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Jones v. Perez

United States District Court, W.D. New York

January 21, 2015

KENNETH JONES, Petitioner,
v.
ADA PEREZ, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Proceeding pro se, Kenneth Jones ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in state custody in violation of his federal constitutional rights. Petitioner is incarcerated pursuant to a judgment of conviction entered against him in Erie County Court (Pietruszka, J.) of New York State on October 17, 2011, following his guilty plea to one count of assault in the first degree (N.Y. Penal Law ("P.L.") § 120.10(1)).

II. Factual Background and Procedural History

After Petitioner was arrested and charged in the non-fatal stabbing of Melquiaedes Torres, he was indicted on one count of assault in the first degree (N.Y. Penal Law § 120.10(1)). Petitioner elected to enter a plea of guilty to the sole count charged in the indictment, and was denied youthful offender status by the plea court. Petitioner was sentenced to a determinate term of 15 years plus 5 years of post-release supervision.

On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction. People v. Jones , 107 A.D.3d 1611 (4th Dep't 2013). However, that valid waiver did "not encompass [Petitioner]'s contention regarding the denial of his request for youthful offender status because [n]o mention of youthful offender status was made before [he] waived his right to appeal during the plea colloquy[.]'" Id . (quotation omitted). The Appellate Division summarily rejected Petitioner's contention that the trial court abused its discretion in denying his request for youthful offender status. Id . (citations omitted). Finally, the Appellate Division declined to consider Petitioner's sentencing claim because his valid appellate rights waiver encompassed his challenge to the severity of his sentence. The New York State Court of Appeals denied leave to appeal and denied reconsideration. People v. Jones , 21 N.Y.3d 1043, reconsideration denied, 22 N.Y.3d 956 (2013).

This timely habeas petition followed. Respondent answered the petition, but Petitioner failed to timely file a reply. For the reasons discussed below, the petition is dismissed.

III. Discussion

A. Validity of Appellate Rights Waiver

Petitioner asserts that his waiver of appellate rights was invalid and insufficient to preclude the denial of his request for youthful offender status and to preclude review of his sentence as harsh and excessive. On appeal, the Appellate Division held that Petitioner's appellate rights waiver was knowing, voluntary and intelligent. People v. Jones , 107 A.D.3d at 1611 (citations omitted).

Petitioner has not cited, and the Court is not aware of, any federal precedent standing for the proposition that specific language must be used by the trial judge in apprising a defendant pleading guilty of the individual rights relinquished. See Roland v. Rivera, No. 06-CV-6543(VEB)(DGL), 2011 WL 1343142, at *4 (W.D.N.Y. Jan. 6, 2011) (rejecting as not cognizable petitioner's claim that the trial court failed to conduct a proper inquiry into his understanding of the appellate rights waiver) (citing Salaam v. Giambruno , 559 F.Supp.2d 292 (W.D.N.Y. 2008); Nicholas v. Smith, No. 02 CV 6411(ARR) , 2007 WL 1213417, at *10-11 (E.D.N.Y. Apr. 24, 2007)). The Court need not consider whether Petitioner has a viable federal constitutional claim regarding the alleged deficiency in his appellate rights waiver, because, as discussed below, the underlying claims are not cognizable on habeas review.

B. Harsh and Severe Sentence

On appeal, Petitioner asserted that his 15-year determinate sentence was unduly harsh and severe, and that the sentencing judge abused his discretion in not imposing a shorter sentence. Petitioner urged the Appellate Division to exercise its discretionary authority under New York State law to review factual questions and reduce the length of his sentence in the interests of justice. Thus, Petitioner's claims with respect to his sentence, based solely on state law, are not appropriate for federal habeas review. E.g., Holliday v. New York, No. 10-CV-0193(MAT), 2011 WL 2669615, at *2 (W.D.N.Y. July 7, 2011).

The Second Circuit has stated that no federal constitutional issue amenable to habeas review is presented where the sentence is within the range prescribed by state law. White v. Keane , 969 F.2d 1381, 1383 (2d Cir.1992) (citation omitted). Here, Petitioner was a first-time felony offender convicted of assault in the first degree (N.Y. Penal Law § 120.10(1)), a class B violent felony offense. See N.Y. PENAL LAW § 70.02(1)(a). At the time of sentencing in October 2011, the required sentence for a class B violent felony offense was a determinate term of imprisonment fixed in whole or half years, in accordance with the provisions of P.L. § 70.02(3). N.Y. PENAL LAW § 70.02(2)(a) (eff. until Sept. 1, 2015, pursuant to L.1995, c. 3, § 74, par. d.). Section 70.02(3) provided that the term of a determinate sentence for a class B felony must be at least 5 years and must not exceed 25 years. N.Y. PENAL LAW § 70.02(3)(a). Petitioner was sentenced to a determinate term of 15 years, well within the statutorily prescribed range. ...


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