Opinion
9:18-CV-981 (MAD/TWD)
04-22-2021
BENJAMIN GARROW, a/k/a Benjaman Garrow, Petitioner, v. SUPERINTENDENT, Respondent.
APPEARANCES: BENJAMIN GARROW Petitioner, pro se 12-A-5393 Coxsackie Correctional Facility P.O. Box 999 Coxsackie, New York 12051 HON. LETITIA A. JAMES Attorney General for the State of New York Counsel for Respondent 28 Liberty Street New York, New York 10005 LISA E. FLEISCHMAN, Esq. Assistant Attorney General
| APPEARANCES: | OF COUNSEL: |
| BENJAMIN GARROWPetitioner, pro se12-A-5393Coxsackie Correctional FacilityP.O. Box 999Coxsackie, New York 12051 | |
|---|---|
| HON. LETITIA A. JAMESAttorney General for the State of New YorkCounsel for Respondent28 Liberty StreetNew York, New York 10005 | LISA E. FLEISCHMAN, Esq.Assistant Attorney General |
Benjamin Garrow ("Garrow" or "Petitioner") filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 2012 conviction following a guilty plea in State of New York Supreme Court, County of Clinton (the "Trial Court") of predatory sexual assault against a child under the age of thirteen. (Dkt. No. 1 at 1.) Petitioner asserts he is entitled to relief on the following grounds: (1) the victim was thirteen years old at the time of the crime; (2) the presiding judge was biased because he concluded Petitioner committed rape before he was indicted; (3) DNA evidence was improperly obtained; and (4) the District Attorney obtained the victim's statement without her parent's consent. Id. at 5-16; see also Dkt. No. 25. The Superintendent, through the State of New York, (the "State" or "Respondent") opposes Garrow's petition. (Dkt. Nos. 13, 15.) For the reasons set forth below, this Court recommends denying Petitioner's request for a writ of habeas corpus in its entirety.
Citations to page numbers in the filings refer to the pagination CM/ECF automatically generates.
I. BACKGROUND
On October 1, 2012, Petitioner pled guilty to predatory sexual assault against a child. (See generally, Dkt. No. 16.) Judge Timothy J. Lawliss presided over Petitioner's plea allocution and Petitioner was represented by counsel. Id. at 1. During his allocution, Judge Lawliss carefully explained the result of his guilty plea and the rights he would waive as a result. Id. at 4-12. Petitioner then pled guilty to predatory sexual assault against a child and admitted that "on or about and in between November 1, 2008 and December 31, 2008," he raped his step-daughter ("Jane Doe") who was under the age of thirteen at the time of the rape. Id. at 13-14. After the Trial Court accepted his plea, Petitioner then executed a waiver of his right to appeal. Id. at 15-16. On November 26, 2012, Petitioner was sentenced to twenty years to life in prison. (Dkt. No. 16-2 at 4-5.)
The Court will cite to the Dkt. No. associated with the state court records and, where relevant, will cite to the page number the CM/ECF system automatically generates.
In a pro se motion, dated February 16, 2015, Petitioner moved to set aside the sentence pursuant to N.Y. C.P.L. § 440.20, claiming that his sentence of twenty years to life was illegal because the victim was thirteen years of age, not twelve or younger. (Dkt. No. 16-3 at 3-4.) The Trial Court denied the motion and explained that Petitioner had filed a N.Y. C.P.L. § 440.20 motion with the Court, but had apparently filed a N.Y. C.P.L. § 440.10 motion with the People. Id. at 10. In other words, Petitioner attempted to file both motions but served only the N.Y. C.P.L. § 440.20 motion with the Trial Court and only the N.Y. C.P.L. § 440.10 motion with the People. The Trial Court declined to consider the substance of his unfiled N.Y. C.P.L. § 440.10 motion because it never received Petitioner's papers. Id. In his putative N.Y. C.P.L. § 440.10 motion, Petitioner argued that the age of the victim was wrong, the judge was biased, and that his counsel was ineffective for failing to move for Judge Lawliss's recusal. Id. at 16; 26.
