Hill v. Annucci

Filing 51

DECISION AND ORDER denying 49 motion for permission to file documents electronically and to require Respondent to submit supplemental records; denying request for a writ of habeas corpus and dismissing 14 amended petition; declining to issue a certificate of appealability. Signed by Hon. Elizabeth A. Wolford on 06/04/2024. (CDH)(A copy of this Decision and Order was mailed to Petitioner) Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL J. HILL,
Petitioner,

DECISION AND ORDER

v.

6:21-CV-06373 EAW

ANTHONY J. ANNUCCI,
Respondent.
INTRODUCTION
Pro se petitioner Michael J. Hill (“Petitioner”) has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his September 2018 conviction in Niagara
County Court for assault in the second degree. The operative pleading is the amended
petition, which sets forth the following claims: (1) Petitioner’s guilty plea was not knowing,
voluntary, and intelligent because he entered into a conditional plea that was not
subsequently recognized by the state appellate court; (2) the indictment was defective
because it was obtained by perjured grand jury testimony; (3) the indictment was defective
because the prosecutor intimidated and lied to the grand jurors; (4) the prosecutor failed to
disclosure exculpatory material as required by Brady v. Maryland, 373 U.S. 83 (1963), and
thereby prevented Petitioner from preparing his defenses; and (5) the trial court judge was
biased and required to recuse. (Dkt. 14). For the reasons set forth below, the Court denies
Petitioner’s request for a writ of habeas corpus, dismisses the amended petition, and declines
to issue a certificate of appealability.
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Petitioner has also filed a motion for permission to file documents electronically and
to require Respondent to submit supplemental records. (Dkt. 49). Because Respondent has
already submitted all required records and in light of the dismissal of the amended petition,
the Court denies this motion.
BACKGROUND
Petitioner was charged by indictment returned on November 15, 2017, with two
counts of burglary in the first degree in violation of New York Penal Law § 140.30(2) and
one count of assault in the first degree in violation of New York Penal Law § 120.10(1).
(Dkt. 27-1 at 75-76).1
On June 17, 2018, Petitioner, who was representing himself with the assistance of
standby counsel, appeared before the Hon. Matthew J. Murphy in Niagara County Court (the
“County Court”) and pled guilty to a reduced charge of assault in the second degree. (Dkt.
27-6). Specifically, Petitioner agreed to plead guilty to assault in the second degree in
violation of New York Penal Law § 120.05(2), which was a lesser included count under
count three of the indictment. (Id. at 2). As part of the plea agreement, Petitioner was
required to admit his status as a second violent felony offender and to waive his appellate
rights except with regard to three issues: (1) the sufficiency of the indictment and the grand
jury proceedings; (2) the trial court’s decision on what did and did not constitute Brady
material; and (3) whether Judge Murphy should have recused due to bias. (Id. at 2-3).

1

When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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After some additional discussion of the scope of the Brady issue, and as part of the
plea colloquy, the County Court had the following exchange with Petitioner and the
prosecutor:
THE COURT: All right. All right. Now do you also understand that you have
a separate right to appeal?
[PETITIONER]: Okay.
THE COURT: Is that—you understand that?
[PETITIONER]: Yes, sir.
THE COURT: Are you asking him to waive all of his rights to appeal or all of
his rights except those three items that we talked about?
[THE PROSECUTOR]: Judge, we’re asking that he waive everything except
for the three items placed on the record.
...
THE COURT: All right. So you can’t appeal any other issues other than those
three issues that we talked about and put on the record a few minutes ago. Do
you understand that?
[PETITIONER]: Yes, sir.
THE COURT: You will be permitted to appeal on those issues. Do you
understand that?
[PETITIONER]: Yes, sir.
THE COURT: But all other issues you can’t appeal on.
[PETITIONER]: Okay.
(Id. at 13-14).
Pursuant to the plea agreement, the maximum possible sentence was five years of
imprisonment and five years of post-release supervision. (Id. at 10-11). At the plea hearing,
Petitioner acknowledged that as a persistent felony offender, if convicted, he could have
been facing a potential life sentence. (Id. at 12-13). Petitioner further stated under oath that
on October 1, 2017, in Niagara Falls, New York, he stabbed his relative Elton Carr with a
sharp instrument, intending to cause serious injury to him. (Id. at 16). Petitioner expressly
waived any claim of justification or self-defense. (Id.). On September 16, 2018, Petitioner

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was sentenced by the Hon. Sara Sheldon of the County Court to five-years of imprisonment
and five-years of post-release supervision. (Dkt. 27-9).
Following sentencing, Petitioner filed a motion pursuant to New York Criminal
Procedure Law (“CPL”) § 440.30 for vacatur of his judgment of conviction, arguing that:
(1) the indictment was multiplicitous; (2) the prosecutor impaired the integrity of the grand
jury proceedings; (3) Judge Murphy was “patently biased” and showed favoritism toward
the prosecutor, who was his co-worker and assistant when he was the district attorney; (4)
the indictment was defective because it failed “to sufficiently satisfy the elements of the
charges lodged in it”; (5) the indictment should have been dismissed pursuant to New York
Judiciary Law § 17 because it was submitted by a district attorney who had formerly been
Judge Sheldon’s law clerk; and (6) Petitioner’s right to due process was violated by the
intentional filing of false charges.

(Dkt. 27-1 at 4-6).

