Opinion
17 Civ. 1091 (PMH)(PED)
08-30-2021
TYRONE FARMER, Petitioner, v. JOHN COLVIN, Respondent.
REPORT AND RECOMMENDATION
Paul E. Davison, U.S.M.J.
TO: THE HONORABLE PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Tyrone Fanner ("Petitioner"), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging bis conviction and sentence upon a plea of guilty in New York Supreme Court, Westchester County. [Dkt. 2.] On June 13, 2013, Petitioner was convicted of burglary in the second decree, criminal mischief in the fourth degree, criminal possession of stolen property in the fifth degree, and petit larceny, and sentenced to an aggregate often years incarceration with five years of post-release supervision. Petitioner is currently serving his sentence at the Shawangunk Correctional Facility in Ulster County, New York. The Petition comes before me pursuant to an Order of Reference entered March 28, 2017. [Dkt. 9.] For the reasons that follow, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition, Respondent's Opposition [Dkt. 21-22], and Petitioner's Reply [Dkt. 25].
On March 23, 2012, Petitioner unlawfully entered and burglarized his upstairs neighbors' apartment in Peekskill, New York. Petitioner gained access to the apartment by climbing his balcony, which was directly beneath the victims' balcony, and breaking the victims' glass terrace door. The victims were not home at the time. Petitioner stole a laptop computer, speakers, a charging station, a watch, and a ring. Petitioner placed the watch and the ring in his pocket and stored the remaining items in a duffel bag, which he hid under debris in a nearby parking lot.
The victims returned home in the early hours of March 24, 2012 and called the police. Peekskill Police Detective Ray Henderlong and Officer Christopher Vazeos arrived that morning. Seeing Petitioner's balcony directly beneath the point of entry, Detective Henderlong knocked on Petitioner's door and was greeted by Marybell Barber who lived with Petitioner and had coincidentally known Detective Henderlong for many years. She invited Detective Henderlong and Officer Vazeos into the apartment. Detective Henderlong spoke with Ms. Barber for approximately 30 minutes, and she told him that Petitioner was in the bedroom.
Detective Henderlong knocked on the bedroom door and entered. He spoke with Petitioner while Petitioner sat in bed. Petitioner was not placed under arrest. Detective Henderlong asked Petitioner if he had seen or heard anything suspicious that night. Before answering, Petitioner picked up his cell phone, pretended to dial a phone number, and stated out loud, "Mikey, I have to talk to you." Petitioner pretended to hang up the phone and told Detective Henderlong that he did not hear or see anything suspicious that night. Ms. Barber entered the room and continued chatting with Detective Henderlong. At some point, Petitioner stated that "Mikey" probably burglarized the upstairs neighbors.
Petitioner explained that he observed "Mikey" climb into the victims' apartment from his balcony using a grappling hook. He stated that he gave "Mikey" a duffel bag to store the stolen goods, and that "Mikey" paid Petitioner $20.00 to drive him to the Salvation Army parking lot to hide the duffel bag. Petitioner also stated that he purchased the laptop from "Mikey" for $100.00. Petitioner offered to show police the location of the stolen goods. Petitioner got dressed, entered Detective Henderlong's car, and directed Detective Henderlong to the parking lot. He stepped out of the vehicle and retrieved the duffel bag from underneath the pile of debris. Petitioner then opened the bag, revealing some of the stolen items.
Detective Henderlong drove Petitioner to the police station and placed him in an interview room. Petitioner was not under arrest at the time and was not placed in handcuffs. Detective Henderlong read Petitioner the Miranda warnings. In a recorded interview, Petitioner stated that he wanted to speak with police and waived his right to an attorney. Detective Henderlong offered Petitioner food and water, and Petitioner requested coffee. Petitioner also signed a Miranda statement waiving his right to an attorney and agreeing to speak with police.
Detective Henderlong and Officer Vazeos questioned Petitioner. Petitioner produced the stolen ring and watch from his pocket, which he stated "Mikey" gave to him in exchange for driving "Mikey" to the Salvation Army to hide the stolen goods. Petitioner again stated that "Mikey" committed the burglary with Petitioner's assistance. During the interview, Detective Henderlong left the room with Petitioner's phone and handed it to Officer Vazeos. Officer Vazeos, without a warrant or Petitioner's consent, searched the phone and found no evidence of a "Mikey" or that Petitioner had placed a call to "Mikey" that morning. Officer Vazeos discussed his findings with Detective Henderlong outside of the interview room.
Detective Henderlong returned to the interview room and asked Petitioner why "Mikey" did not appear in his phone, and why there was no evidence of Petitioner making a phone call that morning. Petitioner stated that he had deleted "Mikey's" contact information and call history. Petitioner stated that "Mikey's" name was actually "Gentry," but later returned to calling him "Mikey." The interview continued for another hour. Petitioner admitted that "Mikey" was not a real person, that he had committed the burglary himself, and that he did so because the victims were a same-sex couple. Petitioner was then placed under arrest.
B. Procedural History
1. Initial Proceedings
Petitioner was initially charged with burglary in the second degree as a hate crime under N.Y. Penal Law §§ 140.25(2) and 485.05. A felony hearing was held on April 3, 2012 (J. Maher), at which Petitioner appeared with counsel. [Dkt. 45.] Detective Henderlong was the only witness to testify. He testified that he responded to a residential burglary in the early hours of March 24, 2012 in Peekskill, New York. Id. at 7-9. After arriving at the apartment complex, he spoke with Petitioner who stated that "Mikey" had committed the burglary with Petitioner's assistance. Petitioner told him that he assisted "Mikey" by giving him a duffle bag and allowing "Mikey" onto Petitioner's terrace to access the victims' apartment with a grappling hook. Id. at 13-15. Petitioner located the stolen property, including the laptop hidden in the parking lot and the watch and ring which were in his pocket. Id. at 15-22. Detective Henderlong testified that Petitioner eventually admitted that "Mikey" was not real and that Petitioner committed the burglary motivated by the victims' sexual orientation. Id. at 22-23. The court found reasonable cause that Petitioner had committed a felony and referred the matter to the grand jury. Id. at 43.
The April 3, 2012 felony hearing is incorrectly dated April 3, 2011.
