Opinion
05 Civ. 8974 (DLC).
September 1, 2006
Lorca Morello The Legal Aid Society New York, NY, For Petitioner.
Nancy D. Killian Yael V. Levy Assistant District Attorneys, Bronx County Bronx, New York, For Respondent.
OPINION ORDER
Petitioner Ramon Anaya seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court, Bronx County, for felony murder. Magistrate Judge James C. Francis IV recommended that Anaya's petition be denied in a Report and Recommendation (the "Report") issued on July 19, 2006. For the reasons set forth below, Anaya's objections to the Report are overruled and his petition is denied.
Background
The following facts are taken from the Report and the transcripts from the state proceedings. No fact-based objections to the Report were made by either party.On April 24, 2000, Anaya and three confederates, John Rivera, Jasmine Valentine, and Norberto Hernandez, set out to rob the livery cab of Jose Oliveras. In the course of the robbery, Hernandez shot and killed Oliveras from the back seat of the cab. Anaya, who was in the front seat, hit Oliveras at some point, and then searched his pockets and sun visor for money after the shooting. Anaya was apprehended by police when the cab crashed into a building.
Anaya was initially charged with murder in the second degree, two counts of attempted robbery in the first degree, and criminal possession of a weapon in the second and third degrees. On April 30, 2001, Anaya and his co-defendants each pled guilty to murder in the second degree in complete satisfaction of the indictment.
"A person is guilty of murder in the second degree when . . . [a]cting either alone or with one or more other persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant . . . causes the death of a person other than one of the participants. . . ." New York Penal Law ("NYPL") § 125.25(3).
At the plea allocution, Justice Martin Marcus described the allegations in the relevant count of the indictment. Specifically, Justice Marcus told Anaya that the second count of the indictment alleged that Anaya, acting in concert with his co-defendants, "did commit or attempt to commit the crime of robbery and in the course of and in furtherance of such crime or of immediate flight therefrom, [Anaya] caused the death of Jose Oliveras who was not a participant in the crime." Anaya confirmed the truth of the allegations. The prosecutor then described the events as the State of New York intended to prove them at trial, including that Anaya participated in the robbery by going through Oliveras's pockets and sun visor in search of money and that during the robbery, Oliveras was shot by one of Anaya's co-defendants. Anaya again confirmed the truth of these allegations.
The trial court also questioned Anaya regarding his decision to plead guilty. Anaya confirmed that he was pleading guilty to murder in the second degree and that he was in fact guilty of that crime. He represented that he had spoken with his attorney about the case and his decision to plead guilty, and that he was satisfied with the services of his attorney. Anaya acknowledged his understanding that he was waiving certain enumerated rights that he could have exercised at trial. He stated that nobody had threatened or forced him in any way to plead guilty and that he was doing so voluntarily of his own free will. Finally, Anaya confirmed that he understood that he would be sentenced to a term of imprisonment of fifteen years to life as a condition of his plea.
NYPL § 70.00 requires the imposition of an indeterminate sentence consisting of a statutorily prescribed maximum and a minimum determined by the court. See NYPL §§ 70.00(1), (2) (a), (3) (a). The minimum sentence permitted for felony murder is fifteen years. NYPL § 70.00(3) (a) (i).
On May 25, 2001, Anaya appeared before Justice Marcus for sentencing. Anaya's counsel of record, Oliver Smith, who had worked on the plea bargain and represented Anaya at the allocution, was unavailable. Instead, another attorney, Neville Mitchell, who had no prior connection to or knowledge of the case, represented Anaya at the sentencing proceeding.
Mitchell announced that Anaya wished to withdraw his guilty plea, and he moved to do so on three grounds: (1) Anaya felt pressured to accept the plea bargain because he believed that it was offered on the condition that all co-defendants accept it; (2) he understood the sentence to be imposed would be fifteen years rather than fifteen years to life; and (3) he had not entered into any agreement to commit homicide in the course of the robbery. The trial court denied the motion on all three grounds.
The court found that the record did not support relief on either of the first two grounds asserted in the motion to withdraw the plea. Anaya does not challenge those rulings in his petition.
