Opinion
No. 99 Civ. 9424 (NRB).
March 13, 2001.
OPINION AND ORDER
Petitioner John Jamison ("Jamison" or "petitioner") pled guilty in New York State Supreme Court, New York County, to two counts of robbery in the first degree after having been indicted for numerous counts of robbery, assault, and kidnaping. In this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner alleges a number of constitutional infirmities with the process that led to his plea agreement. Now pending is the State of New York's ("the State") motion to dismiss the habeas petition. Magistrate Judge Ronald L. Ellis submitted a Report and Recommendation ("RR") to this Court on December 15, 2000, recommending the dismissal of the petition. Petitioner timely filed objections to the RR. For the following reasons, the motion to dismiss is granted in part and denied in part.
I. BACKGROUND
Jamison was accused in three indictments of a spree of ten gunpoint robberies affecting eighteen separate victims that took place during a three-month period between January 11, 1994 and April 20, 1994. Typically, petitioner would enter a place of business while brandishing a gun, and then forcibly take either personal or business property. His victims were most often female employees of these various businesses, whom he sometimes beat if they resisted his attempted thefts. On the last such occasion, on April 20, 1994, petitioner abducted, beat and stole property from a female victim. Police subsequently apprehended petitioner in a nearby building shortly after he completed this crime.
By Indictment Number 3825/94, filed on April 22, 1994, petitioner was charged with ten counts of Robbery in the First Degree, see N.Y. Penal Law § 160.15(4), eight counts of Kidnaping in the Second Degree,see N.Y. Penal Law § 135.20, four counts of Robbery in the Second Degree, see N.Y. Penal Law §§ 160.10(1), (2)(a), and one count of Assault in the Second Degree, see N.Y. Penal Law § 120.05(6). By Indictment Number 4401/94, filed May 13, 1994, petitioner was accused of five additional counts of Robbery in the First Degree.
Finally, by Indictment Number 5763/94, petitioner was charged with two additional counts each of Robbery in the First and Second Degrees. Justice Edward J. McLaughlin of the Supreme Court, New York County, arraigned defendant on this third indictment on August 17, 1994. In that proceeding, Assistant District Attorney ("ADA") Catherine Jones stated that the defendant had refused a plea offer of fifteen years to life, and that the State was now offering thirty years to life. See Transcript, Aug. 17, 1994, at 4. Defense counsel, R. Franklin Brown, Esq., did not dispute these statements, but instead sought to file various pretrial motions. Id. Additionally, at no point on the record did petitioner challenge the version of events offered by ADA Jones.
The indictments allege a total of 17 counts of robbery in the first degree, six counts of robbery in the second degree, eight counts of kidnaping in the second degree, and one count of assault in the second degree. All of these counts arise from the ten incidents that took place between January and April, 1994.
After the State moved to consolidate two of the three indictments, a conference was held on September 28, 1994 ("the September conference"), at which petitioner was not present. Justice Richard Andrias consolidated the first and third indictments, as they were based on related incidents. See Transcript, Sept. 28, 1994, at 4. At that hearing, defense counsel Brown informed the court that the State had made a "formal offer for everything" of fifteen years to life. Id. at 4-5. The ADA present at this proceeding, Sean Quinn, did not contest Mr. Brown's characterization of the plea offer. Mr. Brown told the court that he would communicate the offer to petitioner that same day and attempt to reach a disposition of the case. Id.
On November 2, 1994 ("the November conference"), both the State, now represented by ADA Steven Losquadro, and the defense appeared before Justice Alvin Schlesinger and answered ready for trial. See Transcript, Nov. 2, 1994, at 2. After a sidebar discussion that was held off the record, Justice Schlesinger stated to petitioner, "The District Attorney has offered you 30 to life. I will give you 25 to life. That's it." Id at 3. Jamison replied to Justice Schlesinger that "I was never informed originally of any offer." The following colloquy between petitioner and the court then ensued:
At least some of the ambiguity in this record, discussed infra, must be due to the fact that at three consecutive proceedings the State was represented by three different ADAs, at least two of whom indicated an unfamiliarity with the case and were apparently covering for some other ADA. See Tr. of Aug. 17, 1994, at 3-4; Tr. of Sept. 28, 1994, at 3. Additionally, the three conferences relevant to petitioner's claims were held in front of three different Justices of the Supreme Court.
