Miller v. LaClair

U.S. DISTRICT COURT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE

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DANIEL MILLER,

Petitioner, MEMORANDUM AND ORDER

-v- 20-cv-1546 (JS)

DARWIN E. LACLAIR,

Respondent.

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APPEARANCES

For Petitioner: Daniel Miller, Pro Se

207 West Broadway

Inwood, New York 11096

For Respondent: Cristin N. Connell, Esq.

Nassau County District Attorney’s Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Following his guilty plea, on June 17, 2015, Petitioner

Daniel Miller (“Petitioner” or “Miller”), was convicted of

Criminal Sexual Act in the First Degree (New York Penal Law

[hereinafter, “Penal Law”] § 130.50[2], a class B felony),

Kidnapping in the Second Degree (Penal Law § 135.20, a class B

felony), two counts of Attempted Criminal Sexual Act in the First

Degree (Penal Law §§ 110, 130.50[2], a class B felony), three

counts of Sexual Abuse in the First Degree (Penal Law § 130.65[2],

a class D felony), and four counts of Facilitating a Sex Offense

with a Controlled Substance (Penal Law § 130.90, a class D felony).

(Plea Tr. ECF No. 9-8, at 14-22; Conviction, ECF 1-1, at 2-3.)

After serving an aggregate prison term of nine years, Miller is

presently on 10-year post-release supervision.

Before the Court is Petitioner’s pro se petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“§ 2254”)

(hereafter, “Petition”) raising four grounds for relief.

(Petition, ECF No. 1.) Respondent Darwin E. LeClair (“Respondent”)

opposes the Petition, (Opp’n, ECF No. 8), to which Petitioner

replied. (Reply, ECF No. 14.) For the reasons stated below, the

Petition is DENIED in its entirety, and the case is dismissed.

BACKGROUND1

I. The Offensive Conduct and Pre-Plea Proceedings

On January 3, 2012, in Inwood, New York, Petitioner gave

drug-laced alcohol to a 17-year-old minor (hereafter, the

“Victim”). (Plea Tr. at 14-16.) He then subjected the Victim to

repeated unconsented sexual acts, which occurred at both a store

owned by Petitioner and Petitioner’s residence. (Id. at 16-17.)

For this conduct, Miller was charged by indictment.2

Thereafter, Petitioner was subjected to competency

hearings pursuant to New York Criminal Procedure Law (“C.P.L.”) §

1 The general overview of the facts is adduced from the Petition

and the underlying record, with, where necessary, details added

(as cited).

2 Subsequently, Petitioner, along with his mother and sister, was

charged with conspiring to kill the Victim. (See Opp’n at ¶ 7.)

730:30 (hereafter, the “Competency Hearings”); ultimately, he was

found competent to stand trial.3 (Feb. 6, 20144 Decision, ECF No.

9-5.)

While the Competency Hearings were ongoing, on July 22,

2013, Petitioner filed a pro se suppression motion seeking to

suppress jailhouse calls made between himself and his sister,

arguing the calls were covered by the attorney-client privilege

because his sister had his power of attorney. (July 22, 2013

Suppression Mot., ECF No. 9-7.) In the same motion, Petitioner

also sought to change venue to the Vatican and accused the

prosecutor assigned to his other criminal case “of trying to

assassinate [his mother and sister] by having the drains [in their

home] plugged up immediately prior to Hurricane Sandy” and

threatening his family. (Id. at 9.)

Then, on July 31, 2013, Miller filed a pro se letter

complaining of “ethical misconduct” against the prosecutor on his

case, accusing the prosecutor of coercing the psychiatrist who

performed the competency examination “into falsifying a medical

finding.” (July 31, 2013 Letter Compl., ECF No. 9-7, at 1-4.) In

3 Among other things, the evidence adduced at the Competency

Hearings showed Petitioner intended to feign mental illness. (See

ECF Nos. 9-1, 9-2, 9-3, 9-4.)

4 The Competency Decision was dated February 4, 2014, but was

entered and filed on February 6, 2014. (See ECF No. 9-5 at ECF

p.3.)

his letter, Miller also accused the prosecutor of falsely

representing to the court that the previously assigned judge

authorized the release of defendant’s jailhouse calls to the

examining doctors. (Id. at 2, 5.) He further claimed this alleged

misconduct was “part of a conspiracy [by prosecution] to cause

substantial physical harm to [him] and [his] family.” (Id. at 5.)

II. The Plea and Sentence

On April 21, 2015, Petitioner entered a guilty plea to

all counts of the indictment, with the State having withdrawn one

charge. (Plea Tr. at 7:2-22:7.)5 As part of the plea agreement

reached on the indictment, Petitioner waived his right to appeal,

and the court made a commitment to sentence Petitioner to an

aggregate nine-year prison term followed by 10 years of post-

release supervision on the count of criminal sexual act in the

first degree, to be served concurrently with the same and lower

terms the court imposed on the remaining counts.6 (Id. at 11:22-

12:24.) Had Miller decided to go to trial, he would have been

5 At the April 2015 plea hearing, Miller also: accepted the court’s

offer to plead guilty to all the counts on a separate indictment,

i.e., Indictment No. 1090N-2012, which charged him with the

conspiracy to commit murder of the Victim; and, pleaded guilty to

one count of second-degree grand larceny and three counts of third-

degree larceny in full satisfaction of a third indictment, stemming

from unrelated fraud allegations. (Plea Tr. at 22-32.)

6 At his subsequent sentencing, the court ordered Miller’s

sentences on his two other indictments to run concurrently to the

aggregate sentence of nine years followed by 10 years of post-

release supervision it imposed on the first indictment.

exposed to the maximum sentence of 25 years of imprisonment. (Id.

at 11:18-19.) During his plea, Miller allocuted to each count;

notably, during said allocution, Miller corrected factual

allegations and made clarifications on the record. (Id. at 14:14-

22:6.) He also waived his right to appeal, confirming he discussed

the waiver with his attorney and was giving up this right

voluntarily. (Id. at 10-11.)

Having made no attempt to withdraw his plea, on June 16,

2017, Miller, appeared for sentencing with the same counsel who

represented him at his plea proceeding. As promised, the court

sentenced Miller to the concurrent terms of nine years of

imprisonment on the counts of first-degree criminal sexual act,

attempted criminal sexual act in the first degree, and kidnapping

in the second degree, followed by 10 years of post-release

supervision, to be served concurrently with lesser sentences

imposed on other counts of the indictments. (Sent’g Tr., ECF No.

9-9, at 6-7.) Neither Petitioner nor his attorney objected to the

imposed sentence.

