Opinion
9:21-CV-1007 (AMN/ML)
06-27-2024
DANIEL JONES, Petitioner, v. DANIELLE TOPE, Psy. D., Respondent.
DANIEL JONES Pro se Petitioner CNY Psychiatric Center. LETITIA A. JAMES PAUL B. LYONS, ESQ. New York State Attorney General Assistant Attorney General Counsel for Respondent.
DANIEL JONES Pro se Petitioner CNY Psychiatric Center.
LETITIA A. JAMES PAUL B. LYONS, ESQ. New York State Attorney General Assistant Attorney General Counsel for Respondent.
REPORT AND RECOMMENDATION
Miroslav Lovric U.S. Magistrate Judge.
Currently before the Court in this habeas corpus proceeding filed by the petitioner, Daniel Jones (“Petitioner”), pursuant to 28 U.S.C. § 2254, is a referral to the undersigned for a report and recommendation from United States District Court Judge Anne M. Nardacci regarding the Petition. (Dkt. No. 1.) Petitioner is currently involuntarily civilly confined at the Central New York Psychiatric Center (“CNYPC”) in the Sex Offender Treatment Program (“SOTP”) under the custody of the New York State Office of Mental Health (“OMH”) pursuant to Article 10 of the New York State Mental Hygiene Law. On September 13, 2021, Petitioner filed a pro se Petition seeking a writ of habeas corpus challenging his confinement at CNYPC. (Dkt. No. 1.) Respondent opposed that motion and Petitioner filed a traverse. (Dkt. Nos. 16, 17, 18, 20, 29.) For the following reasons, the undersigned recommends that the Petition be denied.
I. BACKGROUND
In 1985, Petitioner pleaded guilty to one count of sexual abuse in the first degree with respect to multiple incidents of sexual acts by Petitioner against his two stepdaughters and one stepson that occurred between 1979 and 1982. (Dkt. No. 20, Attach. 2 at 93; Dkt. No. 20, Attach. 2 at 102-104.) He was sentenced to a term of five years probation. (Dkt. No. 20, Attach. 2 at 93; Dkt. No. 20, Attach. 2 at 102-104.)
Underlying the relevant civil commitment in this habeas petition, a jury found Petitioner guilty of attempted rape in the first degree, two counts of sexual abuse in the first degree, and other related offenses. (Dkt. No. 20, Attach. 2 at 92.) On May 13, 1992, Petitioner was sentenced on those convictions to an aggregate indeterminate term of imprisonment from ten to twenty years. (Id.)
Before the expiration of Petitioner's prison sentence, the State petitioned under N.Y. Mental Hyg. Law § 10 for Petitioner to remain civilly confined in the State's custody, and Petitioner was assigned counsel. (Dkt. No. 20, Attach. 2 at 89-100, 127-28.)
On June 27, 2012, the Erie County Supreme Court found probable cause to believe that Petitioner would require civil management pursuant to N.Y. Mental Hyg. Law § 10.06. (Dkt. No. 20, Attach. 2 at 135-36; Dkt. No. 20, Attach. 2 at 395-448.)
On August 8, 2016, Petitioner waived a jury trial and consented to a finding of mental abnormality as defined by Article 10 of the N.Y. Mental Hyg. Law. (Dkt. No. 20, Attach. 2 at 230-231; Dkt. No. 20, Attach. 2 at 524-529.) Petitioner later moved to vacate his waiver and consent, but the court denied his motion. (Dkt. No. 20, Attach. 2 at 250-203, 580-599.)
On July 13, 2017, Petitioner filed a state habeas corpus petition. (Dkt. No. 17, Attach. 1 at 1-7.) On September 14, 2017, the Erie County Supreme Court denied Petitioner's state habeas corpus petition. (Dkt. No. 17, Attach. 1 at 19-20.) On September 26, 2017, Petitioner appealed this order (“Appeal 3”). (Dkt. No. 17, Attach. 1 at 51.)
Following a dispositional hearing, on November 21, 2017, the Erie County Supreme Court concluded that Petitioner is a dangerous sex offender requiring confinement and ordered him committed to a secure treatment facility to receive further sex offender treatment. (Dkt. No. 20, Attach. 2 at 601-683; Dkt. No. 20, Attach. 2 at 685-688.) On December 6, 2017, Petitioner appealed this order (“Appeal 1”). (Dkt. No. 17, Attach. 1 at 36.)
