Fair v. Tope

OCR transcription for search; preserved printed pages are authoritative

Case 9:24-cv-01006-GTS-MJK Document52 Filed 12/11/25 Page1of 48

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Keith Darnell Fair,
Plaintiff,
V. 9:24-CV-1006
(GTS/MJK)
Danielle Tope,

Executive Director of CNYPC/STARC Oakview Center,

Defendant.

Keith Darnell Fair, Petitioner, pro se
Paul B. Lyons, Esq., Asst. Attorney General, for Respondent

Mitchell J. Katz, U.S. Magistrate Judge
To Honorable Glenn T. Suddaby, U.S. District Judge:

ORDER & REPORT-RECOMMENDATION
United States District Court Judge Glenn T. Suddaby referred

Fair’s habeas petition (Dkt. 1), Tope’s opposition (Dkt. 35), and Fair’s
reply (Dkt. 49) to this Court for a report and recommendation.! Tope
argues that Fair’s petition should be dismissed because the claims are

unexhausted and procedurally defaulted. This Court agrees. For the

1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).

1

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reasons below, the Court recommends dismissing Fair’s habeas
petition.?

I. BACKGROUND
A. Facts

In 2013, New York State petitioned Bronx County Supreme Court
under Mental Hygiene Law Art. 10 to civilly commit Fair as a
dangerous sex offender. (SR., Dkt. 34-1, at pg. 1-42)?. After a 2015 civil
commitment trial, Supreme Court determined that Fair is a “detained
sex offender suffering from a mental abnormality requiring civil
management.” (SR., Dkt. 34-1, at pg. 43). Soon after this determination,
Supreme Court held a three-day hearing to determine whether Fair
could be released into the community. (U/d.). In a February 8, 2016
Decision and Order, Supreme Court ordered Fair’s detention. (SR. 50).4

Fair did not appeal that decision. (Tope Memo of Law, Dkt. 35, at pg. 9).

2 The Court also addresses Fair’s Notice and Demand for an Evidentiary Hearing
(Dkt. 47), request for a Subpoena Duces Tectum (Dkt. 48), and Notice and Demand
to Compel Mandatory Discovery (Dkt. 50).

3 The Court refers to the State Record as “SR.”

4 Supreme Court’s decision is dated February 8, 2015, but that seems to be typo as
that Court references hearings that occurred in October, November, and December
of 2015. See (SR. 43, 50, 52).

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On March 31, 2017, Fair moved for Annual Review of his civil
confinement. (SR., Dkt. 34-1, at pg. 56). In response, Supreme Court
held an Annual Review hearing. (SR., Dkt. 34-1, at pg. 89). After the
hearing, Supreme Court issued a March 5, 2019 decision and order
denying Fari’s claim and ordering his continued confinement. (SR., Dkt.
34-1, at pg. 88-91). Fair did not appeal that decision. (Tope Memo of
Law, Dkt. 35, at pg. 9).°

On October 22, 2020, Fair again moved for Annual Review of his
civil confinement. (SR., Dkt. 34-1, at pg. 93). But Oneida County
Supreme Court issued a December 15, 2021 decision and order denying
Fair’s claim and ordering his continued confinement. (SR., Dkt. 34-1, at
pg. 94-97).° Fair did not appeal that decision. (Tope Memo of Law, Dkt.
35, at pg. 9).

On December 6, 2022, Fair moved for a third Annual Review of his
civil confinement. (SR., Dkt. 34-1, at pg. 98-101). Although, Fair refused
to appear, Oneida County Supreme Court held an Annual Review

hearing. (SR., Dkt. 34-1, at pg. 104). That Court then issued a July 14,

5 The Court will refer to this as the First Annual Review.
6 The Court will refer to this as the Second Annual Review.

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2024 decision and order denying Fair’s claim and ordering his continued
confinement. (SR., Dkt. 34-1, at pg. 104-105).7 Fair did not appeal that
decision to the Appellate Division. (Tope Memo of Law, Dkt. 35, at pg.
10). But he filed a letter with Oneida County Supreme Court, which
that Court construed as a request for a rehearing of the Third Annual
Review. (SR., Dkt. 34-1, at pg. 106-111).

B. Procedural History

On August 16, 2024, Fair petitioned this Court for habeas relief.
(Dkt. 1). Tope answered the petition and moved to dismiss the petition
for failure to exhaust the state court process. (Dkts. 33, 34, 35). Fair
replied. (Dkt. 37). Also before the Court is Tope’s motion to amend her
Answer, Fair’s Notice and Demand for an Evidentiary Hearing, and

Fair’s request for Subpoena Duces Tecum. (Dkts. 42, 47, 48).

II. GENERALLY APPLICABLE LAW

Antiterrorism and Effective Death Penalty Act of 1996
(““AEDPA”’)

AEDPA provides that, when a state court has adjudicated the
merits of a petitioner’s constitutional claim, a federal court may grant

an application for a writ of habeas corpus only if “the adjudication of the

7 The Court will refer to this as the Third Annual Review.

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claim (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that 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); See also Noble v. Kelly, 246 F.3d 93, 98 (2d Cir.
2001); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008). This is a
“difficult to meet,” and “highly deferential standard for evaluating
state-court rulings, which demands that state court decisions be given
the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(citations omitted).

To determine whether a state court decision is contrary to clearly
established Supreme Court precedent, the federal court must consider
whether the state court decision “applies a rule that contradicts such
law and how the decision confronts the set of facts that were before the
state court.” Jd. at 182 (cleaned up). A state court decision involves an
unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal principle but

unreasonably applies or unreasonably refuses to extend that principle

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to the facts of a particular case. See Williams, 529 U.S. at 413; Ramdass
v. Angelone, 530 U.S. 156, 166 (2000).

Under AEDPA, a state court’s factual findings are presumed
correct, unless that presumption is rebutted by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). If the state court failed to decide a
claim “on the merits,” the pre-AEDPA standard of review applies, and
both questions of law and mixed questions of law and fact are reviewed
de novo. Washington v. Shriver, 255 F.3d 45, 55 (2d Cir. 2001). Finally,
the Supreme Court has held that circuit and district court decisions do
not constitute “clearly established Federal Law, as determined by the
Supreme Court.” Parker v. Matthews, 567 U.S. 37, 40 (2012). Instead,
circuit court decisions may illustrate the “possibility” of fair-minded
disagreement, sufficient to justify denying the writ. White v. Woodall,
572 U.S. 415, 422 n.3 (2014).

III. DISCUSSION

A. The Court grants Tope’s motion to amend her Answer
because there is no evidence of undue delay, bad
faith, futility, or undue prejudice to Fair.

The Court grants Tope’s request to amend her Answer. “A party

may amend its pleading only with the opposing party's written consent

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or the court's leave. The court should freely give leave when justice so
requires.” FRCP 15(a)(2) (cleaned up). “Leave to amend ‘should not be
denied unless there is evidence of undue delay, bad faith, undue

999

prejudice to the non-movant, or futility.” Eagan v. Glassbrenner, No.
14-CV-5078S, 2015 WL 3637410, at *8 (W.D.N.Y. June 10, 2015) (quoting
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001)). Tope’s
amended Answer notifies the Court that Fair has not appealed the
unfavorable outcome of the Third Annual Review to the Appellate
Division, and Fair’s time to notice his appeal on that issue has expired.
Compare (Amended Answer, Dkt. 42-1, pgs. 1-2, at J] 3) with (Answer,
Dkt. 33, pg. 2, at 4). Allowing Tope to amend her Answer does not
delay this proceeding, does not prejudice Fair, the amendment is not

futile, and there is no evidence it was made in bad faith. As a result,

Tope’s motion to amend her Answer is granted.

B. The District Court should dismiss Fair’s petition
because the entire petition is procedurally defaulted.

“Before seeking a federal writ of habeas corpus, a state prisoner
must exhaust available state remedies, .. . thereby giving the State the
opportunity to pass upon and correct alleged violations of its prisoners’

federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up);

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see also 28 U.S.C. § 2254(b)(1). The prisoner must “fairly present” his
claim in each appropriate state court, including the highest court with
powers of discretionary review, thereby alerting that court to the
federal nature of the claim. Baldwin, 541 U.S. at 29; see also Bossett v.
Walker, 41 F.3d 825, 828 (2d Cir. 1994).

Where a petitioner has been convicted in a New York state court,
they may exhaust their federal claims by challenging their conviction
and presenting the federal claim on direct appeal to the Appellate
Division, and then by seeking leave to appeal to the New York Court of
Appeals. See Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
Likewise, AEDPA’s exhaustion requirement applies to Article 10. See,
e.g., Rosado v. McCulloch, No. 16-CV-1422 (TJM/CFH), 2018 WL
7960305 (N.D.N.Y. Sept. 26, 2018) (cleaned up) (applying AEDPA’s
exhaustion requirement to the petitioner’s habeas petition challenging
his Article 10 civil confinement).

Fair’s petition 1s procedurally defaulted. “When a petitioner fails
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, the federal

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habeas court should consider the claim to be procedurally defaulted.”
Hughes v. Sheahan, 312 F. Supp. 3d 306, 318-19 (N.D.N.Y. 2018). Here,
Fair did not appeal either the First, Second, or Third Annual Reviews to
the Appellate Division. See (Tope Memo of Law, Dkt. 35, at pg. 9-10);
see also Jones v. Tope, No. 21-CV-1007 (AMN/ML), 2024 WL 3206260,
at *7 (N.D.N.Y. Feb. 16, 2024) (cleaned up) (finding the petitioner’s
claim procedurally defaulted because the claim was not presented to the
Appellate Division on appeal). Beyond that, Fair can no longer appeal
the First, Second or Third Annual Review challenges because the time
to appeal those decisions have passed. Fair needed to appeal the First
Annual Review by April 4, 2019 (80 days after the March 5, 2019
decision continuing confinement), the Second Annual Review by
November 21, 2022 (30 days after the October 22, 2020 decision
continuing confinement), and the Third Annual Review by August 14,
2024 (80 days after the July 14 ,2024 decision continuing confinement).
See MHL § 10.13(b) (“Both the respondent and the attorney general
may appeal from any final order entered pursuant to this article. The
provisions of articles fifty-five, fifty-six, and fifty-seven of the civil

practice law and rules shall govern appeals taken from orders entered

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pursuant to this article.”); N.Y. C.P.L.R. § 5513(a) (“An appeal as of
right must be taken within thirty days after service by a party upon the
appellant of a copy of the judgment or order appealed from and written
notice of its entry, except that when appellant has served a copy of the
judgment or order and written notice of its entry, the appeal must be
taken within thirty days thereof.”) Yet Fair never appealed any of the
Annual Reviews. See (Tope Memo of Law, Dkt. 35, at pg. 9-10). Asa
result, all the of Annual Review challenges are procedurally defaulted.®

The District Court need not address the exceptions for procedural
default. The merits of such a procedurally defaulted claim may not be
reviewed by a federal court unless the petitioner can show both cause
for the default and actual prejudice resulting from the alleged violation
of federal law, or if he can show that the constitutional violation has

resulted in the conviction of one who is “actually innocent.” Rivas v.

Fischer, 687 F.3d 514, 540 (2d Cir. 2012); Clark v. Perez, 510 F.3d 382,

8 In the habeas context, a Court’s finding that a claim is procedurally defaulted is
considered an adjudication on the merits. See, e.g., Dale v. Russell, No. 24-CV-00143
(NCM), 2025 WL 486686, at *6 (E.D.N.Y. Feb. 13, 2025) (“Because she never
appealed denial of her 440 Motion, and because she has missed the window to seek
further review of this claim in state court, while her ineffective assistance claim
may be “deemed exhausted” for purposes of federal habeas review it is nevertheless
procedurally defaulted.”) (cleaned up)

10

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393 (2d Cir. 2008) (cleaned up). Even construing his petition with
special solicitude, Fair “fails to provide any reason why this claim was
not presented to the Appellate Division on appeal, thereby failing to
meet the criteria of the first exception to procedural default.” Jones,
2024 WL 3206260, at *7 (cleaned up). That failure is fatal to the first
exception. Beyond that, Fair’s petition cannot be read as arguing actual
innocence. See generally (Petition, Dkt. 1). As a result, the District
Court need not address the procedural default exceptions.
kee

For the reasons above, this Court recommends the District Court
dismiss Fair’s petition as procedurally defaulted. And because the Court
makes that recommendation, it also recommends dismissing, Fair’s
Notice and Demand for an Evidentiary Hearing, Fair’s request for
Subpoena Duces Tecum, and Fair’s Notice and Demand to Compel

Mandatory Discovery because his requests are moot. (Dkts. 47, 48, 50).

11

IV. CONCLUSION
WHEREFORE, based on the above findings, it is hereby
ORDERED that Tope's motion to amend her Answer (Dkt. 42) is
GRANTED; and it is further,
RECOMMENDED, that the District Court DENY Fair's Habeas
Petition, and that the Petition (Dkt. 1) be dismissed WITH
PREJUDICE; and it is further,
RECOMMENDED, the District Court DENY Fair's Notice and
Demand for an Evidentiary Hearing (Dkt. 47) as moot; and it is further,
RECOMMENDED, the District Court DENY Fair's request for a
Subpoena Duces Tectum (Dkt. 48) as moot; and it is further,
RECOMMENDED, the District Court DENY Fair's Notice and
Demand to Compel Mandatory Discovery (Dkt. 50) as moot; and it is
further,
ORDERED that the Clerk provide Fair with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(l), the parties have fourteen
days within which to file written objections to the foregoing report. Such
12
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objections shall be filed with the Clerk of the Court. FAILURE TO
OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).

Dated: December 11, 2025 Nyteil oy Michell } ra »

Date: 2025.12.11
09:33:38 -05'00'

Hon. Mitchell J. Katz
U.S. Magistrate Judge

13

Dale v. ASG, VeAccy1006-GTS-MJK Document 52 ~Filed 12/11/25 Page 14 of 48

- KeyCite Blue-Striped Flag
Appeal Filed by Dale v. Russell, 2nd Cir., May 27, 2025

2025 WL 486686
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.

Christen DALE, Petitioner,
Vv.
Eileen RUSSELL, Respondent.

24-cv-00143 (NCM)
|
Signed February 13, 2025

Attorneys and Law Firms
Christen Dale, Bedford Hills, NY, Pro Se.

Jason Wayne Eldridge, Kings County District Attorney's Office, Brooklyn, NY, for Respondent.

MEMORANDUM & ORDER

NATASHA C. MERLE, United States District Judge:

*1 Christen Dale, who is currently incarcerated at Bedford Hills Correctional Facility, petitions this court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Dale was convicted after a jury trial of one count of first-degree manslaughter, two counts of
second-degree assault, one count of fourth-degree criminal possession of a weapon, and one count of endangering the welfare of

a child. Appearing pro se, Dale brings this petition ' for habeas relief, alleging, among other things, that she received ineffective
assistance of counsel during trial, was coerced to involuntarily waive her Miranda and speedy arraignment rights, and was
denied a fair trial based on admission of illegally obtained statements. For the reasons set forth below, Dale's petition is denied.

BACKGROUND

A. The Crime and Arrest
The state presented evidence of the following facts at trial. On February 25, 2015, Dale repeatedly struck her nephew, Ethan
Ali, who was four years old at the time, on his head and body. Opp'n, Ex. B (“Trial Tr.) 261:3—11, ECF No. 6-7. This caused
extensive confluent “subcutaneous bleeding,” and consequently led to Ethan's death. Trial Tr. 261:12—262:5. Dale's boyfriend
at the time, Kenroy Skeete, returned home to find Ethan unresponsive in Dale's lap and called 911. Trial Tr. 314:17-316:9. Soon
after police officers, firefighters, and EMTs arrived at the apartment, Ethan was pronounced dead.

In response to questions, Dale informed EMTs that she had struck Ethan with a belt. Trial Tr. 70:2-72:3, ECF No. 6-5. When
police officers asked for the belt, Skeete retrieved it for them. Trial Tr. 72:1—3. Dale was then brought to the 67th Precinct by an
officer, was given her Miranda warnings, and was interviewed by the police from about 4:15 PM to 7:10 PM. Trial Tr. 198:19-
25; 203:5—7; 218:10-15, ECF No. 6-6. During the initial interview, Dale told detectives that she and Ethan had an “altercation”
because Ethan refused to do his homework. Opp'n, Ex. O, Videos of Def.’s Interviews at the 67th Precinct (“Video Statement”)
16:22:48-16:24:51, ECF No. 6-22; see also Trial Tr. 172:3-7, 180:19-25, ECF No. 6-3. Dale admitted that she had hit Ethan

WESTLAW

Dale v. ASG, VeAccy1006-GTS-MJK Document 52 ‘Filed 12/11/25 Page 15 of 48

with a belt five times and sent him to bed. Video Statement 16:35:30-16:38:10. Dale estimated that she struck Ethan roughly
three hours before she called 911. Video Statement 16:42:08-16:43:30. Dale further admitted that she had previously punished
Ethan by striking him with a belt. Video Statement 16:47:32-16:48:15. That same evening, at 11:45 PM, Dale signed a waiver
of her speedy arraignment rights. Trial Tr. 210:14-18, ECF No. 6-3.

