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Foreman v. Garvin

United States District Court, S.D. New York
May 16, 2000
99 Civ. 9078 (GBD) (AJP) (S.D.N.Y. May. 16, 2000)

Opinion

99 Civ. 9078 (GBD) (AJP)

May 16, 2000


REPORT AND RECOMMENDATION


To the Honorable George B. Daniels, United States District Judge:

Petitioner Scott Foreman, pro se, seeks a writ of habeas corpus from his conviction, based on his guilty plea, of first degree manslaughter, and sentence of six to eighteen years imprisonment. (Pet. ¶¶ 1-5.) Foreman's present federal habeas petition raises two claims: (1) that his guilty plea was involuntary because it was unlawfully induced and did not represent an intelligent choice among alternative courses of action (Pet. ¶ 12(A); Pet. Attachment at 1-3), and (2) that his sentence is excessive in violation of Fourteenth Amendment due process (Pet. ¶ 12(B); Pet. Attachment at 4).

For the reasons discussed below, the Court should deny Foreman's petition.

FACTS

Indictment and Plea

On June 25, 1991, Foreman shot Rick Ortiz to death. (Ex. B: 2/2/93 Plea Tr. at 3.) Foreman was indicted in New York County on one count of second degree murder and one count of first degree criminal use of a firearm. (Ex. A: Indictment.) On February 2, 1993, Foreman pled guilty before Justice Dorothy Cropper in Supreme Court, New York County, to one count of first degree manslaughter in complete satisfaction of the indictment and in exchange for a negotiated sentence of six to eighteen years imprisonment. (Ex. B: 2/2/93 Plea Tr. at 1-3, 5.)

References to Exhibits are to those in the State's Appendix.

Before accepting the plea, Justice Cropper inquired whether Foreman had discussed the plea offer with his attorney, whether he wished to plead guilty, and whether he had killed Ortiz:

[DEFENSE ATTORNEY]: . . . [Y]our Honor, at this time, the defendant, Scott Foreman, is desirous of withdrawing his previously entered plea of not guilty and is desirous of pleading guilty to manslaughter one, pursuant to the sidebar conference.
THE COURT: All right. Mr. Foreman, it is my understanding, first of all, that you have spoken with your attorney about the plea offer that he has just made, your attorney, Mr. Benefante?

[FOREMAN]: Yes, your Honor.

THE COURT: And is it your wish to withdraw your plea of not guilty and do you want to plead guilty at this time to the class B felony of manslaughter in the first degree, under the first count of this indictment, to cover the indictment, is that what you want to do?

[FOREMAN]: Yes, your Honor.

THE COURT: Is it a fact that on or about June 25th of 1991 that with the intent to cause the death of one Rick Ortiz, you did, in fact, cause his death by shooting him, is that what happened?

[FOREMAN]: Yes, your Honor.

(Id. at 2-3.)

Justice Cropper advised Foreman that if he pled guilty, he waived the right to a jury trial where he could raise an affirmative defense of justification:

THE COURT: Now, Mr. Foreman, you have the right to have a jury trial on the issues of this case and if you plead guilty you give that up. Do you understand that?

[FOREMAN]: Yes, your Honor.

THE COURT: You also have the right to raise the defense of justification in such a trial. If you were to choose to have it. In pleading guilty, you give that right up. Do you understand that?

[FOREMAN]: Yes, your Honor.

THE COURT: You know that you have the right to call witnesses in your own behalf and cross examine any witnesses produced against you and if you plead guilty, you give those rights up. Do you understand that?

[FOREMAN]: Yes, your Honor.

(Id. at 3-4, emphasis added.)

Justice Cropper also inquired whether Foreman had been coerced into pleading guilty, and indicated the sentence she would impose upon Foreman if he did plead guilty:

THE COURT: [Have] any threats been made against you in order to make you plead guilty?

[FOREMAN]: No, ma'am.

* * * *

THE COURT: [Have] any promises been made to you, other than the fact that after a conference with your attorney and the District Attorney, I have indicated that I would impose a sentence as recommended by the People and concurred to by your attorney, of a minimum of six and a maximum of eighteen years in a State's correctional institution? Beyond that promise, [were] any promises made in order to make you plead guilty to this case?

[FOREMAN]: I understand, your Honor, no.

(Id. at 5.) Justice Cropper then accepted Foreman's guilty plea to first degree manslaughter. (Id. at 5-6.) At Foreman's request, defense counsel advised the judge that the shooting was the result of several years of extortion by the victim:

[DEFENSE COUNSEL]: Your Honor, just Mr. Foreman would like, because this may follow him where he may go in the correctional facilities, the fact that the shooting was the product of over two and a half years of extortion and —

THE COURT: You go put that on at sentencing.

(Id. at 6, emphasis added.)

