Opinion
9:98-CV-0631 (FJS)(GLS)
February 7, 2001
FOR THE PETITIONER: ERICK GAINES, Petitioner, Pro Se, N.Y.S. Division for Youth, Harlem Valley Secure Center, Wingdale, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, OF COUNSEL: DARREN O'CONNOR, ESQ. Ass't Attorney General, Office of Attorney General, New York State Attorney General, Albany, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Erick Gaines ("Gaines") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 13, 1998. This action was transferred to this District by order of then-Chief Judge Thomas P. Griesa of the Southern District of New York. Docket No. 2. This court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response. Docket No. 3. The Attorney General filed an answer and memorandum of law, requesting dismissal of the petition. Docket Nos. 9 and 10.
II. Discussion
A. State Court Proceedings
On June 17, 1994, an Albany County Grand Jury charged Gaines with second degree robbery and criminal possession of stolen property. The indictment arose out of an incident that occurred on May 2, 1994, in Albany, New York, where Gaines struck Ms. Evelyn Pavone in the head, pushed her to the ground and stole her pocketbook which contained a diamond ring, cash and other property. Sentencing Tr. at PP. 11-12.
Gaines entered into a plea agreement, and on July 14, 1994, pled guilty before the Hon. Joseph C. Teresi to robbery in satisfaction of all charges in the indictment. The agreement also provided that Gaines receive a sentence of two to six years as a juvenile offender. See Plea Colloquy before Judge Teresi (7/14/94) ("Plea Colloquy") at PP. 2-3. During the Plea Colloquy, Gaines acknowledged that he was pleading guilty to a class C felony as a juvenile offender, and was advised by the judge that "the maximum sentence is seven years in state prison." Id. at P. 8.
On August 16, 1994, Gaines appeared before Judge Teresi for sentencing. Judge Teresi considered and denied a request by defense counsel that Gaines be granted youthful offender status, and sentenced Gaines to a term of two to six years imprisonment. Sentencing Tr. at 3-5.
Gaines appealed to the Appellate Division, Third Department ("Appellate Division"). Gaines argued that: (i) he received ineffective assistance of counsel; (ii) the sentence imposed was harsh and excessive; and, (iii) Judge Teresi erred in denying his request for youthful offender status. The Appellate Division unanimously affirmed, People v. Gaines, 234 A.D.2d 712 (3rd Dep't 1996), and the Court of Appeals denied Gaines' application for leave to appeal. People v. Gaines, 89 N.Y.2d 1011 (1997).
Gaines asserts four Grounds in his petition. He contends that he was informed by his attorney that his "records would not be sealed" if Gaines did not plead guilty, and that his attorney did not advise him that he might receive a lengthy sentence if he pled guilty. His second Ground argues that he was misled by police officers into believing he would be granted youthful offender status "if I told them what they wanted." He also claims he was coerced into giving a statement to the police. Finally, he states that he was denied his right to have counsel present when he gave this statement.
All official records and papers relating to youthful offender proceedings are sealed as confidential pursuant to New York's Criminal Procedure Law ("CPL") § 720.35.
B. Merits of Petition
1. Ground One
Read liberally, Ground One appears to raise two distinct claims: (a) Gaines was misled by his attorney about whether the records relating to the robbery would be sealed if he pled; and, (b) he did not knowingly, voluntarily and intelligently enter a guilty plea.
(a) Statements Regarding Confidentiality of Records
Gaines' contention that his counsel advised him that his records would not be sealed under CPL § 720.35 if there was a trial, may well be true; that court might have looked less favorably on a youthful offender application after trial. However, petitioner does not — and could not reasonably — allege that his counsel promised Gaines that he would be granted youthful offender status if he pled guilty. "[E]ligibility for youthful offender status does not mandate youthful offender treatment, and the grant of such a benefit lies wholly within the discretion of the court." People v. Harper, 270 A.D.2d 431 (2nd Dep't) (citations omitted), leave to appeal denied, 94 N.Y.2d 948 (2000). Since granting this application lies within the discretion of the trial court, no attorney could "guarantee" that a youthful offender application would be granted. Moreover, any contention that Gaines' counsel assured him that he would necessarily be considered a youthful offender is belied by the plea agreement which provided a sentencing range of two to six years, an amount in excess of that authorized for youthful offenders. See CPL §§ 60.02(2); 70.00(2)(e) (authorizing maximum term of four years imprisonment).
(b) Validity of Guilty Plea
"[A] guilty plea will be upheld as valid if it was entered into voluntarily, knowingly, and intelligently." People v. Ramsingh, 267 A.D.2d 406 (4th Dep't) (citations omitted), leave to appeal denied, 94 N.Y.2d 906 (2000); Thomas v. Senkowski, 968 F. Supp. 953, 955 (S.D.N.Y. 1997) (citing Boykin v. Alabama, 395 U.S. 238, 242-43 n. 5 (1969)).
Judge Teresi conducted a plea colloquy which: (i) ascertained Gaines' level of education; (ii) advised him of the rights he was waiving by his plea; (iii) determined that Gaines had not been threatened, coerced or forced into pleading guilty; (iv) asked him if the plea was being made freely and voluntarily; and, (v) noted Gaines was pleading guilty because he was, in fact, guilty. Plea Colloquy at PP. 5-8. Nothing in this Colloquy indicated that Gaines was only pleading guilty because he believed he would be sentenced as a youthful offender. To the contrary, Gaines acknowledged that he was pleading to a class C felony, and that he could receive a sentence of up to seven years in state prison. Id. at P. 8. The trial court properly accepted Gaines' plea, and no evidence has been presented which indicates that this plea was conditioned, in any way, on a finding by the trial court that Gaines be considered a youthful offender.
