Summary
noting that "petitioner's pretrial preparation claim is waived" where guilty plea was knowingly, intelligently and voluntarily made
Summary of this case from Dunn v. SenkowskiOpinion
96-CV-1743 (NAM/GLS).
January 27, 2000
CLIFFORD CONYERS, Petitioner Pro Se, Ulster Correctional Facility, Napanoch, New York.
HON. ELIOT SPITZER, New York State Attorney General Department of Law, OF COUNSEL, DARREN O'CONNOR, ESQ., Asst. Attorney General, Albany, New York, For The Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed his habeas corpus petition on November 4, 1996. An order was issued pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring an answer. Respondent filed his answer, the pertinent state court records, and a memorandum of law. Petitioner filed a traverse on May 12, 1997. (Dkt. Nos. 11-12).
This case was originally assigned to former Magistrate Judge Hurd, and reassigned to this court on January 20, 1998. (Dkt. No. 14). Also, petitioner was paroled on November 21, 1997, but his application is not moot because there are collateral consequences associated with his contested felony conviction and his conditional release. See Evitts v. Lucey, 469 U.S. 387, 391 n. 4, 105 S.Ct. 830, 833 n. 4, 83 L.Ed.2d 821 (1985) (citing Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)) (conviction could be used to subject petitioner to persistent felony prosecution); Jones v. Cunningham, 371 U.S. 236, 241-243, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963) (prisoner on parole remains "in custody"); Martin v. Luther, 689 F.2d 109, 112 (7th Cir. 1982) ("validity of conviction remains justiciable even after petitioner is discharged from imprisonment due to collateral consequences of a criminal conviction"). Furthermore, petitioner is currently incarcerated although the record is unclear whether that incarceration is a by-product of a new conviction or a parole revocation.
Designated as an appendix, the state court records are listed in the first paragraph of respondent's answer, and unless otherwise noted, are hereinafter referenced as "A." (See Dkt No. 8).
Petitioner complains of a December 23, 1994, Rensselaer County Court judgment entered after his plea to criminal possession of a controlled substance in the fifth degree. He was sentenced as a second felony offender to a prison term of three to six years.
The Appellate Division, Third Department, affirmed the conviction on May 16, 1996. People v. Conyers, 227 A.D.2d 793, 642 N.Y.S.2d 450 (3rd Dep't 1996). The New York Court of Appeals denied leave to appeal on August 23, 1996. People v. Conyers, 88 N.Y.2d 982, 672 N.E.2d 615, 649 N.Y.S.2d 389 (1996).
Liberally interpreting petitioner's claims, he raises two issues: (1) his guilty plea was involuntary because it was coerced by his attorney, because he was not adequately advised of the consequences of his plea, and because he was not permitted to select a minority juror; and, (2) he was denied the effective assistance of counsel because he was misled concerning the filing of motions and because substituted counsel was not afforded sufficient time to prepare for trial.
Respondent seeks dismissal of the petition, asserting that: (1) petitioner waived his right to collateral review when he voluntarily waived his appellate rights as a plea bargain condition; (2) petitioner procedurally defaulted on his ineffective assistance claims; and, (3) petitioner's ineffective assistance claims are without merit. For the reasons that follow, the petition should be denied.
II. BACKGROUND
On December 30, 1993, petitioner, a second felony offender, was indicted for three counts of assault, resisting arrest, and criminal possession of a controlled substance in the third and fourth degree. (A. 3-7, 54-55).
On January 7, 1994, his attorney, Assistant Public Defender Cholakis, served discovery demands and requested a bill of particulars. (A. 17-27). On September 28, 1994, Cholakis filed an omnibus motion seeking dismissal of the indictment, suppression of drugs seized from petitioner, and permission to file additional motions. (A. 32-46). In an accompanying affidavit, he stated that the motions followed conversations with petitioner. (A. 36).
