MIGUEL CORTES v. PAUL GONYEA (2024)

REPORT & RECOMMENDATION

To the Honorable Jennifer L. Rochon, United States District Judge:

Before the Court is Miguel Cortes’ petition for a writ of habeas corpus against Paul Gonyea, Superintendent of the Mohawk Correctional Facility (“the State”), seeking to have the Court vacate his second-degree burglary sentence. Cortes is currently incarcerated at Mohawk following his 2015 sentence to 41.5 years to life in prison (subsequently reduced to 19 years to life). Cortes argues that New York's sentencing scheme violates due process and equal protection because it irrationally subjects those thrice convicted of burglary crimes, like him, to mandatory life-capped sentences while excluding far more serious offenses from such treatment. For the reasons set forth below, Cortes’ petition should be denied.

I. BACKGROUND

On October 7, 2015, Cortes was sentenced to two counts of second-degree burglary, one count of third-degree burglary, and six counts of fourth-degree grand larceny. Appendix (“App.”) at 1, Dkt. No. 1-1.¹ He had been convicted of felony burglary twice before. Id. at 10, 380. Under New York Penal Law § 70.08(2)–(3)(b), individuals who have two prior convictions for a prescribed list of violent felonies, such as burglary, upon conviction for a third violent felony, face a mandatory minimum sentence of 16 years to life imprisonment. Cortes was initially sentenced to a term of 41.5 years to life. People v. Cortes, 155 A.D.3d 579, 580 (2017). On appeal, the Appellate Division, First Department (hereinafter “First Department”) affirmed the conviction but reduced his sentence to 19 years to life. Id. The Court of Appeals denied leave to appeal on February 1, 2018. People v. Cortes, 30 N.Y.3d 1114 (2018).

Following the affirmation of his conviction, Cortes sought post-conviction relief by filing a motion pursuant to N.Y. C.P.L. § 440.20 challenging the lawfulness of his sentence.² App. at A008. He argued that his conviction should be vacated because there was no rational basis for the discrepancy between mandatory sentences for repeat burglars and repeat commissioners of assertedly more dangerous crimes. App. at A019–A029. The trial court denied Cortes’ motion on procedural grounds, holding that the claims had previously been raised on direct appeal. State Court Record (“SR”) 284–86, Dkt. No. 23-1. Cortes appealed to the First Department, which affirmed the trial court's decision. In a brief ruling, the First Department held that the “legislature's selection of felonies to which persistent violent felony offender sentencing applies, and its exclusion of other felonies, has a rational basis.” People v. Cortes, 193 A.D.3d 659, 660 (2021). The Court of Appeals denied leave to appeal. People v. Cortes, 37 N.Y.3d 964 (2021).

On April 25, 2022, Cortes filed this petition for a writ of habeas corpus. Dkt. No. 1. In support, he filed an appendix, as well as a memorandum of law (“Pet. Mem.”). Dkt. No. 2. On July 26, 2022, this petition was referred to me. Dkt. No. 9. On December 14, 2022, the State filed its memorandum of law in opposition (“Resp. Mem.”). On January 4, 2023, Cortes filed his reply memorandum of law (“Pet. Reply”). Dkt. No. 24.

II. ANALYSIS

A. Legal Standards for Habeas Relief Under Section 2254

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), courts may only grant a habeas corpus petition if the challenged state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(l)-(2).

“A state court decision is ‘contrary to ․ clearly established Federal law, as determined by the Supreme Court’ when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.’ ” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)); see also Parker v. Matthews, 567 U.S. 37, 49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).

A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014). Such application of federal law must be “ ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” Id. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).

AEDPA “ ‘imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.’ ” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 132 S. Ct. 490, 491 (2011)). The standard was designed to be difficult to meet. Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011) (“If this standard is difficult to meet, that is because it was meant to be.”)).

Where a state court has not reached a decision on the merits, “AEDPA deference is not required, and conclusions of law ․ are reviewed de novo.” Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005). To adjudicate a claim on the merits, the state court “need not mention the argument raised or cite relevant case law,” Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002), or “explain ․ its reasoning process.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). “Rather, a state court adjudicates a claim on its merits by (1) dispos[ing] of the claim ‘on the merits,’ and (2) reduc[ing] its disposition to judgment. Whether a claim has been disposed on its merits turns on: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits.” Eze v. Senkowski, 321 F.3d 110, 121–22 (2d Cir. 2003) (cleaned up).

B. The State Court Ruled on the Merits of Cortes’ Case

Cortes argues that the Court should review his claim de novo. Pet. Mem. at 16–18. He contends that the First Department's decision, while nominally on the merits, did not address his actual challenge: “that the distinction between dwelling-burglary and other, more ․ dangerous offenses has no rational basis.” Id. at 16.

