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VERAS v. STRACK

July 20, 1999

LUIS VERAS, PETITIONER,
v.
WAYNE STRACK, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Baer, District Judge.[fn1]

OPINION AND ORDER

Petitioner Luis Veras filed a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. On December 1, 1998, I referred this matter to Magistrate Judge Andrew J. Peck, who issued a Report and Recommendation ("the Report") on March 15, 1999 that recommended the petition be denied. After a request for a 10-day extension, which was granted, the petitioner filed timely objections ("Petitioner's Objections"). For the reasons set forth below, the Report is adopted in its entirety and Veras' petition is DENIED.

I. BACKGROUND

On November 28, 1988, a jury found the petitioner guilty of manslaughter in the first degree (N.Y. Penal Law § 125.20) and criminal possession of a weapon in the second degree (N Y Penal Law § 265.03). See People v. Veras, 175 A.D.2d 710, 572 N YS.2d 912, 912 (1st Dep't 1991). Based on a finding of "extreme emotional disturbance," the jury acquitted him of attempted murder in the second degree. Veras was sentenced to two consecutive terms of 8 1/3 to 25 years of imprisonment and to a concurrent term of 5 to 15 years. The First Department of the Appellate Division affirmed the conviction, see People v. Veras, 572 N.Y.S.2d at 912, and the Court of Appeals later denied the petitioner's application for leave to appeal. See People v. Veras, 78 N.Y.2d 1130, 578 N.Y.S.2d 888, 586 N.E.2d 71 (1991). The petitioner's conviction became final in 1991.

Veras filed a writ of habeas corpus on March 25, 1993 challenging his conviction on the same claims asserted in his direct appeal to the First Department.*fn2 On July 23, 1993, Judge Brieant dismissed the petition and held that Veras could file a new petition after exhausting his state remedies. Veras has since done so, and his current petition is now before this Court.

II. DISCUSSION

A. Standard of Review

In reviewing a Report and Recommendation, a district court is not required to examine each aspect de novo. Instead, it must only review de novo the sections of the Report to which one or both of the parties object. Upon review, the court may accept, modify, or reject the Report in whole or in part. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(B) & (C).

B. Petitioner's Objections

The petitioner objects to the report on two grounds: (1) that he was denied effective assistance of appellate counsel; and (2) that he was denied due process at sentencing.

1. Ineffective Assistance of Appellate Counsel

According to the petitioner, New York State has "long recognized" that counsel appointed for an indigent defendant for the appeals process continues until the Court of Appeals "has spoken." See Petitioner's Objections at 3. However, as Judge Peck correctly notes, there is no Federal constitutional right to counsel on a discretionary State appeal. See Report at 7-8 (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, (1974) (holding that a state court was not required to provide a defendant with counsel on his discretionary appeal to the highest state court)).

Veras claims that his counsel on appeal was ineffective since he failed to raise potentially meritorious issues, and that this error should be subject to Sixth and Fourteenth Amendment standards. Notwithstanding the petitioner's objections, Judge Peck correctly ruled that because Veras is not entitled to counsel, he cannot claim ineffective assistance of counsel. As the Supreme Court stated in Wainwright v. Torna, "A defendant cannot receive ineffective assistance of counsel where no constitutional right to such counsel exists." 455 U.S. 586, 587-588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (finding that since the petitioner had no constitutional right to counsel, he was not deprived of effective assistance based on his attorney's failure to file a timely application for certiorari).

2. Denial of Due Process at Sentencing

In addition, the petitioner argues that the trial court's failure to correctly charge the jury resulted in an unfair sentencing, and that this due process claim should not be barred from federal habeas review. However, as Judge Peck correctly pointed out, "[a] sentencing due process claim is barred from federal habeas review [if] it was denied by the state courts on an adequate and independent state law procedural ground." Flowers v. Irvine, 1995 WL 669913 at *4 (E.D.N.Y. Oct. 31, 1995) (dismissing the petitioner's claim as "procedurally defective" because he could have, but failed to argue this claim on direct appeal). Similarly, Veras raised his sentencing claims on direct appeal to the 1st Department which found his claim "without merit." Veras' application for leave to appeal, however, did not raise the sentencing issue. The petitioner's failure to include this claim in seeking leave to appeal to the Court of Appeals was indeed a procedural defect that now bars the claim from federal habeas review. See Jordan v. Lefevre, 22 F. Supp.2d 259 (S.D.N.Y. 1998). Accordingly, I agree with Judge Peck that this objection is without merit and that the petitioner's claim is barred from federal habeas review.

III. CONCLUSION

After reviewing the parts of the Report to which the petitioner objects and finding no clear error with the rest of the Report, I adopt Magistrate Judge Peck's Report in its entirety. The petition for habeas corpus is DENIED and the Clerk of the Court is directed to close this case.

SO ORDERED.

Petitioner Luis Veras seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his conviction of first degree manslaughter, attempted murder in the second degree and criminal possession of a weapon. (Pet., dated 7/27/98, ¶¶ 1-4.) See also People v. Veras, 175 A.D.2d 710, 710, 572 N.Y.S.2d 912, 912 (1st Dep't), app. denied, 78 N.Y.2d 1130, 578 N.Y.S.2d 888, 586 N.E.2d 71 (1991). Veras's petition alleges that appellate counsel was ineffective for failing to raise his due process sentencing claim when seeking leave to appeal to the New York Court of Appeals (Pet. ¶ 12(A)), and that he was deprived of due process on sentencing (Pet. ¶ 12(B)).

For the reasons set forth below, I recommend that Veras's habeas petition be denied. His ineffective assistance claim is meritless because the law is clear that he was not entitled to counsel on his discretionary appeal to the New York Court of Appeals, and hence no ineffective assistance of counsel claim can lie. His sentencing due process claim is barred from federal habeas review ...


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