Richardson v. Wolcott
Filing
36
DECISION and ORDER granting 19 Motion for Extension of Time to File; denying 20 Motion to Compel; denying 22 Motion for Summary Judgment; denying 22 Motion to Strike; Denying Petition for Habeas Corpus 1 . The application under 28 U.S.C. § 2254 is denied. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right. The Court hereby certifies, pursuant t o 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on app eal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to close this action. Signed by Hon. Charles J. Siragusa on 8/4/2023. (MJK)This was mailed to: Petitioner.Clerk to Follow up
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
ADAM L. RICHARDSON,
Petitioner,
-vs-
DECISION AND ORDER
6: 20-CV-6178 CJS
JULIE WOLCOTT, SUPERINTENDENT
ORLEANS CORRECTIONAL FACILITY,
Respondent.
_________________________________________
INTRODUCTION
Petitioner Adam Richardson (“Richardson” or “Petitioner”) brings this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
conviction in New York State County Court, Monroe County, upon his plea of guilty to
Robbery in the First Degree, Burglary in the First Degree, and Assault in the Second
Degree, for which he was sentenced primarily to ten years in prison and a five-year period
of post-release supervision. Richardson contends that his conviction should be vacated,
since he was denied counsel in connection with the Grand Jury proceedings, and since
his sentence improperly included an order to pay restitution. For the reasons explained
below, the petition for a writ of habeas corpus is denied.
BACKGROUND
The reader is presumed to be familiar with the facts and procedural history of this
action. Briefly, Richardson’s convictions arise from an incident on September 15, 2013,
in which Richardson, armed with a baseball bat and knife, broke into the home of his
girlfriend’s ex-husband, waited for the man to return, and then beat, stabbed and robbed
him. The victim, who was familiar with Richardson, identified Richardson as his attacker
1
to the police, who quickly apprehended Richardson nearby with the victim’s blood on his
clothing. 1
Richardson was charged with burglary, assault, and robbery, and arraigned in the
early hours of September 16, 2013, by the Honorable Richard Moffett, Town of Hamlin
Justice, who, in pertinent part, informed Richardson of the charges, entered a not guilty
plea on Richardson’s behalf, and ordered Richardson held on $20,000 cash bail or
$40,000 bond. Richardson then asked when he would be provided an attorney. After
some discussion in which Richardson indicated that he did not have a private attorney
and was unsure whether he had any ownership interest in his home, Judge Moffett
appointed the Monroe County Public Defender to represent Richardson. 2
More
specifically, Judge Moffett’s Arraignment Order indicated that Richardson was
“apparently indigent or otherwise eligible for representation by the Public Defender’s
Office,” and that the Public Defenders Office was appointed to represent Richardson
“unless and until other representation of the defendant has been arranged.” Judge
The victim provided police with Richardson’s name, physical description, a description of the vehicle he
drove, which resulted in Richardson being apprehended approximately an hour after the attack.
Sentencing Transcript at pp. 6-15, Motion Hearing Transcript at pp. 87-95; see also, Trial Transcript at pp.
14-15, 22 (The victim’s blood was found on Richardson’s clothing).
2 See, Town Court Arraignment Transcript at pp. 7-8:
Mr. Richardson: I got asked, asked for a lawyer if the --- I don’t know where I was, the police station --[Police officer:] Sheriff’s Office.
Mr. Richardson: The Sheriff’s Office, is it? I didn’t know when I was going to get that, when that’s going
to happen.
Judge: Well, that’s going to happen as far as – and you don’t have a personal attorney that you can call?
Mr. Richardson: No.
Judge: Okay. And you’re saying that you qualify for the Public Defender’s Office, but you own a home?
Mr. Richardson: The home is in my wife’s name. We’re married, but we bought the house before we
were married.
Judge: Okay.
Mr. Richardson: So, I’m going to assume that’s, that’s still property, still her property.
Judge: Well, that’s going to have to be taken up with the Public Defender. They, they qualify you or don’t
qualify you for their services. Okay?
Mr. Richardson: [unintelligible] income thing?
Judge: And if they don’t qual--, if you don’t qualify for their services we can see that an attorney is
appointed for you. Okay?
Mr. Richardson: Thank you.
1
2
Moffett further informed Richardson that the Public Defender’s office would interview him
to determine whether he qualified financially for representation by that office at no cost.
Richardson’s case was assigned to Assistant Monroe County Public Defender
Joshua Stubbe (“Stubbe”), who on September 17, 2013, began communicating with
Monroe County Assistant District Attorney Kyle Steinbach (“Steinbach”) by email and
letter concerning Richardson’s charges. 3 Specifically, on September 17, 2013, Stubbe
sent an email to Steinbach, proposing a disposition of time served on a reduced charge
of harassment. However, Steinbach responded and informed Stubbe that he planned to
present the matter to the Grand Jury the next day, September 18, 2013, and asked
whether Richardson wished to testify before the Grand Jury. Stubbe indicated that he
was unsure, stating, “I’m going to see him [Richardson] tomorrow morning. When are
you putting it in [the Grand Jury]?”
However, to preserve Richardson’s rights, Stubbe sent a letter to the District
Attorney’s Office that same day, indicating that he represented Richardson, and that
Richardson wanted to testify before the Grand Jury. In pertinent part, Stubbe stated: “I
am requesting that Adam Richardson be permitted to testify before any vote by the Grand
Jury. This notice will remain in effect unless and until I specifically inform you in writing
that Adam Richardson does not intend to testify before the Grand Jury.” Apparently at
some later point that same day, a representative of the Public Defender’s Office
interviewed Richardson at the jail and determined that he did not qualify financially for
free representation by the Public Defender.
3
State Court Record at pp. 31-34, SR 047-050.
3
The following day, September 18, 2013, Stubbe met Richardson at the Monroe
County Jail. Stubbe asked Richardson to explain his version of events leading to the
arrest, after which he advised Richardson not to testify before the Grand Jury. 4 Stubbe
also informed Richardson that he did not qualify financially for free representation by the
Public Defender, and that if he wanted the Public Defender to continue to represent him,
he would be financially liable for the cost. Richardson informed Stubbe that he did not
wish to be represented by the Public Defender and would retain his own attorney.
Following that meeting, at approximately noon on September 18, 2013, Stubbe sent an
email to ADA Steinbach stating, “Mr. Richardson does not wish to testify at GJ. Thanks.”
Later that day, ADA Steinbach presented the matter to the Grand Jury, which
returned a four-count Indictment against Richardson, charging him with Robbery in the
First Degree, Burglary in the First Degree (2 counts), and Assault in the Second Degree.
Richardson, who had posted bail shortly after meeting with Stubbe, claims, in this
action, that he went to where the Grand Jury was convened and attempted to testify, but
was “informed that the proceedings had already concluded.” 5
Approximately one month later, on or about October 17, 2013, Richardson’s newlyretained attorney, Lawrence Kasperek (“Kasperek”), appeared in the case. 6 Kasperek
subsequently filed motions on Richardson’s behalf, including a motion to dismiss the
Indictment on the ground that Richardson had been deprived of counsel in connection
with the Grand Jury proceedings, which resulted in a violation of his right under New York
Law (New York Criminal Procedure Law §§ 190.50(5) & 190.52) to testify in the Grand
See, Richardson’s Affirmation in Support of Motion to Dismiss Indictment.
