Opinion
19-CV-2988 (GBD) (JLC)
03-10-2020
ALLEN PROCTOR, Petitioner, v. TIMOTHY McCARTHY, Respondent.
TABLE OF CONTENTS
I. BACKGROUND .................................... 1
A. Proctor's Arrest and Indictment .................................... 2
B. Motion to Inspect Grand Jury Minutes and to Dismiss the Indictment.................................... 4
C. Guilty Plea.................................... 4
D. Post-Conviction Proceedings .................................... 7
1. Motion to Withdraw Guilty Plea .................................... 7
2. Sentencing .................................... 7
3. Motion to Rehear and Reargue.................................... 9
4. Direct Appeal.................................... 11
E. The Instant Habeas Petition .................................... 13
II. DISCUSSION.................................... 14
A. Proctor's Request for Discovery .................................... 14
1. Legal Standard for Discovery in Habeas Cases.................................... 15
2. Proctor Cannot Demonstrate Good Cause for His Discovery Requests .................................... 16
a. The Bystander Victim's Medical Records .................................... 16
b. The Grand Jury Minutes .................................... 18
c. Prosecutor's Case File .................................... 19
B. Legal Standards for Habeas Relief Under Section 2254 .................................... 20
1. Exhaustion Doctrine .................................... 20
2. Procedural Bar to Claims Deemed Exhausted .................................... 21
3. Standards of Review Under AEDPA .................................... 22
4. Pro Se Status .................................... 24
C. Analysis .................................... 25
1. Defects Concerning the Grand Jury Proceedings and Indictment (Ground One).................................... 25
2. Conviction by Guilty Plea Obtained in Violation of Due Process (Ground Two).................................... 29
a. Voluntariness of Guilty Plea .................................... 30
i. Involuntariness Due to Coercion by Counsel .................................... 32
ii. Involuntariness Due to Ineffective Assistance of Counsel .................................... 36
iii. Involuntariness Due to Prosecutorial Misconduct .................................... 40
b. Prosecutorial Misconduct .................................... 41
i. Knowing Use of False Evidence .................................... 41
ii. Brady Violation .................................... 44
c. Sufficiency of Evidence .................................... 45
3. Ineffective Assistance of Trial Counsel (Ground Three) .................................... 47
4. Ineffective Assistance of Appellate Counsel (Ground Four).................................... 52
a. Failure to Argue the Jurisdictional Deficiency of the Indictment or Insufficiency of Evidence .................................... 54
b. Failure to Communicate.................................... 55
III. CONCLUSION .................................... 57
To the Honorable George B. Daniels, United States District Judge:
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Pro se petitioner Allen Proctor seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction of assault in the second degree. As a second felony offender, Proctor was sentenced to a determinate prison term of five years and five years of post-release supervision. Proctor also requests discovery pursuant to Rule 6(a) of the Federal Rules Governing Section 2254 Proceedings. Specifically, Proctor seeks the victim's medical records as well as the grand jury minutes or, in the alternative, access to the prosecutor's case file. For the reasons set forth below, Proctor's motion for discovery is denied, and I recommend that his habeas corpus petition be denied.
Because Proctor's discovery motion is not dispositive, I resolve it by order; the Petition itself is addressed by report and recommendation. See 28 U.S.C. § 636(b)(1)(A)-(B).
I. BACKGROUND
Given Proctor's conviction by guilty plea, the following facts, which are drawn from the record of his proceedings in state court, are set forth in the light most favorable to the State. See, e.g., Jacks v. Lempke, No. 09-CV-8768 (DAB) (FM), 2012 WL 3099069, at *1 (S.D.N.Y. July 24, 2012), adopted by 2012 WL 3930098 (Sept. 10, 2012).
The state court record (“SR.”) is filed as exhibit 1 of docket entry 17. Pinpoint citations to these filings refer to the pagination that runs throughout this document. All other page references, including those for memoranda, letters, and pleadings, will be to the pagination located at the bottom of the page.
A. Proctor's Arrest and Indictment
On August 20, 2011, Proctor stole a woman's purse while she was dining with her husband at a Manhattan restaurant. SR. 73-74. Upon observing Proctor's actions, the woman's husband attempted to retrieve the purse from Proctor as the two men made their way outside the restaurant. Id. During the struggle, they fell down steps in front of the restaurant, making contact with a bystander. Id. The woman's husband suffered scrapes and cuts, bruising, and bleeding to his knees and knuckles. Id. The bystander injured her left foot. Id. Proctor was arrested later that evening. Id. at 115.
Two days later, radiologist William A. Weiner, D.O., conducted an x-ray examination of the bystander's left foot and noted “no recent fracture appreciated.” Id. at 53. That same day, physician Michael C. Schwartz, M.D., conducted a physical examination of the individual and noted “evidence of nondisplaced fracture of the first metatarsal neck” in her left foot. Id. at 54.
Dr. Weiner's report, in relevant part, read:
There is diffuse osteopenia. There is 58 degrees hallux valgus. The changes to the neck of the second and third metatarsal suggesting healed stress fracture. No recent fracture appreciated. There is no joint space calcification or erosion. No soft tissue calcification. There is some soft tissue swelling of the dorsum of the distal foot.
No soft tissue calcification. There is some soft tissue swelling of the dorsum of the distal foot.
Impression: Hallux valgus.
Osteopenia and distal soft tissue swelling.Id. at 53.
Dr. Schwartz's report, in its entirety, read:
PHYSICAL EXAMINATION: On examination of the left foot, she has tenderness to palpation along the fifth metatarsal neck region which is quite extensive. She has diffuse swelling note in that area. The skin is intact. Distally she is grossly neurovascularly intact.
RADIOLOGICAL EXAMINATION: X-rays performed were reviewed and reveal evidence of nondisplaced fracture of the first metatarsal neck.
IMPRESSION: First metatarsal neck fracture.
PLAN: We will place her on a hard-soled type of shoe. I will have her modify activity. I will have her gradually increase activity level slowly as her symptoms improve. She understands and agrees.Id. at 54.
On September 12, 2011, a grand jury in New York County returned an indictment charging Proctor with assault in the second degree, N.Y. Penal Law § 120.05[6] (causing physical injury to a non-participant in the course of committing a felony or flight therefrom), five counts of grand larceny in the fourth degree, N.Y. Penal Law § 155.30[4], and five counts of criminal possession of stolen property in the fourth degree, N.Y. Penal Law § 165.45[2]. Id. at 65-70. The five counts of grand larceny and the five counts of criminal possession of stolen property correspond to the five credit cards contained in the woman's purse. Id. at 74.
“A person is guilty of assault in the second degree when . . . [i]n the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants ....” N.Y. Penal Law ¶ 120.05(6). “A person is guilty of grand larceny in the fourth degree when he steals property and when . . . [t]he property consists of a credit card or debit card ....” N.Y. Penal Law § 155.30[4]. “A person is guilty of criminal possession of stolen property in the fourth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when . . . [t]he property consists of a credit card, debit card or public benefit card ....” N.Y. Penal Law § 165.45[2].
B. Motion to Inspect Grand Jury Minutes and to Dismiss the Indictment Proctor, represented by Kevin Canfield, Esq., filed an omnibus motion on
October 10, 2011, in which he asked the New York County Supreme Court, among other things, to inspect the grand jury minutes and to dismiss the indictment. Id. at 79-87. By order dated December 12, 2011, Justice Ronald Zweibel, who presided over Proctor's case, conducted an in camera review of the grand jury minutes and determined “the evidence before the Grand Jury to be legally sufficient, the instructions to be proper and the proceeding to be otherwise unimpaired.” Id. at 104.
C. Guilty Plea
On January 10, 2012, Proctor pleaded guilty to second-degree assault in full satisfaction of the indictment and was sentenced, as a second felony offender, to five years in prison followed by five years of post-release supervision. Id. at 1-11. Justice Zweibel had offered Proctor that sentence earlier in the day but stated that the offer was available for that day only because the State would “be bringing the witnesses here.” Id. at 3. Counsel then requested time to confer with his client. Id. at 3.
Later that day, Proctor and counsel re-appeared before Justice Zweibel, who engaged in the following colloquy with Proctor:
Court: Is it your wish at this time to withdraw your heretofore entered plea of not guilty to this indictment, and are you now offering to plead guilty to assault in the second degree in full satisfaction of this indictment?
Proctor: Yeah.
Court: Are you entering this plea of your own free will?
Proctor: Yeah.
Court: How old are you?
Proctor: 55.
Court: Are you using drugs or medication of any kind at this time?
Proctor: No.
Court: Have you discussed the case and your plea with your attorney?
Proctor: Yeah.
Court: Have you had sufficient time to thoroughly discuss your decision to plead guilty?
Proctor: Yeah.
Court: Are you pleading guilty because [you are] in fact guilty of this crime?
Proctor: Yeah.
Court: Do you understand that by pleading guilty, you are waiving your constitutional rights, which include your right to trial by jury, your right to confront witnesses against you, your right to remain silent, and your right to put the State to its burden of proving your guilt beyond a reasonable doubt?
Proctor: Yeah.
Court: Do you also understand if you[r] plea of guilty is accepted by this Court, it will be essentially the same [as] if you were found guilty of assault in the second degree?
Proctor: Yes, your Honor.
Court: Do you understand the charge you are pleading guilty to; is that correct?
Proctor: Yes.
Court: Has anyone, including the Court, the assistant district attorney, your lawyer, or anyone else forced or threatened you to enter this plea of guilty?
Proctor: No.
Court: The indictment charges you with assault in the second degree, committed as follows: The defendant in the County of New York on or about August 20, 2011, in the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in Article 130 which requires corroboration for conviction, and in the immediate flight therefrom, caused physical injury to a person known to the Grand Jury who was not a participant in the crime. Do you admit to that charge? I can't hear you.
Proctor: Yeah.
