Walker v. Royce

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL WALKER,

Petitioner,

MEMORANDUM & ORDER

- against - 20-CV-2386 (PKC)

SUPT. MARK ROYCE, Green Haven

Correctional Facility,

Respondent.

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PAMELA K. CHEN, United States District Judge:

Petitioner Michael Walker (“Petitioner”), proceeding pro se, petitions this Court for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Petition, Dkt. 1 (“Pet.”).) For the

reasons set forth below, the petition is denied.

BACKGROUND

I. Initial Events

On February 21, 2023, Petitioner was indicted in the Supreme Court of New York,

Richmond County, for various offenses arising out of a February 2, 2013 encounter with the police

in which Petitioner was shot. (See Dkt. 35-1 at ECF 1–3.1) The indictment contained six counts:

• Counts One and Two: Two counts of Criminal Possession of a Weapon in the Second

Degree, one under New York Penal Law § 265.03-(1)(b) and one under New York

Penal Law § 265.03-3, each a class C violent felony;

• Count Three: One count of Criminal Possession of a Weapon in the Third Degree under

New York Penal Law § 265.02-1, a class C non-violent felony;2

1 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

2 Subsections 265.02-5, 6, 7, 8, 9, and 10 are violent offenses, while offenses under the

remaining subsections of the statute are nonviolent. N.Y. Penal Law § 70.02(1)(c).

• Count Four: One count of Criminal Possession of a Weapon in the Fourth Degree under

New York Penal Law § 265.01-1, a class A misdemeanor; and

• Counts Five and Six: Two counts of Menacing a Police Officer under New York Penal

Law § 120.18, a class D violent felony.

(See id.); see also N.Y. Penal Law § 70.02 (defining violent felonies).

After arraignment, Petitioner’s trial counsel filed an omnibus pretrial motion that resulted

in the court inspecting the grand jury minutes, dismissing Count Five of the indictment, and

ordering various hearings to determine if any evidence should be suppressed. (See Dkt. 35-3 at

ECF 1; Dkt. 35-5 at ECF 1–2.) In connection with its evidentiary rulings, the court scheduled a

hearing pursuant to People v. Hinton, 31 N.Y.2d 71 (N.Y. 1972), to determine whether the

courtroom should be closed to the public during the trial testimony of a confidential informant.

(See Dkt. 35-7 at 74:11–76:15; Dkt. 35-9 (“Plea Tr.”) at 2:13–15.)

II. Petitioner’s Guilty Plea

Prior to the scheduled Hinton hearing, the Richmond County District Attorney’s Office

(“DA’s Office”) extended a plea offer to Petitioner pursuant to which he would plead guilty to

Attempted Criminal Possession of a Weapon in the Second Degree, a class D violent felony—

instead of the indictment’s top two counts of Criminal Possession of a Weapon in the Second

Degree, a class C violent felony—in exchange for a recommended sentence of 12 years to life in

prison. (Plea Tr. at 2:15–3:1.) The DA’s Office also informed Petitioner that if he insisted on

going through with the Hinton hearing—which would require the confidential informant to testify

in person—the DA’s Office would withdraw the offer. (Id.)

On July 21, 2014, the parties appeared for the Hinton hearing. At the outset of the hearing,

however, Petitioner’s attorney informed the court that Petitioner was proceeding against his

advice. (Id. at 3:2–17.) The court, in turn, sought to confirm with Petitioner that he was fully

aware of the consequences of going forward with the Hinton hearing. (Id. at 3:24–5:4.) The court

reminded Petitioner that the prosecution would withdraw its plea offer if the Hinton hearing

proceeded. (Id. at 4:10–24.) The court also informed Petitioner that, given his prior record of two

violent felony convictions, if he did not enter the proposed guilty plea and was convicted at trial

of the indicted offense of second-degree criminal possession of a weapon, he would face a

mandatory indeterminate sentence of 16 years to life at the low end and 25 to life at the high end.3

(See id. at 4:14–19.) The court did not specify that its description of Petitioner’s sentencing

exposure referred solely to the top charge of Criminal Possession of a Weapon in the Second

Degree and that if Petitioner proceeded to trial, he might only be convicted of a non-violent

offense—such as Criminal Possession of a Weapon in the Third Degree—which would not trigger

a mandatory indeterminate sentence. (See id. at 4:3–5:4.)

The court continued:

I am not saying you have to plead guilty. Of course you don’t. That’s up to you.

But I just want to make sure you understand the range of sentencing that is possible

here, and I am not threatening you at all. If you were convicted after trial I don’t

know what I would give you. I can tell you that I couldn’t give you less than 16 to

life. I couldn’t give you anymore [sic] than 25 to life if you were convicted of the

top count possession of a weapon in the second degree. On the other hand, the DA

is offering twelve to life.

(Id. at 6:15–25.) Petitioner requested additional time to speak with his attorney, and the court

adjourned for a break. (Id. at 7:3–4.)

3 Under New York law, Petitioner’s conviction of a third violent felony would qualify him

as a “persistent violent felony offender.” When “a person is a persistent violent felony offender,”

the court “must impose an indeterminate sentence of imprisonment, the maximum term of which

shall be life imprisonment.” N.Y. Penal Law § 70.08(2). “The minimum period of imprisonment

under such sentence,” for a class C felony such as Petitioner’s charge of Criminal Possession of a

Weapon in the Second Degree, “must be at least sixteen years and must not exceed twenty-five

years,” and for a class D felony such as the plea offer of Attempted Criminal Possession of a

Weapon in the Second Degree, “must be at least twelve years and must not exceed twenty-five

years.” N.Y. Penal Law §§ 70.08(2), (3)(b)–(c).

