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Glen Maclean v. Donna Lewin

July 20, 2011


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


I. Introduction

Glen MacLean ("MacLean" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being held in state custody in violation of his federal constitutional rights. Petitioner was convicted in October 2008, following a jury trial in Livingston County Court on charges of first degree reckless endangerment; driving while intoxicated; and a number of related charges. Petitioner was in custody when he filed his petition but since has been released to parole.

For the reasons that follow, the Court has jurisdiction to hear the petition. However, none of the claims warrant habeas relief, and therefore the petition is dismissed.

II. Factual Background and Procedural History

A. Petitioner's Trial

On October 13, 2005, at around 1:40 a.m., in the City of Rochester, New York State Trooper Brent S. Bernard ("Bernard") observed Petitioner speeding in a red Volvo. T.153-154, 177.*fn1 Bernard estimated that Petitioner was traveling at about 55 miles per hour in a 30 mile per hour zone. T.153, 155, 208. Bernard engaged his marked patrol car's lights and siren, but Petitioner refused to stop. T.154. Petitioner ran several red lights by the exit ramps from Route 390, eventually reaching speeds of about 75 to 80 miles per hour. T.158. As Bernard continued to follow the car, Petitioner drove erratically in the middle of the roadway.

T.160. The roadway was slippery since it had just rained, and there were leaves on the ground. T.212.

Upon entering Livingston County, Petitioner drove at about 90 miles per hour in a 55 mile-per-hour zone. T.162-163. As he neared the end of North Avenue in Avon, two vehicles traveling in the opposite direction were forced to drive off the roadway to prevent a crash. T.163-64. At or near Ross Lane, where Petitioner was traveling about 85 miles per hour in a 30 mile-per-hour zone, a vehicle heading in the opposite direction had to take evasive action to prevent a collision with Petitioner's car. T.164-65.

As Bernard followed Petitioner's car, Village of Avon Police Officer Jason Yasso deployed a spike strip in the vicinity of Rochester Street and East River Road. T.166, 194-95. Petitioner drove over the strip, which deflated the two front tires of the Volvo. T.167.

Undeterred, Petitioner kept driving. He ignored a stop sign and turned onto West Main Street without signaling a turn. His car almost completely entered the opposite lane of traffic before finally coming to a stop. T.167, 196, 214. The car-chase lasted about fifteen or twenty minutes and covered about twenty miles.

T.181, 187, 217.

When Petitioner emerged from his eighteen-year-old red Volvo

stationwagon, Bernard noticed a strong odor of alcohol on his breath. Petitioner's eyes were bloodshot, glassy, and watery, and he was mumbling and uncooperative. T.169, 217. When asked his name, Petitioner responded, "[Y]ou know who[.]" T.182. Petitioner refused to take a pre-screening breath test and blow into a straw to confirm the presence of alcohol in his mouth. He also refused to take a field sobriety test. T.169-70, 217.

After Petitioner was arrested and taken back to the police barracks, he was advised that if he refused to submit to a chemical test to determine his blood-alcohol content, his license would be suspended immediately and revoked, regardless of whether he was found guilty of the charge for which he was being arrested. Petitioner was informed that his refusal to submit to the chemical test could be used against him at trial. T.176. Petitioner stated that he understood. Id. When asked if he was willing to take the chemical test, he stated, "No, I'm not going to sink my own ship."


After the jury returned a verdict convicting Petitioner of the charges described above, he was sentenced on October 24, 2008, to an indeterminate sentence of two and one-third to seven years for first-degree reckless endangerment, to be served concurrently with a determinate sentence of one year for driving while intoxicated. Petitioner received sentences of conditional discharges with respect to the remaining convictions.

Petitioner's conviction was unanimously affirmed on direct appeal. People v. MacLean, 48 A.D.3d 1215 (App. Div. 4th Dept.), leave denied, 10 N.Y.3d 866 (N.Y.), reconsideration denied, 11 N.Y.3d 790 (N.Y. 2008). Petitioner's pro se collateral post-conviction applications in state court were unsuccessful.

