Walker v. Lynn

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL TRACY WALKER,

Petitioner,

MEMORANDUM AND ORDER

ADOPTING R&R

-against- 21-CV-7217 (KAM)(LB)

LYNN LILLEY1,

Superintendent of Eastern NY

Correctional Facility,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

On December 28, 2021, Petitioner Michael Tracy Walker

(“Petitioner”), proceeding pro se, filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1, Petition

for a Writ of Habeas Corpus (“Pet.”).) Petitioner challenges his

August 15, 2017, conviction in New York state court of attempted

robbery in the second degree. (Id.) Respondent Lynn Lilley,

Superintendent of Eastern NY Correctional Facility, who is

represented by the Kings County District Attorney’s Office,

responded to the Petition on February 17, 2022, (ECF No. 7, State’s

1 The proper respondent in a federal habeas action is the warden or

superintendent of the facility where the petitioner is held. See Green v. Lee,

964 F. Supp. 2d 237, 253 (E.D.N.Y. 2013). The Court, on its own initiative,

deems the Petition amended to correct the misnomer in the caption naming “Lilly

J. Lynn” as the Respondent. See ECF No. 1; Department of Corrections and

Community Supervision, https://doccs.ny.gov/location/eastern-ny-correctional-

facility (last visited Aug. 8, 2024) (indicating Lynn Lilley is the current

Superintendent of Eastern NY Correctional Facility).

Affirmation in Opposition (“State Opp.”) and State’s Memorandum of

Law in Opposition (“State Mem.”)), and Petitioner responded asking

to place additional “documents” into his file on February 22, 2022,

and March 11, 2022, (ECF Nos. 9, 10).

Thereafter, the Court referred the Petition to Magistrate

Judge Lois Bloom for a Report and Recommendation (“R & R”).

Following the issuance and adoption of the first R & R in early

2023, the Court vacated its adoption of the first R & R based on

Petitioner’s representations that he did not receive the first

R & R. (Docket Entry dated April 7, 2023.) The Court again

referred the Petition to Judge Bloom, who issued a second

comprehensive and detailed R & R, which supersedes the first R & R,

in which she recommended that the Petition be denied and no

certificate of appealability be issued. (See ECF No. 23, Second

R & R (“R & R2”), at 13-14.) To facilitate Petitioner’s ability

to object, and in light of his delays in receiving mail, the Court

granted Petitioner an extended period of time in which to object

to the R & R. (Docket Order dated April 21, 2023.) Petitioner

was served with the R & R and Petitioner submitted his objections

on May 16, 2023. (ECF No. 27, Petitioner’s Objections (“Obj.”).)

For the reasons set forth below, the Court respectfully

overrules Petitioner’s objections and adopts the conclusions of

2 Unless otherwise specified, all subsequent references to the “R & R” in this

Memorandum and Order refer to Magistrate Judge Bloom’s Second R & R, filed as

ECF No. 23.

the R & R. The Court assumes the parties’ familiarity with the

facts underlying the Petition; the history of Petitioner’s guilty

plea, direct appeal, and collateral proceedings; and the contents

of the R & R, to which the Court refers only as necessary to

explain this decision.

DISCUSSION

I. Petitioner’s Offense, Guilty Plea, and Sentencing

On January 8, 2017, at approximately 7:37 p.m., Petitioner

entered a jewelry store located at 1058 Coney Island Avenue, pulled

out a gun, and pointed it at two store employees. (ECF No. 8,

State Court Record3 (“State Ct. Record”), at 57.) Petitioner

repeatedly assaulted the two employees, and then took jewelry from

the store. (Id.) Petitioner attempted to flee the scene, but was

subsequently subdued by one of the employees with the help of

bystanders. (Id.) Police officers arrested Petitioner at the

scene of the crime, and surveillance footage captured the incident.

(Id.) At the time of his arrest, Petitioner was in possession of

a gun and the stolen jewelry. (State Opp. at ¶ 4.)

Petitioner was subsequently indicted in Kings County and

charged with a multitude of offenses, including Robbery in the

First, Second, and Third Degree. (Id. at ¶ 5.) Petitioner

3 The Respondent uploaded the complete record of the underlying state court

proceedings as one consolidated document. The Court’s pincites to the state

court record refer to the ECF-assigned page number.

ultimately pleaded guilty on August 15, 2017, to one count4 of

Attempted Robbery in the Second Degree5, in violation of N.Y. Penal

Law §§ 110.00 and 160.10(2)(a). (Id. at ¶ 6; State Ct. Record at

6.) During Petitioner’s guilty plea hearing, he acknowledged that

he was pleading guilty to a violent felony, and that he would

accordingly be sentenced as a “mandatory persistent” and was

therefore subject to a heightened sentence. (State Ct. Record at

12-13.) Petitioner was subsequently sentenced on August 30, 2017,

as a persistent violent felony offender, pursuant to N.Y. Penal

Law 70.08, to a promised term of 12 years to life in prison. (Id.

at 22-23, 25.) Petitioner did not indicate at sentencing that he

was dissatisfied with his representation by counsel, or that he

had been denied any reasonable accommodations as a disabled person.