In a counseled motion to vacate the judgment, dated January 16, 2016, Petitioner claimed that the trial judge was biased because he made a statement in a Family Court proceeding that Petitioner had "raped" the victim and that his counsel was ineffective because she did not object to the trial judge presiding over the criminal action. The Trial Court denied this motion. Id. at 103-07. In its Order, Judge Lawliss explained that he conducted a dispositional hearing regarding the neglect petition against Jane Doe's mother and a permanency hearing under the Family Court Act. Id. at 103-04. In that hearing, Judge Lawliss found that Petitioner raped Jane Doe and in a separate hearing found that he was the father of Jane Doe's twins who were born when Jane Doe was thirteen years old. Id.
Judge Lawliss rejected the claim that he was biased and should have sua sponte recused himself of handling the criminal proceedings. Id. 105-07. To that end, Judge Lawliss found that he was "duty bound to adjudicate issues of fact" in the Family Court proceedings and that findings in that proceeding were made in fulfillment of his judicial duty. Id. at 105. According to Judge Lawliss, the finding that Petitioner raped Jane Doe was made to resolve one of the central allegations in the neglect case against Petitioner. Id. The Court understood the difference between the standards of evidence in the Family Court matter and in the criminal case and that his finding in Family Court did not necessarily mean Petitioner should be convicted of rape in a criminal proceeding. Id. Judge Lawliss, therefore, found recusal was not warranted. Id. at 105-07.
In a counseled brief to the Appellate Division, Third Department ("Third Department"), Petitioner claimed: (1) the trial judge erred in not recusing himself sua sponte from presiding over his case; (2) trial counsel was ineffective for failing to move to have the trial judge recused; and (3) his waiver of his right to appeal was not knowing, intelligent, and voluntary. Id. at 118-131.
The Third Department rejected Petitioner's claims both on direct appeal and on the appeal of his N.Y. C.P.L. § 440.10 motion. See People v. Garrow, 148 A.D.3d 1459 (2017). With respect to the direct appeal, the Third Department found that his claim that Judge Lawliss should have recused himself was unpreserved for appellate review because he failed to move for that relief in the trial court. Id. at 1460. The Third Department also found that such a claim was encompassed in his waiver of his right to appeal. Id. The court further found Petitioner's claim that his counsel was ineffective for failing to move for recusal was similarly unpreserved for appellate review because it was not raised before the trial court. Id.
With respect to his challenge to the Trial Court's denial of his N.Y. C.P.L. § 440.10 motion, the Third Department recognized that "[w]here, as here, the 'basis for recusal does not involve a mandatory statutory disqualification pursuant to Judiciary Law § 14, the trial judge was the sole arbiter regarding recusal.'" Id. at 1460 (citation omitted). The Third Department further found that "[t]he record before [it] does not support the conclusion that Supreme Court's dual role in both the neglect proceeding and this criminal matter, which was entirely appropriate under the rules governing the Integrated Domestic Violence part of Supreme Court, was improper in any respect." Id. at 1460-61. It therefore rejected any argument that Judge Lawliss should have sua sponte recused himself.
Additionally, the Third Department held that Petitioner "was not denied meaningful representation due to trial counsel's failure to request that Supreme Court recuse itself. Given the strong evidence of guilt and beneficial plea offer, as well as the unlikelihood such a request would have been granted, [Petitioner did] not demonstrate[] 'the absence of strategic or other legitimate explanations' for counsel's decision not to seek recusal." Id. at 1461 (citation omitted).