III. The Appeal

Notwithstanding his appeal waiver, on November 20, 2017,

Petitioner appealed his conviction to the Appellate Division,

Second Department (“Appellate Division”). (Appellant’s Br., ECF

No. 1-10.) Appearing pro se, in sum, Miller argued: (1) his appeal

waiver was not made knowingly, voluntary, or intelligently; (2) he

preserved his right to appeal because N.Y. Penal Law § 70.45, the

post-release supervision statute (hereafter, the “State PRS

Statute”), was unconstitutional on its face and as applied to him;

and (3) his counsel was ineffective for failing to advise him of

all the collateral consequences of the plea. (Id. at 4-21.)7

The Appellate Division found, “contrary to [Miller’s]

contentions, the Supreme Court’s oral colloquy with him regarding

the waiver of the right to appeal established that [Miller]

knowingly, voluntarily, and intelligently waived his right to

appeal.” People v. Miller, 166 A.D.3d 812, 813 (2d Dept. 2018).8

Therefore, the valid appeal waiver precluded the Appellate

Division from reviewing Miller’s argument regarding the

constitutionality of the State PRS Statute. See id. The court

also held, because he did not move to dismiss or withdraw his plea

or otherwise raise the issues of the alleged involuntariness of

his plea before the lower court, Miller was procedurally precluded

from doing so on appeal. See id. Furthermore, the Appellate

Division found Miller’s ineffective assistance claims relied upon

matters outside the record; hence, to properly address them,

7 On appeal, Petitioner also argued his simultaneous conviction

on the counts of kidnapping, sex assault, and facilitating sexual

assault with a controlled substance were in violation of the merger

doctrine. (Appellant’s Br. at 18-20.) The Appellate Division did

not address the merits of this argument finding it was precluded

by Miller’s valid guilty plea. See Miller, 166 A.D.3d at 813.

8 Also found in the Case Docket at ECF No. 9-12.

Petitioner must initiate a C.P.L. § 440.10 proceeding. See id.

Thereafter, Petitioner sought leave to appeal to the New York Court

of Appeals (ECF No. 9-13), which was denied. See People v. Miller,

33 N.Y.3d 951 (2019).

IV. Miller’s C.P.L. § 440 Motion

While his appeal was still pending, on August 2, 2018,

Petitioner filed a motion pursuant to C.P.L. § 440.10 to set aside

the verdict and, pursuant to C.P.L. § 440.20, to set aside his

sentence in the state court (hereafter, the “Section 440 Motion”).

(ECF No. 9-16.) He argued his plea was procured by prosecutorial

misconduct, alleging the prosecutor: introduced false testimony to

the grand jury; committed witness tampering; and, withheld Brady

materials from the defense. (See id.) He supported his claim

with an “inter-departmental memo” allegedly written by the case

lead prosecutor to the District Attorney (hereafter, the “D.A.

Memo”) and an anonymous letter allegedly sent to Miller by “a fair

civil servant” describing instances of prosecutorial misconduct

(hereafter, the “C.S. Letter”). (Exs. B & C, attached to Section

440 Motion.) Petitioner also argued he was deprived of effective

assistance of counsel because his counsel: failed to utilize the

alleged evidence of prosecutorial misconduct; failed to explain to

Petitioner the collateral consequences of his plea, e.g., the

applicability of the N.Y. Sex Offender Registration Act (“SORA”)

and the Sex Offender Management and Treatment Act (“SOMTA”), as

well as applicable “Son of Sam Law” requirements to Petitioner;

and, did not consult with an expert regarding the effects of the

drug Miller used on the Victim. (Id.) Further, Petitioner argued

the State PRS Statute was unconstitutional; hence, his counsel was

ineffective for not advising Miller of same. (Id.)

Rejecting his arguments, the state court denied Miller’s

Section 440 Motion in its entirety and without a hearing. (Section

440 Decision, ECF No. 9-19.) It found Miller knew about the

purported evidence alleging prosecutorial misconduct, having had

it in his possession for years; yet, he failed to raise it on the

record on multiple occasions, including during his plea

allocution. (Id. at 3.) Thus, Miller’s claims were barred on

procedural grounds, and, moreover, if considered on the merits,

said claims would “be summarily denied.” (Id.) As to Miller’s

ineffective assistance claim based upon a supposed failure-to-

advise regarding collateral consequences, because the identical

claim was still pending on direct appeal, the Supreme Court could

not consider it. (Id. at 4.) However, the court further stated

this claim was meritless since Miller “ha[d] not offered any sworn

allegations that, had he been aware that SORA registration would

be required as a result of his plea, he would not have pleaded

guilty,” and, in any event, he failed to show prejudice. (Id.)

Nor did he establish a significant likelihood of a SOMTA proceeding

being initiated against him. (Id.) Finally, the court stated the

failure to advise on the Son of Sam law did not constitute

ineffective assistance. (Id. at 5.) Finally, regarding Miller’s

challenge to the State PRS Statute, the court found it to be

without merit. (Id.)

On November 30, 2018, Miller filed an application asking

for leave to renew and reargue (ECF Nos. 9-21, 9-22), which the

court denied (ECF No. 9-24.) Petitioner then sought leave to

appeal to the Appellate Division (ECF No. 9-25), which the state

opposed (ECF Nos. 9-26, 9-27, 9-28, 9-29, 9-30). That application

was denied (ECF No. 9-31). Petitioner then sought leave to appeal

in the Court of Appeals (ECF No. 9-32), which the state also

opposed (ECF No. 9-33). Petitioner’s application for leave to

appeal was summarily denied (ECF No. 9-34). This Petition

followed.

V. Petitioner’s § 2254 Petition

On March 19, 2020, Petitioner timely filed his § 2254

Petition by which he seeks to vacate or set aside his conviction

and sentence. (Petition.) Petitioner raises four claims, which

he argues warrants habeas relief, i.e.: (1) his guilty plea was

procured by fraud and prosecutorial misconduct; (2) the State PRS

Statute is unconstitutional on its face and as applied to him; (3)

he is actually innocent of the crimes to which he pleaded guilty;

and (4) he received ineffective assistance of counsel because his

attorney failed to advise him of various collateral consequences

of his guilty plea. (Id. at 1-20.)

Respondent argues all Petitioner’s claims should be

denied as they are either procedurally barred or are wholly without

merit. (Opp’n.) In reply, Petitioner primarily addresses

Respondent’s position that the plea was knowing, voluntary and

intelligent by reiterating his insistence that if he knew about

the SORA consequences, he would not have entered a guilty plea.

(Reply at 1-9.) Petitioner is no longer incarcerated, but is

presently on post-release supervision. (See ECF No. 34.)

Legal Standards

I. Section 2254 Standard of Review

“It is well established that a federal habeas court does

not sit to correct a misapplication of state law, unless such

misapplication violates the Constitution, laws, or treaties of the

United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.

2002). Pursuant to 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

a habeas court, when considering a claim that was decided on the

merits in a state court proceeding, may grant relief only if the

state court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

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

“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).

The 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.” Williams v. Taylor, 529 U.S. 362, 411 (2000); see

also McBride v. Perez, No. 13-CV-4792, 2015 WL 5245072, at *8

(S.D.N.Y. June 25, 2015) (“‘[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws

or treaties of the United States.’”) (quoting Estelle v. McGuire,

502 U.S. 62, 67-68 (1991)). The requirements set forth by the

AEDPA are strictly construed and, by design, establish a barrier

to federal habeas relief founded upon the principle that “[s]tate

courts are adequate forums for the vindication of federal rights”

and are “presumptively competent[] to adjudicate claims arising

under the laws of the United States.” Burt v. Titlow, 571 U.S.

