Johnson v. Titus

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Case 1:22-cv-00142-JLS-MJR Document 37 Filed 02/08/23 Page 1 of 18

CVA ES UID]

UNITED STATES DISTRICT COURT Ps :
WESTERN DISTRICT OF NEW YORK ete tocwencutt
SLERN DISTRICLS
VICTOR E. JOHNSON 1:22-CV-142 (JLS-MJR)
Petitioner, DECISION AND

ORDER

SUPERINTENDENT TITUS,
Orleans Corr. Fac.,

Respondent.

This case has been referred to the undersigned pursuant to Section 636(b)(1) of
Title 28 of the United States Code, by the Honorable John L. Sinatra, Jr. (Dkt. No. 10)
Petitioner Victor Johnson has filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. (Dkt. No. 1) Presently before the Court are petitioner's (1) motion for
discovery (Dkt. No. 15); (2) motion to expand the record (Dkt. No. 35); (3) motion for an
evidentiary hearing (Dkt. No. 36); and motion for release on bond pending determination
of his habeas petition (Dkt. No. 17). The Court addresses each of petitioner's requests in
turn below.

Background

On June 11, 2018, petitioner was charged by indictment, in Niagara County Court,
with six counts of criminal possession of a forged instrument in the second degree; seven
counts of identity theft in the first degree; one count of grand larceny in the fourth degree;
and one count of criminal enterprise. (Dkt. No. 26, pg. 2) The charges stemmed from

petitioner's role in a forged check-cashing ring in Niagara County in 2018. (/d.; Dkt. No.

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39, pg. 4) On April 18, 2019, petitioner was charged in a subsequent, unrelated
indictment, also in Niagara County Court, with two counts of robbery in the first degree
and one count of robbery in the second degree. (Dkt. No. 26, pgs. 126-27) These charges
related to petitioner’s role in orchestrating the February 2018 forcible robbery of an
acquaintance, Carmen Deline. (Dkt. No. 39, pg. 4) On August 16, 2019, petitioner entered
a global plea before Niagara County Supreme Court Judge Richard C. Kloch, Sr., which
resolved (1) the June 2018 and April 2019 indictments; (2) a third pending indictment for
intimidating a witness; and (3) an ongoing, separate investigation by the Niagara County
District Attorney’s Office into petitioner’s role in fraudulent activity related to identity theft.
(Dkt. No. 26-4, pgs. 55-60; Dkt. No. 26-5, pgs. 2-11) Petitioner pled guilty to one count of
attempted enterprise corruption and one count of attempted second-degree robbery. (/d.)
On December 18, 2019, petitioner, a second-time felony offender, was sentenced to an
indeterminate prison term of three-to-six years for the attempted enterprise corruption
charge, and to a concurrent, determinate prison term of seven years, followed by five
years post-release supervision, for the attempted robbery charge.' (Dkt. No. 25-5, pg. 8,
pgs. 74, 77)

Petitioner filed separate appeals challenging both judgments of conviction, and the
Appellate Division, Fourth Department affirmed both convictions. See People v. Johnson,
195 A.D.3d 1420 (4th Dep't 2021) (attempted enterprise corruption); People v. Johnson,

195 A.D.3d 1422 (4th Dep’t 2021) (attempted robbery). The New York State Court of

1On September 19, 2019, prior to his sentencing, petitioner filed a pro se motion to withdraw his
plea. (Dkt. No. 25-3, pgs. 154-78) During the sentencing proceeding on December 18, 2079,
Judge Kloch acknowledged that petitioner had filed a pro se motion to withdraw his plea, as well
as a number of other pro se motions challenging the indictment. (Dkt. No. 25-5, pgs. 40-46)
Judge Kloch denied the pro se motions from the bench, indicating that because petitioner was
represented by counsel, the Court had declined to review them.