Petitioner subsequently filed

supplemental papers asserting ineffective assistance of counsel based on assigned counsel’s
alleged failure to investigate witnesses and the crime scene and to turn over files after
Petitioner opted to represent himself. (Id. at 10-13). Judge Sheldon denied Petitioner’s
motion without a hearing on January 21, 2020. (Id. at 15-16). Petitioner did not seek leave
to appeal the denial of this motion.
On June 9, 2020, Petitioner file a counseled direct appeal in the Appellate Division,
Fourth Department (the “Appellate Division”). (Id. at 23-55). Petitioner argued that: (1)
the County Court erred in denying his motion for discovery, including Brady disclosures;
(2) the County Court should have dismissed the indictment because it was multiplicitous and
because of defects in the presentation before the grand jury; and (3) Judge Murphy was
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required to recuse himself due to a conflict of interest. (Id.).2 The prosecution filed a brief
in opposition in which it addressed each of these arguments on the merits. (Id. at 381-96).
On November 20, 2020, the Appellate Division entered a decision unanimously
affirming Petitioner’s judgment of conviction. People v. Hill, 188 A.D.3d 1756 (4th Dep’t
2020). The Appellate Division concluded Petitioner’s Brady, multiplicity, and grand juryrelated arguments had been forfeited by his guilty plea. Id. at 1756-57. The Appellate
Division further concluded that Petitioner’s recusal argument did “not require reversal or
modification of the judgment.” Id. at 1756. Petitioner moved for reargument or leave to
appeal to the New York Court of Appeals; the Appellate Division denied both requests.
(Dkt. 27-1 at 399-408). Petitioner subsequently applied directly to the New York Court of
Appeals for leave to appeal, but his application was dismissed because he had previously
sought leave from the Appellate Division. (Id. at 410). Petitioner sought reconsideration,
which the New York Court of Appeals denied. People v. Hill, 37 N.Y.3d 1096 (2021).
Petitioner filed a motion pursuant to CPL § 440.10 in June of 2020, arguing that: the
prosecutor introduced false exhibits to the grand jury; the prosecutor withheld documentary
evidence from the defense in violation of Brady, thereby rendering Petitioner’s guilty plea
involuntary; and the County Court improperly denied Petitioner a hearing to establish the
falsity of statements in the deposition supporting his arrest warrant. (Dkt. 27-1 at 411-31).
The County Court denied the motion on January 15, 2021, finding Petitioner’s claims

2

Petitioner also submitted a pro se brief in connection with his direct appeal, but it was
rejected by the Appellate Division as untimely. (Dkt. 27-1 at 524).
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unreviewable because they had been considered and rejected by the Appellate Division on
direct appeal. (Id. at 522). Petitioner attempted to seek leave to appeal from the Appellate
Division, but his motion was rejected as defective. (Id. at 523).
Petitioner commenced this action in May of 2021. (Dkt. 1). The amended petition
was filed in October of 2021. (Dkt. 14). In February of 2022, Respondent filed an answer
and response arguing, among other things, that Petitioner had failed to exhaust his claim that
his guilty plea was unknowing and involuntary because he entered into it understanding that
he would be able to appeal certain issues that the Appellate Division subsequently
determined had been waived. (Dkt. 26; Dkt. 27).
On March 1, 2022, Petitioner filed a motion pursuant to CPL § 440.10 seeking relief
on multiple grounds, including his claim that his guilty plea was not knowing, voluntary,
and intelligent. (Dkt. 47-1 at 11-28). The County Court denied this motion on March 28,
2022. (Id. at 10). The County Court held that Petitioner’s motion “raise[d] the same issues
which were considered on appeal and denied by the Appellate Division” and that his “other
contentions” were “without merit.” (Id.). Petitioner sought leave to appeal to the Appellate
Division, which was denied. (Dkt. 35-1 at 4). The Court thereafter entered a Decision and
Order that, among other things, added documents related to this CPL § 440.10 motion to the
record. (Dkt. 41).
Respondent subsequently withdrew the defense of non-exhaustion and, with the
Court’s leave, filed a supplemental memorandum of law addressing Petitioner’s
involuntariness claim on the merits. (Dkt. 47). Petitioner thereafter filed a supplemental

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reply and his motion for leave to electronically submit documents and to order Respondent
to supplement the record. (Dkt. 48; Dkt. 49).
DISCUSSION
I.

Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for persons in

state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97
(2011). Under § 2254(d), a federal court “shall not . . . grant[ ]” an application for a writ of
habeas corpus “with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Id. § 2254(d). In addition, a state court’s factual findings are entitled to
a presumption of correctness which only may be rebutted by “clear and convincing
evidence.” Id. § 2254(e)(1). The Supreme Court has not yet clarified the interaction
between AEDPA’s two provisions applicable to factual determinations, § 2254(d)(2) and
§ 2254(e)(1). Cardoza v. Rock, 731 F.3d 169, 178 n.5 (2d Cir. 2013); see also Wood v.
Allen, 558 U.S. 290, 130 S. Ct. 841, 845 (2010) (“We conclude . . . that the state court’s
factual determination was reasonable even under petitioner’s reading of § 2254(d)(2), and
therefore we need not address that provision’s relationship to § 2254(e)(1).”).

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AEDPA articulates a “highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted). “[W]hen
it is unclear whether AEDPA deference applies,” the Supreme Court has stated that courts
may “deny writs of habeas corpus under § 2254 by engaging in de novo review because a
habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected
on de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
II.