12, 19 (2013) (internal quotation marks and citation omitted).

Under § 2254(d)(1), a state court decision is considered

“contrary to” federal law if it either “applies a rule that

contradicts the governing law set forth in [the Supreme Court’s]

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 [the Supreme Court]

precedent.” Williams, 529 U.S. at 405-06. “‘Clearly established

Federal law’ means ‘the holdings, as opposed to the dicta, of [the

Supreme] Court's decisions as of the time of the relevant state-

court decision.’” Green v. Travis, 414 F.3d 288, 296 (2d Cir.

2005) (quoting Williams, 529 U.S. at 412) (alteration in original).

An “unreasonable application” of federal law occurs where the state

court “correctly identifies the governing legal rule but applies

it unreasonably to the facts of a particular prisoner’s case.”

Williams, 529 U.S. at 407-08. “The critical point is that relief

is available under § 2254(d)(1)’s unreasonable application clause

if, and only if, it is so obvious that a clearly established rule

applies to a given set of facts that there could be no fairminded

disagreement on the question.” White v. Woodall, 572 U.S. 415,

427 (2014) (internal quotation marks and citations omitted).9

II. Procedural Bars to Federal Habeas Review

A. Failure to Exhaust

A habeas petition will not be reviewed by the district

court unless “the applicant has exhausted the remedies available

9 As Miller does not appear to invoke the second subsection of

§ 2254(d)--the “unreasonable determination of the facts”--the

Court need not address that applicable legal standard.

in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

Exhaustion of the state remedies requires a petitioner to “fairly

presen[t] federal claims to the state courts in order to give the

State the opportunity to pass upon and correct alleged violations

of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365 (1995) (internal quotation marks and citation omitted;

alteration in original). The state courts must have had “the first

opportunity to hear the claim sought to be vindicated in a federal

habeas proceeding,” for there to have been exhaustion of state

remedies. Picard v. Connor, 404 U.S. 270, 276 (1971). To

accomplish this, a state prisoner must “present the state courts

with the same claim he urges upon the federal courts.” Id.

Because the exhaustion doctrine is designed to

give the state courts a full and fair

opportunity to resolve federal constitutional

claims before those claims are presented to

the federal courts . . . state prisoners must

give the state courts one full opportunity to

resolve any constitutional issues by invoking

one complete round of the State's established

appellate review process.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, a

defendant must exhaust his claims by seeking leave to appeal in

the New York Court of Appeals. See Morgan v. Bennett, 204 F.3d

360, 369 (2d Cir. 2000).

B. State Procedural Requirements

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.” Davila v. Davis, 582 U.S. 521, 527 (2017); see

also Jimenez v. Walker, 458 F.3d 130, 136 (2d Cir. 2006)

(“[F]ederal courts may not review the judgment of a state court

that ‘rests on a state-law ground that is both ‘independent’ of

the merits of the federal claim and an ‘adequate’ basis for the

court’s decision.’” (quoting Harris v. Reed, 489 U.S. 255, 260

(1989))). This principle serves to “ensure that state-court

judgments are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our system of

federalism.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

A state procedural rule is adequate if it is “firmly

established and regularly followed by the state in question.”

Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (internal quotation

marks and citation omitted). To be independent, the “state court

must actually have relied on the procedural bar as an independent

basis for its disposition of the case” by “‘clearly and expressly’

stat[ing] that its judgment rests on a state procedural bar.”

Harris, 489 U.S. at 261-63, 265 n.12. Further, a state court’s

reliance on an independent and adequate procedural bar forecloses

habeas review even if the state court also rejected the claim on

the merits in the alternative. See, e.g., id. at 264 n.10

(explaining “a state court need not fear reaching the merits of a

federal claim in an alternative holding” where it “explicitly

invokes a state procedural bar rule as a separate basis for [its]

decision” (emphasis in original)); Fama v. Comm’r of Corr. Servs.,

235 F.3d 804, 810 n.4 (2d Cir. 2000) (“[W]here a state court says

that a claim is ‘not preserved for appellate review’ and then ruled

‘in any event’ on the merits, such a claim is not preserved.”);

Nowakowski v. New York, No. 13-CV-3709, 2018 WL 6421056, at *6

(E.D.N.Y. Dec. 6, 2018) (noting “[t]he bar applies even where the

state court has also ruled in the alternative on the merits of the

federal claim” (internal quotation marks and citation omitted)).

Notwithstanding the existence of a procedural bar to a

claim under state rules, “a federal court may still review the

claim on the merits [1] if the petitioner can demonstrate both

cause for the default and resulting prejudice, or [2] if he can

demonstrate that the failure to consider the claim will result in

a miscarriage of justice.” Petronio v. Walsh, 736 F. Supp. 2d

640, 654 (E.D.N.Y. 2010) (citing Coleman v. Thompson, 501 U.S.

722, 749–50 (1991)). As to the cause and resulting prejudice

avenue, a “[c]ause may be demonstrated with ‘a showing that the

factual or legal basis for a claim was not reasonably available to

counsel, . . . or that ‘some interference by state officials’ made

compliance impracticable, . . . [or that] the procedural default

is the result of ineffective assistance of counsel.’” Bossett v.

Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray v. Carrier,

477 U.S. 478, 488 (1986) (citations omitted)).10 As to prejudice,

a petitioner must demonstrate more than “a possibility of

prejudice,” but rather that the errors below “worked to his actual

and substantial disadvantage.” Murray, 477 U.S. at 494 (internal

quotation marks and citation omitted; emphasis in original).

“The miscarriage of justice exception is concerned with

actual as compared to legal innocence.” Calderon v. Thompson, 523

U.S. 538, 559 (1998) (internal quotation marks and citation

omitted). By clear and convincing evidence, the petitioner must

demonstrate he is actually innocent, and must support his claims

“with new reliable evidence--whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence--that was not presented at trial.” Schlup v. Delo, 513

U.S. 298, 324 (1995). In the present case, Petitioner brings a

freestanding actual innocence claim, for which the standard is

higher than the one in Schlup. (See infra DISCUSSION, Part III.)

***

10

Although ineffective assistance of counsel may, in some

circumstances, constitute cause for a default, the claim for

ineffective assistance “generally must ‘be presented to the state

courts as an independent claim before it may be used to establish

cause for a procedural default.’” Edwards v. Carpenter, 529 U.S.

446, 452 (2000) (quoting Murray, 477 U.S. at 489); see also Pitre

v. Griffin, No. 16-CV-6258, 2016 WL 7442653, at *11 (E.D.N.Y. Dec.

26, 2016) (“[T]he ineffective assistance claim must itself have

been exhausted in the state court.”).

