Pignataro v. Poole

09-1396-pr
Pignataro v. Poole
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULING S BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUM M AR Y O RD ER FILED O N O R A FTER
J A N UA RY 1, 2007, IS PER M ITTED A ND IS G O VER NED BY F EDERAL R ULE OF A PPELLATE P RO CEDU RE 32.1 A N D TH IS C O U R T ’ S
L OC AL R ULE 32.1.1. W HEN CITING A SUM M AR Y OR DER IN A D OC UM ENT FILED W ITH TH IS C O U R T , A PARTY M UST CITE
EITH ER THE F EDERAL A PPENDIX O R A N ELECTRONIC D ATAB ASE ( W ITH TH E N O TA TIO N “ SUM M AR Y O RD ER ”). A PARTY
CITING A SUM M AR Y O RD ER M UST SERVE A C OPY O F IT ON A NY PARTY N OT REPRESENTED BY CO UN SEL .
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick
Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 18 th day of June , two thousand ten.
PRESENT:
RALPH K. W INTER,
PETER W. HALL,
Circuit Judges,
M IRIAM GOLDM AN CEDARBAUM ,*
District Judge.
_______________________________________________
Anthony S. Pignataro,
Petitioner-Appellant,
v. No. 09-1396-pr
Thomas Poole,
Respondent-Appellee.
______________________________________________
For Appellant: ANTHONY S. PIGNATARO, pro se, M alone, New
York.
For Appellee: MICHAEL J. HILLERY, Assistant District Attorney
(FRANK A. SEDITA III, District Attorney, on the
brief), Erie County District Attorney’s Office, Buffalo,
New York.
Appeal from a judgment of the United States District Court for the Western District of New
York (Scott, M.J.).
*
Judge Miriam Goldman Cedarbaum, of the United States District Court for the
Southern District of New York, sitting by designation.
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UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGEDAND
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Petitioner-Appellant Anthony S. Pignataro, appeals pro se from a March 2009 judgment
of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We
previously granted a certificate of appealability with respect to whether: (1) Appellant’s plea
was involuntary because he was not informed of a mandatory term of post release supervision
(“PRS”); (2) Appellant received ineffective assistance of appellate counsel; and (3) Appellant’s
plea was involuntary because he was under the influence of psychiatric medication when
pleading guilty. We assume the parties’ familiarity with the relevant facts and procedural
history.
In an appeal from an order denying § 2254 relief, we review conclusions of law de novo
and findings of fact for clear error. See Chalmers v. Mitchell, 73 F.3d 1262, 1266 (2d Cir. 1996).
Because a § 2254 petition seeks to overturn “a presumptively valid judgment of conviction,” the
petitioner bears the burden of proof throughout the habeas proceeding. Pinkney v. Keane, 920
F.2d 1090, 1094 (2d Cir. 1990) (citing 28 U.S.C. § 2254(d)). An adequate and independent
finding of procedural default will bar federal habeas review of a constitutional claim unless the
petitioner can demonstrate: (1) cause for the default and resulting prejudice; or (2) that failure to
consider the claim will result in a fundamental miscarriage of justice. See Harris v. Reed, 489
U.S. 255, 262 (1989).
Appellant contends that his appellate counsel was constitutionally ineffective for failing
to perfect Appellant’s direct appeal and that the ineffective assistance of appellate counsel
provided cause and prejudice for his procedural default. To prevail on a claim of ineffective
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assistance of counsel, a petitioner must demonstrate that: (1) counsel’s representation fell below
an objective standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 694 (1984). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. See id. at 694. The Strickland test is also used for claims
of ineffective assistance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.
1994). To demonstrate prejudice in the context of appellate counsel’s ineffective assistance,
petitioner must show that “there was a reasonable probability that [his] claim would have been
successful before the [state’s highest court].” Id. at 534 (internal quotation and citation omitted).
Appellate counsel is not required to raise every nonfrivolous argument on appeal, but a petitioner
can demonstrate appellate counsel’s ineffectiveness by showing that appellate counsel “omitted
significant and obvious issues while pursuing issues that were clearly and significantly weaker.”
