Opinion
1:18-cv-5454 (AT) (KHP)
11-20-2019
ROLANDO GARCIA, Petitioner, v. JAMIE LAMANNA, Respondent.
HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
On June 15, 2018, Petitioner Rolando Garcia, proceeding pro se, filed the instant petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. Section 2254 to challenge his 2014 conviction in New York state court. (Doc. No. 2.) In state court, Petitioner pled guilty to manslaughter in the first degree (New York Penal Law (“Penal Law”) Section 125.20(1)) and, as a condition of his guilty plea, waived his right to appeal. He was then sentenced to twenty-five years in prison followed by five years of post-release supervision. (Id. at 20, 25; Doc. No. 13 ¶ 6.) Petitioner now argues that: (1) he was denied effective assistance of counsel; (2) his sentence should be reduced “in the interest ofjustice”; and (3) his agreement to waive his right to appeal was invalid. (Doc. No. 2, 1-14.)
In opposing the Petition, Respondent maintains that this Court should reject Petitioner's ineffective assistance of counsel claim as procedurally barred and because the New York state courts did not rely on an unreasonable application of clearly established federal law, nor on an unreasonable determination of the facts, to reject Petitioner's claims on appeal. (Doc. No. 14, 5-18.) Respondent also asserts that Petitioner's argument, that his prison sentence should be reduced “in the interest of justice,” may not be brought via a petition for a writ of habeas corpus because Petitioner has not alleged that his prison sentence deprived him of any federal constitutional right and is procedurally barred. (Id. at 2-5.) Finally, Respondent maintains that Petitioner's claim, that his waiver of appeal was invalid, is moot because the New York Appellate Division already held that the waiver was invalid, but declined to reduce Petitioner's sentence. (Id.)
After carefully considering the parties' briefs and the record, this Court finds that Petitioner's claims do not warrant habeas relief and respectfully recommends that the Petition be dismissed in its entirety.
BACKGROUND
On September 25, 2012, Petitioner shot and killed Kenia Castillo Reyes, a mother of two, on a public street. (Doc. No. 13 ¶ 4; Doc. No. 2, 61.) On October 16, 2012, the Bronx County Grand Jury indicted Petitioner, charging him with: (1) murder in the second degree (Penal Law Section 125.25(1)); (2) manslaughter in the first degree (Penal Law Section 125.20(1)); and (3) two counts of criminal possession of a weapon in the second degree (Penal Law Sections 265.03(1)(b) and (3)). (Doc. No. 13 ¶ 5; Doc. No. 2, 24-25.) Petitioner initially pled not guilty to these crimes.
On May 28, 2014, Petitioner appeared in the Supreme Court of the State of New York in Bronx County with his defense counsel to change his plea (the “Plea Hearing”). Petitioner withdrew his not guilty plea and, in satisfaction of all charges against him, pled guilty to first-degree manslaughter and waived his right to appeal. (Doc. No. 15, May 28, 2014 Plea Hearing Transcript (“Plea Hr'g Tr.”) 2:25-3:05.) Before Petitioner entered his guilty plea, the presiding judge explained the consequences of the plea to Petitioner, who is a native Spanish speaker, through a Spanish-language interpreter. (Id. at 3:06-10:01.) Among other things, the judge clarified that, because Petitioner is a citizen of the Dominican Republic and is not a citizen of the United States, he will likely be deported to the Dominican Republic upon his release and will be denied re-entry to the United States. (Id. at 3:17-4:10.) The judge also informed Petitioner that he would be sentenced to twenty-five years in prison followed by five years of post-release supervision (Id. at 4:15-25) and explained the consequences of waiving the right to a trial by jury and to appeal. (Id. at 5:01-10:15.) Petitioner then pled guilty and signed a written waiver form, which was translated from English to Spanish. (Id. at 10:08-13:09; see also Doc. No. 2, 20, 25-26, 53; Doc. No. 13 ¶ 6.) Petitioner appeared in court on June 13, 2014 to be sentenced (the “Sentencing Hearing”). As Petitioner was informed at the time of his plea, the Court sentenced Petitioner to a determinate sentence of twenty-five years in prison followed by five years of post-release supervision. The Court also stated that Petitioner had waived his right to appeal. (Doc. No. 16, June 13, 2014 Sentencing Hearing Transcript 18:02-13; see also Doc. No. 2, 20, 25; Doc. No. 13 ¶ 6.)
