United States District Court, N.D. New York
STEPHEN L. KENNARD, Petitioner,
WILLIAM CONNOLLY, Superintendent, Fishkill Correctional Facility,  Respondent.
JAMES K. SINGLETON, Jr., Senior District Judge.
Stephen L. Kennard, a New York state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Kennard is in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Fishkill Correctional Facility. Respondent has answered. Kennard has not filed a Traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
Kennard pled guilty to a single count of course of sexual conduct against a child in the first degree with the understanding that he would be sentenced to a term of imprisonment not greater than 15 years' imprisonment and 5 years' post-release supervision. The trial court sentenced Kennard consistent with the plea bargain to 15 years in prison and 5 years of post-release supervision.
Kennard filed a counseled brief to the Appellate Division, arguing that his sentence was harsh and excessive. The Appellate Division unanimously affirmed in a reasoned opinion, finding "neither an abuse of discretion by [the trial court] nor the existence of extraordinary circumstances warranting a modification of the sentence in the interest of justice." The Court of Appeals denied Kennard's motion for leave to appeal.
Kennard filed a pro se motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Kennard claimed trial counsel was ineffective for failing to meet with him and to investigate the "most critical aspects of [his] case, " including that 1) at the time of his confession to police, Kennard "was having a hard time understanding what was taking place" because he was in pain due to a back injury and needed his medication; 2) the victim's two younger brothers informed Kennard that the victim "was having a sexual relationship with a cousin, and that she was having his baby"; and 3) counsel should look into the results of the DNA test that he gave to police at the time of his confession. He further argued that he was innocent of the charges and suggested that he pled guilty against his will.
The court denied Kennard's motion in a reasoned opinion, concluding that Kennard's plea was knowingly and voluntarily entered and that he was effectively represented by counsel who limited Kennard's sentencing exposure. The court noted that "[Kennard] was not strapped with ineffective assistance of counsel, but was strapped with an effective prosecution case against him. The young girl was prepared to testify against him at the trial which had already commenced, [Kennard] knew this, and he knowingly and voluntarily elected to take the benefit of a plea bargain and plead guilty to the charge against him."
Kennard claims in his Petition that he applied for leave to appeal the court's denial of his CPL § 440.10 motion, and that his application was denied. However, Respondent asserts that after inquiring with the Office of the Attorney General, it found no record of any such application for leave to appeal. Kennard later attempted to "withdraw" his § 440.10 motion, which the court denied, observing that the motion had already been denied months earlier.
Kennard filed a pro se petition for writ of error coram nobis, arguing that his appellate counsel was ineffective for "completely speciously" arguing that his sentence was harsh and excessive while failing to include other "obvious, meritorious" claims. The Appellate Division summarily denied the petition, and the Court of Appeals denied leave to appeal.
Respondent concedes that Kennard timely filed his Petition to this Court because, although Kennard filed his Petition more than one year after his conviction became final, the limitations period had been tolled due to Respondent's failure to serve Kennard with the dispositions of his timely filed state collateral motions for relief.
II. ISSUES RAISED
In his Petition to this Court, Kennard raises the following claims for habeas relief: 1) trial counsel was ineffective for failing to argue for the suppression of his confession to the police on the ground that he was under the influence of prescription medications at the time he gave his statement; 2) appellate counsel was ineffective for raising the "frivolous" claim on direct appeal that the sentence was harsh and excessive while failing to raise other meritorious claims; and 3) he is actually innocent of the crime to which he pled guilty.
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 ...