Foreman's Pre-Sentence Submission and His Sentencing

Foreman submitted a pro se pre-sentence letter to Justice Cropper. (Ex. C: 3/5/93 Foreman Pre-Sentence Letter.) Foreman described the periods of torture, threats and extortion by Ortiz, as well as Foreman's fear that if he went to the police, Ortiz would harm Foreman and his loved ones. (Id. at 1-2, 5-6.) Foreman claimed that he "felt very strongly about [his] right to trial but was deterred from exercising them" because of the weapons charge. (Id. at 4.) He explained:

I felt I was unfairly charged with Criminal Use of a Firearm in the First Degree (PL 265.09) which carries a maximum of 12 1/2 to 25 years for a first offender or second offender, whereas many, if not most of all defendants charged with using a gun in the commission of Murder in the second degree or any violent and unarmed B felony are only subject to a maximum of 8 1/3 to 25 years upon a conviction of Manslaughter in the First Degree as a lesser included offense of Murder in the second degree, because they have a different weapons count in their indictment — that being Criminal Possession of a Weapon in the Second Degree (PL 265.03).
I would have never entered, nor even considered to take a plea had I . . . been charged under the more favorable weapons charge, Criminal Possession in the Second Degree (PL 265.03), for I felt that under the circumstances that would have been evinced at trial, the jury would have acquitted me or in the alternative found me guilty of a lesser included offense wherein I would have rejected a 6 to 18 offer in the hopes that Her Honor would have felt I was deserving of a lesser sentence due to the extenuating circumstances of this case.

(Id. at 4-5, emphasis added.) Foreman, however, did not seek to withdraw his plea; rather, he sought "a lesser sentence" than that agreed to in court on February 2, 1993 when he had pled guilty. (Id. at 5.)

At sentencing, Foreman told the court that he regretted what he had done but was "forced into" it because of Ortiz's kidnapping, extortion and abuse of Foreman. (Ex. D: 3/16/93 Sentence Tr. at 3.) Foreman asked Justice Cropper to "reduce the sentence to be imposed . . . on the basis of . . . the horrors [he] suffered and the extraordinary degree of provocation by the decedent over so many years; [and] that [he has] no prior criminal record." (Id. at 4-5.)

Justice Cropper sentenced Foreman to "the negotiated sentence of a minimum term of six to a maximum term of eighteen years" imprisonment. (Id. at 6.)

Foreman's Direct Appeal

Represented by new counsel, Foreman's sole contention on direct appeal was that his sentence was excessive and should be reduced in the interest of justice. (Ex. E: Foreman 11/9/94 1st Dep't Br. at 7-21; Ex. G: Foreman 2/6/95 1st Dep't Reply Br. at 1-12.) Foreman's appeal relied on his lack of a record and the abuse he had suffered at Ortiz's hand. For example, his counsel argued that:

The Appellate Division has consistently acknowledged that where manslaughter defendants are seen to have acted under extreme provocation by their eventual victims (causing such defendants to reasonably fear for their own safety) and emotional stress, such provocation militates in favor of a less severe sentence . . ., even where such provocation may not have constituted an absolute defense.

(Ex. E: Foreman 11/9/94 1st Dep't Br. at 8.) As another factor calling for a sentence reduction, Foreman's counsel pointed to how the weapons use charge, as opposed to the more usual weapons possession charge, increased Foreman's risk in going to trial and influenced his plea decision; counsel, however, made clear that Foreman was not raising an equal protection challenge. (Id. at 17-18.) Foreman's counsel explained:

[Foreman's] plea was influenced in no small part by the fact that the indictment charged not only second degree murder, but also criminal use of a firearm in the first degree. The significance of the latter charge is that had Appellant [Foreman] chosen to go to trial, even if he succeeded in demonstrating that his victim's 3-year terror campaign mandated a reduction of the principal charge from murder to manslaughter, he would have faced an increased potential sentencing for an armed violent felony. Hence, Appellant was forced to negotiate from a position of facing a potential minimum term of 12 1/2 years for manslaughter, rather than the usual 8 1/3 years, per Penal Law 265.09.
Numerous defendants for second-degree murder, charged with essentially the same act as that charged to Appellant, have received lesser accompanying weapons charges, usually criminal possession in the second degree, which does not similarly increase the defendant's exposure in the event of a manslaughter finding. . . . Hence, this Appellant received less favorable treatment than other defendants who were similarly situated.
Appellant declines to challenge such situation herein on Equal Protection grounds, although such argument would be colorable at the very least. Rather, Appellant simply calls the Court's attention to such situation as a perfect illustration of the Suitte dictum, for his "acceptance" of a sentence of 6-18 years was predicated on his knowledge that a jury's finding of manslaughter could bring him up to 12 1/2 years, not 8 1/3. In other words, "the bargaining leverages of the respective parties" were indeed "more important in fixing the . . . limits of the sentence to be imposed than matters of guilt, fault, character, [and] mitigative circumstances."

(Id., emphasis added.)

The State responded that Foreman received exactly the sentence he bargained for (Ex. F: State 1st Dep't Br. at 6), and that his provocation claim already had been incorporated into the plea negotiations in allowing Foreman to plead to manslaughter as opposed to second degree murder carrying a minimum sentence of fifteen years to life. (Id. at 7-9.) As to Foreman's claim that the "'climate' in which he negotiated his plea was 'less than fair,'" the State responded that Foreman "does not dispute that his plea was knowing and voluntary. Nor could he . . ." (Id. at 13.)

The State noted that eyewitnesses had identified Foreman as the person who shot Ortiz twice in the head. (Id. at 1-2, 7, 10-11.)

On April 11, 1995, the First Department affirmed Foreman's conviction without opinion. People v. Foreman, 214 A.D.2d 1056, 625 N.Y.S.2d 783 (1st Dep't 1995).

