Opinion
Civil Action 20 Civ. 0021 (GBD) (SLC)
10-31-2022
JEREMY FULTON, Petitioner, v. SUPERINTENDENT, Respondent.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge
TO THE HONORABLE GEORGE B. DANIELS, United States District Judge:
I. INTRODUCTION
Jeremy Fulton (“Fulton”), filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2012 New York State conviction following a guilty plea to first-degree rape. (ECF No. 1 at 1 (the “Petition”)). Fulton raises five claims: (1) his guilty plea was not knowing and voluntary; (2) his waiver of his right to appeal was not knowing and voluntary; (3) his trial counsel was ineffective; (4) the prosecutor engaged in misconduct; and (5) “abuse of discretion” by the trial court. (Id. at 4-5; see ECF No. 14). Respondent Superintendent of the Clinton Correctional Facility, where Fulton is incarcerated (“Respondent”), opposes the Petition. (ECF No. 40-7). For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
Respondent is represented by Letitia James, Attorney General of the State of New York. (ECF No. 15).
II. BACKGROUND
A. Factual Background
Fulton was raised by his mother, who married a man who was a substance abuser and with whom Fulton had a difficult relationship. (ECF No. 40-2 at 62).He graduated from high school and completed two years of college. (Id. at 62).
Unless otherwise indicated, citations to page numbers refer to the ECF-assigned page numbers.
In 2009, Fulton, then age 21, worked as a youth minister at a church in Manhattan (the “Church”). (ECF No. 40-1 at 9, 23). In an arrest warrant dated November 24, 2009, New York City Police Department (“NYPD”) Detective Shirley Figueroa stated that a fourteen-year-old informant (“Victim 1”) alleged that, beginning when she was twelve years old until October 2009, Fulton touched her genital areas, exposed himself to her, and engaged in sexual intercourse with her at the Church and in his apartment on Stanton Street in Manhattan (the “Apartment”). (Id. at 8-9 (the “Arrest Warrant”)). The Arrest Warrant alleged that Fulton committed the offenses of predatory sexual assault against a child, rape in the first degree, criminal sexual act in the first degree, and endangering the welfare of a child. (Id. at 8). An officer's affidavit in support of a warrant to search the Apartment indicated that Fulton's sexual conduct with Victim 1 continued until early November 2009. (ECF No. 40-2 at 28-29 (the “Search Warrant Affidavit”)).
In addition, Fulton engaged in sexual intercourse with a girl (“Victim 2”) who worked at Mariners' Educational Center's after-school program and summer camp, where he was the director (“Mariners”). (ECF No. 40-1 at 22-23, 81-82). Victim 2 testified before the grand jury that, in the fall of 2001, when she was fourteen, she had sexual intercourse with Fulton in his Apartment, the first-floor window of which she climbed out “to avoid her parents.” (Id. at 82; 40-3 at 60-61). Fulton also engaged in sexual touching with two eleven or twelve-year-old girls who were students at the Camp (“Victim 3” and “Victim 4”), and established a relationship with a fifth girl beginning when she was fourteen, (“Victim 5”, with Victims 1, 2, 3, and 4, the “Victims”)), with whom he engaged in sexual touching when she was fifteen and sexual intercourse when she was sixteen. (ECF No. 40-1 at 23). In addition, Fulton kept lewd photographs of Victim 5 on his laptop computer. (Id.)
Fulton has submitted evidence showing that he lived in apartment 318 from at least 2001 until 2008, when he moved to apartment 108. (ECF No. 40-2 at 238, 240; 40-3 at 13). In the Reply, however, he states that he moved into apartment 108 in March 2002, by which time, he asserts, Victim 2 was 15 years old. (ECF No. 42 at 11).
On November 24, 2009, Defendant was arrested, based on the Arrest Warrant relating to his conduct involving Victim 1, while he was exiting a mall in Maryland. (ECF Nos. 14-6 at 136; 401 at 22; 40-6 at 29-30). When he was arrested, he was carrying “[a] plastic bag containing a newly purchased cell phone with the packaging and the receipt.” (ECF No. 40-6 at 30 (the “Evidence”)). The next day, a search warrant was issued for the Apartment. (ECF No. 40-2 at 2833).
B. Procedural Background
1. State Court Proceedings
a. Indictments
Fulton was charged in three indictments with engaging in illicit sexual conduct with children. The first indictment charged Fulton with committing sexual crimes against Victim 1 in 2007 and 2008, specifically, three counts of predatory sexual assault against a child, one count of first-degree course of sexual conduct against a child, second-degree rape, and endangering the welfare of a child, in violation of New York Penal Law §§ 130.96, 130.75(1)(b), 130.30(1), and 260.10(1), respectively. (ECF No. 40-1 at 10-12 (the “5973-09 Indictment”), 22). The predatory sexual assault charge carried a potential life sentence. (Id. at 24). On December 4, 2009, Fulton was arraigned on the 5973-09 Indictment and Liz Beal, Esq. (“Beal”) was appointed to represent him. (Id. at 22).
The second indictment, filed on February 1, 2010, charged Fulton with second degree rape based on his conduct with Victim 2, and with second-degree course of sexual conduct against a child, second-degree sexual abuse, and endangering the welfare of a child based on his conduct with Victims 3 and 4. (ECF No. 40-1 at 22-23 (the “74-10 Indictment”)). On March 11, 2011, Fulton was arraigned on the 74-10 Indictment, for which Beal also represented him. (Id. at 23).
The third indictment, filed on November 19, 2010, charged Fulton with eight counts of use of a child in a sexual performance, third-degree rape, third-degree criminal sexual act, and endangering the welfare of a child based on his conduct involving Victim 5. (ECF No. 40-1 at 23 (the “5555-10 Indictment,” with the 5973-09 and 74-10 Indictments, the “Indictments”)); see Id. at 34). On November 29, 2010, Fulton was arraigned on the 5555-10 Indictment, for which Beal also represented him. (Id.; ECF No. 40-6 at 7-9). During the arraignment, Justice Charles H. Solomon (“Justice Solomon”), (see ECF No. 40-1 at 22), informed Beal that Fulton had filed a pro se motion for substitute counsel (the “Pro Se Motion”), encouraged Fulton to try to resolve his differences with Beal, and told Fulton that if he was unable to work out “the problem” with Beal, the court would consider his request for new counsel. (ECF Nos. 40-6 at 10 (“I read what you wrote here and if it can't be worked out then I will hear you further.”); 40-7 at 7). In the meantime, however, Justice Solomon directed Beal to continue representing Fulton. (ECF No. 40-6 at 10).
A copy of the Pro Se Motion is absent from the record. (ECF No. 40-7 at 18 n.5).
b. Pretrial Proceedings
On January 15, 2010, Beal filed on Fulton's behalf a motion seeking, inter alia, dismissal of the 5973-09 Indictment and discovery from the prosecution. (ECF No. 40-1 at 39-61 (the “Omnibus Motion”)). Among the assertions in the Omnibus Motion, Fulton contended that “the police stopped and arrested [him] without a warrant and searched his car and home.” (Id. at 46). On March 2, 2010, Justice Solomon issued a decision on the Omnibus Motion that, inter alia, directed the prosecution to produce to Fulton the search warrant and affidavit, and granted Fulton's request for a Mapp/Dunaway hearing.(ECF No. 40-1 at 21).
A Mapp/Dunaway hearing is held to determine whether physical evidence sought to be used against a criminal defendant was obtained in violation of the Fourth Amendment right to be free of unreasonable searches and seizures and, thus, is inadmissible at trial, Mapp v. Ohio, 367 U.S. 643 (1961), and whether probable cause existed for the defendant's arrest. See Dunaway v. New York., 442 U.S. 200 (1979).
On February 1, 2011, Justice Solomon, over Fulton's opposition, consolidated for trial Indictment 5555-10 with Indictments 5973-09 and 74-10, which had previously been consolidated. (ECF No. 40-1 at 24, 34-38). Fulton rejected an offer from the prosecution that he plead guilty to first-degree rape with a 20-year determinate prison sentence followed by 20 years of post-release supervision, which would have covered all three Indictments. (Id. at 24; see ECF No. 40-7 at 8). On March 16, 2011, Justice Solomon held the Mapp/Dunaway hearing relating to the 5973-09 Indictment (the “Hearing”), at which Detective Elizabeth McColgan of the NYPD Child Abuse Squad testified concerning the Evidence recovered from Fulton when he was arrested. (ECF No. 40-6 at 12-31). Detective McColgan testified that, during an interview with Victim 1 and her mother on November 18, 2009, Victim 1 stated that Fulton was her godfather, worked as a camp counselor at the Mariner, and attended the same Church she attended. (Id. at 33). Victim 1 told Detective McColgan that, when she was eleven years old, Fulton touched her chest and genitals and exposed himself to her, and when she was twelve years old, he made her have sexual intercourse with him. (Id. at 32-36). Victim 1 stated that these events took place at the Church and in the Apartment, and that the most recent intercourse had occurred in October 2009. (Id. at 33-35). Victim 1‘s mother told Detective McColgan that Victim 1 initially denied that Fulton had abused her, but after Victim 1's mother threatened to take Victim 1 to a gynecologist, Victim 1 disclosed Fulton's abuse. (Id. at 37-38, 45-46). Detective McColgan testified that she located Fulton in Maryland, and, along with other law enforcement officers, staked out a mall in Anne Arundel County where he was shopping. (Id. at 38-43). When Fulton exited the mall to return to his car, he was carrying the Evidence, which the police seized when they placed Fulton under arrest. (Id. at 42-44). Police also recovered a laptop from Fulton's vehicle. (Id. at 45). Beal did not present any witnesses or evidence on Fulton's behalf. (Id. at 47).
At the conclusion of the Hearing, Justice Solomon denied Fulton's motion to suppress the Evidence, and found that there was probable cause to arrest him. (ECF Nos. 40-6 at 48-51; 40-7 at 8, 10; see ECF No. 40-1 at 24).
c. Plea and Sentencing
On April 4, 2011, the day trial was to begin on the Indictments, the prosecution made, and Fulton accepted, an offer to plead guilty to first-degree rape on the 5973-09 Indictment for which he would receive a 22-year determinate sentence followed by 20 years of post-release supervision, have to abide by orders of protection for all five Victims, waive his right to appeal, and be designated as a sexual offender (the “Plea”). (ECF Nos. 40-1 at 24, 113-14; 40-6 at 5457). In exchange, the prosecution agreed to dismiss Indictments 74-10 and 5555-10 at Fulton's sentencing. (ECF No. 40-1 at 24, 113-14).
After confirming his understanding of the Plea, Justice Solomon conducted a proceeding to confirm that Fulton was entering into the Plea voluntarily, knowingly, and intelligently. (ECF No. 40-1 at 116-19; 40-2 at 1-7 (the “Plea Proceeding”)). Beal and Kathleen Hardy, Esq. (“Hardy”), represented Fulton during the Plea Proceeding. (ECF No. 40-1 at 111). Under oath, Fulton affirmed that he understood he was pleading guilty to one count of first-degree rape, was “doing so voluntarily of [his] own free will[,]” and had spoken with his lawyers before making the decision to enter the Plea. (Id. at 116-17). Fulton then admitted that, between September 1, 2007 and September 15, 2007, when he was over 21 years old, at the Apartment, he “engaged in sexual intercourse with a girl who was less than 13” years old. (Id. at 117). Justice Solomon explained, and Fulton acknowledged he understood, that he would be sentenced to a 22-year determinate sentence followed by 20 years of post-release supervision, and would be designated as a sex offender. (Id. at 118). Justice Solomon added:
You should also understand that in exchange for this plea . . . the People are agreeing to dismiss the other charges against you, and by the other charges I mean two indictments from 2010. [The 74-10 Indictment], which has three complaining witnesses, and there are two of them [for] whom the charges are felonies, and you should understand that you were being subject to consecutive sentencing had you gone to trial and been convicted there, but the People are agreeing to dismiss the charges in that indictment, and they're also going to, on the sentence date, dismiss the charges with respect to [the 5555-10 Indictment], and that involves one complainant, and if you had [gone] to trial and been convicted there, you'd be subject to consecutive sentencing . . . You should understand on [the 74-10
Indictment] you faced up to seven years of determinate sentence with respect to each of those complaining witnesses. Those sentences could run consecutively and with respect to [the 5555-10 Indictment], you face five up to [fifteen] years had you been convicted [at] trial consecutive [sic], and all charges would be consecutive again at the discretion of the judge, obviously, had you been convicted with the case that you're pleading guilty [to] on the [5973-09 Indictment].(Id. at 119; see ECF No. 40-2 at 1). Fulton acknowledged that he understood the potential sentences on the 5555-10 and 74-10 Indictments. (ECF No. 40-2 at 1).
In response to questions from the prosecutor, Fulton admitted the conduct in the 5555 10 and 74-10 Indictments, i.e., that: (i) he had sexual intercourse with Victim 2 when she was fourteen; (ii) he sexually touched Victim 3 when she was twelve to fourteen; (iii) he sexually touched Victim 4 when she was between eleven and twelve; and (iv) he engaged in sexual intercourse with and solicited and received illicit photographs of Victim 5. (ECF No. 40-2 at 1-2).
Justice Solomon then confirmed that Fulton was not coerced or forced to plead guilty:
THE COURT: Mr. Fulton, let me continue. Let me just make sure that no one is forcing you, threatening you, coercing you in any way to get you to plead guilty today; is that correct? No one's doing that.
[FULTON]: Correct.
THE COURT: Ms. Beal, Ms. Hardy, no one's forcing you to plead guilty. This is your decision?
[FULTON]: Yes.
THE COURT: You understand this case was set for trial today. The People were ready for trial and you had a right to go to trial. You decided to plead guilty. That's your decision; is that correct?
[FULTON]: Yes.
THE COURT: Other than the promise I'm making to you today on the record in open court, has anyone, your lawyers or anyone else promised you anything different than what I'm telling you?