Court: I am agreeing to sentence you in accordance with the plea agreement that was entered into between yourself and the district attorney's office, whereby you will receive a five year determinate sentence and five years post release supervision. Do you understand that?
Proctor: Yeah.
Court: Have any other promises been made aside from that promise?
Proctor: No.Id. at 5-7.
The court then accepted Proctor's plea. Id. He declined to challenge his previous conviction of grand larceny in the fifth degree, rendering him a predicate felon. Id. at 8.
D. Post-Conviction Proceedings
1. Motion to Withdraw Guilty Plea
By Pro se letter dated January 17, 2012, Proctor advised the court: “[A]lthough on January 10, 2012, I reluctantly and hesitantly entered a plea of guilty to Assault, Second Degree, such plea was not voluntarily or intelligently entered as I am innocent of the assault charge. In addition, an affirmative defense of justification exists.” Id. at 105. Proctor stated that he was trying to contact his attorney, “but cannot contact him in an expedient manner.” Id.
In a second Pro se letter dated January 30, 2012, Proctor advised the court: “I have recently spoken with counsel, and my plea was voluntarily and intelligently made, so please disregard my letter dated January 17, 2012.” Id. at 111.
2. Sentencing
Proctor, along with counsel, appeared before the court on April 27, 2012 for sentencing. Id. at 12-17. The prosecutor relied on the promised sentence, while Canfield said that he had nothing to add. Id. at 13. Proctor then “object[ed] to the sentencing,” asking the court “to consider [his] motion to withdraw [his] plea, . . . to not summarily deny the motion but agree to see if it has any merit.” Id. at 14. He reasoned: “I have recently found out, according to Mr. Canfield, that he had absolutely no contact with the District Attorney during these proceedings. He did not advocate on my behalf ....” Id. at 14. Justice Zweibel responded: “Mr. Proctor, you were fully allocated with regard to this particular crime. I'm not adjourning this at this time.” Id.
Proctor continued to press the court: “Your Honor, not only that, the sentence that I pleaded guilty to, the [f]ive years supervision, I'm not a second violent offender. It's a second violent felony sentence. In other words, that is not a valid sentence pursuant to 70.45. That's for a second. I'm not a violent felony offender.” Id. After the court confirmed that he was a second felony offender, not a violent felony offender, Proctor stated: “Right. But five years post [release supervision] is for a violent. I am not. Your Honor, I ask you to review it, sir.” Id. at 15.
Additionally, Proctor asserted a “very possible” justification. Id. Without elaborating, Proctor also pointed to concerns about the “bystander that was allegedly injured during an incident.... There's two conflicting medical reports. One doctor says one thing. Another doctor says another thing.” Id.
Finally, Proctor complained that Canfield, “a qualified attorney” who “has too many cases,” failed “to obtain a very possible alleged exculpatory videotape . . . that allegedly designated another person as the additional aggressor.” Id. at 16.
After clarifying that Proctor was “a predicate” offender, “[n]on-violent on the past [offense]” but “[t]his [one] is a violent,” the court stated: “Defendant is going to be sentenced in accordance with the plea agreement, five year-determinate sentence and five years' post release supervision.” Id. at 15-16. Defense counsel advised the court that he notified Proctor of his right to appeal. Id. at 16.
At the conclusion of the hearing, the court declined to permit Proctor to submit papers, effectively denying his motion to withdraw his guilty plea. Id.
3. Motion to Rehear and Reargue
On May 5, 2012, Proctor moved Pro se to rehear and reargue his motion to withdraw his guilty plea. Id. at 120-43. He argued that his attorney provided ineffective assistance for “fail[ing] to develop potential justification arguments, and fail[ing] to obtain discoverable documents/materials”; that, as a result of counsel's ineffective assistance as well as his coercion, his guilty plea was not made voluntarily; that his guilty plea was also “inappropriate” because the dropped robbery charge demonstrated a dispute over the facts; that he was innocent; and that he was improperly sentenced as a second violent predicate felony offender. Id. at 134-41.
In his cover letter accompanying the motion, Proctor also stated that he was seeking dismissal of the indictment. Id. at 120. Although Proctor filed an affirmation stating that he “was illegally precluded from testifying before the Grand Jury,” Id. at 30, he does not address this relief in his memorandum of law filed with the motion.
In support of his motion, Proctor attached as an exhibit a November 2, 2011 letter he had addressed to Canfield, which stated, in part: “[P]lease kindly give greater attention to the letter dated November 1, 2011, where I sent to you proof/evidence of missing subpoenaed crucial medical reports, as well as inconsistent medical findings by two different doctors as to the victim's alleged injuries. Hopefully, such evidence affects the validity of the indictment.” Id. at 143.
On August 23, 2012, Justice Zweibel denied Proctor's motion in its entirety. Id. at 154-68. The court recalled Proctor's allocution:
[T]here was nothing that caused this Court to believe that defendant was innocent as he now claims. Defendant
admitted his guilt of the facts in the indictment with respect to the assault of the bystander and does not recant the facts admitted. In fact, if defendant's claims are looked at closely, he basically argues his innocence by placing a different interpretation on the inferences that may be drawn from the facts by speculating.... The Court notes defendant does not deny stealing the purse from the restaurant. Thus, defendant's claim of innocence is belied by the record.Id. at 159-60.
The court also rejected Proctor's claim of coercion. Id. Not only were the allegedly coercive statements by counsel not on the record but what was on the record undermined his claims:
On the record, the Court made its offer and granted defense counsel time to discuss it with defendant. When the case was eventually recalled on the record, defendant stated that he was pleading guilty because he was guilty and that no one forced or threatened him to enter the plea. He also stated that he had discussed the plea with his attorney and that they had sufficient time to discuss the plea. The People stated that they told defense counsel that they were adhering to their recommendation of seven years. Hence, there is no evidence that further negotiation would have resulted in a lesser plea.
Furthermore, contrary to defendant's own conclusory selfserving statements with respect to the allocution, the record establishes that defendant's plea was intelligently, voluntarily and knowingly entered with full knowledge of its consequences, of the sentence that would be imposed by this Court and that he would be sentenced as a second felony offender. Defendant admitted that he was entering the guilty plea of his own free will and admitted to the acts set forth in the indictment, waived his constitutional rights, stated that the only promise made to him was the one offered by this Court and that he was neither forced nor threatened to enter the plea.Id. at 161-62 (citations omitted).
In addition, the court rejected Proctor's claim that he was denied effective assistance of counsel, noting, among other reasons, that “defendant received an advantageous plea.” Id. at 163.
Assault in the Second Degree . . . carried a potential determinate term of imprisonment of at least three years and a[] maximum of seven years as defendant was a second felony offender. The People were recommending that defendant be sentenced to the maximum sentence of seven years' incarceration. If defendant went to trial and was convicted of all the counts, he faced consecutive sentences and substantially more time. Defendant counsel convinced this Court to offer defendant a sentence of five years incarceration. Thus, since defense counsel negotiated a plea at least two years below the maximum sentence on a single count of the indictment, defendant received meaningful representation.Id. at 164 (citations omitted).
Finally, the court concluded that the sentence was proper:
The record clearly reflects that the plea agreement was at all times premised on defendant being sentenced as a second felony offender, as defendant himself concedes he is, and that this Court explicitly informed him that he was not being sentenced as a second violent felony offender but as a second felony offender. Five years [of post-release supervision] was the correct period for a second felony offender convicted of a violent felony offense.Id. at 165-66.
4. Direct Appeal
Proctor, represented by Marianne Karas, Esq., appealed his conviction to the First Department, contending that (1) the lower court (a) abused its discretion in denying his motion to withdraw his guilty plea “where appellant claimed that he is innocent, claimed that he had a specific, affirmative defense of justification and made claims against his attorney,” and (b) “denied appellant constitutional due process rights . . . when it refused to allow appellant to even file motion papers on the matter”; and (2) his counsel was ineffective “insofar as the lower court failed to appoint counsel to represent appellant on his motion to withdraw his plea where appellant made statements alerting the lower court that counsel did not speak on his behalf, where appellant made claims against his attorney such that a conflict of interest existed, and where counsel did not advocate for appellant in any way on the motion to withdraw the plea and at sentence.” Id. at 169-99.
The First Department rejected Proctor's arguments and affirmed his conviction on December 14, 2017. People v. Proctor, 156 A.D.3d 513 (2017):
The court providently exercised its discretion in denying defendant's motion to withdraw his plea. “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted in rare instances[.]” (People v. Brown,14 N.Y.3d 113, 116 (2020) (internal quotation marks omitted)). Defendant received a full opportunity to present his challenges to the plea.
The plea record show that defendant knowingly, intelligently, and voluntarily pleaded guilty in exchange for a favorable sentence (see People v. Fiumefreddo 382 N.Y.2d 536, 543 (1993)). The sentencing court had sufficient information to determine that defendant's claims of innocence and ineffective assistance were meritless and warranted neither a hearing nor the assignment of new counsel (see, e.g., People v. Mangum, 12 A.D.3d 207 (2004), lv. denied, 4 N.Y.3d 765 (2005)). In particular, defendant's central claim that he had a viable justification defense was undermined by his admission in
his plea allocution that he committed an assault in the course of committing a felony.Id. at 514 (internal quotation and citation omitted).
Proctor then sought leave to appeal the First Department's decision to the Court of Appeals. The Court of Appeals denied leave to appeal on April 4, 2018. People v. Proctor, 31 N.Y.3d 1016 (2018).