Id. at 533.
Appellant argues that the attorney who represented him on direct appeal should have
argued, before the Appellate Division, that his guilty plea should be set aside because neither the
trial court nor his trial counsel advised him that his conviction carried with it a mandatory five-
year term of PRS. Concluding, for the reasons that follow, that Appellant cannot demonstrate
prejudice from any such error, we find it unnecessary to consider whether appellate counsel’s
failure fell below an objective standard of reasonableness.
The sentencing transcript and original judgment of conviction both show that Appellant
was sentenced to a determinate term of 15 years’ imprisonment. Furthermore, there was no
discussion of the PRS term during sentencing or in the judgment even though New York law
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mandates a period of PRS whenever a determinate term of imprisonment is imposed, see New
York Penal Law § 70.45, and the New York Court of Appeals has recognized that, under state
law, PRS is a direct consequence of a guilty plea, see People v. Catu, 4 N.Y. 3d 242, 245 (2005).
In order for Appellant to obtain federal habeas relief, however, he must establish that the trial
court’s failure to inform him of a PRS term was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1) (emphasis added).
The Supreme Court has held that a guilty plea must be a “voluntary and intelligent choice
among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400
U.S. 25, 31 (1970); see also Wilson v. McGinnis, 413 F.3d 196, 198-99 (2d Cir. 2005) (applying
Alford to a § 2254 petition). A guilty plea is considered voluntary and intelligent if the
defendant enters the plea with “full awareness of its ‘direct consequences.’” Wilson, 413 F.3d at
199 (quoting Brady v. United States, 397 U.S. 742, 755 (1969)). The Supreme Court has not
defined which consequences of a guilty plea are direct and which are collateral. This Court,
however, has explained that direct consequences are those that have a “definite, immediate and
largely automatic effect on the range of the defendant’s punishment.” Id. at 199 (quoting United
States v. U.S. Currency, 895 F.2d 908, 915 (2d Cir. 1990)). There can be no unreasonable
application of clearly established federal law as determined by the Supreme Court where there is
an absence of a decision on the issue by the Supreme Court. See Hines v. Miller, 318 F.3d 157,
164 (2d Cir. 2003).
Here, although § 70.45 mandated a term of PRS, PRS was not “definite, immediate, and
largely automatic” because it was subject to change. In 2006, we held that, where a PRS term
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was not imposed as a part of the sentence at the time of sentencing, that term was not a part of
the judgment, and the defendant was only subject to the written term of imprisonment. See
Earley v. Murray (“Earley I”) 451 F.3d 71, 75-76 (2d Cir. 2006) (holding that, where the trial
court did not orally impose a PRS term, later administrative imposition of a PRS term was a
violation of the § 2254 petitioner’s due process rights because the only cognizable sentence is
the one imposed by the judge); Earley v. Murray (“Earley II”), 462 F.3d 147, 149 (2d Cir. 2006)
(confirming upon rehearing that a judicially imposed sentence includes only those elements
explicitly ordered by the sentencing judge and recognizing that, although the original sentence
could arguably be “unlawful” because a trial court failed to pronounce a PRS term, nonetheless
the only sentence to which the defendant actually would be subject would be the term of
imprisonment as articulated by the trial court). Thus, Appellant’s “sentence” was comprised
only of a term of imprisonment, and the State could not administratively impose a PRS term
upon him.
Moreover, in Earley II, we specifically recognized that a PRS term could later be
modified upon resentencing by the trial court. See Earley II, 462 F.3d at 149. Subsequently, the
New York Court of Appeals held that, where a trial court failed to pronounce a PRS term, the
matter must be remitted to the trial court for resentencing. People v. Sparber, 10 N.Y.3d 457,
465 (2008). Thereafter, the New York legislature enacted a provision that authorized a trial
court to resentence a defendant who was not informed of PRS to impose the original term of
imprisonment without a PRS term, upon consent of the district attorney.1 See N.Y. Penal Law
1
The New York Court of Appeals has refused to determine whether the imposition of
the original term of imprisonment without a PRS term was sufficient to cure the deficiency of
the plea allocution during which the defendant was not informed of a PRS term, explaining
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§ 70.85 (2008). In a supplemental submission to this Court, the State has provided evidence that
this option has been invoked in this case, in the form of an amended sentence and commitment
order dated in May 2010 stating specifically that Pignataro has been sentenced to zero months of
PRS. See Hillery Aff. at Exh. A.