On November 29, 2017, Petitioner filed a motion pursuant to N.Y. C.P.L.R. §§ 4404(b), 5015 seeking reconsideration and to vacate the order of commitment. (Dkt. No. 20, Attach. 2 at 794-844.) On April 17, 2018, the Erie County Supreme Court denied Petitioner's motion. (Dkt. No. 20, Attach. 2 at 792.) On April 30, 2018, Petitioner appealed the denial of his reconsideration motion (“Appeal 2”). (Dkt. No. 20, Attach. 2 at 788.)
On October 25, 2018, Petitioner filed a motion to consolidate his appeals. (Dkt. No. 17, Attach. 1 at 21-56.) On November 13, 2018, the New York Appellate Division Fourth Department, granted Petitioner's motion to consolidate to the extent that it sought to consolidate Appeal 1 and Appeal 2, and denied Petitioner's motion to the extent that it sought to consolidate Appeal 3 with Appeals 1 and 2. (Dkt. No. 17, Attach. 1 at 57-60.)
On November 19, 2018, Petitioner filed a stipulation to withdraw Appeal 3. (Dkt. No. 17, Attach. 1 at 61-62.) On November 30, 2018, the New York Appellate Division Fourth Department dismissed Appeal 3. (Dkt. No. 17, Attach. 1 at 63.)
Through counsel, Petitioner asserted the following six arguments related to Appeals 1 and 2: (1) the State failed to show probable cause to continue to detain Petitioner and his due process rights were violated by the delay in the probable cause hearing; (2) Petitioner's due process rights were violated by the delay in holding the mental abnormality hearing; (3) Petitioner's admission to a mental abnormality should be vacated; (4) the trial court should have excluded all testimony concerning the unsubstantiated hearsay allegations of Petitioner's stepchildren at the disposition hearing; (5) the Appellate Court should exercise its independent power of review and find that the State did not meet its burden of proving by clear and convincing evidence that Petitioner was a dangerous sex offender requiring confinement; and (6) the trial court should have granted Petitioner's Pro se N.Y. C.P.L.R. § 4404 motion. (Dkt. No. 20, Attach. 2 at 861-926.)
On February 7, 2020, the Appellate Division unanimously affirmed the commitment order, and on June 23, 2020, the New York Court of Appeals denied leave to appeal. State v. Daniel J., 180 A.D.3d 1347 (N.Y.App.Div. 4th Dep't 2020), lv. denied, 35 N.Y.3d 908 (2020); (Dkt. No. 20, Attach. 2 at 1008-10, 1067.)
II. GROUNDS RAISED
A. Petition
On September 13, 2021, Petitioner commenced this proceeding by the filing of a verified Petition for writ of habeas corpus. (Dkt. No. 1.) The Petition asserts the following ten grounds for habeas relief: (1) Petitioner's due process rights were violated by the untimely probable cause hearing (“Ground 1”); (2) Petitioner's due process rights were violated by the court's finding of probable cause based on legally insufficient evidence (“Ground 2”); (3) Petitioner's due process rights were violated by the untimely mental abnormality hearing (“Ground 3”); (4) Petitioner's due process rights were violated because his admission of mental abnormality was not made knowingly, voluntarily, and intelligently (“Ground 4”); (5) Petitioner's due process rights were violated because the court failed to conduct a proper allocution during his trial waiver (“Ground 5”); (6) Petitioner's due process right to present evidence was violated by the court's refusal to grant an adjournment (“Ground 6”); (7) Petitioner was deprived of effective assistance of counsel (“Ground 7”); (8) Petitioner's due process rights were violated because the court considered unsubstantiated hearsay allegations at the dispositional hearing (“Ground 8”); (9) Petitioner's due process rights were violated because the State did not meet its burden of proving by clear and convincing evidence that Petitioner was a dangerous sex offender requiring confinement (“Ground 9”); and (10) Petitioner was deprived of due process because his procedural rights pursuant to N.Y. Mental Hyg. Law § 10.01, et seq. were violated (“Ground 10”). (See generally Dkt. No. 1.)
B. Respondent's Answer and Memorandum of Law
Generally, Respondent makes the following six arguments in support of her answer: (1) Petitioner's claim regarding the delay in conducting the probable cause hearing is meritless; (2) Petitioner's challenge to the court's probable cause finding is unexhausted, procedurally barred, and meritless; (3) Petitioner's speedy trial claim is unexhausted, procedurally barred, and meritless; (4) there is no merit to Petitioner's unexhausted claims challenging his mental abnormality trial waiver, the effectiveness of his counsel, and the denial of his adjournment request; (5) Petitioner's hearsay claim is meritless; and (6) Petitioner's legal sufficiency claim as to the court's dispositional finding is unexhausted and meritless. (See generally Dkt. No. 18.)