However, there is oddly no reference to such an attempt by Richardson in either his motion to dismiss
the Indictment or in his direct appeal brief.
6 The Petition indicates that Richardson retained Kasperek a week after he was indicted, but the first time
Kasperek appeared in court with Richardson was a month after the Indictment was returned.
4
5
4
Jury. 7 Kasperek alluded therein, in motion boilerplate, to the possibility that Richardson
could have given “exculpatory” testimony before the Grand Jury, involving, for example,
“any alibi or other defense.”
However, neither Kasperek nor Richardson has ever
identified any particular exculpatory testimony that Richardson could have given in the
Grand Jury, nor do the facts of the case suggest any. The County Court Judge to whom
the case was assigned, the Hon. James Piampiano, denied the application, finding that
Richardson had not been deprived of counsel, since he had been represented by Stubbe
at the relevant time, pursuant to the Order of Judge Moffett. 8
The matter proceeded to trial, beginning on June 9, 2014, before Judge
Piampiano. If Richardson had been convicted after trial, he faced a minimum sentence
of five years and a maximum sentence of 25 years. 9 However, during jury selection
Richardson agreed to plead guilty to the Indictment in exchange for a prison sentence of
between seven and ten years. The plea offer was silent on the topic of restitution. During
the plea colloquy, Richardson agreed, inter alia, that he had committed each of the crimes
charged in the Indictment. As part of the plea agreement, Richardson executed a “Waiver
of Appeal” “giv[ing] up any and all rights to appeal from the judgment of conviction herein.”
On August 7, 2014, Judge Piampiano sentenced Richardson to ten years in prison,
with a five-year period of post-release supervision, and ordered Richardson to pay
restitution in the amount of $1,466.00, for the victim’s medical expenses. 10 Richardson
SR 025-036. Richardson’s motion papers alluded to the fact that he appeared at the initial arraignment
in Hamlin Town Court without an attorney, but did not allege any particular statutory or constitutional
violation had occurred, or request any relief, related to that fact. Rather, the focus of the motion was the
Grand Jury proceeding. See, SR 036 (“[T]he Indictment was filed in violation of provisions (a) or (b) of
CPL § 190.50(5), and in violation of the defendant’s right to counsel under the U.S. and new York State
Constitutions it is [sic] therefore invalid and must be dismissed[.]”).
8 Transcript of appearance on December 5, 2013 at pp 4-5.
9 State Court Transcripts at p. 125 of 582.
10 It was evident from Judge Piampiano’s comments at sentencing that he gave Richardson the high end
of the agreed-upon sentencing range based on the premeditated, prolonged, and extremely violent nature
7
5
objected to restitution, arguing that it “was never a consideration regarding the plea,” but
did not ask to withdraw his plea. Rather, Richardson merely asked whether the payment
of restitution could be postponed until after his release from prison.
Despite having waived his right to appeal, Richardson appealed to the New York
State Supreme Court, Appellate Division Fourth Department, asserting two claims: 1) he
had been denied the right to counsel “prior to and during the Grand Jury proceedings”;
and 2) County Court had erred in imposing restitution that was not part of the plea
agreement.
Regarding the alleged deprivation of counsel, a heading in Richardson’s appellate
brief referred to such a deprivation as having occurred “prior to and during the Grand Jury
proceedings,” and asserted that Richardson’s right to counsel attached at the initial
arraignment. However, the appellate brief argued only that the deprivation of counsel
occurred in connection with the Grand Jury proceedings: “The Defendant maintains that
under the circumstances presented here, he was deprived of the right to counsel at a
critical stage of the proceedings i.e., the Grand Jury presentment.” 11 The appeal did not
similarly argue that the initial arraignment was a critical stage of the proceeding.
Richardson argued that the appeal waiver did not bar his appeal on this issue, asserting
of the attack on the victim. See, e.g., Sentencing Transcript at pp. 24-29. In that regard, the apparent
motive for the attack was that Richardson, who was married to someone else but had started a
relationship with the victim’s ex-wife, wanted the victim to consent to have the victim’s s ex-wife take the
couple’s children to live in Massachusetts, where Richardson resided. Richardson drove his vehicle to
near the victim’s home, then used a bicycle to travel the remaining distance, entered the home through a
basement window, and laid in wait for the victim to return home from exchanging custody of the children
with his ex-wife. Richardson, with his face covered, then assaulted the victim with a club and knife for
approximately 25 minutes. Fortuitously, the attack was interrupted when police arrived at the home, after
being called by a neighbor who heard the victim’s cries through a door that Richardson had left open.
Even then, before fleeing Richardson yelled at the police to “go away,” then threatened the victim that he
would return and kill him and his children if he cooperated with the police.
11 SR 010; see also, id at 012 (“Adam Richardson respectfully requests that this Honorable Court find that
he was deprived of his constitutional right to counsel at a critical stage of the proceedings i.e., grand jury
presentment and dismiss the indictment.”).
6
that, “a deprivation of the right to counsel survives both the defendant’s guilty plea and
an appeal waiver.” Appellate Brief at p. 10 (citing People v. Trapani, 2018 WL 2726094
(3d Dept. 2018).
Regarding the restitution order, Richardson’s appellate brief argued that restitution
had not been part of the plea agreement, and that Judge Piampiano had therefore erred
in imposing restitution without offering Richardson an opportunity to withdraw his plea.
As for relief on that point, Richardson asked the appellate court to vacate his sentence
and remit the matter so that the sentencing court could either remove the restitution
provision or allow him to withdraw his plea:
Defendant respectfully requests that this Honorable Court find that the court
below erred in enhancing his sentence to include the imposition of
restitution, vacate his sentence, and remit the matter to County Court to
impose the sentence promised through the plea agreement or to afford
Defendant the opportunity to withdraw his plea.
SR 013 (emphasis added). 12
The Appellate Division Fourth Department denied the appeal as to the deprivationof-counsel claim, granted it as to the restitution order, vacated the restitution order, and
otherwise affirmed Richardson’s convictions and sentence, stating in pertinent part:
On appeal from a judgment convicting him upon his plea of guilty of, inter
alia, robbery in the first degree (Penal Law § 160.15 [3]), defendant
contends that he was deprived of his state constitutional right to counsel in
connection with his decision to testify before the grand jury. Although
defendant's deprivation of counsel contention is not forfeited by his guilty
plea it is nevertheless encompassed by his general, unrestricted, and
unchallenged waiver of his right to appeal. Notably, unlike in People v
Robbins (33 AD3d 1127, 1128 [3d Dept 2006]), defendant does not assert
that the alleged deprivation of his right to counsel infected the plea
bargaining process or otherwise tainted the voluntariness of his guilty plea
12
See also, Appellant’s Reply Brief, SR 148, 149 (same).
7
(see Whitfield, 52 AD3d at 748; People v Wolmart, 5 AD3d 706, 707 [2d
Dept 2004], lv denied 4 NY3d 750 [2004]).
