Opinion
19cv11822 (AJN) (DF)
11-18-2021
NASEAN BONIE, Petitioner, v. ANTHONY ANNUCCI, Respondent.
Mr. Nasean Bonie DIN No. 15A1872 Southport Correctional Facility Respondent's counsel
Mr. Nasean Bonie
DIN No. 15A1872
Southport Correctional Facility
Respondent's counsel
REPORT AND RECOMMENDATION
TO THE HONORABLE ALISON J. NATHAN, U.S.D.J.:
Proceeding pro se, petitioner Nasean Bonie (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state conviction upon a guilty plea to one count of Assault in the Second Degree, in violation of N.Y. Penal Law § 120.05(2). As a result of his plea, Petitioner was sentenced to a determinate term of imprisonment of four years, plus three years of post-release supervision. Although, at the time he filed his Petition, Petitioner was incarcerated at Green Haven Correctional Facility, in Stormville, New York, the Docket reflects that he was later transferred to Southport Correctional Facility, in Pine City, New York (“Southport”). (See Dkt. 24.)
Although, by the time Petitioner's direct appeal was concluded, he had already served fours years in prison, he continued to be incarcerated, as he was still serving an aggregate sentence of 29 years of imprisonment, on consecutive sentences imposed for (1) the assault at issue here, and (2) a subsequent murder conviction that involved a different victim and is not directly at issue in this habeas proceeding. (See Pet. ¶ 17; see also Foley Decl., Ex. 2 (Brief For Respondent, dated Apr. 17, 2019 (“Resp. App. Mem.”)) (Dkt. 19-3), at 10-12; Foley Decl., Ex. 3 (Reply Brief For Defendant-Appellant, dated Apr. 19, 2019 (“Pet. App. Reply Mem.”)) (Dkt. 19-4), at 2-3.) According to publicly available records, Petitioner remains incarcerated at this time, at Southport. See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ1/WINQ000 (showing Petitioner's earliest release date as April 6, 2039). Given that the parties discussed Petitioner's separate murder conviction in their briefing on his direct appeal, this Court will briefly address it in that context, below.
In this action, Petitioner challenges: (1) the validity of the appeal waiver that he gave at the time of his plea (although, liberally construed, this claim might also be read as challenging the validity of the plea itself), and (2) his sentence, which he claims was excessive. (See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody, dated Dec. 10, 2018 (“Petition” or “Pet.”) (Dkt. 2) ¶ 12.) For the reasons discussed below, I recommend that the Petition be dismissed.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (“It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” (internal quotation marks and citations omitted; emphasis in original) (collecting cases)).
BACKGROUND
A. Factual Background
As Petitioner's criminal case did not proceed to trial, the factual background of his criminal conduct, as summarized below, is principally taken from the transcript of his plea proceedings, which were held before the Honorable Ralph Fabrizio, J.S.C., in the Supreme Court of the State of New York, Bronx County, on February 26, 2015. (See Declaration [of Ryan J. Foley, Esq.] in Opposition, dated July 7, 2020 (“Foley Decl.”) (Dkt. 19), Ex. 6 (Transcript of plea proceedings, conducted Feb. 26, 2015 ((“Plea Tr.”)) (Dkt. 19-7, at ECF 1-29).) At that time, the prosecution proffered certain facts to the trial court, and Petitioner, through counsel, did not dispute their accuracy.
The document submitted by Respondent at Dkt. 19-7 - which Respondent represents to be the transcript of Petitioner's plea - actually contains two separate transcripts. The transcript of the plea proceedings can be found at the beginning of the Docket entry, at the pages cited above (with the prefix “ECF” referring to the page numbers affixed to the document by this Court's Electronic Case Filing system).
In particular, the prosecution described that, on July 10, 2012, Petitioner had engaged in sustained acts of domestic violence against his wife, Crystal Campbell (“Campbell”). (See generally id.) The prosecution described how, moving through different rooms of their apartment, over a period of up to approximately half an hour (see id., at 10), Petitioner whipped Campbell with a belt, “which was used hard enough and often enough to leave the imprint of th[e] belt buckle on [her] legs” (id., at 11) and to cause her “substantial pain and difficulty . . . walking” (id., at 19), and threw a folding wooden tray table at her “with enough force . . . to shatter it into several pieces and cause lacerations to [her] arm” (id., at 11; see also id., at 19). In addition, the prosecution represented that, in the course of the assault, Campbell suffered a broken orbital bone, requiring a surgical procedure to implant a device to “act[] as an artificial floor to her right eye socket, holding the eye in place.” (Id., at 11-12.) Overall, the prosecution described an attack that was severe enough to render Campbell unconscious, and further informed the court that, when Campbell “was no longer conscious, [Petitioner] shaved her head and cut her hair, which was down the length of her back prior to this assaultive conduct.” (Id., at 11.)
B. Procedural History
1. Relevant Charge
In connection with the assault on Campbell, Petitioner was charged in an Indictment with two counts of second-degree assault, two counts of fourth-degree criminal possession of a weapon, and three counts of third-degree assault. Petitioner, however, eventually pleaded guilty to only the top count of the Indictment: Assault in the Second Degree, in violation of N.Y. Penal Law § 120.05(2). (See Plea Tr., at 21, 23; see also Foley Decl. ¶ 5.) Under this provision of New York law, a person is guilty of second-degree assault when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person . . . by means of . . . a dangerous instrument.” N.Y. Penal Law § 120.05(2). Apparently, the particular second-degree assault charge to which Petitioner pleaded related specifically to his having struck Campbell with a belt. (See Plea Tr., at 27.)