More specifically, with respect to her first argument (addressing Grounds 1 and 10), Respondent asserts that the delay in holding the probable cause hearing was attributable to Petitioner, who requested that the proceeding be removed to Erie County. (Dkt. No. 18 at 2730.) Respondent argues that the base of Petitioner's claim is not a due process claim, but a violation of N.Y. Mental Hyg. Law § 10.06(h), and federal habeas corpus relief does not lie for errors of state law. (Id. at 28-29.) Moreover, Respondent argues that-even if the claim were cognizable-the Supreme Court has never addressed whether due process could be violated by a delay in holding a civil commitment probable cause hearing and thus, it cannot be said that the state court unreasonably applied clearly established federal law within the meaning of the AEDPA. (Id. at 29.) Further, Respondent argues that Petitioner has not established a violation of state law so egregious as to amount to constitutional error because N.Y. Mental Hyg. Law § 10.06(h) states that failure to commence the probable cause hearing within the time periods specified shall not result in the dismissal of the petition and shall not affect the validity of the hearing or the probable cause determination. (Id. at 29-30.) Finally, Respondent argues that Petitioner cannot establish that he was prejudiced by the delay because the court ultimately found probable cause. (Id. at 30.)
With respect to her second argument (addressing Ground 2), Respondent argues that Petitioner's challenge to the court's probable cause finding was raised to the Appellate Division solely on state law terms and, in any event, is barred on adequate and independent state law grounds because the Appellate Division denied the claim as non-appealable. (Dkt. No. 18 at 3033.) Moreover, Respondent argues that Petitioner's challenge to the probable cause finding is procedurally defaulted because Petitioner has already had the one direct appeal and one leave application to which he is entitled. (Id.) Further, Respondent argues that Petitioner cannot overcome the bar to federal habeas review of the procedurally defaulted claim because he cannot establish cause nor can he establish prejudice. (Id. at 31-32.) Moreover, Respondent argues that, even if the claim was properly exhausted, the New York State procedural rule that no appeal lies from an order finding probable cause, is a firmly established and regularly followed state practice that may be deemed adequate to prevent subsequent review by this Court. (Id. at 32.) Finally, Respondent argues that the claim is meritless because the Constitution does not guarantee a right to a probable cause hearing in a civil commitment proceeding and any error in the probable cause hearing was cured by Petitioner's subsequent decision to waive the trial. (Id. at 32-33.)
With respect to her third argument (addressing Grounds 3 and 10), Respondent argues that Petitioner failed to raise his speedy trial claim in his detailed leave application to the Court of Appeals and it is thus, the claim is unexhausted and defaulted under state law. (Dkt. No. 18 at 33-34.) Further, Respondent argues that the Appellate Division found that Petitioner failed to preserve for its review the speedy trial claim and failure to preserve an issue for appeal is an adequate and independent state ground barring habeas review. (Id. at 34.) Finally, Respondent argues that the speedy trial claim is meritless because (1) a violation of state statute-N.Y. Mental Hyg. § 10.07(a)-is not automatically a federal constitutional violation unless the error was sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment; (2) the Supreme Court has never opined that a delay in a civil commitment proceeding can violate either the Sixth Amendment or due process and thus, the state court could not have unreasonably applied such law; (3) Petitioner's knowing, intelligent, and voluntary waiver of his right to a jury trial renders academic his challenge to the trial delay; (4) the delay attributable to the prosecution in this case was not so excessive as to violate due process because the vast majority of the delay was at Petitioner's request (over the State's objection) so that he could collaterally attack his 1992 conviction and to accommodate his expert; and (5) given that Petitioner's dangerousness had already been determined by the court at the probable cause hearing, and that Petitioner waived a trial where he could have challenged that finding of dangerousness, there is no basis to find that due process was violated by the delay in holding a trial. (Dkt. No. 18 at 35-37.)