PROCEDURAL HISTORY
I. PETITIONER'S DIRECT APPEAL
In March of 2016, Petitioner, with the assistance of counsel, filed a direct appeal of his conviction with the New York Appellate Division (the “Direct Appeal”). (Doc. No. 2, 35.) Petitioner argued that his sentence should be reduced “in the interest of justice” because he: (1) was employed full-time as a mechanic before his conviction and had no prior felony convictions; (2) pled guilty to the manslaughter charge, for which he received the maximum possible sentence; and (3) upon his release, will be over seventy years old and will be deported to the Dominican Republic, where he has not lived since 1995. (Doc. No. 2, 26; Doc. No. 13-1, 10-14.) Petitioner also argued that his waiver of his right to appeal was invalid because: (1) the trial court failed to “adequately inform” him that his right to appeal was not automatically forfeited when he pled guilty and (2) the written waiver form contained language that was substantially similar to language that was previously invalidated by the Appellate Division.(Doc. No. 13-1, 10-12.)
The invalidated clause informed Petitioner that if he were to file a notice of appeal, the prosecution or the court could construe the filing as a “motion to vacate his conviction and sentence.” (Doc. No. 13-1, 11-12 (citing People v. Santiago, 990 N.Y.S.2d 494, 495 (App.Div. 1st Dep't 2014)).)
On June 9, 2016, the Appellate Division unanimously held that Petitioner's waiver of his right to appeal was invalid, but declined to reduce his sentence. (Doc. No. 2-1, 2.); see also People v. Garcia, 31 N.Y.S.3d 883 (App.Div. 1st Dep't 2016). Plaintiff sought leave to appeal to the New York Court of Appeals on June 30, 2016 (Doc. No. 13-5, 1), and leave was denied on September 26, 2016. (Doc. No. 2-1, 2-4.) Petitioner did not seek a writ of certiorari from the United States Supreme Court.
II. PETITIONER'S CRIMINAL PROCEDURE LAW (“C.P.L.”) § 440.10 MOTION
On January 20, 2017, Petitioner, proceeding pro se, filed a motion to vacate his conviction pursuant to C.P.L. Section 440.10(1)(h) (the “440.10 Motion”). (Doc. No. 2, 46; Doc. No. 13 ¶ 11.) In the Motion, Petitioner claimed, for the first time, that he “lost [his] mind during the heated argument with Miss Castillo, and was out of his mind while he was shooting Miss Castillo” in a “jealous rage.” (Doc. No. 13-8, 3, 8 (alteration in original).) He also alleged that he was “inebriated” at the time of the shooting and, thus, he “may not have been able to even form the requisite intent to kill.” (Id. at 8.) Petitioner argued that he was denied his Sixth Amendment right to effective assistance of counsel before the trial court because his defense counsel: (1) never discussed the possibility of, or sought to introduce evidence to challenge his mental competency during the trial court proceedings, pursuant to C.P.L. Section 730; (2) did not raise an intoxication or extreme emotional disturbance (“EED”) defense (id. at 2-6); (3) failed to ensure that Petitioner understood the plea allocution; (4) forced Petitioner to enter a guilty plea through “persistent coaxing” (id. at 13-8, 2, 9); and (5) never showed Petitioner any “discovery material.” (Id. at 2.)
This statute addresses a criminal defendant's “capacity to understand the proceedings against him or to assist in his own defense.” C.P.L. § 730.10.
The Honorable Steven Barrett, Justice of the Bronx County Supreme Court, denied Petitioner's 440.10 Motion on March 31, 2017. (Doc. No. 13-11.) To start, Justice Barrett held that, “with respect to [Petitioner's] claim that his guilty plea was defective due to the insufficiency of the court's allocution or his lack of mental fitness at the plea proceeding,” such claims are not actionable under C.P.L. Section 440.10 because they are record-based and, thus, should have been raised on direct appeal. (Id. at 2 (citing C.P.L. § 440.10(2)(c)).)
On the merits, Justice Barrett found that Petitioner, who submitted a single “self-serving affidavit” to support his 440.10 Motion, failed to submit sufficient evidence to corroborate his claim that he was mentally incompetent when he killed Ms. Castillo Reyes or that his attorney forced him to plead guilty. (Id. at 1-2 (citing C.P.L. §§ 440.30(4)(b) and (d)(i)).) Justice Barrett explained that, absent corroborating evidence, such as affidavits from Petitioner's defense counsel and certified records from healthcare providers, the “transcript of the plea colloquy makes clear that counsel provided meaningful representation and that defendant's plea was knowing and voluntary.” (Id. at 2-3.) The court also noted that Petitioner “told the Court that he had not been pressured or coerced, that he understood and desired to enter the guilty plea” and that the “transcript of the plea discloses that [Petitioner] was lucid, rational and unequivocal and does not give the slightest indication that [Petitioner] was uninformed, confused, or mentally incompetent.” (Id. (citing People v. Alexander, 97 N.Y.2d 482,486 (2002)).)