Although Respondent did not submit a copy of the Indictment as part of the State Court Record, there appears to be no dispute that Petitioner was indicted on these seven charges, as set out in the papers filed by Petitioner on his direct appeal. (See Foley Decl., Ex. 1 (Brief For Defendant-Appellant, dated Feb. 8, 2019) (“Pet. App. Mem.”) (Dkt. 19-2), at 4; see also id., at 1A (Statement Pursuant to Rule 5531) ¶ 4.)
2. Plea Proceedings
Prior to Petitioner's plea, the prosecution and Petitioner's counsel engaged in colloquy with the trial judge regarding the terms under which Petitioner would agree to plead guilty. (See Plea Tr., at 2-20.) Petitioner's counsel noted that, prior to Petitioner's indictment, the prosecution had offered a plea deal under which it would recommend a sentence of two years' imprisonment, but that, post-indictment, the prosecution had changed those proposed terms, and had indicated that it was then only prepared to offer a plea deal with a recommended sentence of four years' imprisonment. Petitioner's counsel urged the trial court to consider allowing Petitioner to plead guilty in return for something “closer to” a two-year sentence, which, counsel argued, was “more just and appropriate for [Petitioner].” (Id., at 2-3.)
In support of his argument that mitigating circumstances warranted a lower sentence than that which was then being requested by the prosecution, Petitioner's counsel informed the court that Petitioner was an honorably discharged army veteran, who had been diagnosed with post-traumatic stress disorder (“PTSD”) after having seen combat. (Id., at 4.) According to Petitioner's counsel, Petitioner was, at the time of the proceedings, receiving a full disability pension, as he was considered by the Veterans Affairs Administration to be unemployable as a result of his trauma. (Id., at 4-5.) Counsel suggested to the court that Petitioner's PTSD may have “manifested itself in struggles with the relationship with his wife.” (Id., at 5.) Counsel also informed the court that, after the assault, Petitioner “was so horrified by his own conduct . . . that he checked himself straight away [in]to the Veteran's Affairs Hospital.” (Id., at 16-17; see also id., at 17 (arguing that “[t]his is somebody who knew that he needed medical help after this outburst”).) Petitioner's counsel further argued that Petitioner had “always been a good loving father, ” who was “continuing] to pay child support as he [could, ] through his pension.” (Id., at 8.)
After hearing argument from both sides, the court indicated that it was “not willing to come lower than four years in state prison followed by three years post release supervision on this indictment.” (Id., at 20.) At that point, Petitioner's counsel conferred with Petitioner, who agreed to plead guilty. (Id., at 21.) The court then conducted a plea allocution, during which it informed Petitioner of the terms of the sentence that it intended to impose upon Petitioner's guilty plea (id., at 23-24); confirmed that Petitioner had had an opportunity to discuss the charges, his defenses, and the terms of the expected sentence with his counsel, and that he was satisfied with his counsel's legal advice and representation (id.); confirmed that no one was “forcing [Petitioner] in any[]way to plead guilty” (id., at 24); advised Petitioner of the rights that he would be waiving if he proceeded with his plea (see id., at 25-27); and confirmed that there was a factual basis for the plea (id., at 27).
As relevant here, with respect to Petitioner's right to appeal, the trial court engaged in the following exchange with Petitioner:
The Court: You had your discussion with the attorney, and the People are asking for, and you are agreeing I understand to waive your right to take an appeal in this case; is that correct?
[Petitioner]: Yes, Your Honor.
The Court: And I am sure your attorney explained it to you, but an appeal is a review by a higher court of any decisions that have been made during the nearly three years this case has been pending by any Judge involved in this case, any decisions on any motions, any decisions on any hearings, any decisions that [a]ffected your legal rights subject to review by a higher court, they can also review the sufficiency of the plea allocution, and they can also review sentence, but you are giving up your right to all of that review; is that correct?
[Petitioner]: Yes, Your Honor.
The Court: Are you doing that voluntarily?
[Petitioner]: Yes, Your Honor.
The Court: And I did witness [Petitioner] sign the written waiver with his attorney and I have it at the bench, I signed it as well.(Id., at 25.)
At the close of the allocution, after confirming with both Petitioner's counsel and the prosecution that the allocution was “acceptable, ” the court permitted Petitioner to withdraw his prior plea of “not guilty, ” and to enter a plea of “guilty” to the single assault charge. (See id., at 27-28.)
3. Sentencing
The trial court held a sentencing hearing on April 22, 2015. (See Foley Decl., Ex. 7 (Transcript of sentencing proceedings, conducted Apr. 22, 2016 (“Sentencing Tr.”)) (Dkt. 19-8, at ECF 15-22).) At that time, the court inquired about a statement that had apparently been made by Petitioner and included in the probation report, to the effect that he had discovered his wife cheating on him, and that he had “snapped.” (Id., at ECF 17.) The prosecution requested that this statement be stricken from the report, arguing that it represented “one last attempt on the part of [Petitioner] to institutionalize the humiliation of the woman that he abused and assaulted ....” (Id.)