Most significant for present purposes are Justice Marcus's comments relating to the third ground for the motion to withdraw. Justice Marcus explained that the lack of agreement to commit murder might have been a defense to intentional murder, but was not a defense to felony murder. Justice Marcus further explained why the allocution was sufficient to support a plea to felony murder:
[Anaya] entered that cab planning with the others to commit robbery. He, in fact, participated in the robbery, according to his allocution, by taking property from Mr. Oliveras. And, in fact, he knew when he got into that cab with the intention of robbing Mr. Oliveras, he knew that Mr. Hernandez had a gun and that gun was used to kill Mr. Oliveras in the course of that, the attempt to rob him. That, in fact, makes out felony murder so his claim that he did not agree or intend that anyone be killed is also not a reason for him to get his plea back.
Anaya never admitted at the allocution to knowing that his co-defendant had a gun.
Having denied Anaya's motion to withdraw his plea, the trial court proceeded to the sentencing. Each side was given an opportunity to address the court. The prosecutor's comments included the following:
As to Mr. Anaya, this defendant during the course of the robbery that was agreed upon by him and his co-defendants before entering Mr. Oliveras'[s] cab, once the robbery was announced and Mr. Oliveras was placed in a yoke [sic] hold by Mr. Rivera and Mr. Hernandez was armed with a weapon, Mr. Anaya through his own videotape admissions admits to going through Mr. Oliveras'[s] pockets in an attempt to retrieve a sum of U.S. currency.
There is also a hitting of Mr. Oliveras by Mr. Anaya. He fully knew and understood that his co-defendant was armed with a weapon. He was present when Miss Valentine had the weapon. He knew Mr. Hernandez had the weapon. He agreed to get into that cab and commit a robbery with these three individuals, and during the course of that robbery, his co-defendant did shoot and kill Mr. Oliveras by shooting him once in the back fo the head as he drove the cab away.
The prosecutor went on to state that the recommended sentence of fifteen years to life reflected the level of Anaya's participation in the robbery.
Mitchell did not make a statement, but Anaya did address the court. He protested that fifteen years to life was an excessive sentence given his limited involvement and stated "as me knowing Rivera, Hernandez had the gun, I didn't know." Asked by the court to clarify whether he knew about the gun or not, Anaya added "I didn't kn[o]w. If I knew there was a gun in that car, I wouldn't get in the car in the first place."
The court responded to Anaya's protest regarding his limited involvement by explaining that the law with respect to felony murder did not distinguish between co-defendants based on who pulled the trigger or who intended the victim to die. The sentence had been adjusted, though, to account for Anaya's limited participation: Anaya received the lowest sentence of the group precisely because he did not bring, possess, or fire the gun.
As for Anaya's contention that he did not know that anybody had a gun, Justice Marcus stated that this claim "is inconsistent with what you told me at the time that you pled guilty." Justice Marcus continued
And like every one of your co-defendants except, ironically, for Mr. Hernandez who was the shooter, the three of you have persisted in saying this is all I did. Of course what this is changes from moment to moment. It changes from the videotape to the guilty plea to the Probation Department to today. And I don't see in you any more than I've seen in the other defendants, a real remorse about what happened here and a real willingness to accept responsibility for what you did, what you did.
Anaya was sentenced to fifteen years to life. The videotape referred to by the court was not part of the record. And as mentioned before, Anaya never admitted on the record to knowing that his co-defendant had a gun at the plea allocution.
On appeal to the Appellate Division, First Department, Anaya challenged the voluntariness of the plea. He argued that the voluntariness of the plea had not been established because the court failed to ascertain whether Anaya was aware that his claim of ignorance regarding the gun constituted an affirmative defense to felony murder. The Appellate Division unanimously affirmed Anaya's conviction on June 3, 2004. People v. Anaya, 777 N.Y.S.2d 636, 636 (1st Dep't 2004). The Appellate Division's analysis in its entirety reads as follows:
NYPL § 125.25 provides that
it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury
NYPL § 125.25(3) (emphasis added).
Since defendant's motion to withdraw his plea was made on different grounds, his claim that his plea was rendered involuntary by the court's failure to inquire about the affirmative defense to felony murder contained in Penal Law § 125.25(3) is unpreserved, and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant's plea was knowing, intelligent, and voluntary, and that nothing in the record of the plea proceeding raised the possibility of the affirmative defense.Id. (citations omitted). Leave to appeal was denied on August 4. People v. Anaya, 3 N.Y.3d 670 (2004).
