Gabbidon v. Lee
| Decision Date | 10 March 2022 |
| Docket Number | 18 Civ. 2248 (VB)(JCM) |
| Parties | CRAIG E. GABBIDON, Petitioner, v. WILLIAM A. LEE, Superintendent, Eastern Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Petitioner Craig E. Gabbidon (“Petitioner”), proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 dated March 1, 2018 (the “Petition”).[1] (Docket No. 2). Respondent opposed the motion. (Docket No. 24). Petitioner filed a reply in further support of his motion. (Docket No. 28). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
On January 22, 2014, Petitioner was charged in Dutchess County Court with a Class B Violent Felony of Criminal Sexual Act in the First Degree, a Class B Violent Felony of Rape in the First Degree, two counts of a Class E Felony of Criminal Sexual Act in the Third Degree, and a Class A Misdemeanor of Endangering the Welfare of a Child. (Docket Nos. 11-2; 11-3). These charges arose from his sexual assault of YR[2] on March 3, 2013. (Docket Nos. 11-2; 11-3). The Bill of Particulars alleges that on that date between 2:00 p.m. and 8:00 p.m., Petitioner purchased alcohol for YR and her friend from a liquor store in Poughkeepsie, New York. (Docket No. 113). After YR became “extremely intoxicated” from the alcohol, Petitioner placed her and her friend in his truck and drove them to a motel in Hyde Park, New York. (Id.). Petitioner carried YR into the motel because she was too intoxicated to walk. (Id.). Petitioner then removed her clothing and subjected her to contact between his penis and her anus, her vagina and her mouth. (Id.). Petitioner did so for purposes of his own sexual gratification. (Id.). Moreover, YR was incapable of consenting to these acts because she was under seventeen years old, and because she was physically helpless because she was intoxicated. (Id.).
On June 11, 2014, Petitioner pled guilty to the Class B Violent Felony of Criminal Sexual Act in the First Degree. (Docket No. 11-4). During his plea colloquy, Petitioner stated that he had discussed his guilty plea with his attorney, Assistant Public Defender Susan Mungavin (“Mungavin”), and that he understood that by pleading guilty he would give up his right to a trial. (Id. at 8).[3] The court explained to Petitioner that since he was a citizen of Jamaica, he likely would be deported when released from prison. (Id. at 12). The court also told Petitioner that, in light of his guilty plea, it would cap his sentence at fifteen years in prison followed by post-release supervision, which the court believed was “between two and a half and five years.” (Id. at 14). The court further advised Petitioner that his maximum penalty for the charged crimes was twenty-five years each and that he could be sentenced consecutively. (Id. at 13-14).
By Notice of Motion, dated September 10, 2014, Petitioner's new defense counsel, Eric S. Shiller (“Shiller”), moved to withdraw Petitioner's guilty plea on the ground that Petitioner's previous counsel, Mungavin, “pressured and badgered” him to accept the People's offer to plead guilty. (Docket No. 11-5; see also Docket No. 11-7). Shiller further argued that Petitioner was not guilty, and that he would not have waived his right to a trial but for Mungavin's extreme pressure on him. (Docket No. 11-5). By Decision and Order, dated October 15, 2014, the Dutchess County Court denied the motion on the grounds that the plea minutes established that Petitioner's guilty plea was knowing and voluntary, and that Petitioner stated he was satisfied with his attorney's representation and advice. (Docket No. 11-8 at 5). The court further found that Petitioner's allegations of coercion and claim of innocence were belied by the record. (Id. at 6).
On December 23, 2014, Petitioner was sentenced to a determinate term of fifteen years in prison plus ten years of post-release supervision. (Docket No. 11-9). Neither Petitioner nor Shiller objected when the court imposed the ten years of post-release supervision. (Id. at 9-10).
On May 29, 2015, Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“Second Department”), claiming that: (1) the lower court erred in denying his motion to withdraw his guilty plea because it failed to recognize its own misstatement of sentencing law as it relates to consecutive sentences; (2) he was denied effective assistance of counsel; and (3) his sentence should be modified as harsh and excessive. (Docket No. 11-10).
By Decision and Order, dated December 2, 2015, the Second Department affirmed Petitioner's judgment of conviction. People v. Gabbidon, 19 N.Y.S.3d 786 (2d Dep't 2015); (Docket No. 11-12).
