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United States District Court, Southern District of New York

September 4, 2003


The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge

Frank Robinson, currently incarcerated at the Marcy Correctional Facility, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Robinson was convicted following a jury trial in New York State Supreme Court, Bronx County, of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)) and Unlawful Wearing of a Body Vest (N.Y. Penal Law § 270.20(1)). He was sentenced in 1997 as a persistent violent felony offender to two concurrent terms: 8 years to life on the weapon possession charge and 1-1/2 to 3 years on the body vest charge.

Robinson raises two grounds in support of his petition. First, he argues that his adjudication as a persistent violent felony offender in 1997 was unconstitutional because the plea agreement which formed the basis for one of his earlier convictions was invalid and thus could not serve as the predicate for his subsequent sentence. Second, he argues that his earlier sentences as well as the 1997 sentence were the result of ineffective assistance of counsel. For the reasons stated below, the petition should be denied. Page 2


A. Robinson's 1988 and 1989 Convictions

1. The 1988 Conviction

On December 4, 1986, Robinson was charged in a felony complaint with Criminal Possession of a Controlled Substance in the Second and Third Degree. See Felony Complaint, dated December 4, 1986 (reproduced in Affidavit in Opposition, dated March 27, 2003 ("Resp. Aff."), Ex. 1). Robinson was subsequently indicted for Criminal Possession of a Controlled Substance in the First Degree. See Indictment Number 6337/86 ("Ind. #6337"), dated December 22, 1986 (reproduced in Resp. Aff. Ex. 2). Robinson was later charged in an unrelated case with Criminal Possession of a Weapon in the Third Degree. See Indictment Number 3765/87 ("Ind. #3765"), dated June 23, 1987 (reproduced in Resp. Aff. Ex. 3).

Pursuant to a plea and sentence agreement, Robinson waived his right to prosecution by indictment and consented to prosecution by a Superior Court Information ("SCI") that charged him with Criminal Possession of a Controlled Substance in the Fourth Degree. See Superior Court Information Number 1431-88 ("SCI #1431"), dated March 4, 1988 (reproduced in Resp. Aff. Ex. 4). He thereafter pled guilty to the charge contained in SCI #1431 — following which Ind. #6337 was dismissed — and to Attempted Criminal Possession of a Weapon in the Third Degree, the crime charged under Ind. #3765. See generally Plea Minutes, dated March 4, 1988 ("3/4/88 Plea Minutes") (reproduced in Appendix Accompanying Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus, undated, Ex. F), at 3-12; see also Sentencing Minutes, dated April 26, 1988 (reproduced in Resp. Aff. Ex. 5), at 2-8. Robinson was sentenced to five years probation. Id. He did not appeal this conviction. See, e.g., Traverse, undated ("Traverse"), ¶ 4. Page 3

2. The 1989 Conviction

In 1989, Robinson was convicted after a jury trial of Criminal Possession of a Weapon in the Third Degree and sentenced — as a second violent felony offender — to a term of imprisonment of from three to six years. See Sentencing Minutes, dated November 14, 1989 ("11/14/89 Sentencing Minutes") (reproduced in Resp. Aff. Ex. 6), at 8-16. At the hearing during which he was adjudicated a second violent felony offender, Robinson stated through counsel that he had read the predicate felony statement and that "all the facts contained in that statement [were] correct and there [was] no constitutional infirmity in [the 1988] plea." Id. at 8-9.

Robinson filed an unsuccessful appeal to the Appellate Division, People v. Frank Robinson a/k/a Frankie James, 183 A.D.2d 420 (1st Dep't 1992), and was later denied leave to appeal to the New York Court of Appeals. People v. Frankie James, 80 N.Y.2d 832 (1992); People v. Frank Robinson, 80 N.Y.2d 837 (1992). On his appeal he apparently did not raise any argument attacking his 1988 guilty plea or his being adjudicated a second violent felony offender in 1989. See, e.g., Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed November 21, 2002 ("Petition"), at 6; see also Sentencing Minutes, dated May 28, 1997 ("5/28/97 Sentencing Minutes"), at 21-22.

B. The 1997 Conviction and the Section 440.20 Motion

In 1997, Robinson was convicted after a jury trial of Criminal Possession of a Weapon in the Third Degree and the Unlawful Wearing of a Body Vest. See 5/28/97 Sentencing Minutes, at 31-32. The trial court sentenced him as a "persistent violent felony offender" based on his convictions for attempted third-degree criminal possession of a weapon (the 1988 conviction) Page 4 and third-degree criminal possession of a weapon (the 1989 conviction). Id. at 25-26, 31-32, 46-49.