Anaya then filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("NYCPL") § 440.10(1) (b) and (h). Anaya made two claims in his motion to vacate. First, Anaya argued that the prosecutor had made a material misrepresentation regarding the evidence in his case when she claimed that he admitted in his videotaped statement that he knew that one of his co-defendants had a gun. Second, Anaya argued that he was deprived of effective assistance of counsel at the sentencing proceeding. He made three specific claims of ineffective assistance: Mitchell failed to dispute the prosecutor's assertion that Anaya had known that a co-defendant had a gun when he got in the cab; Mitchell failed to correct the court's misstatement regarding the allocution; and Mitchell failed to argue that Anaya was asserting facts that constituted an affirmative defense to the crime to which he had pled guilty.
Section 440.10(1) provides that
At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:
. . . .
(b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or
. . . .
(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.
NYCPL § 440.10(1).
The trial court denied Anaya's motion. With respect to the first claim, the court held that the record refuted Anaya's claim that the prosecutor had misrepresented evidence. The court interpreted the prosecutor's statement as referring only to Anaya's awareness of the weapon during the robbery, not to his prior knowledge. Moreover, the prosecutor made "no assertion that the defendant had admitted to such prior knowledge on the videotape or elsewhere." The prosecutor mentioned the videotape only in reference to Anaya's admission that he went through Oliveras's pockets to look for money. In any event, the court held, the reference to the videotape was made after the court had denied Anaya's motion to withdraw his plea, and could not have influenced that decision in any way.
With respect to the ineffective assistance argument, the court first held that the second and third grounds appear on the record of the proceeding and could have been raised on appeal. Because Anaya failed to do so, he was procedurally barred from raising them in a motion to vacate the judgment. The first ground was properly raised, but did not constitute ineffective assistance, the court held, because the prosecutor did not refer to the gun until after the motion to withdraw had been denied and because the prosecutor did not in fact claim that Anaya admitted prior knowledge of the gun in his videotaped statement. The court further ruled that Anaya had not demonstrated prejudice as a result his ineffective representation because he had not established that but for his counsel's failures the court would have been required to permit him to withdraw his guilty plea.
See NYCPL § 440.10(2) (c) ("Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.").
Anaya makes three claims in his petition for a writ of habeas corpus. First, he argues that his guilty plea was involuntary because the trial court failed to inquire whether the understood that his assertions at sentencing raised the possibility of an affirmative defense to felony murder. Second, he maintains that he was denied due process of law as a result of the prosecutor's misrepresentations with respect to the admissions on the videotaped statement. Finally, Anaya claims that he was denied the effective assistance of counsel as a result of Mitchell's inadequate performance at the sentencing proceeding.
Judge Francis recommended that the petition be denied on all grounds. He found the voluntariness claim procedurally barred as a result of Anaya's failure to raise the argument on direct appeal. He found the prosecutorial misconduct claim unsupported by the record for the reasons given by Justice Marcus. And Judge Francis recommended denial of the ineffective assistance claim because one of the claimed instances was procedurally barred and Anaya had failed to demonstrate prejudice with respect to the other two.
Anaya objected to all of the Report's legal conclusions and recommendations. These are therefore reviewed de novo. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (citing 28 U.S.C. § 636(b)(1)).
Discussion
Anaya brings his habeas petition under 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review Section 2254 petitions. Under the pre-AEDPA standard, a federal court would review de novo the state court's conclusions of law, as well as its mixed findings of fact and conclusions of law. Messiah v. Duncan, 435 F.3d 186, 196 (2d Cir. 2006). AEDPA requires a "more deferential review," id. at 197 (citation omitted), however, at least when the relevant claim has been "adjudicated on the merits in State court proceedings." Id. (quoting 28 U.S.C. § 2254(d)). In such cases, habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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) (1), (d) (2).