With respect to her fourth argument (addressing Grounds 4, 5, 6, and 7), Respondent asserts that Petitioner's claims challenging his mental abnormality trial waiver are unexhausted and meritless. (Dkt. No. 18 at 37-61.) Respondent asserts that Petitioner's claim that his trial waiver was coerced and involuntary is unexhausted because his arguments to the Appellate Division relied solely on state law and did not “fairly present” a federal constitutional claim. (Id. at 37-38.) Moreover, Respondent argues that the claims are meritless because (1) there is no clearly established Supreme Court law providing the standard for reviewing claims as to the voluntariness of the waiver of a civil commitment trial so it cannot be said that the state court unreasonably applied clearly established federal law within the meaning of the AEDPA; (2) the record establishes that Petitioner's waiver was both knowing and intelligent; (3) the record establishes that Petitioner's waiver was voluntary; (4) there is no merit to Petitioner's adjournment claim given that (a) there is no clearly established Supreme Court law regarding the standard for reviewing the denial of an adjournment request in a civil commitment proceeding and thus, the Appellate Division could not have unreasonably applied such law, and (b) the trial court's denial of the adjournment was neither unreasonable or arbitrary and Petitioner cannot show prejudice; (5) Petitioner's waiver-allocution claim is meritless given that (a) Petitioner has not established that the court's purportedly improper statement affected his decision to waive trial, (b) Petitioner stated on the record that no one was forcing him to waive his right to a jury trial, and (c) due process does not require any particular script be followed by the court, Petitioner's own statements implied his awareness that the State carried the burden at trial, and even if he was unaware of the State's burden, it is not probable that such knowledge affected his decision to waive trial; (6) Petitioner's ineffective assistance of counsel claim is meritless given that (a) there is no clearly established Supreme Court law governing ineffective assistance of counsel claims in civil commitment proceedings, and (b) even if there was clearly established Supreme Court precedence, the Appellate Division did not unreasonably apply it; (7) Petitioner's failure to inquire claim is without merit given that (a) there is no clearly established Supreme Court law holding that a trial court has a duty to inquire into a claim of dissatisfaction with assigned counsel made by an indigent respondent in a civil commitment proceeding, (b) Petitioner's complaints about his attorney did not merit further inquiry from the trial court, (c) the trial court did, in fact, conduct an adequate inquiry into Petitioner's complaints about his attorney, and (d) although the trial court reserved decision on reassignment during the hearing of August 8, 2016, it subsequently granted a motion for substitution of counsel, who then filed a motion to withdraw Petitioner's trial waiver, which the court denied and “affirmatively” ruled that counsel had not been ineffective. (Dkt. No. 18 at 39-61.)
With respect to her fifth argument (addressing Ground 8), Respondent asserts that Petitioner's claim that his due process rights were violated by the admission of hearsay at the dispositional hearing, is meritless. (Dkt. No. 18 at 61-69.) More specifically, Respondent argues that there is no clearly established Supreme Court law on the standard for reviewing the admission of hearsay in civil commitment proceedings, and even assuming that such law exists, the Appellate Division's decision did not unreasonably apply the law. (Id.) Respondent asserts that any error in admitting hearsay evidence in this case was harmless because the case against Petitioner relied primarily on admissible evidence including (1) expert testimony about crimes that Petitioner was convicted of or admitted to, and (2) Petitioner's refusal to participate in sex offender treatment while in prison. (Id.) Further, Respondent asserts that Petitioner failed to establish that any error in admitting the hearsay was so egregious or fundamentally unfair as to violate due process. (Id.)
With respect to her sixth argument (addressing Ground 9), Respondent asserts that Petitioner's claim that the State failed to establish by clear and convincing evidence that Petitioner was a dangerous sex offender requiring confinement, is unexhausted and meritless. (Dkt. No. 18 at 69-74.) More specifically, Respondent argues that (1) Petitioner failed to raise this claim in federal terms in the Appellate Division, and (2) Petitioner failed to mention the claim (in state or federal terms) in his leave application to the Court of Appeals and has failed to allege cause for his failure and/or prejudice. (Id.) Respondent argues that in any event, the claim is without merit because the Appellate Division's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Id.) Further, Respondent argues that the New York Appellate Division's holding-that the trial court's disposition finding was supported by the written opinions and testimony of two experts-was correct and should not be second-guessed. (Id.)