When the parties returned, Petitioner blurted out, “I will take the twelve to life.” (Id. at

7:23–8:2.) After the court responded, “I beg your pardon?” Petitioner repeated, “I will take the

twelve to life.” (Id.) But upon the court’s probing whether Petitioner had “had enough time to

think about it,” Petitioner expressed confusion about the plea’s life component. (Id. at 8:16–14.)

Petitioner stated:

I don’t understand how somebody who wasn’t armed with a weapon, I didn’t have

the weapon at the time, at any time that they say I had a weapon. I got shot in the

back. An unarmed man gets shot in the back, partially paralyzed and I have to cop

out to twelve to life. I don’t understand. I can’t take fifteen to life. Why does it

have life when I got shot in the back?

(Id.)

The court responded by telling Petitioner that there was no scenario where he could receive

a determinate sentence:

I have discussed it with the lawyers, the prosecutors and your lawyer, Mr. Fonte,

and I wish there was another medium ground where I could take a determinate

sentence. But you have two prior violent felony convictions as I understand it and

the law requires if you are convicted of another violent felony conviction the

sentence must have a lifetime component. They’re offering you the minimum on

one down, a D felony, twelve to life. But I can’t change that. The legislature passed

the statute which mandates a sentence within that range.

(Id. at 8:15–9:1.)

When Petitioner expressed that the life component was “mind-boggling,” the court

repeated, “I have been round and round with this with the lawyers and there is just no other

sentence. It’s because of your two prior felony convictions. That’s really what kind of locks this

all in.” (Id. at 9:14–23.) After Petitioner responded, “I never had a gun before. I never got caught

with nothing or anything like that with my past,” the court informed Petitioner that it could not

take his plea if he did not have a gun in this case, and that it could take his plea only if Petitioner

were willing to allocute that he did. (Id. at 9:24–10:10.)

Following a discussion off the record at the bench, and discussions between Petitioner and

his lawyer, Petitioner proceeded with his guilty plea. (Id. at 9:18–19, 13:10–11, 14:3–5, 15:4–5.)

The court advised Petitioner that he was pleading guilty to a term with “a minimum period of

twelve years, a maximum period of life” and that that was the sentence the court “would impose.”

(Id. at 14:3–14:24.) The court asked Petitioner whether he had “had enough time to think about

this and to decide this is what [he] want[s] to do,” whether he had “had enough time to discuss it

with [his] lawyer,” whether he was “satisfied with [his] lawyer’s representation of [him],” whether

he felt he was “mentally, physically and emotionally able to plead guilty at this time,” whether he

was “pleading guilty voluntarily and of [his] own free will,” and whether he was “pleading guilty

. . . because [he] [was] in fact guilty,” to all of which Petitioner responded, “Yes.” (Id. at 15:7–

16:13.) Although Petitioner stated that he did not point a gun at law enforcement and that he was

shot while unarmed, the court explained the plea charge of Attempted Criminal Possession of a

Weapon in the Second Degree, and Petitioner admitted to conduct satisfying the offense, i.e., that

on or about February 2, 2013, he attempted to possess a loaded firearm outside of his home or

place of business. (See id. at 16:14–18:16 (referencing Count Two, under N.Y. Penal Law §

265.03-(3)).4) Petitioner also stated that he understood that he was giving up his rights to trial and

4 “A person is guilty of criminal possession of a weapon in the second degree when: . . .

such person possesses any loaded firearm. Such possession shall not, except as provided in

subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision

if such possession takes place in such person’s home or place of business.” N.Y. Penal Law §

265.03-(3). “A person is guilty of an attempt to commit a crime when, with intent to commit a

crime, he engages in conduct which tends to effect the commission of such crime.” N.Y. Penal

Law § 110.00. Although Petitioner does not challenge the sufficiency of his plea allocution, the

Court notes that “[a] claim that the factual allocution of a guilty plea was insufficient ‘is not

cognizable on federal habeas review.’” Devault v. Griffin, No. 16-CV-7281 (VB) (LMS), 2020

WL 5217149, at *8 (S.D.N.Y. Jan. 22, 2020) (quoting Payton v. Racette, No. 11-CV-1260 (PKC),

2015 WL 9581877, at *5 (E.D.N.Y. Dec. 30, 2015)), R. & R. adopted, 2020 WL 5209731

(S.D.N.Y. Aug. 31, 2020).

appeal, but he still wanted to plead guilty; that he did not have any questions for the court; and that

he understood all of the court’s questions. (Id. at 18:17–21:9, 22:3–8.) Finally, when the court

asked Petitioner if he wanted to plead guilty, he said yes. (Id. at 22:17–23:1.) The trial court

accepted Petitioner’s guilty plea to second-degree attempted criminal possession of a weapon.

(See id.)

III. Motion to Withdraw Guilty Plea, Direct Appeal, and State Collateral Attacks

Prior to sentencing, Petitioner moved to withdraw his guilty plea, arguing that it was not

knowing, voluntary, and intelligent. (See Dkt. 35-11 (“Plea Withdrawal Mot.”) at ECF 3–5.)

Petitioner argued that the court’s explanation of his sentencing exposure led him to believe “that

all available charges in the indictment were violent felonies.” (See id. at ECF 4.) Petitioner also

moved for the judge’s recusal. (Id. at ECF 1–2.)

