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finding counsel's performance effective where the "greatly reduced sentence" negotiated by counsel "belie[d] any claim of ineffective assistance" and where petitioner agreed with the judge's comment at sentencing that he had "an excellent lawyer"
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05 Civ. 1998 (SAS).
August 22, 2006.
Daniel Lugo # 00-A-1308 Eastern Correctional Facility Napanoch, New York, Petitioner Pro Se.
Michelle Maerov Assistant Attorney General New York, New York, for Respondent.
OPINION AND ORDER
Daniel Lugo, appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("section 2254") challenging his state court convictions for Possession of a Controlled Substance in the Third Degree and Conspiracy in the Second Degree. Lugo is currently serving two concurrent indeterminate terms of imprisonment of six to twelve years. Lugo asserts the following grounds for habeas relief: (1) that he was denied effective assistance of counsel because his attorney: (a) failed to file suppression motions; (b) prevented him from testifying before the grand jury; and (c) did not properly advise him with regard to the plea offer; (2) that he was denied the right to counsel when the police spoke to him in the absence of counsel, after the right to counsel had attached, and used statements obtained in that conversation to obtain a search warrant for his apartment from which drugs and a gun were recovered; and (3) the indictment charging him with conspiracy was jurisdictionally defective in that it alleged two separate conspiracies and did not allege an overt act with respect to the conspiracy in which petitioner was involved. For the reasons set forth below, Lugo's petition is denied.
See id. § 105.15.
I. BACKGROUND
For purposes of this petition, Lugo's version of the facts is assumed to be true.
In a series of telephone conversations held between June 17, 1999 and November 4, 1999, Lugo and others conspired to distribute cocaine and heroin. On November 5, 1999, a grand jury charged Lugo with one count of second degree conspiracy to possess and sell a controlled substance. On November 30, 1999, petitioner was arrested pursuant to an arrest warrant, in possession of white powder, two boxes of glassine envelopes, a digital scale, and strainers. After arresting Lugo, police officers sought Lugo's consent to enter and search his apartment, which he refused.
See Special Narcotics Indictment Number 8241/99 (the "Indictment"), Ex. M to the Declaration of Assistant Attorney General Michelle Maerov in Opposition to Petition for a Writ of Habeas Corpus ("Maerov Decl."), ¶¶ 1-12.
See id. ¶ 5.
See Respondent's Memorandum of Law in Opposition to Petition For a Writ of Habeas Corpus ("Opp. Mem.") at 2.
See Petitioner's Memorandum of Law in Support of a Petition for Writ of Habeas Corpus ("Pet. Mem.") at 3.
While questioned by the police, Lugo asked to have his attorney present, but this request was denied. The police then coerced Lugo into disclosing that a gun and an amount of heroin were in his apartment. Based on this admission, the police obtained a search warrant and seized the items. On January 21, 2000, petitioner was charged with criminal possession of a controlled substance pursuant to Superior Court Information Number 9877/99.
See id.
See id. at 3-4.
See id. at 4.
See Opp. Mem. at 2-3.
B. Plea Allocution and Sentencing
Lugo's counsel negotiated a plea agreement, in which Lugo agreed to serve two sentences of six to twelve years, to run concurrently, for both the conspiracy and possession charges. On January 21, 2000, Lugo pled guilty to both charges before Judge Leslie Crocker Snyder. Judge Snyder confirmed that Lugo was aware of his right to prosecution by grand jury indictment on the possession charge and that he waived this right and agreed to be prosecuted by a Superior Court Information. Lugo also confirmed that he was pleading guilty to both charges of his own free will, that he discussed his case and guilty plea with counsel, and that he was knowingly waiving his right to a trial by pleading guilty.
See 1/21/00 Plea Transcript ("Plea Tr.") at 10.
See id. at 3-4.
See id. at 4-6.
The court next addressed the factual allegations underlying the second-degree conspiracy count. The court informed petitioner that he was being charged with a conspiracy to distribute heroin and cocaine. In furtherance of that conspiracy, the judge recounted a telephone conversation held on July 13, 1999, where petitioner informed a co-conspirator that he would try obtain crack cocaine for him but that he could not get it on consignment. Petitioner admitted the truth of this overt act allegation. Petitioner further admitted that on November 30, 1999, he knowingly and unlawfully possessed heroin with intent to sell.
See id. at 6-7.
See id. at 9.
See id.
See id. at 9-10.
Petitioner was sentenced on February 4, 2000. At his sentencing, Lugo reaffirmed the admissions of guilt he made at his plea allocution and was sentenced to two concurrent prison terms of six to twelve years.
See 2/4/00 Sentencing Transcript ("Sent. Tr.") at 2, 5-8.