C. Petitioner's Traverse
Petitioner makes the following ten arguments in his Traverse: (1) the delay in conducting the probable cause hearing violated Plaintiff's due process right because (a) his request for a removal to Erie County was not a consent to a delay in the proceeding, and (b) he exhausted the claim by raising it on direct appeal in federal terms; (2) his due process rights argument related to the probable cause hearing (a) has merit because the probable cause finding was not supported by legally sufficient evidence, (b) was exhausted because the cases he relied on employed a constitutional analysis in similar factual situations, and (c) should not be barred based on adequate and independent state law grounds because the procedural rule-that no appeal lies from a finding of probable cause-is not fairly established and regularly followed; (3) Petitioner's due process rights were violated by the court's failure to hold a trial within sixty days of the probable cause finding and (a) this argument was raised before the Appellate Division and leave application to the Court of Appeals, (b) the New York appeals courts had a duty to review whether Petitioner's fundamental constitutional rights were violated and, despite having an opportunity, failed to make a finding, (c) in any event, the denial of a claim on state law procedural grounds does not deprive the habeas court of jurisdiction, (d) the statutory violation establishes presumptive prejudice; (4) there is merit to Petitioner's exhausted claim asserting that his trial waiver was not made knowingly and intelligently because the trial court failed to (a) inform Petitioner that the state carried the burden at trial, (b) explain the elements of a mental abnormality, and (c) elicit a factual statement or admission from Petitioner implying that he had serious difficulty controlling his conduct; (5) there is merit to Petitioner's exhausted claim asserting that his trial waiver was not made voluntarily because the record reflects that he was under undue pressure in light of (a) the motion he submitted to the trial court outlining his concerns that his assigned counsel was unprepared for trial, (b) the trial court's statement suggesting that it had already determined Petitioner suffered from a mental abnormality before the evidence was introduced or received by the court, (c) the trial court's failure to inquire further when asked whether anyone was forcing Petitioner to make an admission of a mental abnormality and he stated that it was a hard question, and (d) Petitioner filed a motion to withdraw his waiver which provided specific facts showing that his waiver was not voluntary; (6) there is merit to Petitioner's claim that the denial of his adjournment request violated due process because the State made a late disclosure that effectively left Petitioner without an expert witness to testify on his behalf and present evidence in his case; (7) Petitioner's claim that his assigned counsel provided ineffective assistance of counsel has merit because (a) there is established Supreme Court precedent governing ineffective counsel claims in civil commitment proceedings, and (b) Attorney Cutting was unfamiliar with the facts and law of Petitioner's case and it was never his intention to challenge the State's case or present an expert witness on Petitioner's behalf; (8) the trial court failed to conduct a sufficient inquiry into Petitioner's concerns regarding his assigned counsel; (9) Petitioner's hearsay claim has merit because (a) the State's case relied on experts who relied almost exclusively on inadmissible hearsay, (b) the trial court demonstrated its partiality by having an ex parte conversation with Petitioner's independent doctor and determined that Petitioner had a mental abnormality before any evidence was admitted, and (c) the error admitting the hearsay was not harmless and suggested Petitioner's inability to control his sexual behavior; and (10) Petitioner's exhausted legal sufficiency claim has merit because (a) the factors relied upon by the State's experts did not support a finding that Petitioner had the required difficulty to control his conduct, (b) the State's experts relied upon unsubstantiated hearsay concerning sexual abuse of Petitioner's stepdaughters from his second marriage, (c) the trial court considered how long Petitioner was in the community before reoffending but the alleged re-offense was not a crime he pleaded guilty to and thus should not have been considered a re-offense, (d) the trial court improperly considered that Petitioner has maintained his innocence for over 25 years-which includes when Petitioner was eligible for parole or conditional release if he admitted his guilt-and did not fully participate in sex offender treatment while incarcerated, and (e) no expert testified that a diagnosis of pedophilia alone demonstrated Petitioner's serious difficulty in controlling his sexual conduct. (Dkt. No. 29 at 5-38.)
III. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Review of Habeas Petition
A person in custody pursuant to the judgment of a state court may file a petition for a writ of habeas corpus in the United States District Courts if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). The fact that Petitioner is challenging his civil commitment for mental illness rather than his underlying criminal conviction does not change the outcome as civil commitments are typically challenged in habeas proceedings. See Duncan v. Walker, 533 U.S. 167, 176 (2001) (stating that a state court order of civil commitment satisfies § 2254's “in custody” requirement). A person in state custody may challenge his confinement under 28 U.S.C. § 2241 or 28 U.S.C. § 2254. However, a § 2241 petition generally challenges the execution of a sentence such as “the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). Because Petitioner challenges the term of his confinement rather than the conditions surrounding it, he has properly brought his claim under § 2254. See Buthy v. Comm'r of Office of Mental Health of New York, 818 F.2d 1046, 1051-52 (2d Cir. 1987) (petitioning for a writ of habeas corpus pursuant to § 2254 is the appropriate method for an individual to challenge the fact or duration of his involuntary civil commitment to a state psychiatric institution).
Where a case challenging a civil commitment is initiated by the filing of a petition for habeas corpus, the case is governed by the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d). Ernst J. v. Stone, 452 F.3d 186, 188 (2d Cir. 2006). Under AEDPA, this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied).
In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo standard to a federal claim not reached by the state court). In so doing, the Court presumes that the state court decided the claim on the merits and the decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman interplay); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference); Jimenez, 458 F.3d at 145-46. Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Exhaustion
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, . . . thereby 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) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal quotation and other citations omitted)); 28 U.S.C. § 2254(b)(1). The prisoner must “fairly present” his claim in each appropriate state court, including the highest court with powers of discretionary review, thereby alerting that court to the federal nature of the claim. Baldwin, 541 U.S. at 29; Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994).
