Opinion
16 Civ. 1740 (VB) (PED)
10-23-2018
MICHAEL D'ONOFRIO, Petitioner, v. ANTHONY J. ANNUCCI, Acting Commissioner, New York Department of Corrections and Community Supervision, Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE VINCENT L. BRICCETTI, United States District Judge:
I. INTRODUCTION
On November 7, 2012, petitioner Michael D'Onofrio (a/k/a Michael Donofrio) pled guilty to three counts of burglary in the second degree (N.Y. Penal Law §140.25(2)). His conviction stemmed from an investigation of a burglary ring that targeted homes in Rockland and Westchester counties, On January 9, 2013, petitioner was sentenced to three concurrent prison terms of ten years, to be followed by seven years of post-release supervision.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This petition is before me pursuant to an Order of Reference dated March 22, 2016 (Dkt. #7). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
Although petitioner has been released, "a petition for habeas corpus relief does not necessarily become moot when the petitioner is released from prison. Rather, the matter will remain a live case or controversy if there remains 'some concrete and continuing injury' or 'collateral consequence' resulting from the conviction." Jackson v. Annucci, No. 16 Civ. 1020, 2018 WL 2224988, at *3 (N.D.N.Y. May 15, 2018) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Here, petitioner is presently under a term of post-release supervision and, thus, is suffering "continuous injury." See Hill v. Mance, 598 F. Supp.2d 371, 378 (W.D.N.Y. 2009). Accordingly, the instant habeas Petition is not moot.
Copies of all unpublished cases available only in electronic form cited herein have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
II. BACKGROUND
Unless otherwise indicated, the information in this section is drawn from the instant petition (Dkt. #1), petitioner's affidavit, memorandum of law ("Pl. Mem") and exhibits in support of his petition (Dkt. #5), respondent's Affidavit in Opposition to a Petition for a Writ of Habeas Corpus (Dkt. #12), respondent's Memorandum of Law and Exhibits ("Resp. Mem.") (Dkt. #14) and petitioner's Affidavit in Reply (Dkt. #19).
A. Petitioner's Arrest
Detectives from the Orangetown Police Department identified Michael Maietta as a suspect in burglaries committed in their jurisdiction. Their investigation revealed that Maietta lived at an address in Rockland County, and that a purple Dodge Caravan (with New York license plate number FLA 3341) frequently picked him up at that location. Petitioner was the registered owner of that vehicle.
The information was passed on to detectives from the Clarkstown Police Department, who were investigating burglaries in the Valley Cottage area. They interviewed Maietta, who thereafter abruptly moved out of his apartment, After further investigation, the Clarkstown Police Department issued a bulletin (on September 28, 2011) describing the purple Dodge Caravan and identifying petitioner and Maietta as suspects in the burglary of three Clarkstown residences. On September 30, 2011, the Orangetown Police Department issued a bulletin containing photographs of petitioner and Maietta, identifying them as burglary suspects and describing the purple Dodge Caravan.
The White Plains Police Department ("WPPD") received both bulletins. After further investigation, WPPD issued its own bulletin (on October 13, 2011) which contained photographs of petitioner and Maietta, identified them as burglary suspects and described the purple Dodge Caravan.
On October 21, 2011, WPPD detectives Robbins and Vallely were working overtime (in uniform), directing traffic at a construction site near North Street in White Plains. Detective Robbins saw a purple minivan backed into the driveway of 905 North Street; the driver was on a cell phone. A male exited the building at 905 North Street and got into the passenger side of the van. The van pulled out of the driveway and headed away from the detectives. A short time later, the purple van returned (now headed in the opposite direction), stopped in front of the detectives and asked how long the paving would take. Detective Robbins recognized the driver (petitioner) and his passenger (Maietta) from the WPPD bulletin. Detective Vallely transmitted the purple minivan's plate number to headquarters; headquarters ran the plates through NYSPIN, and informed the detectives that the vehicle was registered to petitioner.
Detective Robbins called his supervisor and told him that he had recognized petitioner, Maietta and the van from the bulletin and that he had confirmed the plate and description of the vehicle. Detective Robbins reported that the vehicle drove northbound on North Street. The supervisor relayed the information to Sergeant Moskalik, the sergeant in charge of the Narcotics and Intelligence Unit.
Around this time, WPPD detectives Douglass and Lee were seated inside an unmarked police vehicle. Detective Douglass overheard the exchange between Vallely and headquarters regarding information about the registered owner of the minivan, and recognized petitioner's name from the bulletins issued by WPPD and the Orangetown Police Department. Detective Douglass called his supervisor (Sergeant Moskalik); Sergeant Moskalik instructed Detective Douglass to go to 905 North Street and investigate a possible burglary.
Detective Douglass (with Lee in the car) headed toward 905 North Street. At about 11:45 a.m., they located the van in front of the White Plains High School (on North Street). Detective Douglass made a u-turn and followed the van from a distance of about four to five car lengths. Petitioner turned right onto Westchester Avenue, entered Interstate 287 (eastbound) and then exited (at exit 9) toward the southbound Hutchinson River Parkway. According to Detective Douglass, he observed petitioner drive through a steady red arrow traffic light and enter the left lane of the southbound parkway, Sergeant Moskalik (who had joined the pursuit and was following behind Detective Douglass's vehicle), instructed Detective Douglass to stop petitioner's vehicle. Both officers activated their lights and sirens and pursued the van.
