Opinion
9:12-CV-01538 (FJS/TWD)
10-13-2015
BARRY D. IRVIS, Petitioner, v. SUPERINTENDENT HAGGAT, Mt. McGregor Correctional Facility, Respondent.
APPEARANCES: BARRY D. IRVIS 08-A-4424 Petitioner pro se Gowanda Correctional Facility P.O. Box 311 Gowanda NY 14070 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Respondent 120 Broadway New York, New York 10271 OF COUNSEL: PRISCILLA I. STEWARD, ESQ.
APPEARANCES: BARRY D. IRVIS
08-A-4424
Petitioner pro se
Gowanda Correctional Facility
P.O. Box 311
Gowanda NY 14070
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271
OF COUNSEL: PRISCILLA I. STEWARD, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION
I. INTRODUCTION
This matter has been referred to this Court for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District Local Rule 72.3(c), by the Hon. Frederick J. Scullin, Senior United States District Judge.
Presently before this Court is the timely Petition of Petitioner Barry D. Irvis, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner brings this proceeding challenging a judgment of conviction entered on August 12, 2008, on Petitioner's June 3, 2008, guilty plea to Rape in the Second Degree (N.Y. Penal Law § 130.30), a Class D Felony, and Attempted Rape in the Second Degree (N.Y. Penal Law §§ 110.00 and 130.30), a Class E Felony, in Greene County Court. (Dkt. No. 9 at 99.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Pursuant to a plea agreement, Petitioner, was sentenced as a second felony offender to three and a half to seven years for the crime of Rape in the Second Degree and one and a half years to three years for the crime of Attempted Rape in the Second Degree. Id. at 107. The terms were to run consecutively so that Petitioner's total term of imprisonment would be five to to ten years. Id.
The Appellate Division Third Department ("Appellate Division") unanimously affirmed the judgment of conviction on December 22, 2011, and leave to appeal to the New York Court of Appeals was denied on June 8, 2012. People v. Irvis, 935.Y.S.2d 371 (3rd Dep't 2011), lv. denied, 950 N.Y.S.2d 114 (2012). Petitioner is currently incarcerated in Gowanda Correctional Facility pursuant to the conviction. (Dkt. Entry, July 15, 2015.)
Petitioner has raised numerous grounds for habeas review: (1) his guilty plea was not made voluntarily with an understanding of the consequences; (2) ineffective assistance of counsel; (3) he was denied the right to appeal all issues; (4) his conviction was obtained by evidence gained through an unconstitutional search and seizure; (5 & 11) Penal Law § 130.30 is unconstitutional on the grounds that it does not allow mistake as to the victim's age as a defense, and he was denied a fair trial because he was deprived of the defense; (6) the County Court Judge was biased against him; (7) the District Attorney was biased against him; (8) he was the victim of selective and malicious prosecution because he is Black and the victim is White; (9) he was denied a speedy trial; and (10) he was denied due process in various ways related to the grand jury proceedings and the timing of the suppression hearing in relation to his N.Y. Criminal Procedure Law ("CPL") § 210.30 motion to inspect the grand jury minutes and dismiss the indictment. (Dkt. No. 1 at ¶ 12(A)-(K).)
For the reasons discussed below, the Court recommends that Petitioner's Petition (Dkt. No. 1) be denied and dismissed in its entirety.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Investigation, Arrest, and Indictment
On October 5, 2006, after declining his parole officer's request to provide a buccal DNA sample, Petitioner accompanied a New York State Police Investigator to the Catskill Police Department. (Dkt. No. 9 at 9, 16, 20.) The Investigator had learned that a fourteen year old girl, referred to herein as V.C., was pregnant, and that she had engaged in sexual intercourse with Petitioner, who was twenty-nine years old, on several occasions around the time she had become pregnant. Id. at 17-19, 24. The Investigator interviewed Petitioner and asked him to provide a buccal DNA sample to determine if he was the father of V.C.'s child. Id. at 26, 50-51. Although he was initially resistant, Petitioner agreed after numerous requests and signed the consent form. Id. at 26-28, 52, 56-57. The DNA test established Petitioner as the father of V.C.'s baby. (Dkt. No. 10-1 at 107.)
After being interviewed by the Investigator and giving the DNA sample, Petitioner was arrested and arraigned on charges of Rape in the Second Degree and Endangering the Welfare of a Child for allegedly having engaged in sexual intercourse with V.C. (Dkt. Nos. 9 at 19; 10-1 at 64-66, 86, 110, 112.) Petitioner was subsequently indicted on four charges of Rape in the Second Degree (Penal Law § 130.00) and one count of Criminal Sexual Act in the Second Degree (Penal Law § 130.45). Id. at 54-55.
B. Petitioner's Defense Counsel
The Greene County Public Defender was assigned to represent Petitioner. (Dkt. No. 10-1 at 41.) In an April 24, 2007, notarized letter to the Hon. Daniel K. Lalor, Greene County Court Judge, Petitioner requested that he be assigned another attorney to represent him because the Public Defender representing him had been the Assistant District Attorney on Petitioner's 1996 drug case, and Petitioner did not believe he had his best interest in mind. Id. Petitioner claimed that the Public Defender was waiting for the present District Attorney to retire so that he could take over, and that he would use Petitioner's case as a stepping stone. Id.
Judge Lalor assigned Petitioner new counsel on or about April 8, 2008. (Dkt. No. 9-3 at 64.) Before being replaced, the Public Defender filed an omnibus motion for inspection of the grand jury minutes and dismissal of the indictment based upon deficiencies; a Sandoval hearing; for discovery and a bill of particulars; and participated in a suppression hearing with regard to statements given to law enforcement personnel, including those given during the October 5, 2006, interview with the Investigator, and the DNA sample. (Dkt. No. 10-1 at 68-69.)
C. Objection to Judge Lalor
In his April 24, 2007, letter to Judge Lalor, Petitioner also requested a change of venue or the appointment of a judge from another county to hear his case because of Judge Lalor's personal dislike of Petitioner and his family as a result of Petitioner's former relationship with Judge Lalor's sons involving the apparent use and selling of drugs, and Petitioner's father's relationship with the Judge's secretary. (Dkt. No. 10-1 at 41.) However, Judge Lalor continued to preside over the case through Petitioner's guilty plea and sentencing. (Dkt. No. 9 at 78-109.)
D. Suppression Hearing
A suppression hearing regarding oral and written statements bearing on the indictment given to law enforcement personnel and the question of consent regarding the DNA sample was held in Greene County Court on September 27, 2007. (Dkt. No. 9 at 1-77.) According to testimony by the Investigator, he interviewed Petitioner regarding V.C. after advising him of his Miranda rights. Id. at 21-23. Petitioner testified at the suppression hearing that he was never advised of his Miranda rights, and that he was interviewed in a cold room for three to four hours and given nothing to eat or drink. Id. at 54-55. Petitioner claimed he requested a lawyer and was told by the Investigator he was not under arrest. Id. at 55. Petitioner also testified that he was under the impression that the DNA sample was for a paternity test for Social Services because that is what his parole officer had told him when he was first asked to give a DNA sample. Id. at 70.