We decline to follow the Third Department's determination in People v
Trapani (162 AD3d 1121, 1122 [3d Dept 2018]) that a deprivation of counsel
contention survives a valid waiver of the right to appeal irrespective of
whether the alleged deprivation infected the defendant's guilty plea.
Defendant's further contention that County Court erred in ordering him to
pay restitution because restitution was not part of the plea agreement
survives both his guilty plea and his unchallenged waiver of the right to
appeal.
Moreover, contrary to the People's contention, defendant
preserved his contention for appellate review by objecting to the imposition
of restitution on the same ground he now advances. On the merits, it is
undisputed that the plea bargain did not include restitution, and the court
therefore erred in awarding restitution without affording defendant the
opportunity to withdraw his plea. Therefore, as the People now request, we
modify the judgment by vacating that part of the sentence awarding
restitution.
People v. Richardson, 173 A.D.3d 1859, 1860–61, 104 N.Y.S.3d 478 (2019) (numerous
citations to New York State court decisions omitted).
Richardson, by his counsel, requested leave to appeal to the New York Court of
Appeals. In that regard, the request at first broadly referred to leave being “sought to
appeal all issues” related to Richardson’s convictions. In fact, though, the application was
directed only at that section of the Appellate Division’s decision which was unfavorable to
Richardson, namely, its ruling that the pre-plea deprivation-of-counsel claim was barred
by the appeal waiver. In that regard, Richardson asked the Court of Appeals to “grant
leave to appeal to resolve the conflict between the Departments of the Appellate Division
as to whether a deprivation of counsel contention survives a valid waiver of the right to
appeal irrespective of whether the alleged deprivation infected the defendant’s guilty
8
plea.”13 In other words, Richardson asked the Court of Appeals to resolve an issue of
New York State law. However, on September 23, 2019, the Court of Appeals denied the
application.
On October 20, 2019, Richardson, proceeding pro se, submitted to the New York
Court of Appeals a purported request for “reargument and reconsideration” of the initial
request for leave to appeal. Richardson’s submission, though, raised issues that were
not included in the initial request by counsel for leave to appeal. As mentioned earlier,
the initial request to the Court of Appeals was, as would be expected, directed at that
section of the Appellate Division’s decision which was unfavorable to Richardson, namely,
its ruling that the pre-plea deprivation-of-counsel claim was barred by the appeal waiver.
On that point, the initial request asked the Court of Appeals to resolve an alleged
disagreement between judicial departments as to whether a waiver of appeal applies to
alleged pre-plea deprivations of counsel. Richardson’s pro se request for “reargument
and reconsideration,” on the other hand, asked the Court of Appeals to consider two
entirely different issues: First, whether the imposition of restitution at sentencing rendered
his guilty plea and appeal waiver unknowing, unintelligent and involuntary, making the
appeal waiver ineffective; and second, whether the Appellate Division had erred in
vacating the restitution order, instead of remanding the matter to County Court, where
Richardson would be given the choice of either having the restitution order vacated or
withdrawing his plea. This latter argument posited, for the first time in the state-court
proceedings, that Richardson had the right to withdraw his guilty plea even if County Court
was willing to vacate the restitution order. 14 Indeed, Richardson argued that the Appellate
SR 154.
The People’s response to this application asserted that Richardson’s pro se request “raise[d] no
additional legal issues from his original application.” This Court respectfully disagrees. As already
13
14
9
Division had erred by vacating the restitution order and restoring to him the benefit of his
plea bargain. 15
Richardson’s pro se application to the New York Court of Appeals for “reargument
and reconsideration” also appears to have raised another claim for the first time, namely,
that Richardson was denied counsel at the initial arraignment. In other words, whereas
the counseled submissions to the Appellate Division and Court of Appeals had, up until
that point, asserted only that Richardson had been denied counsel at a critical stage of
the proceedings, specifically, the Grand Jury, Richardson’s pro se application asserted
that the initial arraignment in Hamlin Town Court was also a critical stage of the
proceedings at which he had been denied counsel. 16
On December 17, 2019, the Court of Appeals denied the “request for reargument
and reconsideration” without comment.
On March 24, 2020, Richardson, proceeding pro se, filed the subject habeas
petition pursuant to 28 U.S.C. § 2254, asserting that his conviction should be vacated for
two reasons: 1) “deprivation of the constitutional right to counsel prior to an during the
discussed, Richardson’s submissions to the Appellate Division argued that the court would have the
option of either omitting the restitution order or giving Richardson the chance to withdraw his plea. This
shift in Richardson’s legal argument appears to have been a new tactical approach to negating the appeal
waiver. That is, it does not appear that Richardson’s argument was really aimed at the restitution issue,
which the Appellate Division had already resolved in his favor, but, rather, was an attempt to use the
restitution error by County Court as a pretext for withdrawing his plea. Richardson’s purported goal in
that regard was to pursue the pre-plea-deprivation-of-counsel claim. However, for various reasons,
including that the restitution amount was relatively miniscule and that Richardson has never articulated
any actual prejudice from the alleged deprivation of counsel, it seems likely that this maneuvering was
actually the result of Richardson’s buyer’s remorse at having received a sentence at the top of the
agreed-upon seven-to-ten-year range, when he expected to receive a shorter sentence based on his
otherwise clean record.
15 See, SR 163 (“The Fourth Department’s decision . . . to modify the defendant’s sentence without
affording the defendant the opportunity to consent to the modification of the sentence, or to withdraw his
plea, was error.”).
16 See, SR 161 (last full paragraph).
10
grand jury proceedings”; and 2) “sentence should be vacated where County Court erred
in imposing restitution that was not included in the terms of the plea agreement.”
The Petition’s first claim maintains that Richardson had a “Constitutional Right to
counsel of choice,” which was first denied when Judge Moffet arraigned him without an
attorney present, and which was denied again when the Grand Jury indicted him before
he had retained Kasperek. Relatedly, Richardson asserts that Assistant Public Defender
Stubbe was never actually his attorney, and that Stubbe therefore had no authority to
inform ADA Steinbach that Richardson did not want to testify at the Grand Jury. 17 The
Petition maintains, rather, that the initial arraignment and grand jury presentation should
not have taken place until after Richardson had retained an attorney, and that “this
deprivation [of counsel] caused irreversible damage to the proceedings and the
petitioner’s Constitutional right to a fair and just trial.” The Petition, though, does not
purport to identify any particular prejudice suffered by Richardson as a result of the
alleged deprivation of counsel. For example, the Petition does not make any proffer of
testimony that Richardson would have given in the Grand Jury that might have avoided
his indictment.