The Court: I know to begin with what you are telling me is quite inaccurate because the first judge who got it offered you 15 to life and you rejected it.
Jamison: No, sir.
The Court: In any event, I can save you a lot of time. I will save you time. I am offering you 25 to life.
Jamison: Can I say something?
The Court: Now, you can say what you want.
Jamison: Sir, I was never offered the 15 to life.
The Court: What were you offered?
Jamison: I — I — sir, I was never offered the 15 to life.
The Court: So you weren't. What else do you want to ask me?
Jamison: In the courtroom, I found out what the 15 to life is, back in, I believe it was in August.
The Court: Yes.
Jamison: All right. I never — I never said to the D.A. that I didn't want the 15 to life, okay.
After some further discussion, and a brief adjournment, defendant pled guilty to one count of robbery under each of the two remaining consolidated indictments, and the State recommended acceptance of this plea. Sentencing was set for December 7, 1994.
In a letter to defense counsel, copied to the court and the prosecutor, dated December 1, 1994, petitioner asked that his plea be withdrawn because his counsel had been ineffective. At the December 7 sentencing proceeding, the petitioner requested that his motions be heard, and the court noted that the petitioner had filed a grievance against his attorney. See Transcript, December 7, 1994, at 4. Consequently, the court directed that new counsel be assigned to him and adjourned the sentencing date. Id., at 5.
At that adjourned proceeding on January 30, 1995, petitioner appeared with new counsel. Petitioner argued that the first he had heard of the offer of fifteen years was at the August arraignment, when Assistant District Attorney Jones stated that he had rejected it. Petitioner alleged that after that court appearance he told his counsel that he would like to accept the plea. He further argued that he was unable to speak with his lawyer, Mr. Brown, until the November conference at which time he pled guilty in order to receive the twenty-five year sentence.
Justice Schlesinger denied petitioner's motion to withdraw his plea, noting that the record indicated that petitioner had not been coerced to plead guilty, but rather had changed his mind since the plea. See Transcript, Jan. 30, 1995, at 3. On February 8, 1994, the court arraigned petitioner as a persistent violent felony offender pursuant to N.Y. Penal Law § 70.08. Jamison challenged two of the predicate acts cited by the State in its persistent violent felony offender statement, and a hearing was held on this issue on May 8, 1995. At that time, argument was heard on the validity of the predicate offenses, and the court subsequently found petitioner to be a persistent violent felony offender.
Under a New York State statute commonly known as a "three-strikes" provision, if the State can show that an offender is a "persistent violent felony offender," his sentence will be enhanced to an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment. New York Penal L. § 70.08(2). To be accorded persistent violent felony offender status, a defendant must stand convicted of a violent felony offense as defined in § 70.02(1), after having previously been convicted of two other predicate violent felony offenses as defined in § 70.04(1)(b). In petitioner's case, the State relied on three predicate offenses: a 1989 Kings County weapons possession conviction, a 1981 Queens County first degree robbery conviction, and a 1977 New York County first degree robbery conviction.See S. Kenneth F. Jones Declaration ("Jones Decl."), Exh. A, at 9-10.
