Opinion
Civil Action No. 9:13-CV-0921 (DNH/DEP)
10-30-2015
MAXIMO DOE, Petitioner, v. ADA PEREZ, Respondent.
APPEARANCES: FOR PETITIONER: MAXIMO DOE, 10-A-3480 Downstate Correctional Facility Box F Fishkill, NY 12524 FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General 120 Broadway New York, NY 12224 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE OF COUNSEL: HANNAH S. LONG, ESQ. PAUL B. LYONS, ESQ. Assistant Attorneys General
APPEARANCES: FOR PETITIONER: MAXIMO DOE, Pro se
10-A-3480
Downstate Correctional Facility
Box F
Fishkill, NY 12524
FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
120 Broadway
New York, NY 12224
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
OF COUNSEL: HANNAH S. LONG, ESQ.
PAUL B. LYONS, ESQ.
Assistant Attorneys General
REPORT AND RECOMMENDATION
Pro se petitioner Maximo Doe, a New York State prison inmate as a result of a six-count felony drug conviction, has commenced this proceeding pursuant to 28 U.S.C. § 2254, seeking the court's habeas intervention. In his petition, Doe asserts that his guilty plea was involuntary or unlawfully induced, due, in part, to his attorney's alleged ineffective representation during plea negotiations. For the reasons set forth below, I recommend a finding that petitioner is precluded from raising the two grounds set forth in his petition based upon a determination by a state appellate court that consideration of those claims is precluded by his failure to move for leave to withdraw his guilty plea or to vacate his judgment of conviction.
I. BACKGROUND
On May 7, 2008, petitioner and twenty-three co-defendants were indicted by a Schenectady County grand jury and accused of various crimes related to a drug conspiracy allegedly involving large quantities of cocaine and heroin imported from New York City and distributed into the Upstate New York community. Dkt. No. 3-1 at 12-65. Petitioner, who is named in six of the eighty-four counts of the indictment , was charged with second- and fourth-degree conspiracy and criminal sale of a controlled substance in the first, second, and third degrees. Id. at 12-32. If convicted as charged, Doe faced a maximum sentence of two determinate terms of imprisonment of between twelve and twenty-four years for each count of first-degree criminal sale of a controlled substance, which is an A-I felony. N.Y. Penal Law §§ 60.04(2), 70.71(3)(b)(ii); see also Dkt. No. 3-1 at 94. In addition, those terms of imprisonment, as well as any others imposed for the additional charges, could have been imposed on a consecutive basis. N.Y. Penal Law § 70.25(1)(2).
Petitioner was charged with two counts of first-degree criminal sale of a controlled substance. Dkt. No. 3-1 at 30, 31-32.
Petitioner was taken into custody more than one year after the return of the indictment and resulting issuance of an arrest warrant, Dkt. No. 3-1 at 66-67, and was brought before Schenectady County Court Justice Karen A. Drago for arraignment on September 2, 2009, id. at 90-98. At that time, petitioner entered a plea of not guilty. Id. at 95.
Pretrial conferences in the matter were conducted in Schenectady County Court on December 2, 2009, and again on March 2, 2010, to address the possibility of a negotiated plea agreement. Dkt. 3-1 at 99-109. During the course of those discussions, Justice Drago announced that, in light of Doe's prior criminal history, she would not accept anything less than a plea of guilty to a Class A-II felony as a second felony offender non-violent predicate, with an agreed-upon fourteen year determinate prison sentence and an additional five years of post-release supervision. Id. at 101. The court adjourned the matter for petitioner's consideration of the plea offer, and the case was thereafter removed to Schenectady County Supreme Court and scheduled for trial before Supreme Court Justice Michael V. Coccoma. Id. at 76, 104, 111-12.
Petitioner was convicted of second-degree criminal sale of a controlled substance in Suffolk County on or about December 17, 1999, and was imprisoned in connection with that conviction from December 17, 1999 through April 22, 2005. Dkt. No. 3-1 at 81, 214.