Validity of Petitioner’s Guilty Plea
The Court turns first to Petitioner’s claim that his guilty plea was not knowing,

voluntary, and intelligent, because he was promised that he would be able to appeal three
issues, yet the Appellate Division held that two of those issues had been forfeited by his
guilty plea. In order to analyze this claim, a discussion of the interaction between a guilty
plea and the right to subsequent appellate review is necessary. “[A] valid guilty plea forgoes
not only a fair trial, but also other accompanying constitutional guarantees. . . . A valid
guilty plea also renders irrelevant—and thereby prevents the defendant from appealing—the
constitutionality of case-related government conduct that takes place before the plea is
entered.” Class v. United States, 583 U.S. 174, 182 (2018).
In the federal system, a defendant may enter into “a conditional plea of guilty or nolo
contendere, reserving in writing the right to have an appellate court review an adverse
determination of a specified pretrial motion. A defendant who prevails on appeal may then
withdraw the plea.” Id. at 183 (quoting Fed. R. Crim. P. 11(a)(2)). However, “[g]enerally,
conditional pleas are not accepted in New York[.]” People v. Di Donato, 87 N.Y.2d 992,
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993 (1996) (citing People v Di Raffaele, 55 N.Y.2d 234 (1982); People v Thomas, 53 N.Y.2d
338 (1981)). Where a New York trial court nevertheless accepts a conditional plea, an
appellate court generally will not afford relief on direct appeal. See id.; see also People v.
Calvello, 70 A.D.3d 847, 848 (2d Dep’t 2010) (“[D]efendant may not raise this issue on
appeal, despite his plea being expressly conditioned, with the approval of the court, on his
right to appeal the ruling[.]”); People v. Hardy, 187 A.D.2d 810, 813 (3d Dep’t 1992)
(“[D]efendant’s conditional plea was interposed long after the Court of Appeals had held
that such pleas were an ineffective means of preserving the issue which defendant sought to
preserve. Accordingly, he is entitled to no relief on his direct appeal.”).3
Liberally construing Petitioner’s challenge to his guilty plea, he makes two related
but distinct arguments: (1) the inclusion of an unfulfilled and unfulfillable promise in the
plea agreement rendered his plea not knowing, voluntary, and intelligent; and (2) the County
Court’s failure to accurately advise him of the consequences of his guilty plea on his ability

3

A claim based on the ineffectiveness of the conditional plea can “be addressed in a
proceeding pursuant to article 440 of the Criminal Procedure Law.” Di Donato, 87 N.Y.2d
at 993. New York intermediate appellate courts have opined that where the defendant’s
decision to enter into the plea was “predicated on . . . [a] promise that he could challenge [a]
determination on appeal,” but the defendant in fact was not able to mount such a challenge,
the defendant should be allowed “to withdraw his plea, should he elect to pursue that
course[.]” People v. Hafer, 223 A.D.3d 1123, 1126 (3d Dep’t 2024); see also Calvello, 70
A.D.3d at 848 (“[A]s it is clear from the record that the defendant pleaded guilty in reliance
upon a promise from the Supreme Court that could not be fulfilled, the defendant is entitled
to withdraw his plea of guilty, if he is so advised[.]”). Of course, this New York law does
not provide the rule of decision on federal habeas review. See, e.g., Potter v. Green, No. 04CV-1343 (JS), 2009 WL 2242342, at *6 (E.D.N.Y. July 24, 2009) (acknowledging that a
decision of the New York Court of Appeals regarding what information must be conveyed
to a defendant during a plea colloquy “is not controlling in a federal habeas proceeding”).

