United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
pro se, Corey Daniels (“Daniels” or
“Petitioner”) filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of a judgment of
conviction entered against him in New York State
Supreme Court, Monroe County (Valentino, J.) on April 14,
2009, following his guilty plea to one count of Criminal
Possession of a Controlled Substance in the Third Degree (New
York Penal Law (“P.L.”) § 220.16(1)), and
one count of Criminal Possession of a Controlled Substance in
the Fifth Degree (P.L. § 220.06(5)). For the reasons
discussed herein, the petition is dismissed without prejudice
based on Petitioner's failure to fully exhaust his State
Factual Background and Procedural History
conviction here at issue stems from an incident that occurred
in the City of Rochester on the morning of on July 3, 2008.
While patrolling an area known for drug sales, gang
activities, and armed robberies, an officer with the
Rochester Police Department (“RPD”) saw
Petitioner, standing on the street, engage in a series of
“complex handshakes” with several individuals. In
the officer's opinion, based on his professional
experience, these actions were either hand-to-hand drug
transactions or gang signals. According to the officer, when
Petitioner appeared to notice the officer, he attempted to
secrete himself from the officer's view. After about 40
minutes of observing the area where Petitioner was standing,
the officer saw Petitioner enter a black SUV-type vehicle on
the passenger side. As the black vehicle pulled away, it made
an illegal right-hand turn. The RPD officer proceeded to stop
the vehicle for the traffic infraction he observed. While
approaching the rear of the stopped vehicle, the officer
noticed that Petitioner appeared to be either removing
something from, or placing something into, one of his pants
pockets. The officer ordered Petitioner out of the vehicle
and conducted a pat-frisk for weapons. Upon feeling a hard
object in Petitioner's pants pocket that he thought might
be a firearm, the RPD officer twice asked Petitioner what the
hard object was. Petitioner replied, “smokes it”
in response to both inquiries. The officer then asked
Petitioner whether the object was marijuana, and Petitioner
responded, “No, drugs.” Interpreting this as
Petitioner's admission to possessing a contraband
substance, the officer thereupon removed 22 packets of crack
cocaine from Petitioner's pants' pocket. Petitioner
was placed under arrest and subsequently indicted on two
counts: third- and fifth-degree criminal possession of a
controlled substance. Petitioner pleaded guilty to both
charges on March 16, 2009, in exchange for a sentence promise
of two concurrent determinate prison terms of 3½
years, to be followed by 1½ years of post-release
supervision. Petitioner was sentenced as promised.
conviction was unanimously affirmed by the Appellate
Division, Fourth Department, on February 8, 2013. See
People v. Daniels, 103 A.D.3d 1204 (4th Dep't 2013),
lv. denied, 22 N.Y.3d 1137 (2014).
Petitioner's direct appeal was pending, he filed this
timely habeas petition on March 31, 2013. Construed
liberally, the petition appears to assert the following
claims: (1) Petitioner's plea was involuntary because his
attorney erroneously advised him that he potentially faced a
15-year determinate prison sentence were he to be convicted
of the charges in the indictment after a jury trial
(see Petition (“Pet.”) (Dkt #1), Grounds
One and Two); and (2) Petitioner's inculpatory statements
and the crack cocaine were obtained pursuant to a search and
seizure that was unlawful under the Fourth Amendment
(see Pet., Grounds Three and Four).
filed his answer, arguing that Petitioner has presented a
“mixed petition” containing both exhausted and
unexhausted claims. Respondent states that the Fourth
Amendment claim is exhausted, having been fairly presented to
the state courts in the context of Petitioner's direct
appeal. However, Respondent argues, the claim concerning the
voluntariness of Petitioner's plea is unexhausted.
Respondent urges this Court to dismiss the petition because
Petitioner has a procedural vehicle to exhaust the
involuntary plea claim, namely, a motion to vacate pursuant
to New York Criminal Procedure Law (“C.P.L.”)
§ 440.10 motion in the state trial court.
well-settled that a Federal court may not consider the merits
of a State prisoner's habeas claim unless the State has
first been given the “‘opportunity to . . .
correct' alleged violations of its prisoners'
[F]ederal rights.” Baldwin v. Reese, 541 U.S.
27, 29 (2004) (quoting Duncan v. Henry, 513 U.S.
364, 365 (1995)). In other words, the petitioner “must
‘fairly present' his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the
federal nature of the claim.” Id. at 29;
see also O'Sullivan v. Boerckel, 526 U.S. 838,
argues, and Petitioner does not dispute, that his habeas
claim based on trial counsel's alleged
ineffectiveness-was not raised in any State court proceeding.
