Gabbidon v. Lee

Full title: CRAIG E. GABBIDON, Petitioner, v. WILLIAM A. LEE, Superintendent, Eastern…

Court: United States District Court, S.D. New York

Date published: Mar 10, 2022

18 Civ. 2248 (VB)(JCM) (S.D.N.Y. Mar. 10, 2022)

Opinion

18 Civ. 2248 (VB)(JCM)

03-10-2022

CRAIG E. GABBIDON, Petitioner, v. WILLIAM A. LEE, Superintendent, Eastern Correctional Facility, Respondent.

JUDITH C. McCARTHY, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

JUDITH C. McCARTHY, UNITED STATES MAGISTRATE JUDGE

To the Honorable Vincent Briccetti, United States District Judge:

Petitioner Craig E. Gabbidon (“Petitioner”), proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 dated March 1, 2018 (the “Petition”).¹ (Docket No. 2). Respondent opposed the motion. (Docket No. 24). Petitioner filed a reply in further support of his motion. (Docket No. 28). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.

1 A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the “Houston prison mailbox rule”). Petitioner certified that his Petition was delivered to the prison authorities for mailing on March 1, 2018. (Docket No. 2 at 33). Accordingly, because the timeliness of the Petition is not challenged, the Court adopts Petitioner's dates for this filing and all other filings discussed herein.

I. BACKGROUND

A. The Crime, Guilty Plea and Sentencing

On January 22, 2014, Petitioner was charged in Dutchess County Court with a Class B Violent Felony of Criminal Sexual Act in the First Degree, a Class B Violent Felony of Rape in the First Degree, two counts of a Class E Felony of Criminal Sexual Act in the Third Degree, and a Class A Misdemeanor of Endangering the Welfare of a Child. (Docket Nos. 11-2; 11-3). These 1 charges arose from his sexual assault of YR² on March 3, 2013. (Docket Nos. 11-2; 11-3). The Bill of Particulars alleges that on that date between 2:00 p.m. and 8:00 p.m., Petitioner purchased alcohol for YR and her friend from a liquor store in Poughkeepsie, New York. (Docket No. 113). After YR became “extremely intoxicated” from the alcohol, Petitioner placed her and her friend in his truck and drove them to a motel in Hyde Park, New York. (Id.). Petitioner carried YR into the motel because she was too intoxicated to walk. (Id.). Petitioner then removed her clothing and subjected her to contact between his penis and her anus, her vagina and her mouth. (Id.). Petitioner did so for purposes of his own sexual gratification. (Id.). Moreover, YR was incapable of consenting to these acts because she was under seventeen years old, and because she was physically helpless because she was intoxicated. (Id.).

2 “In light of New York Civil Rights Law § 50-b, which provides that the identities of the victims of sex offenses be kept confidential by the State, ” we refer to the victim as “YR.” See Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 109 n.4 (2d Cir. 2000).

On June 11, 2014, Petitioner pled guilty to the Class B Violent Felony of Criminal Sexual Act in the First Degree. (Docket No. 11-4). During his plea colloquy, Petitioner stated that he had discussed his guilty plea with his attorney, Assistant Public Defender Susan Mungavin (“Mungavin”), and that he understood that by pleading guilty he would give up his right to a trial. (Id. at 8).³ The court explained to Petitioner that since he was a citizen of Jamaica, he likely would be deported when released from prison. (Id. at 12). The court also told Petitioner that, in light of his guilty plea, it would cap his sentence at fifteen years in prison followed by post-release supervision, which the court believed was “between two and a half and five years.” (Id. at 14). The court further advised Petitioner that his maximum penalty for the charged crimes was twenty-five years each and that he could be sentenced consecutively. (Id. at 13-14). 2

3 All page number citations to the record refer to the ECF page number unless otherwise noted.

By Notice of Motion, dated September 10, 2014, Petitioner's new defense counsel, Eric S. Shiller (“Shiller”), moved to withdraw Petitioner's guilty plea on the ground that Petitioner's previous counsel, Mungavin, “pressured and badgered” him to accept the People's offer to plead guilty. (Docket No. 11-5; see also Docket No. 11-7). Shiller further argued that Petitioner was not guilty, and that he would not have waived his right to a trial but for Mungavin's extreme pressure on him. (Docket No. 11-5). By Decision and Order, dated October 15, 2014, the Dutchess County Court denied the motion on the grounds that the plea minutes established that Petitioner's guilty plea was knowing and voluntary, and that Petitioner stated he was satisfied with his attorney's representation and advice. (Docket No. 11-8 at 5). The court further found that Petitioner's allegations of coercion and claim of innocence were belied by the record. (Id. at 6).

On December 23, 2014, Petitioner was sentenced to a determinate term of fifteen years in prison plus ten years of post-release supervision. (Docket No. 11-9). Neither Petitioner nor Shiller objected when the court imposed the ten years of post-release supervision. (Id. at 9-10).

B. Direct Appeal

On May 29, 2015, Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“Second Department”), claiming that: (1) the lower court erred in denying his motion to withdraw his guilty plea because it failed to recognize its own misstatement of sentencing law as it relates to consecutive sentences; (2) he was denied effective assistance of counsel; and (3) his sentence should be modified as harsh and excessive. (Docket No. 11-10).

By Decision and Order, dated December 2, 2015, the Second Department affirmed Petitioner's judgment of conviction. People v. Gabbidon, 19 N.Y.S.3d 786 (2d Dep't 2015); (Docket No. 11-12). 3 The court held that Petitioner's claim that the trial court misinformed him of his maximum sentencing exposure were he to proceed to trial was unpreserved for appellate review since he failed to raise this ground in his motion to withdraw his guilty plea. Gabbidon, 19 N.Y.S.3d at 786. The court further found that the trial court properly informed Petitioner that consecutive sentences could be imposed if he were convicted of the first two counts of the indictment, since each count involved a separate sexual act constituting a distinct offense. Id. at 786-87. The court also concluded that Petitioner was not deprived of effective assistance of counsel relating to the trial court's purported error regarding the maximum sentencing, since the trial court did not, in fact, err in this regard. Id. at 787. Finally, the court held that nothing in the record demonstrated that Petitioner otherwise received ineffective assistance of counsel, and that his sentence was not excessive. Id. On February 1, 2016, Petitioner sought leave to appeal this decision to the New York Court of Appeals (“Court of Appeals”). (Docket No. 11-13).

Petitioner's request for leave to appeal was denied on March 31, 2016. People v. Gabbidon, 27 N.Y.3d 964 (2016); (Docket No. 11-16).

C. Post-Conviction State Court Proceedings

On September 16, 2016, Petitioner moved to vacate his conviction pursuant to N.Y. C.P.L § 440 (“First 440 Motion”), claiming that: (1) his due process rights were violated because the ten-year period of post-release supervision to which he was sentenced exceeded the amount of time the court discussed during his plea colloquy, which was two-and-a-half to five years; and (2) his counsel was ineffective because he failed to object to the court's misstatement regarding Petitioner's post-release supervision at the plea colloquy. (Docket Nos. 11-17; 11-21). By Decision and Order, dated January 31, 2017, the trial court denied the motion. (Docket No. 1122). The court held that because Petitioner's claims were record-based and not raised on direct 4 appeal, they were not properly subject to a N.Y. C.P.L. § 440 proceeding. (Id. at 4, 9-10). The court further held that there is no evidence in the record that Petitioner's plea was not knowing and voluntary or that Petitioner would not have pleaded guilty had he been informed of a different period of post-release supervision. (Id.). In addition, the specific amount of postrelease supervision Petitioner received was “academic” because at the plea colloquy, the court made “abundantly clear that because [Petitioner] was not a U.S. citizen, ” he “would be subject to deportation upon his release.” (Id. at 5, 11). On February 17, 2017, Petitioner moved for leave to appeal the court's denial of his motion to the Second Department, (Docket No. 11-23), which was denied on April 11, 2017, (Docket No. 11-24).

On August 9, 2017, Petitioner, proceeding pro se, filed a writ of error coram nobis in the Second Department, claiming ineffective assistance of appellate counsel on the grounds that counsel: (1) failed to consult with him concerning issues to be raised; (2) failed to raise issues relating to the length of post-release supervision mentioned at the plea allocution and the term actually imposed at sentencing; and (3) failed to raise other meritorious issues. (Docket Nos. 1127; 11-28). By Decision and Order, dated January 31, 2018, the Second Department denied Petitioner's application. People v. Gabbidon, 67 N.Y.S.3d 500-01 (2d Dep't 2018); (Docket No. 11-32). The Court of Appeals denied Petitioner's leave application on September 24, 2018. People v. Gabbidon, 32 N.Y.3d 1003 (2018).

