Opinion
16 Civ. 8743 (NSR) (AEK)
11-01-2022
KAYODE OSENI, Petitioner, v. WILLIAM S. MAHONEY, SENIOR PAROLE OFFICER, NYS DOCCS COMMUNITY SUPERVISION, Respondent.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE United States Magistrate Judge
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
This matter originally was referred to the Honorable Lisa Margaret Smith on January 10, 2017. ECF No. 6. It was reassigned to the undersigned on October 15, 2020.
Currently before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by pro se Petitioner Kayode Oseni (“Petitioner”), challenging his judgment of conviction for the crime of robbery in the first degree. ECF No. 1 (“Petition”) ¶ 5; ECF No. 9 (Affidavit in Opposition to Petition (“Resp. Aff.”)) at 1. The Petition sets forth two purported grounds for habeas relief: (1) ineffective assistance of trial counsel; and (2) ineffective assistance of appellate counsel. Petition ¶ 12
For the reasons that follow, I respectfully recommend that the Petition be DENIED in its entirety.
BACKGROUND
I. The Crime
As summarized by Respondent and as Petitioner stated during his plea allocution proceeding, on the evening of January 21, 2009, Petitioner aided, abetted, and acted in concert with two other men-Kamaal Burrowes and Zahquan Goode-to steal property from a Blockbuster Video store in Eastchester, New York, while armed with a deadly weapon, namely, a loaded 22-caliber semiautomatic handgun. Resp. Aff. at 2; Resp. Ex. 4 (“Plea Tr.”) at 13.Petitioner was 18 years old at the time. Resp. Aff. at 2.
Citations to “Resp. Ex. ” refer to exhibits attached to Respondent's Memorandum of Law, which are part of the state court record from Petitioner's criminal case. ECF No. 10.
After Petitioner, Burrowes, and Goode fled the scene, Eastchester Police Officer Jorge Lage responded to a 911 call about the armed robbery and ultimately stopped the vehicle in which the three men had fled. Id. Petitioner, Burrowes, and Goode were arrested; among the items recovered from the vehicle were money and a camera that had been taken from the store, as well as two ski masks and a loaded semiautomatic handgun. Id.
II. Procedural History
On January 22, 2009, in a felony complaint filed with the Town of Eastchester Town Court, Petitioner was charged with robbery in the first degree, in violation of N.Y. Penal Law § 160.15(2). Resp. Aff. at 3. That same day he was arraigned on the complaint. Id. On February 3, 2009, Petitioner appeared in the Town of Eastchester Town Court with his attorney, Joanna Otaiza, for a felony hearing. Id.; see Resp. Ex. 2 (transcript of felony hearing). The Town Court concluded that the People presented sufficient evidence of reasonable cause to believe that Petitioner committed a felony, and Petitioner was held for action of the grand jury. Resp. Aff. at 4; Resp. Ex. 2 at 36-37. At the end of the felony hearing, because of Petitioner's age and lack of prior criminal record, Ms. Otaiza requested that the Town Court relocate him from the Westchester County jail to a youth shelter, but the court denied that request. Resp. Ex. 2 at 3844.
By Westchester County Indictment Number 09-0210-02, Petitioner was charged with aiding, abetting, and acting in concert with Burrowes and Goode in committing the crimes of robbery in the first degree (N.Y. Penal Law §§ 160.15(2),(4)) (two counts); robbery in the second degree (N.Y. Penal Law § 160.10(1)); criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03(1)(b)); and criminal possession of stolen property in the fifth degree (N.Y. Penal Law § 165.40). Resp. Ex. 3. On April 2, 2009, Petitioner appeared with his counsel in Supreme Court, Westchester County, where he was arraigned on the indictment and pled not guilty. Resp. Aff. at 4. Petitioner subsequently filed a motion for omnibus relief, which led the court to order that certain pre-trial hearings be held. Id. at 5. A Mapp/Dunaway hearing took place on March 22, 2010 and March 31, 2010, after which the court denied Petitioner's motion to suppress. See ECF No. 13 (“Pet. Reply Attachment 5”).
“A Mapp/Dunaway hearing refers to a hearing used to decide whether evidence was obtained through violation of a defendant's Fourth Amendment right to be free of unreasonable search and seizures, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and whether probable cause existed for an arrest, see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).” Kirk v. Burge, 646 F.Supp.2d 534, 540 n.2 (S.D.N.Y. 2009).
On March 23, 2010, Goode pled guilty to robbery in the first degree and criminal possession of a weapon in the second degree, and was sentenced on May 14, 2010 to concurrent determinate terms of imprisonment of seven years with five years of post-release supervision. Resp. Aff. at 6. On April 13, 2010, Burrowes pled guilty to robbery in the first degree, and was sentenced on July 9, 2010 to a determinate term of imprisonment of five years with five years of post-release supervision. Id.
Petitioner pled guilty to one count of robbery in the first degree on April 20, 2010. See generally Plea Tr. At the initial stages of the plea proceedings, immediately after Petitioner swore to tell the truth and stated his name and birth date, the court explained that since Petitioner was not a U.S. citizen, the plea would result in Petitioner's deportation. Id. at 6. Petitioner confirmed that he was aware of this and had “discussed it fully” with his attorney, Ms. Otaiza. Id. at 6-7. Petitioner also stated that he was satisfied with Ms. Otaiza's representation. Id. at 7. Petitioner further confirmed that he understood that as a condition of his plea, he was waiving his right to appeal his conviction and sentence to the Appellate Division, Second Department, and that he had discussed this waiver with his attorney. Id. at 12. Thereafter, Petitioner again confirmed that he understood that his guilty plea could result in his deportation from the United States. Id. at 13. Petitioner told the court that he had reviewed the written waiver of appeal with his attorney, that he understood it, and that he understood that in signing the waiver of appeal, he agreed to give up any appeal “that has anything to do with this case, except for matters relating to the legality of the sentence, the length of the sentence, or a constitutional issue.” Id. at 14.
