Opinion
1:18-cv-00168 (GHW) (VF)
09-14-2022
ROBERTO GERON, Petitioner, v. SUPERINTENDENT H. GRAHAM, Respondent.
HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
On November 21, 2012, Petitioner Roberto Geron pled guilty to Manslaughter in the First Degree, Penal Law § 125.20(1), and Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03(1)(b), in the New York Supreme Court, New York County. Petitioner was sentenced on December 11, 2012, to concurrent determinate prison terms of 22 years for first-degree manslaughter and 15 years for second-degree weapon possession, to be followed by five years of post-release supervision. Petitioner appealed his conviction, which was unanimously affirmed by the Appellate Division, First Department. Petitioner was subsequently denied leave to appeal to the New York Court of Appeals. See People v. Geron, 161 A.D.3d 530 (1st Dep't), lv. denied, 28 N.Y.3d 1124 (2016).
On December 6, 2017, Petitioner, proceeding pro se, submitted the instant Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was received by the court on December 15, 2017. See Petition (“Pet.”), ECF No. 1. Petitioner asserts two grounds for habeas relief. First, Petitioner argues that his plea was not knowing, voluntary, and intelligent because: (1) the court should have ordered a competency evaluation to ensure that he understood the proceedings; and (2) the plea allocution was insufficient. Pet. ¶¶ 10, 62-83, 89-100, 103-08, 116-19. Second, Petitioner asserts that the court violated his Eighth Amendment rights, because the court should have allowed him to plead guilty to third-degree criminal possession of a weapon and should have imposed a sentence falling within the range authorized for that crime. Id. ¶¶ 101-102, 109-112.
For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
FACTUAL BACKGROUND
Citations to the transcripts of the plea proceeding and sentencing proceeding are denoted as “P” and “S,” respectively. These transcripts are located at ECF No. 19-1. Citations to the State Record (ECF No. 19-2) are denoted by “SR” followed by the page number.
At approximately 2:20 a.m. on July 25, 2011, Petitioner shot and killed Humberto Alvarado Rivera as Petitioner was leaving a restaurant located at 558 West 181 Street in Manhattan. SR at 26. Earlier that evening, Petitioner and his friend had argued with a waitress at the restaurant, and Petitioner had threatened her and showed her a gun. Id. at 26-27. Later on, Petitioner's friend started a fight with a group of other guests at the restaurant. Id. at 27. According to Petitioner, the victim, Rivera, attacked him inside the restaurant and then followed him out of the restaurant as Petitioner tried to flee. Pet. ¶¶ 19-20. Petitioner admitted to shooting Rivera twice, as Petitioner was leaving the restaurant. Pet. ¶ 20; SR at 27. Rivera died of his wounds. SR at 27. After the shooting, Petitioner fled New York and was apprehended months later, on November 18, 2011, in Texas. Id. A grand jury charged Petitioner with Murder in the Second Degree, Penal Law § 125.25(1), and Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03(1)(b). Id.
It is not clear from the State Record to what extent Rivera was involved in the altercation inside the restaurant.
B. The Plea and Sentencing Proceedings
On November 21, 2012, Petitioner, accompanied by counsel, Matthew Myers, appeared before the Honorable Thomas Farber in Supreme Court, New York County, to enter a guilty plea (P: 2-3). At the start of the plea hearing, the court explained to Petitioner the terms of the plea agreement: in exchange for Petitioner's guilty plea to first-degree manslaughter (a class-B violent felony) and second-degree weapon possession (a class-C violent felony), Petitioner would receive concurrent determinate sentences of 22 years on the manslaughter count and 15 years on the weapon-possession count, to be followed by five years of post-release supervision (P: 3-4). Petitioner acknowledged that these were the terms of his plea agreement with the prosecution and that he wished to plead guilty (P: 4).
Although Petitioner accepted the court's offer of a Spanish interpreter for the plea proceeding (P: 4-5), Petitioner had not previously used an interpreter during other proceedings. Moreover, Petitioner confirmed to the court at the plea hearing that he spoke and understood English (P: 4).
Petitioner's counsel informed the court that he had “numerous” meetings with Petitioner and that “the record should be crystal clear” that he had reviewed with Petitioner the justification defense (P: 5). As counsel explained, he had discussed with Petitioner the use of “the justification defense in this case,” whether Petitioner “could prevail with [a] justification” defense, and that the People would be required to disprove justification beyond a reasonable doubt (P: 5-6). Counsel also confirmed that he had explained to Petitioner that, by pleading guilty, Petitioner would be giving up his right to assert a justification defense (P: 5-6).