D. The Petition

On March 1, 2018, Petitioner filed his Petition in this Court. (Docket No. 2). Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (“pleading requirements in habeas proceedings should not be overly technical and stringent”), Petitioner asserts four claims: (1) the trial court failed to correct its own misstatement of law when it 5 incorrectly advised that consecutive sentences were available, (Docket No. 2 at 13); (2) Petitioner's guilty plea was not voluntarily, knowingly, and intelligently entered into because he was sentenced to a period of post-release supervision that exceeded the amount of time the court advised he would receive during his plea allocution, (Docket No. 2 at 17); (3) ineffective assistance of trial counsel for counsel's failure to address the court's purported misstatements of sentencing law during his plea allocution, (Docket No. 2 at 49, 65);⁴ and (4) ineffective assistance of appellate counsel for counsel's failure to raise meritorious issues on appeal, consult with Petitioner, and read the record, (Docket No. 2 at 18, 87-90). Respondent opposed the Petition, (Docket Nos. 11; 12), and Petitioner replied, (Docket No. 14).

4 Although this third claim is not listed in the form petition itself, the form references numerous attachments, including his state court proceedings, which do raise this argument. (Docket No. 2 at 13, 17, 49, 65). In light of Petitioner's pro se status, the Court considers it. See, e.g., Broxton v. Lee, No. 09-CV-5373 (DLI) (LB), 2020 WL 10500555, at *6 n. 19 (E.D.N.Y. Mar. 12, 2020), report and recommendation adopted, 2021 WL 3113039 (E.D.N.Y. July 22, 2021) (noting that petitioner “d[id] not list all the grounds on the form petition, [but] rather[, ] . . . refer[red] to attached sheets . . . list[ing] the grounds he raises and reference his prior state court proceedings”); Irizarry v. Ercole, No. 08-CV-5884 (KMK)(PED), 2009 WL 3151358, at *2 (S.D.N.Y. Sept. 30, 2009) (“Although Petitioner left section 13 blank, he attached four pages that clearly indicate the grounds he seeks to raise in his habeas petition, viz., the same grounds he pressed in his direct appeal. Technical pleading errors by pro se habeas petitioners must be forgiven where, as here, no prejudice results.”).

After filing his Petition, on May 25, 2018, Petitioner filed a second motion pursuant to N.Y. C.P.L. § 440 (“Second 440 Motion”) to vacate his conviction claiming, among other things, (1) ineffective assistance of trial counsel; and (2) actual innocence. (Docket Nos. 14; 24 at 3). By letter dated May 29, 2018, Petitioner requested to have his Petition held in abeyance pending the state court's decision. (Docket No. 14). Respondent opposed the motion, (Docket No. 17), and Petitioner filed a reply in further support of his request, (Docket No. 19). By Decision and Order, dated August 20, 2018, the County Court, Dutchess County summarily denied his motion on the grounds that his claims could have been raised in his First 440 Motion. (Docket No. 24 at 3). Petitioner sought leave to appeal the denial of his Second 440 Motion to the Second 6 Department, which was denied on February 26, 2019. (Id. at 4). Petitioner's leave application to the Court of Appeals was denied on May 3, 2019 pursuant to N.Y. C.P.L. § 450.90(1). (Id.).

On May 29, 2020, the Court denied Petitioner's motion to amend and his request for a stay. (Docket No. 29). The original Petition is presently before the Court.

II. APPLICABLE LAW

“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). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).⁵ The procedural and substantive standards are summarized below.

5 If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).

A. Exhaustion as a Procedural Bar

A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

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(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254(b)-(c).

Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]”).

However, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotations omitted). In such cases, although 8 the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘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.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).

Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20);⁶ see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal . . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09 Civ. 0058T, 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 9 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.)” (citing N.Y.C.P.L. § 440.10(2)(c)).⁷

6 This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).

7 N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.”

To avoid the procedural default of an unexhausted claim, a petitioner may show “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.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).

B. Adequate and Independent State Grounds as a Procedural Bar

“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).

“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should 10 not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Id. (internal quotations omitted).

To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)).

C. AEDPA Standard of Review

When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:

shall not be granted 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

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(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.

28 U.S.C. § 2254(d)(1)-(2).

Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).

If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling.⁸ 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court 12 identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case, ” or (2) “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” - it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).

8 If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required. . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).

When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing 13 evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940(JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).

III. DISCUSSION

The Petition advances the following grounds for relief: (1) Petitioner's guilty plea was not knowing, voluntary and intelligent because the trial court incorrectly advised that he could be sentenced consecutively for the original charges, (Docket No. 2 at 13, 17, 43-49); (2) Petitioner's guilty plea was not knowing, voluntary and intelligent because his sentence to ten years of postrelease supervision exceeded the amount of time the court advised he would receive during his plea allocution, (Docket No. 2 at 17, 64-65); (3) Petitioner's trial counsel was ineffective because he did not address the court's purported misstatements of sentencing law during his plea allocution, (Docket No. 2 at 49, 65); and (4) Petitioner's appellate counsel was ineffective because he did not raise meritorious issues on appeal, consult with Petitioner, or read the record, ⁹(Docket No. 2 at 18, 87-90).

9 In his reply brief, Petitioner also appears to argue that his attorney coerced him into pleading guilty in violation of the Due Process Clause. (Docket No. 14 at 1). However, a habeas petitioner cannot raise a federal claim for the first time on reply. See Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the United States District Courts (stating that a habeas petition “must . . . specify all the grounds for relief available to the petitioner”). This is because, by raising an argument solely in a reply brief, the petitioner deprives the respondent of an opportunity to respond to the new claim. See, e.g., Roache v. McCulloch, Nos. 9:16-cv-1069-JKS, 9:17-cv-574-JKS, 2019 WL 4327271, at *2 (N.D.N.Y. Sept. 12, 2019); Zuniga v. Lamana, 18-CV-5717 (LGS) (JLC), 2019 WL 4124416, at *11 (S.D.N.Y. Aug. 30, 2019). In any event, even assuming arguendo that this argument was exhausted, it fails on the merits because, as explained infra, Petitioner confirmed on the record that he was not threatened or forced to plead guilty. See Section III.A; see also Rodriguez v. Bradt, No. 09 Civ. 10285(LTS)(DF), 2011 WL 6747470, at *9 (S.D.N.Y. Sept. 14, 2011), report and recommendation adopted, 2011 WL 6777914 (S.D.N.Y. Dec. 23, 2011) (denying habeas petition based on alleged “undu[e] pressure[]” by attorney where this allegation was belied by the record of the plea proceeding).

A. Guilty Plea

1. Alleged Misstatements Regarding Consecutive Sentences

Petitioner argues that his guilty plea was not knowing, voluntary and intelligent because at the plea proceeding, the trial court incorrectly advised that he could have been sentenced 14 consecutively for the original charges. (Docket No. 2 at 13, 17, 43-49). Petitioner further argues that this misstatement violated his rights under the Due Process Clause of the Fourteenth Amendment. (Docket Nos. 2 at 17; 14 at 1-2). Respondent contends that this claim is not cognizable for habeas review. (Docket No. 12 at 19). Alternatively, Respondent argues that it is procedurally barred and unexhausted, and otherwise fails on the merits because the trial court's statements were correct. (Id. at 19-24). The Court finds that this claim is cognizable and exhausted, but procedurally barred.

Respondent contends that this claim is not cognizable because its “factual basis . . . rests entirely on an alleged violation” of state law. (Docket No. 12 at 19). Of course, to be cognizable, a habeas claim must raise a federal question. See 28 U.S.C. § 2254(a). However, Petitioner's claim implicates the Due Process Clause because it challenges the voluntariness of his plea. Indeed, a “defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings, ” United States v. Contreras, 110 Fed.Appx. 153, 154 (2d Cir. 2004) (summary order) (quoting United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003) (internal quotations omitted)), and thus, is limited to later attacking the voluntariness of his plea. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). “[T]o be valid under the Due Process Clause, [a guilty plea] must be an ‘intentional relinquishment or abandonment of a known right.'”¹⁰ See McCarthy v. United States, 394 U.S. 459, 466 (1969) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

10 In addition, “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466 (1969).

A plea is voluntary when it is “entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own 15 counsel.” Brady v. United States, 397 U.S. 742, 755 (1970) (emphasis added). The plea “must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. [] bribes).” Id. (emphasis added). Petitioner claims that he was induced to plead guilty because of the court's alleged misstatements regarding New York sentencing law, which implicates the Due Process Clause. Therefore, it is cognizable under AEDPA. See, e.g., Boykin v. Alabama, 395 U.S. 238, 241 (1969) (noting that court had “jurisdiction to review the voluntary character of petitioner's guilty plea”); Hill v. West, 599 F.Supp.2d 371, 386-87 (W.D.N.Y. 2009) (entertaining habeas claim based on the trial court's alleged misrepresentations to establish guilt at plea proceeding); Lebron v. Sanders, No. 02 Civ. 6327(RPP), 2008 WL 793590, at *18 (S.D.N.Y. Mar. 25, 2008) (addressing the merits of petitioner's argument that trial court breached his plea agreement).

