PAMELA K. CHEN, District Judge.
Petitioner Shabay Bonnett, appearing pro se, petitions this Court for two writs of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his guilty plea entered on January 22, 2013 in the Supreme Court of the State of New York, Richmond County. For the reasons set forth below, the two petitions are denied in their entirety.
On July 26, 2011, Petitioner, Devon Cave, and Eddie Janis planned to rob Omar Coombs of marijuana. After Janis called Coombs several times to arrange a meeting, Petitioner and Cave approached the victim's house at 96A Debbie Street in Staten Island as Janis acted as a lookout. When Coombs exited the house, Petitioner approached Coombs, brandished what appeared to be a pistol, but was in fact a BB gun, and demanded Coombs's marijuana supply. A struggle ensued between Petitioner and Coombs. Petitioner then ran from the scene as Cave stabbed Coombs, who died from his injuries. (Dkt. 8, at 3.)
On February 3, 2012, New York City Police Department detectives assigned to the case, John Serdaros and Michael Cosenza, met with Witness One.
Petitioner was arrested on April 4, 2012. He gave post-arrest confessions in writing and on videotape. Petitioner was indicted on charges of one count of second-degree murder, one count of attempted first-degree robbery, two counts of attempted second-degree robbery, and one count of attempted third-degree robbery.
On August 1 and 7, 2012, Justice Stephen J. Rooney conducted a Wade/Huntley
On January 22, 2013, Petitioner agreed to plead guilty to attempted murder in the second degree and to implicate Cave in exchange for a sentence of 21 years' imprisonment and five years' post-release supervision. (P. 4-5, 14.)
Petitioner's sentencing hearing was held on April 18, 2013. At the outset, the court was informed that Petitioner "refuse[d] to come up from the holding area downstairs for his sentencing." (S. 2.)
Once sentencing resumed, defense counsel made a record regarding Petitioner's guilty plea and the appropriateness of proceeding with the sentencing. Petitioner's counsel stated that Petitioner had agreed to the plea deal once the prosecution "remove[d] the life [sentence] component" because Petitioner "said a plea like this may be able to give [him] some life where, if [he] los[t] [at trial] . . . [he] could possibly spend the rest of [his] life in jail." (S. 13-14.) Defense counsel further stated that "[i]t was very clear" that when Petitioner agreed to the plea, "he understood what [the lawyers] were discussing" and that the court "did an appropriate allocution." (S. 14.) Additionally, defense counsel noted that there was a prior sentencing date set, but "[a]t that time[,] [Petitioner] indicated to [him that] he didn't understand what was happening, didn't understand that he pled guilty and that he was unintelligent to the fact that he knew what was going on." (Id.) As a result, defense counsel moved to withdraw Petitioner's guilty plea. (Id.) Counsel concluded by stating that there was "no reason, after [the court] has denied the motion, which was well within [the court's] discretion," that Petitioner should not be sentenced. (Id.) Defense counsel then read a statement from Petitioner, stating "I didn't fully understand the decision I was making when I took my plea. I would like the right to withdraw my plea and go to trial. I refuse to be sentenced to 21 years." (S. 15.) The court then imposed the agreed-upon sentence of 21 years' imprisonment and five years' post-release supervision. (S. 15-16.)
Petitioner appealed his conviction to the New York State Appellate Division, Second Department. In his counseled brief, he argued that: (1) his appeal waiver was invalid because the court failed to inquire into his understanding of the waiver form before he signed it, and failed to specifically inform him that the waiver covered the right to appeal his sentence; and (2) his sentence was excessive. (Dkt. 7-7.) On February 4, 2015, the Appellate Division affirmed Petitioner's judgment of conviction. People v. Bonnett, 125 A.D.3d 683 (2015). The appellate court found that Petitioner's "valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive." Id. The Court of Appeals denied Petitioner leave to appeal the denial on April 23, 2015. People v. Bonnett, 25 N.Y.3d 988 (2015).
On November 17, 2015, Petitioner timely filed a habeas petition against "Superintendent Michael Shehan." (15-CV-6627, Dkt. 1.) Respondent filed his opposition on January 21, 2016. (Dkt. 7-8.) On March 8, 2016, Petitioner filed a second habeas petition against Daniel M. Donovan, the District Attorney of Richmond County, and added new claims. (16-CV-1178, Dkt. 1.) On March 14 and 15, 2016, the Court consolidated the cases pursuant to Federal Rule of Civil Procedure 42(a). The Court also stayed both cases so that Petitioner could exhaust his state court remedies; specifically, on July 29, 2015, Petitioner moved pro se to vacate the judgment of conviction pursuant to CPL § 440.10. That motion is still pending. Petitioner also filed a writ of error coram nobis in April 2018. (Dkt. 14.)
