Reinard v. State of New York

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DONALD REINARD,

Petitioner,

v. 17-CV-708-LJV-MJR

DECISION & ORDER

EARL BELL,1

Respondent

INTRODUCTION

On July 26, 2017, the pro se petitioner, Donald Reinard, filed a petition for a writ

of habeas corpus under 28 U.S.C. § 2254, alleging that his convictions in the county

court of Niagara County, New York, were obtained in violation of his constitutional

rights. Docket Item 1. On March 19, 2018, the respondent answered the petition.

Docket Item 10. On August 20, 2018, Reinard asked the Court to stay his habeas

petition and hold it in abeyance so that he could exhaust two unexhausted claims

1 The appropriate respondent in a habeas corpus petition is “the person” having

custody over the petitioner, 28 U.S.C. §§ 2242, 2243—that is, the person who “has the

immediate custody of the party detained, with the power to produce the body of such

party before the court or judge, [so] that he may be liberated if no sufficient reason is

shown to the contrary,” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (emphasis in

original) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). Here, that is the

superintendent of the Clinton Correctional Facility, Earl Bell. The Court therefore

amends the petition, sua sponte, to name Superintendent Bell as the respondent. See

Berrettini v. Federal Bureau of Prisons, 2019 WL 1974319, at *3 (S.D.N.Y. July 8, 2009)

(finding that the liberal construction applied to pro se complaints coupled with Federal

Rules of Civil Procedure 1 and 15(d) call for sua sponte amendment where the incorrect

respondent was named).

through a second motion under New York Criminal Procedure Law (“CPL”) section

440.102 (“second 440.10 motion”).3 Docket Item 18.

On November 12, 2019, this Court referred the case to United States Magistrate

Judge Michael J. Roemer for all proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B).

Docket Item 20. On January 3, 2020, the respondent responded to the motion for a

stay and abeyance. Docket Item 23. And on January 29, 2020, Reinard replied.

Docket Item 24.

On August 3, 2020, Judge Roemer issued a Report and Recommendation

(“R&R”), finding that both Reinard’s motion for a stay and abeyance and the habeas

petition itself should be denied. Docket Item 25. On October 16, 2020, Reinard

2 Reinard had already brought a post-conviction motion under CPL section

440.10 (“first 440.10 motion”). In that motion, Reinard claimed that (1) his plea

procedure violated due process, State Record at 296 (memorandum in support of first

440.10 motion); (2) his sentence violated the Eighth and Fourteenth Amendments, id. at

305; (3) New York’s mandatory fines and civil confinement statutes are unconstitutional,

id. at 310; (4) the ineffective assistance of his attorney rendered his plea invalid, id. at

315; (5) he was entitled to counsel during his section 440.10 proceeding, id. at 329; and

(6) New York’s post-judgment appeal statutes are unconstitutional and violate due

process as applied to him, id. at 331.

3 In the motion for a stay and abeyance, Reinard also requested an expansion of

the state court record; the appointment of counsel; an extension of time to reply to the

motion for a stay; an evidentiary hearing on his habeas claims and his request to

expand the record; and a hearing on the adequacy of certain New York State criminal

procedures. Docket Item 18.

objected to the R&R.4 Docket Item 34. The respondent did not respond to the

objection, and the time to do so now has expired. See Docket Item 35.5

A district court may accept, reject, or modify the findings or recommendations of

a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must

review de novo those portions of a magistrate judge’s recommendations to which a

party objects. Id.

This Court has carefully and thoroughly reviewed the R&R, the record in this

case, the motion for a stay and response to the motion, the objection, and all materials

submitted to Judge Roemer. Based on that de novo review, the Court accepts and

adopts Judge Roemer’s recommendation to deny Reinard’s motion for a stay and

abeyance and to deny his habeas petition in its entirety.6

4 Reinard objected only to Judge Roemer’s findings that the motion for a stay and

abeyance should be denied, that Reinard’s right to be protected against self-

incrimination was not violated, and that his guilty plea did not violate the Double

Jeopardy Clause. See Docket Item 34. Because Reinard is proceeding pro se,

however, the Court liberally construes his objection to include each of the findings in the

R&R. See Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

(submissions of pro se litigants must be construed liberally and interpreted to raise the

strongest arguments that they suggest).

5 On November 30, 2020, Reinard moved for an extension of time to reply to the

response to his objection. Docket Item 36. Because the respondent did not respond to

Reinard’s objection, that motion is denied as moot. On February 19, 2021, Reinard

moved for summary judgment. Docket Item 37. Because this Court accepts and

adopts Judge Roemer’s recommendation to deny the habeas petition, that motion is

denied as moot as well.

6 The Court assumes the reader’s familiarity with the facts alleged in the petition,

see Docket Item 1; in the memorandum of law accompanying the petition, see Docket

Item 2; in the motion for a stay, see Docket Item 18; and in the R&R, see Docket Item

25, and will refer only to the facts necessary to explain its decision.

FACTUAL BACKGROUND

Reinard initially was charged with one count of predatory sexual assault against

a child, Victim “S,” under New York Penal Law (“Penal Law”) section 130.96. See

Docket Item 2-2 at 47, 49, 50, 56. He later was charged with four additional counts:

two counts of course of sexual conduct in the first degree, one against the same child

and one against Victim “J,” under Penal Law section 130.75; and two counts of sexual

abuse in the first degree, one against Victim “M” and one against Victim “P,” under

Penal Law section 130.65. See id. at 47, 49, 50, 56-58.

On March 26, 2010, Reinard pleaded guilty to two counts of course of sexual

conduct in the first degree (Victims “S” and “J”) under Penal Law section 130.75(1)(a)

and two counts of attempted sexual abuse in the first degree (Victims “M” and “P”)

under Penal Law sections 110.5(6) and 130.65. Id. at 56-58; see also State Record at

18-19, 60-61. Reinard also signed a waiver in which he waived his right to appeal in

exchange for capping his sentence at 40 years’ imprisonment, 60 years’ post-release

supervision, and dismissal of the remaining charges. State Record at 18-19, 60-61; see

also Docket Item 2-2 at 48.

The parties then learned that their agreement, and the subsequent plea, were

procedurally defective as to one count. State Record at 21 (Letter to Reinard’s attorney,

George V.C. Muscato, Esq., from assistant district attorney Elizabeth R. Donatello,

dated May 27, 2010). More specifically, because Reinard originally was charged with a

Class A felony as to Victim “S,” he could not waive his right to indictment on that count,

and the court therefore lacked jurisdiction to accept Reinard’s plea to the lesser-

included offense of course of sexual conduct against Victim “S.” See id.; see also id. at

60.