Because these standards of review are so different, deciding whether "AEDPA deference" is owed to a state court decision is ordinarily the first step of addressing a Section 2254 petition.See, e.g., Jimenez v. Walker, ___ F.3d ___, 2006 WL 2129338, at *3 (2d Cir. 2006). But where a petitioner's claim would fail under even the less deferential pre-AEDPA standard, it is unnecessary to decide whether a petitioner's claims were subject to a ruling on the merits in state court, and consequently which standard of review applies. Messiah, 435 F.3d at 198; see also Cotto v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (declining to decide whether claim was adjudicated on the merits where result would be the same under either standard).
A. Voluntariness of the Plea
Anaya's first claim is that his plea was not voluntary because the trial court failed to inquire whether Anaya understood a statutorily provided affirmative defense to felony murder. The Report found review of this claim precluded by the Appellate Division's resolution of the claim on independent and adequate state grounds.
1. Independent and Adequate State Grounds Doctrine
The independent and adequate state grounds doctrine forecloses Supreme Court review of "a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). Although it was first developed in the context of direct appeals to the Supreme Court from state court judgments, the doctrine applies as well "in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions." Cotto, 331 F.3d at 238 (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002)). The state grounds may be procedural or substantive. Coleman, 501 U.S. at 729. Moreover, "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (citation omitted).
"Ordinarily, violation of firmly established and regularly followed state rules . . . will be adequate to foreclose review of a federal claim." Lee v. Kemna, 534 U.S. 362, 376 (2002) (citation omitted). But the adequacy of a state procedural bar is not determined on a general basis. "Rather, the question is whether application of the procedural rule is `firmly established and regularly followed' in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto, 331 F.3d at 240 (citation omitted). The Second Circuit has identified three "guideposts" to assist in the determination of adequacy:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had `substantially complied' with the rule given `the realities of trial,' and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. at 240. Additionally, because the state ground relied upon in this case was New York's contemporaneous objection requirement, see NYCPL § 470.05, consideration of this question is also informed by the "general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review." Cotto, 331 F.3d at 242 (quoting Osborne v. Ohio, 495 U.S. 103, 125 (1990)).
a. Trial Court Reliance
The first factor is "less applicable in this case because the lack of a contemporaneous objection would not, almost by definition, be mentioned by the trial court." Id. The second and third factors will consequently carry more weight in the overall determination of adequacy.
b. New York Case Law
The second factor requires an examination of New York case law applying New York's preservation rule to motions to withdraw guilty pleas. See id. at 243. The Appellate Division held that Anaya's failure-to-inquire claim was unpreserved because "defendant's motion to withdraw his plea was made on different grounds." Anaya, 777 N.Y.S.2d at 636.
New York courts consistently hold that a claim not raised in a motion to withdraw or motion to vacate the judgment made before the trial court is unpreserved for appellate review. See, e.g., People v. Oldham, 805 N.Y.S.2d 903 (4th Dep't 2005); People v. Covell, 714 N.Y.S.2d 370, 372 (3d Dep't 2000); People v. Dowell, 654 N.Y.S.2d 126 (1st Dep't 1997). Moreover, they do so in precisely the circumstances presented in this case, namely when the new ground asserted is a failure by the trial court to inquire into an affirmative defense. See, e.g., People v. Toxey, 86 N.Y.2d 725, 726 (1995); People v. Watson, 798 N.Y.S.2d 471, 471-72 (2d Dep't 2005); People v. Doctor, 704 N.Y.S.2d 855 (2d Dep't 2000); People v. Caraballo, 617 N.Y.S.2d 300 (1st Dep't 1994). Application in this specific context comports with the general principle in New York law that "the preservation requirement compels that the argument be `specifically directed' at the alleged error." People v. Gray, 86 N.Y.2d 10, 19 (1995);see also People v. Weston, 56 N.Y.2d 844, 846 (1982) ("[I]t was necessary that he move for a mistrial on this specific ground in order to preserve the issue for appellate review.").
An exception to the preservation requirement was recognized inPeople v. Lopez, 71 N.Y.2d 662 (1988). In Lopez, the Court of Appeals held that "where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure that defendant's guilty plea is knowing and voluntary." Id. at 666. If the trial court fails to fulfill this duty and accepts the plea without further inquiry, the defendant may seek appellate review of the sufficiency of allocution on direct appeal even in the absence of a post-allocution motion. Id.
