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David Peters v. Superintendent

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


October 19, 2011

DAVID PETERS, PETITIONER,
v.
SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

REPORT AND RECOMMENDATION

Petitioner David Peters, a New York State prison inmate as a result of a 2006 murder conviction entered in Onondaga County Court based upon a guilty plea, has commenced this proceeding pursuant to 28 U.S.C. § 2254 requesting federal habeas intervention. At the heart of Peters' petition is his claim that at the time his plea was entered he suffered from a mental defect and was medicated, and that the plea therefore was not knowing and voluntary. Petitioner also challenges the validity of a waiver of appeal agreed to at the time his plea was entered, resulting in a state appellate court decision declining to review the legal sufficiency of his plea.

In answer to the petition, respondent argues that petitioner's mental defect and medication claims were not presented in the first instance to the state's highest court, and thus are both unexhausted and procedurally barred. Respondent further argues that in any event petitioner's substantive claims lack merit.

Having carefully considered the matter, I conclude that the claims now raised are procedurally forfeited, and in any event lack merit, and therefore recommend that Peters' petition be dismissed.

I. BACKGROUND

In 2006, petitioner and three co-defendants were indicted by an Onondaga County Grand Jury and charged with second degree murder, first degree burglary, attempted robbery in the first degree, and second degree assault. State Court Records (Dkt. No. 9) Exh. C at p. 4. That indictment grew out of an incident on May 31, 2006 when, during the course of a burglary, a female victim was stabbed to death and two other occupants of the subject dwelling were injured. Id.; see also State Court Records (Dkt. No. 9) Exh. D at p. 2.

At a hearing conducted by Onondaga County Court Judge William D. Walsh on August 1, 2006, and attended by the prosecution, the petitioner, his counsel, and his mother, Peters indicated a willingness to plead guilty to a single count of murder in the second degree, in exchange for a promised indeterminate prison sentence of fifteen years to life. State Court Records (Dkt. No. 9) Exh. A at pp. 2-4. A plea allocution ensued, during which the trial court advised the petitioner of his rights and fully explained the consequences of his plea. Id. at pp. 4-8.

During the plea proceedings the trial court specifically inquired whether petitioner suffered from any physical or mental conditions or had consumed any drugs or alcohol that would prevent him from understanding the proceedings; in response, petitioner stated "I got [sic]

mental problems." Id. at p. 5. When asked by the court later during the proceedings to elaborate, petitioner and his counsel both stated that Peters was taking medication to assist him in sleeping but assured the court that he nonetheless had a good understanding of the proceedings, and that his condition did not impair his ability to comprehend them. State Court Records (Dkt. No. 9) Exh. A at pp. 7-8. As part of the plea agreement, in which the court committed itself to imposing a sentence of fifteen years to life imprisonment, Peters promised to waive his right of appeal and to execute a written waiver to that effect, and the consequences of that waiver were explained to him by the trial court. Id. at pp. 10-11. At the close of the allocution petitioner entered a plea of guilty to second degree murder, in violation of New York Penal Law § 125.25 (3). Id. at pp. 12-13.

Peters was sentenced in connection with his conviction on October 23, 2006. State Court Records (Dkt. No. 9) Exh. B. During the sentencing Peters' counsel did not challenge the validity of his plea, although he did make reference to his client's mental condition as a potential mitigating factor to be considered in connection with sentencing. Id. at pp. 2-5. At the close of the sentencing proceedings County Court Judge Walsh imposed the promised sentence of between fifteen years and life imprisonment, and required the defendant to execute the waiver of appeal discussed at the time his plea was entered. Id. at pp. 5-6.

Despite his waiver, petitioner appealed his conviction to the New York State Supreme Court Appellate Division, Fourth Judicial Department. State Court Records (Dkt. No. 9) Exh. C. In that appeal Peters raised two issues, arguing that the waiver of appeal was not knowing and voluntary and therefore should not be enforced, and additionally that his plea was invalid since he was not required to recite the underlying facts giving rise to the charge which he admitted.

Petitioner's conviction was affirmed by the Fourth Department on February 6, 2009. People v. Peters, 59 A.D.3d 928, 873 N.Y.S.2d 397 (4th Dep't 2009). In its decision the appellate court concluded, based upon the record, that petitioner's waiver of appeal was voluntary, knowing, and intelligent and that his claim of inadequacy of the plea allocution was precluded by the waiver of appeal, and in any event was not properly preserved for review. *fn1 Id. Leave to appeal that determination to the New York Court of Appeals was denied on April 9, 2009. People v. Peters, 12 N.Y.3d 820, 881 N.Y.S.2d 27 (2009) (Table). It does not appear that petitioner has instituted any collateral state court challenges to his conviction.

II. PROCEDURAL HISTORY

Petitioner commenced this proceeding on February 1, 2010, and was thereafter granted leave to proceed in forma pauperis . Dkt. Nos. 1, 4. Represented by the New York State Attorney General the named respondent, the superintendent of the correctional facility in which Peters is currently confined, thereafter filed a response, accompanied by a memorandum of law and the relevant state court records, all on June 4, 2010. *fn2 Dkt. Nos. 7-9. In his opposition to Peters' petition, respondent argues that the claim that petitioner's mental condition negates the validity of his guilty plea is both unexhausted and lacking in merit. Dkt. No. 8. Respondent's opposition does not directly address petitioner's second claim, in which he challenges the validity of his waiver of appeal. Id.

Peters' petition, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Exhaustion of Remedies

While the petitioner has raised the legal sufficiency of his plea in both this proceeding and his direct state court appeal, the focus of that argument presented in the two forums has been distinctly different. Peters' argument to the Fourth Department that his plea was not knowing, voluntary, and intelligent was based upon the failure of the trial court during his plea colloquy to require him to recite the factual underpinnings of the charge to which he was pleading guilty. In this proceeding, by contrast, the thrust of petitioner's claim is addressed to his mental condition and the effects of his medication at the time his plea was entered, arguing that because of that combination of factors he "was incompetent when he pleaded guilty. . .". See Petition (Dkt. No. 1) § 12(A). Respondent maintains that petitioner's claim is therefore unexhausted, but now procedurally forfeited.

Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies, or establish either an absence of available state remedies or that such remedies cannot adequately protect his or her rights. Aparicio v. Artuz , 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis , 42 F.3d 144, 147 (2d Cir. 1994), cert. denied , 515 U.S. 1118, 115 S. Ct. 2269 (1995). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney Gen. of New York , 696 F.2d 186, 191 (2d Cir. 1982). "Comity concerns lie at the core of the exhaustion requirement." Galdamez v. Keane , 394 F.3d 68, 72 (2d Cir.), cert. denied, sub nom. Galdamez v. Fischer , 544 U.S. 1025, 125 S. Ct. 1996 (2005). Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Id. "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Daye, 696 F.2d at 192 (footnote omitted).

This exhaustion requirement is satisfied if the federal claim has been "'fairly presented'" to the state courts. See Dorsey v. Kelly , 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor , 404 U.S. 270, 275, 92 S.Ct. 509');">92 S. Ct. 509, 512 (1971)). A claim has been "fairly presented" if the state courts are apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye , 696 F.2d at 191. Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye , 696 F.2d at 192.

When a claim has never been presented to a state court, a federal court may find that there is an absence of available state corrective process under § 2254(b) "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio , 269 F.3d at 90 (citing Reyes v. Keane , 118 F.3d 136, 139 (2d Cir. 1997)); Lurie v. Wittner , 228 F.3d 113, 124 (2d Cir. 2000) (federal court may address merits of a habeas petition containing unexhausted claims where there is no further state proceeding for petitioner to pursue or where further pursuit would be futile), cert. denied , 532 U.S. 943, 121 S. Ct. 1404 (2001). As such, I must determine whether it would be futile for petitioner to present the newly-minted theory regarding the indictment on which his plea was based to the state courts.

Petitioner cannot now file an appeal with the Fourth Department in order to advance his claim regarding his claim that he was not mentally competent when his plea was entered, since in New York a defendant is "entitled to one (and only one) appeal to the Appellate Division." See Aparicio , 269 F.3d at 91. Moreover, since "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal," id. (citing New York Crim. Proc. Law ("CPL") § 440.10(2)(c)), petitioner could not now properly raise this claim, which is based upon the record, in a CPL Article 440 motion to vacate his conviction. Aparicio , 269 F.3d at 91; Bossett v. Walker , 41 F.3d 825, 829 (2d Cir. 1994), cert. denied , 514 U.S. 1054, 115 S. Ct. 1436 (1995). The claim is therefore "deemed exhausted" for purposes of petitioner's habeas application. Spence v. Superintendent, Great Meadow Corr. Fac. , 219 F.3d 162, 170 (2d Cir. 2000); Senor v. Greiner , No. 00-CV-5673, 2002 WL 31102612, at *10 (E.D.N.Y. Sept. 18, 2002). *fn3

Although petitioner's mental competence claim is "deemed exhausted," it is also procedurally defaulted. See Aparicio , 269 F.3d at 90, 96. Accordingly, a federal court may not engage in habeas review of the claim unless the petitioner demonstrates either 1) both good cause for and actual prejudice resulting from his procedural default, or 2) that the denial of habeas relief would leave unremedied a fundamental miscarriage of justice. Fama v. Comm'r of Corr. Servs. , 235 F.3d 804, 809 (2d Cir. 2000); Garcia v. Lewis , 188 F.3d 71, 76-77 (2d Cir. 1999); Levine v. Comm'r of Corr. Servs ., 44 F.3d 121, 126 (2d Cir. 1995). Under this second exception, which is both exacting and intended for the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[,]" Murray v. Carrier , 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986); see also House v. Bell , 547 U.S. 518, 536, 126 S. Ct. 2064, 2076 (2006); Lebron v. Mann , 40 F.3d 561, 564 (2d Cir. 1994), "the principles of comity and finality that inform the concepts of cause and prejudice 'must yield to the imperative of correcting a fundamentally unjust incarceration.'" Murray , 477 U.S. at 495, 106 S. Ct. at 2649 (quoting Engle v. Isaac , 456 U.S. 107, 135, 102 S. Ct. 1558, 1576 (1982)).

To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his or her ability to comply with the relevant procedural rule. Coleman v. Thompson , 501 U.S. 722, 753, 111 S. Ct. 2546, 2566-67 (1991) (citing Murray , 477 U.S. at 488, 106 S. Ct. at 2645); Restrepo v. Kelly , 178 F.3d 634, 639 (2d Cir. 1999) (citing, inter alia , Coleman ). Examples of such external mitigating circumstances can include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. *fn4 Murray , 477 U.S. at 488, 106 S. Ct. at 2645. When a petitioner has failed to establish adequate cause for his or her procedural default, the court need not go on to also examine the issue of prejudice, since federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes , 760 F.2d 40, 45 (2d Cir. 1985); Long v. Lord , No. 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. March 21, 2006) (McCurn, S.J.) (citing Stepney ); Staley v. Greiner , No. 01 Civ. 6165, 2003 WL 470568, at *7 (S.D.N.Y. Feb. 6, 2003) (citing Stepney ). In such a case, absent evidence to show the petitioner's innocence of the crime of conviction, no basis is presented to conclude that the failure to consider the merits of the federal claim would result in a fundamental miscarriage of justice, which has been interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Corr. Facility , 219 F.3d 162, 170 (2d Cir. 2000) (citing Murray , 477 U.S. at 496, 106 S. Ct. 2639).

In this instance, petitioner has offered nothing to justify his failure to present the claim now raised to the state appellate court. The court therefore need not examine whether petitioner will suffer any actual prejudice resulting from the procedural default. Similarly, addressing the second exception to the procedural forfeiture rule, petitioner has offered no evidence of his actual innocence of the crime of conviction, to which he pleaded guilty. *fn5 Under these circumstances, I recommend a finding that petitioner's primary argument in support of his request for habeas relief -- that he was incompetent to enter his guilty plea due to his mental condition and medicated state -- is both unexhausted and procedurally barred.

B. Standard of Review

Before turning to the merits of petitioner's habeas claims, I first address the standard of review applicable in this case.

Enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), brought about significant new limitations on the power of a federal court to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254. Under the AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Boyette v. Lefevre , 246 F.3d 76, 88 (2d Cir. 2001) (quoting § 2254(e)(1)) (internal quotes omitted). Significantly, a federal court may not grant habeas relief to a state prisoner on a claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- 1) 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; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Thibodeau v. Portuondo , 486 F.3d 61, 65 (2d Cir. 2007); Noble v. Kelly , 246 F.3d 93, 98 (2d Cir.), cert. denied , 534 U.S. 886, 122 S. Ct. 197 (2001); Boyette , 246 F.3d at 88. When applying this test, the Second Circuit has noted that

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: (1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled?

(2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? (3) If not, did the state court's decision constitute an "unreasonable application" of that principle?

Williams v. Artuz , 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone , 221 F.3d 100, 108-09 (2d Cir. 2000) (citing Williams v. Taylor , 529 U.S. 362, 412-13, 120 S.Ct. 1495');">120 S. Ct. 1495, 1523 (2000))).

Because the AEDPA's restriction on federal habeas power was premised in no small part upon the duty of state courts to uphold the Constitution and faithfully apply federal laws, the AEDPA's exacting review standards apply only to federal claims which have been actually adjudicated on the merits in the state court. Washington v. Schriver , 255 F.3d 45, 52-55 (2d Cir. 2001). Specifically, as the Second Circuit explained in Sellan v. Kuhlman , "[f]or the purposes of AEDPA deference, a state court 'adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." 261 F.3d 303, 312 (2d Cir. 2001); see Jimenez v. Walker , 458 F.3d 130, 140 (2d Cir. 2006) (citing Sellan ), cert. denied sub nom. , Jimenez v. Graham , 549 U.S. 1133, 127 S. Ct. 976 (2007). Significantly, the Second Circuit further held that when a state court adjudicates a claim on the merits, "a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim -- even if the state court does not explicitly refer to either the federal claim or to relevant federal case law. " Sellan , 261 F.3d at 312 (emphasis added). *fn6 *fn7

When a state court's decision is found to have been decided "on the merits", that decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams , 529 U.S. at 405-06, 120 S. Ct. at 1519-20. Moreover, a federal court engaged in habeas review must also determine not whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable". Sellan , 261 F.3d at 315 (quoting Williams , 529 U.S. at 409, 120 S. Ct. at 1521 (O'Connor, J.)). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S. , 221 F.3d at 111.

C. Merits Of Petitioner's Waiver of Appeal Claim In the second ground of his petition, the only one which is not procedurally forfeited, Peters argues that the waiver of appeal executed by him in connection with his plea and subsequent sentencing is invalid and should not have precluded his right to challenge the validity of his plea. While citing the Fourteenth Amendment, the petition does not otherwise elaborate on the basis for this claim.

In its decision, the Fourth Department concluded that petitioner's waiver of appeal, entered in conjunction with his guilty plea, was knowing, voluntary, and intelligent and precludes review of the legal sufficiency of the plea itself. People v. Peters, 59 A.D.3d 928, 873 N.Y.S.2d 397 (4th Dep't 2009). The court must therefore determine whether this finding is contrary to or represents an unreasonable application of clearly established Supreme Court precedent.

1. Clearly Established Supreme Court Precedent To determine the relevant Supreme Court authority to invoke when analyzing the sufficiency of petitioner's waiver of appeal, I have looked for guidance to the standard governing the acceptance of guilty pleas generally -- a standard which is neither recently evolved nor controversial. "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart , 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (quoting North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970) (citations omitted)); see also Parke v. Raley , 506 U.S. 20, 28-29, 113 S. Ct. 517, 523 (1992) (a plea is valid when it is both knowingly and voluntarily made); Boykin v. Alabama , 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1711-12 (1969) (the United States Constitution requires that guilty plea be intelligently and voluntarily entered). A knowing plea is entered "'with understanding of the nature of the charge and the consequences of the plea.'" Santobello v. New York , 404 U.S. 257, 261 n.1, 92 S. Ct. 495, 498 n.1 (1971) (quoting Fed. R. Crim. P. 11); see Martinez v. Costello , No. 03 CIV 2763, 2004 WL 26306, at *5 (S.D.N.Y. Jan. 5, 2004) (citing Santobello and Fed. R. Crim. P. 11); see also Hanson v. Phillips , 442 F.3d 789, 798 (2d Cir. 2006).

Applying this standard, to establish that a criminal defendant's guilty plea was knowingly, intelligently, and voluntarily entered a court must find, based upon the record of the relevant plea proceedings, that he or she 1) was competent to proceed and was fully aware of the nature of the charges faced; 2) had a rational and factual understanding of the proceedings; and, 3) was cognizant of the constitutional protections relinquished upon entry of the plea. Oyague v. Artuz , 393 F.3d 99, 106 (2d Cir. 2004); Matusiak v. Kelly , 786 F.2d 536, 543 (2d Cir.), cert. dismissed , 479 U.S. 805, 107 S. Ct. 248 (1986). While "the question of whether a plea of guilty has been entered voluntarily within the meaning of the Constitution is often a complex one that involves mixed questions of law and fact[,]" the ultimate issue of whether a plea represents an effective waiver of federal Constitutional rights is controlled by federal law. Oyague , 393 F.3d at 104.

"[W]aivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing." United States v. Ready , 82 F. 3d 551, 556 (2d Cir. 1996). Accordingly, for a defendant's agreement in a plea to give up his or her right to appeal, the record must clearly demonstrate that the waiver was both knowing, "'in the sense that the defendant fully understood the potential consequences of his waiver'", and voluntary. United States v. Monzon , 359 F.3d 110 (2d Cir. 2004) (quoting Ready , 82 F. 3d at 557) (other citations omitted).

2. Contrary To Or Unreasonable Application Of Clearly Established Supreme Court Precedent

When judged against this standard, the evidence in this case is fully supportive of the Fourth Department's finding that the petitioner's waiver of appeal was knowing, voluntary, and intelligent. The plea agreement which included the waiver as an element was the product of negotiations involving the court, the prosecution, and Peters and his counsel, conducted in the presence of the petitioner's mother. See State Court Records (Dkt. No. 9) Exh. A at pp. 2-4; see also id. at p. 9. Petitioner's appeal rights were described to him by the trial court; Judge Walsh explicitly confirmed petitioner's understanding that "by waiving [his] right to appeal, if later on [he is] not happy with [his] plea or sentence [he] cannot ask a higher Court to reverse or undo what will be done here today and on the date of sentence." Id. at p. 10.

Petitioner's understanding of the court proceedings and his competence to proceed was also probed by Judge Walsh, who asked Peters whether he had any "physical or mental problems or consumed any alcohol that would prevent [him] from understanding [the] proceedings." State Court Records (Dkt. No. 9) Exh. A at p. 5. After petitioner responded that he had mental problems, the court inquired further, determining from petitioner that there was nothing that would prevent him from understanding the proceedings, and asked whether he had "a good understanding" of what was being accomplished, to which he responded in the affirmative. Id. at pp. 7-8. Based upon the plea colloquy, the court determined that the petitioner understood "the charges, his rights, and the nature and consequences of his plea of guilty." Id. at p. 13.

Against this backdrop, the finding of the state appellate court regarding the legal sufficiency of petitioner's waiver of any right of appeal does not appear to have been either contrary to or an unreasonable application of clearly established Supreme Court precedent.

D. Merits of Petitioner's Guilty Plea Claim

The first ground of Peters' petition challenges the validity of his guilty plea, arguing that his medicated condition and mental disabilities rendered him incapable of entering a valid plea. Although this claim was not adjudicated by the state courts and is now procedurally forfeited, I will nonetheless address the merits of the claim.

The overarching principles associated with the entry of a knowing, voluntary, and intelligent guilty plea are well-established, and were set out earlier in this report. *fn8 In order to enter a constitutionally valid guilty plea a defendant must be competent to proceed, and manifest an awareness of the nature of the charges faced as well as an understanding of the proceedings and the constitutional protections forfeited by entering the plea. Oyague, 393 F.3d at 106.

Without question the prosecution of criminal charges against an incompetent defendant represents violation of due process. Medina v. California, 505 U.S. 437, 439, 112 S. Ct. 2572, 2574 (1992). This principle applies with equal force to the competency of a defendant to enter a knowing, intelligent and voluntary plea. Godinez v. Moran , 509 U.S. 389, 400-401, 113 S. Ct. 2680, 2687 (1993); Oyague , 393 F.3d at 106 ("for [a] plea to be voluntary, '[i]t is axiomatic' that the defendant must at least be competent to proceed.") (quoting United States v. Masthers, 539 F.2d 721, 725 (D.C. Cir. 1976); see also Lear v. Poole , 711 F. Supp. 2d 288, 294 (W.D.N.Y. 2010). A defendant is competent to stand trial if he or she has "sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding" and has "a rational as well as factual understanding of the proceedings against him [or her]." Godinez, 509 U.S. at 396, 113 S. Ct. at 2685 (quoting Dusky v. United States , 362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960) (per curiam)).

As was discussed above, I have carefully reviewed the record of proceedings associated with the entry of petitioner's guilty plea and find no basis to conclude that he was not competent to proceed and did not have the requisite understanding of the proceedings against him. Peters assured the court that he was entering his guilty plea freely and voluntarily and because he was guilty. State Court Records (Dkt. No. 9) Exh. A at p. 5-8. Before entering his plea petitioner was reminded by the trial court of the constitutional protections which he was waiving by entering his plea. Id. at pp. 6-7. When asked specifically about his mental problems, Peters responded that he had a "good understanding" of the proceedings. Id. at pp. 6-8. At the conclusion of the colloquy petitioner entered the plea of guilty to murder in the second degree, in satisfaction of the charges set forth in the indictment. Id. at p. 13. At the time of petitioner's sentencing nearly three months later, neither Peters nor his attorney made any reference to his mental competency or ability to understand the proceedings against him. Id. at Exh. B.

Under these circumstances, I find that the record fully supports the conclusion that at the time of entry of his guilty plea Peters had an adequate rational and factual understanding of the proceedings against him, and that his plea was knowing, voluntary, and intelligent. Lear , 711 F. Supp. 2d at 295-96. I therefore recommend that should the court decide to address the merits of petitioner's guilty plea claim, notwithstanding the fact that it is procedurally barred, a finding be made

that the guilty plea passes constitutional muster.

E. Certificate of Appealibility

In order for a petitioner to appeal a final order denying habeas relief by a state prisoner, he or she must receive a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b) ("unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)", an appeal may not be taken from the denial of a habeas petitioner under section 2254). A COA may only issue "if the applicant has made a substantial showing of the denial of a constitutional right." *fn9 28 U.S.C. § 2253(c)(2). In this case I conclude that the petitioner has not a made substantial showing of the denial of a constitutional right, and therefore recommend against the granting of the COA.

