Horton v. Recktenwald
Decision Date | 11 July 2017 |
Docket Number | No. 1:15-cv-843(MAT)(MJR),1:15-cv-843(MAT)(MJR) |
Parties | CHARLES HORTON, Petitioner, v. MONICA RECKTENWALD, Warden, Respondent. |
Court | U.S. District Court — Western District of New York |
Pro se petitioner Charles Horton ("Petitioner") instituted this proceeding by filing a petition (Dkt #1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 6, 2017, United States Magistrate Judge Michael J. Roemer issued a Report and Recommendation ("R&R") recommending, inter alia, denial of the petition (Dkt #1). The R&R stated that any objections were to be filed within fourteen days. Petitioner subsequently was given an extension of time to file objections until May 2, 2017. No objections had arrived at the Court prior to the Court's issuance of its Decision and Order (Dkt #13) on May 4, 2017, adopting the R&R in its entirety.1
On May 15, 2017, the Court received Petitioner's motion for reconsideration, arguing that his objections were timely filed, butnot specifying the date on which they were filed. Respondent, in her opposition to the motion for reconsideration, asserts that Petitioner "did not file his objections until May 5, 2017, rendering them untimely."
The Court did not receive any objections from Petitioner until May 30, 2017, which apparently were mailed on May 24, 2017, and, according to Petitioner, are a duplicate copy of the objections he filed earlier. The objections bear Petitioner's signature and are dated in two places with two different dates (April 27, 2017, and April 28, 2017). Petitioner asserts that these were timely mailed but never received by the Court. According to the prison mailbox rule, these objections would have been timely, even if received on May 5, 2017, because they are dated prior to May 2, 2017. As noted above, Petitioner was given an extension of time until May 2, 2017, to file objections to the R&R. The Court therefore will reconsider the R&R in light of Petitioner's objections. As discussed further below, the Court rejects Petitioner's objections and adheres to its Decision and Order adopting the R&R.
Petitioner asserts that the Appellate Division erred by not ruling on his actual innocence claim. It appears that he is referring to the Appellate Division's denial of his application for leave to appeal the County Court's denial of his second motion tovacate pursuant to New York Criminal Procedure Law ("C.P.L") § 440.10. This Court previously determined that the R&R correctly found these allegations could not be construed to raise a constitutional issue cognizable on federal habeas review. First, an appellate court's denial of discretionary leave to appeal does not raise a constitutional issue. See, e.g., Shaut v. Bennet, 289 F. Supp. 2d 354, 370 (W.D.N.Y. 2003). Second, to the extent Petitioner's leave application asserts that he is actually innocent, the United States Supreme Court has never ruled that a freestanding claim of actual innocence may serve as a basis for federal habeas relief. In the absence of any Supreme Court authority, the Appellate Division's decision declining to hear Petitioner's actual innocence claim cannot be contrary to, or an unreasonable application of, clearly established federal law as set forth by the United States Supreme Court. See Wright v. Patten, 552 U.S. 120, 126 (2008) () (internal citation omitted in original)).
"In order to demonstrate actual innocence in a so-called collateral proceeding, a petitioner must present 'new reliable evidence that was not presented at trial' and 'show that it is morelikely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995)). In his objections, Petitioner asserts that his "affidavit, plea transcripts, etc. is [sic] sufficiently detail[ed] to call [his] guilt into serious question" because it "would have been impossible for [him] to have been arrested for DWI then got release and return to [his] alledge [sic] apartment to be arrest[ed] for possession [of] cocaine during the same time of a traffic stop." (Dkt #24, p. 12 of 29). Even assuming that Petitioner's actual innocence claim is cognizable as a stand-alone claim in this habeas proceeding, he has fallen far short of the evidentiary showing contemplated. Here, his Germain v. Racette, No. 913CV1530MADDEP, 2015 WL 7709606, at *6 (N.D.N.Y. Sept. 10, 2015), report and recommendation adopted, No. 913CV1530MADDEP, 2015 WL 7573225 (N.D.N.Y. Nov. 25, 2015) (citing Johnson v. Medina, 547 F. App'x 880, 885 (10th Cir.2013) () (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995); citing Mardis v. Falk, No. 14-CV-2895, 2015 WL 1064444, at *4(D. Colo. Mar. 9, 2015) () ). "The Second Circuit has held that a habeas court can consider a guilty plea in the context of making an actual innocence determination." Bower v. Walsh, 703 F. Supp.2d 204, 227 (S.D.N.Y. 2010) () . Here, despite his awareness of evidence establishing the alleged impossibility of his commission of the crime, Petitioner entered a knowing, intelligent, and voluntary guilty plea, a factor that militates strongly against crediting his assertion of actual innocence claim. Accord, e.g., Germain, 2015 WL 7709606, at *6 .
Petitioner contends that his plea was the product of coercion by his attorney, who allegedly told him, "Just plead guilty now and you can revoke the plea and then go to trial in the future." (Dkt #24, p. 19 of 29). Petitioner's allegations are fatally undermined by his statements made under oath and open court, prior to pleading guilty, that he was satisfied with the representation he had received from counsel. "It is well established that '[a] criminal defendant's self-inculpatory statements made under oath at this plea allocution carry a strong presumption of verity . . . and are generally treated as conclusive in the face of the defendant's later attempt to contradict them.'" United States v. Grzybek, 283 F. App'x 843, 845 (2d Cir. 2008) ( ).
Petitioner also contends that his attorney failed to advise him of the collateral consequences of pleading guilty to a felony, namely, that he would lose his right to vote, to hold public office, or to possess a firearm. (Id., p. 20 of 29). Theseallegations do not establish that counsel was constitutionally ineffective. See Padilla v. Kentucky, 559 U.S. 356, 376-77 (2010) (Alito, J., concurring) () (internal citations omitted; brackets in original). Petitioner's claims are wholly reliant on his own self-serving affidavit, made after his conviction and sentence were upheld. However, "self-serving allegations of ineffective assistance of counsel are not enough to overturn a knowing and voluntary guilty plea." Eber-Schmid v. Cuomo, No. 09 CIV 8036 BSJAJP, 2010 WL 1640905, at *28 (S.D.N.Y. Apr. 22, 2010), report and recommendation adopted, No. 09 CV 8036 BSJ AJP, 2012 WL 3105012 (S.D.N.Y. July 31, 2012) ...
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