Petitioner appeared and testified before the grand jury on May 9, 2012. Petitioner was indicted under Westchester County Indictment 12-0448 under the following counts: burglary in the second degree under N.Y. Penal Law § 140.25(2); criminal mischief in the fourth degree under N.Y. Penal Law § 145.00(1); two counts of criminal possession of stolen property in the fifth degree under N.Y. Penal Law § 165.40; and petit larceny under N.Y. Penal Law § 155.25. [Dkt. 22-1 at 22-25.] Petitioner was arraigned on the indictment on May 25, 2012.
2. Discovery and Omnibus Motion
On June 6, 2012, Petitioner fried and served consent discovery, which included a demand for Petitioner's recorded interview with Detective Henderlong. On July 23, 2012, Petitioner filed an omnibus motion through counsel before the trial court (J. Neaiy) seeking, among other things, all exculpatory evidence in the state's possession pursuant to Brady, suppression of the use of Petitioner's prior convictions under Sandoval, suppression of statements Petitioner made to police pursuant to Huntley, and to inspect and dismiss the indictment. [Dkt. 22-1 at 1-21.] By decision dated August 17, 2012, the trial court granted Petitioner a Huntley and Sandoval hearing, granted Petitioner's motion for discovery to the extent it had not already been provided, and granted the request to inspect the grand jury minutes. [Dkt. 22-3.] The court denied the motion in all other respects. Id.
3. Huntley/Sandoval Hearing
Petitioner's omnibus motion was referred for a hearing, which began on April 3, 2013 (J. Adler). [Dkt. 46.] Detective Henderlong was the only witness. He testified that he met with Ms. Barber and Petitioner on the morning of March 24, 2012. When they spoke, Petitioner appeared to have made a call on his phone before stating that "Mikey" committed the burglary using a grappling hook. Id. at 6-12. Detective Henderlong testified that he told Petitioner that the victims may not seek to press charges if the property was returned, and Petitioner replied that he knew the location of the property and volunteered to take police to its location. Id. at 13-14. Detective Henderlong drove while Petitioner sat in the front seat giving him directions to the Salvation Army. Id. at 14-15. While driving, Petitioner explained that he gave "Mikey" the duffel bag. Id. at 1546.
Detective Henderlong testified that after Petitioner retrieved the duffel bag, he took Petitioner to the police station. Petitioner was not placed in handcuffs, and Petitioner's interview was recorded on audio and video. [Dkt. 46 at 16-17.] The recording was played for the court. Id. at 19-30. Both Detective Henderlong and Petitioner signed a Miranda statement, which was entered into evidence. Id. at 20-21. Detective Henderlong placed a check mark on the form indicating "not under arrest" and wrote on the form "and are free to leave at any time." Id. at 21. On cross examination, Detective Henderlong testified that he intentionally lied to Petitioner during the interview that he had received a call from Petitioner's telephone provider and that there were cameras at the Salvation Army. Id. at 44-45.
The hearing continued on April 5, 2013. Detective Henderlong testified that Petitioner invited him into his room when they spoke the morning of March 24, 2012. [Dkt. 47 at 86.] He testified that he did not see Petitioner take any medication that morning. Id. at 88-89. He testified that during the interview at the police station, Detective Henderlong ordered food for Petitioner, but Petitioner stated he was not hungry but asked for coffee. Id. at 90. At some point during the interview, Detective Henderlong left the room with Petitioner's phone and handed it to Officer Vazeos. Id. at 108-10. Officer Vazeos looked at the phone and found no evidence of a "Mikey." Id. at 110-11. Detective Henderlong then questioned Petitioner about that absence of "Mikey" in his phone. Id. at 11245. At this point in the hearing, Petitioner's counsel made an oral application to expand the scope of the hearing to consider whether the police had obtained evidence unlawfully through the search and seizure of Petitioner's phone. The application was denied with leave to file a written request. Id. at 123-28.
On April 8, 2013, Petitioner's counsel again raised the issue of a potential Fourth Amendment violation pertaining to the unlawful search of Petitioner's phone. Counsel asked the hearing court to suppress Petitioner's statements as the fruit of an unlawful search. Counsel also argued that the unlawful search and seizure of the phone rendered Petitioner's statements that followed involuntary. [Dkt. 48 at 153-59.] The hearing court declined to rule on the Fourth Amendment issue as outside the scope of the Huntley/Sandoval hearing, with leave to make the application to the trial court. Id. at 161-64. The hearing court also heard argument on the admissibility Petitioner's criminal history. The prosecution requested that, should Petitioner testify, the state should be able to question Petitioner about a 1977 robbery conviction, a 1978 attempted robbery conviction, a 1979 homicide conviction, and a 2004 possession of a weapon conviction, without asking him about the underlying facts of each conviction. Id. at 166-71. The court reserved ruling on all issues. Id. at 176.
4. Mapp/Dunaway Hearing
On April 8, 2013, Petitioner, through counsel, made a written application to the trial court to expand the pre-trial hearing to include potential Fourth Amendment claims to suppress any evidence resulting from the search of his phone. [Dkt. 22-4.] The court granted the application and referred the matter for a Mapp/Dunaway hearing. [Dkt. 49 at 10-11.]
The court commenced a hearing on April 9, 2013 to consider whether the search of Petitioner's cell phone was unlawful, and whether Petitioner's statements that followed were involuntary. [Dkt. 50 at 181-82.] Detective Henderlong was the only witness to testify. He testified that after Officer Vazeos searched the phone, Detective Henderlong returned to the interview room and asked Petitioner about the nonexistence of "Mikey." Id. at 188-93. During his testimony, the prosecution stipulated that the police did not obtain a search warrant to search or seize the phone. Id. at 196.
Detective Henderlong testified that Petitioner did not give police permission to look at the phone. [Dkt. 50 at 197-98.] Upon confronting Petitioner with the information obtained from his phone, Petitioner stated that he deleted "Mikey's" phone number. Id. at 204. Petitioner's counsel read into the record a portion of the transcript of the police interview where Petitioner complained about posterior pain and that he had taken medication that morning. Id. at 211-12. Petitioner's counsel also argued that the search of the phone was unlawful, and that Petitioner's statements during the police interview were not voluntary because he had been unduly pressured by Detective Henderlong and Officer Vazeos who lied to him about the facts of the investigation and by offering him assistance if he confessed. Id. at 209-220. The hearing court reserved decision on all remaining pre-trial issues. Id. at 228.
