Maximo Doe v. Perez

MAXIMO DOE, Petitioner, v. ADA PEREZ, Respondent.

Civil Action No. 9:13-CV-0921 (DNH/DEP)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

October 30, 2015

APPEARANCES:

FOR PETITIONER:

MAXIMO DOE, Pro se

10-A-3480

Downstate Correctional Facility

Box F

Fishkill, NY 12524

FOR RESPONDENT:

HON. ERIC T. SCHNEIDERMAN

New York State Attorney General

120 Broadway

New York, NY 12224

DAVID E. PEEBLES

U.S. MAGISTRATE JUDGE

OF COUNSEL:

HANNAH S. LONG, ESQ.

PAUL B. LYONS, ESQ.

Assistant Attorneys General

REPORT AND RECOMMENDATION

Pro se petitioner Maximo Doe, a New York State prison inmate as a result of a six-count felony drug conviction, has commenced this proceeding pursuant to 28 U.S.C. § 2254, seeking the court's habeas intervention. In his petition, Doe asserts that his guilty plea was involuntary or unlawfully induced, due, in part, to his attorney's alleged ineffective representation during plea negotiations. For the reasons set forth below, I recommend a finding that petitioner is precluded from raising the two grounds set forth in his petition based upon a determination by a state appellate court that consideration of those claims is precluded by his failure to move for leave to withdraw his guilty plea or to vacate his judgment of conviction.

I. BACKGROUND

On May 7, 2008, petitioner and twenty-three co-defendants were indicted by a Schenectady County grand jury and accused of various crimes related to a drug conspiracy allegedly involving large quantities of cocaine and heroin imported from New York City and distributed into the Upstate New York community. Dkt. No. 3-1 at 12-65. Petitioner, who is named in six of the eighty-four counts of the indictment , was charged with second- and fourth-degree conspiracy and criminal sale of a controlled substance in thefirst, second, and third degrees.¹ Id. at 12-32. If convicted as charged, Doe faced a maximum sentence of two determinate terms of imprisonment of between twelve and twenty-four years for each count of first-degree criminal sale of a controlled substance, which is an A-I felony. N.Y. Penal Law §§ 60.04(2), 70.71(3)(b)(ii); see also Dkt. No. 3-1 at 94. In addition, those terms of imprisonment, as well as any others imposed for the additional charges, could have been imposed on a consecutive basis. N.Y. Penal Law § 70.25(1)(2).

Petitioner was taken into custody more than one year after the return of the indictment and resulting issuance of an arrest warrant, Dkt. No. 3-1 at 66-67, and was brought before Schenectady County Court Justice Karen A. Drago for arraignment on September 2, 2009, id. at 90-98. At that time, petitioner entered a plea of not guilty. Id. at 95.

Pretrial conferences in the matter were conducted in Schenectady County Court on December 2, 2009, and again on March 2, 2010, to address the possibility of a negotiated plea agreement. Dkt. 3-1 at 99-109. During the course of those discussions, Justice Drago announced that, in light of Doe's prior criminal history, she would not accept anything less than a plea of guilty to a Class A-II felony as a second felony offender non-violentpredicate, with an agreed-upon fourteen year determinate prison sentence and an additional five years of post-release supervision.² Id. at 101. The court adjourned the matter for petitioner's consideration of the plea offer, and the case was thereafter removed to Schenectady County Supreme Court and scheduled for trial before Supreme Court Justice Michael V. Coccoma. Id. at 76, 104, 111-12.

On May 24, 2010, the date on which his trial was to begin, petitioner elected to plead guilty to all of the charges pending against him in the indictment, in return for the promise by the trial court to impose an aggregate sentence of fourteen years of imprisonment. Dkt. No. 3-1 at 157-206. A colloquy ensued during which Justice Coccoma placed the petitioner under oath and inquired concerning his background, awareness of the consequences of his plea, including constitutional rights that he was voluntarily relinquishing, and the factual circumstances surrounding each of the six counts to which he was pleading guilty. Id. After confirming that petitioner had discussed the matter with his attorney and was satisfied with the advice received, and that he understood his rights and possibledefenses, the court accepted petitioner's guilty plea. Id. at 201-03. On July 12, 2010, petitioner was sentenced as a second felony drug offender to a determinate period of incarceration of fourteen years, to be followed by a period of five years of supervision upon his release from prison. Dkt. No. 3-1 at 207-226.

Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Third Department. See People v. Doe, 95 A.D.3d 1449 (3d Dep't 2012). In that appeal, he raised the same two issues that are now before this court, arguing that his plea was not knowing, voluntary, and intelligent and that he was denied effective assistance of counsel in connection with his plea. Doe, 95 A.D.3d at 1449. Both of those contentions were rejected by the Appellate Division as not preserved for review based upon petitioner's failure to move to withdraw his plea or to vacate the judgment of conviction. Id. Petitioner did not institute any collateral state court challenges to his conviction prior to commencing this proceeding.

II. PROCEDURAL HISTORY

Petitioner commenced this proceeding on August 5, 2011. Dkt. No. 1. In his petition, Doe argues that his plea was not knowing, voluntary, and intelligent and that he received ineffective assistance of counsel because his attorney failed to inform him of a plea offer that would have required himto serve only twelve years in prison, instead of fourteen, allegedly conveyed by the prosecution during the plea negotiations. Id. at 4. Appropriately named as the respondent in Doe's petition is Ada Perez, who was the Superintendent at Downstate Correctional Facility, where Doe was housed at the time of filing. Id. at 1. On November 5, 2013, the Office of the New York State Attorney General responded to the petition on behalf of Perez by submitting an answer, a memorandum of law, and the relevant state court records associated with petitioner's state-court prosecution. Dkt. No. 3. Doe's petition, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Adequate and Independent State Ground

A review of the Appellate Division's decision in this case unequivocally reflects that the two grounds now raised in Doe's petition, challenging the validity of his guilty plea and the effectiveness of the assistance he received from counsel, were rejected as not preserved for review based upon his failure to move to withdraw his plea or to vacate his conviction. See Doe, 95 A.D.3d at 1449.

As a matter both of comity, and in keeping with the principles of federalism, a federal court ordinarily will not review a federal claim presented in a habeas petition if it has been rejected by the state courts on a ground that is both independent of the federal question presented and adequate to support the resulting judgment. Cone v. Bell, 556 U.S. 449, 465 (2009) (citing Coleman v. Thompson, 501 U.S. 722, 736, (1991)); Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011). "This rule applies whether the state law ground is substantive or procedural." Coleman, 501 U.S. at 729. The habeas court's function is "to determine only whether the state ruling falls within the state's usual practice and is justified by legitimate state interests, not whether the state court ruling was correct." Down, 657 F.3d at 101 (citing Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)).

"Because it can be difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference, such reliance on state law must be clear from the face of the opinion." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (internal quotation marks and citations omitted). As the Supreme Court has explained,

the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case . . . . [W]e will not assume that a state-court decision rests on adequate and independent state grounds when the state court decision fairly appears to rest primarily on federallaw, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.

Caldwell v. Miss., 472 U.S. 320, 327 (1985); accord, Coleman, 501 U.S. at 733.

In addition to being "independent," the state procedural bar must also be "adequate." Downs, 657 F.3d at 102. Courts "generally assess the adequacy of the state ground of decision by examining whether the rule upon which the state court relied is 'firmly established and regularly followed.'" Id. at 102 (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)). The Second Circuit has observed that

a procedural bar will be deemed adequate only if it is based on a rule that is firmly established and regularly followed by the state in question. When a federal court finds that the rule is inadequate under this test the rule should not operate to bar federal review. Nonetheless, the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law.

Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (internal citations and quotation marks omitted).

In a case where both procedural and substantive arguments have been advanced by the parties but no opinion is issued by the state courtexplaining its rejection of a claim, a federal court may properly assume that the state court based its decision on state procedural grounds absent "good reason" to...