IV. SUMMARY AND RECOMMENDATION

The principal ground asserted by petitioner for the granting of habeas relief -- that his guilty plea was not knowing, voluntary, and intelligent in light of his medicated condition and mental deficiency at the time of allocution -- is both unexhausted and now procedurally forfeited based upon Peters' failure to present the argument to the state courts in his direct appeal from his conviction. Addressing the merits of the two grounds asserted, after having carefully reviewed the transcript of petitioners' plea allocution, I find that his claim that the guilty plea and waiver of appeal were not knowing, voluntary, or intelligent lack merit and that the state court's determination with regard to the waiver of appeal issue, when reviewed under the governing, deferential AEDPA standard, was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. Accordingly, it is hereby respectfully

RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is further hereby

RECOMMENDED, based upon my finding that Peters has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to either of the claims set forth in his petition.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.)) Only the Westlaw citation is currently available. [1] Habeas Corpus 197 603 United States District Court, E.D. New York. 197 Habeas Corpus Chanel SENOR, Petitioner, 197III Jurisdiction, Proceedings, and Relief v. 197III(A) In General Charles GREINER, Supt., Respondent. 197k603 k. Laches or Delay. Most Cited Cases No. 00-CV-5673JG. State prisoner's petition for federal habeas corpus relief was time-barred; although one-year grace period from the effective date of the Antiterrorism and Effective Death

Sept. 18, 2002. Penalty Act (AEDPA) was tolled during periods that prisoner's motions to reargue or appeal his previous adverse rulings were pending in state appellate courts,

Following affirmance of his convictions for second-degree some 1,184 days passed from the AEDPA's effective date murder and criminal possession of a weapon, state until the earliest date on which prisoner could have been prisoner filed petition for federal habeas corpus relief. The credited with filing his petition. 28 U.S.C.A. § District Court, Gleeson, J., held that: (1) prisoner's petition 2244(d)(1)(a). was time-barred; (2) prisoner failed to demonstrate that his trial counsel's actions or inactions amounted to constitutionally inadequate performance; (3) prisoner [2] Criminal Law 110 1930 failed to demonstrate that his appellate counsel's actions amounted to constitutionally inadequate performance; (4) claim that police seized prisoner without probable cause 110 Criminal Law was barred from federal review; (5) even if court were to 110XXXI Counsel consider claim of lack of probable cause, the claim lacked 110XXXI(C) Adequacy of Representation merit; (6) claim that prisoner did not voluntarily 110XXXI(C)2 Particular Cases and Issues accompany police to the precinct was barred from habeas 110k1921 Introduction of and Objections to review; (7) even if prosecutor's questioning of prisoner Evidence at Trial about his prior drug conviction was a Sandoval violation, 110k1930 k. Identification. Most Cited prisoner failed to show that it deprived him of a Cases constitutionally recognized right; and (8) claim regarding (Formerly 110k641.13(6)) the alleged Sandoval violation was procedurally defaulted. Trial counsel's failure to request Dunaway hearing to challenge lineup identifications, after purportedly eliciting evidence that police stopped defendant without probable Petition denied. cause, did not amount to constitutionally inadequate performance; only witness who testified at Wade hearing mentioned nothing to suggest that he and his partner had West Headnotes stopped and questioned defendant improperly, defendant © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.)) pointed to no evidence in attorney's possession at Defendant failed to demonstrate that appellate counsel's conclusion of Wade hearing that would have sustained his failure to brief on appeal defendant's claim of lack of claim that police lacked probable cause to detain him, and probable cause with respect to his arrest amounted to defendant failed to show that, had Dunaway hearing been constitutionally inadequate performance; claim was both requested, reasonable probability existed that court would unpreserved for appellate review and meritless, and so the have granted hearing and suppressed lineup decision to forgo pursuing it on appeal did not fall below identifications. U.S.C.A. Const.Amend. 6. any standard of reasonableness, and, in any event, appellate court considered and rejected that very claim when defendant asserted it in his pro se supplemental [3] Criminal Law 110 1951 brief. U.S.C.A. Const.Amend. 6.

110 Criminal Law [5] Habeas Corpus 197 366

110XXXI Counsel

110XXXI(C) Adequacy of Representation

110XXXI(C)2 Particular Cases and Issues 197 Habeas Corpus

110k1951 k. Deliberations and Verdict. 197I In General

Most Cited Cases 197I(D) Federal Court Review of Petitions by

(Formerly 110k641.13(2.1)) State Prisoners Trial counsel's failure to move to set aside verdict, after 197I(D)4 Sufficiency of Presentation of Issue or defendant alerted him to possibility that defendant had Utilization of State Remedy known one of his jurors in high school, did not amount to 197k362 Particular Remedies or constitutionally inadequate performance; defendant's claim Proceedings that he knew juror was unsupported, court could not 197k366 k. Direct Review; Appeal or conceive of how claim, even if true, afforded a basis for Error. Most Cited Cases relief for defendant, and defendant failed to show that, had attorney moved to set aside verdict, court would have granted the motion. U.S.C.A. Const.Amend. 6. Habeas Corpus 197 378

[4] Criminal Law 110 1968 197 Habeas Corpus

197I In General

197I(D) Federal Court Review of Petitions by 110 Criminal Law State Prisoners

110XXXI Counsel 197I(D)4 Sufficiency of Presentation of Issue or

110XXXI(C) Adequacy of Representation Utilization of State Remedy

110XXXI(C)2 Particular Cases and Issues 197k374 Availability and Effectiveness of

110k1966 Appeal State Remedies

110k1968 k. Preservation of Error for 197k378 k. Availability at Time of Appeal. Most Cited Cases Petition. Most Cited Cases

(Formerly 110k641.13(7)) Federal habeas petitioner's claim, that police seized him

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Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.))

without probable cause, was barred from federal review court denied it based on a state procedural default, which where petitioner failed to exhaust it in the state courts; constituted an independent and adequate state ground; claim was presented on direct appeal in petitioner's pro se state court held that claim was procedurally barred under supplemental brief, appellate court rejected claim as either state law because petitioner based it on matters that not preserved or without merit, petitioner failed to apply appeared in the record but neither raised the claim on for leave to appeal from the affirmance of his conviction, direct appeal nor offered a reasonable excuse for having claim thus was unexhausted, time limit for exhausting failed to do so, appellate court denied leave to appeal claim had expired, petitioner failed to show cause and matter, petitioner did not show cause and resulting resulting prejudice for failure to appeal decision affirming prejudice for the default, and miscarriage of justice would his conviction, and federal court's refusal to consider claim not result from federal court's failure to review claim. would not result in miscarriage of justice.

[7] Habeas Corpus 197 495

[6] Habeas Corpus 197 366

197 Habeas Corpus 197 Habeas Corpus 197II Grounds for Relief; Illegality of Restraint 197I In General 197II(B) Particular Defects and Authority for 197I(D) Federal Court Review of Petitions by Detention in General State Prisoners 197k495 k. Witnesses; Examination. Most Cited 197I(D)4 Sufficiency of Presentation of Issue or Cases

Utilization of State Remedy Even if prosecutor's questioning of petitioner about his 197k362 Particular Remedies or prior drug conviction was a Sandoval violation, petitioner Proceedings failed to show that it deprived him of a constitutionally

197k366 k. Direct Review; Appeal or recognized right, as required for the evidentiary error to be Error. Most Cited Cases cognizable under federal habeas corpus review; given abundance of evidence pointing to petitioner's guilt, petitioner failed to show that the ruling influenced the Habeas Corpus 197 401 jury's verdict in any way, and petitioner's claim of a

Sandoval violation lacked merit, as defense counsel opened the door to prosecutor's questioning, and it was 197 Habeas Corpus defense counsel, not prosecutor, who elicited the facts

197I In General underlying petitioner's prior felony conviction.

197I(D) Federal Court Review of Petitions by

State Prisoners

197I(D)5 Availability of Remedy Despite [8] Habeas Corpus 197 366 Procedural Default or Want of Exhaustion

197k401 k. In General. Most Cited Cases

Federal habeas petitioner's claim, that he did not 197 Habeas Corpus voluntarily accompany arresting officers to the precinct, 197I In General was barred from federal habeas review where the state 197I(D) Federal Court Review of Petitions by

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Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.))

State Prisoners to appeal further or in any of his other motions, so that

197I(D)4 Sufficiency of Presentation of Issue or claim was unexhausted, claim could no longer be Utilization of State Remedy exhausted as 30-day period to make application for leave

197k362 Particular Remedies or to appeal had expired, petitioner failed to show cause and Proceedings resulting prejudice, and federal court's failure to consider

197k366 k. Direct Review; Appeal or claim would not result in miscarriage of justice.

Error. Most Cited Cases Chanel Senor, Great Meadow Correctional Facility,

Comstock, Petitioner Pro Se.

Habeas Corpus 197 368.1

Charles J. Hynes, District Attorney, Kings County,

Brooklyn, By Victor Barall, Assistant District Attorney, 197 Habeas Corpus for Respondent.

197I In General

197I(D) Federal Court Review of Petitions by

State Prisoners MEMORANDUM AND ORDER

197I(D)4 Sufficiency of Presentation of Issue or

Utilization of State Remedy

197k368 Necessity for Repetition or Pursuit GLEESON, District J. of Several Remedies

197k368.1 k. In General. Most Cited

Cases *1 On January 10, 1994, a jury in Kings County found petitioner Chanel Senor guilty of murder in the second degree (N.Y. Penal Law § 125.25[1] ) and criminal Habeas Corpus 197 378 possession of a weapon in the second degree (N.Y. Penal Law § 265.03). Senor was sentenced to concurrent terms of imprisonment of twenty years to life for the murder 197 Habeas Corpus conviction and two to six years for the weapon possession 197I In General conviction. He is currently incarcerated pursuant to that 197I(D) Federal Court Review of Petitions by judgment. He now petitions this Court for a writ of habeas State Prisoners corpus pursuant to 28 U.S.C. § 2254, asserting the 197I(D)4 Sufficiency of Presentation of Issue or following claims: (1) his trial counsel failed to provide Utilization of State Remedy him effective assistance; (2) his appellate counsel failed to 197k374 Availability and Effectiveness of provide him effective assistance; (3) the police seized him State Remedies without probable cause, violating his Fourth Amendment

197k378 k. Availability at Time of rights; (4) he did not voluntarily consent to accompany the Petition. Most Cited Cases arresting officers to the precinct; and (5) the prosecution's Federal habeas petitioner's claim, that prosecutor's failure to turn over a prior statement of a prospective questioning of him constituted a Sandoval violation, was witness and its violation of the court's ruling in a pre-trial procedurally defaulted; petitioner asserted claim on direct hearing deprived him of his right to a fair trial. appeal, but failed to include it in his application for leave

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Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.))

For the reasons set forth below, the petition is denied. court sentenced him as described above.

BACKGROUND On February 3, 1994, Senor filed a timely notice of appeal, arguing that (1) the prosecution's failure to turn over a prospective witness's prior statement deprived him

On the evening of January 10, 1991, Senor, carrying two of a fair trial; (2) when cross-examining Senor, the guns, approached Queran Horton, Nekia Washington, and prosecution violated the court's pre-trial ruling, thereby Daverson Maynard as they were walking in front of 1184 depriving him of a fair trial; and (3) the murder conviction Halsey Street in Brooklyn. Senor pointed one gun at was against the weight of the evidence. Senor later filed a Maynard's chest and the other at Horton's back. Upon pro se supplemental brief claiming that (1) the police feeling the gun in his back, Horton turned around, and seized him in violation of his Fourth Amendment rights Senor shot him in the chest, killing him. Senor then fled. when they surrounded him without probable cause or exigency and took him to the precinct, and (2) the police testimony regarding his arrest was unworthy of belief due Detective Anthony Burzotta, investigating the crime, to material inconsistencies. On November 6, 1995, the subsequently composed a general description of the Appellate Division affirmed Senor's judgment of individual who shot Horton based on information provided conviction, finding that the verdict was not against the by Maynard and another witness, Roberto Colon. He also weight of the evidence and that Senor's remaining claims, learned that a man matching the description of the shooter including those raised in his pro se supplemental brief, frequented the corner of Knickerbocker and Putnam were either unpreserved for appellate review or without Avenues, in Brooklyn. On January 30, 1991, Detective merit. See People v. Senor, 221 A.D.2d 384, 635 Burzotta went with his partner to that location, where they N.Y.S.2d 480 (2d Dep't 1995).FN1

noticed Senor, who appeared to fit the description of the shooter. Detective Burzotta and his partner stopped Senor and questioned him. They then brought Senor to the FN1. Senor states that he sought leave to appeal precinct station house, where they placed him in two the Appellate Division's November 6, 1995 separate lineups. From those lineups. Washington and decision affirming his conviction. As support, he Maynard independently identified Senor as the individual cites a certificate from the New York Court of who shot Horton. Burzotta consequently arrested Senor, Appeals, dated June 19, 1996, that denies him and the Kings County District Attorney charged him with leave to appeal. That certificate, however, murder in the second degree and criminal possession of a dismissed Senor's application for leave to appeal weapon in the second and third degrees. a subsequent May 8, 1996, decision by the Appellate Division. There is nothing in the record to indicate that Senor sought leave to Senor went to trial on these charges in July 1992. The jury appeal the Appellate Division's November 6, deadlocked, and on July 10, 1992, the trial court declared 1995 decision affirming his conviction. a mistrial. In January 1994, Senor faced a second trial on the same charges. At the conclusion of that trial, the jury found Senor guilty of murder in the second degree and *2 Meanwhile, on September 13, 1995, Senor, proceeding criminal possession of a weapon in the second degree. The pro se, moved to vacate his judgment of conviction

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Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.))

pursuant to N.Y.Crim. Proc. Law § 440.10(1)(d) and (h), No. 94-01311, slip op. at 1 (2d Dep't Feb. 20, 1996). On asserting the following: (1) the police violated his February 22, 1996, the Appellate Division denied Senor's constitutional rights by seizing him without probable leave to appeal the denial of his § 440 motion. cause: (2) his acquiescence in accompanying the police to the precinct did not constitute voluntarily consent and thus did not justify an otherwise unlawful police intrusion; (3) On March 29, 1996, Senor filed an application to reargue his trial counsel denied him effective assistance; and (4) the denials of (1) his motion to reargue his appeal; (2) his the sentence should be modified because it punished him application for leave to appeal the denial of his § 440 for exercising his right to a jury trial. The court denied his motion; and (3) his application to consolidate these § 440 motion on December 21, 1995. It stated that his motions with his application for a writ of error coram claim that the police seized him without probable cause nobis. On May 8, 1996, the Appellate Division denied was procedurally barred because the Appellate Division Senor's motion, and on June 19, 1996, the Court of had determined it previously on the merits and because Appeals denied Senor leave to appeal that decision. See Senor never requested a hearing to test the probable cause People v. Senor, 88 N.Y.2d 942, 647 N.Y.S.2d 175, 670 issue. The court also found Senor's claims that he did not N.E.2d 459 (1996). consent to accompany the police to the precinct and that he received ineffective assistance of counsel to be procedurally barred because he did not raise them on On March 6, 1997, Senor filed a second pro se motion to direct appeal and provided no justification for having vacate his conviction, pursuant to N.Y.Crim. Proc. Law § failed to do so. Moreover, the court stated that Senor's 440.10(1)(g). He contended that he had discovered new ineffective assistance claim lacked merit. Finally, the court evidence, namely, the unsworn statements of Richard dismissed Senor's claim regarding his sentence because it Umana. On May 1, 1997, Senor filed a third § 440 motion, did not relate to the validity of his conviction. again claiming that he had discovered new evidence, that time in the form of his conversations with four witnesses. The court denied both motions on June 10, 1997, stating On November 16, 1995, while his § 440 motion was that Senor had failed to submit any reliable evidence that pending, Senor filed what the Appellate Division deemed these statements had been made, and that even if he had, to be a motion for reargument of his appeal and an the evidence would have altered the outcome of his trial. application for a writ of error coram nobis, in which he asserted a claim of ineffective assistance of appellate counsel. Then, on January 3, 1996, Senor requested leave *3 On August 6, 1997, Senor filed his first habeas corpus to appeal the denial of his § 440 motion and to consolidate petition in this court (docket number 97-CV-4929). In that that application with his motion for reargument and his petition, he argued that: (1) his trial counsel was coram nobis petition. On February 20, 1996, the Appellate ineffective because he failed to challenge the legality of Division denied Senor's application for a writ of error police conduct and failed to pursue other "colorable coram nobis, stating that petitioner had failed to establish claims" based on known facts; (2) his appellate counsel that he was denied effective assistance of appellate provided ineffective assistance by refusing to brief on counsel. See People v. Senor, 224 A.D.2d 646, 639 appeal the issue of lack of probable cause with respect to N.Y.S.2d 716 (2d Dep't 1996). In a separate order, also his arrest; (3) the police seized him without probable dated February 20, 1996, the Appellate Division denied cause, questioning him based on a vague description Senor's motion to reargue his appeal. See People v. Senor, fabricated by witnesses; (4) his acquiescence in

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Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.))

accompanying the arresting officers to the precinct did not date of AEDPA) in which to file for federal habeas relief. constitute voluntarily consent and thus did not justify an See id. at 103. Pursuant to § 2244(d)(2), the time during otherwise unlawful police intrusion; and (5) the which a properly-filed application for state post-conviction prosecution's failure to turn over a prior statement of a relief is pending shall not be counted in calculating the prospective witness and its violation during trial of one of one-year grace period. the court's pre-trial rulings deprived him of his right to a fair trial.

FN2. Section 2244(d)(1)(D) provides alternate start dates for the one-year limitation period, By letter dated January 25, 1999, Senor requested that his including "the date on which the factual petition be placed "on hold" pending the outcome of an predicate of the claim or claims presented could application for post-conviction relief in state court based have been discovered through the exercise of due on "some newly discovered evidence [he] just found." diligence." This provision is inapplicable in this Construing this letter to be a motion to dismiss, I granted case because Senor does not present any federal it without prejudice and closed the case on February 17, claims based on newly-discovered facts. 1999. On March 25, 1999, Senor filed his fourth § 440 motion, which was denied on June 18, 1999. In that motion, her raised issues of certain Rosario violations, the [1] Because Senor's judgment of conviction became final insufficiency of proof, and prosecutorial misconduct. prior to April 24, 1996, his initial grace period to file for Leave to appeal was denied on September 15, 1999. Senor habeas relief was until April 24, 1997.FN3 This period was filed the instant habeas corpus petition (docket number tolled from April 24, 1996 through June 19, 1996 because, 00-CV-5673) on July 24, 2000. It includes the same during that interval, Senor had motions pending in the arguments his first petition included. state appellate courts in which he sought to reargue or appeal his previous adverse rulings. From June 19, 1996 through February 28, 1997, the date on which Senor filed DISCUSSION his second § 440 motion, he did not have any litigation pending in the state courts. That period comprised 254 days.

A. The Statute of Limitations

FN3. Senior was convicted on January 10, 1994,

There is a one-year statute of limitations in habeas corpus and on November 6, 1995, the Appellate proceedings, which generally begins to run on "the date on Division affirmed his conviction. Because he did which the judgment [becomes] final by the conclusion of not seek leave to appeal to the New York Court direct review or the expiration of the time for seeking such of Appeals, his judgment of conviction became review." 28 U.S.C. § 2244(d)(1)(a).FN2 In Ross v. Artuz, final on December 6, 1995, the date upon which 150 F.3d 97, 103 (2d Cir.1998), the Second Circuit held the 30-day period for seeking review in the Court that a prisoner whose conviction became final prior to the of Appeals expired. See N.Y.Crim. Proc. Law § enactment of the Antiterrorism and Effective Death 460.10(5)(a).

Penalty Act of 1996 ("AEDPA") must be afforded a one-year grace period from April 24, 1996 (the effective Not Reported in F.Supp.2d, 2002 WL 31102612 (E.D.N.Y.) (Cite as: 2002 WL 31102612 (E.D.N.Y.))

*4 Senor's grace period was once again tolled from

February 28, 1997 through June 10, 1997, the date on which his second and third § 440 motions were denied. Adding the period during which the one-year grace period Senor did not have any litigation pending in the state or was running against Senor yields a total of 1,184 days. federal courts between June 10, 1997 and August 6, 1997, Accordingly, Senor's petition must be dismissed as which comprised fifty-seven days. untimely.

On August 6, 1997, Senor filed his first habeas corpus Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.2001), cert. petition in this court (docket number 97-CV-4929), which denied, 534 U.S. 1015, 122 S.Ct. 506, 151 L.Ed.2d 415 I dismissed without prejudice on February 17, 1999. That (2001), provides no relief for Senor. In that case, the time period comprised 560 days, during which the statute Second Circuit held that when a district court is presented of limitations period was not tolled. See Duncan v. with a mixed petition, i.e., a petition that contains some Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 exhausted claims and some unexhausted claims, it may (1) L.Ed.2d 251 (2001) (the time period during which a dismiss the entire petition without prejudice; or (2) dismiss habeas corpus petition is pending in federal court does not the unexhausted claims and stay the rest. The court further toll the one-year limitations period). Thus, prior to my held that when a dismissal "could jeopardize the dismissal of his Senor's first habeas corpus petition, Senor timeliness of a collateral attack," a stay is the only course had allowed 871 days to run on his one-year grace period. of action. Id. (citation omitted). The court specified that the stay should be conditioned on the petitioner pursuing state court remedies "within a brief interval, normally 30 After February 17, 1999, Senor waited thirty-six days days after the stay is entered and returning to federal court before filing his fourth § 440 motion, on March 25, 1999. within a similarly brief interval, normally 30 days after a That motion was denied on June 18, 1999, and leave to state court exhaustion is completed." Id. at 381. appeal was denied on September 15, 1999. The one-year grace period was tolled during that interval (provided it had not already expired). The Second Circuit has not yet decided whether Zarvela should be applied retroactively. See Smaldone v. Senkowski, 273 F.3d 133, 139 (2d Cir.2001). In any event, Thereafter, Senor had no litigation pending between I see no unfairness in denying habeas relief to this September 15, 1999 and the filing of his instant habeas petitioner because he failed to make the "prompt trip to petition. The earliest date on which Senor can be credited and from the state courts" contemplated by Zarvela. See with filing the petition is July 24, 2000, the date on which Zarvela, 254 F.3d at 383. Rather, he delayed more than he alleges that he placed a set of papers in the mailbox at ten months before returning from the state courts. I note the Green Haven Correctional Facility. See Houston v. that other district courts within the circuit have dismissed Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d petitions as untimely where petitioners have failed to act 245 (1988) (when a prisoner is proceeding pro se, he is within the time constraints suggested in Zarvela. See, e.g., deemed to have filed a document on the date he delivered Felton v. Mazzuca, No. 98-CV-4567, 2002 WL 655207, it to prison authorities for forwarding to the court clerk). at *4 (S.D.N.Y. April 18, 2002) (petition time-barred The period from September 15, 1999 to July 24, 2000 under Zarvela ); Edwards v. Greiner, No. 00-CV-1331, comprises 313 days. 2002 WL 1467708, at * 3 (E.D.N.Y. May 7, 2002) (same). Finally, Zarvela is distinguished because, as (2d Cir.2001). described below, Senor does not present a "mixed petition" because he has no further recourse to state court.

Accordingly, there would have been no need to dismiss A decision is "contrary to" clearly established federal law the unexhausted claims and stay the balance of the petition as determined by the Supreme Court if "the state court to enable Senor to exhaust his state remedies. See DeJesus arrives at a conclusion opposite to that reached by [the

v. Greiner, No. 01-CV-2173, 2001 WL 1098001, at *2, n. Supreme Court] on a question of law or if the state court 2 (S.D.N.Y. Sept.10, 2001). decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" *5 In conclusion, Senor's petition must be dismissed as of clearly established Supreme Court law if a state court time-barred. In any event, as discussed below, each of "identifies the correct governing legal principle from [the Senor's claims fail as either procedurally defaulted or Supreme Court's] decisions but unreasonably applies that without merit because the state court's decision was principle to the facts of [a] prisoner's case." Id. Under the neither contrary to nor an unreasonable application of latter standard, "a federal habeas court may not issue the clearly established Federal law. See Gilchrist v. O'Keefe, writ simply because that court concludes in its 260 F.3d 87, 93 (2d Cir.2001) (citing Williams v. Taylor, independent judgment that the relevant state-court 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 decision applied clearly established federal law (2000)). erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir.2001) (citing Williams, 529 U.S. at 411). B. The Standard of Review Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required ... the increment need not be great; otherwise, The Antiterrorism and Effective Death Penalty Act of habeas relief would be limited to state court decisions so 1996 ("AEDPA") has narrowed the scope of federal far off the mark as to suggest judicial incompetence." Id. habeas review of state convictions where the state court (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d has adjudicated a petitioner's federal claim on the merits. Cir.2000) (internal quotation marks omitted)).