The Court similarly rejects Respondents' contention that this claim is unexhausted because Petitioner “ma[de] no effort to establish a violation of his federal constitutional rights” before the state courts. (Docket No. 12 at 20-21). “In New York, claims about the voluntariness of a guilty plea must be presented to the state court in one of three ways: a motion to withdraw the plea before sentencing, a post-judgment New York Criminal Procedure Law (‘C.P.L.') § 440.10 motion in the trial court, or on direct appeal if the record permits.” McCormick v. Hunt, 461 F.Supp.2d 104, 109 (W.D.N.Y. 2006) (citing People v. Lopez, 529 N.Y.S.2d 465, 466 (1988)). It is well-settled that a habeas petitioner alerts the state courts to the constitutional nature of his claim by “rel[ying] on pertinent federal cases employing constitutional analysis” or 16 presenting facts that are “well within the mainstream of due process adjudication.” See Daye, 696 F.2d at 194-96.

Here, Petitioner's memorandum of law on direct appeal references Boykin v. Alabama, 395 U.S. 238 (1969), for the proposition that “[a] criminal defendant's decision to plead guilty . . . must be the product of a free and voluntary choice among the available alternatives.” (Docket No. 11-10 at 12). It further argues that “the judge who convicted the appellant offered advice which was an incorrect statement of statutory sentencing law, ” and “but for the incorrect sentencing information, defendant would not have entered the guilty plea.” (Id. at 11). At least one court in this Circuit has held that “challenges to the voluntariness of a guilty plea are firmly within the mainstream of due process claims.” Rodriguez v. Lamanna, No. 2:18-CV-07196 (ENV), 2020 WL 4926358, at *3 (E.D.N.Y. Aug. 19, 2020), appeal dismissed, 2021 WL 1408397 (2d Cir. Mar. 19, 2021). Moreover, Boykin is a lead Supreme Court case consistently cited to explain the constitutional import of involuntary guilty pleas.¹¹ The Second Department affirmed Petitioner's judgment of conviction, and the New York Court of Appeals denied Petitioner's request for leave to appeal that decision. See Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (stating that “where the petitioner has appealed his conviction to the highest state court, and throughout the course thereof has fairly presented the claim that is now the gravamen of his federal habeas corpus petition, he has satisfied the exhaustion requirement”); see also Gabbidon, 19 N.Y.S.3d at 787; (Docket No. 11-16). Petitioner's use of Boykin, combined with his factual assertions, was therefore sufficient to exhaust this claim in the state courts. See Daye, 696 F.2d at 194-95; see also Esquilin v. Walker, No. CV-91-4608, 1992 WL 151903, at *2 (E.D.N.Y. June 16, 1992), aff'd, 990 F.2d 624 (2d Cir. 1993) 17 (finding that “lone” citation to “the leading Supreme Court case on the issue” was sufficient for exhaustion purposes).

11 See, e.g., United States v. Dominguez Benitez, 542 U.S. 74, 84 n.10 (2004); Parke v. Raley, 506 U.S. 20, 29 (1992); Hanson v. Phillips, 442 F.3d 789, 797 (2d Cir. 2006).

Nonetheless, the Court agrees with Respondent that this claim must be rejected as procedurally barred. The Second Department denied this claim on independent and adequate state law grounds, explicitly concluding that it was unpreserved for appellate review because Petitioner “did not raise this specific ground in his motion to withdraw his plea.” See Gabbidon, 19 N.Y.S. at 786. The court cited caselaw holding that with some narrow exceptions, ¹² appellate challenges to the adequacy of a plea allocution must be preserved by an appropriate objection in the trial court. See id. (citing People v. Delarosa, 960 N.Y.S.2d 915 (2d Dep't 2013)). Although the court “went on to deny” the claim on the merits using the phrase “in any event, ” its “primary reliance on this state procedural law constitutes an independent ground for its decision.” See Serrano v. Kirkpatrick, No. 11 Civ. 2825(ER)(PED), 2013 WL 3226849, at *11 (S.D.N.Y. June 25, 2013); see also Harris, 489 U.S. at 264 n.10 (finding that a state court decision relying on a procedural rule to dismiss a claim, but that, in the alternative, also proceeds to dismiss the claim on the merits, relies on the independent state law ground for dismissal); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 & n.4 (2d Cir. 2000) (noting that when a state court opines that a claim is “not preserved for appellate review” and then rules “in any event” that the claim also fails on the merits, the claim rests on independent state law rule which precludes federal habeas review). 18

12 People v. Lopez, 529 N.Y.S.2d 465 (1988), sets forth a narrow exception to this rule where a defendant may raise a deficiency in the plea proceedings on direct appeal if his “factual recitation” at the proceedings “negates an essential element of the crime pleaded to, ” and the trial court accepts the plea without further inquiring to ensure that he understands the nature of the charge and that the plea is intelligently entered. See id. at 466-67. However, that exception is inapplicable here, where Petitioner's statements at the plea proceeding did not call into question any elements of his conviction. (See generally Docket No. 11-4); see also People v. Beverly, 34 N.Y.S.3d 245, 247 (3d Dep't 2016).

Under N.Y.C.P.L. § 470.05(2), a legal question is only preserved for appellate review “when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.” See N.Y.C.P.L. § 470.05(2). The Second Circuit has held that § 470.05(2) is “firmly established and regularly followed, ” and “New York courts consistently interpret § 470.05(2) to require that a defendant specify the grounds of alleged error in sufficient detail so that the trial court may have a fair opportunity to rectify any error.” Garvey v. Duncan, 485 F.3d 709, 715-16 (2d Cir. 2007). With respect to the error alleged here, “a defendant must notify the trial court of his request to withdraw a guilty plea on a specific basis in order to preserve that issue for appeal.” Hunter v. McLaughlin, No. 04 Civ. 4058(LTS)(DFE), 2008 WL 482848, at *1 (S.D.N.Y, Feb. 21, 2008) (emphasis added); see also Babcock v. Heath, No. 11-CV-4631 (KMK)(PED), 2014 WL 4979448, at *4 (S.D.N.Y. Oct. 3, 2014) (holding that petitioner's “fail[ure] to move to withdraw his plea on [particular] grounds before the trial court” constituted independent and adequate state law ground to deny petitioner relief); People v. Pellegrino, 60 N.Y.2d 636, 637 (1983) (“Not having raised the issues by motion to vacate or otherwise in the court of first instance . . . defendant's arguments that he should be relieved of his guilty plea . . . have not been preserved for our review.”); People v. Mitchell, 69 A.D.3d 883 (2d Dep't 2010) (“The defendant's contention that his plea was not voluntary because it was coerced is unpreserved for appellate review, since he did not move to withdraw his plea on that basis.”). Whereas Petitioner moved to withdraw his guilty plea under the rationale that it was the product of his attorney's coercion, (Docket No. 11-5), he did not raise the issue of the trial court's alleged misstatements regarding consecutive sentences. Thus, this objection was insufficient to preserve Petitioner's claim for appellate review, and it is procedurally barred. See Harris, 489 U.S. at 262. 19

Moreover, Petitioner fails to show cause or prejudice flowing from his procedural default, nor does he demonstrate that a failure to consider this claim will result in a fundamental miscarriage of justice. See id. To demonstrate cause, a petitioner must point to “some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule, ” such as the unavailability to counsel of the factual or legal basis for a claim, or that “‘some interference by officials' . . . made compliance impracticable.” Murray, 477 U.S. at 488 (quoting Brown v. Allen, 344 U.S. 443, 486 (1953)). With respect to prejudice, the petitioner must show that that counsel's procedural failures both “created a possibility of prejudice, [and] that they worked to his actual and substantial disadvantage ....” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). Alternatively, to demonstrate a fundamental miscarriage of justice, a petitioner must demonstrate “actual innocence, ” a factual “‘show[ing] that it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence.'” See Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Petitioner has not pointed to any “objective factor external to the defense” that “impeded [his] counsel's efforts to comply with the State's procedural rules.” See Murray, 477 U.S. at 488. As a result, Petitioner has not demonstrated cause, and the Court need not consider the issue of prejudice. See id. at 488, 494. Petitioner also has not presented any new evidence of his innocence that would support a finding of a fundamental miscarriage of justice. See Dunham, 313 F.3d at 730. Therefore, this aspect of Petitioner's objection to his guilty plea is denied.

Furthermore, even assuming this claim was not procedurally barred, it fails on the merits. As previously noted, “a defendant who pleads guilty to a charge must do so ‘with full understanding of the consequences.'” U.S. ex rel. Leeson v. Damon, 496 F.2d 718, 721 (2d Cir. 1974) 20 (quoting Kercheval v. United States, 274 U.S. 220, 223 (1927)). “The standard for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.'” Urena v. People of the State of N.Y., 160 F.Supp.2d 606, 610 (S.D.N.Y. 2001) (quoting Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992)). “A plea is ‘intelligent' and ‘voluntary' when a defendant had the advice of counsel, understood the consequences of his plea and the plea was not physically or mentally coerced.” Heron v. People of the State of N.Y., No. 98 Civ. 7941 (SAS), 1999 WL 1125059, at *5 (S.D.N.Y. Dec. 8, 1999) (citing Parke v. Raley, 506 U.S. 20, 29 (1992)).