On June 18, 2010, Petitioner appeared in Supreme Court, Westchester County for sentencing, and was sentenced to a determinate term of imprisonment of five years and three years of post-release supervision. Resp. Ex. 5.
On July 30, 2012, Petitioner, proceeding through counsel, directly appealed his judgment of conviction. Resp. Ex. 6. Petitioner's brief on appeal raised three arguments: (1) Petitioner's waiver of appeal was unenforceable because his guilty plea was illegal and the waiver was “unknowing, involuntary, and unintelligent”; (2) Petitioner's guilty plea was not voluntary, knowing, and intelligent because neither the prosecutor nor the trial court told Petitioner about the minimum sentence he faced if convicted; and (3) the trial court erred in denying the suppression of physical evidence that was found as the result of a warrantless search. Id.
The Appellate Division, Second Department affirmed Petitioner's conviction on June 12, 2013, concluding that the record demonstrated that Petitioner “knowingly, voluntarily, and intelligently waived his right to appeal,” and that this valid waiver precluded appellate review of Petitioner's challenge to the suppression determination. People v. Oseni, 107 A.D.3d 829 (2d Dep't 2013). In addition, the Second Department noted that Petitioner's contention that his guilty plea was not knowingly, voluntarily, and intelligently entered was not preserved for appellate review, and in any event was without merit. Id. Petitioner thereafter filed an application for leave to appeal to the New York Court of Appeals, Resp. Exs. 10-12, but leave to appeal was denied on August 28, 2013, People v. Oseni, 21 N.Y.3d 1044 (2013).
On January 8, 2014, Petitioner filed a petition for a writ of error coram nobis with the Appellate Division, Second Department. Resp. Ex. 14. In the coram nobis petition, Petitioner argued that he was denied the effective assistance of appellate counsel because appellate counsel failed to file a suborning of perjury claim against the prosecutor based on the “materially false” testimony of one of the police officers during the suppression hearing. Id. at 19-20 (affidavit in support), 23-28 (memorandum of law). The Appellate Division, Second Department denied the coram nobis petition on June 25, 2014, People v. Oseni, 118 A.D.3d 1028 (2d Dep't 2014), and leave to appeal was denied by the New York Court of Appeals on March 10, 2015, People v. Oseni, 25 N.Y.3d 952 (2015).
Page citations are to the page numbers generated by the Court's Electronic Case Filing system (“ECF”).
On August 19, 2015, Petitioner filed a motion to vacate his judgment of conviction pursuant to N.Y. Criminal Procedure Law (“C.P.L.”) § 440.10. Resp. Ex. 19. In the motion, Petitioner claimed that he was denied the effective assistance of trial counsel because his counsel both misadvised him about the immigration consequences of his guilty plea and failed to request a Youthful Offender (“YO”) adjudication on the record in the trial court. Id. at 16-26 (memorandum of law in support).According to Petitioner, this caused him to “involuntarily, unknowingly and unintelligently plead guilty to an offense that yielded seriously adverse immigration consequences . . .” Id. at 25.
Page citations are to the page numbers generated by ECF.
“New York YO adjudications are not considered criminal convictions for purposes of immigration law.” People v. Richards, 177 A.D.3d 469, 470 (1st Dep't 2019) (citing Wallace v. Gonzales, 463 F.3d 135, 138-39, 138 n.3 (2d Cir. 2006)).
The Supreme Court, Westchester County issued a decision and order denying Petitioner's § 440.10 motion on February 9, 2016. Resp. Ex. 22 (“440.10 Op.”). The § 440.10 court determined that Petitioner “was unequivocally and correctly told that his conviction would result in his deportation”; that Petitioner “acknowledged that he understood that he would be deported and asked to proceed with his guilty plea”; and that the issue of deportation was “fully explored on the record and provides no basis for relief under C.P.L. § 440.10.” 440.10 Op. at 2-3. The § 440.10 court also concluded that defense counsel's failure to request YO treatment on the record did not constitute ineffective assistance of counsel because defense counsel “negotiated an extremely favorable plea,” including a reduction in the plea offer from a prison term of seven years to a prison term of five years. Id. at 4-5. In addition, the § 440.10 court found that it was “clear from the affidavit submitted by defense counsel and by the record of the proceedings, that neither the Court nor the District Attorney were amenable to a youthful offender adjudication.” Id. at 5.
On June 7, 2016, the Appellate Division, Second Department denied Petitioner's application for leave to appeal the denial of his § 440.10 motion. Resp. Aff. at 15. Petitioner filed the instant Petition on November 7, 2016, ECF No. 1, Respondent filed opposition papers on April 7, 2017, ECF Nos. 9-10, and Petitioner filed his reply papers on June 19, 2017, ECF No. 13.
The Court notes that Petitioner and his wife filed a series of submissions in subsequent years noting recent positive developments in Petitioner's life-including academic accomplishments, employment, and community service work-and attesting to Petitioner's character. See ECF No. 16 (filed Mar. 1, 2018); ECF No. 18 (filed June 21, 2018); ECF No. 19 (filed Nov. 21, 2018); ECF No. 20 (filed Mar. 25, 2019). While the Court has reviewed these submissions, and while it appears that Petitioner has made commendable progress in various areas in his life, none of these filings are relevant to the Court's consideration of the legal issues presented in this habeas petition.