[FULTON]: No.
THE COURT: Anything in addition to what I'm telling you?
[FULTON]: No.
THE COURT: Anything else that's influencing your decision to plead guilty that I'm not aware of?
[FULTON]: No.
THE COURT: It's all on the record today; is that correct?
[FULTON]: Yes.(Id. at 2-3 (emphasis added)). Justice Solomon reviewed the trial rights Fulton was giving up by pleading guilty, which he acknowledged he understood. (Id. at 3-4). As to his right to appeal, Justice Solomon explained:
THE COURT: . . . Normally, in every criminal case a defendant has a right to appeal a conviction. Here, in exchange to this plea to a lesser charge, in exchange for the promise of the sentence we've placed on the record, in exchange for the promise that the two indictments pending against you currently and have been consolidated for trial will be dismissed on the sentence date. The People are asking that you waive your right to appeal. Normally, again, every defendant has a right to appeal a conviction. This is separate and apart from all the rights that you normally waive when you plead guilty, do you understand that?
[FULTON]: Yes.
THE COURT: By pleading guilty, rather than going to trial, you waive automatically a lot of rights. This is separate. This waiver of appeal relates to the agreement that you're entering into with the People to plead to a lesser charge. Do you understand that?
[FULTON]: Yes.
THE COURT: There's a form that Ms. Beal has. I don't know if you've reviewed that with her. You can do that now. The result of signing that form is that you will not be able to appeal from the conviction from the sentence or any other part of the case. Ms. Beal, do you want to review that with your client?
MS. BEAL: Sure.
(Let the record reflect defense counsel is conferring with her client.)
THE COURT: Ms. Beal, your client's been advised, and he's signing the waiver of appeal now.
MS. BEAL: Yes.(Id. at 4-5). Justice Solomon then cautioned Fulton that he would not be able to withdraw his Plea at sentencing:
THE COURT: . . . On the sentence date you will not be able to withdraw this plea. Let me go over something with you. A lot of defendants on the date of trial or eve of trial or even during trial plead guilty, and then they change their mind about what they want to do. They say that they're not guilty. They say, for example, that their lawyer forced them to plead guilty, or that they didn't feel well that day and they didn't know what they were doing and made a bad decision. They were influenced by a family member. But for some reason they change their mind, and it happens a lot. I want to make sure you understand once we adjourn today and I set a date for sentencing and order a probation report, you will not be permitted. I want to underline the word not. You will not be permitted to withdraw this plea. If there's any reason now under the sun, anything at all that you're aware of that you want to say to me that is influencing this decision, please tell me now. Do you understand what I'm saying?
[FULTON]: Yes.
THE COURT: It's your desire to go forward and have this case adjourned for sentencing.
[FULTON]: Yes.
THE COURT: That's a yes. The plea is acceptable to the Court. To the People?
[PROSECUTOR]: Yes, Judge.(Id. at 5-6). Sentencing was set for May 19, 2011, but adjourned at Fulton's request to June 22, 2011 to permit Fulton's family members to attend. (ECF Nos. 40-1 at 25; 40-2 at 6-7).
The waiver that Fulton signed stated:
I hereby waive my right to appeal from this judgement [sic] of conviction. I understand that the right to appeal is separate and distinct from other rights automatically forfeited upon a plea of guilty, such as the right to remain silent, the right to confront one's accusers and the right to a jury trial.
I understand that I would ordinarily retain my right to appeal even after pleading guilty, but in this case I am being offered a plea by the prosecution with the condition that I give up this right. I also understand that by waiving my right to appeal, I am giving up the right to raise on appeal a number of claims that I could otherwise raise even after a guilty plea. In particular, I understand that I am waiving my right to ask the Appellate Division to review the terms of the plea and reduce my sentence, and my right to appeal the denial of any suppression motion I made.
I understand that this waiver does not apply to any of the four following issues: a constitutional speedy trial claim; a challenge to the legality of the sentence promised by the judge; an issue as to the competency to stand trial; or the voluntariness of this waiver.
I execute and sign this waiver knowingly, intelligently, and voluntarily after being advised by the Court and after consulting with my attorney, [] Beal, standing beside me. I have had a full opportunity to discuss these matters with my attorney and any questions I may have had have been answered to my satisfaction.
I have agreed to give up my appellate rights because I am receiving a favorable plea and sentence agreement.(ECF No. 40-2 at 55 n.2).
On April 20, 2011, Fulton wrote a letter to a New York State Court judge in Brooklyn, stating:
. . . The last time I went to court my lawyer advised me that I had to cop out to 22 years for a sexual misconduct charge and if not that I was going to get life in jail . . . [T]he main issue that I have is [] the constant prejudice that has been shown towards me and my case . . . With all of the prejudice thrown at me it forced me to make a hast[y] decision and cop out to time that murders [sic] that cop out to manslaughter don't get . . . [W]ith the lawyer telling me cop out now or get life and having me sign a waiver, in which I didn't know I had to sign until getting before the judge, it all [sic] had me take time that I should have [sic] placed on me to begin with.(ECF No. 40-2 at 36 (the “Brooklyn Letter”)). In a letter to a judge in the Bronx the same day, Fulton wrote:
. . . I have been forced to cop out to 22 years because of the massive amount of prejudice that has been placed on me. While during the copping out proceedings the judge told me that I would have to sign the waiver stating that I will not []have the right to an appeal. At the time I did sign the waiver because my lawyer said that if I didn't they will make me go to trial and I would get life that [sic] I would not win . . . All of the [Victims] are friends and all know [o]ne another but I do know that was for trial and being that I listened to my lawyer I screwed myself. I am asking for help because I understand that there are charges I can prove and some I can't all [sic] I want to be charged with is what I []can't prove so that real justice can be shown. Not tell me I did[] something and [] mix all of the stuff together so I have no other choice but to be scared and take a plea.(Id. at 37 (the “Bronx Letter,” with the Brooklyn Letter, the “Letters”)).
On May 19, 2011, Justice Solomon convened the case for sentencing, but adjourned until June 22, 2011 at Fulton's request because two family members were unable to be present. (ECF Nos. 40-2 at 62; 40-6 at 69-71). Justice Solomon referenced the Letters, which he described as expressing “some dissatisfaction on [Fulton's] part [and] seeking [] assistance.” (ECF No. 40-6 at 71; see id. at 78).
On June 22, 2011, Fulton informed Justice Solomon that he was not prepared to be sentenced and he wanted to withdraw his Plea on the ground that Beal had coerced him into pleading guilty. (ECF Nos. 40-1 at 25; 40-2 at 56; 40-6 at 74-76). Justice Solomon relieved Beal, appointed Robert Georges, Esq. (“Georges”) to represent Fulton, and adjourned the sentencing date. (ECF Nos. 40-1 at 25; 40-6 at 78-81).
On October 11, 2011, Fulton, represented by Georges, filed a motion to withdraw his plea on the ground that it “‘was not free from duress and threat and [] was made while [Fulton] was confused and mistaken as to the proceedings and his legal rights.'” (ECF No. 40-1 at 25-26; see id. at 73-92 (the “Withdrawal Motion”)). In the Withdrawal Motion, Fulton asserted that (i) Georges' investigation revealed that, since Fulton's arrest, Victim 1 “told numerous people” that he did not commit the charged acts, (ii) Victim 2's grand jury testimony “was not correct,” and (iii) Beal “pressured” him into pleading guilty and he “was confused” during the Plea Proceeding. (Id. at 77). Attached to the Withdrawal Motion were affirmations-one of which was in draft and unsigned, and neither of which was notarized-prepared by Georges and purporting to memorialize the statements of two other Mariners students that Victim 1 stated that “the charges [against Fulton] were not true.” (Id. at 87, 89-90; see id. at 78-81). Fulton also asserted that Victim 2 had told the grand jury that she engaged in sexual intercourse with him in September 2001 in the Apartment, the first-floor window of which she climbed out “to avoid her parents,” and that testimony was the basis of the second-degree rape charge in the 74-10 Indictment. (Id. at 81-82 ¶¶ 39-40). Fulton stated, however, that he “did not reside in the first floor apartment in September 2001[,]” but rather on the third floor, and did not live on the first floor until December 2001, by which time Victim 2 would have been over 18. (Id. at 82 ¶¶ 41-43; see id. at 92 (handwritten note stating “Transferred from #318 to Apt. #108 12/1/01”)). Fulton asserted that Beal told him during a visit at Rikers Island on April 3, 2011 that “he had to plead guilty or he was going to get life in prison[,]” but “at no time did [she] explain the various charges individually and that the only charge which carried a life sentence was the charge made by [Victim 1].” (Id. at 82-83 ¶¶ 46-47). Fulton also claimed that an unnamed colleague of Beal's “who identified himself as a lawyer with a strong Christian background . . . repeatedly told [Fulton] that God wanted him to plead guilty[,]” which “greatly affected” Fulton, “a religious person.” (Id. at 83 ¶ 51). Fulton added that he was confused during the Plea Proceeding and when Justice Solomon asked him whether he was pleading guilty “‘voluntarily of [his] own free will[,]'” thought that Justice Solomon was referring only to physical coercion. (Id. at 84 ¶ 54). In sum, Fulton argued that his “plea was not free from duress and threat, and [] was made while [he] was confused and mistaken as to the proceeding and his legal rights.” (Id. ¶¶ 56-57).
Fulton's reply in further support of the Withdrawal mentioned two additional women who “ha[d] material information” to show that the claims of Victims 1, 2, and 4 were untrue, and attached a signed and notarized affirmation from one of Fulton's former co-workers stating that Victim 1 had told her that her claims against Fulton were not true. (ECF No. 40-2 at 10 ¶¶ 10-14, 16-17).
On December 20, 2011, Justice Solomon issued a written decision denying the Withdrawal Motion. (ECF No. 40-1 at 22-33 (the “Plea Decision”)). Justice Solomon first rejected Fulton's claim that Beal coerced him into pleading guilty, noting that neither Beal nor Fulton submitted an affirmation substantiating Fulton's assertions, which were “directly contradicted by the record at the time of the plea[.]” (Id. at 27). Apparently not remembering the Pro Se Motion, Justice Solomon incorrectly stated that Fulton “did not, at any point, raise any complaints about his counsel with the Court.” (Id.; see id. (“The Court is not aware of any complaints by [Fulton] during the year and a half that Ms. Beal represented him.”)). Justice Solomon noted that in the Plea Proceeding, Fulton stated “under oath[] that no one had coerced him and that he was [pleading guilty] voluntarily.” (Id.)
Second, Justice Solomon rejected Fulton's claim that “he believed that all of the charges carried a life sentence,” noting that he had explained to Fulton “the amount ofjail time he faced on all the various counts and also told him that those sentences could run consecutive to one another.” (ECF No. 40-1 at 27-28). Justice Solomon pointed out that Fulton “was an educator and certainly is presumed to know the meaning of the word coercion[,]” and therefore, Fulton's assertion that “he thought the Court was asking only about physical coercion” was “not credible.” (Id. at 28).
Third, Justice Solomon rejected Fulton's argument that Beal failed to investigate the charges against him to “uncover[] evidence helpful to his defense.” (ECF No. 40-1 at 28). Justice Solomon observed that Fulton had “not submitted anything from any of the [Victims] indicating that [he] did not commit the crimes charged[,]” and only offered hearsay, which did “not provide any legal basis to allow [him] to withdraw his plea.” (Id.) Rather, Justice Solomon found, Beal “effectively represented” him “at all stages of the proceedings[.]” (Id.)
In sum, Justice Solomon concluded that the record was “devoid of even the slightest hint of coercion[,]” and instead showed that “with the advice and assistance of competent counsel, [Fulton] made a reasoned decision to plead guilty and freely admitted his guilt under oath.” Id. at 29 (citing People v. Chimilio, 83 A.D.3d 537 (1st Dep't 2011)). Justice Solomon added that “the rationale behind the plea was sound” because, if convicted at trial of predatory sexual assault against a child, Fulton faced a minimum sentence of ten years to life and a maximum sentence of 25 years to life, such that his plea in exchange for a determinate 22-year sentence and dismissal of the 74-10 and 5555-10 Indictments mitigated “the risk of much lengthier sentences.” (Id. at 29-30). In addition, Justice Solomon noted that Fulton “had more than enough time to consider the plea offer[,]” and admitted his guilt not only during the Plea Proceeding but also “to the Department of Probation on May 24, 2011, when he was interviewed for the pre-sentence report.” (Id. at 30 (citing, inter alia, People v. Brown, 52 A.D.3d. 301 (1st Dep't 2008)). Thus, Justice Solomon observed, Fulton “either lied to the Court when he pleaded guilty or [] he is lying now. Either way, it is hard to give credence to his present claim.” (Id. at 30-31). Accordingly, Justice Solomon found that Fulton, “with the effective assistance of counsel, voluntarily, knowingly and intelligently decided to plead guilty[,]” and denied the Withdrawal Motion. (Id. at 32).
After Justice Solomon announced his Plea Decision and provided copies to the parties, Georges spoke to point out that, although the court had stated that “at no time did defendant raise any complaints about his prior counsel[,]” Fulton had filed a pro se “ineffective assistance of counsel motion in November of 2010.” (ECF No. 40-6 at 88). Justice Solomon responded, “I'm not so sure I agree with that.” (Id.)
Justice Solomon then turned to sentencing. (ECF No. 40-6 at 86-100). The prosecutor informed Justice Solomon that two of the Victims' mothers were present to give victim impact statements. (Id. at 90-91). Justice Solomon asked whether Fulton had notice, to which the prosecutor responded that “[b]ack shortly after the plea, [he] gave [Beal] notice,” “orally on the record in court at . . . the first appearance after the plea,” i.e., May 19, 2011, and “prior to that.” (Id. at 91-92). Georges objected, stating that he did not have notice, was “not prepared” and pointing out that Fulton had “a negotiated plea where the amount of time is already set.” (Id.) Justice Solomon observed that “the statute requires [the prosecution] to give notice,” and found that “[t]he form of the notice is satisfactory. Prior counsel was on notice.” (Id. at 92). Georges repeated his objection that he “never received any notice[,]” despite having spoken to the prosecutor the day before. (Id.) Justice Solomon then allowed the mothers of Victims 1 and 3 to make statements about the impact Fulton's conduct had on their daughters. (Id. at 93-95). Fulton chose not to make any statement. (Id. at 97-98).