In light of the foregoing, the court recommends that Ground One of the petition be denied.
2. Ground Two
This Ground asserts that Gaines was misled by police officers into believing he would be sentenced in family court (and thereby considered a youthful offender) if he provided them with a statement.
CPL § 220.10(5)(g)(iii) authorizes the District Attorney, upon a plea of guilty by a juvenile offender, to recommend the removal of a criminal action to family court. People v. Jeffery B., 176 Misc.2d 483, 486 (N.Y.Sup. 1998). Additionally, "a transfer to family court may not be effected unless a criminal court reviews the case and finds removal to be within 'the interests of justice.'" In re Raymond G., 93 N.Y.2d 531, 537 (1999) (citations omitted). Thus, even if the police officers did request that Gaines be tried in family court, the trial court was not required to transfer Gaines' case to family court. The court now addresses petitioner's contention that his statement should not have been utilized because it was unlawfully induced by the police.
3. Ground Three
This Ground contends that Gaines was coerced into providing a statement to the police, and that he was never read his Miranda rights. Moreover, the Second Ground of his petition may also be read liberally as alleging that his statement was unlawfully induced by the police in exchange for a promise that he would be sentenced in family court.
Miranda v. Arizona, 384 U.S. 436 (1966).
Gaines failed to challenge the propriety of the statement he gave to the police prior to pleading guilty. Therefore, he forfeited his right to state court review of any claim relating to the validity of the statement. People v. Krivak, 265 A.D.2d 343 (2nd Dep't), leave to appeal denied, 94 N.Y.2d 864 (1999) (application to suppress statements given to police must be made before trial court or issue not preserved for appellate review) (citing CPL § 470.05(2)) (other citations omitted). Consequently, he has procedurally defaulted on this claim. Nelson v. Smith, 618 F. Supp. 1186, 1195-96 (S.D.N.Y. 1985) (failure to move to suppress statements or assert claimed violation of Miranda rights for first time on direct appeal of his conviction constitutes a state procedural default).
Additionally, Gaines waived his right to challenge the admissibility of this statement by pleading guilty. People v. Laino, 115 A.D.2d 663 (2nd Dep't), leave to appeal denied, 67 N.Y.2d 763 (1986).
This court may not review the merits of a defaulted claim unless Gaines demonstrates both good cause for and actual prejudice resulting from his default. Garcia v. Lewis, 188 F.3d 71, 76-77 (2nd Cir. 1999) (citations omitted); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995); Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
To establish "cause," petitioner must show that some objective external factor impeded his ability to comply with New York's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2nd Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992). While Gaines might contend that his attorney's failure to raise this issue constitutes "cause," "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
In this case, Gaines has not established any cause for his failure to object to the admissibility of his statement to the police. Therefore, the court need not decide whether the petitioner suffered actual prejudice because federal habeas relief is unavailable unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
Moreover, the court cannot find that failure to consider the merits of Gaines claims would result in a fundamental miscarriage of justice which this Circuit has interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2nd Cir. 2000). In light of the foregoing, the court recommends that this Ground be denied.
4. Ground Four
In this Ground, Gaines appears to claim that his attorney was ineffective because he failed to challenge the propriety of Gaines' confession. Specifically, Gaines claims that because he signed this statement without the benefit of counsel, it should not have been used against him.
The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: "(1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and, (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000).
A statement made without counsel may only be suppressed where the statement was obtained after an unequivocal request for counsel. People v. Dallio, 256 A.D.2d 417, 418 (2nd Dep't) (citation omitted) (emphasis added), leave to appeal denied, 93 N.Y.2d 872 (1999). Gaines does not claim, and there is no evidence before the court, that he unequivocally requested counsel at the time he gave the confession to the police. Therefore, the court cannot find that counsel's failure to object to use this statement was objectively unreasonable. Since there is no evidence the petitioner received ineffective assistance, the court recommends the denial of this Ground.
5. Waiver of Right to Appeal
Finally, Gaines agreed to waive his right to appeal his conviction as part of his plea bargain. Plea Colloquy at 9-10. "[A] petitioner is barred from collaterally attacking his conviction and sentence after he has made a knowing and voluntary waiver of his right to appeal as a condition of his plea bargain." Pryor v. McCoy, No. 96-CV-1810, 1997 WL 436809, at *1 (N.D.N.Y. July 25, 1997) (Pooler, D.J.) (citing United States v. Coffin, 76 F.3d 494, 496 (2d Cir.), cert. denied, 517 U.S. 1147 (1996)). Additionally, a valid plea waives all non-jurisdictional defects in prior proceedings." Pryor, 1997 WL 436809, at *5 (citations omitted). Since Gaines' guilty plea was valid, and (i) his plea contained a waiver of his right to appeal the conviction; and, (ii) he has not asserted any jurisdictional arguments in support of his petition, the court recommends that his petition be denied and dismissed for this reason as well.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Gaines' petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation upon the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Any 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, 89 (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. 6(a), 6(e) and 72.