Opinion
03 Civ. 391 (SAS), (White Plains)
October 23, 2003
Yves R. Alexis, Ogdensburg Correctional Facility, Ogdensburg, NY, for Petitioner
John J. Sergi Joseph M. Latino, White Plains, NY, for Respondent
OPINION AND ORDER
Yves R. Alexis, proceeding pro se, seeks a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("section 2254"). In his petition, Alexis raises the following grounds: (1) that his guilty plea was not knowingly and voluntarily made due to excessive pressure by the court and the prosecutor; (2) that his guilty plea was not knowingly and voluntarily made due to ineffective assistance of counsel; (3) that his counsel was ineffective in other ways; (4) that he was denied due process because the court denied his request for an adjournment so he could retain private counsel for the plea hearing; (5) that he was denied due process because he was not given an opportunity at his sentencing to controvert allegations that he was a predicate felon; and (6) that he was denied due process because he was never given a copy of the predicate felony statement filed pursuant to section 440.21 of the New York Criminal Procedure Law ("section 440.21"). All grounds were raised either on direct appeal or by motion pursuant to section 440.10 of the New York Criminal Procedure Law ("section 440.10"), with the exception of the section 440.21 claim.
I. BACKGROUND
A. Factual Background
On the evening of March 24, 1999, petitioner appeared at the apartment that he owned and had shared with his estranged wife, Betty Alexis, in violation of an order of protection that she secured. See 6/5/03 Respondent's Appendix ("R. App.") at 4, 21, 32. Petitioner then attacked his wife with a knife, inflicting slashes on her face, neck, hands, and arms. See id. at 21-23, 32. Petitioner was subsequently arrested and, on April 6, 1999, was arraigned before the City Court of the City of Yonkers. See 6/5/03 Affidavit of Assistant District Attorney John J. Sergi in Opposition to Petition for a Writ of Habeas Corpus ("R. Aff.") at 3.
B. Procedural Background
1. Preliminary Actions
On April 14, 1999, petitioner's assigned counsel requested a felony hearing, as required by section 180.80 of the New York Criminal Procedure Law ("section 180.80"). See id. at 3. On May 19, 1999 petitioner waived his right to the speedy hearing guaranteed by section 180.80 as part of his consent to transfer his case to the Superior Court in order to have a plea conference. See R. App. at 37.
On May 21, 1999, a plea conference was held before the Westchester County Court (Leavitt, J.). At this time, the court indicated that it might accept a plea of three and one-half years, but the prosecutor indicated that anything less than six years was unacceptable.See R. Aff. at 3; R. App. at 66.
2. Plea and Sentencing
At the plea proceedings, which were held on July 15, 1999, petitioner's counsel objected to the length of the sentence as being different from what had been offered at the plea conference and asked for a one month adjournment to permit petitioner to retain private counsel. The court denied this request and told petitioner that he had to either accept or reject the plea. See R. App. at 46-47. Petitioner initially rejected the People's offer of six years imprisonment plus one and one-half years post-release supervision, but after a recess he returned to court and accepted it. See id. at 47-48. Petitioner pled guilty to assault in the second degree, a class D felony. See id. at 50. On September 8, 1999, petitioner was sentenced as a predicate felon to six years imprisonment plus one and one-half years post-release supervision. See id. at 64.
3. State Habeas Corpus Motion
After sentencing, Alexis petitioned for a writ of habeas corpus to the Supreme Court of the State of New York. The petition alleged that the sentencing court failed to take into account or advise petitioner that he could be deported as a result of his conviction. Petitioner further alleged that he was denied effective assistance of counsel because of his counsel's affirmative misrepresentation as to deportation consequences and counsel's failure to request a court recommendation that he not be deported. See id. at 80. The merits of these claims were not considered because the appropriate mechanism for relief of this sort is a motion pursuant to section 440.10. See id. at 92. The court briefly noted, however, that both of petitioner's claims were invalid, stating: "Petitioner has failed to allege any factual or legal basis which would entitle him to the relief he seeks." See id. at 93.
