# Teaque v. Superintendent

> District Court, E.D. New York · June 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10306266

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 2, 2021
- **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/10306266

## How later opinions describe it (automated extraction)

- holding that a waiver of appeal was enforceable because there was no realistic possibility that the defendant misunderstood the waiver after the judge explained in the plea colloquy that the defendant “[would] have no right to take an appeal from any aspect of this case”
- discussing United States v. Oladimeji, 463 F.3d 152 (2d Cir. 2006)

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
DERRICK TEAQUE,

Petitioner,
MEMORANDUM & ORDER
- against - 20-CV-1116 (PKC)

SUPERINTENDENT, Collins Correctional
Facility,

Respondent.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Petitioner Derrick Teaque (“Petitioner”), appearing pro se,1 petitions this Court for a writ
of habeas corpus under 28 U.S.C. § 2254, challenging his conviction for Assault in the First
Degree, N.Y. Penal Law § 120.10[3], for which he was sentenced to a term of seven years’
imprisonment. For the reasons below, the petition is denied.
BACKGROUND
I. Facts2
On July 17, 2015, Petitioner injured his infant child when he picked up the child, shook the
child several times, and dropped the child forcibly into a swing, which caught and injured the
child’s leg. (Psychiatric Examination Report (“Psych. Exam. Report”), Dkt. 11-2, at ECF3 11;

1 Because Petitioner is pro se, the Court liberally construes his petition and interprets it “to
raise the strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam) (citation and emphasis omitted). But the Court notes that it
“need not act as an advocate for” Petitioner. Curry v. Kerik, 163 F. Supp. 2d 232, 235 (S.D.N.Y.
2001) (quoting Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998)).

2 The Court presumes the “determination of [] factual issue[s] made by [the] State
court . . . to be correct” unless rebutted “by clear and convincing evidence.” See 28 U.S.C.
§ 2254(e)(1).
3 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
Petitioner’s Pro Se Supplemental Brief to the Appellate Division (“Pet. Suppl. Br. App. Div.”),
Dkt. 11-3, at ECF 35.) The child’s mother took the child to the hospital for medical treatment two
days after the injury. (Pet. Suppl. Br., Dkt. 11-3, at ECF 35.) Petitioner informed the police that
he had injured the child and failed to get him medical treatment afterward. (Psych. Exam. Report,
Dkt. 11-2, at ECF 11.) The child, who was two and a half months old at the time, suffered brain-

damage-induced seizures and received treatment for injuries to the head, brain, eyes, and right leg,
including skull, femur, and rib fractures. (Id.; Respondent’s Affidavit (“Resp. Aff.”), Dkt. 11, ¶ 4.)
On July 24, 2015, a Kings County grand jury indicted Petitioner, charging him with one
count of Assault in the First Degree (N.Y. Penal Law § 120.10[3]), two counts of Reckless Assault
of a Child (N.Y. Penal Law § 120.02[1]), six counts of Assault in the Second Degree (N.Y. Penal
Law § 120.05[1], [8], [9]), and one count of Endangering the Welfare of a Child (N.Y. Penal Law
§ 260.10[1]). (Resp. Aff., Dkt. 11, ¶ 5; see also Respondent’s Supplemental Brief to the Appellate
Division (“Resp. Suppl. Br. App. Div.”), Dkt. 11-3, at ECF 46.) Petitioner did not testify at the
grand jury proceedings. (Petitioner’s Habeas Petition Attachment (“Pet. Habeas Petit. Attach.”),

Dkt. 1-2, at ECF 1–2.)
II. Prior Convictions
At the time of his conviction in this case, Petitioner had no previous felony convictions and
was therefore a first-time felony offender. (Petitioner’s Brief to the Appellate Division (“Pet. Br.
App. Div.”), Dkt. 11-3, at ECF 7.) As such, Petitioner’s charges exposed him to a potential prison
sentence ranging from five to 25 years. (Respondent’s Memorandum of Law in Opposition to
Petition for Writ of Habeas Corpus (“Resp. Mem.”), Dkt. 11, at ECF 27 (citing N.Y. Penal Law
§ 70.02(3)(a)).)
III. State Court Proceedings
Petitioner’s defense counsel, Attorney James Pepe, was concerned about Petitioner’s
disruptive, confused, bizarre, and suicidal behavior and requested a psychiatric examination under
New York Criminal Procedure Law § 730 to ensure that Petitioner was competent to stand trial.4
(Order for 730 Psychiatric Examination, Dkt. 11-2, at ECF 3, 5.) On March 29, 2016, the Hon.

