Opinion
21-CV-5452 (LGS) (JLC)
04-28-2022
MIGUEL DIAZ, Petitioner, v. SUPERINTENDANT EARL BELL, Respondent.
Honorable Lorna G. Schofield, United States District Judge:
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Petitioner Miguel Diaz, proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2018 conviction in the Supreme Court of the State of New York, Bronx County, pursuant to his guilty plea, for first degree reckless endangerment. He was sentenced to three-and-one-half to seven years' incarceration. In this timely Section 2254 petition, Diaz asserts both exhausted and unexhausted claims.
For the reasons set forth below, I recommend that Petitioner's habeas corpus petition be denied.
I. BACKGROUND
The following facts are drawn from the record of proceedings before the state trial court. Given Diaz's conviction by guilty plea, the facts are set forth in the light most favorable to the State. See, e.g., Jacks v. Lempke, No. 09-CV-8768 (DAB) (FM), 2012 WL 3099069, at *1 (S.D.N.Y. July 24, 2012), adopted by 2012 WL 3930098 (Sept. 10, 2012).
A. Criminal Charges and Arraignment
On July 19, 2016, Diaz appeared in the Bronx Supreme Court, Criminal Term, for arraignment. Dkt. No. 33-1 at 1-2. Justice George Villegas informed Diaz that the Grand Jury had indicted him for, among other things, attempted murder in the second degree. Id. at 3. The charges were based on allegations that at about 5:00 p.m., on May 26, 2016, Diaz and codefendant Jonathan Maldonado Melendez (“Maldonado”) entered a building at 1160 Cromwell Avenue, near 167th Street in the Bronx, and shot into the door of the apartment that Cinnamon Patterson, Raphael Patterson, and Maurice Ahmadi were in. Dkt. No. 33-6 at 42-44. At the arraignment, Diaz made several attempts to dispute the validity of the Grand Jury proceedings, including by challenging the signature of the foreperson on the indictment. Id. at 3. He also argued that as of July 9, 2016, he was entitled to have been released on his own recognizance because of undue delay in arraigning him. Id. The Court rejected these claims. Id. Defense counsel John Cromwell, who had been assigned by the trial court, indicated that he and Diaz had irreconcilable differences, and Cromwell was relieved as counsel. Id. at 4-5.
The page numbers refer to the numbers produced by the Electronic Case Filing (“ECF”) system.
The original indictment charged Diaz with multiple counts of criminal use of a firearm, several counts of reckless endangerment in the first and second degrees, and related charges, in addition to the attempted murder charge. Dkt. No. 33-17 at 1.
Cinnamon Patterson is Diaz's former girlfriend and the mother of one or more of his children. Diaz ultimately pleaded guilty to the count of reckless endangerment involving Rafael Patterson only. Dkt. No. 33-6 at 61.
Thereafter, defense counsel Jerry Iannece was appointed, but on October 25, 2016, the court granted his request to be relieved as counsel as well. Dkt. No. 33-1 at 14.
B. Proceeding Pro Se
On October 2, 2017, Diaz, represented by newly assigned counsel Troy Smith, appeared before the Honorable Judith Lieb and indicated that he wanted to represent himself pro se. Diaz stated that he was “intelligence-wise, . . . well prepared, ” Dkt. No. 33-1 at 22, and that he was “beyond capable” of representing himself, id. at 41. The Court asked whether he had ever had treatment for a mental or physical condition that affected his ability to understand, or whether he now had such a condition, and Diaz responded, “Not at all.” Id. at 23-24. After a lengthy discussion of the ramifications of doing so and conferring with attorney Smith - who told Diaz that he believed Diaz was making a mistake, id. at 43 - Diaz indicated that he still wished to proceed pro se, and Justice Lieb granted the motion. Id. at 44.
On October 25, 2017, Diaz appeared pro se before Justice Lieb. She denied Diaz's pro se motion that his speedy trial rights under N.Y. Criminal Procedure Law § 30.30 had been violated, and indicated that she would wait until after his co-defendant's suppression hearing to rule on Diaz's motion to sever his trial from that of his co-defendant. Diaz asked Assistant District Attorney (“ADA”) Fasano if he had a plea offer, and ADA Fasano offered that Diaz could plead guilty to the felony firearms possession with a sentence of nine years' incarceration and five years' post-release supervision. Dkt. No. 33-1 at 73. Diaz rejected the offer, and the matter was adjourned to November 15, 2017.
At a hearing before Justice Lieb on November 15, 2017, Diaz filed seven new pro se motions. Dkt. No. 33-1 at 85. At the next hearing, on December 20, 2017, Justice Lieb indicated that she understood that Diaz's co-defendant's motion to suppress the gun that had been recovered from him had been granted, and she heard Diaz's argument about severing the two trials. At the conclusion of the hearing, Diaz indicated that he had filed an unspecified “notice of claim against Judge Lieb and [ADA] Fasano due to [their] malicious prosecution and wrongful arrest, ” and he attempted to serve them with documents. Dkt. No. 33-1 at 103.
C. Proceeding with New Appointed Counsel
At the hearing held on March 27, 2018, before Justice Ethan Greenberg, Diaz was represented by defense counsel Richard Barton. Dkt. No. 33-1 at 105. Diaz argues in this petition that Justice Greenberg coerced him off the record to accept counsel, even though Diaz wanted to proceed pro se. Dkt. No. 1 at 5. On April 2, 2018, Diaz and his counsel appeared again before Justice Greenberg. Dkt. No. 33-2 at 40. The matter was finally set for trial on May 2, 2018, but before jury selection began, the prosecutor indicated that the complaining witness, Cinnamon Patterson, could not be found. Dkt. No. 33-5 at 5-6. Justice Greenberg suggested that “both sides . . . think about” a plea deal and stated that he thought “reckless endangerment, three to six would be right.” Dkt. No. 33-5 at 8. The matter was adjourned to May 7, 2018, for trial.
On May 7, 2018, after discussion on the record among Justice Greenberg, ADA Fasano, and defense counsel Barton about voir dire, jury instructions, and other matters, Barton asked to put on the record information about plea negotiations. Dkt. No. 33-6 at 39. Barton indicated for the record that he had requested a plea offer to first-degree reckless endangerment but was told it was “off the table.” Id. Diaz volunteered that he would only accept “two-to four D non-violent.” Id. The parties proceeded with jury selection, and then had further discussion of a potential plea after jurors exited the courtroom. After the recess for lunch, Barton asked on the record for a plea offer to first-degree reckless endangerment with an indeterminate sentence of two to four years' incarceration. Id. at 52. ADA Fasano rejected this offer, and Justice Greenberg stated: “I would not go along with that either.” Id. at 55. ADA Fasano then offered an indeterminate term of incarceration of three-and-one-half to seven years' incarceration, and Diaz promptly responded, “I'll take it.” Id.
ADA Fasano noted that there had not been discussion on the record of a plea deal since he had made the offer of nine years' incarceration and stated that this “is also the first time that the Defendant has ever expressed himself any interest in anything.” Dkt. No. 33-6 at 52.
D. Guilty Plea
That same day, May 7, 2018, Justice Greenberg accepted Diaz's allocution of guilt to the charge of reckless endangerment in the first degree, and he was adjudicated a second felony offender, based on a judgment of conviction in the Supreme Court, Bronx County, for possession of stolen property. Dkt. No. 33-6 at 62. The violent felony charges were dismissed. Diaz also signed, in court in the presence of counsel, a waiver of the right to appeal, and he confirmed on the record that he understood it. Dkt. No. 33-6 at 60; Dkt. No. 33-8.
On June 28, 2018, Justice Greenberg sentenced Diaz to three-and-one-half to seven years' incarceration, and imposed a surcharge, which was deferred until Diaz's release. Dkt. No. 33-7 at 2. In addition, Justice Greenberg ordered that Diaz would continue to be subject to an order of protection barring him from contact with Cinnamon and Rafael Patterson, but not from contact with Cinnamon's children with Diaz, subject to any Family Court order. Dkt. No. 33-6 at 61.
E. Direct Appeal
Diaz appealed the conviction, and counsel from the Office of the Appellate Defender perfected the appeal. Id. at ¶ 15. Counsel argued that Diaz's waiver of appeal was invalid and his negotiated sentence should be reduced in the interest of justice. Dkt. No. 33-18. The prosecutor opposed the appeal. Dkt. No. 33-19. On March 2, 2021, the Appellate Division, First Department, affirmed the conviction. People v. Diaz, 192 A.D.3d 410 (1st Dep't 2021) (“[F]inding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.”). Diaz sought leave to appeal, Dkt. No. 33-20, and on May 12, 2021, the N.Y. Court of Appeals denied leave to appeal. People v. Diaz, 37 N.Y.3d 955 (2021).
The Appellate Division, First Department, recharacterized Diaz's October 31, 2017 pro se appeal from the denial of his motion under N.Y. Crim. Proc. Law § 30.30 as a timely notice of appeal from his conviction and sentence. Dkt. No. 33-15 at 3, n.3.
F. State Post-Conviction Motions
Five months after sentencing, Diaz filed his first motion in the state court to set aside his sentence. In his November 27, 2018 motion, styled as a motion under N.Y. Crim. Proc. Law § 440.20, Diaz argued that defense counsel was ineffective because he “never sought a plea deal offer” until the trial judge proposed a plea, and failed to negotiate a more favorable plea agreement. Dkt. No. 33-9 at 1, 3. Although Diaz had already been sentenced when he brought the motion, he argued that he wanted the case returned to the court's calendar for trial, unless ADA Fasano offered him a plea of “time served.” Id. at 4.