DISCUSSION
I. Standard of Review
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” only if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court must then determine the appropriate standard of review applicable to the petitioner's claims in accordance with 28 U.S.C. § 2254(d).
Generally, a state prisoner has one year from the date his or her conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending ....” 28 U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled if a petitioner can show that “extraordinary circumstances prevented him [or her] from filing his [or her] petition on time,” and the petitioner “acted with reasonable diligence throughout the period he [or she] seeks to toll.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
Under AEDPA, all state court remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). In the interests of comity and expeditious federal review, “[s]tates should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” See Coleman v. Thompson, 501 U.S. 722, 731 (1991); see also Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 190-91 (2d Cir. 1982).
Even where a timely and exhausted habeas claim is raised, comity and federalism demand that a federal court abstain from review when the last-reasoned state court opinion to address the claim relied upon an “adequate and independent finding of a procedural default” to deny it. Harris v. Reed, 489 U.S. 255, 262 (1989); see also Coleman, 501 U.S. at 730; Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A state court decision is “independent” when it “fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision is “adequate” if it is “‘firmly established and regularly followed' by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
Provided a claim meets all procedural requirements, the federal court must apply AEDPA's deferential standard of review when a state court has decided a claim on the merits. See Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003). Under AEDPA,
[a]n 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 state court decision is “contrary to” clearly established Supreme Court precedent “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.'” Torres, 340 F.3d at 68 (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “[A]n ‘unreasonable application' of ‘clearly established' Supreme Court precedent occurs when a state court ‘identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413). While
it is clear that the question is whether the state court's application of clearly established federal law was objectively unreasonable, the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones is less clear. However, it is well-established in [the Second Circuit] that the objectively unreasonable standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.Id. at 68-69 (cleaned up).
Under the second prong of § 2254(d), the factual findings of state courts are presumed to be correct. Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
II. Threshold Determinations
A. Timeliness
The New York Court of Appeals denied Petitioner's application for leave to appeal the denial of his direct appeal on August 28, 2013. Because Petitioner did not file a petition for a writ of certiorari seeking review of the New York State court decisions in the United States Supreme Court, his conviction became final on November 26, 2013, 90 days after the order denying his application for leave to appeal to the New York Court of Appeals. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003). Accordingly, Petitioner had until November 26, 2014 to file his habeas petition based on the date his direct appellate review was completed. The one-year clock ran until January 8, 2014, when Petitioner filed his coram nobis petition, at which point his habeas limitations period was tolled pursuant to 28 U.S.C. § 2244(d)(2). The clock started again after the New York Court of Appeals denied leave to appeal the Appellate Division, Second Department's denial of the coram nobis petition on March 10, 2015, but was tolled again from August 19, 2015 through June 7, 2016 during the pendency of the § 440.10 motion. Ultimately, due to the various tolling periods, the filing of this action on November 7, 2016 was timely. Respondent does not dispute that the Petition was timely filed.
B. “In Custody” Requirement and Mootness
Though Respondent did not raise any challenge with respect to jurisdiction in this matter, the Court has conducted an independent review of this question and has concluded that it has jurisdiction over this habeas proceeding. First, Petitioner was “in custody” at the time that he filed the Petition, and second, the Petition is not moot, given that Petitioner faces collateral consequences, including the possibility of deportation, as a result of his conviction.
“A district court may not entertain a petition for a writ of habeas corpus seeking review of a state court judgment unless the petitioner satisfies the jurisdictional ‘in custody' requirement of 28 U.S.C. § 2254.” Harvey v. People of the City of New York, 435 F.Supp.2d 175, 177 (E.D.N.Y. 2006); see 28 U.S.C. § 2254(a). “To do this, the petitioner must be in custody pursuant to the challenged judgment when the petition for collateral review is filed.” Harvey, 435 F.Supp.2d at 177 . “Physical confinement is not necessary to satisfy the ‘in custody' requirement; a petitioner who is on parole or serving a term of supervised release is ‘in custody' for the purposes of the federal habeas corpus statutes.” Id. Having been sentenced to a term of five years in prison followed by three years of post-release supervision, Petitioner was on parole when he filed his Petition on November 7, 2016. See DOCCS Incarcerated Lookup, Kayode Oseni, https://nysdoccslookup.doccs.ny.gov/ (Post Release Supervision Maximum Expiration Date 1/17/2017) (last visited 10/28/2022). Accordingly, Petitioner was “in custody” for purposes of 28 U.S.C. § 2254. Harvey, 435 F.Supp.2d at 177; see Byng v. Annucci, No. 18-cv-994 (JKS), 2021 WL 1565189, at *3 (N.D.N.Y. Apr. 21, 2021) (“[A] petitioner serving a term of supervised release is considered ‘in custody' for purposes of 28 U.S.C. § 2254.”); Archbold v. Hessel, No. 08-cv-3898 (SHS) (FM), 2011 WL 2671527, at *9 (S.D.N.Y. June 20, 2011) (“a petitioner . . . despite being on parole, remains ‘in custody' within the meaning of Section 2254”), adopted as modified, 2011 WL 2946169 (S.D.N.Y. July 19, 2011).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases, infra, that are unpublished or only available by electronic database shall be simultaneously delivered to pro se Petitioner along with this Report and Recommendation.