4. State Post-Conviction Proceedings (section 440.10 motion)
Petitioner next filed a motion pursuant to section 440.10. This motion alleged that petitioner should have been allowed to plead to a lesser included offense and that appointed counsel falsely led him to believe he would receive a lesser sentence. See id. at 98-101. The court denied the motion because "[a]11 of the `grounds' for vacatur which defendant alleges herein were, or could have been, raised on appeal." See id. at 120.
5. Direct Appeal of Conviction and Sentence
Petitioner then filed a direct appeal of his conviction claiming that his plea was involuntary, that he received ineffective assistance of counsel, and that his sentence was illegal or excessive. See id. at 126. As to the voluntary nature of the plea, petitioner argued that the People's change in the plea offer, the court's denial of an adjournment, and the People's threat of indictment for attempted murder combined to unduly pressure him to plead guilty. See id. at 127-30. As to the ineffective assistance claim, petitioner cited his appointed counsel's failure to: discuss his immigration status; advise petitioner that he was waiving his right to a felony hearing; and object to sentencing as a predicate felon on grounds that the prior conviction was old and very close to the statutory limit. See id. at 131-34. As to the sentence, petitioner claimed that he was not given an opportunity to contest his prior felony conviction at sentencing. See id. at 134-36. The Supreme Court of New York, Appellate Division, Second Judicial Department, affirmed the conviction and sentence, finding that petitioner's first two claims were "unpreserved for appellate review as he failed to move to withdraw his plea . . . prior to sentencing." People v. Alexis, 744 N.Y.S.2d 686, 686 (2d Dep't 2002). The court also noted that the issues raised in the section 440.10 motion were procedurally barred since he did not seek leave to appeal the order denying that motion. See id. Furthermore, the court "[concluded] that these contentions, insofar as they can be reviewed on this record, are without merit." Id. Petitioner was denied permission to appeal to the New York Court of Appeals. See id. at 186.
According to petitioner's brief on appeal, the prior conviction took place "on June 30, 1998, less than three months prior to the 10 year [sic] requirement under the sentencing guidelines." See R. App. at 134.
II. LEGAL STANDARD
Petitions for writs of habeas corpus in federal court are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The standard of review created by the AEDPA, which modified section 2254, bars habeas relief with respect to any claim that was adjudicated on the merits in state court unless the decision that resulted is "contrary to, or involved an unreasonable application of, clearly established Federal law" or is "based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law when the state court reaches a different result than the Supreme Court under "materially indistinguishable" facts or when the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases." Williams v. Taylor, 529 U.S. 362, 404-05 (2000). An "unreasonable application" of federal law has been interpreted as including only an application of federal law that is "objectively unreasonable" and not merely an "erroneous" or "incorrect" application. Id. at 405-06, 412-13.
III. DISCUSSION
A. Exhaustion of State Remedies and Procedural Bar
In order to properly seek federal habeas review of a state conviction, a petitioner must first exhaust all available state remedies.See 28 U.S.C. § 2254(b)(1). See also Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). Although petitioner raised, and therefore exhausted, all but his section 440.21 claim in at least one state court action, none of the claims were ever adjudicated on the merits. The Supreme Court of New York, Appellate Division, Second Judicial Department, affirmed petitioner's conviction on the ground that petitioner was procedurally barred from raising his claims because he had not sought to withdraw his plea and because he failed to appeal the denial of his section 440.10 motion. See Alexis, 744 N.Y.S.2d at 686.
Where there is a state procedural bar to adjudication of a claim on the merits, the claim is deemed exhausted. "However, the procedural bar that gives rise to [deemed] exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claimfs. . . ." Gray v. Netherland, 518 U.S. 152, 162 (1996). This doctrine "applies to bar federal habeas [review] when a state court declined to address a prisoner's federal claim because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). It also applies to a claim never presented to a state court where presentation would be futile due to a state-law procedural bar. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). All of petitioner's claims, including the 440.21 claim, are either deemed exhausted or procedurally barred. Because the exhaustion in state court was based on procedural grounds, there is an independent and adequate state-law ground that prevents this Court from reviewing any of petitioner's claims on the merits.