To cure the defect, both sides agreed that Reinard would withdraw his guilty plea

to the defective count and plead guilty to an identical count brought under a new

indictment. Id. at 60-61. Therefore, the case was presented to a grand jury, and on

June 8, 2010, an indictment charged Reinard with course of sexual conduct against a

child in the first degree. Id. at 22. On the same day, Reinard pleaded guilty to the new

charge and withdrew his previous guilty plea. Docket Item 2-2 at 70-72. He was

sentenced to the maximum contemplated under his plea agreement—40 years’

imprisonment and 60 years’ post-release supervision, see State Record at 18, 60;

Docket Item 2-2 at 95—as well as $4,425 in fees, id.

Reinard appealed his conviction to the New York State Supreme Court,

Appellate Division, Fourth Department, filing his brief on March 20, 2015. State Record

at 63. On December 23, 2015, the Appellate Division affirmed Reinard’s conviction,

People v. Reinard, 134 A.D.3d 1407, 22 N.Y.S.3d 270 (4th Dep’t 2015); the court later

denied leave to reargue, People v. Reinard, 138 A.D.3d 1514, 29 N.Y.S.3d 226 (4th

Dep’t 2016). On May 17, 2016, the New York Court of Appeals denied leave to appeal.

People v. Reinard, 27 N.Y.3d 1074, 60 N.E.3d 1210 (2016). Reinard then sought

review by the United States Supreme Court, but on October 31, 2016, the Court denied

certiorari. Reinard v. New York, 137 S. Ct. 392 (2016).

In the meantime, Reinard also moved in Niagara County Court to vacate the

judgment of conviction under CPL section 440.10. State Record at 274. On September

1, 2015, that 440.10 motion was denied, id. at 503; Reinard moved to reargue, id. at

588, and that motion was denied on December 21, 2015, id. at 606. He also asked for

leave to appeal the denial of the 440.10 motion, id. at 571, and the denial of his request

for reargument, id. at 609; those requests were denied on July 1, 2016, id. at 644.

On October 5, 2016, Reinard petitioned for a writ of error coram nobis in the

Appellate Division, id. at 645; the court denied that petition on December 23, 2016,

People v. Reinard, 145 A.D.3d 1658, 42 N.Y.S.3d 923 (4th Dep’t 2016). Reinard then

sought leave to appeal, but that was denied as well. State Record at 672.

On July 26, 2017, Reinard petitioned this Court for a writ of habeas corpus. See

Docket Item 1. About ten months later, he filed a second application for a writ of error

coram nobis, Docket Item 18 at 52, which was denied by the Appellate Division on June

29, 2018, People v. Reinard, 162 A.D.3d 1776, 76 N.Y.S.3d 443, (4th Dep’t 2018).

Reinard then sought leave to appeal, which also was denied. People v. Reinard, 32

N.Y.3d 1114, 115 N.E.3d 638 (2018).

DISCUSSION

I. MOTION FOR STAY AND ABEYANCE

A state prisoner generally may obtain federal habeas relief only after exhausting

his claims in state court. 28 U.S.C. §§ 2254(b)(1), (c); see also O’Sullivan v. Boerckel,

526 U.S. 838, 842 (1999). To exhaust a claim, “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, 526 U.S. 845. A

petitioner can exhaust claims either through direct appeal or by a collateral proceeding,

such as one under CPL section 440.10. See Daye v. Atty Gen. of State of N.Y., 696

F.2d 186, 190 n.3 (2d Cir. 1982).

When a habeas corpus petition includes both exhausted and unexhausted claims

(a “mixed petition”), the reviewing district court usually should dismiss the petition so

that the state courts can decide the unexhausted issues. Rose v. Lundy, 455 U.S. 509,

510 (1982). But when certain requirements are met, a district court may stay a mixed

petition and hold it in abeyance so that the petitioner can return to state court and

exhaust the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 278 (2005).

Reinard moved for such a stay and abeyance here. More specifically, Reinard

asked this Court to stay his habeas petition so that he could pursue his second 440.10

motion raising two additional reasons why his guilty plea was invalid:7 (1) prior to his

plea, he was not informed that under Article 10 of the New York Mental Hygiene Law

(“Article 10”),8 he was waiving confidentiality with mental health professionals

(“disclosure requirement”)9; and (2) the disclosure requirement renders Article 10

7 The second 440.10 motion also argued that Reinard’s plea was invalid because

the sentencing court broke its promise that post-release supervision would not exceed

20 years. Docket Item 18 at 80. Reinard, however, did not seek to incorporate that

argument into his habeas petition. See id. at 22. Regardless, the record shows no

such promise by the sentencing court, see Docket Item 2-2 at 69; on the contrary,

Reinard’s appeal waivers explicitly noted the possibility of “between 5 and 20 years of

post[-]release supervision on each ‘B’ violent [felony] and 3 to 10 years on each ‘E’ non-

violent [felony],” see State Record at 18 (emphasis in original); see also id. at 60.

8 This statute also is known as the Sex Offender Management and Treatment Act

(“SOMTA”).

9 Reinard specifically challenges section 10.08(c), which provides that in deciding

whether a sexual offender should be civilly committed, the Article 10 case review panel

and the New York State Attorney General may request “any and all records and reports

relating to the respondent’s commission or alleged commission of a sex offense” and

“any treatment received . . . to [] determin[e] [] whether the respondent is a sex offender

requiring civil management.” N.Y. Mental Hyg. L. § 10.08(c). After Reinard’s period of

imprisonment concludes, therefore, the Article 10 panel will review his criminal and

psychological history and interview him to determine whether he suffers from a “mental

abnormality” that predisposes him to an inability to control his behavior—indicating a

unconstitutional as applied to him. Docket Item 18 at 22, 77-80. Judge Roemer found

that Reinard’s motion for stay and abeyance should be denied. Docket Item 25 at 9.

This Court agrees.

Before a petitioner is entitled to a stay and abeyance, the petitioner must show

that (1) there was “good cause” for his failure to exhaust his claims in state court before

bringing the federal habeas petition; (2) the unexhausted claims are “potentially

meritorious”; and (3) the petitioner did not engage in dilatory litigation tactics—that is, he

did not intend to cause delay. Sherrod v. Artus, 2016 WL 3459539 at *2 (W.D.N.Y.

June 24, 2016) (citing Rhines, 544 U.S. at 277-78). When those requirements are not

met, the request for a stay should be denied and the “writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant to exhaust the

remedies available” in state court. See Rhines, 544 U.S. at 277 (citing 28 U.S.C.

§ 2254(b)(2)). Here, Reinard has not satisfied any of those factors for either of his

unexhausted claims.

