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applying factors to habeas petitioner request for counsel
Summary of this case from Johnson v. GreinerOpinion
Nos. 99 Civ. 2427 (JGK), 99 Civ. 9746 (JGK)
April 27, 2000
OPINION AND ORDER
Petitioner Tyone Jackson, who appears pro se, has filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court has consolidated the petitions for consideration together. In Jackson v. Moscicki, 99 Civ. 2427 (JGK), the petitioner challenges his 1987 state court conviction pursuant to his plea of guilty to attempted robbery in the second degree. InJackson v. Ricks, 99 Civ. 9746 (JGK), the petitioner challenges his 1997 resentencing for assault in the second degree. While the 1997 sentencing was for a conviction arising out of a wholly separate incident from the 1987 case, the 1987 conviction was used as a predicate felony to enhance the petitioner's sentence at the 1997 resentencing. For the reasons explained below, the petitions are denied.
The petition in Jackson v. Moscicki is dated February 15, 1999 and was filed with the Pro Se Office of the Court on February 23, 1999. The petition in Jackson v. Ricks is dated June 26, 1999 and was filed with the Pro Se Office of the Court on July 29, 1999. Petitions for habeas corpus are deemed filed as of the date they are given to prison authorities. See Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997). Because the petitions were filed after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the petitions are governed by the provisions of AEDPA.See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997); Neelley v. Nagle, 138 F.3d 917, 921 (11th Cir. 1998); Glover v. Portuondo, No. 96 Civ. 7616, 1999 WL 349936, *1 n. 1 (S.D.N.Y. May 28, 1999)
The records submitted in connection with the two petitions disclose the following facts. On or about April 15, 1987, on Orchard Street in New York City, an individual named Matthew Green snatched a pocketbook from Shuk Yee Liu. Matthew Green passed the pocketbook to the petitioner, who then ran with it. (See Tr. of Guilty Plea of Oct. 13, 1987, at 12.) The petitioner was indicted on one count of robbery in the second degree. On October 13, 1987, the petitioner pleaded guilty in New York State Supreme Court, New York County, to a lesser charge of attempted robbery in the second degree, a Class D felony. (See id. at 8, 13.) On November 24, 1987, the state court sentenced the petitioner to five years probation, as the court had agreed to do during the plea allocution. (See Tr. of Sentencing of Nov. 24, 1987, at 3-4.) The petitioner did not appeal his conviction.
On March 3, 1998, the petitioner filed a motion to vacate the judgment pursuant to N.Y. Crim. Proc. L. § 440.10, before the New York State Supreme Court, New York County, which the state court denied on September 18, 1998. (See Order dated September 18, 1998, attached as Exh. D to Affidavit of Marisa Longo dated July 9, 1999 ("Longo Aff.").) The Appellate Division, First Department, denied the petitioner leave to appeal from that order on February 2, 1999. (See Longo Aff. ¶ 6.)
In a separate incident on April 2, 1992, the petitioner assaulted Tara Sowell by hitting her in the head with a flat iron with the intention of "hurt[ing] her pretty bad." (Tr. of Guilty Plea of Sept. 23, 1992, at 143-45.) The petitioner was charged in a two count indictment with attempted murder in the second degree and assault in the first degree. On September 23, 1992, during his criminal trial in the New York State Supreme Court, New York County, the petitioner withdrew his not guilty plea to the indictment and entered a plea of guilty to assault in the first degree. On November 2, 1992, the trial court sentenced the petitioner as a predicate felon — based on the 1987 attempted robbery conviction — to a period of imprisonment of five to ten years. This was the sentence the trial court indicated, prior to the petitioner's plea, it would impose. (See Tr. of Sentencing of Nov. 2, 1992, at 15-16.) The Appellate Division, First Department, unanimously affirmed the conviction in People v. Jackson, 633 N.Y.S.2d 939 (1st Dep't 1995), and on December 13, 1995, the New York Court of Appeals denied the petitioner leave to appeal. See People v. Jackson, 87 N.Y.2d 903 (1995).