Miriam Cyrulnik of the New York State Supreme Court, Kings County, ordered Petitioner to
undergo a psychiatric examination. (Id. at ECF 2–3.) Steven Rubel, M.D., and Claude Patrice
Francois, Psy.D, completed Petitioner’s examination on April 25, 2016, and found him fit to stand
trial. (Psych. Exam. Report, Dkt. 11-2, at ECF 8–13.) Drs. Rubel and Francois saw no evidence
of psychosis or confusion and found that Petitioner adequately understood the proceedings and
could participate in his defense. (Id. at ECF 7, 10, 12–13.) Both concluded that if Petitioner’s
“symptoms of depression and anxiety should worsen, he may be at risk of becoming unfit.” (Id.
at ECF 10; see also id. at ECF 13.)
The People offered Petitioner a plea deal of Assault in the First Degree with a 10-year

period of incarceration followed by five years of post-release supervision. (Petitioner’s Plea
Transcript (“Plea Tr.”), Dkt. 11-2, at ECF 17:11–14.)
Petitioner’s plea hearing was held on May 17, 2016. (Id. at ECF 15.) Given the seriousness
of the charges and victim’s injuries, as well as Petitioner’s need for mental health treatment, Judge
Cyrulnik offered to permit Petitioner to plead to a seven-year period of incarceration followed by

4 Petitioner had a history of abuse, multiple foster care placements and special education,
and had been placed in psychiatric hospitals four times prior to being charged. (Psych. Exam.
Report, Dkt. 11-2, at ECF 8–9, 11–12.) Petitioner’s medical history includes diagnoses of bipolar
disorder, depression, anxiety, and epilepsy. (Id. at ECF 9.) At the time of the examination,
Petitioner had prescriptions for an antipsychotic, an antidepressant, pain medication for his back
and neck, and medication for epilepsy. (Id. at ECF 9, 12.) Petitioner’s examiners also noted that
at the time of their examination, Petitioner reported no longer feeling suicidal. (Id. at ECF 12.)
five years of post-release supervision. (Id. at ECF 17:15–25.) Petitioner accepted Judge
Cyrulnik’s offer, pleading guilty to Assault in the First Degree pursuant to N.Y. Penal Law
§ 120.10[3], i.e., “[u]nder circumstances evincing a depraved indifference to human life, . . .
recklessly engag[ing] in conduct which creates a grave risk of death to another person, and thereby
caus[ing] serious physical injury to another person.” (Id. at ECF 22:23–23:2, 26:21–27:3.)

During the plea hearing, Judge Cyrulnik asked whether Petitioner understood the plea and
had received enough time to speak with Attorney Pepe about it. (Id. at ECF 17:4–5, 21:12–18,
22:15–18, 22:23–23:10, 25:22–26:20 (explaining to Petitioner that he was waiving rights by
pleading guilty, including the right to a jury, to question witnesses, and to not testify against
himself).) Petitioner reported having enough time to speak with Attorney Pepe, who “explained
everything to [him].” (Id. at ECF 21:12–18, 22:19–21, 25:12–21.) Petitioner also confirmed that
no one had made promises concerning the case or threatened or forced him to plead guilty “at all,”
and that he was “[v]ery satisfied” with Attorney Pepe’s representation in his case. (Id. at ECF
25:12–21.) Judge Cyrulnik also asked Petitioner about his medications for anxiety, depression,

epilepsy, insomnia, and pain to ensure that Petitioner’s decision making was not compromised.
(Id. at ECF 19:23–20:11.) Petitioner said that his medications did not make him drowsy and that
his neck and back pain was “not affecting [him].” (Id. at ECF 20:23–21:11.)
Finally, Attorney Pepe informed the court that he had explained to Petitioner the Waiver
of Appeal that was part of the plea offer. (Id. at ECF 27:12–28:3 (“I have read it to him, he read
it, . . . I have explained the wording to him and [], by my questioning him, he does understand
what the waiver says, Your Honor, and he is executing that he does, in fact, understand it.”).)
Judge Cyrulnik also explained the waiver to Petitioner, stating that “[i]f there was a claim that the
sentence of seven years was not legal, not allowed by law, you could still appeal that. But if you
then claimed that the seven years was too high, too much[,] of course that you could not appeal if
I accept this waiver.” (Id. at ECF 28:4–29:2.) The judge then asked Petitioner if he understood,
to which Petitioner responded, “I understand.” (Id. at ECF 29:3–4.) Judge Cyrulnik accepted
Petitioner’s Waiver of Appeal, finding that Petitioner gave it “knowingly, intelligently and
voluntarily.” (Id. at ECF 30:13–16.)