On December 22, 2018, Diaz moved, under N.Y. Crim. Proc. Law § 440.20, to set aside his sentence and be resentenced according to “new Congress [non]violent felony] laws and guidelines, ” which the trial court interpreted as referring to the federal First Step Act of 2018 (P.L. 115-391). Dkt. No. 33-10. The prosecution opposed the motions. Dkt. No. 33-11.
By order dated September 24, 2019, Justice Greenberg characterized Diaz's motions as having been brought under both § 440.10 and § 440.20, and denied both motions. Dkt. No. 3312 at 1, 3. Justice Greenberg held that it was “plain from the record that counsel did vigorously engage in plea bargaining on defendant's behalf, both on the day of his plea and on prior occasions, notwithstanding defendant's stubborn insistence (until trial was just about to begin) that he would never accept any plea offer.” Id. at 3. In addition, Justice Greenberg agreed with the prosecution that the First Step Act did not apply because it applied to federal convictions - not state convictions. Id. In his petition, Diaz states that he did not appeal this decision to the Appellate Division. Dkt. No. 1 at 5.
Diaz then filed a motion under N.Y. Crim. Proc. Law § 440.10, dated November 5, 2019, in the trial court. Dkt. No. 13-3. The trial court described the pending motions as raising 14 claims:
In his November 2019 moving papers, Diaz argued that: (1) the court lacked jurisdiction of the action; (2) the plea was procured by “duress, misrepresentation, or fraud” on the part of the court or prosecutor; (3) the prosecutor knowingly presented false evidence; (4) Diaz was, by reason of mental disease or defect, incapable of understanding or participating in the proceedings; (5) improper conduct, requiring reversal, occurred during pretrial; and (6) new evidence, unavailable earlier, had been discovered, which could have created the probability of a more favorable plea, had it been discovered earlier. Dkt. No. 33-13 .
(1) Diaz's plea and sentence were the result of ineffective assistance of counsel;
(2) the court lacked jurisdiction over him; (3) the court lacked jurisdiction over the case; (4) the plea and conviction were procured by prosecutorial misconduct;
(5) the plea and conviction were the result of judicial misconduct; (6) his plea was procured by material, false evidence; (7) he did not understand the proceedings due to a mental disease or defect; (8) his plea and conviction were the result of improper pretrial conduct; (9) newly discovered evidence invalidates Diaz's plea and conviction; (10) Diaz's plea and conviction were obtained in violation of the state and federal constitution; (11) the court should be compelled to submit an affidavit responding to Diaz's claims; (12) the former prosecutor should be compelled to submit an affidavit responding to Diaz's claims; (13) the court should assign Diaz counsel and an investigator to assist him with these claims; and (14) the court should order a hearing to create the evidentiary record necessary to determine the motion.Dkt. No. 33-17 at 3.
In this petition, Diaz characterizes the motions resolved by the trial court's December 30, 2020 order as having raised the following grounds for relief: “prosecutorial misconduct, judicial misconduct, duress, [i]neffective couns[e]l, Grand Jury violations, mali[ciou]s pro[se]cution, lack of evidence to support claim, withdraw[l] of guilty plea, claim[a]nts / complainants are on recorded audio offering to drop charges if I paid them, complainants cred[i]bility, he[a]rsay added at Grand Jury, complainant had active warr[a]nt for a fire arm (a lot).” Dkt. No. 1 at 3.
Diaz also brought a motion, labeled as “motion to dismiss indictment 210.20, ” in which he raised claims of prosecutorial misconduct during the Grand Jury proceedings and requested in camera inspection of the Grand Jury minutes. Dkt. No. 33-14. The prosecution filed its opposition on August 21, 2020. Dkt. No. 33-15.
Before the trial court ruled on the pending motions, Diaz also filed in state court on December 24, 2020, a motion for compassionate release, pursuant to 18 U.S.C. § 3582, due to the Covid-19 pandemic. Dkt. No. 33-16.
By order dated December 30, 2020, the trial court addressed Diaz's 14 grounds for relief, plus five additional arguments that the court discerned from an “avalanche” of 15 additional letters that Diaz had filed between February and September 2020. Dkt. No. 33-17 at 3. The court stated that because of the “onslaught of pro se submissions, ” the prosecution had required extensions of time to respond and had asked the court to enjoin Diaz from further submissions without leave of court. Id. at 4. The trial court held that although the claims were overlapping and difficult to parse, they could be “swiftly dispatched” for five reasons:
(1) Although defendant was in a position to raise all of these claim[s] on his prior CPL § 440 motion, he failed to do so (see CPL § 440.10[3] [c]); (2) to the extent that defendant is reiterating claims that were already adjudicated in his prior CPL § 440.10 motion, his motion is denied pursuant to CPL § 440.10(3)(b); (3) insofar as these claims are record-based, defendant has unjustifiably failed to raise these claims on direct appeal (see CPL § 440.10[3][a]); (4) with respect to those record-based claims regarding the alleged absence of plea negotiations, defendant's claims are belied by transcripts of court proceedings that clearly show defendant's attorney, the prosecutor, and the Court referencing plea negotiations that had occurred previously in the case (see People Exhibit 1 [transcript] at pp. 39-40, 52-63) and thus are denied pursuant to CPL §§ 440.30(4)(c); and (5) to the extent that these claims are based on facts that do not appear on the record, it is readily apparent that such claims are made by defendant only, are completely unsupported by any other affidavit or evidence, such that under the attendant circumstances there is no reasonable possibility that any of these allegations are true (see CPL §§ 440.30[4][d][i] and [ii]).Dkt. No. 33-17 at 4-5.
The trial court further concluded that, “beyond the procedural bars indicated above, upon careful review, each and every one of [Diaz's] claims is meritless.” Id. at 5. Diaz did not seek leave to appeal this decision to the Appellate Division, First Department. Dkt. No. 1 at 4, ¶ 14.
Diaz contends that he did not appeal the trial court's decisions because he had “moved to a new prison and by the time [his] legal mail came to [him], it was to[o] late to appeal (Both times).” Dkt. No. 1, at 5.
G. The Present Petition
On May 26, 2021, Diaz filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of New York, only a few weeks after the N.Y. Court of Appeals denied leave to appeal from the order affirming Diaz's conviction. People v. Diaz, 37 N.Y.3d 955 (May 12, 2021). See Petition for Writ of Habeas Corpus dated May 26, 2021, Dkt. No. 1. Diaz paid the filing fee on June 14, 2021, and, one week later, the district court transferred the action to this Court, where it was assigned to District Judge Lorna G. Schofield. Dkt. No. 5. On June 23, 2021, Judge Schofield directed Respondent to answer the petition, Dkt. No. 8, and she referred the matter to my docket the same day, Dkt. No. 10. Diaz applied for appointment of counsel, Dkt. No. 11, which the Court denied, without prejudice to renewal, on the ground that the Court could not conclude at that stage based on the current record that Petitioner's claims were substantial or that he was likely to succeed on the merits. Dkt. No. 13.
Diaz also moved, by letter dated September 7, 2021, for a bail hearing pending the Court's resolution of his habeas corpus petition. Dkt. No. 21. Respondent opposed the request, Dkt. No. 23, and by order dated September 16, 2021, the Court denied Diaz's request for a bail hearing. Dkt. No. 26.
Diaz styles his Section 2254 petition as asserting two grounds for relief, though each “ground” has multiple subparts. “Ground one” includes the following claims:
(1) prosecutorial misconduct, in that ADA Fasano allegedly “introduced hearsay to the Grand Jury”;
(2) Judicial Misconduct, in that the Honorable Ethan Greenberg “threatened [Diaz] off record and forced court co[u]ns[e]l on [Diaz] after he told him [that he] didn't want counsel”;
(3) the complaining witness had an outstanding warrant for her arrest and was recorded asking him to pay her to drop the charges;
(4) there no was evidence “t[ie]ing [Diaz] to the crime”;
(5) defense counsel failed to “put in 30-30 motion when he was spose [sic] to.”Dkt. No. 1 at 5. Diaz states that he did exhaust these grounds for relief in state court. Id.
In response to a question on the Section 2254 petition form asking why the claims in ground one were not raised on direct appeal, Diaz states, “Lawyer told me [due] to my prison disciplinary it was best to do the excessive sentence route.” Dkt. No. 1 at 6.
Diaz's second “ground” for relief includes the following claims, which the Court numbers sequentially with the claims in “Ground One”:
(6) newly discovered evidence that the Assistant District Attorney was granted an “illegal” fourth extension of time, until July 12, 2020, to respond to Petitioner's § 440.10 motion;
(7) false imprisonment;
(8) illegal waiver of right to appeal; and
(9) excessive sentence.Id. at 7. Diaz notes that the last two issues (waiver of right to appeal and excessive sentence) were raised on direct appeal from his conviction. Id.