There are narrow exceptions to the independent and' adequate grounds doctrine:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman, 501 U.S. at 750.
Here, petitioner claims that at the time of the plea his counsel was ineffective, but has not argued that this lack of adequate representation caused his procedural default. Because petitioner is proceeding pro se, this Court will liberally construe his petition. See Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997). Accordingly, Alexis is deemed to have raised ineffective assistance of counsel as the cause of his procedural default. Because petitioner's claims can be dismissed on the merits, cause and prejudice will be assumed thereby permitting federal review of his petition.
B. Petitioner's Plea was Knowing and Voluntary
Petitioner asserts that his plea was not knowingly and voluntarily made because he was subjected to excessive pressure to plead guilty. He argues that the People changed their plea offer, that he was threatened with indictment for attempted murder, that he was denied an adjournment to consult private counsel, and that he made statements that raised the possibility of a justification defense and lack of requisite criminal intent. He also argues that counsel failed to inform him that he was waiving his right to a felony hearing and of the possibility that he would be deported in connection with the conviction. Petitioner asserts that he would not have pled guilty had he been advised of these circumstances.
The record directly contradicts petitioner's assertions as to the change in his plea offer, his awareness of his right to a felony hearing, and his statements raising the defenses of justification and lack of criminal intent. At the sentencing, the court addressed petitioner's assertion that the People had altered their plea offer upon consultation with the victim: "[the court] put the offer [of three and one-half years] on the table. The District Attorney rejected that offer . . . and their offer on this case was a minimal term of six years." See R. App. at 66. In addition to the original written waiver of the right to a felony hearing, petitioner's plea allocution began with an explicit waiver of the right to a felony hearing. See id. at 35, 49. At various family court proceedings prior to the assault, and again at the sentencing hearing, petitioner expressed anger at the victim, stating that she was seeking a protective order and pressing charges against him so that she could take possession of his property. See id. at 6-8, 13-16, 65, 67. Nowhere in the record is there any indication that petitioner claimed he was acting in self-defense.
The District Attorney did indicate that if petitioner rejected the plea he would be charged with attempted murder in the second degree. See id. at 36. Confronting a defendant with the possibility of additional charges clearly has a "discouraging effect on the defendant's assertion of his trial rights". Chaffin v. Stynchcombe, 412 U.S. 17, 30 (1973). However, "the imposition of these difficult choices [is] an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Id. Consequently, knowledge that he would be prosecuted for attempted murder if he did not plead guilty did not coerce petitioner's guilty plea.
Nor is the imposition of a deadline by which a defendant must accept or reject a plea considered undue pressure as pleas in both state and federal court are commonly subject to time limits. See,e.g., Rosa v. United States, 170 F. § Supp.2d 388, 405 (S.D.N.Y. 2001) (finding plea was voluntary despite one hour deadline where defendants expressed desire to plead near conclusion of trial); People v. Faison, 705 N.Y.S.2d 420, 421 (3d Dep't 2000) ("The fact that the plea offer was scheduled to expire upon the conclusion of the arraignment did not render defendant's acceptance thereof involuntary or the product of coercion."). Here, the court denied petitioner's request for an adjournment to retain private counsel because the terms of the plea offer were immutable and the only issue was petitioner's acceptance or rejection of that offer. Adjournment would have merely delayed the inevitable decision to accept or reject the plea, the terms of which were not going to change. Had petitioner rejected the offer, there would have been adequate time for him to retain private counsel and prepare for trial.
"Had [Alexis] brought in two or three more different attorneys the offer [was] not going to change." See R. App. at 47.
