# Pabon v. Royce

> District Court, W.D. New York · July 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10366388

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________

REYNALDO PABON,
Petitioner,
DECISION AND ORDER
-vs-
6: 20-CV-6136 CJS
SUPERINTENDENT, MOHAWK
CORRECTIONAL FACILITY, 1
Respondent.
_________________________________________

INTRODUCTION
Petitioner Reynaldo Pabon (“Pabon” or “Petitioner”) brings this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State
Supreme Court, Monroe County, upon his plea of guilty to Arson in the Second Degree, New
York Penal Law § 150.15, for which he was sentenced, as a second violent felony offender,2 to
a determinate prison sentence of thirteen years. Pabon contends that the ineffectiveness of his
counsel rendered his guilty plea unintelligent and involuntary. For the reasons explained below,
the petition for a writ of habeas corpus is denied.
BACKGROUND
The reader is presumed to be familiar with the facts and procedural history of this action.
Briefly, on October 14, 2014, Pabon was driving in the City of Rochester and was stopped by an
officer of the Rochester Police Department, who determined that Pabon had an outstanding

1 The originally-named respondent in this action was Mark Royce, Superintendent of Green Haven Correctional
Facility, where Petitioner was housed when he filed the petition. However, since Petitioner is presently confined
at Mohawk Correctional Facility the Court amends the caption to indicate that the proper respondent is the
Superintendent at Mohawk. The Clerk of the Court is directed to amend the caption accordingly and terminate
Royce as a party.
2 The Second Violent Felony Offender Information indicated that Pabon had previously been convicted, on August
30, 2002, upon his plea of guilty, of Burglary in the Second Degree, for which he was sentenced to six years in
prison.
bench warrant from Rochester City Court relating to a petit larceny charge. More specifically,
Pabon had been sentenced on the petit larceny charge to a one-year conditional discharge that
included “work weekends,” but had failed to attend his court-mandated work weekends, which
resulted in the issuance of the bench warrant. Additionally, at that time Pabon was the subject
of a “wanted for questioning flyer” that had been issued on July 14, 2014, by the Rochester

Police Department (“RPD”) in connection with two arson crimes and a series of false emergency
calls made to the Rochester Fired Department.3 The officer who made the traffic stop observed
both that Pabon had an outstanding bench warrant and that he was wanted for questioning by
RPD Major Crimes.4
Pabon was arrested on the bench warrant and transported to the Monroe County Public
Safety Building, where he waived his Miranda rights and agreed to speak with two police
detectives, who began by asking Pabon whether he “knew anything about a fire at 447 Thurston
Road, where he used to live.” Indeed, as mentioned earlier, the police suspected Pabon in a
series of crimes involving two different arsons and a string of false fire calls to the Rochester
Fire Department. In that regard, both of the arson fires had been set in locations connected to

Pabon, and the six false reports to the Fire Department had reported fires at the residence of
Pabon’s former girlfriend.5 Moreover, police had already managed to identify Pabon’s voice on
the 911 recordings of the false fire calls,6 and to obtain video evidence placing Pabon at the
scene of one of the fires.

3 State Court Record at p. 169, ECF No. 15-2 at p. 169.
4 State Court Record at p. 077, ECF No. 15-2 at p. 77.
5 See, State Court Record at p. 136, ECF No. 15-2 at p. 136 (Referring to Pabon’s admissions to the police about
setting the fires and making the false reports).
6 State Record at p. 168, ECF No. 15-2 at p. 168. (A witness familiar with Pabon identified the voice on the calls
as belonging to Pabon).
Pabon admitted to the investigators that he had started the fires and made the false
reports. Pabon admitted, for example, that he had set the fires because, in both instances, he
had wanted to move to different locations, and that he had falsely reported fires at his ex-
girlfriend’s home because he hoped that there would be an evacuation of her residence by the
fire department that would provide him with an opportunity to speak to the woman.7 Pabon

indicated that he thought he had made three such false reports, not six, though he also indicated
that he had been using drugs at the time of the crimes and not thinking clearly.8 At the conclusion
of the interview Pabon was charged with arson and with falsely reporting incidents.
On October 24, 2014, a Monroe County Grand Jury returned an eight-count indictment
against Pabon, charging him with one count of Arson in the Second Degree, one count of Arson
in the Third Degree, and six counts of Falsely Reporting an Incident in the Second Degree.
Count One of the Indictment charged Pabon with committing arson at an occupied building, 477
Thurston Road, in the City of Rochester, on April 25, 2014. Count Two accused Pabon of
starting a fire and damaging a building on December 28, 2013, and Counts Three through Eight
charged Pabon with falsely reporting fires on October 7, 2012, October 10, 2012, October 17,