Dale spent that night and most of the following day, February 26, 2015, at the precinct. Trial Tr. 217:9-218:17, ECF No. 6-3.
The police interviewed her again that day between about 7:02 PM and 7:52 PM. Trial Tr. 217:18—218:11. During all interviews,
Dale told authorities that Ethan was unharmed when Skeete and Natasha, her sister and Ethan's mother, left the apartment on
the day of Ethan's death. Dale was arrested around 9:30 PM on February 26, 2015. Trial Tr. 219:7—20.

B. Pretrial Proceedings & Huntley Hearing
*2 Dale was charged with one count of Manslaughter in the First Degree (N.Y. Penal Law (“P.L.”) § 125.20[4]), four counts
of Assault in the Second Degree (PL. §§ 120.05[2], 120.05[4], 120.05[8], 120.05[9]), one count of Criminal Possession of a
Weapon in the Fourth Degree (P.L. § 265.01[2]), and one count of Endangering the Welfare of a Child (PL. § 260.10[1]).

Prior to her trial, petitioner moved to suppress her statements at the precinct. On May 23, 2016, Justice Miriam Cyrulnik of
the New York State Supreme Court, Kings County, held a Huntley hearing upon Dale's motion. See Opp'n, Ex. A, Transcript

of Huntley Hearing (“Huntley Hr'g Tr.”) 12, ECF No. 6-1. > On September 6, 2016, the court held oral argument based on the
testimony elicited at the Huntley hearing. See Opp'n, Ex. A, Transcript of Huntley Hearing Oral Argument (“Huntley Arg. Tr.”)
32, ECF No. 6—1. Defense counsel moved to suppress Dale's statements while in custody on the basis that they were made under
“coercive” conditions that undermined the statements’ voluntariness. See Huntley Arg. Tr. 3:9-4:6.

The Court denied defendant's motion to suppress her statements during interrogation and declared them voluntary. Huntley Arg.
Tr. 9:23-10:3, ECF No. 6-1. The Huntley ruling was based on the court's finding that Detective Teahan's testimony concerning
the defendant's statements was credible. Huntley Arg. Tr. 7:18—19. Justice Cyrulnik agreed that Dale was in custody during her
interviews. Huntley Arg. Tr. 7:22—23. Additionally, Justice Cyrulnik reviewed the videotaped interrogation “from beginning
to end” and observed that Dale received Miranda warnings, indicated that she understood each question, and agreed to speak
with detectives. Huntley Arg. Tr. 7:12-8:2. Considering many factors of petitioner's interrogation, Justice Cyrulnik found that
Dale was “not coerced or forced to speak to officers at any point” and “did not appear to be overwhelmed to the point of not
understanding what was taking place during the interview.” Huntley Arg. Tr. 8:15—23.

C. Trial, Sentencing, and Motion to Vacate
On May 16, 2017, the jury announced a verdict of guilty on all five counts. Trial Tr. 498:19-500:4, ECF No. 6-9. On June 1,
2017, the Supreme Court of Kings County imposed a sentence of twenty-two years of imprisonment, with five years of post-
release supervision, on the manslaughter count; seven years of imprisonment, with three-years of post-release supervision, on
each of the two assault counts; and one year of imprisonment on each of the weapon possession and child endangerment counts,
all to run concurrently. See Opp'n, Ex. C (“Sentencing Tr.”) 18:21-19:10, ECF No. 6-10.

Five days after her sentencing, before perfecting her direct appeal, petitioner filed a pro se motion to set aside or vacate her

sentence pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10. 4 See Opp'n, Ex. D (“440 Motion”) 3—7, ECF
No. 6-11. Dale's 440 Motion raised five claims: (1) an ineffective assistance of counsel claim, asserting that her trial counsel
failed “to use important evidence or testimony at trial,” and to otherwise object to false or inconsistent testimony; (2) that, at the
Huntley hearing, a detective falsely testified that Dale knew she “could leave at anytime [sic],” despite Dale's impression that
she was locked in the interrogation room and not free to leave; (3) that new evidence showing defendant was heavily medicated
at the time of Ethan's death might have led to a more favorable sentence; (4) photo evidence of Ethan's autopsy was only shown
at trial to “cause shock and move the jury” to convict; and (5) that a responding police officer perjured himself by having told
the grand jury that he spoke to Dale but subsequently admitting he never did so. See generally 440 Mot, ECF No. 6-11.

WESTLAW

Dale v. ASG, VeAccy1006-GTS-MJK Document 52 ‘Filed 12/11/25 Page 16 of 48

*3 On September 13, 2017, the New York Supreme Court denied Dale's motion on a number of grounds. First, the court found
Dale's motion procedurally barred under C.P.L. § 440.10(2)(b) because her suppression and trial judgments were appealable and
the record was sufficient to permit review by an appellate court. See Opp'n, Ex. F (“440 Order”) 2-3, ECF No. 6-13. Second, the
Supreme Court denied all of Dale's 440 claims under C.P.L. § 440.30(4)(d) for being conclusory, self-serving, and “unsupported
by any other affidavit or evidence.” 440 Order 3-4. Third, Dale's argument regarding evidence of her medication failed under
C.P.L. § 440.10(1)(g) because she failed to demonstrate that the evidence was “newly discovered.” 440 Order 4—S. Finally,
the court denied grounds (1), (2), (4), and (5) under C.P.L. §§ 440.30(4)(a) & (b) for failing to state a claim by providing no
evidence to support her claims. See 440 Order 5—6. Dale did not seek review of the denial of this motion. According to the
Petition, Dale did not appeal any of these denials on the basis that she “[n]ever received an answer.” Pet. 6, 8, 10.

D. Direct Appeal
Over four years later, on January 7, 2022, Dale perfected her direct appeal to the Second Department with the assistance of
counsel. Her appeal was based on three main grounds: (1) that the state failed to prove that she knowingly and intelligently
waived her Miranda rights during her interrogation; (2) in the alternative, that Dale's trial counsel was ineffective for neglecting
to argue that the state failed to prove this waiver; and (3) that her prison sentence of twenty-two years was excessive. See Opp'n,
Ex. H (“Appellant's Br.”), 31, 41, 44, ECF No. 6-15.

The Second Department unanimously affirmed Dale's judgment of conviction on July 20, 2022. See People v. Dale, 207 A.D.3d
651 (2d Dep't 2022). The court found that any error in declining to suppress Dale's statements during interrogation was harmless
because the evidence of her guilt “was overwhelming” even without reference to those statements. /d. at 651. The court also
declined to review Dale's ineffective assistance claim on the basis that it was a “mixed claim,” appearing in part on the record
and in part outside the record, and more appropriate instead for a C.P.L. § 440.10 hearing. Jd. at 652. Finally, the court found
that the sentence imposed by the trial court was not excessive. Jd.

Dale's appellate counsel then sought leave to appeal the Appellate Division's decision to the New York Court of Appeals. Judge
Riviera denied this application on October 4, 2022. See Opp'n, Ex. N (“Court of Appeals Order”) 2, ECF No. 6-21; People v.
Dale, 39 N.Y.3d 939 (2022).

E. District Court Proceedings

Dale, proceeding pro se, filed the instant petition on December 27, 2023. > Pet. 15. Construed liberally, her petition raises three
main grounds: (1) petitioner was provided ineffective assistance of counsel when her trial attorney failed to inform the jury
that she was “locked” in the interrogation room, Pet. 6; (2) by being interrogated under the false impression that she was not in
custody, petitioner was coerced to waive her Miranda and speedy arraignment rights, Pet. 7; and (3) petitioner was deprived of
her right to a fair trial when her videotaped interrogation statements were shown to the jury at trial, Pet. 9.

LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA”) narrowed the scope of federal habeas review of state
convictions where the state court has adjudicated a petitioner's federal claim on the merits. Fox v. Bezio, No. 10-cv-02986, 2011
WL 837158, at *5 (E.D.N.Y. Mar. 7, 2011) (citing 28 U.S.C. § 2254(d)). Under AEDPA, federal habeas relief is available when
“a person in custody pursuant to the judgment of a State court ... is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Federal habeas relief is only available for a violation of federal law, as “it is not
the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502

US. 62, 67-68 (1991). °

WESTLAW

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*4 AEDPA provides that an “application for a writ of habeas corpus ... pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits in State court proceedings,” unless adjudication of that
claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)(2). A decision on the merits is “contrary
to ... clearly established” federal law if the state court (1) arrives at a conclusion opposite to one reached by the Supreme Court
on a question of law; or (2) decides a case differently than the Supreme Court has on a set of materially indistinguishable
facts. Jones v. Perez, No. 14-cv-03971, 2015 WL 5923548, at *4 (E.D.N.Y. Oct. 10, 2015) (citing Williams v. Taylor, 529 U.S.
362, 405 (2000)). A state court decision is an “unreasonable application” of clearly established federal law if the state court
identifies the correct controlling legal principle announced by the Supreme Court but unreasonably applies that principle to
the facts of the petitioner's case. /d. (citing Williams, 529 U.S. at 407). This deferential standard of review, known as “AEDPA
deference,” “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

AEDPA deference applies only to federal claims “adjudicated on the merits” in state court. 28 U.S.C. § 2254(d). Merits
adjudication occurs when a state court “disposes of the claim on the merits” and “reduces its disposition to judgment.” Bell v.
Miller, 500 F.3d 149, 155 (2d Cir. 2007). When multiple state courts consider a case, including on direct appeal, the Court reviews
the last state court decision that explained its reasoning, even if a higher court reviewed the case. See Wilson v. Sellers, 584 U.S.
122, 125 (2018) (“[T]he federal court should ‘look through’ the unexplained decision to the last related state-court decision that
does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.”).

When there has been an adjudication on the merits, AEDPA deference “demands that state-court decisions be given the benefit
of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). In practice, this means that a district court may not overturn a state court's
application of federal law if it is merely incorrect, but only if it is objectively “unreasonable—a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). In other words, a district court may overturn a state court's application of
federal law only if it is “so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision
conflicts with the Supreme Court's precedents.” Baez v. Royce, No. 20-cv-01669, 2024 WL 2022090, at *8 (E.D.N.Y. May 3,
2024) (quoting Nevada v. Jackson, 569 U.S. 505, 508-09 (2013)).

The Court is obliged to construe pro se pleadings liberally and interpret them “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.
1983). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.”
Williams v. People, No. 23-cv-10027, 2024 WL 421130, at *1 (S.D.N.Y. Jan. 4, 2024) (quoting Zraguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)).

DISCUSSION

Each of petitioner's grounds for relief must be denied both for failing to meet AEDPA's procedural requirements, as well as on
the merits. For each ground, the Court first addresses how the Petition fails to meet procedural requirements and then proceeds
to the merits.

I. Ground One: Ineffective Assistance of Counsel
The Petition asserts that Dale's trial counsel, Raymond Colon, was ineffective for failing to raise her allegation that she was
“locked” in the interrogation room prior to being read her Miranda rights. Pet. 6. Because Colon did not raise this issue, Dale
claims that the jury was “blinded from the unjust tactics that led to [her] conviction.” Pet. 6. In the Reply, petitioner states that

this ground was addressed by the 440 Motion, which asserted that Colon “did not argue the fact of how [Dale's] statement was

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made.” Reply 7. Furthermore, the Reply argues that petitioner received ineffective assistance because Colon did not inform the
jury that Dale was not given “the option to leave” the precinct “on her freewill.” Reply 7.

A. Ground One is Unexhausted and Procedurally Barred

*5 Dale's ineffective assistance claim is not cognizable because she failed to present it on direct appeal. And, even were the
Court to construe her 440 Motion as raising this claim, Ground One would fail because Dale failed to fully appeal her 440
Motion.

i. Exhaustion

Before considering the merits of a habeas petition, a federal court must ensure that the petition complies with AEDPA's
procedural requirements. Under 28 U.S.C. § 2254(b)(1)(A), a habeas petition “shall not be granted unless it appears that ...
[petitioner] has exhausted the remedies available in the courts of the State ....” A petitioner exhausts remedies by “(i) present[ing]
the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in
lower courts); and (ii) inform[ing] that court of both the factual and legal bases for the federal claim.” Diguglielmo v. Senkowski,
42 F. App'x 492, 494 (2d Cir. 2002). In New York, a defendant must exhaust his claims by seeking leave to appeal any denials
of relief to the New York Court of Appeals. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). This requirement affords
the state system the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry,
513 U.S. 364, 365 (1995).

A defendant may collaterally attack a conviction by filing a motion to vacate judgment pursuant to C.P.L. § 440.10. Ortiz v.
Heath, No. 10-cv-01492, 2011 WL 1331509, at *7 (E.D.N.Y. Apr. 6, 2011). Section 440.10 motions are limited to claims that
do not appear on the record. See C.P.L. §§ 440.10(1)(f) & (2)(b). Thus, a state court must deny a 440.10 motion that is premised
on a judgment which, when the motion is made, is “appealable or pending on appeal”; or when sufficient facts appear on the
record such that the ground of the § 440.10 motion could have been raised instead on direct appeal. C.P.L. § 440.10(2)(b).
A defendant must apply for leave to appeal denial of her 440.10 motion within 30 days of being served with the trial court's
decision. See Thomas v. Greiner, 111 F. Supp. 2d 271, 276 (S.D.N.Y. 2000). Otherwise, the defendant “has failed to exhaust”
her state remedies. Baez, 2024 WL 2022090, at *11 (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). To fully exhaust
a C.P.L. § 440 motion, a party must obtain a decision from the Appellate Division regarding her leave application. Diaz v.
Smith, No. 04-cv-01337, 2007 WL 946196, at *4n.10 (S.D.N.Y. Mar. 27, 2007); Brooks v. Walker, No. 01-cv-00760, 2006 WL
1875103, at *8 (N.D.N.Y. July 3, 2006).

il. Procedural Default and Independent and Adequate State Grounds

A petitioner who has failed to follow the state's procedural requirements for presenting his federal claims “has deprived the
state courts of an opportunity to address those claims in the first instance.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). A
petitioner who has done so “has procedurally defaulted his claims.” O'Sullivan v. Boerckel, 526 U.S. 838, 854 (1999) (Stevens,
J., dissenting). When a petitioner has 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 those claims “procedurally barred,” the federal
habeas court should consider the claim to be procedurally defaulted. Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (citing
Coleman v. Thompson, 501 U.S. 722, 735 n.1). These defaulted claims “are by definition exhausted because a petitioner would
no longer have any remedies available in the courts of the State within the meaning of 28 U.S.C. § 2254(b).” See Baez, 2024
WL 2022090, at *9. Unlike dismissal for failure to exhaust, dismissal for procedural default constitutes “an adjudication on
the merits,” to which AEDPA deference applies. Dominique v. Artus, 25 F. Supp. 3d 321, 330-31 (E.D.N.Y. June 17, 2014)
(quoting Turner v. Artuz, 262 F.3d 118, 122—23 (2d Cir. 2001)).

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*6@ Where there has been actual and explicit reliance upon procedural default to dispose of a claim in state court, there is an
“adequate and independent state ground” for the judgment, prohibiting federal habeas review. Parker v. Wenderlich, No. 14-
cv-05896, 2015 WL 5158476, at *8 (citing Harris v. Reed, 489 U.S. 255, 261-63 (1981)). In a § 2254 petition, a federal court
faced with a claim that was dismissed by the state court pursuant to an “independent and adequate state ground” for dismissal
must defer to the state law ruling and decline to review the federal claim. Dominique, 25 F. Supp. at 332 (citing Whitley v.
Ercole, 642 F.3d 278, 285 (2d Cir. 2011)). To bar federal habeas review, the state court's decision must rest not only on an
independent procedural bar under state law, but also one that is “adequate to support the judgment.” Murden v. Artuz, 497 F.3d
178, 191-92 (2d Cir. 2007). A state procedural bar is “adequate” if it is “firmly established and regularly followed by the state
in question in the specific circumstances presented in the instant case.” Jd. at 192 (citing Monroe v. Kuhlman, 433 F.3d 236,
241 (2d Cir. 2006)). Procedural default under § 440.10(2) “is generally considered an adequate and independent state ground
barring habeas review.” Thompson v. Artus, No. 10-cv-01443, 2013 WL 6408354, at *7 (E.D.N.Y. Dec. 6, 2013) (citing Sweet
v. Bennett, 353 F.3d 135, 139-41 (2d Cir. 2003)).

iii. Application

In the first place, Dale did not raise Ground One on direct appeal. The ineffective assistance claim in Dale's habeas petition is
based on Colon's failure to raise that she was locked in her interrogation room. Pet. 6. On appeal, however, Dale's ineffective
assistance claim was based on Colon's failure “to argue that the People failed to prove the validity” of Dale's Miranda waiver
via focus on: (1) her questions at the end of her second day of interrogation; and (2) the detectives’ failure to re-administer
or remind her of her Miranda waiver. See Appellant Br. 41, ECF No. 6-15. Neither Dale's state appeal brief nor the Second
Department's opinion mention Dale's allegation of being locked in her interrogation room. Because Ground One is not the
“substantial equivalent” of the claims raised on petitioner's direct appeal, it was never properly exhausted. See Jones v. Keane,
329 F.3d 290, 295 (2d Cir. 2003).