On November 28, 1994, trial was scheduled to begin. (A. 65-66). Cholakis then moved to withdraw, citing strategy conflicts and motion practice arguments that resulted in petitioner's refusal to engage in trial preparation during the preceding week. (A. 66-67). Questioned by the court, petitioner alleged that he had asked counsel to seek a change of venue and recusal of the trial judge, motions counsel indicated he still intended to make, having reserved his right to do so. (A. 67-70). In fact, both defense counsel and petitioner, the latter acting pro se, made the motions which were denied. (A. 70, 78-79).
Characterized as requests for a change of venue and recusal, petitioner's motions sought the disqualification of the Honorable Patrick J. McGrath, County Court Judge. Petitioner asserted that Judge McGrath had presided over his bail and preliminary hearings while a "police court" judge. After informing petitioner that his motion was really one for recusal, and not a change of venue, Judge McGrath told petitioner that his having presided during preliminary matters formed no basis for his recusal.
Expressing dissatisfaction with assigned counsel, petitioner also criticized his attorney's failure to file a suppression motion. (A. 71). However, defense counsel had filed a suppression motion which was denied. (A. 50-51). Cholakis stated that he had been unable to communicate with petitioner since the preceding Friday because petitioner would not talk to him. (A. 72). Cholakis further stated that he had been prepared to proceed to trial, but that petitioner refused to cooperate. (A. 73).
At the court's request, Public Defender Wollowitz then appeared, informing the court that she had met with petitioner the preceding Friday and that he had also refused to cooperate with her. (A. 75-76). During a subsequent colloquy, petitioner stated that there were no witnesses to call in his defense. (A. 76). After informing petitioner that he would permit a change of attorney at petitioner's request, the judge discharged Cholakis and appointed Wollowitz. (A. 78, 80). When Wollowitz informed the court that she was unprepared to select a jury, the court adjourned the trial until the next day. (A. 81).
On the next day, Wollowitz informed the court that petitioner objected to proceeding, that he wished to fire her, and that she felt it would be a derogation of his right to counsel to compel him to proceed. (A. 83-84). Petitioner requested that the trial court assign private counsel, questioning the competency of the Public Defender's Office. (A. 84-85). He did not object to the trial itself, only the attorney who would represent him. (A. 85-89). The court ordered jury selection to proceed, but first ascertained that Wollowitz had read petitioner's grand jury testimony so that she knew about his version of events, and that she had reviewed the transcript of the prior preliminary hearing. (A. 93-94). Furthermore, the court ordered the prosecution to provide early disclosure of grand jury testimony and impeachment material. (A. 94-96).
During the jury selection process, petitioner was represented by Wollowitz and Cholakis, the latter apparently acting as stand-by counsel. (A. 98, 104). During the voire dire, petitioner engaged in disruptive behavior. (A. 101-104). Furthermore, he accused Wollowitz of incompetence and sought once again to "fire" her because she did not select certain jurors he had identified as favorable to his case, including a minority juror. (A. 101-104). When the court explained that those jurors had not been reached with the selection process, petitioner still accused his attorney of incompetence. (A. 103-104). Following jury selection, the court adjourned the commencement of trial until the following day. (A. 105-106).
The next day, petitioner informed the court that he wished to enter a guilty plea. (A. 107). In exchange for a charge reduction from criminal possession of a controlled substance in the third degree to fifth degree, and in satisfaction of all remaining counts in the indictment as well as other unrelated, pending charges, petitioner agreed to plead as a second felony offender. (A. 107). The third degree charge was a class B felony while the fifth degree charge was a class D felony. (A. 3, 107). As a result of his reduced plea, petitioner significantly reduced his sentencing exposure. Rather than a maximum, indeterminate sentence of twelve and one-half to twenty-five years, he received a judicial commitment of three to six years. (A. 107); see also N.Y. Penal Law § 70.06(2)(3). Furthermore, he agreed to waive his right to appeal. (A. 107).
In a thorough plea colloquy, petitioner told the court that he fully understood his rights and the consequences of his plea. Under oath, he stated that he had ample opportunity to discuss the matter with his attorney, that he was satisfied with her representation, and that he was relinquishing all of his prior motions and his right to appeal. (A. 109-114). He also provided a full factual admission concerning his commission of the crime. (A. 114-115).