The petitioner challenged his 1992 assault conviction and sentence in this Court by a petition for a writ of habeas corpus. In an Opinion and Order dated March 3, 1997, the Court dismissed three of the petitioner's four grounds in support of that petition. See Jackson v. Walker, 96 Civ. 1064, 1997 WL 97832 (S.D.N.Y. Mar. 6, 1997). The Court rejected the petitioner's claims that his guilty plea was not knowing, intelligent, and voluntary because he was allegedly coerced by his attorney into pleading guilty; that he did not make a knowing, intelligent, and voluntary waiver of his right to appeal because he did not know the meaning of the word "waiver"; and that he was denied effective assistance of counsel because his counsel failed to call him as a witness before the grand jury. See Jackson, 1997 WL 97832, at *3-5. The Court determined, however, that because the trial court had relieved the petitioner's counsel at sentencing, refused to appoint new counsel, and had the petitioner proceed pro se without making an attempt to explain to the petitioner the consequences of these actions, the petitioner was sentenced without the effective assistance of counsel. See id. at *5-7 Having found that the petitioner's constitutional right to counsel was violated at his sentencing, this Court granted the petitioner's habeas petition solely on that ground. See id. at *8. Accordingly, the Court ordered the respondent to release the petitioner from custody unless the petitioner was resentenced within sixty days. See id.
On May 1, 1997, the state court resentenced the petitioner, who was represented by new counsel. The court resentenced the petitioner, again as a predicate felon, to a sentence of five to ten years imprisonment. The petitioner is presently incarcerated at the Upstate Correctional Facility in Malone, New York pursuant to that sentence.
The respondent did not appeal the original judgment of this Court, which conditionally granted the writ unless the petitioner was resentenced. The petitioner, however, did appeal the judgment of this Court because this Court denied the petitioner's other alleged bases for relief. On December 5, 1997, the Court of Appeals for the Second Circuit dismissed the appeal finding that there was no substantial question for appeal. On April 20, 1998, the United States Supreme Court denied the petitioner's application for a writ of certiorari. See Jackson v. Walker, 523 U.S. 1083 (1998)
Meanwhile, on February 2, 1998, the petitioner filed a motion with this Court pursuant to Fed.R.Civ.P. 60(b) to vacate the prior order and judgment denying the petitioner's application to vacate his judgment of conviction. See Jackson v. Walker, No. 96 Civ. 1064, 1998 WL 813439, *2 (S.D.N.Y. Nov. 23, 1998). In that motion, the petitioner raised two sets of claims. First, he claimed that 106 pages of the trial transcript were missing on his direct appeal of his conviction and before this Court. See id. He claimed that those missing pages would have bolstered his claim that he was denied the effective assistance of counsel and that his guilty plea was not voluntary. See id. Second, the petitioner claimed that the May 1, 1997 resentencing was invalid because the state court did not obtain a new presentence report. See id. In subsequent correspondence, the petitioner amplified his claims of ineffective assistance of counsel with allegations that his counsel failed to investigate certain facts, failed to raise a defense of self-defense, and gave him improper advice which led him to plead guilty. See id. at *3.
With respect to the first set of claims, because the petitioner's motion was properly considered a successive petition, the Court transferred the motion to the Court of Appeals pursuant to 28 U.S.C. § 1631 and 2244(b)(3)(A) for a determination of whether the petitioner was permitted to proceed with his challenges to his 1992 guilty plea. See id. at *5-6. To the extent the Court had jurisdiction to consider those claims, the Court also found them to be without merit, and denied the Rule 60(b) motion on that basis. See id. at *4.
With respect to the petitioner's claims challenging his May 1, 1997 resentencing, those claims were not properly raised on a Rule 60(b) motion because they did not pertain to the Court's original judgment. See id. at *6. However, the Court determined that it could not recharacterize the claims as a new petition for habeas corpus under 28 U.S.C. § 2254 because there was no indication that the petitioner understood the consequences of recharacterizing his motion as a habeas petition nor that the petitioner agreed to have his motion so recharacterized. See id. at *7. Accordingly, the Court allowed the petitioner an opportunity to withdraw his claims concerning his May 1, 1997 resentencing. See id. By letter dated November 24, 1998, the petitioner withdrew any challenge to his May 1, 1997 resentencing. See Jackson v. Walker, No. 96 Civ. 1064, 1998 WL 851600, *1 (S.D.N.Y. Dec. 8, 1998). The petitioner also filed a motion pursuant to Fed.R.Civ.P. 59(e) to amend the Court's decision denying his Rule 60(b) motion. The Court construed the Rule 59(e) motion as a motion for reconsideration pursuant to Local Rule 6.3 and, to the extent that the Court had jurisdiction to consider the motion while the case was pending before the Court of Appeals, denied the motion. See id. at *1-2.
In addition, the petitioner filed an appeal to the Appellate Division, First Department, from the resentencing. In an order dated March 9, 1999, the Appellate Division affirmed the judgment of resentence. See People v. Jackson, 685 N.Y.S.2d 568 (1st Dep't 1999). On July 6, 1999, the New York Court of Appeals denied the petitioner leave to appeal from that judgment. See People v. Jackson, 93 N.Y.2d 1003 (1999).
