Opinion
22 Civ. 1730 (NSR)(PED)
04-07-2023
Duan Jones, Petitioner, v. David Howard, Superintendent Respondent.
HONORABLE NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Paul F. Davison, U.S.M.J.
I. INTRODUCTION
Duan Jones (“Petitioner”), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in County Court for the County of Orange. [Dkt. 1.] On October 17, 2017, Petitioner pleaded guilty to one count of criminal possession in the second degree. Petitioner was sentenced to eight years imprisonment with a five-year period of post-release supervision. Petitioner is currently serving his sentence at the Woodbourne Correctional Facility in Sullivan County, New York. The Petition comes before me pursuant to an Order of Reference entered on March 22, 2022. [Dkt. 6.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 1], Respondent's Answer with attached exhibits [Dkts. 7, 8], and Petitioner's traverse [Dkt. 9].
1. The Crime and Investigation
In April 2017, Petitioner sold heroin to a confidential informant on three separate occasions in Middletown, New York. On each occasion Petitioner was observed leaving a particular locations. On May 16, 2017, the Middletown police submitted an affidavit seeking a search warrant for the apartment Petitioner had been observed leaving in connection with the heroin sales. The warrant was issued on the same day, but the police did not execute the warrant, apparently for logistical reasons. Instead, on May 25, 2017, the police submitted a substantially identical second affidavit seeking a second warrant to search the same apartment. The second warrant was granted, and, on June 3, 2017, the police executed the warrant and recovered heroin, three loaded handguns, ammunition, and cash.
2. Initial Proceedings
On July 17, 2017, the prosecution provided Petitioner's counsel with a redacted copy of the May 16th search warrant affidavit and a copy of the March 25th search warrant. [Dkt. 8-1 at 88-89.] On July 20, 2017, Petitioner, through counsel, argued that the search warrant was not supported by probable cause and moved to suppress the evidence recovered as a result of the search warrant. [Id. at 36-37.] On August 17, 2017, the court issued a decision denying Petitioner's motion to suppress. [Dkt. 8-2 at 30-31.]
3. The Guilty Plea and Sentencing
On October 17, 2017, Petitioner pled guilty to criminal possession in the second degree. [Dkt. 8-6 at 59-60.] The judge undertook a plea colloquy to ensure that Petitioner understood the crime that he was pleading guilty to and the rights he was waiving by pleading guilty. [Id. at 5164.] On January 30, 2018, Petitioner was sentenced to eight years in prison to be followed by five years post-release supervision. [Dkt. 8-7 at 30.]
B. Procedural History
1. The Direct Appeal
On September 30, 2019, Petitioner, through counsel, filed an appeal to the Appellate Division, Second Department. [Diet. 8-2 at 78.] Petitioner raised three arguments on appeal. He first argued that the search warrant was overbroad and that as a result, the search was illegal and the evidence should have been suppressed. [Id. at 66-71.] Petitioner next argued that his waiver of his right to appeal was invalid. [Id. at 72-75.] Finally, Petitioner argued that his sentence was excessive. [Id. at 75-78.] The state submitted its opposition on November 15, 2019. [Id. at 106.] Petitioner filed a reply on December 4, 2019. [Dkt. 8-3 at 10.]
The Appellate Division issued its decision on August 26, 2020. People v. Jones, 127 N.Y.S.3d 325, 326 (App. Div. 2020). The Appellate Division determined that “the record demonstrates that [Petitioner] knowingly, voluntarily, and intelligently waived his right to appeal” and that the valid waiver precluded appellate review. Id. On September 21, 2020, Petitioner filed an application requesting leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 8-3 at 17.] On September 30, 2020, the state submitted its opposition. [Id. at 22.] On November 2, 2020, the Court of Appeals summarily denied Petitioner's request for leave. People v. Jones, 159 N.E.3d 1101 (Table) (N.Y. 2020).
2. Petitioner's CPL § 440.10
On March 17, 2021, Petitioner, through counsel, moved pursuant to CPL § 440.10 to vacate the judgment in the County Court for Orange County. [Dkt. 8-3 at 49.] Petitioner raised four arguments: (1) the search warrant was invalid because it lacked probable cause and the police failed to execute it within the statutory time limit; (2) Petitioner was denied due process and a fair trial because the prosecution failed to disclose Brady material; (3) Petitioner received ineffective assistance of trial counsel; and (4) Petitioner's plea was involuntarily procured. [Id. at 29-49.] The state submitted its opposition on July 6, 2021. [Dkt. 8-4 at 28.]