See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas This standard of review applies whenever the state court relief only if the state court's decision "was contrary to, or has adjudicated the federal claim on the merits, regardless involved an unreasonable application of, clearly of whether it has alluded to federal law in its decision. As established Federal law, as determined by the Supreme the Second Circuit stated in Sellan v. Kuhlman, 261 F.3d Court of the United States." 28 U.S.C. § 2254(d)(1). The 303 (2d Cir.2001): Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as *6 [f]or the purposes of AEDPA deference, a state court of the time of the relevant state-court decision." Williams 'adjudicate[s] a state prisoner's federal claim on the v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d merits when it (1) disposes of the claim 'on the merits,' 389 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in overcome the procedural bar by showing cause and the manner prescribed by 28 U.S.C. § 2254(d)(1) to the prejudice, or that a fundamental miscarriage of justice state court's decision on the federal claim-even if the would occur if I declined to review the claim. See state court does not explicitly refer to either the federal Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. claim or to relevant federal case law. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S.

255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); see also Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 888, Id. at 312. 151 L.Ed.2d 820 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state C. Senor's Claims ground inadequate to stop consideration of a federal question") (citation omitted). A petitioner may establish cause by showing "that the factual or legal basis for a 1. Ineffective Assistance of Trial Counsel claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." McCleskey v. Zant, 499 U.S. 467, 493-94, Senor claims that his attorney provided him ineffective 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). To satisfy the assistance at trial by failing to contest the legality of police prejudice requirement, the alleged error must have worked conduct and failing to pursue other "colorable claims." He to the petitioner's actual and substantial disadvantage. See claims that his trial counsel should have challenged the Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 circumstances surrounding his arrest. Specifically, he L.Ed.2d 249 (1988). If the petitioner cannot show cause contends that the witnesses who initially gave the police a and prejudice, the failure to raise the claim in an earlier description of the shooter in this case either fabricated that petition may nonetheless be excused if he or she can show description or embellished it to fit Senor. The police thus that a fundamental miscarriage of justice would result had no reason, independent of this improperly obtained from a failure to entertain the claim. A fundamental description, to stop and detain Senor. Consequently, Senor miscarriage of justice requires a showing of "clear and maintains, his arrest violated the Fourth Amendment, and convincing evidence that, but for a constitutional error, no his attorney should have moved, pursuant to Dunaway v. reasonable juror would have found the petitioner [guilty]." New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 Sawyer v. Whitley, 505 U.S. 333, 335, 112 S.Ct. 2514, (1979), to suppress the identification testimony as the fruit 120 L.Ed.2d 269 (1992). of an unlawful arrest. Moreover, Senor contends that his attorney should have moved to set aside the verdict after he informed his attorney of the possibility that he knew *7 Senor asserted an ineffective assistance of counsel one of the jurors. claim in a § 440 motion filed September 13, 1995. The court, in denying the motion, stated that this claim lacked merit, but was also procedurally barred under N.Y.Crim. Respondent argues that these claims are barred from Proc. Law § 440.10(2)(c) because Senor could have raised review in this Court because the state court denied them it on direct appeal, but did not, and he provided no based on a state procedural default, which constitutes an justification for having failed to do so. The subsequent independent and adequate state ground. A procedurally order of the Appellate Division denying, without defaulted claim is reviewable only if petitioner can comment, leave to appeal the denial of petitioner's § 440 motion does not alter that result. See Ylst v. Nunnemaker, reasonable probability that, but for counsel's 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 unprofessional errors, the result of the proceeding would (1991) ("[W]here ... the last reasoned opinion on the claim have been different," id. at 694. See also Kieser v. New explicitly imposes a procedural default, we will presume York, 56 F.3d 16, 18 (2d Cir.1995). Actions or omissions that a later decision rejecting the claim did not silently by counsel that "might be considered sound trial strategy" disregard that bar and consider the merits."). do not constitute ineffective assistance. Strickland, 466 U.S. at 689; see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998).

Because a state procedural default qualifies as an independent and adequate ground, this Court cannot consider Senor's ineffective assistance claim unless Senor [2] Senor has failed to demonstrate in this case that his shows cause for the default and prejudice resulting trial counsel's actions or inactions amounted to therefrom. Respondent maintains that Senor has not shown constitutionally inadequate performance. He claims that, cause for failing to raise this claim on direct appeal, nor during a pre-trial hearing pursuant to United States v. any resulting prejudice. I need not address this issue Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 because the ineffectiveness claim has no merit. (1967), his counsel elicited evidence that the police stopped Senor without probable cause, but then failed to pursue that issue by requesting a Dunaway hearing in The Supreme Court has established the following standard which he could have challenged the lineup identifications for ineffective assistance claims: as the fruit of an unlawful arrest. The record, however, indicates that the only witness who testified at the Wade hearing, Detective Burzotta, mentioned nothing to suggest First, the defendant must show that counsel's performance that he and his partner had stopped and questioned Senor was deficient. This requires that counsel made errors so improperly. Rather, Detective Burzotta testified that they serious that counsel was not functioning as the 'counsel' questioned Senor because he fit the description of their guaranteed the defendant by the Sixth Amendment. suspect and was hanging out where they were told a Second, the defendant must show that the deficient person fitting the suspect's description might be. performance prejudiced the defense. This requires Moreover, Senor points to no evidence in his attorney's showing that counsel's errors were so serious as to possession at the conclusion of the Wade hearing that deprive the defendant of a fair trial, a trial whose result would have sustained his claim that the police had no is reliable. Unless a defendant makes both showings, it probable cause to detain him. Senor's attorney, therefore, cannot be said that the conviction ... resulted from a could not have alleged facts sufficient to establish that the breakdown in the adversary process that renders the police obtained the pretrial identifications under unlawful result unreliable. circumstances, as required under N.Y.Crim. Proc. Law §§ 710.20(1) and 710.60(1) to demonstrate that a defendant is entitled to a Dunaway hearing. See People v. Covington, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 144 A.D.2d 238, 533 N.Y.S.2d 433, 434 (1st Dep't 1988), 2052, 80 L.Ed.2d 674 (1984). Thus, to make out this type appeal denied, 73 N.Y.2d 890, 538 N.Y.S.2d 802, 535 of claim, the petitioner must demonstrate both (1) that his N.E.2d 1342 (1989); People v. Rolland, 180 Misc.2d 729, attorney's performance fell below an "objective standard 693 N.Y.S.2d 803 (N.Y.Sup.Ct. Apr.6, 1999). Defense of reasonableness," id. at 688, and (2) that "there is a counsel's decision not to request a Dunaway hearing thus did not fall outside the bounds of professionally competent included in his brief to the Appellate Division the claims assistance, and, on this point, petitioner has not met the Senor asserted in his pro se supplemental brief to the first prong of the Strickland test. Appellate Division: that (1) the police seized him in violation of his Fourth Amendment rights when they surrounded him without probable cause or exigency and *8 Senor has also failed to meet Strickland 's second took him to the precinct; and (2) the police testimony prong in failing to show that, had his attorney requested a regarding his arrest was unworthy of belief due to material Dunaway hearing, a "reasonable probability" exists that inconsistencies. Senor presented this claim of ineffective the court would even have granted that request, much less assistance of appellate counsel to the Appellate Division suppressed the lineup identifications. See Strickland, 466 in his application for a writ of error coram nobis. The U.S. at 694. Likewise, counsel's decision to refrain from Appellate Division denied it on the merits, stating that making a motion to set aside the verdict did not render his Senor had failed to establish that he was denied effective performance constitutionally deficient. assistance of appellate counsel. See People v. Senor, 224 A.D.2d 646, 639 N.Y.S.2d 716 (2d Dep't 1996).

[3] Senor further claims that, after the jury found him guilty, he alerted his attorney to the possibility that he had Respondent contends that Senor's claim lacks merit and known one of the jurors in high school. Based on that fails to meet the standard for such claims established in representation, Senor contends, his attorney should have Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. moved to set aside the verdict. In papers submitted to this 2052, 80 L.Ed.2d 674 (1984). Although the Supreme Court and to the state courts, however, Senor has provided Court formulated the Strickland test in the context of no support for his claim that he knew one of the jurors. examining a claim of ineffective assistance of trial Moreover, even if such a showing were made, I cannot counsel, the same test applies to claims regarding the conceive of how it affords a basis for relief for Senor, who performance of appellate counsel. See Mayo v. withheld the information from his attorney and the court. Henderson, 13 F.3d 528, 533 (2d Cir.1994); Claudio v. Further, in light of the considerable evidence adduced at Scully, 982 F.2d 798, 803 (2d Cir.1992). Appellate trial supporting the jury's guilty verdict, Senor has not counsel need not present every non-frivolous argument that demonstrated that, had his attorney moved to set aside the could be made. See Mayo, 13 F.3d at 533; see also Evitts verdict, the court would have granted the motion. With v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d respect to both issues on which he bases his ineffective 821 (1985) (emphasizing that appellate counsel "need not assistance claim, therefore, Senor has failed to satisfy advance every argument, regardless of merit, urged by the either prong of the Strickland test. appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533. A petitioner, 1. Ineffective Assistance of Appellate Counsel however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that Senor next argues that his appellate counsel provided him were patently and significantly weaker. Cf. Jackson v. ineffective assistance by refusing to brief on appeal the Leonardo, 162 F.3d 81, 85 (2d Cir.1998) ("relief may be issue of lack of probable cause with respect to his arrest. warranted when a decision by counsel cannot be justified In particular, Senor contends that his attorney should have as a result of some kind of plausible trial strategy"). witnesses. At the conclusion of the hearing, the court addressed only the issue of the lineups, *9 [4] Senor has failed to demonstrate in this case that his stating that it found they had not been unduly appellate counsel's actions amount to constitutionally suggestive, and denied the defense's motion to inadequate performance. In his thirty-one-page brief to the suppress the lineup identifications.

Appellate Division, Senor's counsel focused on three issues that, he urged, warranted a reversal of Senor's conviction: (1) the prosecution's failure to turn over a Senor never asked the court for a Dunaway prospective witness's prior statement; (2) the prosecution's hearing to determine whether the police had violation, during the cross-examination of petitioner at probable cause to arrest him. Nor did he ask trial, of the court's pre-trial ruling; and (3) the the court to reconsider its decision in the Wade insufficiency of the evidence to sustain a murder hearing or move to reopen the hearing based conviction. The brief included a detailed review of the on any evidence adduced at the first trial. evidence presented at trial as well as citations to the Furthermore, prior Senor's second trial, Senor record. Counsel chose not to pursue on appeal the issues did not move, pursuant to N.Y.Crim. Proc. related to the propriety of Senor's arrest, presumably Law §§ 710.20(1) and 710.60(1), to suppress because, in his professional judgment, he believed those any evidence or for a hearing on any issues were not preserved for appellate review and, in any suppression issue. Nor did he move, based event were meritless. upon evidence adduced at the second trial, for reconsideration of his initial motion or for a Dunaway hearing.

Counsel's decision not to advance the lack of probable cause claim on appeal did not bring his performance below an objective standard of reasonableness. See Under New York law, a defendant fails to Strickland, 466 U.S. at 687. The claim was both preserve an issue for appellate review when he unpreserved for appellate review and meritless, and thus fails to object with specificity during the the decision to forgo pursuing it on appeal did not fall original proceeding, to seek curative below any standard of reasonableness.FN4 instructions, or to request a mistrial. See N.Y.Crim. Proc. Law § 470.05(2). Because Senor failed to object to the admission of the FN4. Prior to Senor's first trial, his trial counsel lineup identifications on the specific basis that moved to suppress his pretrial identification, the police obtained them in violation of his claiming, among other grounds, that the police Fourth Amendment rights, the questions of the had arrested Senor without probable cause. The propriety of Senor's detention and the prosecution consented to a Wade hearing to admissibility of the resulting evidence were examine the pro p riety of the lineup not preserved for appellate review. See People identifications, but did not address Senor's v. Miguel, 53 N.Y.2d 920, 924, 440 N.Y.S.2d contention that the identifications were the result 923, 423 N.E.2d 400 (1981). Moreover, as of an unlawful arrest. During the Wade hearing, discussed earlier, Senor's trial counsel had no the prosecution called Detective Burzotta as its basis upon which to request a Dunaway sole witness, while the defense called no hearing to raise the probable cause issue.

Cir.1982). Exhaustion requires a petitioner to have presented to each level of the state courts the same federal In any event, Senor cannot show that he was prejudiced by constitutional claims, legally and factually, that are raised his appellate counsel's decision not to advance the in his petition to the federal court, so that the state courts probable cause claim because Senor asserted that claim in will have been alerted to them and have had the initial his pro se supplemental brief submitted to the Appellate opportunity to assess them. See O'Sullivan, 119 S.Ct. at Division. The Appellate Division considered the claims 1732-33; Duncan, 513 U.S. at 365-66; Picard, 404 U.S. raised in Senor's pro se brief and determined that they at 275-76; Daye, 696 F.2d at 191. were either unpreserved for appellate review or without merit. Consequently, had appellate counsel included the probable cause claim in his brief to the Appellate *10 In this case, Senor presented this Fourth Amendment Division, the result would have been the same. claim on direct appeal in his pro se supplemental brief to the Appellate Division. In its November 6, 1995, decision affirming Senor's judgment of conviction, the Appellate 2. Lack of Probable Cause to Arrest Division rejected this claim, among others, without discussion, as either not preserved or without merit. See People v. Senor, 221 A.D.2d 384, 635 N.Y.S.2d 480 (2d [5] Senor claims that the police seized him without Dep't 1995).FN5 Senor then failed to apply for leave to probable cause, questioning him based on a vague appeal to the New York Court of Appeals from the description concocted by two witnesses. As discussed Appellate Division's decision affirming his conviction.FN6 earlier, Senor maintains that the witnesses who initially Because he did not present this claim to the New York gave the police a description of the shooter in this case Court of Appeals, the claim is unexhausted. See either fabricated that description or embellished it to fit O'Sullivan, 119 S.Ct. at 1732-33; Grey v. Hoke, 933 F.2d Senor. Because the police had no other reason to stop and 117, 119 (2d Cir.1991) (stating that, in order to exhaust detain Senor, he maintains that his resulting arrest violated state remedies, "a petitioner must present his federal the Fourth Amendment, and the lineup identifications were constitutional claim to the highest court of the state"). FN7 the fruit of that unlawful arrest.

FN5. In Fama v. Commissioner of Corr. Servs.,

This claim is barred from federal review because Senor 235 F.3d 804, 810 (2d Cir.2000), the Second failed to exhaust it in the state courts. The exhaustion Circuit held that when a state court uses language requirement, which arises out of considerations of comity such as "[t]he defendant's remaining contentions between the federal and state judicial systems, ensures that are either unpreserved for appellate review or state courts have an opportunity to correct any violations without merit," the validity of the claim is of the federal constitutional rights of prisoners already preserved and is subject to federal review. within their jurisdiction. See O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999);

Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, FN6. As mentioned earlier, Senor states that he 130 L.Ed.2d 865 (1995) (per curiam ); Picard v. Connor, sought leave to appeal the Appellate Division's 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); November 6, 1995, decision, but cites as support Daye v. Attorney General, 696 F.2d 186, 191 (2d a certificate from the New York Court of Appeals, dated June 19, 1996, that denies him In any event, the claim is without merit. In Stone v. leave to appeal a subsequent May 8, 1996, Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 decision by the Appellate Division. Respondent (1976), the Supreme Court curtailed federal habeas review maintains that Senor did not seek leave to appeal of Fourth Amendment claims where the state has provided the Appellate Division's November 6, 1995, "an opportunity for full and fair litigation" of the Fourth decision affirming his conviction, and nothing in Amendment challenge. Id. at 482. Following Powell, the the record indicates that he did. Second Circuit has held that courts should review Fourth

Amendment claims in habeas petitions only if: (1) the state has provided no corrective procedures at all to redress the FN7. Although Senor also raised this same claim alleged Fourth Amendment violations; or (2) the state has in a § 440 motion and then appealed the denial of provided a corrective mechanism, but the defendant was that motion to the Appellate Division, he still precluded from using that mechanism because of an failed to exhaust it because the New York Court unconscionable breakdown in the underlying process. See of Appeals never had the opportunity to review Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.1977) (en the claim. banc ); see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992).

Senor can no longer exhaust this claim because, under N.Y.Crim. Proc. Law § 460.10(5), he had thirty days after Senor cannot claim that the state lacked sufficient November 6, 1995, the date the Appellate Division procedures for redress of his Fourth Amendment claim affirmed his conviction, to make an application for leave because the courts in this circuit have expressly approved to appeal to the Court of Appeals. Because this time limit New York's procedure for litigating such claims, specified has expired, this claim is procedurally barred from review in N.Y.Crim. Proc. Law §§ 710 et seq., as facially by the state courts. Where it is clear that a state court adequate. See, e.g., Gates, 568 F.2d at 837 & n. 4; Taylor would determine that an unexhausted claim is procedurally v. Kuhlmann, 36 F.Supp.2d 534, 549 (E.D.N.Y.1999); barred from state review, such a claim is deemed Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y.1989). exhausted. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (citing Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) ("[A] federal *11 Moreover, Senor has not alleged that an habeas court need not require that a federal claim be unconscionable breakdown in the process occurred, nor presented to a state court if it is clear that the state would could he. To allege such a breakdown, Senor must prove hold the claim procedurally barred.")). that "no state court ... conducted a 'reasoned method of inquiry into relevant questions of fact and law' or any inquiry at all into the Fourth Amendment claim." Shaw v. Senor has not attempted to show cause and resulting Scully, 654 F.Supp. 859, 863-64 (S.D.N.Y.1987) (quoting prejudice for his failure to appeal the Appellate Division's Cruz v. A lexan d er, 4 7 7 F.Supp. 516, 523 decision affirming his conviction. In addition, my refusal (S.D.N.Y.1979)); see also Taylor, 36 F.Supp.2d at 549. At to consider the claim would not result in a miscarriage of the Wade hearing prior to his first trial, Senor raised the justice. issue of lack of probable cause to arrest, but did not adduce sufficient facts to press that issue in a Dunaway hearing. A state court thus conducted an inquiry into the questions relevant to the issue raised, and no unconscionable breakdown in the process occurred. As a result, I cannot consider Senor's illegal arrest argument as 4. The Claim That the Prosecutor Failed to Turn Over a an independent basis for habeas review. Prior Witness Statement and Violated a Pre-Trial Ruling

3. The Claim that Senor did not Voluntarily Accompany During Senor's second trial, defense witness Yashika the Police to the Precinct Jones testified on direct examination that, on the night Senor was arrested, she went to Putnam Avenue, where Senor usually hung out, to look for him. See Tr. at 259.FN8

[6] Senor claims that his acquiescence in accompanying On cross-examination, the prosecutor asked Jones why she the arresting officers to the precinct did not constitute thought Senor would be at Putnam Avenue. Jones replied, voluntarily consent and thus did not justify an otherwise "Because he sold drugs up there on Putnam Avenue." Id. unlawful police intrusion. Respondent argues that this at 264. Later on in the trial, when Senor testified, defense claim is barred from habeas review because the state court counsel asked him if he had ever been convicted of a denied it based on a state procedural default, which felony. Senor answered yes. Defense counsel then asked constitutes an independent and adequate state ground. if the conviction related to drugs. Senor replied, "Yes, it was possession." Id. at 295. On cross-examination, the prosecutor asked Senor, "Now, you were arrested for I agree. In denying petitioner's first § 440 motion, the selling drugs for the case that you took five years court held that Senor's claim that he did not voluntarily probation for?" Id. at 305. Senor answered, "Yes." Id. consent to accompany the police to the precinct station was procedurally barred under N.Y.Crim. Proc. Law § 440.10(2)(c), because petitioner based it on matters that FN8. "Tr." refers to the transcript of Senor's appeared in the record, yet did not raise the claim on second trial. direct appeal and failed to offer a "reasonable excuse" for not doing so. The order of the Appellate Division denying, without comment, leave to appeal the denial of petitioner's *12 Senor claims that the prosecutor violated New York § 440 motion does not alter this result. See Ylst v. law as articulated in People v. Rosario, 9 N.Y.2d 286, 213 Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 N.Y.S.2d 448, 173 N.E.2d 881 (1961), by failing to turn L.Ed.2d 706 (1991) ("[W]here ... the last reasoned opinion over to the defense a statement Jones gave to the on the claim explicitly imposes a procedural default, we prosecutor prior to trial, in which she allegedly mentioned will presume that a later decision rejecting the claim did that Senor had sold drugs on Putnam Avenue. He further not silently disregard that bar and consider the merits."). asserts that, by eliciting from Jones that Senor sold drugs and by asking Senor on cross-examination about his drug activities, the prosecutor violated the court's pre-trial Senor does not show cause and prejudice for the default. ruling in a hearing pursuant to People v. Sandoval, 34 Furthermore, considering the paucity of evidence N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974). supporting his claim that his arrest violated the Fourth During that Sandoval hearing, the trial court had ruled that Amendment, a miscarriage of justice will not result from if Senor testified on his own behalf at trial, the prosecution my failure to review the claim. could inquire about his prior felony conviction, but could not elicit the underlying facts of that conviction, Senkowski, No. 95-CV-1866, 1996 W L 449321, at *3 specifically that it was for possession of a controlled (E.D.N.Y. July 29, 1996) ("The decision to admit prior substance. Senor maintains that the prosecutor convictions ... [is] not redressable in a federal habeas intentionally withheld from the defense Jones' statement corpus proceeding absent a showing that the particular regarding Senor selling drugs, so that, at trial, the errors were of constitutional magnitude." (quotations prosecutor could circumvent the court's Sandoval ruling omitted)). and elicit from Jones facts related to Senor prior drug possession conviction. Senor contends that these actions deprived him of a fair trial. *13 In order for an evidentiary error to be cognizable under habeas corpus review, the error must cause "actual prejudice" to the petitioner by having a "substantial and Respondent contends that this Court cannot review this injurious effect or influence in determining the jury's claim because it relates only to state, not federal, verdict." See Brecht v. Abrahamson, 507 U.S. 619, questions. That is not entirely correct. The Supreme Court 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal has emphasized on several occasions that federal habeas quotation marks omitted); see also Loliscio v. Goord, 263 relief does not lie for errors of state law. See, e.g., Estelle F.3d 178, 185 (2d Cir.2001) (posing but not answering v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d question whether, in light of AEDPA, a federal habeas 385 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. court should continue to apply the Brecht standard or 3092, 111 L.Ed.2d 606 (1990); Pulley v. Harris, 465 U.S. determine instead whether the state court's decision was 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). In contrary to, or involved an unreasonable application of, conducting habeas review, a federal court is limited to the harmless error standard established in Chapman v. determining whether a conviction violated the California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 Constitution, laws, or treaties of the United States. See (1967)).