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to pursue particular issues on appeal rendered the plea not knowing, voluntary, and
intelligent. (See, e.g., Dkt. 14 at 14-15 (“the petitioner was not properly advised or properly
admonished to the appeal rights he was waiving and retaining as condition of the guilty
plea”); Dkt. 29 at 20 (“the voluntariness of a guilty plea depends on the government’s
adherence to promises made to induce the plea”), 23 (“the petitioner was misinformed by
the prosecution and the county court judge”)). For the reasons that follow, the Court finds
that Petitioner is not entitled to federal habeas relief on either of these grounds.
Initially, the Court notes that while the County Court did not explicitly discuss the
validity of Petitioner’s guilty plea in its denial of Petitioner’s most recent CPL § 440.10
motion, “a state court decision need not mention a particular argument or explain the reasons
for rejecting it” to constitute a determination on the merits. Dallio v. Spitzer, 343 F.3d 553,
560 (2d Cir. 2003). A “terse statement” that a petitioner’s “remaining contentions are
without merit” is sufficient “to trigger AEDPA’s heightened standard of review.” Id. In this
case, the County Court stated that Petitioner’s “other contentions”—which included this
claim—were “without merit.” (Dkt. 47-1 at 10). This constitutes a determination on the
merits, and triggers the deferential AEDPA standard of review.
The question before the Court is accordingly whether the County Court’s
determination was contrary to, or an unreasonable application of, clearly established
Supreme Court precedent. A state court’s 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
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to [the Supreme Court's result].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state
court’s decision is “an unreasonable application” of clearly established federal law if the
state court “identifies the correct governing legal rule from [the Supreme Court’s] cases but
unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407. The
Supreme Court’s “dicta cannot supply a ground for relief” under AEDPA, “[n]or can
holdings that speak only at a high level of generality.” Brown v. Davenport, 596 U.S. 118,
136 (2022).
As a general matter, because “[a] guilty plea operates as a waiver of important rights,
. . . [it] is valid only if done voluntarily, knowingly, and intelligently, with sufficient
awareness of the relevant circumstances and likely consequences.” Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005) (quotation omitted); see also Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969) (“[If] a defendant’s guilty plea is not equally voluntary and knowing, it has
been obtained in violation of due process and is therefore void.”). The Supreme Court has
considered the circumstances under which an unfulfilled or unfulfillable promise may render
a guilty plea involuntary on multiple occasions. In Brady v. United States, 397 U.S. 742
(1970), the Supreme Court quoted with approval the Fifth Circuit’s statement in Shelton v.
United States, 246 F.2d 5712 (5th Cir. 1957) that a guilty plea cannot stand where it was
induced by “misrepresentation (including unfulfilled or unfulfillable promises)[.]” Brady,
397 U.S. at 755 (quoting Shelton, 246 F.2d at 572 n.2). Later, in Mabry v. Johnson, 467
U.S. 504 (1984), the Supreme Court stated that “when the prosecution breaches its promise
with respect to an executed plea agreement, the defendant pleads guilty on a false premise,
and hence his conviction cannot stand: ‘When a plea rests in any significant degree on a
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promise or agreement of the prosecutor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.’” Id. at 509 (quoting Santobello v. N.Y.,
404 U.S. 257, 262 (1971)).
However, in Puckett v. United States, 556 U.S. 129 (2009), the Supreme Court made
clear that these statements from Brady and Mabry were dicta. Id. at 138 n.1. The phrase
“clearly established Federal law, as determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), “refers to the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court decision,” Williams, 529 U.S. at
412. Accordingly, the identified statements from Brady and Mabry cannot serve as clearly
established federal law for AEDPA purposes, and do not provide a basis for granting habeas
relief to Petitioner.
The Puckett Court also stated that “the government can only be said to have engaged
in a misrepresentation when it intended not to fulfill the terms of the plea agreement at the
time it entered into it.” Id. The Puckett Court explained that where a defendant “pleads
guilty on a false premise,” the remedy may sometimes be to overturn the resulting
conviction, but that “when the conviction is overturned, the reason is not that the guilty plea
was unknowing or involuntary.” Id. (emphasis added). To the contrary, the Puckett Court
held that “there is nothing to support the proposition that the Government’s breach of a plea
agreement retroactively causes the defendant’s agreement to have been unknowing or
involuntary.” Id. at 137. As another district court in this Circuit has explained, Puckett thus
stands for the proposition that “a defendant seeking to withdraw his plea on the basis of a
prosecutor’s misstatement in connection with a plea agreement must demonstrate not only
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that the prosecutor made a misstatement, but also that there was an intent at the time of
contracting not to perform.” Saxon v. Lempke, No. 09 CIV. 1057 PGG KNF, 2014 WL
1168989, at *12 (S.D.N.Y. Mar. 21, 2014) (quotation omitted and emphasis in original)
(denying habeas relief where the petitioner claimed, in part, that his plea had been induced
by misrepresentations about whether the imposed sentence could run concurrently to any
sentence imposed on the petitioner for violating his parole and was thus involuntary), aff’d,
618 F. App’x 10 (2d Cir. 2015).
There is no evidence in the record before the Court that either the prosecutor or the
County Court had an intent to mislead Petitioner regarding the impact of his guilty plea on
his ability to appeal the three issues as to which he did not waive his appellate rights, nor is
there any basis to conclude that the prosecutor intended not to perform at the time the plea
agreement was entered into. To the contrary, it appears that the prosecutor, the County
Court, and standby counsel all genuinely believed Petitioner would be able to pursue an
appeal as to those claims. (See, e.g., Dkt. 27-6 at 2-7, 13-14). Petitioner himself seems to
acknowledge this in the amended petition, stating, “[Petitioner’s] guilty plea was entered
into with clear understanding and direct expectation of the prosecutor, County Court judge,
standby counsel and Petitioner, that this court and the appellate court, would not foreclose
judicial review of the merits of the (3) issues.” (Dkt. 14 at 16). Further, in denying
Petitioner’s CPL § 440.30 motion, the County Court stated regarding the grand jury-related
arguments: “The issues presented in Mr. Hill’s Motion are factual matters contained the
record and appropriate for review on direct appeal.” (Dkt. 27-1 at 15). And, unfortunately,
a review of New York case law reveals that it is not uncommon for prosecutors to mistakenly
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offer and for New York trial courts to erroneously accept conditional guilty pleas,
notwithstanding the long-standing New York rulings regarding the ineffectiveness of the
conditions.
While this Court certainly does not condone the offer and acceptance of a plea
agreement containing a legally ineffective reservation of appellate rights, the Supreme Court
has never held that such action constitutes a violation of the federal constitution, and clearly
established federal law does not compel such a conclusion. See Carey v. Musladin, 549 U.S.
70, 77 (2006) (“Given the lack of holdings from [the Supreme] Court regarding” the relevant
issue, “it cannot be said that the state court unreasonably applied clearly established Federal
law.” (quotation and alterations omitted)). Petitioner’s claim that his plea was unknowing
and involuntary as a matter of clearly established federal law because it was based on an
unfulfilled and unfulfillable promise accordingly must fail.
The Court next turns to Petitioner’s contention that his plea was not knowing,
voluntary, and intelligent because the County Court failed to adequately and accurately
advise him of the impact of his guilty plea on his appellate rights. “The United States
Supreme Court has concluded that a defendant can make an intelligent and voluntary guilty
plea satisfying due process if he is fully aware of the direct consequences of a guilty plea.”
United States v. Youngs, 687 F.3d 56, 60 (2d Cir. 2012) (quotation omitted and emphasis in
original). However, “a defendant need not be informed about collateral consequences of his
plea, and failure to so inform him does not render the plea involuntary.” Chism v. Adams,
No. CIVS-03-1793MCEKJMP, 2010 WL 2612740, at *6 (E.D. Cal. June 25, 2010) (citing
Hill v. Lockhart, 474 U.S. 52, 56 (1985)). The Supreme Court has never held “that a
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limitation on the right to appeal or even a waiver of appeal is a direct consequence of a plea
and that, as a result, a defendant must be notified in order to render the plea valid.” Id.
Accordingly, it is not clearly established as a matter of federal constitutional law that the
County Court was required to inform Petitioner of the effect of his guilty plea on his
appellate rights. See Sanchez v. Keller, No. 06-CIV-3370 JSR/THK, 2007 WL 4927791, at
*8 (S.D.N.Y. Dec. 4, 2007) (“[B]ecause the Supreme Court has never addressed the issue of
whether mandatory supervised release is a direct consequence of one’s conviction, the trial
court’s failure to inform Petitioner of his mandatory PRS cannot be a violation of clearly
established federal law.”), adopted, No. 06 CIV. 3370 (JSR), 2008 WL 461593 (S.D.N.Y.
Feb. 15, 2008).
Nor has the Supreme Court ever held that a guilty plea is invalid where a state trial
court affirmatively misinforms the defendant regarding his right to appeal. The Court has
found in its own research cases in which the Fourth, Ninth, and Eleventh Circuits have held
that a guilty plea was not knowing and voluntary where the defendant was misinformed
about his appellate rights. See United States v. Bundy, 392 F.3d 641, 649 (4th Cir. 2004)
(“We cannot treat Bundy’s plea as an unconditional plea unless Bundy entered such a plea,
including a waiver of appeal rights, knowingly, intelligently, and with sufficient awareness
of the relevant circumstances and likely consequences. At the Rule 11 colloquy, the district
court outlined the terms of Bundy’s plea agreement—including the provision preserving all
three pretrial issues for appeal—and Bundy answered that those were the terms to which he
agreed. The district court found that Bundy was ‘aware of the nature of the charge against
him and the consequences of his plea,’ and it then accepted Bundy’s plea as a conditional
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plea.