Petitioner’s sentencing hearing was held on June 1, 2016. (Petitioner’s Sentencing
Transcript (“Sentencing Tr.”), Dkt. 11-2, at ECF 37.) The court sentenced Petitioner to the agreed-
upon term of seven years of incarceration, followed by five years of post-release supervision.5 (Id.
at ECF 42:21–23.)
IV. Procedural History
State Court Post-Trial Applications
Petitioner filed a notice of appeal on October 28, 2016. (Pet. Br. App. Div., Dkt. 11-3, at
ECF 5.) The Appellate Division for the Second Department granted Petitioner leave to appeal as
a poor person and assigned him appellate counsel. (Id.) In October 2017, Petitioner’s appellate
counsel, Attorney Yvonne Shivers, submitted an Anders brief to seek permission from the court to

withdraw from representing Petitioner because he had no nonfrivolous claims. (Id. at ECF 2, 12–
16 (explaining that Petitioner had no claims of merit on appeal because his guilty plea was
knowing, intelligent, and voluntarily given, and because his right to appeal was validly waived
with his guilty plea).)

5 The court also entered three orders of protection, each eight years in duration, after
Petitioner completed his term of incarceration and post-release supervision, subject to the Family
Court’s further determinations as to permitting Petitioner’s visitation with the subjects of the
orders. (Sentencing Tr., Dkt. 11-2, at ECF 42:6–12, 43:7–11.) The orders of protection are not at
issue in this habeas application.
On May 8, 2018, Petitioner filed a pro se supplemental brief in the Appellate Division,
arguing that he was denied effective assistance of counsel and that his plea was invalid because it
was not voluntary, knowing, and intelligent. (Pet. Suppl. Br. App. Div., Dkt. 11-3, at ECF 30, 33,
34, 40.) Petitioner alleged ineffective assistance of counsel on the bases that Attorney Pepe denied
him access to grand jury proceedings, failed to secure a better plea deal, failed to adequately

explain the charges to which Petitioner was pleading guilty and the meaning of the Waiver of
Appeal, and failed to explain the meaning of depraved indifference. (Id. at ECF 33, 36.) Petitioner
further claimed that his indictment was invalid because the People failed to properly serve him
notice to testify before the grand jury pursuant to New York Criminal Procedure Law
§ 190.50(5)(a). (Id. at ECF 37.)
The Appellate Division for the Second Department affirmed Petitioner’s conviction,
finding that he had no nonfrivolous claims, and the New York Court of Appeals declined to review.
See People v. Teaque, 94 N.Y.S.3d 875 (App. Div. 2019), appeal denied, 33 N.Y.3d 1074 (2019).
While his direct appeal was proceeding, Petitioner moved on July 19, 2018 to vacate his

conviction under New York Criminal Procedure Law § 440.10 (“440.10 Motion”), arguing that he
was not guilty of Assault in the First Degree (N.Y. Penal Law § 120.10[3]) because he did not
evince a depraved indifference to human life; did not recklessly engage in conduct creating a grave
risk of death; did not intend to cause physical injury to another; and that his intent was negated by
his diminished mental state due to his mental health diagnosis, treatment, and medications.6

6 Petitioner argued that Assault in the Third Degree under N.Y. Penal Law § 120.00 was
more appropriate in his case because he acted merely recklessly with criminal negligence. (Pet.
440.10 Mot., Dkt. 11-3, at ECF 76.) Petitioner further claimed there was no intent because he lost
consciousness during the event. (Id. at ECF 77 (“This was not a Planned or Intentional Act, But
a[n] Emotional Response to a Man under Psychiatric Care and, Anti-Psychotic and mood-
Stabilization medications, Defendant had an Emotional Breakdown.”).)
(Petitioner’s Motion to Vacate Judgment Under § 440.10 (“Pet. 440.10 Mot.”), Dkt. 11-3, at ECF
72–73, 76.) Petitioner also alleged ineffective assistance of counsel on similar grounds to his direct
appeal. (Id. at 78.)
The court denied Petitioner’s 440.10 Motion without a hearing on March 18, 2019. (State
Court Order on 440.10 Mot., Dkt. 11-3, at ECF 117–20.) On December 26, 2019, Petitioner filed

a motion requesting a certificate to appeal the order denying his 440.10 Motion. (Petitioner’s
Application to the Appellate Division for Leave to Appeal the Denial of his 440.10 Motion (“Pet.
12/26/19 Appl.”), Dkt. 11-4, at ECF 13.) That motion for leave to appeal was denied without a
hearing on February 10, 2020. (Petitioner’s Habeas Petition (“Pet.”) Dkt. 1, at ECF 4.)
Instant Habeas Petition
Petitioner filed the instant habeas petition on February 26, 2020. (See generally id.) He
asked the Court to appoint him counsel, which the Court denied on April 28, 2020, because it could
not find that Petitioner’s position was “of substance.” (4/28/2020 Docket Order.) The Court
denied two more of Petitioner’s requests for counsel because there had been no factual
development since the first denial. (5/12/2020, 5/21/2020 Docket Orders.) Respondent filed a

response in opposition to Petitioner’s application on June 29, 2020. (Dkt. 11.) Petitioner filed a
reply brief on September 23, 2020. (Petitioner’s Reply Brief (“Pet. Reply Br.”), Dkt. 15.)
LEGAL STANDARD
28 U.S.C. § 2254 provides that a habeas corpus application must be denied unless the state
court’s adjudication on the merits (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.S.C. § 2254(d). “A state court adjudicates a petitioner’s federal constitutional claims on the
merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.”
Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (citation and quotation marks omitted).
“Clearly established federal law refers to the holdings, as opposed to the dicta, of the
Supreme Court’s decisions as of the time of the relevant state-court decision.” Howard v. Walker,
406 F.3d 114, 122 (2d Cir. 2005) (citation and quotation marks omitted). A decision is “contrary

to” established federal law if it either “applies a rule that contradicts the governing law set forth
in” Supreme Court cases, or “confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.”
Penry v. Johnson, 532 U.S. 782, 792 (2001) (citation omitted).
A decision is an “unreasonable application of” clearly established Supreme Court
precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case.” Id. (citation omitted). The Antiterrorism and Effective Death
Penalty Act (“AEDPA”) establishes a deferential standard of review: “a federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001)
(quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). Courts must “assess whether the state
court’s decision was ‘so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’” Garner v.
Lee, 908 F.3d 845, 861 n.14 (2d Cir. 2018) (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)). Finally, “if the federal claim was not adjudicated on the merits, ‘AEDPA deference is not
required, and conclusions of law and mixed findings of fact and conclusions of law are reviewed
de novo.’” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459
F.3d 200, 203 (2d Cir. 2006)).
Federal habeas review is further limited when the challenged conviction is based on a guilty
plea. “[W]hen a criminal defendant enters a guilty plea, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of the

guilty plea.” Blackledge v. Perry, 417 U.S. 21, 29–30 (1974) (citation and quotation marks
omitted); accord United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996). Rather, “a person
complaining of such antecedent constitutional violations is limited in a federal habeas corpus
proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that
the advice received from counsel was not within the range of competence demanded of attorneys
in criminal cases.” Blackledge, 417 U.S. at 30 (internal citations and quotation marks omitted).
With respect to a claim of ineffective assistance of counsel, a guilty plea waives only such claims
“relating to events prior to the guilty plea that did not affect the voluntariness of [the petitioner’s]
plea.” Vasquez v. Parrott, 397 F. Supp.2d 452, 463 (S.D.N.Y. 2005) (collecting cases).

DISCUSSION
Petitioner makes four claims in his application: (1) that he was denied effective assistance
of counsel (Pet., Dkt. 1. at ECF 5); (2) that his psychiatric history and use of psychotropic
medications made him mentally unfit to voluntarily accept a plea and waive his right to appeal (id.
at ECF 6); (3) that his sentence as a first-felony offender is harsh and excessive (id. at ECF 8); and
(4) that he was under extreme mental anguish during his plea and sentencing proceedings such that
he was not mentally fit to understand the proceedings and accept the plea deal (id. at ECF 9). This
Court construes Petitioner’s second and fourth grounds for relief, respectively, as a claim that
Petitioner was not competent to plead guilty and waive his right to appeal and a claim that his plea
and Waiver of Appeal were not given knowingly, intelligently, and voluntarily.
Respondent argues that (1) Petitioner was competent and his guilty plea and Waiver of
Appeal were knowing, intelligent, and voluntary (Resp. Mem., Dkt. 11, at ECF 14); (2) Petitioner’s
claim for ineffective assistance of counsel is not cognizable, was waived, and is meritless (id. at
ECF 23); and (3) Petitioner’s claim that his sentence is harsh and excessive is not cognizable (id.
at ECF 29). For the reasons below, the Court denies Petitioner’s claims for habeas relief.

I. Petitioner’s Guilty Plea and Waiver of Appeal Are Enforceable
Petitioner argues that he was unable “to voluntarily accept a plea and waive [his] right to
appeal” due to extreme duress, mental anguish, and his history of mental health problems and
medications. (Pet., Dkt. 1, at ECF 6.) He contends that his extreme mental anguish, mental health
problems, and medications “cast serious doubts that [he] understood the criminal justice
procedures” and “the implications of his sentence.” (Id. at ECF 9.) Because the state court
adjudicated these claims on the merits as part of Petitioner’s pro se supplemental appeal and his
440 Motion—Teaque, 94 N.Y.S.3d 875; (State Court Order on 440.10 Mot., Dkt. 11-3, at ECF
114–20)—“[t]he question is . . . whether that determination was unreasonable,” Rosario v. Ercole,

601 F.3d 118, 123 (2d Cir. 2010) (quoting Knowles v. Mirzayance, 556 U.S. 111, 113 (2009)).
Petitioner Knowingly, Intelligently, and Voluntarily Pled Guilty and Waived
His Right to Appeal
“[U]nder the Due Process Clause of the United States Constitution, a trial court can only
accept a guilty plea which is ‘done voluntarily, knowingly, and intelligently, with sufficient
awareness of relevant circumstances and likely consequences.’” Velasquez v. Ercole, 878 F. Supp.
2d 387, 401 (E.D.N.Y. 2012) (quoting United States v. Adams, 448 F.3d 492, 497 (2d Cir.2006)).
“A plea is considered intelligent if the accused had the advice of counsel and understood the
consequences of his plea, even if only in a fairly rudimentary way, and it is considered voluntary
if it is not the product of actual or threatened physical harm, mental coercion overbearing the
defendant’s will, or the defendant’s sheer inability to weigh his options rationally.” Id. (citation
and quotation marks omitted). A valid guilty plea must “represent[] a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” Id. (quoting Hill v.
Lockhart, 474 U.S. 52, 56 (1985)). “[T]he ‘state court’s determination of the voluntariness of a
defendant’s guilty plea is a factual issue that is entitled to a presumption of correctness on habeas

review.’” Persaud v. Kirkpatrick, No. 15-CV-5645 (JMA), 2019 WL 2743588, at *6 (E.D.N.Y.
July 1, 2019) (quoting Murray v. McGinnis, No. 00-CV-3510, 2001 WL 26213, at *4 (S.D.N.Y.
Jan. 10, 2001)).
Similarly, “a waiver of the right to appeal is enforceable where the defendant’s waiver was
knowing and voluntary.” Adu v. United States, 374 F. Supp. 2d 311, 312 (E.D.N.Y. 2005) (citing,
inter alia, United States v. Morgan, 386 F.3d 376, 382 (2d Cir. 2004)). A waiver of appeal is
knowing and voluntary when the petitioner “understands the right to appeal and the potential
consequences of waiving that right.” Adu, 374 F. Supp. 2d at 312–13; see also Morgan, 386 F.3d
at 379 (holding that a waiver of appeal was enforceable because there was no realistic possibility

that the defendant misunderstood the waiver after the judge explained in the plea colloquy that the
defendant “[would] have no right to take an appeal from any aspect of this case”).
The state court reasonably determined that Petitioner gave his plea “voluntarily,
knowingly, and intelligently,” and “with sufficient awareness of relevant circumstances and likely
consequences.’” See Velasquez, 878 F. Supp. 2d at 401 (quoting Adams, 448 F.3d at 497).
Petitioner affirmed during the plea colloquy that nobody had made him any promises concerning
his plea, threatened him, or forced him to plead guilty. (Plea Tr., Dkt. 11-2, at ECF 25:12–21.)
His counsel and the state court advised him of the consequences of the plea deal. (Id. at ECF
22:15–23:10.) Petitioner said he understood that he was “giv[ing] up some very important rights”
by pleading guilty. (Id. at ECF 25:22–26:20.) And Petitioner affirmed his guilty plea after the
state court recited the elements of the crime. (Id. at ECF 26:21–27:8.)
Similarly, the state court reasonably determined that Petitioner waived his right to appeal
knowingly, intelligently, and voluntarily. See Adu, 374 F. Supp. 2d at 312 (citing, inter alia,
Morgan, 386 F.3d at 382). The court and Petitioner’s attorney advised him about the Waiver of

Appeal, he said he understood what he signed, and he told the judge that he had not been threatened
or forced to sign it. (Id. at ECF 27:16-30:16.)
In sum, the state court repeatedly confirmed Petitioner’s knowing, intelligent, and
voluntary waiver of his right to trial and appeal, and his desire to plead guilty. Petitioner therefore
has not shown that the state court contradicted federal law or applied federal law unreasonably by
finding that Petitioner’s guilty plea was knowing, intelligent, and voluntary.
Petitioner’s History of Mental Health Problems and Use of Psychotropic
Medications Do Not Undermine the Validity of His Plea
Petitioner argues that his history of mental health problems, learning disability, diagnosis
of attention deficit with hyperactivity disorder, and prescription psychotropic medications placed
him under extreme duress and mental anguish, such that he “was not mentally fit to voluntarily
accept a plea and waive [his] right to appeal,” and did not understand the criminal justice
procedures or the implications of his sentence. (Pet., Dkt. 1, at ECF 6, 9.) As previously noted,
the Court construes this argument as a claim that Petitioner was not competent to plead guilty or
waive his right to appeal.

Due Process requires that a criminal defendant be competent to stand trial and that a plea
of guilty be given “competently.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Johnson
v. Zerbst, 304 U.S. 458, 468 (1938)). To stand trial and to plead guilty, the defendant must have
“sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding” and “a rational as well as factual understanding of the proceedings against him.”
Id. (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).
“A state court’s finding of competency is an issue of fact which is entitled to a presumption
of correctness on habeas review, requiring clear and convincing evidence to overturn.” Rodriguez
v. Lamanna, No. 18-CV-7196 (ENV), 2020 WL 4926358, at *3 (E.D.N.Y. Aug. 19, 2020)

(citations omitted). Habeas relief is warranted only where the state court’s competency
determination was an objectively unreasonable application of federal law. See Smith v. Rock, 554
F. Supp. 2d 505, 511 (S.D.N.Y. 2008).
Petitioner contends that his circumstances warranted a competency examination before his
plea based on his extensive psychiatric history, his use of psychotropic medications, and statements
he made pre-trial that suggested that he was confused. But on April 25, 2016, just a few weeks
before pleading guilty on May 17, 2016, Petitioner did undergo a psychiatric examination that
found him fit to stand trial, and there is nothing in the record indicating that the state court needed
to order another examination immediately before Petitioner’s guilty plea. (See Psych. Exam.

Report, Dkt. 11-2, at ECF 8.) Drs. Rubel and Francois determined that Petitioner adequately
understood the proceedings against him and could participate in his defense. (Id. at ECF 7, 10,
12–13.) Although Drs. Rubel and Francois noted the “risk” that Petitioner would “becom[e] unfit”
if his “symptoms of depression and anxiety should worsen” (id. at ECF 10; see also id. at ECF 13),
there is no evidence that that ever occurred (much less in the three weeks between Petitioner’s
evaluation and his guilty plea), such that another competency evaluation was warranted. See, e.g.,
United States v. Del Carpio, 63 F. App’x 539, 540–41 (2d Cir. 2003) (summary order) (affirming
the district court’s decision not to conduct a competency hearing before the defendant pled guilty,
because the defendant had undergone a psychiatric examination months before, and the record did
not show any subsequent loss of competence).
Petitioner cites instances from his plea hearing7 and sentencing hearing8 that he contends
demonstrate he did not understand the proceedings, his charges, or the sentence to which he was
pleading guilty. (Id. at ECF 37–39.) But these instances do not provide clear and convincing

evidence that Petitioner had become incompetent. See Royster v. Perez, No. 08-CV-131 (ARR),
2009 WL 1505278, at *4 (E.D.N.Y. May 28, 2009) (“[T]he state court’s factual determination that
the petitioner’s plea was voluntary is presumed to be correct absent clear and convincing
[evidence] to the contrary.” (citing 28 U.S.C. § 2254(e)(1))); see also Stokes v. Powers, No. 04-
CV-758, 2008 WL 1991081, at *8 (N.D.N.Y. May 5, 2008) (“On habeas review, a state court’s
competency determination is entitled to a presumption of correctness.” (citations omitted)). The
state court asked Petitioner about his medications and mental state, and he responded that his
medications did not make him drowsy and that his neck and back pain was “not affecting [him].”
(Plea Tr., Dkt. 11-2, at ECF 20:23-21:11.) The state court thus reasonably found Petitioner

competent to plead guilty and waive his right to appeal, and that another competency hearing was
not required. See, e.g., United States v. Nichols, 56 F.3d 403, 414 (2d Cir. 1995) (“In deciding that
an evidentiary hearing is unnecessary, a court may rely not only on psychiatrists’ reports indicating

7 Petitioner argues that there was evidence of his confusion during the plea hearing because
he twice asked if he could make a statement, the court suggested he speak with Attorney Pepe first,
and after that occurred, Attorney Pepe stated that Petitioner did not wish to make a statement. (Pet.
Reply Br., Dkt. 15, at ECF 8; Plea Tr., Dkt. 11-2, at ECF 21:17–22:8, 34:3–13 (the second time
the court clarified that Petitioner said something that “relate[d] more to a presentence”).)

8 Petitioner argues that his request to the court “that in the future that [he] could get an
opportunity to be a good father to [his] son” indicates that he did not understand his charges or the
sentence to which he was pleading guilty during his sentencing hearing. (Pet. Reply Br., Dkt. 15,
at ECF 8; Sentencing Tr., Dkt. 11-2, at ECF 41:21–42:4.)
competency but also on its own observations of the defendant.” (citation omitted)); Thomas v. Att’y
Gen. of State of N.Y., 133 F.3d 907, at *3 n.2 (2d Cir. 1998) (Table) (noting, in rejecting a habeas
appeal based on incompetence to plead guilty, that there was “no serious indication that the
[petitioner’s] medication rendered him incompetent, nor even sufficient suggestions of doubt on
that score to require further examination with respect to this aspect of the case”).

Thus, Petitioner has not shown that the state court contradicted federal law or applied
federal law unreasonably by finding that Petitioner was competent to plead guilty and waive his
right to appeal.
II. The Court Rejects Petitioner’s Claim of Ineffective Assistance of Counsel
Petitioner argues that his trial counsel was ineffective because he allowed Petitioner to be
“left out of all critical areas of the proceedings,” including the grand jury proceedings, and did not
pursue other courses of action such as a Huntley hearing and a motion to dismiss the indictment.
(Pet., Dkt. 1, at ECF 5.) He also alleges that Attorney Pepe failed to properly investigate his case
and “use” his mental health history in his proceedings. (Pet. Reply Br., Dkt. 15, at ECF 5.) The

Court rejects Petitioner’s ineffective assistance of counsel claims both as waived and meritless.
Petitioner Waived his Claim of Ineffective Assistance of Counsel
“Generally, a petitioner who pleads guilty may not challenge his conviction on the basis
that his constitutional rights were violated during a pre-plea hearing.” Mapp v. Phillip, No. 04-
CV-1889 (JG), 2005 WL 1541044, at *5 (E.D.N.Y. June 29, 2005) (citing Tollett v. Henderson,
411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that
he is guilty of the offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty
plea.”)). “[C]laims of ineffective assistance of counsel that ‘involve counsel’s pre-plea actions
and do not affect the voluntariness of the plea itself,’ are waived by a petitioner’s subsequent
‘voluntary, knowing and intelligent guilty plea.’” Brown v. Lee, No. 14-CV-5354 (SJF), 2017 WL
4233034, at *5 (E.D.N.Y. Sept. 25, 2017) (quoting Beckary v. Chappius, No. 11-CV-850, 2012
WL 3045691, at *10 (W.D.N.Y. July 25, 2012)). Similarly, a knowing, intelligent, and voluntary
appeal waiver is enforceable on habeas review against claims of ineffective assistance of counsel
unless the appeal waiver is the product of counsel’s alleged ineffective assistance. See Yushuvayev

v. United States, 532 F. Supp. 2d 455, 468–70 (E.D.N.Y. 2008) (discussing United States v.
Oladimeji, 463 F.3d 152 (2d Cir. 2006)). By pleading guilty and waiving his right to appeal,
Petitioner thus waived his claims of ineffective assistance of counsel, which are based on pre-plea
events and actions.
Petitioner’s Claim of Ineffective Assistance of Counsel Is Meritless
To the extent that Petitioner has preserved any cognizable ineffective assistance claim, it
is meritless. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court set forth
a two-part test for evaluating claims of ineffective assistance of counsel. “To warrant relief, a
defendant must demonstrate both ‘that counsel’s performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’” Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (quoting

Strickland, 466 U.S. at 687) (footnote omitted). “Under Strickland’s first prong, counsel’s conduct
falls to the level of being deficient if ‘counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Eze v.
Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Strickland, 466 U.S. at 687). Under the
second prong, counsel’s conduct prejudiced the defense if “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 123 (quoting Strickland, 466 U.S. at 688, 694). “To prevail [on an ineffective assistance
claim], a defendant must establish both of Strickland’s prongs because, otherwise, ‘it could not be
said that the sentence or conviction resulted from a breakdown in the adversary process that
rendered the result of the process unreliable, and the sentence or conviction should stand.’” Id.
(quoting Bell v. Cone, 535 U.S. 685, 695 (2002)).
In assessing an ineffective assistance claim in a habeas petition, “[t]he question ‘is not
whether a federal court believes the state court’s determination’ under the Strickland standard ‘was
incorrect but whether that determination was unreasonable—a substantially higher threshold.’”

Knowles, 556 U.S. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And,
because the Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Id. (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). A court’s “scrutiny of counsel’s performance must be
‘highly deferential’ because [the court] must apply ‘a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’” Rivas v. Fischer, 780 F.3d
529, 547 (2d Cir. 2015) (quoting Strickland, 466 U.S. at 689). Finally, a habeas petitioner “must
‘affirmatively prove prejudice’ by showing that the purported errors ‘actually had an adverse effect
on the defense.’” Yannai v. United States, 346 F. Supp. 3d 336, 342 (E.D.N.Y. 2018) (quoting

Strickland, 466 U.S. at 693). “Speculative, conclusory, or self-serving allegations are
insufficient.” Id. (collecting cases).
There is no evidence in the record to support Petitioner’s claim of ineffective representation
by his trial counsel, i.e., that Attorney Pepe’s performance fell below Strickland’s “objective
standard of reasonableness.” See 466 U.S. at 687–88. Rather, the only evidence in the record
points to the opposite conclusion. At his plea hearing, Petitioner reported that he had enough time
to speak with Attorney Pepe, that his attorney had “explained everything,” and that Petitioner was
“[v]ery satisfied” with Attorney Pepe’s representation in his case. (Plea Tr., Dkt. 11-2, at ECF
21:12–18, 22:19–21, 25:12–21.) As the state court found, “[Petitioner]’s claim that his trial
counsel was ineffective, in that counsel failed to advise him of the terms and significance of his
plea and the Waiver of Appeal, is belied by the transcript of his plea.” (State Court Order on
440.10 Mot., Dkt. 11-3, at ECF 115–16.) This determination was reasonable. See 28 U.S.C.
§ 2254(d). Petitioner also fails to show how his involvement in the grand jury proceedings,
investigation by his counsel, or further use of his mental health history would have secured a more

favorable plea deal or otherwise changed the outcome of his case.
In short, Petitioner has not overcome the “substantial deference” owed to the state court
and “establish[ed] that the state court’s decision on ineffective assistance was contrary to, or an
unreasonable application of, Strickland” to warrant habeas relief. See Rosario, 601 F.3d at 123.
The Court therefore denies habeas relief based on Petitioner’s ineffective assistance of counsel
claim.9
III. Petitioner’s Excessive Sentence Claim is Not Cognizable
Petitioner’s argument that his sentence as a first-felony offender was harsh and excessive
is not cognizable on federal habeas review. (See Pet., Dkt. 1, at ECF 8.)

First, Petitioner waived his excessive sentence claim in his Waiver of Appeal. The state
court explained to Petitioner, and Petitioner affirmed that he understood, that he was “giving up
[his] right to appeal in exchange for the plea offer” and that he would not be able to “appeal to any
court at any time for any reason,” including “that the seven years was too high.” (Plea Tr., Dkt.
11-2, at ECF 28:8–29:4.) Attorney Pepe also advised him of the Waiver of Appeal, and Petitioner
affirmed that he understood. (Id. at ECF 29:14–30:7.) As discussed, Petitioner waived his right

9 Further, Petitioner’s claim of ineffective assistance of counsel related to his grand jury
proceeding is not cognizable because “there is no federally-cognizable ineffective assistance claim
concerning advice regarding the state grand jury process.” Payton v. Racette, No. 11-CV-1260
(PKC), 2015 WL 9581877, at *8 (E.D.N.Y. Dec. 30, 2015).
to appeal “voluntarily, knowingly, and intelligently,” and “with sufficient awareness of relevant
circumstances and likely consequences.’” Velasquez, 878 F. Supp. 2d at 401 (quoting Adams, 448
F.3d at 497).
Second, Petitioner’s sentence is within the statutory range. “It is well-settled in the Second
Circuit that ‘[n]o federal constitutional issue is presented where . . . the sentence is within the range

prescribed by state law.’” Carpenter v. Conway, No. 07-CV-3602 (JS), 2011 WL 795860, at *8
(E.D.N.Y. Feb. 25, 2011) (alterations in original) (quoting White v. Keane, 969 F.2d 1381, 1383
(2d Cir.1992)); see also Cardova v. Lavalley, 123 F. Supp. 3d 387, 398 (E.D.N.Y. 2015) (“[A]n
excessive sentence claim may not be raised as grounds for habeas corpus relief if the sentence is
within the range prescribed by state law.” (quoting Williams v. Lavalley, 12-CV-1141, 2014 WL
1572890, at *5 (N.D.N.Y. Apr. 17, 2014))).
Petitioner pled guilty to first-degree assault pursuant to N.Y. Penal Law § 120.10[3], a class
B felony for which the sentence “must be at least five years and must not exceed twenty-five
years.” N.Y. Penal Law §§ 70.02(1)(a), (3)(a). Petitioner was sentenced to seven years’

imprisonment. Because the sentence Petitioner received is within the range prescribed by state
law, he is not entitled to habeas relief on the ground that his sentence is excessive. Accordingly,
the Court denies, as non-cognizable, Petitioner’s excessive sentence claim.
CONCLUSION
For these reasons, Petitioner’s petition for a writ of habeas corpus is denied. A certificate
of appealability shall not issue because the Court does not find that reasonable jurists could debate
that the petition “should have been resolved in a different manner” or that it presents issues
“adequate to deserve encouragement to proceed further.” See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also 28 U.S.C. § 2253(c).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not
be taken in good faith, and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is
respectfully directed to enter judgment and close this case.
SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: June 2, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306266. Public record. Not legal advice.