The petitioner also moved pursuant to N.Y. Crim. Proc. L. § 440.20 before the resentencing court to vacate his resentence on the basis that the court had failed to order an updated presentence report. The court denied that application in a decision dated March 22, 1999. (See Order dated March 22, 1999, attached as Exh. F to Affidavit of Susan H. Odessky "Odessky Aff.").) The petitioner sought leave to appeal from that order to the Appellate Division, First Department, which was also denied. (See Odessky Aff. ¶ 16.)
II
As an initial matter, the petitioner renews his request that counsel be appointed to represent him on these petitions, a request that the Court has previously denied.
Petitioners do not have a constitutional right to counsel in a collateral challenge to a conviction or sentence. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The Court has the discretion to appoint counsel to represent a pro se habeas petitioner "[w]henever . . . the interests of justice so require." 18 U.S.C. § 3006A(a)(2). The Court of Appeals has articulated the factors that a court should consider in deciding whether to request an attorney to represent an indigent civil litigant under the statutory provision now codified at 28 U.S.C. § 1915 (e)
In deciding whether to appoint counsel, the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). See also Wenger v. Canastota Central Sch. Dist., 146 F.3d 123, 125 (2d Cir. 1998);Davidson v. Mann, 129 F.3d 700, 702 (2d Cir. 1997). These are also useful standards to be applied in determining whether the interests of justice require the appointment of counsel for a petitioner in a habeas corpus proceeding. See Gonzalez v. Hoke, No. 91 Civ. 9952, 1991 WL 130894, *5 (S.D.N.Y. July 8, 1991)
In this case, the petitioner's claims do not meet the threshold requirement because, as explained below, they are without substance. Moreover, the petitioner's claims are not complex and they may be decided solely on the submissions. No cross-examination or elaborate presentation of proof is necessary. Accordingly, the interests of justice do not require the appointment of counsel in this case. The petitioner's renewed applications for the appointment of counsel are denied.
III
In Jackson v. Moscicki, the petitioner challenges his 1987 conviction for attempted robbery in the second degree. That petition presents seven claims for relief. First, the petitioner contends that he was convicted of a crime he did not commit. Second, the petitioner argues that he did not receive the effective assistance of counsel because his attorney failed to present an intoxication defense and otherwise performed deficiently. Third, the petitioner claims that his counsel was also ineffective for failing to advise him of his right to appeal his conviction. Fourth, the petitioner claims that his counsel was deficient for failing to file a notice of appeal. Fifth, the petitioner contends that his plea was not voluntary because he was coerced by his attorney. Sixth, he claims that his attorney was deficient by failing to investigate facts and that this failure led to the petitioner's guilty plea. Seventh, the petitioner claims that his conviction was improperly used in 1997 to enhance his resentence for the 1992 conviction.
(A)
A petitioner in a habeas corpus proceeding must exhaust all available state court remedies for each claim prior to federal review. See 28 U.S.C. § 2254 (b), (c); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc);Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). The exhaustion requirement requires the petitioner to have fairly presented in state court the claims which are raised in the habeas petition. See Picard v. O'Connor, 404 U.S. 270, 275-76 (1971); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) The petitioner must present to the state court both the factual and legal premises of the claims. See Daye, 696 F.2d at 191.
There is no dispute that the petitioner properly presented in state court all of the claims which he raises in his petition challenging his 1987 conviction and that those claims were properly exhausted. The petitioner did so in a motion to vacate his conviction under N.Y. Crim. Proc. L. § 440.10, submitted in March, 1998. In denying the motion, the state Supreme Court found that the claims were not procedurally defaulted because they pertained to matters which did not appear on the record and could not therefore have been raised on direct appeal. The court therefore denied the motion on the merits. (See Order dated September 18, 1998.) The court concluded: "All that defendant has established is that defense counsel gave him sufficient advice concerning his options to allow him to make an informed choice as to whether to take the offered plea." (Id.) The Appellate Division, First Department, denied the petitioner leave to appeal from that order. (See Longo Aff. ¶ 6.) The petitioner has therefore exhausted his available state court remedies. See Klein v. Harris, 667 F.2d 274, 281-84 (2d Cir. 1981); Snype v. Hoke, 728 F. Supp. 207, 210-11 (S.D.N.Y. 1990)
In his Memorandum dated July 9, 1999 filed in response to the petition, the respondent contended that the petitioner's claims were not exhausted. The respondent subsequently filed an "Amended Memorandum" dated August 25, 1999, in which this argument no longer appeared. The Amended Memorandum makes plain that the respondent has abandoned the argument that the petitioner's claims are not exhausted, which in any event is without merit. The respondent also abandoned the argument that this petition was untimely under the filing deadline in 28 U.S.C. § 2244 (d)
(B)
The respondent contends, however, that the Court lacks jurisdiction to consider the petitioner's claims pertaining to his 1987 conviction because the petitioner is not incarcerated pursuant to that conviction. The argument is without merit.