The court repeated the terms of the plea agreement to Petitioner and again Petitioner stated that he wished to plead guilty (P: 6-7). Petitioner confirmed that he had fully discussed the terms of the plea with his counsel, that no one was forcing him to plead guilty, and that no one had promised him anything else in exchange for his guilty plea (P: 7). Additionally, Petitioner acknowledged his understanding that by pleading guilty he would give up his right to a jury trial, at which he could cross-examine witnesses and where the People would be required to prove his guilt by proof beyond a reasonable doubt (P: 7-8). Petitioner further acknowledged that by pleading guilty he would be giving up his right to remain silent and not to testify (P: 9). Petitioner also confirmed that he understood that his conviction by guilty plea was the same as if he had been convicted after trial (P: 9). Further, Petitioner specifically acknowledged his understanding that, if he had gone to trial, the People would have been required to disprove the defense of justification, “what is commonly referred to as self-defense,” beyond a reasonable doubt (P: 8-9).
Additionally, Petitioner's counsel explained that he had discussed with Petitioner that Petitioner would “very likely” be deported as a consequence of his conviction; Petitioner confirmed his understanding of the deportation consequences of his guilty plea (P: 10-11). The court also explained to Petitioner that although he would not automatically give up his right to appeal his conviction by pleading guilty, Petitioner would be required to waive his right to appeal as a condition of his plea agreement, except for “certain matters” for which the right to appeal cannot be waived (P: 11). The court asked Petitioner to review the waiver of appeal, to discuss it with his attorney, and to sign it if he agreed to its terms (P: 11). Petitioner conferred with counsel and subsequently signed the waiver of appeal (P: 11).
Petitioner then admitted that on July 25, 2011, he had a “dispute” at a restaurant in Manhattan, pulled out a “weapon,” and, with the intent to cause serious physical injury to another person, he shot and killed that person (P: 11-12). Justice Farber noted that “[t]he People also charge[d] that the shooting was not justified, under the law” and asked Petitioner if that was true, to which Petitioner replied “Yes” (P: 12).
The court explained to Petitioner that if he pled guilty he could not change his mind at sentencing, and later claim that he was unhappy with his lawyer, complain that his lawyer did not satisfactorily explain the plea, or complain to the court that he “did not understand some of the aspects of the law,” including, for example, “that the People [would] have [been required at trial] to disprove justification beyond a reasonable doubt” (P: 12-13). Petitioner acknowledged his understanding that once he pled guilty, he could not change his decision (P: 13). Petitioner then pled guilty to first-degree manslaughter and second-degree criminal possession of a weapon, and the court accepted Petitioner's guilty plea (P: 13-14).
Subsequently, Petitioner's counsel asked the court whether it would “allocate” Petitioner on the weapon-possession count as well (P: 13). The court noted that Petitioner had admitted in his allocution to using a weapon, which was “the handgun,” and further explained that “technically justification does not apply to criminal possession of a weapon in the second degree” (P: 13). The court added that justification would nevertheless “come in through the back door, so to speak” if there were a trial, “because in order for the defendant to be convicted of criminal possession of a weapon in the second degree, the People have to show that he . . . possessed the weapon with intent to use it unlawfully against another” (P: 13-14). The court thus explained that its allocution, during which Petitioner admitted that his use of the weapon was not justified, covered the weapon possession count (P: 14).
On December 11, 2012, Petitioner appeared before Justice Farber for sentencing. This time, Petitioner was accompanied by two attorneys, Matthew Myers and Benjamin Heinrich. Heinrich explained to the court that he was replacing Myers as Petitioner's counsel and planned to file a motion to withdraw the plea “after investigating” the claim (S: 2). Heinrich requested an adjournment of Petitioner's sentencing (S: 7).
The court explained that it would hear counsel's application as to why the plea should be vacated, but that it intended to sentence Petitioner that day (S: 3-4). Reading from the plea transcript, the court noted that it had warned Petitioner that once he pled guilty, he could not withdraw his plea (S: 3-4). Heinrich argued that the court had not explained to Petitioner that if Petitioner had prevailed on a justification defense at trial, he could not have been found guilty of second-degree weapon possession (S: 5). Counsel thus argued that the court had not adequately explained to Petitioner that had he succeeded at trial on a justification defense for the homicide count, he would only have been facing a potential prison sentence of seven years, for third-degree weapon possession, and not 15 years for second-degree weapon possession (S: 5).