According to a January 15, 2008, letter to Petitioner from the Public Defender, who had represented Petitioner at the suppression hearing, Judge Lalor found in his decision on the hearing, which does not appear to be part of the record, that while law enforcement had used deception to obtain the DNA sample, the statement was preceded by Miranda warnings and was therefore admissible. (Dkt. No. 10-1 at 107.) Judge Lalor also found that the deception was not so unfair as to render the DNA results identifying Petitioner as the father of V.C.'s baby inadmissible. Id.
E. Appointment of a Special Prosecutor
In his April 24, 2007, letter to Judge Lalor, Petitioner also requested the appointment of a prosecutor from another county because the Greene County District Attorney's brother had an order of protection against him, and Petitioner had a parole stipulation to stay away from and have no contact with the brother or his family. (Dkt. No. 10-1 at 42.) In April 2008, the District Attorney filed an application for the appointment of a Special District Attorney to prosecute Petitioner's case. (Dkt. No. 9-3 at 59-60.) The District Attorney stated in the application that he had been advised in a February 11, 2008, letter from Petitioner that one of the conditions of Petitioner's parole in 2000 had been that he stay away from the District Attorney's brother and his family because of threats Petitioner had made to kill them. Id. Judge Lalor granted the request and appointed an attorney from the New York State Prosecutor's Training Institute as Special District Attorney. Id. at 57-58.
F. Plaintiff's Guilty Plea and Sentencing
Petitioner had remained in jail from the time of his arrest on October 5, 2006, until his June 3, 2008, trial date. (Dkt. No. 10 at 35.) On June 3, 2008, Judge Lalor held a conference at the start of trial. (Dkt. No. 9 at 78-101.) During the conference, Petitioner consented to a plea agreement pursuant to which he pleaded guilty to the first count of the indictment, Rape in the Second Degree (Penal Law § 130.00) and one count of Attempted Rape in the Second Degree (Penal Law §§ 110.00 and 130.30). Id. at 87, 99. A part of the plea agreement was a waiver by Petitioner of his right to appeal his conviction and sentence. Id. Pursuant to the plea agreement, Petitioner was sentenced as a second felony offender to three and a half to seven years for the crime of Rape in the Second Degree and one and a half years to three years for the crime of Attempted Rape in the Second Degree. Id. at 107. The terms were to run consecutively so that Petitioner's total term of imprisonment would be five to ten years. Id.
The plea agreement also satisfied all of the known sex related charges against Petitioner in Greene County and gave Petitioner credit for time served on the indictment involving V.C. Id. at 90. The known sex related charges satisfied by the plea agreement included a pending indictment against Petitioner involving another young female victim, and a third case involving a young female victim in which the District Attorney's Office had not yet indicted Petitioner. Id. at 82, 89. In addition, the prosecution agreed not to petition the court to sentence Petitioner as a persistent felony offender. Id. at 90.
III. POST-CONVICTION PROCEEDINGS
A. Direct Appeal
Petitioner pursued a counseled appeal from the judgment of conviction entered on his guilty plea, in which he also filed Appellant's Supplemental Brief Pro Se. (Dkt. Nos. 9-1 and 9-2.) The grounds for appeal raised by Petitioner's counsel included: (1) denial of Petitioner's constitutional right to a speedy trial; (2) the involuntary nature of Petitioner's guilty plea; (3) ineffective assistance of counsel; and (4) imposition of a harsh and excessive sentence. (Dkt. No. 9-1.) Petitioner also raised violation of his right to a speedy trial and ineffective assistance of counsel in his Pro Se Brief. (Dkt. No. 9-2 at 7-10, 14-20.) Additional grounds raised in Petitioner's Pro Se Brief included that his constitutional rights were violated as a result of a conflict with the District Attorney and a biased judge, and the unconstitutionality of the statute under which he was convicted. Id. at 3-6, 11-13, 21-24.
The Appellate Division unanimously affirmed Petitioner's judgment of conviction on December 22, 2011, and leave to appeal to the New York Court of Appeals was denied on June 8, 2012. People v. Irvis, 935.Y.S.2d 371 (3rd Dep't 2011), lv. denied, 950 N.Y.S.2d 114 (2012). The Appellate Division found that by pleading guilty and waiving his right to appeal, Petitioner was precluded from raising the following claims: (1) denial of his CPL § 30.30 statutory right to a speedy trial; (2) that the County Court committed reversible error by ruling that evidence that the victim misrepresented her age to him at the time of the encounter was irrelevant and would not be admitted at trial; and (3) that his sentence was harsh and excessive. Id. at 373. The Appellate Division also found that Petitioner's claim that the County Court was biased was both foreclosed by his appeal waiver and unpreserved. Id.
Petitioner's claim that he was denied his constitutional right to a speedy trial was found by the Appellate Division to have survived his guilty plea. Id. However, the Court concluded that Petitioner had not been denied his constitutional right to a speedy trial. Id. The Appellate Division found that Petitioner's claim that his guilty plea was involuntarily entered was not preserved for review because Petitioner did not move to withdraw is plea or make an application to vacate the judgment of conviction and made no statement during his plea allocution to cast doubt on his guilt so as to give rise to an exception to the preservation rule. Id.
The Court further found that Petitioner's claim that his counsel was ineffective and that the ineffectiveness impacted the voluntariness of his plea was unpreserved for appellate review. Id. at 374. The Court noted that in any event, as a result of his counsel's efforts, Petitioner had not received the maximum prison sentence that could have been imposed, and Petitioner's allocution demonstrated his full understanding of the consequences of entering a guilty plea. Id. at 374.
The Appellate Division reviewed Petitioner's remaining contentions and found them to be without merit. Id.
B. State Habeas Corpus
Petitioner filed a state habeas corpus petition in New York State Supreme Court, Franklin County on February 18, 2011. (Dkt. Nos. 1 at 2; 10-1 at 122-24.) The grounds raised by Petitioner in the State proceeding included that the judgment of conviction and sentence imposed "were the product of prosecutorial misconduct, ineffective assistance of counsel and judicial misconduct/errors," that his constitutional right to a speedy trial was violated, and that New York State's statutory rape statute is unconstitutional. (Dkt. No. 10-1 at 123.)
The Hon. S. Peter Feldstein, Acting State Supreme Court Justice, treated Petitioner's petition as an ex parte request for the issuance of a writ of habeas corpus or an order to show cause in a habeas corpus proceeding. Id. at 122. Justice Feldstein denied Petitioner's request to issue a writ or order on the grounds that the issues raised by Petitioner either were, or could have been, raised in his pending direct appeal or in a CPL Article 440 motion, and the court found no basis for departure from the traditional procedure. Id. at 123-24.
IV. STANDARD OF REVIEW
A. Exhaustion Requirement under the Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs applications of incarcerated state court defendants seeking federal habeas corpus relief. See 28 U.S.C. § 2254. Before a federal court may consider an application for habeas corpus relief pursuant to 28 U.S.C. § 2254, the petitioner must generally have exhausted all the remedies available in the courts of the state in which he or she was convicted. 28 U.S.C. § 2254(b)(1)(A); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1399 (2011) ("Section 2254(b) requires that prisoners must ordinarily exhaust state remedies before filing for federal habeas relief."); Jones v. Murphy, 694 F.3d 225, 246-47 (2d Cir. 2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1247 (2013) ("Under AEDPA, a prisoner in custody pursuant to a state court judgment must generally exhaust state court remedies before seeking federal habeas corpus review.").