2

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Appeals denied leave to appeal on December 3, 2021. See People v. Johnson, 37 N.Y.3d
1146, 2021 N.Y. LEXIS 2817 (2021). While his direct appeal was pending, petitioner filed
a pro se motion before the trial court to vacate his conviction pursuant to New York CPL
§ 440.10, alleging, inter alia, newly discovered evidence in connection Brady and other
discovery violations; that his guilty pleas were involuntary; ineffective assistance of
counsel; and violation of his right to a speedy trial. (Dkt. No. 25-4, pgs. 121-47) The trial
court denied petitioner's § 440.10 motion on June 17, 2021. (/d. at pgs. 176-77) On
December 14, 2021, the Appellate Division denied petitioner leave to appeal from the trial
court’s rejection of his § 440.10 motion. (/d. at 203)

Petitioner now challenges his judgments of conviction, following his plea on August
16, 2019, to one count of attempted enterprise corruption and one count of attempted
second degree robbery. (Dkt. No. 1) In his pro se habeas petition, petitioner claims that
(1) his guilty plea was not Knowing and voluntary; (2) his defense attorney provided
ineffective assistance; (3) the trial court failed to address his pro se motion to withdraw
his guilty plea; (4) the trial court refused to issue a ruling on petitioner's motion to dismiss
the criminal enterprise count in the indictment on constitutional and state-law speedy trial
grounds; (5) the prosecutor committed misconduct by withholding Brady material, not
correcting the robbery victim’s alleged false testimony before the grand jury, and not
disclosing witness statements and cooperation agreements to the defense; (6) malicious
and selective prosecution; and (7) the prosecution violated state-law discovery rules by
not disclosing the name of a witness and, in addition, committed misconduct by indicting

petitioner for robbery without sufficient proof. (/d.)

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Respondent filed a response in opposition to the petition on September 14, 2022.
(Dkt. Nos. 24-26) Therein, respondent notes that the trial court rejected, on the merits,
petitioner’s claims that his plea was involuntary and that he was provided ineffective
assistance of counsel with respect to the plea negotiation and plea proceedings.
Respondent submits that because the trial court did not unreasonably apply Supreme
Court precedent in rejecting these claims, petitioner is not entitled to habeas relief. See
28 U.S.C. § 2254(d). Respondent further argues that to the extent petitioner is arguing
ineffective assistance of counsel with respect to matters unrelated to his guilty plea,
petitioner's argument is foreclosed by his guilty plea. See United States v. Garcia, 339
F.3d 116, 117 (2d Cir. 2003) (“A defendant who knowingly and voluntarily enters a guilty
plea waives all non-jurisdictional defects in the prior proceedings.”). Respondent
contends that petitioner's claims of prosecutorial misconduct, malicious prosecution,
speedy trial violations, and various discovery violations are also foreclosed by his guilty
plea. Lastly, respondent argues that petitioner’s claim that the trial court failed to address
his pro se motion to withdraw his guilty plea lacks merit because petitioner was
represented by counsel at the time he filed the motion, and therefore was not entitled to
have his pro se motion entertained by the trial court. See People v. Rodriguez, 95 N.Y.2d
497, 502 (2002) (a criminal defendant is not entitled to hybrid representation, so the court
has discretion to decide whether the entertain a pro se motion).

Motion for Discovery

On August 18, 2022, petitioner filed a 266-page “Motion for Discovery and
Production of Documents pursuant to Rule 6 Governing 28 U.S.C. 2254 Proceedings.”

(Dkt. No. 15) The filing included a memorandum of law as well as proposed interrogatories

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and requests for documents. (/d.) Petitioners extensive list of discovery demands
includes requests for, inter alia, transcripts of jail call; exculpatory evidence; cooperation
agreements from witnesses that were never turned over in discovery; minutes from plea
and sentencing proceedings for prosecution witnesses not turned over in discovery; any
police reports, felony complaints, 911 calls and witness interviews not turned over in
discovery; purported letters from a confidential informant to the Niagara County District
Attorney’s Office; transcripts of police interviews; and various search warrant applications.
Petitioner also seeks any and all communications between the Niagara County District
Attorney’s Office, the New York State Police or the Niagara Falls Police Department and
any witnesses. He demands all case files in the possession of defense counsel, the
Niagara County District Attorney's Office, the New York State Police, and the Niagara
Falls Police Department. Petitioner submits proposed interrogatory requests for his
defense attorney, which include lengthy questions about the attorney’s investigation and
work on the case as well as questions about counsel's awareness of petitioner's
purported health problems at the time of the plea. Petitioner submits proposed
interrogatories for a number of law enforcement officers involved in the investigation of
the crimes charged against him, as well as the assistant district attorneys who prosecuted
him. These interrogatories contain extensive questions about the details of their
investigation and/or prosecution of petitioner, including an accounting of every potential
witness they interviewed, what documents they possessed, and what information they
shared with defense counsel.