On August 30, 2021, the County Court denied Petitioner's motion. The County Court first observed that it would deny Petitioner's motion because the motion raised arguments that were raised on appeal, or arguments that should have been raised on appeal but were not. [Dkt. 8-4 at 83-85.] With respect to Petitioner's argument that he received ineffective assistance of counsel, the County Court determined that Petitioner received meaningful representation. [Id. at 85.] Regarding Petitioner's argument that his plea was involuntary, the County Court determined that the record demonstrated that his plea was “knowingly, voluntarily, and intelligently entered.” [Id. (citations omitted).]
On September 27, 2021, Petitioner submitted a request for leave to appeal the County Court's denial of his motion to the Appellate Division. [Dkt. 8-5 at 13.] On October 5, 2021, the state submitted its opposition. [Id. at 41.] On November 15, 2021, the Appellate Division denied Petitioner's request. [Dkt. 8-6 at 84.]
3. The Instant Petition
Petitioner signed the instant Petition and delivered it to prison officials for mailing on February 11, 2022. [Dkt. 1 at 23.] The Respondent filed a response in opposition to the Petition on May 9, 2022. [Dkt. 8.] On June 10, 2022, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 9.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because nonconstitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of N.Y, 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C, § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g, Reyes, 118F.3datl39. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted Naims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm 'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F,3d 130,138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F,3d 217, 239 n.lO (2d Cir. 2002); see Coleman, 501 U.S. at 729.
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule ftom the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV. ANALYSIS
In his Petition, Petitioner seeks habeas relief on four grounds. First, Petitioner argues that there was insufficient probable cause to support the reissuance of the search warrant. Next, Petitioner argues that he was denied his due process rights and right to a fair trial because the prosecution failed to disclose Brady material. Petitioner also argues that he received ineffective assistance of counsel because his counsel failed to realize there was undisclosed evidence. Finally, Petitioner argues that his plea was involuntary.
A. This Court Cannot Review Petitioner's First Ground
Petitioner contends that the affidavit used to support the reissued search warrant was not supported by sufficient probable cause. Petitioner's argument is foreclosed by the Supreme Court's holding in Stone v. Powell, 428 U.S. 465 (1976). Pursuant to Stone, where a habeas petitioner has had “an opportunity for full and fair litigation” of his Fourth Amendment claim in state court, “the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 482. In interpreting Stone, the Second Circuit “concluded that review of fourth amendment claims in habeas petitions would be undertaken in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). “[C]ourts in this circuit have expressly approved New York's procedure for litigating Fourth Amendment claims as being facially adequate.” Griffin v. N.Y. Dep't Corr., 2007 WL 1296203, at *1 (S.D.N.Y. May 2, 2007) (citing Capellan, 975 F.2d at 70 n.1 and Gates v. Henderson, 568 F.2d 830, 837 n.4 (2d Cir. 1977)).
To the extent that Petitioner challenges the state's failure to execute the May 16th search warrant, resulting in the warrant being reissued on May 25th, Petitioner's argument fails to allege a violation of “the Constitution, laws or treaties of the United States[.]” 28 U.S.C. § 2254(a). Accordingly, this Court cannot review the argument.
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Here, Petitioner argues that the affidavit used to support the reissued search warrant lacked probable cause. Thus, Petitioner is not challenging the adequacy of the state's corrective procedure or alleging an unconscionable breakdown in the underlying process. Indeed, “New York unquestionably affords the requisite corrective procedures to redress Fourth Amendment challenges.” Griffin, 2007 WL 1296203, at *1 (citing CPL § 710.10). “These procedures were not merely theoretically available to [Petitioner]-he used the available corrective procedures when he moved to suppress the evidence derived from the search warrant.” Id., see Dkt. 8-1 at 36. Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that pursuant to the Stone doctrine, this Court cannot review the first ground of the Petition.
B. Petitioner's Second Ground Is Procedurally Barred and In Any Event Without Merit
Petitioner next argues that he was deprived of Brady material based on the prosecution's failure to produce the May 16, 2017 search warrant and the May 25, 2017 affidavit seeking the second warrant. Plaintiff raised this argument in his CPL § 440.10 motion. The County Court denied Petitioner's motion and stated that “[t]o the extent that [Petitioner] argues that sufficient facts do not appear on the record, said facts could have readily been made to appear on the record but the [Petitioner] ‘unjustifiably failed to adduce such matter prior to sentence[.]'” [Dkt. 8-4 at 84 (quoting CPL § 440.10 (3)(a)).] Petitioner requested leave to appeal the County Court's denial to the Appellate Division, but the Appellate Division denied Petitioner's request.