(Id.)

Petitioner’s sentencing as a persistent violent felony

offender was based on his arraignment on a predicate felony

statement at sentencing. (Id. at 28.) The statement indicated

that on November 10, 1994, Petitioner was convicted of the violent

felony offense of second degree robbery, and on June 20, 2007,

Petitioner was convicted of the violent felony offense of second

degree assault. (Id.) The sentencing court read aloud the

4 Petitioner also pleaded guilty to burglary in the third degree, in satisfaction

of a separate indictment, at the same proceeding. (State Ct. Record at 6.)

5 Petitioner’s allocution as part of his guilty plea to attempted robbery in

the second degree included an admission that he “caused injury to [the robbery

victim] who [was] not a participant in the crime.” (State Ct. Record at 12.)

predicate violent felonies, asked Petitioner if he had discussed

the matter with his attorney, and then asked Petitioner if he

admitted he was the person convicted on those prior violent

felonies. (Id. at 23.) Petitioner stated he had discussed the

matter with counsel, admitted he was the person convicted of the

prior felonies, and stated that he did not wish to challenge the

constitutionality of his prior convictions. (Id.)

II. Petitioner’s Collateral Attacks on the Sentence

A. Petitioner’s CPL § 440.20 Motion

Petitioner initially moved to set aside his sentence pursuant

to New York Criminal Procedure Law (“CPL”) § 440.20 on January 11,

2018. (State Ct. Record at 180 n.1.) It appears that Petitioner

realized his motion was premised on an incorrect basis, as he

subsequently conceded that the motion was meritless and moved to

set aside his sentence on different grounds on March 29, 2018,

again pursuant to CPL § 440.20. (Id.) The reviewing court

disregarded the earlier motion, and only considered Petitioner’s

subsequent March 29, 2018, motion. (Id.)

In his March 2018 motion, Petitioner argued that his sentence

should be set aside on two grounds: (1) that the sentencing court

failed to orally pronounce that Petitioner was being sentenced as

a violent predicate felony offender; (2) that his attorney at

sentencing, and previously in 2007, were ineffective in failing to

correct the judge regarding Petitioner’s predicate status or

otherwise informing the judge that Petitioner should have been

sentenced as a non-violent predicate felon. (Id. at 180.)

The reviewing court rejected both of Petitioner’s arguments

and denied his motion to set aside his sentence on May 30, 2018.

(Id.) The reviewing court determined that Petitioner’s prior 1994

and 2007 convictions both qualified as predicate violent felony

convictions, as defined in N.Y. Penal Law § 70.04(1)(b). (Id. at

182.) The court rejected Petitioner’s contentions that the

sentencing court in 2007 only adjudicated him as a “second felony

offender,” citing to New York case law that notes the convictions,

and not the sentence, are the basis of the persistent violent

felony offender status. (Id. at 183.) The reviewing court also

rejected Petitioner’s claims of ineffective assistance of counsel,

finding that each counsel provided “meaningful representation” to

Petitioner, and that Petitioner did not suffer any actual

prejudice. (Id. at 184-85.)

Petitioner subsequently applied for a certificate granting

leave to appeal from the order denying his CPL § 440.20 motion,

which was denied by a justice of the Appellate Division on

September 17, 2018. People v. Walker, 2018 WL 4427295 (N.Y. App.

Div. 2d Dep’t Sept. 17, 2018). On November 16, 2018, a judge of

the Court of Appeals dismissed as unappealable defendant’s further

application for leave to appeal from the September 17, 2018, order

of the Appellate Division. People v. Walker, 115 N.E.3d 639 (N.Y.

2018).

B. Petitioner’s CPL § 440.10 Motion

After his CPL § 440.20 motion was denied, but before he had

exhausted his appeals, Petitioner moved pro se to vacate his

judgment of conviction pursuant to CPL § 440.10 on June 13, 2018.

(State Opp. at ¶ 16; State Ct. Record at 212.) In the motion,

Petitioner argued that (1) the indictment was defective because

the prosecution knowingly allowed perjured testimony in the grand

jury proceedings; (2) he was denied effective assistance of counsel

because his attorney did not introduce the surveillance video of

the incident; and (3) the prosecution violated his due process

rights and their Brady obligations by withholding the surveillance

video. (State Ct. Record at 265.)