On December 23, 1994, the day of sentencing, petitioner sought to withdraw his plea. He did so in a written motion filed the same day, and verbally during his sentencing colloquy. (A. 56-64, 119-123). Reciting a litany of allegations involving police conduct and his arrest, he asserted his innocence and resurrected his ineffective assistance claim, alleging that his attorney failed to file his motions. (A. 59). He also alleged that counsel had misled him concerning the terms of the plea agreement. (A. 60). Other than the bald assertion that he was misled, petitioner's rather incoherent statements were devoid of facts supporting how he was misled or otherwise deceived. (A. 60). He stated that he was coerced into pleading because he was told his motions had been made when, in fact, they had not. (A. 59). Referring to the plea colloquy, the court found that petitioner's plea was voluntary, knowledgeable and intelligent. (A. 120-122). Accordingly, petitioner's motion to withdraw his plea was denied.
On December 27, 1994, petitioner filed a Notice of Appeal with the New York State Supreme Court, Appellate Division, Third Department. Michael J. Hutter was assigned as new appellate counsel. See Notice of Appeal and Appellant's Br. (Dkt. No. 8). On appeal, petitioner argued that his appellate waiver did not preclude review of his motion to withdraw his involuntary and coerced plea, and that the county court abused its discretion in denying his motion. See Appellant's Br. (Dkt. No. 8). Although he argued that his former counsel's failure to make certain motions lead to the demise of their relationship, petitioner did not raise the substance of the motions. Appellant's Br. at 4.
In a May 16, 1996, decision, the Appellate Division affirmed the conviction. Regarding the ineffective assistance claim and given the appellate waiver, the court limited its review to the impact of representation on the voluntariness of the plea. Other claims, including effective assistance of counsel in the non-plea context, were procedurally barred. People v. Conyers, 227 A.D.2d 793, 642 N.Y.S.2d 450, 451 (3d Dep't. 1996). The court then found that petitioner's trial preparation problems were a self-induced by-product of his recalcitrant behavior, not the incompetence of counsel. The court further held that defense counsel's favorable plea bargain reflected effective competence, and the plea colloquy demonstrated that petitioner's plea was voluntary. Id. at 794, 642 N YS.2d at 451.
On June 25, 1996, petitioner sought permission to appeal to the Court of Appeals. See Letter Application (Dkt. No. 8). In his application, petitioner argued only that the county court had abused its discretion in refusing to permit an involuntary plea to be withdrawn, and specifically rejected any claim that trial counsel was ineffective. Id. On August 23, 1996, the New York Court of Appeals issued a Certificate Denying Leave to Appeal. People v. Conyers, 88 N.Y.2d 982, 672 N.E.2d 615, 649 N.Y.S.2d 389 (1996).
III. DISCUSSION
"A plea of guilty is constitutionally valid only to the extent it is `voluntary' and `intelligent'", Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609, 140 L.Ed.2d 828 (1998) (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)), and collateral review is limited to whether the plea was voluntary, intelligent and entered with the advice of counsel. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989); Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235 (1973); see also, United States v. Coffin, 76 F.3d 494, 497-98 (2d Cir. 1996). A defendant may also execute an appellate waiver as a plea condition. United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995). That waiver is valid, however, only if voluntary, intelligent and executed with the advice of counsel. Bello v. People, 886 F. Supp. 1048, 1054 (W.D.N Y 1995); Magee v. Romano, 799 F. Supp. 296, 299 (E.D.N.Y. 1992). Although pleas and appellate waivers preclude appeals on most grounds, they do not prevent challenges to voluntariness. If voluntary, however, they preclude a defendant from asserting independent claims relating to prior, nonjurisdictional events. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608; United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Coffin, 76 F.3d at 496-98; Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987); Hogan v. Ward, 998 F. Supp. 290, 293 (W.D.N.Y. 1998); Pryor v. McCoy, 1997 WL 436809 (N.D.N.Y. July 25, 1997); Gayle v. Lacey, 1997 WL 610654 (N.D.N.Y. Oct. 1, 1997); Bello, 886 F. Supp. at 1054. Ineffective assistance claims are waived except as they directly relate to voluntariness. Tollett at 258, 93 S.Ct. at 1608; Coffin, 76 F.3d at 497-98; Pryor, 1997 WL 436809. Thus, if ineffective assistance impacts the voluntary and intelligent character of the plea or waiver, the issue is jurisdictional and survives. However, if the ineffectiveness claims relate to pre-plea assistance, those claims are nonjurisdictional and do not survive. Coffin, 76 F.3d at 497-498.