Finally, “[t]he Court is mindful that, as with all pro

se pleadings, a habeas petition filed pro se is to be construed

liberally.” Crowder v. Ercole, No. 09-CV-3401, 2012 WL 5386042,

at *2 (E.D.N.Y. Nov. 2, 2012) (citation omitted); see also Alonge

v. Chappius, No. 12-CV-542, 2019 WL 1642449, at *6 (E.D.N.Y. Apr.

16, 2019) (“[T]he court must interpret petitioner’s pleadings as

raising the strongest arguments they suggest”). However, pro se

status “does not exempt a party from compliance with relevant rules

of procedural and substantive law.” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks

and citation omitted).

DISCUSSION

The Court addresses each ground upon which Petitioner

challenges his state court conviction, i.e.: (1) his guilty plea

was not voluntary, knowing and intelligent because it was procured

by fraud and prosecutorial misconduct; (2) the State PRS Statue is

unconstitutional on its face and as applied to him; (3) he is

actually innocent of the crimes of which he was convicted; and (4)

he received ineffective assistance of counsel because his attorney

failed to advise him of all collateral consequences of pleading

guilty. (Petition at 1-19.)11

11 To the extent Petitioner requests an evidentiary hearing, after

a thorough review of Petitioner’s submissions and the state court

record and transcripts, the Court finds that, in accordance with

Rule 8 of the Rules Governing Section 2254 Cases, an evidentiary

I. Ground One: Petitioner’s Guilty Plea and His Claim of

Prosecutorial Misconduct

As he did in his Section 440 Motion, here, Petitioner

claims his plea--and, therefore, subsequent conviction--was

procured by prosecutorial misconduct. (Petition at 5-6; cf.

Section 440 Motion at ¶¶ 23-34, 48, 53-55.) Petitioner’s argument

is primarily premised upon two documents: the purported C.S.

Letter asserting the assigned prosecutor “knows that the witness

lied in the sex abuse case” (id. at 9); and, the D.A. Memo,

allegedly authored by the lead case prosecutor stating the Victim

consumed “a handful of pills” on his own before meeting with

Petitioner. (Id. at 8.) In opposition, Respondent argues the

state court properly determined this claim was procedurally

barred; as such, the claim should not be reviewed by this Court.

(Opp’n at 2-6.)

Indeed, in ruling on this claim in its Section 440

Decision, the state court first highlighted Miller acknowledged he

had been in possession of the C.S. Letter alleging prosecutorial

misconduct “as early as December 13, 2012” and “had multiple

opportunities, including during his plea allocution, to place on

the record his concerns about the [C.S. L]etter and counsel’s

hearing is not warranted to address Petitioner’s claims. See

Richardson v. Wolcott, No. 6:20-CV-6178, 2023 WL 4999832, at *8

(W.D.N.Y. Aug. 4, 2023). Hence, Petitioner’s hearing request is

denied.

treatment of the [C.S. L]etter [but] failed to do so.” (Section

440 Decision at 2-3.) Therefore, relying upon C.P.L.

§ 440.10(3)(a), the subsection of the statute authorizing a court

to deny a Section 440 motion where a defendant unjustifiably failed

to raise a relevant issue or matter of which he knew before

sentencing when it could have readily been addressed below and

thereafter have provided an adequate basis for review, the court

ruled this claim was barred on procedural grounds.12 (Id. at 3.)

The court continued that, even if it were to consider the merits

of this claim, Miller’s Section 440 Motion would be denied

observing: there is an issue as to whether the C.S. Letter was

genuine; assuming said Letter was genuine, Miller was aware of it

well before his plea, thereby “undermining any serious contention

that his plea[] was induced by fraud or misconduct”; Miller’s

counsel “might have very prudently determined” said C.S. Letter

12 In relevant part, C.P.L. § 440.10 (3)(a) provides, the state

court may deny a Section 440 motion when:

Although facts in support of the ground or

issue raised upon the motion could with due

diligence by the defendant have readily been

made to appear on the record in a manner

providing adequate basis for review of such

ground or issue upon an appeal from the

judgment, the defendant unjustifiably failed

to adduce such matter prior to sentence and

the ground or issue in question was not

subsequently determined upon appeal.

N.Y. C.P.L. § 440.10 (3)(a).

was of limited value; and, “the advantageous plea agreement into

which [Miller] entered was better advised.” (Id. at 3-4.)

“The Second Circuit has recognized New York’s

application of C.P.L. § 440.10(3)(c) as an adequate and independent

state procedural bar.” Evans v. Giambruno, No. 09-CV-6503, 2010

WL 983522, at *5 (W.D.N.Y. Mar. 16, 2010) (citing Murden v. Artuz,

497 F.3d 178, 191-194 (2d Cir.2007) (finding § 440.10(3)(c)

“adequate” to serve as procedural bar to federal habeas review of

merits of claim of ineffective assistance of counsel given: state

court referred explicitly to rule when dismissing claim; state

courts regularly applied rule to deny claims that could have been,

but were not, raised on previous motions to vacate; defendant did

not substantially comply with rule; and, enforcement of rule served

legitimate governmental interests)). Having examined the

underlying Section 440 Motion papers and the state court’s Section

440 Decision, this Court agrees with Respondent that Petitioner’s

guilty-plea-claim is barred from federal habeas review since the

state court’s decision regarding that claim was properly based

upon C.P.L. § 440.10 (3)(a), an adequate and independent state

procedural rule. See Evans, 2010 WL 983522, at *5 (“Because the

state court expressly relied on C.P.L. § 440.10(3)(c) in dismissing

petitioner’s judicial bias claim, it is not reviewable by this

Court.”); see also, e.g., Young v. McGinnis, 411 F. Supp. 2d 278,

331 (E.D.N.Y. 2006) (finding, where state court found petitioner’s

claim was barred from review based upon § 440.10 (3)(a), because

“state court invoked a state procedural bar to the review of the

merits of petitioner’s claim--an independent and adequate state

ground--[the federal district court] need not review the merits of

petitioner’s claims” (citing state cases relying upon § 440.10

(3)(a))); Collins v. Conway, No. 04-CV-4672, 2006 WL 1114053, at

*3 (S.D.N.Y. Apr. 26, 2006) (“Petitioner’s claims are procedurally

barred because these claims were raised by Petitioner in his NYCPL

§ 440.10 motion, and were dismissed on procedural grounds pursuant

to NYCPL §§ 440.10(3)(a) and (c), which federal courts in this

circuit have found to be adequate and independent procedural bars

for the purposes of federal habeas review.” (footnote omitted;

collecting cases)).

Moreover, because Petitioner failed to provide an

adequate cause for this procedural default and failed to explain

the prejudice he would suffer if the Court does not review the

claim, the Court declines to review the merits of this claim. (See

supra at 15-16 (discussing when a court may still review a

petitioner’s claim on the merits where, below, the state court

ruled said claim was procedurally barred).) Indeed, given his

conceded knowledge of the purported C.S Letter and the D.A. Memo,

Petitioner was positioned to raise them with the trial court at

several stages of the litigation. See, e.g., Collins, 2006 WL

1114053, at *3. To the extent Petitioner attempts to cast blame

on his counsel for failing to raise the C.S. Letter or the D.A.

