Smalls v. Lee, Case No. 12-CV-2083 (KMK) (LMS)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtKENNETH M. KARAS, District Judge
PartiesBENJAMIN SMALLS, Petitioner, v. WILLIAM LEE, Superintendent, Respondent.
Docket NumberCase No. 12-CV-2083 (KMK) (LMS)
Decision Date21 September 2016

WILLIAM LEE, Superintendent, Respondent.

Case No. 12-CV-2083 (KMK) (LMS)


September 21, 2016


KENNETH M. KARAS, District Judge:

On March 19, 2012, Benjamin Smalls ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (the "Petition"), challenging his October 14, 1999 judgment of conviction in New York state court and his aggregate term of imprisonment of 31 years to life in prison after being convicted of multiple counts of, among others, kidnapping, assault, and burglary. (Pet. for Writ of Habeas Corpus 1 ("Pet.") (Dkt. No. 2).) On April 27, 2012, the case was referred to Magistrate Judge Lisa Margaret Smith ("Judge Smith") pursuant to 28 U.S.C. § 636(b)(1). (See Order Referring Case to Magistrate Judge (Dkt. No. 8).) On May 24, 2016, Judge Smith issued a Report and Recommendation (the "R&R") recommending that the Petition be denied. (See Dkt. No. 64.) For the reasons set forth below, the Court adopts the R&R.

I. Background

The factual and procedural background of this case is set forth, in part, in the R&R. (R&R 3-8.) Because of the complex history of this case, the Court nevertheless relates the pertinent facts.

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On October 14, 1999, Petitioner was convicted in Westchester County Supreme Court for kidnapping in the first degree, two counts of assault in the second degree, burglary in the first degree, criminal use of a firearm in the first degree, three counts of criminal possession of a weapon in the third degree, and menacing in the second degree. (Pet. 1.) After the close of evidence but prior to the reading of the verdict, Petitioner absconded. (Resp't's Mem. of Law in Opp. to Pet. for Writ of Habeas Corpus ("Resp't's Opp.") Ex. 46, at 6-7 (Dkt. No. 25).) Petitioner was thereafter sentenced in absentia to an aggregate indeterminate term of 31 years to life. (See id. at 13-18.) When asked by the People during sentencing about the possibility of post-release supervision, the court remarked that it "[would] not say anything about it. The statute will take care of it." (Id. at 13.) With Petitioner's whereabouts still unknown, Petitioner's attorney filed a notice of appeal. (See Resp't's Opp. Ex. 2.) Upon motion by the People, the New York Appellate Division (the "Appellate Division") dismissed the appeal because Petitioner, as a fugitive, was "not amenable to the jurisdiction of [the] court." (Resp't's Opp. Ex. 4.)

On July 21, 2000, after Petitioner's apprehension, the records coordinator at the correctional facility to which Petitioner was committed submitted an inquiry to the trial judge asking for clarification on certain issues with Petitioner's sentence and commitment form. (See Pet. Ex. D.) On August 17, 2000, the trial court responded with a corrected sentence and commitment form, accurately reflecting the sentence orally imposed at Petitioner's sentencing. (See id.; Resp't's Opp. Ex. 46.)

Petitioner thereafter filed the first of several actions challenging his conviction and sentence. On June 24, 2000, Petitioner filed a pro se habeas corpus petition in New York Supreme Court, arguing that he was deprived effective assistance of counsel at sentencing

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because the attorney who represented him at sentencing was different from the one who represented him at trial. (See Resp't's Opp. Ex. 5.) Following opposition briefing from the People, (see Resp't's Opp. Ex. 6), Petitioner submitted a supplemental reply brief alleging ineffective assistance of counsel at trial and defectiveness of the indictment, (see Resp't's Opp. Ex. 7).1 The Supreme Court of Westchester County held that because a habeas petition "cannot be utilized to review claimed errors which could have been raised on appeal but were not," and because there was "absolutely no merit to any of [] [P]etitioner's contentions," the petition was denied. (Id. at 3.) That judgment was affirmed on appeal, with the Appellate Division concluding that a habeas proceeding "was not the appropriate vehicle for asserting the claims raised in the petition." (Resp't's Opp. Ex. 11.)

On April 12, 2002, Petitioner filed a pro se motion pursuant to New York Criminal Procedure Law ("CPL") §§ 440.10(1)(a), (h), arguing that the incident report generated by the local police department was insufficient, the indictment was defective for not having been signed by the foreperson and the district attorney, and he was denied effective assistance of counsel at sentencing. (See Resp't's Opp. Ex. 13.) The Supreme Court of Westchester County denied the motion, saying that "a CPL 440.10 motion cannot be utilized as a substitute for direct appeal" and noting that Petitioner's arguments were without merit anyway. (See Resp't's Opp. Ex. 15, at 2.) The Appellate Division denied leave to appeal the decision. (See Resp't's Opp. Ex. 19.)

On June 16, 2003, Petitioner, through pro bono legal counsel, filed a motion to renew the § 440.10 motion. (See Resp't's Opp. Ex. 21, at unnumbered 8.) The motion, which is not in the record, was denied on August 25, 2003. (Id.)

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On October 18, 2004, Petitioner, proceeding again pro se, moved in the Appellate Division to vacate the dismissal of his direct appeal from his conviction, arguing that the appellate court had failed to appoint an attorney to represent Petitioner's interests when the appeal was pending. (See Resp't's Opp. Ex. 21.) That motion was denied on November 23, 2004. (See Resp't's Opp. Ex. 23.)

On July 21, 2006, Petitioner, still proceeding pro se, filed his first federal habeas petition (the "First Federal Habeas Petition"), arguing that (1) there was no valid indictment, (2) he was denied effective assistance of counsel at sentencing, (3) he was denied the right to counsel on direct appeal, (4) he was denied the right to counsel when the trial court conducted a resentencing hearing in the absence of Petitioner or counsel, (5) he was denied due process and equal protection when the appellate court refused to hear his constitutional arguments on direct appeal, and (6) he is actually innocent. (See Resp't's Opp. Ex. 25, at unnumbered 8-13.) On November 26, 2006, Judge Charles E. Brieant denied the petition, saying that the petition was time-barred and, even if the claims were timely, all of them were procedurally defaulted because the arguments could have been raised, but were not, on direct appeal. (See Resp't's Opp. Ex. 27.) While Petitioner's appeal of the Second Circuit's affirmance of that decision to the Supreme Court was pending, Petitioner moved in the district court under Federal Rule of Civil Procedure 60(b) to vacate the judgment. (See Resp't's Opp. Ex. 29.) The motion was denied by Judge Cathy Seibel on September 10, 2009. (See Resp't's Opp. Ex. 31.) See Smalls v. Smith, No. 05-CV-5182, 2009 WL 2902516 (S.D.N.Y. Sept. 10, 2009).

On May 5, 2009, Petitioner, still pro se, moved under CPL § 440.20 to vacate his sentence on the grounds that the judgment and sentencing minutes did not reflect imposition of a term of post-release supervision as required by law and his indeterminate sentence for the

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kidnapping count was unlawful. (See Resp't's Opp. Ex. 33.) The motion was granted in part and denied in part on June 29, 2009, when Judge Barbara G. Zambelli, who had presided over Petitioner's trial, ordered that Petitioner be resentenced pursuant to People v. Sparber, 889 N.E.2d 459 (N.Y. 2008), superseded in part by statute, N.Y. Correct. Law § 601-d, N.Y. Penal Law § 70.85, as recognized in People ex rel. Joseph II v. Superintendent of Southport Corr. Facility, 931 N.E.2d 76 (N.Y. 2010), to include terms of post-release supervision for the applicable counts, (see Resp't's Opp. Ex. 35).

At his resentencing on August 18, 2009, Petitioner was initially represented by Andrew Proto. (See Resp't's Opp. Ex. 47.) Mr. Proto disclosed to the court that he worked for the Westchester County District Attorney's Office during part of Petitioner's case, and while Mr. Proto felt there was no conflict, Petitioner indicated at the resentencing that he was concerned with the possible conflict of interest. (Id. at 5.) The court dismissed Mr. Proto and ordered the resentencing adjourned until the afternoon when a new attorney could be secured for Petitioner, noting that "[w]e had all of these other lawyers here this morning, too." (Id. at 5-7.) In the afternoon, Paul Pickelle appeared on behalf of Petitioner. (Id. at 7.) Mr. Pickelle noted that he "had occasion to speak briefly with [Petitioner]" and knew that Petitioner "would like to address the [c]ourt at some point, as well." (Id. at 8.) When asked whether he wanted to be heard regarding the amount of post-release supervision to be imposed on each count, Mr. Pickelle declined. (See id. at 10.) The court proceeded to impose the maximum post-release supervision term for each count. (See id. at 12-14.)

Petitioner, through counsel, appealed the resentencing, arguing that he was deprived of effective assistance of counsel because Mr. Pickelle was not familiar with his case and that the court should have conducted a plenary resentencing in light of the addition of post-release

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supervision. (See Resp't's Opp. Ex. 36.) Petitioner filed a supplemental pro se brief reiterating the arguments in the counseled brief and raising a number of arguments with respect to the underlying conviction. (See Resp't's Opp. Ex. 38.) The Appellate Division affirmed on May 17, 2011, saying that the ineffective assistance of counsel claims were "based upon matter dehors the record" and could "not be reviewed on direct appeal," and noting that those claims were without merit anyway. (See Resp't's Opp. Ex. 40.) The Appellate Division further held that the remaining contentions were either unpreserved for appellate review or not properly before the court. (See id.)

Petitioner, proceeding again pro se, thereafter filed the instant...

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