“A habeas petitioner has a number of ways to fairly present a claim in state court without citing ‘chapter and verse' of the Constitution, including ‘(a) reliance 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.'” Hernandez v. Conway, 485 F.Supp.2d 266, 273 (W.D.N.Y. 2007) (quoting Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982)).
Where a petitioner has failed to exhaust his claims, but he cannot return to state court, petitioner's claims are then “deemed” exhausted, but barred by procedural default. Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). The merits of such a procedurally defaulted claim may not be reviewed by a federal court unless the petitioner can show both cause for the default and actual prejudice resulting from the alleged violation of federal law, or if he can show that the constitutional violation has resulted in the conviction of one who is “actually innocent.” Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012); Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (internal quotation and citations omitted). The actual innocence prong is referred to as the fundamental miscarriage of justice exception. Rivas, 687 F.3d at 540. “Cause” exists if “the prisoner can show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice exists if there is a “reasonable probability” that the result of the proceeding would have been different absent the alleged constitutional violation. Stickler v. Greene, 527 U.S. 263, 289 (1999).
As the New York State Court of Appeals affirmed the Appellate Division's decision without explanation, the undersigned has reviewed the last state court decision that provided a rationale. See Daniel J., 180 A.D.3d 1347; Willson v. Sellars, 138 S.Ct. 1188, 1192 (2018) (holding that a federal habeas court reviewing an unexplained state-court decision on the merits “should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning,” but that “the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision”).
A. Ground 1
After carefully considering the matter, I recommend that Petitioner's claim regarding the delay in holding his probable cause hearing (Ground 1) be denied for the reasons set forth in Respondent's memorandum of law. (Dkt. No. 18 at 27-30.) The undersigned merely would like to highlight Respondent's argument that the delay in holding the hearing was primarily attributable to Petitioner's request for a change in venue. (Id.) The New York Appellate Division's denial of Petitioner's claim did not unreasonably apply clearly established Supreme Court law. Daniel J., 180 A.D.3d at 1328 (citing N.Y. Mental Hyg. § 10.06(g)).
B. Ground 2
After carefully considering the matter, I recommend that Petitioner's claim that the trial court's finding of probable cause was based on legally insufficient evidence (Ground 2) be denied for the reasons set forth in Respondent's memorandum of law. (Dkt. No. 18 at 30-33.)
As an initial matter, Ground 2-which is a federal constitutional claim-does not appear to have been “fairly presented” to the Appellate Division, given that Petitioner's evidencesufficiency arguments related to the finding of probable cause, were framed in the context of state evidentiary law. (Dkt. No. 20, Attach. 2 at 905-07.) “While this means that Petitioner's claim is unexhausted, it still may be reviewable under one of the narrow exceptions provided for ‘procedurally defaulted' claims.” Bennett v. Dill, 21-CV-1450, 2022 WL 4451040, at *8 (E.D.N.Y. Sept. 23, 2022) (citing Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005); Murray v. Carrier, 477 U.S. 478, 485 (1986)). However, “Petitioner's claim is procedurally defaulted as he has already had one appeal and one application for leave to appeal to the New York Court of Appeals, and therefore can no longer raise the claim in any state forum.” Bennett, 2022 WL 4451040, at *8 (citing Ramirez v. Attorney Gen., 280 F.3d 87, 94-95 (2d Cir. 2001)).
As set forth by Respondent, Petitioner fails to provide any reason why this claim was not presented to the Appellate Division on appeal, thereby failing to meet the criteria of the first exception to procedural default. Id. (citing Stepney v. Lopez, 760 F.2d 40, 45 (2d Cir. 1985)).
Turning to the “fundamental miscarriage of justice” exception for procedural default, it “is more difficult to apply here given that Petitioner is challenging a bench [decision] that led to his civil confinement. The Supreme Court has stated that this exception is reserved for ‘petitions that advance a substantial claim of actual innocence.'” Id. (quoting Schlup v. Delo, 513 U.S. 298, 321-22, 325, 327 (1995) (emphasis added)). “This standard does not map neatly onto a case involving civil confinement. There does not appear to be Second Circuit case law interpreting the ‘actual innocence' standard in the context of civil confinement, nor have other circuits enunciated a clear rule.” Id. (citing Brown v. Watters, 599 F.3d 602, 609-10 (7th Cir. 2010) (“The correct application of the actual innocence exception to civil commitment cases is a difficult one. We have no explicit guidance from the Supreme Court or from our sister circuits. . . . [Therefore, we shall] proceed to adjudicate the merits.”)).