Petitioner was sentenced to the promised 25 years to life on May 22, 1995. Petitioner subsequently appealed the denial of his motion to withdraw his guilty plea, and the Appellate Division affirmed the Supreme Court, see State v. Jamison, 251 A.D.2d 271 (1998). Petitioner also filed a pro se motion pursuant to New York C.P.L. § 440.10, alleging that his convictions should be vacated due to his initial counsel's ineffectiveness. Justice Richard D. Carruthers of the Supreme Court, Criminal Term, denied the motion. Justice Carruthers did not reach the merits of the claim, however, stating that it was "foreclosed by a recent decision handed down by the Appellate Division, First Department, on the defendant's direct appeal." State v. Jamison, slip op., at 3-4 (citing N.Y. C.P.L. § 440.10(2)(a), which states that a court "must deny a motion to vacate judgment when the ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment. . . .").
Judge Bellacosa of the New York State Court of Appeals denied petitioner's leave to appeal the First Department decision, see 92 N.Y.2d 899 (1998), and the instant petition was filed August 9, 1999. On September 13, 1999, Judge Rakoff, to whom this case was initially assigned, referred it to Magistrate Judge Ronald L. Ellis, who issued an RR on December 15, 2000, recommending the dismissal of Jamison's petition. Petitioner timely filed objections to the RR.
II. DISCUSSION
A. Procedural Issues
In reviewing all of petitioner's claims, we start by recognizing Congress's clear intention that by passing the Antiterrorism and Effective Death Penalty Act (AEDPA), P.L. No. 104-32, 110 Stat. 1214 (1996) (codified at scattered sections of 8 and 28 U.S.C.), Congress sought to "place a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000) (opinion of O'Connor, J.). Most significantly, 28 U.S.C. § 2254 (d)(1) as amended provides that a federal court may grant habeas corpus relief to a state prisoner only if the state court adjudication of his claims was on the merits and:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.Id. § d(1)-(2)
In Williams, the Supreme Court offered its initial guidance on the reach of the first of these critical provisions. The Court held that a decision "contrary to" Supreme Court precedent is either a decision in which a state court "arrives at a conclusion opposite to that reached by this Court on a question of law," id. at 405, or one in which, on "facts that are materially indistinguishable from a relevant Supreme Court precedent," the court "arrives at a result opposite to ours." Id. The Court then held that the "unreasonable application inquiry", the second part of § 2254(d)(1)(a), "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. (emphasis added). An unreasonable decision, the Court held, was something different from an "incorrect application of federal law," id. at 411, although the Court did not clarify the nature of this difficult distinction.
Before turning to petitioner's claims on their merits, we begin by reviewing two important procedural issues. First, Jamison's claims were all timely filed under the AEDPA one-year statute of limitations for habeas corpus petitions, see 28 U.S.C. § 2244 (d)(1)(A). The New York State Court of Appeals on August 13, 1998 denied petitioner leave to appeal the Appellate Division affirmance of his conviction, and he filed the instant petition on August 9, 1999. Second, we recognize that petitioner must exhaust his claims in state court prior to obtaining federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 840 (1999) (noting that rules of comity require that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."). For the reasons discussed below, petitioner has not exhausted his fourth claim. The remainder of petitioner's claims were presented in proper form to the New York State courts. See Pro Se Leave to Appeal, Jones Decl., Exh. K; see also Duncan v. Henry, 513 U.S. 365, 365-66 (1995); Fama v. Comm'r of Correctional Servs, 235 F.3d 804, 808 (2d Cir. 2000). We thus turn to the merits of Jamison's claims.
B. Petitioner's Claims
Petitioner raises four grounds: first, that his trial counsel was constitutionally ineffective; second, that he was improperly sentenced as a persistent violent felony offender under New York State law; third, that his guilty plea was coerced by threats; and fourth, that he was denied his constitutional right to be present in person at all stages of his criminal prosecution.
