United States District Court, N.D. New York
CHARLES A. BRASINGTON, Petitioner,
THOMAS J. STICHT, Superintendent, Wyoming Correctional Facility, Respondent.
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
Charles A. Brasington filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, contending that
trial counsel rendered constitutionally ineffective
assistance of counsel. Dkt. No. 1 (“Petition”) at
4. Respondent opposes the Petition. Dkt. Nos. 7
(“Memorandum”), 7-1 (“Answer”). For
the reasons that follow, the Petition is denied.
January 4, 2016, Petitioner appeared with defense counsel in
the Chenango County Court regarding three indictments against
him, two of which had been consolidated, and entered into a
negotiated plea agreement. Dkt. No. 8 (“State Court
Records”) at ¶ 11, Ex. A. Under its terms,
Petitioner agreed to plead guilty to one count each of
second-degree grand larceny and third-degree grand larceny
with respect to the consolidated indictment, as well as one
count of second degree bail jumping with respect to the
separate indictment. Id. at ¶ 11-13. In
exchange, Petitioner would be sentenced as a predicate felon
to an indeterminate term of four to eight years'
imprisonment on the second degree grand larceny count, to run
consecutively with a sentence of three to six years'
imprisonment on the third degree grand larceny count.
Id. at ¶ 11-12. Petitioner would be sentenced
to an indeterminate term of one-and-a-half to three years
imprisonment on the bail jumping count, and that sentence
would run concurrently with the sentences imposed on the
grand larceny charges. Id. at ¶ 13. The
agreement also required Petitioner to pay restitution and
waive his right to appeal any of the convictions.
Id. at ¶ 11-13.
stated to the County Court that defense counsel answered all
of his questions and that he was satisfied with his
representation. Id. at ¶ 18. Petitioner
confirmed that he understood that he normally had the right
to representation by counsel on appeal, that his plea
agreement waived his right to appeal, and that he waived this
right “freely and voluntarily.” Id. at
¶ 19-20. Petitioner pleaded guilty to the charges
pursuant to the plea agreement. Id. at SR 20-26.
February 19, 2016, Petitioner appeared with defense counsel
for sentencing. Id. at SR 32, Ex. C. The County
Court sentenced Petitioner to the agreed-upon term of
imprisonment and ordered him to pay $15, 000 restitution.
Id. at ¶ 39-41. Pursuant to the plea agreement,
Petitioner executed waivers of his right to appeal for the
consolidated and bail jumping indictments. Id. at
¶ 42. He acknowledged that he reviewed the waivers with
defense counsel and that counsel answered any questions he
had before he signed them. Id.
papers dated October 2, 2016, Petitioner filed a pro se
motion with the New York State Supreme Court, Appellate
Division, Third Department, requesting an extension of time
in which to file a notice of appeal from the judgment of
conviction. Id. at ¶ 1-4. In an affidavit in
support of this motion, Petitioner asserted that defense
counsel “never advised [him] in writing of the need to
serve and file a notice of appeal” within thirty days
of being sentenced, as required by the Third Department's
Rules of Practice. Id. at ¶ 3 (citing 22
N.Y.C.R.R. § 821.2(a)). He asserted that he advised
defense counsel in March 2016 that he “wish[ed] to
attorney affirmation filed regarding Petitioner's motion,
defense counsel stated that he “did not advise
[Petitioner] in writing of the need to serve and file a
notice of appeal within 30 days of his sentencing, ”
because Petitioner waived in writing his right to appeal with
respect to “all of his pleas, ” and defense
counsel had “no record of receiving a letter
from” Petitioner stating that he wished to appeal his
conviction. Id. at ¶ 45-46.
Decision and Order dated November 10, 2016, the Third
Department denied Petitioner's motion. Id. at
¶ 62. Petitioner moved for reargument, asserting that
his motion papers and defense counsel's attorney
affirmation made it “crystal clear that we suffered an
‘inability to communicate.'” Id. at
¶ 63-64. In a Decision and Order dated January 12, 2017,
the Third Department denied reargument. Id. at
¶ 67. This action followed.
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may not grant habeas
with respect to a claim adjudicated on the merits in state
court unless the adjudication of that claim-(1) resulted in a
decision that 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)
resulted in a decision that was based on an unreasonable
determination of ...