Moreover, despite the fact that Petitioner's term of post-release supervision has now long expired, his Petition is not moot. “In cases where the petitioner challenges the conviction itself, the Supreme Court has been willing to presume the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement even if those collateral consequences are remote and unlikely to occur.” Byng, 2021 WL 1565189, at *3 Id. (quotation marks omitted) (emphasis in original). “This presumption of collateral consequences has been justified on the theory that most criminal convictions do in fact entail adverse collateral legal consequences, including deportation, enhancement of future criminal sentences, and certain civil disabilities such as being barred from holding certain offices, voting in state elections, and serving on a jury.” Id. (quotation marks omitted); see also King v. Coveny, No. 18-cv-2851 (KPF) (OTW), 2022 WL 4952537, at *3 n.1 (S.D.N.Y. Oct. 3, 2022); Cox v. Brandt, No. 10-cv-9175, 2012 WL 2282508, at *7 n.7 (S.D.N.Y. June 15, 2012), adopted by No. 10-cv-9175, ECF No. 24 (S.D.N.Y. July 17, 2012). Accordingly, because Petitioner remains subject to the collateral consequences of his conviction-including, as discussed prominently throughout Petitioner's filings, the impact of the conviction on his immigration status, see, e.g., ECF No. 13 at 9-the Petition has not been mooted by the expiration of his term of post-release supervision.
III. Petitioner's Claims for Habeas Relief
A. Ineffective Assistance of Trial Counsel
Petitioner asserts the same ineffective assistance of trial counsel claim in this habeas proceeding that he asserted in his § 440.10 motion: that his trial counsel “misadvised [him] about immigration” and failed to request YO adjudication on the record, “thus resulting in his involuntary plea.” Petition ¶ 12 (Ground One). As noted above, the § 440.10 court rejected these contentions, finding that Petitioner's claim “that he was misadvised about the immigration consequences of his plea is contradicted by the record before the Court,” 440.10 Op. at 2, and that the claim “that defense counsel's failure to request youthful offender treatment on the record constituted ineffective assistance of counsel” was both “procedurally deficient” under N.Y. C.P.L. §§ 440.30(4)(b) and (d) and lacked merit. 440.10 Op. at 3. Specifically, the § 440.10 court determined that “defense counsel negotiated an extremely favorable plea which substantially reduced [Petitioner's] potential exposure had he been convicted of the charges,” and “neither the Court nor the District Attorney were amenable to a youthful offender adjudication,” as was made clear by “the number of years in prison that the Court was considering [which was] incompatible with a youthful offender adjudication.” 440.10 Op. at 4, 5. Petitioner challenges the state court decision under §§ 2254(d)(1)-(2) as both involving an “unreasonable application of[] clearly established Federal law” and being based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
In order to prevail on a claim of ineffective assistance of counsel, a habeas Petitioner must demonstrate both (1) that counsel's performance was “deficient” in that it fell below an “objective standard of reasonableness,” and (2) that “the deficient performance prejudiced the defense,” i.e., a “reasonable probability” exists that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). However, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
With respect to the performance component of the inquiry, a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. With respect to the prejudice component, the Petitioner must show that “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. When evaluating an ineffective assistance of counsel claim in a habeas petition, a court's review is “doubly deferential” because the court is charged with taking “a highly deferential look at counsel's performance through the deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (cleaned up); see also Jackson, 763 F.3d at 153. “Where a defendant claims that ineffective assistance led him [or her] to accept a plea offer as opposed to proceeding to trial, the defendant will have to show a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.” Anthoulis v. New York, 586 Fed.Appx. 790, 792 (2d Cir. 2014) (cleaned up) (quoting Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012)).
1. Incorrect Advice as to Immigration Consequences of Plea
Petitioner's claim that his trial counsel misadvised him about the immigration consequences of his plea is contradicted by the record, which reflects that Petitioner “was unequivocally and correctly told that his conviction would result in his deportation.” 440.10 Op. at 2. During Petitioner's plea allocution, the following colloquy took place:
THE COURT: Do you understand that in taking this plea, since you are not a citizen, it will result in your deportation or exclusion from admission to the United States, or denial of naturalization as a U.S. citizen; and you may become subject to a final order of deportation issued by the United States Immigration and Naturalization Service [“INS”] and you may be paroled to United States INS at any time subsequent to the commencement of your service; do you understand that?
[PETITIONER]: Yes, your Honor.
THE COURT: You are aware of it?
[PETITIONER]: I am aware of it.
THE COURT: Have you discussed it fully with Ms. Otaiza [trial counsel]?
[PETITIONER]: Yes, we have.
THE COURT: Okay. Are you satisfied with her representation?
[PETITIONER]: Yes, sir.Plea Tr. at 6-7; see also id. at 8-9 (Petitioner acknowledging that he had had “sufficient time to discuss this matter with [his] attorney and to make this decision to plead guilty”; that he was “satisfied with the representation provided by [his] attorney”; and that he had “discussed this matter with members of [his] family”). Petitioner reiterated his understanding of the immigration consequences of his guilty plea later during the plea allocution as follows:
MR. SERVINO [the prosecutor]: And do you understand that if you are not a citizen of the United States, this plea of guilty may result in your deportation and exclusion from the United States?
[PETITIONER]: Yes.Id. at 13.
Moreover, during the plea allocution, the court noted that INS proceedings against Petitioner already were underway. Plea Tr. at 4. In the Petition, Petitioner notes that a few days after his arrest, he was visited at the Westchester County jail by an Immigration and Customs Enforcement agent, who “admonished [Petitioner] to be prepared for immigration court proceedings, if he were to be ‘convicted.'” ECF No. 1-1 (Petition Attachment 1) at 1.
