Opinion
97 CV 4909 (SJ).
August 9, 2004
ROBERT LOVE, Warwick, New York, Petitioner, Pro Se.
CHARLES HYNES, ESQ., Kings County District Attorney, Brooklyn, New York, By: Leonard Joblove, Esq., Jonathan Inker, Esq., Assistant District Attorneys, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Robert Love ("Petitioner"), acting pro se, brought the above-captioned Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 21, 1997. For the reasons set forth herein, the petition is denied.
BACKGROUND
Petitioner was charged with three counts of Robbery in the First and Second Degree, two counts of Grand Larceny in the Fourth Degree, three counts of Petit Larceny, and two counts of Unlawful Imprisonment in the Second Degree, in connection with armed robberies committed on November 1, 1991, November 30, 1991, and December 21, 1991.Petitioner was arrested on January 21, 1992 and arraigned on the above charges on February 19, 1992. Pre-trial proceedings relating to Petitioner's case were adjourned numerous times. In a motion dated June 9, 1993, Petitioner sought dismissal of the indictment, pursuant to New York Criminal Procedure Law §§ 30.20 and 30.30, arguing that his statutory and constitutional rights to a speedy trial had been violated. The New York State Supreme Court, Kings County, denied Petitioner's motion. (Resp't's Ex. D at A-1, Ind. No. 1029/92, N.Y. Sup. Ct. Mem. Dec. dated Oct. 14, 1993.) That court held that several specific periods of delay were not chargeable to the People, and thus that the requirements of N.Y.C.P.L. § 30.30 had been met. Further, the court found that Petitioner's constitutional right to a speedy trial had not been violated. On December 10, 1993, Petitioner renewed his speedy trial motion.
New York Criminal Procedure Law § 30.20 provides generally that defendants are entitled to a speedy trial after a criminal action is commenced. New York Criminal Procedure Law § 30.30 requires that the People be ready for trial within a prescribed time period. As applied to the present case, § 30.30(a) provides that a defendant who is accused of one or more offenses, at least one of which is a felony, is entitled to a trial within six months of the commencement of the criminal action.
On January 4, 1994, and prior to decision on this motion, Petitioner pled guilty to one count of Robbery in the First Degree in full satisfaction of the indictment. (Resp't's Ex. A, Transcript of Guilty Plea ("Ex. A").) The trial court held a plea colloquy at which Petitioner indicated that he had discussed the plea with his attorney (Ex. A at 4) and that he was satisfied with the advice of counsel (Id. at 5). Petitioner also indicated that he understood that he was giving up his right to a jury trial and his right to appeal his conviction and sentence. (Id. at 10-11.) Petitioner stated that he understood there was a motion pending before the court, and that as part of his plea, he waived adjudication of that motion. (Id. at 11.) Petitioner further indicated that he was pleading guilty voluntarily and that he understood that pleading guilty had the same effect as being convicted after trial. (Id. at 12.) Petitioner also signed a form stating that he had waived his right to appeal, "after being advised by the court and my attorney of the nature of the rights I am giving up." (Resp't's Ex. D at A40.)
During the same proceeding, the trial court held a hearing pursuant to N.Y.C.P.L. § 400.21 to determine whether the defendant should be sentenced as a second felony offender pursuant to Penal Law § 70.06, which mandates enhanced penalties. Petitioner indicated that he had discussed the § 400 statement with his attorney and admitted the prior convictions. (Ex. A at 13.) Subsequently the trial judge adjudicated Petitioner a second felony offender. (Id. at 14.) The court further found that Petitioner had pled knowingly and with the assistance of counsel with whom he was satisfied. (Id. at 15.)
On January 13, 1994, Petitioner was sentenced as a second felony offender to a term of seven to fourteen years imprisonment. Petitioner appealed his conviction and sentence to the Appellate Division, Second Department, which affirmed on February 10, 1997. People v. Love, 654 N.Y.S.2d 149 (N.Y.App. Div., 2d Dep't, 1997). The Court of Appeals denied leave to appeal on July 16, 1997. People v. Love, 90 N.Y.2d 895 (N.Y. 1997). Petitioner was released on Parole on March 30, 1999.
