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Clendinen v. Unger

August 22, 2006


The opinion of the court was delivered by: P. Kevin Castel, District Judge


Roy Clendinen, an inmate in the custody of the New York Department of Correctional Services, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has moved to stay all proceedings related to this petition in order to allow him to exhaust his remedies in state court. For the reasons set forth below, petitioner's motion for a stay is denied. This Court has considered the petition on its merits and it, too, is denied.

Background and Procedural History

Petitioner, after being arrested in connection with an incident occurring on March 10, 2001, initially pled not guilty to charges of Robbery in the Second Degree, Robbery in the Third Degree, Grand Larceny in the Fourth Degree, and Criminal Possession of Stolen Property in the Fifth Degree. Petitioner's trial on these charges commenced on May 15, 2002 in the Supreme Court of the State of New York, Bronx County (Donnino, J.). On the second day of trial, May 16, after negotiations between the prosecution and the defense, petitioner agreed to plead guilty to the Third Degree Robbery count, for an agreed sentence of three to six years imprisonment. After conducting a plea allocution in which the court personally addressed petitioner, the trial court accepted petitioner's guilty plea, and promised to impose the agreed-upon sentence.

On June 17, 2002, petitioner appeared for sentencing. When he appeared, petitioner submitted to the court a pro se motion to withdraw his guilty plea. Petitioner's counsel handed it up to the court and handed a copy to the prosecution, describing the nature of the motion, but otherwise refraining from comment. The court, after recessing to review petitioner's motion papers, denied the motion, and stated on the record its intent to issue a written order explaining the bases for the denial. After the motion had been orally denied, but prior to the trial court's imposition of sentence, petitioner's trial counsel indicated to the court that counsel had reviewed the presentence report prepared by the probation authorities, and that the report indicated that petitioner had admitted his guilt to the probation department. The court then sentenced petitioner, as a second felony offender, to the agreed-upon sentence of an indeterminate term of imprisonment of three to six years.

On July 8, 2002, the trial court issued its written order explaining its denial of petitioner's motion to withdraw his guilty plea. The court noted that, on the day of sentencing, it reviewed petitioner's motion papers and found them "meritless on their face." (July 8 Order at 3) The court held that petitioner's guilty plea was "knowingly, voluntarily, and intelligently entered," and that the allegations in petitioner's motion papers that his counsel had informed him that, if he did not plead guilty, the court had expressed its intention to impose a sentence of 25 years to life, were simply not credible. The court also noted that, in light of the mandatory minimum sentence faced by petitioner on the charges as originally filed --16 years to life -- and the relatively favorable plea bargain offered, there was no reason to question the effectiveness of petitioner's counsel in suggesting that petitioner accept the plea offer. (Id. at 4-6) Petitioner appealed his conviction, on the grounds that his trial counsel was constitutionally ineffective in connection with petitioner's pro se motion to withdraw his guilty plea and sentencing, and that his sentence should be reduced in the interest of justice. By order dated February 3, 2004, the Appellate Division, First Department, affirmed the trial court. People v. Clendinen, 4 A.D.3d 116 (1st Dep't 2004). The Appellate Division held that the trial court properly exercised its discretion in denying the petitioner's motion to withdraw his guilty plea, and that petitioner's counsel was not ineffective, and was not operating under a conflict of interest when, after petitioner's pro se motion to withdraw his plea had been decided, counsel informed the trial court that petitioner had admitted his guilt to the probation department. Id. at 116-17. The Appellate Division also found no basis for reduction of petitioner's sentence. Id. at 117. Petitioner sought leave to appeal to the New York Court of Appeals, and, by order dated May 26, 2004, leave was denied. 2 N.Y.3d 797 (2004).

On August 15, 2005, petitioner timely filed the instant petition, seeking relief on the ground that he was deprived of his right to the effective assistance of counsel in the state court proceedings. Specifically, Clendinen asserts the following as factual predicates for his claim of ineffective assistance: trial counsel failed to ensure that petitioner was permitted to testify before the grand jury; trial counsel failed to adopt petitioner's pro se motion to dismiss the indictment based on a violation of New York's speedy trial act, and failed to timely turn over a copy of the motion to the prosecution; trial counsel failed to raise a challenge to the trial court's subject matter jurisdiction; trial counsel failed to submit a timely grand jury notice; trial counsel failed to seek Rosario material;*fn1 and trial counsel advised petitioner to plead guilty despite petitioner's protestations of innocence, and then acted as a witness against petitioner when, at petitioner's sentencing, counsel informed the court that petitioner had admitted his guilt to the probation department. Petitioner also asserts that his appellate counsel was ineffective, in that, on appeal, counsel failed to challenge the trial court's subject matter jurisdiction, failed to raise the issue of the ineffectiveness of trial counsel, and failed to raise the issue of the trial court's failure to adjudicate petitioner's pro se speedy trial motion.

