Jemmott v. Griffin

FILED

UNITED STATES DISTRICT COURT IN CLERK’S OFFICE

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT E.D.N.Y.

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MARVON JEMMOTT. *& MAY 2020200 *

-against- MEMORANDUM &

ORDER

CV 16-5126 (GRB)

THOMAS GRIFFIN,

Respondent.

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GARY R. BROWN, United States District Judge:

On March 9, 2011, pursuant to a guilty plea, Marvon Jemmott (“Petitioner”) was convicted

of one count of Murder in the Second Degree and one count of Tampering with Physical Evidence.

On May 18, 2011, Petitioner was sentenced to two indeterminate sentences of twenty years of

imprisonment to life on the Murder in the Second Degree count and one and one third years to four

years of imprisonment on the Tampering with Physical Evidence count, with both sentences to run

concurrently. Petitioner, filing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

raising various grounds for relief. For the following reasons, all of Petitioner’s proffered grounds

are both procedurally barred and without merit. Therefore, the petition is DENIED in its entirety.

FACTUAL BACKGROUND!

Petitioner shared a child-in-common with Jamaica Smith (“Smith”). Supp. Hr’g Tr. 25:19-

26:2, 122:14-20. On November 25, 2009, after an argument about child support payments,

Petitioner strangled Smith to death. Tr. 283:18-23; Supp. Hr’g Tr. 114:23-25. After murdering

' The following facts are taken from the petition and the state court record. “Tr.” refers to the trial

transcript, People v. Jemmott Trial Tr., March 3, 7-9, 2011. “S.” refers to the transcript for the

sentencing proceedings, People v. Jemmott S. Tr., April 28, 2011, May 18, 2011.

Smith, Petitioner moved her body from Queens County to Nassau County, where he dumped her

body next to an abandoned house. Tr. 283:24-284:3.

A suppression hearing was held on January 18, 2011 before the Hon. Meryl J. Berkowitz,

Acting Supreme Court Justice of the Nassau County Supreme Court, to litigate Petitioner’s

statements, including his confession. After the hearing, suppression was denied. Trial Tr. 254.

On March 9, 2011, during jury selection for his criminal trial, also before Judge Berkowitz,

Petitioner pled guilty to both counts on the indictment, murder in the second degree and tampering

with physical evidence pursuant to a negotiated plea agreement. See generally Tr. 276-285. Judge

Berkowitz advised Petitioner that his guilty plea would carry a twenty year to life prison sentence.

Tr. 281:13-282:13. The following colloquy continued among Petitioner, his attorney Douglas

Rankin, Assistant District Attorney Michael Walsh, and Judge Berkowitz:

MR. RANKIN: My client says he’s going to take the plea, your Honor.

THE COURT: All right. Swear him in.

(Whereupon, defendant was duly sworn by the Court Clerk.)

. . .

THE COURT: Mr. Jemmott, have you completely discussed the facts of this

case with your attorney?

THE DEFENDANT: Yes.

THE COURT: During the course of my questioning, you have the right to

stop me and ask me or your attorney any questions. Do you

understand?

THE DEFENDANT: Yes.

. . .

THE COURT: [] Do you feel in good physical and mental health as you

stand here today?

THE DEFENDANT: Yes.

THE COURT: Have you had enough time to speak with your attorney

before pleading guilty?

THE DEFENDANT: Not as much as I want to, but –

THE COURT: But you’ve had enough?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with the manner in which your attorney has

represented you?

THE DEFENDANT: Yes.

THE COURT: Do you understand you have the right to a trial by jury with

the assistance of your attorney and that the assistant district

attorney would have to prove your guilt beyond a reasonable

doubt?

THE DEFENDANT: Yeah.

THE COURT: Do you understand you have the right to listen to the

witnesses against you and to have your attorney cross-

examine those witnesses?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you would not have to take the stand

and testify and you have the right to bring in witnesses to

testify on your behalf?