Like the document submitted by Respondent at Dkt. 19-7, the document submitted by Respondent at Dkt. 19-8 - which Respondent represents to be the transcript of Petitioner's sentencing hearing - also contains two separate transcripts. The transcript of Petitioner's sentencing may be found at the pages cited above, and, for avoidance of any confusion, this Court will refer to the ECF pages numbers when citing to this transcript herein.
The court declined to strike the statement, but it did express some concern that the statement might be read to suggest that Petitioner had an “EED” (i.e., an “extreme emotional disturbance”) defense to the assault. (See id., at ECF 17-18). The court thus inquired as to whether there was any evidence that Petitioner had “walked in on [Campbell], found her cheating with somebody, and that's when the assault occurred.” (Id., at ECF 18.) The prosecution assured the court that it had no reason to believe that anyone other than Campbell and Petitioner were present at the time of the assault (id., at ECF 19), and the court, on its own, also went on to note that the idea that Petitioner had “snapp[ed]” was actually “belied by what happened because this was not a one punch.” (Id., at ECF 20-21.) Rather, the court noted that the events had involved “a multi[-]weapon assault on a woman, ” which the court characterized as “[b]rutal.” (Id., at ECF 21.)
The court then proceeded with sentencing, and, as promised, sentenced Petitioner to a determinate prison sentence of four years, to be followed by three years of post-release supervision. (Id.)
Although not at issue here, the court also (1) entered a permanent order of protection in favor of Campbell (directing that Petitioner was to have no contact with her of any kind), and (2) with respect to any children of Petitioner, noted its understanding that Family Court proceedings were then in process, and stated that Petitioner's sentence would further be subject to any order of custody or visitation that a Family Court judge would deem appropriate. (Id.) Both of these conditions had also been discussed on the record of Petitioner's plea proceedings, prior to Petitioner's entry of his plea. (See Plea Tr., at 21.)
4. Direct Appeal
Acting through assigned counsel, Petitioner filed a direct appeal with the Appellate Division, First Department, submitting his opening appellate brief on or about February 8, 2019. (See Pet. App. Mem.) On appeal, Petitioner raised two claims: first, that his sentence was excessive, and, second, that his appeal waiver was invalid. (See generally id.)
As to his first claim, Petitioner asked the Appellate Division to exercise its discretion, under state law, to reduce his sentence to the statutory minimum of two years' incarceration, in consideration of the fact that he was a combat veteran who had been suffering from PTSD at the time of the offense. (See id., at 7-12.) As to his second claim, Petitioner argued that, under both federal and state law, he could not be held to have knowingly and voluntarily waived his right to appeal. (See id., at 13-17.) More specifically, he argued that his waiver was invalid and unenforceable because (1) the trial court had failed to explain that the right to appeal was separate and distinct from the trial rights that are automatically forfeited upon a guilty plea, and had further failed to explain that Petitioner's appeal waiver was part of his bargain with the prosecution (see id., at 13-15); (2) the written waiver that Petitioner signed misleadingly indicated that his filing a notice of appeal would be “deemed a motion . . . to vacate the conviction and sentence” and that the plea would then be vacated, upon the People's consent (see id., at 16); and (3) as particularly relevant to his excessive-sentence claim, the written waiver had indicated that Petitioner would only be retaining his right to have the Appellate Division review “the legality of the sentence, ” which could have been understood by Petitioner to mean that he retained the right to challenge the excessiveness of the sentence (see id., at 16-17).
In opposition, the People did not contest Petitioner's challenge to the validity or enforceability of his appeal waiver. (See Resp. App. Mem., at 7 n.5.) Rather, the People included the following footnote in their brief:
When [Petitioner] accepted the negotiated plea bargain, he agreed to waive his right to appeal, after explicit consolation [sic, consultation] with his attorney about this very issue.... However, given [the Appellate Division's] decision in People v. Santiago, 119 A.D.3d 484 (1st Dept 2014), the People do not contest [Petitioner's] claim that the written waiver of the right to appeal executed in the instant matter was erroneous. In addition, the oral allocution did not clearly explain the nature of [Petitioner's] right to appeal. See People v Lopez, 6 N.Y.3d 248, 256 (2006). Therefore, although the People dispute that the [trial] court was required to enumerate the claims that survive a waiver of the right to appeal, . . . for the purposes of this appeal, the People do not contest [Petitioner's] claim that his waiver of the right to appeal was unenforceable and we proceed to address his sole appellate claim that his sentence was unduly harsh.(Id.)
As for Petitioner's excessive-sentence claim, the People first argued that Petitioner's claim was moot, as, by the time of the appeal, he had already served the four-year incarceratory portion of his sentence. (Id., at 7.) In any event, the People argued that Petitioner's “negotiated sentence was fair and proper in light of the seriousness of the instant offense and the fact that his plea was negotiated fairly and in good faith.” (Id.) On these points, the People contended that Petitioner had not only received “exactly” the sentence he had “bargained for” (id., at 8), but that the factors relevant to sentencing weighed in favor of the sentence imposed (see id., at 9-12). In particular, the People highlighted the “brutal[ity]” of the assault at issue (id., at 10), and, in addition, noted that Petitioner had separately been convicted of another violent crime - the crime of murder - that was committed “a little over two weeks after [Petitioner] assaulted his wife” (id.; see also supra, at n.1). Indeed, the People argued that
despite that [Petitioner] sought treatment at a VA Hospital immediately following th[e] attack [on his wife] and began receiving therapy and taking Zoloft, a little more than two weeks later, he killed his tenant and hid her body miles away in an upstate county where it was not found for years. These are not the actions of an individual suffering from PTSD - they are the actions of a violent assailant who is undeserving of a lesser sentence.(Resp. App. Mem., at 11.) Also with reference to Petitioner's subsequent murder conviction, the People further argued that modifying Petitioner's sentence for the domestic assault would “confer little benefit, ” as Petitioner would remain incarcerated for purposes of serving the 25-year sentence that was imposed on that separate conviction. (Id., at 12.)