Even if a federal habeas petition ground was not technically exhausted, “a federal court may deem it exhausted if there are no
avenues available in the state judicial system for reviewing the claim.” Parker, 2015 WL 5158476, at *9 (citing 28 U.S.C. §
2254(b)(1)). Because petitioner has already perfected her appeal in state court, see People v. Dale, 39 N.Y.3d at 939, there are
no further paths to appeal her claim. As a result, it must be deemed procedurally defaulted. See Parker, 2015 WL 5158476, at
*9 (citing Sweer, 353 F.3d at 140). On this basis alone, Ground One must be denied.

Moreover, Ground One is also procedurally defaulted to the extent Dale raised it on collateral attack. Petitioner herself maintains
that Ground One was raised in her 440 Motion. Pet. 6. As an initial matter, Ground One is an inappropriate basis for a Section
440.10 motion because it pertains “directly to issues that were addressed, on the record, during the course of the suppression
hearing and trial.” See 440 Order 3, ECF No. 6-13; see also C.P.L. § 440.10(2)(b). Additionally, exhaustion of a § 440.10 motion
requires appeal of that claim to the Appellate Division. See also Rosas v. Artus, No. 05-cv-08440, 2007 WL 1573919, at *2
(S.D.N.Y. May 24, 2007). Dale is unable to claim that she exhausted state remedies if she possessed additional remedies that she
did not exercise. Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir. 2005). Because she never appealed denial of her 440 Motion,
and because she has missed the window to seek further review of this claim in state court, while her ineffective assistance claim
may be “deemed exhausted” for purposes of federal habeas review it “is nevertheless procedurally defaulted.” Baez, 2024 WL
2022090, at *13 (citing Thomas, 111 F. Supp. at 276—77 (collecting cases)); cf Parker, 2015 WL 5158476, at *10 (finding
petitioner's claim “unexhausted but procedurally defaulted”).

iv. Cause, Prejudice, and Miscarriage of Justice

*7 A court may still review an unexhausted and procedurally defaulted claim if petitioner demonstrates (1) cause and actual
prejudice, or (2) that failure to consider the claim would result in a miscarriage of justice, 7.e., that she is actually innocent.

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Parker, 2015 WL 5158476, at *10 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). Petitioner concedes that she did
not seek leave to appeal the 440.10 decision because she “[n]ever received an answer.” Pet. 6. See also Pet. 8, 10 (claiming
the same as to her collateral attack of Grounds Two and Three). However, petitioner's threadbare allegation that she never
received a response does not constitute cause for her failure to appeal denial of her 440 Motion. See Parker, 2015 WL 5158476,
at *10 (collecting cases); see also Glover v. Burge, No. 05-cv-00393, 2007 WL 9183249, at *4 (W.D.N.Y. Oct. 22, 2007)
(finding no good cause where petitioner alleged he could not timely file brief due to prison lockdown); see generally Anderson
v. O'Gara, No. 01-cv-05712, 2002 WL 1633917, at *4 (S.D.N.Y. July 23, 2002) (declining to toll AEDPA limitations period
where petitioner did not receive notice of state court's denial of petition for writ of error coram nobis and “never inquired with
the Appellate Division of the status of his petition’). Even when a petitioner alleges that prison officials hindered her ability to
comply with procedures, she still must adduce some sort of proof that this is the case. White v. West, No. 04-cv-02886, 2010
WL 5300526, at *19 (E.D.N.Y. Dec. 6, 2010). Since Dale has failed to demonstrate cause for her procedural default, the Court
need not analyze prejudice. Parker, 2015 WL 5158476, at *10 (citing McCleskey v. Zant, 499 U.S. 467, 502 (1991)).

There is also no evidence of a “fundamental miscarriage of justice,” 7.e., that Dale is actually innocent, in this case. This
“extremely rare” exception is to be applied only in exceptional circumstances. Schlup v. Delo, 513 U.S. 298, 321 (1995). Dale
does not purport to offer “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence” that
was not presented at trial. Jd. at 324. In fact, Dale concedes that “innocence is not the argument” in her petition, as it was “argued
in Court” before the jury. Reply 9. As such, the Court may not review Dale's defaulted claim on this ground.

For the reasons above, Dale's ineffective assistance of counsel claim is procedurally barred and not subject to habeas review.

v. Inappropriateness of a Stay

Although a federal court may stay a habeas proceeding to give a defendant an opportunity to exhaust her remedies in state court,
the federal court should deny that claim on the merits when it is “plainly meritless.” See Rhines v. Weber, 544 U.S. 269, 277
(2005) (“[T]he district court would abuse its discretion if it were to grant [defendant] a stay when his unexhausted claims are
plainly meritless.”) As the discussion below bears out, a stay is improper because each one of petitioner's grounds are meritless.

B. Ground One Fails on the Merits

Even were Ground One not procedurally barred, it would fail on the merits. To prevail on an ineffective assistance claim,
Dale must prove that (1) Colon's performance fell below an objective standard of reasonableness, and (2) there is a reasonable
probability that, but for Colon's errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S.
668, 687-88, 694 (1984). To satisfy prong (2), “[t]he likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011). When the claim at issue is one for ineffective assistance of counsel, AEDPA
review is “doubly deferential” because counsel is “strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Woods v. Etherton, 578 U.S. 113, 117 (2016).

Petitioner's basis for Ground One—that Colon failed to raise Dale's allegation that she was locked in the interrogation room at
trial—is meritless. For one, Colon did raise this at trial. During his cross-examination of Detective Teahan, one of petitioner's
interrogators, Colon inquired whether the interview room was locked and whether the defendant was free to leave at the
beginning of the interview. Trial Tr. 203:7—213:5, ECF No. 6-3. Detective Teahan testified that the interview room door was
unlocked at all times. Trial Tr. 204:6—-8. Counsel even went as far as to inquire whether Dale's holding room, where she was held
between interrogations, was locked. Trial Tr. 207: 16—208:9. Detective Teahan responded that he did not know. Trial Tr. 213:3-—5.

*8 Moreover, during the Huntley hearing, Colon repeatedly inquired into whether Dale was locked in the interrogation room.
For example, Colon asked Detective Teahan whether the door to the interview room was “locked or unlocked.” Huntley Hr'g Tr.

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18:21-22, ECF No. 6-1. At the time, Detective Teahan stated that he did not remember. Huntley Hr'g Tr. 18:23. Because Justice
Cyrulnik found Detective Teahan credible and petitioner presented no evidence of the locked door, Colon had no obvious basis
to raise the same allegation at trial and expect a different answer. And yet, at trial, Colon heeded Dale's suggestion and tried
again to no avail.

This testimony is an obstacle for Dale's allegations regarding the conditions of her interrogation. But it also completely
undermines her suggestion that Colon's performance fell below an “objective standard of reasonableness.” Colon raised the
question of whether Dale was locked in a room at any point of her interrogation numerous times, both during Dale's Huntley
hearing and her criminal trial. Especially as the Court must strongly presume that Colon made “all significant decisions in the
exercise of reasonable professional judgment,” Woods, 578 U.S. at 117, it will not accept petitioner's invitation to “confus[e]
true ineffectiveness with mere losing tactics and accord[ | undue significance to retrospective analysis.” Fagan v. Kuhlman,
267 F. Supp. 2d 388, 408 (E.D.N.Y. 2003).

To the extent petitioner contends that Colon's performance on this score was not objectively reasonable because he did not
emphasize the issue to her satisfaction, the record belies petitioner's claims and Strickland’s prejudice prong is not satisfied.
Specifically, the Huntley court, which watched the video from “beginning to end,” did not point to any evidence of a locked
door. Huntley Arg. Tr. 7:18-9:2, ECF No. 6-1. In such cases, the “transcript ... speaks for itself.” Granger v. Artus, No. 17-
cv-00888, 2022 WL 3228259, at *17 (E.D.N.Y. Aug. 10, 2022). Especially through the “doubly deferential lens applicable to
ineffectiveness claims,” the Court sees no supported basis for an allegation of unconstitutional ineffectiveness.

II. Ground Two: Deprivation of Privilege Against Self-Incrimination
As a second ground, Dale asserts she was unable “to protect [her] right against self-incrimination.” Pet. 7. Specifically, Dale

claims that, although she was told by Detective Teahan that she was not under arrest, she was both “kep[t] ... in the precinct
to incriminate [her]self’ through interrogation and, during that time, was coerced to waive her right to a speedy arraignment.
Pet. 7. Petitioner seems to argue that Detective Teahan's representations were meant to “appear harmless” while eliciting her
inculpatory statements and waiver of her speedy arraignment rights. Reply 8. Together, the Court liberally construes these claims
to dispute the trial court's failure to suppress Dale's inculpatory statements during interrogation.

A. Ground Two is Procedurally Barred

Ground Two fails before merits review because it was raised in Dale's unexhausted 440 Motion and is thus procedurally
defaulted.

i. Application

Dale's 440 Motion argues that—contrary to the testimony elicited during the Huntley hearing—defendant was “kept in a locked
room ... under the impression that she had to” provide statements and sign documents in order to leave. See 440 Mot. 4, ECF
No. 6-11. Construing Dale's petition liberally, the Court assumes that this ground refers both to introduction of her inculpatory
statements during interrogation and waiver of her right to a speedy arraignment. As with Ground One, Dale maintains that she
“raise[d] this issue through” a collateral attack. Pet. 8.

*9 As discussed above, Dale's 440 Motion was not appealed to the Second Department. To properly exhaust her claims, Dale
was required to seek leave to appeal the order denying her 440 Motion. See LaRosa v. Kirkpatrick, No. 15-cv-07008, 2019 WL
1458252, at *12 (E.D.N.Y. Mar. 31, 2019) (citing Colon v. Sheahan, No. 13-cv-06744, 2016 WL 392443, at *3 (S.D.N.Y. July
14, 2016)). She never did so and, as discussed, her 30-day window to appeal denial of that motion has been closed for over

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seven years. See C.P.L. § 460.10(4)(a); 440 Order 7, ECF No. 6-13. The Court accordingly deems Ground Two procedurally
defaulted. Baez, 2024 WL 2022090, at *13 (citing Thomas, 111 F. Supp. 2d at 276).

Furthermore, Ground Two is procedurally barred because Dale could have but failed to bring it on direct appeal. See C.P.L.
§ 440.10(2)(b). The state court reviewing Dale's 440 motion noted that Dale “argued for suppression ... before the court and
jury rendered their respective decisions.” 440 Order 3, ECF No. 6-13. Because the issue of Dale's inculpatory statements was
“addressed, on the record, during the course of the suppression hearing and trial,” the court concluded that Dale could have raised
the issue on direct appeal. 440 Order 3. Accordingly, the court found that Dale's 440 motion on these grounds was procedurally
barred. See 440 Order 3. Where, as here, a petitioner's “bases for relief are plain from the trial record,” a “motion court's
invocation of § 440.10(2) [i]s an adequate and independent state law ground,” barring habeas review. Thompson, 2013 WL
6408354, at *7; see also Dominique, 25 F. Supp. 3d at 332 (aclaim dismissed under § 440.10(2)(b) is dismissed “independent[ly]
of federal constitutional law’’).

Whereas Ground Two alleges that Dale involuntarily waived her right against self-incrimination—via waiver of a speedy
atraignment—under coercion, her direct appeal only challenges the adequacy of the administering of her Miranda rights. If a
state court defendant unjustifiably fails to argue a ground on direct appeal despite a sufficient record, and instead challenges
that ground via collateral attack, C.P.L. 440.10(2)(c) “requires a state court to deny a [440.10 motion] based on a constitutional
violation.” Sweet, 353 F.3d at 139. This rule exists “to prevent Section 440.10 from being employed as a substitute for direct
appeal when the defendant was in a position to raise” that constitutional violation on appeal. Jd. Thus, because Dale's appellate
counsel unjustifiably failed to argue Ground Two on direct appeal despite a sufficient record, see 440 Order 3, ECF No. 6-13,
it is procedurally defaulted for purposes of federal habeas review.

il. Cause and Prejudice

As discussed, petitioner's bare allegation that she never received a response does not constitute cause for her failure to appeal
denial of her 440 Motion. See Parker, 2015 WL 5158476, at *10 (collecting cases). Because there is no cure for Dale's procedural
default, and because petitioner does not allege actual innocence, Ground Two of the petition must be denied.

B. Ground Two Fails on the Merits

Even were Ground Two not procedurally defaulted, it would fail on the merits. The Appellate Division reached the question
of the voluntariness of defendant's statements during interrogation and whether she “knowingly, intelligently, and voluntarily
waived ... her Miranda rights ... prior to making the statements.” Dale, 207 A.D.3d at 651. Without addressing this question,
the Second Department held that “any error in declining to suppress the defendant's videotaped statements to law enforcement
officials was harmless because the evidence of defendant's guilt, without reference to those videotaped statements, was
overwhelming and there was no reasonable possibility that such an error contributed to the convictions.” Jd. (emphasis added).
As set forth below, the Court finds reasonable the Second Department's holding that any improper introduction of involuntary
statements was harmless. Accordingly, Ground Two also fails on the merits.

*10 Under AEDPA, state-court harmless error determinations qualify as adjudications on the merits. Brown v. Davenport, 596
U.S. 118, 142 (2022). When a state court has ruled on the merits of a state prisoner's claim, a federal court cannot grant relief
without first applying both the test the Supreme Court outlined in Brecht v. Abrahamson, 507 U.S. 619 (1993), and then the
AEDPA deference standard. Brown, 596 U.S. at 122.

Under Brecht, “habeas relief is not warranted unless, in light of the record as a whole, the constitutional violation had substantial
and injurious effect or influence in securing the defendant's conviction.” Diaz v. Miller, No. 22-1835, 2023 WL 4363245, at
*] (2d Cir. July 6, 2023) (summary order) (quoting Perkins v. Herbert, 596 F.3d 161, 175 (2d Cir. 2010)). If the last reasoned

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state-court decision held that an error was harmless, a federal court cannot grant habeas relief unless it concludes that the state
court's harmlessness analysis was “contrary to” or an “unreasonable application of’ Supreme Court precedent. Diaz, 2023 WL
4363245, at *2 (quoting Brown, 596 U.S. at 127). Therefore, it is petitioner's burden to show that “no fairminded jurist” applying
Supreme Court precedent “could reach the state court's conclusion” that admitting the videotaped statements was harmless. Jd.
(quoting Brown, 596 U.S. at 135).

Here, a fairminded jurist could certainly reach the Second Department's determination that admitting Dale's videotaped
statements was harmless. In fact, the record besides the videotaped statements made such a finding reasonable. For one, multiple
trial witnesses testified as to facts implicating Dale in Ethan's death. Both Ethan's mother and teacher testified that he had no
visible injuries in the day preceding his death. Trial Tr. 50:1-51:4, ECF No. 6-5. Likewise, Kenroy Skeete testified that on
February 25, 2015, he returned to the apartment to find only Dale and an unresponsive Ethan. Trial Tr. 314:17—316:9, ECF No.
6-7. Furthermore, even prior to departing for the precinct, Dale admitted to an EMT that she had hit Ethan with a belt earlier
that day. Trial Tr. 70:2-72:3, ECF No. 6-5. That belt was subsequently recovered from the apartment. See, e.g., Trial Tr. 72:2-3.
At trial, the doctor who performed Ethan's autopsy testified that he died due to blunt-impact injuries; that his body was covered
in bruises; that his injuries were consistent with having been struck by a belt; that his knee bore a “classical” marking of impact
by a belt buckle prong; and that the lack of signs of healing suggested the beating occurred shortly before his death. See Trial
Tr. 293:15—300:21, ECF No. 6-7. These observations were evinced by photographs taken after Ethan's death. See, e.g., Trial
Tr. 239:25-244:14, ECF No. 6-6.

In light of the overwhelming evidence of petitioner's guilt, the Court does not consider admission of petitioner's videotaped
statements to have had a substantial and injurious effect or influence in the jury verdict. See Clark v. Cunningham, No. 09-
cv-03578, 2014 WL 1399416, at *20 (E.D.N.Y. Apr. 10, 2014); see also Nova v. Bartlett, 211 F.3d 705, 709 (2d Cir. 2000).
Accordingly, the Appellate Division's finding of harmless error was reasonable and Ground Two must be denied.

Even were the Court to find otherwise, petitioner has failed to demonstrate that Judge Cyrulnik's Huntley ruling—the
last-reasoned state court decision on whether Dale's videotaped statements were voluntary—was either an unreasonable
determination of the facts nor an unreasonable application of clearly established federal law as determined by the Supreme
Court. The Court was to “review all of the surrounding circumstances” of Dale's interrogation to see whether Dale's statements
were voluntarily made and whether her “will ha[d] been overborne.” People v. Dale, 207 A.D.3d at 651 (collecting cases);
see also Dickerson v. United States, 530 U.S. 428, 434 (2000) (articulating the Supreme Court's voluntariness inquiry). Judge
Cyrulnik engaged in this analysis and drew an informed conclusion. For one, Judge Cyrulnik heard the testimony of Detective
Teahan and found it credible. Huntley Arg. Tr. 7:18—19, ECF No. 6-1. Justice Cyrulnik also reviewed the interrogation video
and found that, on February 25, 2015, Dale received her Miranda warnings, indicated she understood each question, and clearly
agreed to speak with officers. Huntley Arg. Tr. 7:19-20; Huntley Arg. Tr. 7:24—8:3.

*11 Justice Cyrulnik observed Dale to be “still upset but calm during the interview process.” Huntley Arg. Tr. 8:13—15, ECF
No. 6-1. She observed that the video depicted Dale being offered refreshments and bathroom breaks. Huntley Arg. Tr. 8:15—
18. Moreover, she observed that, even though Dale was “extremely upset at times,” she “did not appear to be overwhelmed to
the point of not understanding what was taking place during the interview,” as evinced by her consistent statements. Huntley
Arg. Tr. 8:20—24. In light of all of this, because the video did not at all indicate Dale “was coerced or force to speak to officers
at any point,” the court found that her “statements were voluntary” and denied her motion to suppress. Huntley Arg. Tr. 8:15—
16; 9:23-10:1.

Il. Ground Three: Right to Fair Trial
As a third ground for relief, Dale claims that her right to a fair trial was violated because the statements illegally obtained from
her during interrogation were admitted. Pet. 8. Presumably to further argue that she was coerced, Dale also claims that, during
the Huntley hearing, Detective Teahan made contradicting statements regarding administration of the arraignment waiver. Pet.

8. In support of this allegation, she references a transcript segment suggesting that Detective Teahan asked her to sign the waiver,
see Pet. 24; and another segment quoting language that she signed the waiver of her “own free will,” see Pet. 27. Applying

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liberal construction, the Court interprets Ground Three as a claim that petitioner's due process rights were violated due to the
introduction of her illegally obtained statements at her criminal trial.

A. Ground Three is Unexhausted and Procedurally Barred

Ground Three is essentially duplicative of Ground Two. Accordingly, Ground Three must be denied for failing to meet AEDPA's
basic procedural requirements for the same reasons as Ground Two. Ground Two argues that petitioner's videotaped statements
should have been suppressed due to alleged deception during her interrogation. Ground Three argues that petitioner's right to
a fair trial was violated because those statements were not suppressed.

To the extent that it disputes the voluntariness of petitioner's statements during interrogation or waiver of a speedy arraignment,
Ground Three is procedurally defaulted. Although these arguments could be conceived of as “exhausted” now that they are
no longer appealable to the Second Department, they are nonetheless defaulted. See Baez, 2024 WL 2022090, at *13 (citing
Thomas, 111 F. Supp. 2d at 276). Dale's references to “Attachment (6)” and “Attachment (7)” seem to challenge whether she
voluntarily waived her right to speedy arraignment by highlighting Detective Teahan's Huntley testimony that he encouraged
her to sign the waiver. See Pet. 24, 27. But this reference supports previous grounds raised by Dale, not new grounds, and thus
need not be analyzed separately.

Because petitioner fails to allege separate “good cause” for her default of Ground Three, and because she does not claim actual
innocence, Ground Three must be denied.

B. Ground Three Fails on the Merits

Given Ground Three is basically duplicative of Ground Two, it fails on the merits for similar, though not identical, reasons as
Ground Two. First, as discussed above, the evidentiary ruling in question easily passes AEDPA muster. Second, admission of
Dale's inculpatory statements did not deprive her of a fundamentally fair trial, given the other strong evidence against her.

Firstly, as explained above, Dale has not shown that Judge Cyrulnik's Huntley ruling was either an unreasonable determination
of the facts or an unreasonable application of clearly established federal law as determined by the Supreme Court. The Court
reviewed “all of the surrounding circumstances” of Dale's interrogation and decided that her will had not “been overborne” so
as to render her statements involuntary. Dale, 207 A.D.3d at 651; see also Dickerson, 530 U.S. at 434. The Court has reviewed
both Justice Cyrulnik's decision, as well as the video record, and finds it reasonable.

*12 Secondly, petitioner has not shown her due process rights were violated at trial. To obtain habeas relief on a due process
claim involving the introduction of evidence at trial, Dale must show that “an erroneous evidentiary ruling was so pervasive
as to have denied [her] a fundamentally fair trial, or so extremely unfair that its admission violates fundamental conceptions
of justice.” Williams v. Jacobson, No. 15-cv-05319, 2016 WL 4154700, at *17 (S.D.N.Y. Aug. 5, 2016) (quoting Alston v.
Racette, No. 13-cv-04392, 2014 WL 2453336, at *17 (S.D.N.Y. May 22, 2014)), report and recommendation adopted, 2016
WL 7176648, at *1 (Dec. 7, 2016). Additionally, “viewed objectively in light of the entire record before the jury,” the challenged
evidence must have been “sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would
have existed on the record without it.” Hamilton v. Lee, 94 F. Supp. 3d 460, 474-75 (E.D.N.Y. 2015). It must have been “crucial,
critical,” and “highly significant.” Jd.

Even were the Court to find suppression improper, which it does not, as previously discussed, the trial record was otherwise
replete with evidence suggesting that no evidentiary ruling was “so pervasive” as to have denied Dale to a fundamentally fair
trial. Dale's videotaped statements were presented to the jury alongside the testimony of multiple lay witnesses and an expert
medical witness, as well as physical and photographic evidence. See supra Section II.B. Viewed objectively in light of the entire

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record, this evidence overwhelmingly suggests that Dale's videotaped statements were not sufficiently material as to deprive
her of her due process rights. See Torres v. Keane, 159 F. App'x. 247, 249 (2d Cir. 2005) (“[G]iven the overwhelming evidence
presented at trial of petitioner's guilt—evidence that was independent of [challenged evidence], and which petitioner fails to
rebut here—any error in the admission of the challenged [evidence] did not ‘amount to a denial of due process,’ because the
[challenged evidence] was not ‘sufficiently material....”).

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied and the case is
dismissed. As Dale has failed to make a substantial showing that she was denied any constitutional right, no certificate of
appealability shall issue. See 28 U.S.C. § 2253(c).

SO ORDERED.

All Citations

Slip Copy, 2025 WL 486686

Footnotes

1 The Court hereinafter refers to the Petition for Writ of Habeas Corpus, ECF No. 1, as the “Petition”; respondent's
Opposition to Petition for a Writ of Habeas Corpus, ECF No. 6, as the “Opposition”; and the Reply to Affirmation in
Opposition to Petition for Writ of Habeas Corpus, ECF No. 8, as the “Reply.”

2 A Huntley hearing assesses the voluntariness of a defendant's post-arrest statements. See People v. Huntley, 15 N.Y.2d
72 (1965).
3 Where necessary, page numbers for relevant submissions refer to the page numbers assigned in ECF filing headers.

4 Although Petitioner's § 440 Motion purported to be a motion to set aside her sentence under § 440.20, see 440 Mot.
2, ECF No. 6-11, the Petition actually appears to seek vacatur of her conviction—the utility of a § 440.10 motion.
Accordingly, and in line with the Court's duty to construe pro se petitions liberally, this opinion interprets Petitioner's
motion as her under § 440.10.

5 Under the “prison mailbox” rule, a pro se prisoner's habeas petition is deemed filed at the moment she gives it to prison
officials to forward to the Court. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001).

6 Throughout this Opinion, the Court omits all internal quotation marks, footnotes, and citations, and adopts all alterations,
unless otherwise indicated.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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2015 WL 3637410
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.

James J. EAGAN and Eileen R. Eagan, Plaintiffs,
v.
Dr. Leslie Ann GLASSBRENNER and Gary Glassbrenner, Defendants.

No. 14—CV-507S.
|
Signed June 10, 2015.

Attorneys and Law Firms
Andrea Schillaci, Hurwitz & Fine, P.C., Buffalo, NY, for Plaintiffs.

Maureen E. Sweeney, Blumling & Gusky, LLP, Pittsburgh, PA, R. Anthony Rupp, III, Rupp, Baase, Pfalzgraf, Cunningham &
Coppola LLC, Thomas V. Hagerty, Hagerty & Brady, Buffalo, NY, for Defendants.

REPORT AND RECOMMENDATION AND DECISION AND ORDER
HUGH B. SCOTT, United States Magistrate Judge.

I, INTRODUCTION

*1 The Hon. William M. Skretny referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 33.) Pending before the
Court are two motions, one from each side: 1) A dispositive motion (Dkt. No. 20) by plaintiffs James J. Eagan and Eileen R.
Eagan (“the Eagans”’) for partial summary judgment (as to liability) on their claims for breach of contract, fraud, and attorney
fees; and 2) a non-dispositive motion (Dkt. No. 26) by defendants Dr. Leslie Ann Glassbrenner and Gary Glassbrenner (“the
Glassbrenners”’) for leave to amend their answer under Rule 15(a)(2) of the Federal Rules of Civil Procedure (“FRCP”) and to

amend the existing scheduling order accordingly. This document will serve as a Report and Recommendation to Judge Skretny

for the dispositive motion and a Decision and Order for the non-dispositive motion. l

With respect to the dispositive motion for summary judgment, the Eagans argue that the Glassbrenners lied when they denied
that any leases, rents, royalties, wells, or storage facilities affected the property that they were selling. The Eagans believe that
documentary evidence confirms the misrepresentations and warrants a finding of breach of contract and fraud as a matter of
law. The Glassbrenners question whether the Eagans have submitted documentary evidence in admissible form from people
with personal knowledge. On substance, the Glassbrenners argue that the real estate contract in question merged into the deed
at closing, thereby extinguishing the contract. The Glassbrenners argue further that the Eagans have not pled fraud properly
and that a search of the public record would have furnished them with all the information that they needed concerning any
encumbrances on the property in question. Finally, the Glassbrenners contend that the Eagans did not conduct due diligence
and that their claims for breach of contract and fraud are impermissibly redundant.

With respect to the non-dispositive motion to amend, the Glassbrenners argue that they have added a new law firm as local
counsel since they filed their original answer. New counsel seek to add only a counterclaim for attorney fees under a particular

section of the real estate contract in question. The Eagans have not filed any opposition to the motion.

The Court held oral argument for both motions on March 26, 2015. For the reasons below, the Court respectfully recommends
denying the dispositive motion for summary judgment. The Court grants the non-dispositive motion to amend.

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II. BACKGROUND

This case concerns allegations that the Glassbrenners misled the Eagans about leases and natural gas storage encumbering a
property that the Eagans purchased from them. On June 6, 2013, the Glassbrenners entered a contract to sell the Eagans a parcel
of real property (the “Property”) at 8659 Finch Road in Colden, New York. (Dkt. No. 20-5.) Based on the description in the
contract, the Property consists of about 64 acres of land with a one-family house and a 16—car garage. The parties agreed on a
sale price of $900,000. Under Section 3(D)(5) of the contract, the purchase included “[a]ll of Seller's rights to receive all future
rents and royalties due under any lease, agreement or tenancy.” (/d. at 3.)

*2 A few provisions of the contract appear to be particularly relevant to the Eagans' claims. Section 6 consists of a list of
disclosures that the Glassbrenners made to the Eagans. Under Section 6(H), titled “Gas and Oil Wells,” the Glassbrenners
checked “no” to the statement, “The Property has an uncapped natural gas and/or oil well.” (/d. at 4.) Under Section 9(B), the
Eagans declined to conduct a property inspection. Section 12(A) contains the following warning: “CAUTION: This Property
may have easements, rights-of-way and restrictions which may affect intended uses of or improvements to the Property.” (/d. at
6.) The contract's Property Condition Disclosure Statement contained a question, Question 4, that asked whether anyone other
than the Glassbrenners had “a lease, easement or any other right to use or occupy any part of your property other than those
stated in documents available in the public record.” (Dkt. No. 20—6 at 2 (emphasis added).) The Glassbrenners answered
“no.” In Question 14, the Glassbrenners answered “yes” to whether there had ever been fuel storage tanks above or below the
ground on the property and whether those tanks were currently in use. (/d. at 3.) Section ATC7 of the contract's Additional
Terms and Conditions gave the Eagans the right to a final inspection of the Property before closing and gave the Glassbrenners
the responsibility for final utility readings and a transfer of utility services as of the closing date. (Dkt. No. 20-5 at 12.) Section
ATC14(C) addressed attorney fees and stated that “[i]n connection with any litigation concerning this Contract, the prevailing
Party shall be entitled to recover reasonable attorney's fees and costs. The provisions of this Paragraph ATC14(C) shall survive
the Closing or cancellation of this Contract.” (/d. at 14.)

Prior to closing, the Eagans arranged for a title search for the Property. Chicago Title Insurance Co. completed a title search
report, or Commitment for Title Insurance, on July 16, 2013. (Dkt. No. 25-2.) The title search uncovered a total of 42 items
affecting the Property that would count as exceptions to any title insurance coverage. The 42 items included the following:

Item Description Grantee Grant Liber / Page
No. Date
14 Oil and Gas Lease Iroquois Gas Corporation 11/16/1954 5662/18
17 Oil and Gas Lease Troquois Gas Corporation 11/18/1954 5659 / 109
25 Oil and Gas Lease Troquois Gas Corporation 2/26/1972 7918/183
29 Oil and Gas Lease Charles E. Fralick 11/22/1949 5145 /421
36 Oil and Gas Lease Charles E. Fralich 2 11/22/1949 5145/5213
Opinion
(Id. at 9-11.)

Meanwhile, and also on July 16, 2013, the Glassbrenners furnished a document titled, “Oil and Gas Affidavit.” (Dkt. No. 20—
7 at 2.) The affidavit addressed four other oil and gas leases that had been signed over the years concerning the Property; these
leases are not the ones in the table above, but they also appeared in the title search report. In Paragraph 4 of that affidavit, the
Glassbrenners wrote, “That no rents or royalties have been received under the terms of said leases as said leases are expired

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by their own terms. To the best of our knowledge, no wells have been drilled on the premises nor do any storage facilities
exist under the premises.” (/d. (emphasis added).)

*3 On July 19, 2013, the parties proceeded to close on the sale of the Property for the agreed price of $900,000. (Dkt. No.
25-3 at 2.)

The event that prompted the Eagans to file suit occurred a short time after they closed on the Property. On or around November
15, 2013, National Fuel Gas Supply Corporation (“National Fuel”) sent the Eagans a letter notifying them that it updated its
records to reflect the change of ownership of the Property. (Dkt. No. 20-13 at 2.) In the letter, National Fuel disclosed to the
Eagans that it “has a oil, gas and storage leases [sic] currently affecting your parcels. National Fuel Gas Supply Corporation is
conducting natural gas storage operations in a natural rock formation beneath this land and the many surrounding acres in the
area.” (/d.) The letter lists five active leases affecting the property for which National Fuel had been paying the owners. None
of the dates and Liber/Page numbers for these leases matched the dates and Liber/Page numbers for any of the four leases that
the Glassbrenners had disclosed in their Oil and Gas Affidavit. However, with the exception of one discrepancy in one page
number (see note 3 supra ), the five leases in National Fuel's letter exactly matched the five leases from the title search report
that the Court listed in the table above. As part of the letter, National Fuel enclosed a check to the Eagans for its latest payment
on the leases. The November 15, 2013 letter appears to have prompted the Eagans to retain counsel and to inquire further about
National Fuel's leases. On December 5, 2013, National Fuel sent the Eagans' counsel a second letter. (Dkt. No. 20-14.) In the
second letter, National Fuel confirmed the existence of the leases and of certain natural gas storage areas affecting the property.
National Fuel advised further “that annual land rental payments were issued to and cashed by Mr. and Mrs. Glassbrenner for
the leases listed.” (/d. at 2 (emphasis added).)

Several months after National Fuel's letters, the Eagans filed a summons and complaint against the Glassbrenners on May 30,
2014, in New York State Supreme Court, Erie County. The complaint contained three causes of action. In the first cause of
action, the Eagans accused the Glassbrenners of breaching the sale contract by leading them to believe that they would acquire
the Property free of any leases, encumbrances, or other restrictions. In the second cause of action, the Eagans accused the
Glassbrenners of fraud by providing property disclosures and a sworn affidavit with false information. In the third cause of
action, the Eagans invoked Section ATC14(C) of the contract's Additional Terms and Conditions and claimed entitlement to
reasonable attorney fees and costs.