As noted above, a federal court generally must abstain from reviewing a state court decision when it “rests upon adequate and independent state grounds.” Harris, 489 U.S. at 261. A decision will be “adequate” if it is “firmly established and regularly followed by the state in question.” Garcia, 188 F.3d at 77 (internal quotation marks omitted). A decision will be “independent” when it “fairly appears” to rest primarily on state law. Jimenez, 458 F.3d at 138.
Subsection (3)(a) of CPL § 440.10 provides that a court may deny a motion to vacate when facts in support of a defendant's argument “could with due diligence by defendant have readily been made to appear on the record”, but “the defendant unjustifiably failed to adduce such matter prior to sentence[.]” CPL § 440.10 (3)(a). Here, in deciding Petitioner's Brady claim, the County Court relied upon CPL § 440.10 (3)(a) to determine that it could not review Petitioner's argument. [Dkt. 8-4 at 84.] Accordingly, the County Court relied on an independent procedural bar under state law to dismiss Petitioner's Brady claim. Further, “New York state courts regularly invoke section 440.10(3)(a) in holding that claims are procedurally barred because they were not raised at or before trial.” Ciochenda v. Artus, 2008 WL 3823865, at *10 (S.D.N.Y. Aug. 15, 2008) (collecting cases). Accordingly, the procedural default relied upon by the County Court in denying Petitioner's motion, bars this Court from reviewing his claim.
Petitioner could overcome this procedural bar if he could show a “miscarriage of justice,” and demonstrate that he is “actually innocent of the crime for which he has been convicted.” Cotto, 331 F.3d at 239 n.10. Petitioner, however, fails to allege or plead actual innocence. I therefore conclude, and I respectfully recommend Your Honor conclude, that Petitioner's first ground is procedurally barred from this Court's review.
In any event, even assuming arguendo that Petitioner's Brady argument was not procedurally barred, it is nonetheless without merit. Pursuant to the Supreme Court's decision in Brady v. Maryland, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “A habeas petitioner must satisfy all three elements to prevail on a Brady claim.” Chrysler v. Guiney, 14 F.Supp.3d 418, 449 (S.D.N.Y. 2014).
Respondent argues that Petitioner's guilty plea prevents this Court from reviewing Petitioner's Brady claim. The Supreme Court has held that “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002). However, it is unclear whether Ruiz extends to exculpatory material. In Friedman v. Rehal, the Second Circuit seemed to endorse the notion, observing that “the Supreme Court has consistently treated exculpatory and impeachment evidence in the same way for the purpose of defining the obligation of a prosecutor to provide Brady material prior to trial, and the reasoning underlying Ruiz could support a similar ruling for a prosecutor's obligations prior to a guilty plea.” 618 F.3d 142,154 (2d Cir. 2010). In the absence of definitive appellate guidance, however, I do not recommend rejecting Petitioner's Brady claim on this basis, particularly given that the claim is procedurally barred and, in any event, fails on the merits.
Here, Petitioner fails to establish the first component of a Brady violation. “[F]avorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” United States v. Gilley, 279 Fed.Appx. 19, 25-26 (2d Cir. 2008) (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). Thus, “evidence is material if it ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'” Poventud v. City of New York, 750 F.3d 121, 157 (2d Cir. 2014) (quoting Kyles, 514 U.S. at 435).
Petitioner argues that the May 16, 2017 search warrant and May 25, 2017 search warrant affidavit were deliberately and impermissibly withheld from him. In his reply, Petitioner argues that these documents are favorable because they “would have provided defense counsel with [critical] information to dispute and argue forcefully this documents [sic] importance and what this document substantiates.” [Dkt. 9 at 4.] Petitioner then argues that the value of the missing May 16th search warrant “can only be measured by the blatant misconduct it took to suppress it from the proceedings”, and that the May 25,h search warrant affidavit would have demonstrated that there was no probable cause to support the search warrant. [Id. at 4-5.] However, these missing documents in no way “put the whole case in such a different light” as to undermine the confidence in the outcome. Poventudi, 750 F.3d at 157.
First, the May 16th search warrant, which was never executed, had no impact on the search or upon Petitioner's arrest and conviction. The warrant itself is not exculpatory or otherwise favorable to Petitioner, and Petitioner has not shown how or why the unexecuted warrant would somehow have undermined the basis for the May 25 warrant that was ultimately executed.
