Opinion
19 Civ. 547 (VB)(PED)
06-28-2022
Sean. Ward, Petitioner, v. Kathleen Gerbing Superintendent of Otisville Correctional Facility, and Attorney General of the State of New York Respondents.
REPORT AND RECOMMENDATION
Paul E. Davison, U.S.M.J.
TO THE HONORABLE VINCENT BRICCETTI, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Sean Ward (“Petitioner”), through counsel, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence upon a plea agreement in County Court for the County of Westchester. [Dkt. 9.] On March 10, 2014, Petitioner entered a guilty plea to two counts of attempted murder in the second degree and criminal possession of a weapon in the second degree. He was sentenced to a determinate term of twelve years in prison and five years of post-release supervision. Petitioner is currently serving his sentence at the Otisville Correctional Facility in Orange County, New York. The Petition comes before me pursuant to an Order of Reference entered on January 22, 2019. [Dkt. 7.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 9], Petitioner's Memorandum of Law [Dkt. 1-1], Respondent's Answer with attached exhibits [Dkt. 15], and the state court transcripts [Dkt. 18].
1. The Crime
On March 31, 2013, Petitioner entered the Match Bar located in Sleepy Hollow. Upon entering the bar, he headed straight to the bathroom. There was a line for the bathroom and Petitioner attempted to cut it. One of the people on the line to the bathroom, Julio Delgado, informed Petitioner that he had to wait on the line. A verbal confrontation ensued between the two that resulted in Petitioner leaving the bar and Julio Delgado following him. Petitioner stated that he was going to get his gun and then got into his car and drove off.
Julio Delgado remained in front of the bar with his brother, Arturo Delgado, and his friend, Roberto Bertiz. Petitioner then returned to the bar and confronted Julio Delgado. Julio Delgado then handed Bertiz his pocketknife and cellphone, before turning back to Petitioner and asked him if he wanted to fight, holding his fists up in front of him. Julio Delgado then saw Petitioner pull out a gun and point it at him. Julio Delgado turned to run when Petitioner shot him one time. Six shots then rang out in rapid succession before Bertiz punched Petitioner and wrestled the gun away from him. Bertiz then threw the gun to Manuel Salazar, who placed it in a flowerpot. Julio Delgado saw that Petitioner was getting up to leave and so he ran and punched Petitioner in the face twice. Petitioner then got up and ran away.
At 3:37 A.M. that morning, Officer Eduardo Fortunato received a radio report that shots had been fired. He arrived on scene shortly thereafter and Bertiz pointed in the direction that Petitioner had fled. Bertiz also provided a description of Petitioner's clothing and stated that the shooter was “Sean.” Officer Fortunato then asked “Sean who?” and was told Petitioner's street name. Officer Fortunato followed up, asking “Sean Ward?” and Bertiz confirmed. Officer Fortunato then pursued Petitioner and ultimately caught up with him. He drew his gun and ordered Petitioner to the ground. Petitioner complied and was handcuffed. Petitioner was then escorted to a patrol car and passed a group of people, including Bertiz, Danny Garcia, and Erlin Almonte, who all pointed at Petitioner and stated words to the effect of “That's him” and “That's the guy.” As a result of this encounter, Julio Delgado suffered a gunshot wound to his left thigh and Arturo Delgado suffered six gunshot wounds that lead to the amputation of his left foot.
2. Hearing Before Trial
Before trial, the court held a hearing to address outstanding issues, including Wade and Sandoval issues. During the Sandoval hearing, the trial court addresses Petitioner regarding his potential guilty plea and his justification defense:
THE COURT: Back on the record.... Mr. Ward, I understand from your attorney that he's communicated with you the Court's position that in the event you wish to plead guilty the Court would give you a determinate 12 plus 5 post-release on each of these counts concurrent. Do you understand that?
PETITIONER: Yes, ma'am.
THE COURT: Do you also understand after trial you face life in prison. Do you understand that, sir?