Courts have rejected attacks to a petitioner's guilty plea based on improper inducement where, contrary to the petitioner's allegations, there is no evidence of misrepresentation as to the facts or consequences of the plea that could have rendered the allocution invalid. See, e.g., Zhang v. United States, 506 F.3d 162, 169 (2d Cir. 2007) (vacating order granting habeas relief where sentencing court's alleged misstatements regarding immigration consequences of guilty plea “were not misleading”); Hill, 599 F.Supp.2d at 375-80 (rejecting habeas claim based on involuntary plea where trial court's “comments” at allocution “accurately reflected” the record and trial court properly advised that “just ‘being there' was an insufficient basis for [petitioner] to be liable as an accessory” to murder); Lebron, 2008 WL 793590, at *18 (denying petitioner's challenge to his sentence based on surcharge and victim fees that were “not included in the plea agreement's terms” because such fees are “mandatory” under New York law, and “therefore could not have been subject to negotiation in the plea agreement”). Moreover, a court's “accurate statements concerning higher sentences that might result from trial” do “not . . . render[] a subsequent . . . guilty plea involuntary.” Ocasio v. Smith, No. 07 Civ. 2754(BSJ)(AJP), 2008 WL 110938, at *15 (S.D.N.Y. Jan. 8, 2008); 21 see also Bordenkircher v. Haves, 434 U.S. 357, 364 (1978); Gaines v. Murray, No. 03-CV-016A, 2008 WL 4890249, at *5 (W.D.N.Y. Nov. 12, 2008).

That is the case here. The trial court correctly advised Petitioner that if he went to trial and was found guilty, under New York law, he could receive consecutive sentences for Rape in the First Degree and Criminal Sexual Act in the First Degree. (Docket No. 11-4 at 13-14). Under N.Y. Penal Law § 70.25, “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.” N.Y. Penal Law § 70.25(2). However, the Court of Appeals has held that if neither of these circumstances exists, “a judge possesses discretionary consecutive sentencing authority, ” and “even ‘[i]f the statutory elements do overlap . . ., the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts'” that were part of the same transaction. See People v. McKnight, 917 N.Y.S.2d 594, 597 (2010) (quoting People v. Laureano, 642 N.Y.S.2d 150, 152 (1996)); see also Campbell v. Lee, No. 11 CIV. 4438 PKC AJP, 2013 WL 5878685, at *14 (S.D.N.Y. Oct. 11, 2013), report and recommendation adopted, 2014 WL 6390287 (S.D.N.Y. Nov. 17, 2014).

It is well-settled that under New York law, rape and sexual offenses identical to those here are sufficiently distinct to support consecutive sentencing, even when “the precise time sequence of the acts in question is not clear” from the record. See People v. White, 690 N.Y.S.2d 300, 304 (3d Dep't 1999) (holding that “consecutive sentences were properly imposed” for rape and sodomy (now criminal sexual act) convictions where victim “stated that defendant put his 22 penis in her vagina and in her mouth ‘at different times'”); see, e.g., Campbell, 2013 WL 5878685, at *14 (“Under New York's statutory scheme, where, as here, distinct criminal sexual acts are proved, consecutive sentences are properly imposed.”); People v. Boyd, 108 N.Y.S.3d 101, 103 (4th Dep't 2019) (upholding “consecutive sentences for the three counts of criminal sexual act in the first degree and the count of rape in the first degree”); People v. Soto, 64 N.Y.S.3d 33, 35-36 (2d Dep't 2017) (finding lawful “consecutive sentences of imprisonment on . . . convictions of rape in the first degree and criminal sexual act in the first degree because they were ‘separate and distinct acts, notwithstanding that they occurred in the course of a continuous incident'”) (quoting People v. Wynn, 827 N.Y.S.2d 35, 36 (1st Dep't 2006)). Here, as in White, Petitioner was accused of subjecting YR to “to contact between his penis and her anus, her vagina and her mouth.” (Docket No. 11-3 at 1); see also White, 690 N.Y.S.2d at 304. Therefore, Petitioner's contention that his charges of Rape in the First Degree and Criminal Sexual Act in the First Degree would have required concurrent sentencing, simply because both may have involved “penetration, ” is unavailing. (Docket No. 11-10 at 10).

In light of this precedent, the trial court's statements regarding Petitioner's potential sentence if he proceeded to trial were accurate, leaving the constitutionality of his guilty plea intact. Cf. Zhang, 506 F.3d at 169. The state court's decision was neither contrary to, nor involved an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d). It also did not result in a decision based on an unreasonable determination of the facts in light of the evidence in the state court proceeding. See id.

Accordingly, I respectfully recommend denying Petitioner's Due Process claim based on the trial court's statements regarding consecutive sentencing at the plea proceeding. 23

2. Alleged Misstatements Regarding Post-Release Supervision

Petitioner next argues that his guilty plea was not knowing, voluntary and intelligent because his sentence to ten years of post-release supervision exceeded the amount of time the trial court advised he would receive during his plea allocution. (Docket No. 2 at 17, 64-65). Indeed, the trial court initially advised Petitioner that he would receive “between two and a half and five years [of] post release supervision.” (Docket No. 11-4 at 14). Respondent contends that this claim fails on the merits because “there is no clearly established Supreme Court precedent that requires a state court judge to advise a defendant of mandatory post release supervision before accepting a guilty plea.” (Docket No. 12 at 26). Respondent also maintains that the specific amount of post-release supervision that Petitioner would receive could not have affected his decision to plead guilty because due to his immigration status, pleading guilty to Criminal Sexual Act in the First Degree-a crime of moral turpitude and aggravated felony-would automatically render Petitioner subject to deportation upon his release. (Id. at 28-31). The Court agrees with Respondent on both fronts, but also finds this claim procedurally barred.

Petitioner exhausted this claim before the state courts via the First 440 Motion. (Docket Nos. 11-17 at 4, 8-9; 11-21 at 3-4; 11-23 at 5-6). The Dutchess County Court rejected it on procedural grounds, ¹³ finding that it was record-based, and thus, should have been raised on direct appeal under N.Y.C.P.L. § 440.10(2)(c), People v. Agelakos, 518 N.Y.S.2d 784 (1987), and People v. Cooks, 500 N.Y.S.2d 503 (1986). (Docket No. 11-22 at 4-5). Because Petitioner 24 thereafter unsuccessfully sought leave to appeal from the Second Department, ¹⁴ (Docket No. 1123), the Dutchess County Court's ruling was the “last reasoned opinion” on record rejecting this claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Moreover, this ruling is “independent of federal constitutional law as it ‘fairly appears to rest primarily on state procedural law, '” and such law is “firmly established and regularly followed” in New York. See Dominique v. Artus, 25 F.Supp.3d 321, 333 (E.D.N.Y. 2014) (quoting Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007)); see also Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008). Accordingly, the state courts rejected this claim on independent and adequate state law grounds.

13 Although the Dutchess County Court also addressed this claim on the merits, “[w]hen the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred.” See Santiago v. People of the State of New York, No. 97 CIV. 5076 LAP SEG, 1998 WL 803414, at *4 (S.D.N.Y. Oct.13, 1998); see also Harris, 489 U.S. at 264 n. 10; Velazquez v. Murray, No. 02Civ.2564(KMW)(AJP), 2002 WL 1788022, at *8 (S.D.N.Y. Aug. 2, 2002); (Docket No. 11-22 at 4-5).

14 Petitioner's request for leave to appeal to the Second Department sufficiently utilized all available means of appellate review because a defendant cannot seek leave to appeal a denial of N.Y. C.P.L. § 440.10 relief from the Court of Appeals when the Appellate Division denies such leave. See, e.g., Yates v. Hulihan, No. 09-CV-6303 (CJS)(VEB), 2011 WL 1743672, at *10 (W.D.N.Y. Apr. 20, 2011), report and recommendation adopted sub nom. Yates v. Superintendent, Mid-State C.F., 2011 WL 1743434 (W.D.N.Y. May 5, 2011); Mendez v. Artuz, No. 98 Civ. 2652 (LMM)(A), 2000 WL 722613, at *24 n.16 (S.D.N.Y. June 6, 2000), report and recommendation adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000), aff'd, 303 F.3d 411 (2d Cir. 2002); see also Daye, 696 F.2d at 191.

To avoid a procedural default, petitioner must show cause and prejudice, or that a failure to consider his claim will result in a “fundamental miscarriage of justice.” Harris, 489 U.S. at 262 (quoting Murray, 477 U.S. at 495) (internal quotations omitted). Petitioner appears to argue that his appellate counsel's ineffective assistance constitutes “cause” for his failure to raise this claim on direct appeal. (Docket No. 2 at 17). As a general matter, ineffectiveness of appellate counsel may be sufficiently external to the defense to satisfy the cause requirement. See, e.g., Williams v. Artus, No. 11-CV-5541 (JG), 2013 WL 4761120, at *29 (E.D.N.Y. Sept. 4, 2013); Garcia v. Laclair, No. 06 Civ. 10196 (SHS)(DF), 2011 WL 1097414, at *16 (S.D.N.Y. Jan. 3, 2011), report and recommendation adopted, 2011 WL 1046058 (S.D.N.Y. Mar. 22, 2011); see also Murray, 477 U.S. at 488. However, Petitioner cannot prevail on that basis because, as explained further below, his ineffective assistance claim based on appellate counsel's conduct fails. See Garcia, 2011 WL 1097414, at *16; infra Section III.B.2. 25

Absent any other showing of cause, the Court need not address whether Petitioner was prejudiced by his default. Moreover, as explained above, Petitioner has not presented any evidence that would support a finding of a fundamental miscarriage of justice. See Dunham, 313 F.3d at 730. Therefore, this claim is procedurally barred and cannot be reviewed.