On October 13, 2005, petitioner filed a notice of motion seeking, inter alia, a stay of his habeas petition "to allow for exhaustion of certain claims." Respondent opposed petitioner's motion for a stay. On February 22, 2006, I issued a Memorandum and Order, denying petitioner's motion for a stay, without prejudice to renewal. Clendinen v. Unger, 2006 WL 435427 (S.D.N.Y. Feb. 22, 2006). In that opinion, I called the parties' attention to Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Supreme Court held that district courts are permitted to stay "mixed" habeas petitions -- those containing both exhausted and unexhausted claims -- and hold in abeyance proceedings related thereto, pending petitioners' efforts to exhaust the unexhausted claims, only if the court "determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277. The Court further held that, even if a petitioner makes out a showing of good cause, it would be an abuse of discretion to grant a stay where petitioner's claims are "plainly meritless." Id. After Rhines, stay and abeyance should only be employed "if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278.

Because Rhines had been recently decided, and because neither petitioner nor respondent had addressed the issue of good cause for petitioner's failure to exhaust his claims, I gave petitioner until March 31, 2006 to renew his application for a stay, addressing the good cause issue. I also provided respondent the opportunity to respond to any renewed motion, and petitioner the opportunity to reply.

While petitioner's initial stay motion was pending, respondent filed papers opposing the petition on its merits, and petitioner filed a traverse in reply. Thus, the instant petition is fully submitted.


In order to properly exhaust a claim of ineffective assistance of counsel, each factual allegation underlying the claim must have been presented to the state courts. Caballero v. Keane, 42 F.3d 738, 740-41 (2d Cir. 1994); see also Lebron v. Girdich, 2003 WL 22888809 at *4, n.8 (S.D.N.Y. Dec. 5, 2003) (citing Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991)). Such a rule ensures that the state court is given the first opportunity "to examine all of the circumstances and cumulative effect of the [ineffective assistance] claims." Reyes v. Phillips, 2003 WL 42009 at *3 (S.D.N.Y. Jan. 6, 2003) (citations omitted).

Here, petitioner concedes that the only basis for his claim that he was denied the effective assistance of trial counsel which was presented to the state courts on appeal is that related to trial counsel's failure to adopt petitioner's pro se motion to withdraw his guilty plea and counsel's allegedly acting as a witness against petitioner at petitioner's sentencing. The remainder of his ineffective assistance allegations as to trial counsel were not presented on appeal. Thus, his ineffective assistance of trial counsel claim was only partially exhausted.

Petitioner's claim that his appellate counsel was ineffective is entirely unexhausted. New York permits defendants to raise ineffective assistance of appellate counsel by seeking a writ of error coram nobis. Smith v. Duncan, 411 F.3d 340, 347 n.6 (2d Cir. 2005). Petitioner has not done so. Failure to seek such relief in state court renders such a claim unexhausted. See, e.g., Word v. Lord, 2002 WL 31119432 at *3-*4 (S.D.N.Y. Sept. 24, 2002).

As discussed above, after Rhines, staying a habeas petition to allow a petitioner to exhaust unexhausted claims is only appropriate if the petitioner can show "good cause" for failure to exhaust, if the unexhausted claims are potentially meritorious, and if petitioner does not appear to be engaging in dilatory litigation tactics. Rhines, 544 U.S. at 278. The Rhines court did not define "good cause," nor has any Court of Appeals to date supplied a definition. See Brown v. Ebert, 2006 WL 1273830 at * 2 (S.D.N.Y. May 9, 2006) (citation omitted). The Supreme Court did, in a case decided after Rhines, provide an example of what might constitute good cause under the Rhines test: "A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file in federal court [without exhausting his claims in state court]." Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

Petitioner's papers in support of his renewed motion suggest that a stay would be appropriate here because his claims of ineffective assistance of counsel are meritorious and because such a stay "would not substantially harm other parties." Even if true, these assertions do not speak to the issue of good cause. Petitioner also asserts that his failure to exhaust may be attributed to his inability to obtain -- from the Bronx District Attorney's Office pursuant to the Freedom of Information Law ("FOIL"),*fn2 or from his prior counsel -- documents that he believes might aid him in pursuing a motion to vacate his judgment of conviction under New ...

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