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Garofolo v. Annucci

United States District Court, N.D. New York

March 6, 2017

PAUL C. GAROFOLO, Petitioner,
ANTHONY J. ANNUCCI, Acting Commissioner, New York Department of Corrections and Community Supervision, [1]Respondent.


          JAMES K. SINGLETON, JR., Senior United States District Judge

         Paul C. Garofolo, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. At the time he filed his Petition, Garofolo was in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) and incarcerated at Gowanda Correctional Facility. The DOCCS's inmate locator website (, Department ID Number 12-B-3736), indicates that Garofolo was conditionally released to parole supervision on December 1, 2016. Garofolo has not filed a change of address with this Court. Respondent has answered the Petition, and Garofolo has replied.


         On January 26, 2009, Garofolo pleaded guilty in county court to driving while intoxicated in return for a sentence of 5 years' probation and a $2, 500 fine. Thereafter, a petition alleging that Garofolo violated the terms of his probation was filed, and a hearing was conducted on December 3, 2012, at which Garofolo was represented by counsel. Prior to the hearing, Garofolo asked the county court by letter to appoint new counsel, alleging that his counsel had not promptly and adequately responded to his letters. The county court denied the request. At the conclusion of the hearing, the county court determined that Garofolo violated his probation because he possessed and used drugs and alcohol, and it revoked Garofolo's sentence of probation and resentenced him to an indeterminate imprisonment term of 11/3 to 4 years.

         Three days later, Garofolo pleaded guilty to first-degree criminal contempt in connection with his June 30, 2012, arrest for repeatedly threatening the mother of his child, in violation of a valid order of protection. Prior to accepting his guilty plea, the county court twice confirmed with Garofolo that he was satisfied with his plea counsel's representation. Garofolo additionally confirmed that he was not under the influence of drugs or alcohol, and that his regular prescription medicine did not impair his ability to understand the proceedings. He further confirmed that his plea was voluntarily made and of his own free will and that no one had threatened or coerced him into pleading. Garofolo also acknowledged the rights he was giving up by pleading, including his right to appeal, and signed a “waiver of right to appeal” form that stated that Garofolo “had a full and fair opportunity to discuss” the waiver of his right to appeal with his attorney and that any questions that he may have had about the waiver were answered to his satisfaction. In the course of his allocution, Garofolo admitted the factual basis of the charge against him. The county court then accepted Garofolo's plea and approved the waiver of appeal form. Garofolo was sentenced, as a second felony offender, to an indeterminate imprisonment term of 1½ to 3 years on that charge.

         Garofolo then filed pursuant to New York Civil Procedure Law (“CPL”) § 440.20 a pro se motion to set aside the sentence attached to his driving while intoxicated/probation violation conviction. According to Garofolo, the county court sentenced him to 1/3 to 3 years for his probation violation but 3 days later imposed a harsher sentence of 11/3 to 4 years in violation of the Double Jeopardy Clause, he should be resentenced because there was a discrepancy between the sentencing minutes and the commitment form, and any sentence imposed for his probation violation should run concurrently with the sentence later imposed for his criminal contempt conviction.

         With regard to his criminal contempt conviction, Garofolo also filed pursuant to CPL § 440.10 a pro se motion to set aside the judgment on the grounds that his plea counsel had not conducted an adequate investigation and had an impermissible conflict of interest. Garofolo additionally argued that the first-degree criminal contempt charge should be reduced to second-degree criminal contempt because he did not act with the requisite intent for a first-degree conviction.

         The county court denied both the CPL §§ 440.10 and 440.20 motions. Garofolo sought leave to appeal both denials to the Appellate Division, which was summarily denied on January 27, 2014.

         Garofolo then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on June 26, 2014. 28 U.S.C. § 2244(d)(1)(A).


         In his pro se Petition before this Court, Garofolo raises three grounds for relief. First, he argues that his attorney for his criminal contempt case was ineffective because: a) he did not listen to certain recordings of calls that Garofolo made to his child's mother; and b) advised Garofolo that he did not know how to try Garofolo's case. He additionally contends that the evidence was insufficient to show the requisite intent for the first-degree criminal contempt charge. Finally, he claims that the sentencing transcript does not reflect the sentence listed in the Sentence and Commitment form for his violation of probation.


         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 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).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. ...

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