Opinion
21 Civ. 04249 (NSR)(JCM)
11-03-2021
BERINZON MORONTA, Petitioner, v. JOHN RICH, Respondent.
HONORABLE NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Berinzon Moronta (“Petitioner”), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 12, 2021 (“Petition”). (Docket No. 1). On July 8, 2021, Respondent John Rich (“Respondent”) opposed the Petition. (Docket Nos. 15-16). Petitioner replied to Respondent's opposition on August 4, 2021. (Docket No. 24; see also Docket No. 28). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
I. BACKGROUND
A. The Crime and Indictment
Petitioner's convictions arise out of an incident that occurred on the evening of October 9, 2015 at Barnhart Park in Sleepy Hollow, New York. (Docket No. 17 at 17). At the time of the incident, Petitioner was sixteen years old. (Docket Nos. 16-6 at 6; 17-2 at 8; 27 at 1). Petitioner arrived at the park armed with a folding knife and a group of friends, some of whom were also armed with a baseball bat and an empty glass bottle. (Docket No. 16-6 at 6). At approximately 11:12 p.m., Petitioner killed Tajh Robinson (“Robinson”) by stabbing Robinson fourteen times. (Docket Nos. 16-2 at 4; 17 at 17; 27 at 4-5). Petitioner's stabs caused seven cuts and seven wounds. (Docket Nos. 17 at 6-7; 27 at 4). Robinson was unarmed. (Docket Nos. 16 at 3; 17-2 at 4). At the time, Robinson was seventeen years old. (Docket Nos. 16-6 at 6; 17-1 at 6).
Thereafter, Petitioner fled to a friend's apartment in Yonkers, New York, where he used bleach to clean Robinson's blood off of the knife and then concealed the knife in a closet. (Docket Nos. 16-6 at 6-7; 27 at 4). Law enforcement recovered the knife the following day. (Docket Nos. 16-6 at 7; 27 at 4).
On December 3, 2015, Petitioner was indicted for second-degree murder under New York Penal Law § 125.25(1); fourth-degree criminal possession of a weapon under New York Penal Law § 265.01(2); and tampering with physical evidence under New York Penal Law § 215.40(2).(Docket No. 16-1).
By the same indictment, Quaye Robinson, who was also at the park with Petitioner, was charged with second-degree attempted assault under New York Penal Law §§ 110 and 120.05(2) as well as fourth-degree criminal possession of a weapon under New York Penal Law § 265.01(2). (Docket No. 16-1).
B. The Plea Proceeding
On July 29, 2016, Petitioner pled guilty to a reduced charge of first-degree manslaughter under New York Penal Law § 125.20(1) before the Honorable Barry E. Warhit in the Supreme Courtof the State of New York, County of Westchester (“Supreme Court”). (Docket No. 17 at 2-3, 10). The charge replaced the first count for murder in the original indictment. (See id. at 23; Docket No. 16-1 at 1). In exchange for the plea, the People agreed to a sentence of twenty years in prison followed by five years of post-release supervision. (Docket No. 17 at 2). The plea was “condition[ed]” on (1) a “waive[r]” of Petitioner's appellate rights “to the extent permitted by law;” and (2) Petitioner's nonreceipt of youthful offender treatment. (See id. at 3, 67, 13-14).
The plea transcript states that the proceeding took place at the “Superior Court of the State of New York, County of Westchester,” but that appears to be an error. (Docket No. 17 at 1).
After putting these terms on the record, the court explained that the appellate waiver “basically mean[t] that with very narrow exceptions, . . . this conviction and sentence will stand without Appellate review.” (Id. at 14). The court also noted that “[w]ith 14 injuries to the victim here, . . . [the court] wouldn't be offering [Petitioner] youthful offender if [the crime] was only charged as a Manslaughter; in other words, . . . [the court] [did not] believe [Petitioner] [would] be worthy of that under the[] circumstances.” (Id. at 6-7). Petitioner indicated that he understood these terms and that the court “wouldn't be offering [youthful offender treatment] even if it could.” (Id. at 6-7, 14).
Petitioner was represented by Alberto E. Banks, Esq. (Id. at 1). Mr. Banks told the court that he had discussed the terms of the plea, including Petitioner's waiver of his appellate rights, with both Petitioner and his family. (Id. at 2-3). Petitioner concurred that he had discussed the terms of the plea with Mr. Banks and that he was satisfied with Mr. Banks's representation. (Id. at 5-6). Petitioner further asserted that he had been given sufficient time to discuss the waiver of his appellate rights with Mr. Banks, and that he was waiving them freely and voluntarily. (Id. at 14-15). Petitioner then concurred that “on or about October 9, 2015” at Barnhart Park in Sleepy Hollow, “with intent to cause serious physical injury to another person, . . . [he] cause[d] the death of such person by inflicting 14 knife wounds to that person, that person being Tahj Robinson.” (Id. at 17).
C. The Presentence Report and Sentencing Proceeding
The Westchester County Department of Probation issued a Presentence Investigation Report (the “Presentence Report”) on August 12, 2016. (Docket No. 27).The Presentence Report noted that according to Petitioner, before the incident, Robinson had posted threats to “slash” and “stab” him on social media and they had a “small physical altercation.” (Docket Nos. 16-3 at 8; 27 at 5). Robinson then contacted Petitioner through a friend and arranged to meet for a fight. (Docket Nos. 16-3 at 8; 27 at 5). Because he felt threatened, Petitioner took a knife from his friend's car before entering the park. (Docket Nos. 16-3 at 8; 27 at 5). Petitioner used the knife in the midst of the fight when he saw Robinson reach for something and feared for his life. (Docket Nos. 16-12 at 20; 27 at 5). However, Petitioner did not think his stabs would penetrate Robinson because Robinson was wearing heavy clothing. (Docket Nos. 16-12 at 20; 27 at 5). The Presentence Report also documented that Petitioner had recently graduated from Sleepy Hollow High School. (Docket Nos. 27 at 7; see also Docket Nos. 4 at 24; 16-2 at 11). He maintained steady employment at Champs, a sneaker store, until he was arrested. (Docket Nos. 4 at 24; 27 at 7).
Pursuant to N.Y.C.P.L. § 390.50, the Presentence Report was filed under seal. (See Docket No. 27; see also Docket Nos. 15 at 4 n.3; 25). Accordingly, the Court only describes its contents as they are described within the public record.
On September 14, 2016, Justice Warhit sentenced Petitioner to twenty years in prison followed by five years of post-release supervision. (Docket No. 17-1). In doing so, Justice Warhit confirmed that Petitioner “st[ood] by [his] plea.” (Id. at 4). Petitioner also “acknowledge[d]” that he committed first-degree manslaughter without “legal justification, meaning self-defense was not a factor.” (Id.). Neither Justice Warhit, nor any of the parties, discussed the issue of whether Petitioner should be considered a youthful offender.
D. Motion to Set Aside Sentence
On September 18, 2017, Petitioner moved pro se in the Supreme Court to set aside his sentence pursuant to N.Y.C.P.L. § 440.20 (the “440.20 Motion”). (Docket No. 16-2). Petitioner argued that his sentence was illegal because, even though he was eligible for youthful offender treatment, the sentencing court failed to consider such treatment and place its reasons for not awarding it on the record, as required by N.Y.C.P.L. § 720.10(1)-(2) and New York caselaw. (Id.at 8-12). According to Petitioner, the court's failure to put such reasoning on the record also violated his “right to due process.” (Id. at 12).
Petitioner further argued that the court should have considered the following mitigating circumstances in making this determination: (1) prior to the incident, Petitioner and Robinson had a physical encounter; (2) prior to the incident, Robinson made a threatening video of himself stating, “Im'a [sic] fuck you up, Im'a [sic] fucking kill you, see you later Barry;” (3) prior to the incident, Robinson verbally attacked Petitioner on Facebook and Twitter, stating, “I wanna [sic] fight this nigga [sic] like I am fuckin dyin rn [sic],” and “just some bitch nigga [sic] who finna [sic] try me. Don't pay not mind b [sic]. just bring a body bag for ya manz [sic];” (4) Petitioner had no prior criminal record, nor any prior acts of violence; and (5) the Presentence Report's recommendations did not foreclose the possibility of youthful offender treatment. (Id. at 9-10). Petitioner contended that the court should have also considered Petitioner's cooperation with authorities, attitude towards society, respect for the law, prospects for rehabilitation and hope for a future constructive life. (Id. at 10). He further averred that the court improperly failed to consider his academic accomplishments. (Id. at 11-12). Petitioner also argued that the court failed to perform its judicial duties “impartially or diligently” and requested an evidentiary hearing. (Id. at 12-14).
