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declining to hold evidentiary hearing on § 2254 petition, where, inter alia, petitioner made conflicting statements about counsel's alleged errors
Summary of this case from Colabatistto v. United StatesOpinion
02 Civ. 1185 (HB).
June 23, 2003.
OPINION ORDER
Mark A. Smith ("petitioner") brings this habeas petition pursuant to 28 U.S.C. § 2254 to challenge the lawfulness of the duration of his imprisonment. Specifically, petitioner alleges that the judgment entered by Judge Lange on April 19, 1999 following his guilty plea is unlawful because (1) the judge's bias deprived him of due process, (2) he was denied effective assistance of counsel and (3) the judge erred by failing to conduct an evidentiary hearing on his motion for reassignment of counsel. Magistrate Judge Mark Fox recommended in his Report and Recommendation ("R R") that the Court deny the petition. Smith timely filed his objections to Judge Fox's R R. For the following reasons, the petition is denied and the R R affirmed.
Petitioner does not seek to withdraw his guilty plea, but rather only to challenge the duration of his sentence. Pet. Habeas at 7.
Petitioner's habeas specifically addresses only the errors allegedly made by Judge Lange. See Pet. Habeas Preliminary Statement. Accordingly, I will only consider his conduct here.
I. BACKGROUND
On January 8, 1998, petitioner used two stolen checks, with signatures he had forged, as well as a fake ID, to withdraw $1,381 from the bank account of one of the bank's clients. In April of that year, petitioner was arrested for other crimes involving checks. A grand jury indicted petitioner on two counts of criminal possession of a forged instrument in the second degree; two counts of forgery in the second degree; and one count of grand larceny in the fourth degree. Petitioner was arraigned on the indictment on August 18, 1998 and counsel was appointed. For undisclosed reasons, counsel moved to be relieved, and Robert Schneider, Esq. was assigned on August 28, 1998 to represent him.
At the September 10, 1998 pre-trial conference, petitioner appeared with his new counsel before Judge Perone. Petitioner's counsel announced that his client was rejecting a plea bargain to one count of forgery in the second degree in full satisfaction of the indictment, with a sentence promise of 2 to 4 years as a predicate felon. See Tr. at A2; Pet. Affid. at 2. During the proceeding, Judge Perone discussed with petitioner's counsel the briefing schedule for a motion to dismiss and denied petitioner's application for a writ of habeas corpus, which he had earlier submitted pro se. Tr. at A7-12. On October 1, 1998, petitioner's counsel served and filed a pretrial motion seeking the following relief: inspection of the Grand Jury minutes; dismissal of the indictment; suppression of identification testimony and statements made by petitioner; a hearing to determine the admissibility of evidence relating to petitioner's criminal convictions; and an order directing discovery and inspection of twenty-three enumerated items.
The Court will refer to the transcript pagination in Respondent's Addendum.
At the next pre-trial conference on November 23, 1998, petitioner, accompanied by his counsel, rejected the plea offer of 2 to 4 years, which is the minimal permissible sentence as a predicate felon. Tr. at A16. In addition, petitioner sought to have his counsel relieved and to have another counsel assigned, apparently on the ground that he was dissatisfied with the infrequent visits to him at jail. Id. at Al 7. At first, petitioner complained that his counsel visited him at jail only once during the past three months. Id. He later stated that his counsel never came to see him. Id. Judge Perone rejected petitioner's motion, noting that as far as he could tell, petitioner's counsel "is an able attorney . . . [who] represented you [and] submitted two motions" on petitioner's behalf during the past three months." Id.
On November 25, 1998, a scheduling conference was held before Judge West. Petitioner orally applied again to have new counsel assigned on the grounds that his current counsel had yet to visit him and because he refused to act as his counsel for his appeal. Id. at A24-25. Judge West instructed petitioner to submit a written motion describing how his counsel had failed to properly represent him. Id. at A26-27. On February 23, 1999, petitioner appeared with his attorney before Judge Lange and again sought to have new counsel assigned. Petitioner represented in open court that he had submitted a written motion for new counsel as instructed, and that over the past six months, he had seen his counsel just once, on February 9, 1999. Id. at A34-35. No one other than petitioner, however, has ever seen the alleged motion. He never served it on his counsel or the government, and the court had no record of it either. In view of the utter lack of any evidence that the motion was ever filed, Judge Lange concluded, notwithstanding petitioner's self-serving statements, that petitioner had failed to follow Judge West's directive. Id. at A37. Nonetheless, Judge Lange agreed to consider petitioner's oral motion.