C. Post-Sentence Proceedings
1. Petitioner's First Motion to Vacate the Judgment of Conviction Pursuant to New York Criminal Procedure Law § 440.10 ("section 440.10")
On June 16, 2001, Lugo moved pursuant to section 440.10 to vacate his conviction and sentence on the grounds that: (1) the Indictment was jurisdictionally defective in that it did not set forth an overt act that petitioner committed in furtherance of the conspiracy; (2) the police violated petitioner's right to counsel in questioning him without counsel after he had been indicted; (3) the search warrant affidavit was premised on inappropriately obtained information; and (4) petitioner's counsel was ineffective for permitting him to plead guilty to a defective indictment. On January 25, 2002, the trial court denied petitioner's motion for the reasons set forth in the People's response. On June 6, 2002, the First Department granted petitioner leave to appeal the denial of his section 440.10 motion and consolidated that appeal with petitioner's direct appeal of his conviction.
See Affidavit of Daniel Lugo in Support of Motion to Vacate Judgment Sentence Pursuant to C.P.L. § 440.10, Ex. A to the Maerov Decl., at 4.
See 1/25/02 Order of Justice Leslie Crocker Snyder, Ex. B to the Maerov Decl.
See Certificate Granting Leave, Ex. C to the Maerov Decl.
2. Petitioner's Direct Appeal of His Conviction and the Denial of His First Motion to Vacate Under Section 440.10
In June of 2002, through counsel, Lugo filed a brief appealing both his conviction and the denial of his motion to vacate under section 440.10. Lugo argued that the Indictment was jurisdictionally defective because it failed to allege an overt act in furtherance of the charged conspiracy. Counsel did not raise any new claims or address any of the other claims raised in petitioner's motion to vacate. Petitioner argued that "[a]lthough the indictment alleged overt acts in furtherance of a conspiracy to obtain and sell heroin, [petitioner] was not a party to that conspiracy. As to the conspiracy to which appellant was a party, the overt acts alleged in the indictment reflected nothing more than the agreement itself." On October 2, 2003, the Appellate Division unanimously affirmed petitioner's conviction and the denial of his section 440.10 motion. In so doing, the court stated
See Brief for Defendant-Appellant, Ex. D to the Maerov Decl., at 7.
Id.
See People v. Lugo, 765 N.Y.S.2d 23 (1st Dep't 2003) (citations omitted).
[t]here was no jurisdictional defect in the conspiracy count of the indictment. Contrary to defendant's argument, the indictment did not charge two separate conspiracies. Instead, it charged one conspiracy to engage in conduct constituting the crimes of criminal sale and criminal possession of a controlled substance, each in the first degree. As illustrated by the overt acts alleged in the indictment, the conspiracy involved the operation of a narcotics-trafficking organization, which included the sale of both heroin and cocaine. The conversations between the other conspirators constituted overt acts which established the existence of this conspiracy, and the alleged acts, when viewed as a whole, connect defendant to the conspiracy.
In any event, even if the indictment is deemed to have alleged two conspiracies, we find that it sufficiently alleged overt acts establishing a conspiracy to sell cocaine. The conversations between defendant and a coconspirator established more than a mere agreement to sell cocaine.
Id. at 23-24.
The court further held that petitioner received "meaningful representation in connection with his guilty plea."
Id. at 24.
3. Petitioner's Second Motion to Vacate the Judgment of Conviction Pursuant to Section 440.10
On April 27, 2004, Lugo filed a second motion to vacate his conviction pursuant to section 440.10. Lugo claimed he received ineffective assistance of counsel because his attorney allegedly: (1) failed to move to suppress evidence, (2) failed to investigate how the search warrant was acquired, and (3) interfered with his right to testify before a grand jury. Judge Arlene Silverman denied petitioner's motion on July 1, 2004, because
See 4/27/04 Notice of Motion to Vacate Judgment, Ex. H to the Maerov Decl.
See Affidavit in Support of Motion to Vacate Judgment, Ex. H to the Maerov Decl., at 4, 6.
defendant made a knowing and voluntary waiver of his rights at the time of his plea. He was represented by counsel at all steps of the proceedings and was no novice to the criminal justice system, having been previously convicted of multiple crimes over the past 25 years. The defendant benefitted significantly from the plea bargain in this case, as he was facing sentencing as a possible persistent felony offender.
7/1/04 Order of the Honorable Arlene Silverman, Ex. J to the Maerov Decl.
Judge Silverman also noted that both the sentencing court and the First Department previously considered Lugo's claims of ineffective assistance of counsel and found them to be meritless. Although petitioner requested leave to appeal, his leave application was denied on September 20, 2004.
See 7/15/04 Affidavit in Support of Application to Justice of Appellate Division for Certificate Granting Permission to Appeal to Appellate Division, Ex. K to the Maerov Decl.
See 8/26/04 Certificate Denying Leave, Ex. L to the Maerov Decl.