E. The Instant Habeas Petition
On March 26, 2019, Proctor, proceeding Pro se, filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Petition for Writ of Habeas Corpus dated March 26, 2019 (“Pet.”), Dkt. No. 1; Memorandum of Law (“Pet. Mem.”), Dkt. No. 2. On April 17, 2019, Judge Daniels referred the proceeding to me for a report and recommendation. Dkt. No. 7. In his petition, Proctor contends that: (1) the indictment was jurisdictionally defective because the prosecutor knowingly presented false evidence to the grand jury; (2) his conviction by guilty plea “lacked due process” as there was “insufficient evidence of physical injury to complainant”; (3) trial counsel was ineffective for failing to make the above jurisdictional deficiency and legal insufficiency arguments; and (4) appellate counsel was ineffective for not communicating with Proctor as to what grounds she would raise on appeal, and for not making the jurisdictional deficiency and legal insufficiency arguments. By letter dated March 29, 2019 (“Pet. Supp.”), Proctor supplemented his petition by arguing, as an additional ground for habeas relief, that because his other charges were dismissed in full satisfaction of his indictment, an essential element for second degree assault-the commission of an underlying felony-had not been met. Dkt. No. 10.
For purposes of establishing a date of filing, I apply the prison-mailbox rule under which a petition is considered to be “filed” by a Pro se prisoner on the date it is given to a prison official for mailing (which I infer to be on the date it was signed). See, e.g., Houston v. Lack, 487 U.S. 266, 271-72 (1988); Hodge v. Greiner, 269 F.3d 104, 106 (2d Cir. 2001).
Respondent filed opposition papers on July 17, 2019. Answer, Dkt. No. 17; Exhibit A to Answer (State Record), Dkt. No. 17-1; Memorandum of Law in Opposition to Petition for Habeas Corpus, Dkt. No. 18 (“Pet. Opp.”); Letter Response to Additional Ground dated August 21, 2019, Dkt. No. 27.
After several extensions, Proctor's reply papers (“Pet. Reply”) were filed on January 24, 2020, Dkt. No. 43, and a supplement to his reply (“Pet. Reply Supp.”) was filed on January 26, 2020, Dkt. No. 41.
II. DISCUSSION
A. Proctor's Request for Discovery
On July 24, 2019, the Court received a motion from Proctor seeking discovery pursuant to Rule 6(a) of the Federal Rules Governing Section 2254 Proceedings. Discovery Motion (“Disc. Mot.”), Dkt. No. 20. Proctor seeks the medical records of the bystander victim from NYU Winthrop Hospital's Emergency Department as well as the grand jury minutes in his case. Id. at 1. Alternatively, Proctor seeks access to the New York County District Attorney's Office case file relative to the prosecution of this case. Id. ¶ 25. In addition, Proctor requests that counsel be assigned to assist him in furtherance of this motion. Id. ¶ 27. Respondent filed a letter in opposition to Proctor's discovery motion (“Disc. Opp.”) on July 24, 2019. Dkt. No. 21. Proctor's reply papers (“Disc. Reply”) were filed on January 2, 2020, Dkt. No. 27, and a supplement to his reply papers (“Disc. Supp. Reply”) were filed on January 23, 2020, Dkt. No. 42.
Despite the brief's title “Supplemental Memorandum of Law in Reply to Respondent's Letter-Brief in Opposition to Petitioner's Motion for Discovery,” this submission will be referred to as “Disc. Reply” because it is dated earlier than the submission that I will refer to as “Disc. Supp. Reply.”
1. Legal Standard for Discovery in Habeas Cases
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, Rule 6(a) of the Rules Governing Section 2254 Proceedings provides that a “judge may, for good cause, authorize a party to conduct discovery . . . .” 28 U.S.C. § 2254, Rule 6(a). Good cause requires more than “[g]eneralized statements regarding the possible existence of discoverable material.” Pizzuti v. United States, 809 F.Supp.2d 164, 176 (S.D.N.Y. 2011) (citations omitted); see also Gonzalez v. United States, No. 12-CV-5226 (JSR) (JLC), 2013 WL 2350434, at *3 (S.D.N.Y. May 23, 2013), reconsideration denied in part, 2013 WL 4453361 (S.D.N.Y. July 9, 2013); Edwards v. Superintendent, Southport C.F., 991 F.Supp.2d 348, 364 (E.D.N.Y. 2013) (citations omitted). Moreover, “Rule 6 does not license a petitioner to engage in a ‘fishing expedition' by seeking documents ‘merely to determine whether the requested items contain any grounds that might support his petition, and not because the documents actually advance his claims of error.'” Gonzalez, 2013 WL 2350434, at *3 (quoting Pizzuti, 809 F.Supp.2d at 176); see also, e.g., Ruine v. Walsh, No. 00-CV-3798 (RWS), 2005 WL 1668855, at *6 (S.D.N.Y. July 14, 2005) (quoting Charles v. Artuz, 21 F.Supp.2d 168, 169 (E.D.N.Y. 1998). “A petitioner can meet his burden of showing ‘good cause' for discovery only when ‘specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.'” Gonzalez, 2013 WL 2350434, at *3 (quoting Bracy, 520 U.S. at 908-09); see also, e.g., Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003); Edwards, 991 F.Supp. at 364 (citation omitted).
2. Proctor Cannot Demonstrate Good Cause for His Discovery Requests
a. The Bystander Victim's Medical Records
Proctor requests the bystander victim's medical records from the emergency room that initially treated her in order to ascertain the extent or existence of her injuries from the incident. Disc. Mot. ¶ 2. Proctor maintains that this evidence will demonstrate that the victim did not suffer a physical injury, an essential element of assault in second degree, and will support his habeas claim that “there was legally insufficient evidence to convict him of Second Degree Assault, and that his conviction was therefore obtained in violation of Due Process provisions.” Id. ¶ 1 (citing U.S. amends. V, XIV). In particular, Proctor seeks to examine the victim's medical records to see if he can find any evidence confirming his suspicions that Dr. Schwartz's medical report was “patently false.” Id. ¶ 7. He suspects that Dr. Schwartz's medical report was false because it stated that the victim's x-rays “revealed evidence of a nondisplaced fracture,” whereas Dr. Weiner noted that the x-rays revealed “no recent fracture.” Id. “[B]ased on the disputed existence or extent of the complainant's alleged physical injury, including the vast dispute of the conflicting medical records and contradictory medical diagnoses,” Proctor explains, “there exists a compelling need for disclosure of [the Winthrop Hospital Emergency Department medical] records, so that petitioner may analyze, compare, and review the medical records as they may very well support his specific allegations that the complainant did not sustain a ‘physical injury' ....” Id. ¶ 2.
The Court concludes that Proctor has not shown good cause for compelling production of the victim's medical records. As an initial matter, there is no indication that the State has these records in its possession. More importantly, his request is based entirely on speculation that these medical records would somehow exonerate him by revealing that the victim did not suffer any physical injury. See Disc. Reply. Supp. at 6 (“such medical records would have served to prove the absence of physical injury to the complainant, and, therefore, petitioner's innocence of assault”). Because Proctor has identified nothing specifically suggesting that the medical records he seeks will yield evidence supporting his claim, the proposed discovery would amount to a fishing expedition. In addition, to the extent he seeks documents in support of his pre-plea claims, as is discussed below, such evidence would not be relevant given that these claims are barred by his guilty plea. Thus, Proctor cannot establish that the material he seeks would be material to the outcome of his habeas petition. Therefore, the production of the victim's medical records, even assuming that the State possesses them, could not lead to habeas relief. Accordingly, the request for discovery of the victim's medical records is denied.
b. The Grand Jury Minutes
Proctor also requests that the Court permit his discovery of the grand jury minutes to support his habeas claim of a “jurisdictional deficiency of the indictment” as a result of possible defects in the grand jury proceedings: either “(1) the prosecutor did not make any Grand Jury presentation; (2) the complainant did not appear before the Grand Jury to provide requisite testimony; (3) the prosecutor knowingly presented false or partially false evidence to the Grand Jury; and/or (4) no legally sufficient evidence was presented to the Grand Jury.” Disc. Mot. ¶ 11 (footnote omitted). However, as discussed in detail below, “it is well-settled that claims based on the sufficiency of the evidence presented to a state Grand Jury are not cognizable under federal law and thus are not reviewable in a habeas corpus petition.” Walker v. Brown, No. 08-CV-1254 (BMC), 2009 WL 2030618, at *7 (E.D.N.Y. July 10, 2009) (citations omitted); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (“[F]ederal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, [and] similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.”). Moreover, a knowing and voluntary guilty plea renders “any errors in the grand jury proceeding” harmless. See Jordan v. Dufrain, No. 98-CV-4166 (MBM), 2003 WL 1740439, at *3 (S.D.N.Y. Apr. 2, 2003); see also Tollett v.n Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. 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.”); Alston v. Ricks, No. 01-CV-9862 (GWG), 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003) (“[A] guilty plea extinguishes the ability of a habeas petitioner to raise a claim regarding misconduct before a grand jury.”).
Accordingly, because claims regarding sufficiency of the evidence presented in a state court grand jury proceeding, especially when a guilty plea has been entered by a criminal defendant, are foreclosed from federal habeas corpus review, Proctor's request for the grand jury minutes is denied.
c. Prosecutor's Case File
In the alternative, Proctor seeks access to the prosecutor's file relative to this case. Disc. Mot. ¶ 25. Based on the prosecution's allegedly knowing use of false evidence, i.e., Dr. Schwartz's report, the fact that Dr. Schwartz is not a qualified radiologist like Dr. Weiner, and “all other related allegations and supporting arguments,” Proctor argues, “it is abundantly clear that the prosecutor-if a Grand Jury presentation was even made-presented misleading, erroneous, prejudicial and incomplete evidence to the Grand Jury, and/or otherwise, us[ed] same, unconstitutionally obtained petitioner's guilty plea.” Id. ¶ 26. He maintains that discovery of the District Attorney's case file “would effectively operate to further support such contentions.” Id. (citations omitted). For the same reasons stated above-namely, that his grand jury claims are not cognizable under habeas review, that he has offered no basis for his conclusion that the evidence at issue was, in fact, false (much less knowingly used as such), and that these contentions are barred by his guilty plea-he fails to demonstrate good cause for this request. Moreover, it is not limited in scope, as he seeks all documents in the District Attorney's case file, including work product. Discovery of such information is therefore not warranted.