In reply, Petitioner rebutted the People's mootness contention, arguing that, as Petitioner's sentences for the assault and the murder were imposed to run consecutively, the sentences were simply “added together, and merge[d] to form a single aggregate sentence.” (Pet. App. Reply Mem., at 2 (internal quotation marks and citations omitted).) Thus, according to Petitioner, he would be “subject to both sentences until he reache[d] the maximum expiration date of the aggregate sentence” (id. (internal quotation marks and citations omitted)), and there would be “no way to tell” which sentence he served first (id. (citation omitted)).
By Order dated June 13, 2019, the Appellate Division unanimously affirmed Petitioner's sentence, reaching the merits of his excessive-sentence claim, and finding (without particularized explanation) that “the sentence [was] not excessive.” (Foley Decl., Ex. 4 (“App. Div. Decision”) (Dkt. 19-5).) Although the submitted State Court Record does not contain a letter from Petitioner to the New York Court of Appeals, seeking leave to appeal from the Appellate Division's affirmance, Petitioner apparently did seek such leave, as the record reflects that leave was denied by the Court of Appeals, without opinion, on August 6, 2019. (Foley Decl., Ex. 5 (Dkt. 19-6).)
There is no indication in either the Petition or the submitted record that Petitioner filed any motions before either the trial court or the Appellate Division, seeking any form of collateral post-conviction relief. Petitioner does allege in his Petition that, on September 20, 2019, he filed a personal petition for review of his conviction with the “Conviction Integrity Unit” of the Bronx District Attorney's Office, arguing that, as an Iraq War veteran with PTSD, he should have been afforded mental-health treatment instead of a prison sentence. (See Pet. ¶ 11.) The Court need not address that application, as it has no bearing on the Court's review of Petitioner's habeas claims.
C. Petitioner's Habeas Petition
In his habeas Petition, filed December 13, 2019, Petitioner raises two grounds for relief. First, he again appears to assert that, in connection with his plea, he did not validly waive his right to appeal. In this regard, Petitioner alleges:
Under the so-called “prison mailbox rule, ” see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), cert. denied, 534 U.S. 886, a pro se prisoner's habeas petition is deemed “filed” on the date he gives it to prison officials for delivery to the court, rather than the date it is docketed, see id.; Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, although the Court's Docket shows the Petition as having been filed on December 20, 2019 (see Dkt. 2), Petitioner has declared under penalty of perjury that he placed it in the prison mailing system on December 13, 2019 (see Pet., at Dkt. 2, ECF 10 (referring to the page number affixed to the document by the Court's Electronic Case Filing (“ECF”) system)). According, this Court deems the Petition to have been filed on that date.
I did not validly waive my rights on my Plea Agreement! My (Plea & Sentencing) was done by *(Judge: Ralph Fabrizio)* who did not properly explain my Plea rights but threatened me not to file a “Notice of Appeal”!(Pet. ¶ 12(a) (Ground One).) Second, Petitioner again alleges that his sentence was excessive, due to his PTSD diagnosis. (Pet. ¶ 12(a) (Ground Two).) Petitioner asserts that he raised both of these claims on his direct appeal. (See id. ¶ 12(c) (Ground One); ¶ 12(c) (Ground Two).)
In opposition to the Petition, Respondent first argues that Petitioner's appeal-waiver claim should be dismissed as moot, as the People did not contest the claim on direct appeal, and the Appellate Division went ahead and considered the only other claim that Petitioner had raised on appeal - i.e., his excessive-sentence claim. (See Memorandum of Law, dated July 7, 2020 (“Resp. Mem.”) (Dkt. 19-1), at 3-4.) As explained by Respondent: “Simply put, in reaching the merits of his appellate claim, the Appellate Division granted [P]etitioner the only relief to which he was entitled [with respect to his appeal-waiver claim], and there is no further relief that this Court could grant.” (Id., at 4.)
Second, as to Petitioner's excessive-sentence claim, Respondent contends that, to the extent Petitioner is now seeking to raise a federal claim, his claim is unexhausted and procedurally barred, because he failed to challenge his sentence in federal terms on his direct appeal. (Id., at 4-7.) Respondent also argues that the Petitioner's excessive-sentence claim is, in any event, not cognizable on federal habeas review, as it fails to present a federal constitutional question. (Id., at 7-8.)