PETITIONER: Yes, ma'am.
THE COURT: You also understand, the Court has had an opportunity to look at this video and I know it's your attorney's intention to assert the justification defense. I've looked at this video. You know you may prevail on that, it's up to the People to prove beyond a reasonable doubt that you acted in self defense here. I will just explain something to you on the use of deadly physical force. Deadly physical force is not justified when non deadly physical force is threatened. In other words, you become the initial aggressor if you are the first one to pull out a gun. Do you understand?
PETITIONER: Yes, ma'am.
THE COURT: Also, taunting, name calling, threats, that doesn't justify pulling out a gun. I just need for you to understand that. Now, the jury may see it, of course, completely differently but if you are counting on that, you need to understand what the law is when someone is permitted to use deadly physical force. Do you understand what I just explained to you?
PETITIONER: Yes, ma'am[Dkt. 18 at 46-48.] The trial court then completed the Sandoval portion of the hearing and scheduled trial for the upcoming Monday, November 18, 2013. [Id. at 59.]
3. Petitioner's Trial and Plea
Jury selection began for Petitioner on November 18, 2013. [Dkt. 18-1 at 1.] During the afternoon session of voir dire, outside of the presence of the jurors, Petitioner, through his counsel Mr. Saltzman, indicated to the judge that he wished to discuss his guilty plea again.
SALTZMAN: ... My client has mentioned to me that he's interested in me exploring the option of him pleading guilty. He is requesting that I ask you for a sentence of ten years.
THE COURT: Mr. Saltzman - I told him last week it was 12,1 was willing to undercut the DA but I wasn't going to ten.
SALTZMAN: I've explained that to him and I just want him to know that I have asked your Honor for ten years, for the record.
THE COURT: You have.
SALTZMAN: And that the offer is 12?
THE COURT: Yes.
SALTZMAN: And if he's -
THE COURT: I'm not sure it is anymore, we are in jury selection.
SALTZMAN: Well, if the offer is 12 and my client was interested, the time to say something would be now. So I'm malting this record to afford my client an opportunity, if he wishes, to say something about a plea. If he doesn't,
that's fine, too, we could proceed. That's why I asked for this opportunity.
THE COURT: Mr. Ward, what's going on?
PETITIONER: Ms. - my mother -
THE COURT: Judge-
PETITIONER: Excuse me. Your Honor, my mother is going through some things and 1 don't really want to put her through this trial. I don't make no excuses for my actions, I'm terribly sorry for what I did and I'm willing to accept responsibility for what I did. I don't want to put my mother through this trial. But, I want to go to trial so that I could, you know, get the best deal or whatever the case maybe due to the circumstances, because I did what I did. But, it was under circumstantial, it was a circumstantial situation. But my mother and them, they don't really want me to go to trial and I think 12 years is kind of excessive. I have kids and stuff like that.
THE COURT: I'm not looking at your circumstance, I'm looking at what happened here to these victims. If the People can't prove beyond a reasonable doubt that you acted in self-defense, that's an acquittal, okay?
PETITIONER: You are absolutely right.
THE COURT: But look, I'm not talking to you about anything less than 12. I'm not even sure I would give you 12 at this point, you had so much time to think about this.
PETITIONER: Actually, I didn't. He just ran that by me the other day.
THE COURT: Last Wednesday.
PETITIONER: And then I didn't speak to him since. I was just going to speak to him today.
THE COURT: Well, you did talk to him because you wanted eight, wasn't that it?
PETITIONER: Your Honor, this is the first time I've ever been through this situation.
Things are moving a lot faster, I didn't know how this goes. When I spoke to him last, he doesn't have minutes for me on my phone to call. My wife usually gets through to him. So I had to wait until today to come back.
THE COURT: Mr, Ward - we told you last week we are picking a jury today, you knew that. Look, I'm not - ten is not even on the table so let's just continue jury selection, okay, it's not going to happen, sir.[Dkt. 18-1 at 81-83.] After this exchange, the trial court proceeded with voir dire and then concluded for the day before setting voir dire to continue on Wednesday, November 20, 2013. [Id. at 173.]
