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Provencher v. McKoy

January 22, 2010


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner Sean Provencher, a state prisoner proceeding pro se, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Provencher is currently in the custody of the New York Department of Correctional Services, incarcerated at the Hudson Correctional Facility. Respondent has answered, and Provencher has replied.


Following the entry of a guilty plea on February 1, 2006, Provencher was convicted in the Albany County Court of one count of Attempted Criminal Possession of Stolen Property in the Third Degree (N.Y. Penal Law §§ 110/165.50). Pursuant to his guilty plea, on April 6, 2006, the Albany County Court sentenced Provencher to an indeterminate prison term of one to three years. On April 5, 2006, Provencher entered a guilty plea in the Brunswick Justice Court to one count of Petit Larceny (N.Y. Penal Law § 155.25) arising out of the theft in Rensselaer County of the same vehicle he was attempting to possess in Albany County. Provencher did not appeal from the convictions. On October 27, 2006, Provencher, appearing pro se, filed a motion to vacate the conviction and sentence under N.Y. Criminal Procedure Law § 440.10 in the New York Supreme Court, Albany County, which denied the motion in a reasoned decision.*fn2 The Appellate Division, Third Department denied leave to appeal on February 16, 2007.*fn3 Provencher, appearing through counsel, then filed a motion to set aside the sentence under N.Y. Criminal Procedure Law § 440.20 in the New York Supreme Court, Albany County, on June 26, 2007, which denied the motion in a reasoned decision on August 8, 2007.*fn4 Provencher did not seek leave from the Appellate Division to appeal the decision of the Albany County Supreme Court. Provencher timely filed his petition for relief in this Court on June 14, 2007.


Provencher raises four grounds for relief in his amended petition: (1) his conviction was obtained by a coerced plea; (2) the prosecution failed to disclose favorable information; (3) his conviction in both Albany and Rensselaer Counties constituted a double jeopardy violation; and (4) he was improperly indicted by the grand jury.*fn5 Respondent contends that all of Provencher's claims are unexhausted and procedurally barred. Respondent raises no other affirmative defense.*fn6


Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn7 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn8 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn9 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn10 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn11 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn14

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn15 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn16

Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn17 In so doing, because it is not clear that it did not so do, the Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn18 This Court gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn19

To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn20 A federal court must accept that state courts correctly applied state laws.*fn21 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn22 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn23


Because Provencher was convicted upon a guilty plea, this Court must first examine the effect of the guilty plea. With respect to guilty pleas the Supreme Court has held:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the ...

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