Diaz also filed letters indicating that he wished to add claims challenging certain pretrial matters (“the Rodriguez hearing”), Dkt. No. 24, and to bring a motion for “immediate release” based, among other things, on his allegedly illegal adjudication as a predicate felon, Dkt. No. 28. Diaz filed an additional application seeking to supplement his claims challenging ADA Fasano's questions in Grand Jury proceedings (about whether Diaz kept guns in his stove or had caused his bulldog to bite the complaining witness), which Fasano had allegedly removed from the transcript. Dkt. No. 30.
Respondent opposed the petition for a writ of habeas corpus on October 28, 2021, filing a declaration and memorandum of law. Dkt. Nos. 33-34. Respondent argues that Diaz's claims raised in ground one are: (1) unexhausted because the trial court denied these claims and Diaz did not appeal the denial of his § 440 motion to the Appellate Division; (2) procedurally forfeited because they were rejected on an independent and adequate state ground; and (3) without merit. Dkt. No. 33 at 5. Respondent further argues that the claims raised in ground two, for excessive sentence and illegal waiver of appeal, are unexhausted, non-cognizable, and without merit, as are all of the claims raised in Diaz's additional applications. Id.
Diaz replied in two letters, arguing that (1) Respondent has ignored his argument that ADA Fasano tampered with Grand Jury transcripts; (2) the trial court erred in concluding at the Rodriguez hearing that Maldonado “knew” Diaz, when all of Maldonado's answers were, “I don't know.”; (3) the complaining witness had offered to accept a bribe in order to decline to participate in Diaz's prosecution, and she was not arrested despite an open arrest warrant based on her possession of an “imitation” weapon; (4) there was no physical evidence linking Diaz to the crime; and (5) police officers lacked probable cause to arrest Diaz for the crime. Dkt. Nos. 36, 38. In additional letters, Diaz urged the Court to act promptly to resolve his petition, Dkt. Nos. 40, 42, and asked to include a new argument: that, on June 9, 2016, ADA Fasano had an improper “off-the-record” conversation with members of the Grand Jury. Dkt. No. 41.
II. DISCUSSION
A. Legal Standards for Habeas Relief Under Section 2254
I. Exhaustion
Under 28 U.S.C. § 2254, a federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. See 28 U.S.C. § 2254(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.”); § 2254(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.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”).
Exhaustion “requires that the prisoner ‘fairly present' his constitutional claim to the state courts, which he accomplishes ‘by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.'” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005)). “While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'” Jackson, 763 F.3d at 133 (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
2. Procedural Bar to Claims Deemed Exhausted
Even if a claim has been deemed exhausted, federal courts “generally will not consider a federal issue in a case ‘if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002)). “[W]hen ‘faced with an independent and adequate state ground' for the decision, ‘principles of comity and federalism' compel us to ‘defer' to that state law ground and thus to decline to review the federal claim.” Whitley v. Ercole, 642 F.3d 278, 285 (2d Cir. 2011) (quoting Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999)). In such circumstances, petitioners are procedurally barred from seeking federal habeas review. See Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996).
Furthermore, the procedural bar for independent and adequate state grounds applies even if the state court had also addressed the merits in reaching an alternative holding. See, e.g., Whitley, 642 F.3d at 286, n.8; see also Harris v. Reed, 489 U.S. 255, 264, n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”).
A petitioner may overcome the procedural bar if he demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Murray v Carrier, 477 U.S. 478, 495-96 (1986). A petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available, ” (2) “some interference by state officials made compliance [with the procedural rule] impracticable, ” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). While the Supreme Court has not given “precise content” to the term “prejudice, ” see Sykes, 433 U.S. at 91, the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments, ” United States v. Frady, 456 U.S. 152, 175 (1982).
A fundamental miscarriage of justice is “an extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
3. Standards of Review Under the Antiterrorism and Effective Death Penalty Act
The Antiterrorism and Effective Death Penalty Act (AEDPA) “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under the AEDPA, courts may only grant a habeas petition if the challenged state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision; or (2) “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).
Under the first prong, the “Supreme Court has instructed that section 2254(d)(1)'s ‘contrary to' and ‘unreasonable application of' clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). “A state court decision is ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court' when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'” Id. at 544 (quoting Williams, 529 U.S. at 412-13); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (quoting White, 572 U.S. at 420). The standard “is difficult to meet, ” and it was intended to be. Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
Under the second prong, a state court's determination of fact “may not [be] characterize[d] . . . as unreasonable ‘merely because [a reviewing court] would have reached a different conclusion in the first instance.'” Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference. If ‘[r]easonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id.
4. Pro Se Status
A petitioner bears the burden to establish, by a preponderance of the evidence, that his constitutional rights have been violated. See, e.g., Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). However, the submissions of a pro se petitioner are held to less stringent standards than formal pleadings drafted by lawyers. See, e.g., Davis v. Walsh, No. 08-CV-4659 (PKC), 2015 WL 1809048, at *1 n.1 (E.D.N.Y. Apr. 21, 2015) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Courts must liberally construe a “pro se petition ‘to raise the strongest arguments' it suggests.” Id. (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B. Analysis
I. Grand Jury Proceedings
Diaz asserts as a ground for relief that “ADA Fasano introduced hearsay to the Grand Jury.” Dkt. No. 1 at 5. He does not include further details of the allegedly unlawful testimony in the petition, but in a letter to the Court, Diaz elaborates that ADA Fasano asked him before the Grand Jury whether he kept guns hidden in his stove, or whether he had caused his bulldog to bite the complaining witness. Dkt. No. 30 at 1. Diaz further contends that “when the transcript got to me, it was missing all this (he[a]rsay), ” showing that ADA Fasano had “tampered” with the transcript. Id. Respondent argues that these claims are procedurally barred and, in any event, claims of defects in Grand Jury proceedings are not cognizable in a petition for habeas corpus relief. Dkt. No. 34 at 8-9.
Diaz presented to the state court this claim of the prosecutor's improper questioning in Grand Jury proceedings (and many other claims of misconduct in Grand Jury proceedings) in two post-conviction applications: his November 5, 2019 motion to set aside his conviction, Dkt. No. 33-13, and his May 2020 motion to dismiss the indictment under N.Y. Crim. Proc. Law § 210.20, Dkt. No. 33-14. In the former motion, Diaz does not mention the allegedly improper statements but instead argued to the trial court that he was “pretty sure that the Grand Jury didn't return indictments on all ADA Fasano, Jr. presented, ” and indicated that he “question[s] the entire indictment.” Dkt. No. 33-13 at 11.
The Court does not understand Diaz to have challenged his indictment in this Section 2254 petition. Even if he had, “[h]abeas corpus is not available to test the sufficiency of the indictment.” United States ex rel. Mintzer v. Dros, 403 F.2d 42, 43 (2d Cir. 1967); see, e.g., Marcus v. Conway, No. 04-CV-0064 (JSR), 2007 WL 1974305, at *4 (S.D.N.Y. July 5, 2007) (“The petitioner's claim, that he had a constitutional right to be tried for robbery based on a grand jury indictment free of defect, does not provide a basis for habeas review because the claim does not present a federal question, as required by 28 U.S.C. 2254(a).”). “Challenges to state indictments are only cognizable on habeas review if the indictment fails to satisfy the basic due process requirements: notice of ‘the time, place, and essential elements of the crime.'” Scott v. Superintendent, Mid-Orange Corr. Facility, No. 03-CV-6383 (RJD), 2006 WL 3095760, at *6 (E.D.N.Y. Oct. 31, 2006) (quoting Carroll v. Hoke, 695 F.Supp. 1435, 1438 (E.D.N.Y. 1988), aff'd, 880 F.2d 1318 (2d Cir. 1989)) (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)). In his petition, Diaz fails to articulate any specific error in his indictment and does not argue that he was not on notice of the time, place, and essential elements of the crime.
In the latter motion, Diaz presented the claim he raises here, that ADA Fasano used “inadmissible he[ar]say at the Grand Jury” and “evidence unworthy of belief.” Dkt. 33-14 at 5. He described ADA Fasano's “many illegal acts, ” including “bringing up Family Court issues that were never founded, along with he[a]rsay evidence to taint the [Grand] Jury.” Dkt. 33-14 at 4. Further, Diaz disputed that the transcript accurately reflected his Grand Jury testimony: “the transcripts clearly say that I said I met up with alleged codefendant John Maldonado at the alleged scene of the crime 10 minutes or shortly after (which I never said) and is (impossible) . . .” The Court understands the claims that Diaz raises here - that there were improper statements in Grand Jury proceedings and that the transcript that he received had been altered - as asserting on-the-record and off-the-record claims respectively.
In addition to claims that the prosecutor presented “hearsay” to the Grand Jury, Diaz argued to the state court that ADA Fasano had “lied about a voted true bill, ” “added charges” on which Grand Jurors had not voted, that the ADA “forged” government documents. Dkt. No. 33-14 at 24-25. He also argued that the Grand Jury was illegally constituted, and that he was not timely arraigned on the indictment. Id.
In a single order dated December 30, 2020, the trial court denied Diaz's motions. Dkt. No. 33-17. The trial court held, in relevant part, that, because Diaz was in a position to raise all of these claims in his first motion under § 440.10, filed in November 2018, and he failed to do so, his claims were procedurally barred under N.Y. Crim. Proc. Law § 440.10 (3)(c). Dkt. No. 33-17 at 4. Moreover, “insofar as these claims are record-based, defendant has unjustifiably failed to raise these claims on direct appeal. See CPL § 440.10[3][a]).” Id. at 4-5. The trial court further held that, “beyond the procedural bars, . . . each and every one of the defendant's claims is meritless.” Id. at 5. Diaz did not appeal the trial court's denial of his § 440.10 motion, and the thirty-day deadline to do so, N.Y.Crim. Proc. Law § 460.10(4)(a), has passed. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (“[B]y failing to appeal the denial of his Section 440.10 motion, [petitioner] has not fulfilled this [exhaustion] requirement.”).