Notably, petitioner has yet to produce any record of the written motion or evidence that he filed it, which might demonstrate Judge Lange's assessment of petitioner's truthfulness to be inaccurate, or that his conclusion was incorrect.
In response to petitioner's motion, counsel stated that the first time he attempted to visit the petitioner, he was informed that petitioner refused to see him, but that he has since seen petitioner and taken "numerous telephone calls" from petitioner. Id. at A36. At first, petitioner did not dispute that he had numerous contacts with counsel by phone, but rather he demurred that "there is no way, no possible way to discuss a case over the phone." Id. at A37. Perhaps realizing Judge Lange was not persuaded, petitioner recanted his earlier admission, and professed that his counsel had not seen him even once in the past six months. Id. at A38. In addition, petitioner charged, despite the two motions that counsel had submitted earlier on his behalf, that his counsel had not made any investigation into the facts of the case and did not take any of his phone calls. Id. at A39. When Judge Lange questioned petitioner's veracity, petitioner conceded that counsel had indeed taken his phone calls. Id. Petitioner proclaimed, however, that he was unable to discuss the case with counsel on the phone because counsel allegedly "[would not] allow it." Id. Apparently, Judge Lange did not find petitioner's claims to be credible. Without hearing counsel's reply as to petitioner's latest version of events, Judge Lange concluded that petitioner had "not set forth any basis showing any conflict of interest or any inadequacy on his representation or any incompetence on his part" and denied petitioner's motion for assignment of new counsel. Id.
When petitioner then sought to accept the 2 to 4 year plea bargain that had been offered by Judge Perone, Judge Lange declined to extend the offer, and instead offered petitioner a "one day special" of 2 1/2 to 5 years. Petitioner attempted unsuccessfully to negotiate with the judge to preserve his right to appeal his conviction. Judge Lange eventually withdrew his offer, apparently tiring of petitioner's attempt to alter the terms of the plea bargain to preserve his right to appeal, see id. at 48-56 (debate by petitioner with the court regarding whether there was a statutory basis under N.Y.C.P.L. 190.50, 210.20 or 210.35, or common law basis under People v. Seaberg, 74 N.Y.2d 1 (1989), to preserve his right to appeal following a plea bargain), or to create an appealable issue during his allocution, see id. at 62-63 (refusal by petitioner to further discuss plea bargain with his attorney and then claiming he did not have enough time to talk to his attorney to make a decision during his allocution). Two days later, on February 25, 1999, petitioner pled guilty to criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25) in exchange for a sentence of three to six years.
II. STANDARD OF REVIEW
Under 28 U.S.C. § 2254, federal courts have limited power to review criminal convictions in state court. Section 2254(d) provides,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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. Further, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting a habeas review, federal courts are limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Pursuant to the Federal Rules of Civil Procedure, a district court reviews de novo the portion of the magistrate judge's R R to which specific written objection has been made. Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Judicial Bias
Petitioner, in his habeas petition and Objections to the R R, asserts that Judge Lange, as a result of "clear bias," denied him the right to an evidentiary hearing to determine whether he should be afforded the benefit of the 2 to 4 year plea offer that Judge Perone offered to him earlier. As evidence of the bias, petitioner notes that Judge Lange (1) refused to re-extend the 2 to 4 year plea offer, despite petitioner's statement to Judge Lange that he would unconditionally accept the offer; (2) "penalized" petitioner by withdrawing the 2 1/2-5 year plea offer after petitioner "truthfully" refused to acknowledge that he had adequately discussed the plea with his counsel; (3) suggested at sentencing that the parole board should never release petitioner; and (4) made various other comments that petitioner found offensive.
Petitioner notes, for example, that Judge Lange stated during a pre-trial conference, "I would like to hear what [counsel] has to say before I toss [petitioner's motion for new counsel] out the window." Tr. at A36.
The Court's authority to review a claim of a state court judge's judicial bias is narrow and restricted to "due process and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court." Garcia v. Warden Dannemora Correctional Facility, 795 F.2d 5, 7 (2d Cir. 1986) (citations omitted and additions in original). In point of fact, only rarely does a judge's conduct rise to the level of a due process violation. Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985). "[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555 (1994).
