UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
April 8, 2011
ANGEL M. SEDA , PETITIONER,
JAMES CONWAY, SUPERINTENDENT, ATTICA CORR. FAC., DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.
The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
DECISION AND ORDER
Represented by counsel, Norman P. Effman, Esq., Angel Seda ("Seda" or "Petitioner") has filed a motion for a certificate of appealability (Docket No. 20) with regard to this Court's Decision and Order entered March 7, 2011 (Docket No. 18), denying Seda's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In that Order, I held that because Seda had failed to make a substantial showing of denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), a certificate of appealability would not issue as to any of his claims.
Seda is presently serving a sentence of an indeterminate term of
imprisonment of 22 years to life. He was convicted on charges of
burglary in the second degree (N.Y. Penal Law § 140.25(2)) (one count)
and attempted burglary in the second degree (N.Y. Penal Law §§ 110.00,
140.25(2)) (one count). The separate counts of the indictment involved
accusations of two acts, one a burglary of October 13, 2003, and the
second, an attempted burglary on October 22, 2003. The October 13
thburglary involved the home of a
Buffalo Police Officer, whose tenant was
also a Buffalo Police Officer. He was adjudicated as a persistent
felony offender under New York Penal Law § 70.10, New York's
much-challenged recidivist statute. He was originally sentenced by
former Erie County Supreme Court Justice Ronald Tills *fn1
to consecutive terms of 22 years to life. That sentence
was modified by the Appellate Division, Fourth Department, of New York
State Supreme Court, which ordered the two sentences to run
concurrently instead of consecutively. People
Seda , 35 A.D.3d 1162 (App. Div. 4 th Dept. 2006).
In a timely habeas petition pursuant to 28 U.S.C. § 2254, Seda--proceeding pro se at the time--asserted that trial counsel had provided ineffective assistance by failing to request a suppression hearing, failing to move for severance, failing to challenge the prosecutor's use of peremptory challenges, failing to give an opening statement, erroneously admitting a tape-recording of a 911 call into evidence, giving a deficient summation, and failing to challenge the constitutionality of Seda's predicate felony convictions. Seda also argued that New York's persistent felony offender statute, Penal Law § 70.10, is unconstitutional under the Sixth Amendment as explicated by the Supreme Court in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. Finally, Seda challenged the length of his sentence, arguing that it was harsh and excessive and constituted an abuse of discretion.
During the pendency of the petition, Seda retained Attorney Effman, who submitted a memorandum of law in support of Seda's habeas claims.
This Court considered the substance of all of Seda's arguments for
habeas relief and found the ineffective assistance of trial counsel claim and the
Apprendi claim to be without merit, and the
harsh-and-excessive sentence claim to be not cognizable on federal
habeas review. Finding that Seda had not made a "substantial showing
of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), with
regard to any of the claims, the Court declined to issue a certificate
In his motion for a certificate of appealability (Docket No. 20), Seda argues that trial counsel's failure to challenge the constitutionality of Seda's predicate felony convictions "pertains not only to the argument of ineffective assistance of counsel, but also to the constitutional issue as to the legality of New York's statute in light of Apprendi and its progeny." Affidavit of Norman Effman, Esq. ("Effman Aff."), ¶11 (Docket No. 20). He concedes, "[t]hat issue would appear to have been resolved against Petitioner based on the en banc decision" of the Second Circuit in Portalatin v. Graham , 624 F.3d 69 (2d Cir. 2010), and the United States Supreme Court's denial of certiorari on March 21, 2011. Id. , ¶12 (Docket No. 20). He states that the issue of the constitutionality of New York State's persistent felony offender sentencing statute "is still potentially before the United States Supreme Court in that the Supreme Court has not yet determined an application for review of the New York State Court of Appeals decision in People v. Battles , 16 N Y 3rd [sic] 54." Id. (Docket No. 20).
In Battles , one person was burned to death and three others severely burned as a result of defendant having poured gasoline over several individuals and setting a fire. After a jury trial, defendant was convicted of depraved indifference murder (New York Penal Law ("P.L.") § 125.25(2)), second-degree manslaughter (P.L. § 125.15(1)), and three counts of depraved indifference assault (P.L.§ 120.10(3)). He was sentenced as a persistent felony offender to concurrent sentences of 25 years to life on the depraved indifference murder and manslaughter convictions, to be followed by consecutive terms of 25 years to life on the depraved indifference assault convictions related to Gregory Davis and Wheeler, and a consecutive term of 20 years to life on the depraved indifference assault conviction related to Elliott, for an aggregate sentence of 95 years to life.