Petitioner did not pull over; instead, he sped up and weaved in and out of traffic. He exited erratically onto Mamaroneck Avenue, ran a red light, made a u-turn, entered the northbound Hutchinson River Parkway and drove on the right hand shoulder in order to pass vehicles in the right lane. With both officers still in pursuit, petitioner made a left turn (crossing the northbound lanes of the parkway) and entered the on-ramp for a Mobil gas station. Petitioner stopped the vehicle at the end of the ramp, backed up and then moved forward again - colliding with a marked police vehicle (driven by Officer Gallo). As petitioner tried (unsuccessfully) to back up and get around Officer Gallo's vehicle, Maietta jumped out of the van and ran across the parkway into the woods. Detective Douglass followed Maietta but lost sight of him. The driver's side of the van was pinned shut; Sergeant Moskalik helped petitioner out of the passenger side and observed jewelry on the passenger seat. Petitioner was arrested.
Police obtained a search warrant for the van. Upon execution of the warrant, they recovered a cell phone and items reported missing after a burglary at 763 North Street. Police subsequently obtained a search warrant for the cell phone found in the van. B. Indictment and Pretrial Proceedings
By Westchester County Indictment No. 11-1487, petitioner and Maietta were charged, each aiding and abetting the other and acting in concert, with the crimes of, inter alia, second degree burglary (three counts) and third degree grand larceny (three counts). Petitioner was also charged individually with third degree criminal mischief and second degree reckless endangerment. He was arraigned on January 3, 2012 and pled not guilty.
On or about February 20, 2012, petitioner (through counsel) filed an omnibus motion seeking, inter alia, suppression of all recovered evidence on the grounds that the police illegally stopped and searched the vehicle he was driving. By Decision and Order dated April 23, 2012, the County Court (Zambelli, J.) granted petitioner's motion solely to the extent of ordering pretrial hearings. A combined Dunaway/Mapp hearing was held on July 5, 2012. Resp. Mem., Exh. 3. On July 10, 2012, the County Court (Zambelli, J.) denied petitioner's motion to suppress. Exh. 4. C. Petitioner's Guilty Plea
Hereinafter, all citations to "Exh. ___" refer to Respondent's Exhibits.
On November 7, 2012, the day before jury selection was to commence, petitioner appeared with counsel (Mr. Goubeaud) for a final pretrial hearing before Judge Neary (to whom the case had been assigned for trial). Exh. 5. Following some discussion off the record between counsel and the court, petitioner's counsel stated that petitioner wished to plead guilty to three counts of second degree burglary in full satisfaction of the indictment, in exchange for a promised sentence of three concurrent, determinate prison terms of ten years. Id. at 2-3,8. The court asked petitioner whether he was interested in that plea disposition; petitioner responded "Yes, your Honor. I'm scared to death to go to trial. I'm not going to lie." Id. at 4.
Petitioner's counsel asked the court if it would consider issuing a "violent felony override" statement at sentencing. Id. The prosecutor (Ms. Murphy) stated she would not consent; the court stated it would "keep an open mind [as] to what appears in the presentence report" and would listen to defense counsel's arguments, but told him "don't be surprised" if the request is denied at sentencing. Id. at 4-5. Defense counsel stated that he had explained that to petitioner (Id. at 5), which prompted the following exchange:
THE COURT: Do you still want to go ahead?
THE DEFENDANT: Yeah, I just wanted to say I was sitting in the car. I didn't actually do the burglaries. I was sitting in the car.
THE COURT: If you didn't do the burglaries, don't plea. I'm not taking a plea that he says he didn't commit the crime to [sic].
THE DEFENDANT: I'm not saying that --
MR. GOUBEAUD: Judge, I have an aiding, abetting and acting in concert
count. If he was aware of what was going on.
THE DEFENDANT: That's what I mean.
MR. GOUBEAUD: He would be just as guilty, under the terms of the law. His agreement is to the actions that might have been taken at the time, and he will make a presentation to your Honor with regard to that.
MS. MURPHY: Not just that he's aware. The People's position is he's the look out; actively looking out for his codefendant at the time.
THE COURT: I'm not interested in a plea if somebody is going to be using semantics, and playing with words. If you did the crime, and were involved with the other fellow doing the burglaries, own up to. I think it's a pretty good deal if you did the crime.
THE DEFENDANT: I'm not saying I didn't do the crime.
THE COURT: You've been around the system. Don't play games. I don't have the time. You don't have the time.
If you want to take the deal, take it. If you don't want to take the deal, don't take it. Don't be splitting hairs that you were only sitting in the car. I'm not interested that you were just sitting in the car and somebody else did the crime, If you didn't commit a crime, and that's what you are telling me, don't take it.
Understood?
THE DEFENDANT: Understood. No. I took part. I didn't actually go into the house.
THE COURT: If you are the lookout and driving the getaway car --
THE DEFENDANT: That's why I want leniency, and asked you to try to give me the override. Because you know, I didn't actually go in the house. I was aware of what was happening.
MR. GOUBEAUD: Judge, in that regard, we'll make an application.
THE COURT: An override is an uphill battle to get. You understand that?
THE DEFENDANT: Yeah.
THE COURT: All right. If you want to go ahead with the deal, and I understand that's what you want to do?
THE DEFENDANT: Correct.Id. at 5-8. Petitioner was placed under oath and allocuted as follows:
THE COURT: The D.A. will ask you questions now. You've been around long enough to know how that works.