Estelle, 502 U.S. at 67; 28 U.S.C. § 2241. A federal court, therefore, cannot review a habeas claim based on an alleged Rosario violation because the Rosario rule is Even assuming the trial court erroneously permitted the purely a matter of state law. See Green v. Artuz, 990 prosecutor to question Senor about his prior drug F.Supp. 267, 274 (S.D.N.Y.1998); Morrison v. McClellan, conviction, Senor has not demonstrated that the ruling 903 F.Supp. 428, 429 (E.D.N.Y.1995); United States ex influenced the jury's verdict in any way. The prosecution rel. Butler v. Schubin, 376 F.Supp. 1241, 1247 presented abundant evidence at trial pointing to (S.D.N.Y.1974), aff'd, 508 F.2d 837 (2d Cir.1975). petitioner's guilt. Furthermore, Senor's claim is meritless.

On direct examination of Jones, the defense opened the door to questions regarding why Jones went to Putnam [7] A claim based on an alleged Sandoval violation, on the Avenue to look for Senor. In addition, when questioning other hand, deals with an evidentiary question and may Senor, the defense counsel, not the prosecutor, elicited the present an issue for habeas relief, but only if the petitioner facts underlying Senor's prior felony conviction. The establishes that the trial court committed error that prosecutor, therefore, appropriately developed these facts constitutes a deprivation of a constitutionally recognized on cross-examination of Senor. right. See Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir.1988); Benitez v. Senkowski, No. 97-Civ-7819, 1998 W L 668079, at *7 (S.D.N.Y. Sept.17, 1998); Rojas v. [8] In any event, the claim is procedurally defaulted. Senor asserted this claim on direct appeal to the Appellate (E.D.N.Y.) Division, but failed to include it in his leave application.

Moreover, he failed to include it in any of his § 440 motions. Thus, the claim is unexhausted. See Grey v. END OF DOCUMENT Hoke, 933 F.2d 117, 119 (2d Cir.1991). Senor can no longer exhaust this claim because, under N.Y. Crim Proc. Law § 460.10(5), he had thirty days after November 6, 1995, the date the Appellate Division affirmed his conviction, to make an application for leave to appeal to the Court of Appeals. Thus, he can no longer seek leave to appeal this claim. In addition, he cannot raise this claim in another § 440 motion because it relates to facts that appear on the record and, consequently, he should have asserted it on direct appeal and cannot do so now through a collateral challenge. See N.Y.Crim. Proc. Law § 440.10.

Where it is clear that a state court would determine that an unexhausted claim is procedurally barred from state review, such a claim is deemed exhausted. See O'Sullivan, 119 S.Ct. at 1732-33; Grey, 933 F.2d at 120. Therefore, this claim is procedurally barred from federal review because Senor fails to show cause and prejudice or that a fundamental miscarriage of justice will result.

CONCLUSION

For the reasons stated above, Senor's petition for a writ of habeas corpus is denied in its entirety. I hereby decline to issue a certificate of appealability, since Senor has not presented a "substantial showing of the denial of a constitutional right." Reyes v. Keane, 90 F.3d 676, 680 (2d Cir.1996).

*14 So Ordered.

E.D.N.Y.,2002.

Senor v. Greiner Not Reported in F.Supp.2d, 2002 W L 31102612

*1 Petitioner Julia Long, a New York State prison inmate as a result of 1997 convictions for the crimes of first Only the Westlaw citation is currently available. degree assault and criminal possession of a weapon, has commenced this proceeding seeking federal habeas relief pursuant to 28 U.S.C. § 2254. In her petition, Long asserts United States District Court, seven separate grounds in support of her request for

N.D. New York. federal habeas intervention. Respondent has filed a Julia LONG, Petitioner, response in opposition to Long's petition, arguing therein

v. that some of the claims asserted by Long are procedurally Elaine A. LORD, Respondent. barred, and additionally that none of the grounds advanced

No. 03-CV-0461 NPM . in her petition have merit.

March 21, 2006. This Court finds that Long is procedurally barred from asserting several of the claims she has raised in her petition. Since petitioner has not established cause for her

Julia Long, Bedford Hills Correctional Facility, Bedford procedural default concerning those grounds or that she is Hills, NY, Petitioner, pro se. actually innocent of any of the crimes of which he stands convicted, this Court denies those claims as procedurally barred. Furthermore, after considering the remaining Hon. Eliot Spitzer, Office of Attorney General, New York grounds raised by Long in her petition in conjunction with State Attorney General, The Capitol, Albany, NY, for the applicable case law, this Court finds that the additional Respondent. claims asserted by Long in her habeas petition lack merit.

Accordingly, this Court denies and dismisses Long's petition.

Bridget E. Holohan, Ass't Attorney General, of counsel.

I. BACKGROUND

Memorandum-Decision and Order issued in

A. State Court Proceedings

SMITH, J.

According to the state court records below, in the MEMORANDUM-DECISION and ORDER afternoon of May 1, 1995, Long attended a meeting at the

TC Club in Albany, New York in order to discuss the possibility of leasing that property from its owner. See MCCURN, Senior J. Transcript of Trial of Julia Long (1/3/97) ("Trial Tr.") at 366. Ivetta Parson, an individual with whom Long had had an altercation earlier that year, was also at the club around the time of Long's meeting. See Trial Tr. at 120-23. For reasons not apparent from the record, Long approached Kenneth Kennedy, a Detective with the Albany Police Parson at that time and sprayed her face with mace. Trial Department, was assigned to perform a criminal Tr. at 123-24. Parson ran out of the club and went to the investigation relating to the above-referenced shooting. home of her friend, Regina Monell, where Parson washed After speaking with several individuals, Detective her face. Trial Tr. at 125. The two then decided to drive to Kennedy began looking for Long so that he could question the TC Club with some friends and confront Long about her about her activities on May 1, 1995. Trial Tr. at 325. the incident that had just transpired. Trial Tr. at 126-27. When Long learned that the police were attempting to When the group arrived at the club, Parson observed Long question her about the shooting, she contacted an attorney holding a handgun. Trial Tr. at 132. Parson exited her and thereafter surrendered to law enforcement agents. vehicle, and as she was walking around her car she Trial Tr. at 438-39. discovered that she was bleeding.FN1 Trial Tr. at 132-33.

Around this same time, Monell observed Long firing her weapon at Parson, Trial Tr. at 163-64, and soon thereafter On October 13, 1995, an Albany County grand jury Monell noticed that she had also been shot. Trial Tr. at returned an indictment against Long. See Indictment No. 164. 950631 ("Indictment"). In that accusatory instrument,

Long was charged with one count of attempted murder, two counts of first degree assault, and two counts of FN1. Parson did not hear Long's gun discharge. second degree criminal possession of a weapon. See Trial Tr. at 133. Indictment, Counts One through Five. Beginning on January 3, 1997, Long was tried before a jury on the foregoing charges in Albany County Court with County *2 The trial transcript also reflects that on May 1, 1995, Court Judge Thomas A. Breslin presiding. After the Charles Traynham was a long time acquaintance of Robert parties presented their closing arguments and the court Temple. Trial Tr. at 292. At approximately 5:00 p.m. on instructed the jury, the jury began its deliberations. that date, Traynham and Temple were across the street Following several requests by the jury for the reading back from the TC Club. Trial Tr. at 293. Soon after Traynham of testimony and clarifications regarding the court's went into a nearby store, he heard gunshots. Trial Tr. at instructions, Trial Tr. at 634-52, the jury declared that it 293-94. Traynham left the store and heard Temple calling had reached a verdict in the case. In its verdict, the jury: i) out that he had been "hit." Trial Tr. at 294. When acquitted Long of the attempted murder charge; ii) Traynham noticed that Temple was bleeding, Traynham convicted her of both counts charging Long with first drove him to a nearby hospital to be treated for his degree assault; iii) convicted her of the count charging injuries, Trial Tr. at 296, which included a life-threatening Long with second degree criminal possession of a weapon gunshot wound to an artery in his right arm. Trial Tr. at (which related to victim Monell); and iv) acquitted her of 186-89.FN2 the final count charging Long with second degree criminal possession of a weapon (which related to victim Temple). Trial Tr. at 652-55.

FN2. The prosecution was unable to locate Temple prior to the date of Long's trial. Trial Tr. at 289. Prior to sentencing, Long's counsel filed a motion to set aside the jury's guilty verdict pursuant to New York January, 2001 Order to the Appellate Division along with Criminal Procedure Law ("CPL"), Section 330.30 ("CPL her direct appeal of her conviction. Record at 155. § 330 Motion"). See Record on Appeal ("Record") at 133.

In that application, defense counsel alleged that the convictions must be reversed because Parson was allowed With the assistance of counsel, Long argued in her direct to testify that she was shot by Long despite the fact that appeal that: i) she was unduly prejudiced by Parson's Long had never been charged with assaulting Parson. testimony to the effect that she was shot by Long; ii) there Record at 134. Counsel also claimed that there was was insufficient evidence adduced at trial to convict Long insufficient evidence adduced at trial to establish that of the first degree assault of Temple; iii) she was denied Temple was shot by Long. Record at 135. After hearing her right to a fair trial due to the manner in which the trial argument on that application, on February 21, 1997, the court mischaracterized the allegations of one of the county court denied Long's CPL § 330 Motion in its charges in the Indictment; iv) the jury's verdict was entirety. Record at 119-24. That court then sentenced repugnant; and v) the sentences were unduly harsh and Long to consecutive, indeterminate terms of five to fifteen excessive. See Appellant's Brief on Appeal ("App.Br.") at years imprisonment on each of the first degree assault 1-25. That appeal was opposed by the District Attorney in convictions, and a lesser, concurrent term of imprisonment his brief dated December 14, 2001, and on February 28, on the criminal possession of a weapon conviction. See 2002, the Third Department unanimously affirmed Long's Record at 130-31. convictions and sentences. People v. Long, 291 A.D.2d

720, 738 N.Y.S.2d 721 (3d Dept.2002). New York's Court of Appeals denied Long leave to appeal in its order dated *3 Long appealed her convictions and sentences to the June 17, 2002. See People v. Long, 98 N.Y.2d 677, 746 New York State Supreme Court, Appellate Division, Third N.Y.S.2d 467, 774 N.E.2d 232 (2002).

Department. However, on November 25, 2000, prior to perfecting that appeal, Long filed a motion to vacate her sentence pursuant to CPL § 440.20. Record at 138. In that B. Proceedings in this Court application, Long alleged that the consecutive sentences that had been imposed on her by the county court were illegal and contrary to her rights under both the federal Long commenced this proceeding, pro se, on April 14, and New York state constitutions. See Record at 139-44 2003. See Petition (Dkt. No. 1). In that pleading, petitioner ("CPL 440.20 Motion"). In support of that application, argues that: i) admission into evidence of an uncharged Long provided an affidavit of Temple-of whom Long had crime purportedly committed by Long deprived her of her been convicted of assaulting-in which Temple declared right to a fair trial; ii) the trial court wrongfully denied that he could not identify the individual who shot him on Long's application to dismiss the third count in the May 1, 1995. Record at 145. Long's application was Indictment; iii) the jury's verdict was repugnant; iv) the opposed by the District Attorney, Record at 146-47, and trial court misstated the factual allegations contained in the by Decision and Order dated January 25, 2001, Judge third count in the Indictment in its instructions to the jury; Breslin denied Long's CPL 440.20 Motion in its entirety. v) the sentence imposed was both harsh and excessive; vi) Record at 149-51 ("January, 2001 Order"). Long sought the imposition of consecutive sentences was both illegal leave to appeal that decision to the Appellate Division, see and violative of Long's right against Double Jeopardy; and Record at 152, and in its order dated April 20, 2001, the vii) the Appellate Division wrongfully refused to hear Third Department granted Long leave to appeal the Long's appeal of the denial of her CPL 440.20 Motion.

See Petition at ¶ 13. Long has also filed a memorandum of In her direct appeal, Long noted that the Indictment never law in support of her petition. See Dkt. No. 2 ("Supporting charged her with committing any crime against Parson. Mem."). See App. Br. at 3; see also Indictment. Prior to trial, defense counsel obtained a ruling from the county court that precluded Parson from testifying about the fact that *4 By Order dated April 24, 2003, the respondent was she had been shot on May 1, 1995. See App. Br. at 5; see ordered to file a response to Long's petition. On June 20, also Appellant's Appendix at A1. At trial, however, Parson 2003, the Office of the Attorney General for the State of testified that she was shot on that day in a manner which New York, acting on respondent's behalf, filed an answer suggested that Long was the individual who had shot her. together with a memorandum in opposition to Long's See Trial Tr. at 163-64. In addressing Long's appellate petition. Dkt. Nos. 8-9. In his opposing memorandum, claim that the admission of that testimony constituted respondent argues that Long is procedurally barred from reversible error, the Third Department ruled that Long had asserting certain of the claims raised in her petition, and "failed to object to Parson's testimony and, therefore, did that none of Long's claims have merit. See Dkt. No. 9 not preserve this issue for appellate review." Long, 291 ("Opp.Mem."). A.D.2d at 721, 738 N.Y.S.2d 721 (citing CPL § 470.05[2]

) (other citation omitted).

II. DISCUSSION

A state court's determination that a claim was not preserved for appellate review is a finding of procedural A. Procedurally Defaulted Claims default. See Rivera v. Moscicki, No. 03 CIV. 5810, 2005 WL 2347840, at *3 (S.D.N.Y. Sept. 22, 2005); Wilson v. Supt., Attica Corr. Facility, No. 9:00-CV-767, 2003 WL This Court initially considers respondent's claim that Long 22765351, at *3 (N.D.N.Y. Nov.24, 2003) (Sharpe, M.J.) has procedurally defaulted on her claims: i) which allege (citations omitted), adopted, Wilson v. Supt., Attica Corr. that she was denied her right to a fair because Parson was Facility, slip op. at 2 (N.D.N.Y. Feb. 3, 2004) (Mordue, allowed to testify about an uncharged crime purportedly J.); Betancourt v. Bennett, No. 02-CV-3204, 2003 WL committed by Long; ii) that assert that the county court 23198756, at *12 (E.D.N.Y. Nov.7, 2003). Therefore, mischaracterized a charge contained in the Indictment; and Long has procedurally defaulted on her first ground for iii) which contest both the legality and constitutionality of relief. her sentences. See Opp. Mem. at 3-6.

2. Misstatement Regarding Count Three of the Indictment 1. Admission of Evidence of an Uncharged Crime

In her fourth ground seeking federal habeas intervention,

Petitioner's initial ground for relief is based upon Parson's Long argues that in its charge to the jury, the trial court trial testimony in which she suggested that she was shot by mischaracterized the allegations contained in Count Three Long. See Petition, Ground A. of the Indictment. Petition, Ground D. Specifically, she notes that such count alleged that Long shot Temple in his chest and right arm. See Indictment, Count Three (emphasis added). In its charge to the jury, however, the an independent and adequate state ground, trial court declared that this count alleged that Long had even where the state court has also ruled in the shot Temple in the right side of his head and in his right alternative on the merits of the federal claim." arm. See Trial Tr. at 617 (emphasis added). Long claims Velasquez v. Leonardo, 898 F.2d 7, 9 (2d in this action, as she did in her direct appeal, that as a Cir.1990); Glenn v. Bartlett, 98 F.3d 721, result of the foregoing she was deprived of her right to a 724-25 (2d Cir.1996) (citing Velasquez ); see fair trial. See Supporting Mem. at 16-18; App. Br. at also Olivo v. Thorton, No. 05 CIV.3237, 2005 16-18. WL 3292542, at *8 (S.D.N.Y. Dec. 6, 2005);

Broome v. Coughlin, 871 F.Supp. 132, 134 (N.D.N.Y.1994) (Kaplan, J., sitting by *5 In addressing this appellate claim, the Appellate designation). Therefore, this Court deems Division determined that Long had "failed to object to the Long to have procedurally defaulted on this court's charge and, therefore, that error has not been ground. preserved for review (see, CPL 470.05[2] )." Since the Third Department explicitly determined that Long had failed to preserve this issue for appellate review, Long has 3. Claims Raised in CPL 440.20 Motion procedurally defaulted on the fourth claim asserted in her petition.FN3 Rivera, 2005 WL 2347840, at *3; Wilson, 2003 WL 22765351, at *3; Betancourt, 2003 WL Long argued in her CPL 440.20 Motion, and similarly 23198756, at *12. asserts in her sixth ground for relief herein, that the county court's imposition of consecutive sentences on Long was both illegal and contrary to her constitutional right to be FN3. The Appellate Division's decision might be free from Double Jeopardy. See Record at 139-44; liberally read as one that alternatively addressed Petition, Ground F. the merits of this claim. See Long, 291 A.D.2d at 723, 738 N.Y.S.2d 721 (after noting Long's procedural default on the claim relating to the As noted above, the Appellate Division granted Long county court's misreading of Count Three of the permission to appeal the county court's January, 2001 Indictment, the Third Department opined that Order denying Long's CPL 440 .20 Motion. See Record at "were we to address the issue, we would find it 155. Long's appellate counsel did not, however, assert on without merit since all other trial references to appeal any claims that Long had raised in her CPL 440.20 Temple's wound correctly characterized its Motion. See App. Br. at 4-25. In addressing this fact in the nature"). context of Long's appeal, the Third Department noted:

Even assuming, arguendo, that the above cited Although [Long] appeals from both the judgment of language may properly be characterized as an conviction and the order denying the CPL 440.20 (alternative) decision addressing the merits of motion, her failure to address any issues pertaining to this claim, the undersigned notes that "federal the denial of her CPL 440.20 motion constitutes an habeas review is foreclosed when a state court abandonment of the appeal from that order. has expressly relied on a procedural default as Accordingly, we address only the arguments raised on the appeal from the judgment of conviction. review of procedurally defaulted claims is available where the petitioner demonstrates that a fundamental miscarriage of justice would occur absent federal court review.FN4

CV-98-6284, 2005 WL 1009545, at *8 (E.D.N.Y. May 2, 2005).

Long, 291 A.D.2d at 721, 738 N.Y.S.2d 721. Dixon, 293 F.3d at 80; Morales v. Greiner, No. Where a petitioner abandons a claim at the appellate level, federal courts are to view such a claim as procedurally defaulted. Delucia v. West, No. 04 CIV. 3605, 2005 WL FN4. A fundamental miscarriage of justice exists 1981708, at *4 (S.D.N .Y. Aug. 17, 2005) ("claims [that] "where a constitutional violation has probably may be considered abandoned ... result[ ] in a procedural resulted in the conviction of one who is actually default"); Stephens v. Lacy, 914 F.Supp. 44, 45 innocent." Dixon v. Miller, 293 F.3d 74, 81 (2d (E.D.N.Y.1996) (claims abandoned at the appellate level Cir.2002). are procedurally defaulted). This Court accordingly finds that Long has procedurally defaulted on her sixth ground seeking federal habeas intervention. *6 For this Court to excuse Long's procedural default under the "cause and prejudice" exception which permits federal review of procedurally barred claims, she must B. Consequences of Procedural Default first establish "cause" for her default. E.g., St. Helen v. Senkowski, 374 F.3d 181, 184 (2d Cir.2004) (citation omitted), cert. denied, 543 U.S. 1058, 125 S.Ct. 871, 160 A federal district court is precluded from reviewing a L.Ed.2d 785 (2005); Stepney v. Lopes, 760 F.2d 40, 45 habeas claim if the state courts' rejection of that same (2d Cir.1985). To establish such cause, a petitioner must claim rested on a state procedural bar. Harris v. Reed, show that "some objective external factor impeded [her] 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 ability to comply with the relevant procedural rule." (1989); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000); Wilson, 2003 WL 22765351, at *3 (citing Coleman v. Marengo v. Conway, 342 F.Supp.2d 222, 228 Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 (S.D.N.Y.2004) (citations omitted). Thus, where the state L.Ed.2d 640 (1991)); Restrepo v. Kelly, 178 F.3d 634, 638 court decision clearly and expressly indicates that its (2d Cir.1999)). Examples of such "external factors" determination rests on a state procedural bar, a federal include "interference by officials," the ineffective court may not review such claim when it is subsequently assistance of counsel, or proof that "the factual or legal asserted in a federal habeas petition unless the petitioner basis for a claim was not reasonably available" at the time demonstrates both good cause for and actual prejudice of petitioner's trial or on direct appeal. Wilson, 2003 WL resulting from the noncompliance with the state's 22765351, at *3 (citing Murray v. Carrier, 477 U.S. 478, procedural rule. Fama v. Commissioner of Correctional 488 (1986)); see Bossett v. Walker, 41 F.3d 825, 829 (2d Services, 235 F.3d 804, 809 (2d Cir.2000); Livingston v. Cir.1994) (citing Murray ); United States v. Helmsley, 985 Herbert, No. 00-CV-1698, 2002 WL 59383, at *2 F.2d 1202, 1206 (2d Cir.1992). (N.D.N.Y. Jan. 3, 2002) (Homer, M.J.), adopted, No. 00-CV-1698, docket no. 20 (N.D.N.Y. Jan. 24, 2002) (Kahn, J.), appeal dismissed, No. 02-2083, slip op. at 1 In the present action, Long has not offered any cause for (2d Cir. Aug. 28, 2002) (unpublished). Additionally, her failure to preserve the above-referenced procedurally defaulted claims-all of which were based upon matters demonstrating cause for her procedural default contained in the record-for review in her direct appeal of and resulting prejudice. See Simpson v. her conviction. Significantly, Long has never asserted, in Portuondo, 01CIV.8744, 2002 WL 31045862, at the state courts or this action, that her trial counsel *5 (S.D.N.Y. June 4, 2002). rendered ineffective assistance by his failure to object to either Parson's trial testimony or the manner in which the trial court described the allegations contained in the third *7 The finding that Long has failed to establish cause for count in the Indictment to the jury during the county her procedural default does not necessarily preclude this court's instructions.FN5 Nor has Long ever argued that her Court from considering her procedurally forfeited claims, appellate counsel rendered ineffective assistance by failing however, because, as noted above, a federal court may to raise any of the claims Long asserted in her CPL 440.20 nonetheless properly invoke habeas review as to such Motion on appeal. claims if the court is convinced of the petitioner's actual innocence. On this question, the Second Circuit has observed that: FN5. Long was represented by Eugene Grenz, Eq. at her criminal trial, and by Theresa M.