Petitioner filed a reply (referred to as his “Traverse”), in which he largely reiterates arguments that he raised on his direct appeal regarding the mental-health circumstances that, in his view, should have mitigated his sentence and led to treatment, rather than incarceration. (See generally Traverse, dated July 10, 2020 (“Pet. Reply”) (Dkt. 21).) In addition, with respect to his plea, Petitioner argues the following:
“Petitioner” believes he was not given all rights afforded to him by the (Bronx D.A.'s) office and “Petitioner” was never given a (730 Evaluation) when the “Respondents” were made aware since the arrest of “Petitioner” his mental-defect. Instead he (Petitioner) was placed in “Veterans Court” then taken out and forced to take “4 years” or face “7 years” at trial. “Petitioner” was denied his Constitutional Rights by (Respondents) in not having a Hearing to “Petitioners” (Mental-Defect) when the basis of his arrest was he “SNAPPED” and was hospitalized.(Id., at 2.) This Court takes Petitioner's reference to not having been given a “730 Evaluation” to mean that he was never evaluated pursuant to Article 730 of the New York Criminal Procedure Law (“N.Y. C.P.L.”) to determine if a mental defect deprived him of the capacity to understand the proceedings against him or to assist in his own defense. See generally N.Y. C.P.L. Art. 730. This assertion may thus be read to suggest a claim that Petitioner's plea was not “knowing, ” because Petitioner was not competent to proceed. Further, Petitioner's assertions regarding being “forced to take ‘4 years'” - read together with Petitioner's pleaded allegation that the trial judge “threatened” him in connection with his plea (Pet. ¶ 12(a) (Ground One)) - may be read to suggest a claim that Petitioner pleaded guilty under duress, such that his plea should not be considered to have been “voluntary.”
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas petition must be filed within one year of the latest of four dates specified by statute, usually “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (holding that judgment becomes “final” for purposes of Section 2244 upon “the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or - if the prisoner elects not to file a petition for certiorari - [the expiration of] the time to seek direct review via certiorari”).
The limitations period may alternatively begin to run on the following dates: (1) where the petitioner was prevented from filing an application by state action, the date on which the impediment is removed; (2) where the right asserted is a newly recognized one made retroactively applicable, the date on which the constitutional right asserted was initially recognized by the Supreme Court; and (3) the date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D).
B. Exhaustion of State Remedies
A federal court generally may not consider a petition for habeas corpus unless the petitioner has first exhausted all state judicial remedies for his federal claims. 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (exhaustion requirement, as now codified in AEDPA, “reflects a policy of federal-state comity”); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (“[W]hen a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”); Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (“the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims” (citation omitted)). Under AEDPA, the only times when a federal court may grant habeas relief absent full exhaustion are where it appears that there is either “an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the [petitioner].” 28 U.S.C. § 2254(b)(1).
To satisfy the exhaustion requirement, a habeas petitioner must have “fairly presented” his claims to the state courts, thereby affording those courts the “‘opportunity to pass upon and correct' alleged violations of . . . [his] federal rights.” Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). A petitioner may fairly present a federal claim in several ways, including by citing relevant provisions of the federal Constitution in his appellate brief, see Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001), or by relying on “pertinent federal cases employing constitutional analysis, ” Mallet v. Miller, 432 F.Supp.2d 366, 374 (S.D.N.Y. 2006) (internal quotation marks and citation omitted) (enumerating the ways a petitioner may fairly present his federal claims in state court).
Aside from setting out the federal nature of his claims, the petitioner must also, for purposes of the exhaustion requirement, present those claims to “the highest court of the pertinent state.” Chebere v. Phillips, No. 04cv296 (LAP), 2013 WL 5273796, at *19 (S.D.N.Y. Sept. 18, 2013) (internal quotation marks omitted) (quoting Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994)). Where a petitioner has been convicted in a New York state court, he may exhaust a federal claim challenging his conviction by presenting the claim on direct appeal to the Appellate Division, and then by seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
Where a claim is not appropriate for direct appeal because it cannot be demonstrated on the basis of the pre-trial or trial record, a petitioner may exhaust the claim by raising it to the state trial court in a collateral post-conviction motion, typically in a motion made pursuant to Section 440 of the New York Criminal Procedure Law. See, e.g., Reyes v. Phillips, No. 02cv7319 (LBS), 2005 WL 475544, at *4 (S.D.N.Y. Mar. 1, 2005). A petitioner may also exhaust a claim by raising it to the state trial court or the appropriate Appellate Division on a state petition for a writ of habeas corpus, see N.Y. C.P.L.R. § 7002, and by then appealing from the denial of that petition, see N.Y. C.P.L.R. § 7011. Finally, a petitioner may exhaust a claim of ineffective assistance of appellate counsel by raising that claim to the Appellate Division on a motion for a writ of error coram nobis, and by then seeking leave to appeal the denial of that motion to the Court of Appeals. See Shomo v. Maher, No. 04cv4149 (KMK), 2005 WL 743156, at *3 (S.D.N.Y. Mar. 31, 2005) (citing N.Y.C.P.L. §§ 450.90(1), 460.10(5)(a)).
C. Claims That Are Deemed Exhausted, But Procedurally Barred
Where a petitioner presents an unexhausted claim, but, under state procedural law, no longer has any available avenue to pursue the claim in the state courts (as when, for example, a claim is record-based, but the petitioner failed to raise it in his one opportunity for direct appeal), the claim should be deemed exhausted for purposes of federal habeas review. See Grey v. Hoke, 933 F.2d 117, 120-21 (1991). The state-law procedural bar that gives rise to the claim's being deemed exhausted, however, “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim, ” unless the petitioner can show grounds to overcome the default. Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (citations omitted); see also, e.g., Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (“[W]e conclude that [the petitioner's] appellate counsel unjustifiably failed to argue this ineffective assistance claim on direct appeal despite a sufficient record .... Accordingly, [the petitioner's] claim is procedurally defaulted for the purposes of federal habeas review as well.”); see generally Coleman v. Thompson, 501 U.S. 722, 729 (1991) (habeas review generally not available when a state court decision “rests on a state law ground that is independent of the federal question and adequate to support the judgment”).
