Opinion
03CV732.
February 14, 2005
Decision Order
Petitioner William Turner has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court conviction. He asserts the following grounds in support of his Petition: his guilty plea was unlawfully induced or not made voluntarily with full understanding of the plea; excessive and harsh sentence (given his circumstances); and his post-conviction motion should have been granted. The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)). (Docket No. 10, February 11, 2004.)
BACKGROUND
Offense and State Court Proceedings
Petitioner was indicted in Erie County for one count of murder in the second degree (N.Y. Penal Law § 125.25(1)), two counts of assault in the second degree (N.Y. Penal Law § 120.05(2)), and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(1)). Petitioner plead guilty as charged and waived his right to appeal in exchange for a sentence commitment of sixteen years to life. When the trial was to begin, petitioner indicated that he was willing to plead guilty. During the plea colloquy of June 6, 2000, regarding the murder count, petitioner admitted to the shooting but claimed that it was not intentional. The court (Hon. Timothy Drury, Erie County Judge) stated that he could not accept the plea and the case would go to trial. (SCR, Plea Tr. June 6, 2000, at 12-13.) Petitioner then had a discussion off the record with his then-defense counsel, who then stated on the record that he explained the consequences of petitioner claiming that the shooting was not intentional that the court would not accept the plea. (Id. at 13.) The court resumed the plea colloquy and petitioner admitted to intentionally shooting the victim (id. at 13-14). Petitioner admitted to the other counts. (Id. at 14-17.) He was sentenced to sixteen years to life in prison for the murder count, and concurrent terms for the assault counts and criminal weapon possession.
"SCR" refers to the State Court Record filed by respondent with his answer, see Docket No. 8.
Appeal and Post-Conviction Motion Practice
On appeal, petitioner argued that his plea was invalid and that his sentence was harsh and excessive. The New York State Supreme Court, Appellate Division, Fourth Department unanimously affirmed the conviction, People v. Turner, 296 A.D.2d 866, 744 N.Y.S.2d 924 (2002), and leave to appeal that decision was denied, People v. Turner, 99 N.Y.2d 540, 752 N.Y.S.2d 601 (2002).
Petitioner (proceeding pro se) then filed a post-conviction motion in Erie County Court, renewing his arguments that the plea was not voluntarily entered and that the sentence was excessive. That motion was denied, but petitioner did not appeal. (SCR, Memo. Order, Mar. 22, 2001.) He then filed a second post-conviction motion only arguing that the guilty plea was invalid. That motion also was denied and leave to appeal that decision was denied by the Appellate Division. (SCR, Memo. Order, Feb. 14, 2003; Ex. D, certificate denying leave, May 13, 2003.)
Habeas Petition
Petitioner then filed this Petition on September 30, 2003 (Docket No. 1). Respondent filed an Answer with attached record from the state court proceedings (Docket No. 8).
DISCUSSION
I. Exhaustion
In the interest of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts. See Ayala v. Speckard, 89 F.3d 91, 94 (2d Cir. 1996), citing Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984). A state prisoner seeking federal habeas corpus review of his conviction must first exhaust his available state remedies with respect to the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982). However, under 28 U.S.C. § 2254(b)(2), where appropriate the Court may deny the relief requested in the petition upon a review of the merits notwithstanding the failure of the applicant to exhaust state court remedies.
Based on the record before the Court, it appears that the petitioner has exhausted his state court remedies. In any event, review of the claims asserted in the Petition is appropriate under § 2254(b)(2).
II. Standard of Review
State court findings of "historical" facts, and inferences drawn from those facts, are entitled to a presumption of correctness. Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.),cert. denied, 479 U.S. 805 (1986). (See also 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct.")
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d) provides that a habeas corpus petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of that claim:
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214.
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The habeas corpus petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. The presumption of correctness attaches to findings both by state trial courts and by state appellate courts. Smith v. Sullivan, 1 F. Supp. 2d 206, 210-11 (W.D.N.Y. 1998) (Larimer, Ch.J.);Nevius v. Sumner, 852 F.2d 463, 469 (9th Cir. 1988), cert. denied, 490 U.S. 1059 (1989). As noted by then-Chief Judge Larimer in Smith, "the new version of § 2254(d) has clearly raised the bar for habeas petitioners, placing on them the burden to show by clear and convincing evidence that the state court's decision was defective in some way." Smith, supra, 1 F. Supp. 2d at 211.
Respondent argues that petitioner fails to raise a federal question in the third claim raised in this Petition, that the second post-conviction motion should have been granted absent a hearing (Docket No. 9, Resp't Memo. of Law at 14). E.g., Jones v. Duncan, 162 F. Supp.2d 204, 217-19 (S.D.N.Y. 2001). Federal habeas relief is not available to redress procedural defects in post-conviction proceedings. Id. at 217 (citations omitted). On the merits, the trial court had a sufficient factual record from the plea colloquy that an evidentiary hearing would have been unnecessary. Petitioner asserted that he was coerced to plead because his trial counsel stated that petitioner could not afford to proceed to trial. The trial court on the post-conviction motion found there was a lack of substantiation to raise that as an issue of fact (SCR, Memo. Order, Feb. 14, 2003, at 3). Instead, the record before that court showed that petitioner was advised of the difference between an accidental occurrence from an intentional act.
III. Failure to Preserve Issue for Habeas Review
Initially, it should be noted that the petitioner has failed to preserve these arguments for habeas corpus review. Federal habeas review is barred when a state court expressly relied on a procedural default as an independent and adequate state ground.See Harris v. Reed, 489 U.S. 255 (1989); Wainwright v. Sykes, 433 U.S. 72 (1977). "A federal court is generally precluded from reviewing any claim included within the habeas petition for which a 'state court rests its judgment on an adequate and independent state ground, including a state procedural bar.'" Bacchi v. Senkowski, 884 F. Supp. 724, 730 (E.D.N.Y. 1995) (quoting Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) (per curiam)). A state procedural bar arises through a failure to make a timely appeal, or through a failure to preserve a claim of appeal through contemporaneous objection. Reid, supra, 961 F.2d at 377. Failure to comply with a state's contemporaneous objection rule bars subsequent federal habeas corpus review unless petitioner is able to demonstrate both cause for the procedural default and actual prejudice attributable thereto.Wainwright, supra, 433 U.S. at 81-91 (1977); Washington v. LeFerve, 637 F. Supp. 1175, 1177 (E.D.N.Y. 1986). "In order to demonstrate cause for his procedural fault, petitioner would have to show that 'some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Washington, supra, 637 F. Supp. at 1177 (quotingMurray v. Carrier, 477 U.S. 478, 488 (1986)). These principles have been applied even where a defendant represents himself at trial. Reed v. Farley, 512 U.S. 339 (1994); Wells v. LeFavre, 1996 WL 692003 (S.D.N.Y. 1996).
Here, petitioner's contention that his plea was not voluntary was procedurally barred. The plea transcript indicates that petitioner, when faced with the choice of pleading guilty to an offense where he may not have intended the act or proceeding to trial (at the risk of a longer sentence if convicted), admitted to intending to shoot the weapon, elements for both the murder and assault counts. An acceptable guilty plea must "represent[the] voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). That record is presumed to be correct, see 28 U.S.C. § 2254(e)(1).
Petitioner's objections arise from the off the record colloquy he had with his counsel after he stated that the shooting was accidental and not intentional. Counsel stated on the record that he advised petitioner of the import of the court's questions and that the court could not accept his guilty plea to murder in the second degree without petitioner admitting that he intended to kill. (SCR, Plea Tr. at 13.) If petitioner wanted to adhere to his claim of accidental shooting, his recourse was not to plea at that time and have the case proceed to trial. Instead, petitioner changed his position and admitted to intentionally shooting and killing the victim, in return for the sentence commitment petitioner now contests.
Petitioner's plea here presents a procedural bar to federal court review of the conviction. Thus, the Petition on these grounds is denied.
IV. Petitioner's Sentence
Petitioner complains that the sentence he agreed to, sixteen years to life, is harsh and excessive given his personal circumstances. He claims that he was 64 years old, suffering from lung disease, diabetes, and has a heart condition. He reasserts that the shooting was accidental and his sentence should have been modified by the state court given the accidental nature of the incident (Docket No. 1, Pet. at 5, Ground Two).
This sentence is within the range prescribed by state law,see White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam); N.Y. Penal L. § 70.00(2)(d), (3)(b), and raises no constitutional issue. A sentence within the range set by the State Legislature does not create a constitutional violation.White, supra, 969 F.2d at 1383. The state court's decision to decline exercising that discretion was not contrary to clearly established federal law or involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
Thus, this portion of the Habeas Petition is denied.
V. Certificate of Appealability
An appeal from a final order in a habeas corpus proceeding involving process issued by a state court requires a certificate of appealability before an appeal can be taken. 28 U.S.C. § 2253(c)(1)(A). Under that statute "a certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right."Id. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322 (2003). As discussed above, the claims raised by petitioner here do not make a substantial showing of the denial of a constitutional right. There is an adequate independent state law ground that bars federal habeas review. Thus, the Court declines to issue a certificate of appealability.
CONCLUSION
Based on the above, the petition is DENIED. The Court declines to issue a certificate of appealability. Pursuant to Fed.R.App.P. 22(b)(1), petitioner may request a circuit judge of the United States Court of Appeals for the Second Circuit to issue the certificate. The Clerk of Court is instructed to enter judgment and close this case.
So Ordered.