Memo earlier and not filing a motion based on the two documents

(see Petition at 5-6), said attempt is unavailing; by Petitioner’s

own statements in his Section 440 Motion that, after discussing

the matter with him, counsel “was leery of presenting them because

he had no way of authenticating them,” Petitioner has eviscerated

his claim.13 (Section 440 Motion, ¶ 47.) In any event, counsel

is not deemed ineffective for declining to make frivolous motions

and to put forward evidence he cannot determine to be authentic.

See Warren v. United States, No. 10-CV-4114, 2012 WL 3861231, at

*9 (E.D.N.Y. Aug. 30, 2012) (finding counsel not ineffective for

failing to make groundless motion).

Nor is Petitioner able to establish prejudice by this

Court’s non-review of this claim. Since the alleged prosecutorial

misconduct pre-dated his guilty plea, said claim is extinguished

by Petitioner’s knowing, intelligent and voluntary plea. See

Alston v. Ricks, No. 01-CV-9862, 2003 WL 42144, at *7 (S.D.N.Y.

Jan. 7, 2003) (“[A] guilty plea extinguishes the ability of a

habeas petitioner to raise a claim of misconduct before a grand

13 Likewise, the Court finds Petitioner’s position here to be

spurious when considering his zealous participation in his

underlying criminal case, including, for instance, his

interjection of factual corrections during his plea allocution.

Thus, as the state court astutely observed, Petitioner was

well-aware of, and could have raised, the C.S. Letter and D.A.

Memo at various points during his criminal case. This Court will

not entertain his late attempts to do so now.

jury.”). Indeed, during his plea, Petitioner not only allocuted

to the crimes of which he was accused, he provided details of how

the crimes were committed, including correcting the prosecutor

regarding how, exactly, he assaulted the Victim. (Plea Tr. at 17-

18, 20.) Petitioner’s sworn unambiguous statements during his

plea allocution, as well as his voluntarily providing details

regarding and correcting prosecutorial statements about the

commission of his assault, which clearly demonstrates Petitioner’s

confidence and ability to self-advocate and to bring issues to the

court’s attention, stands in stark contrast to his inexplicable

six-year-long silence regarding alleged pre-plea prosecutorial

misconduct; it eviscerates any contention Petitioner would be

prejudiced by this Court’s non-review of his claim.

Finally, this Court’s non-review of this procedurally

barred claim will not result in a fundamental miscarriage of

justice, which is available only where the alleged constitutional

violation likely caused a conviction of an “actually innocent”

person. See Schlup, 513 U.S. at 321-22; (see also supra at 16

(discussing the miscarriage-of-justice exception)). One who makes

such a claim has a high burden to meet and such claims are “rarely

successful.” Id. at 324.

To begin, Petitioner’s claim of actual innocence is

contradicted by his unequivocal admissions of guilt which he

provided under oath during the plea proceeding and his valid guilty

plea. Cf. Doe v. Manfee, 391 F.3d 147, 165-66 (2d Cir. 2013)

(holding district court erred when it considered petitioner’s

habeas testimony as reliable evidence of actual innocence given

petitioner’s prior admission of guilt in state court); see also

Raymond v. New York, No. 17-CV-6383, 2019 WL 168561, at *12

(E.D.N.Y. Jan 11, 2019) (rejecting petitioner’s claim of actual

innocence where claim was belied by his sworn acknowledgement of

criminal conduct at guilty plea); Granados v. Singas, No.

16-CV-2212, 2016 WL 6205800, at *6 (E.D.N.Y. Oct. 24, 2016)

(stating petitioner’s claim of actual innocence was “especially

unconvincing” after petitioner admitted his guilt to police and

later at his guilty plea).

Furthermore, Petitioner has not “support[ed] his

allegations of constitutional error with new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence--that was not

presented [earlier].” Schlup, 513 U.S. at 324. Rather, as stated,

supra, the documents he proffers in support of his prosecutorial

misconduct allegations are wanting, being unauthenticated and,

likely, ingenuine. For example, as Respondent aptly highlights,

the D.A. Memo contains multiple facial deficiencies. (Opp’n at 9

(identifying multiple grammatical and syntactic errors; calling

attention to D.A. Memo being printed on a Nassau County form (last

revised in 1984) and not, as would be appropriate, on a District

Attorney’s Office form).) Moreover, Respondent provided the Court

with an affidavit from the prosecutor who purportedly authored the

D.A. Memo, who unequivocally disavowed authoring said Memo or

having any knowledge of the facts alleged in it. (Rosenbaum Aff.,

Ex. 1, ECF No. 8-1, attached to Opp’n.) And, as to the C.S.

Letter, Affiant Rosenbaum further denies the allegations in said

Letter, reiterating she was--and remains--unaware of any false

evidence having been presented to the grand jury in Petitioner’s

underlying criminal case and is unaware of the existence of any

alleged exculpatory evidence. (Id.) Hence, Petitioner has failed

woefully to meet his high burden warranting review of his

procedurally barred claim.

II. Ground Two: Alleged Unconstitutionality of the State PRS

Statute

Petitioner next claims he is entitled to habeas relief

because the State PRS Statute is unconstitutional. (Petition at

12.) As he did in state court, Petitioner contends the State PRS

Statute, N.Y.P.L. § 70.45, violates due process, separation of

powers, and the Sixth and Fourteenth Amendments; thus, as a

consequence, the imposition of his 10-year post-release

supervision is unconstitutional. (See Appellant’s Br.14 at 6-14.)

14 Petitioner incorporates by reference the arguments he raised

in state court. (See Petition at 12 (citing, inter alia, Appellant

Br.).)

Petitioner relies upon Apprendi v. New Jersey, 530 U.S. 466 (2000),

in support of his position. (See id.) The Court is unpersuaded.

As an initial matter, in state court, both on direct

appeal and in his Section 440 Motion, Petitioner advanced his

unconstitutionality argument relying upon Apprendi. (See id.; see

also 440 Motion Support Memo at ¶¶ 77-78.) Said reliance was to

no avail. First, the Appellate Division found Miller’s

unconstitutionality claim was precluded by his valid appeal

waiver; therefore, it declined to reach its merits. See Miller,

166 A.D.3d at 814. However, finding it was not bound by

Petitioner’s appeals waiver, the New York Supreme Court considered

Miller’s unconstitutionality claim on the merits and rejected it;

hence, it refused to set aside Miller’s sentence, inclusive of the

post-release supervision. (Section 440 Decision at 5.)

Thereafter, both the Appellate Division and Court of Appeals

declined Petitioner’s requests for review. (ECF Nos. 9-31, 9-34.)

Given this relevant procedural background, this Court’s

review is limited to determining whether the state courts’

determinations “resulted in a decision that was contrary to, or

involved in an unreasonable application of, clearly established

Federal Law, as determined by the Supreme Court of United States.”

28 U.S.C. § 2254(d)(1). Such limited review demonstrates no such

decision.