The People opposed the 440.20 Motion on November 15, 2017. (Docket No. 16-3). However, by letter to the sentencing court on January 19, 2018, the People conceded that the sentencing proceeding was defective because the court did not state on the record its reasons for denying youthful offender treatment. (Docket No. 16-4). The People advised that Petitioner had raised this issue on direct appeal, and their Appeals Bureau had submitted a response agreeing that the sentence must be vacated and the case remanded for resentencing. (Id.; see also Docket No. 16-6). Therefore, the People believed the 440.20 Motion was moot. (Docket No. 16-4).
E. Direct Appeal of Conviction
Petitioner filed a notice of appeal of his conviction on November 28, 2016. (Docket No. 15 at 4). Through counsel,Petitioner filed an appellate brief on November 9, 2017 to the New York State Appellate Division for the Second Department (“Appellate Division”) raising the following two grounds for relief: (1) the trial court failed to make a proper finding as to youthful offender treatment; and (2) the sentence was excessive. (Docket No. 16-5 at 8-17). Petitioner echoed the mitigation arguments in his 440.20 Motion, quoting from the Presentence Report as support. (Id. at 7, 11-12). He also argued that consideration of youthful offender treatment was mandatory despite the fact that he “agreed to forgo youthful offender treatment as part of a plea bargain.” (See id. at 11). Moreover, “the prosecutor . . . erroneously conditioned the plea on denial of Youthful Offender [treatment],” a finding that could only be made by the sentencing court. (See id. at 13-14). As noted above, the People opposed on January 11, 2018, conceding that Petitioner's sentence should be vacated and the matter remanded in light of the sentencing court's failure to address the propriety of youthful offender treatment at the sentencing proceeding. (Docket No. 16-6 at 12-15). The People argued that because of this need for remand, Petitioner's excessiveness argument was “wholly academic.” (Id. at 12).
Although Respondent's Affidavit in Opposition to the Petition notes the dates on which Petitioner filed his two notices of appeal, copies of such notices were not submitted to the Court. (Cf. Docket No. 15 at 4, 7).
Petitioner's appellate counsel was Clement S. Patti, Jr., Esq. (Docket No. 16-5 at 1).
According to Petitioner, the “sole factor expressed by the [c]ourt as the reason for” not awarding youthful offender treatment was Petitioner's admission to killing Robinson without justification. (Id. at 12). However, that “factor” “was refuted” by the Presentence Report because it showed that Petitioner had acted in self-defense. (See id.).
F. Resentencing
Petitioner appeared before Justice Warhit for resentencing on February 28, 2018, with Mr. Patti as his counsel. (Docket No. 17-2 at 1). When the proceeding began, Mr. Patti stated that he was “appear[ing] . . . as a friend of the Court,” i.e., without charging a fee, “because . . . [he] filed an appeal . . . [concerning] the very same issue that was raised in the [Petitioner]'s 440 motion.” (Id. at 2).
The court recognized that it is “obligated under the law to always put [its] reasons for either granting or denying youthful offender on the record at the time of sentence,” and its failure to mention such reasons at the time of sentencing was an “oversight.” (Id. at 3, 6). Therefore, the court granted the application for specific consideration of youthful offender treatment in Petitioner's 440.20 Motion. (See id. at 4). It noted, however, that “at the time of the plea, [it] made . . . very clear that there would be no youthful offender,” and although “many” letters were submitted on Petitioner's behalf, it “would never have considered a youthful offender” because Petitioner had admitted to “us[ing] a knife to stab an unarmed individual . . . seven times and also cut him an additional seven times.” (Id. at 3-4). Further, “the People never would have offered . . . a manslaughter plea if youthful offender were being considered.” (Id. at 3).
The court then heard oral argument regarding the propriety of youthful offender treatment. (See id. at 4-6). The People averred that such treatment was inappropriate because the “force of the[] [stab] wounds cut five fibs, [and] also injured [Robinson's] heart and lung resulting in his death.” (Id. at 5). The People also noted that “numerous text messages” from Petitioner the day before the incident indicated that the crime was “preplanned” because the messages “reference[d] getting a knife and poking or stabbing [Robinson].” (Id.). Moreover, Petitioner had received a sentence of probation for robbery in the third degree in 2013 in a juvenile delinquency matter. (Id.; see also Docket Nos. 15 at 6 & n.5; 27 at 4). When invited to present arguments in favor of youthful offender treatment, Mr. Patti declined, stating: “I'm not in a position to respond to the allegations with respect to the underlying crime. I was not his, obviously, trial attorney. That's up to the Defendant to deal with with his trial attorney, perhaps, some motion in the future.” (Docket No. 17-2 at 5-6). “[W]ithout conceding the allegations raised by the prosecution,” Mr. Patti then requested an adjournment to permit Petitioner an opportunity to submit additional letters. (Id. at 6).
The court declined to adjourn the resentencing because “based on the nature of th[e] crime, its preplanned nature, the number of founds, the fact that the victim was unarmed, additional letters . . . would never change [its] view of whether youthful offender would be appropriate.” (Id.). The court noted that it would have reached this decision irrespective of whether the plea was conditioned on the absence of such treatment. (Id. at 6-7). In response, Petitioner stated: “I just want to say that I don't think it was preplanned being that I saw a video of the victim saying that he wanted to kill me, then [sic] was when I sent the text messages saying I needed a knife because I had knowledge that he would also have a knife through the video he made, that's why I said what I said.” (Id. at 8).
The court acknowledged that “it[] [was] a sad case,” that Petitioner “was sixteen” at the time of the incident, and that “many people” had come to the proceeding to support him. (Id.). However, the court repeated that it would not “consider youthful offender” and “specifically den[ied] [Petitioner] youthful offender treatment based on the nature of the manslaughter in the first degree with fourteen wounds, [and] the fact that the victim was unarmed.” (Id. at 8-9). Moreover, “[t]he People . . . [had] give[n] [Petitioner] a break by coming off the murder on a plea,” which meant that Petitioner was not facing life in prison. (Id. at 8). The court resentenced Petitioner to twenty years in prison with five years of post-release supervision. (Id. at 9).
G. Decision on Motion to Set Aside Sentence
On March 1, 2018, the sentencing court issued a decision explaining that it had granted Petitioner's request to vacate his previous sentence and resentenced him according to the terms of his plea agreement. (Docket No. 16-7 at 1-2). The court noted that it “specifically indicated on the record its determination to deny [Petitioner] youthful offender treatment on grounds of the serious nature of the premeditated crime during which [Petitioner] had caused the death of the unarmed victim by having stabbed or slashed him fourteen (14) times.” (Id. at 2).
H. Decision and Subsequent Litigation of Direct Appeal of Conviction
On July 18, 2018, the Appellate Division affirmed Petitioner's direct appeal of the judgment of his conviction. See People v. Moronta, 77 N.Y.S.3d 304 (2d Dep't 2018). It noted that Petitioner had “successfully” moved to vacate his sentence under N.Y.C.P.L. § 440.20, and was resentenced on March 1, 2018. See id. Because Petitioner received a new sentencing hearing and sentence, the court explained, his arguments regarding the sufficiency of his prior sentencing hearing and the excessiveness of his original sentence were “rendered academic.” See id.
By letter application from Mr. Patti on August 20, 2018, Petitioner requested leave to appeal to the Court of Appeals. (Docket No. 16-9). Petitioner argued that the resentencing court and Appellate Division lacked jurisdiction to resentence him and affirm the judgment of conviction because the resentencing proceeding took place over seventeen months after his plea. (Id. at 1-3). The People responded on September 28, 2018, contending that (1) Petitioner was required to raise his jurisdictional argument on direct appeal from his resentencing; (2) the length of time between Petitioner's plea and resentencing was not unreasonable; and (3) Petitioner could not credibly argue that he was harmed by the Appellate Division's order because, through his own successful 440.20 Motion, Petitioner was responsible for the delay. (Docket No. 16-10 at 1-3). The Court of Appeals summarily denied Petitioner's request to appeal on October 15, 2018. (Docket No. 16-11).