First, Reinard has not demonstrated good cause for his failure to bring either

claim prior to filing his habeas petition. Indeed, before he filed the habeas petition,

Reinard already had challenged the constitutionality of Article 10 and how that statute

affected his plea no less than three times: in his pro se supplemental brief on direct

appeal, State Record at 144-45 (arguing that the lack of specialized treatment facilities

violates his right to equal protection and is unconstitutional as applied to him); in his

first 440.10 motion, id. at 311-13 (arguing the same); and in his motion to reargue his

likelihood he will reoffend. See In re Marcell A., 49 Misc. 3d 859, 865, 14 N.Y.S. 3d

894, 898 (Sup. Ct. Suffolk Co. 2015).

first 440.10 motion, id. at 534-37 (arguing that Article 10 is cruel and unusual

punishment and violates his due process and equal protection rights).10 Reinard could

have raised the issues he seeks to raise now in any of those proceedings, but he did

not.

Reinard asserts that he has good cause for failing to bring these claims sooner

because the respondent in this habeas petition omitted documents from the state court

record, “making it impossible for [Reinard] to properly respond to the [answer].” Docket

Item 34 at 12-13. He asserts that the record in this case was incomplete and needs to

be supplemented. Id. at 14-15. He notes that he filed his second 440.10 motion within

the statutory time limits, id. at 13, 16, and he argues that his claims are meritorious, id.

at 17. But he never says why he did not challenge Article 10’s disclosure requirement

or how it affected his plea before bringing his habeas petition—for example, in any one

of his prior attacks on the constitutionality of Article 10. And without such an

explanation, Reinard has not provided good cause for the delay.

Second, Reinard also has not shown that his claims are “potentially meritorious.”

See Rhines, 544 U.S. at 278. With respect to Reinard’s claim that the disclosure

requirement rendered his plea invalid, for example, Judge Roemer correctly found that

Reinard knowingly and intelligently entered his guilty plea while being represented by

counsel throughout the plea-bargaining process. See infra; see also Docket Item 25 at

10 After filing the habeas petition, Reinard also challenged the constitutionality of

Article 10 in his second application for a writ of coram nobis. Docket Item 18 at 55-57

(arguing that Reinard was denied due process because he did not waive his privilege

with mental health professionals). That application was denied, Reinard, 162 A.D.3d at

1776, 76 N.Y.S.3d at 443, as was leave to appeal, Reinard, 32 N.Y.3d at 1114, 115

N.E.3d at 638.

12. During the plea colloquies, Reinard repeatedly stated that he had been advised of

the risks and benefits associated with the plea offer and that he understood he was

giving up certain rights. Docket Item 2-2 at 53-55 (confirming Reinard understood that

he was waiving his rights and that his sentence could be 40 years plus post-release

supervision). Moreover, Reinard’s attorney specifically advised him in a letter dated

March 25, 2010, that as a result of accepting the plea offer, Reinard would be a “Level 3

Sex Offender” and could “be subject to civil confinement.” State Record at 1 (Letter to

Reinard from George V.C. Muscato, Esq., dated Mar. 25, 2010). So as a matter of fact,

Reinard clearly knew about the direct consequences of his plea as well as the possible

collateral consequences of civil confinement.

Reinard’s plea was not involuntary simply because he may have been unaware

of exactly how a possible civil confinement proceeding might work. See Brady v. United

States, 397 U.S. 742, 757 (1970) (A plea is not involuntary because the defendant “did

not correctly assess every relevant factor entering into his decision.”). Indeed,

Reinard’s plea is valid even if he “understood the consequences [of the possibility of

future civil confinement] . . . only in a fairly rudimentary way,” see Miller v. Angliker, 848

F.2d 1312, 1320 (2d Cir. 1988). So his argument that his plea is invalid because he did

not understand that he might waive mental health confidentiality as part of a possible

civil confinement proceeding plainly lacks merit.

The same is true of Reinard’s argument that because he was not informed of

Article 10’s waiver component, the statute is unconstitutional. See Docket Item 18 at

22. Reinard does not suggest why Article 10 is unconstitutional; on the contrary, he

asserts only that because he did not know about the waiver component, for some

reason the statute is unconstitutional as applied to him. Id. at 77. What is more,

several state courts already have rejected Reinard’s claims that Article 10 is

unconstitutional either on its face or as applied to him. See Reinard, 134 A.D.3d at

1409, 22 N.Y.S.3d at 272 (rejecting Reinard’s facial constitutional challenge to Article 10

on direct appeal); Docket Item 2-1 at 14-17 (denying Reinard’s first 440.10 motion,

which included his argument that Article 10 violated his equal protection rights);

Reinard, 162 A.D.3d at 1776, 76 N.Y.S.3d at 443 (denying Reinard’s second coram

nobis application, in which Reinard argued that failure to waive privileges on the record

is a violation of his due process rights). Because those decisions are not contrary to

clearly established federal law, his habeas petition raising those issues lacks merit. See

28 U.S.C. § 2254(d); Nunez v. Conway, 923 F. Supp. 2d 557, 563 (S.D.N.Y. 2013); see

also infra at 12-13. And to the extent that Reinard is suggesting that his civil

commitment might eventually violate his rights, his claim is decades away from being

ripe. See N.Y. Mental Hyg. L. § 10.05(b) (Article 10 proceedings begin “[w]hen it

appears to an agency with jurisdiction that a person who may be a detained sex

offender is nearing an anticipated release from confinement.”).

Finally, as Judge Romer noted, Reinard’s “repetitive and voluminous filings” in

federal and state court “raise[] concerns” about dilatory litigation tactics. Docket Item 25

at 9. More specifically, Reinard’s motion for stay, Docket Item 18, was filed one year

and one month after he brought his habeas petition, Docket Item 1; five months after the

respondent answered the habeas petition, Docket Item 10; and after Reinard filed two

motions seeking extensions of time to respond, Docket Items 13, 16. Waiting until after

the respondent has answered the petition before seeking a stay “might be a sign of a

dilatory litigation practice,” see Fernandez v. Artuz, 2006 WL 121943, at *7 (S.D.N.Y.

Jan. 18, 2006), and that is especially so under the additional circumstances present

here. Based on the timing of Reinard’s request for a stay and abeyance, this Court

shares Judge Roemer’s concern about dilatory tactics.

In sum, Reinard has failed to satisfy the Rhines factors. His motion for a stay

and abeyance is therefore denied.

II. HABEAS CLAIMS

Reinard’s habeas petition alleges that (1) his guilty plea was involuntary,11

Docket Item 2 at 34; (2) his plea violated the Double Jeopardy Clause, id. at 68; (3) his

plea counsel was ineffective, id. at 43; and (4) his appellate counsel was ineffective, id.

at 66. Reinard also brings several claims that are not cognizable on habeas review:

that New York’s system for challenging guilty pleas is unconstitutional, id. at 49; that the

procedures used to rectify his plea violated New York law, id. at 70, 73; that he has a

right to counsel to collaterally attack his conviction, id. at 54; and that the fines

associated with his sentence violate the Equal Protection Clause, id. at 74. This Court

agrees with Judge Roemer that none of these grounds warrants habeas relief.