The federal habeas statute gives the United States district courts jurisdiction to consider petitions for habeas relief from persons who are "in custody in violation of the Constitution or laws or treaties of the United States". 28 U.S.C. § 2241 (c) (3). The Supreme Court has "interpreted the statutory language as requiring that the habeas petitioner be "in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989). In Maleng, the Supreme Court considered "whether a habeas petitioner remains "in custody' under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." Maleng, 490 U.S., at 492. The Court held that the potential use of a conviction to enhance a sentence for subsequent offenses does not render a person "in custody" within the meaning of the habeas statute. See Maleng, 490 U.S. at 492. However, Maleng "left open the possibility . . . that the conviction underlying the expired sentence might be subject to challenge in a collateral attack upon the subsequent sentence that the expired sentence was used to enhance." Garlotte v. Fordice, 515 U.S. 39, 45 n. 4 (1995)
The Court of Appeals for the Second Circuit has since made clear that "the "in custody' requirement for federal habeas jurisdiction" is satisfied when a pro se petition, liberally construed, "can be read as asserting a challenge to [a current] sentence, as enhanced by [an] originally invalid prior conviction." Williams v. Edwards, 195 F.3d 95, 96 (2d Cir. 1999) (per curiam) (quoting Maleng, 490 U.S. at 493-94). See also Custis v. United States, 511 U.S. 485, 512 n. 7 (1994) (Souter,J., dissenting) (observing that "Court of Appeals decisions postdating Maleng have uniformly read it as consistent with the view that federal habeas courts may review prior convictions relied upon for sentence enhancement and grant appropriate relief"); see, e.g., Young v. Vaughn, 83 F.3d 72 (3d Cir. 1996);Tredway v. Farley, 35 F.3d 288 (7th Cir. 1994); Brock v. Weston, 31 F.3d 887 (9th Cir. 1994); Willis v Collins, 989 F.2d 187, 189 (5th Cir. 1993); Collins v. Hesse, 957 F.2d 746 (10th Cir. 1992);Harper v. Evans, 941 F.2d 1538, 1539 (11th Cir. 1991)
Here, construing the pleadings liberally, the petitioner contends that the sentence he is presently serving for his 1992 conviction was enhanced by the 1987 conviction which he alleges was unconstitutional. It is therefore proper to construe the petition as a challenge to the petitioner's present sentence, for which he is in custody, as enhanced by the allegedly unconstitutional prior conviction. See Bedova v. United States, No. 97 Civ. 4433, 1998 WL 43114, *1 (S.D.N.Y. Feb. 2, 1998);Malik v. Brennan, No. 93 Civ. 7861, 1995 WL 510047, *2 (S.D.N Y Aug. 29, 1995); Boothe v. McLellan, 803 F. Supp. 568, 588-89 (E.D.N.Y. 1992); Windley v. Riley, No. 90 Civ. 7349, 1991 WL 60343, *4 n. 4 (S.D.N.Y. April 11, 1991). The jurisdictional requirement of 28 U.S.C. § 2254 is therefore satisfied, and the Court can consider whether the 1987 conviction was obtained in violation of the petitioner's constitutional rights.
(C)
Turning to the merits, in his first, second, fifth, and sixth claims for relief the petitioner contends that his guilty plea was not voluntarily entered and that he was convicted of a crime he did not commit. He contends that his attorney coerced him to plead guilty and that he would not have pleaded guilty had his attorney properly investigated the facts of the case and complied with his request to advance a defense based on intoxication at the time of the crime. The petitioner also contends that there was insufficient evidence to convict him. These claims do not entitle the petitioner to relief.