"The trial court's duty to inquire is triggered where the defendant's recitation of the facts underlying the crime casts significant doubt upon his guilt or on the voluntariness of his plea" for example by raising the possibility of an affirmative defense. People v. Pariante, 726 N.Y.S.2d 405, 406 (1st Dep't 2001); see also People v. Moye, 569 N.Y.S.2d 38, 38 (4th Dep't 1991); People v. Curran, 527 N.Y.S.2d 35, 36 (2d Dep't 1988). Whether such a duty has arisen is determined by examining a defendant's statements at the plea allocution. See People v. Harris, 674 N.Y.S.2d 25, 26 (1st Dep't 1998) (noting that "statements made other than during the plea allocution itself are irrelevant"). Thus, if "nothing in [the] defendant's plea allocution cast[s] doubt on his guilt, the court ha[s] no obligation to conduct a sua sponte inquiry into allegedly exculpatory statements made by [the] defendant at sentencing."People v. Riley, 695 N.Y.S.2d 354, 354 (1st Dep't 1999); see also People v. Phillips, 819 N.Y.S.2d 129, 130 (3d Dep't 2006); People v. Jackson, 711 N.Y.S.2d 807 (4th Dep't 2000). And if the trial court has no duty to conduct further inquiry, then perforce there can be no breach of that duty that would justify the "narrow" exception to the preservation requirement.Toxey, 86 N.Y.2d at 726.
Not every allusion to an affirmative defense will be sufficient to "engender significant doubt on the voluntariness of [the] plea." Toxey, 86 N.Y.2d at 726. Thus, the Court of Appeals held that a defendant's statement "I don't carry weapons" was insufficient to trigger inquiry into the affirmative defense that the instrument used in an armed robbery "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged," NYPL § 160.15(4). See Toxey, 86 N.Y.2d at 726.
Anaya cites this exception as evidence that New York courts do not demand flawless compliance with the preservation requirement. But because Anaya said nothing at his allocution to raise the possibility of an affirmative defense or otherwise cast doubt on his guilt, "the narrow exception to the preservation rule described in People v. Lopez does not apply." Doctor, 704 N.Y.S.2d at 284 (citation omitted). Absent grounds for this exception, New York case law clearly indicates that Anaya was required to present his failure-to-inquire claim to the trial court in the first instance if he wanted to preserve it for appellate review.
c. Substantial Compliance
The third factor requires consideration of whether there was substantial compliance with the rule given the realities of trial. This determination is made against the backdrop of "the asserted state interest behind the contemporaneous objection rule: to ensure that the parties draw the trial court's attention to any potential error while there is still an opportunity to address it." Cotto, 331 F.3d at 245.
Anaya argues that he complied substantially, if not literally, with the rule through his "protest" at the sentencing proceeding that he was not aware that his co-defendant was carrying a gun. These statements, Anaya claims, were sufficient to alert the court to this basis for plea withdrawal. The record of the sentencing proceedings suggests otherwise.
Anaya's statements regarding his lack of knowledge of the gun were presented to the trial court after his counsel presented the grounds for the withdrawal motion and after the trial court had ruled on that motion. Moreover, the statements were made in the middle of Anaya's pre-sentence address to the court, during which he twice stated that fifteen years to life was not a proper sentence given his level of participation in the crime. In this context, it would have been reasonable to interpret Anaya's statements as part of a request for a more lenient sentence. Indeed, this appears to be what the trial court understood Anaya to be doing. To the extent Anaya intended his statements to support a motion to withdraw his plea on the grounds that it was involuntary and unintelligent because the court failed to inform him of a possible affirmative defense, he failed to make "his position with respect to the ruling known to the court." Id. at 245 (quoting NYCPL § 470.05(2)).