The reviewing court denied Petitioner’s CPL § 440.10 motion

without a hearing on November 30, 2018. (Id.) First, the court

found that the surveillance video “show[ed] Defendant exiting the

store with a gun in his hand” and later being apprehended with the

gun remaining nearby, belying Petitioner’s claim that the video

contradicted grand jury testimony. (Id. at 267.) Second, the

court found that, in any event, Petitioner gave up his right to

challenge the evidence presented to the grand jury when he pleaded

guilty. (Id.) The court likewise rejected Petitioner’s claim of

ineffective assistance of counsel, noting certain factual

statements were contradicted by his own admissions, and that

Petitioner ultimately benefited from an advantageous plea bargain

that limited his sentence of imprisonment. (Id. at 268.) Finally,

as to the Brady claim, the court noted that, contrary to

Petitioner’s claim of withheld evidence, Petitioner admitted that

he watched a copy of the video with his attorney. (Id.) Finding

that Petitioner had “a full opportunity to litigate all possible

good faith claims through post-conviction processes,” the court

required Petitioner to seek written permission before filing

future post-conviction motions. (Id.)

Petitioner subsequently applied for a certificate granting

leave to appeal from the order denying his CPL § 440.10 motion,

which was denied by a justice of the Appellate Division on July 9,

2019. People v. Walker, 2019 WL 2997352 (N.Y. App. Div. 2d Dep’t

July 9, 2019). On September 6, 2019, a judge of the Court of

Appeals dismissed as unappealable defendant’s further application

for leave to appeal from the July 9, 2019, order of the Appellate

Division. People v. Walker, 134 N.E.3d 635 (N.Y. 2019).

III. Petitioner’s First Petition for a Writ of Habeas Corpus

Following the denial of his CPL § 440.10 motion, Petitioner

moved before this Court for a writ of habeas corpus on December

18, 2018. See Walker v. Keiser, No. 18-cv-7227 (KAM)(LB).

Petitioner raised claims that largely mirrored those in his earlier

CPL § 440.20 motion to set aside his sentence, but also argued (1)

that the court failed to reasonably accommodate his disability

(glaucoma causing legal blindness), and failed to appoint him a

defense counsel who was familiar with the Americans with

Disabilities Act (“ADA”); and (2) Petitioner was denied his right

to access the courts because he was unable to use the law library

at his correctional facility. (State Ct. Record at 278-288.) On

May 26, 2020, this Court dismissed Petitioner’s habeas petition

without prejudice as premature based on Petitioner’s failure to

comply with the exhaustion requirements set forth in 28 U.S.C. §

2254(b)(1)(A). Walker v. Keiser, No. 18-CV-7227 (KAM)(LB), 2020

WL 2733987, at *4 (E.D.N.Y. May 26, 2020). The Court noted that

because it “decline[d] to reach the merits of Mr. Walker's petition

and dismisse[d] it purely on procedural grounds, Mr. Walker's

filing of a subsequent petition asserting the same grounds for

relief shall not count as a ‘second’ or ‘successive’ petition under

AEDPA.” Id. at *5. Petitioner appealed the dismissal, and the

Second Circuit declined to grant his motion for a certificate of

appealability. Walker v. Keiser, No. 20-1784, 2020 WL 7213207, at

*1 (2d Cir. Nov. 17, 2020).

IV. Petitioner’s Direct Appeal

Defendant filed his direct appeal of his conviction, pro se,

on January 7, 2020, raising three claims: (1) he was precluded

from access to assistive devices for his disability, rendering his

plea involuntary; (2) he was wrongly adjudicated a persistent

violent felony offender; and (3) his counsel was ineffective on

several grounds, including during plea negotiations. (State Opp.

at ¶ 26.) The Appellate Division affirmed Petitioner’s conviction

on December 30, 2020. People v. Walker, 138 N.Y.S.3d 591, 592 (2d

Dep’t 2020). The Appellate Division concluded that Petitioner’s

argument that his plea was involuntary was unpreserved and based

on matters outside the record, that Petitioner validly waived his

right to appeal, precluding all of his ineffectiveness claims

beyond those related to the voluntariness of the plea, and that

his claim of ineffectiveness regarding the voluntariness of his

plea was not reviewable and should be raised in a motion to vacate

the judgment of conviction. Id. at 592-93. The Appellate Division

also found that Petitioner’s challenge to his sentence was

unpreserved, that he was properly adjudicated a persistent violent

felony offender, and that Petitioner’s remaining claims were based

on matters outside the record and therefore not properly before

the appellate court. Id. at 593. Petitioner’s application for

further leave to appeal was denied by the New York Court of Appeals

on July 8, 2021. People v. Walker, 172 N.E.3d 800 (N.Y. 2021).

V. The Instant Petition

Petitioner filed the instant petition on December 28, 2021,

raising three grounds for habeas relief. (See generally Pet.)

First, Petitioner claims that his sentence as a predicate violent

felony offender was unauthorized and the result of ineffective

assistance of counsel. (Id. at 5.) Second, Petitioner claims

that his attorney was ineffective for instructing him not to

controvert his prior conviction of assault in the second degree as

unauthorized for sentencing purposes. (Id. at 6.) Third,

Petitioner claims that his attorney was not trained under the

A.D.A. and the Rehabilitation Act, and therefore failed to afford

him reasonable accommodations. (Id. at 8.)

As discussed further supra, Respondent appeared and filed an

answer to the Petition, and the matter was referred to Judge Bloom

for an R & R. Although the First R & R was adopted in full, the

Court later vacated the order adopting the First R & R after being

informed by Petitioner that he had not received the First R & R.