In order to overcome the procedural bar to federal habeas review, the petitioner must show both “cause” for the procedural default and “prejudice” resulting therefrom. See Coleman, 501 U.S. at 749-50. “Cause” is established when “some objective factor external to the defense” impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). More specifically, a petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available, ” (2) “some interference by state officials made compliance [with the procedural rule] impracticable, ” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett, 41 F.3d at 829 (internal quotation marks and citation omitted). As for the “prejudice” prong, while the Supreme Court has not given “precise content” to the term “prejudice, ” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), it has made clear that a petitioner must show more than “a possibility of prejudice;” rather, the legal errors raised in the petition must have “worked to [the petitioner's] actual and substantial disadvantage, ” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). This is “a significantly higher hurdle than would exist on direct appeal, ” id. at 166, as the degree of prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments, ” id. at 175.
A defaulted claim may also be reviewed in a federal habeas proceeding where a “fundamental miscarriage of justice” would result from the court's failure to review the claim; but, to satisfy this exception to the procedural bar, the petitioner must make a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 321 (1995); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). “Actual innocence” means “factual innocence, not mere legal insufficiency.” Dunham, 313 F.3d at 730 (citation omitted). To support an allegation of a fundamental miscarriage of justice, the petitioner must bring forward “new reliable evidence -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324.
D. Standard of Review Under AEDPA
When this Court reviews a federal constitutional claim that has been adjudicated on the merits by the state court, this Court must accord substantial deference to the state court's decision under the standard of review dictated by AEDPA. Specifically, federal habeas relief may not be granted with respect to any claim adjudicated by the state courts on the merits, unless the state-court adjudication resulted in either a decision that “was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States, ” or a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Under AEDPA, a state court decision is “contrary to” clearly established federal law where the state court either applies a rule that “contradicts the governing law” set forth in Supreme Court precedent or “confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision” and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to “a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003). The state court's decision, however, “must have been more than incorrect or erroneous”; rather, “[t]he state court's application must have been ‘objectively unreasonable.'” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quoting Williams, 529 U.S. at 409); see also Harrington v. Richter, 562 U.S. 86, 101 (2011) (explaining that a state-court ruling is not unreasonable if “fairminded jurists could disagree”).
II. THE PETITION SHOULD BE DISMISSED.
A. The Petition Was Timely Filed.
As a preliminary matter, this Court notes that there is no issue here as to whether the Petition was timely filed, within the AEDPA statute of limitations. The Court of Appeals denied Petitioner leave to appeal on August 6, 2019, and the one-year limitations period began 90 days thereafter, on November 4, 2019. As set out above (see supra, n.8), Petitioner should be found to have filed his Petition on December 13, 2019, only slightly more than a month later, and well within the limitations period.
B. Petitioner's Habeas Claims Are Not Reviewable in This Court.
For the reasons discussed below, however, the Court may not review Petitioner's habeas claims, either because the claims are procedurally barred or non-cognizable, or because the Court otherwise lacks jurisdiction to consider them.
1. Petitioner Lacks Standing To Challenge the Validity of His Waiver of the Right To Appeal.
On the assumption that Petitioner's first stated ground for habeas relief is intended to mirror one of the two claims he raised on direct appeal - specifically, that, in connection with his guilty plea, Petitioner was inadequately advised regarding his right to appeal, thereby rendering his waiver of that right invalid and unenforceable - the claim should be dismissed, as it presents no live controversy.
“It has long been settled that a federal court has no authority ‘to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'” Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). The companion doctrines of “standing” and “mootness” operate to ensure that courts do not overstep their bounds in this regard.
The standing requirement flows from Article III of the U.S. Constitution, which allows the federal courts to adjudicate only live “cases” or “controversies.” See Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). To satisfy Article III's standing requirements, a claimant must show that: (1) he has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61. The party invoking federal jurisdiction bears the burden of establishing the elements of standing, id. at 561, and standing is determined as of the time a case is commenced, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91 (2000).
Once standing is established, the doctrine of mootness requires the case to remain “live” at the time of adjudication. See White v. First Am. Registry, 230 F.R.D. 365, 367 (S.D.N.Y. 2005) (quoting law review article for proposition that mootness is “the doctrine of standing set in a time frame: The requisite personal interest must exist at the commencement of the litigation (standing) [and] must continue through its existence (mootness)” (citation omitted)). Thus, even where a claimant has a live claim at the commencement of an action, the claim becomes moot “if an event occurs . . . that makes it impossible for the court to grant ‘any effectual relief whatever' to [the claimant].” Church of Scientology, 506 U.S. at 12 (quoting Mills, 169 U.S. at 653).
In this case, as Respondent notes (see Resp. Mem., at 3-4), the People did not oppose Petitioner's claim on appeal that he had not validly waived his appeal rights, and the Appellate Division did not find Petitioner's waiver to be a bar to his appeal. To the contrary, the appellate court proceeded to consider the merits of the only substantive claim Petitioner sought to raise on appeal (his claim that his sentence was excessive), and it ruled on that claim. (See App. Div. Decision.) Under the circumstances, even if Petitioner is correct that his appeal waiver was invalid, he cannot show that he suffered any harm from agreeing to that waiver, as he was not prevented from pursuing an appeal.