Based on this record, we cannot treat this plea as a knowing and voluntary

unconditional plea. Because there is no valid plea—conditional or unconditional—to
support the judgment of conviction, that judgment must be vacated.” (emphasis in original
and quotation omitted)); United States v. Pierre, 120 F.3d 1153, 1156 (11th Cir. 1997)
(“Because Pierre entered—and the district court accepted—this guilty plea only on the
reasonable (but mistaken) belief that Pierre had preserved the speedy trial issues for appeal,
his plea was, as a matter of law, not knowing and voluntary.”); United States v. Gustafson,
26 F.3d 134, 134 (9th Cir. 1994) (“An involuntary plea results where the defendant enters
an unconditional plea believing that the plea is conditional.”) (unpublished table decision);
United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir. 1986) (“Carrasco reasonably could
have believed that her plea was conditional, based on both previous discussions with the
assistant U.S. attorney and the ambiguous exchange in the courtroom. Accordingly, we
cannot conclude that she knowingly and voluntarily entered an unconditional guilty plea.”),
overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir.
2007); see also United States v. Rubi-Perez, 160 F. App’x 967, 969 (11th Cir. 2006)
(invalidating plea based on Pierre where “[b]oth Rubi-Perez and the district court were
proceeding forward with the guilty plea agreement with the reasonable belief that the issues
raised in the motion to dismiss the indictment were preserved for appeal,” but government
had not consented). But AEDPA prohibits this Court from relying on cases from the courts
of appeals “to conclude that a particular constitutional principle is ‘clearly established.’”
Lopez v. Smith, 574 U.S. 1, 2 (2014); see also Brown, 596 U.S. at 136 (“It is not enough that
the state-court decision offends lower federal court precedents.”); Glebe v. Frost, 574 U.S.
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21, 24 (2014) (“[C]ircuit precedent does not constitute clearly established Federal law, as
determined by the Supreme Court.” (quotation omitted)). Petitioner has not cited, nor has
the Court’s own research uncovered, any case in which the Supreme Court has held that a
plea is involuntary and unknowing because the defendant thought he was entering a
conditional plea when he was actually entering an unconditional plea. The County Court
thus cannot be said to have unreasonably applied clearly established Supreme Court
precedent in rejecting Petitioner’s claim that his guilty plea was not knowing, voluntary, and
intelligent.
Further, even assuming that Petitioner’s guilty plea violated due process, the Court
still would have to consider whether the error was harmful. See Brown, 596 U.S. at 133
(“[A] state prisoner should not receive federal ‘habeas relief based on trial error unless’ he
can show the error had a ‘substantial and injurious effect or influence’ on the verdict.”
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993))). In the context of a guilty plea
based on insufficient or inaccurate information, the inquiry focuses on whether the error
caused the petitioner to take a plea when he otherwise would not have. See Caputo v.
Henderson, 541 F.2d 979, 984 (2d Cir. 1976) (“[T]he proper test for determining the
constitutional validity of a state court guilty plea in the event of sentencing misinformation
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.”);
Potter, 2009 WL 2242342, at *7 (“Although the Court’s inquiry can stop at its determination
that the state court did not unreasonably apply clearly established Federal law, the Court also
finds that, even had the application been unreasonable, the state court’s failure to inform
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Petitioner of the PRS period did not make any difference in Petitioner’s decision to enter the
plea. Absent a difference, Petitioner’s plea, albeit involuntary, was constitutionally valid.”
(quotation, citations, and alterations omitted)); Sanchez, 2007 WL 4927791, at *9
(“Petitioner’s claim—that the failure to inform him of mandatory PRS prior to the entry of
his guilty plea was a violation of his due process rights—can be dismissed as harmless error,
because even if he had known about the PRS, such knowledge would likely not have affected
his decision.”).
Petitioner claims that if he had “known the county court judge did not have the
jurisdiction to designate what issues of appeal would be accepted as not forfeited or waived
by the appellate court” then he “would not have pled guilty and instead gone to trial to
[preserve] his issues.” (Dkt. 29 at 22-23). Petitioner made a similar assertion in his most
recent CPL § 440.10 motion, asserting that “had [he] been aware of [the] fact the Appellate
Division would honor the plea terms, [he] would not have plead[ed] guilty and instead went
to trial.” (Dkt. 47-1 at 27). However, these assertions are not supported by the evidence of
record. Instead, the record demonstrates that Petitioner pleaded guilty because of the offered
sentence.
Petitioner was charged with three class B violent felonies. Because of his prior
criminal history, had he been convicted on any one of those charges, he would have been
facing a sentence of 10 to 25 years as a second violent felony offender. See N.Y. Penal Law
§§ 70.02(1)(a), 70.04(3)(a). Further, there was discussion on the record at the plea hearing
regarding the fact that Petitioner could have faced a potential life sentence as a persistent
felony offender. (Dkt. 27-6 at 13); see N.Y. Penal Law § 70.10. Instead, Petitioner pleaded
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guilty to a single class D violent felony, and received an agreed-upon sentence of five years,
the minimum allowed under New York law in light of his criminal history. See N.Y. Penal
Law § 70.04(3)(c).
Petitioner stated on the record at the plea hearing that he did not wish to go to trial
because of his possible sentencing exposure and because by taking the plea he would receive
a sentence of five years. (Dkt. 27-6 at 16). Petitioner’s prior filings confirm that it was his
potential sentencing exposure that caused him to plead guilty. In his pro se brief submitted
in support of his direct appeal, Petitioner stated that he accepted the plea because he was “in
fear of receiving a life sentence.” (Dkt. 27-1 at 454).4 In his § 440.10 motion filed in June