On November 20, 2013, voir dire continued. At the beginning of the afternoon session, Petitioner's counsel again sought to speak with the trial court about Petitioner potentially accepting a plea:
SALTZMAN: Judge, my client is asking for an opportunity to confer with me before you bring in the jury.
THE COURT: You can confer after the jury comes in. We'll break later this afternoon.
SALTZMAN: Okay.
THE COURT: You had an opportunity when we broke this morning to speak to him, right?
SALTZMAN: To be honest, they only gave us five minutes. We really didn't have any meaningful time.
THE COURT: Well, we had a day off yesterday. Did you go talk to him?
SALTZMAN: No, I didn't talk to him yesterday.
THE COURT: You know, this has been a half an hour now before the jury started so why would I hold the jury up again? Look, Mr. Ward, do you want to speak to your lawyer, I'll let you do it when we break. We will be breaking in about an hour and 15 minutes, okay?
PETITIONER: Sure. I mean, I think it's better if I speak to him now.
THE COURT: Well, we are about to have openings and preliminary instructions, okay?
PETITIONER: All right.
SALTZMAN: I'm assuming that any offer that was made will be kept open for an hour and 15 minutes, right? I think that's what he wants to talk to me about.
THE COURT: You know, I can't stop the jurors now. This offer has been on the table for quite some time. And it's been rejected and I respect that so we are having the trial that he's entitled to.
PETITIONER: I would prefer to talk to my lawyer right now, Miss.
(Whereupon, the jury entered the courtroom)[Dkt. 18-1 at 257-58.] Trial then resumed, and the court provided preliminary instructions to the jury. After the preliminary instructions, the parties made opening statements.
Upon the conclusion of the parties' respective opening statements, Petitioner had a chance to confer with his counsel. After conferring with his counsel, Petitioner again discussed potentially pleading guilty with the trial court.
SALTZMAN: My client has requested an opportunity to confer with me and I thank the Court for providing us with some alone time in the back to consult. I've advised my client that if he wished to plead guilty for the offered amount of time, that this would probably be his last opportunity to enter the plea without the offer changing, I don't know, but I suggested that if that was, and that's why he asked me to speak, about a plea. I suggested if that's what he wanted to do that now is the time. Again, he asked me if it was going to be 11 years. I said no.
TFIE COURT: Oh, boy.
SALTZMAN: I said it's going to be 12. So knowing that it's 12, knowing that it's 12,1 believe that my client, Mr. Ward, wants me to make an application. Is that true?
PETITIONER: I'll take 11, right now.
THE COURT: No, we are going to continue with the jury trial. No, it's not on the table. We are not talking about it anymore now, it's off. I am not going to negotiate with you.
PETITIONER: I'm not asking you to negotiate, I'm just saying, I don't know -
THE COURT: Please, you've been told 12 along [sic] time ago. Let's get the jury in please.
SALTZMAN: Judge, he wants to take a plea to 12 years.
THE COURT: We are going to continue with the trial. If he still feels this way tomorrow morning I will consider it but 12 is off the table, he has to know that.
Twelve is off the table. Let's get the jury in please.
SALTZMAN: Just for the record, he's asking to plead guilty right this second to 12, that's what he's asking.
THE COURT: Twelve years plus 5 years post-release supervision.
PETITIONER: Five years post, too, Miss?
THE COURT: See, stop. This is over, this discussion is over. I am not going to continue this. You've been told for weeks there is post-release supervision. Let's get the jury in and let's go. It's off the table. It's off the table. Just deal with it.
PETITIONER: I'm out of here. I'm through.
OFFICER: Your Honor, he wants to go back.
THE COURT: No, you have to stay here. Be seated. The jury is coming in, you are having a trial. I can't hold it up any longer.
PETITIONER: I didn't pick the jury, I feel like I'm being railroaded unfairly.