At the sentencing hearing on May 28, 1997 during which he was adjudicated a persistent violent felony offender, Robinson argued — both himself and through counsel — that although he had previously waived constitutional challenges to the 1988 conviction during his 1989 sentencing hearing, he had not been "properly allocuted" as a predicate felon in 1989 and thus the waiver was not "knowingly and intelligently" made. Id. at 11-14, 27-30. Robinson further argued that he was not made aware at the time of his guilty plea in 1988 that he was pleading to a felony on the gun charge; rather, he thought he was pleading guilty to a "misdemeanor for criminal possession of a weapon in the fourth degree." Id. at 28. The sentencing judge rejected these arguments, stating that

defendant was properly allocuted as a second felony offender on November 14, 1989. I note that case law is clear that no formal [catechism] is mandated; here the record of those proceedings reflects more than the mere concession by the defendant of the existence of a prior felony conviction. Not only was no objection made at the time he was adjudicated a predicate felon, but his counsel specifically represented in the presence of the defendant that counsel had discussed the matter with the defendant and that no constitutional infirmity is alleged satisfies me that substantial compliance of CPL 400.21 was effectuated on November 14, 1989 permitting the defendant to be properly sentenced on that date as a predicate felon. . . . I note also that defendant has failed to seek review of that adjudication by direct appeal or appropriate post judgment motion previously. . . .
I would also note that the plea minutes for the underlying 1988 conviction are before me and I had reviewed them and in my view they reflect a thorough allocution of the defendant regarding a plea on his part to less than the top count for the indictment charging him with criminal possession of a weapon in the third degree . . . And, I am satisfied that he had no misconception about what he was pleading to or the sentence that he was to receive on the conditions upon which that sentence was premised.
Id. at 20-23 (citations omitted); accord id. at 30-31. Page 5

Thereafter, Robinson moved pro se pursuant to New York Criminal Procedure Law ("CPL") § 440.20 to set aside his sentence, claiming that "the sentence imposed, might, as a matter of law, be invalid" and that "the persistent sentence imposed was base, in part, upon a prior felony, which was obtained from a invalid plea bargain, which sentencing therefrom was in violation of plea bargaining restrictions." Notice of Motion to Set Aside Sentence, dated January 11, 1999 ("440 Motion") (reproduced in Resp. Aff. Ex. 8), at 1-2 (errors in original); accord Statement of Law, undated ("440 Law Mem.") (annexed to 440 Motion), at 10-22. Specifically, he argued that his 1988 conviction under SCI #1431 was invalid because he was improperly permitted to waive his right to indictment and plead guilty to SCI #1431 in violation of CPL § 195.10; and because his plea under SCI #1431 was invalid, his plea to Ind. #3765 — which was an integral part of the plea agreement — was likewise invalid. See generally 440 Law Mem. at 10-22. Robinson's position was supported at least in part by some case law in existence in 1988 and by a decision from the New York Court of Appeals rendered after his plea. See People v. Boston, 75 N.Y.2d 585 (1990). In Boston, the Court of Appeals held that the waiver of an indictment and plea to a SCI must occur prior to and not after the filing of an indictment. Id. at 586-89. In his section 440 motion, Robinson also argued that he was denied effective assistance of the trial counsel who represented him during the proceedings in 1988, 1989 and 1997. See 440 Law Mem. at 23-27. The State opposed this motion. See Affirmation in Opposition, dated April 1999 (reproduced in Resp. Aff. Ex. 12).

On August 9, 1999, the trial court denied Robinson's motion to set aside his sentence. See Decision, dated August 9, 1999 ("440 Decision") (reproduced in Resp. Aff. Ex. 18). The court first noted that Robinson may have had "an arguable constitutional challenge [to the 1988 Page 6 plea] at the time of his predicate violent felony adjudication in 1989." Id. at 10. However, citing CPL §§ 400.15(8) and 400.16(2), the court held that "by failing to controvert his predicate felony statement at the time of sentencing in 1989, [Robinson] waived any future challenge to the constitutionality of his 1988 conviction" and was thus estopped from challenging the conviction. Id. at 10-11. The court further held that while Robinson "attempt[ed] to avoid this statutory bar" by alleging ineffective assistance of counsel, the allegations were not "substantiated" and failed to rise to the level of ineffective assistance. Id. at 11-15. Accordingly, Robinson's motion to vacate the sentence based on his adjudication as a persistent violent felony offender was denied.