MR. GOUBEAUD: Based on the conference and your Honor's sentencing indication, I would withdraw his previously entered pleas of not guilty and enter a plea of guilty on Mr. Donofrio's behalf, and enter a plea of guilty to counts one, five and eight, to the three counts of burglary in the second degree in full satisfaction of the charges in this indictment, and in full satisfaction to the charges that the District may or may not be aware of from conversations with Mr. [Maietta].
MS. MURPHY: Judge, I can't cover things I may not be aware of. I can cover, obviously, what I am aware of.
THE COURT: Do the People have any intention of pursuing the investigation further? Ia this an ongoing investigation?
MS. MURPHY: No, This would end it.
THE DEFENDANT: Thank you.
MR. GOUBEAUD: Thank you, Judge. With that understanding, I would enter those three guilty pleas to those three counts.
THE COURT: Okay. Mr. Donofrio, the D.A. gets to ask you questions under oath. Answer them honestly.
THE DEFENDANT: No, I will.
THE COURT: If you don't understand the question, don't be embarrassed. Talk to your counsel, and he will explain it to you further.
Okay.
MS. MURPITY: Mr. Donofrio, do you have any problems understanding the English language?
THE DEFENDANT: No.
MS. MURPHY: Did you hear your attorney's application to the Court to
enter pleas of guilty to three counts of burglary in the second degree as contained in indictment number 11-1487?
THE DEFENDANT: Yes, ma'am.
MS. MURPHY: Is that your application here today?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand you have an absolute right to remain silent in the face of the charges against you, and by entering these pleas of guilty you are giving up that right and incriminating yourself?
THE DEFENDANT: Yes, ma'am.
MS. MURPHY: Have you had enough time to discuss this matter with your attorney and to make the decision to plead guilty?
THE DEFENDANT: Yes, I had plenty of time.
MS. MURPHY: Have you been satisfied with the representation given to you by your attorney?
THE DEFENDANT: Yes, he's a very excellent lawyer.
MS. MURPHY: Have you consumed any alcoholic beverages, any medication, or any other drugs which could impair your understanding of what's happening here today?
THE DEFENDANT: No, ma'am.
MS. MURPHY: Do you understand with respect to these charges, you have a right to a jury trial, or to a nonjury trial, with the Court sitting as a trier of fact?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand at such a trial, the People would have to prove every element of a crime beyond a reasonable doubt to secure a conviction of that crime?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand that at such a trial, you would have the right to confront and cross-examine the People's witnesses, to present witnesses on your own behalf, and testify on your own behalf, if you so desired?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand that by your plea of guilty, you are waiving these and other constitutional rights?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand that your plea of guilty is a conviction, just as if you had gone to trial and been found guilty of the crimes of three counts of burglary in the second degree?
THE DEFENDANT: Yes.
MS. MURPHY: Has anyone threatened you, coerced you, or forced you in any way to plead guilty?
THE DEFENDANT: No.
MS. MURPHY: Are you enter [sic] these pleas of guilty freely and voluntarily?
THE DEFENDANT: Yes.
MS. MURPHY: Are you pleading guilty because you are in fact guilty?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand that your [sic] pleading guilty to three Class C violent felonies for which the maximum sentence is 15 years in state prison on each of them?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand if you are again convicted of a felony, your conviction today may subject you to a greater sentence than if you had not been so convicted?
THE DEFENDANT: Yes.
MS. MURPHY: The Court has had a conference with the People and your attorney. Do you understand that Judge Neary indicated to you regarding the sentencing in this matter?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand that should you receive a concurrent sentence on an unrelated conviction, this plea of guilty is an independent conviction, and will not be affected should any other conviction be vacated?
THE DEFENDANT: What's that mean?
MS. MURPHY: Judge, he does have a pending misdemeanor, I believe. If that's still pending --
MR. GOUBEAUD: I believe it's still pending in Mount Pleasant.
MS. MURPHY: For possession of contraband.
MR. GOUBEAUD: I've spoken with his attorney on that one. Presumably, with the understanding that the Court understands that's something pending, that wouldn't impact the sentence.
THE COURT: The other thing is the post release supervision.
MS. MURPHY: It's five years, Judge.
THE COURT: Mr. Donofrio, in addition to the ten years, there will be a five-year post release supervision I have to impose.
THE DEFENDANT: Can I get something less? I'm 49 years old.
THE COURT: That's mandatory. There is no range.
THE DEFENDANT: How many years do I do out of ten?
THE COURT: Talk to your lawyer about that. I don't do calculations. Figure on doing most of it.
MS. MURPHY: And they'll be orders of protection for the victims.
I'm going to ask that question again.
Do you understand that if you receive a concurrent sentence on an unrelated conviction, this plea of guilty is an independent conviction, and will not
be affected, should the other conviction be vacated?Id. at 8-14.
THE DEFENDANT: Yes, ma'am.
MS. MURPHY: Other than what Judge Neary indicated, has anyone made any other promise or representation to you with respect to your guilty plea?
THE DEFENDANT: No, ma'am.
MS. MURPHY: Do you understand that if you commit a new crime before sentencing in this matter or fail to appear at sentencing, the sentence commitment will no longer be binding on the Court?
THE DEFENDANT: Yes, ma'am.
MS. MURPHY: Do you understand as a result of that, you could receive an enhanced or greater sentence, including the maximum sentence and the maximum release supervision on the instant conviction, as well as be sentenced in absentia?
THE DEFENDANT: Yes.
. . .