The First Department's reasoning consisted of one paragraph:

Defendant's constitutional challenges to his sentence as a persistent violent felony offender, based on his commission of three burglaries of dwellings (see Penal Law § 140.25 [2]), without the use of any violence, are unavailing (People v Corey, 190 AD 3d 620, 621 [1st Dept 2021]). The legislature's selection of felonies to which persistent violent felony offender sentencing applies, and its exclusion of other felonies, has a rational basis (see Chapman v United States, 500 US 453, 464-465 [1991]; People v Walker, 81 NY2d 661, 668 [1993]).

People v. Cortes, 193 A.D.3d at 660.

Cortes claims that the First Department failed to reach the merits of his claim because it relied on Corey, which he argues was wrongly decided. Pet. Mem. at 16–17. The appellant in Corey made an identical argument to the one Cortes makes here: “it is irrational for a person ․ who commits three burglaries of dwellings without any violent aggravating factors ․ to be subject to a mandatory sentence of 16 years to life while a person who commits three crimes that are not classified as violent felonies, but involve actual death or injury, or a high likelihood thereof, are not subject to such a sentence.” People v. Corey, 190 A.D.3d at 621. In reaching its decision and rejecting the appellant's argument, the First Department held that “classification of dwelling burglaries as violent felonies has a rational basis, which is the appropriate test.” Id. (internal citation omitted).

Cortes not only argues that Corey was wrongly decided, but that the decision also failed to reach the merits of the appellant's argument. Pet. Mem. at 16. Cortes contends that while the Corey court accurately recounted the substance of Corey's argument, it did not actually rule on the merits of the case.

Cortes’ argument is not persuasive. In neither Cortes’ own appeal nor in Corey, on which the First Department relied, did the court dismiss the appellant's claim on procedural grounds. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (concluding that the Appellate Division adjudicated the petitioner's claims on the merits because “there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds”).³

However terse its reasoning, the First Department did reach the merits of Cortes’ claim. In its decision on his appeal, that court responded to Cortes’ argument—the “legislature's selection of felonies to which persistent violent felony offender sentencing applies, and its exclusion of other felonies, has a rational basis” —and, in doing so, cited to a prior case where it ruled on an identical argument in more detail. People v. Cortes, 193 A.D.3d at 660 (emphasis added) (citing Corey, 190 A.D.3d at 621).

While Cortes may believe that Corey was inadequately reasoned, the court in that case also ruled on the merits of the appellant's challenge to the discrepancy in New York mandatory sentences.⁴ The court in Corey accurately determined that the appellant was “essentially challenging legislative choices regarding the crimes to be designated as violent felonies for the purpose of recidivist statutes.” Corey, 190 A.D.3d at 621. Cortes argues that the Corey court's holding that “the classification of dwelling burglaries as violent felonies has a rational basis” was not actually responsive to petitioner's argument there. Pet. Reply at 3; Corey, 190 A.D.3d at 621 (citing People v. Johnson, 38 A.D.3d 1057, 1059 (3d Dep't 2007)). The Court disagrees. While the Corey decision devoted only one paragraph to this issue, the “state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.” Aparicio, 269 F.3d at 94 (citation omitted).

Furthermore, there is sufficient information to discern the First Department's logic. In its rejection of Corey's argument, it cited to another case, People v. Johnson, 38 A.D.3d at 1059, in which the Third Department upheld the classification of second-degree burglary as a violent felony. Cortes argues that Johnson is inapposite because the appellant there challenged the classification of burglary as a violent felony per se, not the discrepancy between burglary and other crimes at issue before this Court. Pet. Reply at 4. However, in its reasoning, the Johnson court discussed the presumption of constitutionality of legislative enactments and the legislature's ability “to classify crimes and to distinguish among the ills of society which require a criminal sanction, and prescribe, as it reasonably views them, punishments appropriate to each.” People v. Johnson, 38 A.D.3d at 1059 (quotation marks omitted). No “articulation of its rationale” is needed for a federal court to determine that a state court reached a decision on the merits. But in this particular case, the First Department's brief ruling provided sufficient information for the Court to determine not only that it ruled on the merits, but also the rationale under which it did so.

Because the First Department decided Cortes’ appeal on the merits, the Court will not conduct a de novo review but instead apply AEDPA's strict standard of deference.

C. AEDPA Requires that the First Department's Ruling Stand

Because the First Department decided Cortes’ appeal on the merits, his petition can only be granted if the decision was contrary to or involved an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(l)-(2).

Cortes contends that his sentence violates both due process and equal protection because “it irrationally subjects those thrice convicted of second-degree burglary or attempted second-degree burglary to mandatory life-capped sentences while excluding far more serious offenses from such treatment.” Pl. Mem. at 2. He does not argue that New York's criminal sentencing disparity is contrary to established Supreme Court precedent. Instead, his position is that “New York's sentencing scheme is irrational to the point that no fair-minded jurist could have held otherwise.” Pet. Reply at 4 (quoting Richter, 562 U.S. at 103). Petitioner, however, does not meet the extremely high bar mandated by AEDPA.