Section 2254 provides that a habeas corpus application must be denied unless the state court's adjudication on the merits "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 "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." 28 U.S.C. § 2254(d). "A state court adjudicates a petitioner's federal constitutional claims on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (internal quotation marks and citation omitted).
"Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (internal quotation marks and citation omitted). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" Supreme Court cases, or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Penry v. Johnson, 532 U.S. 782, 792 (2001) (citation omitted).
A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. (citation omitted). The Antiterrorism and Effective Death Penalty Act ("AEDPA") establishes a deferential standard of review: "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). Courts must "assess whether the state court's decision was `so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Garner v. Lee, No. 17-78-PR, 2018 WL 5985932, at *11 n.14 (2d Cir. Nov. 15, 2018) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Finally, "if the federal claim was not adjudicated on the merits, `AEDPA deference is not required, and conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.'" Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)).
Federal habeas review is further circumscribed when the challenged conviction is based on a guilty plea. "[W]hen a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Blackledge v. Perry, 417 U.S. 21, 29-30 (1974) (citation and internal quotation marks omitted); United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996). Rather, "a person complaining of such antecedent constitutional violations, is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases." Blackledge, 417 U.S. at 29-30 (citation and internal quotation marks omitted). With respect to ineffective assistance of counsel, a guilty plea waives only such claims "relating to events prior to the guilty plea that did not affect the voluntariness of [petitioner's] plea." Vasquez v. Parrott, 397 F.Supp.2d 452, 463 (S.D.N.Y. 2005).
The Court now lifts the stay and denies both of the pending habeas petitions, including Petitioner's exhausted and unexhausted claims, on the merits. Pursuant to 28 U.S.C. § 2254, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2); see also Rhines v. Weber, 544 U.S. 269, 277-78 (2005) ("A mixed petition should not be stayed indefinitely. . . . [D]istrict courts should place reasonable time limits on a petitioner's trip to state court and back."); United States v. Santore, No. 5:12-CR-8, 2016 WL 6778796, at *3 (D. Vt. Nov. 16, 2016).
Petitioner challenges his guilty plea on the following grounds: (1) his guilty plea was not knowing, intelligent, and voluntary as a result of his trial counsel's ineffective assistance, including counsel's failure to investigate the eyewitness identifications; (2) the plea colloquy was insufficient because he simply answered "yes" or "no" in response to the court's questions, without reciting the elements of the crime to which he pleaded guilty; (3) the identification evidence was legally insufficient because the eyewitness identifications conflicted with each other, thereby depriving him of due process; (4) his arrest was unlawful; and (5) his appellate counsel was ineffective.
Petitioner argues that his guilty plea was not knowing, intelligent, or voluntary due to his trial counsel's ineffective assistance. (16-CV-1178, Dkt. 1, at 8; 15-CV-6627, Dkt. 1, at 7.) The only defect Petitioner alleges with respect to his trial counsel's performance is that the attorney "did not properly challenge the identification procedures, specifically the photo arrays that [were] conducted." (16-CV-1178, Dkt. 1, at 7; see also 15-CV-6627, Dkt. 1, at 6-7.)
The voluntariness of a criminal petitioner's guilty plea is determined by considering the totality of the circumstances surrounding the entry of the plea, Brady v. United States, 397 U.S. 742, 757 (1970), including whether the plea "represents a voluntary and intelligent choice among the alternative courses of action open to the petitioner," North Carolina v. Alford, 400 U.S. 25, 31 (1970); see also Parke v. Raley, 506 U.S. 20, 35-37 (1992). A court may ascertain that a defendant "knowingly" and "voluntarily" entered into the plea agreement from, inter alia, his allocution statements. See United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001). Therefore, statements made at a plea allocution carry a "strong presumption of veracity." United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 1997) (citation omitted).
As an initial matter, there is "no basis in the record for concluding that [Petitioner] lacked the requisite understanding [of his plea]." United States v. Torrellas, 455 F.3d 96, 104 (2d Cir. 2006). At the plea colloquy, Petitioner stated that he understood the sentence that: he was pleading to and that he wanted to so plead (P. 6-7); he was satisfied with his lawyer's representation (P. 7); and he was giving up his right to trial (P. 9). Petitioner also signed a written waiver and later orally confirmed that he knew he was waiving his right to appeal and that he was waiving his rights "knowingly, voluntarily, and intelligently." (P. 10.) Thus, on its face, the record demonstrates that Petitioner voluntarily pled guilty with a full understanding of the rights that he was waiving by pleading guilty.
