Morris v. Bennett

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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HOWARD MORRIS,

Petitioner,

v. MEMORANDUM AND ORDER

24-CV-2696 (RPK) (LB)

STACIE BENNETT,

Respondent.

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RACHEL P. KOVNER, United States District Judge:

Petitioner Howard Morris is serving a state prison sentence of twenty years to life after

being convicted of second-degree murder and attempted first-degree assault in New York. He

seeks a writ of habeas corpus under 28 U.S.C. § 2254 on two grounds. First, he argues that his

guilty plea was not knowing, voluntary, and intelligent because his statements during the plea

hearing negated two elements of the predicate burglary charge for felony murder. Second, he

argues that he was deprived of effective assistance of counsel because his counsel misrepresented

how long of a sentence petitioner was likely to serve, failed to fully advise petitioner of the

immigration consequences of a conviction, and failed to negotiate a more favorable plea

agreement. For the reasons explained below, the petition is denied.

BACKGROUND

The following facts are taken from the state court record, viewed in the light most favorable

to the prosecution. See McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam).

In October 2017, petitioner and two accomplices burglarized a home, stealing $45,000 in

cash. Plea Tr. 15–16 (Dkt. #4-3). In the course of the burglary, they tied up the two elderly

occupants, resulting in the death of one of the victims. See People v. Morris, 158 N.Y.S.3d 253,

254 (App. Div. 2021). In February 2019, petitioner pleaded guilty to second-degree murder in

violation of New York Penal Law Section 125.25(3) and attempted first-degree assault in violation

of New York Penal Law Sections 110 and 120.10(1). Plea Tr. 3–5. Before accepting the plea, the

trial court conducted a plea colloquy, during which petitioner stated that he agreed to plead guilty

to second-degree murder in exchange for a negotiated sentence of twenty years in state prison to

life and to first-degree assault in exchange for a negotiated concurrent sentence of fifteen years in

state prison and five years post-release supervision. Ibid. Petitioner then affirmed that he

understood the plea agreement, his rights, the conditions of his plea, and that his guilty plea would

lead to his deportation. Id. at 6–8. He also affirmed that he was pleading guilty voluntarily, of his

own free will, and after discussing the plea and sentencing options with his attorneys. Id. at 5–7.

At one point during the hearing, defendant stated that, although he had stolen a lockbox

from the home, he did not know precisely what it contained. Id. at 12–14. The court indicated

reluctance to accept petitioner’s plea. Id. at 14. After a brief pause in the proceedings during

which petitioner spoke with his attorney, the court elicited statements from petitioner that he knew

the occupants kept money in their home and that he went to the home intending to burglarize it.

Id. at 16. The court then accepted petitioner’s plea. Id. at 18.

Petitioner appeared before the court for sentencing in March 2019, and the court sentenced

petitioner on the second-degree murder charge to a prison term of twenty years to life, along with

five years of post-release supervision. Sent’g Tr. 10 (Dkt. #4-4). He also received a concurrent

sentence of fifteen years, followed by five years of post-release supervision, on the attempted first-

degree assault charge. Ibid.

Petitioner appealed his conviction and sentence to the New York Appellate Division,

Second Department, on the grounds that “his plea of guilty was not knowing, voluntary, or

intelligent because the allocution was factually insufficient,” that his appeal waiver was invalid,

and that his sentence was harsh and excessive. Morris, 158 N.Y.S.3d at 254–55. The Appellate

Division affirmed his conviction, id. at 255, and, on February 28, 2022, the New York Court of

Appeals denied leave to further appeal, People v. Morris, 38 N.Y.3d 929, 929 (2022). Petitioner’s

conviction became final 90 days later. See Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000).

In November 2022, petitioner filed a pro se motion to vacate the trial court’s judgment of

conviction pursuant to New York Criminal Procedure Law Section 440.10, claiming that his trial

counsel rendered ineffective assistance of counsel. Pet’r’s First Section 440 Mot. (Dkt. #4-13).

After the state filed its opposition, petitioner withdrew his Section 440 motion because it contained

unfounded claims that he feared could bar him from raising more meritorious claims in the future.