THE COURT: No, you are not. You are playing games with me. You have been told post-release. You were told a week ago. Sit down you are going to have your trial now. And if you don't behave yourself you are going to forfeit, you are warned. If you don't behave yourself you are going to forfeit your right to be present. You really need to hear these witnesses and be hear [sic] and listen to help your lawyer in representing you. Sit down.[Dkt. 18-1 at 279-81.] After the jury returned, the prosecution called Julio Delgado to the stand. The prosecution completed its direct of Julio Delgado, and Petitioner's attorney was cross examining Julio Delgado when the court called an end to the trial day. [Dkt. 18-1 at 319.] After the jury retired, Petitioner again stated that he wanted to plead guilty:
THE COURT: Okay, so I'll see everyone tomorrow morning at 9: 30. Everyone here at 9: 30 please. The defendant is here at 9:30, Mr. Saltzman, 9:30.1 say that based on how we left it with what your client wanted to do.
SALTZMAN: I understand why you are saying it.
PETITIONER: I still want to do that, your Honor.
THE COURT: You what?
SALTZMAN: He still wants to plead guilty is what he's saying.
THE COURT: Well, it's not fair to the People if I do that if they have all their witnesses here.
SALTZMAN: Unless you want to try to enter a plea now.
THE COURT: I need permission to do that, just hang out.
(Pause in proceedings)[Id. at 321-22.] When the judge returned to the courtroom, Petitioner's attorney outlined what Petitioner was pleading to, after which the prosecution, represented by Mr. Strongin, began the allocution for Petitioner's guilty plea.
SALTZMAN: Judge, I thank you for the opportunity once again to confer with my client. My client has asked me to withdraw his previously entered plea of not guilty with respect to Indictment 13-0430 and to enter pleas of guilty to Counts One, Two, and Seven, those pleas to satisfy the entire indictment. So it will be two counts of 110/125.25 and it will be one count of 265.03 of the Penal Law with an understanding that my client would be sentenced to 12 years, determinate sentence of 12 years incarceration plus 5 years of post-release supervision and I believe he's ready be allocated.
THE COURT: You've talked to him about the fees that he has to pay from earnings, surcharges, DNA fee? He probably has a DNA, or he's given DNA, he won't have to pay that fee again plus permanent Orders of Protection, Is that acceptable to you, Mr. Ward?
PETITIONER: Yes, your Honor.
THE COURT: Mr. Ward, the People are ready and willing and able, as-is this entire courtroom, to proceed with this jury trial. Is this something you want to do, to plead guilty?
PETITIONER: Yes, your Honor.
THE COURT: Any hesitation about it?
PETITIONER: No, your Honor.
STRONGIN: Did you hear your attorney's application to the Court?
PETITIONER: Yes, sir.
STRONGIN: Is this also your application?
PETITIONER: Yes, sir.
STRONGIN: Do you understand that you have an absolute right to remain silent in the face of the charges against you and that by entering a plea of guilty you are giving up that right and incriminating yourself?
PETITIONER: Yes, sir.
STRONGIN: Have you had sufficient time to discuss this matter with your attorney and to make the decision to plead guilty?
PETITIONER: Yes, sir.
STRONGIN: Are you satisfied with the representation given to you by your attorney?
PETITIONER: Yes, sir.[Id. at 322-23.] Petitioner then pled guilty to two counts of attempted murder in the second degree and one count of criminal possession of a weapon in the second degree. [Id. at 323-33.]