Moreover, consideration of the "realities of trial" does not suggest that nothing would have been gained by requiring Anaya or his attorney to refer more specifically to the grounds he believes would justify a withdrawal of his plea. Id. at 246. Anaya's counsel made a motion to withdraw his plea and the trial court gave him an opportunity to be heard. If Anaya felt that a ground was not covered, he could have alerted his counsel to it at that time. That way, the trial court would have been able to address it when its attention was focused on the motion to withdraw. By the time Anaya made his objection, the trial court had moved on to sentencing, at which time it was reasonable to interpret any objections made at that time as relating to the imposition of sentence rather than to a previously addressed motion.
d. Conclusion
The overarching question guiding consideration of the Lee guideposts is "whether the requirement of an additional objection was firmly established and regularly followed in these circumstances." Id. at 242 (citation omitted). Review of the circumstances of this case and New York case law applying the preservation rule confirm that this question can be answered in the affirmative. This is simply not one of the "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee, 534 U.S. at 376. The Appellate Division's denial of Anaya's voluntariness claim rested on an independent and adequate state ground.
2. Cause and Prejudice
Habeas review of this claim is therefore precluded "unless the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law."Messiah, 435 F.3d at 195 (quoting Coleman, 501 U.S. at 750)). Anaya argues that the default should be excused because his attorney's failure to preserve the objection fell below constitutional standards of effective assistance.
Procedural default may also be excused if the petitioner is able to "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Messiah, 435 F.3d at 195 (quoting Coleman, 501 U.S. at 750)). This requires a showing that the petitioner "is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Anaya makes no such argument here.
In certain circumstances, counsel's ineffectiveness in failing properly to preserve a claim for review can constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). Assuming that cause could be established, Anaya must still demonstrate prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982) (noting that the criteria are "conjunctive"). Anaya could meet his burden of showing prejudice by establishing that there is a "`reasonable probability' that, but for counsel's failure, `the result of the proceeding would have been different.'" DiGuglielmo v. Smith, 366 F.3d 130, 136 (2d Cir. 2004) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). In this case, the relevant proceeding is the trial court's ruling on the motion to dismiss. Anaya must establish that there is a reasonable opportunity that the trial court would have granted his motion if his attorney had properly presented the substance of the voluntariness claim he raises in his petition.
Ineffective assistance may not constitute cause if it is not raised as a separate claim in state court and properly preserved for habeas review. See Carpenter, 529 U.S. at 452-53. Anaya did raise a separate ineffective assistance claim in state court, and as described below, the respondent has declined to argue that that claim is procedurally defaulted.
Anaya has failed to carry his burden of showing prejudice. New York appellate courts routinely reject claims that pleas were made involuntarily because defendants were not informed of an affirmative defenses if the defendant did not make any statements during the plea allocution that tended to negate any element of the crime or suggest the availability of the defense. See, e.g., Phillips, 819 N.Y.S.2d at 130 (alternative holding on the merits); People v. Faillo, 777 N.Y.S.2d 297 (1st Dep't 2004) (same); Jackson, 711 N.Y.S.2d at 807 (same, exculpatory statements). Because "there was nothing in [Anaya's] allocution itself that would raise the possibility of an affirmative defense or otherwise cast doubt on his guilt," People v. Townsend, 683 N.Y.S.2d 253 (1st Dep't 1999) (citation omitted), the trial court would most likely have found the plea knowing and voluntary and would have denied the motion to withdraw even if Anaya's counsel had raised the affirmative defense argument. Such a ruling would have been upheld by the Appellate Division, see Anaya, 777 N.Y.S.2d at 636 ("Were we to review this claim, we would find that defendant's plea was knowing, intelligent and voluntary, and that nothing in the record of the plea proceeding raised the possibility of the affirmative defense." (citation omitted)), and for the reasons described below, would not have been disturbed on habeas review.
Because Anaya has failed to establish prejudice, review of his voluntariness claim is precluded by the Appellate Division's decision to resolve his appeal of this issue on an independent and adequate state law ground. Yet even if this Court were to review the merits of Anaya's claim de novo under the pre-AEDPA standard, he would still not be entitled to relief.
3. Due Process
"A plea is constitutionally valid only to the extent it is voluntary and intelligent." Bousley v. United States, 523 U.S. 614, 618 (1998). The voluntariness of a guilty plea is determined by examining the totality of the relevant circumstances. Hanson v. Phillips, 442 F.3d 789, 798 (2d Cir. 2006). Due process requires that a trial judge make a record that affirmatively discloses that the defendant's guilty plea was voluntary and intelligent. Id. While no any particular "interrogatory catechism" is constitutionally mandated, id., a "plea could not be voluntary in the sense that it constituted an intelligent admission that the [defendant] committed the offense unless the defendant received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Henderson v. Morgan, 426 U.S. 637, 645 (1976) (citation omitted). Where a defendant pleads guilty without having been informed of the crime's elements, this standard has not been met and the plea is invalid. Bradshaw v. Stumpf, 125 S. Ct. 2398, 2405 (2005).