The petition further asserts that the ruling by the Appellate Division Fourth
Department, that Richardson’s pre-plea deprivation-of-counsel claim was barred by the
appeal waiver, “has caused a clear conflict between the Fourth Department and both the
However, somewhat inconsistently, Richardson relies on the notice that Stubbe had previously sent to
the District Attorney, indicating that Richardson was, at that time, requesting the opportunity to testify
before the Grand Jury. See, ECF No. 1 at p. 19 (“A time notice of the petitioner’s intent to appear before
the grand jury was sent to the District Attorney on September 17, 2013, and was never withdrawn by the
petitioner.”). Besides that, “it is settled law that a defense attorney may waive a client's right to testify
before the grand jury without consulting the client.” Peterson v. New York, No. 06CIV.3369(WHP)(FM),
2009 WL 935669, at *14 (S.D.N.Y. Apr. 7, 2009) (citing, in the context of an ineffective assistance of
counsel claim, Williams v. Ricks, No. 02 Civ. 2131(RCC)(RLE), 2004 WL 1886028, at *7 (S.D.N.Y. Aug.
24, 2004) (collecting cases)).
17
11
Second and Third Departments in New York State, therein causing a procedural
miscarriage of justice to have occurred within the meaning of the 14th Amendment to the
United States Constitution and New York State Constitution.”
The Petition’s second claim contends that Richardson’s appeal waiver should not
have been enforced, since the imposition of restitution at sentencing, which was not part
of the plea agreement, rendered his guilty plea unknowing and unintelligent.
This,
according to the Petition, “infected the proceedings, tainted the voluntariness of the
petitioner’s guilty plea, and nullified the waiver of the right to appeal.” Richardson further
contends that his rights were violated when County Court improperly ordered restitution
without offering him an opportunity to withdraw his guilty plea (even though the Appellate
Division vacated that aspect of the sentence).
On April 9, 2021, Respondent filed an Answer and Memorandum of Law opposing
the Petition. In that regard, Respondent summarizes her arguments as follows:
Petitioner was not denied counsel because counsel was appointed at his
initial arraignment, and counsel consulted with petitioner during the period
preceding his indictment.
Petitioner’s counsel-of-choice claim is
unexhausted and procedurally defaulted, but it is meritless, as well,
because petitioner was never denied the opportunity to obtain counsel of
his choosing. Petitioner’s restitution-related claims are unexhausted and
procedurally defaulted; they also lack merit because the Appellate Division
gave petitioner the benefit of his plea bargain when it vacated the erroneous
restitution order. Moreover, the erroneous imposition of restitution did not
invalidate petitioner’s knowing and voluntary guilty plea, and there is no
basis to vacate petitioner’s sentence.
ECF No. 15 at pp. 1-2.
More specifically, regarding the alleged failure to exhaust the deprivation-ofcounsel claim, Respondent points out that Richardson’s appeal/motion for leave to appeal
to the New York Court of Appeals focused on the disagreement between the Third and
12
Fourth Judicial Departments regarding the effect of his appeal waiver under New York
law, and not on any alleged violation of his federal constitutional rights. As for the merits
of the claim, Respondent indicates that the period about which Richardson complains
was not a “critical stage of the proceedings,” and that Richardson was represented by
Stubbe at that time in any event. Respondent indicates that insofar as Richardson now
contends that he told Stubbe that he wanted to testify at the Grand Jury, such assertion
is unsupported and simply not credible, as well as being contrary to the finding made by
County Court. 18 Respondent also points out that Richardson’s assertion that Stubbe
never represented him is inconsistent with his reliance on the notice sent by Stubbe to
preserve his right to testify before the Grand Jury. Additionally, Respondent maintains
that Richardson has not identified any prejudice from the alleged deprivation of counsel.
Regarding the alleged constitutional violation flowing from Judge Piampiano’s
improper-and-subsequently-vacated restitution order, Respondent contends, first, that
Richardson never exhausted the claim that the imposition of restitution invalidated his
plea, since he did not make that specific argument to either the Appellate Division or the
Court of Appeals. Further, Respondent contends that Richardson cannot show that
County Court’s erroneous imposition of restitution at sentencing negated the knowing,
intelligent and voluntary nature of his appeal waiver in any event.
Alternatively,
Respondent asserts that the claim also lacks merit since Richardson argued to the
Appellate Division that either the restitution award should be vacated or he should be
allowed to withdraw his plea, and the court granted him the first type of relief, restoring to
him the benefit of his plea bargain.
Again, County Court found that Stubbe represented Richardson at the relevant time, since Judge
Moffett had assigned the Public Defender to represent Richardson until such time as Richardson retained
new counsel, and no new counsel had appeared for Richardson.
18
13
In response to Respondent’s Answer and Opposition, Richardson filed, first, a
motion for a 30-day extension of time to file a reply/traverse (ECF No. 19). Then,
Richardson filed a Motion to Compel (ECF No. 20), made pursuant to Fed.R.Civ.P. 37
and 28 U.S.C. § 2254 Rule 6, indicating that Richardson had been unable to listen to an
audio compact disk (“CD”) of of his initial arraignment in Hamlin Town Court before Judge
Moffett that had been provided to him by Respondent, since it had been “deemed faulty
and unreadable by [prison] facility administrative staff.”
Consequently, the motion
demanded that Respondent provide him with a new recording.
Having received no response from the Court by the filing deadline for his reply,
Richardson filed, ten days late, a “Traverse” to Respondent’s papers (ECF No. 21),
consisting of 36 pages and 76 additional pages of exhibits. In general, the reply/traverse
reiterates the contentions contained in the Petition. For example, Richardson disputes
the notion that Stubbe ever represented him or had any authority to tell the District
Attorney that Richardson did not want to testify before the Grand Jury. Richardson further
asserts that he was prejudiced, since the initial arraignment and Grand Jury proceedings
were conducted prior to him having an opportunity to retain counsel. In that regard,
Richardson implies, for example, that the outcome of the Grand Jury proceedings would
have been different if he had testified, though he does not explain how or why, and
simultaneously indicates that he “has never disputed his charges.” 19
Additionally,
Richardson contends that, despite the fact that the Appellate Division vacated the
restitution portion of the sentence, he did not receive “the benefit of his plea bargain”
19
ECF No. 21 at pp. 7, 15-16.
14
since by the time the restitution order was vacated, the restitution amount had already
been deducted from his prison inmate account.
Richardson subsequently filed a motion (ECF No. 22) purporting to demand the
following relief: An order granting summary judgment; an order holding Respondent in
contempt; an order striking Respondent’s response to the Petition; and an order
“preventing Respondent from opposing Petitioner’s designated claims.” The gist of the
application is that Richardson maintains a state court record (the Hamlin Town Court
arraignment recording/transcript) was not provided to him in accordance with this Court’s
scheduling order. In particular, Richardson indicates that he was “forced” to prepare his
traverse without the benefit of the audio CD of the initial arraignment in Hamlin Town
Court, since a usable copy of the recording had not been provided to him in a timely
manner.
In response to these submissions by Richardson, Respondent filed a certificate of
service (ECF No. 23) indicating that a transcript of the Hamlin Town Court arraignment
had, subsequent to service of Richardson’s Traverse, already been served on
Richardson. Richardson subsequently wrote to the Court, agreeing that he had been
provided with the transcript, but complaining that the transcript was not certified.
On March 28, 2022, the Court issued an Order (ECF No. 26) directing Respondent
to “respond to Petitioner’s motions and specifically address Petitioner’s contentions that
he has not been provided with a copy of the subject audio recording in a format usable
by him (taking into account that Petitioner is a prison inmate) or a properly certified
transcript thereof.”