Furthermore, even assuming Petitioner could overcome his procedural default, this claim fails on the merits. To comply with the Due Process Clause, a court need only advise a defendant of a guilty plea's direct consequences-“[c]ertain possible consequences of a guilty plea are ‘collateral' rather than ‘direct' and ‘need not be explained to the defendant in order to ensure that the plea is voluntary.'” United States v. Salerno, 66 F.3d 544, 550 (2d Cir. 1995) (quoting United States v. U.S. Currency, 895 F.2d 908, 915 (2d Cir. 1990)); see also Bousley v. United States, 523 U.S. 614, 619 (1998); Michel v. United States, 507 F.2d 461, 465-66 (2d Cir. 1974). Direct consequences have a “definite, immediate, and largely automatic effect on the range of a defendant's punishment.” Currency, 895 F.2d at 915 (quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)) (internal quotations omitted). On the other hand, “a collateral consequence might result from a guilty plea.” Potter v. Green, No. 04-CV-1343 (JS), 2009 WL 2242342, at *5 (E.D.N.Y. July 24, 2009) (citing Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1365 (4th Cir. 1973)) (emphasis in original).

Although the Court of Appeals has held that mandatory post-release supervision is a direct consequence of conviction, see People v. Catu, 792 N.Y.S.2d 887 (2005), that ruling is irrelevant for habeas purposes because “the question is whether the [state court's] decision was contrary to[, ] or an unreasonable application of[, ] clearly established Supreme Court precedent.” See McBride v. Perez (hereinafter “McBride I”), No. 13 Civ. 4792(VB)(PED), 2015 WL 5245072, at *9 (S.D.N.Y. June 25, 2015), report and recommendation adopted, 2015 WL 5231509 (S.D.N.Y. Sept. 8, 2015) 26 (emphasis in original); see also 28 U.S.C. § 2254(d)(1). Thus, Petitioner's citation to Catu and state caselaw in support of his arguments is unavailing. (Docket No. 2 at 17, 64). Moreover, “[t]he Supreme Court has not determined whether a mandatory term of post-release supervision constitutes a direct or collateral consequence of a guilty plea.” See Maldonado v. Warden Adirondack Corr. Facility (hereinafter “Maldonado II”), 825 Fed.Appx. 48, 50 (2d Cir. 2020) (summary order) (citing Lane v. Williams, 455 U.S. 624, 631 (1982)). Numerous courts within this Circuit have relied on this rationale to reject habeas petitions premised on the trial court's failure to properly explain post-release supervision during a plea allocution. See, e.g., Monk v. Racette, No. 14-CV-2967 (KMK) (LMS), 2017 WL 2984129, at *5 (S.D.N.Y. July 12, 2017); Fields v. Lee, No. 12 Civ. 4878 (CS) (JCM), 2016 WL 889788, at *16 (S.D.N.Y. Jan. 28, 2016), report and recommendation adopted, 2016 WL 879319 (S.D.N.Y. Mar. 7, 2016); Martinez v. Superintendent of E. Corr. Facility, 11-cv-4330 (NG), 2016 WL 6462123, at *4 (E.D.N.Y. Oct. 31, 2016); Rosario v. Laf, No. 13-CV-00181 (JFB), 2014 WL 2600169, at *12-13 (E.D.N.Y. June 11, 2014); accord Maldonado II, 825 Fed.Appx. at 50-51; Bonner v. Ercole, 338 Fed.Appx. 61, 62 (2d Cir. 2009) (summary order).

However, other courts have held that the absence of direct Supreme Court precedent specifically addressing whether post-release supervision is a direct or collateral consequence of a plea does not “foreclose analysis under 2254(d)(1)'s unreasonable application prong.” McBride v. Perez (hereinafter “McBride II”), No. 13 CV 4792(VB), 2015 WL 5231509, at *2 (S.D.N.Y, Sept. 8, 2015) (quoting Grayton v. Ercole, 691 F.3d 165, 170 (2d Cir. 2012)) (internal quotations omitted); see also Maldonado v. Warden, Adirondack Corr. Facility (hereinafter “Maldonado I”), 17-CV-6368 (ERK), 2019 WL 3321746, at *7-8 (E.D.N.Y. July 23, 2019), aff'd, 825 Fed.Appx. 48 (2d Cir. 2020); Guadalupe v. Superintendent, Great Meadow Corr. Facility, 17 Civ. 7832 (VB) (PED), 2019 WL 6533245, at *7 n.7 (S.D.N.Y. May 20, 2019), 27 report and recommendation adopted sub nom. Guadalupe v. Superintendent, Upstate Corr. Facility, 2019 WL 6529286 (S.D.N.Y. Dec. 4, 2019). Under that prong, “relief is available . . . if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” See White v. Woodall, 572 U.S. 415, 427 (2014) (quoting Harrington, 562 U.S. at 103). This exacting standard only permits relief when the state court's application of the subject rule is “objectively unreasonable, not merely wrong . . . or clear error.” See id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)) (internal quotations omitted).

Petitioner's claim fails under both theories. Petitioner cannot demonstrate that the Dutchess County Court's denial of this claim was contrary to clearly established Supreme Court law. See Maldonado I, 825 Fed.Appx. at 50-51; see also Woods v. Donald, 575 U.S. 312, 317 (2015) (concluding that state court's decision could not be contrary to Supreme Court precedent when the Court has “never addressed” whether the subject rule applies to “the specific question presented by th[at] case, ” and state court's decision could not be an unreasonable application of such precedent “where the precise contours of a right remain unclear” under current Supreme Court law) (quoting Lopez v. Smith, 574 U.S. 1, 4 (2014); White, 572 U.S. at 424) (internal quotations omitted). In addition, a fairminded jurist could conclude that Petitioner's plea was knowing and voluntary, even though the trial court misstated the amount of post-release supervision to which he would be sentenced. See McBride II, 2015 WL 5231509, at *3.

When a habeas petitioner contests the validity of his plea “because he was given misinformation about the sentence he would receive, a reviewing court must determine (1) whether the defendant was aware of actual sentencing possibilities; and (2) if not, whether 28 accurate information would have made any difference in his decision to enter a plea.” Morales v. Lee, No. 09 Civ. 9280(RO)(THK), 2011 WL 4526403, at *7 (S.D.N.Y. Jan. 11, 2011), report and recommendation adopted, 2011 WL 4526371 (S.D.N.Y. Sept. 29, 2011) (quoting Williams v. Smith, 591 F.2d 169, 172 (2d Cir. 1979), cert. denied, 442 U.S. 920 (1979)) (internal quotations omitted); see also Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976). When making this determination, courts may “presume that a defense attorney has fully explained the terms and conditions of the bargain to his or her client, ” and rely on the veracity of the petitioner's allocution statements. See Morales, 2011 WL 4526403, at *7; see also McNaught v. United States, 646 F.Supp.2d 372, 382-83 (S.D.N.Y. 2009).

The Dutchess County Court found that when Petitioner pled guilty, “it was made abundantly clear that” due to Petitioner's immigration status, “the amount of post release supervision time ultimately imposed by the Court” was “academic” because Petitioner “would be subject to deportation upon his release from the New York State Correctional System.” (Docket No. 11-22 at 5). Moreover, there was no “evidence to demonstrate that [Petitioner] would have not entered his plea . . . if informed of a different period of post release supervision.” (Id. at 4).

There is no basis to conclude that the state court unreasonably applied clearly established Supreme Court law. The record establishes that Petitioner pled guilty knowingly and voluntarily. Petitioner readily admitted his guilt under oath, confirming that he was doing so voluntarily; that he had discussed the plea with counsel; and that he was “completely clearheaded and underst[ood] everything that [wa]s happening.” (Docket No. 11-4 at 9-11). Petitioner responded appropriately to the court's questions regarding his immigration status and medications, indicating that he was generally alert and engaged. See McBride II, 2015 WL 5231509, at *3 (denying habeas relief when petitioner “appear[ed] to have been active and alert” 29 during the plea proceeding). Before discussing the terms of the plea agreement-including Petitioner's sentence to post-release supervision-the court questioned Petitioner about his immigration status and verified that his counsel had advised him regarding “the collateral consequences of this plea.” (Docket No. 11-4 at 12). The court also directly asked Petitioner if he understood these consequences three times, and explicitly explained: “I need to tell you, Mr. Gabbidon, that by pleading to this crime, which is criminal sexual act in the first degree, or any crime under this indictment, you will be deported. It's a crime of moral turpitude. You will serve whatever time you serve in state's prison and you will be deported.” (Id. at 12-13). At the end of the colloquy, Petitioner reiterated that he “understood everything” discussed and declined to ask the court or his counsel any questions. (Id. at 16). Thus, although the court gave Petitioner incorrect information regarding his term of post-release supervision, a fairminded jurist could conclude that Petitioner understood he probably would be deportable upon his release, and thus, as a practical matter, the specific length of this supervised release would not affect him.

