# Jemmott v. Griffin

> District Court, E.D. New York · May 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10304315

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304315

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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.
annem nenneneec enon ewecemen ewer □□□□□□□□□□□□□□□□□□□□□ XK
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304315. Public record. Not legal advice.