In accordance with the Plea, Justice Solomon entered judgment sentencing Fulton to a determinate 22-year term of imprisonment followed by 20 years of post-release supervision, and certified him as a sex offender. (ECF Nos. 40-1 at 7; 40-6 at 99-100 (the “Judgment”)). Justice Solomon also entered an order of protection prohibiting Fulton from communicating with or contacting each of the five Victims. (ECF Nos. 40-1 at 16-20; 40-6 at 99). Justice Solomon noted that Fulton “did waive his right to appeal in connection with this plea since he pleaded guilty to a lesser crime and was fully allocuted on what a waiver of appeal means. So, there's no need to advise him of his right to appeal[,]” apart from the right to appeal the Plea Decision, which Fulton retained notwithstanding the Appeal Waiver. (ECF No. 40-6 at 99-100).
d. State Court Appeals
On December 22, 2011, Fulton filed a pro se notice of appeal from the Judgment. (ECF No. 40-1 at 4). In July 2013, Fulton, represented by Rachel T. Goldberg, Esq. of the Center for Appellate Litigation (“Goldberg”), filed his appellate brief, which: (i) challenged his Plea on the ground that Beal was ineffective because she gave “misadvice” and placed “inappropriate pressure” on him, and failed to investigate potentially exculpatory evidence; (ii) argued that his sentence was excessive; and (iii) argued that he should be resentenced due to the prosecution's failure to give notice of the Victim Statements. (ECF No. 40-2 at 39-93 (the “Appellate Brief”)).
On April 24, 2018, the Appellate Division, First Department unanimously affirmed the Judgment. People v. Fulton, 125 A.D.3d 511 (1st Dep't 2015) (“Fulton I”). The court first held that Justice Solomon “properly exercised its discretion when, on the basis of the written submissions, [he] denied” the Withdrawal Motion, noting that Justice Solomon had “conducted a thorough allocution, in which [he] warned [Fulton] that if he had any issues to raise that would affect the voluntariness of the [P]lea he should raise them at that time[,]” and that Fulton “freely admitted that he was guilty, and that his [P]lea was free from coercion.” Id. at 511. The First Department also found, based on its own “careful examination[,]” that “the allegedly exculpatory information supports [Justice Solomon]'s finding that this information was dubious and unreliable.” Id. at 511.
The First Department next determined that “the record support[ed] [Justice Solomon's] rejection of [Fulton's] claims of coercion and misadvice by [Beal].” Fulton I, 125 A.D.3d at 511. The court noted that the predatory sexual assault charge under New York Penal Law § 130.96 carried a life sentence, and therefore, “[b]y advising [Fulton] to plead guilty in order to avoid a life sentence, [Beal] was rendering her professional opinion about the probable result of going to trial.” Id.
Finally, the court found that Fulton's “valid waiver of his right to appeal . . . foreclose[d] review of his sentencing-related claims[,]” which the court also rejected “on the merits.” Id. at 511-12. The court noted that the lack of notice of the statements by the mothers of Victims 1 and 3 “merely entitled” Fulton to request an adjournment, which he failed to do. Id. at 512.
On February 27, 2015, Fulton, represented by Goldberg, filed an application for leave to appeal to the New York Court of Appeals, contending that Fulton's case presented an opportunity provide guidance as to when a defendant seeking to withdraw a guilty plea based on ineffective assistance of counsel is entitled to an evidentiary hearing. (ECF No. 40-2 at 171-81). On May 12, 2015, the Court of Appeals denied leave to appeal, People v. Fulton, 25 N.Y.3d 1072 (2015) (“Fulton II”), and, the next day, denied Fulton's pro se request for reconsideration. People v. Fulton, 25 N.Y.3d 1163 (2015) (“Fulton III”). (ECF No. 40-2 at 188-93).
e. Post-Judgment Motions
In March 2014, Fulton filed a pro se motion to vacate the Judgment pursuant to New York Criminal Procedure Law §§ 440.10 (“§ 440.10”), asserting that Beal was ineffective for failing to investigate exculpatory evidence and failing to seek dismissal of the 5973-09 Indictment on speedy trial grounds, and Georges was ineffective for failing to present exculpatory evidence in support of the Withdrawal Motion. (ECF Nos. 40-2 at 195-251; 40-3 at 1-59, 76-85 (the “First 440.10 Motion”)).
In a decision dated April 4, 2017, Justice Solomon denied the First 440.10 Motion. (ECF No. 40-4 at 37-43 (the “First 440.10 Decision”)). Justice Solomon noted that Fulton made the same arguments about Beal's ineffective assistance as he had in the Withdrawal Motion, and rejected them for the same reasons, as the First Department had done in Fulton I. (Id. at 41-42). Justice Solomon also found that there was no merit to Fulton's assertion that Beal was ineffective in failing to make a motion to dismiss the 5973-09 Indictment on speedy trial grounds, given that the prosecution “filed a certificate of readiness within a few days of [Fulton's] arraignment and the few adjournments chargeable to the People do not amount to anywhere close to six months.” (Id. at 42). Accordingly, Justice Solomon denied the First 440.10 Motion “as well as [Fulton's] request for a hearing on the matter.” (Id. at 42-43). The First Department denied Fulton's request for leave to appeal from the First 440.10 Decision, as well as his subsequent request to reargue. (ECF No. 40-4 at 44-61, 65, 66-71, 80; see ECF No. 14-6 at 121-25).
In the First 440.10 Decision, Justice Solomon stated that Fulton filed the First 440.10 Motion on March 17, 2015, (see ECF No. 40-4 at 37) but the Court's review of the record indicates that Fulton initially filed it on in March 2014, and filed an “addendum” on May 19, 2015. (ECF Nos. 40-2 at 195, 200; 40-3 at 76).
On October 19, 2017, Fulton filed a second pro se § 440.10 motion, arguing that his Plea was invalid because Beal fraudulently induced him to plead guilty and he was mentally incompetent. (ECF No. 40-4 at 8-29, 81-100 (the “Second 440.10 Motion”)). On April 11, 2018, Justice Ruth Pickholz denied the Second 440.10 Motion. (Id. at 102-05 (the “Second 440.10 Decision”)). After reviewing the transcript of the Plea Proceeding, Justice Pickholz found that Fulton's claims were “unbelievable” and that “nothing in the allocution provided [Justice Solomon] with any reason to believe that [Fulton] was incompetent or otherwise unfit to proceed.” (Id. at 105). The First Department denied Fulton's request for leave to appeal the Second 440.10 Decision. (Id. at 106-14).
On September 17, 2018, Fulton filed a third pro se § 440.10 motion, arguing that there was not probable cause for his arrest, the Evidence should have been suppressed, and a witness lied during the Hearing. (ECF No. 40-4 at 115-18 (the “Third 440.10 Motion”)). On March 11, 2019, Justice Pickholz denied the Third 440.10 Motion on the ground that the issues Fulton raised were “fully record-based, and could have been raised on appeal[,]” such that he could not raise them in a motion under § 440.10. (Id. at 119-20 (the “Third 440.10 Decision”)). Justice Pickholz added that, were she to have considered the merits of Fulton's arguments, she “would [have] reject[ed] them.” (Id.) On July 1, 2019, the First Department denied Fulton's application for leave to appeal the Third 440.10 Decision. (Id. at 121-22; 40-5 at 11).
A copy of the Third 440.10 Motion is absent from the record. (ECF No. 40-7 at 22 n.6).
The DA in its response to the Third 440.10 Motion and Justice Pickholz in the Third 440.10 Decision each stated that the Third 440.10 Motion was Fulton's fourth 440.10 motion (ECF No. 44-4 at 116 ¶ 4, 119), but Respondent in his Opposition describes the Third 440.10 Motion as the third such motion. (ECF No. 40-7 at 22). The record does contain a fourth 440.10 motion filed in 2019, in which Fulton, pro se, argued that his arrest and search violated the Fourth Amendment under the then-recent decision of the United States Supreme Court in Carpenter v. U.S., 138 S.Ct. 2206 (2018). (ECF No. 40-4 at 130-50). The record also contains a pro se motion dated August 20, 2019 to reargue pursuant to N.Y. Criminal Procedure Law § 440.10(1)(b-d, g-h), in which Fulton raised prosecutorial misconduct as a basis to vacate his conviction. (ECF No. 40-5 at 12-44).
In a pro se application for a writ of error coram nobis dated January 7, 2019, Fulton argued that Georges provided ineffective representation by failing to argue that Justice Solomon's failure to rule on his Pro Se Motion before the Plea and subsequent loss of the Pro Se Motion. (ECF No. 40-5 at 49-59 (the “Coram Nobis Application”)). Fulton subsequently supplemented the Coram Nobis Application, arguing that his arrest and search violated the Fourth Amendment under Carpenter. (Id. at 78-107). On October 22, 2019, the First Department denied the Coram Nobis Application. (Id. at 111).
2. Federal Habeas Corpus Petition
In the Petition, which is dated December 24, 2019, was filed on January 3, 2020, and was supplemented by Fulton's pro se memorandum of law, Fulton asserted five claims: (1) his Plea was not knowing and voluntary; (2) his Appeal Waiver was not knowing and voluntary; (3) his trial counsel was ineffective; (4) the prosecutor engaged in misconduct; and (5) the trial court's alleged loss of his pre-plea motion for substitute counsel deprived him of his right to appeal. (ECF No. 1 at 4-5; ECF No. 14).
On June 16, 2020, the Court denied without prejudice Fulton's application for appointment of counsel. Fulton v. Superintendent, No. 20 Civ. 0021 (GBD) (SLC), 2020 WL 3250594 (S.D.N.Y. June 16, 2020) (“Fulton IV”) (ECF No. 22). On July 9, 2020, Fulton requested permission to seek discovery from Respondent, specifically, “admissions from [the] prosecuting district attorney, original counsel, and arresting officers to establish the layers of [p]rejudice[,]” and interrogatories. (ECF No. 26 at 3 (the “Discovery Request”)). During a telephone conference on July 16, 2020, the Court informed Fulton that, “while discovery is not typically allowed in an action under 28 U.S.C. § 2254,” if, after Respondent filed the record and Opposition, Fulton found “that information he need[ed] [was] not provided in that record,” he could “raise such issues in his reply.” (ECF No. 27). On August 18, 2020, the Court terminated Fulton's motion “to change the standard of review” applicable to the Petition to de novo review, explaining that it would address the standard of review in this Report and Recommendation. (ECF Nos. 30; 31; see §§ III.A, IV.C.3.c, infra).
On December 11, 2020, Respondent filed the Opposition along with the Record, which totaled over 700 pages and which the Court permitted to be sealed to protect the Victims. (ECF Nos. 40; 40-1 - 40-7; 41; 41-1 - 41-2; see ECF No. 36). On January 14, 2021, Fulton filed a reply in further support of the Petition, listing documents that he believed should have been included in the Record and renewing his request for permission to conduct fact discovery. (ECF No. 42 at 3-4, 18-21). On May 28, 2021, the Court denied without prejudice Fulton's renewed request for appointment of counsel. (ECF No. 46; see ECF No. 34).
In response to Fulton's requests, the Clerk of the Court has transmitted copies of the docket and other case filings to Fulton. (ECF Nos. 47-50; see ECF min. entries June 30, 2021, July 1, 2021, and June 27, 2022).
III. LEGAL STANDARDS
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
“A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground.” Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. 2022) (citing Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). “A decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Jordan, 33 F.4th at 150 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established federal law ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decision but unreasonably applies that principle to the facts of the prisoner's case.'” Jordan, 33 F.4th at 150 (quoting Williams, 529 U.S. at 413).
The Second Circuit recently reiterated the Supreme Court's instruction to district courts that “[a] writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'” Jordan, 33 F.4th at 150 (quoting Williams, 529 U.S. at 411). “Rather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Jordan, 33 F.4th at 150 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal citations omitted)). Under the “highly deferential” AEDPA standard of review, Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015), “an incorrect application of federal law is not necessarily an unreasonable one.” Adams v. Keyser, No. 16 Civ. 129 (GBD) (AJP), 2018 WL 2089337, at *2 (S.D.N.Y. May 3, 2018) (citing Grayton v. Ercole, 691 F.3d 165, 174 (2d Cir. 2012)). Thus, a district court should grant a writ on unreasonableness grounds only if “the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “In other words, the existence of ‘reasonable arguments on both sides' is ‘all [the government] needs to prevail in [an] AEDPA case.'” Jordan, 33 F.4th at 151 (quoting White v. Woodall, 572 U.S. 415, 427 (2009)); see Fulton IV, 2020 WL 3250594, at *3 (“The question under the AEDPA ‘is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable, which is a substantially higher threshold.'”) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); see Adams, 2018 WL 2089337, at *2 (“If ‘fairminded jurists could disagree on the correctness of the state court's decision[,]' the state court's determination is not objectively unreasonable.”) (quoting Harrington, 562 U.S. at 101 (internal citation omitted)).