Robinson moved for leave to appeal the denial of his motion to vacate, see Notice of Motion, dated August 16, 1999 (reproduced in Resp. Aff. Ex. 19), which the State opposed by letter brief. See Letter to Clerk of the Court from Shelly A.R. Chichester, dated August 24, 1999 (reproduced in Resp. Aff. Ex. 20). On September 9, 1999, the Appellate Division denied Robinson's motion for leave to appeal. See Certificate Denying Leave, dated September 9, 1999 (reproduced in Resp. Aff. Ex. 22).

C. The Direct Appeal

In April 1999 — while his section 440 motion was pending — Robinson's counsel submitted a brief on his direct appeal, raising two claims: 1) that the stop leading to Robinson's arrest constituted an unreasonable search and seizure; and 2) that the trial court erroneously denied Robinson's motion for a mistrial because the prosecutor made certain impermissible propensity arguments. See Brief for Defendant-Appellant, dated April 1999 (reproduced in Resp. Aff. Ex. 10), at 14-25. After being granted leave to file a pro se supplemental brief in support of the direct appeal, see Order, dated May 18, 1999 (reproduced in Resp. Aff. Ex. 12), Page 7 Robinson submitted a pro se brief in which he raised two additional issues unrelated to the instant petition. See Supplemental Brief for Defendant-Appellant, dated August 12, 1999 (reproduced in Resp. Aff. Ex. 21), at 11-22.

On July 6, 2000, the Appellate Division upheld the conviction. See People v. Robinson, 271 A.D.2d 17 (1st Dep't 2000). The New York Court of Appeals granted leave to appeal, People v. Robinson, 95 N.Y.2d 968 (2000), and affirmed the conviction on December 18, 2001. People v. Robinson, 97 N.Y.2d 341 (2001).

Robinson does not seek federal habeas relief based on any of the issues raised on his direct appeal.

D. The Instant Habeas Corpus Petition

Robinson filed the instant petition on November 21, 2002, arguing — as he did in his section 440.20 motion — that his 1997 adjudication as a persistent violent felony offender was improper because of a defect in the 1988 plea agreement: namely, that "no defendant may waive his constitutional right to indictment once an indictment has been filed" and thus the "waiver of indictment by a Grand Jury was unconstitutional." See Petition at 9-10. He also argues that "the promise [sic] sentence to two concurrent terms of five years probation violated [CPL § 220.30], which prevents a plea of guilt for two separate indictments under a plea bargain when one of the indictments is charging a class A-felony" and that SCI #1431 was "misleading" and "based upon false statement . . . because the waiver of indictment executed by the petitioner failed to comply with provisions outlined under [CPL §§ 195.10, 195.20]." Id. at 10. Lastly, he argues that he was denied effective assistance of counsel during the 1988 proceedings (when the challenged plea occurred) and during the proceedings in 1989 and 1997 (because counsel failed to remedy Page 8 the previous violation during the sentencing proceedings). Id. at 11-16; accord Memorandum of Law, undated ("Traverse Mem.") (annexed to Traverse), at 1-2, 6-21.


A. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254

28 U.S.C. § 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
It is well settled that errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Rather, to obtain habeas relief the petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See id. at 68.

Under 28 U.S.C. § 2254(d), a federal court must defer to the state court determination of a habeas petitioner's federal claims on the merits. A state court ruling is "on the merits" even if the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) ("Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. (citations omitted). Page 9

Where there has been a ruling on the merits, habeas relief may not be granted unless the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) 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). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent 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 different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 409. Thus, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable" — not whether the application was simply incorrect. Id. at 409-10.

B. The Exhaustion Requirement and Procedural Default

Before a federal court may determine the merits of a habeas corpus claim, a petitioner must first exhaust available state court remedies unless there is either an absence of available state corrective process or circumstances rendering such process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b) (1); see Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc),cert. denied, 464 U.S. 1048 (1984). Exhaustion requires the petitioner to present the same claim raised in the habeas petition to each level of the state courts to which the right to appeal lies. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye, 696 F.2d at 191-92. Page 10

A separate doctrine also limits federal habeas review: if a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default may constitute an adequate and independent ground for the state court decision that will "bar federal habeas review of the federal claim, unless the habeas petitioner can 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 v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). A fundamental miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986).

