United States District Court, N.D. New York
LAMAR GRIMES Petitioner, Pro Se 05-B-2451, Romulus, NY.
ALYSON J. GILL, ESQ., Assistant Attorney General, ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, New York, NY, Attorney for Respondent.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Petitioner Lamar Grimes brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his current incarceration on the following grounds: (1) the trial court should have suppressed the identification evidence; (2) his plea was not knowing, intelligent and voluntary due to (a) errors in the plea allocution and coercive statements made by the sentencing judge and his counsel, and (b) the ineffectiveness of counsel; (3) the sentence was harsh and excessive; and (4) the waiver of the right to appeal was not knowing voluntary and intelligent and was otherwise void as against public policy. Dkt. No. 18, 2nd Am. Pet. For the reasons stated below, it is recommended that the Petition be DENIED.
According to State Court Records, On January 24, 2005, petitioner broke into the home of E.B., a female acquaintance, and raped and beat her at knife-point and strangled her with a telephone cord causing her to incur significant injuries. Dkt. 10-24, Wade Hr'g Tr. (hereinafter "Wade Tr."), dated June 7, 2005, at pp. 3-7 & 9-11; see also Dkt. No. 10-24, Pet.'s Plea Tr. (hereinafter "Plea Tr."), dated July 27, 2005, at pp. 8-15. Petitioner then set fire to E.B.'s apartment complex while she was still inside, stole property from E.B., and when confronted by the police, gave them a false name. Plea Tr. at pp. 9 & 14-15.
On June 7, 2005, at a Wade Hearing,  Petitioner unsuccessfully moved to suppress evidence that the victim, an acquaintance of Petitioner, had positively identified him as the perpetrator. Wade Tr. at pp. 23-24. On July 27, 2005, Petitioner entered into a plea agreement whereby he waived his right to appeal and pled guilty to fifteen separate counts:
one count of rape in the first degree (N.Y. PENAL L. (hereinafter "PL") § 130.35(1)), a class B felony;
one count of sexual abuse in the first degree (PL §130.65(1)), a class D felony;
two counts of burglary in the first degree (PL §§ 140.30(2) & 140.30(3)), class B felonies;
two counts of assault in the first degree (PL §§ 120.10 (1) & 120.10(4)), class B felonies;
two counts of robbery in the first degree (PL§§ 160.15(1) & 160.15(3)), class B felonies;
one count of arson in the second degree (PL§150.15), a class B felony;
one count of assault in the second degree (PL § 120.05(6)), a class D Felony;
one count of criminal impersonation in the second degree (PL § 190.25(1)), a class A misdemeanor;
one count of reckless endangerment in the first degree (PL§ 120.25) a class D Felony; and
three counts of petit larceny (PL § 155.25), class A misdemeanors.
Plea Tr. at pp. 2-3 & 7-15.
Per the terms of the plea agreement, Petitioner received an aggregate sentence of thirty (30) years with five (5) years post-release supervision. See Dkt. No. 10-24, Sentencing Hr'g Tr. (hereinafter "S. Tr."), dated Aug. 17, 2005, at pp. 10-11.
On April 24, 2007, Petitioner made a post-judgment motion to vacate his conviction pursuant to N.Y. CRIM. PROC. L. (hereinafter "CPL") § 440. State Ct. R. (hereinafter "R."),  Ex. A, Pet'r 1st Mot. to Vacate (hereinafter "1st § 440 Motion"), dated Apr. 24, 2007. The motion was denied. R., Ex. C, Dec. & Order ("D & O"), dated Aug. 6, 2007.
In December of 2007, Petitioner filed a direct appeal to the Appellate Division. See generally R., Ex. G, Pet'r Appellate Div. Br., dated Dec. 10, 2007. On July 3, 2008, the New York State Appellate Division, Fourth Department, (hereinafter "Appellate Division") affirmed Petitioner's conviction. People v. Grimes, 53 A.D.3d 1055 (N.Y.App.Div., 4th Dep't 2008). On July 11, 2008, Petitioner applied for leave to review from the New York Court of Appeals (hereinafter "Court of Appeals"). R., Ex. J, Lt.-Appl. for Leave to Appeal, dated July, 11, 2008. That request was denied on September 30, 2008. People v. Grimes, 11 N.Y.3d 789 (N.Y. Ct. App. 2008).
On December 28, 2010, Petitioner filed a second motion to vacate his conviction pursuant to CPL § 440. R., Ex. S, Pet'r 2nd Mot. to Vacate (hereinafter "2nd § 440 Mot."). The motion was denied. R., Ex. U, D & O, dated Feb. 24, 2010. Petitioner sought leave to appeal the denial on March 23, 2010. R., Ex. V, Pet'r Mot. for Leave to Appeal, dated Mar. 23, 2010.
The operative pleading in this case is the Second Amended Petition, filed on March 18, 2010. Respondent has replied to the allegations therein. Dkt. Nos. 8-1, Resp't Opp'n & 23, Resp't Supp. Opp'n. Respondent concedes that Petitioner's claims are timely, and with the exception of Petitioner's claims that his sentence was harsh and excessive and that the wavier of his right to appeal was void as against public policy, that his claims were also properly exhausted.
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either
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); Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006); DeBerry v. Portuondo, 403 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 petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234679, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "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 DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The Second Circuit has provided additional guidance concerning application of this test, noting 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 Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
B. Petitioner's Claims
1. Sentencing Claims
Petitioner claims that his sentence was harsh and excessive. 2nd Am. Pet. at ¶ 13(4). It is well settled that the issue of whether a sentence was overly harsh or excessive is not a proper issue for review in the habeas context unless the sentence was outside of the permissible range provided for by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.").
