TODD A. ROUGHT, Petitioner,
DAVID STALLONE, Superintendent, Cayuga Correctional Facility, Respondent.
JAMES K. SINGLETON, Jr., District Judge.
Todd A. Rought, a New York state prisoner proceeding pro se, filed a Petition and Supplemental Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Rought is in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Cayuga Correctional Facility. Respondent has answered and Rought has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Rought was charged by indictment with two counts of sexual conduct against a child in the first degree, one count of rape in the second degree, and two counts of endangering the welfare of a child. Rought initially pled not guilty and rejected a plea offer. He later pled guilty and was sentenced to an aggregate term of eight years' imprisonment followed by twenty years of post-release supervision.
Through counsel, Rought directly appealed, arguing that: 1) his guilty plea was not knowing, voluntary, or intelligent where the Pre-sentence Investigation Report ("PSR") and sentencing memorandum "revealed [Rought's] limited mental competence"; 2) the court failed to hold a competency hearing prior to accepting Rought's guilty plea; 3) the plea colloquy was insufficient to put Rought on notice that he could be subject as a sex offender to indefinite civil confinement pursuant to the Sex Offender Management and Treatment Act ("SOMTA") after serving his prison term; 4) the court failed to place on the record its ruling denying Rought's motion to inspect the grand jury minutes, and, "adding to the inequity, " the court relied on the grand jury minuted during sentencing; 5) his sentence was harsh and excessive considering Rought's "limited ability to learn and understand."
The Appellate Division affirmed Rought's conviction, first holding that his claims that his plea was not knowing, voluntary and intelligent due to his mental incompetence and that the trial court erred in accepting his plea without a competency hearing were not preserved for review because Rought failed to move to withdraw his plea or vacate the judgment of conviction. The Appellate Division held that, moreover, Rought did not make any statements during the plea allocution that would negate an essential element of the crime or otherwise cast doubt on his guilt, which would have triggered a narrow exception to the state law preservation requirement. The court held that, in any event, there was no evidence in the record indicating that Rought lacked the capacity to enter a knowing, intelligent and voluntary plea because he participated in the plea allocution, gave coherent responses to the trial court's questions, confirmed that he understood the proceedings and the ramifications of his plea.
The Appellate Division likewise denied Rought's claim that the plea colloquy was insufficient to put him on notice of potential confinement under SOMTA, noting that the court had advised him of the risk of continuing confinement, and Rought represented that he had reviewed the matter with counsel. Lastly, the Appellate Division was unpersuaded by Rought's claim that his sentence was harsh and excessive considering the serious nature of his offenses and that Rought received the bargained-for sentence.
Through counsel, Rought filed for leave to appeal to the Court of Appeals, raising the following claims: 1) his plea was not knowingly, voluntarily and intelligently entered because he has "limited mental capabilities" and the trial court "failed to elicit more than yes' or no' responses" during the plea colloquy; and 2) the guilty plea was involuntary because the court failed to advise Rought that he could potentially be subject to indefinite confinement under SOMTA. Rought additionally filed a pro se leave application, in which he raised four claims: 1) although he was charged with sexual offenses, his DNA was never tested; 2) the court erred in denying an unidentified motion; 3) the prosecution withheld unidentified exculpatory materials; 4) his plea was involuntary because he has a "mental disability of some kind, " primarily deafness in his right ear, and that he simply said "yes" or "no" in response to the court's questions because he was ashamed to state that he could not hear or understand what was transpiring; and 5) the court improperly relied on the PSR during sentencing. The Court of Appeals summarily denied leave to appeal.
Rought originally timely filed a petition under 28 U.S.C. § 2241. This Court ordered Rought to respond as to whether he consented to having his petition converted to one brought pursuant to 28 U.S.C. § 2254. Rought consented by letter, and this Court converted the petition. Rought then filed with this Court a petition under 28 U.S.C. § 2254, which this Court construed as a supplemental petition rather than an amended petition.
II. ISSUES RAISED
Rought raises the following claims in his Petition and Supplemental Petition before this Court: 1) his plea was not knowingly, voluntarily, and intelligently entered because the trial court failed to elicit more than a "yes" or "no" response during the plea colloquy in light of his "limited mental competence, [his] limited education [and] potential learning disebility [sic], largely untreated alcoholism[, ] physical difficulties, including deafness in one ear, " and the fact that he was on "mental healt[h] medication" at the time of the plea hearing; 2) the court should have held a competency hearing prior to accepting his plea; 3) the plea colloquy was insufficient to put him on notice of the potential confinement he faces under SOMTA; 4) the trial court failed to put its ruling denying defense counsel's motion to inspect the grand jury minutes on the record and then improperly relied on the grand jury minutes in sentencing; 5) his sentence was harsh and excessive due to his "lack of felony offense history"; 6) the prosecution withheld unidentified Brady  and Rosario  materials and also withheld medical records from the grand jury "that would show that the statements giving [sic] by the victim's [sic] and other witnesses, are not true"; 7) counsel was ineffective for failing to inform the court at the time of the plea hearing that Rought was on "medication for mental healt[h] disability, " that he had been evaluated by a drug and alcohol counselor, and that he was deaf in his right ear which made it hard for him to understand the proceeding; and 8) various "[p]rocedures" violate his due process rights, the New York Constitution, the United State Constitution, and New York State Criminal Procedure Law.
III. STANDARD OF REVIEW
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, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
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, " Williams, 529 U.S. at 412, and not circuit precedent, see Renico v. Lett, 130 S.Ct. 1855, 1865-66 (2010). The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds and not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). 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.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these standards in habeas review, this Court reviews this "last reasoned decision" by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). 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. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Respondent correctly contends that a number of Rought's claims are unexhausted. This Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). Exhaustion of state remedies requires the petitioner to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly present the legal basis of the claim. Id. at 365-66. An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings, irrespective of the label used. Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005).
