Opinion
1:21-cv-06619 (JPC) (SDA)
03-23-2022
Michael V. Gaines, Petitioner, v. D. McIntosh, Respondent.
HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Pro se Petitioner Michael V. Gaines (“Gaines” or “Petitioner”), currently incarcerated in the Clinton Correctional Facility in New York State, seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. (See Pet., ECF No. 2.) On September 15, 2016, a judgment was rendered in the Supreme Court of the State of New York, Bronx County, convicting Gaines, following a guilty plea, of three counts of Robbery in the First Degree (New York Penal Law § 160.15[4]), and sentencing him as a second violent felony offender, to three concurrent fifteen-year determinate terms of imprisonment followed by five years of post-release supervision. (See Resp. Opp. Decl., ECF No. 14, ¶ 3.)
Gaines raises four claims in his Petition: (1) that he was denied effective assistance of appellate counsel because his counsel failed to raise several arguments that would have shown that the length of his sentence was unconstitutional (Ground One); (2) that he was denied effective assistance of trial counsel because his counsel failed to seek his placement in a diversion program (Ground Two); (3) that the length of his sentence is violative of the Eighth Amendment, given his advanced age and medical condition (Ground Three); and (4) that the trial court violated his rights by failing to assign him counsel during the New York Criminal Procedure Law (“CPL”) § 440.20 proceedings (Ground Four). (See Pet. at PDF pp. 5-11.)
For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
BACKGROUND
I. Relevant Factual Background
Gaines committed gunpoint robberies on three separate occasions, i.e., December 10, 2015; December 18, 2015; and on January 17, 2016. (See Resp. Mem. at 1-2; Gaines First Dept. Br., ECF No. 14-1, at 2.) He was 55-years'-old at the time, had six prior felony convictions and was dependent on cocaine and alcohol. (See Gaines First Dept. Br. at 2, 6-7.)
Respondent's Memorandum is filed at PDF pp. 5 to 14 of ECF No. 14.
II. Procedural History
A. Indictment, Guilty Plea And Sentencing
In an indictment, dated February 8, 2016, Gaines was charged with Criminal Possession of a Weapon in the Third Degree, Criminal Possession of a Firearm, three counts of Robbery in the First Degree and other lesser offenses. (See Indictment, ECF No. 16-1.) On August 10, 2016, he pled guilty before Justice Miriam R. Best of the Bronx County Supreme Court to three counts of Robbery in the First Degree. (See 8/10/16 Plea Tr., ECF No. 16-2, at 2-14.) At the time of the plea, the People recommended a sentence of 15 years of incarceration followed by five years of post-release supervision on each count, to run concurrently, and Gaines accepted that recommendation. (See id. at 2-4.) In addition, at the time of his guilty plea, Gaines admitted that he had been convicted on April 24, 2001 of Attempted Robbery in the Second Degree and sentenced to 51 months to 60 months of incarceration. (See id. at 15.)
On September 15, 2016, Gaines was sentenced by Justice Best to three concurrent fifteenyear determinate terms of imprisonment followed by five years of post-release supervision, as had been agreed by the People and Gaines. (See 9/15/16 Sentencing Tr., ECF No. 16-2, at 5.) A pre-sentence report (“PSR”) was prepared prior to sentencing. (See PSR, ECF No. 16-3.) At sentencing, Gaines's counsel stated that no corrections needed to be made to the PSR. (See Sentencing Tr. at 2.)
The transcript of Petitioner's sentencing is included at PDF pages 17 to 22 of ECF No. 16-2.
B. Direct Appeal
In August 2017, Gaines, through assigned counsel from The Center for Appellate Litigation, filed his brief in support of his direct appeal to the Appellate Division, First Department, arguing that his sentence was excessive. (See Resp. Opp. Decl. ¶ 5; Gaines First Dept. Br. at 8-12.) On December 28, 2017, the Appellate Division, First Department, unanimously affirmed Gaines's sentence, finding it not excessive. See People v. Gaines, 156 A.D.3d 553 (1st Dep't 2017). On February 26, 2018, the New York Court of Appeals denied Gaines's application for leave to appeal. See People v. Gaines, 30 N.Y.3d 1115 (2018).