Because Proctor has not shown that discovery will permit him to demonstrate that he is entitled to relief, his request for discovery is denied in its entirety. Consequently, his request for counsel to assist him with this motion is moot.
B. Legal Standards for Habeas Relief Under Section 2254
1. Exhaustion Doctrine
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”); § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); 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.”). The exhaustion requirement is grounded in principles of comity and federalism. O'Sullivan, 526 U.S. at 844 (“Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”) (citations omitted).
2. Procedural Bar to Claims Deemed Exhausted
Even if a claim has been deemed exhausted, federal courts “generally will not consider a federal issue in a case ‘if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002)). “[W]hen ‘faced with an independent and adequate state ground' for the decision, ‘principles of comity and federalism' compel us to ‘defer' to that state law ground and thus to decline to review the federal claim.” Whitley v. Ercole, 642 F.3d 278, 285 (2d Cir. 2011) (quoting Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999)). In such circumstances, petitioners are procedurally barred from seeking federal habeas review. See Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996).
Furthermore, the procedural bar for independent and adequate state grounds applies even if the state court had also addressed the merits in reaching an alternative holding. See, e.g., Whitley, 642 F.3d at 286, n.8; see also Harris v. Reed, 489 U.S. 255, 264, n.10 (1989) (“Moreover, a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”).
The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate . . . that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage of justice is “an extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
3. Standards of Review Under AEDPA
The AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under the AEDPA, courts may only grant a habeas petition if the challenged state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision; or (2) “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)-(2).
Under the first prong, the “Supreme Court has instructed that section 2254(d)(1)'s ‘contrary to' and ‘unreasonable application of' clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). “A state court decision is ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court' when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'” Id. at 544 (quoting Williams, 529 U.S. at 412-13); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).
A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (quoting White, 572 U.S. at 420). The standard “is difficult to meet,” and it was intended to be. Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
Under the second prong, a state court's determination of fact “may not [be] characterize[d] . . . as unreasonable ‘merely because [a reviewing court] would have reached a different conclusion in the first instance.'” Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference. If ‘[r]easonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Id.
4. Pro Se Status
A petitioner bears the burden to establish, by a preponderance of the evidence, that his constitutional rights have been violated. See, e.g., Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). However, the submissions of a Pro se petitioner are held to less stringent standards than formal pleadings drafted by lawyers. See, e.g., Davis v. Walsh, No. 08-CV-4659 (PKC), 2015 WL 1809048, at *1, n.1 (E.D.N.Y. Apr. 21, 2015) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Courts must liberally construe a “Pro se petition ‘to raise the strongest arguments' it suggests.” Id. (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
C. Analysis
Proctor's petition for habeas relief is based on the following grounds:
(1) defects in the grand jury proceedings undermining the indictment (“Ground One”); (2) due process violations undermining his conviction (“Ground Two”); (3) ineffective assistance of trial counsel for failure to argue claims (1) and (2) (“Ground Three”); and (4) ineffective assistance of appellate counsel for failure to argue claims (1) and (2) and for failure to communicate with him (“Ground Four”). Pet. ¶ 12.
The Court considers Proctor's separately added ground for habeas relief-that the element requiring the commission of an underlying felony for conviction of an assault in the second degree, was not satisfied, Pet. Supp. at 1-as related to Ground Two.
1. Defects Concerning the Grand Jury Proceedings and Indictment (Ground One)
Proctor first claims that the indictment was jurisdictionally defective because “[t]he prosecutor knowingly used false evidence of felony complaint and false medical records which falsely stated that the complainant sustained a fractured ankle.” Pet. ¶ 12, at 6 (Ground One). Proctor also complains that “the complainant failed to testify before the Grand Jury.” Id. Respondent, presuming that Proctor is referring to the allegedly false medical report by Dr. Schwartz, of which Proctor primarily complains in his papers, notes that this evidence had not been obtained until after the indictment was filed. Pet. Opp. at 1-2 (medical reports “became available after petitioner had been indicted”). Proctor takes issue with Respondent's characterization of this contention, clarifying that he “explicitly contended that ‘no' medical records were presented to the Grand Jury.” Disc. Reply ¶ 11 (citing Pet. ¶ 11(a)(5), grounds raised in his motion to withdraw). Thus, it is not clear what “false” evidence, if not the medical report by Dr. Schwartz, to which Proctor is referring. Indeed, the only “false” evidence that Proctor consistently identifies is Dr. Schwartz's report. Regardless of whether Proctor is arguing that the prosecutor presented false or insufficient evidence to the grand jury, rendering the indictment jurisdictionally defective, this claim fails.
There is nothing in the record as to when this evidence was precisely obtained, but both parties appear to agree that the medical records were not obtained until after the indictment was filed. See Pet. Opp. at 1-2; Pet. ¶ 12, at 6 (“the medical records were not obtained by the prosecutor until after the indictment was filed”), Disc. Mot. ¶ 15 (“the prosecutor did not possess the evidence of Dr. Schwartz's false medical records until after the indictment was filed”), Disc. Reply ¶ 10 (“the medical records . . . were clearly and irrefutably received by the prosecutor and filed with the court postindictment”).
As an initial matter, this claim is unexhausted because Proctor has never raised it in any state court proceeding. See Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (“[T]he exhaustion doctrine provides that a habeas petitioner seeking to upset his state conviction on federal grounds must first have given the state courts a fair opportunity to pass upon his federal claim.”). Even if Proctor had exhausted this claim, “[h]abeas corpus is not available to test the sufficiency of the indictment.” United States ex rel. Mintzer v. Dros, 403 F.2d 42, 43 (2d Cir. 1967); see, e.g., Marcus v. Conway, No. 04-CV-64 (JSR), 2007 WL 1974305, at *4 (S.D.N.Y. July 5, 2007) (“The petitioner's claim, that he had a constitutional right to be tried for robbery based on a grand jury indictment free of defect, does not provide a basis for habeas review because the claim does not present a federal question, as required by 28 U.S.C. 2254(a).”). Likewise, claims based on alleged defects in grand jury proceedings are not cognizable in a federal habeas petition. See Davis v. Mantello, 42 Fed.Appx. 488, 490-91 (2d Cir. 2002) (“[C]laims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.”) (citing cases); see, e.g., May v. Warden, No. 07-CV-2176 (BSJ), 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010) (“There is no federal constitutional right to a grand jury in a state criminal prosecution, and thus a claim of deficiency in the proceeding is not ‘cognizable in a habeas corpus proceeding.'”) (internal citation omitted) (citing, inter alia, Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990)).
Moreover, Proctor's guilty plea, which the Court finds valid, see infra at 3042, cured any possible deficiency in the grand jury proceeding. See United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995) (“[A]ny error in the grand jury proceedings must be considered harmless in light of Hansel's guilty plea.”); see, e.g., Nordahl v. Rivera, No. 08-CV-5565 (KMK), 2013 WL 1187478, at *5 (S.D.N.Y. Mar. 21, 2013) (“Because Petitioner pled guilty and now seeks to challenge the sufficiency of the evidence before the Grand Jury, Petitioner's claim must be rejected.”); Smith v. Burge, No. 03-CV-8648 (RWS), 2005 WL 78583, at *7-8 (S.D.N.Y. Jan. 12, 2005) (claim that state prosecutor committed misconduct by admitting false evidence before state grand jury not cognizable on habeas review after guilty plea).
Even were the Court to consider Proctor's arguments concerning the grand jury, his vague and conclusory allegations are insufficient to establish that the evidence presented to the grand jury was, in any fashion, improper. Notably, in response to Proctor's motion for inspection and/or dismissal of the grand jury minutes, Justice Zweibel examined them and found “the evidence before the Grand Jury to be legally sufficient, the instructions to be proper and the proceeding to be otherwise unimpaired.” SR. at 104.
Turning to the count in the indictment at issue, it states: “The defendant in the County of New York, on or about August 20, 2011, in the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article 130 which requires corroboration for conviction, and in the immediate flight therefrom, caused physical injury to a person known to the Grand Jury, who was not a participant in the crime.” Id. at 65. “Challenges to state indictments are only cognizable on habeas review if the indictment fails to satisfy the basic due process requirements: notice of ‘the time, place, and essential elements of the crime.'” Scott v. Superintendent, Mid-Orange Corr. Facility, No. 03-CV-6383 (RJD), 2006 WL 3095760, at *6 (E.D.N.Y. Oct. 31, 2006) (quoting Carroll v. Hoke, 695 F.Supp. 1435, 1438 (E.D.N.Y. 1988), aff'd, 880 F.2d 1318 (2d Cir. 1989)) (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)). Proctor fails to articulate any specific error in his indictment and the Court finds no error in the indictment that violated Proctor's constitutional rights.
In sum, Proctor's claim for habeas relief with respect to his grand jury proceedings and indictment should be denied.