The Glassbrenners subsequently took steps to set up their pending motion for adjudication in federal court. The Glassbrenners
filed a notice of removal on June 26, 2014 (Dkt. No. 2) and then filed their answer on July 18, 2014 (Dkt. No. 7.) The original
answer, drafted and signed by Thomas V. Hagerty (“Hagerty”) of the firm Hagerty & Brady, contained seven affirmative defenses
and no counterclaims. In August 2014, Magistrate Judge Jeremiah McCarthy granted motions to allow attorneys Maureen E.
Sweeney (“Sweeney”) and Sharon M. Menchyk (“Menchyk”) to appear pro hac vice from the firm of Blumling & Gusky, LLP in
Pittsburgh, Pennsylvania. (Dkt.Nos.12, 13.) Magistrate Judge McCarthy also issued a scheduling order (Dkt. No. 15), following
a scheduling conference that Sweeney attended by telephone (Dkt. No. 14). On November 26, 2014, the Glassbrenners filed
a motion to replace Menchyk with R. Anthony Rupp, HI (“Rupp”) from the firm of Rupp, Baase, Pfalzgraf, Cunningham &
Coppola LLC. (Dkt. No. 22.) Magistrate Judge Leslie Foschio granted that motion. (Dkt. No. 24.) As far as this Court can
tell, Hagerty and Sweeney remain counsel of record for the Glassbrenners; the substitution motion only removed Menchyk
and added Rupp.

*4 The Eagans filed their pending motion on October 31, 2014. According to the Eagans, this case is simple. To them, the leases
that National Fuel disclosed in its letters required answering “yes” to Question 4 in the Property Condition Disclosure Statement.
When the Glassbrenners answered “no,” they lied. The National Fuel leases also required disclosure in the Oil and Gas Affidavit;
when the Glassbrenners omitted those leases from that affidavit, they again lied. The Eagans view the Glassbrenners' deception
as particularly galling given that the Glassbrenners admit in Paragraph 5 of the Oil and Gas Affidavit that “this affidavit is made
with the knowledge that any prudent purchaser, lender and/or title insurer of the above described lands will rely on the veracity
of all statements made herein.” (Dkt. No. 20-7 at 2.) According to the Eagans, since documentary evidence establishes the

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existence of leases and rent payments that the Glassbrenners never disclosed, no reasonable jury would decline to assess liability
for breach of contract and fraud. The Glassbrenners respond to the Eagans' line of reasoning by pointing to the actual language
of the documents in question. According to the Glassbrenners, Question 4 of the Property Condition Disclosure Statement
aimed at leases or other encumbrances that would have been within their exclusive knowledge. The question explicitly exempts
“documents available in the public record” from additional disclosure by the Glassbrenners. As for the Oil and Gas Affidavit,
the Glassbrenners argue that it refers only to the four leases disclosed in Paragraph 2 of that document. The Glassbrenners assert
that they did not receive rents or royalties for the leases in Paragraph 2. As for the rent payments that they did receive, the
Glassbrenners contend that they thought that they were receiving those payments in connection to a certain pipeline and not
because of storage operations. The Glassbrenners conclude that the Eagans' contentions may well be completely meritless but
that they certainly are not amenable to summary judgment.

While the motion for partial summary judgment was pending, Rupp, as new counsel for the Glassbrenners, filed the pending
motion for leave to amend on December 30, 2014. In support of the motion, Rupp contends that “[t]his law firm took over the
matter from outgoing counsel on November 26, 2014, during the pendency of the plaintiffs' motion, and quickly filed opposition
to the plaintiffs' motion on December 1, 2014. Now, as incoming counsel, approximately one month after taking over and only
two months after the deadline set forth in the Case Management Order, after having a full opportunity to review and analyze the
issues present in the case and before the Court, the defendants respectfully request that this Court amend the Case Management

Order to allow the defendants to amend their answer to better reflect the nature of the action and the bargain of the parties
in 2013.” (Dkt.No. 26—1 at 3.) Specifically, Rupp wishes to add a counterclaim to the answer that Hagerty had signed—a
counterclaim that invokes Section ATC14(C) and its provision for attorney fees just as the Eagans did in their complaint. Apart
from the proposed counterclaim, Rupp's proposed amended answer (Dkt. No. 26-6) is identical to the original answer in all
substantive respects. The Eagans have not filed any opposition to the proposed amended answer.

Ii. DISCUSSION—MOTION FOR SUMMARY JUDGMENT

*5 “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FRCP 56(a). “As to materiality, the substantive law will identify which
facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.... More important for present purposes, summary judgment will not lie if the dispute
about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). “The party
seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a
genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in
favor of, the non-movant.... Summary judgment is improper if there is any evidence in the record that could reasonably support a
jury's verdict for the non-moving party.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002) (citations omitted).

The substantive elements of the Eagans' two main claims are fairly straightforward. “[U]nder New York law, parallel fraud
and contract claims may be brought if the plaintiff (1) demonstrates a legal duty separate from the duty to perform under the
contract; (2) points to a fraudulent misrepresentation that is collateral or extraneous to the contract; or (3) seeks special damages
that are unrecoverable as contract damages. New York distinguishes between a promissory statement of what will be done in
the future that gives rise only to a breach of contract cause of action and a misrepresentation of a present fact that gives rise to
a separate cause of action for fraudulent inducement.” Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 183—
84 (2d Cir.2007) (citation omitted). “To prove fraud under New York law, a plaintiff must show that (1) the defendant made a
material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon
the representation, and (4) the plaintiff suffered damage as a result of such reliance.” Bridgestone/Firestone, Inc. v. Recovery
Credit Servs., Inc., 98 F.3d 13, 19 (2d Cir.1996) (internal quotation marks and citation omitted). “Under New York law, there
are four elements to a breach of contract claim: (1) the existence of an agreement, (2) adequate performance of the contract by
the plaintiff, (3) breach of contract by the defendant, and (4) damages. To plead these elements a plaintiff must identify what

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provisions of the contract were breached as a result of the acts at issue.” E//ington Credit Fund, Ltd. v. Select Portfolio Servicing,
Inc., 837 F.Supp.2d 162, 188-89 (S.D.N.Y.2011) (internal quotation marks and citations omitted).

*6 Ofall the issues that the parties have briefed, two draw the Court's immediate attention. One issue concerns the language
of the relevant documents and the Eagans' due diligence. As noted above, the Eagans arranged for a title search and title search
report prior to closing. The report, dated three days before the closing date, explicitly disclosed the five leases that National
Fuel mentioned later in its two letters. The title search report contained enough information to allow the Eagans to search the
public record for further information about those leases. Cf E. End Cement & Stone, Inc. v. Carnevale, 73 A.D.3d 974, 903
N.Y.S.2d 420, 422 (App.Div.2010) (“Here, given the proof that the plaintiff's attorney had actual knowledge of the title defect,
the plaintiff's reliance on the alleged misrepresentations was not reasonable or justified.”) (citations omitted); New Horizons
Amusement Enters., Inc. v. Zullo, 301 A.D.2d 825, 754 N.Y.S.2d 98, 99 (App.Div.2003) (“The record makes plain that plaintiff
knew or should have known of the existence of the mortgage on the leased property by reason of the report of the title search
company, which was prepared and delivered prior to execution of the lease....”) That those leases appeared in the public record
means that the Glassbrenners said nothing untrue when, for Question 4 of the Property Condition Disclosure Statement, they
denied that anyone else had “a lease, easement or any other right to use or occupy any part of your property other than those
stated in documents available in the public record.” (Dkt. No. 206 at 2 (emphasis added).) A close reading of Question 5
of the Property Condition Disclosure Statement reveals no false answers there, either. The full language of Question 5 reads,
“Does anybody else claim to own any part of your property?” (Ud. at 3.) If the answer had been yes then the question directs the
writer to “explain below” by answering Questions 6—9. Questions 6—9 ask supplemental questions about people denying access
to a property, people making formal legal claims challenging title, features of the property shared with adjoining landowners or
a homeowners association, utility surcharges for line extensions, and certificates of occupancy. From that perspective, National
Fuel's leases do not constitute any attempt to “own” the Property. The Glassbrenners' answer to Question 5 thus is not false.
In any event, the disclosure of the leases and other information in the title search report would have alerted the Eagans to any
problems with ownership claims. The Eagans' contentions about rents or royalties follows the same pattern. In Paragraph 4 of
the Oil and Gas Affidavit, the Glassbrenners stated that “no rents or royalties have been received under the terms of said leases
as said leases are expired by their own terms.” (Dkt. No. 20—7 at 2 (emphasis added).) The phrase “said leases” refers to the
four leases listed in Paragraph 2. Those four leases are not the leases mentioned in National Fuel's letters. Therefore, as long
as the Glassbrenners did not receive rents or royalties from the four leases in Paragraph 2, their denial is not false. Summary
judgment for breach or fraud thus cannot rest on events described above.

*7 The second issue that has drawn the Court's immediate attention concerns incomplete information regarding wells and
storage facilities. In Question 14 of the Property Condition Disclosure Statement, the Glassbrenners disclosed the existence of
fuel storage tanks currently in use. The record contains no information about the size or nature of the storage tanks. The Eagans'
decision to waive two pre-closing inspections of the Property raises significant questions of fact as to what they could have
discovered about the storage tanks or other facilities upon inspection. Cf Fantigrossi v. Brannon Homes, Inc., 77 A.D.3d 1413,
909 N.Y.S.2d 240, 241 (App.Div .2010) (“[P]laintiffs are deemed to have waived the right to assert that defendant breached the
parties' contract based on defendant's deviation from that contractual specification inasmuch as such a deviation would have
been obvious during plaintiffs' pre-closing inspection of the home.”); DeFreitas v. Holley, 93 A.D.2d 852, 461 N.Y.S.2d 351,
352 (App.Div.1983) (“It is well established that a party for whose benefit a provision is inserted in a contract may waive that
provision and accept performance of the contract as is.”’) (citations omitted). With respect to storage facilities, in Paragraph
4 of the Oil and Gas Affidavit, the Glassbrenners explicitly denied the drilling of any wells or the presence of any storage
facilities under the Property. National Fuel explicitly confirmed natural gas storage operations under the Property in its two
letters to the Eagans. The Oil and Gas Affidavit and the letters thus appear to contradict each other. Too many questions surround
this contradiction, however, for the Court to intervene this early in the case. The record does not indicate whether National
Fuel's storage “operations” in a natural rock formation occur in a way that would constitute a storage “facility.” The record
does not indicate whether the Eagans would have been able to detect National Fuel's storage operations from either of the pre-
closing inspections that they waived. The record further does not indicate whether pulling the actual text of the five leases from
the public record might have revealed the storage operations. Finally, the record in its current form gives no clues about the
Glassbrenners' intent. The Glassbrenners qualified their denial of wells and storage facilities with the phrase “to the best of

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eporteéd in

our knowledge.” Whether the Glassbrenners actually had knowledge of any storage operations must await discovery. Cf Alloy
Briquetting Corp. v. Niagara Vest, Inc., 756 F.Supp. 713, 724 (W.D.N.Y.1991) (Skretny, J.) (“[W]hether Niagara Vest actually
had knowledge of the contamination at the time the alleged misrepresentation was made is a question of fact to be explored
through discovery. Summary judgment at this time would be premature .”).

This case may yet develop a record that answers the above questions definitively for a summary judgment motion. That
development has not happened yet. For now, all the Court has is a record of hard feelings. Arguably, the Glassbrenners would
have been more helpful if they had at least disclosed that they had been receiving checks from National Fuel, even if they were
not sure why. The Eagans have not accused the Glassbrenners of being unhelpful, however; they have accused them of breach
of contract and fraud, and the record in its current state simply does not support such serious accusations. Accordingly, the
Court recommends denying the summary judgment motion but without prejudice to renewal after the close of discovery.

IV. DISCUSSION—MOTION TO AMEND

*8 The Court now proceeds to the Glassbrenners' non-dispositive motion for leave to amend. The standards governing motions
to amend pleadings are straightforward. “[A] party may amend its pleading only with the opposing party's written consent or
the court's leave. The court should freely give leave when justice so requires.” FRCP 15(a)(2). Leave to amend “should not be
denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility.” Milanese v. Rust-
Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (citation omitted).

Here, the Court sees no barriers to amendment. The argument about new counsel “taking over the matter from outgoing
counsel” is slightly misleading, though not purposefully. The attorneys who drafted the original answer and attended the original
scheduling conference remain counsel of record. Nonetheless, the case still is new enough that discovery has barely begun, if it
has begun at all. The proposed counterclaim would add no new parties or theories of liability. New counsel wants only to invoke
a contractual provision that already exists and that the Eagans already claimed for themselves in their complaint. Allowing
the amendment thus will put the parties on equal footing for the issue of attorney fees. Prejudice seems highly unlikely. Also,
the proposed counterclaim does not appear to raise any possibility of bad faith, and the Eagans have not suggested otherwise.
Cf, e.g., Hillair Capital Invs., L.P. v. Integrated Freight Corp., 963 F.Supp.2d 336, 339 (S.D.N.Y.2013) (“Here, at this early
stage of the case, there is no concern about delay, bad faith, or prejudice. The critical issue is whether the [amendment] would
be futile.”); Peters v. City of Buffalo, 848 F.Supp.2d 378, 382 (W.D.N.Y.2012) (Skretny, C.J.) (“Defendants have provided no
grounds on which they would be prejudiced. Further, this Court finds that at this early stage of the litigation there is no undue
prejudice to defendants that would preclude amendment of the complaint.”). These circumstances weigh in favor of allowing
the amendment.

The Court thus grants the motion for leave to amend. The Glassbrenners will have 30 days from the date of this Decision and
Order to file and to serve the amended answer. As for scheduling, since the parties never have appeared before this Court for
any scheduling proceedings, a new scheduling conference probably is appropriate. The Court will issue further directions about
scheduling once Judge Skretny makes a final decision on the motion for partial summary judgment.

V. CONCLUSION
For all of the foregoing reasons, the Court:

1) Respectfully recommends denying the Eagans' motion for partial summary judgment (Dkt. No. 20) without prejudice to
renew after the close of discovery; and

2) Grants the Glassbrenners' non-dispositive motion for leave to amend (Dkt. No. 26). The Glassbrenners will have 30 days
from the date of this Decision and Order to file and to serve the amended answer.

VI. OBJECTIONS

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Eagan VGASE.9:2: ACV OL006-G TS MIK 3 4 Bepyment 52 Filed 12/11/25 Page 32 of 48

eporteéd in

*9 A copy of this combined Report and Recommendation and Decision and Order will be sent to counsel for the parties by
electronic filing on the date below. Any objections must be electronically filed with the Clerk of the Court within 14 days. See
28 U.S.C. § 636(b)(1); FRCP 72. “As arule, a party's failure to object to any purported error or omission in a magistrate judge's
report waives further judicial review of the point.” Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003) (citations omitted).

SO ORDERED.

All Citations

Not Reported in F.Supp.3d, 2015 WL 3637410

Footnotes

1 Motions for leave to amend pleadings are generally considered non-dispositive. See, e.g., Rubin v. Valicenti Advisory
Servs., Inc., 471 F.Supp.2d 329, 333 (W.D.N.Y.2007) (Larimer, J.).
2 Different spelling from Item 29.

3 Likely should be 421. See infra.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Jones vGase Nat hesya 06-64, pe hs 4) Document 52 ~Filed 12/11/25 Page 33 of 48

2024 WL 3206260
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Daniel JONES, Petitioner,
v.
Danielle TOPE, Psy. D., Respondent.

9:21-CV-1007 (AMN/ML)
|
Signed February 16, 2024

Attorneys and Law Firms
DANIEL JONES, Pro se Petitioner, CNY Psychiatric Center, Post Office Box 300, Marcy, New York 13403.

PAUL B. LYONS, ESQ., Assistant Attorney General, LETITIA A. JAMES, New York State Attorney General, Counsel for
Respondent, 28 Liberty Street, New York, New York 10005.

REPORT and RECOMMENDATION

MIROSLAV LOVRIC, United States Magistrate Judge

*1 Currently before the Court in this habeas corpus proceeding filed by the petitioner, Daniel Jones (“Petitioner”), pursuant
to 28 U.S.C. § 2254, is a referral to the undersigned for a report and recommendation from United States District Court Judge
Anne M. Nardacci regarding the Petition. (Dkt. No. 1.) Petitioner is currently involuntarily civilly confined at the Central New
York Psychiatric Center (““CNYPC’) in the Sex Offender Treatment Program (“SOTP”) under the custody of the New York
State Office of Mental Health (“OMH”) pursuant to Article 10 of the New York State Mental Hygiene Law. On September 13,
2021, Petitioner filed a pro se Petition seeking a writ of habeas corpus challenging his confinement at CNYPC. (Dkt. No. 1.)
Respondent opposed that motion and Petitioner filed a traverse. (Dkt. Nos. 16, 17, 18, 20, 29.) For the following reasons, the
undersigned recommends that the Petition be denied.