(Docket Order dated April 7, 2023.) Judge Bloom subsequently

issued a Second R & R on April 10, 2023, (“R & R”), and Petitioner

filed his objections on May 16, 2023, (Obj.).

LEGAL STANDARD

I. Review of a Report and Recommendation

“When a magistrate judge has issued an R & R and a party makes

specific and timely written objections, a district court is to

review de novo those portions of the report to which objection is

made.” Witherspoon v. Colvin, No. 18-CV-4816 (DC), 2023 WL

2134873, at *2 (E.D.N.Y. Feb. 21, 2023) (internal quotation marks

and citation omitted); see also 28 U.S.C. § 636(b)(1). “The

objections of parties appearing pro se are ‘generally accorded

leniency’ and should be construed ‘to raise the strongest arguments

that they suggest.’” Reyes v. LaValley, No. 10-CV-2524 (KAM) (LB),

2013 WL 4852313, at *1 (E.D.N.Y. Sept. 10, 2013) (quoting Milano

v. Astrue, No. 05-CV-6527 (KMW) (DCF), 2008 WL 4410131, at *2

(S.D.N.Y. Sept. 26, 2008), aff'd, 382 F. App'x 4 (2d Cir. 2010)).

But “where objections are ‘merely perfunctory responses,’ argued

in an attempt to ‘engage the district court in a rehashing of the

same arguments set forth in the original petition,’” the standard

of review is clear error. Ortiz v. Barkley, 558 F. Supp. 2d 444,

451 (S.D.N.Y. 2008) (quoting Vega v. Artuz, No. 97-CV-3775 (LTS)

(JCF), 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002)). Upon

review of the R & R, the district court “may accept, reject, or

modify the recommended disposition; receive further evidence; or

return the matter to the magistrate judge with instructions.” Fed.

R. Civ. P. 72(b)(3).

II. Federal Review of State Convictions

In reviewing a petition for habeas corpus relief, a federal

court may only consider whether a person is in custody pursuant to

a state court judgment in violation of the United States

Constitution or laws or treaties of the United States. 28 U.S.C.

§ 2254(a). The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) requires a federal court reviewing a state

prisoner's habeas petition to give deference to a state court's

decision on the merits. Id. § 2254(d). A federal court may not

issue a writ of habeas corpus unless the state court's decision

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

clearly established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” Id.; see also Harrington v. Richter,

562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857 F.3d 466, 477 (2d

Cir. 2017). “A federal court may reverse a state court ruling

only where it was ‘so lacking in justification that there was . . .

[no] possibility for fairminded disagreement.’” Vega v. Walsh,

669 F.3d 123, 126 (2d Cir. 2012) (per curiam) (quoting Harrington,

562 U.S. at 103).

“This deferential standard is higher still for habeas

petitions alleging the ineffective assistance of counsel.”

Witherspoon, 2023 WL 2134873, at *2. In general, to prevail on a

claim of ineffective assistance, a petitioner must (1) show that

counsel's performance was so deficient as to fall below “an

objective standard of reasonableness”; and (2) establish prejudice

by demonstrating a “reasonable possibility” that, “but for

counsel's unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S.

668, 688, 694 (1984). In the context of a habeas petition pursuant

to 28 U.S.C. § 2254, however, “[e]stablishing that a state court's

application of Strickland was unreasonable . . . is all the more

difficult. The standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in tandem, review

is doubly so.” Harrington, 562 U.S. at 105 (internal quotation

marks and citations omitted). Therefore, “[t]he operative

question” when a federal court reviews “a state court's Strickland

ruling is thus not whether [the] federal court believes the state

court's determination was incorrect, but rather whether that

determination was objectively unreasonable.” Waiters, 857 F.3d at

478 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007))

(internal quotation marks omitted).

Beyond the aforementioned deferential standard of review,

“federal courts will not review questions of federal law presented

in a habeas petition when the state court's decision rests upon a

state-law ground that is independent of the federal question and

adequate to support the judgment.” Cone v. Bell, 556 U.S. 449,

465 (2009) (internal quotation marks and citation omitted). As a

result, federal courts may not review a state court ruling that

“fairly appear[s] to rest primarily on state procedural law,” so

long as the procedural bar is “adequate to support the judgment.”

Murden v. Artuz, 497 F.3d 178, 191-92 (2d Cir. 2007) (citations

omitted). “Federal courts in this Circuit have repeatedly held

that the gatekeeping provisions of New York law governing a

petitioner's failure to raise a claim on direct appeal ‘represent[]

the application of a firmly established and regularly followed New

York rule.’” Witherspoon, 2023 WL 2134873, at *2 (quoting Williams

v. Goord, 277 F. Supp. 2d 309, 318-19 (S.D.N.Y. 2003)).