I. Direct Appeal of Resentence
On March 6, 2018, Respondent filed a notice of appeal of his resentence. (Docket No. 15 at 7). Represented by new appellate counsel, Marianne Karas, Esq., Petitioner submitted an appellate brief on April 24, 2019 making the following arguments: (1) his waiver of his appellate rights was invalid; (2) he received ineffective assistance of counsel with respect to his plea; (3) the resentencing court did not appropriately consider whether to grant youthful offender treatment; (4) his counsel at resentencing was ineffective; (5) the resentencing court's failure to grant Petitioner youthful offender treatment constituted an abuse of discretion; (6) the Appellate Division should exercise its discretion to grant Petitioner youthful offender treatment; and (7) the resentence was harsh and excessive. (Docket No. 16-12). With respect to the first argument, Petitioner contended that his appellate waiver was invalid because (a) it was “illegally conditioned on a waiver of youthful offender consideration;” and (b) the trial court did not properly explain what appellate rights he was giving up, and what such rights he would retain. (See id. at 16-23). With respect to the second argument, Petitioner contended he received ineffective assistance of counsel with respect to the plea because “defense counsel did not object” to the plea's “illegal[] condition” and “allowed [him] to waive what he could not waive.” (Id. at 23). The People opposed on June 24, 2019. (Docket No. 16-13). The Appellate Division affirmed the resentencing on December 18, 2019, finding that Petitioner's waiver of the right to appeal was valid, and such waiver precluded review of the rest of his arguments. See People v. Moronta, 112 N.Y.S.3d 529, 530 (2d Dep't 2019), leave to appeal denied, 34 N.Y.3d 1161 (2020).
See supra n.4.
Petitioner sought leave to appeal to the Court of Appeals on December 19, 2019. (Docket No. 16-15). Petitioner raised the same arguments that he presented to the Appellate Division, and averred that the Appellate Division's decision amounted to an improper finding that Petitioner had waived his right to counsel at the resentencing proceeding. (See id. at 1-3). Respondent opposed on February 3, 2020, (Docket No. 16-16), and the Court of Appeals denied Petitioner's application on February 12, 2020, (Docket No. 16-17).
J. Federal Habeas Corpus Proceedings
Petitioner filed the instant Petition on May 12, 2021. (Docket No. 1). Respondent opposed the Petition on July 8, 2021. (Docket Nos. 15-16). Petitioner replied on August 4, 2021. (Docket No. 24; see also Docket No. 28).
II. APPLICABLE LAW
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). “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.” Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) 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 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 State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ...
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have “fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.” Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner “cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court.” Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even “a minimal reference to the Fourteenth Amendment” presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: “(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] . . . [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] . . . a pattern of facts that is well within the mainstream of constitutional litigation.” Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (“[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]”).
However, “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 quotations omitted). In such cases, although the claim is technically unexhausted, the district court may deem the claim to be exhausted but procedurally barred from habeas review. See id. at 140 (“[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner 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.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
Under New York law, defendants are permitted only one direct appeal. See Dasney v. People of the State of New York, No. 15 Civ. 5734 (RJS), 2017 WL 253488, at *5 (S.D.N.Y. Jan. 19, 2017) (citing N.Y. Ct. App. R. § 500.20); see also Roa v. Portuondo, 548 F.Supp.2d 56, 78 (S.D.N.Y. 2008) (“Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.”). Petitioners must raise record-based claims by direct appeal rather than by a collateral motion in state court. See, e.g., O'Kane v. Kirkpatrick, No. 09 Civ. 05167 (HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“[A]ll claims that are record-based must be raised in a direct appeal . . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10.”), report and recommendation adopted, 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Lowman v. New York, No. 09 Civ. 0058T, 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (“Collateral review of this claim-by way of another CPL § 440 motion-is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.)” (citing N.Y.C.P.L. § 440.10(2)(c)).
This rule states, in relevant part, that a letter application for leave to appeal “shall indicate . . . (2) that no application for the same relief has been addressed to a justice of the Appellate Division, as only one application is available.” N.Y. Ct. App. R. 500.20(a) (emphasis added).
N.Y. C.P.L. § 440.10(2)(c) states, in relevant part, that a court must deny a § 440.10 motion to vacate judgment when “[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.”
To avoid the procedural default of an unexhausted claim, a petitioner may show “cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent.” Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003).
B. Adequate and Independent State Grounds as a Procedural Bar
“It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); accord Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
“A state court decision will be ‘independent' when it ‘fairly appears' to rest primarily on state law.” Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate “only if it is based on a rule that is ‘firmly established and regularly followed' by the state in question.” Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A decision that a state procedural rule is inadequate should not be made “lightly or without clear support in state law.” Garcia, 188 F.3d at 77 (internal quotations omitted). However, “there are ‘exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'” Cotto, 331 F.3d at 240 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). In determining whether a case is “exceptional” in that the state ground should be held inadequate, the Second Circuit uses the following factors as “guideposts”:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (internal quotations omitted).
To avoid a procedural default based on independent and adequate state grounds, a petitioner must “show ‘cause' for the default and ‘prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a “highly deferential” standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). 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)(1)-(2).
Courts have interpreted the phrase “adjudicated on the merits” in AEDPA as meaning that a state court “(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotations omitted). Courts examine the “last reasoned decision” by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase “clearly established Federal law” means “the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000). “A state court decision is contrary to such clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an “unreasonable application” of Supreme Court precedent if: (1) “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case,” or (2) “the state court 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.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than “incorrect or erroneous” - it must have been “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of [the state court's] decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, “the trial court's decision need not teeter on ‘judicial incompetence' to warrant relief under § 2254(d).” Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must “consider ‘what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if ‘fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of' the Supreme Court.” Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
If, by contrast, a state court does not adjudicate a federal claim on the merits, “AEDPA deference is not required. . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.” DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
When reviewing an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the state court's factual holding by “clear and convincing evidence.” Id.; see also Chapman v. Vanzandt, No. 96 CIV. 6940(JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997).
III. DISCUSSION
The Petition and its supporting memorandum of law advance the following two grounds for relief: (1) Petitioner's resentencing counsel was ineffective because he was unprepared for the hearing and failed to advocate for youthful offender consideration; and (2) the resentencing hearing was invalid because the court “failed to truly consider the applicable factors for youthful offender consideration.” (Docket Nos. 1 at 5-6; 4 at 5, 17-30). Petitioner requests a vacatur of his resentence and a new sentencing hearing in the Supreme Court before a different judge. (Docket No. 1 at 14).
A. Ineffective Assistance
Petitioner argues that his resentencing counsel was ineffective because he was unfamiliar with the facts underlying Petitioner's case and made no attempt to apprise the resentencing court of factors that militated in favor of youthful offender treatment. (Docket No. 4 at 18-26). Respondent contends that this claim is procedurally barred and, in any event, meritless. (Docket No. 16 at 4-18). According to Respondent, the claim is procedurally barred either because (a) the Appellate Division rejected it on independent and adequate state law grounds - namely, that Petitioner waived his appellate rights as part of his plea agreement; or (b) it is unexhausted. (Id. at 4-14). In response, Petitioner maintains that he sufficiently exhausted this claim. (Docket No. 24 at 10-12). Petitioner further argues in his reply papers that the Appellate Division did not reject it on independent and adequate state law grounds because (a) his plea was illegally conditioned on Petitioner receiving no youthful offender treatment; and (b) Petitioner received ineffective assistance of counsel when he accepted these terms, rendering invalid his waiver of his appellate rights. (See id. at 5-9).
The Court rejects Petitioner's assertion that his appellate waiver was invalid because he received ineffective assistance of counsel during his plea proceeding. It also rejects Petitioner's ineffective assistance claim surrounding his resentencing.
1. Plea
Petitioner argues on reply that his plea was illegal and he received ineffective assistance of counsel during the plea proceeding because his trial counsel failed to object to its illegal terms. (See Docket No. 24 at 5, 7-8). To the extent Petitioner intends to offer these arguments as additional reasons for granting the Petition, the Court cannot consider them because he did not raise them in his original Petition or supporting memorandum of law. (See generally Docket Nos. 1, 4). Issues raised for the first time in a habeas petitioner's reply papers are deemed waived. See Pineda v. Shanahan, 258 F.Supp.3d 372, 380 n.11 (S.D.N.Y. 2017); see also Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the United States District Courts (stating that a habeas petition “must . . . specify all the grounds for relief available to the petitioner”). This is because, by raising an argument solely in a reply brief, the petitioner deprives the respondent of an opportunity to respond to the new claim. See, e.g., Roache v. McCulloch, Nos. 9:16-cv-1069-JKS, 9:17-cv-574-JKS, 2019 WL 4327271, at *2 (N.D.N.Y. Sept. 12, 2019); Zuniga v. Lamana, 18-CV-5717 (LGS) (JLC), 2019 WL 4124416, at *11 (S.D.N.Y. Aug. 30, 2019).