“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to

discovery as a matter of ordinary course.” Bracy v. Grampley, 520 U.S. 899, 904 (1997).

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Instead, a habeas petitioner may seek discovery under Rule 6(a) of the Federal Rules
Governing Section 2254 Cases in United States District Courts, which provides that “a
judge may, for good cause, authorize a party to conduct discovery under the Federal
Rules of Civil Procedure and may limit the extent of discovery.” See Fed. R. Governing §
2254 Cases 6(a); Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003). “The ‘good
cause’ standard is satisfied ‘where specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is...entitled to relief.” Ferranti v. United States, 480 F. App’x 634, 638 (2d Cir.
2021) (summary order); quoting Bracy, 520 U.S. at 904. “A [habeas] petitioner bears a
heavy burden in establishing a right to discovery,” and “[gleneralized statements are not

m

sufficient to establish the requisite ‘good cause.” Edwards v. Superintendent, 991 F.
Supp. 2d 348, 364 (E.D.N.Y. 2013). To that end, a court may “deny discovery where the
petitioner provides no specific evidence that the requested discovery would support his
habeas corpus petition.” Hirschfeld v. Comm’r Div. of Parole, 215 F.R.D. 464, 465
(S.D.N.Y. 2003)

Petitioner has not demonstrated “good cause” for the Court to authorize him to
conduct discovery. Petitioner's claims that his plea was involuntary and that he was
denied effective assistance of counsel with respect to the plea proceedings were denied
on their merits by the trial court when it ruled on petitioner's pro se § 440.10 motion.
Where, like here, habeas claims have been previously decided by the state court on their
merits, “[federal] review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim[.]” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).

Therefore, petitioner is limited to the record before the state court as to his claims that his

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plea was not knowing and voluntary and that he was provided ineffective assistance of
counsel with respect to plea negotiations and plea proceedings. See Ryan v. Gonzales,
968 U.S. 57, 75 (2013). Since this Court cannot consider any evidence that petitioner
might obtain through discovery in evaluating these arguments, petitioner has not shown
that discovery would allow him to demonstrate that he is entitled to relief. See Olsen v.
Doldo, 16-CV-5366, 2017 WL 1422431 at *4 (S.D.N.Y. Apr. 20, 2017) (denying habeas
petitioner's request for discovery since, pursuant to Section 2254(d), the court could not
consider any evidence petitioner obtained through discovery when evaluating his habeas
claim).

With respect to the remaining claims in the habeas petition, petitioner has not
provided “specific allegations” demonstrating that he may “be entitled to relief’ if permitted
discovery. Bracey, 520 U.S. at 908-09. Petitioner's discovery motion is incredibly broad
and seeks a wide swath of information from numerous parties. He appears to demand
every file, note, statement, witness interview, or report produced by any attorney or law
enforcement officer involved in the investigation and prosecution. He requests an
accounting of everything done by the officers during their investigations and every action
undertaken by both the prosecutors and his defense counsel during the pendency of his
cases. He requests all of the information and documents provided to his defense counsel,
everything that was presented to the grand jury, and all information “not turned over in
discovery.” Petitioner generally contends that production of this discovery will prove that
his counsel did not adequately communicate all elements of the charges and failed to fully
investigate all possible defenses and interview all potential witnesses. Petitioner states

that the requested discovery will also prove that the Niagara County District Attorney’s

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Office committed Brady as well as other discovery violations, and that prosecutors
maliciously charged him without probable cause.