The court denied both motions, holding that “there is no legal [or discretionary] reason for

recusal” and that, in this case, “it was not the structure of the accusatory instrument that determined

the disposition, it was the People’s offer based upon their assessment of the facts and circumstances

of this particular case and the defendant’s acceptance of that offer.” (Dkt. 35-13 at 2.) At

sentencing, having found Petitioner to be a “persistent violent felony offender” under New York

law, the court sentenced Petitioner to a term of twelve years to life, consistent with the parties’

plea deal. (See Dkt. 35-14 at 5:11–16.)

Petitioner appealed his conviction. (See Dkt. 35-16 (“App. Br.”) at 2.) On direct appeal,

Petitioner argued—as he had with his motion to withdraw his plea—that the trial judge had unduly

pressured him to plead guilty when the judge explained that Petitioner’s sentence had to include a

maximum term of life in prison, even though Petitioner could have been convicted at trial of only

a non-violent offense, which would have permitted sentencing to a determinate prison term. (Id.

at 9.)

On October 21, 2015, while Petitioner’s direct appeal was pending, Petitioner filed a pro

se motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10

(“Section 440 Motion”).5 (Dkt. 12-5 at ECF 1.) As in his motion to withdraw his plea and direct

appeal, Petitioner asserted in his Section 440 Motion that his guilty plea was not knowing,

voluntary, and intelligent. (Id. at ECF 13–18.) Petitioner’s Section 440 Motion also raised the

new arguments that the indictment was void because of false testimony before the grand jury and

that Petitioner received ineffective assistance of counsel at the guilty plea and plea withdrawal

phases of his prosecution.6 (Id. at ECF 10–18.) But, on February 21, 2017, Petitioner submitted

a motion to withdraw his Section 440 Motion “for the purpose of making addenda to same” based

on newly discovered information. (See Dkt. 12-8 at ECF 1–3.) Petitioner’s motion to withdraw

was granted. (See Dkt. 35-22 at 4 n.1 (noting, in response to Petitioner’s application for leave to

appeal to the New York Court of Appeals, that “Mr. Walker . . . withdrew [his Section 440]

motion.”).)

On February 6, 2019, the Appellate Division affirmed Petitioner’s conviction, holding that

the trial court “providently exercised its discretion in denying [Petitioner]’s motion to withdraw

his plea of guilty.” People v. Walker, 93 N.Y.S.3d 403, 404 (N.Y. App. Div. 2019). Petitioner

5 Petitioner filed his Section 440 Motion and the instant habeas petition pro se. It appears

that at all other relevant times, Petitioner was represented by counsel, although his counsel changed

several times. (See Plea Tr. at 2:6; Plea Withdrawal Mot. at ECF 1; App. Br. at 15; Dkt. 35-18, at

4; Ct. App. Br., Dkt. 35-21 (“Ct. App. Br.”) at ECF 2; Dkt. 19, at ECF 1 (indicating that Petitioner

anticipated new Section 440 motion to be filed by counsel).)

6 Although Petitioner’s omnibus pre-trial motion sought to examine the grand jury minutes,

that motion did not argue that false testimony was submitted to the grand jury. (See Dkt. 35-3 at

ECF 4–5.)

sought leave to appeal to the Court of Appeals, continuing to argue that the court’s misleading

explanation of his sentencing exposure rendered his plea involuntary. (Ct. App. Br. at 1.) On

May 15, 2019, the Court of Appeals denied Petitioner leave to appeal. See People v. Walker, 126

N.E.3d 187 (N.Y. 2019) (unpublished table decision). Petitioner did not seek a writ of certiorari

from the United States Supreme Court with respect to that denial.

IV. Instant Petition for Writ of Habeas Corpus

Petitioner timely filed this pro se habeas petition on May 26, 2020. (Pet. at 1.)7 In his

petition, Petitioner asserted one ground for relief:

Petitioner’s [sic] was denied due process of law and to be free from self

incrimination, pursuant to the United States Constitution Fifth (5) Amendment,

when he was pressured to plead guilty, based on the court’s explanation regarding

his sentencing range, due to his prior convictions. The basic standard for assessing

the validity of a guilty plea is whether it represents “a voluntary and intelligent

choice among the alternative courses of action open to the defendant.” North

Carolina v. Alford, 400 U.S. 25, 31.

7 The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-

year statute of limitations on petitions seeking habeas relief from a state court judgment. 28 U.S.C.

§ 2244(d)(1). The one-year period runs from the date on which one of the following four events

occurs, whichever is latest: (1) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review; (2) the date on which the

impediment to filing an application created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was prevented from filing by such state action; (3)

the date on which the constitutional right asserted was initially recognized by the Supreme Court

and made retroactively applicable to cases on collateral review; or (4) the date on which the factual

predicate of the claim or claims presented could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2244(d)(1)(A)–(D). A judgment of conviction becomes “final” within the

meaning of 28 U.S.C. § 2244(d)(1)(A) upon completion of a defendant’s direct appeal in the state’s

highest court and either (a) completion of proceedings before the United States Supreme Court if

the petitioner chooses to file for a writ of certiorari, or (2) the expiration of time to file such a writ.

Williams v. Artuz, 237 F.3d 147, 150–51 (2d Cir. 2001); U.S. Sup. Ct. R. 13(1). A pro se prisoner’s

habeas petition is deemed filed at the moment he gives it to prison officials for mailing to the court.

Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (per curiam). Here, Petitioner’s state court judgment

became final on August 13, 2019, the day on which the 90-day period for him to seek a writ of

certoriari expired. Thus, Petitioner’s filing of this habeas action on May 26, 2020, which was

within a year after August 13, 2019, was timely. (See Pet. at ECF 7.)

(Id. at 4.)