"The longstanding test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quotingNorth Carolina v. Alford, 400 U.S. 25, 31 (1970)). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.'" Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973)
Any claim of ineffective assistance of counsel arising out of the plea process is governed by the two-part standard set out inStrickland v. Washington, 466 U.S. 668 (1984). See Hill, 474 U.S. at 57-58. To prevail on a claim of ineffective assistance of counsel, the petitioner must show both that his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and that counsel's deficient performance was prejudicial to the petitioner's case. See Strickland, 466 U.S. at 687; Bunkley v. Meachum, 68 F.3d 1518, 152 (2d Cir. 1995)
The first prong of the Strickland test is not satisfied merely by showing that counsel employed poor strategy or made a wrong decision. Instead, it must be shown that counsel "made errors so serious that counsel was not functioning as the "counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. Indeed, there is a "strong presumption" that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a petitioner bears the burden of proving "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1985) (citing Strickland, 466 U.S. at 688-89)
To satisfy the second prong of Strickland, the petitioner must show that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Strickland, 466 U.S. at 694. See also Ramos v. United States, No. 97 Civ. 2572, 1998 WL 230935, *2. .3 (S.D.N.Y. May 8, 1998)
A federal court may only grant a habeas petition challenging a state court judgment on a claim adjudicated on the merits by the state court if the adjudication of the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . 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); see also Williams v. Taylor, ___ U.S. ___, 2000 WL 385369, *28 (April 18, 2000); Concepcion v. Portuondo, No. 97 Civ. 3183, 1999 WL 604951, *4 (S.D.N.Y. Aug. 10, 1999)
In this case, there is nothing in the record that supports the petitioner's claim that his guilty plea was not knowing, intelligent, and voluntary. During the plea allocution the petitioner's counsel informed the court that the petitioner wished to plead guilty to a lesser charge of attempted robbery in the second degree. (See Tr. of Guilty Plea of Oct. 13, 1987, at 8.) During the course of his plea colloquy, the petitioner confirmed that he had authorized his attorney to make that statement on his behalf (see id. at 9), that he waived his right to trial by jury (see id. at 9) and to confront the witnesses against him (see id. at 10), and that he was pleading guilty voluntarily and because he was guilty (see id. at 11), and that he had no doubts about entering the guilty plea (see id. at 13). The petitioner specifically denied that any threats had been made to induce him to plead guilty. (See id. at 11.) In explaining the factual circumstances of his guilt the petitioner admitted that he "accepted the pocketbook that Matthew Green passed to [him] and [he] ran with it." (Id. at 12.) The petitioner has not presented any evidence to demonstrate that his counsel's advice to plead guilty fell below an objective level of reasonableness or that, but for his counsel's advice, the result of the proceeding would have been different. As the state court reasonably concluded in denying the petitioner's motion pursuant to N.Y. Crim. Proc. L. § 440.10: "All that the defendant has established is that defense counsel gave him sufficient advice concerning his options to allow him to make an informed choice as to whether to take the offered plea. That subsequent events may have caused the defendant to wish that he had taken the risk of going to trial does not render the assistance ineffective." (Order dated Sept. 18, 1998, at 2.)
Moreover, the petitioner's argument that the evidence was insufficient to convict him and that he was convicted of a crime he did not commit was waived by the petitioner's knowing, intelligent, and voluntary guilty plea and it does not entitle the petitioner to relief. See United States v. Maher, 108 F.3d 1513, 1528-29 (2d Cir. 1997); Greenidge v. Edwards, No. 99 Civ. 4520, 2000 WL 97272, *2 (S.D.N.Y. Jan. 28, 2000); Lloyd v. Walker, 771 F. Supp. 570, 575-76 (E.D.N.y. 1991)
The petitioner is therefore not entitled to relief on his claims that his guilty plea was involuntary and that he pleaded guilty to a crime he did not commit. Accordingly, the petitioner's first, second, fifth, and sixth claims for relief are denied.
(D)
In his third and fourth claims for relief the petitioner contends that he was denied the effective assistance of counsel because his attorney did not advise him of his right to appeal and failed to file a notice of appeal.
Even accepting that the petitioner's counsel did not advise him of his right to appeal, the petitioner is not entitled to relief on this basis. A lawyer's failure to advise a client of the right to appeal does not support a presumption of prejudice underStrickland. See Morales v. United States, 143 F.3d 94, 96 (2d Cir. 1998). Rather, prejudice is determined on a case-by-case basis and it "depend[s] on whether defendant's counsel so advised him prior to sentencing . . . or whether the court gave him notice of his appellate rights . . . or whether the defendant had sufficient experience with the criminal justice system to know of his right to appeal without being told — not to mention the variable merits and prospects of an appeal, especially one from a sentence imposed following a plea." Id. Here, there is no showing of prejudice. The sentencing court, in the presence of the petitioner, instructed the petitioner's attorney to "[a]dvise [his] client of his right to appeal." (Tr. of Sentencing of Nov. 24, 1987, at 4.) It can not therefore be said that the defendant did not have notice of his right to appeal.
Moreover, it is plain that there was no viable basis for an appeal in this case. The petitioner, who was indicted for robbery in the second degree, pleaded guilty, knowingly, intelligently, and voluntarily, to a lesser count of attempted robbery in the second degree, and he received a sentence of probation which the court had advised the defendant prior to his plea that it would impose. (See Tr. of guilty plea of Oct. 13, 1987, at 12; Tr. of sentencing of Nov. 24, 1987, at 3-4.) Under all of the circumstances, there is no basis to conclude that the petitioner was prejudiced by any alleged failure of his attorney to advise him of his right to appeal.
