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Smith v. Thompson

United States District Court, W.D. New York

October 31, 2017

RIAN T. SMITH, Petitioner,
v.
JAMES THOMPSON, Superintendent of Collins Correctional Facility Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE

         I. Introduction

         Pro se petitioner Rian T. Smith ("Petitioner"), an inmate confined at Collins Correctional Facility has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("2254"). On May 3, 2012, Petitioner was convicted by guilty plea in New York State, Niagara County Court (Morinello, J.) of one count of criminal possession of a controlled substance in the fifth degree. He is currently serving a second felony offender sentence of four years' imprisonment, to be followed by two years of post-release supervision. For the reasons set forth below, habeas relief is denied and the petition is dismissed.

         II. Factual Background and Procedural History

         A. The Arrest

         On November 26, 2011, police officers executing a search warrant on a Niagara Falls apartment searched Petitioner and seized cocaine from his front pants pocket. (SR16.) The warrant did not include Petitioner's name, but he was "present" during the search. (Id.) Police charged Petitioner by felony complaint with third- and fourth-degree criminal possession of a controlled substance, class B and C felonies, respectively. (SR1-2.) On March 22, 2012, Petitioner waived indictment and consented to being charged by a Superior Court Information with one count of third-degree criminal possession of a controlled substance.

         B. The Guilty Plea

         On May 3, 2012, the County Court (Morinello, J.) found that Petitioner's admitted history of substance abuse had been a contributing factor to his criminal behavior, and that he was eligible for the judicial diversion program. (P. 4.) In order to participate, Petitioner would be required to plead guilty to fifth-degree criminal possession of a controlled substance and to waive his right to appeal. Petitioner agreed to participate in the program, and agreed to the foregoing conditions. (P. 4-5, 8, 10-11, 14-15.)

         Prior to Petitioner entering his guilty plea, Defense counsel confirmed that the People had provided sufficient discovery to enable him to advise Petitioner adequately, and he indicated that there was no defense to the charges. (P. 15.) Petitioner confirmed that he had sufficient time to speak with his attorney and that he was satisfied with counsel's services. (P. 12-14.) The County Court directed defense counsel to review the judicial diversion program's contract with Petitioner. (P. 17.) The County Court explained the contract to Petitioner as well, specifically highlighting that the promised sentence would be based on whether Petitioner successfully completed the program. The contract required that Petitioner remain in drug treatment and lead a law-abiding life. (SR-97.) Under the contract's terms, Petitioner agreed to plead guilty to fifth-degree criminal possession of a controlled substance. In exchange for Petitioner's successful completion of the program, the County Court would allow Petitioner to withdraw his felony guilty plea and plead guilty to a misdemeanor in exchange for a conditional discharge. If Petitioner failed to complete the program, the County Court promised to sentence him, as a second felony offender, to a determinate prison term of four years followed by two years of post-release supervision. Petitioner confirmed that he understood the contract and signed it. (P. 14-15, 17-18.)

         Since the terms of the plea bargain also required Petitioner to waive his right to appeal, the County Court explained that by signing the appeal waiver, Petitioner was giving up his right to appeal all issues other than his constitutional rights to a speedy trial, to challenge his competency and to challenge the imposition of an illegal sentence. (P. 8.) The County Court further explained that Petitioner was also giving up his right to ask for relief by means of a motion under New York Criminal Procedure Law ("C.P.L.") Article 330 or 440. (P. 8-9.) Petitioner confirmed that his attorney had explained the waiver to him and Petitioner signed it in open court. (P. 9.) Next to Petitioner's signature was a pre-printed statement acknowledging that he was signing the waiver "freely and voluntarily, after having consulted with [his] attorney." (P. 8-10; SR-96.) The County Court found that Petitioner knowingly executed the waiver. (P. 10.)

         With regard to the knowing, intelligent, and voluntary nature of his plea, Petitioner confirmed that no one, including his attorney, had threatened or forced him in any way to plead guilty and that he was pleading guilty freely and voluntarily. (P. 14.) Petitioner also confirmed that he understood that he was giving up his right to a jury trial, at which the People would have to prove his guilt beyond a reasonable doubt. (P. 13-14.)

         C. The Sentencing

         After Petitioner violated the terms of the appeal several times, the County Court removed Petitioner from the diversion program. The County Court sentenced him on November 29, 2012, as a second felony offender, to a determinate prison term of four years plus two years of post-release supervision. (S. at 11.)

         On November 17, 2012, prior to sentencing, Petitioner filed, pro se, an "Informal Request for 440 motion pursuant to CPL §440.10" along with an affidavit. (SR6-8.) In the affidavit, Petitioner averred that police violated his Fourth Amendment rights and that his counsel was ineffective for not investigating his case. (SR7.) The County Court denied the motion on the record at Petitioner's sentencing, explaining that Petitioner specifically waived his right to challenge his conviction and sentence by means of a motion pursuant to C.P.L. Articles 330 or 440 when he pleaded guilty. (S. at 2.) The County Court also denied Petitioner's request to withdraw his guilty plea. (Id.)

         D. Petitioner's Direct Appeal

         Petitioner timely appealed his conviction and sentence to the Appellate Division, Fourth Department, of New York State Supreme Court (the "Fourth Department") in December 2012. (SR91.) On direct appeal, Petitioner's appellate counsel argued that: (1) trial counsel was ineffective because he did not challenge the search warrant prior to considering a judicial diversion program, (2) Petitioner's waiver of his right to appeal under the plea was invalid, (3) the court erred by refusing to permit Petitioner to withdraw his guilty plea, and (4) Petitioner's sentence was harsh and excessive. (SR70-86.) Petitioner submitted a supplemental pro se brief contending that (1) his plea violated his constitutional rights, (2) the search and seizure violated the Fourth Amendment, and (3) his counsel was ineffective because he (a) coerced Petitioner into taking the plea bargain, (b) failed to conduct a reasonable investigation or move for a suppression hearing, and (c) had a conflict of interest. (SR114-32.)

         On November 14, 2014, the Fourth Department issued a decision unanimously affirming the judgment and specifically finding that Petitioner's claim of ineffective assistance of trial counsel lacked merit. See People v. Smith, 122 A.D.3d 1300 (4th Dep't 2014) . The court did not specifically reach Petitioner's argument that the search and seizure violated the Fourth Amendment. Petitioner sought leave to appeal the Fourth Department's decision in the New York Court ...


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