Opinion
15-cv-5296 (LDH) (LB)
2017-03-31
Stephen MITCHELL, Petitioner, v. "Joe" WARD, Superintendent, Respondent.
ORDER
: On June 28, 2016, United States Magistrate Judge Lois Bloom issued a Report and Recommendation (R. & R., ECF No. 49) recommending that this Court deny the petition for a writ of habeas corpus (Pet., ECF No. 1). The parties were afforded fourteen days to file objections to the Report and Recommendation. (See R. & R. 7.) On July 6, 2016, Petitioner filed a request for an extension until August 12, 2016, which was granted by Magistrate Judge Bloom. (ECF No. 51.) Petitioner then filed an objection on August 12, 2016. (Pet'r's Obj., ECF No. 54). When a timely objection has been made to any portion of a report and recommendation on a petition challenging the fact or duration of confinement, the District Court reviews the report and recommendation de novo . 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b). The Court has reviewed the record and the Report and Recommendation de novo and hereby adopts Magistrate Judge Bloom's Report and Recommendation in its entirety.
FACTUAL BACKGROUND
The Court presumes familiarity with the underlying facts of this case, which have been outlined in Magistrate Judge Bloom's June 28, 2016 Report and Recommendation (see R. & R. 1-3), and are adopted herein.
In addition to the facts outlined in the Report and Recommendation, Petitioner alleges that Magistrate Judge Bloom failed to consider certain "important facts" and, as a result, that "an essential portion of the report [was] based upon a false premise." (Pet'r's Obj. ¶¶ 7, 37.) Specifically, Petitioner claims that around mid-June of 2014, he attempted to file an order to show cause motion in the Appellate Division, Second Department, to compel the Appellate Division to stay all proceedings in lower courts. (See id. ¶ 19.) However, a clerk in the Appellate Division allegedly refused to accept his order to show cause application because he did not have an attorney who could file the application. (See id. ¶ 22.)
STANDARD OF REVIEW
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2254 permits a federal court to entertain only those applications alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Sections 2254(b) and (c) impose the additional requirement that the petitioner must have exhausted state remedies for his claims. Finally, for claims which were "adjudicated on the merits in State court proceedings, the federal habeas court may not grant the application unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Id. § 2254(d). A state court decision is "contrary to" clearly established federal law if "the state court reached a conclusion of law that directly contradicts a holding of the Supreme Court" or, "when presented with ‘facts that are materially indistinguishable from a relevant Supreme Court precedent,’ " the state court arrived at a different result. Evans v. Fischer , 712 F.3d 125, 132 (2d Cir. 2013) (quoting Williams v. Taylor , 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ). A state court decision is an "unreasonable application" of clearly established federal law if "the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams , 529 U.S. at 413, 120 S.Ct. 1495.
DISCUSSION
Petitioner's objections to Magistrate Judge Bloom's Report and Recommendation are largely premised upon his contention that Magistrate Judge Bloom misconstrued his claims by relying on false premises or not attending to the relevant facts. (See Pet'r's Obj. ¶¶ 7, 37.) Against that backdrop, Petitioner alleges that: (1) the denial of his request for his petition for temporary bail to be heard by Justice Lewis was an arbitrary and unfair application of state law in violation of the Due Process Clause of the Fourteenth Amendment (id. ¶¶ 104, 132); (2) he was subject to ‘class of one’ discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment (id. ¶¶ 133-37); and (3) clerks of the Appellate Division, Second Department, violated his rights to access the courts by refusing to accept his order to cause motion for temporary injunctive relief on the ground that he could not afford counsel (id. ¶¶ 144-49).
With respect to his due process claim, Petitioner maintains that he was unfairly denied a state procedure for selecting the judicial forum in which his § 460.50 motion was to be heard. (Id. ¶ 104.) Magistrate Judge Bloom plainly and correctly stated, however, first, that § 460.50 does not confer a right to select the judge who will preside over a § 460.50 application, and, second, that—even if it did—such a right is not protected by the Due Process Clause of the Constitution. (See R. & R. 5.) See Watson v. City of New York , 92 F.3d 31, 37-38 (2d Cir. 1996) ("Ample precedent establishes that a state rule of criminal procedure ... does not create a liberty interest that is entitled to protection under the federal Constitution.").
