Reinard v. Bell
| Decision Date | 04 May 2021 |
| Docket Number | 17-CV-708-LJV-MJR |
| Parties | DONALD REINARD, Petitioner, v. EARL BELL, Respondent |
| Court | U.S. District Court — Western District of New York |
On July 26, 2017, the pro se petitioner, Donald Reinard, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that his convictions in the county court of Niagara County, New York, were obtained in violation of his constitutional rights. Docket Item 1. On March 19, 2018, the respondent answered the petition. Docket Item 10. On August 20, 2018, Reinard asked the Court to stay his habeas petition and hold it in abeyance so that he could exhaust two unexhausted claimsthrough a second motion under New York Criminal Procedure Law ("CPL") section 440.102 ("second 440.10 motion").3 Docket Item 18.
On November 12, 2019, this Court referred the case to United States Magistrate Judge Michael J. Roemer for all proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B). Docket Item 20. On January 3, 2020, the respondent responded to the motion for a stay and abeyance. Docket Item 23. And on January 29, 2020, Reinard replied. Docket Item 24.
On August 3, 2020, Judge Roemer issued a Report and Recommendation ("R&R"), finding that both Reinard's motion for a stay and abeyance and the habeas petition itself should be denied. Docket Item 25. On October 16, 2020, Reinardobjected to the R&R.4 Docket Item 34. The respondent did not respond to the objection, and the time to do so now has expired. See Docket Item 35.5
A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must review de novo those portions of a magistrate judge's recommendations to which a party objects. Id.
This Court has carefully and thoroughly reviewed the R&R, the record in this case, the motion for a stay and response to the motion, the objection, and all materials submitted to Judge Roemer. Based on that de novo review, the Court accepts and adopts Judge Roemer's recommendation to deny Reinard's motion for a stay and abeyance and to deny his habeas petition in its entirety.6
Reinard initially was charged with one count of predatory sexual assault against a child, Victim "S," under New York Penal Law ("Penal Law") section 130.96. See Docket Item 2-2 at 47, 49, 50, 56. He later was charged with four additional counts: two counts of course of sexual conduct in the first degree, one against the same child and one against Victim "J," under Penal Law section 130.75; and two counts of sexual abuse in the first degree, one against Victim "M" and one against Victim "P," under Penal Law section 130.65. See id. at 47, 49, 50, 56-58.
On March 26, 2010, Reinard pleaded guilty to two counts of course of sexual conduct in the first degree (Victims "S" and "J") under Penal Law section 130.75(1)(a) and two counts of attempted sexual abuse in the first degree (Victims "M" and "P") under Penal Law sections 110.5(6) and 130.65. Id. at 56-58; see also State Record at 18-19, 60-61. Reinard also signed a waiver in which he waived his right to appeal in exchange for capping his sentence at 40 years' imprisonment, 60 years' post-release supervision, and dismissal of the remaining charges. State Record at 18-19, 60-61; see also Docket Item 2-2 at 48.
The parties then learned that their agreement, and the subsequent plea, were procedurally defective as to one count. State Record at 21 (). More specifically, because Reinard originally was charged with a Class A felony as to Victim "S," he could not waive his right to indictment on that count, and the court therefore lacked jurisdiction to accept Reinard's plea to the lesser-included offense of course of sexual conduct against Victim "S." See id.; see also id. at 60.
To cure the defect, both sides agreed that Reinard would withdraw his guilty plea to the defective count and plead guilty to an identical count brought under a new indictment. Id. at 60-61. Therefore, the case was presented to a grand jury, and on June 8, 2010, an indictment charged Reinard with course of sexual conduct against a child in the first degree. Id. at 22. On the same day, Reinard pleaded guilty to the new charge and withdrew his previous guilty plea. Docket Item 2-2 at 70-72. He was sentenced to the maximum contemplated under his plea agreement—40 years' imprisonment and 60 years' post-release supervision, see State Record at 18, 60; Docket Item 2-2 at 95—as well as $4,425 in fees, id.