Petitioner then filed a counseled leave application to the New York Court of Appeals raising the following issue: "Whether the rules established for Integrated Domestic Violence Court violate a defendant's right to a fair and impartial judge, and his right to a presumption of innocence, where a judge that has previously made a finding that the defendant raped the victim, by clear and convincing evidence, in the Family Court portion of the proceeding can subsequently in the criminal action afford the defendant the presumption of innocence." (Dkt. No. 16-3 at 281.) On May 25, 2017, his application was denied. People v. Garrow, 29 N.Y.3d 1031 (2017).
As noted above, Petitioner now asserts he is entitled to relief from his conviction on the following grounds: (1) the victim was thirteen years old at the time of the crime; (2) the trial court concluded he committed rape before he was indicted; (3) DNA evidence was improperly obtained; and (4) the District Attorney obtained the victim's statement without the consent of her parents. (Dkt. No. 1 at 5-16; see also Dkt. No. 25.)
In response to the petition, Respondent asserts Petitioner's arguments regarding the age of the victim, the DNA evidence, and the victim's statement are all unexhausted, forfeited by his guilty plea, and meritless. (Dkt. No. 15 at 10-13.) Furthermore, Respondent contends Petitioner's claim that the Trial Court was biased is forfeited by his guilty plea, barred on an independent state ground, and without merit. Id. at 14-18.
II. DISCUSSION
A. Petitioner's Unexhausted Claims
A prerequisite to habeas relief under section 2254 is the exhaustion of all available state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."); 28 U.S.C. § 2254(b)(1)(A) ("[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)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant"). The exhaustion requirement seeks to promote considerations of comity and respect between the federal and state judicial systems. See Davila v. Davis, — U.S. —, 137 S. Ct. 2058, 2064 (2017) ("The exhaustion requirement is designed to avoid the 'unseemly' result of a federal court 'upset[ting] a state court conviction without' first according the state courts an 'opportunity to . . . correct a constitutional violation.'") (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
To meet the exhaustion requirement, a petitioner must present the essential factual and legal bases of his federal claim to each appropriate state court, including the highest state court capable of reviewing it, to give state courts a full and fair "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam ) (internal quotation marks and citation omitted). A federal claim has been "fairly present[ed] in each appropriate state court, including a state supreme court with powers of discretionary review," if it "alert[s] that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal parentheses and quotation marks omitted). A petitioner "does not fairly present a claim to a state court if that court must read beyond a petition or a brief . . . that does not alert it to the presence of a federal claim in order to find material . . . that does so." Id. at 32.
Here, the record establishes that Petitioner only raised his argument regarding the age of the victim in an unfiled N.Y. C.P.L. § 440.10 motion but did not renew that motion or seek appellate review of this issue. Furthermore, Petitioner never raised any issues with the way the State obtained DNA evidence or the victim's statement. It is well established that "[t]o properly exhaust a claim that relies on errors or omissions that are apparent from the record of trial or pretrial proceedings, petitioner must raise it on direct appeal to the Appellate Division and then seek leave to appeal to the Court of Appeals." Moore v. Attorney Gen. of NY, No. 17-CV-0474 (JFB), 2019 WL 3717580, at *7 (E.D.N.Y. Aug. 7, 2019) (internal quotation marks and citation omitted). Because these claims have not been adequately exhausted, Petitioner has deprived the state court "a fair opportunity to act on his claim." Anthoulis v. New York, No. 11-CV-1908 (BMC), 2012 WL 194978, at *3 (E.D.N.Y. Jan. 23, 2012). Therefore, the Court finds these claims are unexhausted and cannot be a basis to provide Petitioner relief.
Traditionally, a mixed petition that contains both exhausted and unexhausted claims, is dismissed without prejudice to refiling another federal habeas corpus action after all claims have been exhausted. See Slack v. McDaniel, 529 U.S. 473, 486 (2000). However, the Court is empowered to consider whether the unexhausted claims are unquestionably meritless and dismiss the petition with prejudice. See Flores v. Officer in Charge, Buffalo Fed. Det. Facility, No. 11 CIV. 7977 RA, 2014 WL 1568843, at *2 (S.D.N.Y. Apr. 17, 2014); Keating v. New York, 708 F. Supp. 2d 292, 299 n.11 (E.D.N.Y.2010) (collecting cases); Rowe v. New York, No. 99 CIV 12281 GEL, 2002 WL 100633, at *5 (S.D.N.Y. Jan. 25, 2002) (citation omitted).