On April 27, 2022, Respondent filed a letter response (ECF No. 27), requesting
that the Court deny Richardson’s motions. In that regard, Respondent points out that the
15
applications all essentially involve the Hamlin Town Court arraignment, at which there
had been no court reporter. Respondent indicates that after Richardson claimed he could
not utilize the audio CD of the arraignment, an uncertified transcript was provided to him,
and that a certified transcript was being prepared and would be given to Richardson.
Respondent indicates, however, that Richardson is not entitled to the relief he is
demanding since, for example, “Habeas Rule 5(c), which identifies the transcripts
respondent must provide when responding to a habeas petition, does not state that the
transcripts must be certified.” In sum, Respondent indicates that there is neither a legal
basis nor a factual basis to grant Richardson’s motions.
On May 12, 2022, Richardson responded (ECF No. 28), arguing that Respondent’s
submission (ECF No. 27) was procedurally improper. Richardson also reiterates that he
is not disputing that he in fact committed the crimes for which he now stands convicted:
The reality of the matter is, I have never once challenged my charges of
conviction in any petition to any court. I acknowledged my mistakes and
have served 99% of my time for them. What I have challenged are the
errors made in the justice system that is supposed to uphold the law[.]
ECF No. 28 at p. 4.
On May 19, 2022, Respondent filed a certified transcript of the Hamlin Town Court
arraignment, along with proof of service on Petitioner (ECF No. 29). 20
Finally, on June 6, 2022, Richardson filed a “Further Reply/Response” (ECF No.
31), essentially arguing that Responded submitted the certified arraignment transcript
20 The relevant portion of the transcript is very brief, and is largely set forth above in footnote 2. The
remainder of the transcript consist of an off-the-record personal discussion between Judge Moffett and a
police officer, that took place while Petitioner was, at his request, in a separate room making telephone
calls.
16
late, and that the Court should therefore grant Richardson’s motion (ECF No. 22)
demanding summary judgment.
The Court has considered the arguments of the parties and the entire record, and
finds, for the reasons discussed below, that, except for Richardson’s motion for an
extension of time to file his reply, which the Court grants nunc pro tunc, Richardson’s
motions and habeas petition must be denied.
DISCUSSION
Petitioner's Pro Se Status
Since Petitioner is proceeding pro se, the Court has construed his submissions
liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir.1994).
Evidentiary Hearing Not Required
Pursuant to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254
in the United States District Courts and upon review of the answer, transcript and record,
the Court determines that an evidentiary hearing is not required.
Richardson’s Motions
As a preliminary matter, Richardson’s motion for an extension of time to file his
reply-traverse (ECF No. 19) is granted nunc pro tunc, and his submissions are deemed
timely. However, Richardson’s remaining motions (ECF Nos. 20 & 22) are denied. In
that regard, Richardson maintains, inter alia, that he is entitled to judgment, since
Respondent violated Rule 5 of the Rules Governing Section 2254 Cases in the United
States District Courts by failing to provide him with a usable recording and/or verified
17
transcript of the initial arraignment in Hamlin Town Court. 21 The Court, though, finds that
none of Richardson’s complaints about these matters warrant the imposition of sanctions
against Respondent, let alone the award of summary judgment on Richardson’s habeas
petition. 22 Consequently, Richardson’s motion for an extension of time (ECF No. 19) is
granted nunc pro tunc, but his other motions (ECF Nos. 20 & 22) lack merit and are
denied.
Section 2254 Principles
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the
general legal principles applicable to such a claim are well settled.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the
statutory provision authorizing federal courts to provide habeas corpus relief
to prisoners in state custody—is “part of the basic structure of federal
habeas jurisdiction, designed to confirm that state courts are the principal
forum for asserting constitutional challenges to state convictions.”
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624
In pertinent part, Rule 5(c) states: “The answer must also indicate what transcripts (of pretrial, trial,
sentencing, or post-conviction proceedings) are available, when they can be furnished, and what
proceedings have been recorded but not transcribed. The respondent must attach to the answer parts of
the transcript that the respondent considers relevant. The judge may order that the respondent furnish
other parts of existing transcripts or that parts of untranscribed recordings be transcribed and furnished.
If a transcript cannot be obtained, the respondent may submit a narrative summary of the evidence.”
22 Despite the emphasis placed on it by Richardson, the certified transcript of the Hamlin Town Court
arraignment essentially shows only that Richardson was not represented by counsel, a point which was
never disputed. On the other hand, the transcript refutes various factual assertions made by Richardson
in this action. For example, Richardson has asserted that he repeatedly requested an attorney during the
arraignment: “At the appearance in Hamlin Town Court for the initial arraignment on September 16, 2013,
the petitioner requested an attorney multiple times and was denied by Judge Moffett[.]” However, that
assertion is incorrect, since the only reference by Richardson to counsel during the arraignment was
when he indicated that he had asked the police for counsel at the police station, and then asked Judge
Moffet when an attorney would be provided, to which Judge Moffett indicated that Richardson would be
meeting with a representative of the Public Defender’s office later that day. Additionally, Richardson has
asserted in this proceeding that he asked Judge Moffett to adjourn the arraignment to allow him to retain
an attorney, and that Judge Moffett refused: “The Court should have adjourned the arraignment to afford
the petitioner the opportunity to retain counsel as requested.” However, that contention is also refuted by
the transcript, which indicates that Richardson never asked for the arraignment to be adjourned, for any
reason. Indeed, the transcript further shows that, rather than demanding at the arraignment that he be
allowed to retain an attorney “of his choice,” as he now claims, Richardson indicated to Judge Moffett that
he needed the court to provide him an attorney (since he could not afford one), which is why Judge
Moffett appointed the Public Defender.
21
18
(2011). A number of requirements and doctrines . . . ensure the centrality
of the state courts in this arena. First, the exhaustion requirement ensures
that state prisoners present their constitutional claims to the state courts in
the first instance. See id. (citing 28 U.S.C. § 2254(b)). Should the state court
reject a federal claim on procedural grounds, the procedural default doctrine
bars further federal review of the claim, subject to certain well-established
exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82–84, 97
S.Ct. 2497, 53 L.Ed.2d 594 (1977). If the state court denies a federal claim
on the merits, then the provisions of § 2254(d) come into play and prohibit
federal habeas relief unless the state court's decision was either: (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law,” or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1)(2). Finally, when conducting its review under § 2254(d), the federal court is
generally confined to the record before the state court that adjudicated the
claim. See Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398–99,
179 L.Ed.2d 557 (2011).
Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014). As just mentioned, regarding
claims that were decided on the merits by state courts,
a federal court may grant habeas corpus relief to a state prisoner on a claim
that was adjudicated on the merits in state court only if it concludes that the
state court's decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
A state court decision is contrary to clearly established Federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to the Supreme Court's result.
A state court decision involves an unreasonable application of clearly
established Federal law when the state court correctly identifies the
governing legal principle but unreasonably applies it to the facts of the
particular case. To meet that standard, the state court's decision must be
19
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement. It is well established in this circuit that the objectively
unreasonable standard of § 2254(d)(1) means that a petitioner must identify
some increment of incorrectness beyond error in order to obtain habeas
relief.