Furthermore, Petitioner has presented no evidence that he would not have pled guilty but for this misinformation. See Morales, 2011 WL 4526403, at *9-10. Petitioner argues that he “never . . . would have accepted [the] plea” if the court had given him correct advice, and therefore, he was “induce[d]” to plead guilty. (Docket No. 11-17 at 9). However, a defendant's statements during a plea allocution “are conclusive absent credible reason ‘justifying departure from their apparent truth.'” United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (quoting United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978)). Petitioner asked no questions regarding supervised release at the plea colloquy, even when given the opportunity to do so, and affirmed that he believed the plea was in his best legal interest. (Docket No. 11-4 at 9, 16). He further affirmed that he was not “threatened, coerced, forced, or pressured by anybody” 30 to plead guilty. (Id. at 9). Moreover, he pled guilty at the outset and at the end of the plea proceeding-both before and after the court explained that he would be sentenced to supervised release and likely deported. (Id. at 4, 16). This combination of evidence raises the inference that a different length of supervised release would not have altered Petitioner's decision to plead guilty, and therefore, he was not “tricked” into doing so. See Maldonado I, 2019 WL 3321746, at *8; (Docket No. 11-17 at 9).

This is especially so due to Petitioner's numerous incentives to enter into the plea. Had he not pled guilty, he would have faced a possibility of consecutive twenty-five-year sentences. See supra Section III.A.1; (Docket Nos. 11-4 at 13-14). The deal was particularly favorable in light of Petitioner's “long” criminal history in multiple states, and the fact that Petitioner's DNA was recovered from the areas of YR's body that he was accused of touching. (Docket No. 11-9 at 7, 9). Therefore, Petitioner's conclusory assertion that he would not have pled guilty if correctly apprised of his supervised release, is not credible. See Morales, 2011 WL 4526403, at *10 (finding that plea was knowing and voluntary because “[g]iven Petitioner's extensive criminal history, and the overwhelming evidence of his guilt, the concurrent indeterminate sentences he received were the most favorable outcome that Petitioner could have hoped for”); Joyner v. Vacco, No. 97 Civ. 7047(DLC), 2000 WL 282901, at *8 (S.D.N.Y. Mar.15, 2000) (concluding that “accurate information would not have affected [petitioner's] decision to plead, ” because “the evidence facing [petitioner] at trial was overwhelming”).

Moreover, it would be unreasonable to conclude that the length of Petitioner's postrelease supervision would have affected his decision to plead guilty, because the length of postrelease supervision was immaterial to the immigration consequences of his plea. Petitioner is not a citizen of the United States. (Docket No. 11-4 at 12). “An alien convicted of an aggravated 31 felony shall be conclusively presumed to be deportable from the United States.” 8 U.S.C. § 1228(c). An alien convicted of one or more crimes of moral turpitude is also deportable. Id. § 1227(a)(2)(A)(i)-(ii).¹⁵ Among other things, the term “aggravated felony” means “sexual abuse of a minor” as well as “a crime of violence . . . for which the term of imprisonment [is] at least one year.” See id. § 1101(a)(43)(A), (F). Courts have held that sexual offenses similar to those here qualify for these categories under immigration law. See, e.g., Barua v. Sessions, 702 Fed.Appx. 18, 20-21 (2d Cir. 2017) (summary order) (finding that Criminal Sexual Act in the Second Degree under New York law constituted an aggravated felony); Ganzhi v. Holder, 624 F.3d 23, 30 (2d Cir. 2010) (holding that Sexual Misconduct under New York law constituted an aggravated felony); Chery v. Ashcroft, 347 F.3d 404, 408 (2d Cir. 2003) (concluding that Sexual Assault in the Second Degree under Connecticut law was a crime of violence); Maghsoudi v. I.N.S., 181 F.3d 8, 15 (1st Cir. 1999) (holding that conviction for indecent assault of a sixteen-year-old constituted crime of moral turpitude); Ng Sui Wing v. United States, 46 F.2d 755, 756 (7th Cir. 1931) (finding that common law rape was crime of moral turpitude).

15 Specifically, “[a]ny alien who . . . (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” Id. § 1227(a)(2)(A)(i). In addition, “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” Id. § 1227(a)(2)(A)(ii).

As an aggravated felon, Petitioner would be subject to “automatic, unavoidable deportation” upon release from prison. See United States v. Couto, 311 F.3d 179, 184 (2d Cir. 2002); see also Moncrieffe v. Holder, 569 U.S. 184, 187 (2013) (“[I]f a noncitizen has been convicted of [an aggravated felony], then he is not only deportable, . . . but also ineligible for . . . discretionary forms of relief [from deportation].”). This would mean that “no one-not the judge, the INS, nor even the United States Attorney General-[would] ha[ve] any discretion to 32 stop the deportation.” Couto, 311 F.3d at 189-90; Nunez v. Conway, No. 07 Civ. 7560(SAS)(MHD), 2010 WL 234826, at *12 (S.D.N.Y. Jan. 20, 2010); Eisa v. Immigr. & Customs Enf't, No. 08 Civ. 6204(FM), 2008 WL 4223618, at *8 (S.D.N.Y. Sept. 11, 2008). Moreover, even if Petitioner were not found to be an aggravated felon, it is clear from the record that the trial court and defense counsel explained to Petitioner that his plea would still render him deportable because Criminal Sexual Act in the First Degree constitutes a crime of moral turpitude. See generally 8 U.S.C. § 1227(a)(2)(A); (Docket No. 11-4 at 12-13). Petitioner has not offered any convincing reasons why he would not be deported under either scenario.¹⁶Therefore, the length of Petitioner's supervised release had “no practical consequence” on the impact of his plea, and there is no reason to believe that this information would have affected his decision to plead guilty. See Sadagheh v. Heath, No. 12 Civ. 184(LTS)(GWG), 2013 WL 1804976, at *12 (S.D.N.Y. Apr. 30, 2013), report and recommendation adopted in part, rejected in part on other grounds, 2015 WL 1239871 (S.D.N.Y. Mar. 18, 2015) (finding “conclusive . . . objective evidence that the knowledge of the post-release supervision term would not have had the slightest impact on [petitioner]'s decision to plead guilty” because he was a non-citizen convicted of an aggravated felony).

16 Although Petitioner asserts that he “does not have a[n] immigration hold, warrant or any other immigration proceeding pending . . . to date, ” (Docket No. 11-21 at 5), that is immaterial because Petitioner is still serving his sentence in prison. Petitioner also seems to argue that his Fifth Amendment right to due process as a lawful permanent resident would prevent him from being removed. (Id. at 5-6). Although this right provides aliens- including lawful permanent residents-some protections during deportation proceedings, see generally Doherty v. Thornburgh, 943 F.2d 204, 208-09 (2d Cir. 1991), that does not change the fact that crimes of moral turpitude and aggravated felonies render an alien “subject to . . . deportation.” See Ebrahim v. LeConey, No. 10-CV-6397 (MAT), 2012 WL 6155655, at *13 (W.D.N.Y. Dec. 11, 2012); see also Hylton v. Decker, 502 F.Supp.3d 848, 852 (S.D.N.Y. 2020); accord Demore v. Kim, 538 U.S. 510, 513 (2003).

For all of these reasons, a fairminded jurist could easily conclude that the court's single misstatement during the plea colloquy about the length of post-release supervision did not render Petitioner's plea involuntary. See White, 572 U.S. at 427. Moreover, it cannot be said that the 33 state court's decision was contrary to clearly established Supreme Court precedent. See Maldonado II, 825 Fed.Appx. at 50.

Accordingly, I respectfully recommend denying Petitioner's Due Process claim based on the trial court's statements regarding post-release supervision at the plea proceeding.