Although the Petition contained only this one claim—that, as Petitioner had argued in his

motion to withdraw his plea and on direct appeal, Petitioner’s plea was involuntary—Petitioner

subsequently informed the Court that he intended to file a new Section 440 motion to vacate his

conviction in state court and that should his motion fail, “necessity would dictate that an addendum

to this Petition be filed by Petitioner.” (See Dkt. 7 at ECF 1.) A letter from Petitioner’s new

Section 440 attorney indicated that the motion would be filed before the end of 2020. (Id. at ECF

2.) Accordingly, on August 2, 2020, the Court stayed proceedings in this case. (8/2/2020 Docket

Order.)

Shortly after the Court stayed this matter, on August 6, 2020, Petitioner filed “Reply”

documents reiterating that his Section 440 attorney needed time to file the motion. (Dkt. 10

(“Pet’r’s Aug. 6, 2020 Ltr.”) at ECF 1–3; Dkt. 11 (“Reply Ltr.”) at ECF 3.) Petitioner asserted

that his new Section 440 motion would advance three arguments: (1) evidence was improperly

withheld from Petitioner in violation of Brady v. Maryland, 373 U.S. 83 (1963), and People v.

Rosario, 173 N.E.2d 881 (N.Y. 1961); (2) prosecutorial misconduct; and (3) ineffective assistance

of counsel at the time of his plea. (Pet’r’s Aug. 6, 2020 Ltr. at ECF 1.) Petitioner also sought to

vacate the Court’s prior order permitting Special District Attorney Thomas A. Tormey, Jr. (“SDA

Tormey”) to appear on behalf of Respondent. (Reply Ltr. at ECF 1; 7/15/2020 Docket Order.)

Since the Court had already stayed Petitioner’s case, the Court construed Petitioner’s

“Reply” as a motion to disqualify Respondent’s counsel and ordered Respondent to respond to

Petitioner’s allegations. (See 8/24/2020 Docket Order.) After briefing, on March 11, 2021, the

Court denied Petitioner’s motion to disqualify SDA Tormey. (Dkt. 20 at 8.) The stay continued.

(4/17/2021 Docket Order.) On November 8, 2021, Petitioner’s Section 440 counsel filed a status

report stating that he had not yet filed Petitioner’s motion because he was awaiting the outcome of

a New York Freedom of Information Law request before proceeding. (See Dkt. 28 at ECF 1.)

On January 12, 2022, the Court administratively closed this case pending further updates.

(1/12/2022 Docket Order.) The Court warned Petitioner that he would need to timely amend his

petition in order to properly bring additional claims before the Court. (Id.)

V. Reopening the Instant Petition

On February 16, 2022, the Court received a letter from Petitioner that stated, “I am

requesting that I proceed with my federal habeas corpus—without amending my petition. My civil

case is still pending and there’s no telling when it will be resolved. Because of this, I am willing

to move forward with my petition as it is.”8 (Dkt. 31 (“Reopening Mot.”) at ECF 1.) The Court

construed Petitioner’s letter as a motion to reopen this case, lift the stay, and proceed with his

already-filed petition, without amendment. (2/18/2022 Docket Order.) The Court’s February 18,

2022 order granting Petitioner’s motion to reopen this case advised Petitioner:

Petitioner has been cautioned to exhaust and include all of his potential claims

before proceeding on the present petition, and should understand that he may be

forfeiting the right to add new claims raised in his § 440. If this petition is decided,

and Petitioner later wishes to raise new claims denied in his § 440, he may only be

able to bring those claims in a habeas petition if the Second Circuit grants him the

opportunity to file a successive petition, which is unlikely.

(Id.)

On April 20, 2022, Respondent filed his brief opposing the petition. (Dkt. 34.) On July

18, 2022, Petitioner filed his reply. (Dkt. 40 (“Pet’r’s Reply”).) Petitioner’s reply argued, as did

his petition, that Petitioner’s plea was involuntary. (Id. at 7–12.) It also argued that had Petitioner

8 The civil case in question—Section 1983 litigation also arising from the events of

February 2, 2013—is Walker v. City of New York, No. 14-CV-680 (NRM) (PK). (See Pet’r’s Aug.

6, 2020 Ltr. at 1 (citing docket number); Dkt. 26 at 1 (same).)

rationally weighed his options, he would have rejected the plea offer because a jury could have

found him innocent of the charged violent felonies based on available evidence. (See id. at 7–10.)

Lastly, it argued that Petitioner’s guilty plea was made in haste. (Id. at 10–11.)

On July 30, 2022, Respondent sought leave to file a sur-reply in support of his response,

and on August 16, 2022, Petitioner sought leave to file a sur-sur-reply in support of his petition.

(Dkt. 41 (“Resp’t’s Sur-Reply Mot.”); Dkt. 43 (“Pet’r’s Sur-Sur-Reply Mot.”).) Although the

Court did not previously indicate whether it would consider the parties’ respective sur-replies, as

discussed below, it has not done so in resolving this Petition.

LEGAL STANDARDS

A federal district court may “entertain an application for a writ of habeas corpus [on] behalf

of a person in custody pursuant to the judgment of a State court 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). In order to obtain relief, such a petitioner must demonstrate, inter alia, that he has: (1)

exhausted his potential state remedies; (2) asserted his claims in his state appeals such that they

are not procedurally barred from federal habeas review; and (3) satisfied the deferential standard

of review set forth in AEDPA, if his appeals were decided on the merits. See, e.g., Georgison v.

Donelli, 588 F.3d 145, 153 (2d Cir. 2009); Edwards v. Superintendent, Southport C.F., 991 F.

Supp. 2d 348, 365–66 (E.D.N.Y. 2013).