The Court need not decide whether and how the “actual innocence” exception to procedural default applies to civil commitments because, as discussed below, I recommend that Petitioner's Ground 2 claim be dismissed as (1) barred on adequate and independent state grounds, and (2) meritless.
More specifically, the New York State Appellate Division Fourth Department held that Petitioner's “contention regarding the sufficiency of the evidence presented at the probable cause hearing is not properly before us because no appeal lies from the order finding probable cause.” Daniel J., 180 A.D.3d at 1348 (citing Matter of State of New York v. Stein, 85 A.D.3d 1646, 1648 (N.Y.App.Div. 4th Dep't 2011), aff'd 20 N.Y.3d 99 (N.Y. 2012), cert. denied 568 U.S. 1216 (2013)). Further, N.Y. Mental Hyg. Law § 10.13(b) expressly states that “[n]o appeal may be taken from an order entered pursuant to . . . this article determining that probable cause has been established to believe that the . . . sex offender requir[es] civil management.” As set forth by Respondent, New York state courts have consistently applied this provision to deny appeals from probable cause findings. Thus, there is an independent and adequate state ground barring federal review.
Moreover, as set forth by Respondent, any error in the probable cause hearing was cured by Petitioner's subsequent decision to waive trial and admit to having a mental abnormality. State v. Kenneth II, 190 A.D.3d 33, 37-38 (N.Y. A.D.3d Dep't 2020) (finding that if the trial court erred in permitting waiver of a probable cause hearing, the error was mooted by the subsequent mental abnormality finding by clear and convincing evidence, which is “a higher standard than would be applied at a probable cause hearing.”).
As a result, I recommend that Ground 2 be denied.
C. Ground 3
After carefully considering the matter, I recommend that Petitioner's claim that his due process rights were violated by the failure to hold a trial within sixty days after the probable cause finding (Ground 3) be denied for the reasons stated in Respondent's memorandum of law. (Dkt. No. 18 at 33-37.)
As an initial matter, Petitioner failed to raise Ground 3 in his leave application to the New York Court of Appeals. (Dkt. No. 20, Attach. 2 at 979-1005.) This claim is procedurally defaulted because Petitioner has already had one appeal and one application for leave to appeal to the New York Court of Appeals. Further, Petitioner failed to provide any reason why Ground 3 was not presented to the Court of Appeals, thereby failing to meet the criteria for the first exception to procedural default.
As set forth above in Part IV.B. of this Report and Recommendation, it is difficult to apply the “fundamental miscarriage of justice” exception, to challenges of bench trials that led to civil confinement. However, the Court need not decide whether and how the “actual innocence” exception to procedural default applies to civil commitments because, as discussed below, I recommend that Petitioner's Ground 3 claim be dismissed as (1) barred on adequate and independent state grounds, and (2) meritless.
More specifically, the New York State Appellate Division Fourth Department held that Petitioner “failed to preserve for our review his contention that he was denied due process because a jury trial was not held within 60 days of the probable cause hearing.” Daniel J., 180 A.D.3d at 1348 (citing Matter of State of New York v. Trombley, 98 A.D.3d 1300, 1302 (N.Y.App.Div. 4th Dep't 2012), lv denied 20 N.Y.3d 856 (N.Y. 2013)). The failure to preserve a claim for appeal is considered a state procedural rule, which “preclude[s the claim] from habeas review pursuant to the adequate and independent state ground doctrine.” Switzer v. Graham, 05-CV-6706, 2010 WL 1543855, *4 (W.D.N.Y. Apr. 16, 2010) (citing Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007); Fore v. Ercole, 594 F.Supp.2d 281 (E.D.N.Y. 2009); Walker v. Goord, 427 F.Supp.2d 272 (W.D.N.Y. 2006)). Thus, there is an independent and adequate state ground barring federal review.
Moreover, as set forth by Respondent, the delay in holding Petitioner's trial was attributable primarily to his requests-over the State's objection-so that he could collaterally attack his underlying conviction (Dkt. No. 20, Attach. 2 at 452-465; Dkt. No. 20, Attach. 2 at 148) and to accommodate his expert (Dkt. No. 20, Attach. 2 at 466-469; Dkt. No. 20, Attach. 2 at 144-45.) Further, as set forth by Respondent, the trial court had already found that Petitioner was sufficiently dangerous at the probable cause hearing and the delay in scheduling the trial did not violate his constitutional rights. This finding was further buttressed by Petitioner's waiver of his mental abnormality trial.
As a result, I recommend that Ground 3 be denied.