On May 10, 1995, Foreman filed a pro se reconsideration motion raising two claims: (1) that he was "forced into the plea" because his indictment contained "a higher level gun charge" than the indictments of "numerous, if not most other defendants similarly situated" (Ex. I: Foreman 5/10/95 1st Dep't Reconsideration Br. at 5), and (2) his sentence was "excessive and harsh in comparison [to that of] defendants similarly situated" (id. at 4), both in violation of his constitutional due process and equal protection rights (id. at 6-7). Foreman specifically pointed out that his arguments are "not precisely the same argument made [by counsel] in Appellant's [original appeal] brief." (Id. at 10.)

On August 10, 1995, the First Department denied Foreman's reconsideration motion without opinion. (Ex. K: 8/10/95 1st Dep't Order.)

On September 7, 1995, Foreman sought leave to appeal to the New York Court of Appeals, arguing that "the weapons count [he] was charged under was for a higher grade than that usually applied in cases where the offense and circumstances are the same" as his case. (Ex. N: Foreman 9/7/95 Letter to Ct. App. at 2.) The existence of both weapons possession and weapons use crimes result, according to Foreman, in "an abuse of discretion by the DA at the indictment stage which created the unfairness of bargaining leverage" and an "unfair plea bargain." (Ex. P: Foreman 10/5/95 Ct. App. Br. at 10.)

On December 14, 1995, the Court of Appeals denied leave to appeal from the First Department's affirmance of Foreman's conviction. People v. Foreman, 87 N.Y.2d 901, 641 N.Y.S.2d 231 (1995); see also Ex. T. The Court of Appeals denied leave to appeal from the First Department's denial of Foreman's reconsideration motion on December 28, 1995. (Ex. U: 12/28/95 Ct. App. Order.)

Foreman's Coram Nobis Application to the First Department

On November 20, 1996, Foreman filed an application for a writ of error coram nobis in the First Department, alleging ineffective assistance of appellate counsel. (Ex. W: Foreman 11/20/96 Coram Nobis Papers.) On July 10, 1997, the First Department denied the application without opinion. (Ex. Z: 7/10/97 1st Dep't Order.)

Foreman's Federal Habeas Corpus Petitions

This is Foreman's second federal habeas corpus petition.

Foreman's first federal habeas petition was filed in this Court under docket number 97 Civ. 6902; it was dated July 31, 1997 and was received by the Court's Pro Se Office on August 18, 1997. (97 Civ. 6902, Dkt. No. 2: Pet. at 2, 7.) On October 20, 1998, Magistrate Judge Pitman issued a Report and Recommendation to dismiss Foreman's petition without prejudice because it contained unexhausted claims. (97 Civ. 6902, Dkt. No. 24:10/20/98 RR.) On January 26, 1999, Judge Rakoff adopted the Report and Recommendation and dismissed Foreman's petition without prejudice. (97 Civ. 6902, Dkt. Nos. 27 28:1/26/99 Order 1/28/99 Judgment.)

Foreman's accompanying in forma pauperis application, however, also was received by the Pro Se Office on August 18, 1997, but was dated August 14, 1997. (97 Civ. 6902, Dkt. No. 1.) The Court therefore assumes that Foreman's first petition was mailed on August 14, 1997.

On February 25, 1999, Foreman moved for reconsideration, which Judge Rakoff denied as untimely on March 4, 1999. (97 Civ. 6902, Dkt. Nos. 29-30.)

Foreman's present federal habeas petition is dated May 12, 1999 and was received by the Court's Pro Se Office on May 20, 1999. (Pet. at 2, Aff. of Service.) Foreman's present petition raises two claims: (1) that his guilty plea was involuntary because it was unlawfully induced and did not represent an intelligent choice among alternative courses of action (Pet. ¶ 12(A); Pet. Attachment at 1-3), and (2) that his sentence is excessive in violation of Fourteenth Amendment due process (Pet. ¶ 12(B); Pet. Attachment at 4). Both claims arise from Foreman's allegation that he was improperly charged in the indictment with first degree criminal weapons use, as opposed to merely criminal weapons possession.

ANALYSIS

I. FOREMAN'S PETITION IS TIMELY

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

. . . .

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1)-(2).

Here, Foreman's conviction became final before the April 24, 1996 AEDPA effective date, i.e., ninety days after the New York Court of Appeals' December 14, 1995 denial of leave to appeal, "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired." Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); see, e.g., Forman v. Artuz, 99 Civ. 9046, 2000 WL 378056 at *3 (S.D.N.Y. April 11, 2000) (Peck, M.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *2 (S.D.N.Y. March 9, 2000) (Sprizzo, D.J. Peck, M.J.).

See also, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 359 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) (citing cases); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *2 (S.D.N Y July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. April 29, 1999) (Peck, M.J.), rep. rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.); Torres v. Irvin, 33 F. Supp.2d 257, 271 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.). Exclusion of the ninety-day certiorari period would not change the analysis or result in this case.

Thus, absent any toll, Foreman would have had to bring his habeas petition within one year after the April 24, 1996 enactment of the AEDPA, i.e., by April 24, 1997. See, e.g., Ross v. Artuz, 150 F.3d at 102-03.