A review of the record reveals each of Petitioner's claims are unquestionably meritless and, therefore, the Court recommends dismissing these claims with prejudice. For one, Petitioner's claim that the victim was more than thirteen years old at the time of the crime is simply wrong. It appears Petitioner makes this argument because a physician notes Jane Doe was thirteen years of age when she conceived her children fathered by Petitioner. (Dkt. No. 16-3 at 49.) Though this might be the case, Petitioner ignores that he admitted to raping Jane Doe between November 1, 2008, and December 31, 2008, when Jane Doe was indisputably under thirteen. (Dkt. No. 16 at 12-14.) His admission in open court that he raped his step-daughter between November 1, 2008, and December 31, 2008, completely renders any argument about the age of Jane Doe at the time she conceived her twins irrelevant. Thus, this ground is factually meritless and cannot be a basis to grant habeas relief.
Moreover, as the State argued, Petitioner forfeited his ability to challenge whether Jane Doe was under thirteen when he raped her, the method for which the District Attorney obtained the DNA evidence, and Jane Doe's statement because he pled guilty to the indictment. In Tollett v. Henderson, 411 U.S. 258 (1973), the Supreme Court observed:
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.Tollett, 411 U.S. at 267; see Blackledge v. Perry, 417 U.S. 21, 29-30 (1974) ("a person complaining of . . . antecedent constitutional violations . . . is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases") (internal quotations and citations omitted). Petitioner has not argued that his guilty plea is invalid. Therefore, the Court finds Plaintiff's claims regarding the DNA evidence and Jane Doe's statement are forfeited and cannot be a basis to grant habeas relief.
In his Traverse, Petitioner makes the conclusory allegation that his guilty plea was not done willingly because "his trial lawyer lied to him[.]" (Dkt. No. 25 at 8.) Petitioner also claims his lawyer told him he would go to prison for only 7-8 years and that Judge Lawliss had told her that Petitioner would lose at trial and would receive a harsher sentence if convicted. Id. at 5. It is well established that a Petitioner cannot raise new grounds for relief in his traverse. See_Parker v. Smith, 858 F. Supp. 2d 229, 233 n.2 (N.D.N.Y. 2012) (citing Voymas v. Unger, No. 10-CV-6045, 2011 WL 2670023, at *13 (W.D.N.Y. July 7, 2011); Jones v. Artus, 615 F. Supp. 2d 77, 85 (W.D.N.Y. 2009)). Moreover, the record establishes Petitioner never argued in New York court that his guilty plea was unknowing or unwilling because his lawyer lied to him. Thus, this contention could not form the basis for habeas relief in any event because it is unexhausted.
B. The Trial Court's Alleged Bias
1. Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") significantly limits the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006), cert. granted, judgment vacated and cases remanded on other grounds by, 549 U.S. 1163 (2007), that
a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) 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) was "based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding."Id. at 73 (quoting 28 U.S.C. § 2254(d)) (footnote omitted); see also DeBerry v. Portuondo, 403 F. 3d 57, 66 (2d Cir. 2005) (quotation omitted); Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003) (quotation omitted).
In providing guidance concerning the application of this test, the Second Circuit has observed that
a state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it.Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007) (internal quotation and citations omitted, brackets in the original); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
Significantly, a federal court engaged in habeas review is not charged with determining whether a state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2009); see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citation omitted). Courts have interpreted "objectively unreasonable" in this context to mean that "some increment of incorrectness beyond error" is required for the habeas court to grant the application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quotation omitted).