In any event, Petitioner did not sufficiently exhaust this ineffective assistance claim.Petitioner raised the factual basis of this claim before the state courts for the first time on direct appeal of his resentence, (see Docket No. 16-12 at 23), but that was not the proper procedural vehicle to litigate it in New York. Indeed, a defendant taking issue with the validity of his plea agreement that is record-based must generally raise that claim to the state courts by a motion to withdraw the plea or to vacate the judgment of conviction under N.Y.C.P.L. § 220.60(3) or § 440.10, or on direct appeal of the conviction. See People v. Lopez, 71 N.Y.2d 662, 665 (1988); Campbell v. Pesce, 468 N.Y.S.2d 865, 866 (1983); People v. Allevato, 93 N.Y.S.3d 753, 755 (3d Dep't 2019), leave to appeal denied, 34 N.Y.3d 949 (2019); see also Pettigrew v. Bezio, No. 10-CV-01053 (MAT), 2012 WL 1714934, at *3 (W.D.N.Y. May 15, 2012) (holding that involuntary guilty plea claim was unexhausted because it was record-based and raised for the first time on habeas review); Desrosiers v. Phillips, No. 05-CV-2941 (CBA), 2007 WL 2713354, at *2-3 (E.D.N.Y. Sept. 13, 2007) (finding claim regarding voluntariness of plea unexhausted because it was not raised on direct appeal); People v. Beverly, 34 N.Y.S.3d 245, 247 (3d Dep't 2016) (“Defendant's claims that his guilty plea was not voluntary and that counsel failed to provide effective assistance with respect to the plea survive the appeal waiver, but were not preserved for our review by an appropriate postallocution motion, and no statements were made during the plea colloquy triggering the narrow exception to the preservation requirement.”). Although the basis of Petitioner's ineffective assistance claim - i.e., counsel's failure to object to the terms of the plea - is evident from the plea transcript, Petitioner did not raise it through any of these measures. (See generally Docket No. 17). “Failing to raise his claim in the proper procedural vehicle does not exhaust [P]etitioner's claim.” See Campos v. Smith, No. 15-CV-6580 (CBA), 2017 WL 1025850, at *3 (E.D.N.Y. Mar. 15, 2017); see also Dean v. Smith, 753 F.2d 239, 241 n.4 (2d Cir. 1985) (“The exhaustion doctrine does not require that all avenues of state review have been exhausted . . . but, at a minimum, the petitioner is required to present his claim to a state court vested with the proper authority to hear the claim and grant the relief sought.”).
To the extent Petitioner separately argues that he is entitled to habeas relief because his plea agreement was “illegal[ly]” conditioned on his non-receipt of youthful offender status, (see Docket No. 24 at 5, 7-8), that argument does not constitute a cognizable federal habeas claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”); see also 28 U.S.C. § 2254(a)). A guilty plea is constitutionally valid as long as it was voluntary and intelligent “considering all of the relevant circumstances.” See Brady v. United States, 397 U.S. 742, 747, 749 (1970); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973). Moreover, “it is well established that the United States Constitution grants no independent due process right either to youthful offender treatment or to any particular procedure for denying it, so long as the trial judge imposed a sentence that was lawful under state law.” Auyeung v. David, No. 00CIV1353 (GEL), 2000 WL 1877036, at *3 (S.D.N.Y. Dec. 26, 2000). There is no Supreme Court case of which this Court is aware that forecloses plea agreements conditioned on a defendant being denied youthful offender status. See Barnhill v. Superintendent, No. 16 CV 3085 (RJD), 2020 WL 5981642, at *4 (E.D.N.Y. Oct. 8, 2020) (finding that habeas claim regarding invalidity of plea including waiver of indictment was not cognizable on habeas review); Petaway v. Lantz, No. 3:09cv34 (MRK), 2010 WL 4365756, at *5 (D. Conn. Oct. 27, 2010) (denying habeas petition absent any “Supreme Court decision prohibiting ‘no arrest' conditions in plea agreements”). Therefore, the Court need not separately consider this argument as grounds for relief.
People v. Lopez, 71 N.Y.2d 662 (1988), sets forth a narrow exception to this rule where a defendant may raise a deficiency in the plea proceedings on direct appeal if his “factual recitation” at the proceedings “negates an essential element of the crime pleaded to,” and the trial court accepts the plea without further inquiring to ensure that he understands the nature of the charge and that the plea is intelligently entered. See id. at 666. However, that exception is inapplicable here, where Petitioner's statements at the plea proceeding did not call into question any elements of his manslaughter conviction. (See generally Docket No. 17 at 16-17); see also People v. Beverly, 34 N.Y.S.3d 245, 247 (3d Dep't 2016).
Although this claim is technically unexhausted, because it is record-based and Petitioner failed to raise it at the proper juncture, he can no longer litigate it in state court. See Allevato, 93 N.Y.S.3d at 755; Beverly, 34 N.Y.S.3d at 247. Therefore, this ineffective assistance claim is deemed exhausted and procedurally barred. See Reyes, 118 F.3d at 140.
Moreover, Petitioner fails to show cause or prejudice flowing from his procedural default, nor does he demonstrate that a failure to consider this claim will result in a fundamental miscarriage of justice. See Sweet, 353 F.3d at 141. To demonstrate cause, a petitioner must point to “some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule.” Murray, 477 U.S. at 488. With respect to prejudice, the petitioner must show that counsel's procedural failures both “created a possibility of prejudice, [and] that they worked to his actual and substantial disadvantage ....” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). Alternatively, to demonstrate a fundamental miscarriage of justice, a petitioner must demonstrate “actual innocence” by “‘show[ing] that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'” See Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner cannot satisfy any of these standards to overcome his procedural default. Although Petitioner argues that his counsel's ineffective assistance during the plea proceedings qualifies as cause, (see Docket No. 24 at 9), “a petitioner may not bring an ineffective assistance of counsel claim as cause for a default when that ineffective assistance claim itself is procedurally barred.” See Reyes, 118 F.3d at 140; see also Robinson v. Superintendent, Green Haven Corr. Facility, No. 09-cv-1904 (KAM)(LB), 2012 WL 123263, at *5 (E.D.N.Y. Jan. 17, 2012). In addition, because this claim is meritless as explained below, he cannot demonstrate prejudice. Moreover, Petitioner has not presented any new evidence of his innocence that would support a finding of a fundamental miscarriage of justice. See Dunham, 313 F.3d at 730.
Even assuming that Petitioner did not commit a procedural default and fairly presented this claim to the state courts,it fails on the merits. There are two elements of an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). First, a successful ineffective assistance claim requires a showing that “counsel's representation fell below an objective standard of reasonableness,” and second, it requires that “there [be] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See id. at 688, 694. With respect to the first element, a petitioner must show that “counsel's performance was deficient,” taking account of “the reasonableness of counsel's actions under all circumstances, [and] keeping in mind that a ‘fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.'” Swanton v. Graham, No. 07-CV-4113 (JFB), 2009 WL 1406969, at *10 (E.D.N.Y. May 19, 2009) (quoting Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005)). In evaluating this prong, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689.