4. Petitioner's Motion to Withdraw His Plea
On January 27, 2014, Petitioner, through new counsel, moved to withdraw his plea. [Dkt. 3 at 26.] In an affidavit in support of this motion, Petitioner stated that although he believed his trial counsel was a good attorney, he also believed that his trial counsel “was not given the necessary time to prepare to fight my case. He was only given a few days notice before the start of the trial.” [Dkt. 3-1 at 16.] Petitioner stated that he felt as though he and the trial counsel “did not have the necessary time to jointly prepare and present our case.” [Id.] As a result, Petitioner panicked and made the only decision he thought was available to him and plead guilty. [Id.] On February 12, 2014, the state filed an opposition to Petitioner's motion. [Dkt. 15-3 at 9.] The trial court addressed Petitioner's motion to withdraw his plea at a hearing on March 14, 2014. At the hearing, the trial court found that Petitioner knowingly, voluntarily, and intelligently entered into the plea and denied Petitioner's motion to withdraw. [Dkt. 18-2 at 3-4.]
B. Procedural History
1. The Direct Appeal
Petitioner, through counsel, appealed his conviction to the New York Appellate Division, Second Department, on December 28, 2015. [Dkt. 15-4 at 17.] In his brief, Petitioner argued that his waiver of appeal was insufficient, and even if it was not, Petitioner should still be allowed to challenge the voluntariness of his plea. [Id. at 11-13.] Petitioner further argued that the trial court should have accepted his motion to withdraw his plea because his plea was not voluntary. [Id. at 13-17.] More specifically, Petitioner argued that he did not have sufficient time to confer with his counsel regarding the plea. [Id. at 15.] The state submitted its brief in opposition on March 4, 2016. [Dkt. 15-6 at 39.] Petitioner, through counsel, submitted his reply on March 10, 2016. [Dkt. 15-7 at 7.]
The Appellate Division affirmed the judgment against Petitioner by decision dated June 8, 2016. People v. Ward, 32 N.Y.S.3d 648 (App. Div. 2016). The Appellate Division found that Petitioner's “contention that he was coerced into pleading guilty based on his inability to adequately confer with his counsel and to prepare an adequate defense, which essentially rendered his counsel ineffective, is belied by his statements during the plea proceeding, in which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been forced into pleading guilty, and that he was entering the plea freely and voluntarily.” Id. at 649. Thus, the Appellate Division concluded that Petitioner's motion to withdraw his guilty plea was supported by the record, and the trial court properly denied Petitioner's motion without a hearing. Id. Finally, the Appellate Division found that Petitioner's “remaining contention is without merit.” Id.
Following the Appellate Division's denial, Petitioner's counsel filed an application for leave to appeal to the Court of Appeals on June 17, 2016. [Dkt. 15-8 at 2.] Petitioner's counsel noted that “[t]he issues presented include whether the plea taken by the defendant before the Trial Court was taken freely and voluntarily given his subsequent application to withdraw same pursuant to CPL § 330 and whether the defendant had the effective assistance of counsel in entering that plea.” [Id. ] The state submitted its opposition on July 22, 2016. [Dkt. 15-9 at 2.] The Court of Appeals summarily denied Petitioner's leave to appeal the Appellate Division's June 8, 2016 decision affirming the trial court's judgment. People v. Ward, 63 N.E,3d 86 (Table) ‘ (N.Y. 2016).
2. Petitioner's CPL § 440 Motion
On March 6, 2017, Petitioner filed a pro se motion, pursuant to CPL § 440.10, to vacate the judgment in his case. [Dkt. 15-10 at 2.] Petitioner argued that he received ineffective assistance of counsel. [AZ at 7-13.] He further argued that the prosecution violated the plea agreement because the agreement provided that Petitioner would be sentenced as a second felony offender convicted of first violent felony but instead Petitioner was sentenced as a second violent felony offender. [Id. at 13-17.] Finally, Petitioner argued that his plea was not knowing, intelligent, or voluntary. [Id. at 17-19.] The state submitted its opposition to Petitioner's § 440.10 motion on May 1,2017. [Dkt. 15-11 at 21.] On July 20, 2017, the County Court denied Petitioner's § 440.10 motion. [Dkt. 15-12 at 11-17.]
