Criscuolo v. Stephen G. Brandow

Background

Anthony Criscuolo pleaded guilty in New York state court to first-degree rape. He received a determinate sentence of 14 years of incarceration and 18 years of post-release supervision. He later filed a federal petition for a writ of habeas corpus, which is a request for federal relief from allegedly unlawful state custody under 28 U.S.C. § 2254.

Magistrate Judge Ona T. Wang recommended that the petition be denied. Criscuolo filed objections. Judge Vargas reviewed the challenged portions of the recommendation from the beginning and reviewed the remaining portions for clear error, meaning an obvious mistake.

Ineffective-Assistance Claim

Criscuolo challenged the effectiveness of his trial counsel. Because he pleaded guilty, he could not independently challenge constitutional problems that occurred before the plea. He could challenge whether his plea was voluntary and informed by showing that counsel’s advice or investigation was constitutionally inadequate and that he would have rejected the plea and gone to trial without counsel’s errors.

The New York Supreme Court had rejected Criscuolo’s ineffective-assistance claims after analyzing them in a 59-page decision, and the state appellate court affirmed. Because the state courts had decided the issue on its merits, the federal court applied the highly deferential standard in the Antiterrorism and Effective Death Penalty Act. Under that standard, relief was available only if the state court unreasonably applied clearly established United States Supreme Court law or unreasonably determined the facts.

Judge Vargas concluded that Criscuolo had not shown that the state court unreasonably applied the governing ineffective-assistance standard or unreasonably determined the facts. The court also rejected his argument that the state court erred by failing to provide an evidentiary hearing. The court explained that the Constitution does not require states to provide post-conviction proceedings or evidentiary hearings, and that federal review under the applicable statute was limited to the record that had been before the state court. The magistrate judge therefore did not err in denying a federal evidentiary hearing.

Recorded Phone Calls

Criscuolo also challenged the State’s acquisition and use of recorded calls between him and his girlfriend and sister while he was imprisoned, in connection with his post-conviction proceedings. The court stated that he did not identify clearly established federal law supporting this claim and that an argument based only on state procedural law could not support federal habeas relief.

The court further stated that the calls did not violate Criscuolo’s constitutional rights. He had no reasonable expectation of privacy in the content of the nonprivileged recorded calls. Although attorney calls were also inadvertently provided, the state used a firewall to prevent prosecutors from accessing privileged communications.

Disposition

Judge Vargas overruled Criscuolo’s objections and adopted the magistrate judge’s Report and Recommendation in its entirety. The court ordered that the petition for a writ of habeas corpus be denied. Because Criscuolo had not made a substantial showing that a constitutional right had been denied, the court ordered that no certificate of appealability issue. The clerk was directed to terminate the pending motions and close the case.