2012, August 21, 2013, June 28, 2014, and July 3, 2014, respectively, all in the City of
Rochester. The record indicates that Pabon faced up to fifty years in prison if convicted of all
charges in the Indictment.
Pabon was represented on the charges by Jill Paperno (“Paperno”), a member of the
Monroe County Public Defender’s Office. Paperno negotiated a plea agreement in which Pabon
would plead guilty to Count I of the Indictment in exchange for a sentence of imprisonment of
thirteen years, followed by five years of supervised release. Pabon accepted the plea offer and

7 State Record at pp. 169-172, ECF No. 15-2 at pp. 169-172.
8 State Court Record at p. 125, ECF No. 15-2 at p. 125.
on December 2, 2014, pled guilty to the top count of the Indictment before the Honorable Francis
Affronti, Monroe County Supreme Court Justice. On January 28, 2015, Justice Affronti
sentenced Pabon to thirteen years in prison, with a 5-year period of post-release supervision.
Pabon waived his right to appeal as part of his plea agreement, but nevertheless filed a
notice of appeal, though he did not immediately perfect an appeal.9 Instead, on January 26,

2016, Pabon, proceeding pro se, filed a collateral attack pursuant to CPL § 440.10. The
application raised the following arguments: 1) under the New York State Constitution, Art. I, § 6,
Pabon’s conviction was jurisdictionally defective, since Count One of the Indictment incorrectly
stated that the arson occurred at 477 Thurston Road, when it actually occurred at 447 Thurston
Road, rendering Pabon actually innocent of the crime to which he pled guilty;10 2) Pabon’s guilty
plea was not knowingly, intelligently or voluntarily made, since he did not understand the rights
that he was giving up by pleading guilty; and 3) Pabon’s guilty plea was not knowingly,
intelligently or voluntarily made, since it was obtained in violation of his right to effective
assistance of counsel under the New York State and Federal Constitutions.
In support of the collateral attack, Pabon alleged that Paperno had “coerced” him into

accepting the plea offer, by reiterating to him that he could face up to forty years in prison if
convicted of the charges in the Indictment.11 Pabon further alleged that Paperno had been
ineffective in the following respects: 1) she failed to investigate whether there had been probable
cause for the traffic stop, or whether Pabon was already represented by counsel on the petit

9 The record contains a reference to Pabon having filed a notice of appeal, but it does not appear that a direct
appeal was perfected prior to his § 440.10 application. See, State Record at p. 091, ECF No. 15-2 at p. 91.
Instead, Pabon later requested leave to consolidate direct appeal issues with his appeal of the denial of his §
440.10 motion
10 It is undisputed that in both Count I of the Indictment and during Pabon’s plea colloquy the scene of the arson
was incorrectly described as 477 Thurston Road instead of 447 Thurston Road.
11 As already noted, the prosecution maintained that Pabon, who had a lengthy criminal record, was actually
facing up to fifty years in prison if convicted of all charges in the Indictment. State Court Record at p. 146, ECF
No. 15-2 at p. 146.
larceny charge when the detectives interviewed him; 2) she failed to investigate the facts of the
case, which resulted in her failing to understand that Pabon had resided at 447 Thurston Road
and not 477 Thurston Road; 3) she failed to advise Pabon that he had a constitutional right
against self-incrimination, and never told him that he could challenge the admissibility of his
statements to the detectives. Regarding Paperno’s alleged ineffectiveness, Pabon stated in

pertinent part:
Not only did counsel not apprise the defendant of the plea consequences in
forfeiting this right [(his privilege against self-incrimination)], but counsel never
apprised the defendant pre-plea, that he could challenge the admissibility of his
alleged confession (statement) in a pretrial hearing. Had counsel of explained [sic]
to the defendant that he could challenge his alleged statement, before plea and
before trial, then, the defendant would not have plead[ed] guilty and would have
proceeded to trial. . . . Counsel failed miserably, in informing the defendant [sic],
before any plea of guilt, that, the defendant could motion the court and challenge
the alleged self-incriminating statement based on three (3) colorable bas[e]s,
which were: (1) illegal traffic stop; (2) right to counsel; and (3) involuntary.