D. Grounds 4, 5, 6, and 7
The parties asserted arguments with respect to Grounds 4, 5, 6, and 7 together and seem to reframe Grounds 4, 5, 6, and 7 as asserting that Petitioner's waiver of his right to a jury trial on whether he had a mental abnormality was involuntary because (1) the court improperly refused to grant Petitioner an adjournment to find a new expert, thereby coercing Petitioner into waiving trial, (2) the trial court made coercive statements during the waiver allocution and failed to ensure the waiver was voluntary, (3) Petitioner's counsel was unprepared for trial, and (4) the court failed to inquire into, or decide, Petitioner's motion for the substitution of counsel. (Dkt. No. 18 at 37-61; Dkt. No. 29 at 14-32.)
Petitioner's Appellate Division brief on direct appeal appears to primarily focus on state law terms but does mention federal constitutional claims. (Dkt. No. 20, Attach. 2 at 911 [referring to Petitioner's due process rights]; Dkt. No. 20, Attach. 2 at 912 [“Appellant does have a fundamental due process right in Article 10 proceedings.”]; Dkt. No. 20, Attach. 2 at 914 [“Inasmuch as respondent contends that he received ineffective assistance of counsel under both the state and federal standards . . .”].) Assuming, without deciding, that these claims were exhausted, I recommend that they be dismissed as meritless.
For the reasons set forth in Respondent's memorandum of law, I find that Petitioner's waiver of his right to a jury trial was entered knowingly, intelligently, and voluntarily. (Dkt. No. 18 at 39-43.) Moreover, I find that for the reasons stated in Respondent's memorandum of law Petitioner's (1) adjournment claim (id. at 43-46); (2) waiver allocution claim (id. at 46-48); (3) ineffective assistance of counsel claim (id. at 48-58), and (4) failure-to-inquire claims (id. at 5861), are meritless.
As a result, I recommend that Grounds 4, 5, 6, and 7 be denied.
E. Ground 8
After carefully considering the matter, I recommend that Petitioner's claim that his due process rights were violated by the admission at the dispositional hearing, of expert testimony discussing hearsay accusations (Ground 8) be denied for the reasons stated in Respondent's memorandum of law. (Dkt. No. 18 at 61-69.)
F. Ground 9
After carefully considering the matter, I recommend that Petitioner's claim that his due process rights were violated because the State did not prove by clear and convincing evidence that he was a dangerous sex offender requiring confinement (Ground 9) be denied for the reasons stated in Respondent's memorandum of law. (Dkt. No. 18 at 69-74.)
As noted by Respondent, this claim is unexhausted because Petitioner failed to raise it in federal terms in the Appellate Division and failed to raise this claim at all in his leave application to the New York Court of Appeals. (Id.) Moreover, as set forth by Respondent, in any event, the claim is meritless.
As a result, I recommend that Ground 9 be denied.
G. Ground 10
After carefully considering the matter, I recommend that Petitioner's claim regarding the delay in holding his probable cause hearing and mental abnormality trial be dismissed for the reasons set forth in Respondent's memorandum of law. (Dkt. No. 18 at 27-30, 33-37.) As set forth by Senior United States District Judge James K. Singleton, Jr., in Roache v. McCulloch, 16-CV-1069, 17-CV-0574, 2019 WL 4327271, at *5 (N.D.N.Y. Sept. 12, 2019) (Singleton, J.), a claim for speedy trial based on state law violations of N.Y. Mental Hyg. Law § 10.01, et seq., is not cognizable on federal habeas review. Roache, 2019 WL 4327271, at *5 (citing Bermudez v. Conway, 09-CV-1515, 2012 WL 3779211, at *9 (E.D.N.Y. Aug. 30, 2012); Hodges v. Bezio, 09-CV-3402, 2012 WL 607659, at *4 (E.D.N.Y. Feb. 24, 2012); Rodriguez v. Superintendent, Collins Corr. Facility, 548 F.Supp.2d 226, 23-37 (N.D.N.Y. 2008)).
Moreover, as set forth above in (1) Part IV.A. of this Report and Recommendation, Petitioner's claim regarding the delay in conducting his probable cause hearing is meritless, and (2) Part IV.C. of this Report and Recommendation, Petitioner's claim regarding the delay in conducting his mental abnormality trial is meritless.
As a result, I recommend that Ground 10 be denied.
V. CERTIFICATE OF APPEALABILITY
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a “substantial showing” if “the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks omitted).
A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[A] COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”).
In this instance, I find that jurists of reason would not find it debatable as to whether the petition in this matter is meritorious. Accordingly, I recommend against the issuance of a COA.
ACCORDINGLY, it is
RECOMMENDED that the petition be DENIED and DISMISSED, and that a certificate of appealability not be issued to Petitioner; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the parties, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), 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 . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding Pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).