I. Exhaustion

Before seeking federal habeas relief, a state habeas petitioner must first exhaust his state

remedies by fairly presenting his constitutional claims to the state courts. See 28 U.S.C. §

2254(b)(1); Bierenbaum v. Graham, 607 F.3d 36, 47 (2d Cir. 2010). A petitioner fairly presents a

constitutional claim to the state courts when he presents the essential factual and legal premises of

his federal constitutional claim to the highest state court capable of reviewing it. See Jackson v.

Conway, 763 F.3d 115, 133 (2d Cir. 2014). Where a petitioner “explicitly withdr[aws]” a claim

such that “the Court of Appeals never had an opportunity to review it,” the claim “is thus

unexhausted.” Collins v. Artus, No. 08-CV-1936 (PKC) (JCF), 2009 WL 2633636, at *9

(S.D.N.Y. Aug. 26, 2009).

II. Procedural Default

A petitioner’s failure to include claims on direct appeal is a procedural default that

precludes raising those claims in a federal habeas petition. See Carvajal v. Artus, 633 F.3d 95,

104 (2d Cir. 2011); O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Teague v. Lane, 489 U.S.

288, 298–99 (1989). To overcome the bar to federal habeas review of a claim that has been

procedurally defaulted in state court, a petitioner must “demonstrate either cause and actual

prejudice, or that he is actually innocent.” Gomez v. United States, 87 F.4th 100, 107 (2d Cir.

2023) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and

citations omitted)). Where a petitioner makes no effort to meet this standard, a court cannot grant

habeas relief. See Angeles v. Greiner, 267 F. Supp. 2d 410, 416 (E.D.N.Y. 2003); Collins, 2009

WL 2633636, at *9.

III. AEDPA Deference

Where a state court has reached the merits of a claim asserted in a Section 2254 petition,

the state court’s decision is entitled to deference under AEDPA and the petition must be denied

unless the decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d); Washington v. Griffin, 876 F.3d 395, 403 (2d Cir. 2017).

A state court decision is “contrary to” clearly established federal law 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 an opposite result. Evans v. Fischer, 712 F.3d 125, 132 (2d

Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an

“unreasonable application” of clearly established federal law if “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, 529 U.S. at 413. “[A]n unreasonable

application of federal law,” however, “is different from an incorrect application of federal law.”

Id. at 410; see also Grayton v. Ercole, 691 F.3d 165, 174 (2d Cir. 2012) (“[T]he writ may only

issue where the state court’s application of the law was not only wrong, but unreasonable.”). A

federal court may only “issue the writ in cases where there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.”

Harrington v. Richter, 562 U.S. 86, 102 (2011); see Orlando v. Nassau Cnty. Dist. Att’ys Off., 915

F.3d 113, 120–21 (2d Cir. 2019).

DISCUSSION

I. The Parties’ Sur-Replies

As a preliminary matter, the Court denies Respondent’s motion for leave to file a sur-reply

and Petitioner’s motion for leave to file a sur-sur-reply. (Resp’t’s Sur-Reply Mot.; Pet’r’s Sur-

Sur-Reply Mot..) A sur-reply is appropriate only in “the exceptional though rare case” when a

“party demonstrates to the court that papers to which it seeks to file a reply raise new issues which

are material to the disposition of the question before the court,” or when “[the court]

determines . . . that it wishes further briefing . . . and orders the submission of additional papers.”

Sec. & Exch. Comm’n v. Xia, No. 21-CV-5350 (PKC) (RER), 2022 WL 2784871, at *1 (E.D.N.Y.

July 15, 2022) (alterations in original) (quoting United States v. Int’l Bus. Machines Corp., 66

F.R.D. 383, 384 (S.D.N.Y. 1975)). When “the reply papers merely respond to points raised in

opposition to the underlying motion, fairness does not ordinarily demand further briefing.”

Polidoro v. L. Firm of Jonathan D’Agostino, P.C., No. 19-CV-1290 (ER) (BCM), 2022 WL

2286951, at *7 (S.D.N.Y. June 23, 2022)).

Respondent’s motion for leave to file a sur-reply characterizes Petitioner’s reply brief as

“seek[ing] to add additional, unexhausted claims to his argument.” (See Resp’t’s Sur-Reply Mot.

at 1; see also id. at 5.) The Court disagrees. Although Petitioner’s reply raises numerous details

that were not stated in his petition, Petitioner’s reply is largely an elaboration of the sole claim

contained in his petition: that his plea was involuntary because he “did not possess sufficient

awareness of the relevant circumstances and likely consequences at that time.” (See Pet’r’s Reply

at 10–12; see also Pet. at 4.) For instance, Petitioner’s evidentiary arguments that he would have

been acquitted, such as his argument that the firearm recovered from the February 2, 2013 incident

was not loaded, merely explain Petitioner’s basis for his assertion that he “could have only been

convicted [at trial] of a non-violent felony” and thus constitute an elaboration of his involuntary

plea argument. (See Pet’r’s Reply at 7; Pet. at 4; Resp’t’s Sur-Reply Mot. at 3.) Similarly,

Petitioner’s argument that his “guilty plea was made in great haste” further develops Petitioner’s

claim that he did not make “a voluntary and intelligent choice among the alternative courses of

action open” to him. (See Pet’r’s Reply at 10; Pet. at 4; Resp’t’s Sur-Reply Mot. at 3.)