The harm, if any, to petitioner's due process rights by Judge Lange's conduct and statements, while unfortunate, do not in my view, rise to a constitutional level. See Liteky, 510 U.S. at 555 ("judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"); see also United States v. Diaz, 176 F.3d 52, 112 (2d Cir. 1999). Judge Lange has discretion not to tender the same offer extended by Judge Perone. See Santobella v. New York, 404 U.S. 257, 262 (1971) (criminal defendant has no absolute right to a plea bargain); see also People v. Dicks, 266 A.D.2d 106, 106 (1st Dep't 1999) (a court is under no obligation to hold open a rejected plea offer). Further, Judge Lange's requirement that petitioner affirm that he conferred with counsel to his satisfaction before the accepting the plea can hardly be characterized as evidence of bias. See People v. Esajerre, 35 N.Y.2d 463, 466-67 (1974) (a court can impose reasonable conditions on a guilty plea in return for a reduced sentence). Judge Lange gave petitioner the opportunity to discuss the plea further with his counsel, and he declined. Tr. at A62. In view p the self-imposed impasse by petitioner, i.e., refusing to discuss the plea further with his counsel and refusing to allocute that he had adequate discussion with counsel, Judge Lange can hardly be faulted for withdrawing the plea offer. As to the comments made by Judge Lange, they do not come close to cases where this Circuit has denied petitioner's claim of judicial bias. See, e.g., Gayle v. Scully, 779 F.2d 802, 806-13 (2d Cir. 1985) (judge disparaged defense counsel, asked questions to bolster the prosecution's case, and inquired whether members of defendant's Rastafarian religion were "assassins" and animals); Johnson v. Scully, 727 F.2d 222, 225-27 (2d Cir. 1984) (judge directly questioned defendant's claim of innocence and frequently rebuked defense counsel in front of the jury); Daye v. Attorney General of State of N.Y., 712 F.2d 1566, 1568-70 (2d Cir. 1983) (judge asked questions to reinforce testimony favorable to prosecution in the identification of defendant and challenged defendant's version of events); see also Francolino v. Kuhlman, 224 F. Supp.2d 615, 641-52 (judge disparaged defense counsel and stated she thought a defense witness was "full of bologna."). In light of the comments outlined above, Judge Lange's conduct and remarks did not create the kind of fundamental unfairness required by the Supreme Court in order to show the requisite deprivation of due process.
B. Ineffective Assistance of Counsel
Petitioner contends that his counsel failed to "advise him on the desirability of a two (2) — four (4) year plea offer and on whether to accept or reject the plea offer, not only at the time the plea offers were made but throughout the state court proceedings." Pet. Obj. at 2. This ineffective assistance claim requires, in order for petitioner to prevail, a demonstration that counsel's performance fell "below an objective standard of reasonableness" and that there is a "reasonable probability" that the outcome would have been different if not for the deficient representation." Strickland v. Washington, 466 U.S. 668, 688 (1984).
Petitioner argues that under Boria v. Keane, counsel was required to advise him of the desirability of taking the 2 to 4 year plea offer. See 99 F.3d 492 (2d Cir. 1996). To provide adequate advice in the context of a plea, counsel "should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed." Purdy, 208 F.3d at 45. The Second Circuit, however, has rejected petitioner's contention that defense counsel must always advise his or her client, "regardless of the particular circumstances . . . to either plead guilty or not." Purdy v. United States, 208 F.3d 41, 46 (2d Cir. 2000). Indeed, "there might be circumstances where defense counsel need not render advice as to acceptance of a plea bargain." Id. at 48.
To succeed on his claim, petitioner, inter alia, must affirmatively demonstrate prejudice by showing a "reasonable probability" that, but for his counsel's failure to advise him of the desirability of taking the 2 to 4 year plea offer, petitioner would have accepted the offer. See Purdy, 208 F.3d at 49. Here, petitioner rests largely on his own self-serving post-conviction statements that he was never so advised. The Second Circuit has warned that "in most circumstances a convicted felon's self-serving testimony is not likely to be credible." Purdy v. Zeldes, 2003 WL 253144, at *5 (2d Cir. Feb. 6, 2003). From my review of the record, despite petitioner's claims, I conclude that he fails to meet the Strickland test. In brief, the record shows that on nearly every occasion that petitioner appeared before the court in the instant case, he showed disdain or little regard for his counsel's advice and what counsel had done on his behalf. Even if I accepted petitioner's claim that his counsel failed to advise him of the desirability of the 2 to 4 year plea offer, I find little evidence that had he been advised, there was a reasonable probability that he would have accepted the plea when it was offered.