Diaz states that this was because, by the time he received the decision, his appeal would have been late. Dkt. No. 1 at 5.
Given Diaz's failure to fully exhaust in the state court these claims of improper testimony in Grand Jury proceedings and tampering with the transcript, these claims should be deemed exhausted but procedurally defaulted. Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (holding that “when ‘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,' federal habeas courts also must deem the claims procedurally defaulted” (quoting Coleman, 501 U.S. 722, 735 n. 1.)); Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001) (“Even if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it is, as a result, then procedurally barred under state law.”). The December 2020 decision by the trial court was the last state court rendering a judgment on this claim, and Diaz cannot now appeal that decision further. The decision clearly states that it rests on the procedural bars in N.Y. Crim. Proc. Law § 440.10 (3)(c) and N.Y. Crim. Proc. Law § 440.10 (3)(a). See Whitley, 642 F.3d at 286 (“[P]rocedural default in the state court will . . . bar federal habeas review when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.”) (quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)). The fact that the trial court, in the alternative, stated that the claims were also meritless does not alter this conclusion. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (“[W]e are barred from reaching the merits of [the] federal claims . . . [where] a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.”).
The procedural bars codified in N.Y. Crim. Proc. Law § 440.10 (3)(a) and (c), on which the state court relied, are independent of federal law and are adequate to support the state court's judgment in this context, where the trial court actually relied on the rules. See, e.g., Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (holding that a state procedural bar is “adequate” if it “is firmly established and regularly followed by the state in question” in the specific circumstances presented) (citation omitted); Smith v Fischer, 07-CV-2966 (RWS), 2012 WL 695432, at *18 (S.D.N.Y. Mar. 5, 2012) (“Petitioner cites, and the Court is aware of, no case refusing to apply Section 440.10(3)(c) or a similar state procedural bar on similar grounds.”).
Diaz may obtain review of these claims only if he demonstrates “cause and prejudice for the procedural default, ” or that the “constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 393 (2004) (internal quotation marks and citations omitted). Diaz has not shown cause for the procedural default: he does not give any reason why he did not bring his on-the-record claim of unlawful testimony before the Grand Jury on direct appeal, or bring his off-the-record claim of “tampering” with the transcript in his first § 440.10 motion. Nor can he argue that “the factual or legal basis for a claim was not reasonably available, ” Bossett, 41 F.3d 825, 829 (2d Cir. 1994). Further, Diaz does not attempt to show that he is actually innocent of the crime. See Bousley, 523 U.S. at 623 (holding that actual innocence means “factual innocence and not mere legal insufficiency”). Because the state court's December 2020 decision resolving these claims rests on a state law ground that is independent of any federal question and adequate to support the judgment, this Court cannot review these claims.
Even if Diaz had fully exhausted his claims of alleged introduction of “hearsay evidence” and other deficiencies in the Grand Jury proceedings, and the Court could consider them, such claims are not cognizable in a federal habeas petition. See Davis v. Mantello, 42 Fed.Appx. 488, 490-91 (2d Cir. 2002) (“[C]laims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.”) (citing cases).
Moreover, Diaz's guilty plea, which the Court considers to be valid, see infra at II.B.2, cured any possible deficiency in the Grand Jury proceedings. See United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995) (“[A]ny error in the grand jury proceedings must be considered harmless in light of [petitioner's] guilty plea.”); see, e.g., Nordahl v. Rivera, No. 08-CV-5565 (KMK), 2013 WL 1187478, at *5 (S.D.N.Y. Mar. 21, 2013) (“Because Petitioner pled guilty and now seeks to challenge the sufficiency of the evidence before the Grand Jury, Petitioner's claim must be rejected.”); Smith v Burge, No. 03-CV-8648 (RWS), 2005 WL 78583, at *7-8 (S.D.N.Y. Jan. 12, 2005) (claim that prosecutor committed misconduct by admitting false evidence before state grand jury was not cognizable on habeas review after guilty plea). In sum, Diaz's claim for habeas relief with respect to his Grand Jury proceedings should be denied.
2. Voluntariness of Plea
Although Diaz does not explicitly raise the voluntariness of his guilty plea as a ground for habeas relief, he mentions in passing in his application for “immediate release” that the trial judge lied to him about his plea, including allegedly giving him misinformation about the SHOCK Incarceration program, which allows for early release. Dkt. No. 28 at 1. Diaz also repeats the allegation that Justice Greenberg “threatened me off record, ” Dkt. No. 1 at 5, which appears to refer to Diaz's allegation raised in state court that Justice Greenberg threatened him with a 20-year prison term if Diaz did not plead guilty. For the avoidance of doubt, the Court therefore addresses the voluntariness of Diaz's plea.
Justice Greenberg did indicate, on the record, that he did not think that Diaz “could get convicted of the top murder, but you could get convicted of criminal use of a firearm” and the “top on that for a pred[icate felon]” is 25 years' imprisonment. Dkt. No. 33-5 at 8. Justice Greenberg continued that, “I think reckless endangerment, three to six would be right. You limit your risk of going to jail for a long time . . .” Id.
Diaz raised claims in state court in his November 2019 post-conviction motion that his plea was (1) the result of prosecutorial and judicial misconduct, and improper pretrial conduct; (2) procured by materially false evidence; (3) obtained in violation of the federal Constitution; and (4) not knowing and voluntary because new evidence (psychological records) show his mental incompetence and inability to understand what took place. Dkt. No. 33-17 at 3-4. The trial court denied these claims because Diaz could have raised them either in his first § 440 motion or on direct appeal, and the claims were “completely unsupported by any other affidavit or evidence, such that . . . there is no reasonable possibility that any of these allegations are true.” Dkt. No. 33-17 at 5. In the alternative, the trial court denied these claims as “meritless.” Id. Diaz did not appeal the trial court's December 30, 2020 order denying his claims.
Diaz stated in his § 440.10 motion, “I suffer from many disabilit[ies] all backed by doctors documents! And all my mental health records!” Dkt. No. 13-3 at 8.
The procedural bars on which the state court relied are independent of federal law and adequate to support the state court's judgment. See, e.g., Monroe, 433 F.3d at 241. Diaz has not shown cause and prejudice or a fundamental miscarriage of justice to excuse his procedural default, see Coleman v. Thompson, 501 U.S. 722, 750 (1991), and habeas review of this procedurally defaulted claim about his plea is therefore unavailable.
Even if the Court were to consider Diaz's arguments about the validity of his guilty plea, he does not establish that his guilty plea was in any manner improper. Constitutional due process requires that a guilty plea be voluntary, knowing, and intelligent. See, e.g., Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005); United States v. Ruiz, 536 U.S. 622, 629 (2002); Bousley, 523 U.S. at 618. “The standard 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.'” Urena v. People of the State of New York, 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 of guilty entered by one fully aware of the direct consequences' of the plea is voluntary in a constitutional sense ‘unless induced by threats, misrepresentations, or perhaps by promises that are by their nature improper.'” Bousley, 523 U.S. at 619 (quoting Brady v. United States, 397 U.S. 742, 744 (1970)). “It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.'” Id. at 621 (quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)).
Moreover, “[w]hile confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable and permissible ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'” Bordenkircher v. Haves, 434 U.S. 357, 364 (1978); see also Ocasio v. Smith, No. 07-CV-2754 (BSJ) (AJP), 2008 WL 110938, at *15 (S.D.N.Y. Jan. 8, 2008) (“[A]ccurate statements concerning higher sentences that might result from trial would not have rendered a subsequent . . . guilty plea involuntary.”), adopted by Order dated Sept. 15, 2008 (Dkt. No. 9).
Diaz stated in his § 440 motion that he “was threatened / bullied with no proper understanding d[ue] to my mental disability into taking a 3 *A to 7! By Judge Ethan Greenberg of the Bronx Supreme Court Park IDV off the record on jury selection day! Who said take plea or he was going to give me #20 years! I wanted to go to trial and still do!” Dkt. No. 33-13. These allegations of coercion and involuntariness are contradicted by Diaz's sworn statements at the plea allocution.
The following discussion of a potential plea ensued on the record on May 7, 2018:
MR. BARTON: . . . I would ask the People now if they would be willing to offer reckless endangerment in the first degree with 2-to-4.
MR. FASANO: Mr. Barton and I had discussed this extensively. That is not a viable amount of time.
THE COURT: I would not go along with that either. . . If he's guilty of shooting through a door, 2-to-4 is not enough.
MR BARTON: All right. That is understood. So I just inquire of the People then if there is a sentence of reckless endangerment that they would be willing to offer.
MR. FASANO: . . .[T]he People might consider, if the Defendant indicated an interest, an offer of three and a half to seven years on a nonviolent D, but that is -I'm saying that I would have to go and ask for that, but that is as low as it is going to get.
THE DEFENDANT: I'll take it.
THE COURT: I would go along with that, too.