On August 4, 1997, Petitioner filed the instant application for a writ of habeas corpus alleging that (1) his conviction was obtained by an involuntary plea of guilty, (2) his statutory and constitutional right to a speedy trial was violated, (3) he was denied the effective assistance of trial counsel, and (4) he was erroneously adjudicated as a second felony offender. On December 12, 1997, the Kings County District Attorney's Office filed its Opposition to the Petition on behalf of Respondent. Petitioner did not Reply or have any further communication with the Court.
DISCUSSION
I. Procedural Issues and Standard of Review
In order to be heard in federal court, a habeas petitioner must exhaust available state court remedies. "The requirement for exhaustion is not intended to exhaust the petitioner or his or her lawyers, but is designed to give the state courts the opportunity to address and correct violations of Constitutional rights. That purpose is fulfilled when the state court has a fair and meaningful chance to grant relief on what is substantially the same claim raised in federal court." Jones v. Keane, 329 F.3d 290, 295 (1993). Failure to exhaust claims that could have been raised in state court acts as a procedural bar to raising those claims in federal court, unless an applicable exception applies. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (reiterating the rule that federal courts may address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner); Murray v. Carrier, 477 U.S. 478, 496 (1986) ("[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.").
Federal courts also may not consider the merits of federal constitutional claims on habeas review when a state court has already considered those claims and found them to be procedurally barred in state court by an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 730 (1991);Wainwright, 433 U.S. at 81, 87.
Claims on state convictions that are reviewable in federal court are nonetheless subject to a deferential standard of review. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if the federal court concludes that the state court's adjudication of the claim "(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." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established Federal law where "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). A state court decision involves an "unreasonable determination of the facts" where the state court correctly identifies the governing legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the petitioner's case. Id. at 413. Thus, a federal court may only grant habeas relief where the state court's application of clearly established federal law was not only erroneous, but objectively unreasonable. Id. at 409. The federal court may not substitute its judgment for that of the state court.
Federal claims which have not been adjudicated on the merits are reviewed under the de novo pre-AEDPA standard. Washington v. Schriver, 255 F.3d 45 (2d Cir. 2001). This Court finds that under the applicable standards of review, none of Plaintiff's claims may serve as the basis for habeas relief. II. Petitioner's Claims
A. Ineffective Assistance of Counsel
Petitioner claims that he was denied the Sixth Amendment right to the effective assistance of counsel because counsel encouraged him to plead guilty prior to determination of the second speedy trial motion. Because this claim is based on facts that appear on the record, it should have been raised in Petitioner's direct appeal. Petitioner's failure to exhaust this claim in state court bars him from raising this claim on federal habeas review. See Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991). Petitioner asserts no circumstances that could serve as cause that might excuse this failure, nor does he allege prejudice or a fundamental miscarriage of justice. Accordingly, this claim is unexhausted and must be dismissed.
B. Speedy Trial Violation
Petitioner contends that his statutory and constitutional rights to a speedy trial were violated. The state court already considered the statutory claim and rejected it on independent and adequate state procedural grounds. The Appellate Division found that Petitioner had forfeited this claim by pleading guilty, and that he had expressly waived his right to appeal. The Appellate Division further found that Petitioner's constitutional claim, insofar as it was based on the period addressed in his second speedy trial motion of December 10, 1993, was procedurally barred because he had abandoned the claim by pleading guilty prior to a determination of the motion by the trial court. Because these two claims were procedurally barred on independent and adequate state grounds, they are procedurally barred from federal habeas review and must be dismissed.
To the extent that Petitioner challenges the delay between January 21, 1992, when he was arrested, and June 9, 1993, when he filed the first speedy trial motion, this claim is without merit. The Supreme Court has established four factors to be considered in evaluating a constitutional speedy trial claim: the length of the relevant delay, the cause of the delay, the prejudice to the defendant, and the defendant's assertion of his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530 (1972). Having reviewed Petitioner's claims and the record of delays and continuances granted in his case prior to his guilty plea, this Court finds that the delay was neither unreasonable nor prejudicial. Accordingly, Petitioner's remaining speedy trial claim is denied.
C. Involuntary Guilty Plea
Petitioner claims that his guilty plea was not knowing and voluntary because his attorney pressured him into pleading guilty. There is no evidence in the record to support this claim. As indicated above, the trial court conducted a full plea colloquy, questioning Petitioner about what he was pleading guilty to (Ex. A at 9), why he was pleading guilty (Id. at 12), and his understanding of the consequences of that plea, including its impact on the pending motion to dismiss (Id. at 10-12). Further, Petitioner was asked if he had discussed the plea with his attorney and if he was satisfied with the advice of counsel, and Petitioner answered in the affirmative. (Id. at 4-5). There is no indication in the record that the plea was anything but knowing and voluntary. Accordingly, this claim is denied.