“A trial court may fairly rely upon a petitioner's sworn statements made in open court.” Savinon v. Sears, No. 09-cv-2529 (JPO) (DF), 2011 WL 6979974, at *9 (S.D.N.Y. Dec. 8, 2011) (cleaned up), adopted by 2012 WL 77848 (S.D.N.Y. Jan. 10, 2012); see also United States v. Hernandez, 242 F.3d 110, 114 (2d Cir. 2001) (per curiam) (finding that the claim of ineffective assistance of counsel “fails on the merits because [defendant's] factual assertions regarding his counsel's alleged ineffectiveness simply contradict his sworn statements at the plea allocution”). In light of Petitioner's repeated statements during his plea allocution that he understood the immigration consequences of his plea, as well as his statements that he had discussed it with his counsel and was satisfied with her representation, the § 440.10 court appropriately rejected this aspect of Petitioner's ineffective assistance of trial counsel claim, and its decision was neither an “unreasonable application of[] clearly established Federal law,” nor based on “an unreasonable determination of the facts.” There is no basis to conclude either that Petitioner's counsel's performance was deficient or that Petitioner suffered any prejudice as a result of counsel's conduct.
2. Failure to Request YO Adjudication on the Record
Petitioner's claim that his trial counsel was ineffective for failing to make an on-the-record request for YO adjudication is also without merit. The § 440.10 court initially denied this aspect of the motion as procedurally deficient on the ground that Petitioner failed to provide “sufficient sworn allegations to support his claim,” and instead “ma[de] only bare, conclusory allegations.” 440.10 Op. at 3 (citing N.Y. C.P.L. §§ 440.30(4)(b),(d)). To the extent that the § 440.10 court found that this aspect of Petitioner's claim of ineffective assistance was procedurally deficient under §§ 440.30(4)(b) and (d), “[d]istrict courts in this Circuit are split on the question of whether a state court's denial of a motion pursuant to Section 440.30(4)(b) and (d) procedurally bars a habeas court from reaching the merits of the dismissed claim.” Delgado v. Griffin, No. 16-cv-1313 (ER) (DF), 2020 WL 5752119, at *15 (S.D.N.Y. June 15, 2020) (collecting cases), adopted by 2020 WL 5751600 (S.D.N.Y. Sept. 25, 2020). As the court in Delgado explained,
[a]lthough the Second Circuit has not directly addressed this conflict, it has determined, in a summary order, that a dismissal under a different provision of the same subsection constitutes a merits-based adjudication. Specifically, in Garcia v. Portuondo, the Second Circuit found that, “based upon the plain language of the statute,” a decision based on Section 440.30(4)(c), which permits a state trial court to dismiss a Section 440.10 motion without a hearing if “[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof,” N.Y. C.P.L. § 440.30(4)(c), is a decision on the merits. Garcia, 104 Fed.Appx. 776, 779 (2d Cir. 2004) (summary order).2020 WL 5752119, at *16. The Second Circuit based its determination on “the fact that [§ 440.30(4)(c)] opens with an explicit reference to ‘considering the merits of the motion,'” as well the fact that it “implicitly requires a balancing of the evidence presented by the parties . . .” Garcia, 104 Fed.Appx. at 779. The portion of the Second Circuit's analysis of § 440.30(4)(c) that refers to the opening reference to “considering the merits of the motion” is equally applicable §§ 440.30(4)(b) and (d), which open with the same reference; and the portion that refers to “a balancing of the evidence” applies at least to § 440.30(d), which also requires a consideration and balancing of evidence. Accordingly, this Court concludes that Appellate Division, Second Department's denial of Petitioner's § 440.10 motion pursuant §§ 440.30(4)(b) and (d) should be considered a decision on the merits for purposes of habeas review. Accord Delgado, 2020 WL 5752119, at *16. Moreover, the state court addressed the merits of this aspect of Petitioner's ineffective assistance claim and denied it on that basis as well. 440.10 Op. at 3-6. Because the state court adjudicated this aspect of Petitioner's ineffective assistance of trial counsel claim on the merits, this Court must resolve whether that determination was an “unreasonable application of[] clearly established Federal law,” or 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)(1)-(2).
The relevant subsections of § 440.30(4) provide as follows:
4. Upon considering the merits of the [§ 440.10] motion, the court may deny it without conducting a hearing if . . .
(b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or
(c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof; or
(d) An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.N.Y. C.P.L. §§ 440.30(4)(b)-(d) (emphasis added).
Here, Petitioner fails to show that his trial counsel's failure to request a YO adjudication on the record amounted to a deficient performance, and also fails to show that he was prejudiced by his trial counsel's actions. In deciding Petitioner's motion, the § 440.10 court found that “a review of the record indicates that defense counsel negotiated an extremely favorable plea which substantially reduced defendant's potential exposure had he been convicted of the charges.” 440.10 Op. at 4. The court noted that if Petitioner had gone to trial, he would have faced a maximum prison term of 25 years, and that his defense counsel negotiated a reduction in the plea offer from seven years to five years imprisonment. Id. at 4-5. The court stated that “[w]hether counsel was ineffective for failing to request youthful offender adjudication on the record must be judged in the context of the case and not as an isolated event.” Id. at 5.
