Strain v. Perez

• Decision Date: 24 May 2012
• Docket Number: 9:11-CV-0345 (TJM)
• Parties: STEPHEN STRAIN, Petitioner, v. ADA PEREZ, Warden, Respondent.
• Court: U.S. District Court — Northern District of New York

STEPHEN STRAIN, Petitioner,
v.
ADA PEREZ, Warden, Respondent.

9:11-CV-0345 (TJM)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: May 24, 2012

APPEARANCES:

FOR THE PETITIONER:

STEPHEN STRAIN
Petitioner, pro se
No. 09-A-5979
Downstate Correctional Facility
Fishkill, NY 12524-0445

OF COUNSEL:

FOR THE RESPONDENT:

ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
New York, NY 10271

ALYSON J. GILL, ESQ.
Assistant Attorney General

THOMAS J. MCAVOY
Senior United States District Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

A. State Court Proceedings

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The records supplied to this Court establish that in a letter dated May 19, 2009, the Rensselaer County District Attorney ("District Attorney") offered petitioner, pro se Stephen Strain an opportunity to plead guilty to attempted robbery in the second degree, in violation of New York Penal Law ("Penal Law") §§ 110.00 and 160.10, in satisfaction of charges that were brought against him in a felony complaint which included a charge of attempted robbery in the first degree. Dkt. No. 1 at 36.¹ That letter noted that if petitioner accepted that offer, he would receive a determinate, seven year prison term, to be followed by five years of post release supervision. Id. That correspondence further provided that if the offer was not accepted prior to June 4, 2009, it would be withdrawn. Id. Petitioner did not accept that offer, and a Rensselaer County Grand Jury thereafter charged him with attempted robbery in the first degree, in violation of Penal Law §§ 110.00 and 160.15(3); burglary in the second degree, contrary to Penal Law § 140.25(1)(c); and criminal possession of a weapon in the third degree, in violation Penal Law § 265.02(1). See Appellant's Brief on Appeal ("App. Br.") (Dkt. No. 13-2) at 3.²

On September 25, 2009, petitioner appeared before the county court for purposes of entering a guilty plea. At that time, defense counsel noted that petitioner would be pleading guilty to the second count in the indictment (i.e., burglary in the second degree) in full satisfaction of all charges returned against petitioner in that instrument. See Transcript of Change of Plea ("Plea Tr.") (Dkt. No. 1 at 15) at 3. Petitioner's counsel also noted at that time that under the terms of that plea proposal, petitioner "would receive an eight and a half year determinate sentence [and] . . . five years post release supervision." Id. After the trial court informed petitioner of the various rights he

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was waiving by entering a guilty plea, petitioner answered a series of questions posed to him by the court which ensured that petitioner's plea was knowingly, intelligently and voluntarily made. Id. at 4-9. He then admitted to entering a Domino's pizza restaurant in Rensselaer County on May 9, 2009, and using or threatening to use a dangerous instrument while intending to commit a crime at that establishment. Id. at 9-10. The trial court thereafter accepted petitioner's guilty plea. Id. at 10.

On November 2, 2009, the District Attorney prepared a second felony offender statement relating to petitioner in which the prosecutor declared that on March 3, 2003, petitioner was convicted of robbery in the third degree in Albany County Court, and thereafter sentenced to an indeterminate prison term of one to three years. See Second Felony Offender Statement ("SFOS") (Dkt. No. 13-1).

On November 23, 2009, petitioner appeared with counsel for purposes of sentencing on the burglary conviction. See Transcript of Sentencing ("Sentencing Tr.") (Dkt. No. 1 at 29). At that proceeding, petitioner admitted to the previous conviction referenced in the SFOS, Sentencing Tr. at 5, and the county court then imposed the agreed-upon sentence of eight and one-half years, to be followed by a five year period of post-release supervision. Id. at 5-6.

With the assistance of counsel, petitioner filed an appeal of the foregoing with the New York State, Supreme Court, Appellate Division, Third Department. See App. Br. The District Attorney filed a brief in opposition to that appeal, Dkt. No. 13-3, and on September 23, 2010, the Appellate Division affirmed the judgment of conviction. People v. Strain, 76 A.D.3d 1123 (3d Dep't 2010). Petitioner did not file an application seeking leave to appeal that decision with the New York Court of Appeals.

Petitioner thereafter filed a motion to set aside the imposed sentence pursuant to New York

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Criminal Procedure Law ("CPL") § 440.20 ("CPL Motion") (Dkt. No. 13-8). In that application, petitioner claimed he had received the ineffective assistance of counsel because his attorney did not object to the District Attorney's alleged failure to comply with CPL § 400.21 concerning the filing of a second felony offender statement,³ or thereafter contest the fact that petitioner was sentenced as a second felony offender. CPL Motion at 3-5. The county court denied petitioner's application, finding that: (1) the District Attorney complied with CPL § 400.21; (2) petitioner was properly sentenced as a second felony offender; and (3) petitioner had received the effective assistance of counsel. See Decision and Order of Rensselaer County Court Judge Robert M. Jacon (1/21/11) ("January, 2011 Decision") (Dkt. No. 13-5) at 2-4. Petitioner did not seek leave to appeal the January, 2011 Decision from the Appellate Division.

B. This Action

Petitioner commenced the present action by filing a petition seeking a writ of habeas corpus on March 17, 2011 in the Eastern District of New York. Dkt. No. 1. Since the conviction challenged herein occurred within the geographical boundaries of the Northern District of New York, on March 28, 2011, United States District Judge Allyne R. Ross transferred this matter to this District. Dkt. No. 2. This Court thereafter directed petitioner to file an amended pleading if he wished to proceed with this action (Dkt. No. 4), and on April 21, 2011, petitioner filed an amended petition in compliance with the terms of that order ("Am. Pet.") (Dkt. No. 5).

In that pleading, petitioner claims that: (1) his trial attorney rendered ineffective assistance; and (2) he was illegally sentenced by the county court as a second felony offender. See Am. Pet.,

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Grounds One, Two.⁴ On September 19, 2011, the Office of the Attorney General of the State of New York, acting on respondent's behalf, filed an answer in opposition to petitioner's amended pleading. Dkt. No. 11. At that time, respondent's counsel also filed a memorandum of law in opposition to the amended pleading ("Resp. Mem.") (Dkt. No. 10), together with various state court records related to the criminal matter challenged herein (Dkt. No. 13).

On October 3, 2011, petitioner filed a reply memorandum of law in further support of his habeas application. Dkt. No. 14 ("Reply").

This matter is currently before this Court for disposition.

II. DISCUSSION

A. Exhaustion Doctrine

Respondent contends that this Court must deny and dismiss petitioner's amended petition because he failed to fully exhaust his habeas claims in the state courts. See Resp. Mem. at 8-9. Respondent specifically argues that petitioner raised his claims alleging ineffective assistance of counsel in his CPL Motion, but that he never sought leave to appeal the denial of that application from the Appellate Division. Resp. Mem. at 8. With respect to petitioner's second and final claim, respondent argues that this theory is unexhausted because when petitioner asserted his challenge to the sentence imposed on him in the context of his direct appeal, "[p]etitioner relied only on New York's Criminal Procedure Law and state cases to support his claims, and did not rely at all on the United States Constitution or federal cases." Id. Respondent contends that such ground is also unexhausted because petitioner never sought leave to appeal the Appellate Division's order that

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denied petitioner's direct appeal from New York's Court of Appeals. Id.

In light of the foregoing, a brief review of the exhaustion doctrine applicable to federal habeas corpus petitions is in order.

A federal district court may not grant the habeas petition of a state prisoner "'unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.'" Richardson v. Superintendent of Mid-Orange Correctional Facility, 621 F.3d 196, 201 (2d Cir. 2010) (quoting 28 U.S.C. § 2254(b)(1)(A)), cert. denied sub nom. Richardson v. Inserra, ____ U.S. ____, 131 S.Ct. 1019 (2011). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)). As the Supreme Court noted in O'Sullivan, "[c]omity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review th[e] claim and provide any necessary relief." Id., 526 U.S. at 844 (citations omitted); see also Smith, 411 F.3d at 347 (quoting O'Sullivan).

A petitioner exhausts his...