Fabian-Poma v. Mcauliffe

MEMORANDUM AND ORDER

HON. GARY R. BROWN UNITED STATES DISTRICT JUDGE

Petitioner Daniel Fabian-Poma (“Petitioner”), proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a conviction and sentence for two counts of Rape in the First Degree in the Supreme Court of the State of New York, County of Suffolk (the “trial court”). On this petition, Petitioner raises several claims as follows:^[1]

• Denial of youthful offender status

• Harsh and excessive sentencing

• Ineffective assistance of defense counsel based upon:

(1) failure to obtain discovery from the prosecution

(2) failure to request a Huntley/Dunaway hearing

(3) failure to interview the victim or verify her age

(4) failure to advise regarding possible defenses; and

(5) improperly advising Petitioner to plead guilty

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• Actual innocence

Because each of these claims is procedurally barred and/or substantively without merit, and because none represent a procedure or decision that was contrary to, or an unreasonable application of, clearly established federal law, the petition is denied.

I. FACTUAL BACKGROUND

A review of the petition, filings by the Respondent and the state court record reveals that the Petitioner was convicted, by guilty plea, of two counts of Rape in the First Degree, in violation of Penal Law §§ 130.35(1) and 130.35(3). During his plea allocution, Petitioner stated, under oath, that on or about February 1, 2016 and February 29, 2016 he engaged in sexual intercourse, by forcible compulsion, with a ten-year-old female child. As part of his guilty plea, Petitioner waived of his right to appeal, and, also under oath, stated that his waiver was knowing, intelligent, and voluntary. See Plea Tr., DE 9-1, at 5-18.

Following the guilty plea, Petitioner was sentenced to eight years imprisonment with fifteen years post-release supervision, which was the sentence promised in exchange for his guilty plea. See Sentencing Tr., DE 9-1.

The petitioner pursued an appeal in the state court system; the Appellate Division affirmed Petitioner's judgment of conviction, and found that Petitioner knowingly, intelligently, and voluntarily waived his right to appeal, thereby precluding appellate review of his claims that the trial court improvidently exercised its discretion by denying Petitioner youthful offender treatment, and that his sentence was excessive. People v. Fabianpoma, 176 A.D.3d 1099, 1099-1100, 108 N.Y.S.3d 882, 882-83 (2019), leave to appeal denied, 34 N.Y.3d 1158, 142 N.E.3d 1136 (2020). The Petitioner also filed a C.P.L. § 440.10 motion, seeking to vacate his judgment of conviction

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on the grounds that he was denied effective assistance of counsel, which was denied.^[2] (People v. Fabianpoma, Dec. and Order, (Sup. Ct. Suffolk County, June 12, 2018), D.E. 9-1).

II. DISCUSSION

A. Standard of Review

This petition is reviewed under the well-established standard of review of habeas corpus petitions, including the authority of this Court to review such matters, the application of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the exhaustion doctrine, the independent and adequate procedural bar, the cause and prejudice exception, AEDPA deference, the evaluation of claims of ineffective assistance of counsel and Brady violations, and the liberal construction afforded to filings by pro se petitioners, as more fully discussed in Licausi v. Griffin, 460 F.Supp.3d 242, 255-60 (E.D.N.Y. 2020), appeal dismissed, No. 20-1920, 2020 WL 7488607 (2d Cir. Nov. 17, 2020). The discussion of these principles set forth in Licausi is incorporated herein by reference.

B. The Instant Petition

As noted, petitioner seeks habeas relief on the following grounds: (1) denial of youthful offender status; (2) harsh and excessive sentencing; (3) ineffective assistance of counsel; and (4) actual innocence. Even according the petition the solicitous treatment afforded to pro se pleadings, none of the grounds support habeas relief. Some are rooted in state law rights that are simply not

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cognizable on a habeas petition and/or were denied based upon an independent and adequate state law ground, ^[3] including claims regarding youthful offender treatment, ^[4] excessive sentence, ^[5] and ineffective assistance of counsel claims on the grounds that counsel (1) failed to obtain discovery; (2) failed to request a Huntley/Dunaway hearing; (3) failed to interview the victim; and (4) failed to advise regarding possible defenses.^[6] To the extent that factually-based claims were fully considered by the state court, such determinations must be given deference by this Court under the AEDPA. (People v. Fabianpoma, Dec. and Order, (Sup. Ct. Suffolk County, June 12, 2018)). Petitioner cannot proceed on claims that are were not fully exhausted and hence subject to the procedural bar, ^[7] as Petitioner has failed to demonstrate (1) “cause for the default and actual prejudice as a result of the alleged violation of federal law” or (2) “that failure to consider the

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claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner's actual innocence claim fails because his argument is not based on new reliable evidence, nor is it credible or compelling.^[8] Finally, Petitioner cannot demonstrate deficient performance nor prejudice to substantiate his claim of ineffective assistance of counsel on the grounds that counsel misadvised him to plead guilty, and, as such, his claim does not warrant relief.^[9]

Thus, the petition is denied in its entirety.

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IV. CONCLUSION

Because the Court has considered all of Petitioner's arguments and found them meritless, the petition is DENIED. A certificate of appealability shall not issue because Petitioner has not made a substantial showing that he was denied any constitutional rights. See 28 U.S.C. § 2253(c)(2). I certify that any appeal of this Order as to those issues would not be taken in good faith, and thus in forma pauperis status is denied for the purposes of any appeal on those grounds. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of the Court is respectfully directed to mail a copy of this Order to Petitioner and to close the case.

SO ORDERED.

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Notes:

^[1] Petitioner incorporates by reference the claims raised in both his Appellate Brief and § 440.10 motion by alleging in his petition that the decisions by the Appellate Division and the Suffolk County Supreme Court, respectively, were contrary to, or an unreasonable application of, clearly established federal law, and were further based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. (Pet., at 6-7.)

^[2] The Suffolk County Supreme Court found that Petitioner's valid waiver of his right to appeal precluded review of his ineffective assistance of counsel claim, except to the extent that the alleged ineffectiveness affected the voluntariness of his guilty plea. The Supreme Court held that “in light...