The court noted that the indictment did not charge Petitioner with third-degree weapon possession and that third-degree criminal possession of a weapon was not a lesser included offense of second-degree weapon possession (S: 5-6). Moreover, the court explained that Petitioner had been informed, prior to his guilty plea, that if he had been “found to be justified” at trial, the “chances of his being convicted of Criminal Possession of a Weapon in the Second Degree at all [were] infinitesimally small” because if he had been “justified in the use” of the weapon, then “he would be using the weapon lawfully” (S: 6). Additionally, the court noted that Myers, Petitioner's counsel at the plea proceeding, had represented to the court that he had “thoroughly discussed” with Petitioner the justification defense, and the court further noted that it too had discussed the defense with Petitioner (S: 6). Myers confirmed that he had explained “all that” to Petitioner and had specifically spoken to Petitioner about “the weapons charge and how it related” to the justification defense (S: 6). Myers further noted that he had discussed with Petitioner whether the court would even charge the jury on justification, given surveillance video of the shooting, that he and Petitioner had viewed together (S: 7-8).
The court ultimately denied counsel's request for an adjournment of the sentencing in order to file a motion to withdraw the guilty plea (S: 7). The People confirmed the terms of the negotiated plea agreement and, following various statements by family members of the victim, the court sentenced Petitioner (S: 8-13). The court imposed the agreed-upon sentence of concurrent determinate terms of 22 years for the first-degree manslaughter count and 15 years for the weapon-possession count, followed by five years of post-release supervision. (S: 12-13).
Counsel did not subsequently file a written motion to vacate the guilty plea.
C. Petitioner's Direct Appeal
Petitioner, through counsel, appealed his conviction to the Appellate Division, First Department, on April 19, 2016. There, Petitioner raised two claims: that his waiver of appeal was invalid and that his sentence was excessive. SR at 7-22.
Petitioner did not raise a claim challenging the validity of his plea. On October 13, 2016, the Appellate Division unanimously affirmed Petitioner's conviction. People v. Geron, 143 A.D.3d 530 (1st Dep't 2016). In his subsequent leave application to the New York Court of Appeals, Petitioner raised the same two issues he had raised in his brief to the Appellate Division. SR at 44-45. On December 19, 2016, that court denied Petitioner's leave application. People v. Geron, 28 N.Y.3d 1124 (2016).
D. Petition for a Writ of Habeas Corpus
In the instant pro se habeas petition, received by the court on December 15, 2017, Petitioner argues that: his plea was not knowing, voluntary, and intelligent for two reasons: (1) the court should have ordered a competency evaluation to ensure that Petitioner understood the proceedings; and (2) the plea allocution was insufficient. See Pet. ¶¶ 10, 62-83, 89-100, 103-08, 116-19. Petitioner also argues that the court violated his Eighth Amendment rights because he should have been allowed to plead guilty to third-degree weapon possession and been sentenced within the range authorized for that crime. See Pet. ¶¶ 101-102, 109-112. On July 11, 2018, Respondent filed an opposition to the Petition. ECF Nos. 20-21. As to Petitioner's claim challenging the validity of his guilty plea, Respondent argues that the claim is unexhausted and, in any event, meritless because the record demonstrates that the plea was knowing, voluntary, and intelligent. ECF No. 21 at 13-19. And as to the Eighth Amendment claim, Respondent argues that the claim is unexhausted and, in any case, meritless because Petitioner's sentence is legally authorized under state law. Id. at 19-20.
LEGAL STANDARDS FOR HABEAS RELIEF UNDER 28 U.S.C. § 2254
“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 seeking habeas relief under § 2254 must show by a preponderance of the evidence that he or she is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A. Timeliness
AEDPA imposes a one-year statute of limitations on habeas corpus petitions. As relevant here, a state prisoner has one year to file his petition after “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final “upon the completion of direct appellate review in state court and by the United States Supreme Court- either when certiorari proceedings are completed or when the time for seeking direct review by the United States Supreme Court expires, i.e., ninety (90) days after the last decision by the highest state court to which a direct appeal can be taken.” Wynerman v. Colvin, 2017 WL 3503402, at *2 (S.D.N.Y. June 13, 2017) (citing Clay v. United States, 537 U.S. 522, 531-32 (2003)); accord Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).