While procedurally defaulted claims are deemed "exhausted" for habeas purposes, they are not subject to review by the federal court. See, e.g., Bossett, 41 F.3d at 828-29. "[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10. The rule barring federal court review of procedurally defaulted claims rests on the principle of comity and respect for state court judgments. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81 (1977); see also Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000) ("For reasons of comity and federalism, the [adequate and independent] doctrine `bar[s] federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'") (quoting Coleman, 501 U.S. at 729-30); Epps v. Comm'r of Corr. Servs., 13 F.3d 615, 617 (2d Cir.) ("comity and federalism Page 11 concerns and the requirement that States have the first opportunity to correct their own mistakes" preclude federal habeas review of decisions based on adequate and independent state grounds), cert. denied, 511 U.S. 1023 (1994).


Robinson argues that his waiver of indictment pursuant to the plea agreement in 1988 was invalid under New York law and thus his 1988 plea to SCI #1431 and Ind. #3765 was invalid. See, e.g., Traverse Mem. at 1-6. As a result, he argues that it was improper for the 1997 sentencing court to rely on the 1988 conviction. See id.; see also generally Traverse. He further asserts that he was denied effective assistance of counsel at the proceedings in 1988, 1989 and 1997. See, e.g., Traverse Mem. at 1-2, 6-21.

A. Review of the 1988 Plea Agreement Insofar as it Formed the Basis of the 1997 Sentence

Robinson argues that his 1988 guilty plea to SCI #1431 was improper — and thus could not serve to enhance his 1997 sentence — because a post-indictment waiver and plea to a SCI violates both the New York State and Federal Constitutions. See Petition at 9-11. Habeas relief is not available on this ground for two independent reasons, as discussed below.

1. The Rule of Lackawanna County Dist. Attorney v. Coss

In Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001), the Supreme Court considered the claim of a habeas petitioner whose earlier conviction had purportedly been used to enhance his more recent sentence. As is true here, the petitioner in Lackawanna County argued that he had received ineffective assistance of counsel in the earlier proceeding and that the later Page 12 sentence thus could not properly have been based on the earlier conviction. The Supreme Court refused to hear this challenge, however, holding that

once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.
532 U.S. at 403-04 (internal citation omitted); accord Dickens v. Filion, 2003 WL 1621702, at *5 (S.D.N.Y. Mar. 28, 2003); Corso v. Walker, 253 F. Supp.2d 454, 457 (E.D.N.Y. 2003). The Court's majority recognized an exception to this "general" rule only in cases in which "the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment." 532 U.S. at 404. Three Justices also recognized the possibility of two additional exceptions: 1) where a state court, "without justification, refuse[d] to rule on a constitutional claim that has been properly presented to it," or 2) "after the time for direct or collateral review has expired, a defendant [has] obtain[ed] compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner." Id. at 405 (plurality opinion) (citations omitted).

Here, Robinson makes no claim that his 1988 conviction is still open to direct or collateral attack on the grounds he raises. Nor did the state court fail to appoint him counsel in violation of the Sixth Amendment — the only exception recognized by the majority in Lackawanna County. Thus, Lackawanna County bars Robinson from making any attack on the use of the 1988 conviction to enhance his 1997 sentence. In other words, Robinson "may not Page 13 challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." See id. at 404.*fn1

2. Procedural Bar under CPL § 400.15

Respondent argues that, in addition to being precluded from challenging the 1988 plea under the rule of Lackawanna County, Robinson is procedurally barred from challenging the conviction under CPL § 400.15. See Memorandum of Law, undated (annexed to Resp. Aff), at 5-6. That statute sets forth the procedure a state court must follow to determine whether a defendant is a second violent felony offender. It states in pertinent part:

7. Manner of conducting hearing.

(b) A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate violent felony conviction. The defendant may, at any time during the course of the hearing hereunder controvert an allegation with respect to such conviction in the statement on the grounds that the conviction was unconstitutionally obtained. Failure to challenge the previous conviction in the manner provided herein constitutes a waiver on the part of the defendant of any allegation of unconstitutionality unless good cause be shown for such failure to make timely challenge.
(c) At the conclusion of the hearing the court must make a finding as to whether or not the defendant has been subjected to a predicate violent felony conviction.
8. Subsequent use of predicate violent felony conviction finding. Where a finding has been entered pursuant to this section, such finding shall be binding upon that defendant in any future proceeding in which the issue may arise.
CPL § 400.15(7), (8) (some emphasis added). Page 14

