Rios v. Miller

4 Citing cases

  1. Scott v. James

    20-cv-07809 (ALC) (S.D.N.Y. Aug. 8, 2023)   Cited 1 times

    The Appellate Division did not find that the IAC claim was improperly brought on appeal or that Petitioner should have filed a CPL § 440.10 motion first. Therefore, the Petitioner does not need to file a CPL § 440.10 motion to exhaust this claim and he meets the exhaustion standard for purposes of federal habeas review as to his IAC claim related to the prosecutorial misconduct claim. See also Rios v. Miller, No. 1:17-CV-02256(ALC), 2020 WL 4003607, at *2 (S.D.N.Y. July 15, 2020) (citing Sweet v. Bennett, 353 F.3d 135, 140-41 (2d Cir. 2003)) (“[i]n New York, the applicable review process for an [IAC] claim depends on the nature of the alleged attorney error underlying the claim” and “[t]o properly exhaust a claim that relies on errors or omissions that are apparent from the record of trial or pretrial proceedings, petitioner must raise such claim on direct appeal to the Appellate Division and then seek leave to appeal to the Court of Appeals.”). The court “considered and rejected defendant's ineffective assistance of counsel claim relating to the lack of preservation.”

  2. Smickle v. Superintendent, Shawangunk Corr. Facility

    23-CV-01634 (JHR) (SDA) (S.D.N.Y. Jun. 29, 2023)

    The Appellate Division's alternative holding that the ineffective assistance claim lacked merit does not affect Petitioner's failure to exhaust. See Rios v. Miller, No. 17-CV-02256 (ALC), 2020 WL 4003607, at *3 (S.D.N.Y. July 15, 2020).

  3. Beniquez v. Johnson

    21 Civ. 1467 (PAE) (S.D.N.Y. Jun. 12, 2023)

    Accordingly, to the extent Beniquez's present ineffective assistance claim faults his trial counsel for ignorance of evidentiary rules, for failing to object to the admission of testimony, or for failing to challenge the court's sentencing of him as a predicate felon, it is unexhausted and an improper basis for a federal habeas review. See, e.g., Rios v. Miller, No. 17 Civ. 02256 (ALC), 2020 WL 4003607, at *3 (S.D.N.Y. July 15, 2020) (ineffective assistance claim unexhausted where it was raised only on direct appeal, even though Appellate Division had held, in the alternative, that “to the extent the existing record permits review, . . . defendant received effective assistance under state and federal standards”); Polanco v. Ercole, No. 06 Civ. 1721 (RMB) (DFE), 2007 WL 2192054, at *7 (S.D.N.Y. July 31, 2007) (same; adopting recommendation and report); see also Fulton, 802 F.3d at 263 (“[U]nder New York law, when, as here, a defendant's complaint about counsel is predicated on factors such as advice or preparation that do not appear on the face of the record, the defendant must raise his or her claim via a CPL 440.10 motion.” (internal quotation marks and alteration omitted)); People v. Peque, 22 N.Y.3d 168, 202 (2013) (same). In any event, even if Beniquez had exhausted all dimensions of his present ine

  4. Beasley v. Joseph

    6:18-CV-6358 CJS (W.D.N.Y. Jan. 19, 2021)

    Consequently, the Court finds that the claim is unexhausted but not procedurally barred. See, e.g., Rios v. Miller, No. 1:17-CV-02256(ALC), 2020 WL 4003607, at *3 (S.D.N.Y. July 15, 2020) ("Here, the Appellate Division held that because petitioner's claims involve matters outside, or not fully explained by, the record, including matters of strategy and since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. Petitioner was therefore required to proceed to pursue a 440.10 motion to exhaust his ineffective assistance of counsel claim. . . . A Section 440.10 petition remains an available state court review.