See Pet’r’s Mot. to Withdraw First Section 440.10 Mot. 3 (Dkt. #4-15); Order Granting Mot. to

Withdraw First Section 440.10 Mot. (Dkt. #4-16).

In May 2023, petitioner filed his first petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 in this court, raising three grounds for relief. See Pet. 16, Morris v. Bennett, No.

23-cv-3762 (RPK) (LB) (E.D.N.Y. May 22, 2023), ECF No. 1. Petitioner asserted (1) that his

guilty plea was not knowing and voluntary because he had made statements during the plea hearing

negating elements of his burglary conviction; (2) that his “purported waiver of the right to appeal

is invalid;” and (3) that his “sentence should be reduced in the interest of justice.” Id. at 6, 8, 9.

While his federal habeas petition was pending, petitioner filed a second Section 440 motion

in state court, raising three claims. See Pet’r’s Second Section 440 Mot. (Dkt. #4-17). Petitioner

argued that his trial counsel rendered ineffective assistance because his counsel had represented

that petitioner was likely to serve only ten years of a twenty-year sentence, had failed to inform

petitioner of the immigration consequences of a guilty plea, and had failed to negotiate a more

advantageous plea offer with less adverse immigration consequences. See generally ibid. On

petitioner’s motion, this Court dismissed petitioner’s federal habeas petition without prejudice to

permit him to exhaust his ineffective-assistance claim in state court. See Dec. 27, 2023 Order,

Morris, No. 23-cv-3762 (RPK) (LB). The state court then denied petitioner’s second Section 440

motion on the merits, Order Denying Second Section 440 Mot. (Dkt. #4-20), and the Appellate

Division denied him leave to appeal, Order Denying Leave to Appeal (Dkt. #4-23).

In April 2024, petitioner filed the instant petition for habeas corpus—his second—

originally raising four grounds for relief. Pet. (Dkt. #1). First, petitioner contends that his guilty

plea was not knowing, voluntary, and intelligent because his statements at the plea hearing negated

two elements of the predicate burglary charge for felony murder. Id. at 6. Second, petitioner

claims that his waiver of the right to appeal was invalid. Id. at 8. Third, petitioner argues that his

sentence was excessive. Id. at 9. And fourth, petitioner claims that he was deprived of effective

assistance of counsel because (1) his counsel had represented he would likely serve only ten years

of a twenty-year sentence, (2) his counsel had failed to advise him that he would likely be deported

if he pleaded guilty, and (3) his counsel failed to negotiate a more favorable plea deal. Id. at 11.

After the government filed its opposition, Opp’n Mem. of L. (Dkt. #4-1), petitioner acknowledged

that the second and third grounds for relief are meritless and now presses only the two arguments

regarding the allegedly involuntary guilty plea and ineffective assistance of counsel, Reply. 1–2

(Dkt. #6).

STANDARD OF REVIEW

A person in custody pursuant to a state-court judgment may seek a writ of habeas corpus

on the ground that he is being held “in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Under Section 2254, subject to exceptions not applicable here, a

federal court may review a petitioner’s claims only if the applicant has exhausted the remedies

available to him in the courts of his state. Id. § 2254(b)(1)(A). “State remedies are deemed

exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the

petition to the highest state court . . . and (ii) informed that court (and lower courts) about both the

factual and legal bases for the federal claim.” Ramirez v. Att’y Gen. of N.Y., 280 F.3d 87, 94 (2d

Cir. 2001) (citing Picard v. Connor, 404 U.S. 270, 276–77 (1971)).

Federal review of state convictions is circumscribed by the related doctrine of procedural

default. “[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the

petitioner failed to exhaust state remedies and the court to which the petitioner would be required

to present his claims in order to meet the exhaustion requirement would now find the claims

procedurally barred.’” Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (quoting Coleman v.

Thompson, 501 U.S. 722, 735 (1991)) (emphasis omitted). “Out of respect for finality, comity,

and the orderly administration of justice,” federal courts generally may not entertain such defaulted

claims through habeas unless the petitioner shows “cause and prejudice to excuse the default.”