Justice Barrett was also unmoved by Petitioner's claim that his rights were violated by his counsel's failure to raise an EED defense. The court explained that, even if Petitioner had proceeded to trial and successfully raised an EED defense to the second-degree murder charge, that defense would have reduced Petitioner's crime to manslaughter in the first degree. In other words, Petitioner obtained the same outcome by entering a guilty plea to the first-degree manslaughter charge that he would have obtained by going to trial and successfully asserting an EED defense. (Id. at 3 (citing C.P.L. 125.25(1)(a); 125.20(2)).) The court added that if Petitioner had unsuccessfully raised an EED defense at trial, he would have faced a harsher sentence for murder in the second degree -life in prison. (Id.) Finally, the court observed that Petitioner never moved to withdraw his guilty plea and did not allege that he would have elected to proceed to trial if the EED defense had been available to him. (Doc. No. 13-11, 3-4.) Accordingly, the court found that Petitioner suffered no prejudice by his counsel's purported failure to assert an EED defense on his behalf. (Id. at 3-4.)
Petitioner sought leave to appeal the denial of his 440.10 Motion on or about September 18, 2017. (Doc. No. 13-12.) On December 20, 2017, the Appellate Division denied Petitioner leave to appeal and the decision was entered on January 23, 2018. (Doc. No. 13-14.)
III. THE INSTANT PETITION FOR A WRIT OF HABEAS CORPUS
On June 8, 2018, Petitioner filed the instant Habeas Petition pursuant to 28 U.S.C. Section 2554. Petitioner asserts three bases to support his ineffective assistance of counsel claim. First, Petitioner contends that his counsel was ineffective because he failed to challenge Petitioner's mental competency during the plea and sentencing hearings. Second, Petitioner argues that his counsel erroneously failed to raise an EED defense on his behalf during the plea and sentencing hearings. Third, Petitioner alleges that his counsel forced him to plead guilty through “persistent coaxing.” (Doc. No. 2, 3, 8.)
Petitioner also maintains that his sentence should be reduced in the “interest of justice” because he: received the maximum sentence for second-degree manslaughter, despite the fact that it was his first felony conviction; previously led a “law abiding life”; and will be over seventy years old at the time of his release, at which point he will be deported to the Dominican Republic, where he has not lived since 1995. (Id. at 2, 5.) Finally, Petitioner asserts that he did not validly waive his right to appeal his conviction when he entered his guilty plea. (Id. at 2, 6.)
LEGAL STANDARD
I. EXHAUSTION AND PROCEDURAL DEFAULT
Prior to seeking federal habeas review, a petitioner in state custody is required to exhaust all remedies available in state court. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). This means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A “complete round,” id., requires the petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.” Jackson, 763 F.3d at 133 (internal citation omitted). The exhaustion requirement ensures that state prisoners fairly present their federal constitutional claims to the state courts in the first instance. Id. at 132; see also Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (“The exhaustion requirement is animated by notions of comity between the federal and state judicial systems.” (internal quotation marks and citation omitted)).
When a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. If the petitioner's claim is unexhausted and the petitioner cannot obtain further review of that claim in state court for procedural reasons, then the federal court must deem the claim procedurally defaulted. Carvajal, 633 F.3d at 104 (quoting Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)); see also Jackson, 763 F.3d at 133 (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.” (internal quotation marks and citation omitted)).
“The Second Circuit has made clear that ‘federal habeas review is foreclosed when 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.'” Martinez v. Colvin, No. 1:17-cv-00757 (PKC)(KHP), 2018 WL 7047148, at *5 (S.D.N.Y. Nov. 6, 2018) (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)), adopted by 2018 WL 6649608 (S.D.N.Y. Dec. 19, 2018). “Thus, ‘as long as the state court explicitly invokes a procedural bar rule as a separate basis for decision,' the adequate and independent doctrine ‘curtails reconsideration of the federal issue on federal habeas.'” Martinez, 2018 WL 7047148, at *5 (quoting Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)). The only exceptions to this rule are if the petitioner establishes either “‘cause for the default and prejudice'” or that he is “‘actually innocent' of the crime for which he was convicted.” Carvajal, 633 F.3d at 104 (quoting Aparicio, 269 F.3d at 90).