I. BACKGROUND

In 1985, Petitioner pleaded guilty to one count of sexual abuse in the first degree with respect to multiple incidents of sexual
acts by Petitioner against his two stepdaughters and one stepson that occurred between 1979 and 1982. (Dkt. No. 20, Attach.
2 at 93; Dkt. No. 20, Attach. 2 at 102-104.) He was sentenced to a term of five years probation. (Dkt. No. 20, Attach. 2 at 93;
Dkt. No. 20, Attach. 2 at 102-104.)

Underlying the relevant civil commitment in this habeas petition, a jury found Petitioner guilty of attempted rape in the first
degree, two counts of sexual abuse in the first degree, and other related offenses. (Dkt. No. 20, Attach. 2 at 92.) On May 13,
1992, Petitioner was sentenced on those convictions to an aggregate indeterminate term of imprisonment from ten to twenty
years. (Id.)

Before the expiration of Petitioner's prison sentence, the State petitioned under N.Y. Mental Hyg. Law § 10 for Petitioner to
remain civilly confined in the State's custody, and Petitioner was assigned counsel. (Dkt. No. 20, Attach. 2 at 89-100, 127-28.)

On June 27, 2012, the Erie County Supreme Court found probable cause to believe that Petitioner would require civil
management pursuant to N.Y. Mental Hyg. Law § 10.06. (Dkt. No. 20, Attach. 2 at 135-36; Dkt. No. 20, Attach. 2 at 395-448.)

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On August 8, 2016, Petitioner waived a jury trial and consented to a finding of mental abnormality as defined by Article 10 of
the N.Y. Mental Hyg. Law. (Dkt. No. 20, Attach. 2 at 230-231; Dkt. No. 20, Attach. 2 at 524-529.) Petitioner later moved to
vacate his waiver and consent, but the court denied his motion. (Dkt. No. 20, Attach. 2 at 250-203, 580-599.)

On July 13, 2017, Petitioner filed a state habeas corpus petition. (Dkt. No. 17, Attach. 1 at 1-7.) On September 14, 2017, the
Erie County Supreme Court denied Petitioner's state habeas corpus petition. (Dkt. No. 17, Attach. 1 at 19-20.) On September
26, 2017, Petitioner appealed this order (“Appeal 3”). (Dkt. No. 17, Attach. 1 at 51.)

Following a dispositional hearing, on November 21, 2017, the Erie County Supreme Court concluded that Petitioner is a
dangerous sex offender requiring confinement and ordered him committed to a secure treatment facility to receive further sex
offender treatment. (Dkt. No. 20, Attach. 2 at 601-683; Dkt. No. 20, Attach. 2 at 685-688.) On December 6, 2017, Petitioner
appealed this order (“Appeal 1”). (Dkt. No. 17, Attach. 1 at 36.)

*2 On November 29, 2017, Petitioner filed a motion pursuant to N.Y. C.P.L.R. §§ 4404(b), 5015 seeking reconsideration and to
vacate the order of commitment. (Dkt. No. 20, Attach. 2 at 794-844.) On April 17, 2018, the Erie County Supreme Court denied
Petitioner's motion. (Dkt. No. 20, Attach. 2 at 792.) On April 30, 2018, Petitioner appealed the denial of his reconsideration
motion (“Appeal 2”). (Dkt. No. 20, Attach. 2 at 788.)

On October 25, 2018, Petitioner filed a motion to consolidate his appeals. (Dkt. No. 17, Attach. 1 at 21-56.) On November
13, 2018, the New York Appellate Division Fourth Department, granted Petitioner's motion to consolidate to the extent that it
sought to consolidate Appeal 1 and Appeal 2, and denied Petitioner's motion to the extent that it sought to consolidate Appeal
3 with Appeals | and 2. (Dkt. No. 17, Attach. 1 at 57-60.)

On November 19, 2018, Petitioner filed a stipulation to withdraw Appeal 3. (Dkt. No. 17, Attach. 1 at 61-62.) On November
30, 2018, the New York Appellate Division Fourth Department dismissed Appeal 3. (Dkt. No. 17, Attach. 1 at 63.)

Through counsel, Petitioner asserted the following six arguments related to Appeals | and 2: (1) the State failed to show probable
cause to continue to detain Petitioner and his due process rights were violated by the delay in the probable cause hearing; (2)
Petitioner's due process rights were violated by the delay in holding the mental abnormality hearing; (3) Petitioner's admission
to a mental abnormality should be vacated; (4) the trial court should have excluded all testimony concerning the unsubstantiated
hearsay allegations of Petitioner's stepchildren at the disposition hearing; (5) the Appellate Court should exercise its independent
power of review and find that the State did not meet its burden of proving by clear and convincing evidence that Petitioner was
a dangerous sex offender requiring confinement; and (6) the trial court should have granted Petitioner's pro se N.Y. C.P.L.R.
§ 4404 motion. (Dkt. No. 20, Attach. 2 at 861-926.)

On February 7, 2020, the Appellate Division unanimously affirmed the commitment order, and on June 23, 2020, the New York
Court of Appeals denied leave to appeal. State v. Daniel J., 180 A.D.3d 1347 (N.Y. App. Div. 4th Dep't 2020), lv. denied, 35
N.Y.3d 908 (2020); (Dkt. No. 20, Attach. 2 at 1008-10, 1067.)

II. GROUNDS RAISED

A. Petition
On September 13, 2021, Petitioner commenced this proceeding by the filing of a verified Petition for writ of habeas corpus.
(Dkt. No. 1.) The Petition asserts the following ten grounds for habeas relief: (1) Petitioner's due process rights were violated
by the untimely probable cause hearing (“Ground 1”); (2) Petitioner's due process rights were violated by the court's finding
of probable cause based on legally insufficient evidence (“Ground 2”); (3) Petitioner's due process rights were violated by the
untimely mental abnormality hearing (“Ground 3”); (4) Petitioner's due process rights were violated because his admission of
mental abnormality was not made knowingly, voluntarily, and intelligently (“Ground 4”); (5) Petitioner's due process rights

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were violated because the court failed to conduct a proper allocution during his trial waiver (“Ground 5”’); (6) Petitioner's due
process right to present evidence was violated by the court's refusal to grant an adjournment (“Ground 6”); (7) Petitioner was
deprived of effective assistance of counsel (“Ground 7”); (8) Petitioner's due process rights were violated because the court
considered unsubstantiated hearsay allegations at the dispositional hearing (“Ground 8”); (9) Petitioner's due process rights were
violated because the State did not meet its burden of proving by clear and convincing evidence that Petitioner was a dangerous
sex offender requiring confinement (“Ground 9”); and (10) Petitioner was deprived of due process because his procedural rights
pursuant to N.Y. Mental Hyg. Law § 10.01, et seg. were violated (“Ground 10”). (See generally Dkt. No. 1.)

B. Respondent's Answer and Memorandum of Law

*3 Generally, Respondent makes the following six arguments in support of her answer: (1) Petitioner's claim regarding the
delay in conducting the probable cause hearing is meritless; (2) Petitioner's challenge to the court's probable cause finding
is unexhausted, procedurally barred, and meritless; (3) Petitioner's speedy trial claim is unexhausted, procedurally barred,
and meritless; (4) there is no merit to Petitioner's unexhausted claims challenging his mental abnormality trial waiver, the
effectiveness of his counsel, and the denial of his adjournment request; (5) Petitioner's hearsay claim is meritless; and (6)
Petitioner's legal sufficiency claim as to the court's dispositional finding is unexhausted and meritless. (See generally Dkt. No.
18.)

More specifically, with respect to her first argument (addressing Grounds | and 10), Respondent asserts that the delay in holding
the probable cause hearing was attributable to Petitioner, who requested that the proceeding be removed to Erie County. (Dkt.
No. 18 at 27-30.) Respondent argues that the base of Petitioner's claim is not a due process claim, but a violation of N.Y. Mental
Hyg. Law § 10.06(h), and federal habeas corpus relief does not lie for errors of state law. (/d. at 28-29.) Moreover, Respondent
argues that—even if the claim were cognizable—the Supreme Court has never addressed whether due process could be violated
by a delay in holding a civil commitment probable cause hearing and thus, it cannot be said that the state court unreasonably
applied clearly established federal law within the meaning of the AEDPA. (/d. at 29.) Further, Respondent argues that Petitioner
has not established a violation of state law so egregious as to amount to constitutional error because N.Y. Mental Hyg. Law
§ 10.06(h) states that failure to commence the probable cause hearing within the time periods specified shall not result in the
dismissal of the petition and shall not affect the validity of the hearing or the probable cause determination. (/d. at 29-30.)
Finally, Respondent argues that Petitioner cannot establish that he was prejudiced by the delay because the court ultimately
found probable cause. (/d. at 30.)

With respect to her second argument (addressing Ground 2), Respondent argues that Petitioner's challenge to the court's probable
cause finding was raised to the Appellate Division solely on state law terms and, in any event, is barred on adequate and
independent state law grounds because the Appellate Division denied the claim as non-appealable. (Dkt. No. 18 at 30-33.)
Moreover, Respondent argues that Petitioner's challenge to the probable cause finding is procedurally defaulted because
Petitioner has already had the one direct appeal and one leave application to which he is entitled. (/d.) Further, Respondent
argues that Petitioner cannot overcome the bar to federal habeas review of the procedurally defaulted claim because he cannot
establish cause nor can he establish prejudice. (/d. at 31-32.) Moreover, Respondent argues that, even if the claim was properly
exhausted, the New York State procedural rule that no appeal lies from an order finding probable cause, is a firmly established
and regularly followed state practice that may be deemed adequate to prevent subsequent review by this Court. (/d. at 32.)
Finally, Respondent argues that the claim is meritless because the Constitution does not guarantee a right to a probable cause
hearing in a civil commitment proceeding and any error in the probable cause hearing was cured by Petitioner's subsequent
decision to waive the trial. (/d. at 32-33.)

With respect to her third argument (addressing Grounds 3 and 10), Respondent argues that Petitioner failed to raise his speedy
trial claim in his detailed leave application to the Court of Appeals and it is thus, the claim is unexhausted and defaulted under
state law. (Dkt. No. 18 at 33-34.) Further, Respondent argues that the Appellate Division found that Petitioner failed to preserve
for its review the speedy trial claim and failure to preserve an issue for appeal is an adequate and independent state ground
barring habeas review. (/d. at 34.) Finally, Respondent argues that the speedy trial claim is meritless because (1) a violation
of state statute—N.Y. Mental Hyg. § 10.07(a)—is not automatically a federal constitutional violation unless the error was

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sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment; (2) the Supreme Court has never
opined that a delay in a civil commitment proceeding can violate either the Sixth Amendment or due process and thus, the state
court could not have unreasonably applied such law; (3) Petitioner's knowing, intelligent, and voluntary waiver of his right
to a jury trial renders academic his challenge to the trial delay; (4) the delay attributable to the prosecution in this case was
not so excessive as to violate due process because the vast majority of the delay was at Petitioner's request (over the State's
objection) so that he could collaterally attack his 1992 conviction and to accommodate his expert; and (5) given that Petitioner's
dangerousness had already been determined by the court at the probable cause hearing, and that Petitioner waived a trial where
he could have challenged that finding of dangerousness, there is no basis to find that due process was violated by the delay in
holding a trial. (Dkt. No. 18 at 35-37.)

*4 With respect to her fourth argument (addressing Grounds 4, 5, 6, and 7), Respondent asserts that Petitioner's claims
challenging his mental abnormality trial waiver are unexhausted and meritless. (Dkt. No. 18 at 37-61.) Respondent asserts
that Petitioner's claim that his trial waiver was coerced and involuntary is unexhausted because his arguments to the Appellate
Division relied solely on state law and did not “fairly present” a federal constitutional claim. Ud. at 37-38.) Moreover,
Respondent argues that the claims are meritless because (1) there is no clearly established Supreme Court law providing the
standard for reviewing claims as to the voluntariness of the waiver of a civil commitment trial so it cannot be said that the state
court unreasonably applied clearly established federal law within the meaning of the AEDPA; (2) the record establishes that
Petitioner's waiver was both knowing and intelligent; (3) the record establishes that Petitioner's waiver was voluntary; (4) there
is no merit to Petitioner's adjournment claim given that (a) there is no clearly established Supreme Court law regarding the
standard for reviewing the denial of an adjournment request in a civil commitment proceeding and thus, the Appellate Division
could not have unreasonably applied such law, and (b) the trial court's denial of the adjournment was neither unreasonable or
arbitrary and Petitioner cannot show prejudice; (5) Petitioner's waiver-allocution claim is meritless given that (a) Petitioner
has not established that the court's purportedly improper statement affected his decision to waive trial, (b) Petitioner stated on
the record that no one was forcing him to waive his right to a jury trial, and (c) due process does not require any particular
script be followed by the court, Petitioner's own statements implied his awareness that the State carried the burden at trial,
and even if he was unaware of the State's burden, it is not probable that such knowledge affected his decision to waive trial;
(6) Petitioner's ineffective assistance of counsel claim is meritless given that (a) there is no clearly established Supreme Court
law governing ineffective assistance of counsel claims in civil commitment proceedings, and (b) even if there was clearly
established Supreme Court precedence, the Appellate Division did not unreasonably apply it; (7) Petitioner's failure to inquire
claim is without merit given that (a) there is no clearly established Supreme Court law holding that a trial court has a duty to
inquire into a claim of dissatisfaction with assigned counsel made by an indigent respondent in a civil commitment proceeding,
(b) Petitioner's complaints about his attorney did not merit further inquiry from the trial court, (c) the trial court did, in fact,
conduct an adequate inquiry into Petitioner's complaints about his attorney, and (d) although the trial court reserved decision
on reassignment during the hearing of August 8, 2016, it subsequently granted a motion for substitution of counsel, who then
filed a motion to withdraw Petitioner's trial waiver, which the court denied and “affirmatively” ruled that counsel had not been
ineffective. (Dkt. No. 18 at 39-61.)

With respect to her fifth argument (addressing Ground 8), Respondent asserts that Petitioner's claim that his due process rights
were violated by the admission of hearsay at the dispositional hearing, is meritless. (Dkt. No. 18 at 61-69.) More specifically,
Respondent argues that there is no clearly established Supreme Court law on the standard for reviewing the admission of
hearsay in civil commitment proceedings, and even assuming that such law exists, the Appellate Division's decision did not
unreasonably apply the law. (/d.) Respondent asserts that any error in admitting hearsay evidence in this case was harmless
because the case against Petitioner relied primarily on admissible evidence including (1) expert testimony about crimes that
Petitioner was convicted of or admitted to, and (2) Petitioner's refusal to participate in sex offender treatment while in prison.
Cd.) Further, Respondent asserts that Petitioner failed to establish that any error in admitting the hearsay was so egregious or
fundamentally unfair as to violate due process. (/d.)

With respect to her sixth argument (addressing Ground 9), Respondent asserts that Petitioner's claim that the State failed to
establish by clear and convincing evidence that Petitioner was a dangerous sex offender requiring confinement, is unexhausted

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and meritless. (Dkt. No. 18 at 69-74.) More specifically, Respondent argues that (1) Petitioner failed to raise this claim in federal
terms in the Appellate Division, and (2) Petitioner failed to mention the claim (in state or federal terms) in his leave application
to the Court of Appeals and has failed to allege cause for his failure and/or prejudice. (/d.) Respondent argues that in any event,
the claim is without merit because the Appellate Division's denial of the claim was neither contrary to, nor an unreasonable
application of, clearly established Supreme Court law. (/d.) Further, Respondent argues that the New York Appellate Division's
holding—that the trial court's disposition finding was supported by the written opinions and testimony of two experts—was
correct and should not be second-guessed. (/d.)