5. Decision on Pre-Trial Applications
The hearing court issued an oral ruling on all pre-trial applications on April 10, 2013. [Dkt. 54.] The court held that Petitioner had been taken into custody on March 24, 2012 at the moment he was placed in the interview room at the Peekskill Police Department. Id. at 256. The court held that all of Petitioner's statements made prior to the March 24, 2012 police interview were voluntary and outside of a custodial interrogation, and were therefore admissible. Id. at 249-50. The court held that Petitioner knowingly and voluntarily waived his privilege against self-incrimination and his right to counsel, and that Petitioner's waiver was valid. Id. at 250-51. The court held that Petitioner had been properly given his Miranda warnings, his statements were not the product of an atmosphere of impermissible coercion, and his confession was knowing, voluntary, and intelligent. Id. at 250-51.
Regarding the search of Petitioner's cell phone, the court held that the search was unlawful, and it granted Petitioner's motion to suppress the information obtained from the search. [Dkt. 54 at 252.] The court declined to suppress Petitioner's confession following the search of his phone. Id. at 252-53. The court reasoned that Petitioner volunteered to speak with police without an attorney, that he maintained his false story about "Mikey" even after the search, and that Petitioner continued to voluntarily speak with police after the search. Id. at 248. The court explained that, even after the search, Petitioner exhibited a willingness and desire to tell his story and speak with police. Id. at 247-48. The court thus held that Petitioner's confession was voluntary. Id. at 248-49. Finally, the hearing court reached a Sandoval compromise where, if Petitioner chose to testify, the prosecution would be allowed to ask Petitioner about prior felony convictions. Id. at 253-54.
6. Plea Hearing
Jury selection commenced on April 10, 2013. [Dkt. 51.] On the second day of jury selection on April 12, 2013, Petitioner's attorney informed the court that Petitioner had authorized him to withdraw his prior plea of not guilty and enter a guilty plea as to the entire indictment as well as another pending charge for attempting to escape from county jail. [Dkt. 52 at 4.] Counsel stated that Petitioner would agree to a sentence often years incarceration and five years probation for the indictment and his attempted escape. Id. The court placed Petitioner under oath and asked him if he wished to plead guilty:
THE COURT: Is that what you wish to do?
THE DEFENDANT: Yes. They talk to me and I come to, I concur.
THE COURT: Okay. Is that what you wish to do?
THE DEFENDANT: I think it's of necessity.
THE COURT: All right.
THE DEFENDANT: I do wish to do that, your Honor.[Dkt. 52 at 5-6.]
The court held an off-record discussion with counsel and questioned Petitioner again:
THE COURT: 1 am going to ask you again. And it's up-you know it's up to you whether you plead guilty tor not. You know that, right?
THE DEFENDANT: I understand.
THE COURT: And I don't want anybody to be accused of like forcing you to do it. It's your decision. Do you understand me? I can't hear you.
THE DEFENDANT: I understand.
THE COURT: This plea of guilty that was just put on the record by your attorney, is that what you want to do?
THE DEFENDANT: Yes.
THE COURT: Did you have enough time to talk to your attorneys about this plea before now when you're entering it?
THE DEFENDANT: Yes.[Dkt. 52 at 6-7.]
The court asked if Petitioner had any questions for his attorney about the plea, and Petitioner responded "no." [Dkt. 52 at 7.] The court explained that each ten year sentence would run concurrently with each other. Id. The court then explained that Petitioner was waiving his right to appeal by pleading guilty:
THE COURT: I also want to make clear to you as far as I'm concerned because on this plea for giving you less than the maximum that you're going to withdraw-you are not going to be entering any appeals of any decisions that I've made in this case, the appeal from anything that's happened in this case. Do you understand that?
THE DEFENDANT: Yes.[Dkt. 52 at 8.]
Next, Petitioner was questioned by the prosecution and testified that he had heard the plea application from his counsel and that it constituted his own application. [Dkt. 52 at 9.] He testified that he had had enough time to speak with his attorney to make the decision to plead guilty. Id. at 9-10. Petitioner testified that he had not consumed any alcoholic beverages, medications, or other drugs that would impair his ability to understand the proceedings. Id. at 10. The prosecution asked Petitioner about his waiver of the right to appeal:
Q: Do you understand as a condition of your plea you're waiving your right to appeal your conviction and sentence to the Appellate Division, Second Department?
A: I understand.
Q: Have you discussed this waiver of your right to appeal with your attorney?
A: Yes.
Q: And in consideration of this negotiated plea do you now waive your right to appeal your conviction and sentence under Indictment 12-0448?
A: Yes.
Q: And as the Court indicated you're waiving your appeal to the hearing decision as well that we've had on this case?
A: Yes.[Dkt. 52 at 13.]
Petitioner's counsel stated that Petitioner was withdrawing his prior motions and agreed not to appeal. [Dkt. 52 at 1344.] The court asked petitioner if he needed to speak with his attorney again, and Petitioner declined. Id. at 14. Next, upon questioning, Petitioner reaffirmed his prior felony convictions and that he was being deemed a second violent felony offender, and he testified that he had committed each count listed in the indictment. Id. at 14-19. The court accepted the plea as being made knowingly, freely, and voluntarily. Id. at 22.
7. Sentencing Hearing
Petitioner appeared for sentencing on June 13, 2013 with counsel. [Dkt. 53.] The hearing court noted that after pleading guilty, Petitioner had an interview with an officer from the Department of Probation where he denied committing the crime, insisting that someone else had committed the burglary and that Petitioner merely admitted to the crime to avoid trouble. Petitioner stated that the probation officer misunderstood him. Id. at 2-3. The court then asked:
THE COURT: My question to you are you confirming your guilt before me now?
THE DEFENDANT: I'm confirming my guilt.[Dkt. 53 at 3.]
The court sentenced Petitioner as a predicate violent felony offender to ten years of incarceration with five years of post-release supervision. [Dkt. 53 at 5, 9-10.] Petitioner and his attorney signed the stipulation and plea agreement. Id. at 11.
8. Direct Appeal
Petitioner filed a notice of appeal on July 12, 2013 and an amended notice of appeal on August 12, 2013. In his July 30, 2014 brief in support, Petitioner argued: (1) the waiver of the right to appeal was invalid because the court failed to adequately explain that he waived his right when he pleaded guilty; and (2) the ten year sentence was excessive. [Dkt. 22-5.] On December 3, 2014, the New York State Appellate Division, Second Department, denied Petitioner's appeal and affirmed the conviction and sentence on the basis that Petitioner's valid waiver precluded review of his contention that the sentence was excessive. People v. Farmer, 123 A.D.3d 735 (N.Y.App.Div. 2014).