II. STANDARD FOR HABEAS REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). A state prisoner can obtain federal habeas relief only by showing that the state court's decision on the merits was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or based on an unreasonable determination of the facts presented to the state court. 28 U.S.C. § 2254(d)(1)-(2). “To be ‘contrary to' clearly established law, a state court must reach a conclusion of law antithetical to a conclusion of law by the Supreme Court, or decide a case differently than the Supreme Court has when the two cases have ‘materially indistinguishable facts.'” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring)). In the AEDPA context, “clearly established” law refers to “only the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (internal quotation marks and citation omitted). It is not enough that the facts of a case are “similar to” those at issue in the relevant Supreme Court case - the two cases must involve the same specific question. Id. at 1377.
Once the clearly established Supreme Court holding has been distilled, “an ‘unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376. To satisfy the high bar for habeas relief, a petitioner must establish that “the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Where the state court's judgment does not unreasonably apply clearly established federal law or rely on an unreasonable determination of facts, the district court must defer to the state court's judgment on the petitioner's federal claims even if the state court's ruling does not expressly reference the federal claims or cite federal case law. Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (finding that the state court's denial of petitioner's ineffective assistance of counsel claim, which did not refer to the Sixth Amendment or federal case law, was sufficient to trigger habeas review).
III. TIMELINESS OF PETITION
a. The One-Year Statute of Limitations for Habeas Petitions
AEDPA imposes a one-year statute of limitations on federal habeas corpus petitions filed by prisoners in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1).
The one-year filing period begins to run on the latest of four dates:
(A) [T]he 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.28 U.S.C. § 2244(d)(1)(A)-(D). Here, the statute of limitations period is governed by Section 2244(d)(1)(A).
The New York Court of Appeals denied Petitioner leave to file a direct appeal on September 26, 2016, and Petitioner did not seek a writ of certiorari from the United States Supreme Court. As such, the judgment of conviction became final ninety days after leave to appeal was denied, on December 27, 2016. See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). Thus, absent tolling, the Petition's one-year statute of limitations accrued on December 27, 2017.
Because December 25, 2016 fell on a Sunday and December 26, 2016 was a federal holiday, the 90-day period continued to run until the following day.
b. Statutory Tolling
To ensure that habeas petitioners are able to exhaust all of their claims in state court before proceeding to federal court, AEDPA provides that the one-year statute of limitations applicable to habeas petitions will be tolled during the time that a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending ....” 28 U.S.C. § 2244(d)(2). As explained above, the Petition's one-year statute of limitations began to run on December 27, 2016. Because the Petition was filed on June 15, 2018, more than one year after Petitioner's conviction became final, this Court must now assess whether: (1) Petitioner's 440.10 Motion tolled the statute of limitations such that the instant Habeas Petition was timely-filed and (2) the 440.10 Motion constitutes a “properly filed application for State post-conviction or other collateral review” within the meaning of AEDPA, such that it actually tolled the statute of limitations. See id.
With respect to the Court's first inquiry, assuming that the 440.10 Motion tolled the statute of limitations, the instant Habeas Petition was timely filed. The 440.10 Motion is dated and notarized as of January 20, 2017, and the “prison mailbox” rule tolls the statute of limitations starting the day the pro se petitioner delivers his motion for collateral review to prison officials for mailing to the state court. See King v. Cunningham, 442 F.Supp.2d 171, 180 n.15 (S.D.N.Y. 2006) (“Under the prison mailbox rule, a pro se petitioner's delivery of his application to prison authorities for forwarding to state court starts tolling the § 2244(d) limitations period.” (citing Fernandez, 402 F.3d at 116). Assuming Petitioner delivered the 440.10 Motion to prison officials for mailing to the state court on January 20, 2017, the statute of limitations was tolled starting on January 20, 2017 - twenty-four days after Petitioner's conviction became final. See 28 U.S.C. §2244 (d)(2).
State court petitions are deemed “pending” from the day they are “first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures.” Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). Thus, the statute of limitations for Petitioner's habeas petition was tolled from January 20, 2017, the date the 440.10 Motion was filed, until January 23, 2018, when the Appellate Division denied Petitioner leave to appeal the denial of his Section 440.10 Motion. Because twenty-four days passed between the date Petitioner's conviction became final and the date he filed his 440.10 Motion, he had an additional 341 days from the date the 440.10 Motion was decided - i.e., until December 31, 2018 - to file the instant Habeas Petition. Petitioner filed the Habeas Petition on June 6, 2018. As such, assuming his Section 440.10 Motion qualified as a properly-filed application for state post-conviction or other collateral review, the Petition was filed well within the statute of limitations period. See 28 U.S.C. § 2244(d)(2).