To be afforded due process protection, a state procedural right must implicate those rights that the Supreme Court has long considered fundamental. For example, the right to effective counsel, see Evitts v. Lucey , 469 U.S. 387, 403, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (state appellate procedures implicated the due process right to effective counsel in criminal appeals), the right to a fair trial, see Davis v. Strack , 270 F.3d 111, 132 (2d Cir. 2001) (withholding the justification charge to the jury deprived appellant of the constitutional right to fair trial), and the length of confinement, see Wolff v. McDonnell , 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (Nebraska's prison disciplinary procedure for revoking good-time credits held to be unconstitutional because the procedure directly affected the length of confinement), have all long been considered protected by the Due Process Clause. See also Jackson v. Edwards , 404 F.3d 612, 625 (2d Cir. 2005) (finding a denial of due process where the court noted a high probability of acquittal if the jury had received a justification charge).
Here, by contrast, the state procedural right granted by § 460.50—to apply for a stay of the execution of a judgment pending determination of an appeal and to be released or have bail set in the interim—does not involve any such fundamental liberty interest protected by the Due Process Clause. See Garson v. Perlman , 541 F. Supp. 2d 515, 527 (E.D.N.Y. 2008) ("Petitioners [sic] claim for bail pending appeal [under N.Y. C.P.L. § 460.50 ] presents neither an issue of fundamental right, as both sides agree that there is no right to post-conviction bail, nor is it relevant to his right to a fair trial."). To the extent that the state appeals court incorrectly applied a state-created procedural right, that is a question of state law inapt for federal habeas review. See Swarthout v. Cooke , 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) ("[E]rrors of state law are not cognizable on federal habeas review"). The Court thus affirms Magistrate Judge Bloom's recommendation that Petitioner's due process claim is not cognizable under federal habeas review.
Magistrate Judge Bloom's determinations regarding Petitioner's access-to-courts and ‘class of one’ discrimination claims are likewise upheld. The short of Petitioner's arguments against Magistrate Judge Bloom's determinations on these points is that he faced unconstitutional procedural hurdles in exercising the state procedural right to choose the judicial forum of his choice. (See Pet'r's Obj. ¶ 132, 148, 161.) However, if the denial of a state procedural right not implicating any Due Process liberty interest lies outside the gambit of federal habeas review, then any alleged procedural unfairness leading to that denial is similarly ineligible for review. As noted by Magistrate Judge Bloom, 28 U.S.C. § 2254 restricts judicial review to the constitutionality of petitioner's detention, not of the adjudication of a discretionary application for temporary bail and stay of proceedings. See Garson , 541 F. Supp. 2d at 527 ("Only if the failure to comply with the state court statute violates a defendant's fundamental right to a fair trial or other federal constitutional rights will the claim support federal habeas relief."). Therefore, that Petitioner's § 460.50 application may have been denied due to procedural obstacles or alleged unfairness does not raise a federal constitutional claim sufficient for 28 U.S.C. § 2254.
Petitioner has not made a substantial showing of the denial of any constitutional right or violation of federal law as required by 28 U.S.C. § 2254, and, as such, his claims for habeas relief are without merit. Accordingly, the Court hereby AFFIRMS Magistrate Judge Bloom's June 28, 2016 Report and Recommendation in its entirety and orders that the petition for a writ of habeas corpus be denied.
SO ORDERED.
REPORT AND RECOMMENDATION
BLOOM, United States Magistrate Judge:
Petitioner, Stephen Mitchell, files this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the New York state court violated his federal due process rights by failing to follow its procedure in adjudicating his motion for bail and a stay pending appeal from his 2013 grand larceny conviction. The Honorable LaShann DeArcy Hall referred this petition to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that the petition for a writ of habeas corpus should be denied.
BACKGROUND
On June 24, 2013, following a jury trial in the in the New York State Supreme Court, Kings County, Petitioner was convicted of Grand Larceny in the Second Degree. (Pet., ECF No. 1.) On or about May 1, 2014, Petitioner sought a state writ of habeas corpus in Kings County Supreme Court. Stephen Mitchell v. Warden Carlton Newton, Brooklyn House of Detention, Index No. 6759/14 (Kings Cnty. Sup. Ct. 2014); (Resp., Ex. 1, ECF No. 9). On May 7, 2014, Petitioner filed an Article 78 petition with the Appellate Division, Second Department, requesting a writ of prohibition preventing any jurist but Justice Yvonne Lewis, who sat in the Civil Term of the Kings County Supreme Court, from deciding his habeas petition. (Resp. at 4 n.2, Ex. 2.) The Appellate Division denied that Article 78 petition, explaining that Petitioner failed to demonstrate a clear legal right to the relief sought. (Resp., Ex. 5.)