C. Coram Nobis Petition
In Pro se papers, dated March 15, 2019, Gaines moved before the Appellate Division, First Department, for a writ of error coram nobis, asserting that his appellate counsel was ineffective for failing to argue that his conviction should have been for Robbery in the Second Degree, not Robbery in the First Degree; that his appellate counsel was ineffective for failing to argue that his trial counsel was ineffective for not seeking for Gaines's sentence to be placement in a drug treatment program; and that his appellate counsel was ineffective for failing to argue that his sentence was cruel and unusual in light of his age and medical condition. (See Gaines 3/15/19 Aff., ECF No. 14-4, ¶ 6.) On January 9, 2020, the Appellate Division denied Gaines's coram nobis petition. See People v. Gaines, 2020 N.Y. Slip Op. 60354(U), 2020 WL 110913 (1st Dep't Jan. 9, 2020). On May 25, 2021, the New York Court of Appeals denied leave to appeal the denial of his coram nobis petition. (See 5/25/21 Order Denying Leave, ECF No. 14-7.)
D. CPL § 440.20 Motion
In Pro se papers, dated April 26, 2019, Gaines moved pursuant to CPL § 440.20 in Supreme Court, Bronx County, to set aside his sentence on the grounds that he received ineffective assistance of counsel because his attorney did not seek for his sentence to be placement in a drug treatment program and his sentence was cruel and unusual due to his advanced age and medical condition. (See Gaines 4/26/19 Aff., ECF No. 14-5, ¶ 7.) In addition, Gaines sought the appointment of counsel to “help [him] prepare and polish-up the arguments in [his] application.” (See id.) In his affidavit, Gaines “thank[ed] both [the] Court (and the district attorney) for the very beneficial sentence of 15 years,” and stated that he “recognize[d] that for what [he] had done, [he] could have gotten a lot worse.” (See id. ¶ 4.)
On November 19, 2019, Justice Best denied Gaines's CPL § 440.20 motion. (See 11/19/19 Decision, ECF No. 2.) Justice Best held that Gaines had “failed to establish his sentence was unauthorized, illegally imposed, or otherwise invalid as a matter of law in accordance with CPL § 440.20(1).” (Id. at 4.) She also denied his request for appointment of counsel, finding that the relevant provision of the New York Judiciary Law did not provide for appointment of counsel in a CPL § 440 proceeding. (See id.)
Justice Best's November 19, 2019 Decision is contained at PDF pages 24 to 36 of ECF No. 2.
On May 18, 2020, the Appellate Division denied Gaines's motion to appeal the denial of his CPL § 440 motion. (5/18/20 Cert. Denying Leave, ECF No. 14-6.)
LEGAL STANDARDS
I. AEDPA Generally
Under 28 U.S.C. § 2254(a), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “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). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is “contrary to,” or an “unreasonable application of,” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 412-13. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Ineffective Assistance Of Counsel
“To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's representation ‘fell below an objective standard of reasonableness,' and (2) that he suffered prejudice[.]” Momplaisir v. Capra, 718 Fed.Appx. 91, 92 (2d Cir. 2018) (summary order) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). Under the first Strickland prong, there is a “strong presumption” that a lawyer's conduct “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. (internal quotation omitted); see also Silva v. Keyser, 271 F.Supp.3d 527, 546 (S.D.N.Y. 2017) (“a defendant has the burden of proving ‘that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'”) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1985)). “In considering whether counsel ‘failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances,' Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis omitted), the Court looks to the totality of the record and must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (quoting Strickland, 466 U.S. at 688-89).
Under the second Strickland prong, the petitioner must demonstrate that the ineffective assistance prejudiced the defense, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
“A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel.” Garfield v. Poole, 421 F.Supp.2d 608, 613 (W.D.N.Y. 2006) (citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). “A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful.” Id. at 613-14 (citing cases).
III. Pro Se Status
Submissions by Pro se plaintiffs are to be examined with “special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010), interpreted “to raise the strongest arguments that they suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), and “held to less stringent standards than formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (cleaned up); see Lithgow v. Keyser, No. 20-CV-03655 (VEC) (RWL), 2021 WL 4200722, at *2 (S.D.N.Y. Aug. 16, 2021) (construing habeas petition liberally in light of special solicitude due to Pro se litigants), report and recommendation adopted, 2021 WL 4391122 (S.D.N.Y. Sept. 24, 2021).