Because December 30, 2018 fell on a Sunday, the statute of limitations period continued to run until the following day.
With respect to the second step of the Court's inquiry, here, the Court finds that Petitioner's 440.10 Motion constituted a properly-filed application for state post-conviction or other collateral review within the meaning of AEDPA. See id. For a state-court filing to toll AEDPA's statute of limitations, it must comply with the relevant filing requirements imposed by state law, which “usually prescribe[s], for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000); see also C.P.L. § 440.30 (setting forth pleading requirements). The filing must also seek “judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” Wall v. Kholi, 562 U.S. 545, 553 (2011); see also Collins v. Ercole, 667 F.3d 247, 251-52 (2d Cir. 2012) (a “judicial reexamination” requires “call[ing] the pertinent judgment into question” (internal quotation marks and citation omitted)).
Under New York law, a state court must “deny a motion to vacate a judgment based on a constitutional violation where the defendant unjustifiably failed to argue the constitutional violation on direct appeal despite a sufficient record.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (citing C.P.L. § 440.10(2)(c)). However, claims that rely on facts both in and outside of the record are “mixed claims” and are properly brought and exhausted in a Section 440.10 motion. See Pierotti v. Walsh, 834 F.3d 171, 178 (2d Cir. 2016); see also People v. Gott, 85 N.Y.S.3d 551, 553 (App.Div. 2nd Dep't 2018) ("To the extent that the defendant contends that counsel's conduct affected the voluntariness of the pleas or involved the plea bargaining process, her claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim” of ineffective assistance.”); cf. Sweet, 353 F.3d at 138 (petitioner's ineffective assistance of counsel claim was procedurally defaulted where he alleged that his attorney failed to object to inconsistent jury instructions and did not raise the issue on direct appeal).
In denying Petitioner's 440.10 Motion, Justice Barrett rejected Petitioner's contention that his attorney provided ineffective assistance of counsel by not raising an EED defense during the trial court proceedings and forcing Petitioner to plead guilty. Nevertheless, Justice Barrett implicitly found that these allegations were properly raised on collateral appeal because they rely on facts found both in and outside of the record. (Doc. No. 13-11, 2-4.) As such, because Petitioner's 440.10 Motion was properly filed and concerned state post-conviction or other collateral review, the AEDPA statute of limitations was tolled until December 31, 2018 and the instant Habeas Petition was timely-filed.
Justice Barrett also held that Petitioner's claim, that his attorney provided ineffective assistance of counsel by failing to challenge Petitioner's mental competency during the trial court proceedings, is procedurally barred by C.P.L. Section 440.10(2)(c) because that claim is premised on a “lack of mental fitness at the plea proceeding” that could have been raised on direct appeal by citing to the record. (Doc. No. 13-11, 2.) However, as discussed above, because the 440.10 Motion also addressed defenses that were properly raised on collateral appeal, Plaintiff's 440.10 Motion tolled the one-year statute of limitations. Justice Barrett also found that Petitioner's claim, that the trial court's plea allocution was insufficient, was also barred by Section 440.10(2)(c). However, because the instant Petition omits this claim, that issue is not before this Court and will not be further addressed.
AEDPA also permits equitable tolling of the one-year statute of limitations. See Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted). However, because Petitioner's 440.10 Motion met the requirements for statutory tolling, equitable tolling will not be discussed here.
ANALYSIS OF PETITIONER'S CLAIMS
Where, as here, a petitioner is appearing pro se, the district court must construe his habeas petition liberally and interpret it to “raise the strongest possible argument . . . [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citations omitted).
I. PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Petitioner alleges that he received ineffective assistance of counsel, in violation of his Sixth Amendment rights, because his attorney failed to question Petitioner's mental competency at the trial court proceedings and raise an EED defense on Petitioner's behalf, and also coerced Petitioner into pleading guilty through “persistent coaxing.” (Doc. No. 13-8, 2-6, 9.) Respondent argues that Petitioner's claim, that his attorney should have challenged his mental competency, is procedurally barred because it was not raised on direct appeal. Respondent also contends that the state court properly denied the 440.10 Motion because the transcripts from the Plea and Sentencing Hearings contradict Petitioner's allegations that he did not understand the plea and that he was pressured to plead guilty. (Doc. No. 14, 7, 12.) Respondent further argues that, to the extent Petitioner's ineffective assistance of counsel claims are true, Petitioner, nevertheless, has failed to demonstrate that he was prejudiced as a result. (Id. at 12.) For the reasons discussed below, the Court finds that Plaintiff's ineffective assistance of counsel claims do not warrant habeas relief.
a. Exhaustion and Procedural Default
i. Petitioner's Mental Competency
“For 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” because, under those circumstances, “a petitioner no longer has remedies available in the courts of the State within the meaning of 28 U.S.C. § 2254(b).” Brown v. Perlman, No. 07 Civ. 8672 (RMB) (AJP), 2008 WL 2009220, at *28 (S.D.N.Y. May 8, 2008) (internal quotation marks omitted) (first quoting Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); then quoting Grey v. Hoke, 933 F.2d 117, 120 (S.D.N.Y. 1991)), adopted by 2008 WL 2545066 (S.D.N.Y. June 23, 2008).
Here, Petitioner claims that his attorney provided ineffective assistance of counsel, in part, because he failed to “challenge [Petitioner's] mental competency and request a competency examination” in connected with his plea and sentencing. (Doc. No. 2, 8.) Although he points to no facts outside the record to support this argument, Petitioner first raised this issue in his 440.10 Motion rather than on direct appeal. However, and as discussed above, because this allegation is based on the record from the trial court proceedings, it should have been raised on direct appeal. (See Doc. No. 13-11, 2 (citing C.P.L. § 440.10(2)(c))); see Pierotti, 834 F.3d at 175, 178. Petitioner's failure to assert this argument on direct appeal in the first instance foreclosed on his ability to raise it before the state court, and provides an “independent and adequate state ground upon which [this] claim[] [is] procedurally defaulted.” Acosta v. Giambruno, 326 F.Supp.2d 513, 522 (S.D.N.Y. 2004).
“To avoid a procedural default on [this] unexhausted ineffective assistance of trial counsel claim, [Petitioner] would have to show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claims will result in a fundamental miscarriage of justice, i.e., a showing of actual innocence.” Brown, 2008 WL 2009220, at *29 (internal quotation marks and citation omitted). Here, however, Petitioner has not shown that he will suffer from a fundamental miscarriage of justice if this Court denies him habeas relief on his claim that his counsel erroneously failed to challenge his competency in the trial court proceedings because Petitioner has not alleged that he is innocent. Accordingly, this portion of Petitioner's ineffective assistance of counsel claim is procedurally defaulted and ineligible for habeas review.
ii. Petitioner's Attorney's Alleged Failure to Raise an EED Defense and Use of “Persistent Coaxing” to Force Petitioner to Plead Guilty
To the extent Petitioner's remaining ineffective assistance of counsel claims rest on the allegation that his attorney erroneously failed to raise an EED defense on his behalf and forced him to plead guilty, these claims rely on facts found both in and outside the record and were properly exhausted in the 440.10 Motion. See Fulton v. Graham, 802 F.3d 257, 263 (2d Cir. 2015) (“New York courts do not ordinarily apply § 440.10(2)(c) to bar claims of ineffective assistance based on out-of-court conversations between a defendant and his counsel. . . . Indeed . . . state courts ordinarily demand that such ineffective assistance claims be brought in collateral proceedings, rather than on direct appeal.”); see also Pierotti, 834 F.3d at 175, 178 (mixed claims raised in Section 440.10 motion were exhausted after the supreme court denied the motion and the appellate division denied leave to appeal).
b. Legal Standard Governing Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution states that a criminal defendant “shall enjoy the right . . . to have the Assistance of Counsel for his defense.” Habeas petitions that assert ineffective assistance of counsel claims are analyzed under the “clearly established” federal law standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner claiming ineffective assistance of counsel in violation of the Sixth Amendment must establish that: (1) his counsel's representation “fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 692-94.
Under the first prong of the Strickland test, the petitioner bears the burden of demonstrating that his counsel's errors were “so serious that counsel was not functioning as the ‘counsel' guaranteed [to] the defendant by the Sixth Amendment.” Harrington, 562 U.S. 86, 104 (2011) (internal quotation marks and citation omitted). This standard is intentionally high because ineffective assistance claims “are quite often the law's equivalent of ‘buyer's remorse' or ‘Monday morning quarterbacking' . . . [and] [d]ecisions by criminal defense counsel are often choices among bad alternatives ....” Mui v. United States, 614 F.3d 50, 57 (2d Cir. 2010). Because ineffective assistance of counsel claims “can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, . . . the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington, 562 U.S. at 105 (citing Strickland, 466 U.S. at 689-90). In applying Strickland, the Court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks and citation omitted).