When Judge Perone had first offered the 2 to 4 year plea on September 10, 1998, petitioner had a pending pro se petition for a writ of habeas corpus, and his counsel had a pending motion to dismiss that was not fully briefed. At that juncture, evidently both petitioner and counsel had grounds to believe the court would dismiss the indictment. Even if counsel's assessment of petitioner's likelihood of prevailing were misplaced, my review of his performance is "highly deferential." Strickland, 466 U.S. at 688 ("[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."). Here, counsel had moved to dismiss the indictment because petitioner had not allegedly been advised by former counsel of his right to appear before the grand jury. See N.Y.C.P.L. § 190.50(5)(a) (providing right to defendant to appear before grand jury). Assuming, arguendo, that counsel gave no advice or even advised petitioner against taking the offer, petitioner's ability to receive the benefit of the 2 to 4 year plea offer was not prejudiced because Judge Perone made the same offer to petitioner when they met again on November 23, 1998.
Although Judge Perone made it unmistakably clear to petitioner at the next conference on November 23 that the 2 to 4 year plea offer was the minimum time that could be offered, petitioner refused the offer. Id. at A16. Instead, petitioner sought to have new counsel. According to petitioner, his counsel had attempted to visit him, at most, one time since his appointment, id. at A17, A24, which petitioner contends, explains why he submitted his Article 70 motion pro se, see id. at A17. Petitioner's explanation, however, is belied by his admission that he had filed the motion pro se because his counsel, although willing "to adopt whatever [he] says in the motions," would not pursue the claims in the Article 70 motion, id. at A25. Petitioner attempted to explain in court that his counsel would not pursue those claims apparently because counsel felt that they were more properly the subject of appeal only after conviction. Id. Given counsel's refusal to pursue the claims that petitioner thought were meritorious and ripe for consideration, petitioner remarked: "I am not able to assist him in my defense since he has no defense he wishes to put forward for me." Id. Petitioner's purported inability to assist counsel with preparing his defense appears largely rooted in petitioner's lack of faith in his counsel's advice on which defenses to argue. In view of petitioner's insistence that his arrest was unlawful, his desire to pursue pro se his Article 70 motion, and his request to address the trial judge before the motion to dismiss was decided, it is clear that petitioner placed little stock in counsel's advice and ability to represent him. I am unconvinced that there was a reasonable probability petitioner would have taken counsel' advice on any score, to say nothing of the advice to accept the 2 to 4 year plea when it was offered the second time.
Petitioner's pre-trial conference with Judge Lange confirms my conclusion that counsel's advice, or lack thereof, did not prejudice his right to the shorter plea offer. At no point, after Judge Lange spurned petitioner's attempt to get a shorter prison sentence, did petitioner mention to the judge that counsel failed to advise him about the desirability of taking the earlier offered 2 to 4 year plea. When Judge Lange offered petitioner, in the presence of his counsel, the "one day special" of a 2 1/2 to 5 year plea offer, petitioner acknowledged that he realized that this was a "big discount" from the sentence he could face if convicted by a jury, id. at A43, but nonetheless sought additional time to confer, not with his counsel, but rather with his fiancé to make the decision. Id. at A45-46. Moreover, when expressly offered the opportunity to consult with his counsel to further discuss the plea before proceeding with his allocution, petitioner refused. Id. at A62. When petitioner finally accepted a 3-6 year plea offer and was asked whether he discussed the plea with his counsel, petitioner stated "whether I discussed it with him or not it is irrelevant because I know what I'm doing." Id. at 79-80.
Petitioner's disdain for his counsel appeared to only intensify as his conviction became more certain. At petitioner's sentencing, he asked to have his counsel, whom he called a "snake," "minion" of the court, "junior DA," and "piece of shit," not to appear with him. See Tr. at A92-95.