The § 440.10 court furthermore held that “[a] defendant is not denied the effective assistance of counsel by counsel's failure to seek youthful offender treatment on the record, and to negotiate a plea involving a promise of a lesser sentence in order to reduce the defendant's sentencing exposure.” Id. Rather, citing Strickland, the court explained that Petitioner had to “overcome the legal presumption that counsel's performance falls within the wide range of reasonable professional competence.” Id. Otherwise, “it will be presumed that counsel acted in a competent manner and exercised professional judgment.” Id. (quotation marks omitted).
The § 440.10 court found that “it is clear from the affidavit submitted by defense counsel and by the record of the proceedings, that neither the Court nor the District Attorney were amenable to a youthful offender adjudication.” Id. Specifically, the affirmation submitted to the § 440.10 court by Ms. Otaiza noted that when she appeared at court conferences, she “asked for Youthful Offender treatment,” but “[t]he Court indicated it would not grant Youthful Offender treatment in this matter. For any plea offer from the District Attorney's Office, no Youthful Offender treatment was part of the bargain.” Resp. Ex. 1 ¶ 4. Ms. Otaiza further explained that “[s]ince Youthful Offender treatment was not possible, and given the strength of the People's case, the strategy shifted to attempting to reduce the term of incarceration the defendant was facing.” Id. ¶ 5.
In his habeas reply brief, Petitioner attempts to find fault with the § 440.10 court for citing to “People v. Session, 34 N.Y.2d 254 (1974) to disapprove of Mr. Oseni's claims, while relying on the record and defense counsel's affidavit.” ECF No. 13 at 8. Petitioner contends that the court in Session “established that the use of a district attorney or a defense counsel's affidavit ‘are not documentary evidence.'” Id. But Session does not stand for the proposition that an affidavit from defense counsel cannot be used for any purpose; rather, Session addressed the issue of what evidence a defendant would need to provide to support a court granting an evidentiary hearing on a motion to vacate a judgment of conviction. 34 N.Y.2d at 255 (“On this appeal from the denial of coram nobis relief, we are called upon to consider whether allegations contained in defendant Josh Session's petition and supporting affidavits are sufficient to require a hearing.”). The court in Session stated only that affidavits from a prosecutor or defense counsel were not documentary evidence that would bar the defendant from having a hearing on his or her motion to vacate a judgment of conviction once the defendant had carried his or her evidentiary burden to prove entitlement to the hearing. Id. at 256 (“[O]nce the submission of evidentiary facts creates an issue as to the validity of the judgment, the defendant is entitled to a hearing to determine the truth of his [or her] allegations, unless his [or her] claim has been conclusively refuted by documentary evidence.”). In Petitioner's § 440.10 proceeding, the court found that Petitioner had not satisfied his evidentiary burden to prove entitlement to a hearing, and also denied Petitioner's claims on the merits. See § 440.10 Op. at 3-6.
The § 440.10 court further explained that “the number of years in prison that the Court was considering were incompatible with a youthful offender adjudication,” which would have required a maximum sentence of four years in prison. Indeed, the District Attorney continued to advocate for a seven-year sentence for Petitioner, and the trial court incrementally raised different sentencing possibilities in the event of a plea, but never suggested a sentence below the five-year statutory mandatory minimum custodial term. Plea Tr. at 4-5 (trial court noted its prior offer of six-year sentence and its change to offer of five years) & 7 (prosecution recommended seven years); Resp. Ex. 5 (Sentencing Transcript) at 2-3 (imposing sentence of five years in prison, three years of post-release supervision). As described by the § 440.10 court, “[t]he parties were all aware of the sentencing parameters and must be presumed to have known that a youthful offender could not be sentenced to [a] five (5) year term.” 440.10 Op. at 5-6. The court determined that “[t]his is clear evidence that the court considered and rejected youthful offender adjudication for the defendant.” Id. at 6. Petitioner has not presented any “clear and convincing evidence” to rebut the presumptive correctness of the § 440.10 court's factual findings. 28 U.S.C. § 2254(e)(1).
Similarly, Petitioner has failed to present any clear and convincing evidence to rebut the presumptive correctness of the § 440.10 court's finding that Petitioner made only “bare, conclusory allegations” to support his ineffective assistance of counsel claims.
Although Petitioner faults his counsel for not requesting YO adjudication “on the record,” the court would have been under no obligation-particularly given the full context of the proceedings in Petitioner's criminal case-to grant him YO treatment even if his counsel had made such a request. Under the New York C.P.L., “a person charged with a crime alleged to have been committed when he [or she] was at least sixteen years old and less than nineteen years old” is a “youth,” N.Y. C.P.L. § 720.10(1), and in Petitioner's case, the trial court would have first had to determine whether Petitioner qualified as an “eligible youth,” i.e., “a youth who is eligible to be found a youthful offender,” N.Y. C.P.L. § 720.10(2). “[A] youth who has been convicted of an armed felony offense”-the type of charge that Petitioner was facing-is an “eligible youth” “if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution.” N.Y. C.P.L. § 720.10(3) (emphasis added). If the trial court had determined that Petitioner was an “eligible youth,” then, “[u]pon conviction of an eligible youth, . . . at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.” N.Y. C.P.L. § 720.20(1) (emphasis added).