Exhaustion may be excused where it appears that "there is an absence of available state corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." See 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).
"Exhaustion of state remedies requires that a petitioner fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoner's federal rights." Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (citation and internal quotation marks omitted); Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir. 1999) (a habeas petitioner has fairly presented his claim when he has "[i]nformed [the State] courts of all the essential factual allegations and essentially the same legal doctrine [asserted] in [the] federal petitioner") (citation and internal quotation marks omitted).
Passage through the state courts, in and of itself, "is not sufficient." Picard [v. Connor, 404 U.S. 270, 275 (1971)]. To provide the State with the necessary 'opportunity,' the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), alerting that court to the federal nature of the claim and "giv[ing] 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)."Wilens v. Superintendent of Clinton Correc. Fac., No. 11-CV-1938 (JFB), 2014 WL 28995, at *5, 2014 U.S. Dist. LEXIS 182111, at *13 (E.D.N.Y. Jan. 2 2014).
Copies of unreported cases cited herein will be provided to Petitioner. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Petitioner bears the burden of proving exhaustion. Colon v. Johnson, 19 F.Supp. 2d 112, 119-20 (S.D.N.Y. 1998) (citations omitted).
B. Procedural Default
A state prisoner's procedural default in the state courts will also bar federal review unless the petitioner can demonstrate both cause for the default and prejudice resulting therefrom, or if he or she can demonstrate that the failure to consider the claim will result in a miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A procedural default occurs in one of two ways. "First, if 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," [the habeas court] must deem the claim procedurally defaulted." Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (citation and internal quotation marks omitted). "Alternatively, a procedural default occurs if the state court's rejection of a federal claim rests on a state law ground such as the operation of a state procedural rule that is both independent of the federal question and adequate to support the judgment . . . , [and] the last state court rendering a judgment in the case clearly and expressly states that its judgment rest on a state procedural bar." Id. (citations and internal punctuation and quotation marks omitted). A petitioner's procedural default precludes federal habeas review "if the last state court rendering a judgment in the case rests its judgment on the procedural default." Harris v. Reed, 489 U.S. 255, 262 (1989). Where a state court has expressly relied on a procedural default, federal habeas review is foreclosed even if the state court also addressed the merits of the federal claim. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (federal habeas review barred where state held claim "not preserved for appeal" but then ruled on the merits of the claim "in any event").
C. Review of State Court Decisions on the Merits Under the AEDPA
Under the AEDPA, an application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Recognizing the principle that "[s]tate courts are adequate forums for the vindication of federal rights . . . , AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___U.S. ___, 134 S.Ct. 10, 15-16 (2013); see also Cullen, 131 S.Ct. at 1398 ("This is a difficult to meet [ ] . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt . . . .") (citation and internal quotation marks omitted).
"For the purposes of AEDPA deference, a state court 'adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Under the AEDPA, a summary disposition by a state court constitutes a disposition on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011). Where AEDPA's deferential standard of review applies, "[a] state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence." Bierenbaum v. Graham, 607 F.3d 36, 48 (2d Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 131 S.Ct. 1693 (2011). "[A] state court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 291 (2010).
In determining whether a state court has adjudicated a claim "on the merits," a federal habeas corpus court must classify the state court decision as either (1) fairly appearing to rest primarily on federal law or to be interwoven with federal law; or (2) fairly appearing to rest primarily on state procedural law. Jimenez v. Walker, 458 F.3d 130, 145 (2d Cir. 2006). Decisions in the first category are deemed to have been made "on the merits" of the federal claim. Id.
A decision "on the merits" is contrary to clearly established federal law when it is either contrary to Supreme Court precedent on a question of law or opposite to a relevant Supreme Court case with materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "Section 2254(d)(1)'s 'clearly established' phrase refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decisions." Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citation and internal quotation marks omitted). "[F]ederal law, as defined by the Supreme Court, may be either a generalized standard enunciated in the Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002). "[C]ircuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court . . . [and] cannot form the basis for habeas relief under AEDPA." Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155 (2012) (citation and internal quotation marks omitted).
A state court unreasonably applies federal law when it correctly identifies the governing legal rule in a particular case but applies the rule to the facts in an "objectively unreasonable" manner. Lockyer, 538 U.S. at 75. An erroneous application of federal law is not necessarily an unreasonable one. Williams, 529 U.S. at 413. "It is settled that a federal habeas corpus may overturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'" Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1992 (2013) (quoting Richter, 562 U.S. at 101). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76.
Nevertheless, as interpreted by the Second Circuit, "although some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Mask v. McGinnis, 252 F. 3d 85, 89 (2d Cir. 2001).
Federal habeas corpus review is limited to determining whether petitioner is in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. §§ 2241(c), 2254(a); see also Wainwright v. Goode, 464 U.S. 78, 83 (1983) ("[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension."). Federal habeas relief does not "lie for errors of state law." Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Petitioner has the burden of proving by a preponderance of the evidence that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); see also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999). "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786. Where a claim has been adjudicated on the merits by a state court, federal habeas review is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1398.
V. ANALYSIS
A. Petitioner's Claim that his Guilty Plea and Waiver of Appeal Were Not Knowing, Voluntary, and Intelligent and that His Counsel was Ineffective
1. Petitioner's Procedural Default on his Claims that his Guilty Plea was Not Knowing, Voluntary, and Intelligent, and that his Counsel was Ineffective
The Appellate Division found Petitioner's claims that his guilty plea was not voluntarily entered and that his counsel was ineffective, and that the ineffectiveness impacted the voluntariness of his plea, were unpreserved for appeal. Irvis, 935 N.Y.S.2d at 373-73. It is well-settled that a petitioner's federal claim may be procedurally barred from habeas review if it was decided at the state level on "adequate and independent" procedural grounds. See Coleman, 501 U.S. at 729-33. The procedural rule is adequate if it is "firmly established and regularly followed by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). To be independent, the "state court must have actually relied on the procedural bar as an independent basis for its disposition of the case," Harris, 489 U.S. at 261-62, by "clearly and expressly stat[ing] that its judgment rests on a state procedural bar." Id. at 263 (internal quotation marks omitted).
New York courts have long relied on the preservation requirement to deny challenges to the voluntariness of guilty pleas where the petitioner has not moved to withdraw his guilty plea or vacate the judgment of conviction. See, e.g., People v. Pascale, 425 N.Y.S.2d 547, 547 (1980) ("The argument that the defendant should be relieved of his guilty plea was not raised by motion in the court of first instance prior to conviction and therefore has not been preserved for our review."); see also People v. Jones, 981 N.Y.S.2d 465 (3d Dep't 2014) (claim that guilty plea was coerced by court's alleged threat to defendant to illegally sentence him was unpreserved because he withdrew his motion to withdraw his plea and the record did not reveal that he moved to vacate the judgment); People v. Hernandez, 972 N.Y.S.2d 697, 698-99 (2d Dep't 2013) ("The defendant's contention that her plea of guilty was not knowing, voluntarily, and intelligently entered into is unpreserved for appellate review, since she did not move to withdraw her plea on the ground prior to the imposition of sentence.")