As to the individual counts, the court imposed the following sentence: Petitioner was sentenced to a determinate term of fifteen (15) years with five (5) years of post release supervision (hereinafter "PRS") on each of his class B felony convictions, i.e., first degree rape, second degree arson, first degree burglary, first degree assault, and first degree robbery. See S. Tr. at pp. 10-11; see also PL §§ 120.10, 130.35, 140.30, 150.15, & 160.15. The maximum sentence for a class B felony in New York is twenty-five (25) years, and may include a term of PRS not to exceed five (5) years. PL §§ 70.00(2)(b) & 70.45. Petitioner was further sentenced to a determinate term of seven (7) years with five (5) years of PRS for his class D felony convictions, i.e., first degree sexual abuse and second degree assault. See S. Tr. at pp. 10-11; see also PL §§ 120.10 & 120.05. The maximum sentence for a class D felony in New York is seven (7) years, and may include a maximum of five (5) years PRS. PL §§ 70.00(2)(d) & 70.45. Additionally, Petitioner was sentenced to an indeterminate term of three and a half (31/2) to seven (7) years on the first degree reckless endangerment count (also a class D felony), and time served on the criminal impersonation count and petit larceny counts (both class A misdemeanors). See S. Tr. at pp. 10-11; PL §§ 120.25, 155.25, & 190.25. The court further pronounced that "counts one, two, four, five, six, seven, eight, nine, ten and eleven shall run concurrent. Count three will run consecutive to all felony counts. Counts twelve and fifteen will merge with the state sentence which will constitute a thirty-year determinate sentence, five years post release supervision." S. Tr. at p. 11; see also infra Part II. B(4)(iii); CPL § 70.35. Therefore, because Petitioner's sentences were well within the range permissible by state law, he has not presented a cognizable claim for purposes of federal habeas review. See White v. Keane, 969 F.2d at 1383. Thus, we recommend that this ground of the Petition be DENIED.
2. Waiver of Right to Appeal
Petitioner has failed to exhaust his claim that the waiver of his right to appeal was not intelligently and voluntarily entered, and was otherwise void as against public policy. See 2nd Am. Pet. at ¶ 13(3). A state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement with respect to a claim, a Petitioner must "present the substance of the same federal constitutional claim[s]" to the state courts "that he now urges upon the federal courts[.]" Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (internal quotation marks omitted) (citing Turner v. Artuz, 262 F.3d 118, 123-24 (2d Cir. 2001)). "A federal constitutional claim has not been fairly presented to the State courts unless the petitioner has informed those courts of all the essential factual allegations' and essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Att'y Gen. of the State of New York, 191 F.3d 188, 191 (2d Cir. 1999) (citing Daye v. Att'y Gen. of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (further citing Picard v. Connor, 404 U.S. 270, 276-277 (1971)). A claim may be "fairly present[ed] to the state courts[, ]... without citing chapter and verse of the Constitution, " if there is: (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, or (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye v. Att'y Gen. of the State of New York, 696 F.2d at 191; see also Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005).
On direct appeal, Petitioner raised a claim that the waiver of appeal he signed, pursuant to his plea agreement, was not voluntarily or intelligently entered and void as against public policy. R. at Ex. G, Pet'r Appellate Br. at p. 22. After losing his direct appeal, Petitioner sought leave for review from the Court of Appeals. R. at Ex. J, Lt-Appl. for Leave to Review at p. 2. Although Petitioner raised the issue in both motions, he did so solely on state law grounds. See R. at Exs. G & J. Petitioner failed to cite a single federal case or even a state case directly employing federal constitutional analysis, as is required for "fair presentation" by the first two factors set forth in Daye. Similarly, Petitioner neither asserted his claim in terms so particular as to call to mind a specific right protected by the Constitution, nor alleged "a pattern of facts that is well within the mainstream of constitutional litigation, " as required by the third and fourth Daye factors. Daye v. Att'y Gen. of the State of New York, 696 F.2d at 194; see also Smith v. Duncan, 411 F.3d at 348.
Moreover, this claim should be deemed exhausted but procedurally barred because any attempt by Petitioner to re-raise this claim in state court would be futile. See Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994) (finding that when "it is clear that the unexhausted claim is procedurally barred by state law and... its presentation in the state forum would be futile[, ]" a district court may deem such claim exhausted but also procedurally defaulted) (citing Aparicio v. Artuz, 269 F.3d at 90). Petitioner is barred from returning to state court to re-present this claim because he has already taken advantage of his one and only chance to appeal the loss of his direct appeal to the Court of Appeals. See Aparicio v. Artuz, 269 F.3d at 91 (finding that a petitioner is "entitled to one (and only one) appeal to the Appellate Division and one request for leave to appeal to the Court of Appeals... [and] New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal.") (citing CPL §§ 450.10(1) & 440.10(2)(c), & N.Y. Court R. § 500.10(a)).
Where a prisoner has defaulted on his federal claims in state court, a district court may reach the merits of such claim only upon a demonstration of "cause for the default and actual prejudice, " or that a "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). 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, 501 U.S. at 753; Restrepo v. Kelly, 178 F.3d 634, 639 (2d Cir. 1999). Examples of external factors include "interference by official, " ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986); Bossett v. Walker, 41 F.3d at 829 (citing Murray ); United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993). A fundamental miscarriage of justice "occurs only in those extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.'" Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)).
Petitioner has failed to demonstrate cause for the default,  resulting prejudice, or that failure to review this claim would result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 748-50. Therefore, we ...