MR. BARTON: You want that? He says he wants it, Judge.
THE DEFENDANT: Judge, sorry. I have questions for you.
THE COURT: No. You will talk to your lawyer. I'm not answering. He's your lawyer. I'm not your lawyer.Dkt. No. 33-6 at 54-56.
After a recess, a discussion of the proposed plea took place on the record, with Diaz and his attorney present:
THE COURT: . . . It is proposed for the purpose of this disposition [that] I will dismiss all the violent felony charges, the Defendant would then plead guilty to reckless endangerment in the first degree, Count 22, a Class D nonviolent felony Penal Law section 120.20. He would be adjudicated a predicate offender, waive his right to appeal including all rulings until this point by myself and Justice Lieb. The promised sentence will be three and a half to seven with credit for time already served. I will recommend SHOCK, but I'm not sure if he's eligible and whether he's eligible or not, I can't control if he's accepted.
If he's not accepted, you will not get the plea back. If he's not eligible, he will not get the plea back and the promise will be subject to the usual conditions about admitting guilt to probation, no new crimes and appearing on the date of sentence. . . . Is that your understanding Mr. Barton?
MR. BARTON: It is.Dkt. No. 33-6 at 56-57.
Diaz was then sworn in, and he made the following plea allocution:
THE COURT: Your lawyer has said that you are going to plead guilty on the terms that I just mentioned, that is, to reckless endangerment in the first degree as a predicate, nonviolent predicate felon, this being nonviolent. The promise is three and a half to seven with the usual conditions which I just enumerated with the recommendation of SHOCK. No requirement of SHOCK. Do you understand all of that?
THE DEFENDANT: I understand.
THE COURT: Do you want to take this plea?
THE DEFENDANT: Yes.
THE COURT: Anybody forcing you to plead guilty?
THE DEFENDANT: No.
THE COURT: Did anyone make any other promises to get you to plead guilty?
THE DEFENDANT: No.
THE COURT: Have you had enough time to talk it over with your lawyer?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with your lawyer?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions you want to ask?
THE DEFENDANT: No.
THE COURT: . . . When you plead guilty, you are saying that you are, in fact, guilty, that you decided not to go to trial, and that you are willing to give up all the rights that go with trial. Do you understand all of that?
THE DEFENDANT: I understand.
THE COURT: The charge here on Count 22 of the indictment is that back on about May 27 of the year 2016 here in the County of the Bronx you committed the crime of reckless endangerment in the first degree in that with depraved indifference to human life you recklessly engaged in conduct which created a grave risk of death to another person in that you shot into the apartment door knowing that [Patterson] was inside the apartment. Do you understand that charge?
THE DEFENDANT: I understand.
THE COURT: Is that true?
THE DEFENDANT: Yes.Id. at 59-60.
Statements made at plea allocutions “carry a strong presumption of verity” and “constitute a formidable barrier in any subsequent collateral proceeding.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see, e.g., Adames v. United States, 171 F.3d 728, 732-33 (2d Cir. 1999) (statements at plea allocution “‘carry a strong presumption of verity' . . . and are generally treated as conclusive in the face of the defendant's later attempt to contradict them”). The presumption of validity applies here, where Diaz had the advice of counsel, and testified under oath that he was guilty, that he understood the consequences of his plea, and that no one forced him to plead guilty.
Diaz attempts to overcome the presumption of the truth of his statements made in the plea allocution. This belatedly raised statement that Justice Greenberg “threatened” him with the risk of a higher sentence at trial is insufficient to overcome this presumption of truth. The record also contradicts the claim that Diaz now makes that Justice Greenberg “lied” and gave him misinformation about the SHOCK program. Dkt. No. 28 at 1. The record shows that the trial judge stated that it was not within his power to control whether Diaz was accepted to the SHOCK program, that the SHOCK program was not a requirement of the plea, and that Diaz would not “get the plea back” if he was not accepted. In his November 2019 post-conviction motion, Diaz argued for the first time that he was unable to understand the proceedings but nothing in the record supports this assertion. For all of these reasons, even if the Court were able to consider Diaz's procedurally barred claim that his plea was not knowing and voluntary, the Court would deny it because he has not shown any basis for relief.
At the hearing on whether Diaz would be allowed to proceed pro se, he told the court that he had no “mental of physical condition that affects [his] ability to understand” and had never been treated for any such condition. Dkt. No. 33-1 at 23.
3. Denial of Right to Proceed Pro Se
Diaz contends that Justice Greenberg coerced him off the record to accept counsel even though Diaz wanted to proceed pro se, which can be characterized as asserting a violation of Diaz's rights arising under the Sixth Amendment to the United States Constitution. This Sixth Amendment claim appears to be unexhausted because Diaz did not raise it in state court.
Diaz claims that Justice Greenberg made two threats: a threat that Diaz could face a lengthy prison sentence if did not accept a plea deal and a threat to accept appointment of counsel and not proceed pro se. Diaz raised the threat claim regarding the plea deal in his state postconviction motions but does not appear to have squarely raised the claim of the threat about proceeding pro se.
Respondent describes Diaz's Sixth Amendment claim as a “record-based claim, ” Dkt. No. 34 at 10, which would make the claim procedurally defaulted because it was not raised on direct appeal and could not now be raised. Because Diaz argues that Justice Greenberg's alleged coercion, in violation of Diaz's right to proceed pro se, took place off the record, the Court concludes that this is an off-the-record claim. As such, Diaz could still pursue a claim that he was denied the right to proceed pro se in a § 440.10 motion in state court. Given that Diaz could theoretically still pursue this unexhausted claim, it is not necessarily procedurally barred. This habeas petition is therefore deemed a “mixed” petition with both exhausted and unexhausted claims. See Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002).
The trial court would have discretion to deny this claim, under N.Y. Crim. Proc. Law § 440.10 (3)(c), on the ground that Diaz could have raised it in earlier § 440.10 motions.
When faced with a mixed petition such as this one, a district court may: (1) dismiss the petition in its entirety without prejudice; (2) consider the unexhausted claim and deny the entire petition on the merits; (3) allow the petitioner to delete the unexhausted claim and proceed only with his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner to exhaust his unexhausted claim. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 273-74 (2005). In the interest of judicial efficiency, and because this claim is without merit, the Court elects to consider this unexhausted claim and recommends denying this ground for relief as well.
District courts may stay a habeas petition while the petitioner returns to state court to exhaust his previously unexhausted claims if “the petitioner can demonstrate that: (1) good cause exists for failing to exhaust the claims previously, (2) the claims are potentially meritorious, and (3) the petitioner did not intentionally engage in dilatory litigation tactics.” Holguin v. Lee, No. 13-CV-1492 (LGS) (JLC), 2013 WL 3344070, at *2 (S.D.N.Y. July 3, 2013) (relying on Rhines, 544 U.S. at 277-78 and Vasquez v. Parrott, 397 F.Supp.2d 452, 464 (S.D.N.Y. 2005)). As set forth below, Diaz does not demonstrate that this claim is potentially meritorious.
Where “a defendant's request to proceed pro se is informed, voluntary and unequivocal, ‘[t]he right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial.'” Williams v. Bartlett, 44 F.3d 95, 99 (1994) (citing Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir.1986)). A state court's violation of a defendant's Sixth Amendment right to self-representation requires automatic reversal of a criminal conviction and is not subject to a harmless error analysis. Id. at 99. “The right to self-representation does not attach until it is asserted ‘clearly and unequivocally.'” Id. at 100 (citing Faretta, 422 U.S. at 835). “Once asserted, however, the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one's request altogether.” Id. “Equivocation . . . is broader in the context of the Sixth Amendment, and takes into account conduct, as well as other expressions of intent.” Id.
Here, Diaz clearly and unequivocally invoked his right to proceed pro se, and did proceed pro se for many months, but, as detailed below, the record shows that he later abandoned that request. Diaz's argument, in his entirety, is as follows: “Hon Ethan Greenberg threatened me off record and forced court couns[e]l on me after I told him I didn't want counsel I was good being pro se. I wanted to go to trial. Before threat I was pro se and in the act of picking jury.” Dkt. No. 1 at 5. Diaz does not indicate when Justice Greenberg's threat occurred or what Justice Greenberg said that was threatening. Diaz had repeatedly complained about his prior appointed attorneys on the record, at his arraignment and other hearings, before those attorneys were ultimately relieved as counsel and he was permitted to proceed pro se. Dkt. No. 33-1 at 2 (“[W]e have a major conflict. Beyond major . . .”); Dkt. No. 33-1 at 14-15. Given his willingness to complain about his appointed counsel, he hardly could be considered reticent when it came to expressing his views about having counsel or not. Yet Diaz made no objection on the record when attorney Richard Barton appeared with him on March 27, 2018, Dkt. No. 33-1 at 105, which is the first time in the record before the Court that Barton entered an appearance on Diaz's behalf.
Diaz's claim that he had wanted to continue proceeding pro se is also contradicted by his sworn statements at the plea allocution that he was satisfied with counsel. Dkt. No. 33-6 at 59. Notably, Diaz also did not raise the issue that he was prevented from proceeding pro se at the sentencing proceeding, Dkt. No. 33-7, which would have been another logical time for him to have done so. Finally, the Court notes that Diaz made arguments in his state post-conviction motion that are inconsistent with the claim that he now makes that he did not abandon his request to proceed pro se. Diaz argued, for example, in his post-conviction motions that he is incompetent to understand the proceedings and that he wants “help from a court appointed attorney.” Dkt No. 33-13 at 10.