To the extent that Petitioner’s reply brief goes beyond Petitioner’s initial claim for relief,

those arguments are plainly in response to Respondent’s opposition brief, which argues that

Petitioner fails to allege a violation of clearly established federal law and that various of

Petitioner’s claims are unexhausted. (See Pet. at 4.) “[R]eply papers may properly address new

material issues raised in the opposition papers so as to avoid giving unfair advantage to the

answering party,” Bayway Refin. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226–27

(2d Cir. 2000), and such replies do not necessitate further briefing in the form of Respondent’s

proposed sur-reply, see Polidoro, 2022 WL 2286951, at *7. Since the Court declines to consider

Respondent’s sur-reply, there is no need for the Court to consider Petitioner’s sur-sur-reply.

Furthermore, regardless of the substance of the sur-replies, the Court is entitled to exclude

the parties’ unauthorized sur-replies based on procedural impropriety alone. See Neary v.

Weichert, 489 F. Supp. 3d 55, 62 (E.D.N.Y. 2020) (“The decision to permit a litigant to submit a

sur-reply is a matter left to the Court’s discretion.” (cleaned up)). “Procedurally, the party seeking

to submit reply papers should submit an informal request in writing . . . [in advance of filing its

sur-reply],” to avoid “placing the [sur-reply] before the court, [and] thereby reducing the question

of whether the [sur-reply] should be accepted for filing to relative unimportance.” Int’l Bus.

Machines Corp., 66 F.R.D. at 384–85. In this instance, both parties’ sur-replies are procedurally

improper because they were filed alongside the requests to submit them. (See generally Resp’t’s

Sur-Reply Mot.; Pet’r’s Sur-Sur-Reply Mot.)

Accordingly, the Court denies both sides’ motions to file sur-replies and does not consider

them in resolving the Petition.

II. Voluntariness of Petitioner’s Guilty Plea

Petitioner’s sole ground for habeas relief is that his guilty plea was involuntary in violation

of the Fifth Amendment.9 (Pet. at 4; Pet’r’s Reply at 7.) Petitioner presented this argument on

9 Despite the Court’s warnings, Petitioner has not amended his petition to include the three

grounds for relief asserted in his August 6, 2020 letter, so the Court does not consider them. (See

1/12/2022 Docket Order (advising Petitioner to amend his petition); 2/18/2022 Docket Order

direct appeal, and the state court adjudicated it on the merits. See Walker, 93 N.Y.S.3d at 404.10

That decision is therefore entitled to AEDPA deference. 28 U.S.C. § 2254(d); see also Eze v.

Senkowski, 321 F.3d 110, 121 (2d Cir. 2003).

Applying the relevant standard, the Court finds that Petitioner is not entitled to federal

habeas relief. Even accepting that Petitioner did not fully appreciate the range of options available

to him at the time of sentencing—i.e., that had he gone to trial, he might have been convicted only

of a non-violent offense, (see id. at 11)—the state court’s explanation of Petitioner’s potential

sentence was not “contrary to” or an “unreasonable application” of clearly established Supreme

Court precedent, so as to render his guilty plea involuntary in violation of the Fifth Amendment.

Cf. Oyague v. Artuz, 393 F.3d 99, 105 (2d Cir. 2004) (affirming denial of habeas relief where there

was “no actual misrepresentation . . . of [petitioner’s] minimum potential sentence upon

conviction” even where, had petitioner “gone to trial and been convicted on all counts,” his

(warning Petitioner that by “proceeding on the present petition” he “may be forfeiting the right to

add new claims”); Reopening Mot. at ECF 1 (stating that Petitioner is “willing to move forward

with [his] petition as it is”)); see also Mayle v. Felix, 545 U.S. 644, 662 (2005) (“A prisoner should

not be able to assert a claim otherwise barred by the statute of limitations merely because he

asserted a separate claim within the limitations period.”). Even if the Court were to consider

Petitioner’s additional grounds for relief, they are unexhausted and procedurally defaulted, and

Petitioner makes no effort to demonstrate cause and prejudice or actual innocence excusing his

default. See Jackson, 763 F.3d at 133; Collins, 2009 WL 2633636, at *9; Carvajal, 633 F.3d at

104; Angeles, 267 F. Supp. 2d at 416; (see also Pet’r’s Reply at 11 (stating that Petitioner

“consistently denied possessing a firearm,” despite his eventual plea allocution to the contrary;

yet, not denying that Petitioner possessed a firearm)).

10 The Court “looks through” to the Appellate Division’s opinion given that the Court of

Appeals stated merely that Petitioner’s application was “[d]enied.” Walker, 126 N.E.3d at 187.

When the last state court decision on the merits is not accompanied by reasons (e.g., a one-word

order, such as “affirmed” or “denied”), a “federal court should ‘look through’ the unexplained

decision to the last related state-court decision that does provide a relevant rationale. It should

then presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138

S. Ct. 1188, 1192 (2018); see also Scrimo v. Lee, 935 F.3d 103, 111–12 (2d Cir. 2019) (looking

through appellate court’s denial of claim as “without merit” and “therefore consider[ing] the

rulings and explanations of the trial judge”).

“minimum potential jail sentence” was less than “he was advised by counsel (and . . . the trial

court) that he faced”). During Petitioner’s plea, the state court accurately described the potential

consequences of the proposed plea deal: an indeterminate sentence of 12 years to life in exchange

for Petitioner’s guilty plea to second-degree attempted criminal possession of a weapon. (Plea Tr.

at 4:7–9.) The court also accurately advised Petitioner that if he were convicted of this crime at

trial, he would face a mandatory indeterminate sentence of 16 years to life at the low end and 25

years to life at the high end. (Id. at 6:15–25.) Petitioner has not identified, and the Court has been

unable to identify, Supreme Court precedent stating that a judge’s accurate explanation of a

particular charge’s sentencing exposure constitutes unconstitutionally coercive pressure that

renders the plea involuntary. See 28 U.S.C. § 2254(d)(1) (requiring application of “clearly

established Federal law, as determined by the Supreme Court of the United States”); Washington,

876 F.3d at 403 (same). A state court’s decision cannot be contrary to a holding of the Supreme

Court when the Court has “never addressed” whether a rule applies to “the specific question

presented by th[at] case.” Woods v. Donald, 575 U.S. 312, 317 (2015); accord Maldonado v.