1. Effective Assistance of Counsel
Petitioner first alleges that his counsel was constitutionally ineffective in violation of the Sixth Amendment because he first failed to inform Jamison of an alleged plea offer of fifteen years to life, and then did not communicate to the State petitioner's desire to accept the plea. Had counsel notified petitioner of the fifteen-to-life offer prior to the August, 1994 arraignment for the third indictment, petitioner asserts that he would have accepted it. Moreover, Jamison further alleges that he met with his attorney after that court conference, and told Brown that he wanted to accept the plea, although counsel allegedly never informed the State of this wish. It was only because he was not present at the September conference, Jamison alleges, that he failed to object to his attorney's alleged misfeasance until the November conference, the date he appeared in court for trial.
The guarantee of counsel in criminal proceedings protects the fundamental right to a fair trial, and necessarily includes the right to effective counsel. See Strickland v. Washington, 466 U.S. 688 (1984);McMann v. Richardson, 379 U.S. 759, 771 n. 14 (1970) ("It has long been recognized that the right to counsel is the right to effective assistance of counsel.") In Strickland, the Supreme Court established a two-part test; in order to demonstrate ineffectiveness, a petitioner must show: (1) that defense counsel's representation "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688; and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. It is integral to the standard established in Strickland that a court reviewing counsel's performance must be "highly deferential," should "consider all the circumstances," must make "every effort . . . to eliminate the distorting effects of hindsight," and must apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." lest federal habeas corpus review lead to the widespread undermining of finality in state criminal processes. Lindstadt v. Keane, No. 99-2002, 2001 WL 10325 (2d Cir. Jan 4, 2001) (citing Strickland, 466 U.S. at 687-89).
"A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Moreover, as plea bargaining continues to assume an ever more prominent role in the criminal process, the effective functioning of counsel during this critical stage of the adversary process assumes heightened importance. See Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993) (noting that plea negotiations are a "critical stage" of a criminal proceeding for the purposes of Sixth Amendment analysis). Indeed, the Second Circuit has recently addressed in several cases the question of what constitutes effective counsel in the plea bargaining context. See, e.g., Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000); Purdy v. United States, 208 F.3d 41 (2d Cir. 2000); United States v. Cullen, 194 F.3d 401 (2d Cir. 1999);United States v. Gordon, 156 F.3d 376 (2d Cir. 1998); Boria v. Keane, 99 F.3d 492 (2d Cir. 1996).
Although no particular set of bright-line rules can define ineffective assistance of counsel, see Roe v. Flores-Ortega, 528 U.S. 470, 477 (1999), it is nonetheless true that "there can be no doubt that counsel must always communicate to the defendant the terms of any plea bargain offered by the prosecution." Cullen, 194 F.3d at 404. See also Purdy, 208 F.3d at 45 ("[C]ounsel must communicate to the defendant the terms of the plea offer. . . ."); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982) ("[F]ailure to communicate a plea bargain offer would deny [defendant] his sixth and fourteenth amendment rights.").
Indeed, as part of the constitutional right of a defendant to participate in the making of decisions fundamental to his defense, see Jones v. Barnes, 463 U.S. 745, 751 (1983), the Second Circuit has made clear that a defense attorney must do more than merely inform his client of an extant plea bargain. For example, in United States v. Gordon, the court found that counsel's advice in the plea context was deficient when he estimated a 120-month maximum sentence upon conviction at trial, and based on this advice the defendant elected to go to trial. In fact, the actual sentence range was 262 to 327 months, and because defendant's decision not to plead was based on such grossly erroneous advice from counsel, counsel was found to be ineffective. See 156 F.3d at 380. Moreover, in Boria v. Keane, counsel was found to be constitutionally deficient for allowing his client to reject a plea bargain of a one to three year sentence without first advising the defendant as to the wisdom of that course, when counsel admitted that rejecting the offer would be tantamount to "suicide". See 99 F.3d at 496-97.