While Respondent argues that Petitioner's challenge to his appeal waiver should be dismissed as “moot” in light of the Appellate Division's decision (see Resp. Mem., at 4), this Court finds that, as that decision predated Petitioner's filing of his habeas Petition, the claim presented no live controversy at the time of the commencement of this action, and that the claim therefore should be dismissed for lack of standing. In short, Petitioner has not met (and cannot meet) his burden to show that, at the time he came into this Court to seek habeas relief, he had suffered an “injury in fact” as a result of the trial court's allegedly inadequate explanation of his appeal rights, as necessary to satisfy the “case or controversy” requirement of Article III. See Lujan, 504 U.S. at 560-61.
2. The Court Should Not Consider Any Claims That Petitioner May Now Be Seeking To Assert Regarding the Validity of the Plea Itself.
Alternatively, Petitioner's first habeas claim could be construed more broadly to challenge the validity of the plea itself, as not knowing and voluntary. As set out above, it may be that, in this Court, Petitioner is now attempting to assert (1) that, because of his mental illness (specifically, his PTSD), he was not competent to enter a plea (see Pet. Reply, at 2), and/or (2) that his plea was coerced (see Pet. ¶ 12(a) (Ground One) (referring to being “threatened” by the court); Pet. Reply, at 2 (referring to being “forced” to plead)).
To the extent Petitioner is seeking to challenge that his plea was “knowing” (i.e., that he was competent to plead), he raised this issue for the first time in his reply papers, and I therefore recommend that any claim based on his alleged lack of competency not be considered by the Court. See, e.g., Pineda v. Shanahan, 258 F.Supp.3d 372, 380 n.11 (noting that habeas petitioner waived argument by failing to raise it until his reply); Flemming v. New York, No. 06cv15226 (LAP), 2013 WL 4831197 (S.D.N.Y. Sept. 10, 2013) (adopting magistrate judge's recommendation that court should decline to consider habeas claims raised for the first time in reply papers (see id., at *8 n.11)).
On the other hand, to the extent Petitioner is seeking to challenge that his plea was “voluntary, ” Petitioner's potential claim may be gleaned from the allegations in the Petition, where he alleged that the trial judge “threatened” him. (See Pet. ¶ 12(a) (Ground One).) In light of this, and the fact that Petitioner's pleaded allegations are brief and somewhat cryptic, it would be reasonable for the Court to consider the additional statement in Petitioner's reply that he was “forced to take ‘4 years' or face ‘7 years' at trial” as supplementing or clarifying his original allegations. Cf. Sommersett v. City of New York, No. 09cv5916 (LTS), 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (noting that court may consider statements made by a pro se litigant in papers such as legal memoranda “to supplement or clarify the [litigant's] pleaded allegations); Burgess v. Goord, No. 98cv2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) (“[T]he mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum” to supplement the allegations made in his pleading (internal quotation marks and citation omitted)).
A guilty plea must be both knowing and voluntary in order to be valid. Parke v. Raley, 506 U.S. 20, 28-29 (1992) (“‘The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In determining whether a plea was made voluntarily, the court should consider “all of the relevant circumstances surrounding it.” Brady v. United States, 397 U.S. 742, 749 (1970). “[A]gents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant.” Id. at 750. A plea will not be found “coerced and invalid, ” however, merely because, in deciding to plead guilty, the defendant has been “influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof.” Id., at 750-51.
Here, as the propriety of the trial court's conduct in taking Petitioner's plea would have been evident from the record of the plea proceedings, Petitioner could have raised on direct appeal his claim that he was “threatened” by the judge or “forced” to take the plea deal. Yet the only claim related to his plea that Petitioner raised on his appeal was a claim related to the validity of his appeal waiver. Thus, to the extent that Petitioner is now seeking to raise a claim challenging the voluntariness of his plea, the claim is unexhausted.
The claim should be deemed exhausted, though, because, having already used his one opportunity for direct appeal, Petitioner cannot return to the Appellate Division and raise the additional claim now. See Ortiz v. Attica Corr. Facility, No. 15cv02698 (WHP) (DF), 2017 WL 7736415, at *13 (S.D.N.Y. Nov. 21, 2017) (citing Castille v. Peoples, 489 U.S. 346, 350-51 (1989)), report and recommendation adopted, 2018 WL 1010295 (S.D.N.Y. Feb. 20, 2018). Accordingly, any claim directed to the voluntariness of his plea is procedurally barred from federal habeas review, unless Petitioner can demonstrate either (1) cause for his failure to raise the claim on appeal and prejudice resulting from the default, or (2) that the Court's declining to review the claim on habeas would represent a fundamental miscarriage of justice. See Coleman, 501 U.S. at 749-50; Schlup, 513 U.S. at 321. In this instance, Petitioner has not satisfied these necessary criteria for overcoming his procedural default.