Notwithstanding the well-settled standard of review under AEDPA, which the Court summarized in Fulton IV, 2020 WL 3250594, at *3, Fulton asks the Court to review his Petition de novo. (ECF No. 30 at 2-3). The only support Fulton cites for his argument is the Second Circuit's statement in Sellan that, were the court “to review [the petitioner's] Sixth Amendment claim de novo, [it] might well be inclined to grant the writ.” 261 F.3d at 310. In Sellan, however, the Second Circuit did not apply de novo review, but rather applied “the deferential standards prescribed in 28 U.S.C. § 2254(d)(1)[,]” under which the state court's denial of the petitioner's ineffective assistance of counsel claim was not an “unreasonable application” of clearly-established Supreme Court precedent. Id. at 314-17. The Court will therefore adhere to the “highly deferential” standard of review that the Court must apply under AEDPA, and denies Fulton's request to apply de novo review. Davis, 135 S.Ct. at 2198; see Adams, 2018 WL 2089337, at *2-3 (applying AEDPA standard of review to ineffective assistance of counsel claim).
B. Exhaustion
AEDPA also provides that a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims in federal constitutional terms to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). “To satisfy § 2254's exhaustion requirement, a petitioner must present the substance of ‘the same federal constitutional claim[s] that he now urges upon the federal courts[.]"” Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001)). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted).
In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of appeals for a certificate granting leave to appeal.” Galdamez, 394 F.3d. at 74. “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially raised on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06 Civ. 6965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see N.Y. Crim. Proc. L. § 440.10(2)(c). For claims involving matters “not reflected in, or fully explained by, the record,” People v. Moreno-Grantini, 167 A.D.3d 471, 472 (1st Dep't 2018) (“Moreno-Grantini I”), “a petitioner must assert the claim in a [] § 440.10 motion. If that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies.” Moreno-Gratini v. Sticht, No. 19 Civ. 5964 (GHW) (SN), 2022 WL 1425712, at *7 (S.D.N.Y. Apr. 18, 2022) (Moreno-Grantini II); see N.Y. Crim. Proc. L. § 450.90; see also Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that no further appellate review is available after Appellate Division denies leave to appeal denial of § 440.10 motion).
A court may excuse the failure to exhaust “if the petitioner demonstrates either cause for the default and actual prejudice from the alleged violation of federal law; or that the failure to consider the claims will ‘result in a fundamental miscarriage of justice.'” Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y. 2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). In this context, “cause” means “‘some objective factor external to the defense [that] impeded counsel's efforts' to raise the claim in state court.” Giambruno, 326 F.Supp.2d at 520 (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “Actual prejudice” requires the petitioner to show “‘actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Giambruno, 326 F.Supp.2d at 520 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]"' Giambruno, 326 F.Supp.2d at 520 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish actual innocence, petitioner must demonstrate that ‘in light of all the evidence,' ‘it is more likely than not that no reasonable juror would have convicted him.'” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (internal citations omitted); see Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘Actual innocence' means factual innocence, not mere legal insufficiency.”) (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
C. Adequate and Independent State Grounds
“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)); see Rizzo v. Capra, No. 18 Civ. 1185 (GBD) (KNF), 2019 WL 2511349, at *2 (S.D.N.Y. June 18, 2019) (“It is well established that federal habeas courts may not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and thought adequate to support the judgment.'”) (quoting Coleman, 501 U.S. at 729). “The state-law ground may be substantive or procedural.” Moreno-Gratini II, 2022 WL 1425712, at *5; see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (“When the state court's decision rests on an independent procedural bar . . . a federal court must still determine whether that state procedural ground is adequate to support the judgment.”); see Rizzo, 2019 WL 2511349, at *2 (“The independent and adequate state ground doctrine applies whether the state-law ground is ‘a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits.'”) (quoting Walker, 562 U.S. at 315).
“Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)). Only if the state court's decision rests on an “independent procedural bar” that is “‘adequate to support the judgment'” will federal habeas review be barred. Murden v. Artuz, 497 F.3d at 191-92 (quoting Jimenez, 458 F.3d at 138). “A state procedural bar is ‘adequate' if it ‘is firmly established and regularly followed by the state in question' in the ‘specific circumstances presented in a case.'” Moreno-Gratini II, 2022 WL 1425712, at *6 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal citation omitted)); see Rizzo, 2019 WL 2511349, at *2 (“‘To be considered an adequate and independent state ground, the state law must be firmly established and regularly followed in the specific circumstances in the case.'”) (quoting Williams v. Artus, 691 F.Supp.2d 515, 524 (S.D.N.Y. 2010) (internal citation omitted)).
Despite a state procedural bar, however, a petitioner may obtain review “if he can demonstrate ‘both good cause for and actual prejudice resulting from his noncompliance with the state's procedural rule.'” Rizzo, 2019 WL 2511349, at *2 (quoting Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999)).
D. Pro Se Litigants
Given Fulton's pro se status, the Court must read his submissions “liberally and interpret[] them to ‘raise the strongest arguments that they suggest.'” James v. Capra, No. 19 Civ. 6966 (GBD) (KNF), 2020 WL 3100210, at *2 (S.D.N.Y. June 11, 2020) (quoting Triestman v. Fed'l Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). The Second Circuit has directed district courts to afford “special solicitude” to pro se litigants, particularly at a dispositive phase of the action. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
IV. DISCUSSION
The Court evaluates each of Fulton's five claims to determine whether habeas corpus relief is warranted: (1) whether his Plea was knowing and voluntary; (2) whether he validly waived his right to appeal the Judgment; (3) whether Beal provided ineffective assistance; (4) whether the prosecutor engaged in misconduct; and (5) whether Justice Solomon abused his discretion by losing the Pro Se Motion and admitting the Victim Statements. (ECF Nos. 1; 14).
A. Fulton's Plea
Fulton argues that his Plea was coerced, involuntary, unintelligent, and unknowing. (ECF Nos. 1 at 4; 14 at 4-6; 42 at 14-15). He alleges that: (i) he did not know that Beal failed to “investigate his case,” including the credibility of Victims 1 and 2; (ii) he “did not know he was not facing 35 years to life as stated by [Justice] Solomon during the Plea colloquy”; and (iii) he was told that “God wanted him to plea[d] guilty.” (ECF No. 14 at 5-6; see ECF No. 1 at 4). Respondent argues that the First Department did not unreasonably apply Supreme Court precedent in rejecting Fulton's challenges to his Plea and in finding that his Plea was knowing, intelligent, and voluntary. (ECF No. 40-7 at 24-29).
1. Legal Standard
“Due process dictates that a guilty plea must be voluntary, knowing, and intelligent.” Valdez v. Stewart, No. 17 Civ. 4121 (KPF) (SLC), 2021 WL 634716, at *16 (S.D.N.Y. Feb. 17, 2021); see Bousley, 523 U.S. at 618 (“A plea of guilty is constitutionally valid only to the extent it is ‘voluntary' and ‘intelligent.'”) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). As the Supreme Court explained in Brady:
That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and is shielded by the Fifth Amendment from being compelled to do so-hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without trial-waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.397 U.S. at 748.
Courts assess the voluntariness of a guilty plea “by examining the totality of the circumstances.” Valdez, 2021 WL 634716, at *16 (citing Brady, 397 U.S. at 749). The court must confirm that the defendant “was advised by competent counsel, . . . was made aware of the nature of the charge against him,” and did not exhibit any indications “that he was incompetent or otherwise not in control of his mental faculties.” Brady, 397 U.S. at 756. Absent clear and convincing evidence to the contrary, “[a] state court's determination of the voluntariness of a defendant's guilty plea is a factual issue that is entitled to presumption of correctness on habeas review.” Murray v. McGinnis, No. 00 Civ. 3510 (RWS), 2001 WL 26213, at *4 (S.D.N.Y. Jan. 10, 2001); see Rodriguez v. Bradt, No. 09 Civ. 10285 (LTS) (DF), 2011 WL 6747470, at *7 (S.D.N.Y. Sept. 14, 2011) (explaining that “a state court's determination of a factual issues is presumed to be correct, and may only be rebutted by clear and convincing evidence”) (internal citations omitted); 28 U.S.C. § 2254(e)(1) (petitioner has burden of “rebutting the presumption of correctness by clear and convincing evidence”). The key question is “whether the plea represents a voluntary and intelligent choice among the alternative causes of action open to the [petitioner].” Hill v. Lockhart, 474 U.S. 52, 56 (1985). “If there is a factual basis in the record on which the court can conclude that the petitioner, advised by counsel, understood the consequences of his plea at the time it was entered, the plea will not be overturned on constitutional grounds.” Valdez, 2021 WL 634716, at *16 (citing Brady, 397 U.S. at 756); see Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (explaining that a court accepting a guilty plea must “canvass[] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence”).
2. Application of Legal Standard
Fulton challenged his Plea in the Withdrawal Motion, on his direct appeal to the First Department, and in his request for leave to appeal to the Court of Appeals, and therefore, has exhausted this claim for purposes of habeas corpus review. (ECF Nos. 40-1 at 73-92; 40-2 at 6376, 171-81). See Galdamez, 394 F.3d at 74. In Fulton I, the First Department rejected Fulton's claim because “[t]he record establishe[d] the voluntariness of the plea.” 125 A.D.3d at 511. The question under AEDPA, then, is whether the First Department's decision rejecting his challenge to the Plea was contrary to or an unreasonable application of clearly established Supreme Court precedent. See Valdez, 2021 WL 634716, at *5, *18; 28 U.S.C. §§ 2254(d)(1), (e)(1).
The Court begins with the presumptions that Fulton's Plea was voluntary and that Justice Solomon's decision to accept the Plea and deny the subsequent Withdrawal Motion, which the First Department then affirmed, was correct. See Valdez, 2021 WL 634716, at *17 (applying presumptions); Murray, 2001 WL 26213, at *4 (“A state court's determination of the voluntariness of a defendant's guilty plea is a factual issue that is entitled to a presumption of correctness on habeas review.”); 28 U.S.C. § 2254(e)(1). The Court accordingly affords Fulton's admission of guilt in the Plea Proceeding before Justice Solomon a “strong presumption of verity,” which “constitute[s] a formidable barrier in [the] subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (“A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea.”).
The Court next assesses whether Fulton has met his burden of “‘rebutting the presumption of correctness by clear and convincing evidence.'” Murray, 2001 WL 26213, at *4 (quoting 28 U.S.C. § 2254(e)(1)); see United States v. Arias, 166 F.3d 1201, 1201 (2d Cir. 1998) (summary order) (requiring defendant to submit “credible reasons” to reject his plea statements). Although Fulton asserts various reasons why he believes his Plea was unknowing, involuntary, and unintelligent, he fails to explain how Justice Solomon or the First Department unreasonably applied Supreme Court law regarding guilty pleas, which, as noted above, is the applicable standard of review. (ECF Nos. 40-7 at 5-8; 42 at 5). Applying that standard, the Court finds that Justice Solomon's decision to accept Fulton's Plea and subsequently deny the Withdrawal Motion, as well as the First Department's affirmance in Fulton I, were neither contrary to nor an unreasonable application of clearly established Supreme Court law governing guilty pleas.
First, the transcript of the Plea Proceeding reflects that Justice Solomon confirmed that Solomon understood that he was pleading guilty to one count of first-degree rape, was doing so voluntarily, had spoken with his lawyers before deciding to enter into the Plea, had in fact engaged in sexual intercourse with a girl under thirteen years old when he was over 21 years old, would be sentenced to a 22-year determinate sentence followed by 20 years of post-release supervision, and would be designated as a sex offender. (ECF Nos. 40-1 at 116-19; 40-2 at 1-7). Justice Solomon also confirmed that Fulton understood that, at sentencing, the prosecution would dismiss the 5555-10 and 74-10 Indictments, and took the extra steps of explaining the potential sentences for those charges and confirming that Fulton had engaged in the conduct charged in those two cases. (ECF Nos. 40-1 at 119; 40-2 at 1-2). Justice Solomon then confirmed that Fulton understood the trial and appeal rights he was giving up, allowing Fulton time to speak with Beal and review the Appeal Waiver. (ECF No. 40-2 at 45, 55 n.2). Next, Justice Solomon asked several questions to confirm that no force, threats, or coercion had influenced Fulton's decision to plead guilty, no one had made any additional promises off the record, and that the decision to plead guilty was his own. (Id. at 2-3). Finally, Justice Solomon explained why Fulton would not be able to withdraw his Plea at sentencing, and confirmed that Fulton “desire[d] to go forward” with his Plea. (Id. at 5-6). The totality of the circumstances demonstrates that, before accepting the Plea, Justice Solomon conducted the requisite “detailed inquiry” and “ascertained that [Fulton] understood the consequences of the [P]lea and that he wished to plead guilty.” Murray, 2001 WL 26213, at *5. For the reasons explained below, Beal provided competent counsel before and during the Plea Proceeding, which adds to the weight “toward a finding of voluntariness.” Id.; see Brady, 397 U.S. at 756. To the extent Fulton exhibited some hesitation before pleading guilty, by rejecting at least one prior plea offer (see ECF Nos. 14 at 6; 40-1 at 24; 40-7 at 8), “a plea entered into with hesitation does not make it involuntary when the totality of the circumstances indicate that the plea was voluntary.” Valdez, 2021 WL 634716, at *18 (citing Brady, 397 U.S. at 749). The totality of the process by which Justice Solomon conducted the Plea Proceeding demonstrates that Fulton knowingly, intelligently, and voluntarily agreed to plead guilty to first-degree rape. See Brady, 397 U.S. at 756 (finding that plea was intelligent where petitioner was represented by competent counsel, advised of charges, admitted underlying conduct, and gave no indication of incompetence); Valdez, 2021 WL 634716, at *18 (finding that totality of circumstances demonstrated that plea was voluntary); D'Onofrio v. Annucci, No. 16 Civ. 1740 (VB) (PED), 2018 WL 6251367, at *14 (S.D.N.Y. Oct. 23, 2018) (finding that record of plea proceeding demonstrated that petitioner's plea was knowing, voluntary, and intelligent), adopted by, 2018 WL 6250660 (S.D.N.Y. Nov. 29, 2018).