Robinson failed to challenge his 1988 convictions at the predicate hearing in 1989. Rather, he expressed through counsel at that time that he had read "all the facts contained in [the predicate] statement [and that they were] correct and there [was] no constitutional infirmity in [the 1988] plea." 11/14/89 Sentencing Minutes at 8-9. The trial court in deciding Robinson's section 440 motion held that "by failing to controvert his predicate felony statement at the time of sentencing in 1989, [Robinson] waived any future challenge to the constitutionality of his 1988 convictions for sentence enhancement purposes." 440 Decision at 10 (citing CPL § 400.15(8)).

As noted in section II.B above, federal habeas review is normally foreclosed where a state court has relied on a procedural default as an independent and adequate state ground. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). The trial court's express invocation of a state procedural rule constitutes an "independent" state ground because it does not rely on any rule of federal law. The remaining question is "whether the state ground relied upon is `adequate' to preclude federal habeas review." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).

In making this determination "the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion `lightly or without clear support in state law.'" Id. (citation omitted); accord Lee v. Kemna, 534 U.S. 362, 376, 381 (2002); Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). A procedural bar is "adequate" 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)). Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in Page 15 such circumstances." Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 386-87). The Second Circuit has set forth the following "guideposts" for making this determination:

(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. (citing Lee, 534 U.S. at 381-85).

Application of these considerations to Robinson's case leads to the conclusion that the procedural bar contained in CPL § 440.15 is one that is firmly established and regularly followed. With respect to the first guidepost, Robinson's failure to make a timely challenge to the 1988 conviction at his 1989 sentencing hearing was "actually relied" on by the state court in deciding his section 440 motion. See 440 Decision at 9-11. The second guidepost also fails to help Robinson because New York cases routinely require compliance with CPL § 400.15 to challenge a predicate conviction. See, e.g., People v. Boutte, 304 A.D.2d 307, 308 (1st Dep't 2003) ("Defendant is precluded by statute from contesting the use of his 1985 conviction as a predicate conviction since he had previously been adjudicated a second violent felony offender in 1989 based on that conviction."); People v. Young, 255 A.D.2d 907, 908 (4th Dep't 1998) ("defendant waived any challenge to the constitutionality of [an earlier] conviction, having failed to establish good cause for his failure to challenge it on that basis at his earlier persistent violent felony offender hearing") (citations omitted), aff'd, 94 N.Y.2d 171 (1999); see also People v. Morales, 249 A.D.2d 84 (1st Dep't 1998); People v. Crawford, 204 A.D.2d 203 (1st Dep't 1994); People v. Austin, 148 A.D.2d 542, 542-43 (2d Dep't), aff'd in relevant part, 75 N.Y.2d 723 (1989). Page 16

As for the final guidepost, Robinson does not even argue that he "substantially complied" with CPL § 400.15. Instead, he acknowledges that "no challenge or appeal were made to the unconstitutional plea bargain and sentencing from March/April 1988, other than this present challenge." Traverse at ¶ 4. The instant challenge was not raised until ten years after the 1989 predicate hearing, long after the challenge should have been made.

For these reasons, Robinson's failure to timely challenge his 1988 conviction operates as an adequate state procedural bar to federal habeas review of this claim. See generally Phelps v. McClennan, 1998 WL 470511, at *1 (S.D.N.Y. Aug. 11, 1998) (petitioner procedurally barred from challenging earlier conviction granted preclusive effect by CPL § 400.15(8)). Further supporting this conclusion is the case law holding that a petitioner's failure to challenge an earlier conviction at a predicate hearing pursuant to CPL § 400.21 — applicable to non-violent second felony offenders yet otherwise virtually identical to CPL § 400.15 — likewise operates as a procedural bar precluding federal habeas review. See, e.g., Diaz v. Mantello, 2002 WL 2031615, at *4 (S.D.N.Y. Sept. 4, 2002); Lawlor v. Scully, 1996 WL 641635, at *4 (S.D.N.Y. Oct. 22, 1996).