11 The Respondent argues that several of Reinard’s claims, including the

invalidity of his plea, are procedurally barred. See Docket Item 9 at 13, 25, 42. This

Court, however, agrees with Judge Roemer that due to the “convoluted procedural

history of this case,” it is appropriate to resolve these claims on the merits. See Docket

Item 25 at 10 (citing Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (stating that

bypassing procedural questions to reach the merits of a habeas petition is justified “if

the [underlying issues] are easily resolvable against the habeas petitioner, whereas the

procedural bar issue involve[s] complicated issues of state law”) (citation omitted)); see

also Anderson v. Graham, 2018 WL 1428249, at *2 (W.D.N.Y. Mar. 22, 2018) (declining

to “resolve the issues raised by [the r]espondent’s assertion of the defenses of non-

exhaustion and procedural default” and proceeding to decide the claims on the merits).

Because the “state court has adjudicated [Reinard’s] claims on the merits, [his]

claims [are] evaluated under the standard of review set forth in 28 U.S.C. § 2254(d).”

Nunez, 923 F. Supp. 2d at 563. That standard is a steep hill to climb: a federal court

“shall not” grant a state prisoner’s habeas petition based on a claim adjudicated on the

merits in state court “unless the adjudication of the claim . . . resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal

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

§ 2254(d)(1).

A. Voluntariness of Plea

1. Self-incrimination at Sentencing

Reinard first argues that his plea was involuntary because the court did not

inform him that by pleading guilty, he would waive his Fifth Amendment right against

self-incrimination at sentencing. Docket Item 2 at 35. Reinard argues that questions

asked by the court at sentencing compelled him to answer to his disadvantage. Id. at

35-36. And he claims that he therefore was forced to incriminate himself in violation of

his Fifth Amendment right. Id. at 37-39.

The Fifth Amendment protects an individual from being “compelled in any

criminal case to be a witness against himself.” U.S. CONST. amend. V. That privilege

extends through a defendant’s sentencing hearing. Mitchell v. United States, 526 U.S.

314, 326 (1999) (Efforts to compel a person to “testify against his will at the sentencing

hearing clearly would contravene the Fifth Amendment.”). But once a defendant

voluntarily decides to speak at sentencing, a sentencing court may consider those

statements, including the “defendant’s remorse, or lack thereof, in determining a

sentence.” See Geraci v. Senkowski, 23 F. Supp. 2d 246, 267 (E.D.N.Y. 1998); United

States v. Gamble, 969 F.3d 718, 724 (7th Cir. 2020) (“[A] sentencing judge may

consider a defendant’s statements—and draw inferences from those statements—in

considering [] sentencing factors and imposing an appropriate sentence. If the

defendant has broken [his] silence, there is no privilege.”).

The sentencing court did not compel Reinard to speak here. In fact, the record

shows quite the opposite—that Reinard volunteered to make a statement. See Docket

Item 2-2 at 92 (the sentencing court first asking, “Mr. Reinard, do you have anything you

want to say?” and Reinard replying, “Yes, your Honor, I do.”). Reinard argues that the

court “demanded” he answer questions about his motive while he sat “crying” and

“shaking,” Docket Item 34 at 25-26, and that when he was unable to provide a

satisfactory answer, the judge punished him with a longer sentence, Docket Item 2 at

33-34. But at best, that is a self-serving mischaracterization of what occurred.

After Reinard volunteered that there was “no excuse for what [he] did,” and that it

was “wrong” and “unforgiveable,” the judge said, “[y]ou have to tell me why you did it.”

Docket Item 2-2 at 92-93. Reinard seizes on that unfortunate choice of words by the

court to argue that he was compelled to speak. Docket Item 2 at 33. But a reading of

the transcript makes clear that the court was not demanding that Reinard answer;

rather, the court simply was struggling to understand why Reinard committed the

heinous sexual offenses that Reinard admitted hurt “good, loving people” and a family

that he “love[d] . . . so much.” Docket Item 2-2 at 92-94. So, contrary to Reinard’s

argument, the court did not compel him to incriminate or offer evidence against himself.

And Reinard did not do so. In fact, he answered the judge by saying that he did

not know why he did what he did: “I wish I knew.” Id. at 93. “I wish I knew more. . . . I

have no good explanation . . . . I don’t know why I did it.” Id. at 94.

Indeed, the colloquy between Reinard and the court was limited to what Reinard

had volunteered to speak about and about which he therefore had waived the privilege.

See id. at 92-94; see also U.S. ex rel. Carthan v. Sheriff, City of N.Y., 330 F.2d 100, 102

(2d Cir. 1964) (“Once he waives his privilege against self-incrimination, a witness may

not withdraw his waiver to prevent matters which he has already gone into from being

explored in greater detail.”) (citing Brown v. United States, 356 U.S. 148 (1958); Rogers

v. United States, 340 U.S. 367 (1951)). As Judge Roemer correctly noted, the court’s

request for an explanation of Reinard’s conduct therefore “was not a compulsion to

incriminate himself.” See Docket Item 25 at 14. And that is especially so because the

court’s request came after—and was prompted by—Reinard’s observation that what he

did was “wrong” and “unforgivable.” See Docket Item 2-2 at 92-93. For all those

reasons, Reinard’s argument that he was forced to waive his right to be protected

against self-incrimination lacks merit.

2. SOMTA Consequences

Reinard also challenges the validity of his plea on the ground that he was not

informed of various SOMTA consequences; more specifically, he argues that because

he did not know about the possibility of civil confinement—including Article 10’s waiver

component—or the $4,000 he would owe in victim fees, his plea was not fully informed.

Docket Item 2 at 43.

“A plea is considered voluntary and intelligent if the defendant enters the plea

with full awareness of its ‘direct consequences.’” Wilson v. McGinnis, 413 F.3d 196,

199 (2d Cir. 2005) (citing Brady, 397 U.S. at 755). “The Supreme Court has not defined

which consequences of a guilty plea are ‘direct’ and therefore must be disclosed to the

defendant, and which consequences are collateral and need not be conveyed to the

defendant prior to his plea.” Id. But the Second Circuit has defined “direct

consequences” as those that have a “definite, immediate and largely automatic effect on

the range of the defendant’s punishment” and has designated all other consequences

as collateral. Id. (citing United States v. United States Currency in Amount of

$228,536.00, 895 F.2d 908, 915 (2d Cir. 1990)).