Second, in the Plea Decision, Justice Solomon evaluated Fulton's Withdrawal Motion under the correct standard as established by the Supreme Court, i.e., whether the Plea was voluntary, knowing, and intelligent. (ECF No. 40-1 at 26 (“It is well established that a guilty plea entered into voluntarily, knowingly and intelligently is valid.”) (citing People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993))). Following a thorough review of the Plea Proceeding, Justice Solomon found that the record was “devoid of even the slightest hint of coercion[, and i]nstead, everything point[ed] to the conclusion that, with the advice and assistance of competent counsel, [Fulton] made a reasoned decision to plead guilty and freely admitted his guilt under oath.” (Id. at 29). Fulton's complaint that Justice Solomon lost or did not recall the Pro Se Motion (ECF Nos. 14 at 5, 7; 42 at 4) is immaterial, because, as he correctly noted, Fulton did not submit any sworn affirmations substantiating the alleged coercion by Beal or her unnamed colleague. (ECF No. 401 at 27). In any event, Justice Solomon still considered the substance of Fulton's assertions about Beal's conduct and, having overseen the pretrial proceedings, was best-positioned to conclude that they lacked credibility. See Blackledge, 431 U.S. at 74 (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”).
Third, in Fulton I, the First Department's analysis of Fulton's challenges to his Plea was neither contrary to nor an unreasonable application of Supreme Court precedent. The court noted the “thorough allocution,” during which Fulton “freely admitted that he was guilty, and that his plea was free from coercion.” Fulton I, 125 A.D.3d at 511. The First Department also conducted its own “careful examination of the allegedly exculpatory information” included in the Withdrawal Motion, and found it “dubious and unreliable.” Id. The court similarly agreed that Beal's “professional opinion about the probable result of going to trial” justified rejection of Fulton's “claims of coercion and misadvice.” Id.
Finally, before this Court, Fulton has not come forward with clear and convincing evidence substantiating his claims that his plea was unknowing, unintelligent, or involuntary. See 28 U.S.C. § 2254(e)(1). Fulton could have, but did not, provide further detail about the unnamed colleague who told him that God wanted him to plead guilty, or substantiated his claim that he was “mentally incompetent or otherwise lacked the mental capacity required to enter into a guilty plea.” D'Onofrio, 2018 WL 6251367, at *14. These details are fully within Fulton's knowledge, yet he has failed to substantiate them. In any event the Court's review of the Record demonstrates not only that Fulton was not coerced but also that he competent to enter the Plea; Fulton's statements in the Record indicate an intelligent individual who comprehended what Justice Solomon and Beal told him and made informed decisions in his own best interest. (See, e.g., ECF No. 40-6 at 58-67; see also ECF No. 40-2 at 36-37, 195-200). Accordingly, the Court finds that Fulton's allegations about coercion by Beal and her unnamed colleague, as well as Beal's supposed failure to investigate, are unworthy of credence. See Blackledge, 431 U.S. at 74.
Accordingly, Fulton has not demonstrated by clear and convincing evidence that the First Department's decision in Fulton I denying his challenge to his Plea was contrary to or an unreasonable application of clearly established Supreme Court precedent, and therefore, I respectfully recommend that the Court deny habeas relief on this ground. See Valdez, 2021 WL 634716, at *18 (rejecting challenge to guilty plea); D'Onofrio, 2018 WL 6251367, at *14 (same).
B. The Appeal Waiver
Fulton argues that the Appeal Waiver is invalid because, during the Plea Proceeding, he was “under the impression that he was to maintain his residual rights.” (ECF No. 14 at 8). He asserts that, despite retaining these “residual rights[,]” Justice Solomon invoked the Appeal Waiver “to deny the plea removal in all post conviction motions.” (Id. at 8-9). Respondent argues that Fulton's claim is based on state law, and therefore, is not cognizable on habeas review, and, in any event, the First Department considered and correctly rejected this claim on the merits in Fulton I. (ECF No. 40-7 at 37).
1. Legal Standard
“It is well-settled that the right to appeal is not a constitutional right, but rather ‘purely a creature of statute.'” Hardy v. Conway, No. 08 Civ. 6011, 2010 WL 2465526, at *2 (W.D.N.Y. June 14, 2010) (quoting Abney v. U.S., 431 U.S. 651, 656 (1977)). Under New York law, “the record ‘must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty[.]"' Harris v. Sheahan, No. 13 Civ. 950, 2017 WL 604441, at *4 (W.D.N.Y. Feb. 15, 2017) (quoting People v. Lopez, 6 N.Y.3d 248, 256 (2006)). Nevertheless, New York does not require a “‘trial court [to] engage in any particular litany' when accepting a defendant's waiver of the right to appeal.” D'Onofrio, 2018 WL 6251367, at *12 (quoting People v. Ludlow, 42 A.D.3d 941, 942 (2007)). Nor does any “federal precedent stand[] for the proposition that the trial court must employ specific language when apprising a defendant pleading guilty of the individual rights eschewed.” Muhammad v. Artus, No. 08 Civ. 0216, 2010 WL 3092165, at *2 (W.D.N.Y. Aug. 5, 2010). A federal court will uphold the waiver of the right to appeal “if the record clearly demonstrates that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.” United States v. Castillo, 303 Fed.Appx. 989, 990 (2d Cir. 2008) (internal citation omitted).
2. Application of Legal Standard
The First Department held in Fulton I that Fulton “made a valid waiver of his right to appeal[.]” 125 A.D.3d at 511 (citing Lopez, 6 N.Y.3d at 256-57). As an initial matter, the First Department's predication of this ruling on New York state law precludes habeas review of Appeal Waiver issue “unless [Fulton] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 729 (explaining that a federal habeas court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“In conducting federal habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”); Martinez v. Uhler, No. 19 Civ. 6928 (RA) (SLC), 2022 WL 3996963, at *5 (S.D.N.Y. Sept. 1, 2022) (“Martinez II”) (holding that where Appellate Division rested its denial of Fourth Amendment claim on state grounds, petitioner was required to establish cause and prejudice for default). “[I]t is well-settled that New York's law ‘allowing defendants to waive their right to appeal as part of a plea agreement, as long as the waiver is made voluntarily and is knowing and intelligent, is [such] an adequate and independent state ground that bars habeas review.'” Martinez II, 2022 WL 3396963, at *4 (quoting Burvick v. Brown, No. 10 Civ. 5597 (JFB), 2013 WL 3441176, at *6 (E.D.N.Y. July 9, 2013) and collecting cases holding that the waiver of the right to appeal is an adequate and independent state ground for denying relief under § 2254).
Although the Appellate Brief, which Georges prepared on Fulton's behalf, contained a citation to the Fifth and Fourteenth Amendments to the United States Constitution (ECF No. 402 at 77), it framed the Appeal Waiver issue as one of New York law and cited almost exclusively to New York precedent, including Lopez. (Id. at 77-82). Fulton does not allege any reason for the failure to present the federal constitutional question to the First Department in the Appellate Brief, and therefore, this claim is unexhausted. See Walden v. Walcott, No. 19 Civ. 11409 (GBD) (SN), 2022 WL 1199580, at *1 (S.D.N.Y. Mar. 29, 2022) (explaining that exhaustion “requires a state petitioner to have ‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges on the federal courts'”) (quoting Turner, 262 F.3d at 123). Affording Fulton's arguments the most favorable interpretation in light of his pro se status, however, the Court interprets Fulton's argument that “reversal would have been inevitable” had he been able to raise all of the challenges barred by the Appeal Waiver as asserting that the failure to consider the merits of his Appeal Waiver claim would be a fundamental miscarriage of justice. (ECF No. 14 at 9). Accordingly, in an abundance of caution, the Court will consider the merits of Fulton's challenge to the Appeal Waiver.
The question for the Court in considering the merits of the Appeal Waiver claim is “whether the state court reached a decision that was ‘contrary to' or an ‘unreasonable application of' established federal law.” Martinez v. Uhler, No. 19 Civ. 6928 (RA) (SLC), 2020 WL 13543764, at *8 (S.D.N.Y. Aug. 26, 2020) (“Martinez I”) (quoting 28 U.S.C. § 2254(d)), adopted by, Martinez II; see D'Onofrio, 2018 WL 6251367, at *12 (evaluating claim appeal waiver claim under AEDPA standard). The Court finds that the Record supports the First Department's conclusion that Fulton's Appeal Waiver was valid, i.e., was knowing, intelligent, and voluntary. See Martinez II, 2022 WL 3996963, at *6 (rejecting challenge to appeal waiver where the record demonstrated that it “was knowing and voluntary”). During the Plea Proceeding, Justice Solomon first delineated the list of trial rights that Fulton gave up by pleading guilty, including the rights to a jury trial, to confront and cross-examine witnesses, and to testify or not testify at trial, and informed Fulton that, by pleading guilty, “it's the same as if you actually went to trial, were found guilty by a jury” of the charge of first-degree rape. (ECF No. 40-2 at 3-4). Fulton acknowledged that he understood. (Id. at 4). To demonstrate that the discussion of waiving the right to appeal was distinct, Justice Solomon paused and stated, “[a] [f]ew more things,” before describing the right to appeal, which normally exists in a criminal case and was “separate and apart from all the rights that you normally waive when you plead guilty.” (Id.) Justice Solomon reiterated the distinct nature of the appeal right, noting “[t]his [was] separate” from the other trial rights and “relate[d] to the agreement that [he was] entering into with the People to plead to a lesser charge.” (Id.) Justice Solomon also noted that the prosecution was asking Fulton to waive his right to appeal “in exchange to this plea to a lesser charge, in exchange for the promise of the sentence that [was] placed on the record, in exchange for the promise that the two indictments pending against [him] [] and have been consolidated for trial will be dismissed on the sentence date.” (Id.) Fulton again acknowledged that he understood each of the points that Justice Solomon explained to him. (Id.)
Justice Solomon then paused the proceeding to afford Fulton the opportunity to review the Appeal Waiver and confer with Beal before signing. (ECF No. 40-2 at 4-5). In addition, the Appeal Waiver itself “clearly distinguished the right to appeal from the rights forfeited upon a guilty plea, and delineated” which issues Fulton retained the right to appeal. (Id. at 55 n.2). In the Appeal Waiver, Fulton also acknowledged that he signed it “knowingly, intelligently, and voluntarily after being advised by the Court and consulting with [his] attorney, Liz Beal, standing beside [him].” (Id.) Justice Solomon concluded by reiterating that Fulton would not be able to withdraw his Plea on the sentencing date, so if there were “any reason now under the sun, anything at all that [he was] aware of that” he wanted to tell the court that was “influencing this decision,” now was the time to so state. (Id. at 5-6). Fulton acknowledged that he understood and stated his desire to go forward with the Plea. (Id. at 6).
This Record demonstrates that Justice Solomon discussed Fulton's waiver of his right to appeal separately, and did not “lump[] [it] into the panoply of trial rights automatically forfeited upon pleading guilty.” D'Onofrio, 2018 WL 6251367, at *13. Further, Fulton affirmed in writing that he discussed the Appeal Waiver with Beal and was voluntarily waiving his right to appeal issues not delineated in the Appeal Waiver. (See ECF No. 40-2 at 4-5). Under these circumstances, the First Department's “decision upholding the validity of [Fulton's] waiver of appeal was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.” D'Onofrio, 2018 WL 6251367, at *13; see Martinez I, 2020 WL 13543764, at *9 (rejecting challenge to waiver of right to appeal).
Unable to dispute the voluntariness of his waiver of his right to appeal, Fulton appears to focus instead on the supposed impact of the Appeal Waiver, arguing that the New York courts “used the act of the signing of the waiver and the plea[] to deny the plea removalin all post conviction motions.” (ECF No. 14 at 9). The state courts' decisions on Fulton's post-conviction motions belie this assertion, however. First, as summarized above, in the Plea Decision, Justice Solomon conducted a full review of the Plea Proceeding before concluding that Fulton, “with the effective assistance of counsel, voluntarily, knowingly and intelligently decided to plead guilty.” (ECF No. 40-1 at 22-33). Second, in Fulton I, the First Department conducted an independent review and found that “[t]he record establishes the voluntariness of the [P]lea.” 125 A.D.3d at 511. Third, in the First 440.10 Decision, Justice Solomon evaluated, and rejected on the merits, Fulton's claims that Beal's failure to investigate potentially exculpatory evidence constituted ineffective assistance of counsel. (ECF No. 40-4 at 37-43). Fourth, in the Second 440.10 Decision, Justice Pickholz reviewed the transcript of the Plea Proceeding and rejected Fulton's claims that he was incompetent to enter a guilty plea. (Id. at 102-05). Fifth, in the Third 440.10 Decision, Justice Pickholz rejected Fulton's challenge to the arrest and search as procedurally barred under § 440.10, but added that, even on the merits, she “would [have] reject[ed]” these claims. (Id. at 119-20). Finally, the First Department denied Fulton's requests to review each of these decisions. (Id. at 65, 80, 106-14; see ECF No. 40-5 at 11). In none of these decisions did the New York courts invoke the Appeal Waiver as a reason not to consider Fulton's challenges to his Plea, and, in fact, in each case where he challenged the Plea, the courts considered and rejected the merits of his theories. The only instance in which one of the courts invoked the Appeal Waiver as preclusive was Fulton I, in which the First Department found that the Appeal Waiver “foreclose[d] review of his sentencing-related claims,” which were distinct from his challenges to his Plea. 125 A.D.3d at 511-12. In any event, the First Department, “[a]s an alternative holding,” rejected those claims “on the merits.” Id. at 512. Fulton's argument thus fails to undermine the validity of his Appeal Waiver.
The Court infers that by “removal[,]” Fulton meant “withdrawal.”
Accordingly, I respectfully recommend that, even if Fulton exhausted his Appeal Waiver claim, this claim nevertheless be denied on the merits.