The Second Circuit recently confirmed the view, previously taken by this Court and other district courts, that the Ross period of one year after the AEDPA's enactment is subject to tolling from the pendency of state collateral proceedings. Bennett v. Artuz, 199 F.3d 116, 118-20 (2d Cir. 1999), cert. granted, 120 S.Ct. 1669 (April 17, 2000).

See, e.g., Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 nn. 3-4 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.), cases cited therein.

The Second Circuit also recently confirmed that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Forman v. Artuz, 2000 WL 378056 at *3; Martinez v. Stinson, 2000 WL 309980 at *3; Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Varsos v. Portuondo, 1999 WL 558147 at *3; DeVeaux v. Schriver, 1999 WL 1216298 at *4. "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases); accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Forman v. Artuz, 2000 WL 378056 at *3.

Foreman brought his state coram nobis application on November 20, 1996 (see page 9 above), before expiration of the one-year period for bringing his federal habeas petition. Thus, he obtained a toll from November 20, 1996 until the First Department's decision on July 10, 1997, a toll of 232 days.

The Second Circuit also has confirmed that an earlier-filed federal habeas corpus petition tolls the AEDPA's one-year statute of limitations. Walker v. Artuz, 208 F.3d 357, 359-61 (2d Cir. 2000).

Here, Foreman filed his prior federal habeas petition on or about August 14, 1997 and it was dismissed without prejudice on January 28, 1999 (see page 9 above), entitling Foreman to a toll for that period.

Thus, from April 24, 1996 until November 20, 1996, 210 days of the one-year limitations period had run; Foreman's state coram nobis application entitled him to a toll from November 20, 1996 until the First Department's decision July 10, 1997; from July 10, 1997 until the August 14, 1997 filing of his prior habeas petition, another 35 days of the one-year period had run; Foreman then was entitled to a toll from the filing of his prior federal habeas petition on August 14, 1997 until its dismissal on January 28, 1999; the AEDPA limitation period then started running again from January 28, 1999 until the May 12, 1999 date of his current petition, an additional 104 days. Thus, a total of only 349 non-tolled days had passed when Foreman filed his current federal habeas petition. Since that is less than 365 days, Foreman's current habeas petition is timely.

Another and perhaps simpler calculation is as follows: the period from April 24, 1996 until May 12, 1999 is 1113 days, but is reduced by a toll of 232 days from the pendency of the state coram nobis application and an additional 532 days from the pendency of Foreman's first federal habeas petition, for a total of 349 untolled days from April 24, 1996 until the filing of Foreman's current federal habeas petition.

II. FOREMAN'S INVOLUNTARY GUILTY PLEA CLAIM IS WITHOUT INVOLUNTARY GUILTY PLEA CLAIM IS WITHOUT MERIT

The State contends that Foreman's first habeas ground — that his guilty plea was involuntary (Pet. ¶ 12(A)) — was not properly exhausted in State court and thus is barred from federal habeas review. (State Br. at 4-6.)

Section 2254 codifies the exhaustion requirement, providing that "an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948 . . . in 28 U.S.C. § 2254."); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Thomas v. Greiner, 97 Civ. 2958, 2000 WL 194677 at *2 n. 2 (S.D.N.Y. Feb. 17, 2000) (Peck, M.J.) ( cases cited therein).

See also, e.g., Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *8 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Bond v. Walker, 68 F. Supp.2d 287, 293 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 150 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. Peck, M.J.); Howard v. Lacy, 58 F. Supp.2d 157, 162 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 610 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 420 (S.D.N Y 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.); Gibriano v. Attorney General, 965 F. Supp. 489, 491 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.).

As the Supreme Court has made clear, "the exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732; Thomas v. Greiner, 2000 WL 194677 at *3 ( cases cited therein).

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

"First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim."

Thomas v. Greiner, 2000 WL 194677 at *3 (quoting Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981))).

Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845-48, 119 S.Ct. at 1732-34; Cruz v. Greiner, 1999 WL 1043961 at *20; Marcelin v. Garvin, 1999 WL 977221 at *8; Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360-61 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Bond v. Walker, 68 F. Supp.2d at 293; Avincola v. Stinson, 60 F. Supp.2d at 150; Jordan v. LeFevre, 22 F. Supp.2d at 266; Walker v. Miller, 959 F. Supp. 638, 641 (S.D.N.Y. 1997) (McKenna, D.J. Peck, M.J.); Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).

"Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had." Daye v. Attorney General, 696 F.2d at 191 n. 3; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845-48, 119 S.Ct. at 1732-34; Bossett v. Walker, 41 F.3d at 828 ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'"); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition"); Pesina v. Johnson, 913 F.2d at 54 ("We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition.") (citing Daye); Thomas v. Greiner, 2000 WL 194677 at *3; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Howard v. Lacy, 58 F. Supp.2d at 162; Jordan v. LeFevre, 22 F. Supp.2d at 261.

