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Reeb v. Woods

November 2, 2010

GARY REEB, PETITIONER,
v.
R.K. WOODS, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Background

By a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254,*fn1 petitioner pro se Gary Reeb ("Reeb" or "petitioner") challenges the constitutionality of his state custody pursuant to a judgment of conviction, following a guilty plea, to one count of criminal sale of a controlled substance in the third degree. Reeb was sentenced, as promised during his plea colloquy, to an indeterminate term of 6 to 12 years. As part of the plea agreement, Reeb agreed to waive his appellate rights.

On direct appeal to the Appellate Division, Fourth Department, of New York State Supreme Court, Reeb argued that his sentence was unduly harsh and excessive and should be modified in the interests of justice. The Fourth Department rejected that argument and unanimously affirmed his conviction. Leave to appeal to the New York Court of Appeals was denied. People v. Reeb, 28 A.D.3d 1188 (App. Div. 4th Dept. 2006), lv. denied, 7 N.Y.3d 793 (N.Y. 2006). Petitioner's leave application presented only the question of whether his waiver of appellate rights was valid, which had not been contested on appeal to the intermediate appellate court (the Fourth Department).

Reeb subsequently brought a motion to set aside his sentence as illegal pursuant to New York Criminal Procedure Law ("C.P.L.") 440.20, in which he asserted the following grounds: (1) the "prosecutor failed to inform [sic] the court of a more lenient sentence"; 2) the "judge brought up a conviction in SF [sic] and stated the victim was under the age of 14 yrs old when she was 24 yrs old"; (3) the "prosecutor brought up a 30 yr old drug conviction"; (4) the "judge was biased throughout the entire case and gave a harsh sentence"; 5) "[he] was arrested for a B-felony and never given a lesser felony plea"; 6) the "sentencing court disregarded [his] right to allocution [sic]"; 7) "[his] sentence as a 2nd felony offender was a violation of [his] constitutional rights as last [sic] conviction wasn't the same type of crime"; 8) "[his] lawyer did not represent [him] effectively at trial or throughout the case . . . ." The trial court denied the motion in accordance with the express terms of C.P.L. § 440.20, finding that petitioner's arguments patently failed to establish that his sentence was illegal, invalid or otherwise unauthorized by law. Petitioner attempted to file an application for leave to appeal from the denial, but his application was rejected and petitioner did not file any further applications seeking leave to appeal.

In his petition, Reeb asserts four grounds for habeas relief. Respondent argues that the claims are either unexhausted and procedurally defaulted, or not cognizable because they do not present a federal constitutional question. For the reasons that follow, the Court agrees with respondent that Reeb's petition should be dismissed.

II. Discussion

A. Ground One: Failure of the State Courts to Apply an Amendment to a State Sentencing Law that would have Reduced the Degree of Felony to which he Pleaded Guilty

In support of Ground One, Reeb submits the following allegations: "Arrested for a B-felony sentenced to a B felony and pleaded out for lighter sentence. I never got under a new amended law it states if arrested for any type of felony and bypass trial defendant is entitled to a lesser degree felony. I was never given a lesser charge for my plea that was broke [sic] from 4 1/2 to 9 or any other action." Petition, ¶22(A) (Docket No. 1). Reeb does not specify the state law in question here. Most important, he has not cited any federal constitutional provision or Supreme Court precedent that purportedly was violated. A federal habeas court does not sit to correct errors of state law only; rather, a habeas court's review is limited to determining whether the proceedings in state court amount to a violation of federal constitutional rights. E.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a). The allegations in Ground One, to the extent that they can be deciphered, assert, at most, a violation of an unidentified state law. Accordingly, Ground One must be dismissed because it does not present a federal constitutional question amenable to habeas review.

B. Ground Two: Denial of State Statutory Right to Appear Before the Grand Jury

In support of Ground Two, Reeb states, "I was never allowed to be present at my grand jury 190.25 [sic] according to [C.P.L. §] 190.25 it states I should be allowed to be called as my own defense and never was asked. Constitutional rights violated." Petition, ¶22(B) (Docket No. 1).

This claim is not "cognizable on federal habeas review because a defendant's right to testify before the grand jury is not a federal constitutional right; rather, it is a statutorily created right in New York." Lucius v. Filion, 431 F. Supp.2d 343, 346 (W.D.N.Y. 2006) (Bianchini, M.J.) (citing N.Y. CRIM. PROC. LAW § 190.50(5)(a) ("When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent."). As the New York Court of Appeals has explained, a "defendant's right to appear as a witness before the Grand Jury, in contrast to his Sixth Amendment constitutional right to submit evidence on his own behalf at trial, is derived exclusively from statute[.]" People v. Smith, 87 N.Y.2d 715, 724, 642 N.Y.S.2d 568, 665 N.E.2d 138 (N.Y.1996) (citing N.Y. CRIM. PROC. LAW § 190.50(5)); see also id. (noting that "defendants enjoyed no legal right to appear before the Grand Jury until the Legislature authorized it in 1940[.]") (citing Preiser, PRACTICE COMMENTARIES, MCKINNEY'S CONS.LAWS OF N.Y., Book 11A, N.Y. CRIM. PROC. LAW § 190.50, at 284; L. 1940, ch. 643).

Moreover, Reeb has not indicated what he would have said to the grand jury to prevent that body from indicting him for drug-related offense. Thus, he has not shown how he was prejudiced by not appearing before the grand jury. See Hutchings v. Herbert, 260 F. Supp.2d 571, 578 & n. 2 (W.D.N.Y.2003) (Larimer, D.J.) (By failing to show "what he would have told the grand jury that would have prevented his indictment," petitioner "failed to demonstrate any prejudice from the alleged failure of his attorney to ensure an opportunity for him to testify before the grand jury.") (citations omitted).

Indeed, given Reeb's extensive criminal history, it would have been a sound tactical choice on trial counsel's part to recommend that Reeb not testify in the grand jury since doing so would expose him to cross-examination about prior criminal misconduct. New York's legislature has "expressly provided that the statutory right is conditioned upon the defendant's willingness to waive the privilege against self-incrimination and subject himself to cross-examination by the District Attorney[.]" People v. Smith, 87 N.Y.2d 715, 724, 642 N.Y.S.2d 568, 665 N.E.2d 138 (N.Y.1996) (dissenting opn.) (citing N.Y. CRIM. PROC. LAW ยงยง 190.50(5)(b); 190.45(4); People v. Evans, 79 N.Y.2d at 413-14, 583 N.Y.S.2d 358, 592 N.E.2d 1362; People v. Corrigan, 80 N.Y.2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723 (N.Y.1992)). Notably, a defendant who agrees to testify in the grand jury cannot limit the scope of cross-examination except upon ...


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