4

Petitioner asserted in this brief that Judge Murphy had made “threats to pronounce a
discretionary life sentence,” and that he “believed himself coerced into taking the plea as a
result of threats of the Court imposing [a] life sentence.” (Dkt. 27-1 at 468). He has made
similar assertions in this case. (See, e.g., Dkt. 14 at 14 (“Here in this case the lower court
threatened to utilize its discretion on behalf of the prosecution to issue a life sentence if
Petitioner did not plead guilty.”)). However, a review of the plea transcript makes clear that
Judge Murphy did not threaten Petitioner. Instead, Petitioner and Judge Murphy had the
following exchange:
THE COURT: Has anyone made any threats or promises to you to get you to
enter this plea against your will?
[PETITIONER]: I mean I wouldn’t say anyone made any threats or any
promises beyond the promises that was made by the prosecutor and I deal [sic]
with the concept of facing a life sentence; that’s it.
THE COURT: Well, do you understand that legally you could have been
facing a life sentence?
[PETITIONER]: See that’s what I—I didn’t know.
THE COURT: So it weighed on your mind, correct?
[PETITIONER]: Yes, yes.
THE COURT: All right. I don’t think that’s the type of threats that the higher
courts are referring to. Anyone made any improper threats to you?
[PETITIONER]: Oh not—no, sir. No, sir.
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of 2020, Petitioner confirmed that he accepted the plea agreement because he was “[i]n fear
of the Court utilizing its discretion . . . to sentence defendant to life.” (Dkt. 27-1 at 418).
On this record, Petitioner cannot demonstrate that he would have chosen not to plead guilty
had he been correctly informed that conditional pleas are generally not accepted in New
York.
Any error was also harmless because the outcome of the proceeding would have been
no different had the Appellate Division considered Petitioner’s arguments on the merits on
direct appeal. As an initial matter, the Court notes that the Appellate Division did not find
Petitioner’s judicial bias argument forfeited by his guilty plea, but instead concluded on the
merits that it did “not require reversal or modification of the judgment.” Hill, 188 A.D.3d
at 1757. Accordingly, Petitioner received the full benefit of the conditional plea with respect
to this argument.
As to Petitioner’s Brady argument, he argued on direct appeal that the County Court
erred in not requiring the prosecution to turn over police body camera footage. (Dkt. 27-1
at 51-52). The County Court had reviewed the body camera videos and determined that

THE COURT: Other than the fact that you could have been treated as a
persistent felony offender if you did—if you were convicted of this crime,
were there any threats?
[PETITIONER]: No sir.
(Dkt. 27-6 at 12-3). In other words, it was Petitioner who raised the possibility that he could
be facing a potential life sentence if convicted, not Judge Murphy. Judge Murphy then
confirmed that Petitioner understood that a life sentence could be a legal possibility if
Petitioner was convicted of the crimes in the indictment; he did not at any point threaten to
give Petitioner a life sentence if Petitioner did not agree to plead guilty.
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“they were all relatively brief and nothing in any of the videos can be construed as Brady
material.” (Id. at 292). The body camera footage was ordered to be turned over to Petitioner,
but not as early as Petitioner had asked for. (See id. at 293 (ordering that body camera videos
be turned over to Petitioner by no later than April 10, 2018, at 10:00 a.m.)).
“To establish a Brady violation, ‘[t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.’” United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002) (alteration in original and
quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Petitioner did not come even
close to satisfying this standard in making his Brady argument on direct appeal. There is no
evidence in the record to support the conclusion that the body camera footage was
exculpatory. The only argument Petitioner made in this regard on direct appeal was that
“[i]n diligent hands, almost anything can be Brady[.]” (Dkt. 27-1 at 51). This conclusory
assertion is plainly insufficient to demonstrate any Brady error by the County Court. As
such, there is no reasonable possibility that the Appellate Division’s failure to review this
argument on the merits had any impact on the outcome of Petitioner’s appeal.
As to Petitioner’s arguments about the grand jury proceedings, he contended on direct
appeal that “gross inconsistencies” in the victim Elton Carr’s testimony, the failure to call
certain witnesses, the prosecutor’s interruption of a grand juror’s questioning of Petitioner,
and the prosecutor’s “alleging that Elton had filed a criminal complaint against [Petitioner]
in recent days” combined to render the indictment defective. (Dkt. 27-1 at 53-54). However,
under New York law, “[d]ismissal of an indictment is an extreme remedy that is limited to
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those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially
prejudice the ultimate decision reached by the grand jury.” People v. Boddie, 126 A.D.3d
1129, 1130 (3d Dep’t 2015) (quotation and alterations omitted). “In general, this demanding
test is met only where the prosecutor engages in an over-all pattern of bias and misconduct
that is pervasive and typically willful, whereas isolated instances of misconduct, including
the erroneous handling of evidentiary matters, do not merit invalidation of the indictment.”
People v. Thompson, 22 N.Y.3d 687, 699 (2014) (quotations omitted). The arguments
advanced by Petitioner on direct appeal did not come close to meeting this exacting standard,
and there is accordingly again no reasonable possibility that the Appellate Division’s failure
to consider them on the merits had a substantial and injurious effect or influence on the
outcome of Petitioner’s state criminal proceeding.
For all these reasons, the Court finds that Petitioner is not entitled to federal habeas
relief on his claim that his guilty plea was not entered into in a knowing, voluntary, and
intelligent manner.
III.