Petitioner, through counsel, filed an application for leave to appeal the Second Department's denial to the New York Court of Appeals on January 5, 2015, on the basis that Petitioner's waiver of the right to appeal was invalid. [Dkt. 22-7 and 22-8.] The Court of Appeals summarily denied Petitioner's application on September 10, 2015. People v. Farmer, 26N.Y.3d 967 (2015).
Petitioner, acting Pro se, filed a letter motion dated October 14, 2015 asking the Court of Appeals to reconsider its denial of leave to appeal. [Dkt. 22-10.] He argued that his waiver of the right to appeal was invalid because he did not fully understand that he waived his right to appeal when pleading guilty. Id. at 1. He also argued that he pleaded guilty involuntarily. Id. at 1-2. Petitioner filed a supplemental letter dated October 29, 2015 where he sought, for the first time, to vacate his plea. [Dkt. 22-11 at 5.] He again argued that the plea was involuntary and that his sentence was excessive, citing his age and an unspecified disability. Id. The Court of Appeals denied Petitioner's motion for reconsideration by summary order dated February 23, 2016. People v. Farmer, 26 N.Y.3d 1144 (2016).
9. Proceedings Before This Court
Petitioner, pro se, filed the Petition on February 10, 2017. [Dkt. 2.] Petitioner requested counsel by a motion filed the same day. [Dkt. 3.] By letters dated March 31 and April 18, 2017, Petitioner advised the Court that he had made a request to the Peekskill Police Department to retrieve his cell phone, which he stated was in their custody. [Dkt. 11-12.] He alleged that the phone contained exculpatory evidence, but he had been informed that the police department could not locate it, and he believed the police department destroyed the phone intentionally. [Dkt. 11 at 1-2.] By letters dated April 30 and May 4, 2017, Petitioner again requested appointment of counsel to help him obtain allegedly exculpatory information stored on his cell phone. [Dkt. 13-14.] By order dated May 25, 2017, 1 denied Petitioner's application to appoint counsel without prejudice. [Dkt. 16.] The state filed its opposition to the Petition on June 30, 2017. [Dkt. 22-23.] Petitioner filed a reply on July 27, 2017. [Dkt. 25.]
By letter dated September 18, 2017, Petitioner requested a stay of proceedings to allow him to file a motion pursuant to N.Y. Crim. Proc. Law § 440.10 to exhaust certain unspecified claims. [Dkt. 27.] He asserted that he inadvertently failed to exhaust his state remedies due to "medication intake." Id. at 2. The state opposed the request on the basis that Petitioner failed to identify the claims he wanted to exhaust, that Petitioner had been active in his post-conviction proceedings despite any physical ailment or medication, and that the unexhausted claims in the Petition were plainly meritless. [Dkt. 28.] The state also argued, for the first time, that the Petition had been filed untimely. Id. at 2. In an October 4, 2017 response, Petitioner summarily argued that the Petition was timely, but did not address the issue of exhaustion. [Dkt. 31.] By order dated November 20, 2017, 1 denied Petitioner's request on the basis that Petitioner had failed to demonstrate good cause for his failure to exhaust. [Dkt. 32.]
Petitioner sought an enlargement of time to object to my order [Dkt. 34], which I granted and allowed Petitioner until October 5, 2018 to file objections. [Dkt. 37.] In response, Petitioner filed a letter dated September 28, 2018 asking for another stay of proceedings, explaining that he was awaiting a decision from the Appellate Division. [Dkt. 40.] By order dated November 2, 2020, 1 denied Petitioner's latest request for a stay on the basis that such a stay would constitute an abuse of discretion, and deemed the matter ripe for consideration. [Dkt. 44.]
III. APPLICABLE LAW
"Habeas review is an extraordinary remedy." Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim¢s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), are summarized below.
A. Timeliness Requirement
A federal habeas petition is subject to AEDPA's strict, one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period and specifies that the latest of these shall apply. See Id. § 2244(d)(1). Under the statute, the limitation period is tolled only during the pendency of a properly filed application for State post-conviction relief, or other collateral review, with respect to the judgment to be challenged by the petition. See Id. § 2244(d)(2). The statute reads as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(d)(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. § 2244(d).
The one-year limitation period is subject to equitable tolling, which is warranted when a petitioner has shown '"(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2262 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In the Second Circuit, equitable tolling is confined to "rare and exceptional circumstance[s]," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (internal quotation omitted), which have "prevented [the petitioner] from filing his petition on time," Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (internal quotation marks and emphasis omitted). The applicant for equitable tolling must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing - a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Valverde, 224 F.3d at 134.
B. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) ("[a]n 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 corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant"); id § 2254(c) (the petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented"). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19(1982).
To exhaust a federal claim, the petitioner must have "fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim," and thus "giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). "Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner "apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be "fairly presented" to the state courts therefore, even if the petitioner has not cited "chapter and verse of the Constitution," in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, "[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either "cause for the procedural default and prejudice attributable thereto," Harris v. Reed, 489 U.S. 255, 262 (1989), or "actual innocence," Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are "plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Padilia v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
C. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon "an adequate and independent finding of a procedural default" to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be "independent" when it "fairly appears" to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Colman, 501 U.S. at 740). A decision will be "adequate" if it is "'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a "fundamental miscarriage of justice," which occurs where a petitioner is "actually innocent of the crime for which he has been convicted." Coleman v. Thompson, 501 U.S. 722, 729 (1991); Cotto v. Herbert, 331 F.3d 217, 239 n.10 (2d Cir. 2002).
D. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners," and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim "on the merits," and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it "arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision involves an "unreasonable application" of Supreme Court precedent if the state court "identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case," or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson, Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by "clear and convincing evidence." Id. § 2254(e)(1).