On May 23, 2014, Justice Garnett denied Petitioner's state habeas petition, sentenced him, and executed an order of restitution. (Resp. ¶ 13.) Petitioner appealed his conviction on June 3, 2014. (Resp., Ex. 6.) On or about June 17, 2014, Petitioner filed a motion in the Kings County Supreme Court pursuant to section 460.50 of the New York Criminal Procedure Law ("N.Y. C.P.L."), to stay execution of the judgment against him and to be released pending his appeal to the intermediate appellate court. (Id. ) Petitioner directed the motion to Justice Lewis. (Id. ) On June 24, 2014, Justice Lawrence Knipel, the Administrative Judge for Civil Matters in the Kings County Supreme Court, denied Petitioner's request to designate Judge Lewis to decide his motion pursuant to § 460.50, and referred Petitioner's stay application to the trial court. (Resp., Ex. 8 at Ex. A.)
At the same time as he filed his § 460.50 motion, Petitioner filed a second Article 78 petition in the Appellate Division. (Resp, Ex. 7.) In it, Petitioner challenged Judge Garnett's adjudication of his § 460.50 motion in light of his direction that Justice Lewis decide it. (Id. ) On July 11, 2014, Justice Marrus denied Petitioner's § 460.50 application, overruling Petitioner's objection to the court's jurisdiction to determine the application, and holding that the court was "bound by the administrative rules for the assignment of applications by administrative judges." (Resp., Ex. 14 at Ex. C.) That decision was entered on July 15, 2014. (Resp., Ex. 13.)
Before that decision's publication, Petitioner filed what he deemed both a reply to the opposition to his second Article 78 petition and a third Article 78 petition seeking a writ of mandamus transferring his stay application from Justice Marrus to Justice Lewis. (Resp., Ex. 10.) On September 10, 2014, Petitioner's second Article 78 petition was dismissed because it had been "rendered academic" by the July 15, 2014 order denying Petitioner's § 460.50 motion. (Resp., Ex. 13.) For the same reason, the Appellate Division dismissed Petitioner's third Article 78 petition on October 8, 2014. (Resp., Ex. 14 at Ex. D.) Petitioner sought leave to appeal from the denials of his second and third Article 78 petitions, but leave was denied. (Resp., Ex. 13; Pet., Exs. K, L.)
Meanwhile, Petitioner appealed Justice Marrus's July 11, 2014 denial of his bail application and a stay. (See Resp., Ex. 15.) On March 10, 2015, the Appellate Division dismissed the appeal. (Pet., Ex. N.)
Petitioner now seeks a writ of habeas corpus in this Court, arguing that the Kings County Supreme Court's refusal to transfer his application for a stay pending appeal to Justice Lewis, who has since resigned from her judgeship, violated his rights to due process and equal protection of the laws. (Pet., ECF No. 1; Resp. ¶ 34.) He requests immediate release from custody and that Justice Lewis hear his § 460.50 motion. (Pet.) Respondent opposes the petition, (Resp., ECF No. 9), and Petitioner has replied, (ECF Nos. 12, 13). In a recently filed letter, Petitioner moves to amend his request for remedies in light of Justice Lewis's resignation, asking instead for the opportunity to select another judge to decide his § 460.50 motion. (ECF No. 48.) DISCUSSION
I. Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the AEDPA, a reviewing court may grant a habeas petition only if the petitioner's claim "was adjudicated on the merits in State court proceedings" and the State court proceedings:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Id. § 2254(d). "This is a ‘difficult to meet’ ... and ‘highly deferential standard’ " and review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 171, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Federal habeas review is also limited to claims that a petitioner is being held "in violation of the Constitution, laws, or treaties of the United States." 28 U.S.C. §§ 2241(c), 2254(a) ; see also Wainwright v. Goode, 464 U.S. 78, 83, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) ("[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension."). "Federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal quotation marks and citation omitted); see also Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) ("A claim that a state conviction was obtained in violation of state law is not cognizable in the federal court."); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) ("It is well established that a federal habeas court does not sit to correct a misapplication of state law ....").
A state court decision is "contrary to" clearly established federal law if "the state court reached a conclusion of law that directly contradicts a holding of the Supreme Court" or, "when presented with ‘facts that are materially indistinguishable from a relevant Supreme Court precedent,’ " the state court arrived at an opposite result. Evans v. Fischer, 712 F.3d 125, 132 (2d Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ). A state court decision is an "unreasonable application" of clearly established federal law if "the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413, 120 S.Ct. 1495.
II. Petitioner's Constitutional Claims
Respondent explicitly waives any argument that Petitioner's claims are unexhausted. (Resp. ¶ 35.)