The petitioner is also not entitled to relief on his claim that his attorney failed to file an appeal. The failure to file an appeal does not constitute ineffective assistance of counsel unless the attorney ignored the defendant's explicit direction to file an appeal. See Morales, 143 F.3d at 96-97; Fernandez v. United States, 146 F.3d 148, 148-49 (2d Cir. 1998). There is no indication in the record that the petitioner explicitly requested that his counsel file an appeal and indeed such a conversation between the defendant and his counsel would appear to be inconsistent with the petitioner's allegation that his counsel did not advise him of his right to appeal. Accordingly, the defendant is not entitled to relief on this basis. The petitioner has made no other showing that his counsel was ineffective. The petitioner's third and fourth claims for relief are therefore denied.
In sum, the petitioner's challenges to his 1987 conviction for attempted robbery in the second degree are without merit.
(E)
In his seventh claim for relief the petitioner contends that his 1987 conviction was improperly used to enhance his sentence on the 1992 conviction. This claim is not a proper challenge to the 1987 conviction and it does not entitle the petitioner to relief.
Accordingly, the petition for a writ of habeas corpus challenging the petitioner's 1987 conviction is denied.
V
In Jackson v. Ricks, the petitioner challenges his May 1, 1997 resentencing on nine grounds. First, the petitioner argues that the sentencing court's decision denying his motion to vacate the sentence was arbitrary and capricious. Second, the petitioner argues that he was denied the right to effective assistance of counsel at sentencing. Third, he argues that the sentencing court failed to render a timely decision on his motion to vacate the sentence. Fourth, the petitioner argues that the Appellate Division violated his rights by failing to file Article 78 papers he submitted in March 1999 to compel a decision on his motion to vacate the sentence. Fifth, the petitioner argues that the Appellate Division's decision affirming his sentence was arbitrary and capricious. Sixth, he argues that he was denied the effective assistance of appellate counsel. Seventh, the petitioner argues that the Appellate Division's judgment affirming his sentencing violated his rights under federal law because the sentence was allegedly excessive. Eighth, the petitioner argues that his sentence was improperly enhanced as a result of the prior 1987 conviction. Ninth, the petitioner argues that his present incarceration is the result of the misconduct of public officials, particularly in the processing of his motion to set aside his sentence.
(A)
As an initial matter, the respondent contends that the petitioner failed to exhaust his claim that his appellate counsel was ineffective.
In New York, a claim of ineffective assistance of appellate counsel is properly raised in an application for a writ of error coram nobis to the Appellate Division that affirmed the judgment.See Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994); Garcia v. Keane, 973 F. Supp. 364, 369 (S.D.N.Y. 1997) Garcia v. Scully, 907 F. Supp. 700, 702-03, 706-07 (S.D.N.Y. 1995); People v. Bachert, 69 N.Y.2d 593, 599-600 (1987) . Such an application may be made at any time. See Bond v. Walker, 68 F. Supp.2d 287, 296 n. 4 (S.D.N.Y. 1999) . The petitioner has never availed himself of a state coram nobis proceeding. The state courts have therefore not had a fair opportunity to consider the claim of ineffective assistance of appellate counsel, which is therefore not exhausted. See Bond, 68 F. Supp.2d at 296-97; Bentley v. Scully, 91 Civ. 1868, 1991 WL 183357 at *5 (S.D.N.Y. Sept. 11, 1991)
Nonetheless, under the circumstances of this case it is appropriate for the Court to decide all of the petitioner's claims on the merits. Before the passage of AEDPA, a "mixed" petition for habeas corpus that presented both exhausted and unexhausted claims had to be dismissed in its entirety. See Rose v. Lundy, 455 U.S. 509, 514, 522 (1982); Rodriguez v. Hoke 928 F.2d 534, 537-38 (2d Cir. 1991). A petitioner then had the option of either exhausting the unexhausted claims and coming back to the federal court or dropping the unexhausted claims and filing a new petition for habeas corpus. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Under the provisions of AEDPA, however, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(2).
Thus, in the context of a mixed petition which presents both exhausted and unexhausted claims for habeas corpus relief, the Court may consider and deny an unexhausted claim, particularly where, as here, the Court also denies any exhausted claims on the merits. See Glover, 1999 WL 349936, at *6-7; see also Terrence v. Senkowski, No. 97 Civ. 3242, 1999 WL 301690, *5 n. 4 (S.D.N.Y. May 12, 1999) (exercising discretion to deny unexhausted claims which lack merit)
Denying the claims on the merits is particularly appropriate in this case because the ineffective assistance of counsel claim has been fully briefed and is inextricably intertwined with the substantive claims that are before this Court. Moreover, the petitioner has indicated his desire not to proceed before the Appellate Division. He has started that he would strike his claim of ineffective appellate counsel if that claim is deemed unexhausted and have the Court consider the petition without that claim, rather than proceed first to present that claim to the Appellate Division by writ of coram nobis. (See Letter of Tyrone L. Jackson dated Jan. 18, 2000, at 13-14.)