In New York, claims about the voluntariness of a guilty plea must be presented to the state court in one of three ways: a motion to withdraw the plea before sentencing, a post-judgment CPL § 440.10 motion in the trial court, or on direct appeal if the record permits. See, e.g., N.Y. CPL § 220.60(3); People v. Lopez, 71 N.Y.2d 662, 665-66, 529 N.Y.S.2d 465, 466 (1988) ("[w]e have held that in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10. . . . The failure to make the appropriate motion denies the trial court the opportunity to address the perceived error and to take corrective measures, if needed. . . . [However, in appropriate cases,] the defendant may challenge the sufficiency of the allocation on direct appeal. . . ."); see also, e.g., Heron v. People, 98 Civ. 7941, 1999 WL 1125059 at *4 (S.D.N.Y. Dec. 8, 1999) (since claim that state would not allow petitioner to withdraw his guilty plea was not "raise[d] on direct appeal nor in his CPL § 440.10 motion, this claim is not yet exhausted"); Warren v. McClellan, 942 F. Supp. 168, 170 (S.D.N.Y. 1996) (involuntary guilty plea habeas claim dismissed where not exhausted in state trial court, despite allegation that plea was coerced by the threat of an erroneously harsh sentence if defendant had gone to trial); People v. Saitch, 260 A.D.2d 724, 725, 689 N.Y.S.2d 249, 250 (3d Dep't 1999) (unpreserved challenge to guilty plea cannot be raised on direct appeal unless allocation calls into doubt the defendant's guilt or the voluntariness of the plea); People v. Thompkins, 233 A.D.2d 759, 760-61, 650 N.Y.S.2d 406, 407-08 (3d Dep't 1996) (where challenge to guilty plea was not preserved "neither defendant's inability to remember the events in question due to his use of drugs and alcohol nor the fact that he was motivated, at least in part, by a desire to limit any prison term" would justify invalidating plea). Unless there is a defect in the plea allocation — and none is alleged here — failure to move to vacate the guilty plea in the trial court leaves any such claim unpreserved and therefore unreviewable in the New York appellate courts. See, e.g., People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 119 (1995); People v. Saitch, 260 A.D.2d at 725, 689 N.Y.S.2d at 250 ("[W]here, as here, a defendant fails to make a motion to withdraw his or her plea (see CPL 220.60) or to vacate the judgment of conviction (see CPL 440.10), the usual result is a waiver of the right to challenge the sufficiency of the plea allocation."); People v. Sierra, 256 A.D.2d 598, 599, 683 N.Y.S.2d 563, 564 (2d Dep't 1998); People v. Brow, 255 A.D.2d 904, 905, 682 N.Y.S.2d 320, 320 (4th Dep't 1998) (contention of mildly mentally retarded defendant that guilty plea was not entered knowingly and voluntarily not reviewable in Appellate Division because defendant did not move in trial court to vacate the plea or set aside the conviction).

Here, prior to sentencing, Foreman never sought to withdraw his guilty plea; to the extent he raised a claim as to the unfairness of having been charged with weapons use rather than possession, he did so only to seek a lesser sentence. (See Ex. C: 3/5/97 Foreman Pre-Sentence Letter at 4-5, Ex. D: 3/16/97 Sentence Tr. at 4-5, discussed at pages 4-5 above.) Similarly, on direct appeal, the weapon use versus possession claim again was raised, but again only in the context of seeking a reduction in Foreman's sentence. (See discussion at pages 6-7 above.) Only in his reconsideration motion to the First Department did he raise the weapons use/possession issue in the context of a claim that his guilty plea was involuntary. (See page 8 above.) A motion for reconsideration, however, is not a proper vehicle for a new claim not previously raised on appeal. See, e.g., Sykes v. Scully, No. 90 CV 4302, 1992 WL 151896 at *2 (E.D.N.Y. June 16, 1992) (citing People v. Bachert, 69 N.Y.2d 593, 597, 516 N.Y.S.2d 623, 626 (1987)). Such a motion, therefore, does not "properly present" a claim to the state court so as to exhaust the claim. See, e.g., Cuomo v. Fay, 257 F.2d 438, 441 (2d Cir. 1958), cert. denied, 358 U.S. 935, 79 S.Ct. 325 (1959); United States ex rel. Kozicky v. Fay, 248 F.2d 520, 521-22 (2d Cir. 1957), cert. denied, 356 U.S. 960, 78 S.Ct. 997 (1958); Blount v. Keane, No. CV-89-2449, 1990 WL 3569 at *1 (E.D.N.Y. Jan. 8, 1990); Martinez v. LeFevre, 84 Civ. 4672, 1986 WL 13017 at *1 (S.D.N.Y. Nov. 13, 1986); see also, e.g., Smith v. Riley, No. 90-CV-3094, 1995 WL 1079778 at *5 (E.D.N.Y. Jan. 26, 1995) (failure to raise federal issues in Appellate Division briefs leaves them unexhausted and procedurally barred since "a party cannot raise new issues in a motion for reconsideration"); Sykes v. Scully, 1992 WL 151896 at *2 (claim in an improperly filed motion for reargument would be procedurally defaulted). Thus, the claim is not exhausted.

"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))); Thomas v. Greiner, 2000 WL 194677 at *4. "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120; Thomas v. Greiner, 2000 WL 194677 at *4 ( cases cited therein). Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. Reyes v. Keane, 118 F.3d at 139. As the Second Circuit has explained:

Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); Bossett v. Walker, 41 F.3d at 828 ("if the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted"); Cruz v. Greiner, 1999 WL 1043961 at *22; Marcelin v. Garvin, 1999 WL 977221 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Bond v. Walker, 68 F. Supp.2d at 294; Avincola v. Stinson, 60 F. Supp.2d at 151; Jordan v. LeFevre, 22 F. Supp.2d at 269; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *3 (S.D.N Y Oct. 7, 1998) ("While petitioner's failure to fairly present' his claim in state court leads to a determination that the claim is exhausted, at the same time this failure results in a procedural default of the claim."); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.).

