12-1245-pr (L)
Santiago v. Laclair


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
       Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 6th day of October, two thousand fourteen.

PRESENT:
                      JOSÉ A. CABRANES,
                      ROSEMARY S. POOLER,
                      RAYMOND J. LOHIER, JR.,
                                   Circuit Judges,

_____________________________________


JOHN SANTIAGO,

                      Plaintiff-Appellant,

                               v.                                      Nos. 12-1245-pr; 13-2216-pr;
                                                                       13-658-pr

D. LACLAIR, DAVID UNGER, SUPERINTENDENT,

            Respondents-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                 SALLY WASSERMAN, New York, NY.


FOR RESPONDENT LACLAIR:                                  CARRIE A. CIGANEK, Senior Assistant District
                                                         Attoney, for Thomas P. Zugibe, District
                                                         Attorney, Rockland County, New City, NY.




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FOR RESPONDENT UNGER:                                    PAUL BERNARD LYONS, Assistant Attorney
                                                         General, for Eric Schneiderman, Attorney
                                                         General of New York, New York, NY.

       Appeal from a February 22, 2012 judgment of the United States District Court for the
Southern District of New York (Deborah A. Batts, Judge; George A. Yanthis, Magistrate Judge), and a
January 23, 2013 judgment, and May 13, 2013 Order, of the United States District Court for the
Western District of New York (Michael A. Telesca, Judge).


        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the District Courts be AFFIRMED.


         In this consolidated appeal, Plaintiff John Santiago appeals from two judgments of two
different District Courts, both denying his petition for a writ of habeas corpus. His habeas petition
in the Southern District of New York was based on three arguments, and on July 5, 2012, we
granted a certificate of appealability on one of those claims, namely, “whether petitioner was denied
effective assistance of counsel in pleading guilty based on his counsel’s alleged failure to advise him
that any term of imprisonment would run consecutively to his undischarged time.” Dkt. 26.
Additionally, on August 22, 2013, we granted Santiago a certificate of appealability on the issue he
raised in his habeas petition in the Western District of New York, namely, “whether the state court
unreasonably applied Morrissey v. Brewer, 408 U.S. 471 (1972), in determining that Appellant’s
sentence for violating his parole, did not violate due process.” Dkt. 105. We assume familiarity with
the underlying facts and procedural history of this case.
          “We review de novo a district court’s denial of a petition for a writ of habeas corpus.” Epps v.
Poole, 687 F.3d 46, 50 (2d Cir. 2012). As established by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), the writ may not issue for any claim adjudicated on the merits by a
state court unless the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States,” or was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “The state court’s findings of
fact are presumed to be correct unless the petitioner can rebut this presumption by clear and
convincing evidence.” Epps, 687 F.3d at 50. The petitioner bears the ultimate burden of proving by a
preponderance of the evidence that his constitutional rights were violated. Jones v. Vacco, 126 F.3d
408, 415 (2d Cir. 1997).

                              A. Ineffective Assistance of Counsel Claim

         For claims predicated upon the alleged ineffective assistance of counsel, the clearly
established federal law that we must apply is the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). See Cornell v. Kirkpatrick, 665 F.3d 369, 374-75 (2d Cir. 2011). “Pursuant
to Strickland, to establish a claim of ineffective assistance of counsel, [a petitioner] must (1)
demonstrate that his counsel’s performance fell below an objective standard of reasonableness in
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light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel’s
allegedly deficient representation.” Id. at 375 (internal quotation marks omitted). Because of the
enhanced layer of deference to the state court afforded by AEDPA, “the question is not whether a
federal court believes the state court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable—a substantially higher threshold,” and “habeas relief
may not be granted merely upon a conclusion that counsel’s performance was constitutionally
inadequate,” but rather defendant “must identify some increment of incorrectness beyond error in
order to obtain habeas relief.” Id. (internal quotation marks, brackets, and citations omitted).
         Santiago argues that his counsel rendered ineffective assistance by failing to disclose to him
all of the consequences of pleading guilty to a felony under New York law while on parole for a
previous felony offense. Santiago alleged counsel failed to advise him that he would automatically be
sentenced to a consecutive term of any undischarged portion of his sentence on his 1992 conviction.
Thus, he was subject to a term of more than 8 years, constituting the undischarged portion of his
previous sentence, in addition to the 1.5 to 3-year term that he expected to receive as a result of his
guilty plea. Santiago claims that, had he known that as a result of pleading guilty he would be
automatically subject to the undischarged term, he would not have pleaded guilty.
         Santiago asserts that the District Court erred in denying his habeas petition because the
Magistrate Judge erred in “reasoning that a finding of ineffectiveness in the context of a plea may
only be based upon a ‘direct’ consequence of the plea” and in concluding that the Supreme Court
had yet to address which consequences of a plea were direct and which were collateral. Appellant’s
Br. 29. Santiago bases his argument on the Supreme Court’s decisions in Padilla v. Kentucky, 559 U.S.
356 (2010), and Hill v. Lockhart, 474 U.S. 52 (1985). We see nothing in these cases supporting
Santiago’s position that the state court’s decision 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). In Hill, the Court “f[ound] it unnecessary to determine whether
there may be circumstances under which erroneous advice by counsel as to parole eligibility may be
deemed constitutionally ineffective assistance of counsel” because the defendant had failed to show
prejudice. 474 U.S. at 60.
         In Padilla, the Supreme Court held that counsel had been ineffective for failing to advise the
defendant that he would face almost certain deportation upon entering his guilty plea. Noting that
the Kentucky Supreme Court held the Sixth Amendment protections of counsel not to extend to
“collateral” consequences of a plea, the Supreme Court noted that it had “never applied a distinction
between direct and collateral consequences” for ineffective assistance of counsel claims, and then
stated that “[w]hether that distinction is appropriate is a question we need not consider in this case
because of the unique nature of deportation.” 559 U.S. at 365 (emphasis supplied). The Court’s holding
was narrow, based upon the particular characteristics of the deportation penalty, including its
“severity . . . [as] the equivalent of banishment or exile,” id. at 373 (internal quotation marks
omitted), “the concomitant impact of deportation on families living lawfully in this country,” id. at
374, and the fact that “‘[p]reserving the client’s right to remain in the United States may be more
important to the client than any potential jail sentence,” id. at 368 (internal quotation marks
omitted).


