Contant v. Sabol

• Decision Date: 06 December 2013
• Docket Number: Case No. 10–CV–3434 (KMK)(PED).
• Citation: 987 F.Supp.2d 323
• Parties: Isan CONTANT, Petitioner, v. Warden Mary SABOL, Warden Craig A. Lowe, and the State of New York, Respondents.
• Court: U.S. District Court — Southern District of New York

987 F.Supp.2d 323

Isan CONTANT, Petitioner,

v.Warden Mary SABOL, Warden Craig A. Lowe, and the State of New York, Respondents.

Case No. 10–CV–3434 (KMK)(PED).

United States District Court,

S.D. New York.

Dec. 6, 2013.

Isan Contant, York, PA, pro se.

ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, District Judge.

I. Background

After entering a guilty plea, Petitioner was convicted in state court on October 3, 2007, of one count of criminal possession of a controlled substance in the third degree. ( See Report & Recommendation (“R & R”) (Dkt. No. 46) at 1.) Petitioner was thereafter sentenced to imprisonment for a term of one year and to post-release supervision for two years. ( See id.) Following Petitioner's conviction, the federal government commenced deportation proceedings against Petitioner pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), ( See id. at 6), which makes deportable “[a]ny alien who at any time after admission [to the United States] has been convicted of a violation of ... any law or regulation of a State ... relating to a controlled substance.” 8 U.S.C. § 1227(a)(2)(B)(i). On September 10, 2010, Petitioner received a final order of removal, and on February 8, 2012, Petitioner was deported to Trinidad and Tobago. ( See R & R at 339.)

Petitioner filed the instant Petition on April 19, 2012, seeking relief under 28 U.S.C. § 2254.¹ ( See Dkt. No. 31. (“Pet.”).) The Petition was referred to Magistrate Judge Davison, who issued a Report and Recommendation (“R & R”) recommending that the Petition be denied. ( See R & R at 356–57.) Petitioner filed timely objections to the R & R, wherein he raises four challenges. ( See Pet'r's Objections to R & R (“Objs.”) (Dkt. No. 47).) After reviewing the R & R and Petitioner's objections, the Court agrees with Magistrate Judge Davison that the Petition should be denied, and it adopts his R & R to the extent it is consistent with this Opinion for the reasons given below.

II. Discussion

The R & R thoroughly discussed the procedural and factual history of the Petition. ( See R & R at 336–45.) The Court thus finds no need to revisit that discussion here, but will instead refer to the R & R's account where necessary. Accordingly, the Court will proceed directly to the merits of Petitioner's objections.

A. Legal Standard

1. Review of a Magistrate Judge's Report and Recommendation

A district court reviewing a report and recommendation addressing a dispositive motion “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and recommendation. The objections must be “specific” and “written,” Fed.R.Civ.P. 72(b)(2), and must be made “[w]ithin 14 days after being served with a copy of the recommended disposition,” id.; see also28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Federal Rules of Civil Procedure 5(b)(2)(C)(F), seeFed.R.Civ.P. 6(d), for a total of seventeen days, seeFed.R.Civ.P. 6(a)(2).

Where a party submits timely objections to a report and recommendation, as Petitioner has done here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The district court “may adopt those portions of the ... report [and recommendation] to which ‘no specific written objection’ is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law.” Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y.2008) (quoting Fed.R.Civ.P. 72(b)(2)).

2. Habeas Corpus

A petition for habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which provides that a habeas petition “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). In this context, “it is the habeas applicant's burden to show that the state court applied [federal law] to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). “[A]n unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether the determination was unreasonable—a substantially higher threshold.”). Instead, “[§ ]2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). Consequently, a federal court must deny a habeas petition in some circumstances even if the court would have reached a conclusion different from the state court's, because “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id.; see also Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 1411, 179 L.Ed.2d 557 (2011) (“Even if the [federal] Court of Appeals might have reached a different conclusion as an initial matter, it was not an unreasonable application of our precedent for the California Supreme Court to conclude that [petitioner] did not establish prejudice.”); Hawthorne v. Schneiderman, 695 F.3d 192, 197 (2d Cir.2012) ( “Although we might not have decided the issue in the way that the [New York State] Appellate Division did—and indeed we are troubled by the outcome we are constrained to reach—we .... must defer to the determination made by the state court ....” (emphasis added) (citation omitted)), cert. denied,––– U.S. ––––, 133 S.Ct. 2338, 185 L.Ed.2d 1070 (2013).

3. Ineffective Assistance of Counsel

Petitioner's sole claim for habeas relief is that he was denied the effective assistance of counsel guaranteed to him by the Sixth Amendment, as incorporated against the states through the Fourteenth Amendment. ( See Pet. at 4.) The Court thus analyzes Petitioner's specific claims of ineffective assistance under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 1107–08, 185 L.Ed.2d 149 (2013) (noting that Strickland “provides sufficient guidance for resolving virtually all claims of ineffective assistance, even though their particular circumstances will differ” (internal quotation marks omitted)). In Strickland, the Supreme Court held that a defendant claiming ineffective assistance of counsel must show (1) “that counsel's representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 688, 694, 104 S.Ct. 2052.

Under the first prong, the Court “must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance.” Harrington, 131 S.Ct. at 787 (internal quotation marks omitted). “To overcome that presumption, a defendant must show that counsel failed to act ‘reasonabl[y] considering all the circumstances.’ ” Cullen, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “In applying and defining this standard substantial deference must be accorded to counsel's judgment.” Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 742, 178 L.Ed.2d 649 (2011); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“Judicial scrutiny of counsel's performance must be highly deferential.”).

Under the second prong, because “[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial,” Petitioner must “affirmatively prove prejudice.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. “In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the [petitioner] will have to show ‘a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Missouri v. Frye, –––U.S. ––––, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). And he must specifically make this allegation in his petition. Hill, 474 U.S. at 60, 106 S.Ct. 366 (finding no prejudice where “[p]etitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial”). “Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

Where, as here, a petitioner seeks habeas review of an ineffective-assistance-of-counsel claim under the test announced in Strickland, review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009); see also Harrington, 131 S.Ct. at 788 (“The standards created by Strickland and [AEDPA] are both highly deferential, and when the two apply in tandem, review is doubly so.” (internal quotation marks and citations omitted)). Petit...