See also, e.g., Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21; Thomas v. Greiner, 2000 WL 194677 at *4 ( cases cited therein).

While New York provides a mechanism for collaterally attacking a judgment that is in violation of constitutional rights, see N.Y. Crim. Proc. Law § 440.10(1)(h) (McKinney 1994), any attempt by [the petitioner] to bring such a [§ 440.10] motion would be futile. Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record. See Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995) (refusing to conduct federal habeas review where New York's appellate court found claim to be procedurally barred under § 440.10(2)(c)); People v. Santillana, 145 Misc.2d 567, 547 N.Y.S.2d 981, 982 (Sup.Ct. 1989) (barring claims pursuant to § 440.10(2)(c) that were not raised on direct appeal despite sufficient facts in record to allow defendant to do so). . . . [The petitioner] is therefore deemed to have exhausted his state remedies . . . by his procedural default on that issue.

Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997); accord, e.g., Marcelin v. Garvin, 1999 WL 977221 at *9 n. 8 (citing cases).

Here, Foreman could have raised his involuntary guilty plea claim on direct appeal to the First Department, but did not do so, and thus the claim would not be appropriate for a CPL § 440.10 motion now. See CPL § 440.10(2)(c) (prohibiting post-trial review where no "appellate review or determination occurred owing to the defendant's unjustifiable failure" to raise a ground for which sufficient facts to permit appellate review were already in the record); see, e.g., Fama v. Commissioner of Correctional Servs., 69 F. Supp.2d 388, 395 (E.D.N.Y. 1999); Decan v. Edwards, No. 97-CV-1007, 1998 WL 813408 at *5 (E.D.N Y July 22, 1998); Loving v. O'Keefe, 960 F. Supp. 46, 48 (S.D.N Y 1997); Rattley v. Hoke, No. CV 92-2136, 1995 WL 264170 at *1 (E.D.N.Y. April 26, 1995); Sykes v. Scully, 1992 WL 151896 at *2. Foreman's involuntary guilty plea claim therefore should be deemed exhausted and procedurally barred. See generally Thomas v. Greiner, 2000 WL 194677 at *4-5.

"To avoid such a procedural default, a habeas petitioner must demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice, i.e., a showing of actual innocence." Thomas v. Greiner, 2000 WL 194677 at *5 (citing cases) (internal quotations omitted). Here, Foreman has not attempted to show cause and prejudice or "actual innocence."

B. Foreman's Guilty Plea Was Not Involuntary

Even if Foreman's claim that he involuntarily pled guilty were exhausted, or unexhausted but not procedurally barred, it in any event would be without merit.

Foreman contends that his guilty plea was involuntary and violated his Fourteenth Amendment due process and equal protection rights since he "was charged with a more severe gun count in [his] indictment (criminal 'use' as opposed to 'possession') than is usually charged under similar facts." (Pet. Attachment at 1-3.)

Constitutional due process requires that a guilty plea be voluntary, knowing and intelligent. E.g., Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609 (1998); Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-47 (1984); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469 (1970); Boykin v. Alabama, 395 U.S. 238, 242-43 n. 5, 89 S.Ct. 1709, 1711-12 n. 5 (1969); Innes v. Dalsheim, 864 F.2d 974, 977 (2d Cir. 1988), cert. denied, 493 U.S. 89, 110 S.Ct. 50 (1989); Marcelin, v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *5 (S.D.N Y Oct. 26, 1999) (Peck, M.J.).

See also, e.g., Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. denied, 479 U.S. 805, 107 S.Ct. 248 (1986); James v. Greiner, 97 Civ. 2652, 1999 WL 619636 at *4 (S.D.N.Y. Aug. 16, 1999); Charnock v. Herbert, 60 F. Supp.2d 91, 1999 WL 503938 at *8-9 (W.D.N.Y. 1999); Ramirez v. Headley, 98 Civ. 2603, 1998 WL 788782 at *5 (S.D.N.Y. Nov. 10, 1998); Thomas v. Senkowski, 968 F. Supp. 953, 955 (S.D.N.Y. 1997); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *5 (S.D.N.Y. Aug. 25, 1995) (Cote, D.J. Peck, M.J.).