THE DEFENDANT: Yes.

THE COURT: Do you understand that by pleading guilty, you give up the

rights I just explained?

THE DEFENDANT: Yes.

THE COURT: Do you understand that a plea of guilty had the same legal

effect as having been convicted after trial?

THE DEFENDANT: Yes.

THE COURT: Has anyone made any threats or in any way tried to force you

to plead guilty here today?

THE DEFENDANT: No.

THE COURT: Do you understand you have the right to appeal this case to

a higher court after sentence and to review what had taken

place and the district attorney and myself are asking that you

give up that right, waive your right to appeal as part of this

plea agreement?

MR. RANKIN: Let me explain that to him.

THE COURT: Okay.

(Pause.)

THE COURT: Yes?

MR. RANKIN: He understands that he’d be waiving his right to appeal if he

pleads guilty, your Honor.

THE COURT: Have you discussed waiving your right to appeal with your

attorney?

THE DEFENDANT: Yes.

THE COURT: Has anyone made any threats or in any way tried to force you

to waive your right to appeal?

THE DEFENDANT: No.

THE COURT: Do you voluntarily give up your right to appeal?

THE DEFENDANT: Yes.

THE COURT: Do you understand by giving up your right to appeal, no

higher court will review what has happened in this case?

THE DEFENDANT: Yes.

. . .

THE COURT: Do you understand you’re pleading guilty to two felonies

here today? If you’re convicted of a new felony at any time

within the next ten years, the court in that case must imposed

a mandatory term of imprisonment?

THE DEFENDANT: Yes.

THE COURT: Under this indictment, you’re charged with murder in the

second degree, a class A1 felony for which the maximum

sentence you could receive is twenty-five to life, the

minimum sentence you could receive would be fifteen to

life. You’re also charged with a class E felony for which the

minimum sentence you could receive is no time whatsoever

and the maximum sentence you could receive is one and a-

third to four years. Do you understand the original charges

and what you face?

THE DEFENDANT: Yes.

THE COURT: For the purposes of plea, the district attorney is

recommending, and I’m going along with that you get

sentenced to twenty to life, and there will also be mandatory

surcharges and fines and might be some other restitution. Do

you understand?

. . .

MR. RANKIN: You can continue, your Honor. He understands.

THE COURT: You understand my commitment, what my commitment is

as to your sentence?

THE DEFENDANT: Yes.

. . .

THE COURT: All right. All right. Mr. Jemmott, after reviewing the

probation report, if I cannot or chose not to honor my

promise and commitment as to your sentence, I will give you

permission to take your plea back and you can proceed to

trial. Do you understand?

THE DEFENDANT: Yes.

THE COURT: I also advise that if you fail to appear for sentence or if you

get arrested for a new crime between today and your

sentence date, my commitment as to your sentence is off, I

am not bound by my commitment, I will not allow you to

withdraw your plea and I can and will sentence you to the

maximum twenty-five to life. Do you understand?

THE DEFENDANT: Yes.

THE COURT: I further advise that I you fail to appear on the date of

sentence, we will proceed in your absence. Do you

understand?

THE DEFENDANT: Yes.

THE COURT: I can’t accept your plea in fact unless you’re guilty. On

November 25, 2009, did you cause the death of Jamaica

Smith?

THE DEFENDANT: Yes.

THE COURT: And did you intend to kill Jamaica Smith?

THE DEFENDANT: Yes.

THE COURT: And did you move Jamaica Smith’s body and put her body,

move her body from Queens to Nassau County and leave her

body beside an abandoned home in Uniondale?

THE DEFENDANT: Yes.

THE COURT: People satisfied?

MR. WALSH: Yes, Judge.

THE COURT: Are you prepared to plead guilty at this time?

THE DEFENDANT: Yes.

THE COURT: Is everything you told me today the truth?

THE DEFENDANT: Yes.