As for the May 25th search warrant affidavit, the only difference between the May 16thsearch warrant affidavit-which was provided to defense counsel-and the May 25th search warrant affidavit-which apparently was not provided-is that the May 25th search warrant affidavit noted that the May 16th search warrant was not executed. [Compare Dkt. 8-1 at 2-10 with id. at 14-18.] The May 25th affidavit included the following acknowledgment:
The May 25ih warrant affidavit reproduced on the docket is incomplete. [Dkt. 8-1 at 15 et se#.] However, the parties do not suggest that there is any material difference between the two affidavits, apart from the added paragraph set forth below, and the paragraph numeration supports that interpretation.
Due to tactical and investigative reasons, the above warrant which was signed by the Hon. Steven W. Brockett out of the City of Middletown Court was not able to
be executed within 10 days of issuance and the probable cause elements contained within this affidavit is still applicable within a reasonable time frame. .. . This warrant has not been seen by other judges or submitted to any other court.[Dkt. 8-1 at 17.] This acknowledgment conforms to the “proper and preferred practice” in New York, People v. Bilsky, 734 N.E.2d 341, 344 (N.Y. 2000), and in no way undermines the legal basis for the warrant or the search.
Accordingly, the documents Petitioner maintains were withheld are not Brady evidence because they are neither exculpatory nor are they favorable to or helpful to the defense. There is no reasonable argument that these documents would have cast the case in a different light or changed the outcome. Even if Petitioner's Brady claim were not procedurally barred, it fails on the merits. I respectfully recommend Your Honor deny the claim.
C. Petitioner's Third Ground Is Not Cognizable
For his third ground, Petitioner argues that he received ineffective assistance of counsel. Petitioner specifically claims that his attorney failed to investigate the discrepancy between the dates on the search warrant and the search warrant affidavit, and obtain the missing documents. Petitioner raised this claim in his CPL § 440.10 motion. In deciding the issue, the County Court determined that Petitioner's counsel provided “meaningful representation.” [Dkt. 8-4 at 85 (citations omitted).] Petitioner's request for leave to appeal the County Court's decision to the Appellate Division was denied.
Respondent argues that Petitioner's argument is not cognizable because Petitioner plead guilty. Indeed, under Supreme Court precedent, “[a] defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea. ‘He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.'” United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)). This is because a defendant's “unconditional guilty plea waive[s] all claims of ineffective assistance of counsel relating to events prior to the guilty plea that did not affect the voluntariness of his plea.” Vasquez v. Parrott, 397 F.Supp.2d 452, 463 (S.D.N.Y. 2005).
Here, Petitioner indeed pled guilty, and for reasons discussed infra Section IV.D, that plea was voluntary. Given that Petitioner's plea was voluntary, he has waived any challenge to his counsel's pre-plea actions. See Hill v. United States, 2014 WL 104565, at *7 (S.D.N.Y. Jan. 7, 2014) (finding that petitioner's guilty plea waived claims that the petitioner's attorney had failed to “investigate certain evidence and fail[ed] to move to suppress evidence” because they did not affect “the voluntariness of [his] plea”); Cobb v. Unger, 2013 WL 821179, at *5 (W.D.N.Y. Mar. 5, 2013) (finding that petitioner's guilty plea waived claims that he received ineffective assistance of counsel for counsel's pre-plea actions-including alleged failures to file pretrial motions, secure Brady material, or properly investigate-because the claims did not affect the voluntariness of petitioner's guilty plea). Because Petitioner's allegation that his counsel failed to investigate and discover the missing search warrant and search warrant affidavit involve counsel's pre-plea actions, and do not address the voluntariness of the plea, this claim is not cognizable on habeas review. Accordingly, I respectfully recommend Your Honor conclude that Petitioner's third ground is not cognizable on habeas review.
D. Petitioner's Fourth Ground Is Without Merit
For his final argument, Petitioner asserts that his plea was involuntary. Petitioner specifically alleges that his counsel never explained the consequences of his guilty plea or his right to a jury trial. Petitioner further alleges that his counsel pressured him to take the plea. Petitioner raised this argument in his CPL § 440.10 motion, and the County Court denied it, determining that “the record demonstrates that [Petitioner's] plea was knowingly, voluntarily, and intelligently entered.” [Dkt. 8-4 at 85 (citations omitted).]