State Court Record, ECF No. 15-2 at pp. 49-50.
On April 20, 2016, Supreme Court, Monroe County, denied the § 440.10 motion.
Supreme Court held that to the extent Pabon was claiming that his conviction was jurisdictionally
defective and/or that he was actually innocent, the claim was procedurally barred, since it was
based on matters of record that could be raised in a direct appeal. Supreme Court further held
that Pabon’s contention that his waiver of his Miranda rights was ineffective, based on New
York’s indelible right to counsel, lacked merit since the petit larceny charge on which he claimed
to have been represented by counsel was not still “pending” at the relevant time. See, Decision
Denying 440.10 Motion, State Record at p. 092, ECF No. 15-2 at p. 91 (“Defendant did not have
a ‘pending’ charge for which he was represented by counsel because it was previously
concluded by conviction. When the prior charge has been disposed of by conviction, the
indelible right to counsel disappeared and the defendant was capable of waiving counsel on the
new charge.”) (citations and internal quotation marks omitted). Because of that, Supreme Court
further held, Pabon’s claim that his attorney was ineffective for failing to challenge the
admissibility of his statements also lacked merit:
Essentially, therefore, Defendant’s assertions distill to a claim that counsel was
ineffective for failing to make a suppression motion in violation of his right to
counsel on a prior but now concluded, unrelated charge. To prevail on said
ground, it is incumbent on defendant to demonstrate the absence of strategic or
other legitimate explanations for counsel’s failure to make such a motion. Stated
differently, defendant must show that the particular motion, if made, would have
been successful and that defense counsel’s failure to make that motion deprived
him of meaningful representation. Absent same, it is presumed that counsel acted
in a competent matter and exercised professional judgment in not pursuing a
suppression hearing. Counsel’s failure to move for suppression does not
constitute ineffective assistance because the motion would have been denied,
since as stated, Defendant had been convicted of the previous matter. Clearly,
defense counsel’s representation of the Defendant throughout the latter’s
proceeding is concluded to be consistent with a legitimate and ultimately
successful strategy.

State Record at p. 092, ECF No. 15-2 at p. 92 (emphasis added; citations and internal quotation
marks omitted).
On appeal from that decision, Pabon, with the assistance of counsel, again focused his
argument on the alleged violation of his indelible right to counsel under New York State law, and
on his attorney’s alleged ineffectiveness in failing to seek suppression of his statements on that
basis.12 In that regard, Pabon acknowledged that when he made his statements to the police
on October 14, 2014, he had already been sentenced on the earlier charge of petit larceny.
Pabon further admitted that under New York law, when a “prior charge has been disposed of by

12 The appeal raised three issues: 1) ineffective assistance of counsel, based on counsel’s failure to attempt to
suppress Pabon’s statements to police under New York’s “indelible right to counsel” rule; 2) Pabon’s waiver of
appeal was ineffective; and 3) Pabon’s sentence was harsh and excessive.
dismissal or conviction, the indelible right to counsel disappears.”13 However, he maintained
that since the sentence that he received on the petit larceny charge had been a one-year
conditional discharge, he was still under the criminal court’s jurisdiction, meaning that the petit
larceny charge was not “disposed of,” when he made the subject statements to the police, and
that the indelible right to counsel therefore applied to him.

On June 28, 2019, a panel of the New York State Supreme Court, Appellate Division
Fourth Department, unanimously affirmed Supreme Court’s determination. In doing so, the
appellate court rejected Pabon’s contention that Paperno had been ineffective for failing to move
to suppress his statements to the police, stating in pertinent part:
Even assuming, arguendo, that defendant's claim of ineffective assistance of
counsel is neither forfeited by his guilty plea nor precluded by his valid waiver of
the right to appeal (see generally People v Mangarillo, 152 AD3d 1061, 1064 n 2
[3d Dept 2017]), we nevertheless conclude that it lacks merit. Notably, both the
Second and Third Departments have rejected the exact theory regarding the
indelible right to counsel that defendant faults defense counsel for overlooking (see
People v Brown, 174 AD2d 842, 842 [3d Dept 1991]; People v Heller, 99 AD2d
787, 788 [2d Dept 1984]; see also People v Jordan, 143 AD2d 367, 368-369 [2d
Dept 1988], lv denied 73 NY2d 856 [1988]), and this Court has rejected an
argument very similar to those rejected in Brown and Heller (see People v Brant,
277 AD2d 1022, 1022 [4th Dept 2000], lv denied 96 NY2d 756 [2001]). Defendant
identifies no authority to support his current assertion that the police questioned
him in violation of his indelible right to counsel, and the premise underlying his
attempt to distinguish Heller and its progeny has been explicitly rejected by the
Court of Appeals (see People v Colwell, 65 NY2d 883, 885 [1985]; see also People
v Robles, 72 NY2d 689, 695 [1988]; People v Marshall, 98 AD2d 452, 461-463 [2d
Dept 1984]). Thus, because the governing law was unfavorable to a suppression
motion on the precise theory upon which defendant now relies, defense counsel's
failure to file such a motion cannot be deemed ineffective (see People v Brunner,
16 NY3d 820, 821 [2011]; People v Bradford, 118 AD3d 1254, 1255-1256 [4th
Dept 2014], lv denied 24 NY3d 1082 [2014]).