The Boria court noted that the Strickland presumption of effectiveness held less force in the plea bargaining context because the presumption was designed to shield "strategic decisions" from the "distorting effects of hindsight." Id. at 498 (citing Strickland, 466 U.S. at 689). In the plea context, however, there is no strategic decision implicated either in choosing to inform a defendant of a plea offer, or in offering advice as to the advisability of accepting that offer. See id. Failure to do either cannot be explained away as a strategic choice. of course, it also remains true that a federal habeas court must defer to the "wide range of reasonable" representation, which requires counsel in the plea bargaining process to "steer a course between the Scylla of inadequate advice and the Charybdis of coercing a plea." Purdy, 208 F.3d at 45. In sum, though, the case law establishes at minimum that counsel must inform his client of a plea offer and provide some basic information about its advisability.
Petitioner here alleges facts that, if true, raise serious concerns about counsel's effectiveness. Important questions remain unanswered. For example, it is not clear if the rejected 15-year offer resolved all three indictments, or merely the first two. If the offer referred to as rejected at the August conference merely covered the first two indictments, then plaintiff's claim lacks merit because the third indictment would have precluded the plea for the first two, and the prejudice that Strickland requires could not be demonstrated. However, if the plea offer governed all three indictments, and petitioner was not informed after the September conference that the offer remained on the table, assuming that it did in fact remain on the table, then his counsel's effectiveness is called into question in light of the case law discussed above.
It is puzzling that petitioner, although apparently in the "bullpens" of the courthouse on that date, was not called up to court when it seemed obvious that his case might have been resolved by plea that very day.
The Appellate Division opinion, however, does not address these issues. It merely contains the conclusory statement that "[T]he record establishes that defendant received effective assistance of counsel in connection with his guilty plea (see, People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). . . ." Because the ruling is so brief, and finds no specific facts, it leaves meaningful questions unanswered given the potential seriousness of petitioner's arguments. Even assuming arguendo that the Appellate Division opinion is considered an adjudication on the merits for the purposes of AEDPA, "[w]hen the state court fails to articulate the rationale behind its ruling, we must independently review the record and the applicable law." Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000).
The case cited, People v. Ford, holds that neither a court nor counsel are under an obligation to inform a defendant prior to a plea that the plea may carry collateral consequences, such as deportation. 86 N.Y.2d at 403. Although not entirely on point, in discussing the proper standard for effective assistance the Ford opinion clearly does so in reference to Strickland and the body of federal case law, thereby obviating any concern that the state court decision might rest on independent and adequate state law grounds that preclude federal habeas review. See Arizona v. Evans, 514 U.S. 1, 7 (1995), Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).
We do not here take an opinion on whether this summary ruling is an adjudication on the merits for the purposes of AEDPA. If a state court does not "apply the relevant federal law," Washington v. Schriver, No. 00-2195, 2001 WL 12841, at *7 (2d Cir. Jan. 5, 2001), and thereby reach the merits of a claim, then the provisions of § 2254(d) that mandate strong deference to state court decisions do not apply, and the pre-AEDPA standards of review apply.
Given that the petitioner's ineffectiveness claims raise potentially serious issues, and the paucity of the paper record before us, the most appropriate step in disposing of this motion to dismiss is to expand the record sua sponte under Rule 7 of the Rules Governing § 2254 Cases in United States District Courts.
Rule 7 states, in relevant part:
(a) If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties.
(b) The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record.
Rule 7(a)-(b) of the Rules Governing § 2254. The Second Circuit recently noted that a district court, "'in its discretion, may utilize any of the habeas rules designed to supplement the record without the necessity of conducting a full-blown evidentiary hearing.'" Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000) (quoting United States v. Aiello, 814 F.2d 109, 114 (2d Cir. 1987)). Where, as here, a thin written record contains substantial ambiguity about events that bear potential legal significance, an expansion of the record is an efficient means of assessing the merits of a petition "without the time and expense required for an evidentiary hearing," or prior to such a hearing. Advisory Committee Notes to Rule 7; see also Lonchar v. Thomas, 517 U.S. 314, 326 (1996) ("The [Habeas] Rules afford the district court substantial discretion in the conduct of a case. . . .")