New York courts have likewise relied on the preservation requirement to deny challenges to the effectiveness of defense counsel's representation as it impacts the voluntariness of the guilty plea where the petitioner has failed to withdraw his guilty plea or vacate the judgment of conviction. See People v. Benson, 929 N.Y.S.2d 885, 886 (3d Dep't 2011) ("Defendant's contention that he was denied the effective assistance of counsel . . . to the extent it relates to the voluntariness of his plea . . ., is similarly unpreserved for our review due to his failure to move to withdraw his plea or vacate the judgment of conviction."); People v. Douglas, 831 N.Y.S.2d 585, 586 (3d Dep't 2007) ("Defendant's challenges to the validity of his plea and to the effectiveness of defense counsel's representation as it impacts the voluntariness of his guilty plea are unpreserved for our review given his failure to move to withdraw his plea or vacate the judgment of conviction.").
Habeas courts in this Circuit have recognized that failure to move to withdraw a guilty plea or move to vacate a judgment of conviction constitutes an independent and adequate state procedural rule barring federal habeas review of claims challenging the voluntariness of a plea and that the ineffective assistance of counsel impacted the voluntariness of the plea. See, e.g., Rojas v. Heath, No. 11 Civ. 4322(CS)(PED), 2012 WL 5878679, at *7, 2012 U.S. Dist. LEXIS 166853, at *21 (S.D.N.Y. Oct. 18, 2012) (well-settled that preservation of challenges to the validity of a guilty plea for appeal in New York requires a motion to withdraw the plea or motion to vacate the judgment of conviction); Garcia v. Boucaud, No. 09 Civ. 5758 (RJH) (GWG), 2010 WL 1875636, at *6, 2010 U.S. Dist. LEXIS 142951, at *18 (S.D.N.Y. May 11, 2010) (failure to withdraw a guilty plea before sentencing constitutes an independent and adequate ground for the state court decision); Moore v. Lape, No. 08-CV-0474 (MAT), 2010 WL 3522227, at *3, 2010 U.S. Dist. LEXIS 93372, at *7 (W.D.N.Y. Sept. 8, 2010) ("Habeas courts in this Circuit held have held that the failure to move to withdraw a guilty plea before sentencing constitutes an adequate and independent state ground barring habeas review."); Bennefield v. Kirkpatrick, 741 F.Supp. 2d 447, 453-54 (W.D.N.Y. 2010) (citing People v. Hilliard, 832 N.Y.S.2d 461 (3d Dep't 2007) ("[D]efendant's assertion that his guilty plea was involuntarily entered is unpreserved for our review in light of his failure to move to withdraw the plea or vacate the judgment of conviction.")).
As noted above, if, as in this case, claims are procedurally defaulted, a federal habeas court may not review the claim on the merits unless the petitioner can demonstrate both cause for the default and prejudice resulting therefrom, or if he or she can demonstrate that the failure to consider the claim will result in a miscarriage of justice. Coleman, 501 U.S. at 750. A petitioner may demonstrate cause with "a showing that the factual or legal basis for a petitioner's claim was not reasonably available to counsel, . . . or that some interference by state officials made compliance impracticable, . . . [or that] the procedural default is the result of ineffective assistance of counsel." Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Only if a petitioner can establish cause will a court proceed to consider prejudice, which requires a showing of "actual prejudice resulting from the errors of which [petitioner] complains." United States v. Frady, 456 U.S. 152, 168 (1982) (internal quotation marks omitted). A fundamental miscarriage of justice involves showing that the petitioner is actually innocent of the crime. Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
Petitioner has demonstrated neither cause for his procedural default nor his actual innocence as required for a showing a miscarriage of justice absent review of the procedurally defaulted claims.
2. Merits of Petitioner's Claims that his Guilty Plea and Waiver of Appeal Were Not Knowing, Voluntary, and Intelligent, and that his Counsel was Ineffective
a. Guilty Plea
Petitioner claims that his guilty plea was not voluntarily made. (Dkt. No. 1 at 4.) According to Petitioner, his public defender recused himself in early April of 2008, and his court appointed counsel, appointed on April 8, 2008 (Dkt. No. 9-3 at 64), never told him any of the consequences of pleading guilty and kept telling him to plead guilty because he would lose at trial, and that he would still be able to appeal. (Dkt. No. 1 at 4.) The consequences referred to by Petitioner include the possibility of civil confinement in a mental hospital after completing his prison sentence, never being able to know the son he had with victim V.C., not being able to be paroled to his house because of the presence of young children, needing his parole officer's written permission to see his children, not being able to go to his children's school or park or any place where children under eighteen will be present, being required to wear a GPS tracking system, and having to take polygraph tests. (Dkt. No. 10 at ¶ 21.)
There is no support in the State court record for Petitioner's claim that his attorney told him he would still be able to appeal, and Petitioner did not make that claim on his direct appeal. (Dkt. No. 9-1 at 2-33.)
"A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, 'with sufficient knowledge of the relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citing Brady v. United States, 397 U.S. 742, 748 (1970). "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). A guilty plea must be voluntary, knowing, and intelligent "because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination." Parke v. Raley, 506 U.S. 20, 29 (1973). The voluntariness of a guilty plea "can be determined only by considering all of the relevant circumstances surrounding it," Brady v. United States, 379 U.S. 742, 750 (1970).
A court may determine whether a defendant knowingly and voluntarily entered into a plea bargain by, among other things, his allocution statements. United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997). Sworn statements made by a defendant in entering a guilty plea carry "a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). "[T]he representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge in accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings" to withdraw the plea or vacate the judgment of conviction based on the plea. Id. at 73-74.
Petitioner claimed on his appeal to the Appellate Division that the guilty plea was rushed and done under a great deal of pressure from his attorney, who never fully discussed his trial options, and that it was effectuated without his full knowledge of the consequences of his legal rights. (Dkt. No. 9-1 at 19.) According to Petitioner, he was discouraged from going to trial and misled into believing he had no choice but to plead guilty. Id.
However, the record of Petitioner's plea allocution supports the conclusion reached by the Appellate Division that he fully understood the consequences of pleading guilty. The plea and the sentence he could receive were fully explained to Petitioner, and he was allowed to speak with his attorney before deciding to accept the plea. Id. at 85-89, 91-93. In addition, Petitioner indicated that he understood the nature of the proceedings; was not under the influence of drugs or alcohol; understood the sentence he could receive; had been given an opportunity to speak with his counsel and was satisfied with the advice he had given and the services he had rendered; that no promises other than those disclosed in court had been made to him in order to get him to plead guilty; and that no one had threatened him. Id. at 91-95. "A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea." United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997).
Based upon the proceedings regarding Petitioner's guilty plea and his plea allocution, the Court concludes that the Appellate Division determination that his guilty plea was knowingly and voluntarily entered into was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.
b. Waiver of Appeal
The "right to appeal in a criminal case is not of constitutional magnitude." United States v. Teeter, 257 F.3d 14, 22 (1st Cir. 2001) (citing Jones v. Barnes, 463 U.S. 745 (1983)). New York allows criminal defendants to waive their right to appeal as a part of a plea agreement when the waiver is made voluntarily, knowingly, and intelligently. See People v. Bradshaw, 938 N.Y.S.2d 254 (2011); People v. Seaberg, 543 N.Y.S.2d 968 (1989). See also United States v. Ruiz, 536 U.S. 622, 629 (2002) (defendant may waive the right to appeal as a condition of a plea bargain; however, as with a guilty plea, the record must demonstrate that the waiver is voluntary, knowing, and intelligent); United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (per curiam) ("a knowing and voluntary waiver of the right to appeal is generally enforceable" in the context of a direct appeal from a criminal conviction); see also Steele v. Filion, 377 F. Supp. 2d 332, 334-35 (W.D.N.Y. 2005) (appeal waivers set forth in plea agreements are constitutional provided the waiver was knowing, voluntary, and intelligent.) To be effective, a defendant must be informed of the nature of the right and must evidence a full understanding of the consequences of the waiver. United States v. Ready, 82 F.3d 551, 556-57 (2d Cir. 1996), superseded on other grounds as stated in United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013).
