Phelan v. Sheahan

• Decision Date: 14 January 2013
• Docket Number: No. 9:11-cv-00416-JKS,9:11-cv-00416-JKS
• Parties: KENNETH J. PHELAN, Petitioner, v. MICHAEL SHEAHAN, Superintendent, Five Points Correctional Facility, Respondent.
• Court: U.S. District Court — Northern District of New York

KENNETH J. PHELAN, Petitioner, v. MICHAEL SHEAHAN,¹ Superintendent Five Points Correctional Facility, Respondent.

No. 9:11-cv-00416-JKS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Dated: January 14, 2013

Superintendent,

MEMORANDUM DECISION

Kenneth J. Phelan, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Phelan is currently in the custody of the N.Y. Department of Corrections and Community Supervision, incarcerated at the Five Points Correctional Facility. Respondent has answered, and Phelan has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Following a jury trial in Albany County, Phelan was convicted of two counts of Criminal Contempt in the First Degree (N.Y. Penal Law § 215.51(b)(iii)), one count of Aggravated Harassment in the Second Degree (N.Y. Penal Law § 240.30[1](b)), and one count of Stalking in the Third Degree (N.Y. Penal Law § 120.50[3]). In March 2009 the Albany County Court sentenced Phelan, a second felony offender, to an indeterminate prison term of two to four years on the criminal contempt conviction, to run concurrently with one year sentences on each of the harassment and stalking convictions. The trial court further ordered these sentences to run consecutive to an indeterminate sentence of two and one-half to five years imposed on an earlierconviction. On August 6, 2009, while his appeal was pending, Phelan, appearing pro se, filed a motion to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 ("CPL § 440.10 motion") in the Albany County Court, which was denied in a reasoned decision on November 20, 2009. The Appellate Division, Third Department, after consolidating the appeal from his conviction and the appeal from the denial of his CPL § 440.10 motion, affirmed Phelan's conviction, sentence and denial of his CPL § 440.10 motion in a published decision, and the New York Court of Appeals denied leave to appeal on June 13, 2011.² While his appeal was pending, Phelan also filed a motion for writ of error coram nobis in the Appellate Division, which was summarily denied without opinion or citation to authority in an unreported slip opinion, and the New York Court of Appeals denied leave to appeal on March 30, 2012.³ Phelan timely filed his Petition for relief in this Court on March 30, 2011.

The Appellate Division summarized the facts underlying Phelan's conviction:

As a result of [Phelan's] interactions and communications with the victim between April and June 2008, a temporary order of protection was issued on July 1, 2008 directing that [Phelan] stay away from and avoid any contact with the victim. Later that day, the victim received two e-mails allegedly sent by [Phelan]—one stating, "You are dead [b]* *ch!! $10,000 reward for your death," and the other stating, among other things, "We will kill you." The victim also discovered that [Phelan] had posted on "Craigslist," a public Internet Web site, her name, address, license plate number, place of employment, and make and model of her car, and he identified her as an illegal immigrant living in the City of Albany who was using a stolen Social Security number and date of birth.

Subsequently, in response to [Phelan's] report that the victim was an illegal immigrant, a State Police investigator conducted a background check of the victim and learned that she was a legal resident of the United States. He also learned of theorder of protection against [Phelan] in favor of the victim. After speaking with the victim and obtaining a supporting deposition, the investigator obtained a search warrant for [Phelan's] residence. Upon execution of the warrant, the police discovered, among other things, a file entitled "Secret I Spy Covert File" under [Phelan's] mattress that contained information about the victim, as well as a rolodex with the e-mail address and password to the e-mail account from which the two threatening e-mails were sent to the victim.⁴

II. ISSUES RAISED/DEFENSES

Phelan raises eight enumerated grounds: (1) ineffective assistance of trial counsel (failure to argue a Payton violation⁵ or that Phelan's First Amendment rights were violated); (2) ineffective assistance of trial counsel (failure to object to admission of illegally seized evidence); (3) insufficiency of the evidence; (4) prosecutorial misconduct; (5) ineffective assistance of trial counsel (failure to argue disability as a mitigating factor at sentencing); (6) ineffective assistance of trial counsel (a veritable "laundry list" of alleged deficiencies); (7) ineffective assistance of appellate counsel; and (8) illegal arrest and use of evidence seized in violation of the Fourth Amendment. Respondent contends that Phelan's first ground is partially unexhausted (failure to argue the First Amendment violation), and that his fourth (prosecutorial misconduct), fifth (ineffective assistance of counsel at sentencing), sixth (ineffective assistance of trial counsel), and eighth (Fourth Amendment) grounds are unexhausted.⁶ Respondent also contends that theunexhausted grounds are procedurally barred. Finally, Respondent contends that Phelan's third ground is procedurally barred.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."⁷ The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."⁸ The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.⁹ Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"¹⁰ When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent mustbe "objectively unreasonable," not just "incorrect or erroneous."¹¹ The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.¹² "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"¹³ In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.¹⁴ Phelan "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."¹⁵

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 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. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that thestate court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.¹⁶

In applying this standard, this Court reviews the "last reasoned decision" by the state court.¹⁷ Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.¹⁸ Although pre-AEDPA precedent established that deference is due to the findings of state appellate courts,¹⁹ the Second Circuit has left the question open with respect to AEDPA cases.²⁰ In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.

IV. DISCUSSION

A. Exhaustion

This Court may not consider claims that have not been fairly presented to the state courts.²¹ Unexhausted claims must be dismissed.²² To be exhausted the claim must have been presented to the highest state court that may consider the issue presented.²³ "[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief."²⁴ A mere appeal to a broad constitutional guarantee, e.g., due process, is insufficient to present the substance of a constitutional claim to the state courts.²⁵ A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential...