Richards v. Montagari

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TYLER RICHARDS,
Petitioner,
v. 	9:23-CV-800 (AJB)
A. MONTAGARI
Respondent.
APPEARANCES: 	OF COUNSEL:
TYLER RICHARDS
Petitioner Pro Se
22-B-2641
Mohawk Correctional Facility
P.O. Box 8451
Rome, New York 13440
HON. LETITIA JAMES 	IRA M. FEINBERG, ESQ.
Attorney for Respondent 	Ass’t Attorney General
New York State Attorney General
28 Liberty Street
New York, New York 10005
ANTHONY J. BRINDISI
United States District Judge
DECISION & ORDER
I. 	INTRODUCTION
Pro se petitioner Tyler Richards seeks federal habeas relief pursuant to 28 U.S.C. §
2254. Dkt. No. 9, Am. Petition ("Am. Pet."); Dkt. No. 9-1, Exhibits; Dkt. No. 11, Decision and
Order (directing petitioner to file an affirmation further clarifying issues related to exhaustion);
Dkt. Nos. 14, 15, & 17, Affirmations; Dkt. No. 18, Decision and Order (directing respondent to
answer the amended petition and affirmations). Respondent filed an Answer. Dkt. No. 30,
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Answer; Dkt. No. 33, Sealed State Court Records; Dkt. No. 33-1, Memorandum of Law.1
Petitioner was provided with the opportunity to file a reply, Dkt. No. 31, Text Order; however,
he instead filed a motion to withdraw the action, Dkt. No. 34, Motion. The motion was denied
without prejudice to renew, and petitioner was provided thirty days to either renew his request
for voluntary withdrawal or reply to respondent’s opposition. Dkt. No. 36, Text Order.
Petitioner did neither and, consistent with the Court’s prior order, the Court considers the
matter fully briefed and presumes petitioner seeks a decision on his amended pleading.
For the reasons which follow, the Amended Petition is denied.
II. 	RELEVANT BACKGROUND
A. 	Crimes, Charges, and Pretrial Proceedings
On January 28, 2022, a Warren County Grand Jury handed down a four-count
indictment against petitioner. SCR at 9-10.2 The first two counts charged petitioner with
Course of Sexual Conduct Against a Child in the Second Degree, a felony offense pursuant
to New York Penal Law § 130.80(1)(b), for events occurring during two distinct time periods
from December 2013 through March 2015 and the Summer of 2018 through the end of March
2021.3 SCR at 9. The second two counts charged petitioner with Endangering the Welfare
of a Child, a misdemeanor offense pursuant to New York Penal Law § 260.10(1), for two
1 For the sake of clarity, citations to all parties' filings refer to the pagination generated by CM/ECF, the Court's electronic
filing system. The only exception is the State Court Record (“SCR”), Dkt. No.33, where citations will reference the Bates-
stamp at the bottom-center of each page, as the exhibit is separately and consecutively paginated.
2 An identical copy of the indictment was included as a supporting exhibit later in the state court record. SCR at 121-22.
3 The indictment explains that a person is guilty of Course of Sexual Conduct Against a Child in the Second Degree when
an adult “engage[s] in two or more acts of sexual conduct with a child less than thirteen years old, over a period of time
not less than three months in duration.” SCR at 9.
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distinct time periods from the Summer of 2018 through the end of March 2021 and March
2021 through the middle of April 2021.4 SCR at 9-10.
In April of 2022, petitioner’s criminal defense attorney filed an omnibus motion seeking
several different forms of pretrial relief. SCR at 42-60. Approximately ten days after the
motion was filed, petitioner appeared, with his counsel, for a plea hearing. SCR at 61.
B. 	Guilty Plea & Sentencing
On April 21, 2022, petitioner attended a plea hearing with his attorney. SCR at 61-83.
The court began by outlining the plea offer, namely that petitioner was willing to plead guilty to
one count of Course of Sexual Conduct Against a Child in the Second Degree – the first
count in the indictment – in exchange for a determinate sentence of three to three and a half
years’ incarceration followed by ten years of post-release supervision. SCR at 62-63. Both
parties agreed that those were the material terms. SCR at 64. Petitioner was then sworn in.
SCR at 64.
The court first confirmed petitioner’s level of education and that he neither had any
underlying medical or mental conditions nor consumed any substances, prescription or
otherwise, that would compromise his ability to understand the proceedings and their
consequences. SCR at 65-66. Petitioner also acknowledged that he was satisfied with his
representation and that he and his counsel had discussed the strengths and weaknesses of
the prosecution’s case and any possible defenses. SCR at 66.
The court then went over all of the rights that the petitioner would be waiving by
entering a plea of guilty, including, the right to a speedy and public trial, a unanimous guilty
4 The indictment explains that a person is guilty of Endangering the Welfare of a Child when they “knowingly act in a
manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” SCR at 9-
10.
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verdict, the prosecution having to call witnesses and produce evidence so that petitioner
would be found guilty beyond a reasonable doubt, file motions and confront the prosecution’s
witnesses and provide evidence and witnesses for petitioner’s own defense, and remain
silent. SCR at 66-68. Petitioner acknowledged he understood that he was giving up all those
rights and the consequences of that waiver with his attorney. SCR at 68. The court
emphasized that, by entering a plea of guilty, petitioner was foregoing his right to present his
case to a jury and raise his defenses, and his plea would be the equivalent of a jury or judge
finding petitioner guilty after a trial. SCR at 68. Petitioner again indicated his understanding
and confirmed that no one had threatened or forced him to plead guilty or made any other
promises for sentencing other than what was included in the plea agreement. SCR at 68.
The court then specifically focused on petitioner’s right to discovery. SCR at 69. The
court confirmed that (1) petitioner and his counsel had received all the prosecution’s
discovery outlined in the certificate of compliances filed with the court and (2) petitioner and
his counsel had seen enough discovery to properly advise petitioner on the present plea offer.
SCR at 70. Specifically within those discovery disclosures were two search warrant
applications and a supporting victim statement, which outlined the accused criminal conduct.
SCR at 30, 166-78, 187-89, 199-211.5
The search warrant application indicated that on February 8, 2021, the younger sister
of the child victim was at school when she disclosed that her sister had been sexually abused
by their stepfather, the petitioner. SCR at 94, 169, 202. Unbeknownst to both the child victim
5 Petitioner also provided the Court with a copy of the redacted grand jury minutes from testimony taken on January 28,
2022. Dkt. No. 9-1 at 9-52. The child victim’s testimony was consistent with that contained in her statement to law
enforcement, which was included in the State Court record as discussed in greater detail infro. Compare Dkt. No. 9-1 at
19-34 (grand jury testimony from the child victim) with SCR at 187-89, 220-22 (statement of the child victim taken by law
enforcement).
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and petitioner, the younger sister had observed the abuse. SCR at 94, 188, 221. Law
enforcement interviewed petitioner that same day, and petitioner “made oral statements [to
the police], in sum and substance, in reference to traces of his sperm being on the child
victim.” SCR at 169, 202. Initially, the child victim denied the abuse “because [she] felt like if
[she] confirmed it . . . [petitioner] would hate [her or] . . . do something harmful to [her]. [She]
was afraid and . . . confused.” SCR at 94.
Eventually, the child victim confided in her mother and provided a statement to law
enforcement about the extent of the abuse. SCR at 169, 202, 187-89, 220-22. The victim
reported that, beginning when she was five years old, the petitioner would ask the victim to
manually stimulate his penis with her hands and perform oral sex “at least once per week in
the morning while [her] mom was at work.” SCR at 187, 220. The abuse intensified when the
victim reached six years of age, with petitioner vaginally and anally penetrating her. SCR at
187, 220. The victim’s mother and the petitioner then ended their relationship, and the victim,
her mother, and her sister moved to a different town. SCR at 187, 220.
A year later, the petitioner moved closer to the victim, and she again started spending
time with him. SCR at 187, 220. After another year had passed, the petitioner started
sexually abusing the victim again by asking her to watch pornography, masturbate him, and
perform oral sex, as well as vaginally and anally penetrating the victim. SCR at 187-88, 220-
22. The victim said the frequency increased from “once per weekend” to “almost every day.”
SCR at 187-88, 220-21. The victim stated that petitioner would buy her a milkshake “if [she]
used [her] hand or mouth on his privates” and would pay her between $10 and $30 if he
penetrated her. SCR at 187, 220. Petitioner “would also buy [the victim] things when [they]
were out like candy and stuff when he owed [her] for doing things to him.” SCR at 187, 220.
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The victim confirmed that on the morning her sister reported the abuse, and petitioner
was questioned by law enforcement, he had vaginally penetrated her. SCR at 188, 221.
While the victim reports being questioned that day, she confirms she did not disclose the
abuse because she did not feel comfortable with the interviewer and was afraid of getting
petitioner into trouble. SCR at 188, 221. Finally, the victim indicated that petitioner would
take her to Walmart and have her consume a pill that would prevent her from getting
pregnant. SCR at 188-89, 221-222.
A signed waiver of discovery was then presented to the court and petitioner confirmed
that the waiver was signed freely and voluntarily after discussing its contents with his
attorney. SCR at 71. The court concluded “that [petitioner] was properly advised of his right
to discovery, and that he knowingly, intelligently and voluntarily waived that right after
consulting with his attorney.” Id.
The court then spoke to petitioner in detail about waiving his right to appeal. SCR at
71-72. In sum, the court stated that “if [petitioner] take[s] an appeal, [he is] by this waiver
giving up the right to have the appellate court consider most claims of error and . . . whether
the sentence . . . impose[d] . . . is excessive and should be modified. As a result, a conviction
by this plea and sentence will normally be final.” SCR at 72. Petitioner expressed his
understanding. SCR at 72-73. Further, the court explained that “[a]mong the limited number
of claims that will survive the waiver of the right to appeal . . . are the voluntariness of this
plea, the validity and voluntariness of this waiver, the legality of the sentence, the jurisdiction
of this court, a defendant’s competency to stand trial, and a defendant’s constitutional right to
a speedy trial.” SCR at 73. Petitioner again expressed understanding, confirmed that he had
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discussed waiving his right to appeal with his attorney, and presented the court with a signed
waiver of appeal. SCR at 73-75.
The court then engaged in an allocution with the petitioner, whereupon petitioner
acknowledged that he was giving up his right to remain silent and not incriminate himself and
confirmed that he lived in Warren County during the time in question, was older than 18 years
of age, engaged in acts of sexual conduct – specifically having the child victim grab
petitioner’s penis with her hand while she was between five and eight years of age – on
multiple occasions, for purposes of gratifying petitioner’s sexual desires. SCR at 76-79.
Petitioner affirmed that “everything [he] said here [during the allocution was] true and
accurate[,]” and pled guilty to Count One in the indictment. SCR at 80. The court adjourned
the matter for sentencing. Id.
On June 15, 2022, petitioner appeared, with counsel, for sentencing. SCR at 86-105.
During sentencing, the prosecution argued that petitioner should be incarcerated for longer
than three years; however, the plea agreement was the best compromise to spare the child
victim the trauma of trial and reliving all of her worst memories. SCR at 97-98. Petitioner
reiterated that he “pled guilty to these crimes because [he is] guilty [and that he feels]
appalled every day by the actions [he has] committed.” SCR at 100. Petitioner was found
guilty and sentenced to three and a half years determinate imprisonment plus ten years of
post-release supervision. SCR at 100; see also SCR at 106 (Sentence and Commitment
Order).
C. 	Challenge to Petitioner’s State Custody
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In May of 2023, petitioner filed a pro se motion to vacate his judgment pursuant to
New York Criminal Procedure Law § 440.10. SCR at 107-116. Liberally construing the
motion, petitioner
s[ought] vacatur of his judgment of conviction on the following
grounds: (1) his conviction was procured by duress,
misrepresentation, or fraud on the part of the court or a prosecutor;
(2) false material evidence was utilized in the prosecution; (3)
[petitioner] was not charged by Grand Jury indictment nor did he
waive his right to be charged by Grand Jury indictment; (4) the
accusatory instrument was legally insufficient; (5) [petitioner] was
denied his right to a preliminary hearing; (6) there were Brady
violations in that ‘ all evidence before the court was falsified;’ (7) all
‘proceedings’ were jurisdictionally defective; (8) [petitioner] was
‘deprived of life, liberty, and property;’ (9) the occurrence of judicial
misconduct, malicious prosecution, an obstruction of justice, a
conspiracy to commit a federal crime, and ethics violations
[deprived petitioner of a fair trial]; (10) [petitioner experienced]
ineffective assistance of counsel; and (11) [there was a] lack of
court jurisdiction and illegal actions by the court.
SCR at 158. The county court concluded that petitioner’s arguments were “all conclusory
allegations devoid of any sworn allegations of fact whatsoever. In fact, the lack of any factual
specificity . . . has rendered it impossible for th[e county c]ourt to discern any factual basis
upon which the [petitioner] is basing his various claims . . . The [petitioner’s] self-serving and
unsubstantiated claim that his conviction was obtained under duress is contradicted by the
transcript of the [petitioner’s] plea.” SCR at 160.
Further, the county court held that the merits of petitioner’s claims were, at best,
incorrect and, at worst, untenable. SCR at 160-62. Specifically, the plea transcript made
clear that petitioner was provided with all of the discovery before the plea was entered; the
assertion that petitioner was not indicted by a grand jury is belied by the record; petitioner’s
guilty plea waives challenges to his indictment; petitioner’s assertion that he was entitled to a
preliminary hearing was incorrect since the indictment mooted the requirement for a hearing;
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and the claims of jurisdictional defects were wholly contradicted by the record. SCR at 160-
62. Finally, petitioner completely failed to provide any proof that evidence was falsified, as is
required for a Brady violation, or that his counsel was constitutionally ineffective. SCR at
161-62. Consequently, petitioner’s 440 motion was denied, without a hearing, on June 20,
2023. SCR at 163. Petitioner did not appeal the denial of his 440 motion.
III. 	THE PETITION
Petitioner challenges his 2022 judgment of conviction, from Warren County Court,
upon a guilty plea, for Course of Sexual Conduct in the Second Degree. Am. Pet. at 1-2.
Petitioner did not directly appeal his conviction or seek a petition of certiorari from the United
States Supreme Court. Am. Pet. at 3.
Petitioner argues that he is entitled to federal habeas relief because (1) petitioner did
not sign a waiver for the grand jury and one took place without either him or his attorney
being present at it, Am. Pet. at 5; (2) he was deprived of a preliminary hearing, id. at 7; (3)
petitioner was wrongly deprived of his personal property since the prosecution refused to
return the property taken from his person and private residence, id.; (4) petitioner’s counsel
was constitutionally ineffective, id. at 8; and (5) petitioner was subjected to fraud based on
the illegal grand jury actions which led to his wrongful indictment, id. at 10.6
6 Petitioner made several references to his actual innocence in his affirmation. Dkt. No. 14 at 1; Dkt. No. 17 at 1. While
petitioner did not include a free-standing claim of actual innocence in his amended pleading, to the extent he intended for
the Court to liberally construe his submissions to assert one, any such claim would fail. The Supreme Court has made it
clear that if the federal courts recognized a free-standing actual innocence claim it would impose an “extraordinarily high”
threshold for factual innocence. See Herrera v. Collins, 506 U.S. 390, 417 (1993) (noting that, “in capital cases,” “the
threshold showing for [a freestanding innocence claim] would necessarily be extraordinarily high”); House v. Bell, 547 U.S.
518, 520 (2006) (“whatever burden a hypothetical freestanding innocence claim would require, this petitioner has not
satisfied it” . . . despite having “cast considerable doubt on his guilt.”). Here, for the reasons further discussed infra,
petitioner has failed to cast any doubt on the voluntary, knowing, and intelligent nature of his plea or his factual guilt, let
alone the considerable amount required to meet the high threshold contemplated by the Supreme Court.
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Petitioner acknowledges that not all grounds for relief were presented to the highest
state court because he “signed off [his] right to appeal [and] all other avenues [were] closed.”
Am. Pet. at 12.
Petitioner seeks “exoneration and nullification of sex offender status and full monetary
value ask for 20 million dollars net . . . and the return of [petitioner’s] property that [was] taken
by Warren County Court in the condition it was taken in, with no added hardware, software or
cod[]ing.” Am. Pet. at 15; see also Dkt. No. 9-1 at 3.7
IV. 	DISCUSSION
A. 	State Criminal Procedural Claims
Petitioner first argues that he is entitled to federal habeas relief because there were so
many mistakes that occurred with his state court criminal prosecution including a defective
grand jury hearing, the wrongful deprivation of a preliminary hearing, and an unlawful
indictment. Am. Pet. at 5, 7, 10; see also Dkt. No. 9-1 at 1-2; Dkt. No. 17 at 1-2. Respondent
contends that petitioner’s claims are plainly meritless because they fail to state federal claims
and they are unexhausted and procedurally defaulted. Dkt. No. 33-1 at 15-23. Petitioner
asserts that any claims of default should be excused since he is actually innocent of the
crime for which he has been convicted. Dkt. No. 14 at 1; Dkt. No. 17 at 1.8
When an individual makes the choice to plead guilty to the charges lodged against
7 Petitioner seeks various forms of relief in his amended pleading, including release from custody as well as monetary
damages. “The traditional function of the writ [of habeas corpus] is to secure release from illegal custody[.]” Yearwood v.
Barr, 391 F. Supp. 3d 255, 260 (S.D.N.Y. 2019) (internal quotation marks and citations omitted). Ultimately, “[t]he
mismatch between the relief that the petitioner seeks and the harm he alleges makes a petition for a writ of habeas
corpus an improper vehicle for his [request for damages].” Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 494 (1973)
(explaining that “the traditional purpose of habeas corpus” is to seek “immediate or more speedy release” from custody
and that “habeas corpus is not an appropriate or available federal remedy” for damages claims)).
8 Respondent also argues that Petitioner’s claims are unexhausted and procedurally defaulted. Dkt. No. 33-1 at 20-23.
Because the Court has found the claims barred by Petitioner’s knowing and voluntary guilty plea, it need not consider
other alternative theories for denying and dismissing them.
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them, said plea “also serves as a stipulation that no proof by the prosecution need b[e]
advanced. It supplies both evidence and verdict, ending the controversy.” Boykin v.
Alabama, 395 U.S. 238, 242 n.4 (1969) (internal modifications and citations omitted). In sum,
that “plea of guilty is more than a confession which admits that the accused did various acts;
it is itself a conviction; nothing remains but to give judgment and determine punishment.” Id.
at 242. Consequently, “a petitioner who pleaded guilty in their underlying state proceeding
‘may not thereafter raise independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.’” Washington v. Bell, No. 1:20-CV-0718,
2024 WL 2137727, at *4 (S.D.N.Y. May 13, 2024), report and rec. adopted by, 2024 WL
2945622 (S.D.N.Y. June 10, 2024) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973));
see also United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003) ("It is well settled that a
defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional
defects in the prior proceedings.").
Said another way, “[w]hen a petitioner has pleaded guilty to an offense in state court,
the general rule is that the petitioner may only attack the voluntary and intelligent character of
a guilty plea.” Washington, 2024 WL 2137727, at *4 (internal quotation marks and citations
omitted); see also United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (explaining that
where a petitioner provides a counseled guilty plea, "the issue is not the merits of
[petitioner's] independent claims . . . but rather whether the guilty plea had been made
intelligently and voluntarily with the advice of competent counsel.") (internal quotation marks
and citations omitted).
Here, Petitioner pleaded guilty yet does not overtly challenge the validity of that plea.
However, any such challenge would be denied as meritless. In evaluating whether a plea
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was knowing and voluntary, a court may consider, "among other things, [petitioner's]
allocution statements." Carpenter v. Unger, 9:10-CV-1240 (GTS/TWD); 9:12-CV-0957
(GTS/TWD), 2014 WL 4105398, at *19 (N.D.N.Y. Aug. 20, 2014) (citing United States v.
Torres, 129 F.3d 710, 715 (2d Cir. 1997)).
[T]he representations of the [petitioner], his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the
judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings. Solemn declarations in open
court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in the face
of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also Padilla v. Keane, 331 F. Supp. 2d
209, 217 (S.D.N.Y. Aug. 19, 2004) ("Where . . . [petitioner] . . . has explicitly stated in his
allocution that he fully understands the consequences of his plea and that he has chosen to
plead guilty after a thorough consultation with his attorney, a district court on habeas review
may rely on [petitioner's] sworn statements and hold him to them.").
Petitioner’s own words belie any subsequent arguments that his plea was unknowing
or involuntary. First, the court confirmed petitioner’s level of education and that he neither
had any underlying medical or mental condition nor taken any substance, prescription or
otherwise, that would cloud his judgment and ability to understand the proceedings. SCR at
65-66. Second, the court established that petitioner was satisfied with his representation and
had adequate time to discuss the strengths and weaknesses of his case, as well as
repeatedly confirming that counsel had made petitioner aware of the consequences of the
various waivers that needed to be signed during the course of the plea hearing. SCR at 66,
68, 70-71, 73-75. Third, the court went through, in great detail, the myriad of rights that
petitioner would be forfeiting by entering a guilty plea and petitioner specifically
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acknowledged those rights and their waiver. SCR at 66-68. Fourth, the court explained what
types of claims would specifically survive petitioner’s waiver of his right to appeal, and
petitioner again confirmed his understanding based upon both the discussion with the court
and his prior discussions with his attorney. SCR at 72-75.
Petitioner then engaged with the court, in a colloquy, in which he identified the material
facts underlying the first count in the indictment prior to pleading guilty to it. SCR at 76-80.
These statements demonstrate not only that Petitioner fully understood the consequences of
his plea, but also that he was actually guilty of committing the acts for which he was accused.
Petitioner’s guilt was further supported by his statement during his sentencing that he “pled
guilty to these crimes because [he was] guilty[ and that he feels] appalled every day by the
actions [he has] committed.” SCR at 100.
Petitioner argues that his statement at sentencing was encouraged by his counsel,
and that he only made the statement to sound like he was taking responsibility in hopes the
judge would show greater leniency in his sentencing decision. Dkt. No. 9-1 at 1. However,
petitioner’s conclusory argument is contradicted by the rest of the state court record.
Petitioner’s allocution and sentencing admissions are consistent with the discovery provided
to petitioner and his counsel, which was presumably the information upon which petitioner
and his counsel determined the strengths and weaknesses of the prosecution’s case against
him. SCR at 70. Specifically, the grand jury testimony from, and the statement given to law
enforcement by, the child victim also supported petitioner’s admission that he had the child
victim grab his penis with her hands for his sexual gratification on multiple occasions, SCR at
76-79. In her testimony and statement, the child victim outlined years of abuse which
followed the same progression, beginning with her manually stimulating petitioner’s penis –
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as petitioner admitted – after watching pornography, and escalating to oral sex along with
vaginal and anal penetration, SCR at 169, 202, 187-89, 220-222; Dkt. No. 9-1 at 19-34.
Further, at least some of this abuse was witnessed by the victim’s sister, which was why the
abuse was initially reported. SCR at 94, 169, 188, 202, 221. Finally, petitioner’s statement to
law enforcement, that he was concerned his sperm might be found on the child victim, SCR
at 169, 202, was consistent with the child victim’s report that petitioner had vaginally
penetrated her on the morning her sister initially reported the abuse at school, SCR at 188,
221.
In sum, Petitioner's knowing, intelligent, and voluntary guilty plea effectively waived all
claims relating to events prior to entry of the plea. See United States v. Coffin, 76 F.3d 494,
497-98 (2d Cir. 1996) (“A defendant who pleads guilty unconditionally while represented by
counsel may not assert independent claims relating to events occurring prior to the entry of
the guilty plea.”); see also Morris v. Smith, No. 9:13-CV-1441 (GLS/RFT), 2015 WL
13745077, at *5 (N.D.N.Y. July 29, 2015), report and recommendation adopted, 2016 WL
4532160 (N.D.N.Y. Aug. 30, 2016). Thus, petitioner cannot advance claims about the
alleged deficiencies in his state court criminal prosecution which preceded his plea.
Even if these state criminal procedure claims were not precluded by petitioner’s guilty
plea, they would still fail. Any specific challenges about petitioner’s grand jury proceeding are
unreviewable because courts in this district have consistently held that a “petitioner’s
challenge of [a] grand jury proceeding is not cognizable in a habeas corpus proceeding in
federal court.” Shepard v. Rich, No. 9:23-CV-0897 (TJM/MJK), 2024 WL 5358399, at *9
(N.D.N.Y. Sept. 12, 2024) (citing Davis v. Mantello, 42 F. App’x 488, 490 (2d Cir. 2002)
(“Claims of deficiencies in state grand jury proceedings are not cognizable in a habeas
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corpus proceeding in federal court.”) (citing cases); see also Hirsh v. McArdle, 74 F. Supp. 3d
525, 533 (N.D.N.Y. 2015) (same) (citing cases). “Moreover, it is well established that
[petitioners] have no constitutional right to appear before a grand jury . . . Accordingly, [there
is also] no right under federal law to testify before [a] grand jury that indicted [a petitioner].”