Petitioner, however, maintains that his guilty plea was involuntary because of his trial counsel's ineffectiveness with respect to "the identification procedures, specifically the photo arrays that [were] conducted." (16-CV-1178, Dkt. 1, at 7; see also 15-CV-6627, Dkt. 1, at 6-7); see Blackledge, 417 U.S. at 29-30 (challenge to conviction by guilty plea is "limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases") (citation and internal quotation marks omitted).
Under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), to establish ineffective assistance of counsel, a habeas petitioner 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." Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (quoting Strickland, 466 U.S. at 688). Even assuming arguendo that Petitioner could meet the first prong of Strickland with respect to his counsel's alleged failure to challenge the identification procedures, Petitioner cannot demonstrate prejudice. "In assessing prejudice stemming from the failure to investigate and introduce certain evidence, a court must consider `all the relevant evidence that the jury would have had before it' had the evidence been introduced, including unfavorable evidence." Barnes v. Burge, 372 F. App'x 196, 199 (2d Cir. 2010) (quoting Wong v. Belmontes, 130 S.Ct. 383, 386 (2009)) (per curiam). Given that, in addition to the eyewitness identifications, Petitioner made written and videotaped statements confessing to his participation in the crime (see Dkt. 7-3), there is "no reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694, i.e., that Petitioner "would not have pleaded guilty and would have insisted on going to trial," Premo v. Moore, 562 U.S. 115, 129 (2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Accordingly, Petitioner has not demonstrated that his guilty plea was not knowing or voluntary as a result of the ineffective assistance of his counsel.
Although the Court's ruling regarding the voluntariness of Petitioner's guilty should end the inquiry, see Blackledge, 417 U.S. at 29-30, the Court addresses Petitioner's other arguments.
Petitioner contends that the plea colloquy was insufficient because he simply answered "yes" or "no" in response to the court's questions, without reciting the elements of the crime to which he pleaded guilty. (16-CV-1178, Dkt. 1, at 8; 15-CV-6627, Dkt. 1, at 7.) This claim is without merit.
"[T]here is no requirement that in order to rely on a defendant's answer in a guiltyplea colloquy to conclude that the defendant pleaded guilty knowingly and voluntarily, those answers must be lengthy and all-encompassing; a straightforward and simple `Yes, your Honor' is sufficient to bind a defendant to its consequences." Torrellas, 455 F.3d at 103 (internal quotation marks omitted). During his plea hearing, Petitioner responded "yes" to the question about whether he was pleading guilty because he was, in fact, guilty of "caus[ing] the death of Omar Coombs" "in the course of the commission and attempted commission of the felony of robbery." (P. 8.) This was sufficient to establish his guilty of attempted murder in the second degree. See N.Y. Penal Law § 125.25(3) ("A person is guilty of murder in the second degree when . . . [a]cting either alone or with one or more other persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant . . . causes the death of a person other than one of the participants").
In addition to asserting that his trial counsel was ineffective in his handling of the eyewitness identifications, Petitioner also argues that the identification evidence was legally insufficient. (15-CV-6627, Dkt. 1 at 9.) This claim, however, is barred by Petitioner's guilty plea. See Blackledge, 417 U.S. at 29-30 ("[W]hen a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.") (citation and internal quotation marks omitted).
Petitioner's claim that his arrest was unlawful (16-CV-1178, Dkt. 1 at 8) is barred on the same grounds.
Petitioner argues that his appellate counsel was ineffective for failing to raise the arguments that Petitioner raises in the instant habeas petitions. (16-CV-1178, Dkt. 1, at 8; 15-CV-6627, Dkt. 1, at 6-8.) To establish ineffective assistance of appellate counsel for failure to raise specific issues, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Because, as discussed above, Petitioner's underlying claims fail de novo, he cannot meet the "substantially higher threshold" to demonstrate ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
For the reasons set forth above, the two petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254 are denied. Bonnett is denied a certificate of appealability, as he has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Middleton v. Att'ys Gen., 396 F.3d 207, 209 (2d Cir. 2005). Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to enter judgment and close this case accordingly.
SO ORDERED.