Petitioner's speculative and conclusive requests do not satisfy the “heavy burden”
to obtain discovery. He has not provided any specific explanation or example as to how
examination of this information would produce evidence that would entitle him to relief on
the claims listed in his petition. Instead, petitioner is essentially asking to comb through
every single document pertaining to his criminal prosecutions to look for information to
support his claims. However, "Rule 6 does not license a petitioner to engage in a ‘fishing
expedition’ by seeking documents merely to determine whether the requested items
contain any grounds that might support his petition, and not because the documents
actually advance his claims of error." Ruine v. Walsh, No. 00-CV-3798, 2005 U.S. Dist.
LEXIS 14297, (S.D.N.Y. Jul. 14, 2005); quoting Charles v. Artuz, 21 F. Supp. 2d 168, 170
(E.D.N.Y. 1998)). See also Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) ("Rule
6 does not 'sanction fishing expeditions based on a petitioner's conclusory allegations."’)
(internal quotations and citations omitted). Petitioner's requests are overly broad and
speculative, and thus do not form the basis for good cause. See White v. Rock, 10-CV-
5163, 2013 U.S. Dist. LEXIS 58718 (E.D.N.Y. Apr. 22, 2013) (discovery requests that are
based on speculation and surmise do not amount to good cause).

Moreover, many of the documents and evidence that petitioner now seeks to
discover were produced during the state criminal proceedings below. Indeed, the record
before this Court shows that petitioner and his counsel were provided with extensive fact
discovery during the state criminal proceedings, including audio and video recordings of

petitioner; recordings of jail house phone calls and call logs; Facebook and Twitter

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records; search warrant inventories and returns; bank records, witness statements and
witness interviews; police statements and investigative reports; photographs; law
enforcement notes; New York State police reports; and impeachment material of
government witnesses. (Dkt. No. 15, pgs. 157-76) To the extent that petitioner seeks
documents, reports and witness statements that were “not produced in discovery”,
petitioner offers no basis for the Court to find that any such relevant documents exist, or
that they were not otherwise produced. Taylor v. Poole, 07-CV-6318, 2009 U.S. Dist.
LEXIS 76316 (S.D.N.Y. Aug. 27, 2009); adopted at 2011 U.S. Dist. LEXIS 96061
(S.D.N.Y. Aug. 26, 2011) ("Without any showing that the evidence existed, [the petitioner]
has no basis to claim that the government withheld it."); Mills v. Lempke, 11-CV-0440,
2012 U.S. Dist. LEXIS 62294 (W.D.N.Y. May 3, 2012) (denying discovery requests in §
2254 habeas petition case where it appeared “from the voluminous exhibits [petitioner]
has submitted to the Court, he already had much of [the requested] information.”).

The Brady claim asserted in the petition centers. on petitioner's contention that,
after he had already taken his plea, he learned that his cousin, Deon Johnson, was
present at the time of the alleged robbery of Carmen Deline and that Johnson told law
enforcement that no robbery occurred. Petitioner claims that this information was never
provided to his defense counsel. Petitioner now requests production of any statements
given by Johnson, to law enforcement, about the robbery of Deline. However, because
petitioner is already in possession of all facts necessary to raise this Brady argument as
part of his federal habeas claim, no additional discovery is warranted here. In petitioner's
pro se motion to the trial court asking to withdraw his plea, petitioner included an affidavit

by Johnson stating that she lived in the apartment complex where Deline was allegedly

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robbed by petitioner and others. (Dkt. No. 25-3, pgs. 159-60) According to Johnson, on
the day of the robbery, she went to petitioner's residence and noticed that several police
officers were outside. (/d.) Johnson claims that she spoke with Officer Fleck of the Niagara
Falls Police Department, who asked her if she had seen or heard anything about a
robbery in the building. (/d.) Johnson purportedly told the officer that Deline had been
present in the building where petitioner lived to buy drugs, and that no robbery had
occurred. (/d.) Johnson stated that Deline was lying about the robbery and that Johnson
would testify to that effect in court. (/d.) Based on the record before the Court, including
material submitted by petitioner himself, petitioner is fully aware of the alleged exculpatory
statement by Johnson to law enforcement, including the date it occurred and the contents
of the statement. In fact, petitioner has fully raised this argument in his petition, including
all the details of Johnson’s purported statement and state’s alleged failure to disclose it.
Thus, petitioner has not shown that any additional discovery is needed to support the
Brady arguments in his petition. See Ulrich v. Berbary, 445 F. Supp. 2d 267, 283
(W.D.N.Y. 2006) (“Evidence is not ‘suppressed’ if the defendant either knew, or should
have known, of the essential facts permitting him to take advantage of [the] evidence.”).2