"[A] distinction exists," however, "for the purposes of due process, between an element of a crime and an affirmative defense to that crime." Ames v. N.Y. State Div. of Parole, 772 F.2d 13, 15 (2d Cir. 1985). Due process requires that a defendant be informed of the elements of an offense because a plea based on an incomplete understanding of the charge is not an intelligent admission of guilt. Henderson, 426 U.S. 645 n. 13. But ignorance of the bases "on which [a defendant] might escape or receive a lesser punishment for an offense that he has committed" need not similarly cast doubt on the plea as a "reliable indicator of factual guilt." Mitchell v. Scully, 746 F.2d 951, 956 (2d Cir. 1984). Thus, a plea is not rendered involuntary simply because a defendant is not informed of an affirmative defense. See Ames, 772 F.2d at 15; Mitchell, 746 F.2d at 956. This is true even when facts raised at the allocution suggest that such a defense might be available, as long as "there [is] no discrepancy between the crime [the defendant] pled to and the conduct he admitted." Ames, 772 F.2d at 15; see also United States v. Adams, 448 F.3d 492, 501 n. 5 (2d Cir. 2006) (distinguishing for the purposes of Rule 11, Fed.R.Crim.P., between defendant admissions that "negate an element of the offense charged" from those that "confess to each element of the offense while alluding to an affirmative defense"); United States v. Smith, 160 F.3d 117, 123 n. 4 ("Rule 11 does not require the district court to provide the defendant and his counsel with a tutorial on every conceivable defense and then secure a waiver for each one.").
Rule 11 "is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary." McCarthy v. United States, 394 U.S. 459, 465 (1969). Thus, while due process does not mandate compliance with Rule 11, cases evaluating pleas for conformance with the Rule are nonetheless relevant to the present inquiry.
Because due process does not require that a defendant be informed of available affirmative defenses, Anaya is not entitled to habeas relief on this claim. Moreover, when a defendant pleads guilty on the advice of counsel and then challenges the plea on the ground that it was not voluntary and knowing because he was not informed of an available affirmative defense, the plea must be upheld unless the defendant can show that the advice he received from counsel was constitutionally ineffective. Panuccio v. Kelly, 927 F.2d 106, 111 (2d Cir. 1991); Mitchell, 746 F.2d at 957. Anaya does not argue that the advice he received from his counsel at allocution was ineffective. The New York courts' denial of his motion to withdraw his plea on this ground violated no constitutional right and must be upheld even on de novo review.
B. Prosecutorial Misconduct
Anaya's second claim is that he was denied due process when the prosecutor misrepresented the contents of his videotaped statement during argument on his motion to withdraw his plea. Prosecutorial misconduct does not give rise to a constitutional claim unless the prosecutor's act constitutes "egregious misconduct." Miranda v. Bennett, 322 F.3d 171, 180 (2d Cir. 2003) (citation omitted). Manipulation of the evidence may indeed be egregious, but the merits of the claim "will depend on the likely impact of the misconduct in light of the trial proceedings as a whole." Id. at 181.
In its opinion denying Anaya's motion to vacate, the trial court concluded that the prosecutor had not misrepresented the contents of the videotaped statement. Contrary to Anaya's allegation, the trial court found, the prosecutor "made no assertion that the defendant had admitted to such prior knowledge on the videotape or elsewhere." This factual finding is presumed to be correct, even under the less deferential pre-AEDPA standard of review. Green v. Scully, 850 F.2d 894, 900 (2d Cir. 1988). If there was no misrepresentation by the prosecutor, then there has been no misconduct, much less egregious misconduct sufficient to give rise to a due process claim.