In light of § 70.85 and the cases cited above, as well as the fact that the trial court has
deleted the PRS term from Appellant’s sentence, PRS was not “definite,” nor was it “largely
automatic.” Wilson, 413 F.3d at 199. PRS, therefore, was not a direct consequence of
Appellant’s guilty plea. Moreover, in the absence of a Supreme Court ruling on the issue of
whether PRS (or a similar state-imposed post-imprisonment term of supervision, such as parole)
could be a direct consequence of a guilty plea, the trial court’s acceptance of Appellant’s guilty
plea was not contrary to or an unreasonable application of federal law. See 28 U.S.C.
§ 2254(d)(1); see also Hines, 318 F.3d at 164. In other words, even if appellate counsel was
deficient in failing to perfect the direct appeal, such deficiency did not prejudice Appellant, who
is in the exact position for which he bargained when entering a guilty plea. Accordingly,
Appellant is not entitled to habeas relief on his ineffective assistance of appellate counsel claim
and, for the same reasons, has not shown prejudice sufficient to excuse the procedural default as
to his PRS claim.
Finally, to the extent that Appellant claims that his plea was involuntary due to the effect
that the constitutionality of applying § 70.85 had not yet been considered by the trial court,
and, thus, the issue was not sufficiently developed for consideration by the Court of Appeals.
People v. Boyd, 12 N.Y. 3d 390, 394 (2009). Appellant has not filed an appeal from his
resentencing to raise the issue of the constitutionality of § 70.85. Additionally, as there is no
Supreme Court holding that casts doubt on the constitutionality of applying § 70.85,
application of the provision would not be a basis for habeas relief. See 28 U.S.C.
§ 2254(d)(1).
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of medication, this issue has not been exhausted in state court. The question of whether a plea of
guilty was entered voluntarily within the meaning of the Constitution is a mixed question of law
and fact. See Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir. 1986). For the plea to be voluntary,
the defendant must at least have been competent to proceed and must have been aware of the true
nature of the charge against him. Id. The defendant’s competence is a question of fact, while the
question of whether a plea was voluntary is a question of federal law. Id. at 544. A federal
habeas court need not defer to a state court’s factual determination if the record as a whole does
not fairly support the determination. Id. (reviewing state trial court’s implicit finding of
defendants’ competence).
In order to present a challenge to mental competence, Appellant must show that the
medicines “deprive[d] [him] of the ability to consult with his lawyer ‘with a reasonable degree of
rational understanding’ and to understand the proceedings against him rationally as well as
factually.” See United States v. Nichols, 56 F.3d 403, 412 (2d Cir. 1995) (quoting Dusky v.
United States, 362 U.S. 402, 402 (1960)). We have recognized that improper administration of
psychiatric medication can render an individual temporarily incompetent. United States v.
Quintieri, 306 F.3d 1217, 1233 (2d Cir. 2002). However, a review of the sentencing minutes
shows that Appellant understood the proceedings against him. First, it is notable that Appellant
was taking Elavil for insomnia. During the plea allocution, moreover, Appellant was able to
consult his attorney on multiple occasions, provided information regarding his residence and the
location of his crime, and clarified that he knew he was giving his ex-wife a dangerous substance
in order to harm her but did not know that the substance was arsenic. Appellant correctly
answered questions, and nothing in the plea transcript shows that he was confused or unable to
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understand the proceedings. Thus, Appellant has not established that his ingestion of Elavil
made him incompetent. See Nichols, 56 F.3d at 412; Matusiak, 786 F.2d at 543. Therefore,
regardless of whether appellate counsel could have raised the issue of Appellant’s competence
on appeal and thus exhausted it, Appellant suffered no prejudice because of counsel’s failure to
do so.
We have considered Appellant’s remaining arguments and find them to be without merit.
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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