Finally, many of petitioner's claims are likely foreclosed by his guilty plea. These
claims would include (1) allegations of other discovery violations by the state prosecutor;
(2) constitutional speedy trial act violations; (3) malicious and selective prosecution; (4)

ineffective assistance of counsel in areas not related to the plea proceeding; (5) the trial

* According to respondent, petitioner knew before he pled guilty to the attempted robbery charge
that his cousin Deon Johnson claimed Deline was lying about the robbery. Indeed, three days
before petitioner's guilty plea, petitioner testified during a state court suppression hearing that
Johnson told him that the robbery “never happened.” (Dkt. No. 26-3, pgs. 38-39) Petitioner also
testified that he saw Officer Fleck interview Johnson outside his house on the day of the robbery
and that petitioner knew Johnson conveyed this same information to Officer Fleck. (/d.)

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court's refusal to rule on a number of his pro se motions; and (5) misconduct or
presentation of false evidence to the grand jury. See United States v. Coffin, 76 F.3d 494,
497 (2d Cir. 1996) (“A defendant who pleads guilty unconditionally while represented by
counsel may not assert independent claims relating to events occurring prior to the entry
of the guilty plea.”); Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the offense with
which he has been charged, he may not thereafter raise independent claims relating to
deprivation of constitutional rights that occurred prior to entry of the guilty plea.”). For this
reason, as well as for all of the other reasons stated herein, petitioner has not adequately
alleged that discovery of the information sought in his motion would allow him to prevail
on his habeas claims. Petitioner's motion for discovery is denied.

Motion to Expand the Record

On November 23, 2022, petitioner filed a motion to expand the record. (Dkt. No.
35) Therein, petitioner generally asks that this Court consider evidence outside of the
state court record in ruling on his habeas petition. (/d.) In support of his request to expand
the record, petitioner makes many of the same legal and factual arguments raised in his
motion for discovery as to why consideration of additional evidence, outside of the record
presently before this Court, is necessary to properly evaluate his habeas claims. (/d.)

Rule 7 the Federal Rules Governing Section 2254 Cases in United States District
Courts provides that if a petition for a writ of habeas corpus is not dismissed, a district
court “may direct the parties to expand the record by submitting additional materials

relating to the petition.” See 28 U.S.C. § 2254, Rule 7(a). The decision of whether to order

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expansion of the record under Rule 7 is within the sound discretion of the reviewing court.
Ruine, 2005 U.S. Dist. LEXIS 14297.

To begin, petitioner's request is premature. According to the Rules Governing
Section 2254 Cases, expansion of the record is generally considered if the petition is not
dismissed on the pleadings, and the purpose is to dispose of some habeas petitions
without the expense required for an evidentiary hearing. See 28 U.S.C. § 2254, Rule 7(a)
(Advisory Committee Notes). Here, the Court has not yet ruled on the substantive
arguments raised in the pleadings. If, when the Court is evaluating the merits of the
petition, it determines that petitioner may be entitled to relief if the facts were developed
further, the Court may reconsider expanding the record at that time.