Reinard appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Department, filing his brief on March 20, 2015. State Record at 63. On December 23, 2015, the Appellate Division affirmed Reinard's conviction, People v. Reinard, 134 A.D.3d 1407, 22 N.Y.S.3d 270 (4th Dep't 2015); the court later denied leave to reargue, People v. Reinard, 138 A.D.3d 1514, 29 N.Y.S.3d 226 (4th Dep't 2016). On May 17, 2016, the New York Court of Appeals denied leave to appeal. People v. Reinard, 27 N.Y.3d 1074, 60 N.E.3d 1210 (2016). Reinard then sought review by the United States Supreme Court, but on October 31, 2016, the Court denied certiorari. Reinard v. New York, 137 S. Ct. 392 (2016).
In the meantime, Reinard also moved in Niagara County Court to vacate the judgment of conviction under CPL section 440.10. State Record at 274. On September 1, 2015, that 440.10 motion was denied, id. at 503; Reinard moved to reargue, id. at588, and that motion was denied on December 21, 2015, id. at 606. He also asked for leave to appeal the denial of the 440.10 motion, id. at 571, and the denial of his request for reargument, id. at 609; those requests were denied on July 1, 2016, id. at 644.
On October 5, 2016, Reinard petitioned for a writ of error coram nobis in the Appellate Division, id. at 645; the court denied that petition on December 23, 2016, People v. Reinard, 145 A.D.3d 1658, 42 N.Y.S.3d 923 (4th Dep't 2016). Reinard then sought leave to appeal, but that was denied as well. State Record at 672.
On July 26, 2017, Reinard petitioned this Court for a writ of habeas corpus. See Docket Item 1. About ten months later, he filed a second application for a writ of error coram nobis, Docket Item 18 at 52, which was denied by the Appellate Division on June 29, 2018, People v. Reinard, 162 A.D.3d 1776, 76 N.Y.S.3d 443, (4th Dep't 2018). Reinard then sought leave to appeal, which also was denied. People v. Reinard, 32 N.Y.3d 1114, 115 N.E.3d 638 (2018).
A state prisoner generally may obtain federal habeas relief only after exhausting his claims in state court. 28 U.S.C. §§ 2254(b)(1), (c); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust a claim, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. 845. A petitioner can exhaust claims either through direct appeal or by a collateral proceeding, such as one under CPL section 440.10. See Daye v. Atty Gen. of State of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982).
When a habeas corpus petition includes both exhausted and unexhausted claims (a "mixed petition"), the reviewing district court usually should dismiss the petition so that the state courts can decide the unexhausted issues. Rose v. Lundy, 455 U.S. 509, 510 (1982). But when certain requirements are met, a district court may stay a mixed petition and hold it in abeyance so that the petitioner can return to state court and exhaust the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 278 (2005).
Reinard moved for such a stay and abeyance here. More specifically, Reinard asked this Court to stay his habeas petition so that he could pursue his second 440.10 motion raising two additional reasons why his guilty plea was invalid:7 (1) prior to his plea, he was not informed that under Article 10 of the New York Mental Hygiene Law ("Article 10"),8 he was waiving confidentiality with mental health professionals ("disclosure requirement")9; and (2) the disclosure requirement renders Article 10unconstitutional as applied to him. Docket Item 18 at 22, 77-80. Judge Roemer found that Reinard's motion for stay and abeyance should be denied. Docket Item 25 at 9. This Court agrees.
Before a petitioner is entitled to a stay and abeyance, the petitioner must show that (1) there was "good cause" for his failure to exhaust his claims in state court before bringing the federal habeas petition; (2) the unexhausted claims are "potentially meritorious"; and (3) the petitioner did not engage in dilatory litigation tactics—that is, he did not intend to cause delay. Sherrod v. Artus, 2016 WL 3459539 at *2 (W.D.N.Y. June 24, 2016) (citing Rhines, 544 U.S. at 277-78). When those requirements are not met, the request for a stay should be denied and the "writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available" in state court. See Rhines, 544 U.S. at 277 (citing 28 U.S.C. § 2254(b)(2)). Here, Reinard has not satisfied any of those factors for either of his unexhausted claims.
First, Reinard has not demonstrated good cause for his failure to bring either claim prior to filing his habeas petition. Indeed, before he filed the habeas petition, Reinard already had challenged the constitutionality of Article 10 and how that statute affected his plea no less than three times: in his pro se supplemental brief on direct appeal, State Record at 144-45 (); in his first 440.10 motion, id. at 311-13 (arguing the same); and in his motion to reargue hisfirst 440.10...
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