The prosecution informed petitioner that the People would be filing, before sentencing, a second violent felony statement. Id. at 14-15. As a condition of the negotiated plea, petitioner waived his right to have a hearing to determine whether he was a second violent felony offender, admitted that he was lawfully and constitutionally convicted of the prior crimes, and admitted he was incarcerated during the periods stated by the prosecution. Id. at 15-16. Petitioner's allocution continued:
The prosecution alleged that petitioner had previously been convicted (in April 1994) of the violent crimes of second degree assault, first degree robbery and first degree manslaughter. Exh. 5, at 15.
MS. MURPHY: Do you understand for each of these three burglaries in
the second degree convictions, you will be sentenced as a second violent felony offender?
THE DEFENDANT: Yes, ma'am.
MS. MURPHY: Do you understand as a condition of your plea, you are waiving your right to appeal your conviction and sentence to the Appellate Division, Second Department?
THE DEFENDANT: Yes.
MS. MURPHY: Have you fully discussed this waiver of your right to appeal with your attorney?
THE DEFENDANT: Yes.
MS. MURPHY: In consideration of this negotiated plea, do you now voluntarily waive your right to appeal your conviction and sentence under this indictment?
THE DEFENDANT: Yes.
MS. MURPHY: Mr. Goubeaud, as to you, in further consideration of this negotiated plea, do you now withdraw all the motions made by you, whether pending or decided, including the hearings that have been held in this case and the decision in that case?
MR. GOUBEAUD: Yes, we would withdraw the motions. They were made by prior counsel. We withdraw them.
MS. MURPHY: Do you understand the statements here today may be used against you in other future judicial proceedings, as they are admissions of guilt?
THE DEFENDANT: Yes.
MS. MURPHY: Do you understand 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?
THE DEFENDANT: Yes.
MS. MURPHY: Have you discussed the consequences of this guilty plea on your immigration status with your attorney?
MR. GOUBEAUD: Judge, he is a U.S. citizen.
THE COURT: Thank you.
MS. MURPHY: Thank you.
Do you now plead guilty to the crime contained in count one in indictment 11-1487?
Do you admit, Mr. Donofrio, that in the area of 148 Kimball Avenue, in the City of Yonkers, County of Westchester and State of New York, on or about July 11th, 2011, while aiding and abetting and acting in concert with Michael [Maietta], you did knowingly enter unlawfully in a dwelling with intent to commit a crime therein, and the crime being that property was stolen?
MR. GOUBEAUD: Judge, this is where he will say he was a participant. He acted as a lookout. And just in terms of the phraseology of aiding and abetting, Mr. [Maietta] went in.
MS. MURPHY: If he can't properly answer the question, we're not going to consent.
THE DEFENDANT: Yes.
THE COURT: Tell me what your role in this burglary in Yonkers on July 11, 2011, was?
THE DEFENDANT: I sat in the car, and I was the lookout guy.
THE COURT: Who was driving?
THE DEFENDANT: I was driving. I had a broken leg. I was the lookout.
THE COURT: Mr. [Maietta] robbed the house and burglarized the house, and you intended to help him get away?Id. at 16-19. Petitioner similarly admitted his participation in two additional burglaries: on September 28, 2011 at 40 Greenacres Avenue, Scarsdale (he drove his Dodge Caravan to and from the location with Maietta, served as lookout while Maietta entered the residence to commit a burglary, remained on the phone with Maietta during the burglary to alert him if anyone arrived at the premises, and shared in the proceeds of the burglary); and on October 21, 2011 at 763 North Street, White Plains (he drove Maietta to and from the location, served as lookout while Maietta entered the residence to commit a burglary, remained on the phone with Maietta during the burglary to alert him if anyone came into the area, and would have shared in the proceeds of the burglary had he not been caught). Id. at 20-21.
THE DEFENDANT: Yes.
MS. MURPHY: Did you also, Mr. Donofrio, during that time remain on the phone with Mr. [Maietta], so that you could alert him should anyone come, so he could leave the home?
THE DEFENDANT: Yes.
MS. MURPHY: Did you also benefit from the proceeds from the burglary in the 148 Kimball Avenue home? You shared in the proceeds with Mr. [Maietta], correct?
THE DEFENDANT: Yes, ma'am.
New York law permits a defendant to appeal suppression claims after pleading guilty. See N.Y. C.P.L. § 710.70(2) ("An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty."). "However, a defendant can waive his rights under § 710.70(2). For instance, he can withdraw a suppression motion prior to making a guilty plea, and a court may require the withdrawal of such a motion prior to accepting the plea. In such a situation there is no right of appeal with respect to the claims made on the suppression motion." Thousand v. Conway, No. 08 Civ. 6469, 2010 WL 4823664, at *4 (W.D.N.Y. Nov. 29, 2010) (citing People v. Esajerre, 35 N.Y.2d 463, 323 N.E.2d 175, 363 N.Y.S.2d 931 (1974)). See also Gilliam v. Superintendent, No. 13 Civ. 0788, 2015 WL 114344, at *9 (N.D.N.Y. Jan. 8, 2015).
Petitioner then apologized "for getting caught up with doing the wrong thing" and affirmed that the court should accept his guilty plea. Id. at 21. Judge Neary told petitioner that, in order to secure the promised sentence, he would have to appear for sentencing, cooperate with the probation department and refrain from committing any new crimes. Id. at 21-22. Petitioner agreed to abide by those conditions. Id. at 22. Judge Neary accepted petitioner's guilty plea, finding that it was freely, knowingly and voluntarily entered, and adjourned the case for sentencing on January 9, 2013. Id. at 23. Petitioner stated: "I want to say Miss Murphy did an excellent job, and she got me really scared. She's good at what she does. You can put that on the record." Id. D. Sentencing
On January 9, 2013, petitioner appeared with counsel for sentencing. See Exh. 6. Defense counsel asked the court to impose a lesser sentence than promised (ten years) because petitioner believed, at the time of his plea, that Maietta would receive a harsher sentence when, in fact, Maietta had been sentenced to eight and a half years. Id. at 5. Petitioner explained:
THE DEFENDANT: The thing is I take full responsibility for what I did. I know it's wrong. I should have kept better company. Ten years, I am 49 years old, I just became a grandfather. My granddaughter is over there. That's a long time. I am getting old and I made - I am not going to say mistake - I made bad choices in my life and I am just asking, you know, seven years, that will even hurt me but ten years that's a long, long time to be away from my mother. She is getting old.
THE COURT: This is an arrangement you worked out with the prosecutor.
THE DEFENDANT: The reason I took that -
THE COURT: Without that consent -
THE DEFENDANT: I was thinking he was getting that much time so ten years was a good deal - how does a guy who commits the crime, admits to the crime and gives up his look out driver and look out driver gets more time. It's like that's not fair. I don't think that's fair. I don't want to take my plea back. I feel I would be railroaded because of my past criminal history. I never had a burglary, never convicted of burglary in my life. I had violence on my record. Everything is you know - never been convicted of a burglary ever and that's a lot of time. I feel like I am being sentenced for my past, not for this type of crime. I was look out man. I had no intentions of hurting anyone. If something went back [sic] I would drive away. I manned up like you said, you said "man up to what you did," that's what I did, and that's lot of time. Ten years is a lot, a lot of time.
THE COURT: Also something you agreed to, with the sentencing, we went over - clear what the [. . .]Id. at 9-11. The court imposed three concurrent, determinate prison terms of ten years to be followed by seven years of post-release supervision. Id. at 11. E. Direct Appeal
THE DEFENDANT: What should I do take back my plea and go to trial and end up with 50 years whatever it is for being a look-out man? I am scared. I am afraid to go to trial. I am manning up to what I did.
. . .
THE COURT: I understand your position. I feel it is [the] bargain you agreed to. I don't see any significant reason to change it. We will have to go ahead with the ten-year sentence.
Petitioner (by and through counsel) timely appealed his conviction to the Appellate Division, Second Department on the grounds that: (1) his waiver of appeal was not knowing or voluntary because the trial court failed to adequately distinguish the right to appeal from other rights that are automatically forfeited upon a plea of guilty; (2) the trial court erroneously denied his suppression motion; (3) his guilty plea was not knowing, intelligent or voluntary because the trial court sentenced him to a longer term of post-release supervision than what was promised at the plea; and (4) his sentence was excessive. See Exh. 7, at 24-37. By Decision and Order dated December 17, 2014, the Second Department modified petitioner's judgment of conviction by reducing the period of post-release supervision from seven years to five years with respect to each count and, as so modified, affirmed petitioner's judgment of conviction. People v. Donofrio, 123 A.D.3d 941, 1 N.Y.S.3d 127 (2d Dep't 2014). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his appellate brief. See Exh. 10. The Court of Appeals denied petitioner leave to appeal on April 23, 2015. People v. Donofrio, 25 N.Y.3d 989, 32 N.E.3d 969, 10 N.Y.S.3d 532 (2015). On October 13, 2015, the United States Supreme Court denied petitioner's application for a writ of certiorari. Donofrio v. New York, 136 S. Ct. 326 (2015). F. The Instant Habeas Petition
On February 22, 2016, petitioner timely filed the instant Petition for a Writ of Habeas Corpus in the Northern District of New York. On March 8, 2016, the case was transferred to this Court. Dkt. #4. I have carefully reviewed the instant Petition and all of petitioner's associated submissions, and broadly construe them to assert four grounds as a basis for the requested habeas relief: (1) petitioner's waiver of appeal was not knowing, voluntary or intelligent because the trial court failed to adequately distinguish the right to appeal from other rights that are automatically forfeited upon a plea of guilty; (2) the trial court erroneously denied petitioner's suppression motion; (3) petitioner's guilty plea was not knowing, voluntary or intelligent because (a) he did not fully understand the elements of the crime to which he pled guilty and (b) the trial court impermissibly allowed the People to conduct the plea allocution; and (4) trial counsel was ineffective because he allowed petitioner to enter into a guilty plea conditioned on his waiver of his right to appeal the suppression ruling.
III. APPLICABLE LAW
"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)). "The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). 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 there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review are summarized below. A. Timeliness
The AEDPA established a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction. See 28 U.S.C. § 2244(d)(1). The one-year limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id.
The AEDPA's statute of limitations is tolled during the pendency of a properly filed application for state post-conviction relief, or other collateral review, of a claim raised in the petition. See id. § 2244(d)(2). The one-year limitation period is also subject to equitable tolling, which is warranted when a petitioner has shown "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). "The term 'extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). "To secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline." Id. Additionally, "[c]onsistent with the maxim that equity aids the vigilant, a petitioner seeking equitable tolling of AEDPA's limitations period must demonstrate that he acted with reasonable diligence throughout the period he seeks to toll." Id. at 138 (internal quotation marks and citations omitted); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (A petitioner seeking equitable tolling must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances."). B. Procedural Default
Federal habeas corpus review of a state court's denial of a state prisoner's federal constitutional claim is barred if the state court's decision rests on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional violation, or that he is actually innocent. See Bousley, 523 U.S. at 622; Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also Lee v. Kemna, 534 U.S. 362, 375 (2002); Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002). A procedural ground is "independent" if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." See Harris, 489 U.S. at 263 (internal quotation marks omitted). A procedural bar is "adequate" if it is "based on a rule that is firmly established and regularly followed by the state in question." Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal quotation and citation omitted).