Petitioner’s reliance upon Apprendi is misplaced; it

does not support his theory that the State PRS Statute is

unconstitutional. In Apprendi, the Supreme Court held, “[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to the jury.” 350 U.S. at 490 (emphases added).

Importantly, it did not call into question “the authority of a

judge to exercise broad discretion in imposing a sentence within

a statutory range.” United States v. Booker, 543 U.S. 220, 233

(2005) (emphases added).

The subject State PRS Statute provides that when a court

imposes a determinate sentence, like the one imposed upon

Petitioner, “it shall in each case state not only the term of

imprisonment, but also an additional period of post-release

supervision as determined pursuant to this article.” N.Y.P.L.

§70.45(1). As is relevant to Petitioner, “[t]he period of post-

release supervision for a determinate sentence imposed for a felony

sex offense . . . shall be not less than ten years nor more than

twenty-five years whenever a determinate sentence of imprisonment

is imposed pursuant to either section 70.04, section 70.06, or

subdivision five of section 70.80 of this article upon a conviction

of a class B violent or non-violent felony sex offense as defined

in section 70.80 of this article.” Penal Law § 70.45(2-a)(i).

Therefore, since the State PRS Statute does not provide a

sentencing court with discretion to impose a sentence above the

statutory range, Apprendi is inapplicable. See People v.

Jefferson, 70 A.D.3d 721, *1 (2d Dep’t 2010) (rejecting as without

merit defendant’s argument that N.Y.P.L. § 70.45 is

unconstitutional since the statute “requires a sentencing court to

impose a period of postrelease supervision as part of a determinate

sentence” (citing, inter alia, Apprendi)); see also White v. Keane,

969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional

issue is presented where . . . the sentence is within the range

prescribed by state law.”).

To the extent Petitioner further argues the State PRS

Statute is unconstitutional as applied to him, that argument is

without merit. As highlighted, supra, Petitioner: pleaded guilty

to multiple felony counts, including a criminal sexual act in the

first degree, a class B felony, in violation of Penal Law § 130.50;

was adjudicated as a second felony offender; and, as required under

the applicable state law, was sentenced to a determinate term of

imprisonment of eight to 25 years on the highest count, followed

by a period of post-release supervision of not less than ten years,

i.e.,. nine years of imprisonment on the top count, followed by 10

years of post-release supervision. See N.Y.P.L. §§ 60.05(6),

60.13, 70.00(6), 70.06(6)(a), 70.80(6), 70.45(2-a)(i); (see also.

Sent’g Tr. at 10:1-9). Of import: The statute under which

Petitioner was sentenced did not contain any language permitting

the court to exceed the statutory requirements by imposing any

“enhancements” or by making factual findings; nor did the state

court below engage in any such conduct. Therefore, the state

court’s rejection of Petitioner’s constitutionality challenge to

the State PSR Statute was not an unreasonable application of

established federal law. See White, 969 F.2d at 1383. The statute

is not unconstitutional on its face or in the manner to which it

was applied to Petitioner.

To the extent Petitioner raises other arguments in

support of his unconstitutionality claim, the Court finds them to

be without merit. First, as Respondent aptly argues, Miller’s

“argument that if he violates the terms of his post-release

supervision, he faces a sentence which exceeds the statutory

maximum on his C and D felony convictions is incorrect,

hypothetical, and academic.” (Opp’n at 24.) For the reasons

articulated by Respondent (see id. at 24-25 (explaining: (1)

Miller’s “maximum potential sentence is calculated by adding the

determinate term of imprisonment with the period of postrelease

supervision”; (2) no violation has occurred; and (3) Miller’s

“aggregate prison and post-release supervision sentence does not

exceed the statutory maximum prison term, much less the combined

statutory maximum”)), which the Court adopts and incorporates

herein, the Court agrees. Second, Miller’s contention that the

State PRS Statute violates the separation of powers doctrine is

unavailing because it does not raise a federal claim;15 the Court

concurs with Respondent that in state court, Petitioner made it

“explicitly clear he was invoking the separation of powers doctrine

under the New York State Constitution and not the United States

Constitution.” (Id. at 25 (citing Appellate Br. at 12-13).)

Furthermore, because the Supreme Court has never held the State

PRS Statute violates the separation of powers doctrine or due

process in general, there is no “clearly established Federal law”

to support this claim or warrant Miller’s requested habeas relief.

(Id. (further collecting cases of lower federal courts uniformly

finding State PRS Statute—or other similar supervised released

statutes—do not violate the separation of powers doctrine).)

Third, Petitioner’s administration-of-post-release-supervision

argument is legally flawed. As Respondent explains: “A defendant’s

determinate prison sentence is interrupted by the commencement of

post-release supervision and ‘held in abeyance until the

successful completion of the period of post-release supervision or

the person’s return to the custody of [DOCCS], whichever occurs

first.’” (Id. at 26 (quoting N.Y.P.L. § 70.45(5)(a)).)

Accordingly, “a defendant supervised under post-release

15 And, to the extent Petitioner argues the State PRS Statute

violates the New York Constitution, such a claim is not properly

before this Court since is does not raise a federal question. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the

province of a federal habeas court to examine state-law

determinations on state-law questions.”).

supervision . . . has not served his full prison term when he is

released to post-release supervision.” (Id.) Therefore,

supervision by the N.Y.S. Department of Corrections and Community

Supervision (“DOCCS”) is proper and does not offend a defendant’s

due process rights. In sum, having considered all his arguments

in support of his second ground for habeas relief, i.e., the

purported unconstitutionality of the State PRS Statute, the Court

finds Petitioner is unable to establish his entitlement to the

requested relief.

III. Ground Three: The Claim of Actual Innocence

Petitioner next argues he should have been permitted to

argue his actual innocence. (Petition at 13-14.) Respondent

retorts this is an unexhausted claim,16 but, in any event, is not

a cognizable habeas claim and is meritless. (Opp’n at 14.)

Having reviewed the state court record, the Court agrees

with Respondent that Petitioner did not adequately raise his actual

innocence claim and, therefore, failed to exhaust it. (See Opp’n

16 “[T]o properly exhaust his freestanding actual innocence claim,

because the claim is based on matters dehors the record,

[Petitioner] was required to raise the claim in a motion to vacate

his judgment of conviction pursuant to section 440.10 of the

Criminal Procedure Law.” (Opp’n at 15 (citing Campos v. Smith,

No. 15-CV-6580, 2017 WL 1025850, at *2 (E.D.N.Y. Mar. 15, 2017)));

see also generally People v. Hamilton, 115 A.D.3d 12, 13 (N.Y.