Suozzi, Esq. on appeal. The Supreme Court has explained that the fundamental miscarriage of justice exception is "extremely rare" and should be applied only in "the extraordinary Since Long has not established cause for her procedural cases." Schlup v. Delo, 513 U.S. 298, 321-22, 115 default concerning these claims, this Court need not S.Ct. 851, 130 L.Ed.2d 808 ... (1995). " "[A]ctual decide whether she suffered prejudice, because federal innocence' means factual innocence, not mere legal habeas relief is unavailable under this limited exception insufficiency." Bousley v. United States, 523 U.S. permitting review of procedurally barred claims unless 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 ... (1998). both cause and prejudice is demonstrated.FN6 See Stepney, "To establish actual innocence, [a] petitioner must 760 F.2d at 45; D'Alessandro v. Fischer, No. 01 CIV. demonstrate that, 'in light of all the evidence,' 'it is 2551, 2005 W L 3159674, at *9 n. 10 (S.D.N.Y. Nov. 28, more likely than not that no reasonable juror would 2005) ("[a]s Petitioner has not shown cause for his default, have convicted him." ' Id. (citing Schlup, 513 U.S. this Court need not even reach the question of whether [at] 327-28 ... (some internal citation marks omitted)). Petitioner can show prejudice") (citing Stepney ); Moore v. Greiner, No. 02 CIV.6122, 2005 WL 2665667, at *12 (S.D.N.Y. Oct.19, 2005) (citing Stepney ); Lutes v. Ricks, Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir.2003); see No. 02-CV-1043, 2005 WL 2180467, at *9 (N.D.N.Y. also D'Alessandro, 2005 WL 3159674, at *8; Marengo, Sept. 9, 2005) (McAvoy, S.J.) (citing Stepney and Jones 342 F.Supp.2d at 228. Thus, in considering whether a v. Barkley, No. 9:99-CV-1344, 2004 WL 437468, at *9 petitioner's procedural default may be excused under this (N.D.N.Y. Feb.27, 2004) (Sharpe, J.) (collecting cases)); "actual innocence" exception, federal courts are to Pou v. Keane, 977 F.Supp. 577, 581 (N.D.N.Y.1997) consider the sufficiency of the evidence offered against the (Kahn, J.). petitioner at his or her trial. Dixon, 293 F.3d at 81.

FN6. The petitioner bears the burden of Considering first Long's convictions for the crimes of first degree assault, this Court notes that "New York Penal Law to Temple, after reviewing the relevant trial testimony § 120.10(1) provides that a person is guilty of first degree relating to this charge, this Court adopts the Appellate assault when, '[w]ith intent to cause serious physical Division's determination that the trial testimony "provided injury to another person, he [or she] causes such injury to a valid line of reasoning and permissible inferences from such person or to a third person by means of a deadly which any rational trier of fact could find [Long] guilty weapon or dangerous instrument." ' Jackson v. Lacy, 74 beyond a reasonable doubt of all the essential elements of F.Supp.2d 173, 178 (N.D.N.Y.1999) (McAvoy, C.J.). the crime of assault in the first degree" as to Temple. See Long, 291 A.D.2d at 722, 738 N.Y.S.2d 721.FN9

With respect to Long's assault conviction relating to Monell, the trial transcript reflects that soon after Monell FN9. This Court discusses in more detail the observed Long firing her weapon at Parson, Monell heard evidence adduced at trial relating to Long's Parson's friend, Charlene Gause, directing Parson to shoot conviction on the assault of Temple infra in Monell.FN7 Trial Tr. at 165. Soon thereafter, Monell conjunction with Long's habeas challenge discovered that she had been shot. Trial Tr. at 165-66. relating to the trial court's failure to grant her Additionally, a forensic detective with the Albany Police motion to dismiss the count in the Indictment Department testified that the location of seven shell accusing petitioner of that crime. casings found at the crime scene was consistent with having been fired from the area where Long was observed standing by Monell and Parson. Trial Tr. at 270-77. The *8 Turning to Long's conviction of second degree criminal foregoing evidence amply supported the jury's finding that possession of a weapon in conjunction with her assault on Long was guilty of the first degree assault of Monell.FN8 Monell, the Court notes that in New York, a person is guilty of that crime when, with the intent to use a weapon unlawfully against another, a person "possesses a loaded FN7. Monell testified that on the date of the firearm." See New York Penal L. § 265.03. The evidence shooting, she inquired of Gause why she was adduced at trial was more than sufficient to establish that asking Long to shoot Monell, however Gause on May 1, 1995, Long possessed a loaded firearm which responded by stating: "You better back up, you she intended to use unlawfully with respect to Monell. See, better back up." Trial Tr. at 165. e.g., Trial Tr. at 134, 164-66.

FN8. Long never claimed in the state courts that In sum, after carefully considering this issue, this Court the evidence at trial was insufficient to establish concludes that petitioner has failed to meet her burden of her guilt of the assault charge relating to Monell. proving that she is actually innocent of any of the crimes See App. Br. In fact, at trial, Long's defense of which she was convicted.FN10 Therefore, this Court finds counsel conceded that there was "a factual basis no basis to overlook Long's procedural default regarding to send that [charge] to the jury." Trial Tr. at the above-referenced claims, and accordingly denies her 350-51. first, fourth and sixth grounds for relief (delineated by petitioner as Grounds "A," "D," and "F," respectively) as procedurally forfeited. See, e.g., Lutes, 2005 WL As to Long's conviction on the first degree assault relating 2180467, at *9; Ayuso v. Artuz, No. 99 CIV 12015, 2001 Hanslmaier, No. CV-94-5512, 1996 WL 31232, at *3-4 (E.D.N.Y. Jan.19, 1996), aff'd, 104 F.3d 355 (2d 28 U.S.C. § 2254(d); see also DeBerry v. Portuondo, 403 Cir.1996). F.3d 57, 66 (2d Cir.2005); Miranda v. Bennett, 322 F.3d

171, 177-78 (2d Cir.2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir.2001). The AEDPA also requires that in FN10. The petitioner bears the burden of proving any such proceeding "a determination of a factual issue actual innocence where he or she seeks federal made by a State court shall be presumed to be correct [and review of procedurally defaulted habeas claims. t]he applicant shall have the burden of rebutting the E.g., Speringo v. McLaughlin, 202 F.Supp.2d presumption of correctness by clear and convincing 178, 189 (S.D.N.Y.2002). evidence." 28 U.S.C. § 2254(e)(1); see also DeBerry, 403 F.3d at 66; Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).

C. Remaining Claims

The Second Circuit has provided additional guidance 1. Standard of Review concerning application of this test, noting that:

Enactment of the Antiterrorism and Effective Death [u]nder AEDPA, we ask three questions to determine Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 whether a federal court can grant habeas relief: 1) (1996) ("AEDPA"), brought about significant new W as the principle of Supreme Court case law relied limitations upon the power of a federal court to grant upon in the habeas petition "clearly established" when habeas relief to a state prisoner under 28 U.S.C. § 2254. the state court ruled? 2) If so, was the state court's Under the AEDPA, a federal court cannot grant habeas decision "contrary to" that established Supreme Court relief to a state prisoner on a claim: precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?

that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- *9 Williams v. Artuz, 237 F.3d 147, 152 (2d Cir.2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d 1) resulted in a decision that was contrary to, or involved Cir.2000)). an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or In Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d

Cir.2001), the Second Circuit answered the question of whether deference under section 2254(d) is mandated if a 2) resulted in a decision that was based on an state court decides a case without citing to federal law or unreasonable determination of the facts in light of the otherwise making reference to a federal constitutional evidence presented in the State court proceeding. claim. Specifically, that court held that deference is required if the claim was presented to the state court and A. Motion to Dismiss Indictment there was an adjudication on the merits, even though the state court's decision lacks explicit reference to the federal claim or to federal case law. Sellan, 261 F.3d at 311-12. In her second ground for relief, Long argues that the trial As the Second Circuit explained, the plain meaning of § court wrongfully failed to dismiss the third count in the 2254(d)(1) dictates that: Indictment despite the fact that insufficient evidence was adduced at trial establishing her guilt of that charge. See Petition, Ground B; Supporting Mem. at 7-10; see also

[f]or the purposes of AEDPA deference, a state court Indictment, Count Three; App. Br. at 7-10. "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. At the close of the prosecution's proof, Long's counsel When a state court does so, a federal habeas court moved pursuant to CPL § 290.10 to dismiss, inter alia, must defer in the manner prescribed by 28 U.S.C. § Count Three of the Indictment, which accused Long of the 2254(d)(1) to the state court's decision on the federal first degree assault of Temple.FN11 See Trial Tr. 351. The

claim-even if the state court does not explicitly refer county court denied that application, concluding that there to either the federal claim or to relevant federal case existed a sufficient factual basis to submit that Count to law." the jury for its consideration. Trial Tr. at 352.

Sellan, 261 F.3d at 312 (emphasis added), see also Ryan FN11. That procedure under the CPL, which is v. Miller, 303 F.3d 231, 246 (2d Cir.2002). When a state now referred to as a request for a trial order of court's decision is found to be decided "on the merits," dismissal, is derived from the prior practice that decision is "contrary to" established Supreme Court utilized to secure the same result-the directed precedent if it applies a rule that contradicts Supreme verdict of acquittal. Faux v. Jones, 728 F.Supp. Court precedent, or decides a case differently than the 903, 907 (W.D.N.Y.1990) (citing CPL § Supreme Court on a set of materially indistinguishable 290.10). facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A federal court engaged in habeas review is to determine not whether the state court's *10 A motion under CPL § 290.10 must be denied where determination was merely incorrect or erroneous, but the trial evidence, when viewed in a light most favorable instead whether it was "objectively unreasonable." to the prosecution, is legally sufficient to support a guilty Williams, 529 U.S. at 409; see also Sellan, 261 F.3d at verdict. People v. Phillips, 256 A.D.2d 733, 734-35, 682 315. The Second Circuit has noted that this inquiry admits N.Y.S.2d 685 (3d Dept.1998) (citation omitted). A claim of "[s]ome increment of incorrectness beyond error," based upon a trial court's failure to dismiss a charge in an though "the increment need not be great[.]" Francis S., indictment is properly considered a challenge to the 221 F.3d at 111. sufficiency of evidence relating to such charge. See Gwathney v. Sabourin, 269 F.Supp.2d 63, 66 (E.D.N.Y.2003); Phillips, 256 A.D.2d at 734-35, 682 2. Substance of Long's Remaining Claims N.Y.S.2d 685 (citation omitted). Accordingly, federal courts considering habeas claims premised upon a trial court's failure to dismiss one or more counts in an ii. Contrary To, or Unreasonable Application Of, Clearly indictment must determine whether the state court's Established Supreme Court Precedent decision denying the motion to dismiss is contrary to, or involved an unreasonable application of, Supreme Court case law governing evidence sufficiency claims. E.g., The trial evidence established that on May 1, 1995, Ubrich v. Murphy, No. 98-CV-0655, slip op. at 41 Traynham and Temple were across the street from the TC (N.D.N.Y. Apr. 4, 2003) (Peebles, M.J.), adopted, No. Club. Trial Tr. at 293. Soon after Traynham went into a 98-CV-0655, Dkt. No. 28, slip op. at 2 (N.D.N.Y. May nearby store, he heard gunshots. Trial Tr. at 293-94. 13, 2003) (Scullin, C.J.). Around that same time, both Parson and Monell observed

Long near the TC Club brandishing a gun. Trial Tr. at 132, 163-64. Long was observed firing the weapon at i. Clearly Established Supreme Court Precedent Parson, Trial Tr. at 163-64, and around that same time Temple, who was near the TC Club on that date, sustained a life-threatening gunshot wound. Trial Tr. at 188-89, 294.

The Due Process Clause of the Fourteenth Amendment Additionally, seven 9 mm shell casings were found in the protects a defendant in a criminal case against conviction area where Long was observed by Monell and Parson except upon proof beyond a reasonable doubt of every fact holding a gun, Trial Tr. at 270-77, evidence which necessary to constitute the crimes with which he or she is strongly suggested that Long fired her weapon multiple charged. See Fiore v. White, 531 U.S. 225, 228-29, 121 times. The foregoing evidence, viewed collectively, is S.Ct. 712, 148 L.Ed.2d 629 (2001); Jackson v. Virginia, more than sufficient to surpass the relatively modest 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); hurdle imposed by Jackson with respect to Long's In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 conviction on the first degree assault charge relating to L.Ed.2d 368 (1970). This inquiry "does not focus on Temple. Therefore, this Court concludes that Long has not whether the trier of fact made the correct guilt or demonstrated that the Appellate Division's decision innocence determination, but rather whether it made a denying the aspect of her appeal which challenged the rational decision to convict or acquit." Herrera v. Collins, denial of her motion to dismiss the third count in the 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 Indictment due to evidence insufficiency, see Long, 291 (1993). A habeas petitioner claiming that there was A.D.2d at 721-22, 738 N.Y.S.2d 721, is either contrary to, insufficient evidence supporting a challenged conviction or involves an unreasonable application of, Jackson and is entitled to relief under 28 U.S.C. § 2254 only if it is its progeny. This Court accordingly denies her second found "that upon the record evidence adduced at trial no ground for relief. rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; see also Schlup, 513 U.S. at 323 n. 38; United States v. B. Repugnant / Inconsistent Verdict Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citations omitted). Moreover, in reviewing the record, the court is required to consider the evidence in the *11 As noted above, the jury acquitted Long of the light most favorable to the prosecution, and draw all attempted murder charge relating to Monell (Count One), inferences in its favor. Jackson, 443 U.S. at 319. as well as the weapons possession charge which accused her of possessing a firearm and intending to use same unlawfully as to Temple (Count Five). See Trial Tr. at 652-55. 65-66; Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 2409, 162 L.Ed.2d 143 (2005) ("inconsistent jury verdicts may be enforced") (citing Powell, Dunn ) (Souter and Long argues in this proceeding, as she did in state court, Ginsburg, concurring); Dowling v. United States, 493 U.S. that the jury's verdict is repugnant because she was 342, 353-54, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) acquitted of the charge which accused Long of criminally ("inconsistent verdicts are constitutionally tolerable") possessing a weapon but convicted of the assault charge as (citation omitted); Harris v. Rivera, 454 U.S. 339, 345, to Temple, which required, inter alia, a finding by the jury 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("[i]nconsistency in that Long used a firearm in conjunction with such assault. a verdict is not a sufficient reason for setting it aside"). See Petition, Ground C; Supporting Mem. at 11-15; see also App. Br. at 11-15; Indictment, Counts Three, Five.

ii. Contrary To, or Unreasonable Application of, Supreme Court Precedent

i. Clearly Established Supreme Court Precedent

In denying Long's appellate claim relating to the alleged

In Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 inconsistency of the jury's verdict, the Appellate Division

L.Ed. 356 (1932), the Supreme Court opined that: opined:

The most that can be said in [ ] cases [in which the jury Defendant reasons that she cannot be guilty of shooting renders an inconsistent verdict] is that the verdict Temple if the jury also determined that she did not shows that either in the acquittal or the conviction the possess a gun. However, it is equally possible that the jury did not speak their real conclusions, but that does verdict resulted from the jury's assessment that, not show that they were not convinced of the although she possessed a loaded handgun, she did not defendant's guilt. We interpret the acquittal as no have the intent to use it unlawfully against Temple more than their assumption of a power which they had (see, Penal Law § 265.03[2] ). The jury could have no right to exercise, but to which they were disposed determined that she acted recklessly by creating a through lenity. grave risk of death to Temple causing serious physical injury (see, Penal Law § 120.10[3] ). Therefore, "[t]he acquittal of the former ... did not

Dunn, 284 U.S. at 393 (internal quotation and citation negate [any] elements of the latter [.]" Where, as here, omitted); see also Powell, 469 U.S. at 64-65 (quoting a rational theory exists to support each verdict, the Dunn ). Since the Government is unable to seek review of jury's determination will not be disturbed. the portion of the verdict that acquits a defendant due to the Double Jeopardy Clause of the United States Constitution, it is "unclear whose ox has been gored" by *12 Long, 291 A.D.2d at 722-23, 738 N.Y.S.2d 721 an inconsistent verdict. Powell, 469 U.S. at 65-66 (citation to case law omitted). Thus, the Third Department (footnote omitted). Consequently, the Supreme Court has found that the jury's verdict was not, in fact, inconsistent. held that inconsistent verdicts are generally enforceable and not subject to judicial review. See Powell, 469 U.S. at Since the present habeas claim is rooted in the assumption 300.30(5). "Whether verdicts are repugnant or inconsistent that the jury's verdict was repugnant, see Petition, Ground ... is determined by examining the charge to see the C, this Court initially considers whether the verdict was, essential elements of each count, as described by the trial in fact, inconsistent. court, and determining whether the jury's findings on those elements can be reconciled." People v. Loughlin, 76 N.Y.2d 804, 806, 559 N.Y.S.2d 962, 559 N.E.2d 656 In instructing the jury on the first degree assault charge (1990) (citing People v. Tucker, 55 N.Y.2d 1, 6-7, 447 relating to Monell, the trial court charged the jury that the N.Y.S.2d 132, 431 N.E.2d 617 (1981)). prosecution was required to establish that on or about May 1, 1995, Long, "did, with intent to cause serious physical injury to another person, cause[ ] such injury to such In the state court matter below, the Appellate Division person ... by means of a deadly weapon." Trial Tr. at determined that the jury could have properly found both: 613-14. In sharp contrast to that charge, when instructing i) that Long acted recklessly when she shot Temple, the jury as to the first degree assault charge relating to thereby creating a grave risk of death to him and causing Temple, the county court instructed the jury that the him serious physical injury; and ii) that although Long prosecution was required to establish that on or about May possessed a loaded handgun on May 1, 1995, she did not 1, 1995, "under circumstances evincing a depraved intend to use it unlawfully against Temple. FN12 Long, 291

indifference to human life, [Long] recklessly engaged in A.D.2d at 722-23, 738 N.Y.S.2d 721 . This Court agrees conduct which created a grave risk of death to another with the Third Department's determination that the jury's person, and thereby caused serious physical injury to verdict was in no way inconsistent or repugnant. Thus, another person." Trial Tr. at 616-17. Thus, unlike the Long cannot prevail on her third ground for relief, which assault charge relating to Monell, the jury was not is premised upon the assumption that the jury's verdict was required to find that Long intended to cause serious inconsistent. physical injury to Temple in considering whether she was guilty of that assault charge. Both weapons possession charges, however, required the jury to find, inter alia, that FN12. Unlike the evidence adduced at trial Long possessed a firearm with the intent to use that regarding shooting victim Monell, the testimony weapon unlawfully. See Trial Tr. at 622, 624 (weapons adduced at trial established that Temple merely possession charge relating to Monell); Trial Tr. at 626-28 happened to be a bystander near the TC Club at (weapons possession charge relating to Temple). Thus, the time Long fired her weapon. Trial Tr. at unlike the assault charge relating to Temple, the jury was 293-94. instructed that it could only find Long guilty of the weapons possession charge relating to that victim if it found, inter alia, that: "she possessed [a loaded pistol] *13 Additionally, as noted above, the Supreme Court has with intent to use it unlawfully against ... Robert Temple." held that inconsistent verdicts are generally enforceable Trial Tr. at 627. and not subject to judicial review. See Powell, 469 U.S. at

65-66. Since an allegedly inconsistent verdict is not a sufficient reason for setting it aside, Harris, 454 U.S. at Under New York law, "[t]wo counts are 'inconsistent' 345, the Appellate Division's decision denying this aspect when guilt of the offense charged in one necessarily of Long's appeal is neither contrary to, nor an negates guilt of the offense charged in the other." CPL § unreasonable application of, the above-referenced Supreme Court authority. Therefore, for this reason as in Long's direct appeal, appellate counsel explicitly well, this Court must deny Long's third ground for relief. acknowledged that the sentences imposed on her client E.g., Brunson v. Tracy, 378 F.Supp.2d 100, 110 were authorized by New York law. See, e.g., App. Br. at (E.D.N.Y.2005) ("[i]t is well-settled that federal habeas 20 (counsel conceding that the imposed sentences were relief is unavailable for inconsistent verdicts") (citations "authorized by law"). omitted); Vassell v. McGinnis, No. 04-CV-0856, 2004 WL 3088666, at *6 (E.D .N.Y. Dec. 22, 2004); Muldrow v. Herbert, 299 F.Supp.2d 166, 170 (W.D.N.Y. Feb.3, Moreover, the Court's review of Long's sentences 2004) ("an allegedly inconsistent verdict does not present establishes that the imposed sentences were consistent a constitutional violation. Therefore, such a claim is not with New York Penal Law. For example, Long was even cognizable on habeas review"), appeal dismissed, sentenced to terms of five to fifteen years imprisonment on No. 04-1839pr (2d Cir. Jan. 20, 2005). each of her first degree assault convictions. See Record at 130-31. The Appellate Division has specifically noted that such a sentence for a conviction of that crime is "within C. Harsh and Excessive Sentence permissible statutory ranges" in New York. See People v.

Duncan, 279 A.D.2d 887, 889, 720 N.Y.S.2d 578 (3d

Dep't), leave denied, 96 N.Y.2d 828, 729 N.Y.S.2d 448, In her fifth claim, Long alleges that in light of her age, 754 N.E.2d 208 (2001). Similarly, Long's sentence of five background, familial obligations and lack of criminal to fifteen years imprisonment on her weapons possession history, the sentence imposed on her was harsh and conviction, Record at 131, has been explicitly excessive.FN13 Petition, Ground E. She further alleges that acknowledged as authorized under New York law. See the sentences "violate[ ] New York State and Federal People v. Rodriguez, 276 A.D.2d 326, 326-27, 714 Sentencing Guidelines." Petition, Ground E. N.Y.S.2d 267 (1st Dep't 2000), leave denied, People v. Rodriguez, 96 N.Y.2d 738, 722 N.Y.S.2d 805, 745 N.E.2d 1028 (2001).FN14

FN13. This claim was asserted by Long in her direct appeal. See App. Br. at 20-24.

FN14. As to Long's claim relating to the United

These claims, however, fail to acknowledge the States Sentencing Guidelines, see Petition, established authority which holds that "[n]o federal Ground E, the Court finds that Long has not constitutional issue is presented where ... the sentence is articulated how the United States Sentencing within the range prescribed by state law." White v. Keane, Guidelines are germane, in any way, to her 969 F.2d 1381, 1383 (2d Cir.1992) (citing Underwood v. convictions, which arose out of state court Kelly, 692 F.Supp. 146 (E.D.N.Y.1988), aff'd mem., 875 prosecutions based upon Long's violation of New F.2d 857 (2d Cir.1989)); see also Brown v. Donnelly, 371 York's penal laws.

F.Supp.2d 332, 343-44 (W.D.N.Y.2005); Jackson, 74 F.Supp.2d at 181 ("[i]t is well-settled ... that a prisoner may not challenge the length of a sentence that does not *14 With respect to the consecutive nature of the exceed the maximum set by state law"). Although sentences imposed on Long regarding the first degree petitioner now claims that the sentences imposed on her assault convictions,FN15 this Court notes that the were illegal, see Petition, Ground E, the Court notes that discretionary power of trial courts in New York "includes the ability to impose consecutive penalties for multiple the imposed sentences constitute a violation of the Eighth crimes." People v. Ramirez, 89 N.Y.2d 444, 450, 654 Amendment to the United States Constitution, which N.Y.S.2d 998, 677 N.E.2d 722 (1996) (citing Matter of prohibits the imposition of a sentence that is "grossly Walker v. Walker, 86 N.Y.2d 624, 629, 635 N.Y.S.2d 152, disproportionate to the severity of the crime." Rummel v. 658 N.E.2d 1025 (1995)) (other citation omitted). "[E]ven Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d if the statutory elements of multiple offenses overlap, 382 (1980). However, "[o]utside the context of capital sentences may be imposed to run consecutively when punishment, successful challenges to the proportionality of multiple offenses are committed through separate and particular sentences have been exceedingly rare." Rummel, distinct acts, though they are part of a single transaction." 445 U.S. at 272; see Harmelin v. Michigan, 501 U.S. 957, Ramirez, 89 N.Y.2d at 451, 654 N.Y.S.2d 998, 677 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Eighth N.E.2d 722 (citing People v. Laureano, 87 N.Y.2d 640, Amendment only forbids sentences which are "grossly 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 (1996)) (other disproportionate" to the crime). Sentences of citation omitted). imprisonment that are within the limits of valid state statutes are simply not cruel and unusual punishment in the constitutional sense. Brumfield v. Stinson, 297 F.Supp.2d FN15. The trial court imposed consecutive 607, 622 (W.D.N.Y.2003) (citing Thompson v. Lord, No. sentences with respect to the assault convictions; 97-CV-0792, 2002 W L 31678312, at *8 (N.D.N.Y. Nov. the sentence on the weapons possession 8, 2002) (Peebles, M.J.)) (other citations omitted) [, conviction was ordered to run concurrent with adopted, Thompson v. Lord, No. 97-CV-0792 (Dkt. No. the other sentences imposed by the county court. 19) (N.D.N.Y. Sept. 25, 2003) (Scullin, C.J.) ].