By application dated August 21, 2017, Petitioner requested leave from the Appellate Division, Second Department to appeal the County Court's July 20, 2017 decision. [Dkt. 15-14 at 2-19.] The state submitted its opposition on October 10, 2017. [Dkt. 15-15 at 30.] On May 15, 2018, the Appellate Division denied Petitioner's application. [Dkt. 15-16 at 2.]
3. The Instant Petition
Petitioner filed the instant Petition on January 18, 2019[Dkt. 1.] The Respondent filed a response in opposition to the Petition on March 21, 2019. [Dkt. 15.] Petitioner did not file a traverse.
Petitioner filed the Petition with an attached Memorandum of Law on January 18, 2019. [Dkt. 1.] However, because there was a filing error with the Petition, Petitioner re-filed the Petition on January 23, 2019. [Dkt. 9.] Petitioner failed attach his Memorandum of Law to the refiled Petition, but the Memorandum of Law filed with the initial Petition is still accessible. [See Dkt. 1-1.]
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default” to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision will be “independent” when it “‘fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130,138 (2d Cir. 2006) (citing Colman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n.lO (2d Cir. 2002); see Coleman v. Thompson, 501 U.S. 722, 729 (1991).
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief] the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” § 2254(e)(1).
IV. ANALYSIS
Petitioner's asserted ground for habeas relief is that his “conviction was obtained by a plea of guilty that was unlawfully induced, unintelligent and involuntary in that Petitioner did not have sufficient time to discuss the plea with his attorney and in pleading guilty, relied upon misinformation from the judge that he faced a maximum sentence of life in prison if convicted at trial, in violation of the Fifth, Sixth and Fourteenth Amendments.” [Dkt. 9 at 5.] Petitioner's argument can be broken down into two subsections. First, Petitioner argues that his plea was involuntary because he had insufficient time to confer with his attorney. Second, Petitioner argues that his plea was not intelligent because it was based on erroneous sentencing information from the trial court. I address each argument in turn.
A. Petitioner's Argument that His Plea Was Not Voluntary Is Meritless
Petitioner's first argument is his plea was involuntary because he did not have sufficient time to confer with his counsel. This claim is timely and has been properly exhausted as Petitioner raised it in both his direct appeal and in his leave application. [Dkt. 15-4 at 15; Dkt. 15-8 at 2.] Accordingly, in order to for Petitioner to overturn the state court's findings on this issue, Petitioner must show that the state court's conclusion is contrary to Supreme Court law, or an unreasonable interpretation of the facts. 28 U.S.C. § 2254(d).
Here, the Appellate Division found that “the defendant's contention that he was coerced into pleading guilty based on his inability to adequately confer with his counsel and to prepare an adequate defense, which essentially rendered his counsel ineffective, is belied by his statements during the plea proceeding, in which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been forced into pleading guilty, and that he was entering the plea freely and voluntarily.” Ward, 32 N.Y.S.3d at 649 (citations omitted).
The Appellate Division's finding is not contrary to Supreme Court law. “A plea of guilty is constitutionally valid only to the extent it is ‘voluntary' and ‘intelligent.'” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). A plea “is deemed ‘voluntary' if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally.” Miller v. Angliker, 848 F.2d 1312,1320 (2d Cir. 1988). Here, Petitioner's allocution included no threats, no physical harm, and no mental coercion. Petitioner argues that the Appellate Division's findings are an unreasonable application of Supreme Court law because the Appellate Division did not consider the entire record. For the reasons discussed in more detail below, the record supports the Appellate Division's findings. Accordingly, Petitioner's plea was not contrary to Supreme Court law.
The Appellate Division's findings are also not an unreasonable interpretation of the facts. Petitioner's “statements at [his] plea allocution carry a strong presumption of veracity.” United States v. Torres, 120 F.3d 710, 715 (2d Cir.1997). During his allocution, Petitioner stated that he: had not consumed any substances that would impair his understanding [Dkt. 18-1 at 323]; was not threatened, coerced or forced in any way to plead guilty [Id. at 325]; and was entering into the plea freely and voluntarily [Id. at 325-26], Petitioner further stated that he had sufficient time to discuss this matter with his attorney and to make the decision to plead guilty, and that he was satisfied with his attorney's representation. [Id. at 324.]