B. Exhaustion
A federal court may not consider a petition for a writ of habeas corpus, even if timely filed, unless the petitioner has exhausted available remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“To provide the state with the first opportunity to consider and correct alleged violations of its prisoners' constitutional rights, a state prisoner is required to exhaust all of his available state remedies before a federal court can consider his habeas application.”). In other words, the 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). In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division, then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
To satisfy the exhaustion requirement, a petitioner must “fairly present” each of his habeas claims, in “each appropriate state court (including a state supreme court with powers of discretionary review),” in a manner that “alert[s] that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted); Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (“While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,' he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.'”) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
A petitioner can “fairly present” his claims in several ways, including by citing to the applicable provisions of the federal Constitution in his state-court briefs, see Davis v. Strack, 270 F.3d 111, 122-23 (2d Cir. 2001), or by citing “pertinent federal cases employing constitutional analysis,” Rustici v. Phillips, 308 Fed.Appx. 467, 469 (2d Cir. 2009) (citation and internal quotation marks omitted). However, a claim is generally not “fairly presented” to a state court “if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Moreover, the federal claim must be presented with some specificity: “a general appeal to a constitutional guarantee as broad as due process” is insufficient “to present the ‘substance' of such a claim to a state court.” Gray v. Netherland, 518 U.S. 152, 163 (1996) (citing Anderson v. Harless, 459 U.S. 4, 7 (1982)).
C. Procedural Default
If 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. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[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 citations omitted). The exception to this rule is if the petitioner establishes either “cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 615 (1998) (internal quotation marks and citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 748-50 (1991).
A petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available,” (2) “some interference by state officials made compliance [with the procedural rule] impracticable,” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks and citation omitted). Although the Supreme Court has not given “precise content” to the term “prejudice,” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S. 152, 175 (1982). “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley, 523 U.S. at 623).
D. Merits
AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under AEDPA, courts may only grant a habeas petition if the challenged state-court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state-court decision, or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
“Clearly established” federal law means “the holdings, as opposed to the dicta,” of the decisions of the United States Supreme Court “as of the time of the relevant state-court decision,” and does not include opinions of lower federal appellate courts. Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
Under the first prong, section 2254(d)(1)'s “‘contrary to' and ‘unreasonable application of' clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams, 529 U.S. at 404-05). A state-court decision is “contrary to” clearly established federal law if the state court “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court makes an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 419 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (quoting White v. Woodall, 572 U.S. at 420).
Under the second prong, a state-court decision constitutes an “unreasonable application” of the Supreme Court's precedent if the state court applied the Supreme Court's “precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). A state court's factual determination may not be deemed unreasonable “merely because [a reviewing court] would have reached a different conclusion in the first instance.” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference.” Brumfield, 576 U.S. at 314. If ‘[r]easonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id. (alterations in original) (citation omitted). For federal habeas review, factual determinations made by a state court are presumed correct, and a petitioner bears the burden of rebutting this presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
E. Pro Se Filings
Courts liberally construe pleadings prepared by pro se litigants and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). It is appropriate to interpret pro se submissions to raise the strongest arguments that they suggest. Gomez v. Brown, 655 F.Supp.2d 332, 342 (S.D.N.Y. 2009) (explaining that because of the right of self-representation, the court is obligated to make reasonable allowances to protect pro se litigants from “inadvertent forfeiture of important rights because of their lack of legal training”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
DISCUSSION
A. Petitioner's Claims are Timely
Petitioner's conviction became final on March 19, 2017-90 days after the Court of Appeals denied his leave application on December 19, 2016. Wynerman, 2017 WL 3503402, at *2. Petitioner signed his Petition on December 6, 2017, and it was received by this Court on December 15, 2017, well within AEDPA's one-year statute of limitations. The Petition is therefore timely under 28 U.S.C. § 2244(d)(1).
B. Petitioner's Challenge to the Validity of his Guilty Plea
In his habeas petition, Petitioner challenges the validity of his guilty plea, raising several arguments for why the plea was not knowing, intelligent, and voluntary. As discussed below, the claim is unexhausted and, even if reviewed on the merits, fails.
1. Petitioner's claim is unexhausted and procedurally barred.
To exhaust a claim for habeas review, “the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999). Petitioner never raised his present claim, challenging the validity of his guilty plea, to the state courts.