Dretke v. Haley, 541 U.S. 386, 388 (2004). A state prisoner who fails to make those showings can

only receive habeas review if he “advance[s] . . . a credible and compelling claim of actual

innocence,” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting Rivas v. Fischer, 687

F.3d 514, 540 (2d Cir. 2012)), such that “failure to consider the claim[] will result in a fundamental

miscarriage of justice,” Coleman, 501 U.S. at 750.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) also constrains federal

review of claims that have been preserved. So long as a state court adjudicated a litigant’s claim

on the merits, a federal court may grant habeas relief only if 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).

“Clearly established Federal law” refers to “the holdings, as opposed to the dicta, of the

Supreme Court’s decisions as of the time of the relevant state-court decision.” Green v. Travis,

414 F.3d 288, 296 (2d Cir. 2005) (alterations omitted) (quoting Williams v. Taylor, 529 U.S. 362,

412 (2000)). A state court decision is “contrary to” clearly established federal law as determined

by the Supreme Court if it “arrives at a conclusion opposite to that reached by [the Supreme] Court

on a question of law or if the state court decides a case differently than [the Supreme] Court has

on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an

“unreasonable application” of clearly established federal law if the state court “identifies the

correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case,” ibid., meaning there is “no possibility fair-minded

jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents.”

Harrington v. Richter, 562 U.S. 86, 102 (2011). Finally, a determination that a state-court decision

was “based on an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2), requires more

than that a federal court conducting habeas review “would have reached a different conclusion in

the first instance,” Brumfield v. Cain, 576 U.S. 305, 313–14 (2015) (quotation marks omitted)

(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). “If the state record is ‘ambiguous’ such that

two different views of the facts find fair support in the record,” AEDPA “mandates deference to

the state court’s fact-finding.” Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (citation

omitted).

These standards are “intentionally difficult to meet,” Woods v. Donald, 575 U.S. 312, 316

(2015) (citation and quotation marks omitted), because federal habeas review is “a ‘guard against

extreme malfunctions in the state criminal justice systems,’” not “a means of error correction,”

Greene v. Fisher, 565 U.S. 34, 43 (2011) (quoting Richter, 562 U.S. at 102–03).

DISCUSSION

The petition is denied because petitioner has not demonstrated either that his guilty plea

was not knowing, voluntary, and intelligent, or that he received ineffective assistance of counsel.

I. Petitioner’s statements at his plea hearing do not demonstrate that his guilty plea

was not knowing, voluntary, and intelligent.

Petitioner is not entitled to relief based on his due process claim. Due process requires that

a guilty plea “represent[] a voluntary and intelligent choice among the alternative choices of action

open to the defendant,” North Carolina v. Alford, 400 U.S. 25, 31 (1970), based on a complete

understanding of the charge, Henderson v. Morgan, 426 U.S. 637, 644–45 (1976). Petitioner

argues that his guilty plea was not knowing, voluntary, and intelligent because he made statements

during his plea hearing that negated elements of the crime of burglary, which was the predicate for

his felony murder charge, and because the trial court did not thereafter conduct a sufficient inquiry.

Pet. 5–7. On direct appeal, the Appellate Division rejected this argument on the merits, finding

that “the facts to which the defendant admitted during his plea allocution were sufficient to

establish the elements of the crime of burglary, which was the predicate felony for the felony

murder conviction.” Morris, 200 A.D.3d at 996.1

Petitioner fails to demonstrate that this determination contravened “clearly established

Federal law, as determined by the Supreme Court” or rested 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). For one thing, it is New York law, not the federal Constitution, that invalidates a guilty plea

if the defendant negates factual elements of the charge, and federal habeas corpus relief cannot be

granted for errors of state law. See Sandher v. New York State, No. 04-CV-2152 (FB), 2009 WL

3111755, at *4–5 (E.D.N.Y. Sept. 29, 2009). Instead, the touchstone for constitutional due process

is whether a plea is knowing, voluntary, and intelligent under “all the circumstances.” Willbright

v. Smith, 745 F.2d 779, 780 (2d Cir. 1984).