A plea is involuntary where the defendant did not have "'knowledge of the nature of the constitutional protections he will forgo by entering his plea.'" Marcelin v. Garvin, 1999 WL 977221 at *5 (quoting Matusiak v. Kelly, 786 F.2d at 543); accord, e.g., Sanchez v. Senkowski, No. 93-CV-4385, 1996 WL 1057150 at *3 (E.D.N.Y. June 19, 1996); Singh v. Kuhlmann, 1995 WL 870113 at *5; Wax v. Keane, 89 Civ. 7843, 1991 WL 220962 at *3 (S.D.N.Y. Oct. 17, 1991). "A plea is 'intelligent' and 'voluntary' when a defendant had the advice of counsel, understood the consequences of his plea and the plea was not physically or mentally coerced." Heron v. People, 98 Civ. 7941, 1999 WL 1125059 at *5 (S.D.N.Y. Dec. 8, 1999); see also, e.g., Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 224 (1988); Ramirez v. Headly, 98 Civ. 2603, 1998 WL 788782 at *5 (S.D.N.Y. Nov. 10, 1998); Martuzas v. Reynolds, 983 F. Supp. 87, 94 (N.D.N.Y. 1997) (Pooler, D.J.); Phan v. McCoy, No. 94-CV-1596, 1997 WL 570690 at *6 (N.D.N Y Aug. 28, 1997) (Pooler, D.J.) ("The mere fact that a defendant pleaded guilty solely to limit his possible penalty does not make that plea involuntary."); United States v. Millan-Colon, 829 F. Supp. 620, 635 (S.D.N.Y. 1993). A "'plea of guilty entered by one fully aware of the direct consequences' of the plea is voluntary in a constitutional sense 'unless induced by threats, misrepresentations, or perhaps by promises that are by their nature improper.'" Bousley v. United States, 523 U.S. at 619, 118 S.Ct. at 1609 (ellipses omitted) (quoting Brady v. United States, 397 U.S. at 744, 90 S. Ct. at 1472); accord, e.g., Mabry v. Johnson, 467 U.S. at 59, 104 S.Ct. at 2547; United States v. Rossillo, 853 F.2d 1062, 1064 (2d Cir. 1988); Marcelin v. Garvin, 1999 WL 977221 at *5; Smylis v. City of New York, 25 F. Supp.2d 461, 465 (S.D.N.Y. 1998); see also, e.g., Willbright v. Smith, 745 F.2d 779, 780-81 (2d Cir. 1984).

"'It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.'" Bousley v. United States, 523 U.S. at 621, 118 S.Ct. at 1610 (quoting Mabry v. Johnson, 467 U.S. at 508, 104 S.Ct. at 2547-47); accord, e.g., Marcelin v. Garvin, 1999 WL 977221 at *6; see also, e.g., Ramirez v. Headley, 1998 WL 788782 at *5.

Here, Justice Cropper advised Foreman of the constitutional rights he was giving up by pleading guilty, including the right to assert a justification defense at trial, and Foreman acknowledged that he understood this. (Ex. B: 2/2/97 Plea Tr. at 3-4.) Foreman, who was represented by counsel, allocuted that he wished to plead guilty to manslaughter and that on June 25, 1991, he shot Ortiz to death. (Id. at 1-3, 5.) Justice Cropper advised Foreman, who acknowledged that he understood, that he would be sentenced to six to eighteen years imprisonment as had been agreed by the prosecution and defense counsel. (Id. at 5.) Finally, Justice Cropper inquired whether any threats or any promises (beyond the promised sentence) had been made to Foreman, and Foreman acknowledged that there were no such threats or promises. (Id.)

"As 'the Supreme Court has noted, statements made at plea allocutions "carry a strong presumption of verity" and "constitute a formidable barrier in any subsequent collateral proceeding."'" Marcelin v. Garvin, 1999 WL 977221 at *7 (quoting Singh v. Kuhlmann, 1995 WL 870113 at *7 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629 (1977))); see also, e.g., Adames v. United States, 171 F.3d 728, 732-33 (2d Cir. 1999) (statements at plea allocution "'carry a strong presumption of verity' . . . and are generally treated as conclusive in the face of the defendant's later attempt to contradict them," citing cases); United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea."); United States v. Gonzalez, 970 F.2d 1095, 1100-01 (2d Cir. 1992); Panuccio v. Kelly, 927 F.2d 106, 110-11 (2d Cir. 1991); Santobello v. United States, 94 Cr. 119, 97 Civ. 4404, 1998 WL 113950 at *2-3 (S.D.N.Y. March 13, 1998); United States v. Caesar, 94 Cr. 59, 1995 WL 312443 at *3 (S.D.N.Y. May 23, 1995) ("The Court notes that statements made during a plea allocution carry a strong presumption of verity. Such statements are conclusive absent credible reason justifying departure from their apparent truth.") (citations and internal quotation marks omitted); United States v. Napolitano, 212 F. Supp. 743, 747 (S.D.N.Y. 1963) (Weinfeld, D.J.) ("The defendant's admissions . . . [at guilty plea] are solemn declarations; they are not to be lightly disregarded in favor of his present self-serving assertion . . .").

This Court may credit Foreman's statements at the plea allocution — that his guilty plea was voluntary and not the result of any threats or promises — over his later allegations of coercion. See Marcelin, v. Garvin, WL 977221 at *7; see also, e.g., United States v. Torres, 129 F.3d at 715; United States v. Gonzalez, 970 F.2d at 1100-01; United States v. Hoffenberg, 169 F.R.D. 267, 275 (S.D.N.Y. 1996); Singh v. Kuhlmann, 1995 WL 870113 at *7; United States v. Caesar, 1995 WL 312443 at *4 ("This Court is justified in crediting [defendants'] sworn statements at allocution over their later self-serving allegations of coercion."); United States v. Collado-Gomez, 674 F. Supp. 426, 428 (E.D.N.Y. 1987).