Webb v. LaClair, No. 1:10-CV-7603, 2014 WL 4953559, at *6 (S.D.N.Y. Sept. 30, 2014)
(internal quotation marks and citation omitted). This is because while “[i]n New York, a grand
jury indictment arises from the State Constitution and other state laws . . . federal habeas
relief may not be granted for violations of state law,” and “[t]here is no [separate] federal
constitutional right to a grand jury proceeding in a state criminal proceeding.” Shepard, 2024
WL 5358399, at *9 (citations omitted).
Finally, “[e]ven assuming . . . that [p]etitioner was denied a preliminary hearing, he is
not entitled to habeas relief on this basis because there is no federal constitutional right to a
preliminary hearing.” Kennedy v. LaClaire, No. 1:12-CV-0655, 2014 WL 297341, at *7
(W.D.N.Y. Jan. 27, 2014) (internal quotation marks omitted) (citing cases). Accordingly,
petitioner’s state criminal procedure claims are denied.
B. 	Return of Property Seized Pursuant to the Search Warrants
Petitioner next argues that his Due Process rights were violated when the court
refused to return his property that the police seized pursuant to search warrants during their
investigation of his crimes. Am. Pet at 7, 15; Dkt. No. 9-1 at 3.
However, a federal habeas proceeding is not the proper forum in
which to request the return of property seized in connection with a
state court conviction. This Court may review claims for habeas
relief only on the ground that a petitioner’s conviction violated the
Constitution, laws, or treaties of the United States. 28 U.S.C. §
2254(a). Accordingly, [p]etitioner’s request is improperly raised in
this proceeding.
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Akassy v. Kirkpatrick, No. 1:16-CV-7201, 2019 WL 125947, at *2 (S.D.N.Y. Jan. 8, 2019).
C. 	Ineffective Assistance of Counsel
Petitioner argues that his representation was constitutionally ineffective because his
attorney had “very little contact with [petitioner] while working on [his] case [and] gave little to
no guidance [to petitioner] other than ‘This is a good deal.’” Am. Pet. at 8; see also Dkt. No.
9-1 at 1 (sharing that his counsel’s primary advice was to take the plea deal because if he did
not, he would “be wasting [the attorney’s] and the ADA’s time.”); Dkt. No. 9-1 at 2 (concluding
a competent counsel would not have recommended that petitioner “take the plea right away”).
Petitioner contends his counsel “was only concerned about the grand jury minutes and not
about any of the discovery[.]” Am. Pet. at 8. Petitioner also complains that his conversations
with his attorney were unlawfully recorded because his counsel did not want to set up legal
calls. Am. Pet. at 8. Respondent argues that the claim is unexhausted and plainly meritless.
Dkt. No. 33-1 at 24-27. Petitioner asserts that any claims of default should be excused since
he is actually innocent of the crime for which he has been convicted. Dkt. No. 14 at 1; Dkt.
No. 17 at 1.
Respondent begins with a discussion outlining the discrepancies between the facts
and arguments petitioner used to support his ineffective assistance of counsel claim in his
440 motion and his amended pleading and how this discrepancy impacts exhaustion. Dkt.
No. 33-1 at 24-25. Petitioner continues to rely on his claims of actual innocence to excuse
any issues with exhaustion. Dkt. No. 14 at 1; Dkt. No. 17 at 1. “[P]otentially complex and
difficult issues about [exhaustion and] the various obstacles to reaching the merits should not
be allowed to obscure the fact that the underlying claim[ is] totally without merit.” Quinney v.
Conway, 784 F. Supp. 2d 247, 260 (W.D.N.Y. 2011 (citing cases). Therefore, while the
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parties dispute whether the claims have been properly exhausted and if that prerequisite
should be excused, the Court will not further discuss those arguments because, as it will
explain, Petitioner’s claim is completely meritless.