To the extent petitioner argues that his guilty plea was not knowingly and intelligently

made because his statements reflected that he lacked understanding of the “true nature of the

charge against him,” Henderson, 426 U.S. at 645 (citation omitted), this contention is belied by

the record of the plea proceeding. The trial court explained, in clear terms, the offense and conduct

with which petitioner had been charged. See Plea Tr. 10–11. Petitioner repeatedly stated that he

knew he was going to the victim’s home to burglarize it, that he intended to steal, at a minimum,

“something” from the house, and that as a result of the burglary, one of the house’s elderly

occupants died. Plea Tr. 11, 12, 16. Petitioner argues that, during the hearing, he gave an

ambiguous response about not knowing “what was in the [lock]box” that he took from the house.

1 This argument may be procedurally barred because the Appellate Division also held that petitioner had failed to

preserve the claim in the trial court. Morris, 200 A.D.3d at 995–96. However, a portion of that court’s analysis of

the procedural bar overlapped with its merits reasoning, raising questions about whether the procedural bar was a truly

independent ground for decision barring this Court’s review. See ibid. The Court does not consider the issue further

because federal courts have discretion to bypass procedural bars where, as here, the merits are “easily resolvable

against the petitioner.” Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (citing 28 U.S.C. § 2254(b)(2)).

Id. at 12–13; Reply 6. But his statements that he intended to steal something from the house, even

if he did not know precisely how much money he was taking, are sufficient to establish that he

understood the basic nature of the predicate burglary charge. And if there was any doubt, after the

court expressed hesitation about accepting the plea, petitioner conferred with his counsel and

responded with clear statements that he went to the house with the intent to burglarize it, that he

knew there was money inside, and that he left with a lockbox that contained $45,000 in cash. See

Plea Tr. 16.

Because petitioner’s statements during the plea hearing do not indicate that his plea was

not knowingly, voluntarily, and intelligently made, the Appellate Division’s rejection of

petitioner’s due process claim was neither contrary to nor an unreasonable application of clearly

established federal law.

II. The state court’s finding that petitioner’s trial counsel was not ineffective is not

contrary to or an unreasonable application of clearly established federal law.

Petitioner’s ineffective-assistance claim also does not provide a basis for habeas relief. To

establish a claim of ineffective assistance of counsel under the Sixth Amendment, petitioner must

show that (1) “counsel’s representation fell below an objective standard of reasonableness,” and

(2) “there is a reasonable probability 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).

The review of an attorney’s performance, already “highly deferential,” Knowles v. Mirzayance,

556 U.S. 111, 124 (2009) (citation omitted), becomes “doubly” so on habeas review when “a state

court has [already] decided that counsel performed adequately,” Dunn v. Reeves, 594 U.S. 731,

739 (2021) (per curiam) (citation omitted). In this context, a petitioner must not only satisfy

Strickland’s requirements, Knowles, 556 U.S. at 124, but also show that the state court’s ruling

was unreasonable, id. at 123.

Petitioner raises three ineffective-assistance arguments. First, petitioner alleges that he

received ineffective assistance because trial counsel misrepresented the sentence petitioner would

actually have to serve by informing him that he would only have to serve ten years of the twenty-

year sentence. Pet. 11. Second, petitioner alleges that trial counsel failed to advise him that his

plea would result in mandatory deportation. Ibid. And third, petitioner alleges that trial counsel

did not attempt to negotiate a plea with less severe immigration consequences. Ibid. The state

court ruling on petitioner’s second Section 440 motion denied these claims on the merits, finding

that petitioner’s claims were contradicted by the record of the plea proceeding and an affidavit

provided by one of petitioner’s trial attorneys. Order Denying Second Section 440 Mot. 3–5.

Petitioner fails to demonstrate that the state court’s decision was contrary to or an unreasonable

application of clearly established federal law.

The state court reasonably rejected petitioner’s first ineffective-assistance claim—that trial

counsel allegedly misrepresented the amount of time petitioner was likely to serve—after

determining that his assertions regarding his attorney’s incompetence were contradicted by the

record as a whole. At his plea hearing, petitioner stated that he understood that, by pleading guilty,

the trial court could sentence him to a sentence of twenty years to life on the murder charge. Plea

Tr. 5. He further affirmed that nobody had made him any promises in order to induce him to plead

guilty. Id. at 7. What’s more, petitioner’s trial counsel submitted a detailed affidavit to the state

court comprehensively denying having made any representation to petitioner that he would serve

less than twenty years—an “eminently credible” account that the court was entitled to credit over

petitioner’s “self-serving and improbable assertion[].” Chang v. United States, 250 F.3d 79, 86

(2d Cir. 2001); see Order Denying Second Section 440 Mot. 3–4.2 On this record, the state court’s

rejection of petitioner’s claims was neither contrary to nor an unreasonable application of clearly

established federal law.