THE COURT: The Court is satisfied defendant understands the nature of

the charge, nature of the plea, possible consequences, that

he’s discussed his legal rights with his attorney, that he

understands he’s waiving his Constitutional rights and that

the plea is voluntary and of his own free will. The Court is

further satisfied defendant has acknowledged his guilt, it is

in the interest of justice to accept the plea from this

defendant. Like the record to reflect as well I gave the

defendant 45 minutes of time this afternoon to speak with his

family regarding this. The Clerk is directed to please take

the plea.

THE CLERK: Marvon Jemmott, do you now wish to withdraw your

previously-entered plea of not guilty and enter a plea of

guilty to murder in the second degree, a class A felony, and

tampering with physical evidence, a class E felony, in full

satisfaction of indictment 222N of 2010?

THE DEFENDANT: Yes.

THE CLERK: How do you plead? Guilty or not guilty?

THE DEFENDANT: I plead guilty.

Tr. 276:6-285:9.

After Petitioner’s guilty plea allocution, the case was adjourned for sentencing. Tr. 285:10-

15. Prior to sentencing, Petitioner made a motion to withdraw his guilty plea pursuant to New

York Criminal Procedure Law (“CPL”) § 220.60, on the grounds that he was not guilty and his

guilty plea was involuntary and obtained under duress. S. 9:20-24. Petitioner further asserted that

he was deprived adequate time to review witness videotaped statements or to discuss the case with

defense counsel. S. 10:5-10. On May 18, 2011, the parties appeared before Judge Berkowitz for

sentencing, and the court denied Petitioner’s motion finding that during his guilty plea, Petitioner

was fully allocated as to the facts and elements of the crime, and he indicated to the court that the

plea and allocution were made voluntarily of his own free will, and after a discussion with defense

counsel. S. 9:25-10:4. The court also noted for the record that Petitioner was in fact afforded an

opportunity to view the videotape with defense counsel. S. 10:5-16.

Thereafter, Judge Berkowitz sentenced Petitioner to the agreed upon sentence, two

indeterminate sentences of twenty years of imprisonment to life on the Murder in the Second

Degree count and one and one third years to four years of imprisonment on the Tampering with

Physical Evidence count, with both sentences to run concurrently. S. 21:15-22:1.

PROCEDURAL BACKGROUND

1. May 2011 Motion to Set Aside Sentence

On May 24, 2011, Petitioner filed a pro se motion before the trial court to set aside his

sentence, pursuant to CPL § 440.20(a)(b)(c), based on allegations that: (1) anxiety medication

inhibited his understanding of the plea; (2) he was never interviewed by probation so the pre-

sentence report was defective; (3) he was not permitted to address the court; and (4) his family was

not present in court and were not contacted by probation. See Mot. to Set Aside S., D.E. 9-6.

Petitioner later filed a reply to the prosecution’s opposition in which he attempted to withdraw

every claim except for his claims arising from not being interviewed by the probation department.

See Reply to People’s Opp., D.E. 9-8. Regardless, the trial court decided the motion in its entirety,

and denied Petitioner’s application based on “its complete lack of merit.” People v. Jemmott, Dec.

and Order, (Sup. Ct. Nassau County, Apr. 4, 2012), D.E. 9-9 at p. 2. Petitioner did not appeal to

the Second Department from the denial of his motion.

2. September 2011 Motion to Vacate Judgment

On September 14, 2011, Petitioner filed a motion to vacate judgment pursuant to CPL §

440.10(1) (b) and (h) in the trial court. Petitioner argued that: (1) he was under the influence of

extreme emotional disturbance when the crime was committed; (2) his plea was involuntary; (3)

he was not interviewed by probation, and thus his pre-sentence report was deficient; and (4) he

received ineffective assistance of counsel. See Mot. to Vacate J., D.E. 9-10.