The existence of a procedural bar does not dispose of the matter because such a bar may be avoided if Robinson can show "cause" for his failure to comply with the state procedural rule. See Harris, 489 U.S. at 262. The only "cause" suggested by Robinson for his failure to comply with the state procedural rule is his argument that counsel was ineffective at the 1997 proceeding. The next section discusses whether Robinson has demonstrated such cause. Page 17

B. Ineffective Assistance of Counsel

The rule of Lackawanna County puts an end to this Court's ability to consider Robinson's argument that he received ineffective assistance of counsel at the 1988 and 1989 proceedings. But it does not appear to bar consideration of whether Robinson received ineffective assistance during the 1997 proceeding. Also, counsel's performance at the 1997 proceeding is relevant to the respondent's alternative argument that Robinson's claim is procedurally barred inasmuch as Robinson is relying on such ineffectiveness to demonstrate that he should be excused for failing to comply with CPL § 440.15.

1. Applicable Law

To demonstrate constitutional ineffective assistance of counsel, a petitioner must show that (1) counsel's performance was so "deficient" as to fall "below an objective standard of reasonableness;" and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Sellan, 261 F.3d at 315. The Court need not conduct this analysis in any particular order and if either prong is not satisfied the other need not be considered. See Strickland, 466 U.S. at 697; see also Jameson v. Coughlin, 22 F.3d 427, 430 (2d Cir. 1994), cert. denied, 513 U.S. 888 (1994).

"In gauging the deficiency, the court must be `highly deferential,' must `consider[] all the circumstances,' must make `every effort . . . to eliminate the distorting effects of hindsight,' and must operate with a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 688-89); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. Page 18 2002) (there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance") (citations and quotation marks omitted). In addition, the reviewing court must "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.

2. Standard of Review

Robinson argues that his counsel at the 1997 sentencing hearing, during which he was adjudicated a persistent violent felony offender,

fail[ed] to conduct any independent research of the facts and laws surrounding the plea entered under the [1988] plea bargain agreement, the attorney was unable to provide the court with legal reasons as to how the violation might have occurred, or why the prior felony should not be considered for sentencing purposes . . . Counsel's performance was deficient in his failure to properly prepare for the proceeding regarding the persistent violent felony offender status, there was no meaningful investigation done and, this resulted in petitioner receiving a greater sentence and serves to demonstrate prejudice.
Petition at 15. In other words, Robinson argues that his counsel in 1997 was ineffective because he "fail[ed] to challenge a potential issue surrounding the March 1988 plea bargain conviction that would have prevented petitioner from being adjudicated as a persistent felony offender." Id. at 15-16. In rejecting this claim, the state court held that "[c]ounsel's failure to raise the Boston issue does not render him ineffective." 440 Decision at 14 (citations omitted). Because this constitutes a determination "on the merits," 28 U.S.C. § 2254(d), the question for this federal habeas court is whether this determination was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. — in this case the Strickland standard. As was stated in Bell v. Cone, 535 U.S. 685 (2002): Page 19

For respondent to succeed, . . . he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d) (1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [State court] applied Strickland to the facts of his case in an objectively unreasonable manner.
Id. at 698-99 (internal citation omitted); accord Woodford v. Visciotti, 537 U.S. 19, 26-27 (2002).

3. Whether 1997 Counsel was Constitutionally Ineffective

Here, it was not objectively unreasonable for the State court to conclude that Robinson's 1997 counsel had not been constitutionally ineffective. In 1989, Robinson had been adjudicated a second violent felony offender under CPL § 400.15. Subsection 8 provides that this finding was "binding upon [the] defendant in any future proceeding in which the issue may arise." Thus on its face, the provision allowed no room for 1997 counsel to seek any different determination.

a. Alleged Invalidity of the Earlier Violent Felony Adjudications. Robinson appears to argue that there was "good cause" under CPL § 400.15(7) (b) for his failure to raise the unconstitutionality of his 1988 or 1989 convictions and thus his 1997 counsel should have brought the issue up at the 1997 sentencing under this exception. The problem with this argument is that the "good cause" exception applies only to convictions that were obtained in violation of "the constitution of the United States." CPL § 400.15(7) (b). Robinson's challenge to his 1988 conviction is based principally on a state law rule that barred the filing of a SCI subsequent to the filing of an indictment. See People v. Boston, 75 N.Y.2d at 585. There is no corresponding federal constitutional right with respect to a state plea, however. Thus, the failure to raise this issue could not have constituted "good cause" under CPL § 400.15(7) (b). Page 20