(B)
Turning to the merits, in his first claim for relief the petitioner contends that the state court's denial of his motion to vacate his sentence was arbitrary and capricious. This claim does not entitle the petitioner to relief. There is nothing about the petitioner's allegations with respect to the denial of his motion to vacate his sentence which constitutes an unreasonable application of federal law. See 28 U.S.C. § 2254 (d). Indeed, the substance of the petitioner's complaint does not involve the alleged denial of a federal right and is not a proper basis for federal habeas corpus relief. See Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 842 (2d Cir. 1997) ("We may only overturn a conviction when that conviction was obtained in violation of a federal constitutional right. ")
The petitioner argued that the sentencing court should vacate his sentence because the court had failed to order a new pre-sentence report before resentencing him. The court denied the petitioner's motion to vacate his sentence on the ground that it was procedurally barred because the petitioner had already raised the same issues in his direct appeal from that sentence. See N.Y. Crim. Proc. L. § 440.20[2]; see also Grey v. Hoke, 933 F.2d 117, 920 (2d Cir. 1991). The court went on to hold, in the alternative, that there was no requirement under state law to obtain a new pre — sentence report before resentencing and that this was a matter entrusted to the discretion of the sentencing court.
The petitioner now contends that the court erred in denying his motion to vacate his sentence because the issue of the pre-sentence report was not in fact raised on his direct appeal from his resentence. However, there is no substance to the petitioner's complaint because there is no federal constitutional right to a new pre-sentence report before a resentencing, and thus no basis for habeas relief based on the state court's decision to deny the motion to vacate the sentence. See Murphy v. Denno, 234 F. Supp. 692, 694 (S.D.NY. 1964) (Weinfeld, J.); Boone v. Fay, 234 F. Supp. 387, 391 (S.D.N.Y. 1964) (Weinfeld, J.). Indeed, even under state law, the state court was correct that it was a matter within the resentencing court's discretion whether to obtain a pre-sentence report. See People v. Kuey, 83 N.Y.2d 278 (1994). Moreover, the resentencing court explained that it was fully aware of the defendant's accomplishments since the time of his original sentence but it did not consider those accomplishments a basis for imposing a lesser sentence. (See Order dated March 22, 1999, attached as Exh. F. to Odessky Aff.;see also Tr. of sentencing of May 1, 1997, at 42.) The court also explained that it was familiar with the original pre-sentence report which discussed the petitioner's record prior to the original sentence, and the petitioner had been continually incarcerated since then. (See Order dated March 22, 1999.) The petitioner is not entitled to habeas relief on the basis of the denial of his motion to vacate his sentence.
Similarly, the petitioner's third claim for relief is without merit. The petitioner contends that the sentencing court failed to render a decision within 60 days on his motion to vacate his sentence in accordance with N.Y. C.P.L.R. § 2219. This alleged failure also does not constitute the denial of any federal right.
The petitioner's fourth claim, that the motion clerk of the Appellate Division did not file his Article 78 papers to compel action on his motion to vacate his sentence, also does not entail a violation of any federal right and therefore does not entitle the petitioner to habeas relief.
Accordingly, the petitioner's first, third, and fourth claims for relief are denied.
(C)
The petitioner's second claim for relief is that he was denied effective assistance of counsel at resentencing because his counsel failed to seek a lesser sentence and failed to obtain an updated presentence report. The claim is without merit because the petitioner has not satisfied either prong of Strickland. It cannot be said that the petitioner's counsel, who brought to the sentencing court's attention the petitioner's challenge to his predicate offense (see Tr. sentencing of May 1, 1997, at 7-16), and who informed the court of the petitioner's efforts to improve himself during incarceration (see id. at 42), performed unreasonably under prevailing professional norms. While the petitioner contends that his counsel should have challenged his 1987 conviction, the Court has already found that the petitioner's challenges to his 1987 conviction are without merit. Similarly, the petitioner's challenges to the failure of the sentencing court to obtain a new pre-sentence report before the resentencing are without merit. Thus, the failure of counsel to have pressed any such objections which were without merit was not objectively unreasonable, nor did it prejudice the petitioner in any way.