On May 24, 2010, the date on which his trial was to begin, petitioner elected to plead guilty to all of the charges pending against him in the indictment, in return for the promise by the trial court to impose an aggregate sentence of fourteen years of imprisonment. Dkt. No. 3-1 at 157-206. A colloquy ensued during which Justice Coccoma placed the petitioner under oath and inquired concerning his background, awareness of the consequences of his plea, including constitutional rights that he was voluntarily relinquishing, and the factual circumstances surrounding each of the six counts to which he was pleading guilty. Id. After confirming that petitioner had discussed the matter with his attorney and was satisfied with the advice received, and that he understood his rights and possible defenses, the court accepted petitioner's guilty plea. Id. at 201-03. On July 12, 2010, petitioner was sentenced as a second felony drug offender to a determinate period of incarceration of fourteen years, to be followed by a period of five years of supervision upon his release from prison. Dkt. No. 3-1 at 207-226.
Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Third Department. See People v. Doe, 95 A.D.3d 1449 (3d Dep't 2012). In that appeal, he raised the same two issues that are now before this court, arguing that his plea was not knowing, voluntary, and intelligent and that he was denied effective assistance of counsel in connection with his plea. Doe, 95 A.D.3d at 1449. Both of those contentions were rejected by the Appellate Division as not preserved for review based upon petitioner's failure to move to withdraw his plea or to vacate the judgment of conviction. Id. Petitioner did not institute any collateral state court challenges to his conviction prior to commencing this proceeding.
II. PROCEDURAL HISTORY
Petitioner commenced this proceeding on August 5, 2011. Dkt. No. 1. In his petition, Doe argues that his plea was not knowing, voluntary, and intelligent and that he received ineffective assistance of counsel because his attorney failed to inform him of a plea offer that would have required him to serve only twelve years in prison, instead of fourteen, allegedly conveyed by the prosecution during the plea negotiations. Id. at 4. Appropriately named as the respondent in Doe's petition is Ada Perez, who was the Superintendent at Downstate Correctional Facility, where Doe was housed at the time of filing. Id. at 1. On November 5, 2013, the Office of the New York State Attorney General responded to the petition on behalf of Perez by submitting an answer, a memorandum of law, and the relevant state court records associated with petitioner's state-court prosecution. Dkt. No. 3. Doe's petition, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Adequate and Independent State Ground
A review of the Appellate Division's decision in this case unequivocally reflects that the two grounds now raised in Doe's petition, challenging the validity of his guilty plea and the effectiveness of the assistance he received from counsel, were rejected as not preserved for review based upon his failure to move to withdraw his plea or to vacate his conviction. See Doe, 95 A.D.3d at 1449.
As a matter both of comity, and in keeping with the principles of federalism, a federal court ordinarily will not review a federal claim presented in a habeas petition if it has been rejected by the state courts on a ground that is both independent of the federal question presented and adequate to support the resulting judgment. Cone v. Bell, 556 U.S. 449, 465 (2009) (citing Coleman v. Thompson, 501 U.S. 722, 736, (1991)); Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011). "This rule applies whether the state law ground is substantive or procedural." Coleman, 501 U.S. at 729. The habeas court's function is "to determine only whether the state ruling falls within the state's usual practice and is justified by legitimate state interests, not whether the state court ruling was correct." Down, 657 F.3d at 101 (citing Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)).
"Because it can be difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference, such reliance on state law must be clear from the face of the opinion." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (internal quotation marks and citations omitted). As the Supreme Court has explained,
the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case . . . . [W]e will not assume that a state-court decision rests on adequate and independent state grounds when the state court decision fairly appears to rest primarily on federal
law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.Caldwell v. Miss., 472 U.S. 320, 327 (1985); accord, Coleman, 501 U.S. at 733.
In addition to being "independent," the state procedural bar must also be "adequate." Downs, 657 F.3d at 102. Courts "generally assess the adequacy of the state ground of decision by examining whether the rule upon which the state court relied is 'firmly established and regularly followed.'" Id. at 102 (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)). The Second Circuit has observed that
a procedural bar will be deemed adequate only if it is based on a rule that is firmly established and regularly followed by the state in question. When a federal court finds that the rule is inadequate under this test the rule should not operate to bar federal review. Nonetheless, the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law.Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (internal citations and quotation marks omitted).