C. Ineffective Assistance of Counsel
Fulton claims that Beal provided ineffective assistance of counsel by: (1) “refus[ing] to investigate [his] case”; (2) losing the Pro Se Motion; (3) “coerc[ing] [him] to plead guilty while acting as a prophet of God; (4) allowing his “right to speedy trial to be violated”; and (5) “fail[ing] to counter evidence during [the] Mapp/Dunaway” Hearing. (ECF No. 14 at 10-13).Respondent argues that, because Fulton's ineffective assistance claims are based on Beal's conduct pre-dating the Plea, he has waived them, and, in any event, they are meritless. (ECF No. 40-7 at 29-30, 3234).
Fulton does not assert that Georges' representation was ineffective. (See ECF Nos. 1; 14; 42).
1. Legal Standard
The Sixth Amendment to the United States Constitution provides that a criminal defendant “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI. “The Supreme Court has construed this clause to afford criminal defendants the right to the effective assistance of counsel.” Jackson v. Ercole, No. 07 Civ. 0457 (KMK) (PED), 2010 WL 8357326, at *11 (S.D.N.Y. Dec. 23, 2010) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)), adopted by, 2012 WL 292324 (S.D.N.Y. Jan. 30, 2012). “[T]o prove ineffective assistance, [a petitioner] must show (1) ‘that counsel's representation fell below an objective standard of reasonableness'; and (2) ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 669 (1984)); see Massaro v. United States, 538 U.S. 500, 505 (2003) (explaining that “a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial”); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (same); Walden, 2022 WL 1199580, at *2 (same). A petitioner “‘must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense.'” Garner v. Lee, 908 F.3d 845, 861 (2d Cir. 2018) (quoting Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (internal citation omitted)). The two-part Strickland inquiry applies to challenges to guilty pleas based on ineffective assistance of counsel. See Hill, 474 U.S. at 58.
With respect to the first prong, “[a] defense counsel's performance is unreasonable when it is so deficient that it falls outside the ‘wide range of professionally competent assistance.'” Kovacs v. United States, 744 F.3d 44, 50 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 690). “[T]he record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). In evaluating counsel's performance, “‘[j]udicial scrutiny . . . must be highly deferential,'” and a petitioner must overcome the “presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689) (internal quotations omitted); see Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (noting “strong presumption” of reasonable representation); United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (“[A] reviewing court must ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, [he] must overcome the presumption that, under the circumstances, the challenged action might be considered sound legal strategy.'”) (quoting Strickland, 466 U.S. at 689); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a “strong presumption” of competence). As set forth in Strickland, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 690-91. A petitioner “will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there was no tactical justification for the course taken.” Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (internal alterations, quotations, and citations omitted).
In the context of a challenge to a guilty plea based on ineffective assistance of counsel, the prejudice requirement “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59. To establish the prejudice element of the Strickland test, the petitioner “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. Where the alleged deficiency was a failure to investigate potentially exculpatory evidence, “the determination whether the error ‘prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his [or her] recommendation as to the plea[,]” which, in turn, “depend[s] in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” Id.
2. Exhaustion
In Fulton I, the First Department considered Fulton's claim that Beal “failed to conduct a proper factual investigation,” and agreed with Justice Solomon's “finding that [the] information [about the credibility of the Victims] was dubious and unreliable.” 125 A.D.3d at 511. The court also affirmed Justice Solomon's “rejection of [Fulton's] claims of coercion and misadvice by [Beal].” Id. Accordingly, Fulton properly exhausted these two theories of Beal's ineffective assistance of counsel and the Court may evaluate them under the AEDPA standard.
As to Fulton's three other theories of Beal's ineffective assistance-her loss of the Pro Se Motion, failure to object to the violation of his speedy trial right, and her failure to cross-examine witnesses during the Hearing-it appears that Fulton did not raise these issues in the Appellate Brief, nor did the First Department otherwise address them in Fulton I. (ECF No. 40-2 at 39-93). In addition, while an ineffective assistance of counsel claim can be exhausted by filing a petition for a writ of error coram nobis, the Corm Nobis Application that Fulton filed challenged Georges' conduct, not Beal's. (ECF No. 40-5 at 49-59). See Williams v. Goord, 277 F.Supp.2d 309, 321 (S.D.N.Y. 2003) (citing Garcia v. Keane, 973 F.Supp. 364, 369 (S.D.N.Y. 1997)). As a result, there is no state court decision on the merits of these claims for this Court to review under the AEDPA standard.
As we have noted, however, (see §§ II.B.1.b n.4, II.B.1.e n.9, supra), the Record is missing the Pro Se Motion and at least one of Fulton's § 440.10 motions, making it difficult to confirm the universe of arguments that Fulton raised in the state courts. (ECF No. 42 at 15). Fulton claims that he raised these additional theories of Beal's ineffectiveness in the filings that are absent from the Record, and points, for example, to a timeline that he submitted outlining what he characterizes as the “unreasonable” delay in his case, as well as other filings in which he raised the speedy trial issue. (Id. at 3-4, 15; see ECF Nos. 40-3 at 99; 40-4 at 26). Because the gaps in the Record prevent a finding that these three alternative theories were procedurally defaulted, again, in an abundance of caution, the Court will consider the merits of each of these theories as well.
3. Merits
a. Failure to Investigate
Fulton alleges that Beal failed to investigate potentially exculpatory evidence that he claims undermined the credibility of the Victims' accusations against him. (ECF Nos. 1 at 4; 14 at 10-11; 42 at 5-6, 11-12). For example, Fulton cites occasions on which he told Beal about witnesses who would attest that Victim 1 was “lying and made up the story to get back at” Fulton, pointed out discrepancies in Victim 2's grand jury testimony, and shared proof that he did not live in a first-floor apartment in 2001, when he allegedly engaged in sexual intercourse with fourteen-year-old Victim 2. (ECF Nos. 14-2 at 35, 37, 39, 41; see ECF No. 42 at 5-6). Respondent argues that the First Department correctly held that Beal did not act unreasonably in failing to investigate “unsworn second-hand accounts of two victims' recantations.” (ECF No. 40-7 at 28, 32).
Because Fulton exhausted the failure to investigate theory, the question for the Court under AEDPA is whether the First Department's holding that Beal was not ineffective for failing to investigate because “the allegedly exculpatory information . . . was dubious and unreliable[,]” Fulton I, 125 A.D.3d at 511, was contrary to or an unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d). In Strickland, the Supreme Court explained that “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” 466 U.S. at 691. Trial counsel has a duty to investigate because “‘the adversarial testing process' . . . generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies[.]” See Kimmelman v. Morrison, 477 U.S. 365, 386 (1986) (quoting Strickland, 466 U.S. at 691) (emphasis added). The Second Circuit has explained that “[u]nder Strickland, a petitioner may show constitutionally deficient performance by counsel by evidencing that counsel's litigation choices ‘resulted from an entirely absent investigation.'” Spencer v. Capra, No. 21-1703, 2022 WL 4241367, at *4 (2d Cir. Sept. 15, 2022) (summary order) (quoting Greiner v. Wells, 417 F.3d 305, 325 (2d Cir. 2005)). The duty to investigate “does not, however, compel defense counsel to investigate comprehensively every lead or possible defense, or ‘to scour the globe on the off-chance something will turn up[.]"” Greiner, 417 F.3d at 321 (quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)) (internal citations omitted). “[A] petitioner has the ‘burden of providing the court sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced.'” Heron v. Griffin, No. 18 Civ. 00004 (JFB), 2019 WL 1050011, at *13 (E.D.N.Y. Mar. 5, 2019) (quoting Taylor v. Poole, No. 07 Civ. 6318 (RJH) (GWG), 2009 WL 2634724, at *14 (S.D.N.Y. Aug. 27, 2009), adopted by, 2011 WL 3809887 (S.D.N.Y. Aug. 26, 2011); see Wood v. Artus, No. 15 Civ. 4602 (SJF), 2020 WL 3256848, at *9 (E.D.N.Y. June 15, 2020) (“[A] petitioner must do more than make vague, conclusory, or speculative claims as to what evidence could have been produced by further investigation.”) (quoting Poole, 2009 WL 2634724, at *14).
The Court finds that Fulton has failed to “overcome the presumption” that Beal's decisions about which potentially exculpatory leads to investigate were “sound legal strategy.” Gaskin, 364 F.3d at 468. As an initial matter, the Record reflects that Beal did investigate some potentially exculpatory evidence; for example, in a March 27, 2011 email to one of Fulton's family members, Beal stated that she had “been going over the deposition testimony a [third] time” of witnesses with knowledge one of the Victims' accusations and had scheduled a call to discuss this evidence with Fulton directly and prepare for the impending trial. (ECF No. 14-2 at 35). Further, Fulton acknowledges that Beal did pursue obtaining a copy of his lease. (ECF No. 42 at 6 (citing ECF No. 14-2 at 41)). The Record therefore refutes Fulton's assertions that Beal “did not investigate” his case at all, (ECF No. 42 at 6), and demonstrates that this is not a case involving “a total failure to conduct pre-trial discovery” without any plausible explanation. Kimmelman, 477 U.S. at 386.
In addition, Fulton “has not met his heavy burden of showing” that Beal was objectively unreasonable for not doing more to investigate potential exculpatory evidence. Spencer, 2022 WL 4241367, at *4. With respect to Victim 1, Fulton's family member relayed to Beal the first name of someone who knew Victim 1's ex-girlfriend, who in turn “ha[d] evidence that [Victim 1 was] lying and made up the story to get back at” Fulton, and suggested that the minister at Mariners “may have information on one incident in question regarding” Victim 1. (ECF No. 14-2 at 35). The fact that the most that Georges was able to gather from Victim 1's ex-girlfriend was a partial, unexecuted affidavit referring to undated conversations with Victim 1 and other unnamed persons in which Victim 1 supposedly stated that her accusations against Fulton were not true supports the inference that Beal justifiably determined that this information had little if any value to Fulton's defense. (ECF No. 40-1 at 86-87). The signed, but unsworn, affidavit Georges obtained from another friend of Victim 1's contained similarly inconclusive hearsay. (Id. at 89-90). As to Victim 2, given the other evidence in the Record showing that Fulton's Apartment in 2001 was on the third floor (ECF Nos. 40-2 at 238, 240; 40-3 at 13), taking the extra step to obtain a copy of his lease would have been duplicative, and, in any event, did not fundamentally undermine Victim 2's grand jury testimony that Fulton had sexual intercourse with her when she was fourteen. (Id. at 60-61). The leads that Fulton and his family members shared with Beal concerning other Victims were similarly short on detail and long on conjecture. (See, e.g., ECF No. 14-2 at 35 (suggesting that Beal “talk to [Victim 4's] grandmother [] because she was around and can verify [Fulton's] whereabouts for some of the girls [sic] statements [sic] in questions [sic].”)). They are therefore lacking sufficient precision to amount to “‘a comprehensive showing as to what the investigation would have produced.'” Heron, 2019 WL 1050011, at *13 (quoting Poole, 2009 WL 2634724, at *14). Accordingly, the Court finds that Fulton has not met his burden of showing that the First Department unreasonably concluded that because the information about Victim 1 was “dubious and unreliable[,]” Beal's performance was not constitutionally deficient. Fulton I, 125 A.D.3d at 511; see Spencer, 2022 WL 4241367, at *4 (rejecting claim that counsel was deficient for failure to investigate witnesses where petitioner failed to show that it was “because of some objectively unreasonable performance . . . as opposed to various other reasonable explanations such as counsel's trial tactics or the inability to find these individuals before the trial even with a reasonable amount of investigating”); Marsh v. Duncan, No. 01 Civ. 1314 (JG), 2004 WL 86412, at *12 (E.D.N.Y. Jan. 7, 2004) (finding that counsel was not ineffective for failing to locate potential witnesses where it was “impossible to say with any certainty what” they would have said, let alone that they “would have corroborated” petitioner's story).
Even if the Court were to find that Beal's investigation fell below constitutional standards, he has not shown that “but for [her] deficient conduct, there is a reasonable probability that the result of the proceeding would have been different.” Moreno-Gratini II, 2022 WL 1425712, at *9 (citing Strickland, 466 U.S. at 688). As the Supreme Court has explained, to show prejudice in the plea context, a petitioner “must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012); see Hill, 474 U.S. at 59 (requiring petitioner to show “that there is a reasonable probability that, but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial”).
First, Fulton's reliance on Lafler (ECF No. 14 at 11), where the petitioner “went to trial rather than accept a plea deal” due to undisputed ineffective assistance during the plea process and received a more severe sentence, is misplaced. 566 U.S. at 166. In Lafler, “the trial caused the injury from the error.” Id. Here, Fulton does not dispute that his sentence resulting from the Plea is significantly less than the possible sentence he faced if he went to trial on not one, but three, Indictments, as Justice Solomon explained to him during the Plea Proceeding. (ECF Nos. 40-1 at 119; 40-2 at 1). Second, given the speculative nature of the allegedly exculpatory information discussed above, Fulton has not shown that, had Beal spoken to any of the additional witnesses or obtained a copy of the lease, each of the following would have occurred: (1) Beal would have made the strategic decisions to advise Fulton not to plead guilty and offer the evidence at trial; (2) Justice Solomon would have admitted the evidence; and (3) the evidence would have convinced a jury to acquit him of all the charges in all three Indictments. Therefore, Fulton thus has not demonstrated prejudice resulting from Beal's failure to investigate further. See Maddox v. Lord, 818 F.2d 1058, 1062 (2d Cir. 1987) (holding that petitioner failed to show prejudice from counsel's alleged failure to investigate where the affidavit she offered gave “no indication that this evidence would be in any way exculpatory”).