D. Improper Adjudication as a Second Felony Offender
Petitioner claims that his adjudication as a second felony offender and subsequent sentence enhancement pursuant to N.Y.C.P.L. § 400.21 and Penal Law § 70.06 violated due process because he was not given an opportunity to controvert his prior felony conviction. Respondent argues that this claim is not cognizable under federal habeas review because it is a matter of state law and does not present a federal question. (Resp't's Opp'n at 15, citing Morris v. Kuhlmann, No. 84 Civ. 2293, 1984 U.S. Dist. LEXIS 14863, at *4 (S.D.N.Y. July 18, 1984) ("The question of using a Canadian conviction as a basis for sentencing as a second felony offender is a matter of state law and does not present a federal question suitable for federal habeas corpus review.") and Mendez v. Reid, No. 83 Civ. 3575, 1983 U.S. Dist. LEXIS 13328, at *3 (S.D.N.Y. Sept. 28, 1983) ("[T]he question of which party bears the burden of proving the unconstitutionality of a prior conviction is resolved entirely by state law.").)
The Court finds that Petitioner's due process claim is cognizable under federal habeas review, but that his claim is not supported by the record. Petitioner does not challenge the definition of prior conviction or the burden-shifting provisions established by § 400.21; rather, he alleges that the trial court's failure to properly follow those procedures violates the Due Process Clause of the United States Constitution. A due process challenge is clearly cognizable under federal habeas review.
Section 400.21(2) provides that "[t]he defendant must be given a copy of such statement [setting forth the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration] and the court must ask him whether he wishes to controvert any allegation made therein. If the defendant wishes to controvert any allegation in the statement, he must specify the particular allegation or allegations he wishes to controvert. Uncontroverted allegations in the statement shall be deemed to have been admitted by the defendant." N.Y.C.P.L. § 400.21. Petitioner claims that the trial court failed to give him an opportunity to controvert the charges. (Pet. at Ground (5).) Yet the transcript of the plea colloquy clearly indicates that the court asked Petitioner whether he admitted or denied the prior convictions and Petitioner stated "I admit them." (Ex. A at 13.) The court recited the date and nature of the last conviction and specifically inquired into the previous plea colloquy in order to verify that the plea and conviction were constitutionally obtained. (Id. at 13-14.) Accordingly, this Court finds that the adjudication of Petitioner as a second felony offender was in accordance with the procedures outlined by N.Y.C.P.L. § 400.21 and with the federal Due Process Clause. Petitioner's claim must be denied.
Petitioner does not challenge the constitutionality of New York's second felony offender statute and sentencing regime. Some courts have recently applied Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002) to § 400.20, the related section involving persistent felony offender adjudications, and found that section to be unconstitutional.See Brown v. Greiner, 258 F. Supp. 2d 68, 71-72 (E.D.N.Y. 2003) (Gleeson, D.J.), Besser v. Walsh, No. 02 Civ. 6775, 2003 WL 22801952 (S.D.N.Y. Nov. 26, 2003) (Peck, M.J.); People v. West, 768 N.Y.S.2d 802 (N.Y.Sup.Ct. 2003) (Bradley, J.),People v. Cephas, No. 5473/01, 2003 WL 21783355, 2003 N.Y. Slip Op. 51068(U), at *1-2 (N.Y.City Crim. Ct. May 23, 2003) (Stone, J.). But see People v. Rawlins, No. 2476/03, 2004 WL 362349 (N.Y.Sup.Ct. Feb. 25, 2004) (holding that discretionary persistent felony offender scheme was constitutional). However, that procedural rule required the judge to also find, by a preponderance of the evidence, additional facts regarding "matters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct." N.Y.C.P.L. § 400.20(5). Section § 400.21, on the other hand, requires only that the judge determine the fact of a predicate felony conviction "based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt." N.Y.C.P.L. § 400.21(7)(a). This inquiry is well within the exception established by the Supreme Court inApprendi v. New Jersey. 530 U.S. 466 (2000) (holding that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt).
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. See Miller-El v. Cockrell 537 U.S. 322, 336 (2003) (reiterating the standard for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.SO ORDERED.