Generally, the collateral consequences of a guilty plea “need not be explained to

the defendant in order to ensure the plea is voluntary.” See United States Currency,

895 F.2d at 915. The possibility of civil confinement is a collateral consequence.

United States v. Youngs, 687 F.3d 56, 61 (2d Cir. 2012). Therefore, the state court was

not required to ensure that Reinard knew about the possibility of civil confinement.

But the record shows that Reinard knew very well about that possibility. Indeed,

Reinard’s attorney advised him—both orally and in writing—that because of the nature

of the conviction, Reinard faced possible civil commitment after his term of

imprisonment concluded. State Record at 1 (Letter to Reinard from George V.C.

Muscato, Esq., dated Mar. 25, 2010: “because there are three or more children

involved, you may be subject to civil commitment which I explained to you in great

detail.”). Reinard’s signed waivers also alerted him to the “potential for post[-]release

confinement as a result of civil commitment proceedings” under “Article 10.” Id. at 19

(appeal waiver of Mar. 26, 2010); id. at 61 (appeal waiver of June 8, 2010). Reinard’s

claim that he did not know about the risk of civil confinement therefore is without merit.

Reinard’s argument that his plea was invalid because he was unaware of the

mandatory victim fees likewise lacks merit. See Docket Item 2 at 43. The letter from

Reinard’s attorney states that he and Reinard “discussed . . . in considerable detail all of

the various options, penalties, expectations, and concerns” associated with his plea.

State Record at 2. So Reinard may well have been aware that he might be required to

pay victims fees.

But even if he had not been aware, that still would not warrant habeas relief. In

deciding Reinard’s motion to reargue the motion to vacate his conviction, the state court

explicitly rejected his argument that his plea was invalid because he was not told about

the supplemental victim fees. See Docket Item 2-1 at 20. Citing the New York Court of

Appeals decision in People v. Hoti, 12 N.Y.3d 742, 906 N.E.2d 373 (2009), the court

noted that “fees are not components of a sentence” and that the failure to explicitly

address victim fees “prior to entry of the plea [does] not deprive [a] defendant of the

opportunity to knowingly, voluntarily[,] and intelligently choose among alternative

courses of action.” Id. Because there is no clearly established federal law to the

contrary, the failure to explicitly address fees does not entitle Reinard to habeas relief.

See 28 U.S.C. § 2254(d)(1) (A habeas petition shall not be granted based on an issue

about which a state court already has ruled on the merits unless the state court’s

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

established Federal law.”).

This Court also agrees with Judge Roemer that Reinard’s “claim that he would

have elected to go to trial, facing a probable guilty verdict with the possibility of a life

sentence, had he known of the fee impositions is dubious.” See Docket Item 25 at 16

(footnote and citation omitted). The suggestion that the possibility of $4,000 in fees

would have tipped the balance in a case where decades of incarceration were at stake

is more than self-serving; it borders on the frivolous. Reinard’s claim about victim fees

fails for that reason as well. See Morgan v. Lee, 2012 WL 5336167, at *9 (W.D.N.Y.

Oct 26, 2012) (“[A] federal court may not grant habeas relief based upon a petitioner’s

unsubstantiated conclusions, opinions, or speculation.”).12

3. Dr. Heffler’s Report

Finally, Reinard argues that his plea was invalid because he did not know that

the sentencing court would reject Dr. Heffler’s conclusion that Reinard presented a low

recidivism risk. Docket Item 2 at 30. Reinard suggests that the sentencing court either

always intended to reject Dr. Heffler’s report or rejected it after Reinard failed to answer

questions to the court’s satisfaction at the sentencing hearing. See id. at 34, 45. But

even if Reinard is correct, he still is not entitled to habeas relief.

Of course, a defendant is not entitled to have a court accept and agree with his

sentencing submissions. See Pepper v. United States, 562 U.S. 476, 480 (2011)

(“[S]entencing judges exercise a wide discretion in the types of evidence they may

consider when imposing [a] sentence[,] and [] highly relevant—if not essential—to the

12 As explained in more detail above, Reinard’s argument that his plea was

invalid because he did not understand that he might waive mental health confidentiality

in a future Article 10 proceeding, as well as his argument that Article 10 is

unconstitutional as applied to him, also lack merit. See supra at 10-11.

selection of an appropriate sentence is the possession of the fullest information

possible.”) (internal quotations and marks omitted). For that reason alone, Reinard has

not stated a viable claim.

What is more, the record simply does not support Reinard’s factual assertions;

rather, it shows that the sentencing court had good reason to reject Dr. Heffler’s report.

See Docket Item 2-2 at 83-84. The court learned at sentencing that Dr. Heffler’s

conclusion that Reinard posed a low recidivism risk was premised on the false

understanding that Reinard had “never penetrated” the victims. Id.; see also id. at 34

(Dr. Heffler’s report stating that Reinard “denied that he ever vaginally penetrated the

children.”). Contrary to Dr. Heffler’s understanding, at least one of Reinard’s victims

“sa[id] he did, over and over again.” Id. at 83. Because Dr. Heffler apparently

misunderstood the extent of the abuse, it was perfectly reasonable for the sentencing

court to reject his recommendation. Compare id. at 76-83 (Sentencing Tr., detailing the

extent of abuse), with id. at 33-40 (Dr. Heffler’s report, lacking significant portions of the

abuse described by the victims and entered into the record). Reinard’s argument

therefore misses the mark.

B. Double Jeopardy

Reinard also argues that the procedure used to rectify a jurisdictional defect in

his guilty plea violated the Double Jeopardy Clause. Docket Item 2 at 68-69. As noted

above, after prosecutors discovered the defect in Reinard’s plea to the count involving

Victim “S,” the parties agreed that Reinard would withdraw his guilty plea on the

defective count, accept the same plea offer which would be renewed and to which he

had agreed, and plead guilty to a similar count after indictment. See State Record at

21. The grand jury issued an indictment charging Reinard with one count of course of

sexual conduct against Victim “S.” Id. at 22-23. Reinard signed an appeal waiver

acknowledging the error and agreeing to plead guilty to the same charge to which he

had previously pleaded guilty. Id. at 60-61. Reinard then pleaded guilty under the

indictment and withdrew his original plea regarding Victim “S.” Id. at 32-34.