DISCUSSION
I. Petitioner's Claim Regarding The Length Of His Sentence (Ground Three) Should Be Denied
Petitioner claims that the length of his sentence is violative of the Eighth Amendment, given his advanced age and medical condition (See Pet. at PDF pp. 8-10.) This claim is not cognizable since the “sentence [was] within the range prescribed by state law.” See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); accord Valdez v. Stewart, No. 17-CV-04121 (KPF) (SLC), 2021 WL 634716, at *6 (S.D.N.Y. Feb. 17, 2021) (citing White, 969 F.2d at 1383). As Petitioner himself acknowledged, “for what [he] had done,” absent his guilty plea, his sentence could have been “a lot worse.” (Gaines 4/26/19 Aff. ¶ 4.) Thus, I recommend that Petitioner's claim regarding the length of his sentence (Ground Three) be denied.
Petitioner could have been sentenced to between ten to twenty-five years on each of the robberies. See Penal Law § 60.05(3); see also Penal Law §§ 70.02(1)(a); 70.02(2)(a); 70.02(3)(a); 160.15(4). As these sentences may have been imposed consecutively, Petitioner potentially was facing a fifty-year aggregate prison term. See Penal Law § 70.30(1)(e)(vi).
II. Petitioner's Claim Regarding Ineffective Assistance of Appellate Counsel (Ground One) Should Be Denied
Petitioner claims that his appellate counsel was ineffective for failing to raise several arguments that would have shown that the length of his sentence was unconstitutional (Ground One). (See Pet. at PDF pp. 5-6.) However, Petitioner is unable to demonstrate that his counsel's representation “fell below an objective standard of reasonableness” or that he suffered prejudice. Strickland, 466 U.S. at 688, 694. As addressed above, Petitioner's sentence was agreed to by him, was within the range prescribed by law, and was substantially less than the sentence that could have been imposed absent his guilty plea. Because Petitioner's sentencing-related arguments are meritless, Petitioner cannot show that his counsel's failure to raise them entailed that his counsel's representation “fell below an objective standard of reasonableness,” or led to his suffering prejudice. Id. Accordingly, I recommend that Petitioner's claim set forth in Ground One be denied.
III. Petitioner's Claim Regarding Ineffective Assistance of Trial Counsel (Ground Two) Should Be Denied
Petitioner claims that he was denied effective assistance of trial counsel because his counsel failed to seek Petitioner's placement in a diversion program (Ground Two). (See Pet. at PDF pp. 7-8.) Petitioner's diversion-related claim is based upon CPL § 216.00, which permits diversion for “eligible defendant[s].” See CPL § 216.00(a). However, as Justice Best found in her Decision on Petitioner's CPL § 440 motion, Petitioner was not eligible for diversion due to his criminal history, unless the People consented, “which the People assert[ed] they would not have done.” (See 11/19/19 Decision at 8-10 (citing CPL § 216.00(a), (b).). Therefore, trial counsel cannot be deemed ineffective for failing to take this meritless position.
In any event, Petitioner suffered no prejudice, since in the context of a guilty plea, in order to demonstrate prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); accord Chhabra v. United States, 720 F.3d 395, 407 (2d Cir. 2013) (citing Hill, 474 U.S. at 59). Petitioner has made no such showing. Accordingly, I recommend that Petitioner's claim set forth in Ground Two be denied.
IV. Petitioner's Claim Regarding The Trial Court's Failure To Appoint Him Counsel During The CPL § 440.20 Proceedings (Ground Four) Should Be Denied
Petitioner claims that the trial court violated his rights by failing to assign him counsel during the CPL § 440.20 proceedings (Ground Four). (Pet. at PDF p. 11.) Justice Best denied his request for appointment of counsel, finding that the relevant provision of the New York Judiciary Law did not provide for appointment of counsel in a CPL § 440 proceeding. (See 11/19/19 Decision at 4-5.) Justice Best's decision is not “contrary to,” nor did it “involve[] an unreasonable application of, clearly established Federal law.” See 28 U.S.C. § 2254(d). “[T]here is still no clearly established Supreme Court precedent recognizing a constitutional right to counsel in a collateral proceeding” like the one present here. See Colon v. Sheahan, No. 13-CV-06744 (PAC) (JCF), 2016 WL 3919643, at *12 (S.D.N.Y. Jan. 13, 2016), report and recommendation adopted, 2016 WL 3926443 (S.D.N.Y. July 14, 2016). Accordingly, I recommend that Petitioner's claim set forth in Ground Four be denied.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Gaines's Petition for a Writ of Habeas Corpus be DENIED in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Clerk of the Court is respectfully requested to mail this Report and Recommendation to pro se Plaintiff at the address indicated on the docket.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).