Under the second prong of the Strickland test, a petitioner can demonstrate prejudice by proving that “‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” Williams, 529 U.S. at 391 (quoting Strickland, 466 U.S. at 694). Thus, in determining whether a habeas petitioner has suffered prejudice as a result of his trial counsel's allegedly unreasonable acts or omissions, “the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently .... Instead, Strickland asks whether it is ‘reasonably likely' the result would have been different.” Harrington, 562 U.S. at 111 (internal citations omitted). In other words, the “question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695; see also United States v. Thornhill, 34 F.Supp.3d 334, 360 (S.D.N.Y. 2014) (“‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding,' as ‘[v]irtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” (alteration in original) (quoting Strickland, 466 U.S. at 693)), aff'd, 667 Fed.Appx. 310 (2d Cir. 2016).
“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700. Thus, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697. Furthermore, habeas relief on an ineffective assistance of counsel claim is only warranted if Petitioner can prove that the New York State Supreme Court applied the Strickland standard unreasonably in denying Petitioner's Section 440.10 Motion. See Harrington, 562 U.S. at 105 (“The standards created by Strickland and [AEDPA] are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so” (internal citations omitted)).
c. Application of Strickland to Petitioner's Ineffective Assistance of Counsel Claim
To determine whether Petitioner met the first prong of the Strickland test with respect to his claim that his attorney forced him to plead guilty, the Court compares Petitioner's sworn statements at the Plea Hearing with the allegations raised in his Habeas Petition. See Shelikhova v. United States, No. 10-cr-771 (NG) and 16-cv-6861 (NG), 2017 WL 3995572, at *2 (E.D.N.Y. Sept. 7, 2017) (“Although the court must ‘view[] the evidentiary proffers, where credible, and record in the light most favorable to the petitioner,' the court ‘need not assume the credibility of factual assertions . . . where the assertions are contradicted by the record in the underlying proceeding.'” (alteration in original) (quoting Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009)). As observed by the Bronx County Supreme Court, the transcript of the Plea Hearing shows that Petitioner unequivocally represented in open court that he agreed to plead guilty of his own free will. (Plea Hr'g Tr. 11:18-12:05.) Because this Court is required to “‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'” Strickland, 466 U.S. at 689, it cannot conclude, based on Petitioner's bare assertions alone, that his counsel forced him to plead guilty. See Shelikhova, 2017 WL 3995572, at *3. As such, Petitioner's allegation that his attorney forced him to plead guilty fails the first prong of the Strickland test.
With respect to the second prong of the Strickland test, both Petitioner's allegation that his attorney forced him to plead guilty and his allegation that his counsel erroneously failed to raise an EED defense during the trial court proceedings fail because Petitioner has not shown that he was prejudiced by entering the guilty plea. To show prejudice in this context, a petitioner must “show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial” and that his affirmative defenses would have likely succeeded at trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985) (citation omitted). Here, Petitioner has not indicated that he would have elected to go to trial instead of entering a guilty plea if he had been given the choice to do so. Additionally, and as observed by Justice Barrett, even if Petitioner had brought his case to trial, his best outcome would have been identical to the sentence he obtained through his guilty plea - a determinate sentence of twenty-five years followed by five years of post-release supervision. (Doc. No. 13-11, 3-4.) However, if Petitioner had gone to trial to fight the second-degree murder charge and failed to successfully raise an EED Defense, he would have risked receiving an even harsher sentence of life in prison. Given that voluntary intoxication cannot be used to excuse or mitigate an offense and “does not bear on the defense of extreme emotional disturbance,” Petitioner's chances of successfully raising an EED defense at trial were nonexistent. People v. Knights, 486 N.Y.S.2d 377, 378 (App.Div. 3rd Dep't 1985). Accordingly, in light of the above, Petitioner has not asserted a meritorious ineffective assistance of counsel claim.
Under Penal Law Section 125.25, an “extreme emotional disturbance for which there was a reasonable explanation or excuse” is a defense to a second-degree murder charge, but is not a defense to “manslaughter in the first degree or any other crime ....”