In light of this record, Diaz's bare statement that Justice Greenberg threatened him, without any information about what he said, is wholly insufficient to overcome Diaz's sworn statements during the plea allocution. I therefore recommend that the petition not be stayed pending exhaustion in the state court of this non-meritorious claim and further recommend that this ground for relief be denied.
4. Complaining Witness
Diaz asserts two grounds for relief related to the complaining witness, Cinnamon Patterson. First, he argues that Patterson was subject to an outstanding warrant at the time of trial, which police and prosecutors ignored. Diaz contends that this demonstrates prosecutorial misconduct. Dkt. No. 38 at 2-3. Second, Diaz contends that Patterson offered to “drop the charges” and stop cooperating with the prosecution in exchange for money from him.
Diaz specifically raised the first argument in his November 2019 § 440.10 motion. Dkt. No. 33-13 at 8 (“Main witness also has warrants that was ignored by DA and police (illegal) judge knew this also”). The trial court denied the motion because, among other reasons, Diaz could have raised the claims that he was making in his earlier § 440.10 motion but did not do so. See N.Y. Crim. Proc. Law § 440.10 (3)(c).
Review of this claim in a habeas petition is unavailable. Because the procedural bar on which the trial court relied is independent of federal law and adequate to support the judgment, the claim is deemed exhausted and procedurally barred. See, e.g., Monroe, 433 F.3d at 241. Diaz makes no argument that there was “cause and prejudice for the procedural default, ” or that the “constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense, ” Dretke, 541 U.S. at 393.
Even if the Court could review this claim, Diaz's allegations that the prosecutor treated his criminal charges differently than the charges pending against the complaining witness, do not demonstrate prosecutorial misconduct or that any constitutional defect tainted Diaz's criminal proceedings. Prosecutors have discretion in deciding whether to pursue charges. See Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972) (holding that prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court”). Diaz and the complaining witness were not similarly situated, and the prosecutor had discretion to elect not to prosecute someone had come forward as a complaining witness, even if she had a pending warrant in a different case.
Next, turning to Diaz's allegations that the complaining witness attempted to extort money from him (in order to stop cooperating with the prosecutor), it does not appear that these allegations were specifically exhausted in state court. The Court nevertheless elects to consider this unexhausted claim and recommends denying this ground for relief.
Although this information would have been a basis for challenging the credibility of the complaining witness if the matter had gone to trial, there was no trial because Diaz admitted to the criminal conduct and pled guilty. It therefore does not appear that these allegations, bearing on the lack of credibility of the witness, violate Diaz's rights under federal law. Diaz's guilty plea, which the Court has found valid, see supra at II.B.2, cures any deficiency arising from this alleged offer on the part of the complaining witness to accept a bribe. Accordingly, Diaz's claim for habeas relief based on matters relating to the complaining witness should be denied.
5. Insufficient Evidence
Diaz challenges the sufficiency of the evidence, arguing vaguely that there was “nothing t[ie]ing me to [the] crime.” Dkt. No. 1 at 5. Because Diaz was convicted pursuant to his guilty plea, without any evidence having been presented at a trial, Respondent argues that this ground for relief can only be understood as an argument that the evidence presented to the Grand Jury was insufficient. Dkt. No. 34 at 9.
Diaz did not raise any sufficiency of evidence claim on direct appeal. He states that he raised “lack of evidence to support [the] claim” as a ground for post-conviction relief in his second § 440.10 motion in state court. Dkt. No. 1 at 3. The trial court denied Diaz's § 440.10 motion raising this claim on the independent and adequate state law ground that Diaz could have raised the claim in his earlier post-conviction motion and failed to do so. This ground for relief is thus procedurally barred, and habeas review of this claim is unavailable.
Even if the claim had been exhausted in state court, claims relating to sufficiency of evidence in Grand Jury proceedings are not cognizable in federal court. Davis, 42 Fed.Appx. at 490-92 (“[C]laims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.”). Moreover, Diaz's guilty plea, which the Court finds valid, cured any possible deficiency in the grand jury proceeding. See United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995) (“[A]ny error in the grand jury proceedings must be considered harmless in light of [petitioner's] guilty plea.”); see, e.g., Nordahl v. Rivera, No. 08-CV-5565 (KMK), 2013 WL 1187478, at *5 (S.D.N.Y. Mar. 21, 2013) (“Because Petitioner pled guilty and now seeks to challenge the sufficiency of the evidence before the Grand Jury, Petitioner's claim must be rejected.”). Diaz's claim for habeas relief based on insufficient evidence should therefore be denied.
6. Speedy Trial Violations
i. Motion Under N.Y. Crim. Proc. Law § 30.30
Diaz asserts, as a ground for relief in this petition, that his lawyer “didn't put in [a] 30-30 motion when he was spose [sic] to, ” Dkt. No. 1 at 5, which the Court understands as a reference to New York's speedy trial statute, N.Y. Criminal Procedure Law § 30.30. In opposition, Respondent notes that the trial court denied Diaz's two motions under N.Y. Crim. Proc. Law § 30.30. Dkt. No. 34 at 9-10. During a discussion of Diaz's first § 30.30 motion, filed pro se, Justice Lieb explained at the October 25, 2017 hearing that she had found that the time chargeable to the government “at most . . . was 50 days, ” because of motion practice and other things that “stopped the clock, ” including time periods in which Diaz's co-defendant was not ready to proceed. Dkt. No. 33-1 at 59, 62-63. It appears from statements at the November 15, 2017 hearing, that Justice Lieb denied this pro se § 30.30 motion, and Diaz appealed the denial. Dkt. No. 33-1 at 75 (“I sent [the Notice of Motion to Appeal the § 30.30 decision] to the Appellate Division already.”). The Appellate Division, First Department, did not reach the merits of Diaz's appeal from the denial of pro se § 30.30 motion..
Diaz clarified at the hearing before Justice Lieb that initially his case was proceeding separately from that of the co-defendant and only later were the cases “put together, ” Dkt No. 331 at 59, before ultimately being severed for trial.
The Appellate Division, First Department, recharacterized Diaz's October 31, 2017 appeal from the denial of his motion under N.Y. Crim. Proc. Law § 30.30 as a timely notice of appeal from his conviction and sentence. Dkt. No. 33-15 at 3, n.3. Diaz had already pled guilty when the appeal from the § 30.30 motion was added to the calendar for 2019. Id.
Diaz's second motion under N.Y. Crim. Proc. Law § 30.30, filed by attorney Barton, Dkt. No. 33-2 at 38, was heard by Justice Greenberg, who stated on the record at the April 4, 2018 hearing that he had denied the motion. Dkt. No. 33-4 at 19. Nothing in the record suggests that there was an appeal from the denial of the second § 30.30 motion, which issued shortly before Diaz pleaded guilty. Because Diaz cannot now appeal the April 2018 decision, this claim appears to be procedurally defaulted and unreviewable.
Even if Diaz had fully exhausted this claim in state court, a violation of N.Y. Crim. Proc. Law § 30.30 does not present a cognizable ground for habeas relief. It is well-established that “Section 30.30 is a statutory time frame in which the People of the State of New York must be ready for trial; Section 30.30 is not, as such, a statutory embodiment of the constitutional guarantee to a speedy trial.” Gibriano v. Att'y Gen. of State of N.Y., 965 F.Supp. 489, 492 (S.D.N.Y. 1997). Motions under Section 30.30 thus do not raise a federal constitutional claim. Dearstyne v. Mazzuca, 48 F.Supp.3d 222, 233 (N.D.N.Y. 2011) (“[A] claimed violation of [CPL § 30.30] does not raise a federal constitutional claim and is therefore not cognizable on habeas review.”).
For a claim that a defendant has been deprived of the federal constitutional right to a speedy trial, some of the factors that courts should assess are: “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). In terms of the reason for delay, “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. at 531.
ii. Ineffective Assistance of Counsel for Failure to File § 30.30 motion
Diaz's argument that his attorney failed to bring a § 30.30 motion at the appropriate time, may also be liberally construed as a claim for ineffective assistance of counsel. Diaz brought an ineffective assistance of counsel claim in state court in his November 2019 motion under § 440.10, but he raised counsel's failures in connection with plea negotiations - not in connection with a § 30.30 motion. Moreover, the trial court rejected that ineffective assistance of counsel claim on independent and adequate state procedural grounds (N.Y. Crim. Proc. Law § 440.10 (3)(c)), in a decision that was not appealed. This procedural bar, which Diaz has not overcome by showing cause for the procedural default, precludes habeas review.
Diaz also raised the claim that his counsel was ineffective in failing to engage in plea negotiations in his first motion under N.Y. Crim. Proc. Law § 440. The trial court denied that claim on the merits because “it was plain from the written record that counsel did vigorously engage in plea bargaining on defendant's behalf both on the date of his plea and on prior occasions . . .” Dkt. No. 33-12 at 3. This, however, is not the same ineffective assistance of counsel claim that Diaz raises in this motion.
See also Pierotti, 834 F.3d at 178 (2d Cir. 2016) (“New York courts uniformly hold that where, as here, an ineffective assistance of counsel claim turns on facts that are outside of the trial-court record, the claim must be brought in collateral proceedings, not on direct appeal.”).