B. The Petition Before this Court

In his timely petition, MacLean raises a veritable laundry list of alleged errors involving the trial judge, trial counsel, appellate counsel, and the prosecutor. Respondent argues that many of MacLean's claims are unexhausted, or must be deemed exhausted but procedurally defaulted, or are subject to a procedural default due to the state court's reliance upon an adequate and independent state ground. Respondent argues that, in any event, all of the contentions raised by Petitioner lack merit.

For the reasons that follow, the petition is dismissed.

III. Jurisdiction

A. "In Custody" Requirement of 28 U.S.C. § 2254(a)

On May 3, 2010, while this petition was pending, Petitioner was released on parole. "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are 'in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 491 (1989) (quotation omitted) (citing 28 U.S.C. § 2254(a) (emphasis in original)). Here, MacLean was incarcerated when he filed the instant petition, and he thus meets the "in custody" requirement of the habeas statute. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

B. Mootness

MacLean's release to parole supervision raises the question of whether the petition satisfies Article III, § 2 of the U.S. Constitution, by presenting a live "case or controversy." E.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998). "[W]here the issues presented by a party in an action are no longer 'live,' or the party lacks a legally cognizable interest in the outcome, the federal action is properly dismissed as moot." City of Erie v. Pap's A.M., 529 U.S. 277, 287, (2000). When a term of imprisonment has expired, "some concrete and continuing injury other than the now-ended incarceration or parole-some collateral consequence of the conviction-must exist if the suit is to be maintained." Spencer, 523 U.S. at 7.

In Sibron v. New York, 392 U.S. 40 (1968), the Supreme Court, citing various collateral consequences such as deportation, inability to become a citizen, impeachment evidence in future criminal trials, and increased future sentences, asserted a presumption that collateral consequences attach to criminal convictions post-release. Id. at 54-56; accord Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002). In light of Sibron, the Second Circuit has held that "a habeas petition challenging a criminal conviction is rendered moot by a release from imprisonment only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Perez, 296 F.3d at 125 (internal citations omitted).

At the present time, MacLean continues to bear certain adverse collateral consequences of his criminal conviction in terms of continuing restraints on his liberty, including being subject to supervision by the New York State Division of Parole. Therefore, the Court concludes that the petition is not moot.

IV. Exhaustion

It is well-settled that a federal court may not grant habeas relief on a claim unless that claim was presented in federal constitutional terms to the "highest state court from which a decision can be had." Daye v. Attorney Gen'l of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en banc); 28 U.S.C. § 2254(b)(1). Under the 1996 amendments to the federal habeas statutes, courts now have the authority to deny petitions containing unexhausted claims on the merits. See 28 U.S.C. § 2254(b)(2).

"[I]n habeas corpus cases, 'potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit.'" Boddie v. New York State Division of Parole, 288 F. Supp.2d 431, 439 (S.D.N.Y. 2003) (quoting Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003)). Here, MacLean's claims may be readily disposed of on the merits. Therefore, in the interest of judicial economy, the Court will not discuss the exhaustion and procedural default issues further and will proceed directly to the merits of MacLean's claims.

III. Analysis of the Petition

A. Judicial Misconduct

1. Imposition of Harsh and Excessive Sentence

It is well-established that a sentence of imprisonment that is within the limits of a valid state statute generally does not present a constitutional question cognizable on federal habeas review. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989)). For his conviction of Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), a Class D Felony, Petitioner was eligible to receive an indeterminate sentence, with the maximum term ranging from three to seven years, and the minimum period of imprisonment being one-third the maximum sentence. N.Y. Penal Law § 70.00(2)(d), (3)(b). Petitioner was also eligible for an alternative definite sentence of one year or less, N.Y. Penal Law § 70.00(4), or probation for a period of five years, id., § 65.00(1), (3). For his conviction of Driving While Intoxicated (V.T.L. § 1192(3)), an Unclassified Misdemeanor, Petitioner was eligible to receive a fine of $500 to $1000 or up to a year in jail, or both. N.Y. Vehicle & Traffic Law § 1193 (1)(b)).

Here, the trial court imposed the maximum sentence authorized by law, an indeterminate sentence of two and one-third to seven years for first-degree reckless endangerment to be served concurrently with a year sentence and a $1,000 fine with respect to Petitioner's conviction for driving while intoxicated. Although the sentence was the maximum permissible, it nevertheless was within the ...

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