DISCUSSION

The instant Petition presents three grounds for relief: (1)

that his sentence as a persistent violent felony offender was

unauthorized; (2) that his counsel was ineffective in that she

instructed him not to controvert his prior conviction of Assault

in the Second Degree, which he claims was unauthorized for

predicate sentencing purposes; and (3) that his counsel was not

trained under the Americans with Disabilities Act or the

Rehabilitation Act and failed to afford him reasonable

accommodations for his visual impairment. (Pet. at 5–6, 8.) In

the R & R, Judge Bloom recommended that Petitioner’s first and

third claims were not cognizable on habeas review, and that his

ineffective assistance of counsel claim failed on the merits.

(R & R at 7-13.)

I. Petitioner’s Persistent Violent Felony Offender Sentencing

Claim

Regarding Petitioner’s claim of an unauthorized sentence as

a persistent violent felony offender, Judge Bloom determined that

“[t]he question of whether a habeas petitioner was unlawfully

adjudicated a persistent felony offender and improperly subjected

to recidivist sentencing under New York State law is not cognizable

on habeas review.” (R & R at 7 (citing Saracina v. Artus, 452 F.

App’x 44, 46 (2d Cir. 2011).) Therefore, Judge Bloom declined to

review the claim given “it is not the province of a federal habeas

court to reexamine state-court determinations on state-law

questions.” (Id. at 8 (quoting Estelle v. McGuire, 502 U.S. 62,

67-68 (1991).)

Petitioner objects to Judge Bloom’s findings, arguing that

Judge Bloom “circumvented” and failed to consider the exhibits he

submitted related to his prior sentencings by not making reference

to them or discussing them in the R & R. (Obj. at 8-13.)

Petitioner also objects to Judge Bloom’s characterization of his

claim, arguing that it was not solely based on the defective nature

of his “rap sheet.” (Id. at 14-16.) Petitioner further objects

to the fact that Judge Bloom did not refer to his CPL § 440.20

motion in summarizing the procedural history of his case, but

rather to a summary of it included in the order denying his motion.

(Id. at 15-20.) Finally, Petitioner objects to Judge Bloom’s

reliance on Saracina, 452 F. App’x at 46. (Id. at 21.)

As noted above, “where objections are ‘merely perfunctory

responses,’ argued in an attempt to ‘engage the district court in

a rehashing of the same arguments set forth in the original

petition,’” the standard of review of a Report & Recommendation is

clear error. Ortiz, 558 F. Supp. 2d at 451. Petitioner does not

offer any additional factual information or legal authority that

was not before Judge Bloom when she originally entered the R & R,

and the Court need only review the R & R for clear error, as a

result. The Court finds no clear error in Judge Bloom’s findings,

but even if the Court were to review this claim de novo, the Court

would conclude that Petitioner’s claim does not provide a basis

for habeas relief.

Under New York law, “[w]hen the court has found . . . that a

person is a persistent violent felony offender,” defined as “a

person who stands convicted of a violent felony offense . . . after

having previously been subjected to two or more predicate violent

felony convictions,” the court “must impose an indeterminate

sentence of imprisonment, the maximum term of which will be life

imprisonment.” N.Y. Penal L. § 70.08(2) (emphasis added).

Multiple courts in this district have found, as Judge Bloom did,

that any error in applying the persistent violent felony offender

statute at sentencing is a matter of state law, and therefore not

cognizable on habeas review. See e.g., Saracina, 452 F. App’x at

46 (finding that the question of whether the state court “erred in

applying a New York recidivist sentencing enhancement statute,”

such as N.Y. Penal Law § 70.08, “is a question of state law” and

is not cognizable on habeas review); May v. Griffin, No. 17-CV-

6319 (KMK)(JCM), 2021 WL 5450731, at *23 (S.D.N.Y. Mar. 15, 2021),

report and recommendation adopted, 2021 WL 5450346 (S.D.N.Y. Nov.

19, 2021) (finding claim that prior conviction was improperly

considered as a predicate offense under the persistent violent

felony offender statute not cognizable on habeas review);

Albritton v. Comm’r, New York State Dep't of Corr. Servs., No. 11–

CV–3482 (RRM), 2013 WL 4500736, at *7 (E.D.N.Y. Aug. 20, 2013)

(claim that prior conviction was improperly used as a predicate

for a “second felony adjudication” is “purely a matter of state

law”); Boutte v. Poole, No. 07-CV-8412 (GEL), 2008 WL 3166696, at

*1 (S.D.N.Y. Aug. 4, 2008) (finding that Petitioner's claim that

he was improperly sentenced as a persistent violent felony offender

because his prior conviction “was not . . . for a violent felony”

is “exclusively a question of state law” and “may not be a basis

for federal habeas relief.”).

Furthermore, Petitioner’s objection to the application of

Saracina in the R & R is based on an erroneous reading of the

opinion. Saracina dealt with a very similar situation as

encountered here – a petitioner who claimed he was unlawfully

adjudicated as a persistent felony offender. 452 F. App'x at 45.