C. Ineffective Assistance of Counsel
Ineffective assistance of counsel during the plea process is determined by the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must establish that (1) his attorney's performance was unreasonable under prevailing professional norms and (2) that the unreasonable performance actually had an adverse effect on the defense. Id.
Petitioner contends that counsel's failure to address the deportation consequences of a guilty plea rendered his assistance ineffective. Some courts have found that affirmative misrepresentations as to deportation consequences in cases where there are aggravating factors such as imprisonment and execution may support a claim of ineffective assistance. See, e.g.,United States v. Santelises, 509 F.2d 703 (2d Cir. 1975);Downs-Morgan v. United States, 765 F.2d 1534, 1541 n. 15 (11th Cir. 1985). In his Response to the Affidavit in Opposition to Petition for a Writ of Habeas Corpus ("Response"), petitioner now claims that he may be subjected to arrest and torture in his home country. See Response at 16 and accompanying exhibits. However, petitioner does not allege that he received any advice from his attorney regarding deportation. In fact, there is no indication in the record that counsel was aware of petitioner's immigration status at all, much less of the risk presented by deportation. Mere failure to broach the subject of deportation does not constitute ineffective assistance. The Second Circuit has held that deportation is a collateral consequence, rather than a direct consequence, of the criminal process. Therefore, the failure to advise that deportation may result from conviction does not amount to ineffective assistance of counsel. See,e.g., United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) ("Failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness."); Santelises, 509 F.2d at 704 ("Since [counsel] does not aver that he made an affirmative misrepresentation, [petitioner] fails to state a claim for ineffective assistance of counsel."); Chukwurah v. United States, 813 F. Supp. 161, 165 (E.D.N.Y. 1993) ("defense counsel's alleged failure to inform [petitioner] of possible immigration consequences of his plea is not a sufficient basis for an ineffective assistance claim.").
D. Denial of Due Process
Petitioner argues that he was denied due process because: (1) he was denied an adjournment to permit consultation with retained counsel, (2) he was not given an opportunity to controvert the allegation of a prior conviction, and (3) he did not receive the predicate felony statement in accordance with the provisions of section 440.21. I have already addressed and dismissed petitioner's claim that he was prejudiced by the denial of his request for an adjournment. See supra, Part III.B.
In his plea allocution, and again at the sentencing, petitioner was explicitly asked whether he previously had been convicted of a felony.See R. App. at 54-55, 63. At his plea and again at his sentencing, petitioner admitted that he was convicted and sentenced for a prior felony. See id. At the plea allocution, petitioner was explicitly informed of his right to controvert the allegations of a prior felony conviction and was asked to waive that right "in consideration of [the] plea today." See id. at 54-55. The petitioner affirmatively waived that right. See id. at 55.
Respondent does not dispute that petitioner never received a copy of the predicate felony statement. However, respondent correctly notes that petitioner was in no way prejudiced by this failure as he had already waived his right to controvert the contents of that statement. See id. Furthermore, at least one New York court has specifically addressed whether strict adherence to the procedures of second felony offender status is required and found that it is not. "Where the statutory purposes for filing a predicate statement (i.e., apprising the court of the prior conviction and affording defendant notice and an opportunity to be heard in connection with the predicate felony) are satisfied, strict compliance with the statute is not required." People v. Carmello, 495 N.Y.S.2d 230, 230 (2d Dep't 1985) (citations omitted). As detailed above, petitioner was adequately represented and waived his right to controvert his prior felony conviction. See R. App. at 54-55.
IV. CONCLUSION
Petitioner's request for habeas relief is procedurally barred under the doctrine of independent and adequate state-law grounds and, in any case, is without merit. Accordingly, the petition is denied. Furthermore, because petitioner has failed to make a substantial showing that he was denied a constitutional right and this Court has rejected his claim on the merits, a certificate of appealability will not issue. See Rudenko v. Costello, 286 F.3d 51, 79 (2d Cir. 2002). The Clerk of the Court is directed to close this case.