Petitioner's brief on his resentence appeal arguably did not comply with any of the mechanisms sufficient to alert state courts of his federal constitutional claim under Daye. See 696 F.2d at 194; supra Section II.A. His discussion of this claim was limited to a single phrase stating, “[the fact] that defense counsel did not object [to the allegedly illegal terms of the plea agreement] . . . shows that appellant . . . was not afforded the effective assistance of counsel to which he is constitutionally entitled.” (Docket No. 16-12 at 23). This argument is devoid of reference to the Sixth Amendment, federal caselaw or state cases interpreting constitutional principles. See Daye, 696 F.2d at 192-94. Nor does it employ any semblance of the framework set forth in Strickland v. Washington, 466 U.S. 668 (1984), to analyze Sixth Amendment ineffective assistance claims. Furthermore, Petitioner's reference to a “constitutional[]” right to “effective counsel” does not make clear whether the claim is based on federal or state constitutional principles. (Docket No. 16-12 at 23). Although in a separate subsection, Petitioner cited federal caselaw to invoke the federal constitutional right to counsel in reference to his lawyer's conduct at resentencing, see infra n.18, because his brief was counseled, it is “not entitled to a liberal construction” and this reference was insufficient to make clear that his ineffective assistance claim with regard to his plea was also based on federal law. See Black v. Griffin, No. 15cv08112 (ALC), 2019 WL 2551685, at *30 (S.D.N.Y. Jan. 14, 2019), report and recommendation adopted, 2019 WL 2548132 (S.D.N.Y. June 20, 2019). Moreover, the Second Circuit has held that “mere mention of ‘ineffective assistance of counsel' . . . without more [i]s insufficient to alert the New York courts to the possible federal basis of [such a] claim.” Cornell v. Kirkpatrick, 665 F.3d 369, 376 (2d Cir. 2011); see also Perez v. Lee, No. 14-CV-05763 (JPO) (BCM), 2017 WL 480619, at *5 n.8, *10 (S.D.N.Y. Jan. 6, 2017), report and recommendation adopted, 2018 WL 740995 (S.D.N.Y. Feb. 7, 2018) (finding that petitioner “failed to clearly articulate his ineffective-assistance claim or to identify it as arising under the Due Process Clause” where “state court petition . . . did not clearly invoke any relevant provision of the United States Constitution or otherwise specify that his claims were federal in nature”) (citing Baldwin v. Reese, 541 U.S. 27, 30-33 (2004)); Carpenter v. Unger, Nos. 9:10-CV-1240 (GTS/TWD), 9:12-CV-0957 (GTS/TWD), 2014 WL 4105398, at *23 n.29 (N.D.N.Y. Aug. 20, 2014) (finding that where petitioner's “sole reference” to constitutional ineffective assistance claim was “the statement ‘[t]he right to effective assistance of counsel is guaranteed by both the federal and state constitution,'” was likely insufficient to fairly present the claim to the state courts).
The second element “focuses on prejudice to the defendant.” Swanton, 2009 WL 1406969, at *10. Strickland's “reasonable probability” standard for this element entails errors serious enough to “undermine confidence in the outcome.” See 466 U.S. at 694. To demonstrate prejudice in connection with a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Here, Petitioner argues that his trial counsel was constitutionally ineffective because he did not object to the fact that his plea was conditioned on Petitioner not receiving youthful offender treatment. (See Docket No. 24 at 5, 7-8). However, such an objection would not have been successful. Under People v. Rudolph, 974 N.Y.S.2d 885 (2013), a court cannot forego its statutory requirement to independently consider whether an eligible defendant merits youthful offender treatment at sentencing, even “where defendant . . . has purported to waive his or her right to make such a request.” See 974 N.Y.S.2d at 885. However, contrary to Petitioner's argument, that case does not foreclose defendants from knowingly and voluntarily agreeing to plea arrangements conditioned on the prosecutor withdrawing its consent if youthful offender treatment is granted. (See Docket No. 24 at 8, 13-14; see also Docket No. 16-12 at 24-25). Indeed, Rudolph specifically explained that, as long as the sentencing court makes an independent determination whether to afford youthful offender treatment, “prosecutors remain free to oppose such treatment and make the court aware of reasons that might make it inappropriate in a particular case. In the unusual situation where a prosecutor is unwilling to take the chance that a judge will disagree with his or her recommendation, that prosecutor may bargain for the right to withdraw consent to the plea agreement if youthful offender treatment is granted.” See 974 N.Y.S.2d at 887 (emphasis added). In other words, the Court of Appeals expressly endorsed the exact type of plea agreement made here and endorsed in open court - that is, a bargain “condition[ed]” on “no youthful offender being offered.” See id.; (see also Docket No. 17 at 3).
Contrary to Petitioner's contentions, the record demonstrates that the plea agreement was not conditioned on a complete waiver of Petitioner's rights to youthful offender treatment, which would be impermissible under Rudolph. See 974 N.Y.S.2d at 885, 887; (Docket No. 24 at 13). This is because the resentencing court independently considered whether to afford Petitioner this status, “[p]utting aside” the fact that the “reduction” in the plea deal was contingent on Petitioner not receiving it. (See Docket No. 17-2 at 6-7). Although Petitioner alternatively argues that “the People . . . could not have afterward withdrawn their consent to the manslaughter plea if the court had in fact afforded [Petitioner] [youthful offender] treatment,” (Docket No. 24 at 13-14), that conclusory assertion is belied by Rudolph's express holding permitting prosecutors to “withdraw consent to [a] plea agreement” in the event the sentencing court awards youthful offender treatment, see 974 N.Y.S.2d at 887.
For this reason, Petitioner's ineffective assistance claim fails. An attorney is “not deficient for having failed to make a baseless objection” because there can be “no prejudice stemming” therefrom. See United States v. Martinez, 475 F.Supp.2d 154, 165 (D. Conn. 2007); see also United States v. Crespo, 651 Fed.Appx. 10, 15 (2d Cir. 2016) (summary order) (“Because we identify no error in the district court's acceptance of Crespo's guilty plea, trial counsel could not have been ineffective for failing to object on that basis.”); Jordan v. Walker, No. 01-CV-0507(VEB), 2007 WL 2344861, at *9 (W.D.N.Y. Aug. 14, 2007) (“[T]he failure to raise nonmeritorious issues does not constitute ineffective assistance.”) (quoting Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994)) (internal quotations omitted). Any objection that the plea deal was illegal for the reasons Petitioner cites would have been overruled because the deal complied with Rudolph. See 974 N.Y.S.2d at 887. Moreover, Petitioner repeatedly indicated that he wished to plead guilty with the understanding that the plea required him to forego youthful offender treatment even though he was eligible for it. (See Docket No. 17 at 6-7, 14). Therefore, “it can hardly be said that [Petitioner] would not have pled guilty but for the alleged error.” See Swanton, 2009 WL 1406969, at *10; see also Hill, 474 U.S. at 59.
Accordingly, I respectfully recommend denying Petitioner's belated ineffective assistance claim based on his trial counsel's conduct at the plea proceeding.
2. Resentencing
Petitioner also claims that his counsel at resentencing was constitutionally ineffective. (See Docket Nos. 4 at 18-26; 24 at 5-14). Petitioner alleges that his counsel was ineffective because (1) at the hearing, he failed to make a record of numerous factors militating toward youthful offender treatment under New York law; (2) he failed to meet with Petitioner beforehand to familiarize himself with such factors; and (3) he failed to otherwise prepare for the hearing so that he could respond to the allegations regarding the underlying crime. (See Docket No. 4 at 20-26). The Court agrees with Respondent that, even assuming that Petitioner sufficiently exhausted this claim before the state courts, it is procedurally barred and otherwise fails on the merits. (See Docket No. 4-18).
The Court first notes that much of Petitioner's claim relies on facts outside of the trial record, which were never presented to the state courts. Therefore, this aspect of his claim is unexhausted. Petitioner essentially argues that his counsel failed to investigate or call the court's attention to various factors that would have supported an argument for youthful offender treatment under People v. Cruickshank, 484 N.Y.S.2d 328 (3d Dep't 1985).(Docket No. 4 at 20-25). For example, before the incident, Petitioner saw a video of Robinson threatening to end Petitioner's life, which indicated that Robinson “would . . . have a knife” when they met at the park. (Docket No. 4 at 21, 22). Therefore, according to Petitioner, the crime was not necessarily “preplanned.” (See id. at 21, 25). Furthermore, Petitioner's family maintains that he “lived a harmonious life” with his relatives and was an excellent student, graduating at the top of his high school class. (See id. at 24). None of this information is set forth in the current record, nor did Petitioner present it to the Appellate Division on direct appeal from his resentence.(See Docket No. 16-12). Whereas Petitioner's reply brief contends that “the mitigating information was contained in the Presentence Report that was part of the record before the Appellate Division,” (Docket No. 24 at 12), that assertion is belied by Petitioner's former contention, in his supporting memorandum of law, that “[w]hile these factors may not be in the record of this case, that is precisely because . . . resentencing counsel remained silent on the subject and did not bring this information to the Court's attention.”(Docket No. 4 at 24) (emphasis added).
These factors include “the gravity of the crime and manner in which it was committed, mitigating circumstances, [Petitioner]'s prior criminal record, prior acts of violence, recommendations in the presentence reports, [Petitioner]'s reputation, the level of cooperation with authorities, [Petitioner]'s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life.” See id. at 336. The Court of Appeals endorsed these factors as “pertinent to any youthful offender determination” for eligible defendants in People v. Middlebrooks, 14 N.Y.S.3d 296 (2015). See id. at 303.
Petitioner described the contents of the video to the court at the resentencing hearing, but the video itself is not in the record. (See Docket No. 17-2 at 8). Although what appears to be a transcript of the video was attached to Petitioner's pro se motion to set aside his original sentence, nothing about the transcript indicates that the speaker intended to use a knife to harm Petitioner. (See Docket No. 16-2 at 19-20).