Because he pleaded guilty to the new charge before he withdrew his first guilty

plea, Reinard argues that he was simultaneously adjudicated guilty on two separate

counts for identical conduct; therefore, he reasons, he was twice placed in jeopardy for

a single crime in violation of his rights. Docket Item 2 at 68-69. Judge Roemer rejected

that argument, finding that the jurisdictional defect rendered Reinard’s first guilty plea

invalid and, because that plea was invalid, jeopardy did not attach. Docket Item 25 at

21. This Court agrees.

But even if there had been no jurisdictional defect, jeopardy still would not have

attached to the March 26, 2010 plea. The Fifth Amendment’s Double Jeopardy Clause

“protects against a second prosecution for the same offense after acquittal, against a

second prosecution for the same offense after conviction, and against multiple

punishments for the same offense.” Constant v. Martuscello, 677 F. App’x 727, 728 (2d

Cir. 2017) (summary order) (internal citations and quotation marks omitted), cert.

denied, 137 S. Ct. 2204 (2017). “As a general rule, jeopardy attaches in a criminal case

at the time the [] court accepts the defendant’s guilty plea.” United States v. Aliotta, 199

F.3d 78, 83 (2d Cir. 1999). But the mere acceptance of a guilty plea by the court does

not create an immutable bar to subsequent prosecution. See United States v. Olmeda,

461 F.3d 271, 279 n.7 (2d Cir. 2006). There are “certain circumstances [where]

jeopardy is not deemed to [have] attach[ed] at the time of the guilty plea, for example,

where a defendant subsequently withdraws his plea.” Id. (citing United States v. Podde,

105 F.3d 813, 816-17 (2d Cir. 1997)). That is exactly what happened here. And the

fact that Reinard did not announce on the record that he withdrew his plea until after he

pleaded guilty to the new charge is of no moment. The parties already had agreed to

the correction, and so Reinard’s argument elevates form over substance to a fault.

Because a jurisdictional defect invalidated Reinard’s plea on March 26, 2010,

jeopardy did not attach as a result of that plea. For that reason, and because Reinard

withdrew that plea under an agreement with the prosecution, his double jeopardy claim

lacks merit.

C. Ineffective Assistance of Counsel

To be entitled to relief based on the ineffective assistance of counsel, a petitioner

must “(1) demonstrate that his counsel’s performance ‘fell below an objective standard

of reasonableness’ in light of ‘prevailing professional norms’; and (2) ‘affirmatively prove

prejudice’ arising from counsel’s allegedly deficient representation.” United States v.

Cohen, 427 F.3d 164, 167 (2d Cir. 2005) (citations omitted) (quoting Strickland v.

Washington, 466 U.S. 668, 688, 693 (1984)). Under the first prong, there is a “strong

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

professional assistance.” Strickland, 466 U.S. at 689. Under the second prong, the

petitioner must show “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. If counsel’s

conduct was not deficient, the court need not reach the issue of prejudice. Id. at 697.

Just as the Strickland calculus is deferential to a lawyer’s trial strategy, a federal

court will defer to a state court’s application of Strickland. Sellan v. Kuhlman, 261 F.3d

303, 315 (2d Cir. 2001). Here, the state courts already have ruled on at least some of

Reinard’s claims that his counsel provided ineffective assistance. State Record at 243,

506. With respect to those claims, the question for this Court therefore is “not whether

the state court was incorrect or erroneous in rejecting [the petitioner’s] ineffective

assistance of counsel claim, but whether it was ‘objectively unreasonable’ in doing so.”

Id. So long as “‘fair[-]minded jurists could disagree’ on the correctness of the state

court’s decision,” this Court must deny the habeas petition. See Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. Ineffective Assistance of Counsel at Plea and Sentencing

Reinard asserts that his attorney was ineffective in failing to (1) advise him that

lack of mental capacity was an affirmative defense; (2) advise him about SOMTA fees

and the possibility of civil confinement; (3) object to the court’s questioning at

sentencing; (4) challenge the sentencing court’s rejection of Dr. Heffler’s report; and (5)

move to dismiss the indictment as defective under state law. See Docket Item 2 at 66-

68.

a. Affirmative Defense

Reinard argues that his attorney was ineffective in failing to tell him that if he

went to trial, he could argue that he lacked the mental capacity to understand his

crimes. Id. at 66. He asserts that if his attorney had told him about this affirmative

defense, he would have gone to trial and “likely would have ended up with less time.”

Id. at 67.

The decision not to pursue a particular defense “is typically a question of trial

strategy that reviewing courts are ill-suited to second-guess.” Greiner v. Wells, 417

F.3d 305, 323 (2d Cir. 2005) (alternation omitted) (quoting United States v. Luciano, 158

F.3d 655, 660 (2d Cir. 1998) (per curiam)). “Thus, a lawyer’s decision not to pursue a

defense does not constitute deficient performance if, as is typically the case, the lawyer

has a reasonable justification for the decision.” Id. (alternation omitted) (citing DeLuca

v. Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996)). A petitioner must overcome the “strong

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

professional assistance” and “that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (citation

omitted).

With respect to the second prong, “the ‘prejudice’ inquiry will depend largely on

whether the affirmative defense likely would have succeeded at trial.” Hill v. Lockhart,

474 U.S. 52, 59 (1985). A petitioner’s self-serving “testimony after the fact ‘suffers from

obvious credibility problems,’” so more than the petitioner’s statement that “he would

have gone to trial had he known of the defense” is needed to demonstrate prejudice.

Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991).

Reinard fails to meet either prong of the ineffective-assistance-of-counsel test. In

New York, a criminal defendant may raise an affirmative defense that he lacks “criminal

responsibility by reason of mental disease or defect” that results in a “lack [of]

substantial capacity to know or appreciate either . . . [t]he nature or consequences of

[his] conduct; or [t]hat such conduct was wrong.” N.Y. Penal L. § 40.15. But Reinard

offers no evidence that his counsel should have pursued that defense, much less that it

would have been successful. In fact, Reinard told the sentencing court, “I understand

what I did was wrong” and “unforgivable.” Docket Item 2-2 at 93-94. Moreover, Dr.

Heffler’s report did not suggest that Reinard lacked capacity to appreciate that what he

did was wrong; on the contrary, Dr. Heffler found that Reinard had no “symptoms of a

severe emotional disturbance[,] . . . thought disorder[,] or psychopathy.” Id. at 34.

There is nothing in the record, therefore, that supports Reinard’s assertion this

affirmative defense was good strategy or that it would have been successful at trial. To

the extent that Reinard’s habeas petition is based on the alleged ineffective assistance

of counsel with respect to the affirmative defense of lack of mental capacity, it therefore

is denied.

b. SOMTA Consequences

Reinard also argues that his attorney was ineffective in failing to tell him about

the $4,000 supplemental sex offender victim fees and the possibility of post-release civil

confinement. Docket Item 2 at 66. Reinard says he “would never have pled guilty if

counsel had been truthful with [him].” Id. at 67.

In support of his claims that he did not know about the mandatory SOMTA fees

and confinement, Reinard submits affidavits from his sister, Docket Item 2-1 at 54

(stating Reinard was not told about SOMTA fees), and his parents, id. at 58, 63 (stating

that Reinard was not informed that he could serve more than 25 years).13 The 440.10

13 The assertion that Reinard was told that his maximum sentence was 25 years

is plainly incorrect. In fact, Reinard was told several times in several ways that he could

face a 40-year sentence: by his attorney both orally and in a letter, see State Record at

1 (Letter to Reinard from George V.C. Muscato, Esq., dated Mar. 25, 2010, referring to

prior discussions); in his appeal waivers, id. at 18, 60; and during plea colloquies on

March 26, 2010, and June 8, 2010, id. at 5, 31.

court, however, already found these letters to be “self-serving.” State Record at 506.

Indeed, the assertions by Reinard’s family that Reinard did not know about SOMTA

consequences are belied by the record. The sentencing court told Reinard that he

would owe $4,000 in victim fees, something that he did not object to or even question.

Docket Item 2-2 at 95. And in his first 440.10 motion, Reinard acknowledged that his

appeal waivers informed him of the possibility of civil commitment. State Record at 303;

see also id. at 474 (440.10 motion also including a letter from George V.C. Muscato,

Esq., dated Mar. 25, 2010, warning Reinard that he “may be subject to civil confinement

which [he previously] explained to [Reinard] in great detail”).

The record therefore contradicts Reinard’s claim that he was unaware of the

SOMTA consequences attached to his plea. Moreover, two state courts rejected

Reinard’s argument that his counsel was ineffective in failing to inform Reinard of the

$4,000 in victims fees. See State Record at 243, 506. Because federal courts defer to

state courts’ application of Strickland, the question is whether the state courts’ rejection

of Reinard’s claims of ineffective assistance were “objectively unreasonable.” See

Sellan, 261 F.3d at 315. They were not. For that reason, Reinard’s claim of ineffective

assistance of counsel with respect to SOMTA consequences is meritless.

c. Sentencing Court’s Questions and Comments

Reinard also argues that his attorney was ineffective at sentencing when he did

not object to the court’s questions and comments about Dr. Heffler’s report. Docket

Item 2 at 67. As discussed above in some detail, Reinard voluntarily spoke at

sentencing, and the sentencing court did not inappropriately question him. See supra at

13-15. Indeed, it would have been foolhardy for counsel to object to appropriate

questions posed by the sentencing judge. And, as also noted above, the sentencing

court appropriately exercised its discretion in rejecting Dr. Heffler’s report. See supra at

18-19; see also Pepper, 562 U.S. at 480.

“The failure to include a meritless argument does not fall outside the ‘wide range

of professionally competent assistance’ to which [a p]etitioner [i]s entitled.” Aparicio v.

Artuz, 269 F.3d 78, 99 (2d Cir. 2001). Reinard’s attorney therefore was not

“constitutionally deficient” in failing to raise meritless objections. See Parks v. Sheahan,

104 F. Supp. 3d 271, 285 (E.D.N.Y. 2015) (citation omitted).

d. Dismissal of Indictment

Reinard also argues that his counsel should have moved to dismiss the

indictment as violating the Double Jeopardy Clause. Docket Item 2 at 67. But as

already explained above, Reinard’s double jeopardy protections were not violated. See

supra at 19-20. Given the legality of his plea and plea agreement, Reinard’s claim is

meritless. See Nash v. Ercole, 2009 WL 2778247, at *15 (S.D.N.Y. Sept. 1, 2009)

(finding an ineffective-assistance-of-counsel claim for failure to move to dismiss

indictment for not specifying the names of the victims meritless where the statute did not

require it).

2. Ineffective Assistance of Appellate Counsel

Reinard argues that his appellate counsel likewise was ineffective in failing to

argue that his plea and appeal waivers were constitutionally invalid. Docket Item 2 at

43. The Supreme Court has held that “appellate counsel who files a merits brief need

not (and should not) raise every nonfrivolous claim, but rather may select from among

them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528

U.S. 259, 288 (2000). Indeed, “it is difficult to demonstrate that [appellate] counsel was

incompetent” for omitting an issue because that would require showing “that a particular

nonfrivolous issue was clearly stronger than issues that counsel did present.” Id.

Reinard’s appellate counsel told Reinard that she would look into whether she

“c[ould] raise issues concerning the validity of [his] plea.” Docket Item 2-2 at 4. The

fact that she did not ultimately raise those issues suggests that she did not think that

they were viable.14 See id. Moreover, Reinard himself raised the claim that his plea

was constitutionally invalid in his pro se supplemental brief, State Record at 24-29, and

the Appellate Division considered that claim and denied it, People v. Reinard, 134

A.D.3d at 1408, 22 N.Y.S.3d at 271; see generally Harvey v. Capra, 2017 WL 1184222,

at *7 (N.D.N.Y. Mar. 29, 2017) (holding that a petitioner “cannot establish that he was

prejudice[d] by his attorney’s failure to raise on direct appeal arguments that he himself

raised and were subsequently rejected”). Reinard’s argument therefore fails under

Strickland, and his claim of ineffective assistance of appellate counsel lacks merit.

Because the habeas petition is dismissed, Reinard’s requests for appointment of

counsel and an evidentiary hearing, see Docket Item 18 at 12, 18, as well as his request

for discovery, Docket Item 2 at 15, are denied. Reinard’s request for an extension of

time to reply to the motion for a stay is denied as moot because Reinard filed a letter in

reply. See Docket Item 24. Reinard’s request for a hearing on the adequacy of certain

state criminal procedures, see Docket Item 18 at 14-16, is denied as not cognizable on

14 Instead, she argued that Reinard’s plea was void because he did not

understand the terms of the agreement with respect to sentencing. Docket Item 2-2 at

4. The Appellate Division rejected that claim both as unpreserved and on the merits.

Reinard, 134 A.D.3d at 1408, 22 N.Y.S. 3d at 270.

habeas review, as more thoroughly explained below, see infra. And Reinard’s request

for an expansion of the record to include documents allegedly omitted by the

respondent, see id. at 16-18, is denied as moot because Reinard now has submitted the

documents in question, see Docket Item 19.

III. NONCOGNIZABLE CLAIMS

Reinard also brings several claims regarding New York law and challenging his

sentence under the Eighth Amendment. See Docket Item 2 at 49, 54, 59, 70.

A. Challenge to State Post-Conviction Procedures

Reinard challenges New York’s post-conviction review process as faulty and

inadequate to provide meaningful review of appeals. Docket Item 2 at 49. Judge

Roemer found that because “New York’s statutory framework for adjudicating

[Reinard’s] claims is not itself a basis for [his] continued imprisonment, [] any flaw in that

framework is not within the limited scope” of habeas review. Docket Item 25 at 33-34.

This Court agrees.

