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Rohit v. Conway

May 24, 2007


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


The petitioner has consented, pursuant to 28 U.S.C. § 636(c), to my jurisdiction for purposes of deciding this habeas petition. (See Docket entry no. 7.) In his application, the petitioner contests the validity of a guilty plea, and also raises more traditional claims as to ineffective assistance of counsel and other trial-based issues, including prosecutorial misconduct and evidentiary rulings. For the reasons discussed below, the petition is DENIED in its entirety.


At issue in the petition are two separate criminal matters both of which involved burglaries and resulted in the petitioner's present confinement by state authorities. The earlier matter led to a guilty plea, the latter, a trial and conviction. To the extent they are relevant in resolving the instant petition, the court sets forth the following facts, adduced from transcripts of the petitioner's trial and related proceedings, and from various submissions filed by the petitioner and respondent during state court proceedings and in this court.

I. Arrest, Trial and Other Relevant Proceedings

In December 1998, the petitioner was arrested and, among other offenses, was charged with attempted burglary after having been found in possession of property stolen from an unoccupied apartment near the petitioner's residence. The petitioner subsequently pleaded guilty to third degree attempted burglary in connection with that incident. During the plea proceeding, the court explained to the petitioner that his guilty plea would result in a waiver of his right to prosecution by a grand jury indictment. In response to questioning from the court, the petitioner acknowledged that he understood the implications of the waiver, including its preclusive effect on proceeding by grand jury indictment, and that he signed the waiver form freely and voluntarily after having spoken to his attorney. The court then released the petitioner pending sentencing.

While awaiting sentencing for the December 1998 burglary, the petitioner was arrested in January 1999, again on a burglary-related offense.*fn2 At a pretrial proceeding after the arrest, the petitioner sought to withdraw his guilty plea for the earlier burglary offense, arguing that he did not, as part of the plea proceeding, knowingly, intelligently, or voluntarily waive his right to be prosecuted by a grand jury indictment. The petitioner suggested that his plea was the product of fear and intimidation and asserted, for the first time, that he could not read or write. The court, in a written decision, denied the petitioner's motion to withdraw his guilty plea.

In October 1999, the petitioner was sentenced in connection with his guilty plea for the December 1998 burglary to an indefinite prison term of two to four years. The petitioner proceeded to trial on the January 1999 burglary offense, and in June 2000 was convicted of second degree burglary, third degree grand larceny, third degree criminal possession of stolen property, and fourth degree criminal mischief. For those convictions, the state court judge sentenced the petitioner to various concurrent terms, the longest being 10 years.

II. Post Conviction Proceedings

In January 2000, the petitioner sought and received leave to appeal the judgment entered against him as a result of his guilty plea for the December 1998 burglary. In his appeal, the petitioner contested the judge's denial of his motion to withdraw the guilty plea, arguing again that he did not knowingly, intelligently, and voluntarily waive his right to be prosecuted by a grand jury indictment as he could not read the waiver he signed in court. The Second Department, in a written decision, rejected the petitioner's argument, finding the "waiver of indictment . . . knowingly, intelligently, and voluntarily executed." People v. Rohit, 718 N.Y.S.2d 879 (App. Div. 2001). The Court of Appeals denied leave to appeal. People v. Rohit, 96 N.Y.2d 762 (2002).

In December 2001, the petitioner appealed his conviction on the January 1999 burglary to the Appellate Division, raising a claim of prosecutorial misconduct and contesting various evidentiary rulings by the trial court. As to the prosecutorial misconduct claim, the petitioner argued that the prosecutor improperly (1) disclosed that the petitioner was represented by his third lawyer; (2) stated that the grand jury heard evidence before indicting the petitioner; (3) laughed and slammed papers down during counsel's cross-examination; and (4) vouched for witnesses by arguing during summation that they lacked a motive to lie. The evidentiary objections were made in the context of a due process argument and concerned the admission of prior crimes and hearsay evidence. In a pro se supplemental brief, the petitioner raised an additional ineffective assistance claim based on his attorney's failure to file various pretrial motions. In October 2002, the Appellate Division unanimously affirmed the conviction, People v. Singh, 748 N.Y.S.2d 769 (App. Div. 2002), and the Court of Appeals denied leave to appeal, People v. Singh, 99 N.Y.2d 563 (2002).