The standard is the same in New York, and governed petitioner's state appellate claims. See People v. Seaburg, 74 N.Y.2d 1, 541 N.E.2d 1022, 543 N.Y.S.2d 968 (1989); Conyers, 227 A.D.2d at 793, 642 N.Y.S.2d at 451.
The test of validity is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). If voluntary, "`a plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their very nature improper as having no proper relationship to the prosecutor's business . . .'" Brady, 397 U.S. at 754, 90 S.Ct, at 1472 (quoting Shelton v. United States, 246 F.2d 571 (5th Cir. 1957)). Voluntariness hinges on an assessment of all of the relevant circumstances, including the possibility of a heavier sentence following trial, the defendant's prior contact with the criminal justice system, the extent to which the trial court explained the defendant's options to him, and the competency of counsel's advice. Id., at 748-749, 90 S.Ct., at 469-470; see also, Magee v. Romano, 799 F. Supp. 296, 300 (E.D.N.Y. 1992); Willbright v. Smith, 745 F.2d 779, 781 (2d Cir. 1984). The knowledge component addresses the defendant's competence and control of his mental faculties, his awareness of the nature of the charges against him, and his reliance upon the competent advice of counsel. Bousley, 523 U.S. at 619, 118 S.Ct., at 1609.
Effective assistance depends on whether legal advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). A defendant who pleads guilty upon the advice of counsel "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). This same test obviously applies to an appellate waiver.
In Hill, the Court held that the standard developed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) was applicable to ineffective assistance claims arising out of the plea process. That standard is whether the attorney provided reasonably effective assistance when considering the totality of the circumstances, and there is a two-part test to assess the assistance. First, a defendant is required to establish that counsel's performance was deficient, and second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. In order to show a deficient performance by counsel, the defendant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct., at 2064. In relation to pleas, the second prong of the test "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59, 106 S.Ct., at 370. In order to satisfy this requirement, a defendant must show that counsel gave unreasonable advice and that, but for this advice, the defendant would not have plead guilty or would have received a lighter sentence at trial. Id., at 56-57, 59, 106 S.Ct. at 369-370.
Strickland's standard, while not insurmountable, is highly demanding. Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). Furthermore, the reviewing court begins with the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland, 466 U.S. at 669, 104 S.Ct., at 2055. Additionally, the solution of the prejudice inquiry "is closely related to the objective prediction of whether the defense could succeed if the case went to trial." Chukwurah v. United States, 813 F. Supp. 161, 165 (E.D.N.Y. 1993). A petitioner's assertion that his guilty plea was involuntary because of his attorney's erroneous advice "affords an all too [sic] easy avenue for the invalidating of a conviction on pleas of guilty." Hernandez v. United States, 839 F. Supp. 140, 143 (E.D.N.Y. 1993) (quoting United States v. Horton, 334 F.2d 153, 154 (2d Cir. 1964)). "[A] defendant's testimony after the fact `suffers from obvious credibility problems.'" Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991).