II. LEGAL STANDARDS
A. Statutory Provisions
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA provides that a federal court can grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
As explained by the Supreme Court in Williams v. Taylor, a state court decision is "contrary to" clearly established federal law if: (1) the state court reaches a different result than that mandated by the Supreme Court when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent;" or (2) the state court "applies a rule that contradicts the governing law" set forth in Supreme Court cases. The "unreasonable application" provision of section 2254(d)(1) permits a federal habeas court to grant the writ
Williams v. Taylor, 529 U.S. 362, 404-05 (2000).
if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case. In other words, a federal court may grant relief when a state court has misapplied a governing legal principle to a set of facts different from those of the case in which the principle was announced. In order for a federal court to find a state court's application of our precedent unreasonable, the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quotation marks and citations omitted).
Following Williams, the power of a federal habeas court to grant a state prisoner's application with respect to claims adjudicated on the merits in state court is sharply circumscribed. The Williams standard prohibits a federal habeas court from substituting its own judgment for that of the state court judge, thereby requiring a great deal of deference to the state court judgment.
B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions. The Sixth Amendment "'stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done.'" To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington. A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." The second prong requires a petitioner to "affirmatively prove prejudice," i.e., to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
See U.S. Const. amend. VI.
Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938)).
466 U.S. 668, 687 (1984).
Id. at 688.
Id. at 694.
The Supreme Court has held "that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." To establish an ineffective assistance claim within the context of a guilty plea, a petitioner must show that his counsel's constitutionally ineffective performance affected the outcome of the plea process such that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Furthermore, the "[f]ailure to make a meritless argument does not amount to ineffective assistance."
Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Id. at 59.
United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).
III. DISCUSSION
A. Claims Waived by Pleading Guilty
Several of Lugo's claims result from events or circumstances which occurred before he pled guilty. In particular, Lugo claims that he received ineffective assistance of counsel because his attorney did not file suppression motions and because he interfered with Lugo's desire to testify before the grand jury. Furthermore, petitioner claims that the police violated his right to counsel when they questioned him alone, after he demanded counsel, and thereafter conducted an unlawful search of his apartment. Lugo argues that because his right to counsel was violated, the search and seizure was illegal and any evidence seized should have been suppressed.
See Pet. Mem. at 9-10.
But Lugo has effectively waived these claims by pleading guilty. "A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea. 'He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.'" As stated by the Supreme Court,
United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973) (alteration in original)).
a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Lefkowitz v. Newsome, 420 U.S. 283, 295 (1975).
The record establishes that Lugo pled guilty to both the conspiracy and possession charges unconditionally while represented by counsel. Lugo's admission of guilt to both charges, and the trial court's verification that Lugo consulted with his attorney, demonstrate the knowing and voluntary character of his guilty plea. Petitioner's plea therefore precludes any constitutional claims resulting from conduct occurring before his guilty plea. Thus, the aforementioned ineffective assistance of counsel claims, as well as petitioner's denial of the right to counsel and his illegal search and seizure claims, cannot survive as a matter of law and must be dismissed.
See United States v. Arango, 966 F.2d 64, 66 (2d Cir. 1992) (holding that a defendant's guilty plea waived his right to object to the constitutionality of the search of his property); Smith v. Burge, No. 03 Civ. 8648, 2005 WL 78583, at *8 (S.D.N.Y. Jan. 12, 2005) ("if a habeas petitioner entered a voluntary and knowing guilty plea while represented by competent counsel, any non-jurisdictional defects, including defects with regard to grand jury proceedings, are waived"); Jordan v. Dufrain, No. 98 Civ. 4166, 2003 WL 1740439, at *3 (S.D.N.Y. Apr. 2, 2003) (finding that guilty pleas render "any errors in the grand jury proceedings . . . harmless"); Reyes v. Mantello, No. 00 Civ. 8936, 2003 WL 76997, at *1-2 (S.D.N.Y. Jan. 9, 2003) (denying habeas relief where petitioner challenged the admission of his confession made while deprived of his right to counsel because petitioner pled guilty); White v. Sabourin, No. 00 Civ. 3287, 2002 WL 418023, at *5 (S.D.N.Y. Mar. 13, 2002) ("Since Fourth Amendment rights are nonjurisdictional, a knowing and voluntary guilty plea waives Fourth Amendment claims."); Tobon v. United States, 132 F. Supp. 2d 164, 168 (S.D.N.Y. 2001) (same); Lloyd v. Walker, 771 F. Supp. 570, 576-77 (E.D.N.Y. 1991) ("Having admitted to the factual basis of the charges against him upon entering a plea of guilty, any error in the proceeding which led to his indictment is . . . rendered harmless, and is not a cognizable claim in a federal habeas proceeding.").