App. Div. 2d Dep’t 2014) (“[A] freestanding claim of actual

innocence may be addressed pursuant to CPL 440.10(1)(h), which

provides for vacating a judgment which was obtained in violation

of an accused’s constitutional rights.”).

at 15-16 (asserting, inter alia, “there is no reasonable

construction” of Miller’s Section 440 Motion “from which one can

discern an actual innocence claim” or which were “sufficient to

alert the state Supreme Court that he was asserting an actual

innocence claim”).) Cf. Bonsley v. United States, 523 U.S. 614,

623-24 (1998) (holding actual innocence claim means factual

innocence and not mere legal insufficiency); People v. Fraser, 165

A.D.3d 697 (2d Dep’t 2018) (same). Nonetheless, and

notwithstanding his failure to “exhaust the remedies available in”

state court, because Petitioner’s actual innocence claim lacks

merit, as discussed below, the Court declines to stay the Petition

(holding it in abeyance for Miller to exhaust this claim in state

court) and, instead, denies his request for habeas relief. 28

U.S.C. § 2254(b)(2).

It is well-established that a freestanding, substantive

federal constitutional claim of actual innocence has not been

recognized by the Supreme Court or by this Circuit. See District

Attorney’s Office for Third Judicial District v. Osbourne, 557

U.S. 52, 71 (2009) (“Whether [a federal habeas right to be released

upon proof of actual innocence] exists is an open question.”); see

also Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (holding

actual innocence argument plays a “‘procedural, not substantive

role in [a habeas] case’” (quoting Rivas v. Fischer, 687 F.3d 514,

541 (2d Cir. 2012))); Bryant v. Thomas, 725 F. App’x 72, 73 (2d

Cir. 2018); Perez v. Warden, No. 16-CV-08251, 2018 WL 3421383, at

*6 (S.D.N.Y. Jan. 8, 2018) (denying petitioner’s freestanding

actual innocence claim as not cognizable in a federal habeas

claim). Yet, even if that were the case, Petitioner would have to

meet a “high standard” to advance his actual innocence claim.

Osbourne, 557 U.S. at 71 (recognizing “the difficult questions

such a right would pose and the high standard any claimant would

have to meet” in advancing an actual innocence claim); see also

Castellanos v. Kirkpatrick, No. 10-CV-5075, 2015 WL 7312908, at *8

(E.D.N.Y. Nov. 18, 2015) (“Even assuming arguendo the existence of

a freestanding federal claim of actual innocence, the Supreme Court

suggested that the threshold showing for such a claim would be

extraordinary high.” (internal quotations and citation omitted)).

However, because the Court has already determined Petitioner’s

actual innocence claim fails to meet the lower Schlup “gateway”

standard applicable to procedural actual innocence (see supra at

23-25), it necessarily follows Petitioner’s freestanding actual

innocence claim, subject to a higher standard, must also fail. See

Fabers v. Lamana, No. 18-CV-2399, 2020 WL 1875288, at *24 (E.D.N.Y.

Apr. 15, 2020) (rejecting petitioner’s freestanding actual

innocence claim where his proof failed to satisfy the lower gateway

Schlup standard).

Therefore, while Petitioner’s freestanding actual

innocence claim is unexhausted, this Court declines to stay the

Petition to permit Petitioner to exhaust same because the claim is

without merit. Accordingly, the Court rejects Petitioner’s third

ground for granting habeas relief.

IV. Ground Four: Ineffective Assistance of Counsel Claim

To establish deficient performance, a petitioner must

prove “counsel’s representation fell below an objective standard

of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688

(1984). Even if a petitioner can show deficient performance, he

must also establish prejudice--that is, “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

Further, as a general principle, there is “a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. After all, “there are

countless ways to provide effective assistance in any given case,”

and “[e]ven the best criminal defense attorneys would not defend

a particular client in the same way.” Id.

In the context of a habeas petition, in reviewing the

totality of the evidence, the habeas court must “use a ‘doubly

deferential’ standard of review that gives both the state court

and the defense attorney the benefit of the doubt.” Burt v.

Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen v. Pinholster, 563

U.S. 170, 190 (2011)). The Supreme Court has instructed “the

question is not whether counsel’s actions were reasonable . . .

[rather, t]he question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”

Harrington v. Richter, 562 U.S. 86, 105 (2011). Bearing this

deferential standard in mind, it is unsurprising that “the great

majority of habeas petitions that allege constitutionally

ineffective counsel” fail. Lindstadt v. Keane, 239 F.3d 191, 199

(2d Cir. 2001).

Petitioner claims he was denied effective assistance of

counsel. His list of alleged instances of constitutionally

deficient performance by his counsel include counsel’s not: (1)

bringing evidence of prosecutorial misconduct to the state court’s

attention (hereafter, the “Misconduct Claim”);17 (2) consulting

with an expert regarding on the effects of drugs administered to

Miller’s Victim (hereafter, the “Expert Claim”); and (3) advising

Petitioner of the collateral consequences of pleading guilty to

the various counts of sexual assault (hereafter, the “Consequences

Claim”; collectively, with the Misconduct and Expert Claims, the

“Ineffective Claims”). (Petition at 5-6.) These same Ineffective

Claims were raised on direct appeal (see Appellant’s Br. at 15-

17), and in Petitioner’s Section 440 Motion (see Section 440 Motion

at ¶¶ 42-78) and were rejected. The Appellate Division held that

17 Petitioner’s Misconduct Claims is also addressed supra at

DISCUSSION, Part I, in relation to Petitioner’s claim that his

plea and conviction were invalid due to the purported prosecutorial

misconduct.

because the Ineffective Claims concerned matters outside the

record, it was more appropriately explored via a Section 440

motion. See Miller, 166 A.D.3d at 813. In the context of deciding

Petitioner’s Section 440 Motion, the state court addressed the

merits of the Ineffective Claims and found them to be without

merit. (See Section 440 Decision at 4-5.) This Court agrees;

employing the “doubly deferential” standard applicable in federal

habeas review, see Cullen, 563 U.S. at 189, it finds the state

court was correct in concluding counsel’s performance did not fall

below the generally accepted professional standards and did not

prejudice Petitioner.

Moreover, as Respondent astutely argues, “the record

amply demonstrates that counsel zealously advocated for his

client.” (Opp’n at 30.) Indeed:

[m]ost significantly, even though [Miller] was

facing three separate indictments, two of

which carried a top count of a class B felony,

counsel miraculously persuaded the court to

offer a plea whereby [Miller]—a second felony

offender—would receive only an aggregate nine-

year prison term on all three cases, even

though the prosecutor had recommended eighteen

years in prison. Notably, had [Miller] gone

to trial on the instant indictment and been

convicted of the top count, he faced a prison

term of up to twenty-five years in prison.

See Penal Law § 70.06(6)(a). Further, if

[Miller] had proceeded to trial on all three

cases and been convicted of the top count in

each, he faced an actual prison term of up to

thirty years. See Penal Law § 70.30(1)(e).

Under these circumstances, counsel’s

performance was the hallmark of meaningful

representation.

(Id. (citing Belle v. Superintendent, No. 11-CV-0657, 2013 WL

992663, at *13 (W.D.N.Y. Mar. 13, 2013) (petitioner’s ineffective

assistance claim belied by highly favorable plea)).) Again, the

Court concurs. Given the highly favorable plea deal secured by

counsel, Petitioner’s arguments in support of his ineffective

assistance claim are inefficacious. The Court elaborates, below.