Because Fulton has not met his burden to show that the result of the proceedings would have been different had Beal further investigated the allegedly exculpatory information, he has not shown that the First Department's rejection of this theory of ineffective assistance of counsel was contrary to or an unreasonable application of the Strickland standard. See Ward v. Kuhlman, No. 01 Civ. 1054 (NPM), 2007 WL 2907353, at *7 (N.D.N.Y. Oct. 4, 2007) (holding that state court decision denying ineffective assistance of counsel claim based on insufficient pretrial investigation was neither contrary to nor an unreasonable application of Strickland standard).
b. Loss of the Pro Se Motion
Fulton argues that his Pro Se Motion “was handed to counsel and never seen again[,]” which “create[d] a huge gap in the case removing the ability to achieve a proper showing for plea removal[.]” (ECF Nos. 14 at 11-12; 42 at 8-9). Fulton concedes, however, that Justice Solomon discussed the Pro Se Motion during the November 29, 2010 arraignment, and encouraged Beal and Fulton to try to work out “the problem[,]” and if they could not, would allow Fulton to renew his request for new counsel. (ECF Nos. 14 at 11; 40-6 at 7, 10). Not only did Justice Solomon permit Fulton to renew his request for new counsel, but he also granted that request, appointed Georges, and adjourned the sentencing date to permit Georges to file the Withdrawal Motion. (ECF Nos. 40-1 at 25-26, 73-92; 40-6 at 78-81). Furthermore, notwithstanding the absence of the Pro Se Motion from the Record, Justice Solomon thoroughly analyzed the merits of the Withdrawal Motion, notwithstanding the missing Pro Se Motion. (ECF No. 40-1 at 22-33). Thus, even if Beal could be charged with responsibility for the absence of the Pro Se Motion from the Record-and the Court strongly doubts she should-there was certainly no prejudice to Fulton given Justice Solomon's denial of the Withdrawal Motion “for substantive reasons[.]” Walden, 2022 WL 1199580, at *3. Therefore, this theory of ineffective assistance of counsel fails on the merits.
c. Conduct Concerning the Plea
Fulton alleges that Beal and “another attorney” coerced him to enter the Plea, and that had she told him she had not investigated his leads, he would not have pled guilty. (ECF No. 14 at 11-12; see ECF No. 42 at 3 (alleging that Beal “lied to” him and “only wanted him to take a plea”)). The First Department considered and rejected Fulton's “claims of coercion and misadvice by” Beal as unsupported by the record. Fulton I, 125 A.D.3d at 511. The Court accordingly applies the deferential AEDPA standard of review to this claim, see Sellan, 261 F.3d at 312, and finds that the First Department's decision was neither contrary to nor an unreasonable application of Strickland.
Numerous courts applying the Strickland standard have rejected post-plea assertions like Fulton's that counsel coerced or persuaded a petitioner to plead guilty where, during the plea, the petitioner expressly stated, as Fulton did here (ECF Nos. 40-1 at 116-17; 40-2 at 2-3), that he was pleading guilty of his own free will and denied any threats or coercion. See, e.g., United States v. Logan, 845 F.Supp.2d 499, 510-11 (E.D.N.Y. 2012) (rejecting allegations of coercion where petitioner denied during plea proceeding any force or threats and where there were no improprieties in acceptance of plea or sentencing); Fabre v. Taylor, No. 08 Civ. 5883(DLC) (AJP), 2009 WL 162881, at *15 (S.D.N.Y. Jan. 20, 2009) (rejecting allegations of coercion where petitioner's “plea hearing statements refute[d] his [] claim of coercion and ‘demonstrate that the plea was knowing in that it was entered with full knowledge of the charge and the consequences of pleading guilty'”) (quoting Martinez v. Costello, No. 03 Civ. 2763 (GWG), 2004 WL 26306, at *6 (S.D.N.Y. Jan. 5, 2004)), adopted by, 2009 WL 1457169 (S.D.N.Y. May 26, 2009); Padilla v. Keane, 331 F.Supp.2d 209, 217-18 (S.D.N.Y. 2004) (rejecting allegations of coercion where allocution reflected that petitioner understood consequences of his plea and chose to plead guilty after consulting with attorney, and without plea petitioner would have faced multiple counts with possible consecutive sentences). Further, Beal did not represent Fulton at the time of the Withdrawal Motion or sentencing, and Fulton makes no complaints about Georges' performance. Cf. Logan, 845 F.Supp.2d at 511 (noting that allegedly deficient counsel no longer represented petitioner after plea and for sentencing).
In short, Fulton was facing “a powerful case against him[,]” involving five Victims and presenting the possibility of multiple consecutive sentences, such that Beal's advice that he accept the Plea and receive a determinative sentence rather than go to trial on multiple charges facing lengthy consecutive sentences “was not only a reasonable decision, but a wise one[,]” and there is no basis to conclude that Beal's “allegedly strong advice . . . fell below an objective standard of reasonableness or overcame [Fulton's] free will in pleading guilty.” Bonnet v. Riley, No. 91 Civ. 563 (JG), 1996 WL 1089986, at *9 (E.D.N.Y. Nov. 20, 1996). Under these circumstances, Fulton has not shown that the First Department's rejection of this theory of Beal's ineffective assistance was contrary to or an unreasonable application of Strickland.
d. Speedy Trial Right
Fulton argues that Beal's failure to make a motion under New York Criminal Procedure Law § 30.30 (“§ 30.30”) to dismiss the 5973-09 Indictment due to the prosecution's delay in readying the case for trial renders her representation deficient. (ECF Nos. 14 at 12-13; 42 at 67). Respondent argues that Fulton has not rebutted Justice Solomon's findings in the First 440.10 Decision that Beal was not ineffective for failing to file a § 30.30 motion because “[t]he People filed a certificate of readiness within a few days of [Fulton's] arraignment and the few adjournments chargeable to the People do not amount to anywhere close to six months.” (ECF No. 40-4 at 42). In the Reply, Fulton disputes Justice Solomon's calculation, pointing to his own timeline of his court appearances. (ECF No. 42 at 7; see ECF Nos. 14-6 at 125; 40-4 at 26).
Under New York law, “a motion to dismiss must be granted if the State is not ready for trial within ‘six months of commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.'” Buitrago v. Scully, 705 F.Supp. 952, 954 (S.D.N.Y. 1989) (quoting N.Y. Crim. P. L. § 30.30(1)(a)). “A criminal action is commenced as soon as an accusatory instrument is filed in a criminal court, which includes the filing of a felony complaint or indictment.” Bonnet, 1996 WL 1089986, at *6 (citing N.Y. Crim. P. L. §§ 1.20(1), (17)). The statute contemplates numerous exclusions from the six-month period, including, as is relevant to Fulton:
(1) a reasonable period of delay resulting from other proceedings concerning the defendant including pre-trial motions, trial of other charges, and the period during which such matters are under consideration by the court; (2) delay resulting from continuances granted by the court at the request of the defendant or his attorney; [and] (3) other periods of delay occasioned by exceptional circumstances including additional time to prepare the People's case where additional time is justified by the exceptional circumstances of the case.Bonnet, 1996 WL 1089986, at *6 (citing N.Y. Crim. P. L. § 30.30(4)). New York courts also exclude periods of delay “where the defendant fails to object to adjournments or trial dates set by the court.” Bonnet, 1996 WL 1089986, at *6 (citing People v. De Rosa, 84 Misc.2d 316 (2d Dep't 1975)).
While the Second Circuit has acknowledged that the failure to move to dismiss based on a speedy trial violation may fall below an objective standard of reasonableness, see United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995), the Record does not confirm that a § 30.30 violation occurred here. Fulton's own timeline shows that he was arraigned on the 5973-09 Indictment on December 2, 2009, and, just over two months later, the prosecution pronounced that they were ready for trial. (ECF Nos. 14-6 at 125; 40-4 at 26). While Fulton is correct that 17 months passed between December 2, 2009 and April 4, 2011, when Fulton entered the Plea just as trial was about to begin, the Record reflects adjournments at Fulton's request-or with his consent- as well as other excludable periods of delay given the related 74-10 and 5555-10 Indictments. (See, e.g., ECF No. 14-6 at 11, 51-52). At a minimum, in the absence of clear and convincing evidence to the contrary, this Court must defer to Justice Solomon's fact-finding in the First 440.10 Decision that any delays by the prosecution did not exceed six months. See 28 U.S.C. § 2254(e)(1). Therefore, I cannot find “that it was objectively unreasonable for [Beal] to fail to file a motion to dismiss on speedy trial grounds.” Bonnet, 1996 WL 1089986, at *7.
e. Conduct During the Hearing
Fulton contends that Beal was “unprofessional” and “ill prepared” at the Hearing, and failed to elicit that the NYPD “lied” to the United States Marshals Service (the “Marshals”) about having a warrant for Fulton's arrest. (ECF Nos. 14 at 12; 42 at 7). Respondent points out that Fulton has failed to identify any basis “for countering the detective's straightforward testimony describing the arrest and seizure of the” Evidence. (ECF No. 40-7 at 33).
The Court has examined the transcript of the Hearing, and finds that Beal provided Fulton with meaningful, professional representation during that proceeding. Beal's cross-examination of McColgan revealed: (i) that McColgan questioned Victim 1 with no other officer present; (ii) other possible witnesses with whom Victim 1 spoke; (iii) pointed out that Victim 1 initially told her mother that she did not have sexual intercourse with Fulton, which called into question Victim 1's credibility, and (iv) further details about the NYPD's search for Fulton in Maryland. (ECF No. 40-6 at 32-45). Furthermore, the Record contains a copy of the Arrest Warrant, which the NYPD shared with the Marshals, demonstrating that there is no basis for Fulton's contention that the NYPD “lied” about having a warrant for Fulton's arrest. (ECF Nos. 40-1 at 8-9; 14-6 at 136). Thus, the Court finds that Beal's performance during the Hearing did not fall below the objective standard of reasonableness, let alone that there is a reasonable probability that, had Beal questioned McColgan differently, Justice Solomon would have excluded the Evidence. See Shankle v. Unger, No. 09 Civ. 1902 (SLT), 2011 WL 1322017, at *7 (E.D.N.Y. Apr. 4, 2011) (finding that counsel's performance at Mapp/Dunaway hearing was not deficient under Strickland); Marsh, 2004 WL 86412, at *11-13 (rejecting argument that counsel's cross-examination during Mapp, Dunaway, and other pretrial hearings was ineffective); see also Morgan v. Ercole, No. 06 Civ. 3716 (CBA), 2009 WL 3805309, at *5 (E.D.N.Y. Nov. 12, 2009) (finding that counsel was not ineffective for choosing not to challenge probable cause for arrest).
Based on a thorough review of the Record, I respectfully recommend that each of Fulton's claims that Beal provided ineffective assistance of counsel be denied.
D. Prosecutorial Misconduct
Fulton's prosecutorial misconduct claim centers on (1) the arrest in Maryland (supposedly without a warrant), (2) the prosecutor's failure to present to the grand jury and disclose to Fulton exculpatory material (Fulton's lease and statements by Victim 1) under Brady v. Maryland, 373 U.S. 83 (1963), and (3) the failure to give notice before the Victim Statements at the Sentencing. (ECF No. 14 at 14-17). Focusing on the Brady theory, Respondent argues that Fulton's lease was not Brady material and therefore the prosecution had no obligation to disclose it, and that Fulton does not point to any signed, sworn statement by Victim 1 that the prosecution possessed and failed to disclose. (ECF No. 40-7 at 34-35).
In reviewing a claim of prosecutorial misconduct on a habeas corpus petition, the standard is whether the prosecutor engaged in “‘egregious misconduct . . . amount[ing] to a denial of constitutional due process.'” Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)); see Rivera v. Rich, No. 20 Civ. 865 (GTS) (ATB), 2022 WL 1631938, at *14 (N.D.N.Y. Apr. 4, 2022) (quoting Floyd, 907 F.2d at 353), adopted by, 2022 WL 1624696 (N.D.N.Y. May 23, 2022).
1. Prosecutorial misconduct relating to arrest and search
Fulton raised the prosecutorial misconduct claim based on his arrest and post-arrest search in the Third 440.10 Motion, which Justice Pickholz denied and the First Department subsequently denied leave to appeal. (ECF Nos. 40-4 at 115-18, 121-22; 40-5 at 11). The Court therefore deems this theory of prosecutorial misconduct exhausted.
Although Fulton exhausted this claim, the Court finds that habeas relief is unavailable because the state court's consideration of this claim rested on an adequate and independent state ground. As noted above, Fulton did assert this claim in the Third 440.10 Motion. (ECF No. 40-4 at 115-18). Justice Pickholz, however, found that this record-based claim could have been but was not raised on direct appeal and was therefore procedurally barred under § 440.10, and, in any event, lacked merit. (Id. at 119-20). The First Department denied leave to appeal the Third 440.10 Decision. (Id. at 121-22; see ECF No. 40-5 at 110). Accordingly, Fulton's prosecutorial misconduct claim based on his arrest is procedurally barred, see Jones v. Stinson, 228 F.3d 112, 118 (2d Cir. 2000); Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001), unless Fulton can show cause and that the failure to consider the claim would result in a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 324-27 (1995); Green, 414 F.3d at 294.
Fulton does not allege any cause for failing to raise this issue in his Appellate Brief, and the Court finds that he has not shown that the prosecutor's alleged misconduct with respect to his arrest equated to a “constitutional violation [that] probably resulted in his conviction despite his actual innocence.” Wearing v. Lavalley, No. 10 Civ. 8307 (JPO), 2015 WL 6738327, at *17 (S.D.N.Y. Nov. 4, 2015) (citing United States v. Olano, 507 U.S. 725, 736 (1993)). I therefore respectfully recommend that the Court find that Fulton's prosecutorial misconduct claim based on his arrest because the state courts' determination of this claim rested on an adequate and independent state procedural ground. See Moreno-Gratini II, 2022 WL 1425712, at *6.