The Second Circuit found that “[w]hether a New York court erred in

applying a New York recidivist sentencing enhancement statute is

a question of New York State law” and therefore not the province

of a federal habeas court to review. Id. at 46. The Second

Circuit’s reference to a Canadian conviction was in a supporting

parenthetical for United States ex rel. Dennis v. Murphy, 265 F.2d

57, 58 (2d Cir. 1959) (per curiam), which the Second Circuit cited

in support. Therefore, Petitioner’s objection to the use of

Saracina is misplaced.

Finally, even if this Court were able to review the merits of

Petitioner’s claim, the Court would conclude they are without

merit. As the reviewing court explained in great detail in its

order rejecting Petitioner’s CPL § 440.20 motion, Petitioner was

properly sentenced as a persistent violent felony offender. (State

Ct. Record at 182.) At the time of his sentencing in 2017,

Petitioner had been convicted of three violent felonies. See N.Y.

Penal Law § 70.02(1)(b)-(c) (defining attempted and completed

second-degree robbery as violent felonies, along with assault in

the second degree). Petitioner’s 1994 conviction for robbery in

the second degree and 2007 conviction for assault in the second

degree were predicate violent felony “convictions,” and the court-

imposed sentences for them on November 10, 1994, and June 20, 2007,

respectively. (Id. at 181.) Accordingly, Petitioner was convicted

of two violent felonies6 before, but fewer than ten years before,

Petitioner committed the instant felony on January 8, 2017,

excluding jail time. See N.Y. Penal Law § 70.04(b). In light of

these two prior violent felony “convictions,” the court properly

adjudicated petitioner a persistent violent felony offender on

August 30, 2017. N.Y. Penal Law § 70.08(1)(a).

6 “‘Conviction’ means the entry of a plea of guilty to, or a verdict of guilty

upon, an accusatory instrument other than a felony complaint, or to one or more

counts of such instrument.” CPL § 1.20(13)

Petitioner’s contention that in 2007, the court sentenced him

as a second felony offender, rather than as a second violent felony

offender, has no impact on whether Petitioner could be sentenced

as a persistent violent felony offender. As other courts have

recognized, “it is wholly irrelevant that in [a prior sentencing],

the sentencing court referred to [Petitioner] as a ‘prior predicate

felon’” rather than as a violent felony offender. Burgess v.

Yelich, No. 09-CV-5514 (RRM), 2013 WL 6816602, at *10 (E.D.N.Y.

Dec. 24, 2013). Instead, what matters for the persistent violent

felony offender analysis is Petitioner’s conviction, rather than

his sentence for those convictions. Id. (citing N.Y. Penal Law §§

70.04(b), 70.08(1)(a)); see also People v. Carr, 664 N.Y.S.2d 766,

767 (1st Dep’t 1997) (Although defendant “escaped being sentenced

as a second violent felony offender for his second violent felony

conviction in 1989, neither [New York precedent] nor Penal Law §

70.08 require that a defendant be adjudicated a second violent

felony offender in order to be sentenced as a persistent violent

felony offender for his third violent felony conviction.”)

Therefore, even if the Court could review Petitioner’s claim

regarding an unauthorized sentence, the Court finds no error in

the state court’s determination that Petitioner was a violent

felony offender, and therefore it would not be a basis for habeas

relief.

In light of the above, the Court respectfully overrules

Petitioner’s objection and adopts Judge Bloom's recommendation

that Petitioner’s persistent violent felony offender claim be

denied as not cognizable on habeas review.

II. Ineffective Assistance of Counsel

Judge Bloom next considered Petitioner’s claim that he was

denied the effective assistance of counsel due to his court-

appointed attorney instructing him “not to controvert [his] prior

conviction of assault in the second degree” as unauthorized. (Pet.

at 6.) Judge Bloom found that Petitioner’s ineffective assistance

claim failed “both prongs of the Strickland test.” (R & R at 9.)

First, Judge Bloom found that because Petitioner’s underlying

sentencing claim (regarding his adjudication as a persistent

violent felony offender) lacked merit, it could not give rise to

a claim of ineffective assistance of counsel. (Id. at 10.)

Second, Judge Bloom found that even if Petitioner’s counsel had

erred, Petitioner does not “demonstrate a reasonable probability

that he would not have pleaded guilty but rather would have

insisted on going to trial but for counsel’s alleged errors.” (Id.

at 11.)

The Court is not able to discern any specific objections by

Petitioner to Judge Bloom’s findings on his second claim, beyond

his objection to Judge Bloom citing an argument from his direct

appeal that he argues is not renewed in his present Petition.

(Obj. at 22.) In the absence of specific objections, the Court

reviews Judge Bloom’s findings for clear error, and finding none,

adopts them in full.

As Judge Bloom explained in the R & R, the crux of

Petitioner’s ineffective assistance of counsel claim is that he

should not have been sentenced as a persistent violent felony

offender in 2017, because at his June 20, 2007, sentencing, the

sentencing court stated that it “adjudicate[d] [Petitioner] a

second felony offender,” as opposed to a second violent felony

offender. (Pet. at 6, State Ct. Record at 326.) As discussed

supra, the wording used at Petitioner’s 2007 sentencing is

irrelevant to whether he was convicted of a violent felony.