On May 10, 2012, the Supreme Court, Nassau County issued an order denying Petitioner’s

application by finding that Petitioner’s claims were “without merit.” People v. Jemmott, Dec. and

Order (Sup. Ct. Nassau County May 10, 2012), D.E. 9-12.

Petitioner’s application for leave to appeal to the Second Department was granted on July

26, 2012. People v. Jemmott, Dec., Order, and Cert. (2nd Dept. July 26, 2012).

3. The Direct Appeal

On May 22, 2013, Petitioner appealed both his conviction and he denial of his motion to

vacate pursuant to CPL § 440.10 motion to the Second Department. On appeal, Petitioner argued

that: (1) he did not knowingly, intelligently, and voluntarily waive his right to appeal; (2) his

statements to law enforcement were involuntary and the suppression court erred by denying

suppression; (3) the trial court erred by denying his motion to withdraw his guilty plea; (4) his

conviction for tampering with physical evidence should have been vacated in the interest of justice

as incidental to the murder charge; (5) a hearing should have been conducted under Article 36 of

the Vienna Convention on Consular Relations; and (6) his sentence was improper because he was

never interviewed by probation and defense counsel was not advised of the contents of the pre-

sentence report. See Def.’s App. Br., May 22, 2013 (“App. Div. Br.”), at 11-74.

The Second Department affirmed Petitioner’s conviction and the denial of his 440.10

motion. People v. Jemmott, 125 A.D.3d 1005 (N.Y. App. Div. 2d Dep’t 2015). On July 7, 2016,

the New York State Court of Appeals denied Petitioner’s request for leave to appeal. People v.

Jemmott, 26 N.Y.3d 968 (N.Y. 2015).

2. The Instant Petition

Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

asserting three grounds for relief, all of which relate to the Nassau County Supreme Court violating

his rights by failing to inquire “as to the nature and effect of the psychotropic medication he was

taking[.]” Pet. at pp. 7, 10. Specifically, Petitioner claims that the medication he was taking

rendered him incapable of: (1) entering a voluntary and intelligent guilty plea; (2) entering a legally

valid plea allocution; and (3) understanding what it was he was being sentenced to, and what he

was being sentenced for. Pet. at pp. 7, 10. For the reasons discussed below, Petitioner’s claims

are both procedurally barred and without merit. Thus, the instant petition is DENIED in its

entirety.

LEGAL STANDARD

1. Overview of AEDPA

Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L.

No. 104–132, 110 Stat. 1214 (1996), to restrict “the power of federal courts to grant writs of habeas

corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362, 399 (2000) (O’Connor, J.,

concurring). Under AEDPA, a prisoner may file a habeas petition “only on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a). To make that showing, the petitioner must demonstrate: (1) the exhaustion of state

remedies, (2) the absence of a procedural bar, and (3) the satisfaction of AEDPA’s deferential

review of state court decisions. See id. § 2254.

2. Exhaustion

A court cannot review a habeas petition unless the petitioner “has exhausted the remedies

available” in state courts. 28 U.S.C. § 2254(b)(1)(A). This requirement first allows state courts

the “‘opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.’”

Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270,

275 (1971)). Thus, a petitioner must show that he fairly presented his federal claim to the highest

state court from which a decision can be rendered. Daye v. Att’y Gen. of N.Y., 696 F.2d 186, 190

n.3 (2d Cir. 1982) (en banc). Although a petitioner need not “‘cite chapter and verse of the

Constitution in order to satisfy this requirement,’ he must tender his claim ‘in terms that are likely

to alert the state courts to the claim’s federal nature.’” Jackson v. Conway, 763 F.3d 115, 133 (2d

Cir. 2014) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).

3. Procedural Default

A federal court cannot review a habeas petition “when the state court’s decision rests upon

a state-law ground that ‘is independent of the federal question and adequate to support the

judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S.