Record at 130-31.

Long has not provided anything in support of her petition

Long's assault on two different victims-Monell and which suggests that either the terms of imprisonment or Temple-clearly constitutes separate acts which permitted consecutive nature of the sentences imposed on her is the county court to impose consecutive sentences. See "grossly disproportionate" to her crimes. E.g., Harmelin, DeSordi v. Walker, No. 98-CV-1351, slip op at 31-32 501 U.S. at 995. This Court therefore finds no basis upon (N.D.N.Y. Mar. 7, 2002) (Sharpe, M.J.) ("the stabbing of which it may properly find that Long is entitled to habeas separate victims clearly constituted separate acts, relief due to the sentences she received as a consequence [rendering permissible] the imposition of consecutive of her convictions and accordingly denies ground E in her sentences") (citations omitted), adopted DeSordi v. petition.

Walker, No. 98-CV-1351 (N.D.N.Y. July 30, 2002) (Kahn, J.), aff'd, 84 Fed.Appx. 160 (2d Cir. Jan.12, 2004), cert. denied sub nom. DeSordi v. Burge, 543 U.S. 811, D. Failure to Consider Appeal of Denial of CPL 440.20 125 S.Ct. 44, 160 L.Ed.2d 15 (2004). Thus, the sentences Motion imposed on Long, including the consecutive nature of some of those sentences, are clearly permitted by state law. *15 In her seventh and final ground, petitioner argues that although the Third Department granted her leave to appeal the denial of her CPL 440.20 Motion, that court Arguably, this ground could be construed as a claim that nevertheless "refused to hear [s]aid motion" in violation of her constitutional rights. See Petition, Ground "G." FN16 either the state or federal constitutions, or which argued that the consecutive nature of the sentences rendered them illegal under New York law.FN17 See App. Br. Rather, the

FN16. In her seventh ground for relief, Long also portion of the appellate brief which challenged the refers to a "reconsideration motion." See sentences imposed on Long was limited to an argument Petition, Ground G. None of the state court that the sentences were harsh and excessive. See App. Br. records provided to this Court reflect any motion at 20-24. for reconsideration. Thus, it appears as though Long's reference to a "reconsideration motion" merely constitutes a typographical error on the FN17. As noted ante by this Court in addressing part of petitioner. Long's claim that the imposed sentences were harsh and excessive, appellate counsel conceded in her brief that the sentences imposed by the This claim appears to allege that the Third Department trial court were "authorized by law." See App. wrongfully determined that Long failed to assert any Br. at 20. appellate claim relating to her CPL 440.20 Motion and had therefore abandoned those claims. See Long, 291 A.D.2d at 721, 738 N.Y.S.2d 721. Therefore, this Court The foregoing conclusively establishes that although Long briefly reviews Long's CPL 440.20 Motion, together with was afforded the opportunity to challenge the denial of her the claims raised in her appellate brief, in order to CPL 440.20 Motion on appeal, appellate counsel chose, ascertain whether the Third Department's determination apparently for strategic reasons, to refrain from asserting that Long abandoned any appellate claim relating to the any claims relating to the denial of that motion in counsel's denial of her CPL 440.20 Motion is supported by the direct appeal of Long's conviction. Thus, to the extent record. Long now seeks federal habeas relief based upon a claim that the Appellate Division erred in either: i) concluding that Long failed to assert any of the claims raised by her in Long's CPL 440.20 Motion alleged that the county court's her CPL 440.20 Motion on appeal; or ii) deeming Long to imposition of consecutive sentences violated: i) the have abandoned those claims, this Court finds such claims provisions of both the federal and New York State to be contradicted by the record and entirely without constitutions which prohibit individuals from being placed merit. in Double Jeopardy; and ii) New York's Penal Law which addresses the issue of when a trial court may properly impose consecutive sentences. See CPL 440.20 Motion. III. CONCLUSION Although Long's appellate brief made one brief reference to the CPL 440.20 Motion filed by Long, see App. Br. at 21, that brief never referred to any of the arguments After carefully considering all of the submissions before asserted in the CPL 440.20 Motion. Nor did that brief the Court, the undersigned concludes that Long has incorporate by reference any of the claims asserted in that procedurally defaulted on her claims which allege that: i) motion. See App. Br. Thus, the appellate brief never she was denied her right to a fair because testimony asserted as a basis for relief any claim that the sentences relating to an uncharged crime was admitted into evidence imposed on Long violated the Double Jeopardy clauses of against her at trial; ii) the trial court mischaracterized the allegations asserted against her in Count Three of the END OF DOCUMENT Indictment; and iii) her sentences are illegal and violative of both the federal and New York state constitutions.

Since petitioner has not established cause for her procedural default concerning such claims or that she is actually innocent of any of the crimes of which she stands convicted, this Court denies those claims as procedurally barred. Furthermore, after considering the remaining grounds raised by Long in her petition, this Court finds that such claims lack merit and do not afford Long a basis for federal habeas relief. Thus, those claims are denied on the merits.

*16 IT IS THEREFORE HEREBY

ORDERED, that Long's habeas petition (Dkt. No. 1) is DENIED and DISMISSED, and it is further

ORDERED, that the Clerk of Court serve a copy of this Memorandum-Decision and Order upon the parties to this action by regular or electronic mail, and it is further

ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these p ro c e e d in g s (in c lu d in g a n y a p p e a l o f th is Memorandum-Decision and Order filed by any party).

IT IS SO ORDERED.

N.D.N.Y.,2006.

Long v. Lord Not Reported in F.Supp.2d, 2006 WL 1977435 (N.D.N.Y.)

(Cite as: 2003 WL 470568 (S.D.N.Y.))

U.S.C.A. §2254(b)(1)(A).

Only the Westlaw citation is currently available.

United States District Court, 197 Habeas Corpus S.D. New York. 197I In General Esau STALEY III, Petitioner, 197I(D) Federal Court Review of Petitions by [2] Habeas Corpus 197 409 v. State Prisoners Charles GREINER, Respondent. 197I(D)5 Availability of Remedy Despite No. 01Civ.6165(JSR)(DF). Procedural Default or Want of Exhaustion 197k409 k. Prejudice. Most Cited Cases

Feb. 6, 2003. Where federal habeas petitioner failed to show cause Following affirmance, 692 N.Y.S.2d 314, of state for his procedural defaults in state court, it was convictions for attempted rape and first-degree sexual unnecessary for federal district court to consider issue of abuse, petition for federal habeas relief was brought. The prejudice before dismissing claims as procedurally barred. District Court, Freeman, United States Magistrate Judge, 28 U.S.C.A. §2254. recommended that: (1) alleged 72-hour delay between arrest and arraignment was not presumptively prejudicial [3] Criminal Law 110 264 for speedy trial purposes, and (2) claims of alleged grand jury defects, i.e. improper amendment of indictment and 110 Criminal Law failure to allow defendant's testimony, were not cognizable on federal habeas review. 110XIV Arraignment

110k264 k. Requisites and Sufficiency of Dismissal of petition recommended. Arraignment. Most Cited Cases

Alleged 72-hour delay between arrest and arraignment West Headnotes was not presumptively prejudicial for purposes of right to speedy trial. U.S.C.A. Const.Amend. 6.

[1] Habeas Corpus 197 423

197 Habeas Corpus

[4] Habeas Corpus 197 474

197I In General

197I(D) Federal Court Review of Petitions by 197II Grounds for Relief; Illegality of Restraint State Prisoners 197II(B) Particular Defects and Authority for

197I(D)6 State's Reliance on or Waiver of Detention in General Procedural Bar or Want of Exhaustion 197k474 k. Indictment, Information, Affidavit,

197k423 k. State Court Consideration of or Complaint. Most Cited Cases

Merits. Most Cited Cases Assuming that state indictment had been improperly

197 Habeas Corpus

State trial court's alleged constitutional violation amended and that amendment violated defendant's right to forming predicate for federal habeas petitioner's be tried only on charges presented to grand jury, claim ineffective assistance of counsel claim would be treated as was not cognizable on federal habeas review since right to exhausted even though not objected to in trial court, since have charges presented to grand jury was state-created, not trial court had addressed merits of constitutional claim. 28 federal right. 28 U.S.C.A. §2254. dated April 25, 2001, and filed on July 9, 2001.

[5] Habeas Corpus 197 473 FN2. "Resp. Mem." refers to Respondent's Memorandum of Law in Opposition to Petition 197 Habeas Corpus for a Writ of Habeas Corpus, dated April 17, 2002.

197II(B) Particular Defects and Authority for I. FACTUAL BACKGROUND Detention in General 197k473 k. Grand Jury. Most Cited Cases ______ According to the testimony at trial, on the Claim of defect in state grand jury process, i.e. that morning of October 23, 1995, Bah Fatoumata, due process was violated when defendant was not given ("Fatoumata") a 36--year old woman, arrived at work at opportunity to testify before grand jury, was not the Bebe Hair Braiding Salon at 145 Eighth Avenue in cognizable on federal habeas review. 28 U.S.C.A. §2254. Harlem. (Tr. at 100.) FN3 She was the first to arrive, so she unlocked the front door. (Id.) The salon's glass door was Esau Staley III, Green Haven Correctional Facility, covered by a large poster, thereby concealing the salon's Drawer B, Stormville, NY, pro se. interior from the street. (Id. at 104, 108.)

FN3. "Tr." refers to the transcript of Petitioner's REPORT AND RECOMMENDATION trial, which took place from May 20, 1996 through May 23, 1996.

197II Grounds for Relief; Illegality of Restraint

FREEMAN, Magistrate J.

INTRODUCTION Shortly thereafter, Petitioner opened the front door of *1 Petitioner Esau Staley III ("Petitioner") seeks a the salon and began talking to Fatoumata. (Id. at 101.) writ of habeas corpus pursuant to 28 U.S.C. § 2254, Fatoumata could not understand what he was saying, but challenging his conviction in New York State Supreme Petitioner gestured in such a way as to indicate that he Court, New York County. Upon a jury verdict, Petitioner wanted his hair braided. (Id.) Fatoumata pointed to her was found guilty of one count of Attempted Rape in the watch to indicate that he should come back later. (Id. at First Degree and one count of Sexual Abuse in the First 101, 115.) Petitioner then left the salon. (Id.)

Degree. Petitioner was sentenced to a term of 15 years on the rape charge and seven years on the sexual abuse count. Approximately 20 minutes later, Petitioner returned He is currently incarcerated at Green Haven Correctional to the salon and began speaking again to Fatoumata. (Id.) Facility. Fatoumata testified that she was frightened by Petitioner,

Petitioner challenges his conviction and asserts that so she told him that she did not speak English and again (1) he was denied effective assistance of counsel; (2) his pointed to her watch to indicate that he should come back arraignment was improperly delayed; (3) the indictment later. (Id. at 101--02, 117.) Petitioner, however, closed the against him was impermissibly amended; and (4) his due door and walked towards Fatoumata. (Id. at 102.) process rights were violated because he was not given an Petitioner then grabbed Fatoumata and pulled her onto the opportunity to testify before the grand jury. (See Pet. at § floor. (Id.) Fatoumata and Petitioner began to struggle as 12.) FN1 Respondent argues that the petition should be Petitioner attempted to rape Fatoumata. (Id. at 102--04, dismissed on the grounds that Petitioner's claims are 120--130.) Petitioner grabbed a pair of scissors that were unexhausted, procedurally barred, or without merit. (See nearby, and attempted to cut Fatoumata's pants, and to stab Resp. Mem. at 10--17.) FN2 For the reasons stated below, I her in the neck. (Id. at 102, 124.) After a struggle over the recommend that the petition be dismissed. scissors, Petitioner cut Fatoumata's face near her right eye.

(Id. at 104.) During the struggle, Fatoumata managed to

FN1. "Pet." refers to Petitioner's petition for a rip one of the posters off the glass door, hoping that writ of habeas corpus under 28 U.S.C. § 2254, someone on the street would then see and help her. (Id. at (Cite as: 2003 WL 470568 (S.D.N.Y.))

104--05, 235.) determine whether the grand jury would return an indictment against him. (See Resp. Mem. at 13.) It appears *2 At some point between 9:00 a.m. and 10:00 a.m. from the record that the government is correct on this that morning, Lacine Kamara ("Kamara") was bringing his point, and it also appears that counsel appeared for girlfriend, Mawa Kata ("Kata"), to work at the salon. (Id. Petitioner at the time of his arraignment on October 24. at 248.) He saw that the poster had been pulled down, and (Resp. Aff., Exs. G and M.) Petitioner, however, disputes spotted two feet on the ground inside the store with the that he was arraigned on October 24, contending that he toes pointing up. (Id. at 248--50.) Kamara and Kata was not actually arraigned until October 27. (See Resp. approached the salon to investigate. (Id. at 250 .) When Aff., Exs. F and G.) FN4

Kata pushed the door open, Petitioner got up and ran from the store. (Id. at 251.) After spotting Fatoumata in the FN4. Although, at one point in his petition, store, covered with blood, Kamara chased after Petitioner. Petitioner seems to acknowledge that he was (Id. at 251--52.) He was joined by some uniformed police arraigned on October 24, 1995 (see Petition § officers and one of them, Police Officer Guillermina 15), this is at odds with what appears to be one Tavares ("Tavares"), apprehended Petitioner. (Id. at 252, of his principal arguments that his arraignment 260--61.) ______ Kamara returned to the salon was unlawfully delayed. immediately after Petitioner was taken into custody. (Id. at 252.) Tavares arrived at the salon shortly thereafter. (Id. On November 1, 1995, Petitioner was indicted on one at 261--62.) At that time, she found Fatoumata lying on the count each of first degree rape, sexual abuse, and second ground outside of the store near the scissors, which degree-burglary. On April 10, 1996, the burglary count Tavares collected as evidence. (Id. at 262--65.) Fatoumata was dismissed. On May 2, 1996, a Wade/Huntley hearing had a cut by her right eye, and acted as if she were in was held before the Honorable Franklin R. W eissberg.FN5

shock. Since she did not speak English, Fatoumata was (See Resp. Mem. at 6; Resp. Aff., Exs. A and B.) In that unable to tell the police what had happened. (Id. at 134, hearing, Petitioner moved to suppress his post-arrest 263.) A bystander told Tavares that Petitioner had tried to statements and the victim's identification testimony. (Id.) rob Fatoumata. (Id. at 272.) On May 16, 1996, Justice Weissberg denied Petitioner's motion to suppress the identification evidence, but granted Fatoumata was taken by ambulance to Columbia a portion of Petitioner's motion to suppress his statements. Presbyterian Hospital, where she was met by her husband (Id.) and brother. (Id. at 193--94.) With her family interpreting, Fatoumata told the hospital staff what had happened. (Id. FN5. This hearing was held pursuant to: (1) at 194--95.) On November 8, 1995, Fatoumata picked United States v. Wade, 388 U.S. 218, 87 S.Ct. Petitioner out of a line-up. (Id. at 167.) 1926, 18 L.Ed.2d 1149 (1967), to determine whether Petitioner's pretrial identification was

II. PROCEDURAL BACKGROUND

the result of impermissibly suggestive procedures, and (2) People v. Huntley, 15

A. Pre--Trial Proceedings N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179

(1965), to determine whether any statements ______ On October 24, 1995, the day after his arrest, made by Petitioner should be suppressed. Petitioner was taken to Criminal Court, Supreme Court, New York County, to be arraigned on a felony complaint. ______ B. Jury Selection and Trial (See Respondent's Affidavit in Opposition to Petition for a Writ of Habeas Corpus, sworn to April 1, 2002 *3 ______ Petitioner was tried by a jury from May ("Resp.Aff."), Ex. G.) The government asserts that 20, 1996, through May 23, 1996. At trial, the prosecution's Petitioner was, in fact, arraigned on October 24, although witnesses were Fatoumata, Kamara, Tavares, and his case was then adjourned to October 27, in order to Detective John Savino. Petitioner presented no witnesses and did not testify on his own behalf. On May 23, 1996, Petitioner of his right to testify before the grand jury; and the jury found Petitioner guilty of first degree rape and (4) to challenge the trial court's ruling concerning alleged first degree sexual abuse. (Tr. at 391.) On June 10, 1996, errors of translation by the official court interpreter. (See Petitioner was sentenced to a term of 15 years on the rape id.) The State opposed Petitioner's motion on November charge and seven years on the sexual abuse count. See 6, 2000. (See id., Ex. G.)

People v. Staley, 262 A.D.2d 30, 30, 692 N.Y.S.2d 314 By written opinion dated December 13, 2000, the trial (1st Dep't 1999). court denied Petitioner's Section 440.10 motion, stating: C. Direct Appeal

Despite some apparent confusion on defendant's part, Petitioner appealed his conviction to the Appellate the record clearly reveals that defendant was arraigned Division, First Department. On appeal, he raised the in a timely manner. Defendant also asserts that his trial following two claims: (1) the trial court erred in denying lawyer was ineffective in failing to challenge the legality Petitioner's request to call Fatoumata to testify at the Wade of the felony complaint. Regardless of the sufficiency of hearing; and (2) that the trial court erred in denying the felony complaint, however, the return of an Petitioner's motion for a mistrial based on the interpreter's indictment by the Grand Jury served to cure any alleged alleged mis-translation of Fatoumata's testimony. (See defect. As such, defendant's trial attorney's failure to Resp.App. Ex. B.) On September 30, 1999, the Appellate raise these issues below did not constitute ineffective Division affirmed Petitioner's conviction. See People v. representation.

Staley, 262 A.D.2d 30, 692 N.Y.S.2d 314 (1st Dep't 1999). In its opinion, the Appellate Division concluded *4 In addition, defendant claims [sic ] that his attorney that the "hearing court properly denied defendant's request was ineffective because he failed to inform him of his for the complainant to testify at the Wade hearing." 262 right to testify before the Grand Jury is similarly denied. A.D.2d at 30, 692 N.Y.S.2d at 314. Additionally, the Assuming arguendo that this claim is true, a point which Appellate Division held that Petitioner "failed to establish the People do not concede, a failure to effectuate a that there was any error in the translation of the defendant's alleged desire to testify before a Grand Jury complainant's testimony." Id., 692 N.Y.S.2d at 315. does not rise to a deprivation of meaningful

Petitioner sought leave to appeal the affirmance of his representation. (citation omitted). conviction. (See Resp.App. Ex. D.) On June 28, 1999, leave to appeal to the Court of Appeals was denied. See Finally, the remaining purported error by the trial court, People v. Staley, 93 N.Y.2d 979, 695 N.Y.S.2d 66, 716 which involved the accuracy of the court interpreter's N.E.2d 1111 (1999). translation, was already unsuccessfully raised on direct appeal. As the underlying error complained of by the D. Petitioner's Motion To Vacate The Conviction defendant was not error at all, it clearly cannot be used to form the basis for a finding of ineffectiveness of On June 27, 2000, Petitioner, proceeding pro se, filed counsel. a motion in the trial court, seeking to vacate the judgment pursuant to New York Criminal Procedure Law §§ (Id., Ex. H.) 440.10(1)(h). (See Resp. Aff. Ex. F.) Petitioner claimed that he was entitled to post-conviction relief on the ground On March 20, 2001, the Appellate Division denied that he was denied effective assistance of trial counsel. Petitioner's motion for leave to appeal the denial of his Specifically, Petitioner alleged that his trial attorney Section 440.10 motion. (See id., Ex. K.) The instant failed: (1) to challenge an alleged 72--hour delay between petition followed. the time of Petitioner's arrest and his arraignment; (2) to challenge the legality of the initial accusatory instrument, III. DISCUSSION which, according to Petitioner, contained charges different than those upon which he was indicted; (3) to advise A. Exhaustion (Cite as: 2003 WL 470568 (S.D.N.Y.))

_____________ 1. Legal Standards _________ 2. Petitioner Has Presented a "Mixed"

Petition.

