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Vladimir Kulakov v. Superintendent

November 30, 2012


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Vladimir Kulakov, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Kulakov is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at the Great Meadow Correctional Facility. Respondent has answered, and Kulakov has replied.


Kulakov was convicted by a Clinton County jury of Attempted Murder in the First Degree (N.Y. Penal Law §§ 110.00/125.27[1](a)(i), (b)), Assault in the First Degree (N.Y. Penal Law § 120.10[4]), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[7]), Grand Larceny in the Third Degree (N.Y. Penal Law § 155.35), Criminal Possession of Stolen Property in the Third Degree (N.Y. Penal Law § 165.50), and Criminal Possession of Stolen Property in the Fourth Degree (N.Y. Penal Law § 165.45[5]). In January 2007 the Clinton County Court sentenced Kulakov as a second felony offender to an aggregate prison term of twenty-five years to life, plus a consecutive indeterminate term of twelve and one-half to twenty-one years, to be followed by five years of supervised release. The Appellate Division, Third Department, affirmed Kulakov's conviction and sentence, and the New York Court of Appeals denied leave to appeal on July 22, 2010.*fn1 Kulakov timely filed his Petition for relief in this Court on October 31, 2010, and his Amended Petition on November 4, 2010.

While his appeal was pending, Kulakov filed three motions to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 ("CPL § 440.10 motion") in the Clinton County Court. All three were denied and, to the extent that Kulakov sought leave to appeal, leave was denied prior to the date his conviction became final.

In December 2010, after he filed his Petition for relief in this Court, Kulakov filed a motion to for a new trial in the Clinton County Court, which the court treated as a motion under CPL § 440.10 and denied. The Appellate Division denied leave to appeal, and the Court of Appeals dismissed Kulakov's petition for leave to appeal on May 24, 2011.*fn2


In his Amended Petition Kulakov asserts four grounds, raising seven claims: (1) his confession was false (induced by force and threats); (2) his confession was signed without the presence of a notary; (3) his confession was induced by beatings by the State Troopers; (4A) he was denied the right to present a defense by the prosecution; (4B) he was denied the right to proceed pro se; (4C) alternatively to proceeding pro se, he was denied the appointment of substitute counsel; and (4D) trial counsel failed to present evidence that Kulakov's statements to the police were coerced. Respondent contends that, except for his claims that he was denied the right to appear pro se or, alternatively that he was denied the right to have substitute counsel appointed (Grounds 4B and 4C), Kulakov's claims are unexhausted, but deemed exhausted and procedurally barred. Respondent also contends that Kulakov's claim that he was denied the right to proceed pro se (Ground 4B) is procedurally barred. Respondent raises no other affirmative defenses.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn5 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn6 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn7 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn8 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn9 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn10 Kulakov "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn11

The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn12

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14 Although pre-AEDPA precedent established that deference is due to the findings of state appellate courts,*fn15 the Second Circuit has left the question open with respect to AEDPA cases.*fn16 In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.


A. Procedural ...

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