Santana v. Capra, No. 15-CV-1818 (JGK), 2018 WL 369773, at *7–8 (S.D.N.Y. Jan. 11,
2018) (Koeltl, J.) (citations and internal quotation marks omitted).
When applying these standards,
[t]he state court's findings of fact are presumed to be correct unless the
petitioner can rebut this presumption by clear and convincing evidence[,]
[28 U.S.C.] § 2254(e)(1)[, and] [t]he petitioner bears the ultimate burden of
proving by a preponderance of the evidence that his [federal] constitutional
rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997).
Epps v. Poole, 687 F.3d 46, 50 (2d Cir. 2012), as amended (Aug. 9, 2012).
Federal courts deciding habeas petitions do not serve as appellate courts to review
state court decisions of state law claims. Their purpose instead is to review whether the
circumstances surrounding the petitioner's detention ‘violate fundamental liberties of the
person, safeguarded against state action by the Federal Constitution.’ Townsend v. Sain,
372 U.S. 293, 311–312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Consequently, “[a] claim
that a state conviction was obtained in violation of state law is not cognizable in the federal
court.” Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) (citing Estelle v. McGuire, 502
U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) and Dunnigan v. Keane, 137 F.3d
117, 125 (2d Cir.1998)); see also, Guerrero v. LaManna, 325 F. Supp. 3d 476, 483
(S.D.N.Y. 2018) (“The role of federal courts reviewing habeas petitions is not to reexamine the determinations of state courts on state law issues, but only to examine
federal constitutional or statutory claims. 28 U.S.C. § 2254(a); see Estelle v. McGuire,
20
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Habeas petitions may not
simply repackage state law claims, which have previously been found to be meritless, in
order to obtain review. DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004).”); but see,
Pressley v. Rich, No. 20-CV-6428-FPG, 2022 WL 2306974, at *6 (W.D.N.Y. June 27,
2022) (“This Court does have the authority to ‘correct a misapplication of state law’ if ‘such
misapplication violates the Constitution, laws, or treaties of the United States.’ Ponnapula
v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002).”) (Observing, however, that the alleged
federal violation must still be raised and exhausted in the state courts before being raised
in the § 2254 habeas proceeding).
Deprivation of Counsel
Richardson contends that he is entitled to a writ of habeas corpus because he was
deprived of counsel at his initial arraignment and in connection with his decision whether
to testify before the Grand Jury, in violation of his Sixth Amendment rights. The Appellate
Division Fourth Department did not reach the merits of Richardson’s deprivation of
counsel argument, finding that it was “encompassed by his general, unrestricted and
unchallenged waiver of his right to appeal,” and that the alleged deprivation of counsel
had not “infected the plea-bargaining process or otherwise tainted the voluntariness of
his guilty plea.”
The Appellate Division’s ruling 23 on that point was a denial of Richardson’s
deprivation-of-counsel claim on an adequate and independent state-law ground. See,
Weston v. Capra, No. 18CIV05770PMHJCM, 2022 WL 1811161, at *18 (S.D.N.Y. Apr.
The Appellate Division’s decision is the focus of this Court’s inquiry since it was the last reasoned state
court ruling on the merits of Richardson’s claim. See, McCray v. Capra, 45 F.4th 634, 640 (2d Cir. 2022)
(“On a habeas petition under section 2254, we review the “last reasoned decision” by the state court[.]”)
(citation omitted), cert. denied, 214 L. Ed. 2d 369, 143 S. Ct. 624 (2023)
23
21
13, 2022) (“Firmly established New York state law . . . recognizes the validity of waivers
of appeal, and federal courts have thus found valid waivers of the right to appeal to
constitute an independent and adequate state-law ground that precludes review.”)
(citations and internal quotation marks omitted), report and recommendation adopted, No.
18-CV-05770 (PMH), 2022 WL 2914506 (S.D.N.Y. July 25, 2022), appeal dismissed, No.
22-1688, 2022 WL 18207319 (2d Cir. Dec. 15, 2022), cert. denied, 215 L. Ed. 2d 78, 143
S. Ct. 831 (2023); see also, Irvis v. Haggat, No. 9:12-CV-1538 FJS/TWD, 2015 WL
6737031, at *19 (N.D.N.Y. Nov. 3, 2015) (“It is well-settled in New York that a waiver of
appeal provides an independent and adequate procedural bar to habeas relief.”)
(collecting cases).
Consequently, this Court cannot consider Richardson’s deprivation-of-counsel
claim unless he can show that an exception to the adequate-and-independent-state-lawground rule applies:
A federal habeas court “will 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), “unless the [petitioner]
can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice,” id. at 750. A
claim is procedurally defaulted when “the last state court rendering a
judgment in the case clearly and expressly states that its judgment rests on
a state procedural bar.” Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005).
And it is well-settled that New York's law “allowing defendants to waive their
right to appeal as part of a plea agreement, as long as the waiver is made
voluntarily and is knowing and intelligent, is [such] an adequate and
independent state ground that bars habeas review.” Burvick v. Brown, No.
10-CV-5597 (JFB), 2013 WL 3441176, at *6 (E.D.N.Y. July 9, 2013)
22
Martinez v. Uhler, No. 19CV6928RASLC, 2022 WL 3996963, at *4 (S.D.N.Y. Sept. 1,
2022) (other citations omitted).
Richardson admits that he is guilty of all counts of the Indictment, and therefore he
cannot demonstrate that a fundamental miscarriage of justice will result if this Court does
not consider his deprivation-of-counsel claim. See, Pennington v. Bennett, 372 F. App'x
144, 146 (2d Cir. 2010) (“Where, as here, a habeas petitioner's claim is procedurally
defaulted, a habeas petitioner may avoid such a default ... by showing cause for the
default and prejudice, or that failure to consider the claim will result in miscarriage of
justice, i.e., the petitioner is actually innocent. . . . The fundamental miscarriage of justice
exception is extremely rare and should be applied only in the extraordinary cases. Actual
innocence means factual innocence rather than just legal insufficiency[.]”) (citations and
internal quotation marks omitted).
This leaves only the “cause for the default and prejudice” exception, which
Richardson also cannot meet. In that regard,
[t]o show cause, he must establish that his waiver of the right to appeal was
not knowing and voluntary. See Guaman, 2016 WL 901304, at *5;
D'Onofrio, 2018 WL 6251367, at *12-13. A wavier is knowing if “the
defendant fully understood the potential consequences of the waiver,”
United States v. Castillo, 303 F. App'x 989, 990 (2d Cir. 2008), and it is
voluntary “if it is not the product of actual or threatened physical harm,
mental coercion overbearing the defendant's will, or the defendant's sheer
inability to weigh his options rationally,” Miller v. Angliker, 848 F.2d 1312,
1320 (2d Cir. 1988).
Martinez v. Uhler, No. 19CV6928RASLC, 2022 WL 3996963, at *5 (S.D.N.Y. Sept. 1,
2022); see also, Gilliam v. Superintendent, No. 9:13-CV-0788, 2015 WL 114344, at *10
(N.D.N.Y. Jan. 8, 2015) (“Petitioner might be able to establish ‘cause’ if he could
23
demonstrate that his guilty plea and related waivers were not knowing, voluntary, and
intelligent.”).