In a case where both procedural and substantive arguments have been advanced by the parties but no opinion is issued by the state court explaining its rejection of a claim, a federal court may properly assume that the state court based its decision on state procedural grounds absent "good reason" to believe the state court's silence renders its decision on substantive grounds. Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993); accord Jimenez v. Walker, 458 F.3d 130, 138-39 (2d Cir. 2006). Where a state court has expressly found a failure to preserve the argument for appellate review and, alternatively or "in any event," that the argument lacks merit, the procedural bar applies. Fama, 235 F.3d at 810 n.4 (citing Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996)). If there is ambiguity, however, as in "when a state court uses language such as '[t]he defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama, 235 F.3d at 810 (footnote omitted); accord, Jiminez, 458 F.3d at 139.
Under New York law, it is firmly established that a defendant's claims that he involuntarily entered his guilty plea in the trial court due, in part, because he was denied effective assistance of counsel must be preserved through either a motion to withdraw the plea or a motion to vacate the judgment of conviction. See, e.g., People v. Lopez, 71 N.Y.2d 662 (1988) ("In order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea . . . or a motion to vacate the judgment of conviction[.]"); accord, People v. Campbell, 899 A.D3d 1279, 1279 (3d Dep't 2011); People v. Gomez, 72 A.D.3d 1337, 1338 (3d Dep't 2010) ("[A]s defendant did not move to withdraw his plea or to vacate the judgment of conviction, his claims that his plea was not voluntarily entered and that he was denied the effective assistance of counsel are not preserved for our review."); People v. Anderson, 63 A.D.3d 1191, 1193 (3d Dep't 2009), lv. denied 13 N.Y.3d 194 (2009). Courts in this and other districts in New York have routinely recognized that this rule provides an adequate and independent state ground on which to deny habeas relief. See, e.g., Smith v. Superintendent of Wende Corr. Facility, No. 10-CV-0901 2015 WL 1036328, at *7 (W.D.N.Y. Mar. 10, 2015) ("[T]he Appellate Division's determination that petitioner failed to preserve [his claim that his plea was not knowing and voluntary] for review renders the claim procedurally defaulted."); Coons v. Superintendent, No. 11-CV-1502, 2014 WL 316757, at *7 (N.D.N.Y. Jan. 28, 2014) (Mordue, J., adopting report and recommendation by Hummel, M.J.); Belle v. Superintendent, No. 11-CV-0657, 2013 WL 992663, at *5 (N.D.N.Y. Mar. 13, 2013) (Mordue, J.); Haynes v. N.Y., No. 10-CV-5867, 2012 WL 6675121, at *14 (E.D.N.Y. Dec. 21, 2012) ("Petitioner also argues that his guilty plea was involuntarily induced because he received ineffective assistance of counsel. As discussed supra, this Court finds that petitioner's claim is procedurally barred on an independent and adequate state-law ground."); Crumpler v. Khahaifa, No. 10-CV-0819, 2011 WL 6409221, at *7 (W.D.N.Y. Dec. 21, 2011); Bennefield v. Kirkpatrick, 741 F. Supp. 2d 447, 453 (W.D.N.Y. 2010).
In the instant case, petitioner neither sought leave to withdraw his plea of guilty at or prior to the time of sentencing, nor did he move in the state courts to vacate his guilty plea. Dkt. No. 3-1 at 207-26; Doe, 95 A.D.3d at 1449. On that basis, the Appellate Division rejected petitioner's contentions that his guilty plea was not knowingly, voluntarily, and intelligently entered and that he received ineffective assistance of counsel, finding the claims unpreserved for review. Doe, 95 A.D.3d at 1449. Accordingly, petitioner is procedurally barred from raising either of those issues before this court, absent a basis to overlook his procedural default. Belle, 2013 WL 992663, at *5-11.