But even if the prosecutor had misrepresented the contents of the videotape, the likely impact of the misconduct in light of the proceedings as a whole would have been minimal at best. As the trial court pointed out, the alleged misrepresentation was made after the ruling on the motion to dismiss, and therefore could not have impacted the court's decision to deny the motion. More importantly, the subject of the alleged misrepresentation was immaterial to the court's decision on the motion to withdraw. As discussed above, New York case law requires trial courts to consider only the defendant's statements made at the allocution itself when considering the voluntariness of a guilty plea. What Anaya said on the tape was irrelevant to this consideration, even if it would have suggested the availability of an affirmative defense, if he did not repeat his statement at his allocution.See People v. Negron, 635 N.Y.S.2d 615, 616 (1st Dep't 1995) ("It is of no moment that the plea court was aware that defendant's post arrest statements raised a justification defense, since defendant did not reiterate those statements at his plea allocution."). Consequently, it did not matter whether the trial court had an accurate understanding of the contents of the videotaped statement.
Viewing the proceedings as a whole, the impact of any misconduct by the prosecutor would have been negligible, and insufficient to support a due process claim. See Miranda, 322 F.3d at 181. The trial court's denial of Anaya's motion to vacate on this ground was not erroneous.
C. Ineffective Assistance
Anaya's third and final claim is that he was denied effective assistance of counsel at his sentencing when he was represented by a substitute attorney who was not familiar with the facts of his case. He points specifically to three ways in which his attorney's performance was deficient: the attorney failed to apprise the court that Anaya's assertions at sentencing called into question the voluntariness of the plea; the attorney failed to correct the prosecutor's and the trial court's misunderstandings of Anaya's knowledge of the gun; and the attorney failed to offer any meaningful advocacy in support of the motion to withdraw the guilty plea. The trial court found two of these grounds procedurally defaulted, and the Report agreed with respect to one of them. The respondent, however, declined to advance a procedural default argument in its response to the petition and does not attempt to defend the Report's consideration of a waivable defense that it did not rely on. Because the respondent does not assert that any part of the ineffective assistance claim is procedurally barred, the claim will be reviewed here on the merits. Cf. Cotto, 331 F.3d at 238 n. 9 ("[P]rocedural default is normally a defense that the state is obligated to raise and preserve if it is not to lose the right to assert that defense thereafter." (citation omitted)).
In order to prove a claim of ineffective assistance, a habeas petitioner must prove that: "(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006). Failure to make the required showing under either prong defeats the ineffectiveness claim. Strickland v. Washington, 466 U.S. 668, 700 (1984).
Thus, even if Anaya is correct that his substitute counsel's performance was inadequate, he is only entitled to habeas relief if he can establish a reasonable probability that the trial court would have granted his motion to withdraw but for counsel's errors. A reasonable probability is one that undermines confidence in the outcome of the proceeding. Lynn, 443 F.3d at 247. A court must consider the entire record, including the cumulative effect of all of counsel's unprofessional errors in evaluating prejudice, keeping in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by counsel's errors." Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 696)).
Anaya has failed to demonstrate any prejudice resulting from the trial court's denial of this claim. Even if Anaya's counsel had avoided the alleged errors Anaya identifies, there is little reason to believe that the motion to withdraw the plea would have been granted. The record of Anaya's plea allocution establishes that the plea was voluntary and intelligent. For reasons discussed above, argument at a later time that an affirmative defense might have been available at trial does not alter that conclusion. Nor is there reason to believe that the trial court would have viewed the allocution as being less reliable if it were not mistaken about Anaya's prior knowledge of the gun. The trial court's denial of the motion to withdraw was consistent with both due process and New York case law and was strongly supported by the record of the plea allocution. Anaya has made no argument here that undermines confidence in the outcome of the proceeding, and therefore fails to demonstrate prejudice resulting from his substitute counsel's performance. Because the trial court's denial of relief on this claim was not erroneous, habeas relief would be improper even under the pre-AEDPA standard of review.
Conclusion
Anaya's petition for a writ of habeas corpus is denied. The objections to Judge Francis's report are overruled. The Report's findings of fact are adopted unaltered, and the conclusions of law and recommendations are adopted as modified by the analysis above.No certificate of appealability shall issue. Anaya has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Moreover, any appeal from this order would not be taken in good faith. See 28 U.S.C. 1915(a) (3); Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case.
SO ORDERED.