In certain limited circumstances, however, "even firmly established and regularly followed state rules will not foreclose review of a federal claim if the application of the rule in a particular case is 'exorbitant.'" See Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir. 2007) (citing Lee, 534 U.S. at 376). To this end, the Second Circuit has set forth the following "guideposts" for evaluating the adequacy of the state procedural bar in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances":
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee, 534 U.S. at 381-85). C. Exhaustion
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) ("[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 unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(1) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant"); id. § 2254(c) (the petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented"). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have "fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim," and thus "giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). "Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner "apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In doing so, a petitioner need not cite chapter and verse of the Constitution; there are a number of other ways in which a petitioner may fairly apprise the state court of the constitutional nature of his claim, including: "a) reliance on pertinent federal cases employing constitutional analysis, b) reliance on state cases employing constitutional analysis in like fact situations, c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, "[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either "cause for the procedural default and prejudice attributable thereto," Harris v. Reed, 489 U.S. 255, 262 (1989), or "actual innocence," Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
When confronted with a "mixed" petition containing both exhausted and unexhausted claims, a federal court has the following options:
(1) dismiss the entire petition for failure to comply with the exhaustion requirement, 28 U.S.C. § 2254(b)(1)(A); (2) stay the petition and permit the petitioner to exhaust the unexhausted claims in state court, but only where the petitioner has shown good cause for not previously exhausting, and the unexhausted claims are not plainly meritless, see Rhines v. Weber, 544 U.S. 269, 278 (2005); (3) permit the petitioner to delete the unexhausted claims, if neither a stay nor a dismissal of the petition for failure to exhaust is appropriate, see Johnson v. Kirkpatrick, No. 11 Civ. 1089, 2011 U.S. Dist. LEXIS 85049, at *52-
53 (S.D.N.Y. Aug. 3, 2011), report adopted sub nom., Johnson v. New York, 2012 U.S. Dist. LEXIS 4155 (S.D.N.Y. Jan. 12, 2012); or (4) deny the unexhausted claims on the merits, 28 U.S.C. § 2254(b).Sweeper v. Superintendent, No. 14 Civ. 6346, 2017 WL 4516645, at *3 (S.D.N.Y. Sept. 26, 2017). D. Standard of Review
"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). See 28 U.S.C. § 2254(a). When reviewing petitions filed subsequent to the AEDPA's effective date, a federal court may not grant habeas relief unless the petitioner establishes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1), (d)(2). The AEDPA deferential standard of review will be triggered if the petitioner's claim "was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007). "A state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).
A state court's decision is "contrary to" clearly established Federal law if (1) "the state court applies a rule that contradicts the governing law set forth [by the Supreme Court of the United States]" or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [Supreme Court] decisions. And an 'unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even 'clear error' will not suffice." White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). "The critical point is that relief is available under § 2254(d)(1)'s unreasonable application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no 'fairminded disagreement' on the question." Id. at 1706-07 (quoting Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
Finally, under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. §2254(e)(1); see also 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).
IV. ANALYSIS
A. Waiver of Right to Appeal
Petitioner argues that his waiver of his right to appeal was not knowing, voluntary, or intelligent because the trial court did not distinguish the right to appeal from the rights automatically forfeited upon a plea of guilty. Petitioner raised this claim on direct appeal; the Second Department held that petitioner's "valid waiver of his right to appeal precludes appellate review" of his other claims. People v. Donofrio, 123 A.D.3d 941, 942, 1 N.Y.S.3d 127. Although the Second Department did not elaborate on its reasoning underlying its determination that petitioner's waiver was valid, it clearly rejected petitioner's challenge to the validity of the waiver on its merits. The Second Department's decision represents the last-reasoned state court decision to address petitioner's invalid waiver claim. Accordingly, on habeas review, I must determine whether the Appellate Division's decision was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
"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. United States, 431 U.S. 651, 656 (1977)). "It is true that under New York state 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 (Feb. 15, 2017) (internal quotation marks and ellipses omitted) (quoting People v. Lopez, 6 N.Y.3d 248, 256 (2006). To that end, however, "[t]here is no requirement [under New York law] that the trial court engage in any particular litany" when accepting a defendant's waiver of the right to appeal. People v. Ludlow, 42 A.D.3d 941, 942, 840 N.Y.S.2d 859, 860 (2007) (quotation marks and citation omitted). Further, "petitioner does not point to, nor is the Court aware of, any federal precedent standing 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). At bottom, under Federal law, a waiver of the right to appeal will be upheld "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 F. App'x 989, 990 (2d Cir. 2008) (quotation marks and citation omitted). See Belle v. Superintendent, No. 11 Civ. 0657, 2013 WL 992663, at *9 (N.D.N.Y. Mar. 13, 2013) ("It is well settled that appeal waivers set forth in plea agreements are constitutional provided the waiver was knowing, voluntary and intelligent.").