Indeed, at Petitioner’s June 5, 2007, plea hearing, the state court

engaged in the following colloquy:

THE COURT: Mr. Walker, do you wish to plead guilty to

the class D as in David violent felony offense of assault

in the second degree, the fifth count of this indictment,

to cover and satisfy the entire indictment against you?

[PETITIONER]: Yes, your Honor.

(State Ct. Record at 320.) Based on Petitioner’s guilty plea, he

was convicted of the violent felony offense of assault in the

second degree, and it properly served as a predicate violent felony

offense for his sentencing in 2017.

Because Petitioner’s claim that he was improperly sentenced

as persistent violent felony offender is meritless, his counsel’s

failure to make that argument (or encourage Petitioner to do so)

does not constitute ineffective assistance of counsel. 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.”) (internal quotation marks and citation omitted).

Because Petitioner has not shown his counsel committed any

cognizable errors at sentencing or otherwise, the Court

respectfully overrules his objections and adopts Judge Bloom’s

well-reasoned recommendations in their entirety.

III. Petitioner’s Americans with Disabilities Act Claim

Judge Bloom closed the R & R by considering Petitioner’s final

claim that his counsel was “not trained under the ADA” or Section

504 of the Rehabilitation Act, and therefore failed to provide him

with “reasonable accommodations.” (Pet. at 8.) Judge Bloom found

that Petitioner’s ADA claim was not cognizable on habeas review,

and that, even interpreted as an ineffective assistance of counsel

claim, Petitioner failed to demonstrate that his counsel’s

performance fell below an objective standard of reasonableness.

(R & R at 12-13.)

Petitioner objects, raising the same arguments that he made

in previous filings that his counsel’s review of video surveillance

footage with him was insufficient because his counsel did not bring

an “advocate” under the ADA or assistive devices to the meeting.

(Obj. at 25.) Petitioner also cites grievances he filed with

prison authorities claiming that he was not provided with assistive

devices in the law library. (Id.) Petitioner argues that his

“counsel bec[ame] his set of eyes” as a result, and made errors

that he was not able to detect, including the previously mentioned

issue with the 2007 conviction. (Id. at 26-27.)

To the extent Petitioner’s claim is solely premised on a

violation of the ADA or Section 504 of the Rehabilitation Act, the

Court concurs with Judge Bloom that such a claim, on its own, is

not cognizable on habeas review, which is to be used only for

challenges to either the fact or duration of a prisoner's

confinement. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)

(“a [§] 1983 action is a proper remedy for a state prisoner who is

making a constitutional challenge to the conditions of his prison

life, but not to the fact or length of his custody”). This Court

must liberally construe Petitioner’s arguments in light of his pro

se status, and thus, the Court will also consider, as Judge Bloom

did, whether his counsel’s alleged failure to accommodate his

disability constituted ineffective assistance of counsel. (See R

& R at 13.)

The Court notes that the Second Circuit has held “that the

Sixth Amendment right to participate in one's own trial encompasses

the right to reasonable accommodations for impairments to that

participation, including hearing impairments.” United States v.

Crandall, 748 F.3d 476, 481 (2d Cir. 2014). Similarly, just as a

court on notice of a defendant’s impairments has a duty to provide

a reasonable accommodation, “so too does an attorney aware of his

client's hearing impairment have a duty to seek reasonable

accommodation for it.” Pierotti v. Harris, 350 F. Supp. 3d 187,

196 (E.D.N.Y. 2018). Notwithstanding the aforementioned

precedent, there are notable distinctions between the present case

and Pierotti that indicate Petitioner was not denied the right to

effective assistance of counsel.

In Pierotti, the petitioner was “only able to hear and

understand a speaker speaking directly to him while facing him”

and he wore two hearing aids, but was without the hearing aids at

the time of trial. Id. at 190. Pierotti’s counsel was on notice

of his client’s hearing difficulties and requested accommodations

from the court, which were denied. Id. Pierotti subsequently had

difficulty during the trial understanding the proceedings, and

notified his newly-appointed counsel multiple times that he could

not hear what was being stated. Id. at 191. Despite this,

Pierotti’s counsel took no further steps to accommodate his

client’s difficulty hearing or following the proceedings. Id. at

196. On this record, the Pierotti court found that Pierotti “was

essentially rendered absent for significant portions of his trial”

and therefore his trial was rendered fundamentally unfair. Id. at

197.

Petitioner’s case is easily distinguishable from Pierotti.

Petitioner states in his filings that he is “legally blind” and

“can not read documents without the use of devices.” (State Ct.

Record at 38.) Though the Court does not minimize Petitioner’s

disability in any way, it does not appear from the record that his

sight impairment impacted his ability to engage with his counsel

in the instant case or determine whether to enter a guilty plea.