Were Fulton's claim that the arrest and the seizure of the Evidence in Maryland violated the Fourth Amendment not procedurally barred, the Court would have to conclude that Fulton has not presented a cognizable claim under § 2254(d) because New York provides an adequate procedure for reviewing Fourth Amendment claims. See Cappellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992) (explaining that “‘federal courts have approved New York's procedure for litigating Fourth Amendment claims[']” in N.Y. Crim. P. L. § 710.10 et seq.) (quoting Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y. 1989)). Fulton had the benefit of that procedure, as Beal requested, and Justice Solomon conducted the Hearing to review whether the Evidence should be suppressed and whether there was probable cause for Fulton's arrest. (ECF No. 40-6 at 23-52).
Furthermore, the valid Appeal Waiver (see § IV.B.2, supra), also precludes review of his Fourth Amendment arguments. See Martinez II, 2022 WL 3996963, at *4 (collecting cases holding “that valid appeal waivers procedurally bar consideration of Fourth Amendment claims”).
Finally, even were the Court to consider the merits of this argument, Fulton has not shown how the Arrest Warrant, a copy of which appears in the Record, was invalid, or how the search incident to his arrest violated the Fourth Amendment.
2. Prosecutorial misconduct based on Brady
Neither in the Appellate Brief nor in the any of his 440.10 motions did Fulton assert prosecutorial misconduct based on the failure to disclose under Brady. (ECF Nos. 40-2 at 39-93, 195-251; 40-3 at 1-59, 76-85; 40-4 at 8-29, 81-100)). This claim is therefore unexhausted. It is also procedurally barred because Fulton could have raised this claim on direct review, but failed to do so. See Wearing, 2015 WL 6738327, at *20-21 (deeming unexhausted Brady claim not raised in state appellate or post-conviction proceedings) (citing Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)). In addition, the valid Appeal Waiver also precludes consideration of Fulton's Brady arguments. See Tremblay v. U.S., Nos. 08 Civ. 7030 (JFK), 05 Cr. 783 (JFK), 2009 WL 1055007, at *8 (S.D.N.Y. Apr. 20, 2009) (finding that valid appeal waiver provided grounds to dismiss Brady claim); Ocasio v. U.S., No. 01 Civ. 6650 (DAB), 95 CR. 942 (DAB), 2004 WL 405942, at *4 (S.D.N.Y. Mar. 4, 2004) (same). Having shown neither cause nor a fundamental miscarriage of justice if this claim is not considered, the procedural bar prevents the Court from considering Fulton's prosecutorial misconduct claim based on alleged Brady violations. See Tremblay, 2009 WL 1055007, at *8; Ocasio, 2004 WL 405942, at *4.
Were the Court to consider the merits of this theory, however, it would conclude that it does not provide a basis for habeas corpus relief. To establish a Brady violation, Fulton needed to show that: (1) the evidence was favorable to him; (2) the prosecution suppressed the evidence; and (3) he was prejudiced by the suppression. United States v. Douglas, 525 F.3d 225, 244-45 (2d Cir. 2008) (quoting Strickler v. Greene, 527 U.S. 263 (1999)). As Respondent correctly points out, Fulton's lease was a document to which he had access, (ECF No. 40-7 at 34), and, in fact, Fulton informed Beal about where to obtain it, and therefore the lease was not evidence that the prosecution suppressed. (ECF No. 14-2 at 41). See Miller v. Smith, 2010 WL 4961666, at *11 (E.D.N.Y. Dec. 1, 2010) (finding no Brady violation where “prosecution never had possession of the[] materials”). In addition, Fulton has not shown that the prosecution had any written statements by Victim 1 in its possession that it failed to disclose to him; that Georges subsequently spoke to witnesses who made vague statements challenging the Victim's accusations does not equate to establishing that the prosecution had statements that it failed to disclose. See United States v. Ferrara, 788 Fed.Appx. 748, 754 (2d Cir. 2019) (finding that prosecution had no Brady obligation to disclose information that was not exculpatory); Quinney v. Conway, 784 F.Supp.2d 247, 261 (W.D.N.Y. 2011) (denying Brady claim where petitioner failed to show that exculpatory evidence was withheld).
Thus, based on a review of the Record, I cannot conclude that the prosecution's conduct during Fulton's case “so infected the [proceedings] with unfairness” as to constitute a denial of Fulton's right to due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotation omitted).
3. Prosecutorial conduct based on Victim Statements
The claim that prosecutor engaged in misconduct by failing to give notice of the Victim Statements is the only procedural misconduct claim that Fulton arguably raised on direct review in the Appellate Brief. (See ECF No. 40-2 at 87-91). Accordingly, construing Fulton's filings liberally, the Court deems this theory of prosecutorial misconduct exhausted. Because, however, the First Department rejected this claim on an adequate state procedural ground, i.e., that, at most, Fulton was entitled to an adjournment but failed to request one, Fulton's failure to preserve this issue precludes habeas review. See Moreno-Gratini II, 2022 WL 1425712, at *6; Wearing, 2015 WL 6738327, at *19 (noting that “[violations or errors of state law or procedure generally do not constitute grounds for habeas review”). Fulton cannot overcome the procedural bar because he has not alleged any cause for not requesting an adjournment of the sentencing. Nor can he demonstrate a fundamental miscarriage of justice because Justice Solomon sentenced him to the term provided in the Plea, and his professions of innocence contradict his sworn admissions during the Plea Proceeding that he engaged in the conduct alleged in the Indictments. (ECF Nos. 40-1 at 117; 40-2 at 1-2). Therefore, this theory of prosecutorial misconduct is not only procedurally barred, but also without merit. See Moreno-Gratini II, 2022 WL 1425712, at *6 (rejecting professions of innocence that were contradicted by the state court record and deeming claims procedurally barred).
In the Appellate Brief, Fulton (through Georges) framed this claim as a violation of Fulton's “statutory right to receive seven days' notice of the intention to introduce victim impact statements at his sentencing pursuant to” New York Criminal Procedure Law § 380.50(2)(b). (ECF No. 40-2 at 87). If such notice is absent, “the defendant may request a reasonable adjournment.” (Id. quoting N.Y. Crim. P. L. § 380.50(2)(b)). Georges objected to the Victim Statements, but did not request an adjournment. (ECF No. 40-6 at 92).
To the extent that Fulton's procedural misconduct claims are exhausted and not otherwise procedurally barred, I have considered them on their merits and find that none provides a basis for federal habeas corpus relief, and, accordingly, respectfully recommend that they be denied.
E. Abuse of Discretion
Fulton reframes the admission of the Victim Statements without notice and loss of the Pro Se Motion as an “abuse of discretion” by Justice Solomon. (ECF No. 14 at 18). These claims rely entirely on alleged violations of New York procedural law, however, and therefore do not present a cognizable basis for habeas corpus relief. See Coleman, 501 U.S. at 729; Estelle, 502 U.S. at 67-68; Wearing, 2015 WL 6738327, at *2, 22 (holding that alleged violations of New York Criminal Procedure Law were “not a cognizable basis for federal habeas corpus review”). Fulton could overcome this procedural bar by demonstrating cause and prejudice or a fundamental miscarriage of justice. See Schlup, 513 U.S. at 324-27; Wearing, 2015 WL 6738327, at *22. He makes no attempt to show cause, nor could he show prejudice or a miscarriage of justice if these claims were not considered, because, as noted above, Justice Solomon applied the sentence contemplated by the Plea, which Fulton entered knowingly, intelligently, and voluntarily, and even though Justice Solomon did not recall the Pro Se Motion, he, as well as the First Department-and this Court-evaluated the merits of his challenge to the Plea. (See § II.B.1.c, supra).
F. Request for Discovery
Fulton has renewed his request to be permitted to conduct discovery in support of his Petition and for a hearing on his claims. (ECF Nos. 42 at 20; 44-45). Fulton lists several items that he alleges should be in, but are absent from, the Record and would substantiate his claims, including the Pro Se Motion, the Third 440.10 Motion, a pen register, his applications for leave to appeal to the Court of Appeals, and a fifth 440.10 motion. (ECF No. 42 at 3-4).
As the Court previously advised Fulton, (see ECF No. 27), “[a] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, Rule 6(a) of the Rules Governing § 2254 Cases, provides:
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his [or her] discretion and for good cause shown grants leave to do so, but not otherwise.Id. (quoting Rule 6(a) of the Rules Governing § 2254 Cases). “The Court may, in its discretion, deny discovery where the petitioner provides no specific evidence that the requested discovery would support his habeas corpus petition.” Hirschfeld v. Comm'r of Div. of Parole, 215 F.RD. 464, 465 (S.D.N.Y. 2003) (denying request for depositions where petitioner failed to show good cause).
In addition, the relevant standard for determine whether a habeas corpus petitioner is entitled to an evidentiary hearing is as follows:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (emphasis added).Thus, an “application for an evidentiary hearing may be granted only in two circumstances: “‘1) where § 2254(e)(2)'s provisions do not apply to the claim because the petitioner did not fail to develop the factual basis of the claim in the state court proceedings, or 2) where the petitioner's claim falls under one of the two exceptions to § 2254(e)(2).'” Ruine v. Walsh, No. 00 CIV. 3798 (RWS), 2005 WL 1668855, at *3 (S.D.N.Y. July 14, 2005) (quoting Millan v. Keane, No. 97 Civ. 3874 (JGK), 1999 WL 178790, at *7 (S.D.N.Y. Mar. 31, 1999) and collecting cases). “The Supreme Court has made clear, however, that ‘a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.'” Savinon v. Mazucca, No. 04 Civ. 1589 (RMB) (GWG), 2005 WL 2548032, at *38 (S.D.N.Y. Oct. 12, 2005) (quoting Williams, 529 U.S. at 432), adopted by, 2006 WL 2669331 (S.D.N.Y. Sept. 18, 2006), aff'd, 318 Fed.Appx. 41 (2d Cir. 2009). “Even if a petitioner meets the requirements of 28 U.S.C. § 2254(e)(2), whether that petitioner ought to be afforded an evidentiary hearing remains an issue committed to the district court's sound discretion.” Ruine, 2005 WL 1668855, at *3.
Fulton misplaces his reliance on Gonzalez v. U.S., Nos. 12 Civ. 5226 (JLR) (JLC), 94 Cr. 134 (JSR), 2013 WL 2350434, at *3 (S.D.N.Y. May 23, 2013) (ECF No. 42 at 20), in which the court quoted the standard for holding evidentiary hearings for petitions under 28 U.S.C. § 2255, not § 2254.
Fulton requested a hearing in the First 440.10 Motion and the Second 440.10 Motion. (ECF Nos. 40-2 at 200; 40-4 at 19). As previously noted (see, § II.B.1.e n.9, supra), the Third 440.10 Motion does not appear in the Record, but I will presume that Fulton included a request for a hearing in that motion, as he had in the previous two. Therefore, the bar in § 2254(e)(2) does not preclude an evidentiary hearing. “That does not mean, however, that [Fulton] is ‘entitled to an evidentiary hearing-only that he may be.'” Savinon, 2005 WL 2548032, at *39 (quoting McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998)); see Ruine, 2005 WL 1668855, at *3 (explaining that “a petitioner whose claim is not precluded by 28 U.S.C. § 2254(e)(2) is not presumptively entitled to an evidentiary hearing”). Fulton “‘must still persuade the district court' that he is entitled to an evidentiary hearing.” Savinon, 2005 WL 2548032, at *39 (quoting McDonald, 139 F.3d at 1060). Thus, under the pre-AEDPA standard, “the decision whether to hold a hearing ‘is committed to the district court's discretion pursuant to Rule 8.'” Savinon, 2005 WL 2548032, at *39 (quoting McDonald, 139 F.3d at 1060); see Ruine, 2005 WL 1668855, at *3 (explaining that “whether that petitioner ought to be afforded an evidentiary hearing remains an issue committed to the district court's sound discretion”).
As noted throughout this decision, I have reviewed the entirety of the Record, including all the exhibits Fulton submitted in the state court proceedings and in support of his claims in the Petition. (ECF Nos. 14-1 - 14-6; 40-2 at 195-251; 40-3 at 1-58, 76-85; 40-4 at 8-29, 81-100; 404 at 115-18). The Record also contains the transcripts of the arraignments, the Mapp/Dunaway Hearing, the Plea, several other pretrial proceedings including Justice Solomon's discussion of the Pro Se Motion, and the Sentencing. (ECF Nos. 40-1 at 22-23, 25, 116-19; 40-2 at 1-7, 62; 40-6 at 7-10, 12-31, 69-71, 74-76, 78-81, 86-100). In reviewing each of Fulton's claims, I have liberally construed his allegations and, even where a claim appeared to be exhausted or procedurally barred, have considered the merits of his claims. In each instance, I have found that Fulton's claims lack merit and do not provide grounds for habeas corpus relief. Indeed, few if any of the facts underlying Fulton's claims are in dispute; those that Fulton disputes I have found are contradicted by the documentary Record. (See §§ IV.A.2, IV.B.2, IV.C.3.a, supra). Under these circumstances, I find that Fulton has not shown good cause to permit discovery and that an evidentiary hearing is unnecessary. See Channer v. Brooks, 320 F.3d 188, 199-200 (2d Cir. 2003) (finding that district court did not abuse its discretion in declining to hold evidentiary hearing where additional photographic evidence would not have rendered state court decision contrary to nor an unreasonable application of Supreme Court precedent); Savinon, 2005 WL 2548032, at *39 (collecting cases in which courts denied discovery or evidentiary hearings where material facts were undisputed); Ruine, 2005 WL 1668855, at *6-7 (denying various requests for discovery and for an evidentiary hearing); Charles v. Artuz, 21 F.Supp.2d 168, 169-70 (E.D.N.Y. 1998) (denying petitioner's request for “discovery of various materials relating to his state court conviction” apart from transcripts, briefs, and leave applications).
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that each of Fulton's claims in the Petition be DENIED. I also respectfully recommend that Fulton's requests for discovery and an evidentiary hearing be DENIED.
Respondent shall promptly serve a copy of this Report and Recommendation on Fulton, and file proof of service on the docket by Thursday, November 3, 2022.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to Fulton.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Fulton does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.