2. Conviction by Guilty Plea Obtained in Violation of Due Process (Ground Two)
Apart from defects undermining the grand jury proceedings and indictment, Proctor claims that his conviction was obtained in violation of due process for a number of reasons. Primarily, Proctor argues that the only evidence in support of the State's case against him, i.e., Dr. Schwartz's medical report, was, in fact, fabricated, and that the prosecutor knowingly used this false evidence to obtain his guilty plea. Pet. Mem. at 5; Pet. Reply at 6. Proctor also complains that the prosecutor withheld exculpatory medical records allegedly showing that the bystander victim did not suffer a physical injury. Pet. Mem. at 6-7; Pet. Supp. Reply at 5-7. As a result, “[t]here was no evidence of the requisite element of physical injury” to sustain his conviction for assault in the second degree. Pet. ¶ 12, at 7 (Ground Two). Relatedly, he contends that the requisite element of commission of an underlying felony, also required to establish assault in the second degree, was not met because the other charges in the indictment were dropped after he pled guilty to the assault count. Pet. Supp. at 1. Furthermore, based on “the People's knowing introduction of false medical records as evidence upon which Petitioner's guilty plea was predicated,” Pet. Mem. at 4, Proctor suggests that his guilty plea was not, in fact, voluntary (although this claim was not explicitly argued as a ground for relief). Each of these claimed due process violations-prosecutorial misconduct, insufficiency of the evidence, and involuntariness of his guilty plea-is without merit.
a. Voluntariness of Guilty Plea
Proctor does not raise the voluntariness of his guilty plea as a ground for habeas relief, and Respondent contends that none of Proctor's claims for habeas relief implicates the voluntariness of his guilty plea. Pet. Opp. at 2, 18-20. On reply, Proctor counters that, “[c]ontrary to respondent's arguments, petitioner did challenge the voluntariness of his guilty plea. He did so by filing a motion to withdraw the plea, which preserved his right to argue that his plea was not knowingly, voluntarily or intelligently made.” Pet. Reply at 6. Indeed, collectively, Proctor's claims appear to suggest a challenge to the plea on the basis that it was not made voluntarily. Because Proctor's petition stated, as a ground for relief, that his conviction by guilty plea “lacked due process,” Pet. ¶ 12, at 7, given the liberal construction afforded to Pro se pleadings, I find that that this allegation was sufficient to raise a claim as to whether the plea was knowing and voluntary.
After his motion to withdraw his plea was denied at sentencing, Proctor moved Pro se to rehear and reargue this motion, claiming that his guilty plea was made involuntarily. SR. at 120-43. On direct appeal, Proctor argued, inter alia, that the court abused its discretion by denying his motion to withdraw his plea. Id. at 180-88. This argument was renewed on his application for leave to appeal. Id. at 230-31. His claim is thus exhausted and is not subject to any state procedural bars. Therefore, the merits of a claim challenging his guilty plea should be analyzed under the AEDPA standard of review.
Given the liberal construction afforded to Pro se pleadings, and in light of the record as a whole, Proctor appears to argue that his guilty plea was undermined by his counsel's coercion and by false evidence knowingly used by the prosecutor. SR. at 138 (“the plea had not been entered voluntarily or intelligently due to . . . counsel's duress and coercion for defendant to plead guilty”); Disc. Reply Supp. at 6 (“Petitioner would not have pleaded guilty if the Winthrop Hospital Records would have been disclosed indicating a contrary diagnosis to Dr. Schwartz's diagnosis, . . . alerting Petitioner that Dr. Schwartz's false report was fabricated and untrue.”).
Constitutional due process requires that a guilty plea be voluntary, knowing, and intelligent. See, e.g., Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005); United States v. Ruiz, 536 U.S. 622, 629 (2002); Bousley, 523 U.S. at 618. “The standard 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.'” Urena v. People of the State of New York, 160 F.Supp.2d 606, 610 (S.D.N.Y. 2001) (quoting Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992)). “A plea is ‘intelligent' and ‘voluntary' when a defendant had the advice of counsel, understood the consequences of his plea and the plea was not physically or mentally coerced.” Heron v. People, No. 98-CV-7941 (SAS), 1999 WL 1125059, at *5 (S.D.N.Y. Dec. 8, 1999). 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.'” Bousley, 523 U.S. at 619 (quoting Brady v. United States, 397 U.S. 742, 744 (1970)). “‘It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.'” Id. at 621 (quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)).
i. Involuntariness Due to Coercion by Counsel
Proctor had argued, in his motion to rehear his motion to withdraw his guilty plea, that he was coerced by counsel who allegedly told him, “You must make up your mind right now because the ADA is ready to fly in the complainants.” SR. at 138. “Counsel had earlier informed [Proctor] that . . . he would most likely receive consecutive sentences on the grand larceny counts.” Id. As an initial matter, these statements by Proctor's attorney are “not on the record and made solely by defendant,” as noted by Justice Zweibel. Id. at 160. Even if proven to have been made, the alleged statement by Proctor's attorney, urging him to “make up [his] mind right now,” clearly defers to Proctor to decide whether to plead guilty. Proctor does not contend that his attorney specifically told him what action to take or that he had to take it. In any event, strong advice from counsel to accept a plea does not rise to the level of coercion that would render such a plea involuntary. Rather, it merely reflects counsel's “truthful, if unwelcome, advice regarding the strength of the People's case . . . [and] the advisability of accepting the plea bargain.” Lightfoot v. Smith, No. 05-CV-444 (RJS), 2008 WL 515051, at *9 (S.D.N.Y. Feb. 25, 2008) (citing United States v. Juncal, 245 F.3d 166, 172 (2d Cir. 2001)); see, e.g., Harris v. Hulihan, No. 11-CV-3019 (RA) (MHD), 2012 WL 5265624, at *14 (S.D.N.Y. Aug. 8, 2012) (“Although petitioner attempts to undermine the validity of his plea by contending that counsel's statement ‘induced' his guilty plea, any advice about the likelihood of losing at trial is an important part of the decision-making process related to a plea offer.”) (citations omitted), adopted by 2012 WL 5266175 (Oct. 23, 2012); Reed v. Brown, No. 10-CV-3072 (PGG), 2012 WL 34092, at *6 (S.D.N.Y. Jan. 6, 2012) (“[t]he fact that [petitioner]'s lawyer urged him to accept a highly favorable plea does not establish coercion”); France v. Strack, No. 99-CV-2510 (JG), 2001 WL 135744, at *3 (E.D.N.Y. Jan. 30, 2001) (“strong advice from counsel does not amount to the kind of coercion that renders a plea involuntary when the state has considerable evidence of guilt”).
That Proctor was given a specific time frame within which to consider the plea offer is also not sufficient to demonstrate that he was coerced into entering a plea of guilty. See, e.g., Alexis v. Smith, No. 03-CV-391 (SAS), 2003 WL 22434154, at *5 (S.D.N.Y. Oct. 24, 2003) (“Nor is the imposition of a deadline by which a defendant must accept or reject a plea considered undue pressure as pleas in both state and federal court are commonly subject to time limits.”). Indeed, during the plea allocution, Proctor affirmed that he had sufficient time to discuss the plea with his attorney. SR. at 5.
Moreover, his allegations of coercion and involuntariness are contradicted by his sworn statements to the contrary at the plea allocution. Proctor told the court under oath that no one had forced or pressured him to plead guilty and that he was doing so freely and of his own volition because he was, in fact, guilty. SR. at 5-6. As the Supreme Court has noted, statements made at plea allocutions “carry a strong presumption of verity” and “constitute a formidable barrier in any subsequent collateral proceeding.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see, e.g., Adames v. United States, 171 F.3d 728, 732-33 (2d Cir. 1999) (statements at plea allocution “‘carry a strong presumption of verity' . . . and are generally treated as conclusive in the face of the defendant's later attempt to contradict them”) (citing cases); see, e.g., Lopez v. Miller, No. 05-CV-7060 (AJP), 2007 WL 2032839, at *9 (S.D.N.Y. July 17, 2007) (state court entitled to credit defendant's sworn statements during guilty plea allocution over later self-serving allegations of coercion) (collecting cases); Gomez v. Duncan, No. 02-CV-846 (LAP) (AJP), 2004 WL 119360, at *19 (S.D.N.Y. Jan. 27, 2004) (“This Court may credit [petitioner's] statements at the plea allocution-that his guilty plea was voluntary and not the result of any threats or promises-over his later allegations of coercion.”) (citing cases), adopted by Dkt. No. 39 (Oct. 13, 2006), aff'd, 317 Fed.Appx. 79 (2d Cir. 2009).
To be sure, Proctor sought to withdraw his guilty plea shortly after it was entered. By Pro se letter dated January 17, 2012, Proctor advised the court: “[A]lthough on January 10, 2012, I reluctantly and hesitantly entered a plea of guilty to Assault, Second Degree, such plea was not voluntarily or intelligently entered as I am innocent of the assault charge. In addition, an affirmative defense of justification exists.” SR. at 105. Soon after, however, Proctor withdrew his motion by Pro se letter dated January 30, 2012: “Please be advised that I have recently spoken with counsel, and my plea was voluntarily and intelligently made, so plead disregard my letter dated January 17, 2012.” Id. at 111. Thus, Proctor's own statements undermine any assertions of coercion by counsel. Furthermore, Proctor was not a novice at entering guilty pleas. Indeed, as Justice Zweibel observed, Proctor had an extensive history of criminal convictions, many of which were obtained by means of guilty plea. Id. at 162 (“[D]efendant, as a second felony offender, was very familiar with the criminal justice system, having been arrested approximately 39 times, resulting in 11 felony convictions and 19 misdemeanor[s].”) (citations omitted). See, e.g., Riggins v. Rock, No. 12-CV-3903 (NSR), 2013 WL 5738232, at *12 (S.D.N.Y. Oct. 21, 2013) (that petitioner was not “novice” to criminal justice system suggested he was able to understand nature and consequences of guilty plea).
The favorable sentence Proctor received in exchange for his guilty plea-five years of imprisonment followed by five years of supervised release-further underscores the voluntariness and validity of his plea. See, e.g., Donaldson v. Lape, No. 06-CV-727 (MAT), 2010 WL 301914, at *7 (W.D.N.Y. Jan. 19, 2010) (“Where, as here, ‘a petitioner secured a significant strategic benefit by pleading guilty, courts [in this Circuit] are generally less likely to suspect an involuntary or misguided decision to plead.'”); Garner v. Superintendent of Upstate Corr. Facility, No. 01-CV-501 (LEK), 2007 WL 2846907, at *8 (N.D.N.Y. Sept. 26, 2007) (“[W]here a defendant obtains a meaningful strategic benefit by pleading guilty, most courts consider it unlikely that an involuntary or ill-advised plea ensued.”).
The First Department concluded that “[t]he plea record shows that defendant knowingly, intelligently, and voluntarily pleaded guilty in exchange for a favorable sentence.” SR. at 228-29. Proctor has not argued, much less shown, that this determination was contrary to, or an unreasonable application of clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts.