Warden Adirondack Corr. Facility, 825 F. App’x 48, 50 (2d Cir. 2020) (summary order).

To the extent that lower courts’ rulings bear on Petitioner’s argument for relief, they, too,

are unavailing. Petitioner points to Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000), which affirmed

habeas corpus relief for a petitioner who rejected a plea deal when his counsel mistakenly told him

that the prosecutor could not offer a lower deal. Id. at 135. However, Mask did not speak to

whether a plea that is accepted based on a mistaken belief is necessarily involuntary, and in that

regard, it does not support Petitioner’s argument. Cf. United States v. Delvalle, --- F.4th ----, No.

22-1539-cr, 2024 WL 925669, at *4 (2d Cir. 2024) (per curiam) (“An erroneous sentence estimate

by defense counsel does not render a plea involuntary.” (quoting United States ex rel. LaFay v.

Fritz, 455 F.2d 297, 302 (2d Cir. 1972))). Rather, in Mask, the Second Circuit affirmed habeas

corpus relief because the state court, on collateral review, applied too strict a standard when

assessing petitioner’s ineffective assistance of counsel claim. See Mask, 233 F.3d at 140.

This case also differs from United States v. Johnson, where the Second Circuit vacated a

federal guilty plea on direct appeal after it found that the defendant’s plea hearing was too

confusing to ensure that the defendant’s plea was made voluntarily, knowingly, and intelligently.

See 850 F.3d 515, 522–24 (2d Cir. 2017). There, the prosecutor explained the government’s

sentencing recommendation in a manner that “was technically sound,” but that referred to a

“possible maximum,” a “mandatory minimum,” the loss of certain rights, and statutory periods of

supervised release with additional terms of incarceration for violations, all of which were

“confusing and difficult to reconcile with the inevitability” that the defendant was subject to a

mandatory minimum sentence of life imprisonment. See id. at 522. The district court then

“compounded the confusion” by noting that “sometimes” the court can sentence defendants “above

the [Sentencing] Guidelines, below the Guidelines or [e]ven outside of the Guidelines depending

upon the facts, the circumstances and the law”—which was correct, but moot given the mandatory

minimum applicable to the defendant. See id. at 519, 522–23. The district court could have

ensured that the defendant’s plea was made knowingly by “tell[ing] the defendant clearly and

unambiguously that the judge . . . [had] no discretion at sentencing, and that accepting the plea

will result in no less than the mandatory sentence”—in that case, life in prison—but did not do so,

prompting the Second Circuit to vacate the plea and remand the case. Id. at 524–25.

Here, in contrast, the trial judge clearly and unambiguously advised Petitioner that he was

pleading guilty to a term with “a minimum period of twelve years, a maximum period of life” and

that that was the sentence the court “would impose.” (Plea Tr. at 14:19–21.) The court also

exhaustively asked Petitioner whether he had “had enough time to think about this and to decide

this is what [he] want[s] to do,” whether he had “had enough time to discuss it with [his] lawyer,”

whether he was “satisfied with [his] lawyer’s representation of [him],” whether he felt he was

“mentally, physically and emotionally able to plead guilty at this time,” whether he was “pleading

guilty voluntarily and of [his] own free will,” and whether he was “pleading guilty . . . because

[he] [was] in fact guilty”—with Petitioner responding, “Yes” to each question. (Id. at 15:7–16:13.)

Further, the trial court stated that the sentence to which Petitioner was pleading was “twelve years

to life” on seven separate occasions, in addition to Plaintiff’s counsel having taken multiple

opportunities—including during the plea hearing—to discuss the plea with Petitioner.11 (Id. at

4:7–9, 4:21–23, 6:15–25, 8:23–25, 11:9–14, 14:15–24, 16:7–9; see also id. at 2:13–18, 7:1–11,

13:10–11, 15:1–5.) Even though the trial judge did not describe all of the possible sentences that

Petitioner could receive after a trial on the full indictment, rather than pleading guilty to a single

offense, the trial judge was clear that Petitioner was pleading guilty to a sentence of twelve years

to life and made sure that Petitioner understood the consequences of that guilty plea.

Similarly, in Miranda v. Graham, this Court held that an attorney’s explanation of “the

true maximum possible sentence” a habeas petitioner “could face if found guilty” at trial “did not

constitute coercion.” No. 11-CV-1803 (PKC), 2018 WL 4344944, at *4 (E.D.N.Y. Sept. 11,

2018). Rather than supporting Petitioner’s claim, the Court’s Miranda decision supports its denial

for the same reason, i.e., that the trial court’s explanation of “the true maximum possible sentence”

that Petitioner “could face if found guilty” at trial of second-degree attempted criminal possession

of a weapon “did not constitute coercion.” Id. Here, the trial court’s explanation of the possible

11 The Court notes that although the court only mentioned “twelve to life” twice during the

actual plea colloquy, it referenced that sentence numerous times before Petitioner was sworn in.

(See generally id.)

sentence Petitioner faced if convicted of this crime at trial was an accurate statement of New York

law governing the relevant offense, and there is no constitutional authority requiring the trial court

to have done more.