Moreover, the sentencing court found it appropriate, in light of the circumstances of the case, to impose the same five to ten year sentence the petitioner had received when he was first sentenced. (See id. at 46.) The court informed the defendant prior to the resentencing hearing that it intended to impose the same sentence, the result of the previous plea negotiation. (See Tr. of March 24, 1997, at 4.) There is no basis to conclude that had the petitioner's counsel performed differently at resentencing the court would have imposed a lesser sentence. Accordingly, the defendant is not entitled to relief on this ground. See Guerrero v. United States, 186 F.3d 275, 282 (2d Cir. 1999). The petitioner's second claim for relief is therefore denied.
(D)
In his fifth and seventh claims for relief the petitioner contends that his sentence was excessive and that it violated federal law and that in affirming his sentence the Appellate Division acted arbitrarily and capriciously. To the extent that the petitioner's claim is that his sentence was excessive, there is no reasonable claim for relief. It is well established that when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997). Thus, because the petitioner's sentence falls within the range prescribed by state law, there is no grounds for habeas relief.
Moreover, the petitioner has not shown that his sentence violates the Eighth Amendment, which prohibits "cruel and unusual punishments." The Amendment is interpreted as prohibiting only sentences that are "grossly disproportionate to the severity of the crime." Rummel v. Estelle, 445 U.S. 263, 271 (1980). Rummel has been interpreted as holding that "federal courts should be reluctant to review legislatively mandated terms of imprisonment and that successful challenges to the proportionality of particular sentences should be exceedingly rare." United States v. Santos, 64 F.3d 41, 45 (2d Cir. 1995) (citation omitted),vacated on other grounds, 516 U.S. 1156 (1996); see also Thomas, 968 F. Supp. at 957. The petitioner presents no reasonable argument that his sentence was at all disproportionate for the crime for which he was convicted, and the sentence the petitioner received was the very sentence the trial court had stated at the original plea proceeding that it would impose. The sentence was well within the statutory limits. As the Appellate Division found in affirming the defendant's original conviction and sentence, which was the same sentence imposed as the one imposed at resentencing: "The sentence for this vicious assault was not excessive." People v. Jackson, 633 N.Y.S.2d 939 (1st Dep't 1995). In view of all the circumstances, the petitioner's sentence was not excessive. Further, the petitioner had no right, as he claims, to an opinion from the Appellate Division, First Department, affirming the judgment of resentence. For the reasons already explained, there was ample basis for the Appellate Division to affirm the petitioner's resentence and there was no requirement that the court issue an opinion.
The petitioner's related argument that the Appellate Division erred by denying his motion to file a pro se supplemental brief is without merit. Denying the motion was plainly within the court's discretion and it does not constitute the violation of any federal right and therefore does not entitle the petitioner to federal habeas relief.
Accordingly, the petitioner's fifth and seventh claims for relief are denied.
(E)
In his sixth claim for relief, the petitioner contends that he was denied the effective assistance of appellate counsel. The claim is without merit because the petitioner has satisfied neither prong of Strickland. The petitioner's allegations amount to mere disagreement with his counsel's strategy as to which issues to pursue on appeal. This does not constitute ineffective assistance of counsel. See United States v. Eisen, 974 F.2d 246, 265-66 (2d Cir. 1992). The petitioner has identified no error by his appellate counsel which was unreasonable under prevailing professional norms. Nor is there any basis to conclude that the petitioner was prejudiced by the performance of his appellate counsel because the petitioner has presented no argument that would have supported a different outcome on appeal.
(F)
In his eighth claim for relief the petitioner contends that it was improper to enhance his sentence on the basis of his 1987 conviction because that conviction was unconstitutional. For the reasons explained above, the petitioner's challenge to his 1987 conviction is without merit. The petitioner is therefore not entitled to relief on this basis.
(G)
In his ninth claim for relief the petitioner contends that he is incarcerated as a result of the misconduct of public officials, particularly in the processing of his motion to set aside his resentence. This claim raises no federal claims and is, in any event, without merit. The time to decide the motion did not deprive the petitioner of any right and any speedier processing of the petitioner's numerous papers would have resulted in no different outcome for the petitioner.
Therefore, the petitioner's challenges to his resentencing are without merit and his petition for a writ of habeas corpus is denied.
CONCLUSION
For the reasons explained, the petitioner's two motions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 are denied in their entirety. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 because the petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). The Clerk of the Court is directed to close these cases.
The Court has carefully reviewed all of the papers and correspondence submitted in connection with the two petitions and it has considered all of the petitioner's arguments in support of his petitions. Any argument by the petitioner not specifically discussed in this Opinion and Order is without merit and does not entitle the petitioner to any relief.
SO ORDERED.
Dated April 25, 2000.