In sum, any suggestion that Proctor was coerced by his attorney fails because he has offered no proof other than his self-serving assertion in support of this claim.
ii. Involuntariness Due to Ineffective Assistance of Counsel
To the extent Proctor argues that his plea was involuntary due to ineffective assistance of counsel, this claim also fails. To evaluate a claim that a guilty plea was involuntary or unknowing due to ineffective assistance of counsel, courts must use the familiar framework established in Strickland v. Washington, 466 U.S. 668 (1984). See United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (citing Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (applying Strickland to guilty plea context)). A defendant must first establish that “counsel's representation fell below an objective standard of reasonableness.” Id. (quoting Strickland v. Washington, 466 U.S. at 688). Second, the defendant must show prejudice, in particular, that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. (quoting Hill, 474 U.S. at 59).
Proctor's ineffective assistance claims in his petition are expressly predicated on a failure to make certain arguments and investigations, which are discussed separately below.
“[C]ounsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (alteration in original) (quoting Strickland, 466 U.S. at 689-90); see also Bierenbaum v. Graham, 607 F.3d 36, 50-51 (2d Cir. 2010) (Strickland standard “highly deferential” so as to eliminate “distorting effects of hindsight”). On habeas review, “the question is not whether counsel's actions were reasonable . . . [but] whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105. “Surmounting Strickland's high bar is never an easy task.” Id. (citing Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Upon review of the record in light of these standards, I find that Proctor cannot meet his burden on either prong of the Strickland test with respect to counsel's advice regarding the plea offer. Proctor cannot satisfy the first prong of the Strickland test because it was not objectively unreasonable for his attorney to advise him to plead guilty to the top count of assault in the second degree, one of the five counts in the indictment, for less than the maximum sentence to which Proctor was exposed. If he did not plead guilty, he faced consecutive sentences, and a lengthier sentence on the assault count. Proctor's concern about the allegedly false medical report reflects, at most, a potential ambiguity in the facts. Notwithstanding this alleged inconsistency in medical reports as to the bystander victim's injuries, Proctor does not once deny having engaged in the alleged conduct; he only contests whether the victim suffered a physical injury as a result of his conduct. Proctor cannot demonstrate, however, that his counsel acted outside the realm of reasonableness in advising him to accept the guilty plea; the concern regarding the medical evidence raised by Proctor was, both at the time of his plea and now, doubtful at best and at worst, entirely inadequate. Thus, counsel's advice was not deficient because he secured a sentence for Proctor that was far more favorable than that which Proctor would have faced had he been convicted at trial. See, e.g., Giles v. Giambruno, No. 04-CV-779 (WMS), 2007 WL 2859769, at *7-8 (W.D.N.Y. Sept. 26, 2007) (counsel provided meaningful representation where, “despite the prosecutor's refusal to accept anything but a plea to each charge in the indictment, trial counsel obtained a commitment from the trial judge to sentence petitioner to no more than fifteen years of prison” even though evidence against petitioner was overwhelming); Seifert v. Keane, 74 F.Supp.2d 199, 206 (E.D.N.Y. 1999) (“Given the favorable nature of petitioner's plea, the court cannot say that counsel's performance was deficient[.]”), aff'd, 205 F.3d 1324 (2d Cir. 2000).
Proctor also cannot satisfy the second prong of the Strickland inquiry. As noted above, his attorney negotiated a favorable plea bargain involving an admission to second degree assault with a sentence of five years of imprisonment in satisfaction of the other four charges on which Proctor could have served consecutive sentences. Beyond Proctor's bald assertions, there is no support in the record that he would have been treated more leniently after trial. Because Proctor received a much more favorable sentence than if he had proceeded to trial and been convicted on the charges in the indictment, he has experienced no prejudice. See, e.g., Morton v. Perez, No. 13-CV-3985 (AT) (GWG), 2014 WL 407411, at *9 (S.D.N.Y. Feb.4, 2014) (“[I]f [defendant] had gone to trial, [defendant] could have faced 25 years imprisonment on each of the robbery charges, seven years on the weapons possession charge, and four years on the bail jumping charge. Also, all of these sentences could have been ordered to run consecutively. Given the choice [defendant] faced, and the absence of any evidence in the record suggesting that he would have been acquitted, there is no basis on which to conclude that ‘a decision to reject the plea bargain would have been rational under the circumstances.'”) (quoting Padilla, 559 U.S. at 372), adopted by 2014 WL 948186 (Mar. 11, 2014); Harris, 2012 WL 5265624, at *14 (favorably negotiated plea bargain negated claims that counsel acted unreasonably or that petitioner was prejudiced by his attorney's prediction he would lose at trial); Holman v. Ebert, No. 06-CV-3618 (BMC), 2007 WL 4591718, at *5 (E.D.N.Y. Dec. 28, 2007) (“To satisfy the prejudice element of the Strickland test in the context of a guilty plea, petitioner would have to show that he would have been acquitted or at least received a shorter sentence after conviction.”).
Because Proctor has failed to satisfy either prong of the Strickland test, any purported claim of ineffective assistance of counsel regarding his plea should be denied. Accordingly, there is no basis on which to conclude that Proctor's decision to plead guilty was coerced by his attorney or that Proctor suffered from ineffective assistance of counsel in this regard.
iii. Involuntariness Due to Prosecutorial Misconduct
Proctor also appears to challenge the voluntariness of his guilty plea by arguing that he was induced by false evidence-namely, Dr. Schwartz's medical report finding that the bystander sustained a fracture-to plead guilty. He claims that he “would not have pleaded guilty” if he had been “alert[ed] . . . that Dr. Schwartz's false report was fabricated and untrue.” Disc. Reply. Supp. at 6. This claim is equally unavailing because Proctor has failed to provide any evidence corroborating that Dr. Schwartz's medical report was false apart from sheer speculation. It is well-settled in this Circuit that vague and conclusory allegations that are unsupported by specific factual averments are insufficient to state a viable claim for habeas relief. See, e.g., Skeete v. New York, No. 03-CV-2903 (HB), 2003 WL 22709079, at *2 (E.D.N.Y. Nov. 17, 2003) (“[V]ague, conclusory and unsupported claims do not advance a viable claim for habeas corpus relief.”). Furthermore, even if Proctor did not know that Dr. Schwartz's medical report was false (and he still does not know one way or the other) at the time of his plea, he was aware of the evidentiary inconsistency, yet agreed to plead guilty. If Proctor truly believed this inconsistency undermined the State's case against him, he should not have pled guilty. Therefore, Proctor cannot reasonably maintain that his guilty plea was induced by Dr. Schwartz's medical report.
In sum, Proctor's claims that his guilty plea was involuntary are meritless. To the contrary, Proctor's guilty plea was knowing, voluntary, and intelligent, and his claims related thereto should therefore be denied in their entirety.
Consequently, all of Proctor's remaining claims relating to pre-plea conduct are effectively waived, as he is precluded from obtaining habeas relief on claims arising out of matters that occurred prior to the plea. Tollett, 411 U.S. at 267. It is well settled that a guilty plea represents a “break in the chain of events which has preceded it in the criminal process,” and a defendant “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id.; see, e.g., Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991) (“Generally a knowing and voluntary guilty plea precludes federal habeas corpus review of claims relating to constitutional rights at issue prior to the entry of the plea.”); Hayes v. Lee, No. 11-CV-1365 (KMK), 2015 WL 5943677, at *8 (S.D.N.Y. Oct. 13, 2015) (“Because Petitioner's plea was knowing and voluntary, Petitioner cannot assert pre-plea grounds for habeas relief.”). For this reason, Grounds One, Two, and Three should all be denied. Those claims, as well as the underlying portions of Ground Four, concern actions that preceded the plea. Tollett, 411 U.S. at 267. In any event, as discussed below, even if he had not waived them, those claims are without merit.
b. Prosecutorial Misconduct
Proctor maintains that the prosecutor knowingly introduced false evidence by obtaining a fabricated medical report from Dr. Schwartz. Pet. Mem. at 5 (“It is contended that the prosecutor certainly knew that such medical record-the sole evidence obtained and against defendant-was false due to the attached conflicting (‘[a]uthenticated') radiology medical report” by Dr. Weiner). He also complains “[t]he Winthrop Hospital Emergency Room medical records constituted exculpatory material evidence, and they were unconstitutionally excluded.” Pet. Reply Supp. at 5.
As a threshold matter, both of these claims are procedurally barred from federal habeas review, as Proctor did not raise them on direct appeal. Moreover, Proctor cannot now raise these claims in state court because he already had the one appeal to which he was entitled. Therefore, these claims should be deemed exhausted but procedurally barred. See Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001) (“Even if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it is, as a result, then procedurally barred under state law.”); see also Fields v. Lee, No. 12-CV-04878 (CS) (JCM), 2016 WL 889788, at *9 (S.D.N.Y. Jan. 28, 2016), adopted by 2016 WL 879319 (Mar. 7, 2016) (record-based claim of prosecutorial misconduct procedurally barred from federal habeas review). As such, Proctor may obtain review of the claim only if he demonstrates “cause and prejudice for the procedural default,” or that the “constitutional violation has probably resulted in the conviction of one who is actually innocent of the substantive offense.” Dretke v. Haley, 541 U.S. 386, 393 (2004) (internal quotation marks and citations omitted). Proctor has not shown cause for his failure to exhaust or, despite his conclusory assertion to the contrary, that he is actually innocent. Pet. Reply at 3-4. He points to no evidence that exonerates him of the crime, but rather challenges the credibility of the evidence against him. Actual innocence means “factual innocence and not mere legal insufficiency.” Bousley, 523 U.S. at 623. Proctor has thus fallen short of establishing his actual innocence.