722, 729 (1991)). For this reason, under the doctrine of procedural default, a federal court will not

review “the merits of claims, including constitutional claims, that a state court declined to hear

because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9

(2012). This procedural bar applies even if the state court addressed a claim’s merits in the

alternative, but decided that claim on independent procedural grounds. Velasquez v. Leonardo,

898 F.2d 7, 9 (2d Cir. 1990) (per curiam); see also Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)

(observing that “a state court need not fear reaching the merits of a federal claim in an alternative

holding” where the court explicitly invokes a procedural rule as an independent ground for its

decision) (emphasis in original). When a state court has dismissed a claim based on a state

procedural rule, the petitioner is procedurally barred from raising that claim in a § 2254 petition

unless the petitioner can meet certain exceptions discussed below.

To overcome a procedural bar a petitioner must show either (1) “cause for the default and

actual prejudice as a result of the alleged violation of federal law” or (2) “that failure to consider

the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To

demonstrate cause, a petitioner must put forth that “some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule”: for example, that the factual

or legal basis for a claim was not reasonably available to counsel or that “some interference by

officials … made compliance impracticable.” Murray v. Carrier, 477 U.S. 478, 488 (1986)

(internal quotation marks and citations omitted). A petitioner may also satisfy the cause

requirement by demonstrating that his attorney’s failure to comply with state procedural rules

denied him constitutionally adequate representation. See Tavarez v. Larkin, 814 F.3d 644, 650 (2d

Cir. 2016); Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999).

As for the prejudice requirement, the petitioner must demonstrate that counsel’s errors (or

any other basis invoked by the petition to establish cause) not only “created a possibility of

prejudice, but that they worked to his actual and substantial disadvantage…” United States v.

Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

Even if a petitioner cannot establish cause and prejudice, a federal court may excuse a

petitioner’s procedural default if he can show that a fundamental miscarriage of justice would

result. For example, a petitioner can overcome a procedural bar by showing “that he is actually

innocent of the crime for which he has been convicted.” Dunham v. Travis, 313 F.3d 724, 730 (2d

Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)). To prevail, the petitioner must put

forth “new reliable evidence … that was not presented at trial. Because such evidence is obviously

unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup,

513 U.S. at 324.

Finally, it must be noted that “[t]he concepts of procedural bar and exhaustion often interact

in an important way.” Dominguez v. Rock, No. 12-CV-3269, 2016 WL 542120, at *5 (E.D.N.Y.

Feb. 9, 2016). “If a § 2254 petitioner has failed to present a claim to a state court but can no longer

do so – for example, if the time to file a state-court appeal has passed – then that claim is considered

procedurally barred rather than unexhausted.” Id. (citing O’Sullivan v. Boerckel, 526 U.S. 838,

848 (1999)); Lloyd v. Walker, 771 F. Supp. 570, 574 (E.D.N.Y. 1991) (noting that “[w]hen a

petitioner has not properly presented his claim to a state for consideration on the merits, but it is

clear that the state court would hold the claim procedurally barred, . . . the exhaustion requirement

is satisfied,” but, nonetheless, the petitioner is barred from litigating the merits of that claim in

federal habeas proceedings) (internal quotation marks and citation omitted).

4. AEDPA Standard of Review

If a state court reached the merits of a claim, a federal court may not grant a writ of habeas

corpus unless the state court’s adjudication of the claim either:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.SC. § 2254(d). The Supreme Court has construed AEDPA “to give independent meaning to

‘contrary [to]’ and ‘unreasonable.’” Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000).

A state court’s decision is “contrary to” clearly established federal law if “the state court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if

the state court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000) (O’Connor, J.,

concurring). A decision involves an “unreasonable application” of clearly established federal law

when a state court “identifies the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of [a] prisoner’s case.” Id. at 413.

This standard does not require that all reasonable jurists agree that the state court was wrong. Id.

at 409–10. Rather, the standard “falls somewhere between ‘merely erroneous and unreasonable to

all reasonable jurists.’” Jones, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109

(2d Cir. 2000)).