IV. ANALYSIS
Petitioner's pro se submissions must be interpreted liberally to raise the strongest arguments they suggest See, e.g., Janakievs v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir. 2020). Petitioner raised the following grounds in the Petition: (1) police violated Petitioner's constitutional rights when they confiscated his cell phone, which he claims contained exculpatory evidence; (2) Petitioner's trial counsel was ineffective by misleading Petitioner into pleading guilty, failing to inform Petitioner of his waiver of rights upon taking the plea, and failing to conduct an appropriate investigation and obtain information from Petitioner's cell phone; and (3) Petitioner's waiver of his right to appeal was invalid because neither the court nor counsel sufficiently explained that he waived this right when pleading guilty. Petitioner asserted a fourth ground asking the Court to consider exhibits in support of his other claims, including documents concerning his 2015 request to retrieve his cell phone.
With the exception of Petitioner's claim for ineffective assistance of counsel, which was already raised in the Petition, and his claim of actual innocence, I recommend that your Honor decline to consider these arguments. See Flemming v. New York, Case No. 06 Civ. 16255 (LAP), 2013WL4831197 at*8 n 11 (S.D.N.Y. Sept. 10, 2013 ("To the extent petitioner raises claims arguments."); Johnson & Johnson v. Gindant Corp., 525 F.Supp.2d 336 359 (S.D.N.Y.2007) ("[arguments first raised in reply memoranda are not properly considered....). Petitioner also raised seven "points" in his July 27, 2017 Reply: (1) Petitioner did not knowingly intelligently, and voluntarily plead guilty; (2) Petitioner's confession made to police should have been suppressed as the fruit of an unlawful search; (3) Petitioner s confession was involuntarily and induced by police coercion; (4) actual innocence; (5) ineffective assistance of State's (6) the State's objection to his Petition should be dismissed for spoliation of evidence; and (7) Petitioner was not fit to proceed before the trial court. [Dkt. 25]
A. Timeliness
The Petition was timely filed. Petitioner's conviction became final on May 23, 2016 after the 90-day expiry of Petitioner's time to file a writ of certiorari following the Court of Appeals' denial of Petitioner's motion for reconsideration. See Chrysler v. Guiney, 14 F.Supp.3d 418, 433 (S.D.N.Y. 2014) ("Pursuant to 28 U.S.C. § 2244(d)(1)(A), a judgment becomes final only after the denial of certiorari or the expiration of time for seeking certiorari-in the latter case, ninety days after a decision by the New York Court of Appeals.").
The state argues that Petitioner's conviction became final on December 9, 2015, one year and 90 days following the Court of Appeal's denial of Petitioner's motion for leave to appeal, and, as a result, Petitioner's time to seek habeas relief expired on December 9, 2016. [Dkt. 28 at 2.] However, for the purposes of assessing timeliness, AEDPA's one-year statute of limitations would begin to run 90 days following tire Court of Appeals' denial of Petitioner's motion for reconsideration of its denial of leave to appeal. See. e.g., Paulino v. Griffin, Case No. 16 Civ. 3839 (PKC)(BCM), 2019 WL 9362540, at •7 (S.D.N.Y. Aug. 26, 2019), report and recommendation adopted. 2020 WL 1673248 (S.D.N.Y. Apr. 6, 2020), appeal dismissed, Case No. 20-1578, 2020 WL 8361770 (2d Cir. Dec. 23, 2020), cert, denied, 141 S.Ct. 1447 (2021) ("Petitioner's conviction became final on July 10, 2016 - 90 days after the New York Court of Appeals denied petitioner's motion for reconsideration of its denial of leave to appeal.").
The Court will provide Petitioner with a copy of all unreported cases cited in this Report and Recommendation.
Alternatively some courts consider the filing of a motion for reconsideration before the New York of Appeals, o toll the, limitations period, motion for reconsideration before the New York Court of Appeals to toll the limitations period. See, e.g.. The Davis v. Faucher, Case No. 19 Civ. 1431 (KAD), 2020 WL 435491, at *2 (D. Conn. Jan. 28, 2020) (collecting cases from the Second Circuit considering a motion for reconsideration to toll the limitations period). Taking this view, there were 34 days between the time the Court of Appeals denied Petitioner's motion for leave to appeal and the date of the filing of the motion to reconsider. Therefore limitations period would have lapsed on April 22, 2017, after the date of the Petition.
Consequently, AEDPA's limitations period expired on May 23, 2017, one year and 90 days following the Court of Appeals' denial of the motion for reconsideration. The Petition is deemed to have been filed on February 3, 2017, the day Petitioner provided the folly executed Petition to prison officials for mailing. See Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001) (applying, he so-called "mailbox male," .pro petitioner's filings are deemed "filed" fine date on which toy are delivered to prison officials for mailing.). The Petition is therefore timely.
B. Actual Innocence
In his Reply, Petitioner asserts that he is actually innocent, and he seeks an evidentiary hearing to prove his innocence. A claim of actual innocence cannot, in and of itself, constitute an independent basis to grant habeas relief, and instead acts as a gateway through which a habeas petitioner must pass to have other barred constitutional claims considered on the merits. Herrera v. Collins, 506 U.S. 390, 404 (1993). As further discussed below, the Petition is "mixed" as it contains both exhausted and unexhausted claims. Accordingly, I address Petitioner's actual innocence claim before addressing Petitioner's other independent grounds for habeas relief to determine whether his unexhausted claims can be considered on the merits.
A party seeking habeas relief on the basis of actual innocence must not only demonstrate some underlying constitutional violation, but must also come forward with newly discovered evidence showing that Ms conviction was factually incorrect. Herrera. 506 U.S. at 400. A claim for actual innocence does not concern "legal" innocence or procedural issues at trial, but instead hinges on "actual, factual innocence." Schlup, 513 U.S. at 324.
Petitioner fails to show that he was actually innocent of the charges against him. First and foremost, Petitioner admitted to each of the charges. When he was first inter-viewed by police, Petitioner fabricated the "Mikey" story, but even then he readily admitted to assisting "Mikey" with the burglary by allowing him access to the victims' apartment and helping him hide the stolen goods. Even taking Petitioner at his word that "Mikey" was real, Petitioner still admitted to assisting in burglarizing the victims and illegally purchasing the stolen goods. But Petitioner's admission went further, and the record clearly shows there was never a "Mikey." Petitioner admitted that "Mikey" was fictitious and that Petitioner himself committed the burglary. He also admitted to Detective Henderlong and Officer Vazeos that the burglary was premeditated, and that Petitioner committed the crime in order to scare his neighbors.