As noted by the Respondent, Petitioner’s counsel was capable of

reading to Petitioner any document he wished to understand, and

the Petitioner never informed the court at his plea hearing or at

sentencing that Petitioner was unable to understand the indictment

or any other documents in his case. In fact, the record shows

that at Petitioner’s plea hearing, he agreed with the court that

he had “had enough time to discuss” the case, his plea, and his

sentence with his attorney, and that Petitioner stated he

understood the rights he was giving up by pleading guilty. (Id.

at 6-9.) When it came time for Petitioner to agree to an appellate

waiver, his counsel requested to have the opportunity to read the

waiver aloud for her client to hear. (Id. at 9-10.) Petitioner

subsequently agreed that he understood the appellate waiver and

had had a chance to discuss the waiver with his attorney. (Id. at

10-11.)

Petitioner argues that his counsel failed to accommodate his

disability by, among other things, visiting him to discuss the

surveillance footage without assistive devices beyond a standard

laptop. (Obj. at 25.) The Court finds no evidence that

Petitioner’s counsel was ineffective in failing to secure such

assistive devices. Petitioner does not contend that he was

actually unable to view the surveillance footage on a laptop, or

that his counsel failed to describe what the video conveyed and

answer any questions that Petitioner might have about the video.

Similarly, there is no evidence that Petitioner’s counsel failed

to convey information to Petitioner about his previous felony

convictions contained in written documents by discussing the

documents with him orally. Based on the facts of this case, the

Court does not conclude that Petitioner’s counsel’s performance

fell below an objective standard of reasonableness, as numerous

other courts in the circuit have concluded in similar

circumstances. See, e.g., Maynard v. Brown, No. 07-CV-10480 (FM)

(WHP), 2009 WL 960075, at *10 (S.D.N.Y. Mar. 11, 2009), report and

recommendation adopted, 2009 WL 1344688 (S.D.N.Y. May 13, 2009)

(finding no ineffective assistance of counsel claim where

petitioner “established that no [American Sign Language]

interpreter was present during his out-of-court consultations with

[his lawyer], [but he failed to] demonstrate[] that the quality of

their discussions was adversely impacted”); Yik Man Mui v. United

States, No. 99-CV-3627 (SJ) (RER), 2013 WL 6330661, at *20

(E.D.N.Y. Dec. 5, 2013) (rejecting ineffective assistance of

counsel claim based on “blanket assertions about language barriers

without pointing to any specific instances where [petitioner] was

unable to understand” his counsel or proceedings); Sanders v.

United States, 130 F. Supp. 2d 447, 449 (S.D.N.Y. 2001)

(petitioner’s argument that the failure to provide him with written

translations of documents in his case violated his rights without

merit when petitioner “was provided the services of a certified

interpreter at every court appearance and in meetings with his

lawyers prior to his plea and sentencing”).

Because Petitioner has not shown his counsel was deficient in

failing to take further steps to accommodate his disability, the

Court finds no basis for relief based on ineffective assistance of

counsel, respectfully overrules Petitioner’s objections, and

adopts Judge Bloom’s well-reasoned recommendations in their

entirety.

IV. Remaining Objection

Separate and apart from Petitioner’s objections to Judge

Bloom’s findings on his claims, Petitioner also objects to the

R & R’s characterization of the Petitioner’s underlying offense.

(Obj. at 28.) Petitioner argues that he “did not strike any female

in the head with a firearm.” (Id.) Petitioner’s objection to the

R & R’s characterization of his offense has no bearing on Judge

Bloom’s findings, which did not rely on the challenged fact.

Accordingly, the Court overrules Petitioner’s remaining objection,

finding that it is irrelevant to Judge Bloom’s analysis of whether

his claims supported habeas relief.

CONCLUSION

For the reasons set forth above, Petitioner's objections are

overruled, and Magistrate Judge Bloom's well-reasoned and thorough

Report and Recommendation is adopted in its entirety as the opinion

of the court. Accordingly, Petitioner's petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 is denied and dismissed

in its entirety. Because Petitioner has not made a substantial

showing of the denial of any constitutional right, a certificate

of appealability will not issue and is denied. Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003) (discussing certificate of

appealability standard); Rules Governing Section 2254 and 2255

Cases, Rule 11 (“The district court must issue or deny a

certificate of appealability when it enters a final order adverse

to the applicant.”).

The Clerk of Court is respectfully requested to amend the

caption to reflect that Lynn Lilley (the Superintendent of Eastern

NY Correctional Facility) is the Respondent, enter judgment in

favor of Respondent, and close this case. In accordance with 28

U.S.C. § 1915(a)(3), the Court certifies that any appeal from this

order would not be taken in good faith and thus denies in forma

pauperis status for the purposes of an appeal. See Coppedge v.

United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is

respectfully requested to serve a copy of this Order and the

Judgment on Petitioner and note such service on the docket by

August 14, 2024.

SO ORDERED.

7 ‘YY, —————

Dated: August 12, 2024 f? 7p

Brooklyn, New York ay oe - ww

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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