Even if the Court were able to adjudicate this ineffective assistance of counsel claim, it is without merit. The Supreme Court has articulated a two-part inquiry for claims of ineffective assistance of counsel: a movant must demonstrate, first, that his lawyer's performance “fell below an objective standard of reasonableness, ” Strickland v. Washington, 466 U.S. 668, 688 (1984), and, second, that there is a “reasonable probability” that, but for counsel's error, “the result of the proceeding would have been different, ” Id. at 694. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700.
Here, the facts do not show deficient performance. Defense counsel Barton began representing Diaz in March 2018. Dkt. No. 33-1 at 105. Shortly thereafter, Barton made a § 30.30 motion, which the trial court denied on April 4, 2018, Dkt. No. 33-4 at 19, and the matter was set for trial on May 2, 2018. The parties appeared for trial on Wednesday, May 2, 2018, but the prosecutor stated on the record that they had “lost contact” with the complaining witness. Dkt. No. 33-5 at 5. Defense counsel made a motion for Diaz's immediate release; the trial court denied that motion but indicated that he would consider a “bail reduction” if the prosecutor was not ready to proceed on Monday, May 7, 2018. Dkt. No. 33-5 at 7. On May 7, 2018, the complaining witness was available, and the process of jury selection began. Diaz entered a guilty plea the same day.
The record shows that defense counsel Barton made both a § 30.30 motion and a motion for Diaz's immediate release based on delay in proceeding to trial. Diaz cannot show that Barton's performance, in failing to file another § 30.30 motion, “fell below an objective standard of reasonableness, ” Strickland, 466 U.S. at 688, or that, if Barton had done so, there is a “reasonable probability” that “the result of the proceeding would have been different.” Id. at 694. Accordingly, Diaz does not have a cognizable claim for relief based on the denial of his § 30.30 motions, or a meritorious claim of ineffective assistance of counsel for counsel's failure to file an additional § 30.30 motion. Therefore, even if this procedurally barred claim were considered on the merits, it should be denied.
7. Newly Discovered Evidence
Diaz asserts that he has “newevidence” that shows the prosecution sought four extensions of time to respond to his November 2019 § 440.10 motion. He attaches to the petition this “new evidence, ” that is, the prosecutor's letter to the trial court seeking a fourth extension of time to respond to a motion. Dkt. No. 1 at 19.
Any delay on the part of the prosecution in briefing its opposition to Diaz's motion, which was filed after Diaz had already pleaded guilty and was sentenced, does not appear to implicate any conceivable federal right cognizable on habeas review. See, e.g., Wilson v. Corcoran, 526 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”) (emphasis original). This ground does not provide any basis for relief.
The trial court's decision also offers several clues about the sources of delay. The court noted that “Mr. Diaz frequently added pro se claims to his filing, necessitating requests for continuances by the People, and significantly delaying the final resolution of his motion.” Dkt. No. 33-17 at 2. The court also noted that Diaz had filed an “avalanche” of letters, “reiterating and augmenting previously proffered claims, ” as well as raising new claims. Id. at 3. Moreover, due to Diaz's “multifarious applications, ” the prosecutor moved to enjoin him from making further submissions. Although the court agreed that Diaz had “strained the adjudication process by tacking on additional pro se submissions, ” the court denied the prosecutor's motion. Id. at 6.
8. False Imprisonment
Diaz writes “false imprisonment” as a ground for relief in this petition. Dkt. No. 1 at 7. He provides no additional information about the basis for this claim or whether he raised it in the state court. Respondent states that it “has considered petitioner's allusions to ‘false imprisonment as being part of his sentencing claim, ” Dkt. No. 34 at 14, n.4, which the Court understands to refer to Diaz's “excessive sentence” ground for relief. See infra at II.B.10. Diaz's allegation of “false imprisonment” does not invoke a violation of a federal right and does not provide any separate basis for relief.
9. Waiver of Right to Appeal
Diaz challenges the validity of his appellate waiver, though he does not explain the basis for his challenge. The Court therefore assumes that Diaz attacks his appellate waiver on the same grounds that he raised on direct appeal. Respondent argues that there was “nothing improper in the court's treatment of petitioner's waiver of his right to appeal.” Dkt. No. 34 at 15. The Court recommends denying this claim as moot.
“The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). The mootness doctrine, which derives from the case or controversy requirement under Article III, Section 2, of the United States Constitution, Id., prohibits federal courts from issuing advisory opinions in cases that do not require resolution of a dispute, Hall v. Beals, 396 U.S. 45, 48 (1969) (mootness doctrine derived from Article III's prohibition on issuing advisory opinions).
Where the state appellate court does not enforce an appeal waiver and proceeds to adjudicate the appeal, a habeas petition challenging the validity of the appellate waiver does “not present a basis for habeas relief . . . and [is] . . . moot.” Jacob v. Capra, No. 13-CV-4586 (RJD), 2016 WL 5349783, *1 (E.D.N.Y. Sept. 23, 2016) (declining to address appellate waiver claims because state appellate court had concluded that appellate waiver was unenforceable, permitting the appellate court to adjudicate the other claims). By contrast, where the state appellate court enforces the waiver, a habeas petitioner's claim regarding waiver of appeal is not necessarily moot. See, e.g., Spikes v. Graham, No. 9:07-CV-1129 (DNH) (GHL), 2010 WL 4005044, at *12 (N.D.N.Y. July 14, 2010) (“The Appellate Division found that Petitioner's excessive sentence claim was barred by the waiver of appeal and, as a result, did not reach the substantive merits of that claim. Therefore, Petitioner's claim regarding his waiver of appeal is not entirely moot.”), adopted by 2010 WL 3999474 (Oct. 12, 2010).
Here, Diaz's challenge to his appellate waiver is moot because the Appellate Division did not apply the appellate waiver and reached the merits of his excessive sentence ground. See Diaz, 192 A.D.3d at 410 (“[F]inding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.”). Had it applied the waiver, it would not have reached the merits of this ground. A ruling concerning the validity of Diaz's appellate waiver thus is no longer required, and this ground for relief is moot.
10. Excessive Sentence
Diaz challenges his sentence as excessive. Respondent argues that (1) Diaz did not present his excessive sentence claim in federal constitutional terms, either on direct appeal to the Appellate Division, First Department, or in his leave application to the New York Court of Appeals; and (2) even if he had exhausted an Eighth Amendment claim in state court, this ground for relief fails because Diaz's sentence was within the statutory range. Dkt. No. 34 at 11.
A defendant may fairly present the federal constitutional nature of the claim to the state court by: (1) relying on federal cases employing federal constitutional analysis, (2) relying on state cases employing federal constitutional analysis in factually similar situations, (3) asserting the claim in terms that call to mind a specific constitutional right, or (4) alleging a pattern of facts that is well within the mainstream of constitutional litigation. Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir. 2005) (relying on Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)). Where state and federal standards are only “somewhat similar rather than ‘virtually identical, '” presenting a state law claim does not suffice to fairly present federal law claim. Smith v. Duncan, 411 F.3d 340, 349-50 (2d Cir. 2005) (citing Duncan v. Henry, 513 U.S. 364 (1995)).
Here, appellate counsel argued on direct appeal that Diaz's “sentence is excessive and should be reduced [1] when his employment history and supportive family demonstrate his rehabilitative potential and [2] his co-defendant received a dramatically shorter sentence.” Dkt. No. 1 at 36; Dkt. No. 33-18. The appeal brief cited to state law that gives the Appellate Division “broad plenary power to modify a sentence” if the interest of justice warrants, N.Y. Crim. Proc. Law § 470.15, and urged the court to take note of the fact that Diaz is a “married man and dedicated father of two with an impressive work ethic and employment history.” Dkt. No. 1 at 38.
In contrast to state law, the Eighth Amendment “forbids only extreme sentences that are grossly disproportionate to the crime.” United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008) (quoting Harmelin v. Michigan, 501 U.S. 957, 960 (1991) (Kennedy, J., plurality opinion) (internal quotation marks omitted)). Diaz's argument to the Appellate Division that his negotiated sentence should be reduced “in the interest of justice, ” relied only on state law and said nothing about his sentence being disproportionate to the crime or outside the statutory range. Accordingly, Diaz's arguments did not alert the state court to the federal nature of his claim. His Eighth Amendment claim is therefore unexhausted and not cognizable on habeas review.
The Court nevertheless elects to consider this unexhausted Eighth Amendment claim and recommends denying this ground for relief because it is plainly without merit. The term of a sentence does not violate the Eighth Amendment if the sentence falls within the statutory range. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.”). Diaz pled guilty to reckless endangerment in the First Degree, a class D felony, N.Y. Penal L. § 120.25, and he was adjudicated a second felony offender (non-violent), N.Y. Penal Law §§ 70.06 (3)(d), (4)(b), for which the statutory maximum is seven years. The trial court imposed the precise sentence agreed upon in the plea deal - an indeterminate sentence of three-and-one-half to seven years' incarceration. Because Diaz's sentence is within the range prescribed by state law, and is therefore not grossly disproportionate to the crime, any claim that his sentence violates the Eighth Amendment is without merit.
The Court concludes, infra at B.11, that Diaz's challenge to the predicate felon adjudication fails.