“The decision whether to grant youthful offender status to an eligible youth generally lies within the sound discretion of the sentencing court. The granting or denial of youthful offender treatment is analogous to that of sentencing where courts have wide discretion even though there are few or no statutory guidelines for the exercise of such discretion.” Fabian-Poma v. McAuliffe, No. 20-cv-2583 (GRB), 2021 WL 4480488, at *2 n.4 (E.D.N.Y. Sept. 30, 2021) (cleaned up); see U.S. ex rel. Frasier v. Casscles, 531 F.2d 645, 647 (2d Cir. 1976). Therefore, even if Petitioner's trial counsel had made an on-the-record request, it cannot be said that the trial court would have either found that Petitioner was an “eligible youth” or determined that Petitioner should be granted YO status-particularly given the evidence that the court previously had indicated an unwillingness to do so. Moreover, “[i]t is well established that the United States Constitution grants no independent due process right either to youthful offender treatment or to any particular procedure for denying it, so long as the trial judge imposed a sentence that was lawful under state law....” Fabian-Poma, 2021 WL 4480488, at *2 n.4 (quotation marks omitted). Petitioner's sentence was lawful under state law, and Petitioner makes no argument to the contrary. Although Petitioner cites People v. Rudolph, 21 N.Y.3d 497 (2013), in which the New York Court of Appeals held that whenever a defendant is eligible for YO treatment under C.P.L. § 720.20(1), the sentencing court must make a determination on the record about YO status, that case provides no basis for habeas relief, since the substantive determination of YO status by the sentencing court presents “solely an issue of state law . . . and therefore [is] not cognizable on federal habeas review.” Willock v. Martuscello, No. 17-cv-454 (KAM) (LB), 2020 WL 2748031, at *11 (E.D.N.Y. May 27, 2020); Concepcion v. Martuscello, No. 16-cv-5918 (LAP) (GWG), 2017 WL 4536087, at *10 (S.D.N.Y. Oct. 11, 2017), adopted by 2018 WL 4283736 (S.D.N.Y. Sept. 7, 2018).
Furthermore, the record presented in this habeas proceeding reflects the strength of the evidence against Petitioner: within minutes after the commission of an armed robbery at a Blockbuster Video store, Petitioner was ordered out of the vehicle that fled the scene-a vehicle in which the proceeds of the crime and the gun were found-and taken into custody. In addition, Petitioner's co-defendants had already pled guilty by the time Petitioner decided to enter his guilty plea. “The Second Circuit has suggested that when the evidence of a defendant's guilt is overwhelming, the burden of demonstrating prejudice to satisfy the second Strickland prong is virtually insurmountable.” Lopez v. Artus, No. 03-cv-7087 (RJH), 2005 WL 957341, at *11 (S.D.N.Y. Apr. 25, 2005).
Finally, in pleading guilty, Petitioner received the minimum sentence permitted for a conviction of robbery in the first degree, a class B violent felony. See N.Y. Penal Law §§ 160.15(2), 70.02(1)(a), 70.02(3)(a) (the term of sentence for a class B felony “must be at least five years and must not exceed twenty-five years”).
Accordingly, Petitioner cannot establish that he was prejudiced by his counsel's failure to request a YO adjudication on the record, as there is no “reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Anthoulis, 586 Fed.Appx. at 792; see Harris v. Sheahan, No. 13-cv-950 (MAT), 2017 WL 604441, at *3 (W.D.N.Y. Feb. 15, 2017) (“Even assuming that Petitioner's sentencing counsel's failure to formally request youthful offender status was constitutionally deficient, he does not establish that he suffered prejudice as a result. Here, he availed himself of an advantageous plea . . .”); Craft v. Kirkpatrick, No. 10-cv-6049 (MAT), 2011 WL 2622402, at *7 (W.D.N.Y. July 5, 2011) (Petitioner “failed to demonstrate how any statements by his attorney on this point would have resulted in a different outcome” where the attorney failed to request YO status at sentencing but the presentence report indicated that he was eligible for it). This is particularly true in this case where, had Petitioner been convicted after trial, it is not only probable that he would have received a longer sentence, but he would have still been subject to deportation. See Feliz v. United States, No. 01-cv-5544 (JFK), 2002 WL 1964347, at *7 (S.D.N.Y. Aug. 22, 2002) (“No prejudice exists when a plea agreement lessens the severity of the sentence the defendant would face if convicted at trial.”).
There is no claim in this habeas proceeding that the state court was unaware of Petitioner's potential eligibility for YO treatment.
The § 440.10 court therefore appropriately rejected this aspect of Petitioner's ineffective assistance of trial counsel claim as well, and its decision was neither an “unreasonable application of[] clearly established Federal law,” nor based on “an unreasonable determination of the facts.”
B. Ineffective Assistance of Appellate Counsel
Petitioner asserts the same ineffective assistance of appellate counsel claim in this habeas petition that he asserted in his petition for a writ of error coram nobis: that appellate counsel failed to file a suborning of perjury claim against the prosecutor based on the “materially false” testimony of one of the police officers during the suppression hearing. Petition ¶ 12 (Ground Two). In deciding his coram nobis petition, the Appellate Division summarily rejected this claim, stating only that “[t]he appellant has failed to establish that he was denied the effective assistance of appellate counsel.” People v. Oseni, 118 A.D.3d. at 1028.
As noted above, under Strickland, a defendant asserting an ineffective assistance of counsel claim must show that (1) his or her lawyer's performance fell below “an objective standard of reasonableness,” and (2) there is a reasonable probability that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 68788, 694. Although formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the Strickland test applies equally to appellate counsel's conduct. Smith v. Robbins, 528 U.S. 259, 285 (2000) (“[T]he proper standard for evaluating [a petitioner's] claim that appellate counsel was ineffective . . . is that enunciated in Strickland[.]”); see also Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying Strickland to a claim of attorney error on appeal).
