Corines v. Superintendent, Otisville Cor. Facility

• Decision Date: 07 November 2008
• Docket Number: No. 05-CV-2056 (NGG)(SMG).,05-CV-2056 (NGG)(SMG).
• Citation: 621 F.Supp.2d 26
• Parties: Peter CORINES, Petitioner, v. SUPERINTENDENT, OTISVILLE CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Eastern District of New York

621 F.Supp.2d 26

Peter CORINES, Petitioner, v. SUPERINTENDENT, OTISVILLE CORRECTIONAL FACILITY, Respondent.

No. 05-CV-2056 (NGG)(SMG).

United States District Court, E.D. New York.

November 7, 2008.

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Peter Corines, Eastchester, NY, for Petitioner.

Alyson Joy Gill, Robin A. Forshaw, New York State Office of the Attorney General, New York, NY, for Respondent.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Petitioner Peter Corines ("Petitioner") was convicted following a jury trial of four counts of Unauthorized Practice of Medicine in violation of New York Education Law § 6512(1). The conviction arose from Petitioner's employment of Ana Marie Santi, an anesthesiologist whose license had been suspended, and was based on the allegation that Petitioner aided and abetted Santi's unlicensed practice of medicine. Petitioner's conviction was affirmed by the Appellate Division, Second Department, and then by the New York Court of Appeals. People v. Corines, 308 A.D.2d 457, 764 N.Y.S.2d 117 (2003), aff'd sub nom. People v. Santi, 3 N.Y.3d 234, 785 N.Y.S.2d 405, 818 N.E.2d 1146 (2004).

Petitioner has filed a Petition and Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket # 3, # 12.) He has also filed a Motion for Summary Judgment on several claims in his Petition. (Docket # 38.) In a Report and Recommendation ("R & R") dated June 10, 2008, 2008 WL 4862732, familiarity with which is assumed, Magistrate Judge Steven M. Gold recommended that Petitioner's Motion for Summary Judgment be denied and his Petition be dismissed. (Docket #55.) Before the court is Petitioner's Objection to Report and Recommendation ("Objections"). (Docket # 60.)

Pursuant to 28 U.S.C. 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, this court conducts a de novo review of those portions of the R & R to which Petitioner has objected. Petitioner has waived his right to further judicial review of those portions of the R & R to which he has not timely objected. Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.2002).¹ For the reasons discussed below, Petitioner's Objections to the R & R are denied, and Judge Gold's R & R is adopted in full.

I. LEGAL STANDARD

The substantive claims raised in the Petition are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Under AEDPA, a federal court may grant a writ of habeas corpus on a claim that was adjudicated on the merits in state court only if it concludes that the adjudication of the claim:

(1) 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

(2) 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); see also Price v. Vincent, 538 U.S. 634, 639-40, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003).

The Second Circuit has explained that a state court's decision is "contrary to" clearly established federal law "if the state court reaches a result opposite to the one reached by the Supreme Court on the same question of law or arrives at a result opposite to the one reached by the Supreme Court on a `materially indistinguishable' set of facts." Earley v. Murray, 451 F.3d 71, 74 (2d Cir.2006) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). An "unreasonable application" of federal law occurs when "the state court identifies the correct rule of law but applies that principle to the facts of the petitioner's case in an unreasonable way." Earley, 451 F.3d at 74 (citing Williams, 529 U.S. at 413, 120 S.Ct. 1495). A federal court reviewing a habeas petition pursuant to this clause must consider "whether the state court's application of clearly established federal law is objectively unreasonable, where objectively unreasonable means `some increment of incorrectness beyond error.'" Id. (internal citations omitted). Unreasonableness is "a substantially higher threshold" than mere incorrectness. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007).