Petitioner fails to raise a cognizable constitutional claim. He dedicates the substance of his reply memorandum and affidavit to arguing that, as interpreted by precedential state court cases, § 460.50 entitles him to choose the judge who hears a motion for bail and a stay pending appeal under that section. (ECF Nos. 12, 13.) He argues that because he was not allowed to choose the judge, his right to due process under the Fourteenth Amendment was violated. (See Pet.) However, § 460.50 defines the pool of judges who have authority to adjudicate such a motion; it does not confer a right to select the judge who will preside over the application. Moreover, even if the statute did confer a right to select the judge, errors of state law are not cognizable on federal habeas review. Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) ; see also Carvajal v. Artus, 633 F.3d 95, 107 (2d Cir. 2011) (no habeas relief even if federal court views state court's interpretation of its state statute as unwise). Further, any such right does not implicate a liberty interest that is protected by the Due Process Clause of the Constitution. There is no federal right to bail or a stay pending an appeal of a conviction. And there is no Supreme Court case interpreting the U.S. Constitution as guaranteeing the right to choose who decides a motion for such relief. See Garson v. Perlman, 541 F. Supp. 2d 515, 527 (E.D.N.Y. 2008) ("Petitioners [sic ] claim for bail pending appeal [under N.Y. C.P.L. § 460.50 ] presents neither an issue of fundamental right, as both sides agree that there is no right to post-conviction bail, nor is it relevant to his right to a fair trial"). Accordingly, Petitioner's due process claim is not cognizable on federal habeas review. See Dearstyne v. Mazzuca, 48 F. Supp. 3d 222, 262 (N.D.N.Y. 2011) (noting that a state court decision applying or interpreting a state procedural right is not reviewable under AEDPA unless the denial thereof implicates a liberty interest protected by the federal constitution).
Petitioner also raises his objections to Respondent's failure to provide the full record, including trial transcripts, from the proceedings below. In Petitioner's recent motion to amend, he requests discovery. (ECF No. 48.) However, the Court has already denied Petitioner's motion for transcripts because those records are irrelevant to the instant petition; likewise, his motion for discovery has been denied. (ECF No. 41.) To the extent he seeks reconsideration of that order, it is denied because Petitioner fails to demonstrate that the Court incorrectly decided his earlier requests for discovery. Inst. for Development of Earth Awareness v. People for the Ethical Treatment of Animals, No. 08 Civ. 6195, 2009 WL 3254457, at *1 (S.D.N.Y. Oct. 9, 2009) (citing Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) ) (a motion to reconsider is a vehicle to correct clear error, not to relitigate an issue already decided).
The instant petition raises additional constitutional challenges to the state court's decisions, though none have merit. First, Petitioner, an attorney himself, argues that the Appellate Division violated his equal protection and due process rights by denying his Article 78 petitions due to his inability to afford counsel. (Pet. ¶¶ 244, 266.) That claim is belied by the record, which reflects that the Appellate Division denied the Article 78 petitions relating to Petitioner's § 460.50 motion for mootness. Second, Petitioner argues that he was discriminated against as a "class of one." His challenge to the adjudication of his bail and stay application is not cognizable on habeas review pursuant to § 2254, which restricts judicial review to the constitutionality of a petitioner's detention, not of the adjudication of a discretionary application for temporary bail and stay of proceedings. See Garson, 541 F. Supp. 2d at 527 (explaining that the challenged conduct must have violated the petitioner's fundamental right to a fair trial to support federal habeas relief). Finally, Petitioner argues that the state court's decisions were racially motivated, but not based on Petitioner's race—rather, he argues that white, male judges of the Kings County Supreme Court did not want a female, African-American judge like Justice Lewis to adjudicate Petitioner's § 460.50 motion. His claim, which attacks the procedural fairness of events that, again, did not affect his trial or sentencing, fails to raise a federal constitutional claim that is cognizable on habeas review.
CONCLUSION
Accordingly, the instant petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 should be denied. Petitioner's pending motion to amend the remedies section of his petition should be denied as moot. Because Petitioner has not made a substantial showing of the denial of any constitutional right, it is recommended that no certificate of appealability should be issued. 28 U.S.C. § 2253 ; see Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (discussing the standard for issuing a certificate for appealability); see also Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112-13 (2d Cir. 2000). It is further recommended that the Court should certify pursuant to 28 U.S.C. § 1915(a) that any appeal from a judgment denying this petition would not be taken in good faith. Coppedge v. U.S., 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
FILING OBJECTIONS TO THE REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6. Any request for an extension of time in which to file objections must be made within the fourteen-day period. Failure to timely file an objection to the Report and Recommendation generally waives any further judicial review. DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000) ; Spence v. Superintendent, Great Meadow Corr. Fac., 219 F.3d 162, 174 (2d Cir. 2000) ; see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
SO ORDERED.
Dated: June 28, 2016
Brooklyn, NY