In arguing that he was compelled to plead guilty by the threat of increased sentencing exposure stemming from the weapons "use" charge (Pet. Attachment at 1-2), Foreman concedes that the only "threat" that induced him to plead guilty was that he might be convicted by a jury of the charges in the indictment. Every defendant involved in plea negotiations suffers the threat of conviction (often of greater charges or with a greater penalty), and must face such "difficult choices." See, e.g., Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985 (1973) (possibility that if defendant "exercises his right to plead innocent and to demand a jury trial, he will receive a higher sentence than would have followed a waiver of those rights . . . Although every such circumstance has a discouraging effect on the defendant's assertion of his trial rights, the imposition of these different choices was upheld [by the Supreme Court] as an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas."); Brady v. United States, 397 U.S. 742, 751-52, 90 S.Ct. 1463, 1470-71 (1970) (guilty plea constitutionally valid even though "motivated by defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged"); accord, e.g., United States v. Cruz, 156 F.3d 366, 374 (2d Cir. 1998); Phan v. McCoy, 1997 WL 570690 at *6; Carter v. Scully, 745 F. Supp. 854, 858 (E.D.N.Y. 1990); United States v. Rombom, 421 F. Supp. 1295, 1299-300 (S.D.N Y 1976). Foreman could have gone to trial on the murder and weapons use charges and raised a justification defense; instead, advised by counsel, he chose to plead guilty to manslaughter. While he apparently now regrets that decision, his plea was not involuntary. The Court need not consider what remedy a defendant might have if a prosecutor charged a crime that the prosecutor knew was not supported by the evidence, because here the prosecutor had eyewitness testimony that Foreman shot Ortiz twice in the head, killing him. (See, e.g., Ex. F: State 1st Dep't Br. at 1-2, 7, 10-11.) There is nothing unfair or coercive in the State charging Foreman with use of a weapon under this circumstance, regardless of whether other defendants are charged with weapons possession. Moreover, before pleading guilty, Foreman could have challenged the indictment's weapons use charge under CPL § 210.30, but he did not; he chose instead to plead guilty to the lesser offense of manslaughter. That choice was not "coerced" as a matter of law by the pendency of the weapons use charge. See, e.g., United States v. Stanley, 928 F.2d 575, 578-79, 580-81 (2d Cir.) ("constitutionally legitimate" for prosecutor to threaten and bring more serious charges in order to persuade defendant to plead guilty), cert. denied, 502 U.S. 845, 112 S.Ct. 141 (1991).

Moreover, equal protection does not require that similarly situated defendants be charged with the same crime, or face the same sentence, so long as the difference in prosecution is not based on an unjustifiable or arbitrary consideration such as race, religion, or the prosecutor's malice. See, e.g., Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506 (1962) ("selectivity in enforcement is not in itself a federal constitutional violation," absent use of "an unjustifiable standard such as race, religion, or other arbitrary classification"); accord, e.g., Wayte v. United States, 470 U.S. 598, 607-09, 105 S.Ct. 1524, 1530-31 (1985); Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 668-69 (1978); United States v. Stanley, 928 F.2d at 580-81; United States v. Berrios, 501 F.2d 1207, 1211(2d Cir. 1974); United States v. Pitera, 795 F. Supp. 546, 568 (E.D.N.Y. 1992); United States v. Werber, 787 F. Supp. 353, 359 (S.D.N.Y. 1992); see also, e.g., Thomas v. Greiner, 97 Civ. 2958, 2000 WL 194677 at *6 (S.D.N.Y. Feb. 18, 2000) (Peck, M.J.) ("'There exists no authority for the proposition that all persons convicted of the same crime must receive the same sentence.'") (quoting Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983) ( cases cited therein); United States v. Carson, 434 F. Supp. 806, 808-10 (S.D.N.Y. 1977).

Foreman does not allege that the prosecutor charged him with weapons use based on an unjustifiable or arbitrary standard such as race. His equal protection claim thus fails.

III. FOREMAN'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Foreman's excessive sentence claim does not provide a basis for federal habeas relief.

"[N]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); accord, e.g., Thomas v. Greiner, 97 Civ. 2958, 2000 WL 194677 at *7 n. 8 (S.D.N.Y. Feb. 17, 2000) (Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. People of the State of New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983); see also Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas).

Foreman was convicted of first degree manslaughter and sentenced to a maximum of 18 years imprisonment. First degree manslaughter carries a maximum sentence of 25 years imprisonment under Penal Law § 70.02(1)(a) and § 70.02(3)(a). Thus, Foreman's allegations that he received an excessive sentence fails to raise a cognizable habeas claim.

CONCLUSION

For the reasons set forth above, Foreman's habeas petition should be denied.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 500 Pearl Street, Room 920, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Dated: New York, New York May 16, 2000

Respectfully submitted,


Summaries of

Foreman v. Garvin

United States District Court, S.D. New York
May 16, 2000
99 Civ. 9078 (GBD) (AJP) (S.D.N.Y. May. 16, 2000)
Case details for

Foreman v. Garvin

Case Details

Full title:SCOTT FOREMAN, Petitioner, v. HENRY GARVIN, Superintendent, Mid-Orange…

Court:United States District Court, S.D. New York

Date published: May 16, 2000

Citations

99 Civ. 9078 (GBD) (AJP) (S.D.N.Y. May. 16, 2000)

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