Petitioner never challenged the validity of his guilty plea at all on direct appeal. See SR at 7-22. Nor did Petitioner file a motion to withdraw his guilty plea before sentencing. See Foreman v. Garvin, No. 99-CV-9078 (GBD) (AJP), 2000 WL 631397, at *8 (S.D.N.Y. May 16, 2000) (explaining that, prior to sentencing, a claim challenging the voluntariness of a guilty plea must be presented in a motion to withdraw the plea). Although Petitioner's counsel at sentencing attempted to make a motion to withdraw the guilty plea specifically on the ground that the plea allocution for the weapon-possession count was inadequate (P: 4-6), Justice Farber denied counsel's request for an adjournment of sentencing to file a written motion and proceeded with sentencing the same day (P: 7). Counsel never followed up with a written motion to vacate the guilty plea. Petitioner also never raised any challenge to the validity of his guilty plea on direct appeal. And the adequacy of the allocution on the weapon-possession count, as well as the other arguments Petitioner now raises challenging his plea, would have been evident from the record and therefore could have been raised on direct appeal. See Gulifield v. Superintendent, Green Haven Corr. Facility, No. 18-CV-2411 (CS) (PED), 2022 WL 1486797, at *12 (S.D.N.Y. May 11, 2022) (concluding that challenge to voluntariness of guilty plea was unexhausted where petitioner did not raise the claim on direct appeal or by a § 440.10 motion, even though Petitioner “orally attempted to withdraw his guilty plea.”). In short, Petitioner's challenge to the validity of his guilty plea is unexhausted.
Moreover, Petitioner “no longer has remedies available in the courts of the State” to raise these arguments in support of his claim, and thus the claim is deemed exhausted but procedurally defaulted. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); see also Ward v. Gerbing, No. 19-CV-547 (VB) (PED), 2022 WL 3352080, at *11 (S.D.N.Y. June 28, 2022), report and recommendation adopted, 2022 WL 3354677 (S.D.N.Y. Aug. 12, 2022). Petitioner's arguments challenging the validity of his plea are record based. Stated otherwise, the facts upon which his arguments rely appear in the transcripts of the plea and sentencing proceedings. As such, Petitioner could have raised his present challenge on direct appeal. Having failed to do so, Petitioner would be unable to raise them now in a CPL § 440.10 motion if he were to return to state court. “Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.” Foreman, 2000 WL 631397, at *9. As such, Petitioner's claim is deemed exhausted but procedurally barred. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997).
Although Petitioner could overcome this procedural bar if he made a showing of actual innocence, Petitioner nowhere claims that he is innocent of the crimes to which he pled guilty. See Schlup v. Delo, 513 U.S. 298, 315 (1995); Harris v. Reed, 489 U.S. 255, 262 (1989). To the contrary, Petitioner admits in his Petition that he shot the victim. See Pet. ¶¶ 20-21. Additionally, Petitioner does not provide any excuse for his failure to raise his present arguments on direct appeal, nor does he allege that he was prejudiced from the failure to do so. Accordingly, Petitioner's claim is unexhausted and procedurally defaulted.
2. Petitioner's claim is meritless.
Even if reviewable, Petitioner's claim would fail on the merits because the record establishes that his guilty plea was knowing, voluntary, and intelligent. The Due Process Clause of the Fourteenth Amendment requires that a guilty plea be knowingly and voluntarily entered. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); see also Parke v. Raley, 506 U.S. 20, 28 (1992)). A plea is voluntary and intelligent when a defendant had the advice of counsel, understood the plea consequences, and the plea was not physically or mentally coerced. See Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988) (citing Brady v. United States, 397 U.S. 742, 750 (1970)). “The well-established standard for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Washington v. Tynon, No. 17-CV-1715 (JFB), 2018 WL 6168014, at *10 (E.D.N.Y. Nov. 20, 2018) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)).
A defendant's statements under oath at a plea allocution “carry a strong presumption of verity” and “constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Such statements “are generally treated as conclusive in the face of the defendant's later attempt to contradict them.” Adames v. United States, 171 F.3d 728, 732 (2d Cir. 1999) (citing United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992). Nonetheless, the barrier imposed by this rule is “not invariably insurmountable.” Blackledge, 431 U.S. at 74 (citations omitted). Where a defendant can prove through extrinsic evidence that there was some “misunderstanding, duress, or misrepresentation by others” the guilty plea may be “a constitutionally inadequate basis for imprisonment.” Id. at 75.
Here, Petitioner's plea was knowing, voluntary, and intelligent. Throughout the plea proceedings, and with the assistance of an interpreter, Petitioner indicated that he had discussed his case with his attorney and that he understood: what it meant to plead guilty; what rights he would be giving up by doing so; that he would be giving up the defense of justification; and that he understood the immigration consequences that would flow from his conviction (P: 6-11). Moreover, Petitioner, while under oath, confirmed that he was not forced to plead guilty and was not promised anything in exchange for his plea other than the agreed-upon sentence (P: 7). Petitioner also confirmed that he understood that at trial the People would have to disprove the defense of justification (P: 8). Petitioner also admitted his guilt of the crimes to which he pled guilty-stating that he pulled out a weapon and shot and killed the victim, while intending to cause serious physical injury, and that this act was not justified (P: 11-12).