______ A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all *5 _______ In this case, it appears that Petitioner has state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); presented a "mixed petition," containing both exhausted see also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. and unexhausted claims. See Zarvela v. Artuz, 254 F.3d 509, 30 L.Ed.2d 438 (1971); Dorsey v. Kelly, 112 F.3d 50, 374, 380 (2d Cir.2001). 52 (2d Cir.1997). To satisfy the exhaustion requirement, Petitioner's first claim alleges ineffective assistance of a habeas petitioner must have "fairly presented" his claims counsel, a claim Petitioner raised previously in his Section to the state courts, thereby affording those courts the 440.10 motion. As noted above, Petitioner asserted in that "opportunity to pass upon and correct alleged violations of motion that his trial counsel was ineffective for failing to ... [a] prisoner's federal rights." Picard, 404 U.S. at 275 challenge certain purported constitutional violations (citation omitted). involving, inter alia, the timing of Petitioner's arraignment, the appropriateness of the indictment on The standards for presenting federal constitutional which he was tried, and the conduct of the grand jury claims to state courts are not so stringent as to require the proceedings. When Petitioner's Section 440.10 motion was recitation of "book and verse on the federal constitution." denied by the trial court, Petitioner sought leave to appeal Picard, 404 U.S. at 278 (citation omitted). However, the the denial of that motion to the Appellate Division. Once state courts must be "apprised of 'both the factual and the the Appellate Division denied leave to appeal, Petitioner's legal premises of the claim [the petitioner] asserts in ineffective assistance claim was exhausted for purposes of federal court." ' Jones v. Vacco, 126 F.3d 408, 413 (2d habeas review. See Klein v. Harris, 667 F.2d 274 (2d Cir.1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, Cir.1981) ("no appeal to the New York Court of Appeals 191 (2d Cir.1982) (en banc )). Petitioners can ensure that lies from an order denying a motion for leave to appeal to state courts are "alerted to the fact that [they] are asserting the Appellate Division"), overruled on other grounds by claims under the United States Constitution," Duncan v. Daye, 696 F.2d at 195; Jackson v. Moscicki, No. 99 Civ. Henry, 513 U.S. 364, 365--66, 115 S.Ct. 887, 130 L.Ed.2d 2427(JGK), 2000 WL 511642 at *5 (Apr. 27.2000) 865 (1995), by presenting their claims in a fashion (petitioner exhausted his ineffective assistance of counsel demonstrating either claim by raising it in a Section 440.10 motion and seeking leave to appeal to the Appellate Division). Therefore, to

(a) reliance on pertinent federal cases employing the extent the ineffective assistance claim now being constitutional analysis, (b) reliance on state cases asserted by Petitioner is the same as the claim he asserted employing constitutional analysis in like fact situations, in his Section 440.10 motion, the exhaustion requirement

(c) [an] assertion of the claim in terms so particular as is satisfied.FN6 to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts FN6. As discussed further infra (see n.9), the that is well within the mainstream of constitutional petition is not well drafted, and it is possible to litigation. construe Petitioner's present ineffective assistance claim as being different from the claim Daye, 696 F.2d at 194; accord Petrucelli v. Coombe, that he raised in the state court. The petition of a 735 F.2d 684, 688 (2d Cir.1984). Once the state courts are pro se litigant, however, should be liberally apprised of the constitutional nature of a petitioner's construed, see Simmons v. Abruzzo, 49 F.3d 83, claims, the exhaustion requirement is generally fulfilled 87 (2d Cir.1995); Williams v. Kullman, 722 F.2d when those claims have been presented to "the highest 1048, 1050 (2d Cir.1983), and therefore the court of the pertinent state." Bossett v. Walker, 41 F.3d Court's first assumption should be that the claim 825, 828 (2d Cir.1994) (citation omitted). being presented for habeas review is, in fact, the claim that Petitioner exhausted in the state court. exhausting the unexhausted claims, id. at 380; or (4) to

"deem" the claims exhausted, provided that the [1] In this habeas proceeding, Petitioner is now also unexhausted claims no longer can be raised in state court, directly challenging three of the alleged constitutional see Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. violations that formed the predicate of the ineffective 1056, 103 L.Ed.2d 380 (1989); Bossett v. Walker, 41 F.3d assistance claim that he raised in his Section 440.10 825, 828--29 (2d Cir.1994) (citations omitted); Grey v. motion. Because he never previously raised any of these Hoke, 933 F.2d 117, 120--21 (2d Cir.1991) (citations alleged violations as separate and distinct claims-either omitted). in the Section 440.10 motion itself or on direct In this instance, Petitioner could have raised his appeal-these additional claims are arguably all unexhausted claims in his one opportunity for direct unexhausted. See Turner v. Artuz, 262 F.3d 118, 123 (2d appeal,FN7 but did not do so. For this reason, he is now

Cir.2001) ("A court considering ineffective assistance foreclosed from raising the claims collaterally in another might never reach the underlying constitutional claims, Section 440.10 motion. See N.Y.Crim. Proc. § and the rejection of the ineffective assistance claims 440.10(2)(c) (barring collateral review of claims that without detailed comment does not bespeak any necessary could have been raised on direct appeal). Petitioner also ruling on the underlying constitutional claims."). cannot seek state review of his unexhausted claims Nonetheless, it seems appropriate, under Turner, to pursuant to either a writ of error coram nobis, see People consider one of these additional claims exhausted, in that v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't the trial court effectively ruled on it, on the merits, in the 1992) (coram nobis relief only available for claims of context of the court's decision rejecting the ineffective ineffective assistance of appellate counsel) (citation assistance claim. See id. (expressly declining to address omitted), or a state writ of habeas corpus, see People ex the situation where the state court clearly analyzed the rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d merits of an underlying claim). More specifically, and as 331 (3d Dep't 1991) (state writ of habeas corpus quoted above, the trial court held that Petitioner's counsel unavailable where claim could have been raised on direct had not been ineffective for failing to object to an appeal) (citations omitted). Because Petitioner now has no unconstitutional delay in Petitioner's arraignment, because, procedural recourse to New York's courts to advance his as a factual matter, there was no delay in arraignment. unexhausted claims, those claims are appropriately (See supra at 6.) Because the trial court actually addressed deemed exhausted. See Bossett, 41 F.3d at 828--29; Grey, the purported delay, that particular underlying claim 933 F.2d at 120--21. should be viewed as exhausted. The other two underlying claims, however, should be considered unexhausted, as FN7. See N.Y. Court Rules § 500.10(a) they were never presented as separate claims-or (permitting only one application for leave to separately analyzed-by the state court. appeal); see also N.Y.Crim. Proc. §§ 450.10 and 450.15 (allowing a petitioner only one chance to 2. Petitioner's Unexhausted Claims Should Be Deemed appeal).

Exhausted and Procedurally Barred.

When, however, a claim is deemed exhausted because *6 When ruling on a mixed petition, the Court may of a procedural bar, "the procedural bar that gives rise to choose (1) to reach the merits of all claims in the exhaustion provides an independent and adequate petition-including the unexhausted claims-as long as state-law ground for the conviction and sentence, and thus the Court denies the claims on the merits, see 28 U.S.C. § prevents federal habeas corpus review of the defaulted 2254(b)(2)(2000); (2) to stay the petition and allow the claim." Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. petitioner a "reasonable" period of time to return to state 2074, 135 L.Ed.2d 457 (1996); see also Carmona v. court, exhaust the claims, and return to federal court, United States Bureau of Prisons, 243 F.3d 629, 633 (2d Zarvela, 254 F.3d at 381; (3) to dismiss the petition Cir.2001). The only ways that Petitioner can overcome the without prejudice to the petitioner's ability to re-file after procedural bar to review in this Court are to show (1) both "cause" for failing properly to raise the claim in state court The Court may also excuse a procedural default and "prejudice" resulting from the alleged constitutional where the petitioner "can demonstrate a sufficient error, or (2) that the failure to address the claim on habeas probability that our failure to review his federal claim will would result in a "fundamental miscarriage of justice." See result in a fundamental miscarriage of justice." Edwards Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 2546, 115 L.Ed.2d 640 (1991). In this case, Petitioner L.Ed.2d 518 (2000) (citing Coleman, 501 U.S. at 750). cannot satisfy either standard, with respect to either of his This exception, however, is quite narrow; it is "concerned unexhausted claims. with actual as compared to legal innocence." Sawyer v.

Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d "Cause" for a procedural default is established when 269 (1992). Thus, to meet this standard, a petitioner must "some objective factor external to the defense" impeded show that "a constitutional violation has probably resulted the petitioner's efforts to comply with the state's in the conviction of one who is actually innocent." procedural rule. Murray v. Carrier, 477 U.S. 478, 488 Carrier, 477 U.S. at 496. "To be credible, [a claim of (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015(AGS) actual innocence] requires petitioner to support his (JCF), 2001 WL 246437, at *8 (S.D.N.Y. Mar. 7, 2001). allegations of constitutional error with new reliable Cause for a default exists where a petitioner can show that evidence-whether it be exculpatory scientific evidence, (1) "the factual or legal basis for a claim was not trustworthy eyewitness accounts, or critical physical reasonably available to counsel," (2) " 'some interference evidence-that was not presented at trial." Schlup v. Delo, by state officials' made compliance [with the procedural 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 rule] impracticable," or (3) "the procedural default is the (1995). In this case, Petitioner has offered no evidence, result of ineffective assistance of counsel." Bossett v. scientific or otherwise, showing his actual innocence. Walker, 41 F.3d 825, 829 (2d Cir.1994) (citation omitted). Therefore, Petitioner has not made an adequate showing "Prejudice" requires Petitioner to demonstrate that the to satisfy the fundamental miscarriage of justice exception. alleged constitutional error worked to Petitioner's "actual Accordingly, Petitioner's unexhausted claims should be and substantial disadvantage." United States v. Frady, 456 dismissed as procedurally barred.

U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original). Moreover, as discussed further below (see infra at 19--22), Petitioner's unexhausted claims should be *7 [2] Here, Petitioner cannot demonstrate any dismissed in any event, because they do not actually raise "cause" for his procedural defaults. He has not shown, and federal constitutional issues, and thus they are not cannot show, that the factual or legal bases for his cognizable on habeas review. defaulted claims were not reasonably available at the time of his direct appeal. Nor has Petitioner alleged, and there B. Standard of Review is no evidence suggesting, that his failure to raise the claims on direct appeal resulted from either interference Where the state court has reached the merits of a by state officials or ineffective assistance of appellate claim, this Court must apply a deferential standard in counsel. As Petitioner cannot show cause for his reviewing that claim in a habeas proceeding. Specifically, procedural defaults, this Court need not reach the question this Court must adhere to the standard of review set forth of whether Petitioner can show prejudice. See Stepney v. in the Antiterrorism and Effective Death Penalty Act Lopes, 760 F.2d 40, 45 (2d Cir.1985) ("Since a petitioner ("AEDPA"), the relevant portion of which provides: who has procedurally defaulted in state court must show An application for a writ of habeas corpus on behalf of both cause and prejudice in order to obtain federal habeas a person in custody pursuant to the judgment of a State review, we need not, in light of our conclusion that there court shall not be granted with respect to any claim that was no showing of cause, reach the question of whether or was adjudicated on the merits in State court proceedings not [petitioner] showed prejudice."). unless the adjudication of the claim-(1) 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 _______ C. Petitioner's Claims States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the ______________ 1. Ineffective Assistance of Counsel evidence presented in the State court proceeding.

_______ To the extent the state court adjudicated *8 28 U.S.C. § 2254(d). In addition, under AEDPA, Petitioner's ineffective assistance of counsel claim on the where not manifestly unreasonable, a state court's factual merits on Petitioner's Section 440.10 motion, this Court findings are presumed correct, and can only be overcome must review that determination under AEDPA's deferential by "clear and convincing evidence." 28 U.S.C. § standard of review. Applying that standard of review, the 2254(e)(1). Court should dismiss the claim.

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, The right to counsel in criminal prosecutions is 146 L.Ed.2d 389 (2000), the Supreme Court clarified the grounded in the Sixth Amendment. Because the meaning of the "contrary to" and "unreasonable Constitution "envisions counsel's playing a role that is application" clauses of AEDPA Section 2254(d)(1). A critical to the ability of the adversarial system to produce state court decision is "contrary to" clearly established just results [,] ... 'the right to counsel is the right to the federal law where the state court either applies a rule that effective assistance of counsel." ' Strickland v. "contradicts the governing law" set forth in Supreme Washington, 466 U.S. 668, 685--86, 104 S.Ct. 2052, 80 Court precedent, id. at 405, or "confronts a set of facts that L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 are materially indistinguishable from a [Supreme Court] U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 decision" and arrives at a different result, id. at 406. An (1970)). Counsel can deprive a criminal defendant of this "unreasonable application" of clearly established federal right "simply by failing to render 'adequate legal law occurs when the state court identifies the correct assistance." ' Id. at 686 (citation omitted). governing legal principle, but unreasonably applies that principle to the particular facts before it. Id. at 413. The *9 In order for counsel to be deemed constitutionally Supreme Court has explained that "the most important "ineffective," however, counsel's conduct must have "so point is that an unreasonable application of federal law is undermined the proper functioning of the adversarial different from an incorrect application of federal law." Id. process that the trial cannot be relied on as having at 410. Thus, the writ may not issue simply because the produced a just result." Id. Petitioner can demonstrate state court decision is erroneous or incorrect; rather, the such ineffectiveness by showing both that: (1) counsel's application must also be unreasonable. Id. at 411. performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a AEDPA Section 2254(d), however, only applies to reasonable probability that, but for counsel's the review of claims that have been "adjudicated on the unprofessional errors, the result of the proceeding would merits" by the state court. 28 U.S.C. § 2254(d). The have been different," id. at 694. The Court may reject an Second Circuit has held that the phrase "adjudicated on ineffective assistance of counsel claim for failure to satisfy the merits" means "a decision finally resolving the parties' either of these prongs of the Strickland standard, without claims, with res judicata effect, that is based on the reaching the other. See id. at 697 ("If it is easier to dispose substance of the claim advanced, rather than on a of an ineffectiveness claim on the ground of lack of procedural, or other, ground." Sellan v. Kuhlman, 261 sufficient prejudice, which we expect will often be so, that F.3d 303, 311 (2d Cir.2001). Where the state court has course should be followed."); see also Morales v. United rejected a claim on procedural grounds or has otherwise States, 199 F.3d 1322 (Table), No. 98--3700, 1999 WL not reached the merits of the claim, this Court must review 1015641, at *1 (2d Cir.1999) (court did not address that claim de novo. See Washington v.. Schriver, 255 F.3d "whether appellant's trial counsel was unreasonably 45, 55 (2d Cir.2001). deficient in his performance because any deficiency in this regard did not prejudice appellant"). then his claim is unexhausted, as it is based on an argument that was never presented to the state

Here, if Petitioner is resting his ineffective assistance courts. Further, for the reasons stated above in claim on the contention that his trial counsel failed to connection with Petitioner's other unexhausted challenge an alleged 72--hour delay between the time of claims, the claim is now procedurally barred. In Petitioner's arrest and arraignment, then Petitioner cannot any event, the claim would fail for lack of merit, meet the Strickland standard because he is relying on an even under a de novo standard of review. Under incorrect factual premise. In ruling on Petitioner's Section the Sixth Amendment, the right to counsel 440.10 motion, the trial court found that, despite "apparent "attaches only at the initiation of adversary confusion" on the part of Petitioner, the record "clearly criminal proceedings ... and before proceedings reveal[ed]" that Petitioner had been arraigned in a "timely are initiated, a suspect in a criminal investigation manner." (See Resp. Mem. Ex. H.) Under AEDPA, this has no constitutional right to the assistance of factual finding is "presumed correct" and can only be counsel." Davis v. United States, 512 U.S. 452, overcome by "clear and convincing evidence." 28 U.S.C. 456--57, 114 S.Ct. 2350, 129 L.Ed.2d 362 § 2254(e)(1). Not only has Petitioner failed to present any (1994); see also Ferguson v. Walker, No. 00 Civ. evidence to rebut this factual finding, but this Court's own 1356, 2002 WL 31246533 (S.D.N.Y. Oct.7, review of the documentary record regarding Petitioner's 2002) ("the right to counsel ... attaches only upon arraignment reveals that Petitioner was initially arraigned the initiation of adversary criminal proceedings, on October 24, 1995, the day after he was arrested, and such as by formal charge, indictment or that he was represented by a lawyer at his arraignment. arraignment"). In this case, the record shows that (See Resp. Aff., Exs. G and M.) FN8 adversary criminal proceedings were initiated against Petitioner with the filing of the felony FN8. In addition, Petitioner's trial attorney stated complaint on October 24, 1995, the same day during the trial that Petitioner was arraigned on that counsel was appointed for Petitioner. (See October 24, 1995. (Tr. at 161 .) Resp. Aff., Exs. G and M.) Thus, Petitioner was not, in fact, deprived of counsel.

As this Court must accept as correct the state court's finding that there was no unreasonable delay in Petitioner's ________________ 2. Speedy Arraignment arraignment, it cannot be said that Petitioner's counsel acted unreasonably in failing to challenge the alleged Petitioner also claims that the alleged 72--hour delay delay. Nor can it be said that the state court's resulting before his arraignment was itself a constitutional violation. rejection of Petitioner's ineffective assistance of counsel Liberally construed, this claim could be read to suggest claim was contrary to, or an unreasonable application of that the alleged delay implicated defendant's Sixth federal law, under 28 U.S.C. § 2254(d). Accordingly, to Amendment right to a speedy trial. See Holmes v. Bartlett, the extent Petitioner is asserting such a claim here, it 810 F.Supp.2d 550, 561--62 (S.D.N.Y.1993) (analyzing should be dismissed under AEDPA.FN9 claim by habeas petitioner of delay between arrest and arraignment as an alleged violation of the Sixth FN9. From the language of Petitioner's claim, it Amendment right to a speedy trial). As already discussed, may be that Petitioner is no longer challenging however, the trial court found, and the record reflects, that his counsel's failure to object to the supposed Petitioner was actually arraigned within one day of his delay in his arraignment, but rather the arrest. Under the circumstances, Petitioner can have no deprivation of counsel during the alleged basis for arguing any constitutional violation. "critical" period of the delay. (See Pet. § 12(A) *10 [3] Indeed, even if Petitioner were correct that 72 (asserting that Petitioner "did not speak with hours elapsed before he was arraigned, he would still have counsel until 72 hours after [his] initial arrest").) no grounds to complain that this violated a constitutional If this is the basis of Petitioner's current claim, right. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court held that the Petitioner's last two claims relate to the conduct of the following four factors must be considered in determining state grand jury proceedings. Specifically, Petitioner whether a defendant' Sixth Amendment right to a speedy claims that (a) the original indictment against him was trial has been violated: (1) the length of the delay; (2) the impermissibly amended, and (b) he was unfairly denied reasons for the delay; (3) whether or not the defendant the opportunity to testify before the grand jury. (Pet. §§ asserted his right; and (4) prejudice to the defendant. Id. 12(C) and (D).) As discussed above (see supra at 10--13), at 530--33. The Court noted that "[t]he length of the delay these claims are unexhausted and procedurally barred. is to some extent a triggering mechanism. Until there is Further, they cannot be reviewed in this Court, as they do some delay which is presumptively prejudicial, there is no not implicate federal constitutional rights. necessity for inquiry into the other factors that go into the ________________ a. Amendment of the Indictment balance." Id. at 530. In this case, Petitioner's bases his claim solely on the length of the alleged 72--hour period *11 [4] According to Petitioner, the assistant district between his arrest and arraignment. This delay is not attorney went to the grand jury with robbery charges on "presumptively prejudicial." See United States v. Vassell, October 27, 1995, but then determined that robbery 970 F.2d 1162, 1164 (2d Cir.1992) (suggesting that any charges were not warranted. (See Pet. §§ 12(B) and (C).) delay over eight months is presumptively prejudicial, On November 1, 1995, Petitioner was indicted on different while a delay of less than five months is not); United charges, i.e. on one count each of first degree rape, sexual States v. Ballam, 70 F.3d 1280, 1995 WL 710498 at *2 abuse, and second degree-burglary. (See Pet. § 12(C).) (9th Cir.1995) (text in Westlaw) (stating that "[t]he Based on these allegations, Petitioner contends that the judicial consensus of how much time must go by before a indictment against him was improperly amended. (Id.) delay is presumed prejudicial ranges from eight months ... Respondent, however, asserts that Petitioner has to one year"); United States v. Pereira, 463 F.Supp. 481, misunderstood the relevant proceedings. (See Resp. Mem. 488 (E.D.N.Y.1978) (holding that a delay of 20 days was at 15.) Respondent contends that, in claiming that the not presumptively prejudicial). indictment "broaden [ed] and altered" the initial charges against him (Pet. § 12(C)), Petitioner must be referring to Moreover, in Williams v. Ward, 845 F.2d 374 (2d the fact that the felony complaint against him included a Cir.1988), the Second Circuit held that delays of 72 hours different charge (i.e. robbery) than the charges ultimately between arrest and arraignment in the New York City contained in the indictment (i.e. first degree rape, sexual criminal justice system do not violate the right under the abuse, and second-degree burglary). (See Resp. Mem. at Fourth and Fourteenth Amendments to obtain a probable 15.) Respondent asserts that the prosecution properly cause determination within a "brief" period of time after submitted to the grand jury the charges on which arrest. See id. (holding that "the procedural benefits Petitioner was eventually indicted, and that the indictment provided to arrestees under New York City's arraignment itself was never amended. (Id.) system justify constitutionally arrest-to-arraignment It appears that, in deciding Petitioner's Section 440.10 periods of seventy-two hours in length"). Thus, if motion, the state court accepted Respondent's version of Petitioner's claim is based on the Fourth Amendment, it events. (See Resp. Mem. Ex. H (finding that "return of an would fail under Williams. indictment by the Grand Jury served to cure any alleged defect" in the original felony complaint).) Any such For these reasons, Petitioner has not shown that the factual finding by the state court is presumed correct under state court's rejection of this claim was contrary to, or AEDPA. 28 U.S.C. § 2254(e)(1). Yet regardless of involved an unreasonable application of federal law. See whether the state court entirely resolved the relevant 28 U.S.C. § 2254(d). Accordingly, this claim should be factual issue, Petitioner does not relate his claim to a dismissed. federal constitutional violation (see Pet. § 12(C) (contending only that the indictment was amended), and ________________ 3. Petitioner's Remaining Claims therefore his claim is not cognizable on habeas review.

It may be that Petitioner is attempting to argue, as he did in his Section 440.10 motion, that the purported CONCLUSION amendment to his indictment violated his right "to be tried only on charges brought by the Grand Jury indictment." For the foregoing reasons, I recommend that (See Resp. Aff., Ex. F, at 11--12 .) Yet if this is Petitioner's Petitioner's petition for a writ of habeas corpus be argument on habeas review, his claim still fails. The right dismissed in its entirety. Further, I recommend that the to have state charges presented to a grand jury is a Court decline to issue a certificate of appealability state-created right, not a federal right. Rodriguez v. pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner Senkowski, No. 92 Civ. 5484, 1995 WL 347024, at *2 has not "made a substantial showing of the denial of a (E.D.N.Y. May 31, 1995) (rejecting challenge to a state constitutional right." 28 U.S.C. § 2253(c)(2). trial court's amendment of an indictment). Accordingly, Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of "any alleged impropriety in the amendment of the the Federal Rules of Civil Procedure, the parties shall have indictment is predicated on state law, and is therefore ten (10) days from service of this Report to file written beyond this Court's review." Id.; see also Medina v. objections. See also Fed.R.Civ.P. 6. Such objections, and Herbert, No. 98 Civ. 1871, 1998 WL 799173 at *5 any responses to objections, shall be filed with the Clerk (S.D.N.Y. Nov. 16, 1998) ("In general, challenges to the of Court, with courtesy copies delivered to the chambers sufficiency of a state indictment are not issues cognizable of the Honorable Jed S. Rakoff, United States Courthouse, on habeas review."). 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, United b. Deprivation of Right To Testify Before the Grand Jury States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of *12 [5] Petitioner finally claims that his due process time for filing objections must be directed to Judge rights were violated because he was never given the Rakoff. FAILURE TO FILE OBJECTIONS WITHIN opportunity to testify before the grand jury. (Pet. § 12(D).) TEN (10) DAYS W ILL RESULT IN A WAIVER OF Once again, however, any alleged defects in the state OBJECTIONS AND WILL PRECLUDE APPELLATE grand jury process are not cognizable on habeas review. REVIEW. See Thomas v. Arn, 474 U.S. 140, 155, 106 See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.1989) (holding S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL--CIO Pension that claims concerning state grand jury proceedings are Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); foreclosed from habeas review because "any error in the Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992); grand jury proceeding was rendered harmless beyond Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.1988); reasonable doubt by the petit jury's guilty verdict"); Afflic McCarthy v. Manson, 714 F.2d 234, 237--38 (2d v. New York, No. 01 Civ. 6152, 2002 WL 500373 Cir.1983). (S.D.N.Y. Apr.3, 2002) ("Petitioner's claim that he was not advised of his right to appear before the Grand Jury S.D.N.Y.,2003. does not present an issue of constitutional dimension, but merely one of state law"); McMoore v. Miller, No. 98 Staley v. Greiner Civ.1915, 2002 WL 975305 at *9 (S.D.N.Y. Apr.19, Not Reported in F.Supp.2d, 2003 WL 470568 (S.D.N.Y.) 2002) (dismissing habeas claim based on petitioner's END OF DOCUMENT failure to testify before the grand jury because "[petitioner's] right to testify before a grand jury is based solely on state law, the wrongful denial of that right does not entitle him to a federal writ of habeas corpus") (emphasis in original).

As Petitioner's claim does not implicate a federal constitutional right, it cannot be reviewed in this Court, and should be dismissed.

197k475.1 k. In General. Most Cited Cases State court's determination that defendant's "vague and conclusory allegations of innocence, [and] lack of Only the Westlaw citation is currently available. comprehension" did not entitle him to withdraw his guilty United States District Court, plea, on the ground that it was unknowing, was not unreasonable, thus precluding habeas relief; statements S.D. New York. defendant made during his plea allocution demonstrated Alberto MARTINEZ, Petitioner, that the plea was entered with full knowledge of the charge v. and the consequences of pleading guilty, and the Joseph J. COSTELLO, Superintendent, Mid--State statements he made during the plea allocution controlled Correctional Facility, and Eliot Spitzer, Attorney over unexplained statements in his affidavit in support of General of the State of New York, Respondents. a withdrawal motion. 28 U.S.C.A. § 2254(d).