Moreover, it is unclear what extraneous material petitioner is asking the Court to
consider. For example, petitioner refers to the exhibits offered in support of his pro se
motion to withdraw his plea. However, petitioner's pro se motion and exhibits are already
included in the record of state court proceedings submitted to this Court for review. (Dkt.
No. 25-3, pgs. 154-78) Petitioner also seems to generally argue that respondent has not
submitted a complete state court record. To the contrary, the documents and exhibits
submitted by respondent in response to the petition constitute a full and complete record
of the state court proceedings. The record includes, inter alia, transcripts of arraignments,
bail motions, suppression hearings, plea proceedings and sentencings. (Dkt. No. 26-1-
Dkt. No. 26-5) The record also includes all of the briefing submitted by the parties to both
the state trial and appellate courts, as well as records of all trial and appellate court
decisions. (Dkt. No. 25-1) Finally, with respect to the discovery motion, the Court

determined that petitioner has not demonstrated that the production or consideration of

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additional documents or evidence would show that he is entitled to relief. For all of these
reasons, petitioner's motion to expand the record is denied.

Motion for a Hearing

Petitioner also requests that the Court conduct an evidentiary hearing to resolve
“disputed issues of fact” with respect to his ineffective assistance of counsel and
involuntariness of plea claims. (Dkt. No. 36) Petitioner specifically claims that a hearing
is needed to demonstrate that defense counsel coerced him into pleading guilty by
making a faulty promise that, if petitioner entered into the plea agreement, his bail would
be reinstated pending sentencing. (/d.)

In a habeas proceeding, the Court has an obligation to determine whether the
materials submitted warrant an evidentiary hearing. See Rule 8(a), Rules Governing §
2254 Cases; 28 U.S.C. § 2254(e)(2). "A petition for habeas corpus relief requires an
evidentiary hearing to resolve disputed issues of fact unless the record shows that the
petitioner is not entitled to relief." Ortega v. United States, 897 F. Supp. 771, 782
(S.D.N.Y. 1995). In determining whether an issue of fact exists, the courts cannot
consider evidence which would be inadmissible at a formal hearing, such as hearsay.
Hayden v. United States, 814 F.2d 888, 891 (2d Cir. 1987) ("We have consistently held
that the standard ... is whether, if the evidence should be offered at a hearing, it would
be admissible proof entitling the petitioner to relief. Mere generalities or hearsay
statements will not normally entitle the applicant to a hearing. The petitioner must set forth
specific facts which he is in a position to establish by competent evidence.") (internal

quotation marks omitted).

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Petitioner's self-serving and unsupported assertions of alleged conversations
between him and defense counsel wherein defense counsel purportedly promised
petitioner that his bail would be reinstated if he pled guilty are hearsay. Indeed, the
Second Circuit has noted that "[a] standard that would entitle a [habeas] petitioner, based
solely on hearsay information ... to a full evidentiary hearing ... would too easily lend itself
to abuse, because such hearsay is too easily manufactured." Hayden, 814 F.2d 888, 892
(2d Cir. 1987). See also Mulosmanai v. Mazzuca, 06 Civ. 13515, 2007 U.S. Dist. LEXIS
69193 (S.D.N.Y. Sept. 18, 2007) (no hearing required as to ineffective assistance of
counsel claim raised in habeas petition since petitioner's alleged conversation with
counsel regarding the plea offer and rejection was hearsay and could not be considered
by the court).? For these reasons, petitioner's request for a hearing is denied.

Motion for Release on Bond

Petitioner has also moved for release on bond pending the determination of his
habeas petition. (Dkt. No. 17)

[A] district court has inherent power to enter an order affecting the custody of a
habeas petitioner who is properly before it contesting the legality of his custody." Mapp v.
Reno, 241 F.3d 221, 226 (2d Cir. 2001); quoting Ostrer v. United States, 584 F.2d 594,
596 n.1 (2d Cir. 1978). But such power is limited, "to be exercised in special cases only."

Id. ""The standard for bail pending habeas litigation is a difficult one to meet: The petitioner

3 Petitioner contends that an evidentiary hearing is also needed because, on April 26, 2019, the
trial court and the prosecutor promised that petitioner would be released pending sentence
pursuant to the terms of the proposed plea agreement. (Dkt. No. 36) However, a review of the
state court transcript from that date reveals no such promise by the prosecutor or the trial court
(Dkt. No. 26, pgs. 176-82; Dkt. No. 26-1, pgs. 1-36), and petitioner offers no competent
evidence to the contrary. Moreover, even if such a promise was made, release on bail pending
sentence was not part of the terms identified on the record when petitioner pleaded guilty four
months later.