Indeed, as Professors Liebman and Hertz note, Rule 7 permits the Court to receive some or all relevant evidence even in cases where a hearing might be impermissible under the new restrictions of the AEDPA.See Randy Hertz James S. Liebman, 1 Federal Habeas Corpus Practice and Procedure, § 19.5 (3d ed. 1998).
Thus, in a separate order to follow this Opinion, we will request the expansion of the record to clarify the context of the plea offers to petitioner, and the nature of his communications with counsel. Accordingly, the motion to dismiss on this ground is denied without prejudice to renewal following the expansion of the record.
2. Voluntariness of Petitioner's Plea
Petitioner alleges that his plea was coerced by Justice Schlesinger, and was neither knowing nor voluntary. Specifically, Jamison argues that the trial court did not elicit a proper factual basis for his plea, that the court's statement that he would face 10,000 years in prison was coercive, and that he was misinformed of the terms of imprisonment to which he could be subjected. This claim is without merit, and is dismissed.
When evaluating the voluntariness of a guilty plea, a habeas court must examine the totality of the circumstances surrounding that plea. See Henderson v. Morgan, 426 U.S. 637, 644-45 (1976). The touchstone of such an inquiry is whether the "accused understand[s] the nature of the constitutional protections that he is waiving," id. at 645, n. 13, and whether he has a sufficient understanding of the crime that his admission can intelligently stand as an admission of guilt. Id.
First, we conclude that this plea was in no way coerced. Justice Schlesinger's demeanor may have been stern at times, but after a careful consideration of the transcript of the sentencing proceeding, it is apparent that he was far from coercive. At several points during the sentencing, as petitioner was weighing his decision, the judge solicited questions from petitioner and gave petitioner the opportunity to explain his concerns with the plea bargaining process. See Jones Decl., Exh. A, at 4-7. After a lengthy colloquy, the Justice Schlesinger finally stated, "[y]ou take the plea or you go to trial, and that's the end of it." Id. at 10. Nonetheless, even after this statement and a further discussion with petitioner, the trial court called a recess and offered Jamison another opportunity to discuss the potential plea with counsel. Such conduct cannot remotely be termed coercive. Moreover, we take judicial notice that petitioner had plead guilty to a crime at least once before, thereby having personal experience with the consequences of a guilty plea.
Additionally, the trial court asked petitioner questions that elicited an understanding of the various constitutional protections being waived by the plea. Justice Schlesinger asked petitioner if he understood that he was waiving his rights to trial by jury, to a unanimous jury verdict, to put the state to its burden of proof, to confront witnesses, to cross-examine those witnesses, to testify himself, to suffer no adverse inference for not testifying, to call witnesses of his own, and to be represented by counsel. Id. at 17-21. Petitioner responded to each of the questions in the affirmative. Id. Such a colloquy comes close to satisfying the many requirements of Fed.R.Crim.P. 11, which governs pleas, and is certainly more detailed and demanding than the due process requirements governing pleas in the state courts.
Second, the trial court took pains to ensure that there was a factual basis for the plea. Justice Schlesinger began the plea colloquy by stating:
Mr. Jamerson [sic], I am going to be telling you some things in the next few moments and also asking you some things. And what you should be doing is first listen to me real [sic] carefully. And in the event you don't understand, just tell me you don't understand and I will try to explain what you don't understand. Will you do both those things, Mr. Jamerson [sic]? Will you listen to me, if you don't understand?Id. at 14-15. The petitioner replied that he would do so. See id. at 15-16. For each indictment, the State then recited what they would be required to prove, and indicated that witnesses were presently available to testify about the charges. See id. at 16-17. After hearing the various offenses described, defendant admitted that the conduct described by the Assistant District Attorney accurately described his own. Id. at 17. Although defendant did not state specifically in his own words what his conduct entailed, we cannot say that in the totality of the circumstances this caused the plea to be unsupported by fact.