The evidence against Petitioner was overwhelming, even setting aside his admission. Detective Henderlong testified during the pre-trial hearings that the victim's apartment was on the second floor, and his investigation showed that the point of forced entry was the glass door located on their balcony. Petitioner's balcony was located directly beneath the point of entry, providing Petitioner access to the victims' apartment. Petitioner admitted that he had been home the night of the burglary. Petitioner had the stolen ring and watch in his pocket, which he revealed during the recorded police interview. Petitioner admitted to coming into possession of the stolen laptop, first claiming he purchased it, and second admitting that he stole it and hid it himself. The evidence from the cell phone confirmed that "Mikey" never existed. Taken together, there is no reasonable doubt that Petitioner committed the burglary.
That Petitioner seeks to recant his admission and press the fabricated story that "Mikey" committed the crime is unavailing. This back-and-forth is consistent with Petitioner's changing story from the time he committed the crime. He initially blamed "Mikey" but changed his story and admitted his own guilt when confronted by the fact that "Mikey" was not real. After pleading guilty, he changed his story again when interviewed by a probation officer, blaming "Mikey" and asserting that he was simply taking the blame. When asked by the trial judge, Petitioner asserted that the probation officer must have misunderstood him, and he once again admitted his guilt. That he now professes his innocence and once again offers his same defeated alibi is unconvincing.
Petitioner's argument that his cell phone contained exculpatory evidence that could prove his innocence is also unavailing. Petitioner cannot rely on the fact that the phone has since been lost because the record is clear as to what the cell phone contained, based on Petitioner's motion to suppress and the transcript of the suppression hearing. Based on the record, the cell phone contained evidence that "Mike," was fabricated and Petitioner merely pretended to call him. As such, the cell phone contained inculpatory, no, exculpatory, evidence, and Petitioner was prudent to suppress this evidence through counsel.
Petitioner asserts that the cell phone would have proven that he purchased the stolen goods from "Mikey." Taking Petitioner at his word, even this evidence would not be exculpatory. Instead, it would bolster the state's case that Petitioner participated in the burglary and knowingly possessed stolen property. But, given the record as a whole, the Court need not take Petitioner at his word. Petitioner even admits this in his papers, referring to the evidence on his phone as, "the fact that Mr. Farmer had not made a call to Mikey." [Reply, Dkt. 25 at 12.] The record simply contradicts Petitioner's assertions about what was on the phone. Accordingly, Petitioner's arguments that he is actually innocent and that Ms cell phone contained exculpatory evidence should be rejected. Because Petitioner fails to establish actual innocence, he cannot demonstrate a miscarriage of justice that would allow the Court to consider his unexhausted claims or claims that are deemed exhausted but procedurally barred.
Finally, Petitioner is not entitled to an evidentiary hearing to determine his innocence now that he is attempting to withdraw his guilty plea. "There is no Supreme Court decision that establishes a due process right to an evidentiary hearing where a defendant attempts to withdraw his guilty plea” Casey v. Walsh, Case No. 02 Civ. 6251 (SAS), 2003 WL 1824640, at *3 (S.D.N.Y. Apr. 8, 2003). His request for an evidentiary hearing should therefore be denied.
C. Ground 1: Unlawful Search and Seizure of Cell Phone
As detailed below, this Court cannot reach the merits of Petitioner's Fourth Amendment claim because the claim is procedurally barred and is not cognizable on habeas review. I note here, however, that Petitioner's habeas claim - that seizure of the phone deprived him of exculpatory evidence - is at odds with his position before the trial court, where his attorney successfully sought suppression of the phone in order to exclude inculpatory evidence.
1. Exhaustion and Procedural Bar
Although Petitioner's Fourth Amendment claim is unexhausted, the claim may be deemed exhausted but procedurally batted because Plaintiff failed to raise it on direct appeal, so Petitioner no longer has the opportunity to present this claim to a state court. Even where, as here, a petitioner has waived the right to appeal, he still bears the obligation to exhaust his claims prior to seeking habeas relief. See, e.g., D'Onofrio v. Annucci, Case No. 16 Civ. 1740 (VB)(PED), 2018 WL 6251367, at *13 (S.D.N.Y. Oct. 23, 2018), report and recommendation adopted, 2018 WL 6250660 (S.D.N.Y. Nov. 29, 2018) (petitioner's claims were unexhausted where the petitioner waived his right to appeal in state court).
A criminal defendant may appeal an adverse decision on a pretrial motion to suppress evidence pursuant to N.Y. Crim. Proc. Law § 710.70(2), despite a guilty plea. See, e.g., Irvis v. Haggat, Case No. 12 Civ. 1538 (FJS)(TWD), 2015 WL 6737031, at *I5 (N.D.N.Y. Nov. 3, 2015). Therefore, even though Petitioner waived his right to appeal, he still had the opportunity, and therefore the obligation, to raise this claim on direct appeal, which he failed to do. Under New York law, a petitioner is entitled to only one direct appeal to the Appellate Division. N.Y. Crim. Proc. Law. § 450.10(1). New York law does not permit collateral attacks on a conviction where a petitioner unjustifiably failed to raise the issue on direct appeal. N.Y. Crim. Proc. Law. § 440.12(2)(c). Because the claim is procedurally barred by state law and presenting the claim in state court would be futile, this claim may be deemed exhausted but procedurally barred. See Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir. 2006).
Petitioner has not presented a justification for failing to raise this issue on direct appeal, and, as explained above, Petitioner failed to show that he is actually innocent of the charges against him. Accordingly, Petitioner cannot overcome this procedural bar to have his Fourth Amendment claims decided on the merits.
2. Effect of the Guilty Plea
Petitioner's Fourth Amendment claim is also procedurally barred due to his guilty plea. Generally, a knowing and voluntary guilty plea procedurally bars federal habeas review of claims relating to constitutional rights at issue prior to the entry of the plea. Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991). Due process requires an affirmative showing that an accused's plea of guilty is, in fact, entered knowingly and voluntarily before the trial court may accept it. Boykin v. Alabama, 395 U.S. 238, 242 (1969). The trial court is thus obligated to make a "searching inquiry" into the circumstances surrounding the plea to ensure that it represents a "voluntary and intelligent choice among the alternative courses of action open to the defendant." Id. at 243-44.
On habeas review, "the governing standard as to whether a plea of guilty is voluntary is a question of federal law, but questions of fact are entitled to the presumption of correctness accorded to state court factual findings." Meachem v. Keane, 899 F.Supp. 1130, 1139 (S.D.N.Y. 1995). "Where the record fairly supports a state court's factual findings, and they are therefore presumed to be correct, a petitioner must establish by 'convincing evidence' that the State court's findings were erroneous." Id. at 1139-40 (internal citations omitted).