People v. Pabon, 173 A.D.3d 1847, 1847–48, 104 N.Y.S.3d 471 (2019) (emphasis added).

13 State Court Record at p. 117, ECF No. 15-2 at p. 117.
Pabon applied for leave to appeal to the New York Court of Appeals, on the issue of
whether Paperno provided ineffective assistance of counsel related to the statements allegedly
taken in violation of the indelible right to counsel.14 However, on September 23, 2019, the Court
of Appeals denied leave to appeal.
On February 27, 2020, Pabon filed the subject habeas petition, proceeding pro se. The

petition purports to state four separate claims, designated as “A. Ground One,” “B. Ground One,”
“B. Ground Two,” and “C. Ground Three.” However, together, the claims all essentially indicate
that Pabon’s conviction was obtained in violation of his Sixth Amendment right to effective
representation of counsel, inasmuch as Paperno advised him to plead guilty, rather than
attempting to suppress the statements that Pabon made to the police, that were allegedly taken
in violation of his indelible right to counsel under New York law. In support of the claim, Pabon
reiterates the argument rejected by the state courts, namely, that when he made the inculpatory
statements concerning the arson, he was represented by an attorney on an unrelated petit
larceny charge, making it impossible, under New York State law, for him to validly waive his right
to counsel, with regard to the arson charges, without the attorney present. Pabon therefore

maintains that although he waived his Miranda rights before making the inculpatory statements,
the statements were nevertheless involuntary as a matter of New York State law. Consequently,
Pabon contends that Paperno was ineffective for failing to seek suppression of the statements
on that basis, which prevented him from making a knowing, intelligent and voluntary guilty plea.
Respondent opposes every aspect of the application, but essentially points out that that
state court’s denial of Pabon’s ineffective assistance claim on the merits was neither contrary to

14 State Court Record at pp. 151-152, ECF No. 15-2 at pp. 151-152. Respondent contends that Pabon’s
submission to the Court of Appeals only raised the issue of whether Pabon’s indelible right to counsel was
violated. However, the submission asserted that Pabon’s statements to the police “should have been
suppressed, but for counsel’s failure to bring the motion.” Id.
nor an unreasonable application of, clearly established Federal law, nor a decision that was
based on an unreasonable determination of the facts in light of the evidence presented. More
specifically, Respondent indicates that Paperno was not ineffective for failing to file a
suppression motion that had no chance of success.
The Court has considered the arguments of the parties and the entire record, and finds,

for the reasons discussed below, that the habeas petition must be denied.
DISCUSSION
Evidentiary Hearing Not Required
Pursuant to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254 in the
United States District Courts and upon review of the answer, transcript and record, the Court
determines that an evidentiary hearing is not required.
Section 2254 Principles
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the
general legal principles applicable to such a claim are well settled.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the statutory
provision authorizing federal courts to provide habeas corpus relief to prisoners in
state custody—is “part of the basic structure of federal habeas jurisdiction,
designed to confirm that state courts are the principal forum for asserting
constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86,
131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). A number of requirements and
doctrines . . . ensure the centrality of the state courts in this arena. First, the
exhaustion requirement ensures that state prisoners present their constitutional
claims to the state courts in the first instance. See id. (citing 28 U.S.C. § 2254(b)).
Should the state court reject a federal claim on procedural grounds, the procedural
default doctrine bars further federal review of the claim, subject to certain well-
established exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82–84,
97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If the state court denies a federal claim on
the merits, then the provisions of § 2254(d) come into play and prohibit federal
habeas relief unless the state court's decision was either: (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law,” or (2)
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court.” 28 U.S.C. § 2254(d)(1)-(2). Finally, when conducting
its review under § 2254(d), the federal court is generally confined to the record
before the state court that adjudicated the claim. See Cullen v. Pinholster, ––– U.S.
––––, 131 S.Ct. 1388, 1398–99, 179 L.Ed.2d 557 (2011).

Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014). As just mentioned, regarding claims that
were decided on the merits by state courts,
a federal court may grant habeas corpus relief to a state prisoner on a claim that
was adjudicated on the merits in state court only if it concludes that the state court's
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

A state court decision is contrary to clearly established Federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result
opposite to the Supreme Court's result.

A state court decision involves an unreasonable application of clearly established
Federal law when the state court correctly identifies the governing legal principle
but unreasonably applies it to the facts of the particular case. To meet that
standard, the state court's decision must be so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement. It is well established in this circuit that the
objectively unreasonable standard of § 2254(d)(1) means that a petitioner must
identify some increment of incorrectness beyond error in order to obtain habeas
relief.

Santana v. Capra, No. 15-CV-1818 (JGK), 2018 WL 369773, at *7–8 (S.D.N.Y. Jan. 11, 2018)
(Koeltl, J.) (citations and internal quotation marks omitted).
When applying these standards,
[t]he state court's findings of fact are presumed to be correct unless the petitioner
can rebut this presumption by clear and convincing evidence[,] [28 U.S.C.] §
2254(e)(1)[, and] [t]he petitioner bears the ultimate burden of proving by a
preponderance of the evidence that his [federal] constitutional rights have been
violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997).

Epps v. Poole, 687 F.3d 46, 50 (2d Cir. 2012), as amended (Aug. 9, 2012).
“A claim that a state conviction was obtained in violation of state law is not cognizable in
the federal court.” Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) (citing Estelle v. McGuire,
502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) and Dunnigan v. Keane, 137 F.3d 117,
125 (2d Cir.1998)); see also, Guerrero v. LaManna, 325 F. Supp. 3d 476, 483 (S.D.N.Y. 2018)
(“The role of federal courts reviewing habeas petitions is not to re-examine the determinations
of state courts on state law issues, but only to examine federal constitutional or statutory claims.
28 U.S.C. § 2254(a); see Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d
385 (1991). Federal courts deciding habeas petitions do not serve as appellate courts to review
state court decisions of state law claims. Their purpose instead is to review whether the
circumstances surrounding the petitioner's detention ‘violate fundamental liberties of the person,
safeguarded against state action by the Federal Constitution.’ Townsend v. Sain, 372 U.S. 293,
311–312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Habeas petitions may not simply repackage state
law claims, which have previously been found to be meritless, in order to obtain review.
DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004).”).
Ineffective Assistance of Counsel
Pabon here maintains that his guilty plea was the result of ineffective assistance of
counsel, inasmuch as Paperno should have advised him that his statements to the police could
be suppressed under New York’s indelible right to counsel rule. Respondent opposes the
application and contends, in pertinent part, that the state courts “reasonably – and correctly –
concluded that Petitioner’s indelible right to counsel was not violated and, therefore, there was
no basis for counsel to move to suppress Petitioner’s statements on that ground.”
The applicable general standard for an ineffective assistance claim that was denied on
the merits by a state court is well settled:
“To succeed on a claim of ineffective assistance of counsel in violation of the Sixth
Amendment ... a defendant must demonstrate (1) that his attorney’s performance
‘fell below an objective standard of reasonableness,’ and (2) that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” Wilson v. Mazzuca, 570 F.3d 490, 502
(2d Cir. 2009) (citations omitted) (quoting Strickland v. Washington, 466 U.S. 668,
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “The standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.” Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015)
(internal quotation marks omitted).

Kelley v. Larkin, 680 F. App'x 5, 7 (2d Cir. 2017); see also, Riley v. Noeth, 802 F. App'x at 10
(“Taking both AEDPA and Strickland together, the question when reviewing a state court’s
Strickland determination is thus “not whether a federal court believes the state court's
determination was incorrect[,] but [rather] whether that determination was [objectively]
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127
S.Ct. 1933, 167 L.Ed.2d 836 (2007). As such, to justify relief under § 2254(d)(1), [the habeas
petitioner is] required to establish the state court’s effectiveness of counsel determination ‘was
so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’ [Harrington v.] Richter, 562 U.S. at 103,
131 S.Ct. 770.”).
The Strickland standard applies to ineffective assistance claims involving the plea-
bargaining process. See, Missouri v. Frye, 566 U.S. 134, 140, 132 S. Ct. 1399, 1405, 182 L. Ed.
2d 379 (2012) (“[C]laims of ineffective assistance of counsel in the plea bargain context are
governed by the two-part test set forth in Strickland.”) (citation omitted). As relevant here, “[i]f a
plea bargain has been offered, a defendant has the right to effective assistance of counsel in
considering whether to accept it.” Lafler v. Cooper, 566 U.S. 156, 168, 132 S. Ct. 1376, 1387,
182 L. Ed. 2d 398 (2012); see also, Padilla v. Kentucky, 559 U.S. 356, 364, 130 S. Ct. 1473,
1480–81, 176 L. Ed. 2d 284 (2010) (“Before deciding whether to plead guilty, a defendant is