To demonstrate constitutionally ineffective assistance of counsel, a petitioner must
show that counsel's performance fell below an objective standard of professional
reasonableness; but for counsel's alleged errors, the result of the proceedings would have
been different; and, as a result, petitioner suffered prejudice. Premo v. Moore, 562 U.S. 115,
121-22 (2011); Strickland v. Washington, 466 U.S. 668, 694 (1984). The Strickland test
applies "to challenges to guilty pleas based on ineffective assistance of counsel." Lafler v.
Cooper, 566 U.S. 156, 162-63 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). To
establish prejudice in this instance, petitioner "must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59.
Here, Petitioner has failed to meet that standard. Petitioner has provided no grounds
nor cited to any facts that would cast doubt on the knowing, intelligent, and voluntary nature
of his plea. The only information petitioner put forth about the advice he received was that he
should take the plea and doing otherwise would waste the time of everyone involved. While
this may not have been the advice that petitioner wished to hear, it was neither unreasonable
nor incompetent given the amount of evidence that pointed to petitioner’s guilt. Counsel
shared all the discovery with petitioner, and some of the most inculpatory evidence was that
which petitioner included as exhibits to his own pleading and affirmation. Accordingly, the
petitioner was aware of the evidence against him and the risk that the victim’s testimony,
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bolstered by her sister’s observations and disclosure and his own statements to law
enforcement, would result in his conviction on multiple counts of the indictment.
Additionally, petitioner’s complaints about his calls being recorded are also conclusory
and do not indicate if or how his ability to communicate with his counsel was impaired.
Further, petitioner’s claim that his counsel was unduly focused on the grand jury testimony
also does not show any deficient performance by his counsel. In fact, it shows that his
attorney was contemplating the evidence before them and assessing the strengths and the
weaknesses of the prosecution’s case. “[H]abeas courts [must] consider whether a
[petitioner] has provided any new evidence to suggest that he would in fact have acted
differently but for his attorney’s flawed advice.” Scott v. Superintendent, Mis-Orange Corr.
Fac., No. 03-CV-6383, 2006 WL 3095760, at *9 (E.D.N.Y. Oct. 31, 2006). Petitioner fails to
make such a showing, and the record before the Court precludes it from reaching any such
conclusion.
In fact, Petitioner has done the converse by “explicitly stat[ing] in his allocution that he
fully under[stood] the consequences of his plea and that he has chosen to plead guilty after a
thorough consultation with his attorney.” Scott, 2006 WL 3095760, at *9; see also Hill v.
West, 599 F. Supp. 2d 371, 392 (W.D.N.Y. 2009) (concluding that petitioner’s plea was
“knowing and voluntary” and petitioner’s “attacks on [his] trial counsel [lacked substance]”
where “the record establishe[d] that [petitioner] readily admitted to his culpability,” for the
criminal conduct and “[t]he trial court made certain to obtain confirmation that [petitioner] had
consulted with his attorney . . . and was fully satisfied with counsel’s performance[.]”); Garner
v. Lee, 908 F.3d 845, 867 (2d Cir. 2018) (holding “that solemn declarations in open court
carry a strong presumption of verity and that the subsequent presentation of conclusory
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allegations unsupported by specifics is often subject to summary dismissal.”) (original
modifications, quotation marks, and citations omitted). In sum, the “failure to allege that
correct advice from [trial] counsel would have altered the [Petitioner’s] decision is fatal to [his]
ineffective assistance claim to the extent that the claim relates to [Petitioner’s] decision to
plead guilty.” Smith v. Burge, No. 1:03-CV-8648, 2005 WL 78583, at *12 (S.D.N.Y. Jan. 12,
2006) (citations omitted).
V. 	CONCLUSION
WHEREFORE, it is
ORDERED that the Amended Petition, Dkt. No. 9, be DENIED and DISMISSED in its
entirety; and it is further
ORDERED that no Certificate of Appealability ("COA") shall issue because Petitioner
has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C.
§ 2253(c)(2) requires;9 and it is further
ORDERED that any further request for a Certificate of Appealability must be
addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk of the Court respectfully provide Petitioner with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Order upon the parties in
accordance with the Local Rules.
9 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (holding that if
the court denies a habeas petition on procedural grounds, "the certificate of appealability must show that jurists of reason
would find debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant
has established a valid constitutional violation" (emphasis in original)).
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IT IS SO ORDERED.
Dated: April 13, 2026
Utica, New York
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