Petitioner argues that the Appellate Division unreasonably interpreted the facts, because the Appellate Division relied on a rote plea allocution and failed to consider the entire record. However, even assuming arguendo that the Appellate Division did not review the entire record, a review of the record does not render a different outcome. The record shows that Petitioner did indeed have adequate time to confer with his counsel. On November 18, 2013, during the afternoon session of voir dire, Petitioner's counsel indicated that after conferring with his client, his client wanted to discuss potentially pleading guilty with the trial court. [Dkt. 18-1 at 81-83.] This discussion ultimately did not result in a guilty plea but on November 20, 2013, Petitioner's counsel again notified the trial court that after conferring with his client, his client wished to discuss the guilty plea. [Diet. 18-1 at 279-80.] Specifically, trial counsel stated: “My client has requested an opportunity to confer with me and I thank the Court for providing us with some alone time in the back to consult.” [Id. at 279.] Indeed, before Petitioner's plea allocution, trial counsel again stated “Judge, I thank you for the opportunity once again to confer with my client.” [Id. at 322.] Petitioner complains that the record indicates that during the morning of November 20, 2013, he did not have sufficient time to confer with his counsel. Nonetheless, Petitioner and his counsel had the opportunity to meet prior to the afternoon session and later that day Petitioner [decided to plead guilty. Accordingly, there is nothing in the record that indicates that the Appellate Division's holding was contrary to Supreme Court law or an unreasonable interpretation of the facts. Thus, I conclude and I respectfully recommend Your Honor conclude, that this claim should be dismissed as meritless.
B. Petitioner Failed to Exhaust His Argument that His Plea Was Not Intelligent
Petitioner next argues that his guilty plea was not intelligent because he received erroneous sentencing information from the trial court. Specifically, Petitioner argues that the trial court erroneously informed him that he faced up to life in prison.
“In New York, claims about the voluntariness of a guilty plea must be presented to the state court in one of three ways: a motion to withdraw the plea before sentencing,” “on direct appeal if the record permits” or “a post-judgment CPL § 440.10 motion in the trial court[.]” Foreman v. Garvin, 2000 WL 631397, at *8 (S.D.N.Y. May 16, 2000) (collecting cases). Here, Petitioner indeed made a motion to withdraw the plea before sentencing, but failed to argue that his guilty plea was not intelligent because of the erroneous sentencing information provided by the trial court. [See Dkt. 3 at 22-26; Dkt. 3-1 at 14-17.] Petitioner also did not raise this argument in his direct appeal. [See Dkt. 15-4 at 1-17.] Finally, Petitioner did indeed file a post-judgment CPL § 440.10 motion in the trial court, but again he failed to argue that the trial judge provided erroneous sentencing information. [See Dkt. 15-10 at 1-19.] Accordingly, this argument is unexhausted.
In addition to being unexhausted, Petitioner also “no longer has remedies available in the courts of the State” for this record-based claim. Grey, 933 F.2d at 120. Petitioner could raise his argument regarding the voluntariness of his plea in a subsequent § 440.10 motion, but “Section (440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.” Foreman, 2000 WL 631397, at *9. Thus, the claim is deemed exhausted but procedurally barred. See Reyes, 118 F.3d at 139. Petitioner could overcome this procedural bar if he made a showing of actual innocence or cause for the procedural default and resulting prejudice. Schlup, 513 U.S. at 315; Harris, 489 U.S. at 262. However, Petitioner fails to make a showing of actual innocence or cause and resulting prejudice. As a result, I conclude that this Court cannot review this claim and I respectfully recommend Your Honor conclude the same.
VI. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, i the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Vincent Briccetti, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, . 517 F.3d 601, 604 (2d Cir. 2008). Requests for extensions of time to file objections must be made to Judge Briccetti.