Finally, the record also indicates that Petitioner's counsel and the court explained the justification defense to Petitioner and how it related to the weapon-possession charge (P: 5-6, 8-9, 12-14). Specifically, the court explained that the People would have been required to prove at trial, beyond a reasonable doubt, that Petitioner was not justified in his use of the gun (P: 5-6). Further, the court explained that although “technically justification does not apply to criminal possession of a weapon,” the defense would “come[ ] in through the back door” at trial because “in order for [Petitioner] to be convicted of criminal possession of a weapon in the second degree, the People have to show that he was using the weapon” unlawfully (P: 13-14).
The plea transcript thus establishes Petitioner's desire to plead guilty and his understanding of the consequences of doing so. Put simply, Petitioner indicated his full understanding of his decision to plead guilty and chose to plead guilty after “thorough consultation with his attorney,” and thus the Court on habeas review “may rely on the [Petitioner's] sworn statements and hold him to them.” Padilla v. Keane, 331 F.Supp.2d 209, 217 (S.D.N.Y. 2004) (internal citation omitted).
Petitioner argues that his plea was invalid, in part, because his competency was not evaluated prior to his guilty plea. Pet. ¶¶ 94, 116-17, 119. This claim appears to be premised on a comment by Petitioner's counsel at sentencing, noting that the probation report indicated that the Probation Department had referred Petitioner for a “psych eval” (S: 6). In response, the sentencing court stated that Petitioner had “refused to be interviewed” by the Department of Probation (S: 6).
A plea is not knowing and voluntary if a defendant is not competent; that is, if he does not have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and have “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). However, a trial court does not need to hold a competency hearing unless there is a “reasonable ground” for it to conclude that a “defendant may not be competent.” King v. Cunningham, 442 F.Supp.2d 171, 185 (S.D.N.Y. 2006) (quoting Harris v. Kuhlmann, 346 F.3d 330, 350 (2d Cir. 2003)). There are “no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed,” but relevant factors include evidence of a defendant's irrational behavior, demeanor, and any prior medical opinion on competence. Sanchez v. Colvin, No. 15-CV-9957 (PKC) (AJP), 2016 WL 5930150, at *12 (S.D.N.Y. Oct. 7, 2016), report and recommendation adopted, 2017 WL 1383790 (S.D.N.Y. Apr. 14, 2017) (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)). Strong evidence of mental illness can serve as reasonable ground for evaluating a defendant's competence, but some degree of mental illness should not be equated with incompetence. See Johnson v. Keane, 974 F.Supp. 225, 232 (S.D.N.Y. 1997).
The record reflects that Petitioner's behavior presented no reason for the court to doubt his competency. As an initial matter, neither of Petitioner's two attorneys suggested that Petitioner was incompetent to stand trial or to enter a guilty plea. Neither attorney requested a competency evaluation. Defense counsel's “inaction with regard” to Petitioner's competency “is particularly strong evidence of defendant's mental state.” See Lopez v. Walker, 239 F.Supp.2d 368, 374 (S.D.N.Y. 2003) (noting that “an attorney has perhaps the greatest opportunity to notice any behavior that might signify incompetence in his client” and thus counsel's inaction “is of particular importance”).
Moreover, during the plea proceeding, Petitioner engaged in a lengthy colloquy with the court, during which he rationally responded to the court's questions, affirmed that he wished to accept the plea, and confirmed that he understood the rights he would forfeit with a guilty plea. (P: 5-12). Petitioner's calm demeanor and coherent responses during the plea proceeding were consistent with the behavior and responses of a person who understood the proceeding and the consequences of his decision, even if Petitioner's responses were limited to one-word answers. Rodriguez v. Lamanna, No. 18-CV-07196 (ENV), 2020 WL 4926358, at *4 (E.D.N.Y. Aug. 19, 2020), appeal dismissed, No. 20-3421, 2021 WL 1408397 (2d Cir. Mar. 19, 2021) (“Although [defendant's] responses were monosyllabic, his behavior and responses were consistent with one who understands the proceedings against him.”). Further, Petitioner points to no evidence in the record suggesting any history of mental illness.