II. PETITIONER'S CLAIM THAT HIS SENTENCE SHOULD BE REDUCED “IN THE INTEREST OF JUSTICE”
Petitioner argues that this Court should reduce his sentence “in the interest of justice” because he received the maximum sentence permitted for first-degree manslaughter, a Class B felony, despite entering a guilty plea, having no prior felonies, and the fact that he will be approximately seventy years old when he is released, at which point he will likely be deported to the Dominican Republic. (Doc. No. 2, 6.) This claim relies upon C.P.L. Section 470.15, which authorizes New York appellate courts to, among other things, reverse or modify criminal court judgments in the “interest of justice” that are “unduly harsh or severe.” Notably, in raising this claim on direct appeal, Petitioner's appeal counsel relied solely on New York state law. (See id. at 6, 28 (citing People v. Wiggins, 806 N.Y.S.2d 496 (App.Div. 1st Dep't 2005)).)
To start, because Petitioner's request to reduce his sentence raises state law rather than federal constitutional issues, it is ineligible for habeas review. Further, there is no dispute that Petitioner's sentence falls within the range permitted by New York State law for Class B felonies. See Penal Law § 70.02(3)(a) (permitting a sentence of up to twenty-five years for Class B felonies). It is well established that prison sentences that fall within the range permitted by state law do not raise federal constitutional issues that can be adjudicated in a habeas petition. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam); see also Edwards v. Marshall, 589 F.Supp.2d 276, 290 (S.D.N.Y. 2008) (“[Petitioner] claims that his sentence should be reduced in the interest of justice. To the extent that his claim relies on state-law principles, it is not cognizable on federal habeas review.”). As such, Petitioner's request to reduce his sentence should be denied, as it does not raise constitutional issues that can be addressed by this Court.
Even if this Court construes Petitioner's claim as an Eighth Amendment claim, it still fails. See Acosta, 326 F.Supp.2d at 523 n.5 (construing excessive sentence claim as an Eighth Amendment claim). This claim is unexhausted because, as explained above, it was presented to the New York state courts in terms of state rather than federal law. Thus, the state courts were deprived of the opportunity to evaluate Petitioner's Eighth Amendment claim in the first instance. Id. at 522-23. Furthermore, because such an Eighth Amendment claim is record- based, it should have been raised on direct appeal and is now procedurally barred by New York state law. See id. at 522. Finally, and as explained above, because Petitioner has not alleged that he is innocent, he cannot avoid procedural default on this unexhausted claim. See Brown, 2008 WL 2009220, at *29. As such, this Court cannot adjudicate Plaintiff's claim that his sentence should be reduced.
III. PETITIONER'S INVALID APPEAL WAIVER CLAIM
To the extent Petitioner alleges that the trial court “failed to ensure tha[t] [Petitioner] understood that his right [to appeal] was not automatically forfeited by his guilty plea” and that the plea waiver he signed contained invalid provisions, those claims are moot. (Doc. No. 2, 8.) “Article III, Section 2 of the United States Constitution limits the subject matter of the federal courts to cases that present a ‘case or controversy.'” Bourdon v. Walker, 453 F.Supp.2d 594, 599 (N.D.N.Y. 2006) (citations omitted); see also Spencer v. Kemna, 523 U.S. 1, 7 (1998) (same). “[W]here the issues presented by a party in an action are no longer ‘live,' or the party lacks a legally cognizable interest in the outcome, the federal action is properly dismissed as moot.” Bourdon, 453 F.Supp.2d at 599 (first citing City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000); then citing Lavin v. United States, 299 F.3d 123, 128 (2d Cir.2002); then citing Yekimoff v. New York State Div. of Parole, No. 02 Civ. 8710(BSJ), 2003 WL 22305171, at *1 (S.D.N.Y. Oct. 8, 2003)). The petitioner “‘bear[s] the burden of demonstrating some concrete and continuing injury sufficient to create an Article III case or controversy.'” Id. at 600 (quoting United States v. Mercurris, 192 F.3d 290, 294 (2d Cir. 1999)).
It is undisputed that Petitioner already successfully raised his claim that he did not validly waive his right to appeal. (Doc. No. 13-4.) As such, this claim is moot because he already obtained the relief he seeks for this claim - the invalidation of his appeal waiver. (Id.)
As such, this claim is ineligible for habeas review.
CONCLUSION
For the foregoing reasons, this Court respectfully recommends that the Petition be dismissed in its entirety. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the Pro Se Petitioner.
NOTICE
Petitioner shall have seventeen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Respondent shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.
If Petitioner files written objections to this Report and Recommendation, Respondent may respond to Petitioner's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Alternatively, if Respondent files written objections, Petitioner may respond to such objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).