Challenges to Grand Jury Proceedings
The Court turns next to Petitioner’s claims that the indictment was defective because

it was obtained by false and perjured statements (Dkt. 14 at 6) and because the prosecutor
intimidated and withheld evidence and information from the grand jurors (id. at 8). “There
is no federal constitutional right to indictment by a grand jury in a state criminal
prosecution.” Dudley v. LaClair, No. 2:19-CV-07270, 2023 WL 8934913, at *7 (E.D.N.Y.
Dec. 27, 2023); see Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (“The Fifth
Amendment right to indictment by a grand jury was not incorporated by the Due Process
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Clause of the Fourteenth Amendment, and, accordingly, does not pertain to the states.”).
Accordingly, “[c]laims of deficiencies in state grand jury proceedings are not cognizable in
a habeas corpus proceeding in federal court.” Davis v. Mantello, 42 F. App’x 488, 490-91
(2d Cir. 2002); see also Navarro v. McCarthy, No. 6:20-CV-06094 EAW, 2023 WL
8375858, at *16 (W.D.N.Y. Dec. 4, 2023) (“Petitioner’s claim concerning the prosecutor’s
manner of presenting his case to the grand jury is not cognizable and cannot provide a basis
for habeas relief.”); May v. Warden, No. 07 CIV. 2176(BSJGWG), 2010 WL 1904327, at
*3 (S.D.N.Y. May 10, 2010) (“There is no federal constitutional right to a grand jury in a
state criminal prosecution and thus a claim of deficiency in the proceeding is not cognizable
in a habeas corpus proceeding. This rule applies to claims of perjury.” (quotation and
citations omitted)). Petitioner cannot obtain federal habeas relief on either of these bases.
IV.

Brady Claim
The Court next considers Petitioner’s claim that the prosecution improperly withheld

Brady material, thereby preventing him from preparing defenses. (Dkt. 14 at 29). As an
initial matter, Respondent argues that this claim is unexhausted5 because Petitioner failed to
properly seek leave to appeal the County Court’s denial of the CPL § 440.10 motion in which
he raised this issue. (See Dkt. 26 at 15). Respondent acknowledges that Petitioner raised a

5

Generally, “[a] federal court may not consider a petition for habeas corpus unless the
petitioner has exhausted all state judicial remedies.” Young v. Conway, 761 F. Supp. 2d 59,
72 (W.D.N.Y. 2011), aff’d, 698 F.3d 69 (2d Cir. 2012); see 28 U.S.C. § 2254(b)(1)(A).

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Brady claim on direct appeal, but notes that this Brady claim was different from the Brady
claim presented in this habeas action. (Id. at 15 n.5).
Respondent further argues that Petitioner’s Brady claim should be deemed
procedurally defaulted, but acknowledges that in Pesina v. Johnson, 913 F.2d 53 (2d Cir.
1990), “the Second Circuit found that the above circumstances did not amount to a default
in state court.” (Dkt. 26 at 16). Respondent nevertheless urges the Court to adopt the
reasoning of several other district courts in this Circuit, which have concluded that Pesina
was “undermined by later Supreme Court authority[.]” (Id.); see, e.g., Shields v. Stallone,
No. 14-CV-7596PKCDF, 2016 WL 5930262, at *4 n.2 (S.D.N.Y. Oct. 12, 2016); but see
Shomo v. Maher, No. 04-CV-4149KMK, 2005 WL 743156, at *7 (S.D.N.Y. Mar. 31, 2005)
(“While there is much to be said for those courts that have recognized the wavering viability
of Pesina, its demise cannot be declared by this Court.”).
Ultimately, this Court need not decide whether Pesina remains good law, because
Petitioner’s Brady claim fails in either event. If, as Respondent urges, Petitioner defaulted
on his Brady claim in state court, it is now procedurally barred from federal habeas review,
and this Court can grant him relief only if it finds “cause for the default plus prejudice, or a
showing of actual innocence.” Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). This
standard cannot be satisfied here.

First, the Court does not find that Petitioner has

demonstrated actual innocence. To the contrary, at his plea hearing, he gave sworn
testimony that he committed the crime of which he was convicted.
Second, Petitioner cannot demonstrate cause or prejudice. As to cause, Petitioner has
identified no reason why he did not seek leave to appeal the denial of his New York Criminal
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Procedure Law § 440.10 motion. As to prejudice, his Brady claims are without merit.
Petitioner’s primary current Brady claim is that “the alleged victim in this case made several
false allegations against Petitioner” because he was “high out of his mind,” but the
prosecution refused to turn over toxicology reports. (Dkt. 14 at 30-31). Petitioner also
asserts that the prosecution suppressed the arrest warrant, the victim’s parole records, and
“the deals made to [eliminate] [the victim’s] parole violations.” (Id. at 37-38).
Petitioner cannot satisfy the Brady standard as to these claims. The record indicates
that the prosecution turned over the victim’s medical records and criminal record to
Petitioner. (Dkt. 27-1 at 190, 199-200, 295). As to the arrest warrant for Petitioner,
Petitioner has not demonstrated that it was in any way exculpatory. There is further no
evidence before the Court that the toxicology reports Petitioner claims were suppressed
actually exist or were in the prosecution’s possession, or that they were exculpatory.
Petitioner cannot obtain habeas relief under these circumstances. See, e.g., Franza v.
Stinson, 58 F. Supp. 2d 124, 154 (S.D.N.Y. 1999) (“[The petitioner’s] claim of withheld
Brady material is speculative, conclusory and unsupported, and thus must be rejected.”).
Assuming that Petitioner has not defaulted, the Court nevertheless has the discretion
to dismiss a meritless habeas claim “regardless of whether the applicant exhausted his state
court remedies.” Abuzaid v. Mattox, 726 F.3d 311, 321 (2d Cir. 2013) (citing 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts
of the State.”)). Here, because Petitioner’s Brady claim clearly fails on the merits for the

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reasons discussed above, the Court finds that Petitioner is not entitled to federal habeas relief
on this basis regardless of exhaustion status.
V.