Petitioner claimed in his direct appeal to the Appellate Division that his attorney had him waive his right to an appeal without his realizing the ramifications of the waiver, with no idea what it really meant, and without knowledge of the legal issues he would be giving up on his appeal as his attorney never explained it to him. (Dkt. No. 9-1 at 20-21.) However, he has offered no record evidence of this outside of conclusory allegations. See United States v. Walker, 411 F.Supp. 2d 336, 337 (W.D.N.Y. 2006) (holding that a defendant cannot defeat an appeal waiver through conclusory assertions).
The state court record supports the conclusion that the appeal waiver was voluntary, knowing, and intelligent. During the plea allocution, Judge Lalor asked Petitioner whether he understood that "as part of the proposed plea agreement in this case you agree to waive your right to appeal your conviction and sentence." (Dkt. No. 9 at 99.) The Judge explained to him that under New York law he had the right to appeal both his conviction and sentence and to have the facts of the case and rulings by the court reviewed by a higher court. Id. at 99-100. He further explained to Petitioner that by entering into the plea agreement he would be giving up that right to appeal, and that the effect of the waiver would be "the same as if [he] had appealed [his] case and lost [his] appeal." Id. at 100. Petitioner was asked if he understood the effect of the waiver, and he answered in the affirmative. Id.
Based upon the foregoing, the Court finds that the Appellate Division determination that Petitioner's guilty plea, of which his agreement to waive his right to appeal was a part, id., at 99, was knowing and voluntary was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.
c. Assistance of Counsel with Regard to the Guilty Plea
On his direct appeal to the Appellate Division, Petitioner claimed that his attorney never discussed his trial options or legal defenses with him, discouraged him from going to trial, and misled him into believing that he had no choice but to accept the plea offer. (Dkt. No. 9-1 at 19.) According to Petitioner, his attorney continuously threatened him that he could receive several more years in state prison if he did not accept the plea offer and told him he had no viable defenses. Id. at 20. In addition, Petitioner claimed on his direct appeal that his attorney had him waive his appeal rights without understanding the ramifications of the waiver, and Petitioner had no idea what rights he was giving up because his attorney never fully explained it to him. Id. 20-21.
The Sixth Amendment mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., amend VI. "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The Sixth Amendment right to counsel extends to the plea-bargaining process and sentencing. Lafler v. Cooper, ___ U.S. ___,132 S.Ct. 1376, 1384 (2012). To establish a violation of the right to effective assistance of counsel, a habeas petitioner must show: (1) that counsel's representation fell below an objective standard of reasonableness, measured in light of the prevailing professional norms; and (2) resulting prejudice, that is, a reasonable probability that but for counsel's unprofessional performance, the outcome would have been different. Id. at 1384 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). Under Strickland, 666 U.S at 690, "counsel should be strongly presumed to have rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment."
In Richter, 131 S.Ct. 770, 786, addressing the Strickland standard and its relationship to the AEDPA, the Supreme Court explained:
To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." [Strickland], 466 U.S. at 688 [ ]. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id., at 689 [ ]. The challenger's burden is to show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687 [ ].
With respect to prejudice, a challenger must demonstrate "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 of the proceeding." Id. at 693 [ ]. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687 [ ].
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. [356, 371], 130 S.Ct. 1473, 1485 [ ] (2010). . . . Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. . . . . The question is
whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom." Strickland, 466 U.S., at 690.
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [because] the standards created by Strickland and § 2254(d) are both "highly deferential" . . . and when the two apply in tandem, review is "doubly" so. . . . Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. (some internal citations omitted).
In Titlow, 134 S.Ct. at 13, the Supreme Court reiterated the requirement that federal courts use a "'doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt." (quoting Cullen, 131 S.Ct. at 1403).
As noted above, Petitioner claims that he was rushed to plead guilty under pressure from his attorney, who never fully discussed his trial options and defenses, discouraged him from going to trial, misled him into believing he had no choice but to plead guilty, and told him to waive his right to an appeal without explaining the ramifications. (Dkt. No. 9-1 at 19-21.) However, as discussed above, Petitioner's plea allocution belies those claims. (Dkt. No. 9 at 85-100.)
Furthermore, even if Petitioner's attorney did advise him to plead guilty, Petitioner has failed to establish that his attorney's representation fell below an objective standard of reasonableness, see Strickland, 466 U.S. at 687-88, because, among other things, under the circumstances, the plea bargain was quite favorable to Petitioner. At the time Petitioner entered his guilty plea, there was a paternity test revealing him as the father of V.C.'s baby, a pending indictment against him on another sex crime, and still another sex crime case against him in the pipeline. (Dkt. No. 9 at 82.) The prosecution agreed to dismiss and discontinue those two cases in exchange for the plea agreement. Id. at 82, 84. In addition, the prosecution agreed to forego a persistent felony petition, which was significant in that persistent felony status would make Petitioner eligible for a life sentence if he were convicted under any count of the indictment. Id. at 84. See Belle v. Superintendent, No. 9:11-CV-0657 (NAM), 2013 WL 992663, at *13, 2013 U.S. Dist. LEXIS 34481, at *36-37 (N.D.N.Y. Mar. 13, 2013) (the highly favorable outcome as a result of the plea agreement was found to belie petitioner's ineffective assistance claims).
Furthermore, given that the paternity test found admissible by the state court established that Petitioner was the father of the child V.C. had at the age of fourteen (Dkt. No. 10-1 at 107), an acquittal on the statutory rape charge under Penal Law § 130.30 would have been at best highly unlikely. There is nothing in the State court record suggesting "a reasonable possibility that but for counsel's errors the outcome would have been different i.e., the accused would not have pled guilty and would likely have been acquitted at trial, or would have received a significantly more favorable sentence." Belle, 2013 WL 992663, at *13 (citing Hill v. Lockhart, 474 U.S. 52, 59-60 (1985)). Therefore, Petitioner has made no showing that he was prejudiced by the legal representation given him by his attorney with regard to his guilty plea and waiver of his right to appeal, and the Court finds that there is no merit to his ineffective assistance claim.
B. Petitioner's Fourth Amendment Search and Seizure Claim
Petitioner claims that the buccal DNA sample that led to the determination that he was the father of V.C.'s baby was taken after he had been locked in a room at the state trooper's barracks and stripped of his personal belongings, and before he was given his Miranda rights, in violation of his Fourth Amendment right against unreasonable search and seizure. (Dkt. No. 1 at 5.) Respondent contends that the claim is unexhausted and procedurally barred, and that even if it were not, Petitioner is precluded from raising independent claims relating to the deprivation of constitutional rights that occurred prior to the guilty plea. (Dkt. No. 8-1 at 23.)