C. Denial of Request to Hold Evidentiary Hearing for Substitution of Counsel
I am also unpersuaded by petitioner's argument that Judge Lange erred by refusing to grant petitioner's request for an evidentiary hearing in regard to his ineffective assistance of counsel claim. Judge Lange afforded petitioner the opportunity to explain how his counsel's representation had been inadequate. Tr. at A34-39. After Judge Lange distilled the gravamen of petitioner's complaint to counsel's failure to visit him in person since counsel was assigned, id. at A38, petitioner launched a series of accusations against his counsel, including failing to investigate the facts of his case, spending only 20 to 30 minutes with him to prepare for trial, and refusing to take any of his phone calls, contrary to counsel's representation before the court. Id at A39; cf. id. at A36. When questioned by Judge Lange whether all of petitioner's accusations were true, petitioner recanted in part, acknowledging that his counsel had in fact accepted calls from him, id. at A39, effectively admitting that his initial claim in regard to counsel's failure to take any calls was false. Although petitioner then claimed his counsel would not discuss the case with him when he called, id, Judge Lange evidently did not find petitioner's statements credible, particularly in view of his contradictory statements in regard to whether counsel visited him and whether counsel accepted his phone calls. See id. at A34-39. Ultimately, Judge Lange, after giving petitioner the chance to voice the reasons for his dissatisfaction, denied petitioner's motion for new counsel and concluded there was insufficient basis to find good cause to replace his current counsel. Id.; see United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972) (defendant must show good cause to have counsel substituted).
Although petitioner represented to the court at the February 23, 1999 conference that his counsel "had not taken [any] phone calls as alleged," he concedes in his Objection to the Magistrate's R R that he had phone contact with counsel, at least up to November 25, 1998 (at which point the case was considered "trial ready," Tr. at A22-23), and does not dispute counsel's representation to the Court that he had frequent phone contact with petitioner at least up to this date.
Ordinarily, a reviewing court must give the credibility determination of a trial court great deference. 28 U.S.C. § 2254(e)(1) ("a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."); see Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001); see also Purkett v. Elem, 514 U.S. 765, 769 (1995) ("[T]he factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are not fairly supported by the record.") (internal quotation marks omitted)); Washington v. Schriver, 240 F.3d 101, 110 (2d Cir. 2001) (factual findings of state trial court is entitled to a presumption of correctness); Costanzo v. United States, 758 F. Supp. 869, 872 (S.D.N.Y. 1990) ("trial judge must be afforded due deference to his findings for he was present at the trial and best able to judge the evidence and credibility of the witnesses") (citing Sumner v. Mata, 455 U.S. 591, 592 (1982)). In view of the record and petitioner's conflicting allegations regarding the contact he had with counsel, Judge Lange's decision appears to be fairly supported and not based on an unreasonable determination of the facts. Although petitioner contends that he should have received a full-blown evidentiary hearing, Judge Lange gave petitioner the opportunity to explain why his counsel's representation was inadequate, and acted well within his discretion in refusing to conduct a more extensive inquiry. See United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001) (when "an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more." (quoting McKee v. Harris, 649 F.2d 927, 934 (2d Cir. 1981)). Notably, while not at all shy about moving pro se before the court, petitioner, at no point, sought to reargue or have Judge Lange reconsider his motion for new counsel on the ground that his counsel failed to advise him of the desirability of the 2 to 4 year offer. I find no error in Judge Lange's refusal to hold a separate evidentiary hearing.
D. Motion to Produce Records
Petitioner also objects, under Rule 5 of the Rules Governing Section 2254 Cases, to Magistrate Judge Fox's recommendation to deny his motion to compel respondent to produce records of the "(1) amended motion to vacate judgment (CPL 440.10 filed on June 10, 2001); (2) Petitioner's application for leave to appeal (CPL 450.15 and 460.15); (3) Petitioner's motion to reargue the denial of his motion to vacate judgment (CPLR 2221)." Rule 5 is inapplicable to the type of materials that petitioner seeks. Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts ("the court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts or that certain portions of the non-transcribed proceedings be transcribed and furnished"). Further, petitioner fails to explain how any of the documents sought is relevant to his habeas petition. Petitioner's motion to compel production of records is denied.
IV. CONCLUSION
For the foregoing reasons, petitioner's motion to reduce his sentence or to hold a new hearing to decide whether he should be afforded the benefit of the 2 to 4 year sentence is denied and the petition is dismissed. Further, petitioner's motion seeking an order setting bail, or in the alternative, releasing him on his own recognizance pending resolution of his habeas petition is moot. The Clerk of the Court is instructed to close any open motions and remove this case from my docket.