First, Petitioner has proffered no “cause” for his failure to raise the claim on his direct appeal. He cannot legitimately contend that his appeal waiver precluded him from raising the claim, given that, despite that purported waiver, he nonetheless appealed his sentence, and (successfully) argued that his appeal waiver was unenforceable and therefore should not present a bar to his raising that claim on appeal. In addition, while Petitioner could conceivably have an argument that his failure to raise the claim on direct appeal resulted from the ineffective assistance of appellate counsel, this Court notes that Petitioner apparently did not commence a state coram nobis proceeding to challenge the performance of his appellate counsel, and thus he cannot now rely on an ineffective-assistance claim to satisfy the “cause” requirement. See Murray, 477 U.S. at 488-49. Moreover, Petitioner has failed to show that he would suffer “prejudice” from this Court's failure to review a claim challenging the voluntariness of his plea. While this Court has liberally construed the Petition to include such a claim, Petitioner's allegations regarding coercion are entirely conclusory, and nothing on the record of Petitioner's plea proceedings reflects that the judge actually engaged in coercive conduct. (See generally Plea Tr.) Certainly, the mere fact that the court stated that it would not agree to impose a sentence of less than four years' incarceration in exchange for Petitioner's plea (id., at 20), on a charge that carried a maximum incarceratory sentence of seven years (see id., at 3-4), cannot be considered “overbearing, ” see Brady, 397 U.S. at 750-51.
Second, as to any potential “fundamental miscarriage of justice, ” Petitioner has not asserted that he is innocent of the assault on Campbell. To the contrary, Petitioner has admitted that he committed the assault - not only during his plea allocution, but in the papers he has submitted to this Court - and has merely sought leniency on the basis of mitigating factors. (See Pet. Reply, at 2 (stating that he was “in a severe ‘Mental-Throws' when this assault . . . happened”).)
As Petitioner's seeming challenge to the “knowing” nature of his guilty plea was only raised in his reply papers, and as he has not overcome the procedural bar to the Court's habeas review of his seeming challenge to the “voluntary” nature of his guilty plea, any such claims - to the extent they are being asserted here - should be dismissed.
3. Petitioner's Excessive-Sentence Claim Is Not Cognizable.
Federal habeas review is not available where there is simply an error of state law. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of “the Constitution or laws or treaties of the United States”); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”) (citations omitted). Here, in neither his habeas Petition nor his reply has Petitioner cited to any federal law in support of his excessive-sentence claim, nor did he refer to any federal law in the state-court briefs he filed with the Appellate Division. (See generally Pet.; Pet. Reply; Pet. App. Mem.; Pet. App. Reply Mem.) To the extent Petitioner's claim is grounded in state law, it cannot be considered on federal habeas review, see McGuire, 502 U.S. at 68; see also Bell v. Ercole, 631 F.Supp.2d 406, 418 (S.D.N.Y. 2009) (“[Petitioner] contends that his sentence of fourteen years of imprisonment was excessive and should be reduced in the interest of justice. To the extent that this claim relies on state law principles, it is not cognizable on federal habeas review.”). Further, to the extent Petitioner may now be seeking to assert a federal claim, any such claim should be considered unexhausted, deemed exhausted (as he cannot raise it now before the state courts), and procedurally barred.
Again, Petitioner would not be able to overcome the procedural bar, as he has not shown “cause” for failing to raise his claim in federal terms on his direct appeal, and, as discussed above, he has made no showing of actual innocence.
In any event, in order to state a federally cognizable excessive-sentence claim, a habeas petitioner must generally allege that the statute under which he was sentenced was itself unconstitutional, under the Eighth Amendment. See United States v. Dawson, 400 F.2d 194, 200 (2d Cir. 1968) (“when a statute provides for punishment thought to be violative of the [Eighth] [A]mendment the constitutionality of the statute itself must be attacked” (citations omitted)). In this case, Petitioner has made no such attack on the validity of the relevant sentencing statute.
Finally, in the absence of a challenge to the relevant statute itself, a federal excessive-sentence claim may only be maintained if the sentence imposed fails to comply with state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.” (citation omitted)). A sentence that is within the range permitted by state law may not be held to be disproportionate under the Eighth Amendment. Pinero v. Grenier, 519 F.Supp.2d 360, 371 (S.D.N.Y. 2007).
In this case, Petitioner was convicted of Assault in the Second Degree, in violation of N.Y. Penal Law § 120.05(2). (See Foley Decl. ¶ 5.) This crime is classified under New York law as a Class D violent felony, see N.Y. Penal Law § 120.05, and it carries a potential determinate sentence of between two and seven years' imprisonment, see N.Y. Penal Law § 60.05(5), 70.02(3)(c), and between one and one-half and three years' post-release supervision, see N.Y. Penal Law §§ 70.00(6), 70.45(2). The sentence imposed by the state court, of four years' imprisonment and three years' post-release supervision was within the permissible range and was thus authorized by the New York sentencing statute.
Accordingly, Petitioner's excessive-sentence claim cannot be reviewed in this habeas proceeding.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Petitioner's Petition for a Writ of Habeas Corpus (Dkt. 2) be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Alison J. Nathan, United States Courthouse, 40 Foley Square, New York, New York 10007, Room 2102. Any requests for an extension of time for filing objections must be directed to Judge Nathan. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
If Petitioner does not have access to cases cited herein that are reported only on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of [cases and other authorities that are unpublished or reported exclusively on computerized databases that are] cited in a decision of the Court and were not previously cited by any party.”).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Petitioner at the address reflected on the Docket and shown below.
Respectfully submitted,
DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE