# Ruiz-Solano v. Russell

> District Court, E.D. New York · April 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10309663

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 26, 2023
- **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/10309663

## How later opinions describe it (automated extraction)

- holding that New York procedural rules “plainly bar” petitioner from raising claims because he did not raise them when he “made the one request for leave to appeal to which he is entitled”
- holding that claim of actual innocence may only provide a gateway through procedural barriers to habeas relief if it is “credible” and “compelling”
- finding that strategic choices are “virtually unchallengeable”
- finding that petitioner must have presented federal constitutional claim to appropriate state court
- holding that “New York’s contemporaneous objection rule is an independent and adequate state law ground that is firmly established and regularly followed”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

SANTOS ELENA RUIZ-SOLANO,

Petitioner,
v. MEMORANDUM & ORDER
22-CV-02303 (HG)
EILEEN RUSSELL,

Respondent.

HECTOR GONZALEZ, United States District Judge:

Petitioner Santos Elena Ruiz-Solano, currently incarcerated at Bedford Hills Correctional
Facility, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.
Petitioner pled guilty to one count of murder in the second degree in Suffolk County Supreme
Court (the “County Court”), and was sentenced to a term of imprisonment of 15 years to life. Id.
at 2. Petitioner’s subsequent appeal to the New York Supreme Court, Appellate Division
(“Appellate Division”) was denied. Id. Petitioner’s request for leave to appeal to the New York
Court of Appeals was also denied. Id.
Petitioner challenges her judgment of conviction and asserts that the Appellate Division
violated her rights under the Fifth, Sixth, and Fourteenth Amendments by failing properly to
assess whether: (i) Petitioner was deprived of the effective assistance of counsel in connection
with her plea; (ii) Petitioner entered a plea that was knowing, voluntary, and intelligent; and (iii)
the delay in proceedings deprived Petitioner of her right to a speedy trial. Id. at 10–11. Petitioner
also claims that she is actually innocent, notwithstanding her guilty plea. Id. at 31. Respondent
Eileen Russell, Superintendent of the Bedford Hills Correctional Facility, opposes the petition.
For the reasons set forth below, the petition is denied.
BACKGROUND
On February 25, 2014, a grand jury indicted Petitioner on two related counts of murder in
the second degree. ECF No. 8-3 (“State Record” or “S.R.”) at 60. The indictment charged Ms.
Ruiz-Solano with causing the death of her newborn daughter. Id. at 60–61; see also ECF No. 8-1

(Plea Transcript) at 10–11.
On January 26, 2017, Petitioner pled guilty to one count of murder in the second degree.
ECF No. 8-1 at 1; S.R. at 10. On March 2, 2017, she was sentenced to the bargained-for term of
imprisonment of 15 years to life. S.R. at 10. On March 2, 2017, Petitioner’s counsel filed a notice
of appeal from the judgment of conviction. S.R. at 117.1 On appeal, Petitioner contended that her
plea of guilty was not knowing, voluntary, and intelligent. S.R. at 16. On November 25, 2020,
the Appellate Division affirmed the conviction. S.R. 16–17; see also People v. Ruiz-Solano, 132
N.Y.S.3d 828 (N.Y. App. Div. 2020). The Appellate Division held, among other things, that: (i)
Petitioner failed to preserve her claim because she did not move to vacate her plea or raise the
issue before the County Court; (ii) the “record as a whole affirmatively demonstrates that the

defendant entered her plea of guilty, knowingly, voluntarily, and intelligently”; (iii) nothing in the
plea allocution casts doubt on her guilt; and (iv) by pleading guilty Petitioner “forfeited appellate
review of her claims of ineffective counsel that did not directly involve the plea bargaining
process and sentence.” Id. Petitioner subsequently sought leave to appeal, but on January 28,

1 On December 18, 2019, Ms. Ruiz-Solano applied for resentencing pursuant to the
Domestic Violence Survivors Justice Act, N.Y. Crim. Proc. Law § 440.47(1). S.R. at 7. The act,
signed into law on May 14, 2019, “codifie[d] sentence reductions for domestic abuse survivors.”
S.R. at 117. On August 25, 2021, Petitioner submitted an application for resentencing, and on
September 9, 2021, the Court deemed her eligible to apply and assigned her counsel. S.R. at 122–
123. The Court is unaware of the status of that application.
2021, the New York Court of Appeals denied the application. S.R. at 117; see also People v.
Ruiz-Solano, 164 N.E.3d 954 (N.Y. 2021).
On April 22, 2022, Petitioner timely filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent submitted an opposition on August 31,

2022, ECF No. 6, and on September 12, 2022, Petitioner filed a reply. ECF No. 11.
STANDARD OF REVIEW
A. Deferential Standard of Review
Federal courts apply the standard of review set forth in 28 U.S.C. § 2254, as amended by
the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), to determine whether
a petitioner in state custody is entitled to a writ of habeas corpus. It provides in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—

(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 decision is “contrary to” clearly established federal law only if “the state
court reached a conclusion of law that directly contradicts a holding of the Supreme Court” or,
“when presented with facts that are materially indistinguishable from a relevant Supreme Court
precedent,” the state court arrived at a different result. Evans v. Fischer, 712 F.3d 125, 132 (2d
Cir. 2013).2 The writ may also be granted if a state court decision is an “unreasonable

2 Unless noted, case law quotations in this order accept all alterations and omit all internal
quotation marks, citations, and footnotes.
application” of clearly established federal law, meaning “the state court identifies the correct
governing legal principle from [Supreme Court] decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Nevertheless,
“a state-court factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010).
Apart from a state court’s adjudication of a claim that was an unreasonable or contrary
application of federal law, a district court may grant a writ of habeas corpus when the state court
decision “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)(2). The state court’s determination
of the facts is presumed to be correct, however, and the petitioner bears the burden of “rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
B. Exhaustion Requirement and Procedural Default
A district court shall only review a writ of habeas corpus if “the applicant has exhausted

the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The Second Circuit
has adopted a “two-stage inquiry for determining whether the requisite exhaustion has occurred.”
Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).
First, the petitioner must have fairly presented her “federal constitutional claim to an
appropriate state court.” Id. “A federal habeas petitioner may fairly present to the state courts the
constitutional nature of [her] claim, even without citing chapter and verse of the Constitution by
stating [her] constitutional claim clearly enough so that a court can easily discern its basis.”
Christopher v. Connolly, No. 06-cv-1575, 2013 WL 1290810, at *7 (E.D.N.Y. Mar. 28, 2013).
However, the state court claim must have raised “[the same] factual and . . . legal premises” as the
federally asserted claim, and have been presented in a way that was “likely to alert the [state] court
to the claim’s federal nature.” Daye, 696 F.2d at 191–92.
Second, after “having presented [her] federal constitutional claim to an appropriate state
court, and having been denied relief, the petitioner must have utilized all available mechanisms to

secure appellate review of the denial of that claim.” Klein, 667 F.2d at 282. “Although a
petitioner need not petition the United States Supreme Court by writ of certiorari, the state
prisoner must fairly present [her] federal constitutional claims to the highest state court having
jurisdiction over them.” O’Neal v. New York, 465 F. Supp. 3d 206, 214–15 (E.D.N.Y. 2020).
“Specifically, petitioner must have set forth in state court all of the essential factual allegations
asserted in [her] federal petition; if material factual allegations were omitted, the state court has
not had a fair opportunity to rule on the claim.” Id. at 215; see also Daye, 696 F.2d at 192 (“The
chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to
rule on a claim whose fundamental legal basis was substantially different from that asserted in
state court.”). If petitioner has done so, and relief is denied, petitioner “thereupon unsuccessfully

employs all the state appellate procedures available for review of such denial” and “satisf[ies] the
exhaustion requirement.” Klein, 667 F.2d at 282.
Finally, “[a] federal court may not review federal claims that were procedurally defaulted
in state court—that is, claims that the state court denied based on an adequate and independent
state procedural rule. This is an important corollary to the exhaustion requirement. Just as in
those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has
failed to meet the State’s procedural requirements for presenting [her] federal claims has deprived
the state courts of an opportunity to address the merits of those claims in the first instance.”
Davila v. Davis, 582 U.S. 521, 527–28 (2017).
DISCUSSION
In the instant proceeding, Petitioner is challenging her conviction by asserting
constitutional violations under the Fifth, Sixth, and Fourteenth Amendments in three claims: (i)
that she was deprived of the effective assistance of counsel in connection with her guilty plea

because counsel allegedly failed to discuss with her a partial defense to the charges, ECF No. 1 at
27–32; (ii) that her plea was not knowing, voluntary, and intelligent, id. at 19–25; and (iii) that the
three-year period between her arrest and sentencing violated her right to a speedy trial, id. at 25–
27. Petitioner also claims that she is actually innocent of the murder charge, notwithstanding her
guilty plea. Id. at 31. Respondent counters that the writ should be denied because “[n]one of the
grounds Petitioner now raises . . . present a basis for habeas relief.” ECF No. 6 at 3. For the
reasons specified in detail below, the Court finds that Petitioner’s claims are either unexhausted or
procedurally barred. Additionally, the Court concludes that Petitioner has not met her burden to
establish that the state court proceedings were contrary to “clearly established” federal law, or that
the state court unreasonably determined the facts in light of the evidence presented in the state

court proceedings. 28 U.S.C. § 2254(d).
I. Petitioner’s Ineffective Assistance of Counsel Claim is Unexhausted and
Meritless

Petitioner asserts that she was denied her Sixth Amendment right to effective counsel in
connection with her guilty plea because counsel allegedly failed to discuss with her the partial
defense of extreme emotional disturbance. ECF No. 1 at 40–45. The Appellate Division did not
rule on the merits of her claim, and instead found that Petitioner needed to file a “motion pursuant
to CPL § 440.10” to seek review at the state level. Ruiz-Solano, 132 N.Y.S.3d at 829 (“To the
extent that the defendant’s contention relates to alleged ineffective assistance that directly involves
the plea negotiation process and sentence, it is based on matters outside the record on appeal. The
appropriate vehicle for review of such a contention is a motion pursuant to CPL 440.10.”). Since
this Court has not been made aware of such a filing and neither party has indicated whether a New
York Criminal Procedure Law § 440.10 motion was filed, the Court concludes that Petitioner’s
ineffective assistance of counsel claim is unexhausted. See 28 U.S.C. § 2254(b)(1)(A); Klein, 667

F.2d at 282 (finding that petitioner must have presented federal constitutional claim to appropriate
state court).
Nevertheless, “an application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(2). This Court, therefore, also finds that Petitioner’s ineffective
assistance of counsel claim lacks merit. To succeed on an ineffective assistance of counsel claim,
a petitioner must show “that counsel’s performance was deficient,” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). When
assessing the performance of counsel, courts should be “highly deferential” and “recognize that
counsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 689–90. “Strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. The Strickland test for “evaluating ineffective assistance of counsel
claims applies in the context of guilty pleas.” United States v. Coffin, 76 F.3d 494, 498 (2d Cir.
1996).
Extreme emotional disturbance (“EED”) is a partial affirmative defense to murder in the
second degree in New York. See N.Y. Penal Law § 125.25(1)(a). To support an EED defense, a
defendant must “demonstrate the existence of mitigating factors which indicate that, although
[s]he is not free from responsibility for h[er] crime, [s]he ought to be punished less severely by
reducing the crime upon conviction to manslaughter in the first degree.” People v. Casassa, 404
N.E.2d 1310, 1314 (N.Y. 1980). Petitioner asserts that “counsel inexplicably failed to explain to
Petitioner or present to the court” that possible defense. ECF No. 1 at 44. However, Petitioner’s
claim is unsubstantiated, and she has failed to meet her burden to show that counsel provided

“deficient” representation in connection with her plea. The available evidence suggests that
counsel made a “strategic choice[] . . . after thorough investigation of law and facts relevant to
plausible options,” and decided an EED defense would not be advisable. Strickland, 466 U.S. at
690 (finding that strategic choices are “virtually unchallengeable”). Petitioner’s counsel employed
a forensic psychiatrist to investigate and determine the strength of an emotional disturbance
defense. ECF No. 6 at 24; ECF No. 7-2 (Ex Parte Motion of the Defendant for an Order to
Employ a Qualified Psychologist dated May 2, 2017); ECF No. 9-2 (Forensic-Psychiatric
Evaluation discussing EED and potential applicability to Petitioner’s case). Despite several
unfavorable conclusions in the expert’s evaluation, including that Petitioner was of “questionable
credibility,” Petitioner’s counsel effectively negotiated with the prosecution and obtained an offer

of the minimum permitted sentence for a second-degree murder charge. ECF No. 6 at 25.
Thereafter, Petitioner pled guilty to one of the two charged counts of murder in the second degree,
which carries an indeterminate sentence of imprisonment ranging from a minimum of 15 to 40
years to life. Petitioner ultimately received a bargained-for sentence of 15 years to life. Id.
Petitioner has failed to come forward with any evidence indicating that counsel “misunderstood
the nature of the [EED] defense or failed to consider the evidence necessary to establish the
defense.” Girodano v. Brann, No. 21-cv-7623, 2022 WL 2316436, at *5 (S.D.N.Y. June 28,
2022). Accordingly, since there is nothing in the record that would permit the Court to conclude
that counsel’s conduct in connection with the guilty plea was objectively unreasonable, this claim
is alternatively denied on the merits.
II. Petitioner’s Contention That Her Plea Was Not A Knowing, Voluntary,
Intelligent Plea Is Procedurally Barred

Petitioner asserts that the Appellate Division’s adjudication of her claim that the guilty plea
was not knowing, voluntary, and intelligent violated the Fifth, Sixth and Fourteenth Amendments.
ECF No. 1 at 32–38. The Court finds that Petitioner’s claim is barred pursuant to an independent
and adequate state procedural rule because she defaulted by failing to preserve the issue for state
appellate review, and she has not demonstrated any cause for the default.
The law is clear that where “a state prisoner has defaulted [her] federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 724 (1991).
“Pursuant to N.Y. Crim. Proc. Law § 470.05, [i]n order to preserve a challenge to the factual
sufficiency of a plea allocation there must have been a motion to withdraw the plea . . . or a
motion to vacate the judgment of conviction.” Loucks v. Capra, No. 16-cv-3115, 2019 WL
4921722, at *13 (S.D.N.Y. Mar. 28, 2019).
Here, the Appellate Division stated that Petitioner failed to preserve this issue for appellate

review because “she did not move to vacate her plea or otherwise raise the issue before the County
Court.” Ruiz-Solano, 132 N.Y.S.3d at 828. Petitioner’s failure to preserve arguments concerning
the factual sufficiency of her plea is fatal to her claim. See Palaez v. Capra, No. 14-cv-5471, 2023
WL 1820995, at *4 (E.D.N.Y. Feb. 8, 2023) (“N.Y. Crim. Proc. Law § 470.05(2) requires that a
question of law is presented for appellate review only when a party registers disagreement with a
lower court’s ruling at the time or at any subsequent time when the court had an opportunity of
effectively changing the same.”); see also People v. Lopez, 525 N.E.2d 5, 6 (N.Y. 1988) (“In order
for there to be a question of law reviewable by this court, the trial court generally must have been
given an opportunity to correct any error in the proceedings below at a time when the issue can be

dealt with most effectively.”). This preservation requirement has long been recognized by federal
courts as an adequate and independent state procedural rule. See Liggan v. Senkowski, 652 F.
App’x 41, 43 (2d Cir. 2016) (holding that “New York’s contemporaneous objection rule is an
independent and adequate state law ground that is firmly established and regularly followed”);
Wilens v. Superintendent of Clinton Corr. Facility, No. 11-cv-1938, 2014 WL 28995, at *7
(E.D.N.Y. Dec. 31, 2013).
After a finding of default based on an adequate and independent state law ground, the
burden shifts to Petitioner to prove that there was “cause for the default and actual prejudice as a
result of the alleged violation of federal law, or to demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 724. To establish cause

for the default, Petitioner must “show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Shinn v. Ramirez, 142 S. Ct. 1718,
1733 (2022). To show prejudice, a petitioner “must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Garner v. Lee, 908 F.3d 845, 861–62 (2d Cir. 2018).
Petitioner asserts that ineffective assistance of counsel is the cause for her default. ECF
No. 11-1 at 5. While “attorney ignorance or inadvertence cannot excuse procedural default,” a
claim of ineffective assistance of counsel that rises to a constitutional error may be an external
factor excusing default. Shinn, 142 S. Ct. at 1733. As discussed previously, however, see supra
Section I, defense counsel was not unconstitutionally ineffective. Accordingly, no cause or
prejudice can be shown.3
“[F]ederal habeas review is foreclosed when a state court has expressly relied on a