1. The Fourth Amendment Claim is Unexhausted and Procedurally Defaulted
To satisfy the requirement that state remedies be exhausted before a petitioner can seek federal habeas corpus relief, a petitioner must have presented the substance of the federal claim to the highest court in the state. Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001). Petitioner did not raise a Fourth Amendment unreasonable search and seizure claim on his direct appeal to the Appellate Division in either his counseled or pro se briefs. (Dkt. Nos. 9-1, 9-2.) Nor did he do so in his application for leave to appeal to the New York Court of Appeals. (Dkt. No. 9-5.) Therefore, the Court finds that the claim is unexhausted.
When the petitioner has "failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," federal habeas courts must deem the claims procedurally defaulted. Aparicio, 269 F.3d at 90 (quoting Coleman, 501 U.S. at 735 n.1). Under New York law, a petitioner is entitled to only one direct appeal to the Appellate Division and one request for leave to appeal to the Court of Appeals, both of which Petitioner pursued in this case. Id. at 91; N.Y. CPL § 450.10(1). New York does not permit collateral attacks on a conviction when a petitioner has unjustifiably failed to raise the issue on direct appeal. Id.; N.Y. CPL § 440.10(2)(c). Petitioner has presented no justification for failing to raise his record based unreasonable search and seizure claim on direct appeal. Because "it is clear that [Petitioner's] unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile," Aparicio, 269 F.3d at 90, the Court finds that it is procedurally defaulted.
Petitioner's procedural default can be cured only by a showing of cause for the default plus prejudice, or a showing of actual innocence. Coleman, 501 U.S. at 735. Petitioner has failed to show either. Therefore, the Court concludes that Petitioner's Fourth Amendment claim is unexhausted and procedurally defaulted.
2. Petitioner's Fourth Amendment Claim is Not Cognizable on Appeal
In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the Supreme Court held that as a general rule, a defendant who pleads guilty to a charged offense "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." However, an exception to the rule has been recognized by the Supreme Court where a state permits appeal of a pre-appeal constitutional ruling. See Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975) ("[W]hen state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding.").
Pursuant to CPL § 710.70(2), a criminal defendant may appeal an adverse decision on a pretrial motion to suppress evidence, despite conviction upon a guilty plea. "Accordingly, in New York, a guilty plea does not bar habeas review of constitutional claims arising from an illegal search provided the search was contested in state court." Belle, 2013 WL 992663, at * 8. Because Petitioner sought to suppress the test results on the buccal DNA sample gained from the allegedly unconstitutional search and seizure (Dkt. No. 9 at 1-109), his guilty plea does not waive his right to challenge the admissibility of the evidence through a habeas petition. Id.
Nonetheless, review of Petitioner's Fourth Amendment claim is precluded pursuant to Stone v. Powell, 428 U.S. 465, 494 (1976), in which the Supreme Court held that federal habeas review is unavailable for Fourth Amendment claims where the state has provided a full and fair opportunity to litigate such a claim. It is well settled that New York provides an adequate corrective procedure for Fourth Amendment claims, see, e.g., Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992) (citations and internal quotation marks omitted), and Petitioner does not dispute that he had the opportunity to litigate his Fourth Amendment claims in the state court proceeding. Therefore, the Court finds that federal habeas relief is unavailable on Petitioner's Fourth Amendment claim.
C. Petitioner's Constitutional Right to a Speedy Trial
Petitioner claims that he was denied his Sixth Amendment right to a speedy trial. (Dkt. No. 1 at 6.) Petitioner was arrested on October 6, 2006, and remained incarcerated until his guilty plea on June 3, 2008. (Dkt. No. 10 at 35.) As of the date of his speedy trial motion in state court on March 28, 2008, Petitioner had been in custody awaiting trial for over 560 days, or approximately eighteen months. (Dkt. No. 9-1 at 11.) On his direct appeal to the Appellate Division, Petitioner argued in both his counseled and pro se briefs that he was denied his Sixth Amendment constitutional right to a speedy trial. (Dkt. Nos. 9-1 at 10-16; 9-2 at 22-28.) The Appellate Division found that Petitioner's constitutional claim survived his guilty plea and waiver of appeal but rejected it on appeal. See Irvis, 935 N.Y.S.2d at 373.
Plaintiff has not raised a claim that he was denied his statutory right to a speedy trial under CPL § 30.30 in this proceeding.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . ." U.S. Const. Amend. VI. In Barker v. Wingo, 407 U.S. 514, 521 (1972), the Supreme Court made clear that:
[T]he right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitively say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.See also Vermont v. Brillion, 556 U.S. 81, 89-90 (2009) (the right contained within the Speedy Trial Clause is "amorphous," "slippery," and "necessarily relative"). The Sixth Amendment proscribes no maximum or minimum amount of time in which a case must be brought to trial, but rather requires a "functional analysis of the right in the particular context." Barker, 407 U.S. at 522.
In Barker, the Supreme Court identified four factors that a court should consider in passing on a petitioner's claims that pretrial delays in state court denied him his Sixth Amendment right to a speedy trial: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530. With respect to the first Barker factor, both the Supreme Court and Second Circuit have found that no speedy trial violation occurred in cases involving delays nearly as long and significantly longer than that in this case. See, e.g., Barker, 407 U.S. at 533-34 (over five years); Flowers v. Warden, Connecticut Corr. Inst., Somers, 853 F.2d 131, 133 (2d Cir. 1988) ("As to the first factor, length of the delay, we note first that the 17-month delay here, while lengthy, is nevertheless considerably shorter than those in other cases where we have found no speedy trial violation.") (citing, inter alia, United States v. McGrath, 622 F.2d 36 (2d Cir. 1980) (24 months); United States v. Lane, 561 F.2d 1075 (2d Cir. 1977) (58 months); United States v. Cyphers, 556 F.2d 630 (2d Cir. 1977) (33 months); United States v. Lasker, 481 F.2d 229 (2d Cir. 1973) (2 years)).
On Petitioner's direct appeal, the Appellate Division, quoting People v. McCorkle, 890 N.Y.S.2d 665 (3d Dep't 2009), identified the factors to be considered in evaluating his Sixth Amendment right to a speedy trial claim as "length of delay, reason for the delay, nature of the charges, extent of pretrial incarceration and any impairment to the defense caused by the delay." Irvis, 935 N.Y.S.2d at 373. The Appellate Division found that Petitioner had been in custody for approximately eighteen months, which was significantly less time than in many of the Second Circuit cases cited in Flowers in which no Sixth Amendment violation was found. Id.
Although the factors considered by the Appellate Division in Irvis differed slightly from those articulated in Barker, the issue before the state court in McCorkle was the defendant's Sixth Amendment right to a speedy trial, and the Court finds that the factors identified in McCorkle are sufficiently close to the Barker factors.
With regard to the second Barker factor, the Supreme Court has stated that "[c]losely related to length of delay is the reason the government assigns to justify the delay," and that a deliberate delay in order to hamper the defense should be weighed heavily against the prosecutor. Barker, 407 U.S. at 531. The Court finds no evidence in the state court record that the prosecution intentionally delayed the trial to hamper Petitioner's defense. The Appellate Division specifically attributed the delay to the filing of other charges against Petitioner while he was in custody alleging that he had sex with another underage victim, and Petitioner's request, which was ultimately granted, for appointment of a special prosecutor. Id.