Challenges to a statute under the Equal Protection Clause are reviewed under the rational basis test unless there is a suspect class or fundamental right at issue. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440 (1985). New York's sentencing laws do not implicate fundamental rights or suspect classes, and thus are subject only to rational basis scrutiny. See Griffin v. Mann, 156 F.3d 288, 291–92 (2d Cir. 1998) (New York's repeat offender scheme “does not involve a suspect classification or impinge on a fundamental right” and “is entirely rational”). Accordingly, in order to prevail Cortes must show that there is no rational basis for the discrepancy in mandatory sentences between burglary and other crimes. See Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (“Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.”). Moreover, “a legislature that creates these categories need not actually articulate at any time the purpose or rationale supporting its classification. Instead, a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 113 (1993)). In the context of challenges to criminal convictions, “a person who has been so convicted is eligible for ․ whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment.” Chapman v. United States, 500 U.S. 453, 465 (1991) (internal citation omitted). “[A]n argument based on equal protection essentially duplicates an argument based on due process.” Id. Courts “should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.” Solem v. Helm, 463 U.S. 277, 290 (1983).

In rejecting Cortes’ appeal, the First Department properly applied the rational basis standard of review and found that a rational basis exists for the challenged sentencing discrepancy. Cortes, 193 A.D.3d at 188 (citing Chapman, 500 U.S. at 464–65). There exists a conceivable rational basis for the discrepancy in sentences challenged by Cortes. Several of the offenses Cortes cited for comparison as more dangerous require a lower degree of culpability than burglary: reckless or negligent homicide, endangerment, and driving while intoxicated. Pl. Mem. at 11–12; New York Penal Law §§ 15.05(3)–(4), 125.10, 125.15(1), 125.12(1), 120.25, 70.06(3)–(4); New York Vehicle and Traffic Law §§ 1192(2-a), 1193(1)(c)(i). While the mental state required of the perpetrator to commit an offense is not necessarily a measure of the severity of the offense, as Cortes contends, it is rational for a legislature to determine that a stricter mandatory sentence is necessary for repeat commissioners of burglary and not for repeat commissioners of other offenses that, while potentially more dangerous, do not evince the same level of criminal intent. Put another way, sentencing discrimination based on the culpability of the individual is permissible. See, e.g., Solem, 463 U.S. at 293–94. Moreover, the First Department's rejection of Cortes’ claim is not directly contrary to any Supreme Court decision (and he has not cited to any) or an unreasonable application of federal law.

Cortes cites one exception, arson in the third degree, which has the same culpability standard as burglary and is allegedly more dangerous, but does not carry the same mandatory sentence for third-time offenders. Pet. Mem. at 21 n.4. However, unlike burglary, arson in the third degree can be committed against a vehicle as well as a building. New York Penal Law § 150.10. New York courts have repeatedly discussed and upheld the New York state legislature's decision to protect dwellings with stronger criminal penalties. See, e.g., People v. McCray, 23 N.Y.3d 621, 627 (2014) (“[B]urglary of a dwelling is a more serious crime than other burglaries” because “an intrusion into a home ․ is both more frightening and more likely to end in violence”); People v. Johnson, 38 A.D.3d at 1059. In enacting the mandatory sentence for repeated burglary, which involves entry into a dwelling, but not for arson in the third degree, which may or may not involve a dwelling, the New York legislature could well have been pursuing a policy of protecting dwellings through harsher criminal punishments. As a rational basis can be found in the distinction, and this test allows for an “imperfect fit between means and ends,” Heller, 509 U.S. at 321, the application of New York's criminal sentencing laws in Cortes’ case cannot be found to be unconstitutional.

III. CONCLUSION

For the above reasons, Cortes’ petition for a writ of habeas corpus should be denied.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jennifer L. Rochon, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Rochon. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   The page number in citations to the Appendix refers to the number at the top of the page (A__), not the page number automatically generated by ECF. The page number in citations to the State Court Record refers to the number at the bottom of the page (SR. __).

2.   Cortes did not challenge his underlying conviction state court, nor does he do so in this habeas proceeding.

3.   As the State noted, Resp. Mem. at 13 n.6, the defendant in Corey (represented by the same counsel as Cortes in this case) filed a habeas petition in this District, challenging, inter alia, the same aspects of New York's sentencing laws as Cortes. Magistrate Judge Katherine H. Parker issued a report and recommendation on August 29, 2023, rejecting the same arguments put forward here. See Corey v. Collado, No. 22-CV-217 (PGG) (KHP) (S.D.N.Y. Aug. 29, 2023) (“Corey R & R”), Dkt. No. 18. Objections to this Report and Recommendation are pending.

4.   In Corey's petition in this Court, Magistrate Judge Parker found that the First Department had ruled on the merits of his claims. Corey R & R at 17.

JAMES L. COTT United States Magistrate Judge