Even if Proctor had exhausted his prosecutorial misconduct claims, in light of his knowing and voluntary guilty plea, they cannot be the basis for federal habeas review. See, e.g., Coward v. Bradt, No. 11-CV-1362 (LEK) (CFH), 2013 WL 6195751, at *15 (N.D.N.Y. Nov. 27, 2013) (claim of prosecutorial misconduct prior to guilty plea barred under Tollett); D'Souza v. Hershberger, No. 91-CV-381 (CPS), 1991 WL 159051, at *2 (E.D.N.Y. Aug. 5, 1991) (finding petitioner's claim of prosecutorial misconduct “barred by the guilty plea”). Assuming that Proctor had not waived these claims by pleading guilty, as is discussed below, neither has merit.
i. Knowing Use of False Evidence
A conviction obtained through the knowing use of false evidence violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). However, in this case, there is no affirmative evidence establishing that Dr. Schwartz's medical report was even false or that, if it was, the prosecutor knew the report was false. Although Dr. Weiner found that no recent fracture was evident from the x-ray, that opinion does not render Dr. Schwartz's report noting a “nondisplaced fracture” false. Rather, at best, Proctor has identified a possible conflict between medical experts. Conflicting opinions among experts does not establish that either expert's testimony was false, as experts often disagree. Nor does the prosecution's knowledge of inconsistent evidence necessarily demonstrate knowing use of false testimony. Although Proctor may believe that Dr. Schwartz's report was “fabricated,” Disc. Reply Supp. at 6, he offers no evidence to substantiate this belief. Mere speculation on this point is not sufficient to support a claim based on the knowing presentation of false evidence. Additionally, even assuming that Dr. Schwartz's report was manufactured, Proctor was aware of the difference of medical opinion when he pled guilty, thereby waiving any challenge thereto. Accordingly, this claim on its merits does not warrant habeas relief.
ii. Brady Violation
A petitioner may be entitled to relief if he establishes that the government violated his right to due process by failing to turn over exculpatory material evidence before trial. Strickler v. Greene, 527 U.S. 263 (1999); Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). To demonstrate a Brady violation, a habeas petitioner must establish that: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or could have impeached a prosecution witness; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued from the withholding. See Moore v. Illinois, 408 U.S. 786, 794-95 (1972); see also Strickler, 527 U.S. at 281-82.
Neither the Supreme Court nor the Second Circuit has specified the timing of disclosure that Brady requires, but it is clearly established that “disclosure prior to trial is not mandated.” Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (“It is not feasible or desirable to specify the extent or timing of disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence when disclosure is made.”) (citations omitted). All that is required by Supreme Court and Second Circuit precedent is that Brady material be disclosed “in time for its effective use at trial.” United States v. Gil, 297 F.3d 93, 105 (2d Cir. 2002) (quoting United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001)). Proctor has not demonstrated that the Winthrop Hospital Emergency Department medical records would be favorable to him, much less any reason why they would be so. Even assuming arguendo that the evidence in question was exculpatory, Proctor's guilty plea negated the need for the jury trial. Therefore, the prosecution did not “suppress” evidence pursuant to Brady, as Proctor's trial never occurred as a result of his plea.
Accordingly, neither prosecutorial misconduct claim warrants habeas relief.
c. Sufficiency of Evidence
Proctor contends that there was insufficient evidence to sustain his conviction of second-degree assault, as the only evidence supporting the allegation that the bystander victim suffered a physical injury was purportedly false (and exculpatory medical records from the initial medical provider disproving this element were allegedly withheld). Pet. ¶ 12, at 7; see also Pet Mem. 10-12. Furthermore, Proctor argues, because “the other charges [in the indictment] were dismissed,” an essential element of the offense of second-degree assault-namely, the commission of underlying felony-had not been satisfied. Pet. Supp. at 1.
Proctor did not raise any sufficiency of evidence claim on direct appeal.
Therefore, his complaints concerning the sufficiency of evidence are deemed exhausted but procedurally barred because Proctor no longer has a state court forum available in which to exhaust the claim. Even if not procedurally barred, like his prosecutorial misconduct claims, his claims relating to sufficiency of evidence are not cognizable in light of his guilty plea. See Tollett, 411 U.S. at 267. Indeed, Proctor's guilty plea relieved the state of its constitutional burden to put forth evidence sufficient to sustain his conviction. “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). By entering a guilty plea, Proctor forfeited his right to challenge his conviction based on the sufficiency of evidence-regardless whether as to the physical injury element or that of the underlying felony. Proctor responded affirmatively when asked at the plea hearing whether he admitted to the charge that “on or about August 20, 2011, in the course of and in furtherance of the commission and attempted commission of a felony, other than a felony defined in Article 130 which requires corroboration for conviction, and in the immediate flight therefore, [he] caused physical injury to a person known to the Grand Jury who was not a participant in the crime.” SR. at 6-7 (emphasis added). He does not now argue that his response was untrue.
Accordingly, Proctor is not entitled to relief based on any claim of insufficient evidence proving his guilt.
3. Ineffective Assistance of Trial Counsel (Ground Three)
Proctor alleges he was denied ineffective assistance of counsel for failure “to thoroughly investigate or effectively argue” the “issues of jurisdictional deficiency of accusatory instrument[] [and of] insufficient evidence of physical injury relative to second degree assault count ....” Pet. ¶ 12, at 9 (Ground Three); Pet. Mem. at 13.
Proctor also contends that counsel “failed to advocate for defendant at sentence, when defendant informed the court of the medical reports' discrepancies” and that “[n]ew counsel should have been assigned to argue petitioner's motion to withdraw plea, especially considering petitioner's claims made against counsel.” Id.
Proctor concedes that appellate counsel failed to raise any of the[se] [] issues” on direct appeal. Pet. ¶ 12, at 9. As Respondent correctly notes, “Petitioner did not argue on direct appeal that his counsel was ineffective for not making the jurisdictional defect and legal insufficiency claims.” Pet. Opp. at 2. Although Proctor argued related claims on direct appeal, the legal premises of the claims he now advances were not presented to the state court. Specifically, on direct appeal, Proctor argued that “the representation afforded appellant for purposes of his postplea pleadings fell short of constitutional mandates under the State or federal standard,” SR. at 195 (citations omitted); in his habeas petition, he argues that his trial counsel was ineffective for failing to investigate or otherwise challenge defects in the grand jury proceedings and sufficiency of evidence (pre-plea claims) and for failing to argue on his behalf on the motion to withdraw the plea and at sentence (post-plea claims). Pet. Mem. at 13. The pre-plea ineffective assistance claims are therefore unexhausted.
Even if they had been exhausted, Proctor is barred from raising his pre-plea ineffective assistance of counsel claims because he waived them by pleading guilty. See, e.g., Hill v. United States, Nos. 13-CV-1107 (LAP), 11-CV-145 (LAP), 2014 WL 104565, at *7 (S.D.N.Y. Jan. 7, 2014) (ineffective assistance as to counsel's alleged failure to investigate waived by defendant's guilty plea); Hill v. West, 599 F.Supp.2d 317, 392-93 (W.D.N.Y. 2009) (petitioner's ineffective assistance claims relating to “pre-plea events, such as the failure to investigate, potential witnesses, acquisition of discovery material, and his decisions regarding a psychiatric examination” were effectively waived as result of guilty plea). As such, this claim should be denied.
Although Proctor's pre-plea ineffective assistance claims are waived, they are also without merit. As discussed above, to prevail on an ineffective assistance of counsel claim, Proctor must satisfy the two-part test set forth in Strickland. “First, the defendant must show that counsel's performance was deficient.” Strickland, 466 U.S. at 687. Second, the petitioner must show that counsel's deficient performance prejudiced his defense. Id. at 692. “Strickland does not guarantee perfect representation, only a reasonably competent attorney.” Harrington, 562 U.S. at 110 (quoting Strickland, 466 U.S. at 687) (internal quotation marks omitted). A petitioner must overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
As to his claim that counsel did not challenge the defects in the grand jury proceeding and indictment, “[t]here is no federally-cognizable ineffective assistance claim concerning advice regarding the state grand jury process.” Montalvo v. Annetts, No. 02-CV-1056 (LAK) (AJP), 2003 WL 22962504, at *24 (S.D.N.Y. Dec. 17, 2003) (citing Davis, 42 Fed.Appx. at 491 n.1), adopted by Dkt. No. 29 (Jan. 20, 2004). Accordingly, Petitioner's ineffective assistance of counsel claim relative to the grand jury proceedings should be denied.
As to his claim that counsel failed to investigate or argue the insufficiency of evidence sustaining his conviction, Proctor cannot establish that counsel's performance was deficient, or that he suffered any resulting prejudice. His claim that counsel failed to argue insufficiency of evidence inevitably fails because such an argument could only have been made at trial, the right to which Proctor forfeited by pleading guilty. Similarly, a claim of ineffective assistance for failure to investigate can only be predicated on a claim that a lawyer failed to make “reasonable” investigations. Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005) (“[C]ounsel has a duty to make reasonable investigations, and a decision not to investigate will be reasonable only ‘to the extent that reasonable professional judgments support the limitations on investigation.'”) (citing Strickland, 466 U.S. at 690-91). As a preliminary matter, the Court has no reason to believe that Dr. Schwartz's medical report was, in fact, false or that the “missing” hospital records exonerated Proctor. Therefore, counsel's failure to investigate or otherwise pursue these issues cannot constitute deficient performance. See, e.g., Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (duty to investigate “does not . . . compel defense counsel to investigate comprehensively every lead or possible defense . . . or ‘to scour the globe on the off-chance something will turn up'”) (quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)).
Even assuming that Dr. Schwartz's medical finding was inaccurate or that the hospital records were exculpatory, his counsel was not ineffective for failing to obtain or review these documents. “[A]s a general matter, when there is ‘reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.'” Greiner, 417 F.3d at 321 (quoting Strickland, 466 U.S. at 691). Here, Proctor never denied taking the woman's purse and struggling with her husband as he attempted to retrieve the purse from Proctor. Accordingly, the investigation into whether the bystander had, in fact, sustained a fracture would have been of limited value. By extension, it is unlikely that further inquiry into Dr. Schwartz's report or revelation of the allegedly exculpatory documents would have caused the prosecutor to dismiss the charges against Proctor. Thus, it was reasonable for counsel to conclude that further investigation would have been fruitless.