The Appellate Division also considered Petitioner's claim that his defense was prejudiced by the delay in that it deprived him of the availability of a potential alibi witness, who had been murdered during the time he awaited trial, (Dkt. No. 9-1 at 12.), Citing CPL § 250.20, the Appellate Division noted that Petitioner had not ever filed a statement notifying the County Court or District Attorney of his alibi defense and, as a result, may well not have been allowed to assert the defense at trial in any event. Irvis, 935 N.Y.S.2d at 373. The Appellate Division concluded that while delays like that encountered in Petitioner's case should, if possible, be avoided, the delay did not in Petitioner's case serve to deprive him of his constitutional right to a speedy trial.
The state court records shows that the prosecution served a Demand for Notice of Alibi on Petitioner. (Dkt. No. 10-1 at 58.) Given V.C.'s age and the finding of paternity, it is unlikely that an alibi witness could have been of much assistance in Petitioner's defense on the statutory rape charge in any event.
The Appellate Division did not consider the time it took Petitioner to assert his right to a speedy trial, one of the Barker factors, in finding that his constitutional right to a speedy trial had been violated. However, because Petitioner did not bring a speedy trial motion until March 28, 2008, consideration of the factor would not likely have led to a different conclusion on the Petitioner's speedy trial claim on the direct appeal. While the Supreme Court found in Barker that a defendant's assertion of his speedy trial right was entitled to "strong evidentiary weight in determining whether the defendant is begin deprived of the right" to a speedy trial, Barker, 407 U.S. at 528, the Court acknowledged that the failure to assert the right could be strong evidence to the contrary. Id. at 532. In this case, Petitioner waited nearly eighteen months before bringing a speedy trial motion.
In light of the foregoing, the Court finds that the Appellate Division's determination that Petitioner's Eighth Amendment right to a speedy trial had not been violated was neither contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.
D. Petitioner's Remaining Claims are Barred By his Guilty Plea
It is well settled that a guilty plea represents a "break in the chain of events which has preceded it in the criminal process," and a defendant "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Tollett, 411 U.S. at 267; see also McGrail v. Superintendent, Collins Corr. Facility, No. Civ. No. 9:08-CV-111 (GLS/RFT), 2011 WL 7090716, at * 9, 2011 U.S. Dist. LEXIS 152191, at * 31 (N.D.N.Y. Nov. 14 2011) ("[I]t is well-settled that a defendant's properly counseled and entered plea of guilty admits all of the elements of a formal criminal charge and waives a multitude of federal constitutional rights) (citing Tollett, 411 U.S. at 267). The Court has concluded herein that Petitioner's guilty plea is valid. Consequently, the Court also finds that under Tollett, Petitioner is precluded from obtaining habeas relief on claims arising out of matters that occurred prior to the plea.
1. Ineffective Assistance of Counsel Prior to Petitioner's Guilty Plea
Petitioner claims that his originally assigned counsel denied him effective assistance of counsel by: (1) continuing to represent him following Petitioner's request on or about October 10, 2006, for assignment of new counsel on conflict of interest grounds (denied by the court) and then recusing himself eighteen months later, six days before the originally scheduled date for Petitioner's trial; and (2) ineffectively representing Petitioner from October 10, 2006, until April 8, 2008, by waiving his rights, refusing to file motions on his behalf, and sharing information with his friends and former colleagues at the District Attorney's Office to help prosecute Petitioner. (Dkt. No. 1 at 4, 7.)
Petitioner's ineffective assistance of counsel claim survives his guilty plea only to the extent it challenges the voluntariness of his guilty plea and advice he received from counsel in connection with the plea. Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008); see also Blackledge, 417 U.S. at 29-30 (following a guilty plea, a defendant "is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases.") (citation and internal quotation marks omitted). The Court has already concluded that Petitioner's guilty plea was knowing, voluntary, and intelligent, and that he was not deprived of effective assistance of counsel in connection with the guilty plea or waiver of his right to appeal. The Court now finds that all of Petitioner's other ineffective assistance of counsel claims, which challenge the representation by an attorney who was no longer representing Petitioner at the time of his guilty plea, are foreclosed by that guilty plea.
2. Claim that District Attorney Was Biased
Petitioner claims that the Greene County District Attorney, who obtained the indictments and prosecuted him until replaced by a Special District Attorney at the District Attorney's request in or about April 2008, was biased against him. (Dkt. No. 1 at 5.) Petitioner claims the District Attorney was biased because his brother had an order of protection against Petitioner as a result of threats made by Petitioner. (Dkt. No. 10-1 at 42.) Inasmuch as there is no evidence in the state court record that the Greene County District Attorney, who was no longer prosecuting the case at the time of Petitioner's guilty plea, was in a position to, or actually had, any impact on the voluntary nature of the guilty plea, the Court finds that the claim is foreclosed from habeas review under Tollett.
3. Claim that the County Court Judge Was Biased
Petitioner claims that County Court Judge Lalor was biased against him because he knew Petitioner personally in that he was a friend of the Judge's sons, one of whom went to prison for selling drugs, and the Judge blamed his son's friendship with Petitioner for the drug matter. (Dkt. No. 1 at 5.) Petitioner also claims that his biological father had been involved in a situation with the Judge years before and gotten away with something in the Judge's eyes. Id. According to Petitioner, the Judge had refused to step down in order to conspire with the District Attorney and officers of the court he assigned to represent Petitioner, in order to convict him one last time before he retired. Id.
On Plaintiff's direct appeal, the Appellate Division found Petitioner's claim that Judge Lalor was biased to be foreclosed by his appeal waiver and unpreserved. Irvis, 935 N.Y.S.2d at 373. It is well-settled in New York that a waiver of appeal provides an independent and adequate procedural bar to habeas relief. See, e.g., Junior v. Warden, No. 13-CV-9164 (NSR) (PED), 2015 WL 1931229, at * 2, 2015 U.S. Dist. LEXIS 56286, at * 22-23 (S.D.N.Y. April 28, 2015) (waiver of appeal provided an independent and adequate state procedural bar to habeas relief); Haynes v. Burge, No. 05 CV 5997 (RJD), 2015 WL 791457, at * 7 n.11, 2015 U.S. Dist. LEXIS 22655, at * 23 (E.D.N.Y. Feb. 25, 2015) (finding Appellate Division's rejection of challenge to sentence on the ground that defendant's waiver of his right to appeal barred the sentencing challenge was an independent and adequate state law ground barring habeas review).
The Court finds no evidence in the state court record of default and prejudice or a fundamental miscarriage of justice in the application of the state procedural rule with regard to Petitioner's bias claim. The state court record reveals that Judge Lalor clearly explained Petitioner's rights and the implications of his guilty plea during the plea allocution, and there is nothing in the record suggesting that the Judge coerced Petitioner into pleading guilty. Moreover, as previously discussed, the plea agreement was favorable to Petitioner, particularly given the DNA evidence of paternity.
In light of the foregoing, the Court finds that the state procedural bar precludes habeas review of Petitioner's bias claim against Judge Lalor.