Defendant Battles appealed, asserting, among other claims, that
the imposition of consecutive sentences was illegal because the
victims were all burned in a fire that had a single source of
ignition, that is, the crimes shared a common actus reus.
Battles also argued that his sentencing as a persistent
felony offender was unconstitutional under Apprendi v. New
Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), and its progeny, in particular, Cunningham v.
California, 549 U.S. 270 (2007 ) . The
Appellate Division modified the judgment by vacating the conviction of
second-degree manslaughter and the sentence imposed thereon, and
otherwise affirmed. The Appellate Division further held that
defendant's Apprendi claim was unpreserved and
without merit. It rejected, without discussion, defendant's
consecutive sentencing claim as without merit. People v.
Battles , 65 A.D.3d 1161, 886 N.Y.S.2d 170 (App. Div. 2d
On appeal to the New York Court of Appeals, the majority held,
without discussion, that Battles's challenge to the constitutionality
of his sentencing as a persistent felony offender was without merit.
People v. Battles , 16 N.Y.3d 54, 59 (N.Y. 2010)
(citing People v. Quinones, 12 N.Y.3d 116, 879
N.Y.S.2d 1, 906 N.E.2d 1033 (N.Y. 2009); People v. Bell
, 15 N.Y.3d 935, 915 N.Y.S.2d 208, 940 N.E.2d 913 (N.Y. 2010)).
As Attorney Effman points out, Chief Judge Jonathan Lippman wrote a blistering dissent in the Battles cases, arguing that there is no material difference between the California recidivist sentencing statute struck down by the United States Supreme Court in Cunningham v. California , 549 U.S. 270 (2007), and New York's persistent felony offender sentencing statute, Penal Law § 70.10. Judge Lippman noted that the Court of Appeals' rationale for distinguishing Penal Law § 70.10 "has been the focus of extensive federal habeas litigation." Id. (citing Besser v. Walsh , 601 F.3d 163 (2d Cir. 2010) (holding that the Court of Appeals' rationale was unreasonable subsequent to the Supreme Court's decision in Blakely v. Washington , 542 U.S. 296 (2004), and, accordingly, that the decisions in People v. Rivera , 5 N.Y.3d 61 (N.Y. 2005), and Quinones , 12 N.Y.3d 116, misapplied clearly established Supreme Court precedent). As Judge Lippman noted, Besser "was shortlived", for after "en banc reconsideration, it was vacated by the Second Circuit in a divided ruling, Portalatin v. Graham , 624 F.3d 69 (2d Cir. 2010)). Judge Lippman read Portalatin as "hardly plac[ing] a federal imprimatur upon [New York's] Apprendi jurisprudence" given that "[i]t was decided under the extraordinarily deferential review standard applicable in federal habeas proceedings pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 (Pub. L. 104--132, 110 U.S. Stat.1214)). Judge Lippman pointed to the following statement by the Second Circuit majority in Portalatin , which he described as a "remarkable AEDPA caveat":
[W]e decide not whether the state court correctly interpreted the
doctrine of federal law on which the claim is predicated, but rather
whether the state court's interpretation was unreasonable in light of
the holdings of the United States Supreme Court at the time.
Policano v. Herbert , 507 F.3d 111, 115 (2d Cir. 2007)
Portalatin , 624 F.3d at 79.
Judge Lippman opined that the New York Court of Appeals should
take another look at
whether its interpretation of the controlling holdings of the
United States Supreme Court has been correct, and further stated that
he did not believe New York's persistent felony offender sentencing
provisions could "ultimately survive constitutional scrutiny . . . ."
Id. Judge Lippman concluded his dissent with these
There is for Apprendi purposes no material difference between the California DSL [Determinate Sentencing Law] [struck down in Cunningham v. California, 549 U.S. 270 (2007)] and [New York's] persistent felony offender sentencing statutes. Nor is there any significant difference in the reasoning in our cases and that offered by the California Supreme Court . . . . While perhaps through some jurisprudential fluke our sentencing scheme will ultimately be spared the fate of the California DSL, I do not think it prudent to count on it.
Battles , 16 N.Y.3d at 67 (Lippman, C.J., dissenting). None of the other judges joined Judge Lippman's dissent.