In Lopez, the New York Court of Appeals recognized "the rare case" where a defendant's plea allocution "casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea[.]" Lopez, 71 N.Y.2d at 666. In its decision affirming petitioner's judgment, the Appellate Division addressed this "narrow exception," finding that petitioner "did not make any statements during the plea allocution that negated a material element of the crime or otherwise raised any doubt as to his guilt[.]" Doe, 95 A.D.3d at 1449. Like the Appellate Division, having reviewed petitioner's plea allocution before Justice Coccoma in Schenectady County Court, I find no basis to conclude either that the petitioner's recitation of the facts associated with the crimes charged casts doubt on his guilt or that his plea colloquy otherwise suggests that his plea was not knowing, voluntary, and intelligent.
To excuse petitioner's failure to preserve the two grounds now raised, the court must find either (1) both good cause for and actual prejudice resulting from his procedural default, or (2) that the denial of habeas relief would leave unremedied a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Fama, 235 F.3d at 809. To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his ability to comply with the relevant procedural rule. Coleman, 501 U.S. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Examples of such external mitigating circumstances can include ineffective assistance of counsel, "a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." Murray, 477 U.S. at 488 (quotation marks and citations omitted); Coleman, 501 U.S. at 753. When a petitioner has failed to establish adequate cause for his procedural default, the court need not proceed to examine the issue of prejudice because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); accord, Long v. Lord, No. 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. March 21, 2006) (McCurn, J.).
In 2007, the Second Circuit noted that, in certain limited circumstances, even firmly established and regularly followed rules will not prevent federal habeas review if the application of that rule in a particular case would be considered "exorbitant." Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir. 2007). While determination of whether the application of a particular rule is exorbitant requires consideration of three factors, Garvey, 485 F.3d at 714, I have not addressed this claim because petitioner does not raise it as a ground for excusing his procedural default in state court.
It should be noted, however, that "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
In this case, petitioner has offered no circumstances that would rise to a level sufficient to support a finding of cause for his default. This deficiency alone would suffice to preclude review of petitioner's arguments on the merits. In any event, petitioner has also failed to demonstrate any prejudice resulting from his procedural default. Had petitioner proceeded to trial and been found guilty, he risked the imposition of a significantly greater term of imprisonment, including prison terms that could have been imposed on a consecutive basis for each of the six felonies charged in the indictment. N.Y. Penal Law § 70.25(1), (2). There is nothing in the record before the court that would suggest that, had petitioner been permitted to withdraw his guilty plea, he would have proceeded to trial and a different result would have obtained. Indeed, the record of the plea allocution in Schenectady County Supreme Court reflects that petitioner entered his guilty plea knowingly, voluntarily, and intelligently, and with the assistance of counsel, whose representation of petitioner was satisfactory. Dkt. No. 3-1 at 157-206. Similarly, plaintiff has failed to demonstrate that he can satisfy the actual innocence or fundamental miscarriage exception to the finding of procedural default. I therefore recommend that plaintiff's claims in this matter be barred on the basis of an independent and adequate state law ground and, consequently, that his petition be denied and dismissed on this procedural basis.
B. Certificate of Appealability
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) ("[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a "substantial showing" if "the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks omitted). A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) ("[A] COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."); accord, Rosa v. United States, 785F.3d 856, 858 n.3 (2d Cir. 2015). In this instance, I conclude that the petitioner has not made a substantial showing of the denial of a constitutional right, and therefore recommend against the issuance of a COA.
IV. SUMMMARY AND RECOMMENDATION
The two grounds raised in the petition in this matter, challenging the voluntariness of petitioner's guilty plea and the assistance that he received from trial counsel, have both been procedurally forfeited based upon petitioner's failure to move to withdraw his plea of guilty or to vacate his judgment of conviction and this court's finding that the arguments were rejected by the Appellate Division on this independent and adequate ground. Accordingly, it is hereby respectfully
RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is further
RECOMMENDED, based upon my finding that Doe has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to either of the claims set forth in his petition; and it is further
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: October 30, 2015
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge