Wilens v. Superintendent of Clinton Corr. Facility
| Decision Date | 31 December 2013 |
| Docket Number | No 11-CV-1938 (JFB),11-CV-1938 (JFB) |
| Parties | RANDY WILENS, Petitioner, v. SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Randy Wilens ("petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his October 25, 2005 conviction in state court. Under Suffolk County Indictment Number 1020-2005, Petitioner was charged with two counts of Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal Law § 130.75(1)(a)), two counts of Course of Sexual Conduct Against a Child in the Second Degree (N.Y. Penal Law § 130.80(1)(a)), three counts of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(3)), and five counts of Endangering the Welfare of a Child (N.Y. Penal Law §260.10(1)). Petitioner pled guilty to the indictment and was sentenced, as a prior felony offender, to an aggregate term of fourteen years' incarceration with five years post-release supervision ("PRS").
Petitioner now challenges his conviction, arguing that: (1) his Fourteenth Amendment due process rights were violated because he was not informed of the mandatory post-release supervision ("PRS") as a component of his sentence; (2) he received ineffective assistance of counsel when his attorney failed to advise him of PRS accompanying the sentence, failed to object to duplicate counts in the indictment, and failed to file an appeal; (3) his allocution was insufficient to support a conviction for the crimes alleged; and (4) the DistrictAttorney committed Brady and Rosario violations by failing to disclose Family Court findings and medical reports related to the case.
For the reasons set forth herein, the Court finds that Petitioner has not demonstrated any basis for habeas relief. Most of Petitioner's claims are procedurally barred. In any event, all of Petitioner's claims fail on the merits. The Court, therefore, denies the petition in its entirety.
On August 30, 2005, Petitioner entered a plea before the Honorable Michael Mullen. Under advice of counsel, Petitioner was sworn in (P. 4),1 and affirmed that he freely entered his guilty plea while waiving his constitutional and statutory trial rights. (P. 5-6.) Petitioner allocuted to his guilt on the offenses charged, admitting that: (1) at least three times within a three month period between 2002 and 2004, he subjected a female child, who was less than eleven years of age, to sexual contact and sexual intercourse for his sexual gratification (id. at 7-8); (2) between September 2003 and July 2004, on three occasions within a three month period, at his residence in Suffolk County, he had sexual contact with a male child, who was less than eleven years of age, including one incident of oral sexual conduct (id. at 9-10); (3) at his residence in Suffolk County, in July 2004, he had sexual intercourse with a male, who was less than eleven years of age, for his own sexual gratification (id. at 11-12); (4) he had sexual contact with another male who was less than eleven years of age for his own sexual gratification (id. at 12-13); (5) he twice exposed himself to a female less than seventeen years of age (id. at 15-16); (6) in October 2004, at a house in Suffolk County, he had sexual contact with a female, who was under eleven years of age, for his own sexual gratification (id. at 13-14); (7) at a house in Suffolk County, in the autumn of 2004, he played pornographic video tapes for a minor under eleven years of age (id. at 14); (8) in the autumn of 2004, he displayed lewd images from his cell phone to a child under seventeen years of age (id. at 14-15); and (9) he endangered the physical, mental, and moral welfare of four children under seventeen years of age (id. at 16).
The court was satisfied with the allocution and Petitioner was found guilty of all charges which consisted of: (1) two counts of Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal Law § 130.75(1)(a)); (2) two counts of Course of Sexual Conduct Against a Child in the Second Degree (N.Y. Penal Law § 130.80(1)(a)); (3) three counts of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(3)); and (4) five counts of Endangering the Welfare of a Child (N.Y. Penal Law § 260.10(1)). (P. 16-17.)
At the sentencing hearing on October 25, 2005, Petitioner was sentenced as a Persistent Felony Offender ("P.F.O.") after admitting to a prior conviction of Sodomy in the First Degree, a class "B" felony. (S. 5-6.)2 The court sentenced Petitioner as follows: (1) for two counts of Course of Sexual Conduct Against a Child in the Second Degree, Petitioner was sentenced totwo concurrent terms of seven-years' incarceration with three-years' PRS (id. at 9-10); (2) for two counts of Course of Sexual Conduct Against a Child in the First Degree, Petitioner was sentenced to two concurrent terms of fourteen-years' incarceration with five-years' PRS (id. at 10); (3) for three counts of Sexual Abuse in the First Degree, the court sentenced Petitioner to three concurrent terms of seven-years incarceration with three-years' PRS (id. at 10); and (4) for five counts of Endangering the Welfare of a Child, the court sentenced Petitioner to five concurrent terms of one year of incarceration. (Id. at 10-11.) All terms of the sentence were ordered to run concurrently.