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must demonstrate that ‘the habeas petition raises substantial claims and_ that
extraordinary circumstances exist that make the grant of bail necessary to make the
habeas remedy effective.” Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990); quoting
luteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981). See also Morrow v. Capra, 2018-CV-
5765, 2020 U.S. Dist. LEXIS 106085, (E.D.N.Y. June 17, 2020) ("To be eligible for bail,
the petitioner must show: (1) that his petition makes ‘substantial’ claims, (2) that he has
demonstrated a likelihood of success on the merits of his petition, and (3) that
‘extraordinary or exceptional circumstances exist which make the grant of bail necessary
to make the habeas remedy effective."’) (internal quotation marks and citations omitted).

Petitioner has not shown that he is eligible for bail. First, his pending petition does
not present “substantial” claims or demonstrate a likelihood of success on the merits. To
satisfy this requirement, petitioner must show that his petition’s success “can be predicted
with confidence.” Beras v. United States, 05-CV-2678, 2007 U.S. Dist. LEXIS 5273
(S.D.N.Y. Jan. 24, 2007). While the Court has yet to rule on the merits of the petition, it
cannot be said that petitioner has met this exacting standard. Indeed, it appears that many
of petitioner's arguments will be foreclosed by his guilty plea and that the trial court was
within its right to decline to consider petitioner's pro se motions on account of the fact that
he was represented by counsel at the time he made them. Petitioner’s claims that his plea
was involuntary and that his counsel was ineffective during the plea proceeding were
rejected on the merits by the trial court, whose determinations are subject to significant
deference under the Antiterrorism and Effective Death Penalty Act. With respect to
petitioner's claim that Brady material was withheld, the record appears to show that

petitioner was aware of the alleged exculpatory statement by petitioner's cousin before

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he entered his plea. See Jackson v. N.Y. State Dep’t of Corr. Servs., 96-CV-1865, 1999
U.S. Dist. LEXIS 23077 (N.D.N.Y. Feb. 25, 1999) (denying bail application where “after
reviewing petitioner's claim but without fully addressing the merits, the court [was] unable
to confidently predict victory for the petitioner.”).

Petitioner further contends that bail is necessary here because (1) he is eligible for
conditional release in April of 2024; (2) he has a college education, a wife, 17 children
and 6 grandchildren; and (3) he “bears the risk of irreparable harm from continued
detention [in light of] Covid-19 and pre [existing] health conditions.” (Dkt. No. 17) These
are not the type of exceptional or extraordinary circumstances which would make the
granting of bail appropriate in this case. See Livingston v. Miller, 9:18-CV-0803, 2019
U.S. Dist. LEXIS 89536 (N.D.N.Y. May 29, 2019) (the fact that petitioner is approaching
his release date is not an extraordinary circumstance justifying bail because, if it was,
every prisoner nearing the end of their term could bring a successful bail motion in
connection with a habeas petition); Montes v. James, 9:20-CV-0150, 2020 U.S. Dist.
LEXIS 47512 (N.D.N.Y. Mar. 19, 2020) (petitioner's argument that he was a productive
citizen with important care-taking responsibilities for loved ones is insufficient to
demonstrate extraordinary circumstances); Morrow, 2020 U.S. Dist. LEXIS 106085 (51
year old with mild asthma citing COVID concerns did not present extraordinary or
exceptional circumstances that would make the granting of bail necessary to make the
habeas remedy effective). For these reasons, petitioner's motion for bail pending

determination of his habeas claim is denied.

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Conclusion
For the foregoing reasons, petitioner's (1) motion for discovery (Dkt. No. 15); (2)
motion to expand the record (Dkt. No. 35); (3) motion for an evidentiary hearing (Dkt. No.

36); and motion for release on bond pending determination of his habeas petition (Dkt.

No. 17) are denied.

SO ORDERED.

Dated: February 8, 2023
Buffalo, New York

Miclat | CA

MICHAEL J. ROEMER
United States Magistrate Judge

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