Similarly, the state court did not err in rejecting petitioner’s claim that trial counsel was

ineffective for failing to advise him of the immigration consequences of his guilty plea.

Petitioner’s assertion that his counsel failed to advise him on this topic is squarely contradicted by

his trial counsel’s affidavit stating that counsel “on numerous occasions before the plea

proceedings had explained the immigration consequences [petitioner] would face for pleading

guilty” and that counsel was “explicitly clear that [petitioner] faced likely deportation as a

consequence of pleading guilty.” Opp’n to Second Section 440 Mot., Ex. A (“Decl. of Charles

Kaser”) 3–5 (Dkt. #4-18). And even if petitioner’s attorney had failed to advise him on this topic,

petitioner would be unable to demonstrate prejudice because the trial judge did so, telling petitioner

before he pleaded guilty that “the consequence will be deportation.” Plea Tr. 6. Petitioner

acknowledged that he understood. Ibid.; see United States v. Hernandez, 242 F.3d 110, 112 (2d

Cir. 2001) (rejecting ineffective-assistance claim where petitioner’s claim that he had been misled

about the consequences of his plea by his attorney was contradicted by petitioner’s statements at

the plea hearing); cf. United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001) (“[T]estimony [at

a plea hearing] carries such a strong presumption of accuracy that a district court does not, absent

2 The affidavit stated that:

At no time did [counsel] represent to [petitioner] that the offered plea was only twenty-years

imprisonment, but that it was twenty years to life. At no time did [counsel] represent to [petitioner]

that he would serve ten-years on the alleged twenty-year sentence if he plead[ed] guilty. In fact,

[counsel] explicitly explained that prison terms are not like local jail terms, where inmates are

released after serving two-thirds of their sentences. [Counsel] explained that [petitioner] would

likely have to serve nearly all twenty years before going before a parole board.

Opp’n to Second Section 440 Mot., Ex. A 3 (Dkt. #4-18).

a substantial reason to find otherwise, abuse its discretion in discrediting later self-serving and

contradictory testimony as to whether a plea was knowingly and intelligently made.”).

Similarly, petitioner has failed to demonstrate either deficient performance or prejudice on

the theory that counsel “failed to make an effort to negotiate a plea . . . that had less severe

immigration consequences.” Pet. 11. Petitioner’s vague suggestion that his attorney lacked

diligence in plea negotiations is contradicted by his counsel’s description of multiple rounds of

discussions, in which attempts to obtain a more favorable resolution were undermined by the

strength of the physical evidence against petitioner and the fact that one of his accomplices, as part

of her plea, had inculpated him. Decl. of Charles Kaser 2–3. In any event, petitioner has not

demonstrated prejudice under Strickland, because the record does not suggest that a plea with less

severe immigration consequences was in the offing. See Santana v. United States, No. 12-CV-

2150 (JSR) (GWG), 2013 WL 717284, at *4 (S.D.N.Y. Feb. 28, 2013) (rejecting ineffective-

assistance claim that “counsel improperly failed to negotiate a plea deal that would have avoided

the immigration consequences of a conviction” because petitioner “provide[d] no evidence

whatsoever—other than speculation—that such a deal was or would have been available to him”).

Accordingly, the state court’s rejection of petitioner’s three ineffective-assistance claims

was neither contrary to nor an unreasonable application of clearly established federal law.

CONCLUSION

For the foregoing reasons, the petition is denied. And because petitioner has not shown

“that reasonable jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were ‘adequate to deserve encouragement to proceed

further,’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,

893 n.4 (1983)), a certificate of appealability under 28 U.S.C. § 2253(c)(2) is also denied. The

Clerk of Court is directed to enter judgment and close the case.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: November 7, 2024

Brooklyn, New York