"A district court is not required to follow any particular formula in determining that defendant understands the nature of the charge to which he is pleading guilty." United States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999) For example, "'[A] reading of the indictment to the defendant coupled with his admission of the acts described in it [is] a sufficient factual basis for a guilty plea, as long as the charge is uncomplicated, the indictment detailed and specific, and the admission unequivocal.'"United States v. O'Hara, 960 F.2d 11, 13 (2d Cir. 1992) (quotingMontgomery v. United States, 853 F.2d 83, 85 (2d Cir. 1988)). Precedent, then, dictates that these proceedings resulted in a voluntary, intelligent guilty plea for which a factual basis existed.
Last, petitioner's argument that he was misinformed about the terms of his plea is plainly belied by the record. After stating the sentence, Justice Schlesinger asked, "Is that what you understood the promise was?" and petitioner replied, "Yes." Thus, for all of the foregoing reasons, having considered the sentencing transcript in its entirety, petitioner's claims regarding the voluntariness and intelligence of his guilty plea are dismissed.
3. Sentencing Under New York Violent Felony Offender Statute
After petitioner's guilty plea, the trial court held a hearing, and found that beyond a reasonable doubt, petitioner qualified as a persistent violent felony offender. The Appellate Division affirmed, explicitly stating that petitioner was properly sentenced as a persistent violent felony offender under New York State law. Petitioner now alleges that this finding was erroneous.
However, federal courts conducting habeas corpus review are precluded from examining state criminal sentencing decisions based on state law so long as those decisions do not violate the federal constitution. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Here, the Appellate Division clearly decided that the state law was properly applied, and did so on state law grounds, citing exclusively N.Y. C.P.L. §§ 400.15(8), 400.16. We are thus precluded from reviewing the sentence, because petitioner raises no credible federal constitutional arguments.
We additionally note that at his plea allocution, Jamison was informed that he was being sentenced as a persistent violent felony offender, and made no objection at that time (in stark contrast, for example, to his objections about the quality of his counsel and the alleged lack of communication to him regarding the plea offer) Jamison even admitted that he qualified as a persistent violent felony offender, stating at one point during the proceeding, "Now, I know I'm a persistent, okay. . . ." Jones Decl., Exh. A, at 7. In light of this admission, and the legal conclusions stated above, this claim is dismissed.
4. Petitioner's Right to Be Present
Petitioner's last claim is that he was denied his constitutional right to be present at critical events in his criminal case by the occurrence of a sidebar between counsel and the trial court prior to his arrival at the November 2, 1994 court appearance, at which he pled guilty.
Magistrate Judge Ellis found this claim barred because petitioner had no standing to object to his not being present at the September conference. Judge Ellis concluded that because this conference occurred before petitioner's plea, the guilty plea precluded any objections to it. See RR at 15. It is true that petitioner was not present at the September conference. However, in his responsive papers to the instant motion, petitioner discusses at length his objections to his absence from a sidebar at the November court proceeding. See Pet. Br. at 62-66. Thus, the RR addressed the incorrect issue, as the challenged sidebar occurred at defendant's plea proceeding, and is thus theoretically a proper subject for a habeas corpus petition.
However, because Jamison did not raise this issue in his original state court appeal, it is procedurally barred and we may not reach the merits. See 28 U.S.C. § 2254 (b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 752-57 (1991) (holding that failure to raise an issue on direct appeal precludes habeas review); Jackson v. Leonardo, 162 F.3d 81, 84 (2d. Cir. 1998). Additionally, we note that even had the claim been preserved, this sidebar conversation is not a critical stage to which petitioner's right to be present attaches. See United States v. Collazo-Aponte, 216 F.3d 163, 182 (1st Cir. 2000) (discussing right of defendant to be present at sidebars). This claim is dismissed as procedurally barred.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss this petition for habeas corpus is granted in part and denied in part, without prejudice to renewal following the expansion of the record.
IT IS SO ORDERED.