No. 03 Civ. 2763(GEG).

Jan. 5, 2004.

Background: Defendant convicted of criminal possession 110 Criminal Law of a controlled substance in the second degree brought a pro se petition for a writ of habeas corpus. 110XV Pleas

[2] Criminal Law 110 274(1)

110k272 Plea of Guilty Holdings: The District Court, Gorenstein, United States 110k274 Withdrawal Magistrate Judge, held that: 110k274(1) k. In General. Most Cited Cases

(1) determination that defendant was not entitled to withdraw his guilty plea on the ground that it was 197 Habeas Corpus unknowing was not unreasonable; (2) defendant had no federal constitutional right to an 197II Grounds for Relief; Illegality of Restraint evidentiary hearing on his motion to withdraw his guilty 197II(B) Particular Defects and Authority for plea; and Detention in General (3) trial court did not violate defendant's right to counsel 197k475 Arraignment and Plea when it failed to appoint new counsel to represent 197k475.1 k. In General. Most Cited Cases defendant on his motion to withdraw the guilty plea. Defendant had no federal constitutional right to an evidentiary hearing on his motion to withdraw his guilty Petition denied. plea, and thus, state appellate court's decision upholding the failure to hold such a hearing was not contrary to, or West Headnotes an unreasonable application of, clearly established Federal law, as required for habeas relief. 28 U.S.C.A. § 2254(d).

Habeas Corpus 197 475.1

[1] Habeas Corpus 197 475.1

197 Habeas Corpus

110 Criminal Law 197II Grounds for Relief; Illegality of Restraint

197II(B) Particular Defects and Authority for 110XXXI Counsel Detention in General 110XXXI(B) Right of Defendant to Counsel

197k475 Arraignment and Plea

110XXXI(B)9 Choice of Counsel generally Transcript of Plea Hearing Conducted August

110k1824 Discharge by Accused 19, 1999 (Docket # 10). Martinez was represented by

110k1828 Particular Cases Alfredo Hernandez, a court-appointed lawyer. Petition at

110k1828(1) k. In General. Most 1. Apparently, plea discussions had been ongoing over the Cited Cases entire one-and-a-half-year period since the case was first

(Formerly 110k641.10(2)) indicted. (Plea: Tr. 3). Defense counsel stated to the court Trial court did not violate defendant's right to counsel that he had "had extensive conversations with Mr.

when it failed to appoint new counsel to represent Martinez" and that he had explained to Martinez that defendant on his motion to withdraw a guilty plea; the various people had made statements against him; Felix defendant failed to provide any explanation for attempting Pabon, a participant in the crime, would likely testify to withdrawal his plea when he was given a chance to against him; cocaine had been recovered from outside speak before sentencing or through a pre-sentence motion, Martinez's apartment; and his fingerprints had been lifted and there were no allegations that his attorney attempted from one of the bricks of cocaine. (Plea: Tr. 3). If to coerce him. U.S.C.A. Const. Amend. 6. convicted as charged, Martinez faced a minimum sentence of fifteen years to life, (Plea: Tr. 2), and a maximum of OPINION AND ORDER twenty-five years to life, (Plea: Tr. 5). Nonetheless, defense counsel reported that Martinez had been GORENSTEIN, Magistrate J. "completely recalcitrant" in participating in the plea

*1 Following a plea of guilty to one count of Criminal discussions. (Plea: Tr. 3).

Possession of a Controlled Substance in the Second Degree in New York County Supreme Court, Alberto As of August 19, 1999, all other individuals involved Martinez was sentenced as a second felony offender to a in the incident had pled guilty. (Plea: Tr. 4). The Assistant prison term of six years to life. He now brings this petition District Attorney stated on the record that she was offering for writ of habeas corpus pro se pursuant to 28 U.S .C. § Martinez a sentence of six years to life in return for a plea 2254. The parties have consented to the exercise of of guilty to Criminal Possession of a Controlled Substance jurisdiction over this petition by a United States in the Second Degree in full satisfaction of the indictment. Magistrate Judge under 28 U.S.C. § 636(c). For the (Plea: Tr. 3--4, 7). She made it clear that this was the best reasons below, the petition is denied. offer she was allowed to make and that the offer would be

I. BACKGROUND revoked as soon as the pre-trial hearing began. (Plea: Tr. 9). She explained her offer based on the facts that "this

In March 1998, Martinez was indicted for Criminal defendant arranged a drug deal for three kilos of cocaine, Possession of a Controlled Substance in the First Degree in a residential area.... As a result ... four people were and related charges in connection with a drug sale turned shot.... He has three prior felony convictions." (Plea: Tr. shoot-out which occurred in Martinez's apartment. See 7--8).

Martinez's Appellate Brief, dated May 2001 ("App.Brief") (annexed to Petition for Writ of Habeas Corpus, filed *2 After consulting with Martinez, defense counsel April 22, 2003 (Docket # 2) ("Petition")), at 3; Plea: Tr. reported to the court that Martinez was rejecting the offer 3, 7--9. During this incident, Martinez was shot in the face and was prepared to proceed with the hearing. (Plea: Tr. and three other participants also sustained gunshot 9). The first witness was called to the stand but before he wounds. App. Brief at 3; Respondents' Memorandum of could be sworn in, defense counsel asked the court to Law in Opposition to Petition for Writ of Habeas Corpus, "hold on just a second" so he could consult with Martinez. filed September 3, 2003 (Docket # 11) ("Resp.Opp."), at (Plea: Tr. 10). Thereafter, Martinez's counsel stated that 2. Martinez was withdrawing his plea of not guilty and

On August 19, 1999, Martinez appeared with counsel entering a plea of guilty. (Plea: Tr. 10--11). before the Honorable Ronald A. Zweibel of the New York County Supreme Court for a pre-trial hearing. See During the subsequent allocution, Martinez acknowledged that he had discussed his case and plea with guilty plea," that he "plead [sic] guilty for reasons which his attorney, that he understood he was waiving certain are outside the record," that "he was unaware of the fact[ constitutional rights, and that he was pleading guilty of his ] that he has a good meritorious defense to the own free will. (Plea: Tr. 11--12). The court asked him: prosecution," and that "he is not guilty of the offense." "Are you pleading guilty because you are, in fact, guilty of Martinez Aff. ¶¶ 4--7. The affidavit also contained a this crime?" Martinez replied "Yes, sir." (Plea: Tr. 12). statement that "defendant ... was fully aware of the consequences of his plea of guilty." Id. ¶ 6. Martinez's The court asked Martinez if he understood that a plea counsel later explained that this was a typographical error had the same effect as if he had been convicted after a and that Martinez meant he was not fully aware, as the trial, to which Martinez responded that he did. (Plea: Tr. context of the statement implies. See Sentencing: Tr. 4; 12--13). Martinez also stated that he understood the charge App. Brief at 6 n. 3. he was pleading to and that no one had forced him to enter into the plea. (Plea: Tr. 13). The court then repeated the *3 On September 1, 1999, prior to sentencing, Judge nature of the charge-Criminal Possession of a Controlled Zweibel considered Martinez's motion to withdraw his Substance in the Second Degree-and the following plea. See generally Transcript of Hearing on Motion to colloquy ensued: Withdraw Plea & Sentencing Hearing Conducted

September 1, 1999 (Docket # 9), at 2--8. Defense counsel

THE COURT: It is alleged that the defendant[ ], indicated that the pro se motion "puts me in a situation Alberto Martinez[,] ... in the County of New York, on or where it would be a conflict of interest for me to remain about March 15th, 1998, knowingly and unlawfully on this case, an irreconcilable interest [sic]." (Sentencing: possessed one or more preparations, compounds, Tr. 3). He explained: mixtures and substances containing a narcotic drug; to wit, cocaine, and said preparations, compounds, Anyway, I did not encourage this motion. I cannot mixtures and substances are of an aggregate weight of join this motion in good conscience ... and I certainly two ounces or more. Do you plead guilty to that charge? wouldn't start to feel that I'm in a position to effectively argue such a motion considering a very extensive record THE DEFENDANT: Yes, sir. that I made on the last date ... regarding the proof in this case, the consequences to the Defendant and what his (Plea: Tr. 13--14). The clerk officially recorded the options were.... plea and the case was scheduled for sentencing on September 1, 1999. (Plea: Tr. 14--15). So, I have not joined in this motion. This is a pro se motion. I don't know if it would be in conflict. Clearly, A few days later, Martinez filed a pro se motion to I cannot in good conscience argue this particular withdraw his plea that annexed an affidavit. See Notice of motion. I think my client stands to be seriously Motion, dated August 24, 1999, and Affidavit of Alberto prejudiced if this motion were granted.

Martinez, dated August 25, 1999 ("Martinez Aff.") (both annexed as Ex. A to Resp. Opp.). Both the Notice of (Sentencing: Tr. 4--5). He further stated: Motion and affidavit were "fill-in-the-blank" forms inasmuch as lines appear where case-specific information, As I said, I feel that I'm at a conflict of interest with this such as the defendant's name, docket number, and dates, particular motion to withdraw, and I think the Court needs to be filled in. Martinez filled in some of these lines should make a ruling as to whether to relieve me on this but left blank a large space provided for him to fill in the matter regarding this particular motion and have another specific facts supporting his motion. Martinez Aff. ¶ 5. attorney, maybe, make an effective argument for him on this matter, since I don't feel that I can make an The affidavit form states that the affiant is "not fully argument, and it may be to his prejudice that he doesn't aware of the circumstances involved when he made such have an attorney to argue this withdrawal.

(Sentencing: Tr. 6--7). The trial court declined to (1978) ]; People v. Colon, 283 A.D.2d 193, 724 allow defense counsel to withdraw and to appoint N.Y.S.2d 600 [ (1st Dep't 2001) ] ). The motion Martinez a new attorney. (Sentencing: Tr. 7) ("I see no consisted of vague and conclusory allegations of basis for you to be discharged on the basis of this motion innocence, lack of comprehension and ineffective that was presented to me. I see no merit whatsoever to this assistance of counsel, which the court described as motion, and that application is denied to relieve you, "boilerplate papers that are prepared within the prison counsel."). system." The court, which had also accepted the guilty plea, was entitled to rely on the plea colloquy, which With respect to the underlying motion to withdraw the contradicted defendant's assertions. plea, the trial court examined the papers submitted by Martinez and observed that "[t]hese are boiler plate papers Id. at 70, 733 N.Y.S.2d 867. Thereafter, Martinez that are prepared within the prison system." (Sentencing: sought leave to appeal to the New York Court of Appeals, Tr. 4). Further, the court found the assertions made in which was denied on March 27, 2002. People v. Martinez, Martinez's affidavit to be "contrary to the full allocution 97 N.Y.2d 757 (2002). he made the other day." (Sentencing: Tr. 5--6). The trial judge agreed with the prosecutor's statement that "[t]he Martinez is currently incarcerated at the Mid--State only question [is] whether [the plea] was knowing and Correctional Facility in Marcy, New York. He timely filed voluntary, and it was one of the most extensive plea this petition for writ of habeas corpus arguing that he was allocutions and discussions on the record, prior to deprived of his right to due process of law and his right to allocution, that I've had since I've been with the District conflict-free counsel when the trial court summarily Attorney's Office." (Sentencing: Tr. 7--8). denied his motion to withdraw his guilty plea without appointing new counsel. See Petition at 2--3. Martinez Before he was sentenced, Martinez was invited to exhausted his state law remedies by presenting the address the court. He stated only: "I don't have any drugs, constitutional nature of his claims to each available level and I don't know anything about any drugs." (Sentencing: of the state courts. See Daye v. Attorney Gen., 696 F.2d Tr. 11). He was then sentenced to the agreed-upon term of 186, 190--92 (2d Cir.1982) (en banc), cert. denied, 464 six years to life imprisonment. (Sentencing: Tr. 11). U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).

In May 2001, through newly-assigned counsel, II. DISCUSSION Martinez appealed his conviction, arguing that the "trial court erred in refusing to relieve counsel, who stated that A. Standard of Review he had a conflict of interest, and in summarily denying Mr.

Martinez'[s] motion to withdraw his plea." App. Brief at Under the Antiterrrorism and Effective Death Penalty 6. The conviction was unanimously affirmed by the Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, a petition for Appellate Division, First Department, on December 11, a writ of habeas corpus may not be granted with respect to 2001. People v. Martinez, 289 A.D.2d 70, 733 N.Y.S.2d any claim that has been "adjudicated on the merits" in the 867 (1st Dep't 2001). The Appellate Division stated: state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an *4 The court properly exercised its discretion in unreasonable application of, clearly established Federal denying defendant's motion to withdraw his guilty plea law, as determined by the Supreme Court of the United without a hearing and without appointing new counsel. States; or (2) resulted in a decision that was based on an Defendant was afforded a sufficient opportunity to unreasonable determination of the facts in light of the present his assertions by means of his written motion, evidence presented in the State court proceeding." 28 upon which he did not elaborate, and the court gave the U.S.C. § 2254(d). The Second Circuit has held that motion proper consideration (see People v. Frederick, "adjudication on the merits" requires only that the state 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [ court base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." the allegations made in the motion and therefore could not Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.2001). argue the motion on Martinez's behalf. See id. at 4--5. Furthermore, it is not necessary for the state court to refer Each claim is addressed separately. to any federal claim or any federal law for AEDPA's 1. Unknowing Guilty Plea deferential standard to apply. Id. at 312. In light of the Appellate Division's decision in this case, it is clear that [1] The Due Process Clause of the Fourteenth Martinez's claims were adjudicated on the merits. Amendment requires that a guilty plea be knowingly and Accordingly, the state court's decision will be reviewed voluntarily entered. E.g., Boykin v. Alabama, 395 U.S. under the standard laid out in 28 U.S.C. § 2254(d). 238, 242--43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A plea is made knowingly when it is entered " 'with [an] *5 In Williams v. Taylor, the Supreme Court held that understanding of the nature of the charge and the a state court decision is "contrary to" clearly established consequences of the plea." ' Santobello v. New York, 404 federal law only "if the state court applies a rule that U.S. 257, 261 n. 1, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) contradicts the governing law set forth" in Supreme Court (quoting Fed.R.Crim.P. 11). precedent or "if the state court confronts a set of facts that Martinez does not contend that the plea colloquy itself are materially indistinguishable from a decision [of the reflects an improperly entered plea. Rather, Martinez Supreme Court] and nevertheless arrives" at a different relies on his motion to withdraw his plea, in which he result. 529 U.S. 362, 405--06, 120 S.Ct. 1495, 146 stated that he "plead [sic] guilty for reasons which are L.Ed.2d 389 (2000). Williams also held that habeas relief outside of the record ... and was [not] fully aware of the is available under the "unreasonable application" clause consequences of his plea of guilty and also ... he was only "if the state court identifies the correct governing unaware of the fact[ ] that he has a good meritorious legal principle from [the Supreme Court's] decisions but defense." Martinez Aff. ¶ 6. He also stated that he was unreasonably applies that principle to the facts of the "not guilty of the offense(s) to which he plead [sic] prisoner's case." Id. at 413. A federal court may not grant guilty." Id. ¶ 7. relief "simply because that court concludes in its independent judgment that the relevant state-court *6 Case law reflects that assertions of this kind are decision applied clearly established federal law insufficient to negate the existence of a valid plea. As the erroneously or incorrectly." Id. at 411. Rather, the state Supreme Court has noted, "[s]olemn declarations in open court's application must have been "objectively court carry a strong presumption of verity. The subsequent unreasonable." Id. at 409. presentation of conclusory allegations unsupported by specifics is subject to summary dismissal...." Blackledge B. The Merits of Martinez's Claims v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); accord Singh v. Kuhlman, 1996 WL 337283, at *3

Martinez argues that his Sixth and Fourteenth (S.D.N.Y. June 19, 1996). As already noted, the affidavit Amendment rights were violated when the state court containing these statements was a fill-in-the-blank form denied his motion to withdraw his plea without appointing and Martinez never provided any details explaining-let new counsel to represent him on the motion. See Petition alone substantiating-any of the conclusory assertions at 2--3, 5--6. The petition appears to raise three claims: (1) contained in the affidavit. Furthermore, the affidavit the plea was entered unknowingly, in violation of the Due completely contradicts Martinez's own statements during Process Clause; (2) Martinez was denied due process by his plea allocution. Compare Martinez Aff. ¶¶ 4, 6--7, with the state court's failure to hold a hearing on his motion; Plea: Tr. 11--15. As for Martinez's contention of having a and (3) the state court's failure to appoint new counsel to "meritorious defense," Martinez Aff. ¶ 6, there is no represent him on his motion denied Martinez his right to indication anywhere in the record that such a defense conflict-free counsel. Martinez bases his claims on the actually existed. Indeed, defense counsel stated on the allegations in his affidavit and on defense counsel's record before the plea: statements that he had a conflict of interest with regard to I don't think he has much of a defense on [this case], during the plea allocution that no one had forced him to because, after all, he would have to testify in this case to plead guilty. Id. make out the defense that he has and I've advised him he *7 In seeking federal habeas review of his conviction, has a criminal record here and that will be made known the petitioner in Hines argued that the failure to hold a to the jurors in this case, that he has a criminal record, hearing on his motion to withdraw his plea violated due and that will seriously effect his credibility, in addition process. 318 F.3d at 161. The Second Circuit held, to the proof that the prosecution has here, that he at however, that "a defendant is not entitled as a matter of some point possessed the narcotics in this case. right to an evidentiary hearing on a motion to withdraw a guilty plea." Id. at 162; accord Cosey v. Walsh, 2003 WL (Plea: Tr. 6). Martinez's motion to withdraw did not 1824640, at *3 (S.D.N.Y. Apr.8, 2003); Thomas v. elaborate on any new possible defense he had discovered Senkowski, 968 F.Supp. 953, 956 (S.D.N.Y.1997). Thus, or indicate that he could substantiate his claim of "the failure to hold an evidentiary hearing ... does not innocence. offend a deeply rooted or 'fundamental' principle of justice." Hines, 318 F.3d at 162 (quoting Medina v. Martinez's statements during his plea allocution California, 505 U.S. 437, 445, 112 S.Ct. 2572, 120 demonstrate that the plea was knowing in that it was L.Ed.2d 353 (1992)). The failure to hold a hearing is entered with full knowledge of the charge and the especially understandable in Martinez's case where consequences of pleading guilty. See Santobello, 404 U.S. petitioner "did nothing more than contradict his own at 261. The statements Martinez made during the plea statements at the time he entered the plea," Hutchings v. allocution control over the unexplained statements in his Herbert, 260 F.Supp.2d 571, 581 (W.D.N.Y.2003). affidavit. See Singh, 1996 WL 337383, at *3. The state court's determination that Martinez's "vague and In light of the lack of a federal constitutional right to conclusory allegations of innocence, [and] lack of an evidentiary hearing in this situation, the Appellate comprehension" were nothing more than "boilerplate" and Division's decision upholding the failure to hold such a "contradicted defendant's assertions," Martinez, 289 hearing was not "contrary to, or involved an unreasonable A.D.2d at 70, 733 N.Y.S.2d 867, was neither contrary to, application of, clearly established Federal law." 28 U.S.C. nor did it involve an unreasonable application of, any § 2254(d). clearly established federal law.

3. Ineffective Assistance of Counsel/Motion to Substitute 2. Motion to Withdraw Guilty Plea Counsel

[2] The next question raised by Martinez is whether [3] Martinez also argues that the trial court violated he was entitled to an evidentiary hearing on his motion to his right to counsel when it failed to appoint new counsel withdraw his guilty plea. A recent case from the Second to represent him on his motion to withdraw his plea. See Circuit, Hines v. Miller, 318 F.3d 157 (2d Cir.), cert. Petition at 5--6. Hines considered the same issue in the denied, 538 U.S. 1040, 123 S.Ct. 2089, 155 L.Ed.2d 1075 context of petitioner's argument that he was denied (2003), is almost precisely on point. In Hines, the effective assistance of counsel by his attorney's failure to petitioner pled guilty in state court and thereafter sought represent him on his motion to withdraw his plea. 318 to withdraw his plea, claiming that his attorney coerced F.3d at 162--64. As is true here, the petitioner in Hines him into accepting the plea and that he was innocent of the based his motion in part on the ground that his attorney crime. Id. at 159. Defense counsel asked to be relieved had an actual conflict of interest. Id. and for new counsel to be appointed to represent the The Hines court noted that such claims can be petitioner on the motion. Id. The trial court, however, analyzed two ways: either (1) "as a claim that petitioner denied the pro se motion without holding a hearing and was denied his right to counsel because he was effectively without appointing new counsel, noting that the petitioner unrepresented on his motion to withdraw his plea," or (2) had inculpated himself when he entered the plea and stated "as a claim that petitioner was denied the effective assistance of counsel because an actual conflict of interest Conclusion adversely affected counsel's performance." Id. at 163 (citations omitted). The Supreme Court has not clarified For the foregoing reasons, the petition is denied. In which analysis courts should apply, but Hines observed addition, because Martinez has not made a substantial th a t th e S e c o n d C ir c u it h a s a p p lie d th e showing of the denial of a constitutional right, the Court ineffective-assistance-of-counsel analysis and has will not issue a certificate of appealability pursuant to 28 "generally decided the case on the basis of whether the U.S.C. § 2253(c). The Court also certifies, pursuant to 28 underlying motion had sufficient merit to create an actual U.S.C.1915(a)(3), that any appeal from the judgment conflict of interest or present a 'plausible alternative would not be taken in good faith. defense strategy." ' Id. (citations omitted); see, e.g., The Clerk is requested to enter judgment and close United States v. Davis, 239 F.3d 283, 285--88 (2d this case.

Cir.2001); Lopez v. Scully, 58 F.3d 38, 41--43 (2d Cir.1995); Fluitt v. Superintendent, Green Haven Corr. S.D.N.Y.,2004.

Facility, 480 F.Supp. 81, 86 (S.D.N.Y.1979) (Weinfeld, J.). Hines also noted that "numerous reviewing courts, Martinez v. Costello irrespective of the analysis employed, have affirmed the Not Reported in F.Supp.2d, 2004 WL 26306 (S.D.N.Y.) denial of a withdrawal motion despite the failure to END OF DOCUMENT appoint new counsel." 318 F.3d at 164 (citing cases).

Hines ruled against the petitioner in that case, holding that there was "no basis for concluding ... that the Appellate Division's decision here constituted an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States."

Id. *8 Hines governs the instant case. If anything, there was more information in the record in Hines as to the petitioner's explanation for attempting to withdrawal his guilty plea. See 318 F.3d at 159. Here, there is no such information and Martinez failed to provide any when he was given a chance to speak before sentencing or through the pre-sentence motion. In addition, unlike Hines, there are no allegations that Martinez's attorney attempted to coerce him. What is left is a patently meritless submission that obviously could not meet the standard of a motion with "sufficient merit to create an actual conflict of interest or present a 'plausible alternative defense strategy," ' Hines, 318 F.3d at 163. Thus, the trial court properly concluded that there was no need to appoint new counsel.

Because the Appellate Division's determination upholding this decision was not contrary to, or an unreasonable application of, any clearly established federal law, it must be upheld.


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