# Miller v. LaClair

> District Court, E.D. New York · April 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10311720

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311720

## How later opinions describe it (automated extraction)

- 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

## Opinion text

U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE
-------------------------------------X
DANIEL MILLER,

Petitioner, MEMORANDUM AND ORDER
-v- 20-cv-1546 (JS)

DARWIN E. LACLAIR,

Respondent.
-------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311720. Public record. Not legal advice.