4. Selective and Malicious Prosecution
Petitioner claims that he was singled out for prosecution because he is Black and V.C. is White. (Dkt. No. 1 at 5.) Petitioner did not assert a claim of selective prosecution in either his counseled or pro se brief on his direct appeal (Dkt. Nos. 9-1, 9-2), or in his application for leave to appeal to the Court of Appeals, (Dkt. No. 9-5), leaving the claim unexhausted. The claim appears to be procedurally defaulted since there is no evidence in the state court record suggesting that the selective prosecution claim could not have been raised in the trial court and on the direct appeal or that the record was inadequate to review the claim.
Furthermore, there is no evidence whatsoever in the state court record that supports Petitioner's claim of selective or malicious prosecution based on his race and the race of his victim. In fact, the evidence that Petitioner was the father of fourteen year old V.C.'s baby rendered the prosecution for statutory rape virtually inevitable.
Petitioner claims that V.C. had sexual relations with twelve other adults including her father, brother, and cousin. However, there is no evidence of that in the record and none of those individuals is the established father of V.C.'s child.
In light of the foregoing, the Court finds that the selective prosecution claim is unexhausted, procedurally defaulted, and wholly unsupported by the record.
5. Constitutionality of Penal Law § 130.30 (Rape in the Second Degree)
Petitioner claims that Penal Law § 130.30, a statutory rape provision, is unconstitutional, and that he was denied the right to a fair trial because the statute does not allow for mistake of age, and the jury would not have been allowed to hear testimony from V.C., her family, and her friends about lying to Petitioner concerning her age. (Dkt. No. 1 at 5-6.)
Respondent contends that Petitioner's guilty plea forecloses review of his challenge to the constitutionality of § 130.30. (Dkt. No. 8-1 at 27-28.) However, there is case law, including from the Second Circuit, finding that a facial challenge to the constitutionality of a criminal statute is not waived by a guilty plea. See United States v. Yousef, 750 F.3d 254, 259 n.2 (2d Cir. 2014) ("where the prosecution is facially unconstitutional . . . a guilty plea does not waive the constitutional challenge) (citing Menna v. New York, 423 U.S. 61, 63 n.2 (1975) (per curiam)); Mercado v. Rockefeller, 502 F.2d 666, 672 (2d Cir. 1974) (guilty plea does not bar challenges to the constitutionality of the statute underlying conviction); Neely v. McDaniel, 677 F.3d 346, 349 (8th Cir. 2012) ("'[A] plea of guilty to a charge does not waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute.'"), cert. denied, 133 S.Ct. 546 (2012) (quoting United States v. Broce, 488 U.S. 563, 575 (1989)) (emphasis in original). Therefore, to the extent Petitioner's constitutional challenge is to the constitutionality of § 130.30 on its face, the Court finds that it is not foreclosed by his guilty plea.
To the extent the challenge is to the constitutionality of the statute as applied, it is foreclosed by Petitioner's guilty plea. See Neely, 677 F.3d at 349 (court found that petitioner was foreclosed by guilty plea from challenging the constitutionality of the criminal statute as applied to him, although not on its face).
Considering the merits, the Court finds that existing case law does not support Petitioner's due process challenge to Penal Law § 130.30 on the grounds that mistake as to the age of the victim is not a defense. Section 130.30, a statutory rape crime, provides in relevant part that "A person is guilty of rape in the second degree when: 1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old." Penal Law § 15.20(1) provides in relevant part that "A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact unless: (a) Such factual mistake negates the culpable state required for the commission of an offense; or (b) The statute defining the offense or a statute related thereto expressly provides that factual mistake constitutes a defense or exemption. . . ." Neither (a) nor (b) applies to § 130.30, which contains no mens rea provision and contains no provision expressly providing that a factual mistake constitutes a defense or exemption.
Petitioner challenged the constitutionality of Penal Law § 130.30 in his pro se brief on direct appeal. (Dkt. No. 9-2 at 29-33.) The Appellate Division did not discuss the claim and presumably intended that it be covered in the statement that "[d]efendant's remaining contentions have been reviewed and found to be without merit." Irvis, 935 N.Y.S.2d 374. Inasmuch as Petitioner did not include a constitutional challenge to the statute in his application for leave to appeal to the Court of Appeals, the claim is unexhausted and procedurally defaulted. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (in order to exhaust state remedies, a petitioner is required to fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review) thereby alerting that court to the federal nature of the claim.) The Court has nonetheless considered the merits.
In People v. Dozier, 424 N.Y.S.2d 1010 (1st Dep't 1980), the defendant challenged the constitutionality of Penal Law § 130.25, another New York statutory rape provision, on due process grounds because it did not allow ignorance, fraud, or mistake as a defense. In rejecting the defendant's due process challenge, the Appellate Division wrote: "We find that the statute serves a significant state interest in that it protects a certain class of minors from any adverse consequence of sexual intercourse, even if consensual. Following long-settled principles, we also find no constitutional prohibition against imposing criminal liability for conduct in which Mens rea is not an element of the offense." Id. at 1011.
The Dozier decision finds support in Morissette v. United States, 342 U.S. 246, 251 n.8 (1952), in which the Supreme Court, albeit in dicta, noted that the recognized exception to the general mens rea requirement in the case of "public welfare offenses" included "sex offenses such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached the age of consent." See also United States v. Robinson, 702 F.3d 22, 32-33 (2d Cir. 2012) (in child sex trafficking case court found that presumption that criminal statutes are generally intended to include mens rea requirements does not apply to sex crimes against minors) (citing Morissette, 342 U.S. at 251 n.8); United States v. Brooks, 841 F.2d 268, 269-70 (9th Cir. 1988) (rejecting claim that failure to include a mistake of age defense in a statutory rape statute rendered the statute unconstitutional by denying defendant due process).
Criminal statutes are generally construed to include mens rea requirements. See Staples v. United States, 511 U.S. 600, 605-06 (1994). --------
In light of the foregoing, the Court finds that even if Petitioner's claim is not found to be unexhausted and procedurally defaulted, it should be denied on the merits.
6. Denial of Due Process as a Result of the Timing of the Suppression Hearing
Petitioner claims that his Fourteenth Amendment right to due process was violated when he was forced to attend a suppression hearing prior to the time the County Court received and inspected the grand jury minutes and ruled on his CPL § 210.30 motion to inspect the grand jury minutes and dismiss the indictment. (Dkt. Nos. 1 at 6; 10 at 3-4.) Petitioner also claims that he testified at a 2008 grand jury that he thought was for a separate case but was actually for the original one, and he was instantly indicted after knowing three grand jurors personally and being asked questions about his tattoos. (Dkt. No. 1 at 6.) In addition, Petitioner claims that he was arraigned on a sealed indictment, which was impossible since it was no longer secret by virtue of his having testified. Id.
The Court finds that habeas review of Petitioner's due process claims is foreclosed under Tollett in that the alleged constitutional violations all occurred prior to the entry of his guilty plea.
VI. CONCLUSION
Based upon the foregoing, the Court recommends that Petitioner's Petition for a writ of habeas corpus (Dkt. No. 1) be denied and dismissed.
WHEREFORE, it is hereby
RECOMMENDED, that the Petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED. The Court finds that Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2) (2006) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Therefore, the Court recommends that no certificate of appealability issue with respect to any of Petitioner's claims; and it is hereby
ORDERED, that the Clerk's Office provide Petitioner with copies of all unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: October 13, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge