Hansen v. Johnson

680 F.Supp.3d 247

Nicholas HANSEN, Petitioner, v. James JOHNSON,Acting Superintendent Green Haven Correctional Facility, Respondent.

21-CV-00409

United States District Court, E.D. New York

Signed June 29, 2023

Nicholas Hansen, Stormville, NY, Pro Se.

Karla L. Lato, Suffolk County District Attorney, Riverhead, NY, New York State Attorney Generals Office, Suffolk County District Attorneys Office, for Respondent.

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:

BACKGROUND

Petitioner Nicholas Hansen ("Petitioner") is incarcerated pursuant to a judgment of conviction imposed in New York State Supreme Court, Suffolk County. Petitioner sought a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 and alleged that his state custody violates his federal and constitutional rights due to the ineffective assistance of his trial counsel. (ECF No. 1, Petition for Habeas Corpus ("Pet."), filed 01/25/21, at 1.) For the reasons set forth in the Court's January 10, 2022 Memorandum and Order (Jan. 10, 2022 Order) (ECF No. 14), the petition was denied. Petitioner appealed the Court's ruling to the Court of Appeals, and the Second Circuit vacated and remanded the case back to this Court to consider whether:

the state court's application of N.Y. C.P.L. § 440.10-3(a) to Appellant's ineffective assistance claim was "exorbitant," and thus inadequate to preclude federal habeas review, see Pierotti v. Walsh, 834 F.3d 171, 176-77 (2d Cir. 2016); People v. Harris , 491 N.Y.S.2d 678, 687-88 (App. Div. 2d Dep't 1985); and, if so, whether (2) the state court's merits analysis was a "contrary-to-fact construction" and thus not entitled to AEDPA deference, Fulton v. Graham, 802 F.3d 257, 265 (2d Cir. 2015); and (3) whether Appellant was entitled to habeas relief on his claim that counsel was ineffective by allegedly (a) failing to properly advise him of his right to testify, or (b) coercing him into not testifying, see Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).

This Court assumes both parties' familiarity with the facts of the case. After trial before a court and jury on December 13, 2013, Petitioner was convicted of Attempted Murder in the Second Degree, two counts of Criminal Use of a Firearm in the First degree, Criminal Possession of a Weapon in the Second Degree, Criminal Sale of a Controlled Substance in the First, Second, and Third Degree, two counts of Criminal Possession of a Weapon in the Seventh Degree, seven counts of Criminal Possession of a Controlled Substance in the Second Degree, and Criminal Possession of a Controlled Substance in the Fourth Degree. (ECF No. 11-9, Trial Transcript ("Tr."), filed 08/16/21, at 145-152.)¹ Petitioner was sentenced to a determinate prison term of twenty-three years, and a five-year post-release supervision term for the charge of Attempted Murder in the Second Degree, and concurrent determinate prison terms for each of the remaining convictions. (ECF Nos. 11-9, Sentencing Proceeding, filed 08/16/21; 6-1, at 190-193, Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp't Mem."), filed 04/08/21, at 3-4.)

Petitioner filed a direct appeal challenging only his convictions for Attempted Murder in the Second Degree and Criminal Use of a Firearm in the First Degree. (ECF No. 11-3, Appellant's Brief, filled 08/16/21, at 66.) The New York Appellate Division, Second Department upheld the convictions. People v. Hansen, 153 A.D.3d 1431, 61 N.Y.S.3d 614 (2d Dept 2017). The New York Court of Appeals denied leave to appeal. People v. Hansen, 30 N.Y.3d 1105, 77 N.Y.S.3d 4, 101 N.E.3d 390 (2018).

After his leave to appeal was denied, Petitioner filed a motion pursuant to New York Criminal Procedural Law (NY CPL) § 440.10-1(h).² (ECF No. 11-4, Appellant's Motion to Vacate the Conviction ("440.10 Mot."), filed 08/16/21, at 19-30). Petitioner sought to vacate his conviction, or alternatively, a hearing, on the basis that his conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel. (Id.) Petitioner argued that his trial counsel failed to advise him that the decision whether to testify was ultimately his to make. (Id.)

The New York State Supreme Court, Suffolk County ("440.10 Court") denied Petitioner's application pursuant to NY CPL § 440.10(3)(a) holding Petitioner's claim was procedurally barred because Petitioner failed to state his desire to testify on the record prior to his sentence. (ECF No. 11-4, 440.10 Decision ("440.10 Dec."), filed 08/16/21, at 14.) The 440.10 Court further held that even if Petitioner's claims cleared the procedural hurdles, his claim failed on the merits under a Strickland analysis. (Id. at 14-17); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("A [petitioner] claiming ineffective assistance must (1) demonstrate that his counsel's performance 'fell below an objective standard of reasonableness' in light of 'prevailing professional norms,' and (2) 'affirmatively prove prejudice' arising from counsel's allegedly deficient representation.").

When considering the 440.10 Motion the Court determined that Petitioner failed to meet the first Strickland prong of deficient performance, finding that counsel reasonably and strategically decided to advise Petitioner against testifying, even if "forceful persuasion tactics" were employed. (Id. at 16-17.) The Court stated that Petitioner also failed to satisfy the second Strickland prong of prejudice in the outcome of the proceedings had he testified, because the jury was presented with the justification defense, about which Petitioner wanted to testify, and viewed the video and audio evidence. (Id. at 17.) The Appellate Division denied Petitioner leave to appeal on June 8, 2020. (ECF No. 1, Denial of Leave to Appeal 440.10 Decision, filed 01/25/21, at 29.)

On January 25, 2021, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 raising a single claim of ineffective assistance of counsel. (ECF No. 1, Petition for Habeas Corpus ("Pet."), filed 01/25/21, at 1.) Petitioner alleged that he raised the issue of testifying with counsel on the third day of voir dire and counsel responded with an expletive, told Petitioner he knew what he was doing and that if Petitioner raised the issue again counsel would withdraw from the case. (Pet. at 5; Resp't Mem. at 4.; ECF No. 11-4, Petitioner's Sworn Affidavit ("Pet. Aff."), filed 08/16/21, at 20-24). Petitioner stated he "became scared that [his attorney] really would leave my case, so I just nodded my head. I knew my mother had just emptied every bank account she had in order to pay [the attorney] his fee . . . I did not want my mother to lose her money for nothing, so I kept quiet after that and hoped for the best. (Pet. Aff. at 21-22.) Petitioner stated he was unaware that he had the right to testify until after he visited the law library at the Auburn Correctional Facility. (Id. at 22.) In his petition, Petitioner described the testimony he would have provided had he testified and submitted affidavits from family members. (Id. at 23.)

Upon review of the state court's ruling, this Court found that the Petitioner's ineffective assistance of counsel claim was procedurally barred because the state court rejected the claim on adequate and independent state law grounds. (See ECF No. 14, Jan. 10, 2022 Order.) The Court also held that even if the claim was not procedurally barred, the 440.10 Court's decision was neither contrary to, nor did it involve an unreasonable application of Strickland v. Washington. (Id.) By Memorandum and Order filed on January 10, 2022, this Court denied Petitioner's writ of habeas corpus. Hansen v. Johnson, No. 21-CV-409, 2022 WL 94397, at *1 (E.D.N.Y. Jan. 10, 2022).

Petitioner moved for a certificate of appealability, which the Second Circuit granted. Hansen v. Johnson, No. 22-241, 2022 WL 4389499, at *1 (2d Cir. Sept. 20, 2022).

Second Circuit Decision

On September 20, 2022, the Second Circuit vacated this Court's order and judgment and remanded for further proceedings. (Id.) Specifically, the Second Circuit ordered this court to consider whether:

(1) the state court's application of N.Y. C.P.L. § 440.10-3(a) to Appellant's ineffective assistance claim was "exorbitant," and thus inadequate to preclude federal habeas review . . . and, if so, whether

(2) the state court's merits analysis was a "contrary-to-fact construction" and thus not entitled to AEDPA deference; and

(3) whether Appellant was entitled to habeas relief on his claim that counsel was ineffective by allegedly

(a) failing to properly advise him of his right to testify, or (b) coercing him into not testifying . . .

Id. (internal citations omitted).

This Court ordered responses from both parties to the Second Circuit's order. (Nov. 10,2022 Order.) Assistant District Attorney Karla Lato of the Suffolk County District Attorney's Office and Petitioner have both filed their responses, and this Court has fully considered their arguments and the record. (ECF No. 21, Resp't Letter Supplemental Response to Queries of Document #18; ECF No. 22, Petitioner Declaration in Response to Court Order ("Pet. Declaration".)

The Court addresses each of the above three directives from the Second Circuit in turn. Upon review, this Court first finds that the 440.10 Court's application of CPL § 440.10(3)(a) was "exorbitant," under the law discussed further below, and was erroneously applied. Second, the Court finds that the 440.10 Court's merits analysis to be a "contrary-to-fact construction" and accordingly it is not entitled to AEDPA deference.

Third, after de novo review, the Court finds that Petitioner is not entitled to habeas relief because Petitioner did not satisfy his burden to show that his counsel provided constitutionally inadequate assistance of counsel under Strickland, 466 U.S. 668, 104 S.Ct. 2052. Accordingly, Petitioner's application for a writ of habeas corpus is respectfully denied.

I. ...