Rought has exhausted his claim that his plea colloquy was insufficient to place him on notice of potential civil confinement under SOMTA. He raised this claim on direct appeal, citing relevant constitutional authority. He also raised this claim in his application for leave to appeal to the Court of Appeals. Respondent concedes that Rought's claim that his plea was involuntary is exhausted, and Respondent appears to have included Rought's competency argument within that claim. Although Rought presented his involuntary plea and competency claims in state-law terms and failed to raise his competency claim in his letter application for leave to appeal to the Court of Appeals, Respondent concedes that these claims may be deemed exhausted because they are "within the mainstream of federal constitutional litigation." See Daye v. Attorney Gen., 696 F.2d 186, 194 (2d Cir. 1982).
Rought failed to exhaust his claim that his sentence was harsh and excessive. Although he did raise this claim in his brief to the Appellate Division, he did so solely on state-law grounds. Rought failed to bring this claim in his application letter for leave to appeal to the Court of Appeals. See Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) (federal habeas court assumes for exhaustion purposes "that the Court of Appeals would construe a petitioner's leave application as abandoning claims that the petitioner had pressed to the Appellate Division below where those claims were not presented to the New York high court of review" (citation and internal quotation marks omitted)); Grey v. Hoke, 933 F.2d 117, 119 (1991) (petitioner failed to exhaust claims for purposes of federal habeas review where the claims were not presented in his letter application to the Court of Appeals, even though petitioner attached his brief to the Appellate Division which did raise the claims at issue). Rought argued in his brief to the Appellate Division that the trial court failed to place on the record its denial of a motion to inspect the grand jury minutes and then improperly relied on them in sentencing, but presented his claims solely on state-law grounds. Moreover, Rought claimed in his pro se application for leave to appeal to the Court of Appeals that the trial court erred in relying on the PSR in sentencing, but did not raise his claims regarding the grand jury minutes. Accordingly, this claim is also unexhausted. See Duncan, 411 F.3d at 345; Hoke, 933 F.2d at 119. Rought also brought his claim that certain "procedures" violated the New York and United States Constitutions and that the prosecution withheld certain material for the first time in his Petitions before this Court. These claims are therefore unexhausted. See Hoke, 933 F.2d at 119. Lastly, Rought raised his claim that counsel was ineffective for failing to advise the court that he was on medication at the time he entered his plea the first time in his Petitions before this Court, and it is therefore also unexhausted. See id.
"[W]hen a petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ' the federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008); see also Grey, 933 F.2d at 121. A habeas petitioner may only avoid dismissal of his procedurally defaulted claims if he can demonstrate "cause for the default and prejudice from the asserted error, " House v. Bell, 547 U.S. 518, 536 (2006), or a "fundamental miscarriage of justice, " Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A miscarriage of justice is satisfied by a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). Rought does not claim that cause exists for his procedural default, nor does he assert actual innocence. Because Rought may not now return to state court to exhaust these claims, the claims may be deemed exhausted but procedurally defaulted from habeas review. See Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001).
Rought's unexhausted claim that trial counsel was ineffective is not barred, however, because there is no time limit or number bar in filing writ of error coram nobis applications. See Smith v. Duncan, 411 F.3d 340, 347 n.6 (2d Cir. 2005); Turner v. Sabourin, 217 F.R.D. 136, 147 (E.D.N.Y. 2003). Rought may therefore still exhaust this claim in state court. This Court could stay the Petition and allow Rought to return to state court to satisfy the exhaustion requirement as to this unexhausted claim. See Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001). However, Rought has not requested that this Court stay and hold his petition in abeyance. Moreover, the Supreme Court has held that it is an abuse of discretion to stay a mixed petition pending exhaustion where: 1) the petitioner has not shown good cause for failing to exhaust all available state court remedies; and 2) the unexhausted claim is "plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005). In his Petitions, Rought provides no reason why he did not seek relief on this claim through a coram nobis application to the state court.
Despite Rought's failure to exhaust a number of his claims, this Court nonetheless may deny his claims on the merits and with prejudice. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). This is particularly true where the grounds raised are meritless. See Rhines, 544 U.S. at 277. Accordingly, this Court declines to dismiss the unexhausted claims solely on exhaustion grounds and will instead reach the merits of the claims as discussed below.
1. Claims related to Rought's plea hearing and acceptance (claims 1, 2, 3 & 7)
First, Rought argues that the court erred in failing to conduct a competency hearing prior to accepting his guilty plea. He also argues that his plea was involuntary because the court erred in failing to elicit more than a "yes" or "no" response from him during the plea colloquy in light of his "limited mental competence, [his] limited education [and] potential learning disebility [sic], largely untreated alcoholism[, ] physical difficulties, including deafness in one ear, " and the fact that he was on "mental healt[h] medication" at the time of the plea hearing. He further argues that his plea was involuntary because the plea colloquy failed to put him on notice of his potential indefinite civil confinement under SOMTA. Rought additionally argues that trial counsel was ineffective for failing to inform the court at the time of the plea hearing that Rought was on "medication for mental healt[h] disability, " that he had been evaluated by a drug and alcohol counselor, and that he was deaf in his right ear which made it hard for him to understand the proceeding.
At the plea hearing, the court questioned Rought as follows:
THE COURT: All right. Mr. Rought, your attorney tells me you want to enter a plea of guilty to each count of [the indictment] with the understanding, sir, that I would cap the sentence... at eight years within the New York State Department of Correctional Services and that I could impose-or I would ...