B. Jurisdictionally Defective Indictment
Lugo's second argument is that the Indictment was defective because it failed to allege an overt act in connection with a conspiracy to distribute cocaine, thereby depriving the trial court of jurisdiction over the conspiracy charge. According to Lugo, the Indictment alleged two distinct conspiracies which were not connected to each other. Moreover, he argues that the telephone calls described in the Indictment as overt acts were mere conversations and, as such, cannot constitute overt acts in furtherance of a conspiracy.
See Pet. Mem. at 19.
See id. at 21.
See id.
In general, "challenges to the sufficiency of a state indictment are not issues cognizable on habeas review." However, under limited circumstances, habeas relief may be available where a petitioner claims that an indictment did not adequately inform him of the charges against him. The sufficiency of an indictment is measured by two criteria. "These criteria are, first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Thus, an indictment is constitutionally sufficient "when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events."
Medina v. Herbert, No. 98 Civ. 1871, 1998 WL 799173, at *5 (S.D.N.Y. Nov. 16, 1998).
See id. ("A defect in a state indictment can form the basis for federal habeas relief only if the indictment falls below basic constitutional standards.").
See Russell v. United States, 369 U.S. 749, 763-64 (1962).
Id. (quotation marks and citations omitted).
United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (citing Russell, 369 U.S. at 763-64).
Petitioner does not contend that the Indictment did not sufficiently inform him of the charges against him. Nor does he claim that he faced the possibility of double jeopardy based on the vagueness of the accusatory instrument. The Indictment contains two pages of overt acts consisting of telephone conversations conducted in furtherance of a drug-trafficking conspiracy. In particular, several calls intercepted by the State in July 1999 describe Lugo's plans to obtain cocaine for distribution while a call intercepted in October 1999 discusses the receipt of heroin on consignment. Petitioner was therefore adequately apprised of the charges leveled against him. Accordingly, the Appellate Division's decision finding no jurisdictional defect in the Indictment was neither contrary to, nor involved an unreasonable application of, federal law governing the constitutional sufficiency of indictments. Having failed to rebut this presumption with clear and convincing evidence, Lugo's defective indictment claim must be dismissed.
C. Ineffective Assistance of Counsel
In light of the above, the only remaining claim cognizable in this habeas proceeding is petitioner's claim that he received ineffective assistance of counsel with regard to his plea. In particular, Lugo claims that his attorney failed to advise him as to whether to accept the plea offer. In contrast, the First Department found that petitioner "received meaningful representation in connection with his guilty plea." The question, then, is whether this finding is in conflict with the constitutional standard established by the Supreme Court in Strickland v. Washington.
Notably, petitioner does not take issue with the validity of the plea proceedings themselves, nor could he given that the record of the plea proceedings shows that petitioner's plea was knowing and voluntary.
See Pet. Mem. at 11 ("Instead of offering any adequate legal advice, counsel urged me to take the plea offered, rather than subject the prosecution's case to 'adversarial testing.'").
People v. Lugo, 765 N.Y.S.2d at 24.
Lugo cannot overcome the strong presumption that his counsel's conduct was reasonable under Strickland. Lugo did not allege that his attorney did not vigorously pursue the best deal he could get in plea negotiations. Had a jury found Lugo guilty of both charges, he could have received two consecutive sentences, each carrying a maximum of twenty-five years of imprisonment. With the assistance of counsel, Lugo's sentence for both charges was negotiated down to two concurrent terms of six to twelve years of imprisonment. Lugo's counsel negotiated a greatly reduced sentence that belies any claim of ineffective assistance. The sentencing transcript also reveals that Lugo believed his counsel was effective. When the trial judge told Lugo, "[y]ou have an excellent lawyer," Lugo replied, "I understand that, Your Honor."
See id. at 9-10.
See Sent. Tr. at 8.
See Owens v. United States, No. 00 CR 387, 2002 WL 31357734, at *2 (S.D.N.Y. Oct. 17, 2002) (finding counsel effective where his advice to plead guilty resulted in "a more lenient prison term than that he could have received had he been convicted at trial").
Sent. Tr. at 8.
Furthermore, Lugo has made no affirmative showing of prejudice. Nowhere does Lugo state that he would have refused to plead guilty, and proceeded to trial, but for the allegedly inadequate advice from counsel. Because Lugo has failed to show that his attorney's conduct was objectively unreasonable and has not made an affirmative showing of prejudice under the Strickland standard, his remaining ineffective assistance of counsel claim is dismissed.
Quoting Strickland, 466 U.S. at 694, petitioner states that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different.'" Pet. Mem. at 12. But petitioner does not go on to state how the result would have been different. Such conclusory allegations do not meet Strickland's prejudice requirement.
IV. CONCLUSION
For the foregoing reasons, Lugo's habeas petition is dismissed. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, Lugo must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Lugo has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this motion (Document No. 1) and this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).
SO ORDERED.