“A plea of guilty is constitutionally valid only to the extent it is ‘voluntary' and ‘intelligent.'” Bousley, 523 U.S. at 618 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). “As a general matter, a plea is deemed ‘intelligent' if the accused had the advice of counsel and understood the consequences of his plea, even if only in a fairly rudimentary way; it is deemed ‘voluntary' if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant s sheer inability to weigh his options rationally.” Miller v. Angliker, 848 F.2d 1312,1320 (2d Cir.1988). Further, statements made during the 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.3d728, 732 (2d Cir. 1999).
Here, Petitioner's arguments are belied by the record. In spite of Petitioner's argument that his counsel failed to advise him regarding the consequences of plea, during the plea allocution, the court notified Petitioner of the consequences of his guilty plea and confirmed that he had the opportunity to discuss it with his attorney, Gary R. Somerville. [Dkt. 8-6 at 51-64.] Petitioner answered in the affirmative:
COURT: Have you had a full, fair and complete opportunity to speak to anyone important to you, but most importantly Mr. Somerville, about the facts of your case, your plea of guilty, the rights I've explained to you earlier, the waiver of those rights, any legal defenses you might have to these charges, the sentence that may be imposed, or anything else you might feel is important to you about this case, have you had sufficient time to speak to anyone and everyone about all those issues?
PETITIONER: Yes, sir.
COURT: Are you satisfied about the legal advice and legal representation provided to you by Mr. Somerville?
PETITIONER: Yes, sir.
COURT: Now because you are pleading guilty to another felony crime here today, you are gonna have another felony conviction on your record. If you're convicted of yet another felony within the next ten years, or possibly even beyond that, you are gonna receive a greater sentence for that crime because of your plea of guilty here today. In addition, you're gonna lose civil rights, certain civil rights, since the conviction is gonna deprive you of holding or keeping certain licenses. Do you understand all of this, sir?
PETITIONER: Yes, sir.[Dkt. 8-6 at 61-62.] Thus, Petitioner was aware of the consequences of pleading guilty and affirmed that he had discussed them with his counsel.
Petitioner was similarly well aware that he was waiving his right to a jury trial. When asked if he understood he was waiving his right to a jury trial, Petitioner answered in the affirmative:
COURT: If you wanted to have a trial, you would be entitled to a jury trial, in which case Mr. Somerville and Miss Kovacs and I would
select 12 citizens from our community that would sit as a jury. You could also have a non-jury trial. In which case, after hearing the evidence, I would render a verdict of guilty or not guilty. No matter which type of trial you decided to proceed with, in order to be convicted after trial, the People would have the burden of establishing your guilt beyond a reasonable doubt. That is, that you committed each and every element of the crime or crimes for which you were charged. If you proceeded with a jury trial, all 12 jurors would have to unanimously find you guilty beyond a reasonable doubt in order for you to be convicted and found guilty. If you proceeded with a non-jury trial, then I would have to be satisfied that the People had proven your guilt beyond a reasonable doubt in order to convict you and find you guilty. Do you understand that you have the right to either the jury or a non-jury trial in connection with this case?
PETITIONER: Yes, sir.
COURT: Do you further understand that by pleading guilty today you are waiving, in other words, you are giving up your right to both a jury and a non-jury trial?
PETITIONER: Yes, sir.[Dkt. 8-6 at 53-54.] The record therefore establishes that Petitioner understood his right to a jury trial and that he was waiving that right.
With respect to Petitioner's allegation that his counsel pressured him to take the plea, during the plea allocution he indicated that no one had threatened, coerced, or forced him to plead guilty. [Dkt.8-6 at 60.] “Furthermore, courts in this circuit have consistently held that pressure from .. . defense counsel. .. does not constitute coercion.” Mudd v. Connelk 2009 WL 2337993, at *3 (S.D.N.Y. July 29, 2009) (collecting cases); see United States v. Juncal, 245 F.3d 166,172 (2d Cir. 2001) (“[D]efense counsel's blunt rendering of an honest but negative assessment of [a defendant's] chances at trial, combined with advice to enter the plea [does not] constitute improper behavior or coercion that would suffice to invalidate a plea.”).
Given that Petitioner's contentions are inconsistent with the record, I conclude that the County Court's determination that Petitioner voluntarily entered into his plea was not an unreasonable interpretation of that facts. I further conclude that the County Court's determination was not contrary to Supreme Court or federal law. Accordingly, I respectfully recommend Your Honor conclude that Petitioner's plea was not involuntary and his final ground is therefore meritless.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Nelson S. Roman, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008). Requests for extensions of time to file objections must be made to Judge Roman. A copy of this Report and Recommendation has been mailed to:
Duan Jones 18-A-0578 Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, NY 12788-1000