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Rose v. Lee

United States District Court, N.D. New York

February 19, 2015

NAKIA ROSE, Petitioner,
WILLIAM LEE, Superintendent, Green Haven Correctional Facility, Respondent.

NAKIA ROSE, Green Haven Correctional Facility, Stormville, New York, Plaintiff pro se.



MAE A. D'AGOSTINO, District Judge.


Petitioner, an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), at the Green Haven Correctional Facility, filed this petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as a pro se litigant. See Dkt. No. 1. In his petition for writ of habeas corpus, Petitioner raises four grounds for review: (1) Petitioner's seizure and detention were violations of both the United States Constitution and the New York State Constitution; (2) Petitioner was denied the effective assistance of trial counsel under the standards required under both the United States Constitution and the New York State Constitution; (3) Petitioner was denied due process and equal protection of law when the trial court, in ruling on Petitioner's motion to vacate his conviction pursuant to N.Y. Crim. Pro. Law § 440.10, failed to require a response from the people, and that the judge's decision was conclusory, arbitrary and failed to address the merits of the claims; and (4) Petitioner's appellate counsel was ineffective because he failed to and was precluded from raising ineffective assistance of trial counsel. See Dkt. No. 1 at 3-5.

On September 20, 2013, Magistrate Judge Baxter issued a Report and Recommendation, recommending that Petitioner's writ of habeas corpus be denied and dismissed on the grounds that the petition was filed outside of the one-year statute of limitations period as required under 28 U.S.C. § 2244(d). See Dkt. No. 9. On October 8, 2013, Petitioner filed his objections to Magistrate Judge Baxter's Report and Recommendation. See Dkt. No. 12. In his objections, Petitioner contends that his petition for writ of habeas corpus was not time-barred and argues that his motion for the assignment of counsel should be not be dismissed because of his alleged statutory compliance. See id. at 3-7.


On or about May 25, 2007, Petitioner, along with another individual, Damion Tyrell, was arrested and charged with the robbery and assault of Michael Brown in Albany, New York. See Dkt. No. 1 at ¶ 2. On that date, Petitioner and his co-defendant drove from New York City to Albany, New York in order to collect a drug debt from Brown. See Dkt. No. 7-1 at 4. After Brown informed Petitioner and Tyrell that he was unable to pay the debt because the money had been previously stolen, at the instruction of Petitioner, Tyrell shot Brown in the leg and arm/chest area. See id. at 5. Before fleeing Brown's home, Petitioner and Tyrell stole over one thousand dollars. See id. Based on the description Brown gave to the police, Petitioner and Tyrell were eventually arrested and taken into custody by State Troopers Ronald Harris and Leopold Klemke later that day. See id. at 6-7. On August 17, 2007, an Albany County Grand Jury handed down an eight-count indictment charging Petitioner with several offenses. See id. On February 6, 2009, the New York State Supreme Court, Albany Country, issued Petitioner a judgment of conviction. See id. at ¶ 3. Petitioner was convicted after a jury trial of one count of Assault in the First Degree; two counts of Robbery in the First Degree; one count of Robbery in the Second Degree; two counts of Criminal Possession of a Weapon in the Second Degree; and one count of Criminal Possession of Stolen Property in the Fourth Degree. See id. Petitioner was thus sentenced on February 9, 2009, to a determinate prison term of 25 years, followed by a five-year period of post-release supervision. See id. at 9. On April 22, 2010, the New York Supreme Court Appellate Division, Third Department, affirmed Petitioner's conviction and sentence, and the New York Court of Appeals denied leave to appeal on January 18, 2011. See id. at 12; People v. Rose, 72 A.D.3d 1341 (3d Dep't 2010), lv. denied, 16 N.Y.3d 745 (2011). Since Petitioner did not seek Supreme Court review, 90 days later, on April 18, 2011, Petitioner's criminal conviction became final. On February 29, 2012, 316 days after Petitioner's conviction became final, Petitioner filed a motion to vacate his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10.[1] The trial court denied Petitioner's section 440.10 motion to vacate on April 16, 2012, and the Appellate Division denied leave to appeal on June 29, 2012. See Dkt. No. 12 at 4. Subsequently, Petitioner sought leave from the New York Court of Appeals to appeal the Appellate Division's denial of his section 440.10 motion, which was dismissed by the Court of Appeals on September 6, 2012. See Dkt. No. 12 at 4. On October 11, 2012, Petitioner filed a coram nobis petition[2] in the Appellate Division, which the court denied on November 16, 2012. See Dkt. No. 9 at 2. Petitioner sought leave to appeal the Appellate Division's denial of his coram nobis petition from the New York Court of Appeals, which the court denied on February 21, 2013. See Dkt. No. 12 at 4-5.

Having viewed all of his state court remedies as being exhausted, Petitioner filed a petition fo a writ of habeas corpus with this Court on March 12, 2013. See id. at 5.


A. AEDPA Standard of Review

The enactment of the Antiterrorism and Effective Death Penalty Act ("ADEPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006), cert. granted, judgment vacated and cases remanded on other grounds by, 549 U.S. 1163 (2007), that

a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) 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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Id. at 73 (quoting 28 U.S.C. § 2254(d)) (footnote omitted); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005) (quotation omitted); Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003) (quotation omitted).

In providing guidance concerning the application of this test, the Second Circuit has observed that

a state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [ Williams v. Taylor, 529 U.S. 362] at 405-406, 120 S.Ct. 1495 [(2000)]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001).... [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413, 120 S.Ct. 1495.

Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

Significantly, a federal court engaged in habeas review is not charged with determining whether a state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2009); see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citation omitted). Courts have interpreted "objectively unreasonable" in this context to mean that "some increment of incorrectness beyond error" is required for the habeas court to grant the application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quotation omitted).

As the Second Circuit has further instructed, the necessary predicate for a federal habeas court's deferential review is that a "petitioner's federal claim has been adjudicated on the merits' by the state court." Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003) (quotation omitted). "If a state court has not adjudicated the claim on the merits, '" the federal habeas court applies the pre-AEDPA standards, and reviews de novo the state court disposition of the petitioner's federal claims. Id. (quoting Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001)). "[A] state court adjudicates' a petitioner's federal constitutional claims on the merits' when it (1) disposes of the claim on the merits, ' and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). To determine whether a state court has disposed of a claim on the merits, a court will consider: "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the ...

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