2. Analysis
As noted above, Judge Lawliss presided over both Petitioner's criminal case and a matter in Family Court regarding Jane Doe. During the Family Court proceedings, Judge Lawliss concluded that Petitioner had raped Jane Doe and that DNA testing confirmed that he was the father of her two children. (Dkt. No. 16-3 at 104.) Petitioner claims Judge Lawliss should have sua sponte recused himself from presiding over his criminal case because he was predisposed to finding Petitioner guilty. (Dkt. No. 1 at 7.)
Defendant argues the Court need not consider the merits of this contention because the Third Department declined to consider the issue on New York State procedural grounds. To wit, the Third Department found this claim was unpreserved because Petitioner failed to move for Judge Lawliss's recusal during trial and Petitioner waived his right to appeal. (Dkt. No. 15 at 14.) Respondent, however, neglects to consider the entirety of Petitioner's appeal to the Third Department. To that end, the Third Department also—by permission—considered Petitioner's appeal of Judge Lawliss's decision denying his counseled N.Y. C.P.L § 440.10 motion to vacate the judgment of conviction that squarely presented the claim he raises in the instant petition regarding judicial bias. See Garrow, 148 A.D.3d at 1460. Petitioner also advanced this claim to the New York Court of Appeals. (Dkt. No. 16-3 at 281.) Accordingly, the Court finds the Third Department considered this issue on the merits.
Here, the Court is satisfied the Third Department's conclusion that Petitioner failed to demonstrate that Judge Lawliss's "dual role in both the neglect proceeding and th[e] criminal matter . . . was improper in any respect" was correct. Garrow, 148 A.D.3d at 1461. The Supreme Court has established that due process "requires a 'fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975) (citations omitted)). The Supreme Court has held that trial before a biased judge is an error that is "'structural,' and thus subject to automatic reversal . . . ." Neder v. United States, 527 U.S. 1, 8 (1999) (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927)); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997) (observing that it had found "lack of an impartial trial judge" to be a structural error). "A favorable or unfavorable predisposition can . . . deserve to be characterized as 'bias' or 'prejudice' because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment." Liteky v. United States, 510 U.S. 540, 551 (1994) (citations omitted).
To prevail on a claim of judicial bias, a habeas petitioner must demonstrate that he did not receive a trial "by an unbiased and impartial judge without a direct personal interest in the outcome of the hearing." Ungar v. Sarafite, 376 U.S. 575, 584 (1964). "Mere allegations of judicial bias or prejudice do not state a due process violation." Brown v. Doe, 2 F.3d 1236, 1248 (2d Cir. 1993), cert. denied, 510 U.S. 1125 (1994).
Here, the Third Department's conclusion that Judge Lawliss's handling of a related Family Court matter did not make him biased is consistent with federal law. Indeed, Judge Lawliss made it clear in his decision denying Petitioner's N.Y. C.P.L. § 440.10 motion that he understood that his finding in Family Court did not mean he was necessarily guilty of the criminal charge. Moreover, as noted above, Petitioner's guilty plea effectively forfeits his claim that Judge Lawliss was biased. In sum, this Court finds no reason to reject the Third Department's conclusion that Petitioner failed to establish a violation of his due process rights based on judicial bias. Therefore, the Court recommends that habeas relief be denied on this ground.
III. CERTIFICATE OF APPEALABILITY
28 U.S.C. § 2253(c)(1) provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2553(c)(1). A court may only issue a Certificate of Appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2553(c)(2).
Since Petitioner has failed to make such a showing with regard to any of his claims, the Court recommends declining to issue a Certificate of Appealability in this matter. See Hohn v. United States, 524 U.S. 236, 239-40 (1998) (quotation omitted).
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein the Court hereby
RECOMMENDS that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED; and the Court further
RECOMMENDS that no Certificate of Appealability shall be issued with respect to any of Petitioner's claims; and the Court further
ORDERS that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
IT IS SO ORDERED. Dated: April 22, 2021
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge