12-1561-pr (L)
Smith v. Scully, et al.

                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 15th day of December, two thousand fourteen.

PRESENT:                  JOSÉ A. CABRANES,
                          RAYMOND J. LOHIER, JR.,
                          CHRISTOPHER F. DRONEY,
                                       Circuit Judges.


TERRY SMITH,

                          Petitioner-Appellant,

                                  v.                                     No. 12-1561-pr (L)
                                                                         No. 12-1590-pr (con)
CHARLES SCULLY, WILLIAM PHILLIPS, SUPERINTENDENT
OF GREEN HAVEN CORRECTIONAL FACILITY,

                          Respondents-Appellees.


FOR APPELLANT:                                           Jeffrey G. Pittell, Maher & Pittell, LLP, Great
                                                         Neck, NY.

FOR APPELLEES:                                           Glenn Green, for Thomas J. Spota, District
                                                         Attorney of Suffolk County, Riverhead, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Jack B. Weinstein, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Petitioner Terry Smith appeals from the District Court’s May 11, 2012 judgment dismissing
his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.1 We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

         On May 24, 1997, Smith was pursued by police officers after stealing a car from a dealership.
The chase ended when Smith crashed into a utility pole. As police officers and emergency medical
technicians (EMTs) rendered aid, Smith attempted to drive away; this led to another crash, which
injured one of the EMTs. On June 23, 1997, Smith was charged in New York County Court,
Suffolk County, with possession of stolen property. Later, he was also charged with assault against
the injured EMT. On November 15, 1998, Smith accepted a plea offer, whereby he agreed to plead
guilty to possessing stolen property—with a sentence of three-and-a-half to seven years’
imprisonment—and to assault—with a sentence of five years’ imprisonment. Pursuant to the plea
agreement, the sentences for both charges were to be served concurrently; therefore, the maximum
term of imprisonment Smith could have received was seven years. That same day, Smith pled guilty
to both charges. See App’x 42–83.

        At his sentencing hearing approximately seven weeks later, Smith informed the state trial
court that he wished to withdraw his guilty plea to assault. The prosecutor and the court informed
Smith that the plea offer he had agreed to was contingent on his pleading guilty to both charges. In
a subsequent colloquy with the court, Smith insisted that he wanted to go to trial. See App’x 101.
The court, accordingly, withdrew Smith’s guilty plea as to both charges, see App’x 111 (“Plea is
withdrawn on both.”), and set a trial date. Smith was convicted at trial of criminal possession of
stolen property in the third degree and was sentenced as a persistent felony offender to seventeen-
and-a-half years to life in prison. The conviction and sentence were affirmed on direct appeal.

        Relevant here, the District Court, through Judge Weinstein, denied Smith’s amended petition
for habeas relief on April 17, 2012. Smith’s sole claim on appeal is that the state trial court violated
his double jeopardy rights by requiring him to stand trial for an offense to which he had already pled
guilty. We review the District Court’s denial of habeas corpus de novo. See Hines v. Miller, 

, 160 (2d Cir. 2003).



          1 Judge Weinstein denied several versions of Smith’s habeas petition in a series of written opinions. See Smith v.

Scully, No. 02 Civ. 6329, 

(E.D.N.Y. Oct. 16, 2003) (“Smith I”); Smith v. Phillips, 

(E.D.N.Y. 2012) (“Smith II”); Smith v. Phillips, 

(E.D.N.Y. 2013) (“Smith III”). This appeal challenges
only Judge Weinstein’s decision in Smith II to deny the claim that Smith’s conviction at trial violated the Double
Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. That decision was memorialized in a judgment,
entered on May 11, 2012, which “dismiss[ed] the petition for a writ of habeas corpus; and grant[ed] a Certificate of
Appealability in light of the novel double jeopardy claim.” See App’x 170.


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        Upon review, we conclude that the District Court properly rejected Smith’s double jeopardy
claim. Smith failed to exhaust his state remedies by not fairly presenting his double jeopardy claim
to the state courts. See Carvajal v. Artus, 

, 104 (2d Cir. 2011). Because “were he to return
to the state courts with his unexhausted claim, those courts would find the claim barred by the
application of a state procedural rule, we must deem the claim procedurally defaulted.” Jackson v.
Conway, 

, 133 (2d Cir. 2014) (quotation marks omitted). Under these circumstances,
Smith “may escape dismissal on the merits . . . only by demonstrating ‘cause for the default and
prejudice’ or by showing that he is ‘actually innocent.’” 

(quoting Aparicio v.
Artuz, 

, 90 (2d Cir. 2001)). Smith does not make such a showing, and his petition based
on this claim was therefore properly dismissed.

       We have considered all of the arguments raised by petitioner on appeal and find them to be
without merit. For the reasons stated above, the May 11, 2012 judgment of the District Court is
AFFIRMED.



                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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