As an initial matter, by pleading guilty, Petitioner

waived his challenges to counsel’s representation which challenges

were unrelated to his plea. See Zamani v. Attorney General, No.

18-CV-1700, 2018 WL 6303820, at *9 (E.D.N.Y. Nov. 30, 2018)

(finding, by his knowingly, voluntarily, and intelligently

entering a guilty plea, petitioner “has waived his right to

challenge aspects of his representation that are unrelated to the

validity of the guilty plea itself”); see also, e.g., Parisi v.

United States, 529 F.3d 134, 138 (2d Cir. 2008) (“A defendant who

pleads guilty unconditionally while represented by counsel may not

assert independent claims relating to events occurring prior to

the entry of the guilty plea.” (citing United States v. Coffin, 76

F.3d 494, 497 (2d Cir.1996))).

As to the Misconduct Claim: Assuming arguendo no waiver,

Petitioner fails to make out an ineffective assistance claim based

upon counsel’s refusal to move for prosecutorial misconduct. It

would have been improper for counsel to have so moved given the

questionable authenticity of the C.S. Letter and D.A. Memo; to do

so would have been to improperly “assist a client in presenting

false evidence to the court.” People v. Andracles, 4 N.Y.3d 355,

360 (2005). Indeed, in his Section 440 Motion, Petitioner admitted

discussing with his counsel the filing of such a motion, who

declined to do so because it would have been frivolous. (See

Section 440 Motion ¶ 147; see also supra at 22.) Nor did counsel’s

failure to bring the purported prosecutorial misconduct motion

prejudice Petitioner as it had no chance of succeeding. See

Aparicio v. Artuz, 269 F. 3d 78, 99 (2d Cir. 2001) (“The failure

to include a meritless argument does not fall outside the “wide

range of professionally competent assistance” to which Petitioner

was entitled.” (citing Jameson v. Coughlin, 22 F. 3d 427, 429-30

(2d Cir. 1994); further citation omitted); see also id. at 99 n.10

(holding, where underlying claim is meritless, counsel is not

ineffective for failing to raise it).

As to the Expert Claim: Again, since this failure to

retain an Expert Claim does not concern the validity of Miller’s

knowing and voluntary guilty plea, said Claim is waived by the

entry of the valid guilty plea. See Parisi, 529 F. 3d at 138.

Further, “even if [Petitioner]’s allegation that counsel did not

consult a drug expert before [Petitioner] pled guilty were true,

[Petitioner] fails to allege, much less establish, that but for

this alleged error, he would not have pleaded guilty.” (Opp’n at

31 (citing Hill, 474 U.S. 52, 59 (1985)).) Similarly, Petitioner

has not articulated “how consulting with an expert would have

produced a different outcome; instead, he merely alleges that the

information would have allowed him to ‘make an informed decision

as to whether the [V]ictim would survive a credibility contest at

trial.’” (Id. at 31-32.) Hence, Petitioner fails to advance a

Strickland ineffective assistance claim on the basis that

counsel’s assistance was deficient by failing to retain a drug

expert. Indeed, it is well-settled that there are “countless ways

to provide effective assistance in any given case.” Harrington,

562 U.S. at 106-07 (quoting Strickland, 466 U.S. at 689). Thus,

“[r]are are the situations in which the ‘wide latitude counsel

must have in making tactical decisions’ will be limited to any one

technique or approach.” Id. (quoting Strickland, 466 U.S. at 689).

As to the Consequences Claim: Petitioner’s assertions

his counsel was ineffective for failing to advise him of the

collateral consequences of his guilty plea (see Petition at 6) is

unpersuasive. First, as Respondent highlights, Petitioner was

well-aware of the 10-year term of post-release supervision to which

he would be subjected. (See Opp’n at 32 (citing Plea Hr’g and

Mary Miller Aff.).) Second, the state court’s rejection of

Petitioner’s Consequences Claim was not contrary to, or an

unreasonable application of, clearly established federal law as

determined by the United States Supreme Court. See 28 U.S.C. §

2254(d)(1). Because the Supreme Court has not yet announced the

failure to advise a defendant of non-immigration collateral

consequences of a conviction constitutes ineffective assistance of

counsel, the state court’s denial of Petitioner’s ineffective

assistance Consequences Claim was not contrary to the clearly

established federal law. See United States v. Nesbeth, 188 F.

Supp. 3d 179, 196 (E.D.N.Y. 2016) (“It is an open question . . .

under what circumstances, if any, failure of counsel to advise a

defendant prior to a plea of at least the critical non-deportation

collateral consequences he or she faces, might rise to the level

of an ineffective-assistance claim.”); see also Stephens v. United

States, No. 06-CV-5386, 2007 WL 1233557, at *3 (E.D.N.Y. Apr. 25,

2007) (“Registration as a sex offender is a collateral effect and

improper advice as to such a collateral effect does not support an

ineffective assistance of counsel claim.”).

For completeness, the Court observes Petitioner has

failed to put forth how he was prejudiced by the supposed failure

of counsel to advise him regarding the collateral consequences of

his plea. However, Strickland requires one establish both the

performance prong and the prejudice prong of the required analysis.

See Strickland, 466 U.S. at 687 (instructing a petitioner must

satisfy both prongs of the Strickland test); see also id. at 692

(“[A]ny deficiencies in counsel’s performance must be prejudicial

to the defense in order to constitute ineffective assistance under

the Constitution.” (emphasis added)); Leftenant v. Attorney Gen.,

No. 20-CV-0436, at *11 (E.D.N.Y. Dec. 5, 2023) (stating “[e]ven if

a petitioner can show deficient performance, he must also establish

prejudice”). Moreover, to establish prejudice in the context of a

guilty plea, a petitioner must prove there is “a reasonable

probability” that, but for counsel’s error, petitioner would not

have pleaded guilty, but, instead, would have gone to trial. See

Hill, 474 U.S. at 59 (1985). Notably, a “conclusory claim . . .

[petitioner] would have gone to trial but for counsel’s alleged

ineffectiveness, standing alone, does not establish prejudice

under Strickland”; rather, a petitioner must “affirmatively prove”

he would have gone to trial. Boakye v. United States, No. 09-CV-

8217, 2010 WL 1645055, at *4, 6 (S.D.N.Y. April 22, 2010). Because

Petitioner has failed in this respect, he cannot maintain his

Consequences Claim.

***

To the extent not explicitly articulated herein, the

court has considered Petitioner’s remaining arguments in support

of habeas relief, but finds them to be without merit.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Miller’s Petition

(ECF No. 1), is DENIED in its entirety. The Clerk of the Court is

directed to: enter judgment in favor of Respondent; dismiss the

Petition; close the case; and, mail a copy of this Order to

Petitioner at his address of record.

Further, the Court:

(A) Declines to issue a certificate of appealability because

Petitioner has not “made a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2);

and

(B) Pursuant to 28 U.S.C. § 1915(a)(3), certifies 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).

SO ORDERED.

_/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: April 25, 2024

Central Islip, New York