AEDPA “‘imposes a highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.’” Jones v. Murphy, 694

F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam)).

This standard is “‘difficult to meet,’” and for good reason. White v. Woodall, 134 S. Ct. 1697,

1702 (2014) (quoting Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)), reh’g denied, 134 S.

Ct. 2835 (2014). A petitioner must show that the “state court’s ruling . . . was so lacking in

justification that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 1702.

Furthermore, a state court’s determinations of factual issues are “presumed to be correct,”

and the petitioner has “the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir.

2006). A state court’s findings of fact will be upheld “‘unless objectively unreasonable in light

of the evidence presented in the state court proceeding.’” Lynn, 443 F.3d at 246–47 (quoting

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Thus, a federal court may overrule a state court’s

judgment only if “after the closest examination of the state-court judgment, a federal court is firmly

convinced that a federal constitutional right has been violated.” Williams, 529 U.S. at 389.

5. Pro Se Status

A petitioner “bears the burden of proving by a preponderance of the evidence that his

constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

However, in light of Petitioner’s pro se status, the Court construes his submissions liberally and

interprets them “‘to raise the strongest arguments that they suggest.’” Kirkland v. Cablevision

Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994)). This liberal interpretation of the petition “‘does not exempt a party from compliance with

relevant rules of procedural and substantive law.’” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)

(quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).

DISCUSSION

Petitioner seek habeas relief on three related grounds, that the medication he was taking at

or around the time of his guilty plea and sentence rendered him incapable of: (1) entering a

voluntary and intelligent guilty plea; (2) entering a legally valid plea allocution; and (3)

understanding what he was being sentenced to, and what he was being sentenced for. Pet. at pp.

7, 10.

1. Petitioner’s Claims Are Procedurally Barred

As an initial matter, Petitioner has failed to exhaust his state court remedies, and, as such,

his claims are procedurally barred from review. See 28 U.S.C. § 2254(b)(1)(A). Petitioner raised

a similar claim in his first motion to vacate his judgment, arguing that he “was under medication

for high anxiety and did not knowingly know what I was pleading to, and Judge Berkowitz refused

to let me take my plea back before sentencing.” See Mot. to Set Aside S., at 2. While Petitioner

later sought to withdraw his claim because it was not properly raised, the Nassau County Supreme

Court still addressed it in its decision. People v. Jemmott, Dec. and Order, (Sup. Ct. Nassau

County, Apr. 4, 2012); Aff. in Reply to People’s Opp., D.E. 9-8. Specifically, the court

acknowledged that Petitioner moved to set aside his sentence alleging that anxiety medication

inhibited his understanding of the plea, and denied his application in its entirety based on its

complete lack of merit. People v. Jemmott, Dec. and Order, (Sup. Ct. Nassau County, Apr. 4,

2012). Petitioner did not appeal the state court’s decision.

Petitioner has not fully exhausted his state court remedies with respect to the claims he

brings now. Specifically, Petitioner failed to appeal the Nassau County Supreme Court’s decision

to the highest state court, and now it is too late to do so. As such, Petitioner’s claim is deemed

exhausted but procedurally barred. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan, 526 U.S. at 848.

To overcome the procedural bar, Petitioner must demonstrate: (1) “cause for the default

and actual prejudice as a result of the alleged violation of federal law” or (2) “that failure to

consider the claims will result in a fundamental miscarriage of justice.” Coleman, 750. Petitioner

has not shown cause for the default and actual prejudice, or that failure to consider his claims will

result in a fundamental miscarriage of justice. Thus, Petitioner cannot overcome this procedural

bar.

2. Petitioner’s Claims Fail on the Merits

Despite the procedural bar, the Court reaches the merits of Petitioner’s claims and finds

that his claims fail to merit habeas relief. As stated above, Petitioner’s three claims are essentially

all related to the argument that the anxiety medication he was taking at or round the time of his

plea and sentence prevented him from understanding his guilty plea, allocution, and sentencing.

Pet. at pp. 7, 10. For the following reasons, the Court finds that Petitioner’s plea was not contrary

to, or in violation of, federal constitutional law, and, thus, his claims are denied.

“When a guilty plea is entered, the defendant waives several federal constitutional rights,

including the right to trial by jury, the right to confront his accusers, and the privilege against

compulsory self-incrimination.” Oyague v. Artuz, 393 F.3d 99, 106 (2d Cir. 2004) (citing Boykin

v. Alabama, 395 U.S. 238, 243 (1969)). A guilty plea is constitutionally valid if entered into

“voluntarily, knowingly, and intelligently, with sufficient awareness of relevant circumstances and

likely consequences.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United

States, 397 U.S. 742, 748 (1970)); see also Thomas v. New York, No. 17 CIV 910 (LTS)(SLC),

2019 WL 8326684, at *5 (S.D.N.Y. Oct. 23, 2019), report and recommendation adopted, 2020

WL 1505551 (S.D.N.Y. Mar. 30, 2020); Lear v. Poole, 711 F. Supp. 2d 288, 294 (W.D.N.Y.

2010).2

2 “[A]lthough ‘the governing standard as to whether a plea of guilty is voluntary for the purposes

of the Federal Constitution is a question of federal law,’ questions of historical fact, including

inferences properly drawn from such facts, are in this context entitled to the presumption of

correctness accorded to state court factual findings.” Lear, 711 F. Supp. 2d at 294 (quoting Parke

v. Raley, 506 U.S. 20, 35 (1992)); see also Thomas, 2019 WL 8326684, at *5 (citations omitted).

Statements at a plea hearing constitute a ‘formidable barrier’ that cannot be easily overcome in

subsequent collateral proceedings because ‘[s]olemn declarations in open court carry a strong

presumption of verity. The subsequent presentation of conclusory allegations unsupported by

specifics is subject to summary dismissals, as are contentions that in the fact of the record are

wholly incredible.” Lear, 711 F. Supp. 2d at 295 (quoting Blackledge v. Allison, 431 U.S. 63, 73-

74 (1977)); see also Thomas, 2019 WL 8326684, at *5.

While it might be “preferable for the court to explicitly inquire as to whether [petitioner]

has taken any medication or used any drugs prior to the plea,” a plea can be valid if the court does

not do so. Roesch v. Fischer, No. 02-CV-6041 (JG), 2003 WL 1623082, at *4 (E.D.N.Y. Mar. 7,

2003). Courts look to whether there were “lengthy exchanges, largely in question-and-answer

form, between the trial court and the petitioner,” and whether “[p]etitioner responded appropriately

to all questions and clearly understood the nature of the proceedings.” Oyague v. Artuz, Nos. 98-

CV-6372 (JBW), 274 F. Supp. 2d 251, 262 (E.D.N.Y. 2003), aff’d, 393 F.3d 99 (2d Cir. 2004);

see also Lear v. Poole, 711 F. Supp. 2d 288, 298 (W.D.N.Y. 2010) (holding voluntary, knowing,

and intelligent plea where court inquired into petitioner’s mental state, but did inquire into the

effect of medication on his mental state).

Here, Petitioner participated in a lengthy colloquy with the trial court at the time he entered

his guilty plea. In the presence of his defense counsel, Petitioner swore an oath to tell the truth

and was asked a series of questions that demonstrated his familiarity with the case, and that he had

an opportunity to consult with his attorney prior to entering the plea. See generally Tr. 276-85.

While the court did not conduct an inquiry into any medications Petitioner was taking at or about

the time he pled guilty, the trial court did ask Petitioner “[d]o you feel in good physical and mental

health as you stand here today?” Tr. 277:23-24. Petitioner answered affirmatively. Tr. 277:25.