Here, it is clear from the record that petitioner knowingly and voluntarily waived his right to appeal. Toward the beginning of his plea allocution, petitioner affirmed his understanding that, as a consequence of his guilty plea, he was waiving his constitutional rights to a trial, to remain silent, to confront and cross-examine the People's witnesses, to present witnesses and to testify on his own behalf. Petitioner then acknowledged his acceptance of the promised sentence in exchange for his guilty plea, and affirmed his understanding of the circumstances under which the promised sentence would no longer be binding on the court. Next, as a condition of the negotiated plea, petitioner waived his right to have a hearing to determine whether he was a second violent felony offender, admitted that he was lawfully and constitutionally convicted of the prior crimes, and admitted he was incarcerated during the periods stated by the prosecution. Petitioner then acknowledged he would be sentenced as a second violent felony offender. At that point, petitioner affirmed his understanding that, as a condition of his plea, he was waiving his right to appeal his conviction and sentence to the Appellate Division, Second Department. Thus, petitioner's waiver of his right to appeal as a condition of his plea agreement was discussed separately, and was not lumped into the panoply of trial rights automatically forfeited upon pleading guilty. Petitioner further affirmed that he had fully discussed his waiver of his right to appeal with his attorney, and that he voluntarily waived his right to appeal his conviction and sentence in consideration of his negotiated plea. Finally, defense counsel affirmed that he withdrew all motions, including the motion to suppress. In sum, the Appellate Division's decision upholding the validity of petitioner's waiver of appeal was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Accordingly, I conclude and respectfully recommend that petitioner's habeas claim challenging the validity of his appeal waiver is meritless. B. Challenge to the Suppression Ruling
Petitioner seeks habeas relief on the ground that the trial court erroneously denied his suppression motion. He raised this claim on direct appeal; the Second Department held that petitioner's "valid waiver of his right to appeal precludes appellate review" of his challenge to the hearing court's suppression ruling. People v. Donofrio, 123 A.D.3d 941, 942, 1 N.Y.S.3d 127. "Such a ruling-denying appellate review based upon a waiver of the right to appeal-is generally viewed as an adequate and independent state ground for denying habeas relief." Krouth v. Amoia, No. 15 Civ. 6616, 2018 WL 1523627, at *6 (W.D.N.Y. Mar. 28, 2018). See Amin v. Hulihan, No. 10 Civ. 2293, 2016 WL 6068128, at *6 (E.D.N.Y. Oct. 13, 2016) ("Courts in this circuit have consistently held that a petitioner's waiver of the right to appeal is an adequate and independent state ground for denying habeas corpus relief.") (quoting Guaman v. Racette, No. 14 Civ. 5160, 2016 WL 901304, at *5 (S.D.N.Y. Feb. 5, 2016)); Grimes v. Lempke, No. 10 Civ. 0068, 2014 WL 1028863, at *6 (N.D.N.Y. Mar. 14, 2014); Alvarez v. Yelich, 09 Civ. 1343, 2012 WL 2952412, at *5 (E.D.N.Y. July 17, 2012) (collecting cases). Indeed, "New York courts regularly enforce appeal waivers to bar appeals of suppression issues." Krouth, 2018 WL at *7 (citing People v. Zapata, 158 A.D.3d 778, 68 N.Y.S.3d 757 (2d Dept. 2018) ("The defendant's valid waiver of his right to appeal bars his challenge to the County Court's suppression rulings.")). Under the circumstances of this case, based upon a review of the Cotto factors, I conclude that the Appellate Division did not apply the procedural bar of valid waiver of right to appeal in an exorbitant manner.
"Thus, [p]etitioner's claim is procedurally barred and is reviewable only if [p]etitioner can demonstrate cause for the default and prejudice resulting therefrom, or show that he is actually innocent of the crime for which he was convicted." Guaman, 2016 WL 901304, at *5. Here, petitioner does not claim that he is actually innocent; in fact, he admitted his guilt during the plea proceeding. "Petitioner also cannot demonstrate cause for the default since, as noted above, the record shows that his waiver of the right to appeal was knowing and voluntary." Amin, 2016 WL 6068128, at *7. Accordingly, I conclude and respectfully recommend that petitioner's claim for habeas relief based upon his challenge to the suppression ruling is procedurally barred from habeas review and should be dismissed. C. Unexhausted Claims
Dismissal of a claim for habeas relief on the ground of procedural default amounts to "a disposition of the habeas claim on the merits." See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011).
Petitioner's remaining claims (that his guilty plea was not knowing, voluntary and intelligent and that his trial counsel was ineffective) are unexhausted, as neither claim has been presented to any state court. The instant petition is thus a "mixed petition," containing both exhausted and unexhausted claims. However, for the reasons that follow, I conclude and respectfully recommend that petitioner's unexhausted claims should be denied on their merits pursuant to 28 U.S.C. § 2254(b)(2).
The AEDPA "does not articulate a standard for denying a petition pursuant to Section 2254(b)(2), and neither the Supreme Court nor the Second Circuit has established one." Nickels v. Conway, No. 10 Civ. 0413, 2015 WL 4478970, at *18 (W.D.N.Y. July 22, 2015), certificate of appealability denied (Dec. 29, 2015). "Courts can, however, deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a)." Berghuis v. Thompkins, 560 U.S. 370, 390 (2010). Here, I conclude that petitioner's unexhausted claims are meritless under a de novo standard of review.
1. Petitioner's guilty plea
Petitioner asserts that his guilty plea was not knowing, voluntary or intelligent because (a) he did not fully understand the elements of the crime to which he pled guilty and (b) the trial court impermissibly allowed the People to conduct the plea allocution.