In the instant action, Richardson does not contend that his plea, including the
waiver of appeal, was not knowing, intelligent, and voluntary at the time it was made.
Instead, he argues only that the plea was subsequently rendered unknowing, unintelligent
and involuntary, when the sentencing court improperly imposed restitution which had not
been included in the plea offer. In certain circumstances, a defendant’s guilty plea may
be deemed constitutionally defective where he was given incorrect information
concerning his sentencing options and he would not have pleaded guilty if he had been
given the correct information:
The “test for determining the [constitutional] validity of guilty pleas ... was
and remains whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162(1970);
accord, e.g., Kelleher v. Henderson, 531 F.2d 78, 81 (2d Cir.1976); Wilson
v. McGinnis, 413 F.3d 196, 198–99 (2d Cir.2005). In assessing the
constitutional validity of a state court guilty plea where the defendant has
been given sentencing misinformation, the Second Circuit has explained
that the test is “whether the defendant was aware of actual sentencing
possibilities, and, if not, whether accurate information would have made any
difference in his decision to enter a plea.” Williams v. Smith, 591 F.2d 169,
172 (2d Cir.1979) (citing Caputo v. Henderson, 541 F.2d 979 (2d Cir.1976);
Kelleher v. Henderson, 531 F.2d at 81).
Larweth v. Conway, 493 F. Supp. 2d 662, 672–73 (W.D.N.Y. 2007).
As a practical matter, th[is] two-part [test, set forth in] Hunter [v. Fogg, 616
F.2d 55, 58 (2d Cir.1980),] is seldom met. In particular, courts have often
found that even though a petitioner had been inaccurately informed of the
actual sentence facing him, accurate information would not have changed
his decision to plead guilty. A petitioner's chances of success at trial, and
his understanding of those chances, is an important consideration in making
this determination.
24
Joyner v. Vacco, No. 97 CIV. 7047 (DLC), 2000 WL 282901, at *7 (S.D.N.Y. Mar. 15,
2000), aff'd, 23 F. App'x 25 (2d Cir. 2001); see also, Mapp v. Phillip, No. 04-CV-1889 JG,
2005 WL 1541044, at *7 (E.D.N.Y. June 29, 2005) (“Other factors that a court considers
when determining the voluntariness of a guilty plea where a defendant is given sentencing
misinformation is the strength of the state's case, and the disparity between what a
defendant was told his sentence exposure would be and the actual sentence given.”)
(citations omitted).
In the instant case, Richardson does not maintain that he would not have pleaded
guilty if he had known that the sentencing court would impose restitution. 24 Instead, he
asserts only that the imposition of the restitution order necessarily rendered his plea and
appeal waiver involuntary, unknowing and unintelligent. However, as just discussed, that
is not an accurate statement of the law. Consequently, Richardson has not shown that
County Court’s imposition of restitution rendered his appeal waiver Constitutionally
invalid.
Besides that, the circumstances here strongly suggest that even if Richardson had
known that County Court would impose a restitution order, it would not have affected his
decision to plead guilty. In that regard, the obvious focus of the plea agreement in this
case was the length of the prison sentence. Richardson, who could have received a
sentence of between five and twenty-five years if convicted after trial, evidently
recognized that the evidence against him was strong, and therefore agreed to plead guilty
in order to cap his potential exposure at ten years in prison. There is no indication that
24 Rather, the Petition states only the following, in pertinent part: “[W]hen the petitioner agreed to waive
his right to appeal he had no reason to suspect that he would receive a sentence in excess of the
maximum that had been negotiated. The petitioner could not have knowingly and intelligently waived his
right to appeal the Court’s decision to not abide by the original promise.” ECF No. 1 at p. 5.
25
financial considerations, such as potential fines or restitution, were a factor, let alone a
significant factor, in Richardson’s decision to plead guilty. Certainly, Richardson was not
induced to plead guilty based on any affirmative representation that restitution would not
be imposed.
Moreover, the restitution amount was relatively miniscule ($1,466), meaning that
the difference between the sentence that Richardson thought he would receive and the
sentence that he actually received is small. The Court does not think it likely that
Richardson, or any reasonable person in his situation, would have gone to trial and risked
an additional fifteen years of prison just to avoid paying $1,466 in restitution. 25 The
Court’s belief on this point is reinforced by the fact that at sentencing, after being informed
that County Court would order restitution in the amount of $1,466, Richardson did not
give any contemporaneous indication that he wanted to withdraw his plea. Rather,
Richardson’s counsel merely asked that County Court delay the collection of restitution
until after Richardson’s prison sentence was completed, which the court denied.
Consequently, the Court finds that Richardson has not demonstrated “cause” for
the procedural default by showing that his plea waiver was rendered unconstitutional by
the imposition of restitution. See, Guaman v. Racette, No. 14CV5160 (CS)(LMS), 2016
WL 901304, at *5 (S.D.N.Y. Feb. 5, 2016) (“Petitioner cannot demonstrate cause for the
Cf., Larweth v. Conway, 493 F. Supp. 2d 662, 673 (W.D.N.Y. 2007) (“[T]he Court cannot find that had
Larweth been provided with “accurate information” about the post-release supervision it would have made
any difference whatever in his decision to plead guilty. . . . In particular, the Court notes that Larweth
faced a potential twenty-five-year sentence under the class B felony charges in the original indictment . .
. Moreover, given the strength of the prosecution's evidence against petitioner and the brutality of his
assault on the victim, Larweth was not likely to prevail at a jury trial. In light of these circumstances, the
Court cannot believe that Larweth would have rejected the plea deal offered by the prosecution. The
Court is even more incredulous that he would have chosen to take his case to trial had he been told that
his ‘actual sentence’ would include a period of post-release supervision.”).
25
26
default since, as noted above, the record shows that his waiver of the right to appeal was
knowing and voluntary.”). The Court therefore need not reach the prejudice prong.
In sum, the Court does not reach the merits of Richardson’s first claim, since it was
denied on an adequate and independent state-law ground, namely, his waiver of appeal,
and he has not shown that any exception to the procedural default rule applies. 26 See,
King v. Artus, 259 F. App'x 346, 347 (2d Cir. 2008) (“Since the New York State Supreme
Court, Appellate Division ‘has expressly relied on a procedural default as an independent
and adequate state ground’ for its judgment, Green v. Travis, 414 F.3d 288, 294 (2d
Cir.2005), and King has not demonstrated ‘cause for the default and actual prejudice as
a result of the alleged violation of federal law, or ... that failure to consider the claims will
result in a fundamental miscarriage of justice,’ Coleman v. Thompson, 501 U.S. 722, 750,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), federal habeas review is barred.”).