C. Petitioner's Traverse

Petitioner makes the following ten arguments in his Traverse: (1) the delay in conducting the probable cause hearing violated
Plaintiff's due process right because (a) his request for a removal to Erie County was not a consent to a delay in the proceeding,
and (b) he exhausted the claim by raising it on direct appeal in federal terms; (2) his due process rights argument related to the
probable cause hearing (a) has merit because the probable cause finding was not supported by legally sufficient evidence, (b)
was exhausted because the cases he relied on employed a constitutional analysis in similar factual situations, and (c) should
not be barred based on adequate and independent state law grounds because the procedural rule—that no appeal lies from a
finding of probable cause—is not fairly established and regularly followed; (3) Petitioner's due process rights were violated by
the court's failure to hold a trial within sixty days of the probable cause finding and (a) this argument was raised before the
Appellate Division and leave application to the Court of Appeals, (b) the New York appeals courts had a duty to review whether
Petitioner's fundamental constitutional rights were violated and, despite having an opportunity, failed to make a finding, (c)
in any event, the denial of a claim on state law procedural grounds does not deprive the habeas court of jurisdiction, (d) the
statutory violation establishes presumptive prejudice; (4) there is merit to Petitioner's exhausted claim asserting that his trial
waiver was not made knowingly and intelligently because the trial court failed to (a) inform Petitioner that the state carried the
burden at trial, (b) explain the elements of a mental abnormality, and (c) elicit a factual statement or admission from Petitioner
implying that he had serious difficulty controlling his conduct; (5) there is merit to Petitioner's exhausted claim asserting that his
trial waiver was not made voluntarily because the record reflects that he was under undue pressure in light of (a) the motion he
submitted to the trial court outlining his concerns that his assigned counsel was unprepared for trial, (b) the trial court's statement
suggesting that it had already determined Petitioner suffered from a mental abnormality before the evidence was introduced or
received by the court, (c) the trial court's failure to inquire further when asked whether anyone was forcing Petitioner to make
an admission of a mental abnormality and he stated that it was a hard question, and (d) Petitioner filed a motion to withdraw
his waiver which provided specific facts showing that his waiver was not voluntary; (6) there is merit to Petitioner's claim
that the denial of his adjournment request violated due process because the State made a late disclosure that effectively left
Petitioner without an expert witness to testify on his behalf and present evidence in his case; (7) Petitioner's claim that his
assigned counsel provided ineffective assistance of counsel has merit because (a) there is established Supreme Court precedent
governing ineffective counsel claims in civil commitment proceedings, and (b) Attorney Cutting was unfamiliar with the facts
and law of Petitioner's case and it was never his intention to challenge the State's case or present an expert witness on Petitioner's
behalf; (8) the trial court failed to conduct a sufficient inquiry into Petitioner's concerns regarding his assigned counsel; (9)
Petitioner's hearsay claim has merit because (a) the State's case relied on experts who relied almost exclusively on inadmissible
hearsay, (b) the trial court demonstrated its partiality by having an ex parte conversation with Petitioner's independent doctor
and determined that Petitioner had a mental abnormality before any evidence was admitted, and (c) the error admitting the
hearsay was not harmless and suggested Petitioner's inability to control his sexual behavior; and (10) Petitioner's exhausted legal
sufficiency claim has merit because (a) the factors relied upon by the State's experts did not support a finding that Petitioner had
the required difficulty to control his conduct, (b) the State's experts relied upon unsubstantiated hearsay concerning sexual abuse
of Petitioner's stepdaughters from his second marriage, (c) the trial court considered how long Petitioner was in the community
before reoffending but the alleged re-offense was not a crime he pleaded guilty to and thus should not have been considered a re-
offense, (d) the trial court improperly considered that Petitioner has maintained his innocence for over 25 years—which includes
when Petitioner was eligible for parole or conditional release if he admitted his guilt—and did not fully participate in sex
offender treatment while incarcerated, and (e) no expert testified that a diagnosis of pedophilia alone demonstrated Petitioner's
serious difficulty in controlling his sexual conduct. (Dkt. No. 29 at 5-38.)

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I. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Review of Habeas Petition

*5 A person in custody pursuant to the judgment of a state court may file a petition for a writ of habeas corpus in the United
States District Courts ifthe custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)
(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). The fact that Petitioner is challenging his civil commitment for
mental illness rather than his underlying criminal conviction does not change the outcome as civil commitments are typically
challenged in habeas proceedings. See Duncan v. Walker, 533 U.S. 167, 176 (2001) (stating that a state court order of civil
commitment satisfies § 2254’s “in custody” requirement). A person in state custody may challenge his confinement under 28
U.S.C. § 2241 or 28 U.S.C. § 2254. However, a § 2241 petition generally challenges the execution of a sentence such as “the
administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers,
type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). Because Petitioner challenges the
term of his confinement rather than the conditions surrounding it, he has properly brought his claim under § 2254. See Buthy
v. Comm'r of Office of Mental Health of New York, 818 F.2d 1046, 1051-52 (2d Cir. 1987) (petitioning for a writ of habeas
corpus pursuant to § 2254 is the appropriate method for an individual to challenge the fact or duration of his involuntary civil
commitment to a state psychiatric institution).

Where a case challenging a civil commitment is initiated by the filing of a petition for habeas corpus, the case is governed
by the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254(d). Ernst J. v. Stone, 452 F.3d 186, 188 (2d Cir. 2006). Under AEDPA, this Court cannot grant relief unless
the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). A state-court decision is contrary to federal
law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of
facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result.
Williams v. Taylor, 529 U.S. 362, 406 (2000).

To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in
a federal habeas proceeding. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal
concern whether state law was correctly applied).

In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. Y/s¢ v.
Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision
of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing
those grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello, 552 F.3d 236, 239-40
(2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)); cf: Wiggins v. Smith, 539 U.S. 510, 530-31 (2003)
(applying a de novo standard to a federal claim not reached by the state court). In so doing, the Court presumes that the state
court decided the claim on the merits and the decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740
(1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining
the Harris-Coleman interplay); Fama v. Comm'r of Corr, Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives
the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.
Harrington vy. Richter, 131 S. Ct. 770, 784-85 (2011) (rejecting the argument that a summary disposition was not entitled to
§ 2254(d) deference); Jimenez, 458 F.3d at 145-46. Under the AEDPA, the state court's findings of fact are presumed to be
correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-E] v.
Cockrell, 537 U.S. 322, 340 (2003).

B. Exhaustion

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*6 “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, ... thereby giving
the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S.
27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal quotation and other citations omitted)); 28 U.S.C. §
2254(b)(1). The prisoner must “fairly present” his claim in each appropriate state court, including the highest court with powers
of discretionary review, thereby alerting that court to the federal nature of the claim. Baldwin, 541 U.S. at 29; Bossett v. Walker,
41 F.3d 825, 828 (2d Cir. 1994).

“A habeas petitioner has a number of ways to fairly present a claim in state court without citing ‘chapter and verse’ of the
Constitution, including ‘(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind
a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of
constitutional litigation.’ ” Hernandez v. Conway, 485 F. Supp. 2d 266, 273 (W.D.N.Y. 2007) (quoting Daye v. Attorney General,
696 F.2d 186, 194 (2d Cir. 1982)).

Where a petitioner has failed to exhaust his claims, but he cannot return to state court, petitioner's claims are then “deemed”
exhausted, but barred by procedural default. Bosseit v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). The merits of such a
procedurally defaulted claim may not be reviewed by a federal court unless the petitioner can show both cause for the default and
actual prejudice resulting from the alleged violation of federal law, or ifhe can show that the constitutional violation has resulted
in the conviction of one who is “actually innocent.” Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012); Clark v. Perez, 510 F.3d
382, 393 (2d Cir. 2008) (internal quotation and citations omitted). The actual innocence prong is referred to as the fundamental
miscarriage of justice exception. Rivas, 687 F.3d at 540. “Cause” exists if “the prisoner can show that some objective factor
external to the defense impeded counsel's effort to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986). Prejudice exists if there is a “reasonable probability” that the result of the proceeding would have been different
absent the alleged constitutional violation. Stickler v. Greene, 527 U.S. 263, 289 (1999).

IV. ANALYSIS !

A. Ground 1
After carefully considering the matter, I recommend that Petitioner's claim regarding the delay in holding his probable cause
hearing (Ground 1) be denied for the reasons set forth in Respondent's memorandum of law. (Dkt. No. 18 at 27-30.) The
undersigned merely would like to highlight Respondent's argument that the delay in holding the hearing was primarily
attributable to Petitioner's request for a change in venue. (/d.) The New York Appellate Division's denial of Petitioner's claim
did not unreasonably apply clearly established Supreme Court law. Daniel J., 180 A.D.3d at 1328 (citing N.Y. Mental Hyg.

§ 10.06(g)).

B. Ground 2
*7 After carefully considering the matter, I recommend that Petitioner's claim that the trial court's finding of probable cause
was based on legally insufficient evidence (Ground 2) be denied for the reasons set forth in Respondent's memorandum of law.
(Dkt. No. 18 at 30-33.)

As an initial matter, Ground 2—which is a federal constitutional clatm—does not appear to have been “fairly presented” to
the Appellate Division, given that Petitioner's evidence-sufficiency arguments related to the finding of probable cause, were
framed in the context of state evidentiary law. (Dkt. No. 20, Attach. 2 at 905-07.) “While this means that Petitioner's claim
is unexhausted, it still may be reviewable under one of the narrow exceptions provided for “procedurally defaulted’ claims.”
Bennett v. Dill, 21-CV-1450, 2022 WL 4451040, at *8 (E.D.N.Y. Sept. 23, 2022) (citing Galdamez v. Keane, 394 F.3d 68, 73
(2d Cir. 2005); Murray v. Carrier, 477 U.S. 478, 485 (1986)). However, “Petitioner's claim is procedurally defaulted as he
has already had one appeal and one application for leave to appeal to the New York Court of Appeals, and therefore can no

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longer raise the claim in any state forum.” Bennett, 2022 WL 4451040, at *8 (citing Ramirez v. Attorney Gen., 280 F.3d 87,
94-95 (2d Cir. 2001)).

As set forth by Respondent, Petitioner fails to provide any reason why this claim was not presented to the Appellate Division
on appeal, thereby failing to meet the criteria of the first exception to procedural default. Jd. (citing Stepney v. Lopez, 760 F.2d
40, 45 (2d Cir. 1985)).

Turning to the “fundamental miscarriage of justice” exception for procedural default, it “is more difficult to apply here given that
Petitioner is challenging a bench [decision] that led to his civil confinement. The Supreme Court has stated that this exception
is reserved for ‘petitions that advance a substantial claim of actual innocence.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298,
321-22, 325, 327 (1995) (emphasis added)). “This standard does not map neatly onto a case involving civil confinement. There
does not appear to be Second Circuit case law interpreting the ‘actual innocence’ standard in the context of civil confinement,
nor have other circuits enunciated a clear rule.” Jd. (citing Brown v. Watters, 599 F.3d 602, 609-10 (7th Cir. 2010) (“The correct
application of the actual innocence exception to civil commitment cases is a difficult one. We have no explicit guidance from
the Supreme Court or from our sister circuits .... [Therefore, we shall] proceed to adjudicate the merits.”’)).

The Court need not decide whether and how the “actual innocence” exception to procedural default applies to civil commitments
because, as discussed below, I recommend that Petitioner's Ground 2 claim be dismissed as (1) barred on adequate and
independent state grounds, and (2) meritless.

More specifically, the New York State Appellate Division Fourth Department held that Petitioner's “contention regarding the
sufficiency of the evidence presented at the probable cause hearing is not properly before us because no appeal lies from the
order finding probable cause.” Daniel J., 180 A.D.3d at 1348 (citing Matter of State of New York v. Stein, 85 A.D.3d 1646, 1648
(N.Y. App. Div. 4th Dep't 2011), aff'd 20 N.Y.3d 99 (N.Y. 2012), cert. denied 568 U.S. 1216 (2013)). Further, N.Y. Mental Hyg.
Law § 10.13(b) expressly states that “[n]o appeal may be taken from an order entered pursuant to ... this article determining that
probable cause has been established to believe that the ... sex offender requir[es] civil management.” As set forth by Respondent,
New York state courts have consistently applied this provision to deny appeals from probable cause findings. Thus, there is an
independent and adequate state ground barring federal review.

*8 Moreover, as set forth by Respondent, any error in the probable cause hearing was cured by Petitioner's subsequent decision
to waive trial and admit to having a mental abnormality. State v. Kenneth IT, 190 A.D.3d 33, 37-38 (N.Y. App. Div. 3d Dep't 2020)
(finding that if the trial court erred in permitting waiver of a probable cause hearing, the error was mooted by the subsequent
mental abnormality finding by clear and convincing evidence, which is “a higher standard than would be applied at a probable
cause hearing.”).

As a result, I recommend that Ground 2 be denied.

C. Ground 3
After carefully considering the matter, I recommend that Petitioner's claim that his due process rights were violated by the failure
to hold a trial within sixty days after the probable cause finding (Ground 3) be denied for the reasons stated in Respondent's
memorandum of law. (Dkt. No. 18 at 33-37.)

As an initial matter, Petitioner failed to raise Ground 3 in his leave application to the New York Court of Appeals. (Dkt. No. 20,
Attach. 2 at 979-1005.) This claim is procedurally defaulted because Petitioner has already had one appeal and one application
for leave to appeal to the New York Court of Appeals. Further, Petitioner failed to provide any reason why Ground 3 was not
presented to the Court of Appeals, thereby failing to meet the criteria for the first exception to procedural default.

As set forth above in Part IV.B. of this Report and Recommendation, it is difficult to apply the “fundamental miscarriage of
justice” exception, to challenges of bench trials that led to civil confinement. However, the Court need not decide whether

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and how the “actual innocence” exception to procedural default applies to civil commitments because, as discussed below, I
recommend that Petitioner's Ground 3 claim be dismissed as (1) barred on adequate and independent state grounds, and (2)
meritless.

More specifically, the New York State Appellate Division Fourth Department held that Petitioner “failed to preserve for our
review his contention that he was denied due process because a jury trial was not held within 60 days of the probable cause
hearing.” Daniel J., 180 A.D.3d at 1348 (citing Matter of State of New York v. Trombley, 98 A.D.3d 1300, 1302 (N.Y. App. Div.
4th Dep't 2012), lv denied 20 N.Y.3d 856 (N.Y. 2013)). The failure to preserve a claim for appeal is considered a state procedural
tule, which “preclude[s the claim] from habeas review pursuant to the adequate and independent state ground doctrine.” Switzer
v. Graham, 05-CV-6706, 2010 WL 1543855, *4 (W.D.N.Y. Apr. 16, 2010) (citing Richardson v. Greene, 497 F.3d 212, 218
(2d Cir. 2007); Fore v. Ercole, 594 F. Supp. 2d 281 (E.D.N.Y. 2009); Walker v. Goord, 427 F. Supp. 2d 272 (W.D.N.Y. 2006)).
Thus, there is an independent and adequate state ground barring federal review.

Moreover, as set forth by Respondent, the delay in holding Petitioner's trial was attributable primarily to his requests—over the
State's objection—so that he could collaterally attack his underlying conviction (Dkt. No. 20, Attach. 2 at 452-465; Dkt. No.
20, Attach. 2 at 148) and to accommodate his expert (Dkt. No. 20, Attach. 2 at 466-469; Dkt. No. 20, Attach. 2 at 144-45.)
Further, as set forth by Respondent, the trial court had already found that Petitioner was sufficiently dangerous at the probable
cause hearing and the delay in scheduling the trial did not violate his constitutional rights. This finding was further buttressed
by Petitioner's waiver of his mental abnormality trial.

*9 Asa result, I recommend that Ground 3 be denied.

D. Grounds 4, 5, 6, and 7
The parties asserted arguments with respect to Grounds 4, 5, 6, and 7 together and seem to reframe Grounds 4, 5, 6, and 7 as
asserting that Petitioner's waiver of his right to a jury trial on whether he had a mental abnormality was involuntary because (1)
the court improperly refused to grant Petitioner an adjournment to find a new expert, thereby coercing Petitioner into waiving
trial, (2) the trial court made coercive statements during the waiver allocution and failed to ensure the waiver was voluntary,
(3) Petitioner's counsel was unprepared for trial, and (4) the court failed to inquire into, or decide, Petitioner's motion for the
substitution of counsel. (Dkt. No. 18 at 37-61; Dkt. No. 29 at 14-32.)

Petitioner's Appellate Division brief on direct appeal appears to primarily focus on state law terms but does mention federal
constitutional claims. (Dkt. No. 20, Attach. 2 at 911 [referring to Petitioner's due process rights]; Dkt. No. 20, Attach. 2 at 912
[“Appellant does have a fundamental due process right in Article 10 proceedings.”]; Dkt. No. 20, Attach. 2 at 914 [“Inasmuch as
respondent contends that he received ineffective assistance of counsel under both the state and federal standards ...”].) Assuming,
without deciding, that these claims were exhausted, I recommend that they be dismissed as meritless.

For the reasons set forth in Respondent's memorandum of law, I find that Petitioner's waiver of his right to a jury trial was entered
knowingly, intelligently, and voluntarily. (Dkt. No. 18 at 39-43.) Moreover, I find that for the reasons stated in Respondent's
memorandum of law Petitioner's (1) adjournment claim (id. at 43-46); (2) waiver allocution claim (id. at 46-48); (3) ineffective
assistance of counsel claim (id. at 48-58), and (4) failure-to-inquire claims (id. at 58-61), are meritless.

As aresult, I recommend that Grounds 4, 5, 6, and 7 be denied.

E. Ground 8
After carefully considering the matter, I recommend that Petitioner's claim that his due process rights were violated by the
admission at the dispositional hearing, of expert testimony discussing hearsay accusations (Ground 8) be denied for the reasons
stated in Respondent's memorandum of law. (Dkt. No. 18 at 61-69.)