II. PETITIONER'S OBJECTIONS

A. Petitioner's Claim that the Construction of N.Y. Education Law § 6512(1) by the New York Court of Appeals Was Unconstitutional

Petitioner claims that the indictment against him was flawed, contending that the statute he was accused of violating, New York Education Law § 6512(1), applies only to persons who are not authorized to practice medicine, and at the time of the alleged offenses, he was authorized to practice medicine.² (Pet. Ground 1.) Judge Gold recommended that this claim be denied because the trial court, the Appellate Division, and the New York Court of Appeals rejected Petitioner's interpretation of Section 6512(1), and a federal court has no authority to construe a state statute differently from the highest court of the state. (R & R 17-19) (citing Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997).) Judge Gold noted that even if he concluded — which he did not — that the New York Court of Appeals incorrectly construed the statute, Petitioner would not necessarily be entitled to habeas relief, because "a federal habeas court does not sit to correct a misapplication of state law, unless such misapplication violates the Constitution, laws, or treaties of the United States." (Id. at 19) (citing Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.2002).)

Although Judge Gold noted that Petitioner had not articulated any basis for challenging the New York courts' ruling under the U.S. Constitution or U.S. Supreme Court precedent, he nevertheless considered and rejected the potential claim that the interpretation of New York Court of Appeals was so novel that it denied Petitioner "fair warning" that his conduct was criminal, as required by the Due Process Clause of the U.S. Constitution. (R & R 19-20.) Judge Gold concluded that Petitioner had "fair warning" that his conduct was criminal, because the Appellate Division had previously upheld the conviction of a licensed doctor under the same statute. (Id. at 20) (citing People v. Varas, 110 A.D.2d 646, 487 N.Y.S.2d 577 (N.Y.App.Div.1985), leave denied, 65 N.Y.2d 701, 491 N.Y.S.2d 1042, 481 N.E.2d 270 (1985).)

In his Objections, Petitioner argues that the interpretation of Section 6512 by the New York Court of Appeals is unconstitutional because it did not allow him fair warning or notice of the criminality of his conduct, was ex post facto, and renders the language of the statute ambiguous. (Pet. Obj. Tab 1 at 1.) The court construes Petitioner's Objections to argue that the decision of the New York Court of Appeals is "contrary to" clearly established federal law, the standard for relief under AEDPA. For the reasons discussed below, Petitioner's claim must be denied.

First, Petitioner had "fair notice" that his conduct was criminal. In United States v. Lanier, the Supreme Court held that "due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (emphasis added); see also Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (citing Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) for the proposition that deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language). "Fair notice" is a right of "federal constitutional dimension, grounded in the due process guarantee, established by the Supreme Court ...." Lurie v. Wittner, 228 F.3d 113, 126 (2d Cir.2000) (internal quotation marks and citations omitted), cert. denied, 532 U.S. 943, 121 S.Ct. 1404, 149 L.Ed.2d 347 (2001). In applying the Supreme Court's "fair notice" requirement to a habeas petition, the Second Circuit noted that:

The only way the New York courts could have applied a rule of law that contradicts the governing law set forth in the Supreme Court's fair-notice precedents would have been to uphold a defendant's conviction for a crime where the defendant could not have discerned the scope of the convicting law's prohibitions even by searching the statutory and other laws defining the alleged crime.

Id. Here, Petitioner could have discerned the scope of the convicting law's prohibitions. As Judge Gold noted, the New York Appellate Division in the Second Department had already upheld the conviction of a licensed doctor under the statute in People v. Varas, 110 A.D.2d 646, 487 N.Y.S.2d 577 (N.Y.App.Div.1985), leave denied, 65 N.Y.2d 701, 491 N.Y.S.2d 1042, 481 N.E.2d 270 (1985). Contrary to Petitioner's Objections, it does not matter that the New York City Criminal Court construed Education Law § 6512(1) to require that the defendant himself be a person not authorized to practice a profession. People v. Mauro, 147 Misc.2d 381, 389, 555 N.Y.S.2d 533 (N.Y.Crim.Ct.1990). Lanier requires only that "any prior judicial decision" include the conduct at issue as within the scope of the statute. 520 U.S. at 266, 117 S.Ct. 1219. The Appellate Division's decision in Varas therefore suffices to give Petitioner fair warning.³

Second, the interpretation of the New York Court of Appeals does not render the statute ambiguous such that it is "contrary to" clearly established federal law. The decision at issue held that licensed practitioners such as Petitioner are subject to criminal liability under Section 6512(1) when they intentionally aid or abet an unlicensed person to practice medicine. Santi, 3 N.Y.3d at 243-45, 785...