procedural default as an independent and adequate state ground, even where the state court has
also ruled in the alternative on the merits of the federal claim.” Velasquez v. Leonardo, 898 F.2d
7, 9 (2d Cir. 1990). Here, although the Appellate Division reached the merits of Petitioner’s
claim, see Ruiz-Solano, 132 N.Y.S.3d at 828–29 (stating that “there was nothing in [Petitioner’s]
plea allocution that would cast doubt on her guilt or otherwise call into question the voluntariness
of her plea”), it expressly relied on a procedural default as an independent and adequate state
ground. Accordingly, federal habeas review of Petitioner’s claim that she was denied her
constitutional right to due process because her plea was not knowing, voluntary, and intelligent is
foreclosed.
III. Petitioner’s Speedy Trial Claim is Unexhausted and Procedurally Barred

Petitioner’s claim that she was denied the constitutional right to a speedy trial was not
presented to the Appellate Division and is therefore unexhausted. See 28 U.S.C. § 2254(b)(1)(A)
(“[A] writ of habeas corpus . . . shall not be granted unless . . . the applicant has exhausted the
remedies available in the courts of the State.”); see also Klein, 667 F.2d at 282 (holding that

3 Petitioner argues that because she was a non-citizen “who did not speak English inured to
her prejudice and detriment.” ECF No. 1 at 40. The Court finds this argument unpersuasive in
light of the fact that Spanish-language interpreters were present at her plea hearing, sentencing,
and during her presentence report interview. ECF Nos. 8-1 at 1; 8-2 at 1; 9-1 at 5.
petitioner must have fairly presented the “federal constitutional claim to an appropriate state
court”); ECF No. 8-3 at 39–56 (Petitioner Supplemental Brief submitted to Appellate Division).
However, Petitioner’s failure to raise a speedy trial claim during her first appeal results in a
default because New York law allows a defendant only one direct appeal. See Grey v. Hoke, 933

F.2d 117, 120 (2d Cir. 1991) (holding that New York procedural rules “plainly bar” petitioner
from raising claims because he did not raise them when he “made the one request for leave to
appeal to which he is entitled”); N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim
could have been raised on direct review). Petitioner already made a direct appeal, which was
decided on November 25, 2020. ECF No. 1 at 2. “If a state prisoner has failed to exhaust state
court remedies with respect to a claim, but no longer has a procedure to raise the claim in state
court, the federal courts deem the claims exhausted, but procedurally defaulted.” Smith v.
Johnson, No. 21-cv-316, 2022 WL 4586305, at *7 (E.D.N.Y. Sept. 29, 2022). Accordingly, since
the speedy trial claim is procedurally defaulted, this Court is prevented from reaching the merits of
the claim. Coleman, 501 U.S. at 724.

Petitioner again argues that default should be excused for cause and actual prejudice. ECF
No. 11-1 at 8. As discussed previously, see supra Sections I and II.A, Petitioner’s unmeritorious
ineffective assistance of counsel claim cannot be used as “cause” for noncompliance with
procedural hurdles.
IV. Petitioner’s Claim of Actual Innocence Does Not Excuse Her Procedural
Defaults

Because Petitioner has been unable to establish the “cause and prejudice sufficient to
excuse” her procedural defaults, see supra Sections II and III (explaining how Petitioner defaulted
on her plea and speedy trial claims by failing to preserve the arguments for appeal), Petitioner asks
this Court to excuse her procedural defaults in light of her assertion of actual innocence. ECF No.
1 at 31. Petitioner may obtain review of procedurally barred claims that do not meet the “cause
and actual prejudice” standard “only if [s]he falls within the narrow class of cases . . . implicating
a fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 314–315 (1995); see also
Coleman, 501 U.S. at 724 (holding that when a state prisoner has procedurally defaulted, federal

habeas review is barred “unless the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice”).
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass
whether the impediment is a procedural bar.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
In other words, Petitioner’s procedural defaults may be overcome if she proves actual innocence
because a failure to consider a tenable actual innocence claim is a “miscarriage of justice.” Id.
However, “tenable actual-innocence gateway pleas are rare: [a] petitioner does not meet the
threshold requirement unless [s]he persuades the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find [her] guilty beyond a reasonable doubt.” Id.;

see also Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (holding that claim of actual innocence
may only provide a gateway through procedural barriers to habeas relief if it is “credible” and
“compelling”). “For the claim to be credible, it must be supported by new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Rivas, 687 F.3d at 541. “For the claim to be
compelling, the petitioner must demonstrate that more likely than not, in light of the new
evidence, no reasonable juror would find [her] guilty beyond a reasonable doubt—or to remove
the double negative, that more likely than not any reasonable juror would have reasonable doubt.”
Id. While the actual innocence test “does not require absolute certainty about the petitioner’s guilt
or innocence,” it is “demanding and permits review only in the extraordinary case.” Id. at 542.
This is not such an extraordinary case. Petitioner’s argument relies on her professions of
innocence, and the supposed lack of physical evidence. She argues that “at her first opportunity to

do so,” during her presentence interview, she “pronounced her innocence of the charges.” ECF
No. 1 at 37. Petitioner states that she was completely surprised when “the trial court informed her
that she would not be able to challenge her conviction or sentence in any manner,” but that counsel
took her off the record and obtained her waiver. Id. Petitioner further argues that the state never
established the exact manner of death of her child at the plea hearing and that it was only raised at
her sentencing hearing, after her expression of innocence during the presentence interview. Id. at
37–38.
As established previously, actual innocence may only provide a gateway through
procedural barriers if the claim is “credible” and “compelling,” and Petitioner fails to meet both
criteria. Rivas, 687 F.3d at 541. Petitioner does not establish a credible claim because the

evidence presented is neither “new” nor “reliable.” Courts within the Circuit have held that facts
available to a petitioner at the time of a guilty plea do not qualify as new evidence. Yong Suk
Howang v. United States, No. 17-cv-6254, 2019 WL 1988490, at *10 (S.D.N.Y. Apr. 19, 2019),
report and recommendation adopted, 2019 WL 1988490 (S.D.N.Y. May 6, 2019). Petitioner’s
current assertion of innocence contradicts the statement she made, under oath, at the time of her
plea before the County Court. See ECF No. 8-1 (Plea Transcript) at 10–11 (“MS. NEWCOMBE:
In the early morning hours of February 16, 2014, did you give birth within that house? THE
DEFENDANT: Yes. . . . MS. NEWCOMBE: And following the birth of that baby girl, did you
cause her death by inflicting blunt force trauma to her head? THE DEFENDANT: Yes. MS.
NEWCOMBE: And do you admit that, in fact, caused her death? THE DEFENDANT: Yes.”);
see also Pluff v. Superintendent, No. 18-cv-914, 2021 WL 4463557, at *4 (N.D.N.Y. Sept. 8,
2021) (finding that “statements made during a plea allocution carry a strong presumption of
verity”), report and recommendation adopted, 2021 WL 4458823 (N.D.N.Y. Sept. 29, 2021).

Moreover, Petitioner’s assertion of innocence was also explored and considered by the County
Court at the time of Petitioner’s sentencing. The County Court noted that Petitioner told probation
during her presentence interview that “she did not cause the fractures to the baby and was not
thinking when she put the baby in the bag.” ECF No. 8-2 at 3. The County Court inquired
further, directly addressed Petitioner, and asked her whether she committed the crime she was
charged with, and Petitioner again admitted guilt:
THE COURT: . . . Ms. Ruiz Solano, when you took a plea in this case, you
indicated to the court, to the district attorney and to your own attorney, that you
killed this baby by, by fracturing the baby's skull, by hitting the baby's skull on an
object. The side of the toilet, some type of hard object. Is that my understanding
of the medical examiner's examination of the baby?
MS. NEWCOMBE: Yes, your Honor.
THE COURT: Did you do that, or not?
THE DEFENDANT: Yes.
THE COURT: So you caused the baby's death by hitting the baby's head on a hard
object when the baby was born, is that what you're telling me?
THE DEFENDANT: Yes.
THE COURT: Yes?
THE DEFENDANT: Yes.
. . . .
THE COURT: Does she wish to say anything before I sentence her?
THE DEFENDANT: I just want to apologize. Because I haven't said anything. I
haven't talked to anybody, but I apologize. That's it.

Id. at 5, 7. The record reflects that Petitioner’s assertion of innocence is not new evidence
or reliable evidence because it was available to Petitioner at the time of her guilty plea and
at her sentencing. Yong Suk Howang, 2019 WL 1988490, at *10 (S.D.N.Y. Apr. 19,
2019). With no new or reliable evidence, Petitioner cannot satisfy the “credible” prong,
and her actual innocence claim must fail. Rivas, 687 F.3d at 541.4
Although it does not need to reach this issue, the Court also finds that Petitioner’s actual
innocence claim is not “compelling.” In order for Petitioner’s claim to be compelling, she must

prove “no reasonable juror would find [her] guilty beyond a reasonable doubt.” Rivas, 687 F.3d at
541. Petitioner admitted her culpability at her plea and sentencing hearings. ECF No. 8-1 at 11;
ECF No. 8-2 at 5. While true that Petitioner asserted her innocence to probation at her
presentence interview, on the record before it, the Court finds that Petitioner has failed to
demonstrate that no reasonable juror would find her guilty beyond a reasonable doubt. At the time
of her arrest, Petitioner told detectives that she gave birth on the toilet around 3:00AM, fainted,
and when she woke up, the baby was face down in the toilet. She proceeded to place the baby in a
towel and bag. ECF No. 7-1 at 5–6. She further admitted that she called her husband for help
around 7:30AM, over four hours later. When Petitioner’s husband arrived, she asked him to grab
“two plastic bags,” but did not tell him that the baby was inside one of them. ECF No. 7-1 at 11.

She was driven to the hospital and told her husband the plastic bags were “garbage.” Id.
Petitioner later admitted to nurses that the baby was in one of the bags. Id. The sealed

4 Petitioner argues that because the manner of death was not established at her plea
allocution, the County Court’s introduction of a possible manner of death—the “toilet seat theory”
serves as “new” evidence. ECF No. 1 at 37–38; see also ECF No. 8-2 at 5 (“Ms. Ruiz Solano,
when you took a plea in this case, you indicated to the court, to the district attorney and to your
own attorney, that you killed this baby by, by fracturing the baby's skull, by hitting the baby's skull
on an object. The side of the toilet, some type of hard object. Is that my understanding of the
medical examiner's examination of the baby?”). The Court disagrees. The information from the
medical examiner regarding the manner of death “was discoverable and available at the time
Petitioner accepted the plea deal. Had Petitioner chosen to go to trial, [she] could have used it in
[her] defense. What therefore prevented Petitioner from introducing this evidence to a jury was
Petitioner’s choice to accept [her] plea deal. . . .” Germain v. Racette, No. 13-cv-1530, 2015 WL
7573225, at *5 (N.D.N.Y. Nov. 25, 2015). This evidence is therefore not new, and, in any event,
does not “undermine[] the evidence supporting” Petitioner’s guilt including her own admissions of
guilt at her plea and sentencing hearings. Rivas, 687 F.3d at 543.
presentence report and psychiatric evaluation submitted by Respondent with its opposition, ECF
Nos. 9-1, 9-2, also reveal several material inconsistencies in Petitioner’s testimony regarding
knowledge of her pregnancy, the baby’s birth, and the manner of death. In light of these
inconsistencies and the evidence presented, the Court finds that Petitioner has failed to

demonstrate that no reasonable juror would find her guilty beyond a reasonable doubt.
Accordingly, Petitioner’s procedural defaults are not overcome by her claim of actual innocence.
CONCLUSION
For the foregoing reasons, the Court dismisses the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 with prejudice.
The Court finds that Petitioner failed to make a substantial showing of the denial of a
constitutional right. Therefore, a certificate of appealability (“COA”) shall not issue. See 28
U.S.C. § 2253(c)(2). Any additional request for a COA must be addressed to the Court of
Appeals. See Fed. R. App. P. 22(b). The Court further certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith

and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444–45 (1962).
The Clerk of the Court shall enter judgment accordingly and close this case.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge

Dated: Brooklyn, New York
April 26, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309663. Public record. Not legal advice.