The Presentence Report generally describes Petitioner's educational background and employment during high school, as well as Robinson's threatening posts on social media. (See Docket No. 27 at 5, 7). However, it does not mention the video, Petitioner's grades or any positive family connections.
The Court of Appeals has explained that because the ineffectiveness of counsel is usually not obvious from the trial record, “in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or postconviction proceeding brought under CPL 440.10.” People v. Brown, 410 N.Y.S.2d 287, 287 (1978). Thus, to the extent that Petitioner's ineffective assistance claim is based on his attorney's alleged failure to investigate these facts and make them known to the sentencing court, Petitioner was required to raise these arguments in a motion to vacate under N.Y.C.P.L. § 440.10, and this Court cannot review them. See, e.g., Haynes v. New York, No. 10-CV-5867 (JFB), 2012 WL 6675121, at *8 (E.D.N.Y. Dec. 21, 2012); Otero v. Stinson, 51 F.Supp.2d 415, 419 (S.D.N.Y. 1999). However, this aspect of his claim is deemed exhausted because, as explained infra, Petitioner waived his right to appeal in his plea agreement such that he cannot challenge these arguments in state court. See Solorzano v. Lacy, No. 94-CV-1769, 1996 WL 1088903, at *3 (E.D.N.Y. Nov. 8, 1996); see also Bailey v. Sabourin, Nos. 02-CV-1016 (JBW), 03-MISC-0066 (JBW), 2003 WL 21845907, at *4 (E.D.N.Y. July 28, 2003). Furthermore, Plaintiff has not demonstrated cause, prejudice or a fundamental miscarriage of justice that would result if this Court did not review this argument on the merits. See supra Section III.A.1. Therefore, I respectfully recommend denying it.
With respect to the rest of Petitioner's ineffective assistance claim based on his resentencing, this argument, too, is procedurally barred. Assuming, arguendo, that it was exhausted,it cannot be considered on habeas review because the Appellate Division rejected it on an independent and adequate state law ground. See Coleman, 501 U.S. at 729. The Appellate Division held that Petitioner's “valid waiver of his right to appeal . . . precludes appellate review of his contention that his counsel was ineffective at resentencing, as his contention does not relate to the voluntariness of his plea.” Moronta, 112 N.Y.S. 3d at 530 (citing People v. Joseph, 36 N.Y.S.3d 605, 605 (2d Dep't 2016); People v. Tarrant, 979 N.Y.S.2d 827, 827-28 (2d Dep't 2014)). “[E]stablished New York law recognizes the validity of waivers of appeal, and federal courts have thus found valid waivers of the right to appeal to constitute an independent and adequate state-law ground that precludes review.” Haynes, 2012 WL 6675121, at *9 (collecting cases); see also Oddy v. Gonyea, No. 9:18-cv-00425-JKS, 2020 WL 3574633, at *7-8 (N.D.N.Y. July 1, 2020); Colon v. New York, No. 08 Civ. 0170(DC), 2009 WL 1116478, at *4 (S.D.N.Y. Apr. 27, 2009); People v. Lopez, 811 N.Y.S.2d 623, 626-27 (2006). Of course, New York courts exempt from such waivers ineffective assistance claims that “directly pertain to the [petitioner]'s decision to plead guilty-in other words, . . . claim[s] [that] . . . ‘go to the very heart of the process,'” such that “the resulting plea cannot be truly ‘knowing and voluntary.'” See Cross v. Perez, 823 F.Supp.2d 142, 153-54 (E.D.N.Y. 2011) (quoting People v. Parilla, 838 N.Y.S.2d 824, 827 (2007)). However, that exception is inapplicable here, where the Appellate Division found that Petitioner “knowingly, voluntarily, and intelligently waived his right to appeal,” and Petitioner's ineffective assistance claim regarding his plea fails on the merits. See Moronta, 112 N.Y.S.3d at 530; supra Section III.A.1. As explained above, Petitioner cannot show cause and prejudice, or a fundamental miscarriage of justice, and therefore, this claim is procedurally barred from review. See supra Section III.A.1.
Respondent argues that Petitioner did not sufficiently exhaust this claim because he did not cite to the Constitution or relevant federal caselaw, or otherwise invoke the federal standard for ineffective assistance of counsel. (Docket No. 16 at 11-12); see also Daye, 696 F.2d at 194. Respondent maintains that Petitioner's citation to Anders v. California, 386 U.S. 738 (1967), was insufficient to do so, because Anders discusses indigent defendants' rights to appellate counsel, and Petitioner asserts ineffective assistance at resentencing. (See Docket No. 16 at 11; see also Docket No. 16-12 at 28). However, Respondent ignores that Anders analyzes the right to counsel under the Sixth and Fourteenth Amendments, and cites the landmark case Gideon v. Wainwright, 372 U.S. 335 (1963), on which Strickland is based. See Anders, 386 U.S. at 742 (citing Gideon, 372 U.S. at 335); see also Strickland, 466 U.S. at 684. Petitioner also stated: “[a]ppellant was denied the effective assistance of counsel to which he [wa]s constitutionally entitled.” (Docket No. 16-12 at 27). A claim is not “fairly present[ed]” to a state court “if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Thus, the Court agrees that at the very least, it would have been best to cite the Strickland standard. However, Petitioner's citation to Anders in this portion of his appellate brief - combined with his factual assertions and specific reference to the constitutional right to effective counsel - was likely sufficient to apprise the state courts of the federal nature of his claim. See Daye, 696 F.2d at 194.
On direct appeal of his resentence, Petitioner argued that “the record fails to show a knowing, voluntary and intelligent relinquishment of the right to appeal” because the trial court did not sufficiently explain what appellate rights he was waiving and what rights he would retain. (See Docket No. 16-12 at 16-22). However, Petitioner does not advance that argument here; besides his counsel's alleged ineffectiveness during the plea proceeding, Petitioner does not present any other reasons why his plea may not have been knowing and voluntary. (See generally Docket Nos. 1, 4, 24); supra n.11.
In addition, this claim fails on the merits because Petitioner cannot establish that his appellate counsel's conduct was objectively unreasonable or make the requisite showing of prejudice under Strickland. See 466 U.S. at 688, 694. “The failure to investigate and present important mitigating evidence during sentencing can . . . amount to constitutional error.” Remy v. Graham, No. 06 CV 3637 (JG), 2007 WL 496442, at *7 (E.D.N.Y. Feb. 12, 2007) (citing Wiggins v. Smith, 539 U.S. 510, 538 (2003); Williams v. Taylor, 519 U.S. 362, 396-97 (2000)). However, when a habeas petitioner brings an ineffective assistance claim in connection with his sentence, “the petitioner must show that but for counsel's ineffectiveness, there is a reasonable probability that the sentence imposed would have been different.” Ramirez v. United States, No. 09 Civ. 4397 (JGK), 2011 WL 1795145, at *8 (S.D.N.Y. May 6, 2011) (citing United States v. Workman, 110 F.3d 915, 920 (2d Cir. 1997)).
Under New York law, a defendant is eligible for youthful offender status if he or she was between sixteen and nineteen years old at the time of the crime unless (a) the crime is one of several excluded felonies, including class A-I felonies; (b) the defendant has a prior felony conviction; or (c) the defendant was previously adjudicated a youthful offender. See N.Y.C.P.L. § 720.10(1), (2)(a)-(c). With some exceptions, the determination whether to grant youthful offender status is in the sentencing court's discretion. See id. § 720.20(1)(a); see also People v. Victor J., 724 N.Y.S.2d 162, 163 (1st Dep't 2001). As the Second Circuit has explained, “[t]he granting or denial of youthful offender treatment is analogous to that of sentencing where courts have wide discretion even though there are few or no statutory guidelines for the exercise of such discretion.” United States ex rel. Frasier v. Casscles, 531 F.2d 645, 647 (2d Cir. 1976).
“Where the conviction is had in a local criminal court and the eligible youth had not prior to commencement of trial or entry of a plea of guilty been convicted of a crime or found a youthful offender, the court must find he is a youthful offender.” N.Y.C.P.L. § 720.20(1)(b). In addition, “[w]here an eligible youth is convicted of two or more crimes set forth in separate counts of an accusatory instrument or set forth in two or more accusatory instruments consolidated for trial purposes, the court must not find him a youthful offender with respect to any such conviction pursuant to subdivision one of this section unless it finds him a youthful offender with respect to all such convictions.” Id. § 720.20(2).