Accordingly, the validity of petitioner's plea and appellate waiver requires an assessment of whether he intelligently understood the nature and consequences of his actions, whether his choice was voluntary, whether there was ineffective assistance and, if so, whether there was an adverse impact caused by that assistance. As to knowledge, there is no doubt that petitioner understood the consequences of his plea and appellate waiver. The record is devoid of any suggestion that petitioner, twenty-eight years old at the time, was mentally or intellectually incompetent, and he makes no such claims now. (See Pet., Dkt. No. 1; A. 109-110). As a second felony offender with at least sixteen prior arrests, he was fully conversant with the criminal justice system and the plea process. (A. 54-55, 89). During his plea colloquy, he expressly stated his understanding that: his plea was to fifth degree possession, a two level reduction from the top count in the indictment; he was receiving a sentencing commitment of three to six years as a second felony offender, a reduced exposure from twelve and one-half to twenty-five years; his plea was in full satisfaction of all remaining charges in the indictment and of other unrelated, pending charges; he was relinquishing all of his constitutional rights associated with trial; he was waiving his right to appeal which counsel had fully explained to him; he had ample opportunity to discuss his plea with counsel and was satisfied with her advice; no one had threatened, coerced or forced his decision; he was acting freely and voluntarily; and, he understood that he was withdrawing all prior motions, including his suppression motion which had been denied. (A. 107-114). Petitioner also provided a full factual admission that he had possessed cocaine and threw it to the ground when the police approached him. (A. 114-115).
Petitioner asserts that his plea and appellate waiver were coerced because he would have done neither had he known his attorney had not filed motions, had his attorney explained the consequences of the plea and waiver to him, had he been allowed to select a minority juror during voire dire, and had his attorney been afforded more time for trial preparation. First of all, petitioner's assertions suffer from obvious credibility problems. Panuccio at 109. Not only did his plea specifically relinquish future appellate rights regarding motions, but the motions were made and denied in the first instance. Assistant Public Defender Cholakis filed motions before trial, and both Cholakis and the petitioner, the latter acting pro se, renewed the motions at the time of trial. (A. 17-27, 32-46, 50-51, 59, 67-71, 78-79). So too, his claim that he did not understand the plea terms is contradicted by his sworn statements during the colloquy. (A. 107-114). Not only did the trial court fully explain the terms, but petitioner admitted that trial counsel had done so. Again, petitioner's current claims, like his claims at the time, are the by-product of incoherent and bald conclusions without factual support. See Pet., Dkt. No. 1; (A. 59-60).
As with his other claims, petitioner's ineffective assistance allegation is without merit, and accordingly, had no impact on the voluntariness of his plea and appellate waiver. Counsel can hardly be faulted for failing to do what he had already done. The motions for suppression and for recusal were made and denied. (A. 17-29, 50-51, 70, 78-79). Counsel is under no obligation to pursue frivolous motions. Medina v. Herbert, 1998 WL 799173 (S.D.N.Y. 1998). Although petitioner's pretrial preparation claim is waived, counsel was not ineffective in that regard either. Wollowitz had participated in pretrial preparation with Cholakis, petitioner himself admitted that he intended to produce no trial witnesses, and the court ascertained that Wollowitz had reviewed prior testimony and transcripts, ordered early prosecution disclosure of impeachment materials, and adjourned the effective commencement of trial for two days. (A. 75-81, 83-89, 93-96). So too, Cholakis remained as standby counsel. (A. 98, 104). Nonetheless, the focus is on the competency of Wollowitz's advice to accept the plea and appellate waiver. Having reviewed the pretrial transcripts of the grand jury testimony and the preliminary hearing, she clearly understood the strength of the prosecution's case. Confronted with an obstreperous client refusing to assist with additional preparation, it is difficult to imagine what more she could have done. There is nothing deficient in the performance of either Holowitz or Cholakis.
Represented by new appellate counsel in his state appeals, petitioner raised only the voluntariness of his plea and the county court's denial of his withdrawal motion, and none of the other claims he currently asserts. See Notice of Appeal, Appellant's Br., Letter Application to Court of Appeals (Dkt. No. 8). He did not raise his claims regarding judicial bias and the failure to empanel a minority juror, and he specifically stated that he was not raising ineffective assistance claims unrelated to his plea. Id. Therefore, those claims would be further procedurally barred absent cause and prejudice since they were not raised on direct appeal. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). And, petitioner cannot establish cause because he had new appellate counsel and his claims are based solely on the trial record. Douglas v. United States, 13 F.3d 43, 47 (2d Cir. 1993).
