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David Peters v. Superintendent

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

© 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.))

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

© 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.))

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 ...


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