To the extent Robinson argues that his 1988 plea violated the United States Constitution (and thus not merely State law) because it was itself the product of ineffective assistance of counsel, that claim is frivolous. Indeed, had counsel in 1988 attempted to bar Robinson from taking the plea on the ground that the SCI had not been properly filed, such an act itself would have constituted ineffective assistance of counsel. This is because — regardless of whether the plea violated state law — the plea was obviously highly favorable to Robinson. Under the terms of the plea, Robinson received only a probationary sentence. The State trial court also recognized this fact when it noted that "defendant was afforded a favorable disposition and did not receive any jail time despite having pled guilty to two felonies." 440 Decision at 12 n. 3. Robinson has not even articulated an argument why his 1988 counsel's performance in either counseling him to take that plea or failing to prevent it was so deficient as to fall outside an objective standard of reasonableness. Because there was no basis for arguing ineffective assistance of counsel as a result of the 1988 plea, counsel was not ineffective in 1989 or in 1997 for failing to raise the argument.

b. Alleged Invalidity of the 1988 Allocution. Robinson also appears to argue that counsel was ineffective in 1988 because the plea was not properly explained. Robinson points to the following exchange which took place during the plea allocution:

The Court: All right. Those are the conditions of my promise.
The Defendant: Excuse me, what was that he just said?
[Defense Counsel]: He dismissed — he said that the pleas are acceptable to him and he dismissed the drug indictment. He dismissed that completely. We did not take a plea on that. No problem?
The Defendant: No problem. Page 21

3/4/88 Plea Minutes at 12. Robinson argues that "[t]his statement by counsel was false and misleading, since the fact is that the petitioner did enter a plea to the drug indictment, under [SCI #1431]" and suggests that this statement further evinces ineffective assistance of counsel. See Petition at 12; accord Traverse Mem. at 6-8.

This argument cannot form the basis of any relief here for two reasons. First, this argument was raised by counsel at the 1997 sentencing hearing. See 5/28/97 Sentencing Minutes at 11-14. Thus, there is no basis for arguing that 1997 counsel was ineffective for failing to raise the argument.

In any event, the argument would fail on the merits even if it could be considered now. Robinson was informed at the beginning of the 1988 plea allocution that Ind. #6337 would be dismissed once the SCI was filed in its place. 3/4/88 Plea Minutes at 2-3. He was further told that he was pleading guilty both to the gun charge under Ind. #3765 and to the drug charge in the SCI. Id. at 2-5. Thus, far from being false, the challenged statement correctly informed Robinson that Ind. #6337 had in fact been dismissed — in exchange for the lesser charge under SCI #1431 — as part of the plea agreement. Contrary to his contention, Robinson did not in fact "enter a plea to the drug indictment." Petition at 12.

In sum, 1997 counsel had no basis for arguing that Robinson had received ineffective assistance in 1988 or, a fortiori, in 1989. The net result is that 1997 counsel could not have been ineffective. Cf. United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance.") (citation omitted), cert. denied, 531 U.S. 811 (2000). This conclusion is supported by the decision in Seifert v. Keane, 74 F. Supp.2d 199 (E.D.N.Y. 1999), aff'd, 205 F.3d 1324 (2d Cir. 2000). In Seifert, the petitioner Page 22 argued that he had received ineffective assistance in 1987 — a claim the court rejected earlier in its opinion — and that counsel rendered ineffective assistance in 1991 by failing to argue that counsel in 1987 was ineffective. Id. at 212. The district court observed that

courts may decline to apply § 400.15(8) if a petitioner or defendant shows good cause for failing to controvert the government's predicate violent felony statement at the earlier determination. Petitioner now asserts that the ineffective assistance rendered by counsel at his 1987 conviction constitutes good cause to overcome § 400.15(8), and that his 1991 counsel rendered ineffective assistance in failing to so argue. However, since petitioner's claim is premised upon his faulty contention that his 1987 counsel rendered ineffective assistance — a contention rejected by this court for the reasons set forth above — petitioner's claim must fail. As a result, the court agrees with the state courts in finding that petitioner's 1991 counsel did not render ineffective assistance by declining to attack a predicate felony determination afforded preclusive effect by [CPL] § 400.15(8).
Id. at 212-13 (internal citations omitted).


For the foregoing reasons, Robinson's petition should be denied.

Notice of Procedure for Filing of Objections to this Report and Recommendation

Pursuant to 28 U.S.C. § 636(b) (1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Berman. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985). Page 23

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