A guilty plea is consistent with due process if it is done "voluntarily, knowingly and intelligently, with sufficient awareness of the relevant circumstances and likely consequences." United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006) (quoting Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)). See also Hill v. Lockhart, 474 U.S.52, 56 (1985) ("The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant."). "A plea is considered intelligent if the accused had the advice of counsel and understood the consequences of his plea, even if only in a fairly rudimentary way, and it is considered voluntary if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally. Indeed, a plea of guilty entered by one fully aware of the direct consequences of the plea is voluntary in a constitutional sense unless induced by threats, misrepresentations, or perhaps by promises that are by their nature improper." Velasquez v. Ercole, 878 F. Supp.2d 387, 401 (E.D.N.Y. 2012) (quotations and citations omitted). Further, where a defendant is represented by counsel at the plea, and enters the plea upon the advice of counsel, the voluntariness of the plea depends upon whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. See Lockhart, 474 U.S. at 56 (citations omitted).
Here, it is evident from the record that petitioner knowingly, intelligently, and voluntarily entered into the guilty plea. There is no indication in the record that, at the time of his plea, petitioner was mentally incompetent or otherwise lacked the mental capacity required to enter into a guilty plea. He acknowledged that he understood he was waiving his rights to remain silent, to trial by jury, to confront and cross-examine witnesses and to present witnesses on his own behalf. Petitioner also acknowledged that he had sufficient time to discuss the matter with his attorney and that he was satisfied with the representation provided by counsel. Indeed, there is no indication in the record that counsel's representation fell outside the range of competence demanded of attorneys in criminal cases. Petitioner affirmed that he had fully discussed his waiver of his right to appeal with his attorney, and that he voluntarily waived his right to appeal his conviction and sentence in consideration of his negotiated plea. Petitioner further acknowledged that no one had coerced him or forced him to plead guilty and that he was freely and voluntarily pleading guilty because he was, in fact, guilty.
In sum, in light of the "strong presumption of verity" of guilty pleas, petitioner has not established that his plea was not knowing, intelligent, and voluntary. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Moreover, contrary to petitioner's contention, his guilty plea was not rendered unconstitutional by the prosecution's participation in the plea allocution. See Montstream v. Superintendent, Bedford Hills Corr. Facility, No. 06 Civ. 0787, 2011 WL 284461, at *4 (W.D.N.Y. Jan. 4, 2011) (no violation of state law or error of federal constitutional magnitude where prosecutor and defense counsel participated in the questioning of petitioner during her plea allocution), report and recommendation adopted sub nom. Montstream v. Superintendent, 2011 WL 283252 (W.D.N.Y. Jan. 25, 2011), aff'd sub nom. Montstream v. Superintendent, Bedford Hills Corr. Facility, 486 F. App'x 164 (2d Cir. 2012). Accordingly, I conclude and respectfully recommend that there is no merit to petitioner's claim that his guilty plea was not knowing, voluntary and intelligent.
2. Ineffective assistance of counsel
Petitioner contends that his trial counsel was ineffective because he allowed petitioner to enter into a guilty plea conditioned on his waiver of his right to appeal the suppression ruling. In order to establish his claim of ineffective assistance of trial counsel, petitioner must demonstrate (1) that his attorney's performance "fell below an objective standard of reasonableness" and (2) that there is a "reasonable probability" that, but for counsel's error, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
In considering whether counsel's performance was deficient under Strickland's first prong, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 690). The second prong focuses on prejudice to the petitioner. In order to satisfy the "prejudice" prong in the context of a guilty plea, a habeas petitioner must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59, (1985)). A habeas petitioner bears the burden of establishing both deficient performance and prejudice. See Greiner, 417 F.3d at 319. Thus, "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
Here, petitioner fails to demonstrate that he would have proceeded to trial absent counsel's allegedly ineffective advice. Petitioner does not allege that counsel provided him with inaccurate information or omitted facts pertinent to his decision. As discussed above, it is evident from the record that petitioner knowingly, voluntarily and intelligently waived his right to appeal and entered into his guilty plea. Petitioner stated that he was "scared to death to go to trial." Exh. 5 at 4. He also stated, at sentencing, that he did not wish to withdraw his plea because he was afraid he "would be railroaded because of [his] past criminal history." Exh. 6 at 9. He acknowledged that he and his counsel had fully discussed his plea and his waiver of his right to appeal, and that he was satisfied with counsel's legal advice. In fact, petitioner stated that his attorney was "a very excellent lawyer." Id. at 10. In sum, petitioner fails to satisfy his burden of demonstrating "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. Accordingly, because petitioner fails to demonstrate the requisite prejudice, I conclude and respectfully recommend that his ineffective assistance of counsel claim is meritless.
V. CONCLUSION
For the reasons set forth above, I conclude-and respectfully recommend that Your Honor should conclude-that the instant petition for a writ of habeas corpus should be denied in its entirety. Further, because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Dated: October 23, 2018
White Plains, New York
Respectfully Submitted,
/s/_________
PAUL E. DAVISON, U.S.M.J.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(c), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. Fed. R. Civ. P. 6(d). See also Fed, R. Civ. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Vincent L. Briccetti, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Briccetti. A copy of this Report and Recommendation has been mailed to: Michael D'Onofrio
2830 Middletown Road
2d Floor Apartment
Bronx, NY 10461
The docket (incorrectly) reflects that petitioner is still incarcerated; petitioner last contacted the Court in November 2017 (approximately three months prior to his release to parole). Chambers staff contacted the New York State Division of Parole, who provided the above address on May 22, 2018 (and reconfirmed the same address on September 25, 2018).