entitled to the effective assistance of competent counsel.”). “Ineffective assistance of counsel
during plea negotiations can invalidate a guilty plea and make granting withdrawal appropriate,
to the extent that the counsel's deficient performance undermines the voluntary and intelligent
nature of defendant's decision to plead guilty.” United States v. Arteca, 411 F.3d 315, 320 (2d
Cir. 2005) (citations omitted).
Here, accepting as true Pabon’s assertion that Paperno never discussed with him the
potential of moving to suppress his statements based on New York’s indelible right to counsel
rule, such fact does not establish either that Paperno’s performance was deficient or that Pabon
was prejudiced thereby. In that regard, the New York State courts determined that Pabon’s
theory, that the indelible right to counsel applied to him even though he had already been

sentenced on the petit larceny charge, lacked merit. As indicated earlier, it is not this Court’s
function in a § 2254 habeas proceeding to review the New York court’s ruling on that point of
state law, and, even if it were, Pabon has not demonstrated that that such ruling was erroneous
under New York law in any event.
That being so, Pabon has not shown that Paperno performed deficiently, either in advising
him to accept the plea offer, or in failing to move to suppress the statements. See, e.g., United
States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987) (“[F]or purposes of effective assistance,
not every possible motion need be filed, but rather, only those having a solid foundation.
Counsel certainly is not required to engage in the filing of futile or frivolous motions.”) (citations
omitted). Nor, for that same reason, has Pabon shown any prejudice flowing from Paperno’s
performance. See, Hayes v. Lee, No. 11-CV-1365 KMK PED, 2015 WL 5943677, at *36
(S.D.N.Y. Oct. 13, 2015) (“Petitioner cannot show that counsel's failure to raise meritless
arguments affected the outcome of the proceeding.”) (collecting cases).
Indeed, given the apparent lack of legal merit to Pabon’s suppression theory under New

York law and the apparent strength of the prosecution’s case against him (even without his
confession), there is no reasonable probability that if Pabon had rejected the plea offer and
proceeded to trial he would have obtained a result more favorable than what he achieved via
the plea deal negotiated by Paperno. Rather, the record indicates that Pabon’s negotiated 13-
year sentence was significantly less than what he could have faced after conviction at trial. See,
e.g., State Court Record at p. 144, ECF No. 15-2 at p. 144 (“Defendant’s criminal history spans
twenty-two years beginning in 1992. A review of the PSI reveals that Defendant pleaded guilty
on eight previous occasions to crimes ranging in severity from misdemeanors to felonies.”); see
also, id. at pp. 145-146 (“The guilty plea was allowed to satisfy the indictment that charged the
defendant with the arson of more than one location and multiple counts of falsely reporting an

incident, thus eliminating the possibility of consecutive terms of imprisonment comprised of both
determinate and indeterminate sentences, the maximum of which was 50 years in prison if
convicted of all counts of the Indictment (Penal Law § 70.30[1][e][vii][A]).”).
In sum, Pabon has not shown that the state court’s denial of his ineffective assistance of
counsel claim was either contrary to or an unreasonable application of, clearly established
Federal law, or that it was based on an unreasonable determination of the facts in light of the
evidence presented. See 28 U.S.C. § 2244(d). Consequently, Pabon’s habeas petition is
denied.
CONCLUSION
The application under 28 U.S.C. § 2254 is denied. Pursuant to 28 U.S.C. § 2253, the
Court declines to issue a certificate of appealability, since Pabon has not made a substantial
showing of the denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to
appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S.
438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on
motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24
of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to close this
action.
So Ordered.
Dated:Rochester, New York
July 26, 2023
ENTER:
gag Sete:
CHARLEGW. SIRAGG
United States Districtludge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366388. Public record. Not legal advice.