The court held that Petitioner's claim that the trial court misinformed him of his maximum sentencing exposure were he to proceed to trial was unpreserved for appellate review since he failed to raise this ground in his motion to withdraw his guilty plea. Gabbidon, 19 N.Y.S.3d at 786. The court further found that the trial court properly informed Petitioner that consecutive sentences could be imposed if he were convicted of the first two counts of the indictment, since each count involved a separate sexual act constituting a distinct offense. Id. at 786-87. The court also concluded that Petitioner was not deprived of effective assistance of counsel relating to the trial court's purported error regarding the maximum sentencing, since the trial court did not, in fact, err in this regard. Id. at 787. Finally, the court held that nothing in the record demonstrated that Petitioner otherwise received ineffective assistance of counsel, and that his sentence was not excessive. Id. On February 1, 2016, Petitioner sought leave to appeal this decision to the New York Court of Appeals (“Court of Appeals”). (Docket No. 11-13).
Petitioner's request for leave to appeal was denied on March 31, 2016. People v. Gabbidon, 27 N.Y.3d 964 (2016); (Docket No. 11-16).
On September 16, 2016, Petitioner moved to vacate his conviction pursuant to N.Y. C.P.L § 440 (“First 440 Motion”), claiming that: (1) his due process rights were violated because the ten-year period of post-release supervision to which he was sentenced exceeded the amount of time the court discussed during his plea colloquy, which was two-and-a-half to five years; and (2) his counsel was ineffective because he failed to object to the court's misstatement regarding Petitioner's post-release supervision at the plea colloquy. (Docket Nos. 11-17; 11-21). By Decision and Order, dated January 31, 2017, the trial court denied the motion. (Docket No. 1122). The court held that because Petitioner's claims were record-based and not raised on direct appeal, they were not properly subject to a N.Y. C.P.L. § 440 proceeding. (Id. at 4, 9-10). The court further held that there is no evidence in the record that Petitioner's plea was not knowing and voluntary or that Petitioner would not have pleaded guilty had he been informed of a different period of post-release supervision. (Id.). In addition, the specific amount of postrelease supervision Petitioner received was “academic” because at the plea colloquy, the court made “abundantly clear that because [Petitioner] was not a U.S. citizen, ” he “would be subject to deportation upon his release.” (Id. at 5, 11). On February 17, 2017, Petitioner moved for leave to appeal the court's denial of his motion to the Second Department, (Docket No. 11-23), which was denied on April 11, 2017, (Docket No. 11-24).
On August 9, 2017, Petitioner, proceeding pro se, filed a writ of error coram nobis in the Second Department, claiming ineffective assistance of appellate counsel on the grounds that counsel: (1) failed to consult with him concerning issues to be raised; (2) failed to raise issues relating to the length of post-release supervision mentioned at the plea allocution and the term actually imposed at sentencing; and (3) failed to raise other meritorious issues. (Docket Nos. 1127; 11-28). By Decision and Order, dated January 31, 2018, the Second Department denied Petitioner's application. People v. Gabbidon, 67 N.Y.S.3d 500-01 (2d Dep't 2018); (Docket No. 11-32). The Court of Appeals denied Petitioner's leave application on September 24, 2018. People v. Gabbidon, 32 N.Y.3d 1003 (2018).
On March 1, 2018, Petitioner filed his Petition in this Court. (Docket No. 2). Construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) (“pleading requirements in habeas proceedings should not be overly technical and stringent”), Petitioner asserts four claims: (1) the trial court failed to correct its own misstatement of law when it incorrectly advised that consecutive sentences were available, (Docket No. 2 at 13); (2) Petitioner's guilty plea was not voluntarily, knowingly, and intelligently entered into because he was sentenced to a period of post-release supervision that exceeded the amount of time the court advised he would receive during his plea allocution, (Docket No. 2 at 17); (3) ineffective assistance of trial counsel for counsel's failure to address the court's purported misstatements of sentencing law during his plea allocution, (Docket No. 2 at 49, 65);[4] and (4) ineffective assistance of appellate counsel for counsel's failure to raise meritorious issues on appeal, consult with Petitioner, and read the record, (Docket No. 2 at 18, 87-90). Respondent opposed the...
To continue reading
Request your trial