B. Ineffective Assistance

1. Ineffective Assistance of Trial Counsel

Construing the Petition liberally, see supra n.4, Petitioner further argues that he received ineffective assistance of counsel during the plea proceeding because counsel failed to object when the court made the above two alleged misstatements regarding sentencing law. (See Docket No. 2 at 49-50, 65). Although Respondent does not specifically address this argument, it fails on the merits. The Court addresses it with respect to each alleged misstatement in turn.

i. Trial Counsel's Failure to Object Regarding Exposure to Consecutive Sentences

The Court rejects on the merits Petitioner's ineffective assistance claim based on the court's advice regarding consecutive sentencing. Petitioner exhausted this claim in the state courts on direct appeal, arguing that he “received constitutionally ineffective assistance of counsel because his attorney at the plea hearing failed to recognize and/or argue that the court had given the appellant sentencing advice that was incorrect as a matter of law.” (Docket No. 1110 at 13). Petitioner further argued that under Strickland v. Washington, 466 U.S. 688 (1984), his conviction must be reversed because this conduct violated his right to adequate counsel under the Sixth Amendment. (Id. at 14-17). These explicit references to the constitutional nature of this claim satisfy the “fair presentation” requirement for exhaustion under Daye. See Daye, 696 F.2d at 192; see also Young v. Senkowski, No. 02 Civ.10213(RCC)(THK), 2006 WL 464056, at *5 (S.D.N.Y. Feb. 24, 2006) (holding that petitioner exhausted ineffective assistance claim by 34 referencing Sixth Amendment and citing Strickland in a footnote). Moreover, after the Second Department rejected his claim on the merits, Petitioner unsuccessfully sought leave to appeal that decision to the Court of Appeals. Therefore, Petitioner utilized all available means of appellate review in New York, and has met the requirements for exhaustion. See Daye, 696 F.2d at 191.

This Court affords the Second Department's merits decision AEDPA deference. See 28 U.S.C. § 2254(d). Citing Strickland, the Second Department found that Petitioner did not receive ineffective assistance of counsel because “the County Court properly informed [him] of his maximum sentencing exposure, ” and Petitioner “received an advantageous plea.” See Gabbidon, 19 N.Y.S. at 787. Moreover, “nothing in the record” called into question the effectiveness of Petitioner's counsel or indicated that his “performance was deficient.” See Id. Petitioner fails to show that this reasoning is contrary to, or reflects an unreasonable application of, Supreme Court precedent. See 28 U.S.C. § 2254(d).

There are two elements of an ineffective assistance of counsel claim under Strickland. First, a successful ineffective assistance claim requires a showing that “counsel's representation fell below an objective standard of reasonableness, ” and second, it requires that “there [be] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 688, 694. With respect to the first element, a petitioner must show that “counsel's performance was deficient, ” taking account of “the reasonableness of counsel's actions under all circumstances, [and] keeping in mind that a ‘fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.'” Swanton v. Graham, No. 07-CV-4113 (JFB), 2009 WL 1406969, at *10 (E.D.N.Y. May 19, 2009) (quoting Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)). In evaluating this prong, the court must “indulge a strong presumption that counsel's 35 conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689.

The second element “focuses on prejudice to the defendant.” Swanton, 2009 WL 1406969, at *10. Strickland's “reasonable probability” standard for this element entails errors serious enough to “undermine confidence in the outcome.” See 466 U.S. at 694. To demonstrate prejudice in connection with a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Here, Petitioner argues that his trial counsel was constitutionally ineffective because he did not object when the court mistakenly advised that if he chose to go to trial, he would be exposed to consecutive sentences. (See Docket No. 2 at 13, 50-53). Petitioner further argues that if counsel had not made this error, he would not have pled guilty. (See id. at 51-53). This aspect of Petitioner's ineffective assistance claim fails because such an objection would not have been successful. As explained above, the trial court's advice regarding the possibility of consecutive sentences was correct. See supra Section III.A.1. An attorney is “not deficient for having failed to make a baseless objection” because there can be “no prejudice stemming” therefrom. See United States v. Martinez, 475 F.Supp.2d 154, 165 (D. Conn. 2007); see also United States v. Crespo, 651 Fed.Appx. 10, 15 (2d Cir. 2016) (summary order) (“Because we identify no error in the district court's acceptance of Crespo's guilty plea, trial counsel could not have been ineffective for failing to object on that basis.”); Jordan v. Walker, No. 01-CV-0507(VEB), 2007 WL 2344861, at *9 (W.D.N.Y. Aug. 14, 2007) (“[T]he failure to raise nonmeritorious issues does not constitute ineffective assistance.”) (quoting Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994)) (internal quotations omitted). Any objection to the trial court's advice would 36 have been overruled because if Petitioner were convicted of Criminal Sexual Act and Rape in the First Degree, a New York court easily could have viewed Petitioner's actions as “separate and distinct acts” triggering consecutive sentences. See McKnight, 917 N.Y.S.2d at 597; see also White, 690 N.Y.S.2d at 304.

Moreover, Petitioner repeatedly indicated under oath that he wished to plead guilty, understanding that conviction on the original charges could render him incarcerated for fifty years, and that instead, the court would “cap [his] sentence at 15 years' determinative.” (See Docket No. 11-4 at 4-5, 9, 13-14, 16). As explained, Petitioner's exposure to such a long sentence, combined with his marginal odds of success at trial, rendered this arrangement especially advantageous. See supra Section III.A.2; (Docket No. 11-9 at 7, 9). Indeed, “the Second Circuit has often rejected ineffectiveness claims by determining that, in view of the strength of the prosecution's case, the defendant is unable to establish prejudice.” Boakye v. United States, No. 09 Civ. 8217, 2010 WL 1645055, at *4 (S.D.N.Y. Apr. 22, 2010) (citing United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991); United States v. Reiter, 897 F.2d 639, 645 (2d Cir. 1990)). In light of Petitioner's affirmative admissions of guilt on the record, and the robust evidence against him, “it can hardly be said that [Petitioner] would not have pled guilty but for the alleged error.” See Swanton, 2009 WL 1406969, at *10; see also Contant v. Sabol, 987 F.Supp.2d 323, 355 (S.D.N.Y. 2013) (denying habeas relief based on absence of prejudice in light of physical evidence against petitioner and “[p]etitioner's having acknowledged his guilt” on the record before pleading guilty); Parisi v. Artus, No. 08-CV-1785 (ENV), 2010 WL 4961746, at *5 (E.D.N.Y. Dec. 1, 2010) (finding that DNA evidence connecting petitioner to the victim constituted “overwhelming evidence of guilt” that precluded finding of prejudice). 37

Accordingly, I respectfully recommend denying Petitioner's ineffective assistance claim based on trial counsel's failure to correct the court's alleged misstatements regarding consecutive sentencing during the plea proceeding.

ii. Trial Counsel's Failure to Object Regarding Petitioner's Supervised Release

Petitioner's ineffective assistance claim based on the court's advice regarding his term of post-release supervision also fails. This claim is procedurally barred, and in any event, meritless.

As an initial matter, the Court cannot review this claim because Plaintiff committed procedural default. Petitioner exhausted this claim before the state courts, arguing in his First 440 Motion that counsel's “unaware[ness]” of this aspect of sentencing law “compromise[d]” the “integrity” of his plea under the Sixth Amendment and Strickland. (Docket No. 11-17 at 11-12). The Dutchess County Court denied the motion on independent and adequate state law grounds, reasoning that Petitioner failed to raise this record-based claim on direct appeal. (Docket No. 1122 at 4-5); see supra Section III.A.2 & n.13, 14. Therefore, this claim is procedurally defaulted unless Petitioner can show cause and prejudice, or a “fundamental miscarriage of justice.” See Harris, 489 U.S. at 262 (quoting Murray, 477 U.S. at 495) (internal quotations omitted). As already explained, to the extent Petitioner attempts to show cause based on his appellate counsel's failure to timely raise this claim, (Docket No. 2 at 17), that argument does not excuse his default because he cannot prevail on his ineffective assistance of appellate counsel claim. See Garcia, 2011 WL 1097414, at *16; supra Section III.A.2; infra Section III.B.2. Furthermore, Petitioner has pointed to no new evidence of his innocence that would support a finding of a fundamental miscarriage of justice. See Dunham, 313 F.3d at 730. Consequently, this claim is barred from collateral review. 38

In any event, even assuming the Court could review this claim, it fails on the merits because Petitioner cannot establish that his trial counsel's conduct was objectively unreasonable or make the requisite showing of prejudice under Strickland. See 466 U.S. at 688, 694. Because of Strickland's presumption that counsel's conduct satisfies the objective standard of reasonableness, “absent [a] complete lack of tactical justification, courts will generally not second-guess strategic decisions.” See Snyder v. United States, No. 09-CR-407S, 12-CV-653S, 2014 WL 1315313, at *2 (W.D.N.Y. Mar. 31, 2014) (citing United States v. Cohen, 427 F.3d 164, 170-71 (2d Cir. 2005)). Indeed, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91. Here, as discussed above, although the court erroneously advised that Petitioner would receive “two and a half [to] five years” of supervised release, the specific amount of post-release supervision he ultimately received has little practical consequence because Petitioner will be subject to deportation upon his release. See supra Section III.A.2; (Docket No. 11-4 at 14). Petitioner's counsel confirmed this fact on the record, and that he had explained it to Petitioner before the plea proceeding “a number of times.” (Docket No. 11-4 at 12-13). Therefore, Counsel's “failure to object to [this] . . . term of supervised release” at the plea proceeding arguably “reflects not ineffective assistance of counsel, but more likely, counsel's familiarity with” federal immigration law as applied to Petitioner's case. See Masone v. United States, 103 F.Supp.2d 209, 213 (E.D.N.Y. 2000). Therefore, even though it may have been better practice to clarify the record on this point, this conduct does not fall below constitutional standards. 39