Simply put, nothing in the record indicates that Petitioner may not have been competent to plead guilty. Where there is no evidence that Petitioner might suffer from a mental illness, the “psych eval” notation in the probation report, by itself, is insufficient to establish “reasonable grounds” for the court to have concluded that Petitioner required a competency evaluation, particularly where, as here, the Probation Department did not even interview Petitioner (S: 6). See, e.g. Rodriguez, 2020 WL 4926358, at *4 (“Although [pre-sentence] report detailed a history of prior hospitalizations, mental health therapy, suicide attempts, and use of psychiatric medication, this evidence alone does not trigger a right to a competency hearing when, otherwise, there is no indication of incompetence.”); Lopez v. Walker, 239 F.Supp.2d at 374-75 (concluding that habeas claim challenging validity of guilty plea based on lack of competency hearing was meritless where pre-sentence report referenced prior suicide attempts and hospitalizations but defendant “presented to the court as coherent and rational”). Because Petitioner's conduct did not present a reasonable basis for the court to doubt his competency, the court did not err in accepting Petitioner's guilty plea as knowing, intelligent, and voluntary based on its first-hand observations of Petitioner's conduct and demeanor. The determination of competency is an issue of fact, entitled to a presumption of correctness on federal habeas review and requiring clear and convincing evidence to overturn. See Demosthenes v. Baal, 495 U.S. 731, 735 (1990); see also Harris, 346 F.3d at 350-52; Francis S. v. Stone, 221 F.3d 100, 114 (2d Cir. 2000). As the discussion above makes clear, there is no basis for this Court to conclude that the state court's decision was either an unreasonable determination of the facts in light of the evidence presented in the state court proceeding or contrary to clearly established federal law. See 28 U.S.C. § 2254(d).
Petitioner also attacks the sufficiency of his plea allocution on other grounds, arguing that: (1) he was not allowed to speak to the court about the legality of his sentence and the voluntariness of his waiver of the right to appeal (Pet. ¶ 67); and (2) the plea allocution was insufficient as to the weapon-possession charge (Pet. ¶¶ 81-82, 91, 95). None of these attacks on the plea allocution has merit.
The procedure “to which a state court need adhere when allocating a defendant is not so rigid.” Barnes v. Ercole, No. 09-CV-2530 (PAC) (AJP), 2011 WL 1453924, at *4 (S.D.N.Y. Apr. 14, 2011) (citing Panuccio v. Kelly, 927 F.2d 106, 110 (2d Cir. 1991)). To the extent that Petitioner is arguing that there was no factual basis for his guilty plea to the weapon possession charge, “due process does not mandate a factual basis inquiry [into the charged conduct] by state courts.” United States v. Foster, No. 06-4871-cr(L), 2008 WL 162845, at *1 (2d Cir. Jan. 18, 2008) (alteration in original) (internal quotation marks and citation omitted). The Second Circuit has explicitly noted that it is Rule 11 of the Federal Rules of Criminal Procedure, “not due process, that requires federal courts to conduct a factual inquiry before accepting a guilty plea.” See Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) (emphasis added); see also Ames v. New York State Div. of Parole, 772 F.2d 13, 15 (2d Cir. 1985) (“The State court's [guilty plea] inquiry did not have to be patterned after Fed. R. Crim. P. 11.”). A guilty plea is consistent with due process if it is done “voluntarily, knowingly and intelligently, with sufficient awareness of relevant circumstances and likely consequences.” See United States v. Adams, 448 F.3d 492, 497
(2d Cir. 2006) (internal quotation marks and citation omitted). See also Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant”) (internal quotation marks and citation omitted). “A factual basis inquiry . . . is merely one way of satisfying the constitutional requirement that a plea be voluntary and intelligent.” Foster, 2008 WL 162845, at *1.
The record demonstrates that the court engaged in an extensive colloquy with Petitioner, including discussing with Petitioner his waiver of the right to appeal and the negotiated sentence pursuant to the plea agreement (P: 6-7, 11). The record further reflects that Petitioner had ample opportunity to ask the court about his sentence or the waiver of the right to appeal. And the court gave Petitioner an opportunity, during the colloquy, to confer with counsel about the waiver of the right to appeal, and the record reflects that Petitioner did in fact confer with counsel about the waiver (P: 11). At no point did Petitioner indicate that he had any questions about the waiver or needed more time to consider it. The court also discussed with Petitioner the sentence that he would be receiving and asked Petitioner if he understood the sentence and had discussed it with his attorney (P: 6-7). Petitioner confirmed, under oath, that he had fully discussed the matter with his attorney and understood what it meant to plead guilty, and never asked the court any questions about the sentence (P: 7-12).