Here, the trial court made a proper, searching inquiry to ensure that the plea was voluntary and intelligent. Petitioner was not hesitant, and he insisted that he was guilty of the crime and wanted to plead guilty. Petitioner was asked numerous times whether he wanted to plead guilty and whether he actually committed the crimes, and Petitioner responded in the affirmative each time. He was also given an opportunity to speak with his attorney. The trial court also gave Petitioner another opportunity to rescind his plea at the time of sentencing.
Petitioner's contention that his plea was not knowing or voluntary is self-serving and conclusory and has no basis in the record. He asserts that police coerced his plea by threatening his girlfriend, but no such threats appear anywhere in the record. Petitioner points to alleged hesitancy when pleading guilty, including contradictory statements he made to a probation officer. But the record shows that Petitioner was determined to plead guilty.
To the extent that Petitioner claims that his plea was unduly influenced by the illegal search of his phone, in that the search lead to his confession, which in turn lead to his guilty plea, this argument should also be rejected. The Supreme Court stated:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.Tollett v. Henderson, 411 U.S. 258, 267 (1973). Here, Petitioner solemnly and under oath admitted his guilt in open court. He may not now raise independent claims relating to the deprivation of his of constitutional rights prior to entry of his plea..
3. Fourth Amendment Claims Not Cognizable
Even if Petitioner's Fourth Amendment claim was not procedurally barred, it would not be cognizable upon habeas review. The Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell 428 U.S. 465, 494-95 (1976). Here, Petitioner had a full and fair opportunity to litigate Fourth Amendment claims, which precludes habeas relief on this basis.
The Second Circuit has explained that, in the wake of Powell, Fourth Amendment claims in habeas petitions will be undertaken only if the state provided no corrective procedures at all to redress the alleged violations, or if a petitioner was precluded from using the state's corrective mechanism because of an unconscionable breakdown in the underlying process. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Here, Petitioner was afforded an appropriate corrective procedure to redress the constitutional violation in a Mapp/Dunaway hearing, which bars Petitioner's claim under Powell. The hearing court fully heard Petitioner's claim upon his pretrial motion and ultimately granted relief by suppressing the data obtained from the phone. The search and seizure cannot, therefore, provide grounds for habeas relief and this claim is not cognizable upon habeas review.
D. Ground 2: Ineffective Assistance of Counsel
Petitioner claims ineffective assistance of trial counsel for three reasons: (1) trial counsel mislead him into pleading guilty; (2) counsel did not inform Petitioner that he waived his right to appeal upon taking a plea; and (3) counsel failed to conduct an appropriate investigation and obtain exculpatory evidence from his cell phone. Petitioner's first two claims, as they relate to the guilty plea, are unexhausted, but should nevertheless be denied as plainly meritless. Petitioner's third claim should be dismissed as procedurally barred in light of the guilty plea.
1. Exhaustion and Procedural Bar
Under New York law, a knowing, voluntary, and intelligent guilty plea precludes a petitioner from raising a claim of ineffective assistance of counsel that does not implicate the voluntariness of the plea. People v. Almonte, 288 A.D.2d 632, 633 (N.Y.App.Div. 2001) ("Defendant's ineffective assistance of counsel claim does not implicate the voluntariness of his plea and, as such, is similarly foreclosed by the articulated guilty plea and waiver of his right to appeal") Claims for ineffective assistance of counsel that impact the voluntariness of the plea do, however, survive a guilty plea and waiver of the right to appeal. People v. Almonte, 179 A-D.3d 1222, 1224 (N.Y.App.Div. 2020), leave to appeal denied, 25 N.Y.3d 940 (2020).
Because such a claim would rely on matters appearing outside of the record, the proper state court remedy would be to file a motion to vacate under N.Y. Crim. Proc. Law § 440.10. People v. Thacker, 173 A.D.3d 1360, 1361 n.2, (N.Y.App.Div. 2019). Additionally, "[t]o properly exhaust an ineffective assistance of trial counsel claim that relies on evidence outside the pretrial and trial record.. .the petitioner must raise it as part of a motion to vacate judgment under CPL § 440.10 and then seek leave to appeal to the Appellate Division." Carpenter v. linger, Case No. 10 Civ. 1240 (GTS)(TWD), 2014 WL 4105398, at *25 (N.D.N.Y. Aug. 20, 2014).
Petitioner's claim that trial counsel was ineffective by failing to investigate the case and obtain exculpatory evidence from his cell phone does not relate to the voluntariness of the plea and relates to matters before the plea and waiver of appeal. See, e.g., Vasquez v. Parrott, 397 F.Supp.2d 452, 463 (S.D.N.Y. 2005) (holding that the petitioner waived all claims of ineffective assistance of counsel relating to events prior the guilty plea that did not affect the voluntariness of his plea). Because Petitioner did not raise this claim before a state court but can no longer do so in light of the guilty plea, this claim may be deemed exhausted but procedurally barred. See Jimenez, 458 F.3d at 149. Petitioner failed to show prejudice and cause for his failure to exhaust, and, as explained above, Petitioner has not shown he is actually innocent. This claim should, therefore, be dismissed.
However, Petitioner's remaining claims, that trial counsel mislead him into pleading guilty and that counsel did not inform him that he waived his right to appeal upon taking a plea, directly impact the voluntary and knowing nature of the plea. Therefore, both claims survive the guilty plea, and Petitioner would have had the opportunity to raise these claims under a motion to vacate. Petitioner did not do so. However, such a motion can be raised "at any time." See N.Y. Crim. Proc. Law § 440.10 ("at any time after the entry of a judgment..."). Because these claims are unexhausted but not procedurally barred, the Petition is, therefore, "mixed."
In general, courts may not adjudicate mixed petitions for habeas relief, that is, petitions that contain both exhausted and unexhausted claims. Shines v. Weber, 544 U.S. 269 (2005). When presented with a mixed petition, a federal court may: (i) stay the proceedings and hold the petition in abeyance to allow the petitioner to exhaust the unexhausted claims in state court; (ii) grant the petitioner leave to amend the petition and excise any unexhausted claims; (iii) dismiss the entire petition without prejudice; or (iv) review each claim and dismiss the petition if the claims are plainly meritless. Bravo v. Unger, Case No. 10 Civ. 5659 (VB)(PED), 2014 WL 201472, at *2 (S.D.N.Y. Jan. 16, 2014) (citing 28 U.S.C. § 2254(b)(2); Shines, 544 U.S. at 277-78). As discussed below, these claims are plainly meritless, and, as such, they should be considered on the merits and denied.
