s five motions pursuant to
CPL § 440 and his four petitions for habeas relief have all been
denied, as have his numerous appeals of these denials, without
deterring

Defendant

from

continuing

to

pursue

such

meritless

claims. Under such circumstances, it is appropriate to enjoin
Defendant from filing any further motions in this action without
first obtaining written permission from this Court.”) (citing inter
alia, People v. Moore, 17 Misc.3d at 232 (defendant who moved five
times under CPL § 440.10, raising same issues, which were all found
without merit, enjoined from filing without court permission)).

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The County Court’s imposition of a screening order and the
denial of Petitioner’s subsequent requests to file additional pro
se motions amounted to “a discretionary application of state law,
which was rendered during a discretionary state proceeding.” Zamora
v. Pierson, 158 F. Supp. 2d 830, 835 (N.D. Ill. 2001). As such, the
County Court’s decision cannot provide a basis for habeas relief.
See id.
Likewise,
Petitioner’s

the

Fourth

application

Department’s

to proceed

as

a

decision
poor

to

person

is

deny
not

cognizable in this Federal habeas proceeding. “[I]n order to
protect ‘the fair allocation of judicial resources,’ the Supreme
Court recognized a judicial duty to deny in forma pauperis status
to individuals whom the court, in its discretion, determined had
abused the system.” Carolina v. Rubino, 644 F. App’x 68, 71
(2d Cir. 2016) (unpublished opn.) (quoting In re Sindram, 498 U.S.
177, 180 (1991)). New York’s filing fee does not infringe on
constitutional

rights

as

it

is

“rationally

related

to

the

legitimate governmental interest of deterring frivolous litigation
by inmates by making them at least partially responsible for the
costs thereof.” Matter of Bonez v. McGinnis, 305 A.D.2d 814, 815
(3d Dep’t 2003) (internal quotation marks and citation omitted);
see also Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997)
(rejecting

claim

that

Prison

Litigation

Reform

Act

violates

indigent prisoners’ equal protection rights because it requires

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them, unlike non-incarcerated indigents, to pre-pay Federal court
filing fees). Pursuant to New York’s Criminal Procedure Law, an
appeal of a CPL § 440 denial may not be taken as of right but
requires permission of the intermediate appellate court (here, the
Fourth Department). Thus, the Fourth Department’s decision to deny
Petitioner poor person status in connection with a discretionary
appeal was a discretionary application of State law. As such, the
Fourth Department’s decision cannot provide a basis for habeas
relief. See Horton v. Recktenwald, 15 Civ. 843,

(W.D.N.Y. Feb. 6,

2017) (noting Appellate Division’s denial of leave to appeal does
not raise federal constitutional issue).
Petitioner urges that his claims do implicate an independent,
Federal constitutional right, namely, the right to meaningful
access to the courts.

See Bounds v. Smith, 430 U.S. 817, 821

(1977) (“It is now established beyond doubt that prisoners have a
constitutional right of access to the courts.”); accord

Nicholas,

114 F.3d at 21. However, even accepting as true Petitioner’s
allegations that the County Court and Fourth Department denied him
the right of meaningful access to the courts, these constitutional
deprivations do not in any way undermine Petitioner’s conviction or
sentence

or

allege

he

is

in

custody

in

violation

of

the

Constitution or law or treaties of the United States. Hence, these
alleged errors by the State courts do not touch upon “‘the essence
of habeas corpus[, which] is an attack by a person in custody upon

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the legality of that custody . . . .’” Kirby v. Dutton, 794 F.2d
245, 246 (6th Cir. 1986) (quoting Preiser v. Rodriguez, 411 U.S.
475, 484 (1973)). “‘[T]he traditional function of the writ is to
secure release from illegal custody.’” Id. (quoting Preiser, 411
U.S. at 484). While Petitioner’s “ultimate goal . . . is release
from confinement,” Kirby, 794 F.2d at 248 (emphasis in original),
“the result of habeas review of the specific issues before [this
Court]

is

not

in

any

way

related

to

the

confinement.”

Id.

(defendant’s claims of denial of Sixth Amendment right to effective
assistance of counsel, denial of due process and equal protection
in state postconviction proceeding were unrelated to his detention
and could not be brought in federal habeas corpus proceeding). In
other words, even if this Court found that there was some error in
connection with the State post-conviction proceedings, it would not
affect the fact that Petitioner is confined, or how long he will be
incarcerated.4 The claims here “represent an attack on a proceeding
collateral to detention of [Petitioner] and not on the detention
itself.” Zamora, 158 F. Supp.2d at 836. Accordingly, Section 2254
is not a proper vehicle for challenging the deficiencies in his
State collateral post-conviction contentions about which Petitioner
complains in his petition. See, e.g., Kirby, 794 F.2d at 246; cf.
Word v. Lord, 648 F.3d 129 (2d Cir. 2011) (denying leave to
4

At most, granting this petition could entitle Petitioner to file another
CPL § 440.10 motion which and a leave application, both of which would, in all
likelihood, be denied.

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successive habeas petition challenging State court’s denial of her
application for a writ of error coram nobis; agreeing with majority
of sister circuits that federal habeas petition was not a proper
vehicle for challenging purported deficiencies in state collateral
post-conviction proceedings).
CONCLUSION
The application for a writ of habeas corpus is denied, and the
petition

is

dismissed.

Because

Petitioner

has

not

“made

a

substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability.
SO ORDERED.
S/Michael A. Telsca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

March 9, 2018
Rochester, New York

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