The court further inquired whether Petitioner had been threatened or forced to plead guilty, to

which he responded that he had not. Tr. 279:6-8. Overall, Petitioner’s sworn responses all indicate

that he was capable of understanding the guilty plea he entered. Thus, Petitioner’s guilty plea was

knowing and voluntary.

The trial court also conducted a factual allocution within Petitioner’s guilty plea. The trial

court informed Petitioner that he would only be allowed to plead guilty if he was in fact guilty,

and asked him whether he caused the death of Jamaica Smith, whether he intended to cause her

death, and whether he moved her body from Queens County to Nassau Count where he left her

body beside an abandoned house. Tr. 283:16-284:3. Petitioner answered yes in response to the

court’s factual allocution, and as such, was permitted to enter his guilty plea. At the time of his

allocution, Petitioner had already participated in a detailed colloquy with the court, and

demonstrated that he understood the proceedings and was intelligently participating. As such,

Petitioner’s allocution was knowing and voluntary.

Additionally, the trial court advised Petitioner about the nature of the charges, possible

consequences should he choose to proceed to trial, and what his sentence would be under the terms

of the plea. See generally Tr. 276-85. Specifically, the court explained that for the purposes of

the guilty plea, the court would adhere to the district attorney’s recommendation of twenty years

to life imprisonment, to which Petitioner stated he understood. Tr. 281:13-282:13. After Petitioner

pled guilty and prior to sentencing, Petitioner filed a motion to withdraw his guilty plea and,

notably, did not raise any argument that he was on medication that affected his ability to understand

his guilty plea, allocution, or sentence. See Mot. to Withdraw Plea. The trial court denied

Petitioner’s motion to withdraw his plea, and prior to imposing sentence, offered him the

opportunity to address the court, which he declined. S. 9:20-11:3, 21:12-14.

At the time Petitioner plead guilty, he was advised of the constitutional rights he was

waiving as a result of his plea, and he understood. Petitioner, under oath, stated he felt he was in

good mental health and appropriately participated in the plea allocution. Petitioner was allocated

on the elements of the crime. The trial court fully advised Petitioner of the nature of the charges,

the maximum sentence he could receive if he proceeded to trial and was found guilty, and the

sentence that would be imposed as a result of his guilty plea. At the end of the colloquy, the judge

stated for the record that the court was satisfied that Petitioner understood the nature of the charge,

the plea, the possible consequences, that he waived his constitutional rights, and that his guilty

plea was voluntary and of his own free will. Tr. 284:12-20. There is nothing in the record to

indicate that the trial court was aware that Petitioner was taking Paxil for anxiety, as claimed in

his petition. Pet. at pp. 7-8. And in fact, the record does not support Petitioner’s contention that

medication he was taking rendered him incapable of understanding the proceedings.

Based on the record and the plea transcript, the Court finds that Petitioner’s plea was

knowing, intelligent, and voluntary, and there is no indication that medication rendered him

incapable of understanding his plea, allocution, or sentence. Thus, the Nassau County Supreme

Court’s decision is not contrary to, or in violation of, federal constitutional law, nor it is an

unreasonable finding based on the facts before the trial court.

CONCLUSION

Because the Court has considered all of Petitioner’s arguments and found them meritless,

the petition is DENIED. A certificate of appealability shall not issue because Petitioner has not

made a substantial showing that he was denied any constitutional rights. See 28 U.S.C.

§ 2253(c)(2). The Court certifies that any appeal of this Order would not be taken in good faith,

and thus in forma pauperis status is denied for the purposes of any appeal. Coppedge v. United

States, 369 U.S. 438, 444–45 (1962). The Clerk of the Court is respectfully directed to mail a copy

of this Order to petitioner and to close the case.

SO ORDERED.

Dated: Central Islip, New York

May 20, 2020 /s/ Gary R. Brown

GARY R. BROWN

United States District Judge