11. Motion for Immediate Release: Predicate Felon Determination
By application received October 5, 2021, Dkt. No. 28, Diaz argues that he is entitled to immediate release because Justice Greenberg (1) illegally sentenced him as a predicate felon; and (2) informed him that he would be going into the SHOCK program “as [his] plea” allegedly specified, but Justice Greenberg “l[ie]d to” Diaz. Dkt. No. 28 at 1. The Court has addressed Diaz's arguments that he was misinformed about the SHOCK program, supra at II.B.2, when it rejected his claim that his plea was not knowing and voluntary.
Turning to Diaz's claim that he was “illegally sentenced as a predicate felon, ” Diaz does not explain in what respect he contends that the predicate felon determination was “illegal.” It is therefore unclear if Diaz's challenge to the predicate felon determination is based on an alleged violation of federal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
Moreover, Diaz has not shown that he exhausted this claim by raising it in the state court. Where a defendant unjustifiably failed to argue a constitutional violation on direct appeal despite a sufficient record, New York law requires a state court to deny a motion to vacate a judgment based on that constitutional violation. See N.Y. Crim. Proc. Law § 440.10(2)(c); Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (noting that the purpose of § 440.10(2)(c) “is to prevent [Section] 440.10 from being employed as a substitute for direct appeal when [the] defendant was in a position to raise an issue on appeal . . . or could readily have raised it on appeal but failed to do so.”) (quoting People v. Cooks, 67 N.Y.2d 100, 103 (1986)). Because Diaz does not provide any basis for finding that his predicate felon determination violates federal law, it is not apparent that there is any reason this claim for relief could not have been raised on direct appeal. The claim appears to be procedurally defaulted, and Diaz makes no argument that there was cause for the procedural default. Habeas review of this procedurally defaulted claim is therefore unavailable.
Even if the Court were to consider the claim, it should be denied. The record shows that on May 7, 2018, after Diaz's guilty plea allocution, the Court confirmed that Diaz was a predicate felon:
THE COURT: Okay. Let's arraign the defendant on the predicate felony statement.
THE CLERK: Are you Miguel Diaz?
THE DEFENDANT: Yes.
THE CLERK: Is that your attorney beside you?
THE DEFENDANT: Yes.
THE CLERK: The District Attorney of Bronx County has filed a statement specifying that by judgment entered in Supreme Court of Bronx County on May 2, 2008, you were convicted of criminal possession of stolen property and sentenced to conditional discharge. Have you received a copy of the statement? THE DEFENDANT: Right here. Yes.
THE CLERK: Have you discussed the statement with your attorney?
THE DEFENDANT: Yes.
THE CLERK: Under the law, you may challenge any allegations in the statement.
If you do not challenge any allegations in the statement, you will be deemed to have admitted to those allegations. Failure to challenge the constitutionality of the previous conviction in the statement, at this time, is a waiver on your part of any claim of unconstitutionality. Do you understand the statement?
THE DEFENDANT: I do.
THE CLERK: Do you admit that you are the person named in the statement?
THE DEFENDANT: I do.
THE CLERK: Do you wish to challenge any allegations in the statement?
THE DEFENDANT: No.
THE CLERK: Do you wish to challenge the constitutionality of this conviction?
THE DEFENDANT: No.
THE CLERK: Your Honor, do you now adjudicate the defendant a predicate?
THE COURT: I do. Is the plea acceptable to the People?
MR. FASANO: It is, your Honor.
THE COURT: The plea is accepted by the Court. The promise as already set forth is subject to the usual conditions. The defendant will be remanded for I & S....Dkt. No. 33-6 at 62-63.
Under New York law, Diaz's prior felony conviction for criminal possession of stolen property necessarily makes him a predicate felon. See N.Y. Penal Law § 70.06. Moreover, Diaz waived any challenge to his prior felony conviction on the record, and he does not provide anything to support his allegation that the judge “illegally sentenced [him] as a 2nd time predicate felon.” Dkt. No. 28. This habeas claim is therefore without merit. See, e.g., Corso v. Walker, 253 F.Supp.2d 454, 458 (E.D.N.Y. 2003) (rejecting challenge to predicate felon enhancement, among other reasons, because petitioner “admitted to the accuracy of the 1981 conviction at his 1988 sentencing”).
12. Rodriguez Hearing
“A defendant who seeks to suppress an identification on the ground that it was obtained through impermissible police procedures is presumptively entitled to a Wade hearing to ‘determine whether any police suggestiveness tainted the identification procedure.'” Williams v. Phillips, 433 F.Supp.2d 303, 316 (W.D.N.Y. 2006) (quoting People v. Dixon, 85 N.Y.2d 218, 225 (1995), and referring to United States v. Wade, 388 U.S. 218, 242 (1967)). The trial court may dispense with a full Wade hearing where the prosecution alleges that the identifying witness and the defendant are known to each other. Id. at 316; see also People v. Rodriguez, 79 N.Y.2d 445, 449 (1992) (“When a crime has been committed by a family member, former friend or longtime acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person.”) (citing People v Collins, 60 N.Y.2d 214 (1983)). “In that case, the suppression court then may simply require the prosecution, at a so-called Rodriguez hearing, to provide evidence of the extent of the relationship between the witness and defendant.” Williams, 433 F.Supp.2d at 316. Generally, the “failure to hold a [Wade] hearing, even if erroneous, will not cross the threshold of a constitutional violation.” Alvarez v. Fischer, 170 F.Supp.2d 379, 384 (S.D.N.Y. 2001) (citing Watkins v. Sowden, 449 U.S. 341 (1981)); Id. at 385 (“[E]ven if a constitutionally tainted identification were admitted at trial, its admission would still be subject to harmless error analysis.”).
By letter to the Court dated August 22, 2021, Diaz sought to add to his Section 2254 petition a claim related to the “Rodriguez hearing” that was held to determine Maldonado's prior familiarity with Diaz. Dkt. No. 24. Diaz argues that it was error for Justice Greenberg to conclude that Maldonado had sufficient familiarity with Diaz to eliminate the issue of police suggestiveness in Maldonado's identification of him. Diaz argues that Maldonado's testimony at the Rodriguez hearing was “98% ‘I don't know' and ‘I can't recall, '” Dkt. No. 24 at 1, and therefore there was insufficient evidence to support Justice Greenberg's conclusion that they knew one another. Respondent argues that (1) the claim is unexhausted, and (2) the factual determination was reasonable and thus Diaz cannot prevail under 28 U.S.C. § 2254 (d)(2). Dkt. No. 34 at 15.
As an initial matter, Diaz failed to raise this record-based claim on direct appeal. Under N.Y. Crim. Proc. Law § 440.10(2)(c), where a defendant unjustifiably fails to argue a constitutional violation on direct appeal despite a sufficient record, New York law requires a state court to deny a motion to vacate a judgment based on that constitutional violation. Because this claim is record-based and could have been raised on appeal but was not, it appears that Diaz cannot now obtain relief in state court on this claim. This claim is therefore deemed exhausted and procedurally defaulted and is not cognizable on habeas review.
Even if this claim were not procedurally defaulted, the challenged state court decision was not (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision; and was not (2) “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). Diaz has not articulated how there is any federal dimension to a claim that the trial judge improperly weighed the evidence about the extent to which Diaz and Maldonado knew one another. He therefore does not succeed in establishing, under § 2254(d)(1), that the state court's decision was an unreasonable application of clearly established law, as determined by the Supreme Court.
Diaz also does not establish that the trial judge's decision that the parties knew one another well enough for the identification to be confirmatory (and immune from suggestibility) was an unreasonable determination of the facts, in light of the evidence presented. The trial court, in discussing on the record his reasons for finding that they did know one another, indicated that he also relied on Diaz's own testimony before the Grand Jury that (1) Maldonado was a neighbor and that when he “was stuck at work and needed someone to help out the mother of his children, he chose his so-called cousin [Maldonado] as the person to do the job . . . [Maldonado] agreed to do that for [Diaz]”; (2) “We all know each other, ” when asked whether other neighbors knew Maldonado; and (3) “after the shooting, he called [Maldonado] again to find out what happened. Dkt. No. 33-4 at 24-25.
The trial court also found that Maldonado knew Diaz, “both by his given name and by his nickname “Guns and Butter” or, more simply ‘Butter, '” that Maldonado knew where Diaz lived, had been to his home, and had seen Diaz together with Cinnamon Patterson. Id. at 23. The court further relied on Maldonado's statements that he “bought marijuana from [Diaz] on a number of occasions and sometimes smoke marijuana with [Diaz].” Id. at 22. The trial court found that “[a]t one point, about three months prior to the shooting alleged in this case, the relationship was so bad that [Maldonado] feared that [Diaz] might want to shoot” him, but that “the two men were back on good terms by the time of the crime.” Id. at 23.
Diaz's argument that Maldonado's testimony at the Rodriguez hearing was an insufficient basis for the state court's decision overlooks all of the other evidence supporting that determination. Accordingly, Diaz does not succeed in showing, under § 2254(d)(2), that this was an unreasonable determination of the facts. I therefore recommend that this claim be denied as procedurally forfeited and as without merit.
III. CONCLUSION
For all the foregoing reasons, I recommend that Diaz's petition for a writ of habeas corpus be denied.
PROCEDURE FOR FILING OBJECTIONS
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 Order and Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Schofield. If Diaz does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for the Respondent. Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).