2. Merits
In order to establish a claim for ineffective assistance of trial counsel, Petitioner must demonstrate: (1) that his attorney's performance "fell below an objective standard of reasonableness," and (2) that there is a "reasonable probability" that, but for counsel's error, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel flounder on that standard." Undstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Here, "AEDPA review must be 'doubly deferential' in order to afford 'both the state court and the defense attorney the benefit of the doubt.'" Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)) (internal quotations omitted).
Under the first prong, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). The second prong focuses on prejudice, and Petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319. However, "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
Petitioner's claim that his attorney failed to explain that he was waiving his right to appeal in connection with his guilty plea is flatly belied by the record. As set forth above, during Petitioner's plea allocution Petitioner explicitly confirmed that he understood that "as a condition" of his plea he was "waiving [his] right to appeal" and that he had discussed "this waiver of appeal with [his] attorney." [Dkt. 52 at 13.] Petitioner then affirmatively waived his "right to appeal his conviction and sentence" in "consideration of [his] negotiated plea[.f On this record, there is no basis for Petitioner's claim that his attorney failed to explain the waiver of appeal, so the ineffective assistance claim on this basis should be denied as meritless.
Petitioner's conclusory claim that his attorney "mislead" him into pleading guilty is likewise meritless. First, the plea deal was objectively beneficial to Petitioner, as the prosecution agreed to dismiss a separate escape charge and the court agreed to impose the agreed 10 year sentence (as opposed to the 15 year maximum) despite Petitioner's extensive prior record. Counsel's assessment of the strength of the prosecution's case and the advisability of a plea deal - matters of professional judgment largely immune from scrutiny under Strickland- are unassailable here in light of the trial court's decision to admit Petitioner's confession. In any event, Petitioner has not alleged that he would have proceeded to trial if he had received different advice, an omission which is fatal to his ineffective assistance claim. See Aeid v. Bennett, 296 F.3d 58, 64 (2d Cir.), cert, denied, 537 U.S. 1093 (2002). Accordingly, this claim is plainly meritless as well.
D. Ground 3: Waiver of Right to Appeal
1. Exhaustion
Petitioner's third ground, which argues that his waiver of the right to appeal was invalid because neither the trial court nor his attorney distinguished this right from the other rights automatically forfeited upon a plea of guilty, was properly exhausted. Petitioner raised this claim on direct appeal before the New York State Appellate Division, which referred to Petitioner's waiver as "valid." People v. Farmer, 123 A.D.3d 735 (N.Y.App.Div. 2014). This claim became fully exhausted when the Court of Appeals upheld the Appellate Division's decision, People v. Farmer, 26 N.Y.3d 967 (2015), and denied Petitioner's motion for reconsideration. People v. Farmer, 26 N.Y.3d 1144 (2016).
2. Merits
Because this claim is both timely and exhausted, I must determine whether the state's decision was contrary to or an unreasonable application of clearly established Supreme Court precedent. Ylst v. Nunnemaker, 501 U.S. at 803. "It is well-settled that the right to appeal is not a constitutional right, but rather 'purely a creature of statute.'" Abney v. United States, 431 U.S. 651, 656 (1977). "It is true that under New York state law, the record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty." Harris v. Sheahan, Case No. 13 Civ. 950, 2017 WL 604441, at *4 (W.D.N.Y. Feb. 15, 2017) (internal quotation marks and ellipses omitted) (quoting People v. Lopez, 6 N.Y.3d 248, 256 (2006)). However, "[t]here is no requirement [under New York law] that the trial court engage in any particular litany" when accepting a defendant's waiver of the right to appeal. People v. Ludlow, 42 A.D.3d 941, 942 (2007) (quotation marks and citation omitted). Accordingly, under Federal law, a waiver of the right to appeal will be upheld "if the record clearly demonstrates that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary." United States v. Castillo, 303 Fed.Appx. 989, 990 (2d Cir. 2008) (quotation marks and citation omitted).
The record demonstrates that Petitioner knowingly and voluntarily waived his right to appeal. Petitioner was asked multiple times by both the court and the prosecution whether he understood this right, and each time Petitioner answered in the affirmative. The hearing court explained Petitioner's rights and expressly referenced his waiver of the right to appeal, and did so in plain and simple language. Petitioner was also asked numerous times whether he had had time to speak with his attorney, to which Petitioner stated under oath that he had. Therefore, I conclude and respectfully recommend that Petitioner's claim challenging the validity of his wavier of the right to appeal is meritless.
E. Loss of Petitioner's Cell Phone
Lastly, Petitioner asks the Court to consider exhibits attached to the Petition concerning the loss of his cell phone. [Dkt. 2 at 4-5.] Petitioner asserts that his cell phone was in the custody of the Peekskill Police Department following his arrest, and that in 2015 he made a request to have it returned, but it could not be located. [Dkt. 2 at 6-8.] To be clear, the alleged loss of his cell phone occurred years after Petitioner's conviction and had no bearing on his prosecution, plea, or sentencing. Accordingly, the subsequent alleged loss of his cell phone does not constitute a cognizable ground for habeas relief.
In his Reply, Petitioner asks to strike the State's Response due to alleged spoliation of his cell phone. To the extent this request can be construed as a motion for sanctions under Fed.R.Civ.P. 37(e) and 81(a)(4), such a request should be denied. Sanctions for spoliation may only be imposed if: (1) "the party having control over the evidence had an obligation to preserve it at the time it was destroyed;" (2) "the records were destroyed with a culpable state of mind;" and (3) "the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." G. W. v. Rye City Sch Dist., 554 Fed.Appx. 56, 57 (2d Cir. 2014) (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y.2004)). Petitioner fails to show that the evidence was lost due to a culpable state of mind. Instead, the record suggests that it was, at worst, accidentally lost at the police station years after the conviction.
IV. CONCLUSION
For the reasons set forth above, I conclude, and respectfully recommend that Your Honor conclude, that the instant Petition for a Writ of Habeas Corpus be denied. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Philip M. Halpern, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Halpern.