In this context, Petitioner cannot show that if only his counsel had more adamantly argued for youthful offender treatment, there was a reasonable probability that (a) the resentencing court would have granted such treatment; or (b) as a practical matter, Petitioner would have been able to benefit therefrom. See Strickland, 466 U.S. at 694; Ramirez, 2011 WL 1795145, at *8. The court was aware that Petitioner was eligible for youthful offender treatment and of most of the mitigating information Petitioner claims his counsel should have brought to its attention. As Petitioner himself notes, some of this information - including the fact that (a) Robinson repeatedly threatened Petitioner on social media; (b) Robinson and Petitioner had an altercation shortly before the incident; (c) Petitioner had graduated from high school; (d) while in school, Petitioner maintained part-time employment; and (e) Petitioner had a limited criminal record with no history of violence - was provided to the court in the Presentence Report before the resentencing. (Docket Nos. 24 at 12; 27 at 5, 7). The Presentence Report also expressly noted that Petitioner was eligible for youthful offender treatment. (Docket No. 27 at 2). However, the Presentence Report did not recommend youthful offender treatment. (Id.). Although the Presentence Report did not specifically mention Robinson's threatening video, (id. at 5), Petitioner described the video at length in his pro se motion to set aside his sentence under N.Y.C.P.L. § 440.20, and reiterated its importance when given the opportunity to speak at the resentencing, (Docket No. 17-2 at 8).
Moreover, in declining to adjourn the resentencing to permit submission of “additional letters” supporting youthful offender treatment, the court stated that it “did read a lot of letters that were submitted by [Petitioner] at the time of sentence.” (Docket No. 17-2 at 6).However, the court explained that “additional letters . . . wo[uld not] change [its] view” that youthful offender treatment was “[in]appropriate,” in light of the fact that Petitioner caused “fourteen wounds to an unarmed person” and had sent text messages before the incident indicating that it was “preplanned.” (See id. at 6-7). The court also noted that the prosecution “g[a]ve [Petitioner] a break by coming off the murder on a plea,” so that Petitioner was no longer subject to life in prison. (See id. at 8). When Petitioner stated that he had sent the text messages in response to the threatening video, the court responded: “It's a sad case.” (Id. at 8). It also recognized that Petitioner was only sixteen at the time of the incident and that “many people” had come to court to support him. (Id.). The court then repeated: “I am specifically denying you youthful offender treatment based on the nature of the manslaughter in the first degree with fourteen wounds, the fact that the victim was unarmed. I don't believe that youthful offender would be appropriate here.” (Id. at 9).
Although Justice Warhit conceded that “he d[id not] recall . . . all [of the letters] now, . . . [he] remember[ed] th[e] case very well.” (Id. at 4).
Even though it may have been better practice to make a clearer record of the mitigating factors, these circumstances weigh against any finding of prejudice. As an initial matter, Petitioner “availed himself of an advantageous plea resolving” a highly violent offense that may have otherwise called for life in prison. See Harris v. Sheahan, No. 13-CV-950(MAT), 2017 WL 604441, at *3 (W.D.N.Y. Feb. 15, 2017). “Th[is] fact alone militates against any finding of prejudice.” See Reznikov v. David, Nos. 05-CV-1006 (RRM), 05-CV-1008 (RRM), 2009 WL 424742, at *8 (E.D.N.Y. Feb. 20, 2009) (collecting cases); see also Harris, 2017 WL 604441, at *3 (finding no prejudice flowing from alleged ineffective advocacy for youthful offender treatment at sentencing where petitioner benefitted from plea agreement “resolving multiple felony counts”); Feliz v. United States, Nos. 01 Civ. 5544(JFK), 00 Cr. 53(JFK), 2002 WL 1964347, at *7 (S.D.N.Y. Aug. 22, 2002) (“No prejudice exists when a plea agreement lessens the severity of the sentence defendant would face if convicted at trial.”); Auyeung, 2000 WL 1877036, at *2 (finding that “[i]t seems extremely unlikely” that petitioner could establish ineffective assistance of counsel in “failing to argue for youthful offender treatment,” where “the sentence was the result of a plea bargain that benefitted [the petitioner] by dismissing a number of additional charges”). Moreover, the court was already aware of most of the mitigating information Petitioner cites, and expressly explained multiple times that, due to the severity of the crime - which Petitioner openly admitted to committing with “no . . . legal justification,” (Docket No. 17-1 at 4) - any such mitigating information was insufficient to warrant more favorable treatment. See, e.g., Craft v. Kirkpatrick, No. 10-CV-6049 (MAT), 2011 WL 2622402, at *1, *7 (W.D.N.Y. July 5, 2011) (finding that petitioner “failed to demonstrate how any statements by his attorney on [youthful offender status] would have resulted in a different outcome” where court was aware that petitioner was eligible for youthful offender treatment and petitioner was initially charged with depraved indifference murder and retaliatory gang assault); Auyeung, 2000 WL 1877036, at *2 (finding it “unlikely” that trial counsel was ineffective “since . . . in light of the nature of the offense and his prior record, [petitioner] was an unlikely candidate for such treatment”); see also Polanco v. United States, Nos. 11 Civ. 3852(WHP), 05 CR. 437 (WHP), 2012 WL 4785067, at *6 (S.D.N.Y. Sept. 28, 2012) (finding no prejudice based on attorney's conduct at sentencing where petitioner did not dispute court's findings that he organized a conspiracy and committed multiple acts of fraud). Accordingly, any additional advocacy would have made minimal difference in convincing the sentencing judge that youthful offender treatment was appropriate. See Ramirez, 2011 WL 1795145, at *8.
In addition, even if the court found that Petitioner was entitled to youthful offender status, it is not a foregone conclusion that Petitioner ultimately would have received it. A petitioner “cannot claim ineffective assistance of counsel arguing that counsel failed to present a baseless . . . argument” at sentencing. See United States v. Burdine, No. 5:05-CR-26 (NAM), 2009 WL 8666490, at *7 (N.D.N.Y. May 29, 2009) (citing United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995)); see also supra Section III.A.1. As explained above, Petitioner's plea deal required that in exchange for pleading guilty to manslaughter, a lesser offense than second-degree murder - the original charge - Petitioner agree that he would not receive youthful offender treatment. (See Docket No. 17 at 3, 6). Thus, the prosecution retained the right to withdraw the deal in the event that the court awarded such treatment at sentencing. See supra Section III.A.1. Consequently, if the sentencing court did award Petitioner youthful offender treatment, it is likely that the prosecution would have withdrawn its consent to the plea deal and moved for vacatur of the plea, which, if granted,would have reinstated Petitioner's second-degree murder charge. (See Docket No. 17 at 3, 6). This charge precludes youthful offender treatment because second-degree murder is a class A-I felony, see N.Y. Penal Law § 125.25, and New York law prohibits youthful offender treatment for this class of crimes, see N.Y.C.P.L. § 720.10(2)(a).In other words, if Petitioner's counsel had successfully advocated for youthful offender treatment, he ran the riskof forfeiting the benefit of the lesser charge while rendering Petitioner ineligible for youthful offender treatment and susceptible to life in prison. In light of the minimal legal purpose for such advocacy, Petitioner cannot establish prejudice. See Strickland, 466 U.S. at 694.
The Court of Appeals has held that although sentencing decisions are ultimately within the trial court's discretion, prosecutors have the “right to withdraw consent to [a] plea” and move for its vacatur “[w]here the record shows that the prosecutor's consent to [the] plea [wa]s premised on a negotiated sentence and a lesser sentence [wa]s later deemed more appropriate.” People v. Farrar, 437 N.Y.S.2d 961, 963 (1981) (“The legislative policy of this State is to require the consent of the court and prosecutor to a plea to a lesser included offense or to less than the entire indictment.”) (citing N.Y.C.P.L. § 220.10(3), (4)). Of course, the trial court may deny such a motion if the defendant successfully shows “prejudice . . . following [the] plea” or “other circumstances militating against vacatur.” See id. However, “[a]bsent” such circumstances, “relief to the People would be proper.” Id.
N.Y.C.P.L. § 720.10(2)(a) provides that “[e]very youth is . . . eligible” for youthful offender treatment “unless . . . the conviction to be replaced by a youthful offender finding is for . . . a class A-I or class A-II felony.” See id.
This risk was particularly high because the sentencing court explicitly endorsed the plea contingent upon a lack of youthful offender status. (See Docket No. 17-2 at 8).
