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Thomas v. Conway

August 26, 2010

CLOVERIOUS THOMAS, PETITIONER,
v.
JAMES T. CONWAY RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Cloverious Thomas ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered April 8, 2004, in New York State, Supreme Court, Monroe County (Hon. Francis A. Affronti), convicting him, upon a plea of guilty, of two counts of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law ("Penal Law") § 220.21[1]), three counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), two counts of Criminally Using Drug Paraphernalia in the Second Degree (Penal Law § 220.50[2]), Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09[1]), Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), two counts of Unlawful Possession of Marihuana (Penal Law § 221.05), and two counts of Endangering the Welfare of a Child (Penal Law § 260.10[1]).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

Petitioner was arraigned in Supreme Court, Monroe County, on August 12, 2003 on a thirteen-count indictment charging him with the aforementioned crimes. Some seven months later, on March 19, 2004, rather than proceeding with a scheduled suppression hearing (and ultimately to trial), and with the understanding that he would receive a sentence of fifteen years to life on two counts of the indictment and lesser concurrent sentences on the remaining eleven counts of the indictment, Petitioner pleaded guilty.

In his colloquy, Petitioner admitted that he sold a half ounce of cocaine from an apartment that he rented in the City of Rochester, which apartment contained 26.5 ounces of cocaine in a safe, and an additional 4.3 ounces of cocaine on the dining room table. Plea Mins. [P.M.] 9-15.

On April 8, 2004, after being adjudicated a second felony offender, Petitioner, citing his belief that at the time he entered his plea he "had like less than 30 minutes to decide," stated that he wished he had longer to consider the plea offer and that he now wished to withdraw his guilty plea. The court asked Petitioner if he had anything further to add, to which he indicated he did not.

The court then imposed the agreed-upon sentence. Sentencing Mins. [S.M.] 9-11.

Petitioner, through counsel, appealed his judgment of conviction on the following grounds: (1) a Fourth Amendment violation; and (2) involuntary guilty plea. See Appellant's Br., Points I-II (Resp't Ex. B). In a pro se supplemental brief, Petitioner raised three additional claims. See Appellant's Pro Se Supplemental Br., Points 1-3 (Resp't Ex. D). The Appellate Division, Fourth Department reviewed all five of Petitioner's claims, and unanimously affirmed his judgment of conviction on April 20, 2007. People v. Thomas, 39 A.D.3d 1197 (4th Dept. 2007). Appellate counsel submitted a leave application to the New York Court of Appeals, requesting review of the two issues he raised on direct appeal. See Pet'r Leave Application dated 05/04/07 (Resp't F). In a pro se supplemental leave application, Petitioner requested review of two of the three claims he raised in his pro se supplemental brief. See Pet'r Pro Se Supplemental Leave Application (Resp't Ex. G). The Court of Appeals denied leave to appeal on July 17, 2007. People v. Thomas, 9 N.Y.3d 869 (2007).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) involuntary guilty plea; (2) a Fourth Amendment violation; and (3) ineffective assistance of appellate counsel.*fn1 Pet. ¶ 22, Grounds One and Three*fn2 (Dkt. #1).III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...


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