III. The Petitioner's Claims

In April 2003, the petitioner filed the instant petition, raising essentially the same claims that had been rejected by the state appellate courts. First, the petitioner argues that his guilty plea to the December 1998 burglary offense was invalid because he did not knowingly, intelligently and voluntarily waive his right to a grand jury indictment during the course of the plea proceeding. (Pet. ¶ 11(a).) As to the other four claims, they are identical to those raised on direct appeal by the petitioner contesting his conviction on the 1999 burglary incident and include allegations of prosecutorial misconduct, improper evidentiary rulings on prior crimes and hearsay evidence, and ineffective assistance of counsel. (See id. ¶ 11(b)-(d).)


I. State Court Exhaustion

The exhaustion requirement prohibits the granting of an application for a writ of habeas corpus unless the petitioner has exhausted the remedies available in the courts of the state in which he or she was convicted, see 28 U.S.C § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971); Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981), and extends to every federal habeas claim alleged by the petitioner, see Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). In other words, the existence of any unexhausted claim in a habeas petition -- a so-called "mixed petition" -- requires dismissal of the entire petition. Rose, 455 U.S. at 522.

Proper exhaustion "requires . . . that state prisoners give state courts a fair opportunity to act on their claims." O'Sullivan, 526 U.S. at 844 (citing 28 U.S.C. § 2254(c)) (additional citations omitted). Thus, a petitioner is not deemed to have exhausted the available state remedies if he or she has the right under state law to raise, by any procedure, the question presented. 28 U.S.C. § 2254(c). This has been interpreted by the Supreme Court to require the invocation of "one complete round of the State's established appellate review process," including an application to "a state court of last resort when that court has discretionary control over its docket." O'Sullivan, 526 U.S. at 843, 845.

Moreover, the exhaustion requirement is not satisfied until the petitioner has "fairly presented" the federal claim to the highest court of the state. See Picard, 404 U.S. at 275 ("We emphasize that [for purposes of exhaustion] the federal claim must be fairly presented to the state courts."). A claim may be "fairly presented" to the state courts if "the legal basis of the claim made in state court was the 'substantial equivalent' of that of the habeas claim." Daye, 696 F.2d at 192 (quoting Picard, 404 U.S. at 278) (additional citations omitted). "This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id.

The court believes the petitioner's claims are properly exhausted in accordance with the above framework. In any event, the court need not decide the exhaustion issue since it ultimately concludes that the instant petition lacks merit and should be dismissed on that basis.

Under 28 U.S.C. § 2254(b)(2), district courts are authorized to address the merits of a habeas application, despite non-exhaustion, if the inquiry results in a denial of the petition. The Second Circuit has not yet established a standard for triggering § 2254(b)(2) review. See Brown v. State of New York, 374 F. Supp. 2d 314, 318 (W.D.N.Y. 2005). The majority of courts in this circuit have followed a "patently frivolous" standard, id. (citing Naranjo v. Filion, No. 02-CIV-5449, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16, 2003) (Peck, Mag. J.) (collecting cases)) (footnote omitted), while a minority have exercised § 2254(b)(2) discretionary review when " ' it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,' " see Hernandez v. Lord, No. 00-CIV-2306, 2000 WL 1010975, at *4 n.8 (S.D.N.Y. Jul. 21, 2000) (Peck, Mag. J.) (collecting and analyzing cases).

Since the grounds for which the petitioner seeks habeas relief fail either standard, as they are both patently frivolous and entirely meritless, the court will proceed to address the petition on its merits.

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254, requires that federal courts "entertain" applications for habeas relief "only on the ground that [a state prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The primary significance of AEDPA resides in its mandate that federal courts apply a deferential standard of review for habeas claims that have been adjudicated on the merits in state courts. See 28 U.S.C. § 2254(d); see also Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.' ") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001)) (additional citation omitted).

Under this narrow scope of review, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was adjudicated on the merits in State court only if it concludes that the adjudication of the claim "resulted in a decision that was [1] contrary to, or involved an unreasonable application of, clearly established Federal law . . . or [2] resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Accord Rosa v. McCray, 396 F.3d 210, 219 (2d Cir. 2005); Castro v. Lewis, 03-CV-5480, 2004 WL 2418319, at *2 (E.D.N.Y. Oct. 29, 2004) (Gleeson, J.) ("The Antiterrorism and Effective Death Penalty Act . . . has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits.") (citation omitted). "A state court adjudicates a claim 'on the merits' for purposes of ยง 2254(d) when it '(1) disposes of the claim on the merits, and (2) ...

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