Due to these considerations, Petitioner also fails to show that his counsel's performance fell below constitutional standards. Given (1) the court's explicit refusal to allow additional letters supporting mitigation; (2) its unequivocal rejection of youthful offender status numerous times; and (3) the fact that even if Petitioner had received such status, he may have been unable to benefit from his plea deal, counsel's behavior arguably amounts to a strategic decision intended to afford Petitioner the most favorable treatment possible. (See Docket Nos. 17 at 3, 67; 17-2 at 4, 6-9). “That Petitioner might disagree with counsel's strategic choices . . . does not make good an ineffective assistance claim.” Michel v. United States, Nos. 13-CV-4258 (KMK), 09-CR-815 (KMK), 2016 WL 5478473, at *7 n.10 (S.D.N.Y. Sept. 29, 2016) (citing United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986)). Indeed, such choices “will not support an ineffective assistance claim, so long as they were reasonably made.” See Sierra v. United States, Nos. 11 Civ. 2244(DAB), S3 04 Cr. 219(DAB), 2012 WL 1656933, at *4 (S.D.N.Y. May 9, 2012) (citing Strickland, 466 U.S. at 689). Here, Petitioner's counsel may have “reasonably felt” that the above mitigating evidence was “not strong enough to move the court” to award youthful offender treatment. See Yapor v. Mazzuca, No. 04 Civ. 7966(RCC)(AJP), 2005 WL 894918, at *26 (S.D.N.Y. Apr. 19, 2005), report and recommendation adopted, 2005 WL 1845089 (S.D.N.Y. Aug. 3, 2005). Moreover, “bring[ing] [it] up” any further may have severely prejudiced Petitioner because, by convincing the court to award youthful offender treatment, counsel may have made Petitioner susceptible to life in prison, a far worse outcome than that contemplated by the plea deal. See id. Therefore, this Court will not second guess conduct meant to “urge the best result for [counsel's] client,” the hallmark of zealous advocacy. See United States v. Caicedo-Zamora, 96 Fed.Appx. 46, 48 (2d Cir. 2004) (summary order); see also Perez v. Greiner, No. 01 CIV. 5522 (AKH), 2002 WL 31132872, at *8 (S.D.N.Y. Sept. 25, 2002) (“[D]efense counsel is not obligated to present mitigating evidence where he has made a tactical decision that to do so would only prejudice his client.”).
For all of these reasons, I respectfully recommend denying Petitioner's ineffective assistance claim relating to his resentencing.
B. Validity of Resentencing Hearing
Petitioner further argues that his resentencing proceeding is invalid because “[t]he [re]sentencing court did not truly consider the relevant factors for [youthful offender] treatment under New York state law.” (Docket No. 4 at 5). Specifically, Petitioner contends that the resentencing court's “[m]ind [w]as [c]learly [m]ade [u]p [b]efore the [h]earing” because it made various statements declining to “consider” youthful offender treatment, even when presented with information militating toward such treatment under the factors set forth in Cruickshank, 484 N.Y.S.2d at 336. (Id. at 26-29); see also supra n.15. Thus, Petitioner reasons, the court refused “to comply with New York law['s]” requirement that sentencing courts consider on the record whether to award youthful offender treatment for eligible defendants.(Docket No. 4 at 29; see also Docket No. 24 at 19). Respondent maintains that this claim is procedurally barred and/or unexhausted, and in any event, not cognizable on federal habeas review. (Docket No. 16 at 1924). Because the Court agrees that this claim is not cognizable, it need not reach Respondent's remaining arguments.
Under N.Y.C.P.L. § 720.20(1), “[u]pon conviction of an eligible youth” and after receipt of a presentence report, “at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.” See id.; see also Middlebrooks, 14 N.Y.S.3d at 303 (noting that sentencing courts have an “obligation to make a youthful offender determination on the record for every eligible youth”); Rudolph, 974 N.Y.S.2d at 886 (“We read the legislature's use of the word ‘must' in [N.Y.C.P.L. § 720.20(1)] . . . to reflect a policy choice that there be a youthful offender determination in every case where the defendant is eligible.”). Notably, however, as long as such determinations are made on the record, sentencing courts are not generally required to “provide on-the-record reasons for all [youthful offender] determinations, particularly not for denials.” See People v. Minemier, 57 N.Y.S.3d 696, 700 (2017) (emphasis added). The only exception to this rule - which is inapplicable here - is that courts must explicitly consider specific factors set forth in N.Y.C.P.L. § 720.10(3) to determine youthful offender eligibility for defendants convicted of an armed felony or enumerated sex offense. See id.; Middlebrooks, 14 N.Y.S.3d at 302; see also N.Y.C.P.L. § 720.10(3). Nor is it mandatory that sentencing courts consider each and every factor set forth in Cruickshank when determining whether an eligible defendant should be afforded youthful offender status. See Middlebrooks, 14 N.Y.S.3d at 303 (“[I]n making the ultimate determination as to the youthful offender adjudication, the court may consider the broad range of factors pertinent to any youthful offender determination.”) (citing Cruickshank, 484 N.Y.S.2d at 336) (emphasis added); supra n.15.
The Court cannot review Petitioner's objection to the conduct of his resentencing proceeding because it does not raise a federal question. See 28 U.S.C. § 2254(a); see generally supra n.11. Rather, it centers on an issue of state law. See supra n.25. The Second Circuit has held that “[o]nce it is determined that the [state] judge” evaluating youthful offender treatment “has exercised his discretion within statutory limits, appellate review is at an end.” See Casscles, 531 F.2d at 647. Courts within this Circuit have interpreted this language to mean that there is no “independent due process right either to youthful offender treatment or to any particular procedure for denying it, so long as the trial judge imposed a sentence that was lawful under state law.” See Auyeung, 2000 WL 1877036 at *3; see also Cimino v. Sticht, No. 16-CV-6204-FPG, 2018 WL 1210889, at *5 (W.D.N.Y. Mar. 8, 2018); Mobley v. Zenzen, No. 9:15-cv-1001 (LEK), 2016 WL 1049007, at *9 (N.D.N.Y. Mar. 11, 2016); Jones v. Perez, No. 6:14-CV-6502 (MAT), 2015 WL 268917, at *2 (W.D.N.Y. Jan. 21, 2015); Murphy v. Artus, No. 07 Civ. 9468 (RJS)(AJP), 2009 WL 855892, at *7 & n.14 (S.D.N.Y. Apr. 1, 2009), report and recommendation adopted, 2009 WL 1106787 (S.D.N.Y. Apr. 22, 2009). Others have held that as long as the relevant sentence complies with “the range prescribed by” New York law, a denial of youthful offender treatment does not raise a constitutional claim subject to federal review. See Caggiano v. Miller, No. 9:18-CV-1043 (BKS), 2019 WL 1864064, at *5 (N.D.N.Y. Apr. 25, 2019); Jones, 2015 WL 268917, at *2; see also White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“[N]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”).
Here, Petitioner fails to establish that the resentencing court either imposed a sentence outside of the statutory range or failed to comply with New York law in issuing his sentence. Petitioner does not advance any argument that his sentence was not “within the statutorily permitted range” for first-degree manslaughter. See Jones, 2015 WL 268917, at *2. Furthermore, contrary to Petitioner's assertions, (see Docket No. 24 at 18-19), the resentencing court fully considered whether to award youthful offender treatment. See Murphy, 2009 WL 855892, at *7 (finding claim for denial of youthful offender adjudication not cognizable where “it [wa]s undisputed that [the state court] considered youthful offender adjudication”). As explained above, the court orally acknowledged and heard argument regarding numerous mitigating circumstances and factors set forth in Cruickshank when making this determination, including the multitude of letters that were submitted on Petitioner's behalf, his young age, his criminal record, and the fact that he was threatened several times by the victim before the incident. (See Docket No. 17-2 at 6-9); see also supra Section III.A.2. The court concluded, however, that the severity of the underlying offense, combined with the fact that Robinson was “unarmed,” outweighed these considerations. (See Docket No. 17-2 at 9). Thus, the court's use of phrases such as “I'm not going to consider youthful offender,” (e.g., Id. at 8), may have been inapt, but the record establishes that the court considered the propriety of Petitioner's youthful offender status as required by N.Y.C.P.L. § 720.20(1). See supra n.25. Under such circumstances, Petitioner's claim is not reviewable in this habeas proceeding. See Murphy, 2009 WL 855892, at *7.
Accordingly, I respectfully recommend denying Petitioner's objection to his resentencing proceeding as not cognizable on habeas review.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, 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, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) 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 the receipt 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 seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Roman at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Nelson S. Roman and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).