The Court pauses to note that it is sympathetic to Petitioner’s claim that, in deciding to

plead guilty, he did not consider or weigh the possibility that he might not be convicted of any

violent felony.12 However, as discussed, that fact does not make the state court’s decision to accept

his guilty plea as knowing and voluntary “contrary to, or involv[ing] an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United States.” See

28 U.S.C. § 2254(d). There is no clearly established constitutional right to have the trial court

advise a defendant of facts that might be relevant to his trial strategy—which is what advising

Petitioner that he might not be convicted of any violent felony at trial would have amounted to.

Rather, the Constitution requires that a criminal defendant be advised of only likely consequences

of his guilty plea to a particular crime. See Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“A

guilty plea operates as a waiver of important rights, and is valid only if done voluntarily,

12 The Court also considered whether a particular statement by the trial court during the

plea proceeding might have reinforced Petitioner’s alleged failure to understand that he might not

be convicted of any violent felony at trial. In response to Petitioner saying that the life component

of his potential sentence was “mind-boggling,” the court stated, “I have been round and round with

this with the lawyers and there is just no other sentence. It’s because of your two prior felony

convictions. That’s really what kind of locks this all in.” (Plea Tr. at 9:14–23.) In isolation, that

statement could have led Petitioner to believe that regardless of the crime or crimes he was

convicted of at trial, he would still be subject to a mandatory indeterminate sentence with a

maximum of life. However, when viewed in the entire context of the plea proceeding and the trial

court’s other statements, the Court finds that this statement was neither misleading or inaccurate

so as to suggest that there was no scenario under which Petitioner could avoid a maximum of life

if he went to trial. (See, e.g., id. at 8:15–9:1 (explaining just before statement above that because

defendant had “two prior violent felony convictions[,] . . . the law requires if you are convicted of

another violent felony[,] . . . the sentence must have a lifetime component”) (emphasis added).)

knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely

consequences.’” (quoting Brady v. United States, 397 U.S. 742, 748 (1970))). Here, Petitioner

was advised of both the recommended sentence he faced if he pled guilty to the indicted offense

of second-degree criminal possession of a weapon and the lowest and highest sentences he faced

if convicted of that crime at trial. (See Plea Tr. at 4:14–19.) That was all that the Constitution

required on this issue. To the extent that Petitioner’s specific complaint about not being advised

of the possibility that he might not be convicted of a violent felony at trial supports an ineffective

assistance of counsel claim, Petitioner makes no such claim here and, indeed, expressly chose not

to supplement his petition with an ineffective assistance of counsel claim. (See Reopening Mot.

at ECF 1; Pet’r’s Aug. 6, 2020 Ltr. at ECF 1 (noting possibility of ineffective assistance of counsel

claim).)

Lastly, in reviewing a state habeas petition, the Court may determine on its own that a

defendant “knowingly” and “voluntarily” entered into the plea agreement from, inter alia, his

allocution statements. See United States v. Hernandez, 242 F.3d 110, 112–13 (2d Cir. 2001).

Statements made at a plea allocution carry a “strong presumption of veracity.” United States v.

Torres, 129 F.3d 710, 715 (2d Cir. 1997).

In this case, the Court finds “no basis in the record for concluding that [Petitioner] lacked

the requisite understanding [of his plea].” United States v. Torrellas, 455 F.3d 96, 104 (2d Cir.

2006) (affirming federal guilty plea where “the record as a whole le[ft] no doubt whatever that

[defendant] was aware of the nature of the charge against him . . . and that his plea established”

his guilt). As Petitioner acknowledges, statements made at a plea allocution carry a “strong

presumption of verity,” (see Pet’r’s Reply at 11 (citing Blackledge v. Allison, 431 U.S. 63, 74

(1977))), and, here, Petitioner admitted under oath all facts necessary to establish an informed,

knowing, and voluntary guilty plea. Such declarations “are generally treated as conclusive in the

face of the defendant’s later attempt to contradict them.” Adames v. United States, 171 F.3d 728,

732 (2d Cir. 1999).

Specifically, at the plea hearing, Petitioner stated that he was pleading guilty voluntarily

and of his own free will. (Plea Tr. at 15:25–16:2.) He stated that he was pleading guilty because

he was, in fact, guilty. (Id. at 16:11–13.) After the court explained the crime of second-degree

attempted criminal possession of a weapon, Petitioner admitted to conduct satisfying the offense.

(Id. at 16:14–18:16.) Although Petitioner stated that he did not point a gun at law enforcement

officers during the incident and that he was eventually shot while unarmed, Petitioner ultimately

admitted that he attempted to possess a loaded firearm outside of his home or place of business.

(See id. at 16:17–18:16.) Petitioner also stated that he understood he was giving up his rights to

trial and appeal, but still wanted to plead guilty; that he did not have any questions for the court;

and that he understood all of the court’s questions. (Id. at 18:17–21:9, 22:3–8.) Finally, when the

court asked Petitioner if he wanted to plead guilty, he said yes. (Id. at 22:17–23:1.)

* * *

In light of the foregoing, Petitioner’s claim for habeas relief based on his guilty plea not

being knowing, voluntary, and intelligent is denied.

CONCLUSION

For the reasons set forth above, the petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2254, is denied. Petitioner is denied a certificate of appealability, as he has failed to make

a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

Middleton v. Att’ys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (denying certificate of appealability

where petitioner had not shown that “reasonable jurists could debate whether the petition should

have been resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further” (internal quotation marks omitted) (quoting Slack v. McDaniel,

529 U.S. 473, 475 (2000)). Additionally, 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of Court is therefore respectfully directed to enter judgment and close this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: March 18, 2024

Brooklyn, New York