Richardson’s Alleged Right to Withdraw His Plea
Richardson’s remaining claim is that his “sentence should be vacated where
County Court erred in imposing restitution that was not included in the terms of the plea
agreement.” In that regard, Richardson essentially maintains that the sentencing error by
County Court (imposing restitution that was not part of the plea agreement) violated his
federal constitutional rights, requiring a remand to County Court, where he should have
the right to either accept a correction of his sentence or withdraw his plea. (Although,
since Richardson has continued to pursue this claim even after the Appellate Division
Even if the Court were to reach the merits, it would deny the claim. Specifically, insofar as Richardson
is claiming that he was denied counsel at the initial arraignment and/or was denied his “counsel of
choice,” the claim is unexhausted and procedurally defaulted, and he has not shown that any exception
applies. Nor has he shown that the arraignment was a critical stage of the proceeding or that he suffered
any prejudice related thereto. Insofar as Richardson claims that he was denied counsel in connection
with the Grand Jury proceeding, the record indicates that he was represented by counsel, as County
Court determined, and, in any event, he has not demonstrated prejudice.
26
27
vacated the restitution order, it seems fairly obvious that what he really wants is to
withdraw his plea, presumably because he is dissatisfied with the term of imprisonment
imposed by Judge Piampiano. 27) Richardson contends, therefore, that the Appellate
Division erred when it vacated the restitution provision of his sentence, without remanding
the matter to County Court and without giving him the opportunity to withdraw his plea.
Alternatively, Richardson argues that the Appellate Division did not actually correct his
sentence or give him the benefit of his plea bargain, since, by the time the Appellate
Division made its ruling, the restitution amount had already been taken from his inmate
account.
However, Richardson is barred from raising these arguments since they are
unexhausted and procedurally barred, and he has not shown that any exception applies
to excuse his procedural default. The legal principles on this point are clear:
If anything is settled in habeas corpus jurisprudence, it is that a federal court
may not grant the habeas petition of a state prisoner “unless it appears that
the applicant has exhausted the remedies available in the courts of the
State; or that there is either an absence of available State corrective
process; or the existence of circumstances rendering such process
ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254(b)(1). To
satisfy § 2254's exhaustion requirement, a petitioner must present the
substance of “the same federal constitutional claim[s] that he now urges
upon the federal courts,” Turner v. Artuz, 262 F.3d 118, 123-24 (2d
Cir.2001), “to the highest court in the pertinent state,” Pesina v. Johnson,
913 F.2d 53, 54 (2d Cir.1990).
When a claim has never been presented to a state court, a federal court
may theoretically find that there is an “absence of available State corrective
process” under § 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is
procedurally barred by state law and, as such, its presentation in the state
forum would be futile. In such a case the habeas court theoretically has the
power to deem the claim exhausted. Reyes v. Keane, 118 F.3d 136, 139
27
See, Footnote 14.
28
(2d Cir.1997). This apparent salve, however, proves to be cold comfort to
most petitioners because it has been held that when “the petitioner failed to
exhaust state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred,” federal habeas courts also
must deem the claims procedurally defaulted. Coleman v. Thompson, 501
U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
***
Dismissal for a procedural default is regarded as a disposition of the habeas
claim on the merits. . . . For a procedurally defaulted claim to escape this
fate, the petitioner must show cause for the default and prejudice, or
demonstrate that failure to consider the claim will result in a miscarriage of
justice (i.e., the petitioner is actually innocent). Coleman, 501 U.S. at 74850, 111 S.Ct. 2546 (1991).
Aparicio v. Artuz, 269 F.3d 78, 89–90 (2d Cir. 2001).
As mentioned earlier, a Section 2254 habeas petitioner must properly exhaust his
claims in state court before raising them in federal court:
Under § 2254's exhaustion requirement, 28 U.S.C. § 2254(b), (c), each
argument advanced in a federal habeas petition must first have been
exhausted through state remedies—that is, presented to the state's highest
court, Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir.2005). The petitioner
must have “fairly apprised” the state court of the factual and legal premises
of the federal constitutional claim. Grey v. Hoke, 933 F.2d 117, 119 (2d
Cir.1991). In New York, a defendant seeking further appeal in a criminal
case must apply for leave to appeal by letter application to the Court of
Appeals. N.Y. Court Rules § 500.10(a) (current version at N.Y. Court Rules
§ 500.20(a) (2005)).
Harris v. Fischer, 438 F. App'x 11, 13 (2d Cir. 2011).
However, a petitioner cannot properly exhaust a claim by raising it for the first time
in a discretionary motion for leave to appeal (unless the motion is granted and the claim
is addressed on the merits), let alone in a motion for reconsideration of an order denying
such a request. See, Andujar v. Kickbush, No. 918CV0521GLSDEP, 2019 WL 2746599,
at *5 (N.D.N.Y. June 10, 2019) (“Unfortunately for petitioner, it is well-established that
29
presentment of a claim for the first time on an application for discretionary review, such
as in a motion for leave to appeal to the New York Court of Appeals, is insufficient to
exhaust the claim unless discretionary review is granted and the claim is addressed on
the merits. Here, petitioner's application for leave to appeal to the New York Court of
Appeals was denied and, thus, his claim was not addressed on the merits.”) (collecting
cases, citations omitted), report and recommendation adopted, No. 918CV521GLSDEP,
2019 WL 2743574 (N.D.N.Y. July 1, 2019); see also, Allen v. Artus, No. 6:17-CV-6074
CJS, 2020 WL 6785498, at *12 (W.D.N.Y. Nov. 18, 2020) (“[R]aising a federal claim for
the first time in an application for discretionary review to a state's highest court is
insufficient for exhaustion purposes.” St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir.
2004)[.]”) (other citation omitted).
Here, the arguments comprising the second claim of Richardson’s habeas petition
are unexhausted and procedurally defaulted, since Richardson raised them for the first
time in his pro se application to the New York Court of Appeals for “reargument and
reconsideration,” which the Court of Appeals denied. Richardson, though, does not
acknowledge that the claims are unexhausted, and consequently has not made any
attempt to show that an exception applies to the exhaustion requirement. Nor does the
Court find that any exception applies. Consequently, the claims are denied.
Moreover, even if the claims were not procedurally barred, they lack merit. More
specifically, to the extent that Richardson claims that the sentencing error concerning
restitution automatically invalidated the constitutionality of his guilty plea, his argument
lacks merit for the reasons already discussed. That is, he has not shown that if he had
known County Court was going to require him to pay restitution, it would have made any
difference in his decision to enter a plea. Additionally, the Appellate Division corrected
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the sentencing error, and Richardson has not shown that the Appellate Division’s decision
on that point, to vacate the restitution order and otherwise affirm his conviction and
sentence, violated his federal constitutional rights or otherwise requires that his conviction
be vacated.
CONCLUSION
The application under 28 U.S.C. § 2254 is denied. Pursuant to 28 U.S.C. § 2253,
the Court declines to issue a certificate of appealability, since Petitioner has not made a
substantial showing of the denial of a constitutional right. The Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken
in good faith and leave to appeal to the Court of Appeals as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal
in forma pauperis should be directed on motion to the United States Court of Appeals for
the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate
Procedure. The Clerk of the Court is directed to close this action.
So Ordered.
Dated: Rochester, New York
August 4, 2023
ENTER:
CHARLES J. SIRAGUSA
United States District Judge
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