To the extent petitioner raises claims concerning pre-plea ineffective assistance, minority juror impanelment and the failure to file motions, he has mixed exhausted and unexhausted claims. Mindful that this court has liberally interpreted the petition, even if petitioner has included unexhausted issues, dismissal of the entire petition would not be mandated. On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. Prior to the enactment of this Act, the Court was required to dismiss mixed petitions containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 125 (2d Cir. 1995). The AEDPA now gives the Court discretion to deny on the merits those habeas petitions containing unexhausted claims. 28 U.S.C. § 2254(b)(1)-(2).
Although § 2254(b)(2) "does not provide a standard for determining when a court should dismiss a petition on the merits rather than require complete exhaustion," Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N.Y. 1998) (quoting Lambert v. Blackwell, 134 F.3d 506, 514 (3d Cir. 1998)), several district judges have referred to a "patently frivolous" standard. If the court finds an unexhausted claim patently frivolous, and that it would be futile to send it back to state court, it may summarily dismiss that claim on the merits and pass onto the exhausted claims. Edkin v. Travis, 969 F. Supp. 139, 141 (W.D.N.Y. 1997); Cowans at 506; Rodrigues v. Miller, 1997 WL 599388 at *3 (S.D.N.Y. Sept. 29, 1997). "Apparently, the issues of comity and federalism are better served by addressing the merits, thereby avoiding useless state court litigation followed by additional meritless federal court litigation." Edkin at 142. Thus, even if this court were to consider these issues as unexhausted grounds for relief, they would be dismissed on the merits as patently frivolous.
Furthermore, petitioner fails on the second prong of the test since there is no evident prejudice. The prosecution's cocaine possession case was based on police observations of petitioner removing cocaine from his pocket and throwing it to the ground. (A. 114-115). Confronted with that evidence, counsel's advice to plead and waive appeal in exchange for a minimum three instead of a twelve and one-half year sentence and in exchange for the dismissal of other related and unrelated charges can hardly be challenged as unsound. Beyond petitioner's bald assertions, there is little support in the record that he would have been treated more leniently after trial.
Because his plea and appellate waiver were knowing, voluntary and based on competent legal advice, petitioner has waived his right to collaterally attack his claims regarding the failure to file motions, the selection of a minority juror, and his counsel's lack of trial preparation. Those claims are nonjurisdictional and preceded the plea and waiver. Tollett, 411 U.S. at 258, 267, 93 S.Ct., at 1602, 1608; Torres, 129 F.3d at 715; Coffin, 76 F.3d at 496-98; Hayle, 129 F.2d at 881; Hogan, 998 F. Supp. at 293; Pryor, 1997 WL 436809; Gayle, 1997 WL 610654; Bello, 886 F. Supp. at 1054. Even had he not waived them, however, those claims are without merit.
A judge's failure to recuse for bias, when warranted, may be jurisdictional. See United States v. Brinkworth, 68 F.3d 633 (2d Cir. 1995); Martuzas v. Reynolds, 983 F. Supp. 87 (N.D.N.Y. 1997); Sassower v. Mangano, 927 F. Supp. 113 (S.D.N.Y. 1996). In order to establish a constitutional violation, however, petitioner would have to demonstrate that the court abused its discretion in refusing to recuse. Martuzas, 983 F. Supp. at 91 (quoting Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927)). Although Judge McGrath may have known petitioner and presided over an earlier preliminary hearing and bail application, the record reflects no bias, as amply demonstrated by Judge McGrath's acceptance of the plea and the favorable sentence. So too, the systematic exclusion of minority jurors is unconstitutional. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). However, as the trial court explained to petitioner, the minority juror was a member of the jury pool, but never reached the actual selection process. In other words, there never was a challenge to the juror because he was not reached. (A. 101-104).
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.