Reinard also argues that the state courts’ denial of his various requests for relief

denied him due process. See Docket Item 2 at 49. But as already noted above, the

state courts did not violate clearly established federal law in denying Reinard relief. See

supra at 13-26. And to the extent that Reinard “claims a violation of a right conferred by

New York statute, his claim is not cognizable on habeas review.” Shenouda v. Breslin,

2004 WL 1918805, at *6 (E.D.N.Y. Aug. 27, 2004) (citing 28 U.S.C. § 2254(d)(1)); see

also Cruz v. Smith, 2010 WL 582348, at *28-*29 (S.D.N.Y. Feb. 17, 2010) (dismissing

petitioner’s claim that he was deprived of his due process rights when the trial court

denied his 440.10 motion); Jones v. Duncan, 162 F. Supp. 2d 204, 217 (S.D.N.Y. 2001)

(finding that a due process claim for failure to hold a 440.10 hearing was not cognizable

on habeas review).

Reinard’s related argument that he improperly was denied counsel in his 440.10

proceedings, Docket Item 2 at 54, also fails. There is no “constitutional right to counsel

when mounting collateral attacks” on a conviction. Pennsylvania v. Finley, 481 U.S.

551, 555 (1987); see also Casado v. Sheehan, 2017 WL 2334885, at *3 (W.D.N.Y. May

30, 2017) (finding that the petitioner was not entitled to representation in 440.10

proceedings).

This Court therefore agrees with Judge Roemer that to the extent Reinard argues

that his rights under New York law were violated, his challenge is not cognizable on

habeas review. And to the extent he argues that New York law violated his right to due

process, his claims are meritless.

B. Challenge to Plea Procedures

Reinard argues that the procedures used to correct his plea violated New York

law and his right to due process. Docket Item 2 at 70, 73. But as just explained,

violations of state law are not grounds for habeas relief. See Shenouda, 2004 WL

1918805, at *6; see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas

corpus relief does not lie for errors of state law.”). This claim therefore is not cognizable

on habeas review.

Reinard’s argument that the plea procedures violated his right to due process

fares no better. “A habeas applicant cannot transform a state law claim into a federal

one merely by attaching a due process label.” Leatherwood v. Allbaugh, 861 F.3d

1034, 1043 (10th Cir. 2017) (citing Gryger v. Burke, 334 U.S. 728, 731 (1948)).

“Rather, the habeas applicant should ‘include reference to a specific federal

constitutional guarantee, as well as a statement of the facts that entitle [him] to relief.’”

Id. (citing Gray v. Netherland, 518 U.S. 152, 162-63, (1996); Perruquet v. Briley, 390

F.3d 505, 512 (7th Cir. 2004) (explaining that the applicant must “draw[] enough of a

connection” between the right to due process and the sentencing court's alleged errors

“to render his claim cognizable on habeas review”)). Reinard did not do this here.

Instead, Reinard argues only that because the proper state procedures were not

followed, his due process rights necessarily were violated. See Docket Item 2 at 73-74.

That alone is insufficient to transform this state-law claim into a constitutional claim.

C. Challenge to Sentence Length

Reinard argues that his 40-year sentence violates the Eighth Amendment’s

prohibition on cruel and unusual punishment. Docket Item 2 at 59. But there is “[n]o

federal constitutional issue [] presented where . . . the sentence is within the range

prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also

Bellavia v. Fogg, 613 F.2d 369, 373 (2d Cir. 1979); Hernandez v. Conway, 485 F. Supp.

2d 266, 284 (W.D.N.Y. 2007).

Reinard was sentenced to 40 years’ imprisonment. Docket Item 2-2 at 95. That

sentence was within the permissible statutory range, see id. at 55; see also id. at 69,

and Reinard knew that when he entered into the plea agreement, see State Record at

18, 60 (possibility of a 40-year sentence expressly addressed in appeal waivers).

Reinard also was sentenced to 60 years’ supervised release. Docket Item 2-2 at 95

(sentencing Reinard to 20 years’ post-release supervision on each B violent felony

conviction and 10 years’ post-release supervision on each E felony conviction).

Although his attorney’s letter incorrectly stated that the maximum supervised release

was 20 years, see State Record at 1, the appeal waiver that Reinard signed before he

pleaded guilty correctly noted that a total of 60 years was possible under New York law,

see id. at 18. This Court therefore agrees with Judge Roemer that this claim is not

cognizable on habeas review.

D. Challenge to Mandatory Sex Offender Victim Fees

Reinard challenges the constitutionality of New York Penal Law section

60.35(1)(b)—which imposes a $1000 per-victim fee on anyone convicted of a sexual

offense—as violating his equal protection rights. Docket Item 2 at 74. But habeas relief

“may not be used to bring collateral challenges addressed solely to noncustodial

punishments such as fines and restitution.” United States v. Rutigliano, 887 F.3d 98,

105 (2d Cir. 2018) (quoting Kaminski v. United States, 339 F.3d 84, 86-87 (2d Cir.

2003) (internal quotations omitted). “[E]ven where the petitioner is physically in custody,

he cannot use a habeas petition to challenge a non-custodial aspect of his sentence,

such as the imposition of a fine or restitution.” Gainey v. Ward, 2019 WL 6608844, at *4

(W.D.N.Y. Dec. 5, 2019) (citing United States v. Munson, 2019 WL 188493, at *2

(S.D.N.Y. Jan. 14, 2019)).

Because the $4,000 in supplemental sex offender victim fees is a non-custodial

punishment, Reinard’s argument is not cognizable on habeas review.

CONCLUSION

For the reasons stated above and in the R&R, Reinard’s motion for a stay and

abeyance, Docket Item 18, is DENIED; his motion for an extension of time, Docket Item

36, is DENIED as moot; his motion for summary judgment, Docket Item 37, is DENIED

as moot; his motions for discovery, Docket Item 2, as well as for an extension of the

record, appointment of counsel, and a hearing, Docket Item 18, are DENIED; and the

petition for a writ of habeas corpus, Docket Item 1, is DENIED and this matter

DISMISSED. The Clerk of the Court shall close the file.

The Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this

order would not be taken in good faith and therefore denies leave to appeal as a poor

person. Coppedge v. United States, 369 U.S. 438 (1962). The Court also certifies

under 28 U.S.C. § 2253(c)(2) that because the issues raised here are not the type of

issues that a court could resolve in a different manner, and because these issues are

not debatable among jurists of reason, Reinard has failed to make a substantial

showing of the denial of a constitutional right. Accordingly, the Court denies a certificate

of appealability.

Reinard must file any notice of appeal with the Clerk’s Office, United States

District Court, Western District of New York, within 30 days of the date of judgment.

Requests to proceed on appeal as a poor person must be filed with the United States

Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24

of the Federal Rules of Appellate Procedure.

SO ORDERED.

Dated: May 4, 2021

Buffalo, New York

—& U) lacko

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE

32