Petitioner filed a notice of motion for sentence reduction on November 17, 2005. His court appointed defense counsel argued that, in the interest of justice, the sentence should be reduced from 14 years, to the minimum 10 years, as the imposed sentence was harsh and excessive. (Notice of Motion for Sentence Reduction, Dec. 31, 2007, Indictment Number 1020-2005.) Petitioner also wrote a letter to the Appellate Division seeking permission to file a pro se supplemental brief. The Appellate Division granted the request. Through his Supplemental Brief filed October 30, 2007, Petitioner claimed that his sentence was harsh and excessive and should be reduced because (1) his plea was unknowingly made, as he was not made aware of post-release supervision accompanying the plea, and (2) his counsel was ineffective for failing to raise specific Brady or Rosario material, failing to file an appeal, and failing to inform Petitioner of PRS. (Notice of Motion for Sentence Reduction—Supplemental Brief, Oct. 30, 2007, Indictment Number 1020-2005) The Appellate Division affirmed the sentence on March 4, 2008 without an opinion. People v. Wilens, 49 A.D.3d 570 (N.Y. App. Div. 2008). Petitioner sought leave to appeal from the Court of Appeals, which was denied. People v. Wilens, 10 N.Y.3d 965 (2008).
Petitioner then filed a motion under N.Y.C.P.L. § 440.10 ("Pet'r's 440 Mot.") to vacate the judgment with the Suffolk County Supreme Court, arguing that: (1) his plea was not knowingly, intelligently, and voluntarily made because he was not made aware of the PRS, thus violating his due process rights (Pet'r's 440 Mot. at 1-2); (2) he received ineffective assistance of counsel for failing to object to alleged duplicate counts on the indictment, failing to advise him of PRS, and coercing Petitioner to accept the plea agreement (id. at 3-4); (3) the allocution was insufficient to cover the elements of the crimes (id. at 2); and (4) the prosecutor committed Brady and Rosario violations for failing to disclose a finding of not guilty to a charge of abuse in Family Court. (Id. at 3-4.)
The Suffolk County Supreme Court denied the motion in full. People v. Wilens, Ind. No. 01020-2005 (Sup. Ct. Suffolk Cnty. Sept. 10, 2010). First, the court reasoned, based on the record, that Petitioner failed to show how his plea was unknowingly, unintelligently, or involuntarily made. Id. Furthermore, the court held that the claim was "wholly based on the record and as such not subject to review in a '440' proceeding." Id. (citing N.Y.C.P.L. § 440.10 (2)(c); People v. Byrdsong, 234 A.D.2d 468 (2d Dep't 1996)). Second, the court concluded that Petitioner failed to support his claim of ineffective assistance of counsel with any evidence other than a self-serving affidavit and was not borne out by the record. Id. (citing People v. Mackenzie, 224 A.D.2d 173 (1st Dep't 1996)). Third, the court held that "[t]he defendant's claim that the impositions of a period of five years postrelease supervision was error requiring relief was again record based and not subject to review." Id. Fourth, the court held the alleged Rosario and Brady violations were presented without any evidence and had no merit. However, the court did not specifically address whether there was an insufficient allocution to cover the elements of the crimes (which had been raised in a one-sentence argument by Petitioner). Id. The Appellate Division denied Petitioner's certificate for leave to appeal. People v. Wilens, A.D. No. 2010-10180 (2d Dep't Dec. 23, 2010). Petitioner's motion to reargue the denial of leave to appeal was again denied by the Appellate Division. People v. Wilens, A.D. No 2010-10180 (2d Dep't Mar. 31, 2011).
Petitioner then filed a pro se Petition for Writ of Habeas Corpus ("Pet'r's Habeas Pet.") on August 22, 2011, raising four grounds for relief. First, Petitioner argues that his plea violated the Due Process Clause of the Fourteenth Amendment because it was not made voluntarily, knowingly, and intelligently, as he was not made aware that PRS was a component of his sentence. (Pet'r's Habeas Pet. at 1.) Second, Petitioner argues that he had ineffective assistance of counsel because his attorney failed to: (1) advise him of the direct consequences of PRS; (2) advise him of his right to appeal; (3) file an appeal; and (4) object to duplicate counts on the indictment. (Id. at 3.) Third, Petitioner argues that his allocution was insufficient to support the elements of the crimes charged. (Id. at 6.) Finally, P...
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