Finally, the record further shows that Petitioner admitted to using a weapon to shoot the victim and that the shooting was not justified, demonstrating that Petitioner possessed the weapon with intent to use it unlawfully (P: 11-14). As such, the record establishes a factual basis for Petitioner's guilty plea to the weapon-possession count and further demonstrates that Petitioner was sufficiently informed of the sentence he would be receiving and his waiver of the right to appeal. As such, there is no merit to Petitioner's attacks on the validity of his guilty plea.
C. Petitioner's Eighth Amendment Claim
Petitioner also claims that his Eighth Amendment rights were violated when the court imposed a sentence for second-degree weapon possession, because the court should have allowed him to plead guilty to third-degree weapon possession and thus sentenced him within the lower sentencing range allowed for that crime. Pet. ¶ 112.
1. Petitioner's Eighth Amendment claim is unexhausted.
On direct appeal to the Appellate Division, First Department, Petitioner argued that his sentence was excessive and styled that claim purely as a question of state law. SR at 8-11. Citing specifically to state law cases discussing the Appellate Division's interest-of-justice jurisdiction, Petitioner's counsel argued that Petitioner's sentence was excessive in light of such factors as Petitioner's age and lack of prior convictions. Id. Petitioner did not contend that his sentence violated the Eighth Amendment or any other rights protected by the federal constitution.
It is well settled that “[a]lthough New York's Appellate Division has the power . . . to reduce a sentence in the interest of justice, a claim for a reduction in sentence . . . does not, without more, raise a federal constitutional issue.” Bonilla v. Lee, 35 F.Supp.3d 551, 572 (S.D.N.Y. 2014); see also Baide-Ferrero v. Ercole, No. 06-CV-6961, 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010) (“[A] claim that a sentence should be reduced in the interest of justice does not allege a violation of a federally protected right.”) (collecting cases); 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 this claim relies on state-law principles, it is not cognizable on federal habeas review.”). Because Petitioner raised only a state-law claim in his direct appeal and did not reference the Eighth Amendment or argue that his sentence was disproportionate to the crime, Petitioner did not alert the state court to the federal claim he raises here. As such, Petitioner's Eighth Amendment claim is unexhausted.
Further, Petitioner has no available remedies in state court to exhaust his Eighth Amendment claim. Because the claim is record based, Petitioner could have raised it on direct appeal. Having failed to do so, Petitioner will be unable to raise it in a CPL § 440.10 motion, should he return to state court. Thus, Petitioner's claim is also procedurally defaulted.
2. Petitioner's claim that his sentence was excessive is not cognizable on habeas review.
In any case, even if reviewed on the merits, Petitioner's claim fails. Petitioner appears to be arguing that his sentence was illegal or excessive because it exceeded the statutory maximum sentence for third-degree criminal possession of a weapon. Pet. ¶¶ 102-03, 112. But Petitioner was not charged with third-degree criminal possession of a weapon. Instead, the indictment charged Petitioner with second-degree criminal possession of a weapon. SR at 8. And whether third-degree criminal possession would have been submitted to the jury as a lesser included offense had Petitioner gone to trial is of no moment because Petitioner relinquished his right to a jury trial when he knowingly, voluntarily, and intelligently pled guilty.
Moreover, it is well settled that a sentence does not violate the Eighth Amendment if the sentence falls within the statutory range prescribed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (“No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.”). Petitioner was sentenced within the range prescribed by New York law. Petitioner was convicted of first-degree manslaughter, Penal Law § 125.20(1), a class-B violent felony, and second-degree weapon possession, Penal Law § 265.03(1)(b), a class-C violent felony (P: 3, 14). See also SR at 27. For first-degree manslaughter, the court was required to sentence Petitioner, who had no prior convictions, to a determinate sentence of at least five years and not more than 25 years. See Penal Law § 70.02(1)(a), (3)(a). The court sentenced Petitioner to 22 years' imprisonment (S: 13). As for the criminal possession of a weapon count, the court was required to sentence Petitioner to a determinate sentence of at least three-and-one-half years to 15 years' imprisonment. See Penal Law § 70.02(1)(b), (3)(b). Petitioner was sentenced to 15 years' imprisonment on this count (S: 13). Petitioner was thus sentenced within the statutory range authorized by state law. Penal Law §§ 70.02(1)(a)-(b), (3)(a)-(b). Because Petitioner's sentence was authorized under the Penal Law and fell within the prescribed range, any claim that his sentence was excessive does not raise a cognizable federal constitutional issue on habeas review. See McCall v. Rivera, 965 F.Supp.2d 311, 335 (S.D.N.Y. 2013) (“[C]laims of an unduly harsh sentence do not raise a cognizable federal constitutional issue if the sentence was within the range prescribed by state law.”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Gregory H. Woods. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).