Furthermore, for largely the same reasons stated above, Petitioner cannot demonstrate prejudice. Irrespective of the trial court's initial misstatement, by receiving only fifteen years in prison under one of the four counts in the indictment, Petitioner “received substantial benefit from the plea agreement.” See United States v. Aguiar, Case No. 2:00-CR-119, 2017 WL 3278887, at *5 (D. Vt. Aug. 2, 2017) (affirming that no prejudice resulted where petitioner claimed “his six-year term of supervised release was twice that allowed . . . and that counsel's failure to object caused additional prejudice” because he received a sentence “at the low end of the applicable guidelines”); see also supra Section III.B.1.i. “Th[is] fact alone militates against any finding of prejudice.” See Reznikov v. David, Nos. 05-CV-1006 (RRM), 05-CV-1008 (RRM), 2009 WL 424742, at *8 (E.D.N.Y. Feb. 20, 2009) (collecting cases); see also Feliz v. United States, Nos. 01 Civ. 5544(JFK), 00 Cr. 53(JFK), 2002 WL 1964347, at *7 (S.D.N.Y. Aug. 22, 2002) (“No prejudice exists when a plea agreement lessens the severity of the sentence defendant would face if convicted at trial.”). Moreover, in addition to these benefits, due to the immigration consequences of his plea, the correct information regarding his post-release supervision term could not have reasonably affected Petitioner's decision to plea guilty. See Sadagheh, 2013 WL 1804976, at *12 (rejecting ineffective assistance claim based on inaccurate advice on post-release supervision where “the term of post-release supervision w[ould] have no practical consequence at all because once [Petitioner] [wa]s deported, he w[ould] be outside the jurisdiction of New York State probation department”); supra Section III.A.2.

Accordingly, I respectfully recommend denying Petitioner's ineffective assistance claim based on trial counsel's failure to correct the court's alleged misstatements regarding post-release supervision during the plea proceeding. 40

2. Ineffective Assistance of Appellate Counsel

Petitioner further alleges that his appellate counsel was ineffective because he failed to raise the above claims regarding post-release supervision on appeal. (Docket No. 2 at 17-18, 8589). Moreover, according to Petitioner, his appellate counsel “never discuss[ed] [with Petitioner] the specific issues which would be included in his [appellate] brief, ” failed to read the record, and “ma[d]e poorly drafted [legal] arguments.” (Id. at 18, 88-89). Respondent contends that this claim is unexhausted and in any event, meritless. (Docket No. 12 at 31-35). The Court agrees that this claim is meritless, and therefore, must be denied.

The Court addresses this claim on the merits, as Petitioner sufficiently exhausted it before the state courts.¹⁷ It is clearly established that appellate counsel need not raise every “colorable” claim on appeal, and may rely on his or her “professional judgment” to determine which legal arguments will most likely be successful in obtaining a reversal. Jones v. Barnes, 463 U.S. 745, 751-53 (1983); see also Smith v. Robbins, 528 U.S. 259, 288 (2000) (holding that appellate counsel “need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal”). Indeed, “[t]his process of ‘winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751-52).

17 Respondent asserts that Petitioner failed to exhaust this claim because he did not seek leave to appeal the denial of his coram nobis petition from the Court of Appeals. (Docket No. 12 at 32). To the contrary, however, the Court of Appeals denied leave on September 24, 2018. See Gabbidon, 32 N.Y.3d at 1003. Moreover, Petitioner expressly framed this claim as a denial of “his right to the effective assistance of counsel” under the Sixth Amendment and Strickland. (Docket No. 2 at 85, 93, 97). This suffices for the “fair presentation” requirement under Daye. See 696 F.2d at 192.

When a habeas petitioner alleges ineffective assistance of counsel “based on failure to raise viable issues, the district court must examine the trial court record to determine whether 41 appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)). To demonstrate prejudice in the appellate context, the petitioner must show that “there was a reasonable probability that [his] claim would have been successful before [the state's highest court].” Id. at 534 (quoting Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)) (internal quotations omitted).

Here, on direct appeal, Petitioner's counsel filed a nineteen page brief to the Second Department raising three colorable grounds for reversal. Counsel “cogently” argued that Petitioner's guilty plea was not knowing and voluntary because the trial court misstated the law regarding his exposure to consecutive sentences; trial counsel's failure to object to this misstatement rendered him ineffective; and Petitioner's sentence was harsh and excessive. See Holmes v. Bartlett, 810 F.Supp. 550, 561 (S.D.N.Y. 1993); (see also Docket No. 11-10). Although counsel did not attack the trial court's misstatements regarding post-release supervision or argue ineffective assistance of counsel on this basis, he had no duty to raise every single nonfrivolous claim, and as discussed, those arguments fail on the merits. See Smith, 528 U.S. at 288. Thus, Petitioner has not shown that appellate counsel “omitted any significant and obvious issues” that would support a finding of prejudice. See Zamudio-Berges v. United States, No. 08 Civ. 8789 (RO)(RLE), 2013 WL 2896978, at *19 (S.D.N.Y. June 13, 2013) (finding that appellate counsel was not ineffective for failing to raise same arguments raised in habeas petition, which also failed on the merits); see also Rahman v. Graham, 16-CV-5318 (LAP) (RWL), 2018 WL 9339953, at *15 (S.D.N.Y. Sept. 14, 2018), report and recommendation adopted, 42 2019 WL 3802523 (S.D.N.Y. Aug. 13, 2019) (finding that trial counsel “was not ineffective; accordingly, [appellate counsel] cannot be ineffective in failing to argue that he was”); Cabrera v. United States, 15-CV-5915 (JSR) (KNF), 2016 WL 3369537, at *11 (S.D.N.Y. May 20, 2016), report and recommendation adopted, 2016 WL 3365476 (S.D.N.Y. June 15, 2016) (finding that appellate counsel was not ineffective for failing to investigate or attack the legality of his sentence because such a claim was meritless and petitioner affirmatively admitted his guilt on the record). The rest of Petitioner's conclusory assertions that his counsel's performance was unreasonable and that he did not review relevant documents are insufficient to satisfy Petitioner's burden under § 2254(d). See Saxon v. Lempke, No. 09 Civ. 1057 (PGG)(KNF), 2014 WL 1168989, at *35 (S.D.N.Y. Mar. 21, 2014), aff'd, 618 Fed.Appx. 10 (2d Cir. 2015); see also Diaz v. United States, 14-CR-442 (JMF), 16-CV-6710 (JMF), 2017 WL 112609, at *1 (S.D.N.Y. Jan. 11, 2017).

As for Petitioner's claim that his appellate counsel impeded his Sixth Amendment rights by failing to consult with him, as discussed, he has not “identif[ied] any issue, other than those identified previously, that appellate counsel neglected or ignored to introduce on appeal that would have produced a reasonable probability of success.” See Proctor v. McCarthy, 19-CV-2988 (GBD) (JLC), 2020 WL 1149660, at *22 (S.D.N.Y. Mar. 10, 2020). “Although it may be desirable and productive, the Constitutional right to effective assistance of counsel does not encompass the requirement that an attorney consult with his client to discuss the alleged trial errors that his client wishes to pursue.” McIntyre v. Duncan, No. 03-CV-523 (ADS), 2005 WL 3018698, at *3 (E.D.N.Y. Nov. 8, 2005). Thus, the mere fact that appellate counsel failed to consult with his or her client regarding the arguments to be raised on appeal, does not rise to the level of ineffective assistance. See, e.g., Williams v. Comm'r, N.Y. State Dep't of Corr., Nos. 07 Civ. 5496(WHP)(FM), 07 Civ. 5514(WHP)(FM), 2011 WL 5301766, at *21 (S.D.N.Y. Oct. 31, 2011); 43 Goldberg v. Tracy, 247 F.R.D. 360, 398, 401 (E.D.N.Y. 2008), adhered to on reconsideration, 2008 WL 972721 (E.D.N.Y. Mar. 24, 2008), and aff'd, 366 Fed.Appx. 198 (2d Cir. 2010). As a result, Petitioner's claim that appellate counsel failed to communicate with him does not, by itself, establish deficient performance.

Moreover, Petitioner has not shown any prejudice stemming from appellate counsel's alleged lack of communication. See, e.g., Farr v. Greiner, Nos. 01 CR 6921(NG)(MDG), 01-CV-6921 (NG)(MDG), 2007 WL 1094160, at *38 (E.D.N.Y. Apr. 10, 2007) (denying habeas relief where “petitioner has not demonstrated any prejudice stemming from appellate counsel's failure to communicate with him”). Although Petitioner contends that this insufficient communication caused counsel to omit the above arguments from his appeal, as previously noted, he has not shown that these grounds have merit. See Proctor, 2020 WL 1149660, at *23.

Accordingly, I respectfully recommend denying Petitioner's ineffective assistance of appellate counsel claim.

IV. CONCLUSION

For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner. 44

V. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.

Requests for extensions of time to file objections must be made to the Honorable Vincent Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).

SO ORDERED. 45