Defendant Battles filed a petition for a writ of certiorari with the United States Supreme Court on March 10, 2011, as Seda's habeas counsel points out. On March 21, 2011, however, the United States Supreme Court denied petitions for certiorari in Portalatin v. Graham and the related Second Circuit appeals in which the petitioners challenged the constitutionality of New York's persistent felony offender sentencing law in the context of habeas corpus proceedings under 28 U.S.C. § 2254. Seda argues that since it is possible that the Supreme Court will grant certiorari in Battles' case, the constitutionality of New York's persistent felony offender statute is an open question.
I note that in 2009, the Supreme Court denied certiorari
in a New York State appeal, People v.
Quinones , in which the defendant argued that New York's
persistent felony offender statute was unconstitutional in light of
Cunningham 's explication of
Apprendi . However, there is a subtle difference between
Quinones and Battles . Judge
Lippman did not take any part in the
Quinones decision. Presumably, he would have dissented
as he did in Battles . Although no judges in
Quinones dissented, and although no judge joined Judge
Lippman's pointed and vehement dissent in Battles ,
it nevertheless suggests the possibility the Supreme Court might view
Battles differently and agree to grant
certiorari . If the Supreme Court were to do so, and were
to side with defendant Battles on the unconstitutionality of the
persistent felony offender statute, it raises the question of whether
the Second Circuit might decide to revisit Portalatin
Although there are many contingencies in the above-described scenario, the standard for granting a certificate of appealability under 28 U.S.C. § 2253(c)(2) does not demand that the petitioner show that his appeal will succeed. Miller-El v. Cockrell , 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). As the Supreme Court and Second Circuit have held, "[a] petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell , 537 U.S. at 328; Lucidore v. New York State Div. of Parole , 209 F.3d 107, 112 (2d Cir. 2000) ("[T]he 'substantial showing' requirement for granting a COA is satisfied if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further.") (citing Barefoot v. Estelle , 463 U.S. 880, 893 n. 4 (1983) (discussing certificate of probable cause)). In light of Judge Lippman's dissent in Battles and the pending petition for a writ of certiorari in that case, I conclude that Seda has met the "substantial showing" requirement with regard to his claim that his sentence under New York's persistent felony offender statute was unconstitutional.
Turning to the other claims, Seda's habeas counsel urges "the trial record in this case makes it absolutely clear that trial counsel had little or no knowledge of the persistent felony offender statute and the Draconian impact it would have on sentencing." Effman Aff., ¶15 (Docket No. 20). He argues that "the cumulative effect of trial counsel's errors and/or omissions are objectively unreasonable in light of prevailing professional standards of practice" and even "presuming arguendo that Petitioner may still have been convicted, the failures as they relate to the Persistent Felony Offender statute may very well have impacted on sentencing and, had they not occurred, Petitioner would have received a far more favorable sentence." Id. , ¶16 (Docket No. 20). *fn2
Although Seda asserted in his memorandum of law in support of the petition that "the trial record clearly demonstrates trial counsel's lack of knowledge with New York's persistent felony offender statute" because trial counsel made "no challenge to the prior felony convictions and no arguments with respect to whether or not those convictions were constitutionally obtained[,]" Pet'r Reply Mem. at 5 (Docket No. 16), he did not explain the legal or factual bases on which trial counsel should have challenged the constitutionality of the prior felony convictions. I found that this was fatal to a showing that he was prejudiced by trial counsel's decision in this regard.
In his motion for a certificate of appealability Seda's counsel still has not pointed to any colorable arguments trial counsel could have made in support of an attack on the constitutionality of the predicate felony convictions. Therefore, I am not convinced that a certificate of appealability is warranted on this claim. I adhere to my original ruling with regard to Seda's ineffective assistance claim--he has not made a substantial showing of the denial of a constitutional right with regard to trial counsel's representation. *fn3
Seda, of course, remains free to seek a certificate of
appealability from the Second Circuit Court of Appeals with regard to
the claims as to which this Court has denied a certificate of
appealability. See , e.g. ,
Soto v. United States , 185 F.3d 48, 51 n. 3 (2d
Cir.1999) ("We have previously interpreted 28 U.S.C. § 2253(c)(1) to
allow district judges as well as circuit justices and circuit judges
to issue certificates of appealability.") (citations omitted).
For the foregoing reasons, Seda's motion for a certificate of appealability is granted with respect to his claim that he was sentenced as a persistent felony offender under New York Penal Law § 70.10 in violation of the Supreme Court's law concerning the Sixth Amendment's right to a jury trial, e.g. , Apprendi and Cunningham .
Seda's motion for a certificate of appealability is denied with respect to the remaining claims in the petition.
IT IS SO ORDERED.
Victor E. Bianchini
Rochester, New York