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         Padilla’s narrow holding, limited specifically to the unique penalty of deportation, affords
little support to Santiago. Furthermore, the Court held in Chaidez v. United States, 133 S. Ct. 1103,
1113 (2013), that the rule announced in Padilla did not apply retroactively to defendants whose
convictions became final prior to that 2010 decision. The New York judgment against Santiago was
dated February 5, 2007, and the proceedings related to his attempt to vacate the conviction took
place later in 2007 and in 2008. Thus, even if Padilla could be construed to support Santiago’s claim,
he may not rely on it here. Finally, under our precedent in United States v. U.S. Currency in the Amount
of $228,536.00, 895 F.2d 908, 915 (2d Cir. 1990), “[c]ertain possible consequences of a guilty plea are
‘collateral’ rather than direct and need not be explained to the defendant in order to ensure that the
plea is voluntary,” and an example of such a ‘collateral’ consequence is “parole eligibility or
revocation.” Although Padilla casts doubt on this Second Circuit holding with regard to deportation,
we see nothing in Padilla to suggest that it does not apply to the imposition of the undischarged
sentence.

        Upon a review of the record, and having had the opportunity to re-visit the claim
of ineffective assistance of counsel, we do not think that Santiago has met the high standard
established by AEDPA for habeas relief, substantially for the reasons articulated by the District
Court in its judgment of February 22, 2012, adopting in full the November 9, 2010 Report and
Recommendation of the Magistrate Judge.

                                              B. Due Process Claim

        Santiago’s due process claim objects to the Division of Parole’s automatic revocation of his
parole under New York Executive Law § 259-i(3)(d)(iii) as a result of his 2007 felony conviction.
Specifically, Santiago complains that the Division of Parole was obliged under the Due Process
Clause of the Fourteenth Amendment, and the Supreme Court’s decision in Morrissey v. Brewer, 408
U.S. 471 (1972), to hold a final revocation hearing to determine the time, if any, that he should be
required to serve from the undischarged portion of his 1992 sentence.

         Under Morrissey, one subject to parole revocation based upon allegations that the terms of
parole were violated is entitled to certain due process rights. Most relevant, in Morrissey, the Supreme
Court held that “[t]here must . . . be an opportunity for a hearing, if it is desired by the parolee, prior
to the final decision on revocation by the parole authority. This hearing must be the basis for more
than determining probable cause; it must lead to a final evaluation of any contested relevant facts
and consideration of whether the facts as determined warrant revocation. The parolee must have an
opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did,
that circumstances in mitigation suggest that the violation does not warrant revocation.” Morrissey, 408 U.S. at 487-
88 (emphasis supplied). Santiago argues that it is contrary to Morrissey for New York to mandate that
he serve his entire undischarged sentence without a hearing to determine if there are mitigating
circumstances warranting a shorter term, or if society would be served by a shorter term.

        For the constitutional right Santiago asserts, however, Morrissey does not constitute clearly
established Supreme Court precedent that satisfies AEDPA’s high standard, because the Supreme

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Court has limited its application to circumstances in which revocation of parole was discretionary
rather than automatic. In a later Supreme Court decision, Black v. Romano, 471 U.S. 606 (1985), the
Court stated:

    Neither Gagnon [v. Scarpelli, 411 U.S. 778 (1973)] nor Morrissey considered a revocation
    proceeding in which the factfinder was required by law to order incarceration upon finding
    that the defendant had violated a condition of probation or parole. Instead, those cases
    involved administrative proceedings in which revocation was at the discretion of the
    relevant decisionmaker. Thus, the Court's discussion of the importance of the informed
    exercise of discretion did not amount to a holding that the factfinder in a revocation proceeding must, as
    a matter of due process, be granted discretion to continue probation or parole. Where such discretion
    exists, however, the parolee or probationer is entitled to an opportunity to show not only
    that he did not violate the conditions, but also that there was a justifiable excuse for any
    violation or that revocation is not the appropriate disposition.

Black, 471 U.S. at 612-13 (internal citations omitted; emphasis supplied). Santiago’s attempts to
distinguish Black are unpersuasive, and we hold that Santiago has not satisfied his strict burden
under AEDPA of showing that the state court unreasonably applied “clearly established”
federal law or Supreme Court precedent.

                                         CONCLUSION
        We have considered all of Santiago’s arguments on appeal and find them to be without
merit. Accordingly, we AFFIRM both the February 22, 2012 judgment of the United States District
Court for the Southern District of New York, and the January 23, 2013 judgment and May 13, 2013
Order of the United States District Court for the Western District of New York.



                                                             FOR THE COURT:
                                                             Catherine O’Hagan Wolfe, Clerk




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