Judicial Bias Claim
The Court turns finally to Petitioner’s claim of judicial bias. Respondent again argues

that this claim is unexhausted but should be deemed exhausted and procedurally barred,
notwithstanding Pesina. (Dkt. 26 at 15-17). The Court again need not resolve this
procedural issue, because Petitioner’s judicial bias claim is plainly meritless and thus cannot
warrant federal habeas relief under any circumstances.
Due process requires “‘a fair trial in a fair tribunal’ before a judge with no actual bias
against the defendant or interest in the outcome of his particular case.” Bracy v. Gramley,
520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). “Mere
allegations of judicial bias or prejudice do not state a due process violation.” Brown v. Doe,
2 F.3d 1236, 1248 (2d Cir. 1993). Petitioner alleges that Judge Murphy was biased against
him because: (1) Judge Murphy had “a prior legal association with the prosecutor presenting
the case to him”; (2) Judge Murphy ruled against him on a variety of legal issues; and (3)
Judge Murphy threatened him with a life sentence. (Dkt. 14 at 18-27). Petitioner also seems
to argue that Judge Sheldon (the sentencing judge) was biased because she would not allow
him to withdraw his guilty plea due to her “prior legal association with [the] district
attorney.” (Id. at 32-33). These arguments lack merit.
First, the existence of a prior professional relationship between a judge and the
prosecutor is insufficient to establish bias. See, e.g., Barbur v. Superintendent of Wende
Corr. Facility, No. 05-CV-709(SR), 2010 WL 1816696, at *5 (W.D.N.Y. May 5, 2010)
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(“Judge Noonan’s prior history as District Attorney and previous professional relationship
with the current District Attorney is insufficient to raise even a colorable claim of bias.”).
Second, Judge Murphy’s legal rulings—despite Petitioner’s vehement disagreement
therewith—do not demonstrate bias. See, e.g., Chen v. Chen Qualified Settlement Fund, 552
F.3d 218, 227 (2d Cir. 2009) (“Generally, claims of judicial bias must be based on
extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a
reasonable basis for questioning a judge’s impartiality.”); Lane v. Graham, No. 9:14-CV01261-JKS, 2016 WL 154111, at *13 (N.D.N.Y. Jan. 12, 2016) (“[T]he Supreme Court has
explained that adverse judicial rulings, standing alone, are not probative of judicial bias.
[The petitioner’s] claims that the trial judge was biased as evidenced by his adverse rulings
thus fails to set forth a violation of the due process clause.” (citation omitted)).6
Third, and as previously discussed, Judge Murphy did not threaten Petitioner with a
life sentence. At the plea hearing, Petitioner raised the possibility that he could be facing a
potential life sentence if convicted, not Judge Murphy. (See Dkt. 27-6 at 12-13). Judge
Murphy confirmed that a life sentence could be a legal possibility if Petitioner was convicted
of the crimes in the indictment but did not at any point threaten to impose such a sentence.

6

Petitioner also suggests that Judge Murphy deliberately misled him about the
enforceability of his conditional plea out of bias. (See Dkt. 14 at 21-22). As discussed
above, the record in no way supports the conclusion that Judge Murphy acted deliberately
to mislead or trick Petitioner. To the contrary, he engaged in an extended discussion to make
sure it was clear to a reviewing court the precise scope of the conditional plea. A judge’s
commission of a legal error is not proof of bias.
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In sum, Petitioner’s claim is based on nothing more than “[m]ere allegations of
judicial bias or prejudice,” which “do not state a due process claim.” Brown, 2 F.3d at 1248.
He is not entitled to federal habeas corpus relief on this basis.
VI.

Motion to File Documents Electronically and to Require Submission of
Supplemental Records
Petitioner has filed a motion asking the Court to allow him to submit documents

electronically. (Dkt. 49). In light of the Court’s denial and dismissal of the amended
petition, this request is denied as moot.
Petitioner also asserts that Respondent has not complied with a court order directing
him to “produce the records regarding Petitioner’s supplemental appeals.” (Id. at 1). This
is incorrect. The Court did not enter any such order. The Court ordered that the additional
documents submitted by Petitioner be included in the record. (Dkt. 41 at 4). The Court then
instructed Respondent to file a supplemental memorandum of law (id.), which Respondent
did (Dkt. 47). No further submissions by Respondent are necessary and Petitioner’s request
for the same is denied.
CONCLUSION
For the reasons discussed above, the request for a writ of habeas corpus is denied,
and the amended petition (Dkt. 14) is dismissed. Petitioner’s motion for permission to file
documents electronically and to require Respondent to submit supplemental records (Dkt.
49) is denied. The Court declines to issue a certificate of appealability because Petitioner
has failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C.

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§ 2253(c)(1), (2). The Clerk of Court is direct to enter judgment in Respondent’s favor and
close this case.
SO ORDERED.

___________
_______________
_
_________
___
________________________________
ELIZABETH
EL
LIZ
ZABETH A. WOLFORD
WOLFORD
Judge
Chief Ju
udge
U
i dS
i C
United
States Di
District
Court
Dated: June 4, 2024
Rochester, New York

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