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F. Ground 9
After carefully considering the matter, I recommend that Petitioner's claim that his due process rights were violated because the
State did not prove by clear and convincing evidence that he was a dangerous sex offender requiring confinement (Ground 9)
be denied for the reasons stated in Respondent's memorandum of law. (Dkt. No. 18 at 69-74.)

As noted by Respondent, this claim is unexhausted because Petitioner failed to raise it in federal terms in the Appellate Division
and failed to raise this claim at all in his leave application to the New York Court of Appeals. Ud.) Moreover, as set forth by
Respondent, in any event, the claim is meritless.

As a result, I recommend that Ground 9 be denied.

G. Ground 10

After carefully considering the matter, I recommend that Petitioner's claim regarding the delay in holding his probable cause
hearing and mental abnormality trial be dismissed for the reasons set forth in Respondent's memorandum of law. (Dkt. No.
18 at 27-30, 33-37.) As set forth by Senior United States District Judge James K. Singleton, Jr., in Roache v. McCulloch, 16-
CV-1069, 17-CV-0574, 2019 WL 4327271, at *5 (N.D.N.Y. Sept. 12, 2019) (Singleton, J.), a claim for speedy trial based on
state law violations of N.Y. Mental Hyg. Law § 10.01, ef seg., is not cognizable on federal habeas review. Roache, 2019 WL
4327271, at *5 (citing Bermudez v. Conway, 09-CV-1515, 2012 WL 3779211, at *9 (E.D.N.Y. Aug. 30, 2012); Hodges v. Bezio,
09-CV-3402, 2012 WL 607659, at *4 (E.D.N.Y. Feb. 24, 2012); Rodriguez v. Superintendent, Collins Corr. Facility, 548 F.
Supp. 2d 226, 23-37 (N.D.N.Y. 2008)).

*10 Moreover, as set forth above in (1) Part IV.A. of this Report and Recommendation, Petitioner's claim regarding the delay
in conducting his probable cause hearing is meritless, and (2) Part IV.C. of this Report and Recommendation, Petitioner's claim
regarding the delay in conducting his mental abnormality trial is meritless.

As aresult, I recommend that Ground 10 be denied.

V. CERTIFICATE OF APPEALABILITY

To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate
of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) (“[T]he applicant cannot take an appeal
unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”). In the
absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler
v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only “if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a “substantial
showing” if “the issues are debatable among jurists of reason; ... a court could resolve the issues in a different manner; or ...

the questions are adequate to deserve encouragement to proceed further,” 7 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(quotation marks omitted).

In this instance, I find that jurists of reason would not find it debatable as to whether the petition in this matter is meritorious.
Accordingly, I recommend against the issuance of a COA.

ACCORDINGLY, it is

RECOMMENDED that the petition be DENIED and DISMISSED, and that a certificate of appealability not be issued to
Petitioner; and it is further

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ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the parties, along with copies
of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron y. Sanders, 557 F.3d 76
(2d Cir. 2009) (per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the

foregoing report. > Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R.
Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)).

All Citations

Not Reported in Fed. Supp., 2024 WL 3206260

Footnotes

1 As the New York State Court of Appeals affirmed the Appellate Division's decision without explanation, the undersigned
has reviewed the last state court decision that provided a rationale. See Daniel J., 180 A.D.3d 1347; Willson v. Sellars,
138 S. Ct. 1188, 1192 (2018) (holding that a federal habeas court reviewing an unexplained state-court decision on
the merits “should ‘look through’ the unexplained decision to the last related state-court decision that does provide a
relevant rationale” and “presume that the unexplained decision adopted the same reasoning,” but that “the State may
rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds
than the lower state court's decision”).

2 A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See
Slack v. McDaniel, 529 U.S. 473, 478 (2000) (‘[A] COA should issue ... if the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that
jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’’).

3 Ifyou are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be
added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation,
and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a
Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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2018 WL 7960305
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Richard ROSADO, Petitioner,
v.
D. MCCULLOCH, Executive Director of Central New York Psychiatric Center; J. Nowicki, Chief of
Mental Health Services New York Psychiatric Center Sex Offender Treatment Program, Respondents.

No. 9:16-CV-1422 (TJM/CFH)
|
Signed 09/26/2018

Attorneys and Law Firms
Richard Rosado, 169300-305, CNY PC, P.O. Box 300, Marcy, New York 13403, Petitioner pro se.

OF COUNSEL: PRISCILLA I. STEWARD, ESQ., Assistant Attorney General, Attorney General for the State of New York,
New York Office, 28 Liberty Street, New York, New York 10005, Attorneys for Respondents.

REPORT-RECOMMENDATION AND ORDER
Christian F. Hummel, U.S. Magistrate Judge

*1 Presently pending before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by petitioner
Richard Rosado (“petitioner”). Dkt. No. 1 (“Pet.”). On June 22, 2010, a jury in Bronx County Supreme Court found that
petitioner suffered from a mental abnormality as defined by Article 10 of the New York Mental Hygiene Law. See Dkt. No. 1-1
at 2. On December 17, 2010, after a dispositional hearing, the Hon. Cassandra Mullen determined that petitioner be confined in a
secure treatment facility and receive further sex offender treatment. See id. at 2-4. To the best of the Court's knowledge, plaintiff
remains civilly committed. See Pet.; Dkt. No. 16. On December 1, 2016, petitioner filed a pro se petition seeking a writ of habeas
corpus challenging his continued confinement at Central New York Psychiatric Center (“CNY PC”). See Pet. Respondents
opposed that motion, and petitioner filed a traverse. Dkt. Nos. 11, 15. On March 1, 2018, petitioner filed a supplemental reply.
Dkt. No. 16. For the following reasons, it is recommended that the petition be denied.

I. Background

A. Article 10

“New York's Sex Offender Management and Treatment Act, codified at N.Y. Mental Hygiene Law § 10.01, et seq. (the “Article
10’), authorizes the indefinite civil confinement or ‘strict and intensive’ outpatient supervision and treatment of “sex offender[s]
requiring civil management,’ defined as ‘detained sex offender[s] who suffer[ | from a mental abnormality.’ ” Dorsey v. Hogan,
511 F. App'x 96, 98 (2d Cir. 2013) (summary order) (quoting N.Y. MENTAL HYG. LAW §&§ 10.03(q), 10.07(4). Pursuant to
Article 10, prior to the anticipated release from confinement of a “detained sex offender,” a case review team must determine
whether that individual is a “sex offender requiring civil management.” N.Y. MENTAL HYG. LAW §§ 10.05(e), 10.06(a). If it
is determined that the individual needs civil management, the case review team provides notice of that finding to the individual
and the attorney general. Id. § 10.05(g). The attorney general may then file an Article 10 petition in the supreme court or county
court where the individual is located. Id. § 10.06(a). Within thirty days of that petition, the court must conduct a hearing to

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determine whether there is probable cause substantiating that the individual is a sex offender requiring civil management. Id. §
10.06(g). If such probable cause is established, the court must conduct a jury trial, wherein the jury “shall determine by clear
and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality.” Id. §§
10.07(a), (d). If the jury concludes that the offender is a “detained sex offender who suffers from a mental abnormality,” then
the court must determine whether the offender is a “dangerous sex offender requiring confinement or a sex offender requiring
strict and intensive supervision.” Id. § 10.07(f).

If the court finds by clear and convincing evidence that the [offender] has a mental abnormality involving
such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the
[offender] is likely to be a danger to others and to commit sex offenses ifnot confined to a secure treatment
facility, then the court shall find the [offender] to be a dangerous sex offender requiring confinement. In
such case, the [offender] shall be committed to a secure treatment facility for care, treatment, and control
until such time as he or she no longer requires confinement.

*2 Id.

While confined, the Office of Mental Health (““OMH”’’) must provide the offender and his counsel with annual written notice of
the right to petition the court for discharge from confinement. N.Y. MENTAL HYG. LAW § 10.09(a). OMH must also provide
the offender with an “examination for evaluation of his or her mental condition made at least once every year (calculated from the
date on which the ... judge last ordered or confirmed the need for continued confinement ... or the date on which the respondent
waived the right to petition for discharge ..., whichever is later)[.]” Id. § 10.90(b). The court must then hold an evidentiary
hearing to determine whether the offender should be continued in confinement. Id. § 10.09(d).

B. Factual Background

Subsequent to the completion of petitioner's prison sentence, a jury found that he suffered from a mental abnormality as defined
by Article 10 of the New York Mental Hygiene Law. Dkt. No. 1-1 at 2. The Bronx County Supreme Court conducted a
dispositional hearing, and, on December 17, 2010, and ordered that petitioner be confined to a secure treatment facility and
receive further sex offender treatment. Id. at 2-4. On March 8, 2011, the Bronx County Supreme Court entered an Order of
Commitment, and the Appellate Division, First Department affirmed that Order. The New York Court of Appeals denied leave.
See State v. Rosado, 94 A.D.3d 577 (N.Y. App. Div. 2012), Iv. denied, 19 N.Y.3d 815 (N.Y. 2012).

In July 2012, the Oneida County Supreme Court conducted an annual review hearing pursuant to New York Mental Hygiene
Law § 10.09(a). See Dkt. No. 1-1 at 11. The court found that, based on the received evidence and testimony, there was “clear and
convincing evidence” that petitioner remained a dangerous sex offender requiring confinement in a secure treatment facility.
Id. The court issued an Order of Confinement dated January 28, 2013. See id. at 11-12.

In October 2013, the Oneida County Supreme Court conducted a second annual review hearing. See Dkt. No. 1-1 at 19. The
court found that “by clear and convincing evidence[,] [petitioner] continue[d] to have a mental abnormality involving such a
strong predisposition to commit sex offenses, and such an inability to control his behavior, that he is likely to be a danger to
others and commit sex offenses if not confined to a secure treatment facility.” Id. The court issued an Order of Confinement
dated March 27, 2014. Id. at 20.

In September 2015, the Oneida County Supreme Court conducted a third annual review hearing. See Dkt. No. 1-1 at 27. The

court found that petitioner continued to suffer from a mental abnormality ordered that he remain confined in a secure treatment
facility. See id. The court issued an Order of Confinement dated January 15, 2016. Id. at 28.

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On July 22, 2016, petitioner sought a fourth annual renewal hearing seeking discharge of his civil confinement. See Dkt. No.
1-1 at 30. Pursuant to respondents' papers, petitioner underwent a psychiatric evaluation by an independent examiner in January
2017. Dkt. No. 11-1 at 7. At the time of the submission of respondents' papers, petitioner's fourth annual hearing was “expected
to be scheduled soon.” Id.

IL. Discussion !

A. The AEDPA

*3 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that, when a state court has adjudicated
the merits of a petitioner's claim, a federal court may grant an application for a writ of habeas corpus only if “the adjudication of
the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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); see also e.g.,
Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008). This is a “difficult to
meet,” and “highly deferential standard” for evaluating state-court rulings, which “demands that state-court decisions be given
the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

Under section 2254(d)(1), a state-court decision is contrary to clearly established Supreme Court precedent if its “conclusion
on a question of law is ‘opposite’ to that of the Supreme Court or if the state court decides a case differently than the Supreme
Court's decision ‘on a set of materially indistinguishable facts.’ ” Brown, 543 F.3d at 100 (quoting Williams v. Taylor, 529 U.S.
362, 413 (2000)). A state court decision involves an unreasonable application of clearly established Supreme Court precedent
if it correctly identifies the governing legal principle, but unreasonably applies or unreasonably refuses to extend that principle
to the facts of a particular case. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000).

Under the AEDPA, a state court's factual findings are presumed correct, unless that presumption is rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e) (1). Ifthe state court failed to decide a claim “on the merits,” the pre-AEDPA standard
of review applies, and both questions of law and mixed questions of law and fact are reviewed de novo. Washington v. Shriver,
255 F.3d 45, 55 (2d Cir. 2001).

B. Exhaustion

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, ... thereby giving the
State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S.
27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal quotation and other citations omitted)); 28 U.S.C. §
2254(b)(1). The prisoner must “fairly present” his claim in each appropriate state court, including the highest court with powers
of discretionary review, thereby alerting that court to the federal nature of the claim. Id.; Bossett _v. Walker, 41 F.3d 825, 828
(2d Cir. 1994).

A habeas petitioner has a number of ways to fairly present a claim in state court without citing “chapter and verse” of the
Constitution, including “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind
a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of
constitutional litigation.”

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Hernandez v. Conway, 485 F. Supp. 2d 266, 273 (W.D.N.Y. 2007) (quoting Daye v. Attorney General, 696 F.2d 186, 194 (2d
Cir. 1982)).

C. Analysis

As respondents set forth, petitioner's claim is arguably unexhausted, as there is no indication in the record that he has “fairly
present[ed]” his claim in each appropriate state court, including New York's highest court. See Baldwin, 541 U.S. at 29; Dkt.
No. 11-1 at 9 n.2; see also Sincere M. v. New York Office of Mental Hygiene, No. 13-CV-04028 (LDH), 2018 WL 4344947,
at *2 (E.D.N.Y. Sept. 11, 2018) (acknowledging that the exhaustion requirement “also applies to habeas petitions challenging
civil commitment proceedings.’’) (citation omitted). As such, “there is no basis [for the federal court] to retain jurisdiction over
a petition that contains only unexhausted claims.” Shomo v. Maher, No. 04 Civ. 4194(KMK), 2005 WL 743156, at *7 n. 12
(S.D.N.Y. Mar. 31, 2005). Thus, because petitioner's claim is unexhausted, and because he retains the ability to raise this claim
in state court proceedings, the undersigned finds that plaintiff's habeas petition challenging his order of civil confinement is
not properly before this Court.

*4 Federal district courts, however, have the discretion to dismiss unexhausted claims on the merits if the claims are “plainly
meritless” or “patently frivolous.” Rhines v. Weber, 544 U.S. 269, 277 (2005); Mercedes v. Superintendent, No. 9-12-CV-687
(DNB), 2014 WL 2711803, at *6 (N.D.N.Y. June 16, 2014); 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.”). Accordingly, this Court has reviewed petitioner's unexhausted claim challenging his civil confinement and recommends
that it be found plainly meritless.

Petitioner's argument that he is being confined in CNY PC pursuant to expired Orders of Confinement is misplaced. See
generally Pet. As respondents argue, the Orders of Confinement issued by Oneida Supreme Court do not provide for an
expiration date of petitioner's confinement. See Dkt. No. 11-1 at 7. Pursuant to Article 10, petitioner's Orders of Confinement set
forth that petitioner “shall be provided ..., at least annually, calculated from [the date of the last renewal], with an examination
for evaluation of his mental condition, and ... with annual written notice of the right to petition the Court for discharge.” Dkt. No.
1-1 at 12 (Mmoting that the date be calculated from July 18, 2012), 19 (noting that the date be calculated from October 16, 2013),
27 (noting that the date be calculated from September 2, 2015). Petitioner seems to interpret this language as entitling him to
release from confinement if the state court fails to issue a new Order of Confinement within one year of the abovementioned
dates. Petitioner's interpretation, however, is incorrect. In accordance with respondents' argument, the Orders do not provide a
date for the termination of petitioner's confinement, but, instead, signify the beginning of the annual review process set forth
in Article 10. See N.Y. MENTAL HYG. LAW § 10.09(b); Dkt. No. 11-1 at 8.

Moreover, as the Oneida County Supreme Court explained to petitioner in a March 2018 proceeding, the annual review date
“is not an expiration date for [petitioner's] order of commitment[; instead] ... his annual evaluation is the starting point for his
annual review proceeding, not its ending.” Richard R. v. State, 59 Misc.3d 941, 946 (N.Y. Sup. Ct. 2018) (emphasis in original).
The court explained that Article 10 “does not [ ] envision a mental condition examination occurring every calendar year, since
MHL § 10.09(b) defines the timing for such examination as one year from the date on which a court last ordered or confirmed
the need for continued confinement, or the date on which an [offender] waives his right to petition for discharge, whichever

is later.” Id. at 946-47. Instead, Article 10 “provides that a[n offender] is to be provided with a mental condition examination
within a year of the latest date upon which the authority to confine was granted[.]” Id. at 947.

Thus, as petitioner has incorrectly interpreted the language of his Orders of Confinement, the undersigned concludes that he is
not entitled to habeas relief. Accordingly, it is recommended that petitioner's petition be denied.

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III. Conclusion

WHEREFORE, for the reasons stated herein, it is hereby,
RECOMMENDED, that petitioner's petition for a writ of habeas corpus (Dkt. No. 1) be DENIED; and it is

RECOMMENDED, that no certificate of appealability should be issued with respect to any of petitioner's claims as petitioner
has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C.
§ 2253(c)(2) (“A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of
a constitutional right.”); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000); and it is further

*5 ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance
with Local Rules.

IT IS SO ORDERED.
All Citations

Not Reported in Fed. Supp., 2018 WL 7960305

Footnotes
1 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided
to plaintiff.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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