With regard to claims alleging that appellate counsel was ineffective for failing to raise a particular issue on appeal, a habeas petitioner faces a high burden, as the court is “highly deferential” and “indulge[s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....” Strickland, 466 U.S. at 689. Moreover, though required to “support his [or her] client's appeal to the best of his [or her] ability,” appellate counsel has no duty to advance every non-frivolous argument that could be made; rather, he or she may select from them in order to maximize the likelihood of success on appeal. Jones v. Barnes, 463 U.S. 745, 751-54 (1983) (quotation marks omitted); see also Murray, 477 U.S. at 536 (“This process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”) (quotation marks omitted). Thus to show that appellate counsel's performance was constitutionally inadequate, a petitioner must show that “counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). With regard to the prejudice component of the Strickland test, i.e., whether there is a reasonable probability that the outcome of the proceeding would have been different, “a petitioner must demonstrate that there was a reasonable probability that his [or her] claim would have been successful before the state's highest court.” Id. at 534 (cleaned up).
Petitioner argues in his memorandum of law in support of his Petition (ECF No. 1 at 1640 [“Pet.'s Mem.”]) that his appellate counsel failed to raise on direct appeal the allegedly “selfcontradictory nature of Officer Lage's police report and pre-trial [suppression hearing] testimony,” and the alleged inconsistency between the testimony of Officer Lage and the testimony of his supervisor, Sergeant Groccia. Pet.'s Mem. at 12. However, as pointed out by Petitioner himself, the inconsistencies in Officer Lage's testimony, including its inconsistency with his own police report, were probed on the record during the suppression hearing and/or were made manifest from other evidence presented during the hearing, such as Sergeant Groccia's testimony. Pet.'s Mem. at 14-22. Appropriately, all of this evidence was available to the hearing court for its consideration when it rendered its decision denying Petitioner's motion to suppress.There is therefore no evidence to support Petitioner's suggestion that the suppression hearing decision was based on “materially false” evidence.
In his coram nobis petition, Petitioner also argued that Officer Lage's testimony at the suppression hearing was inconsistent with the 9-1-1 radio dispatch transmission. See generally Resp. Exs. 14 (petition for a writ of error coram nobis) & 16 (reply papers); see also, e.g., Resp. Ex. 16 at 8. The 9-1-1 radio dispatch transmission was also part of the record considered by the hearing court in rendering its decision. See ECF No. 13 (Pet. Reply Attachment 3) at 20-23 (transcript of 911 call) & ECF No. 13 at 37-90, ECF No. 13-1, ECF No. 13-2, ECF No. 13-3 at 1-16 (Pet. Reply Attachment 5) (Mapp hearing transcript) at 43-47, 168.
In Petitioner's direct appeal, the Appellate Division, Second Department rejected his claim that the hearing court erroneously denied his motion to suppress physical evidence based on its finding that Petitioner's waiver of appeal was valid: “Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal. The defendant's valid waiver precludes appellate review of his challenge to the hearing court's suppression determination.” People v. Oseni, 107 A.D.3d at 829 (citations omitted). Indeed, the transcript of the plea allocution makes clear that Petitioner was asked specifically about waiving his appellate rights, and he confirmed that he was doing so knowingly and voluntarily. See Plea Tr. at 12 (“And do you understand that as a condition of this plea, you are waiving your right to appeal your conviction and sentence to the Appellate Division, Second Department? . . . Yes.... In consideration of this negotiated plea, do you now voluntarily waive your right to appeal your conviction and sentence under this indictment? . . . Yes.”). In light of this reasoning by the Appellate Division, there is no basis to believe that even had appellate counsel raised a challenge to the evidence presented to the suppression hearing court, that such would have been successful on direct appeal.
Petitioner argues that the waiver of appeal did not foreclose his challenge to the suppression hearing, since the court informed him during his plea hearing that the waiver of appeal would not bar appeals on “a constitutional issue,” Plea Tr. at 14, and the “subornation of perjury claim is a constitutional issue under the due process of law,” Pet. Reply at 10. Petitioner cites the case of Napue v. Illinois, 360 U.S. 264 (1959), in support of this argument, see Pet. Reply at 11, but there, the Supreme Court stated that “a conviction obtained through use of false evidence . . . must fall under the Fourteenth Amendment . . . when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. at 269. To the extent that the inconsistencies in Officer Lage's suppression hearing testimony could even be deemed false evidence, however, they were not left uncorrected. Rather, as explained above, the inconsistencies in Officer Lage's testimony were all presented to the court and explored on the record during the suppression hearing, and there is no basis to conclude that these inconsistencies were the result of any purported subornation of perjury or that they had any impact on the outcome of the suppression hearing. Again, given that evidence of inconsistencies in Officer Lage's testimony were apparent in the record before the suppression hearing court, there is no reason to conclude that even had appellate counsel raised a challenge to the evidence presented-and even had the Appellate Division, Second Department considered such a challenge-that there was any likelihood of that Petitioner's “subornation of perjury” argument would have been successful at any level of appellate review.
Accordingly, Petitioner cannot establish that his appellate counsel provided ineffective assistance, and the Appellate Division's denial of his ineffective assistance of appellate counsel claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be DENIED in its entirety. As the Petition presents no questions of substance for appellate review, I respectfully recommend that a certificate of probable cause should not issue. See Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam); Alexander v. Harris, 595 F.2d 87, 9091 (2d Cir. 1979). I further respectfully recommend that the Court certify pursuant to 28 U.S.C. § 1915(a) that an appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). 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 responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).