Because Proctor himself brought the inconsistent medical reports to his attorney's attention, SR. at 143, he was clearly aware of the inconsistency's existence prior to pleading guilty. As such, any failure on the part of counsel to investigate Dr. Schwartz's report could not have prejudiced Proctor's defense, or otherwise influenced his decision to plead guilty. See, e.g., Collins v. Superintendent Conway, No. 04-CV-4677 (RPP), 2006 WL 1114053, at *4 (S.D.N.Y. Apr. 26, 2006) (“Petitioner's claim for ineffective assistance of counsel is likewise unavailing. . . . Petitioner's claims are entirely dependent on information that the Petitioner himself had at every stage of the proceedings after the alleged lineups. Any failure to assert these claims prior to his guilty plea is therefore a failure of Petitioner not to communicate with his counsel, not a failure of counsel.”). Moreover, Proctor has failed to demonstrate that the plea was prejudicial as he pled to only one of the charges for which he had been indicted and for less than two years below the maximum sentence possible for that charge. See, e.g., Hill v. Colvin, No. 16-CV-1301 (MAD), 2018 WL 736013, at *16 (N.D.N.Y. Feb. 6, 2018) (where “[t]he plea provided petitioner with a sentence at the lowest end of the mandatory sentencing range,” and potential outcomes of proceeding to trial would have probably resulted in significantly more jail time, “there was no indication that petitioner was prejudiced by taking the plea,” and ineffective assistance claim was meritless). Finally, Proctor has offered nothing but speculation that the report contained some falsehood or that the medical records would support his position, which provides another basis for finding that counsel's decision not to investigate did not prejudice Proctor's putative defense.
For all these reasons, Proctor's ineffective assistance of trial counsel claim should be denied.
4. Ineffective Assistance of Appellate Counsel (Ground Four)
Lastly, Proctor contends that he “was denied his constitutional right to effective assistance of counsel insofar as appellate counsel failed to communicate with [him] prior to filing the brief to identify appellate grounds and to determine potential existence of any appealable off-the-record issues; failed to argue jurisdictional deficiency of the accusatory instrument, or insufficient evidence of ‘physical injury' as defined by Penal Law § 10.10[9]; and failed to ask the court to, alternatively, reverse or modify (to Third Degree Assault) the judgment in the interests of justice jurisdiction.” Pet. ¶ 12, at 10 (Ground Four).
These claims are unexhausted because Proctor never raised these arguments in any state court proceeding. See Daye, 696 F.2d at 191. Nonetheless, he may still bring these allegations to the state courts' attention through a writ of error coram nobis. See, e.g., Boynton v. Hicks, No. 02-CV-1439 (DC), 2003 WL 22087634, at *3 (S.D.N.Y. Sept. 9, 2003) (“In New York, a common law writ of error coram nobis is the proper vehicle for bringing a claim of ineffective assistance of appellate counsel[.]”); Rodriguez v. New York, No. 00-CV-1399 (KMW) (AJP), 2000 WL 962748, at *2 (S.D.N.Y. July 11, 2000) (no time limit for filing writ of error coram nobis, and such motion may be filed after direct appeal), adopted by Dkt. No. 7 (Sept. 26, 2000).
Because Proctor still has state court remedies available to pursue this unexhausted claim, his habeas petition is considered “mixed” inasmuch as it includes both exhausted and unexhausted claims. See Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002). When faced with a mixed petition such as this one, a district court may: (1) dismiss the petition in its entirety without prejudice; (2) consider the unexhausted claim and deny the entire petition on the merits; (3) allow the petitioner to delete the unexhausted claim and proceed only with his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner to exhaust his unexhausted claim. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 273-74 (2005); Manzullo v. New York, No. 07-CV-0744 (SJF), 2010 WL 1292302, at *3 (E.D.N.Y. Mar. 29, 2010). In the interest of judicial efficiency, the Court elects to consider this unexhausted claim and recommends denying this ground for relief as well.
In order to establish a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate that “appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and absent counsel's deficient performance, there was a reasonable probability that petitioner's appeal would have been successful.” Anderson v. Keane, 283 F.Supp.2d 936, 941 (S.D.N.Y. 2003) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). This test mirrors that of Strickland. Id.
a. Failure to Argue the Jurisdictional Deficiency of the Indictment or Insufficiency of Evidence
Proctor contends that appellate counsel was ineffective for “fail[ing] to argue the ground of insufficient evidence of physical injury to support the second degree assault conviction,” Pet. Mem. at 14, as well as the “jurisdictional deficiency of the accusatory instrument,” Pet. ¶ 12, at 10.
As discussed above, these claims are meritless because Proctor waived them by pleading guilty. Appellate counsel cannot be found to be deficient for failure to raise a meritless argument. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001). The Supreme Court has consistently held that appellate counsel need not raise every nonfrivolous issue on appeal even if requested by the defendant. See, e.g., Jones v. Barnes, 463 U.S. 745, 754 (1983). Rather, a reviewing court must be deferential to the appellate counsel's judgment and tactical strategy. Smith v. Murray, 477 U.S. 527, 535-36 (1986). Thus, in order to prevail on a claim of ineffective assistance of appellate counsel, it is not sufficient for a petitioner to demonstrate that counsel failed to introduce an issue; instead, a petitioner must show that appellate counsel omitted specific, “significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)).
While the Sixth Amendment right to counsel may be violated through counsel's failure to raise a “significant and obvious” state law claim, Mayo, 13 F.3d at 533, counsel's failure to argue on direct appeal that Proctor's indictment was jurisdictionally defective or that the evidence was insufficient to establish physical injury cannot be said to have changed the result of the proceedings. Indeed, a review of the appellate brief filed on behalf of Proctor reveals that appellate counsel's strategy was reasonable and sound, and the claims asserted in her brief were cogently argued. Appellate counsel raised two colorable arguments on appeal, either of which, if successful, would have resulted in vacatur of Proctor's guilty plea. Her decision to focus on the validity of Proctor's guilty plea was certainly reasonable in these circumstances.
The record in this case is clear that there was no deficiency in appellate counsel's representation, and even if there was, there is no reasonable probability that the result of the proceedings would have been different. Habeas relief on this ground should therefore be denied.
b. Failure to Communicate
According to Proctor, appellate counsel also “failed to communicate with [him] prior to filing the brief to identify appellate grounds and to determine potential existence of any appealable off-the-record issues.” Pet. ¶ 12, at 10.
Proctor fails to identify any issue, other than those identified previously, that appellate counsel neglected or ignored to introduce on appeal that would have produced a reasonable probability of success. The failure to consult with a client on appellate briefing does not, without more, amount to ineffective assistance of counsel. See, e.g., Williams v. Comm'r, N.Y. State Dep't of Corr., No. 07-CV-5496 (WHP) (FM), 2011 WL 5301766, at *21 (S.D.N.Y. Oct. 31, 2011) (citing cases), adopted by 2011 WL 6182364 (Dec. 12, 2011). “Although it may be desirable and productive, the Constitutional right to effective assistance of counsel does not encompass the requirement that an attorney consult with his client to discuss the alleged trial errors that his client wishes to pursue.” McIntyre v. Duncan, No. 03-CV-523 (ADS), 2005 WL 3018698, at *3 (E.D.N.Y. Nov. 8, 2005); see also, e.g., Warren v. Napoli, No. 05-CV-8438 (CM (KNF), 2009 WL 2447757, at *18 (S.D.N.Y. Aug. 10, 2009) (failure to discuss contents of appellate brief prior to filing does not warrant habeas relief on ineffective assistance of counsel claim), adopted by Dkt. No. 72 (Sept. 14, 2009). Therefore, Proctor's claim that appellate counsel failed to communicate with him does not, by itself, establish deficient performance.
Furthermore, Proctor has not demonstrated that he has suffered any prejudice stemming from appellate counsel's alleged lack of communication. See, e.g., Farr v. Greiner, No. 01-CV-6921 (NG), 2007 WL 1094160, at *38 (E.D.N.Y. Apr. 10, 2007) (denying habeas relief where “petitioner has not demonstrated any prejudice stemming from appellate counsel's failure to communicate with him”). To the extent Proctor contends that the failure to communicate led to certain grounds being omitted from his appeal, he has not shown that any of those grounds have merit, as previously discussed.
In sum, Proctor has failed to demonstrate that appellate counsel's conduct fell outside a “wide range of reasonable professional assistance” or that he suffered any prejudice as a result of appellate counsel's performance. See Strickland, 446 U.S. at 689. Accordingly, his claims regarding ineffective assistance of appellate counsel should be denied.
Proctor does not brief the ineffective assistance claim with respect to appellate counsel's alleged failure “to ask the court to, alternatively, reverse or modify (to Third Degree Assault) the judgment in the interests of justice jurisdiction,” Pet. ¶ 12, at 10, in either his memorandum of law or reply papers. His failure to address this argument suggests that he has abandoned the claim. In any event, such a claim lacks merit as any challenge to his conviction was waived by his guilty plea and appellate counsel cannot be deemed ineffective for failing to raise a meritless argument.
III. CONCLUSION
For the foregoing reasons, Proctor's motion for discovery is denied, and I recommend that his petition for a writ of habeas corpus be denied. The Clerk is directed to close docket number 20 and mark it as “denied.”
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have seventeen (17) days from service of the Order and Report and Recommendation (which includes three days because it is being mailed to Proctor) to file written objections as to the Order and to the Report and Recommendation. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN SEVENTEEN (17) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
A copy of this Order and Report and Recommendation has been mailed to the following:
Allen Proctor
DIN No. 18A3273
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13024