In New York, the proper procedural vehicle for raising an
ineffective assistance of counsel claim depends on the nature
of the alleged attorney error underlying the claim, and the
type of proof on which it is based. To properly exhaust a
claim that relies on errors or omissions that are clear on
the face of the record of the petitioner's trial or
pretrial proceedings, the petitioner must raise it on direct
appeal to the Appellate Division and then seek leave to
appeal to the New York Court of Appeals. See Sweet v.
Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (“New
York law requires a state court to deny a motion to vacate a
judgment based on a constitutional violation where the
defendant unjustifiably failed to argue the constitutional
violation on direct appeal despite a sufficient
record.”) (citing N.Y. Crim. Proc. Law §
440.10(2)(c)). “In contrast, to properly exhaust an
ineffective assistance of counsel claim that relies on
evidence outside the pretrial and trial record, [the]
petitioner must raise it as part of a motion to vacate
judgment under C.P.L. § 440.10 and then seek leave to
appeal to the Appellate Division.” Anthoulis v.
N.Y., No. 11 CIV. 1908 BMC, 2012 WL 194978, at *3
(E.D.N.Y. Jan. 23, 2012) (citing Sweet, 353 F.3d at
140; Caballero v. Keane, 42 F.3d 738, 740-41 (2d
Cir. 1994); Reyes v. Phillips, No. 02 Civ. 7319,
2003 WL 42009 (S.D.N.Y. Jan. 6, 2003); People v.
Brown, 45 N.Y.2d 852, 853-54 (1978)).
Petitioner's ineffective assistance claim relies on
alleged conversations between himself and his attorney,
matters which are not part of the pretrial record.
See, e.g., Burnett v. Lee, No.
13-CV-4425KAM, 2015 WL 4389888, at *10 (E.D.N.Y. July 15,
2015) (petitioner claimed he would “not have entered
the negotiated plea had his retained attorney not abandoned
him” based on counsel's “mistaken belief that
he failed to make timely payment”; the alleged error
that is the basis for petitioner's ineffectiveness of
counsel claim relies on evidence outside the trial record and
could not have been raised on direct appeal) (citing
Griffin v. Suffolk Cnty., No. 13-CV-4375, 2013 WL
6579839, at *3 n. 3 (E.D.N.Y. Dec. 16, 2013)). Therefore,
this is the type of claim that is suitable for a C.P.L.
§ 440.10 motion to vacate, “which permit[s]
‘evidentiary exploration' of matters both on and
off the record[.]” Caballero, 42 F.3d at 740.
Because there is no time limit to filing a C.P.L. §
440.10 motion, Petitioner still may seek review of his
ineffective assistance of counsel claim by filing such a
motion in the State trial court. See N.Y. Crim.
Proc. Law § 440.10(1) (“At any time after the
entry of a judgment, the court in which it was entered may,
upon motion of the defendant, vacate such judgment upon
[certain enumerated] . . . ground[s]. . . .”).
Accordingly, the Court finds that Petitioner's claim of
ineffective assistance of counsel is unexhausted. See
Caballero, 42 F.3d at 740 (holding that petitioner's
petition and supporting affidavits “raise a matter
clearly outside of the trial record-allegations that his
attorney conducted his defense under the influence of
drugs”; these allegations had not been presented to the
state courts and were unexhausted, but could be raised in a
C.P.L. § 440.10 motion); see also,
e.g., Carpenter v. Unger, No. 10-cv-1240,
2014 WL 4105398, at *25 (N.D.N.Y. Aug. 20, 2014) (finding
petitioner's claim of ineffective assistance of counsel
during plea proceedings unexhausted, but not procedurally
barred because claim relied on evidence outside the record
and could be raised on collateral review); Griffin,
2013 WL 6579839, at *3 (finding non-record based claims,
including ineffective assistance of counsel, unexhausted but
not procedurally barred because state-court remedy was still
available pursuant to C.P.L. § 440.10).
issue thus becomes how to deal with the petition, which
contains an exhausted claim and an unexhausted claim. As
Respondent observes, the Court has several options in such
circumstances. If the Court determines that Petitioner's
unexhausted claim is “plainly meritless, ” the
Court can deny it on the merits and rule on Petitioner's
remaining exhausted claim, pursuant to 28 U.S.C. §
2254(b)(2) (stating that “[a]n application for a writ
of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State”).
However, the record does not reflect how counsel advised
Petitioner as to his post-trial sentencing exposure. Due to
the paucity of the record, the Court accordingly cannot say
that the unexhausted ineffective assistance of counsel claim
is “plainly meritless.”
Court also could “stay the petition and hold it in
abeyance while the petitioner returns to state court to
exhaust his previously unexhausted claims.”
Rhines, 544 U.S. at 275-77. However, to date,
Petitioner has not requested a stay, despite the fact that
Respondent's memorandum of law placed him on notice that
his ineffective assistance claim is ...