Opinion
02 CIV. 3900 (DLC)
November 25, 2003
Thomas Butti, Sonyea, NY, for Petitioner
John J. Sergi, Esq., White Plains, NY, for Respondent
OPINION AND ORDER
Pro se petitioner Thomas Butti ("Butti") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his 1997 conviction following the entry of a guilty plea for fraud-related offenses. The petition asserts violations of his right to a speedy trial and right to counsel. The petition was referred to the Honorable James C. Francis for a report and recommendation ("Report"), which was issued on July 2, 2003. The Report recommends that the petition be denied. Butti has filed objections to the Report. For the following reasons, the Report is adopted and the petition is denied.
Background
On August 18, 1994, in the midst of his criminal trial in the Westchester County Court, Butti pled guilty to grand larceny in the second degree, insurance fraud in the second degree, attempted grand larceny in the third degree, and offering a false instrument for filing in the first degree. The plea was entered the day after Butti had executed a written agreement ("Agreement") with the District Attorney's Office ("DA") in which he agreed to cooperate with its investigation into an insurance fraud scheme, not to commit further crimes, and not to reveal his cooperation or the ongoing investigation to anyone. In return, the District Attorney agreed to recommend a sentence of no more than three to nine years, or to refrain from taking a position with regard to the sentence.
On November 20, 1996, the DA made a motion to proceed to sentence. The DA had corroborated a tape made several months before in which Butti urged former accomplices to impede the DA's ongoing insurance fraud investigation. On February 12, 1997, Butti moved to withdraw his plea on the ground that the Agreement had been violated. The court denied the motion, finding that Butti himself had violated the Agreement. On August 25, Butti filed an application for a writ of prohibition from the Appellate Division, arguing that the County Court had lost jurisdiction because of its delay in sentencing him. Butti was sentenced on September 5, to three to nine years' imprisonment and ordered to pay restitution of $285,000. At the sentencing, the DA had argued that Butti had violated the Agreement and recommended that he be sentenced to prison for five to fifteen years. On October 6, 1997, Butti's application for a writ of prohibition was denied by the Appellate Division. On April 16, 1998, the Appellate Division reduced the amount of restitution to $184,492. On September 28, the Court of Appeals denied leave to appeal.
On March 5, 1999, Butti filed his first petition for a writ of habeas corpus. On December 17, Judge Francis recommended that this Court find that the petition's ineffective assistance of counsel claim was unexhausted. On March 13, 2000, the first petition was dismissed without prejudice to permit Butti to exhaust his claim. Butti v. Supt. Gowanda Correctional Facility, No. 99 Civ. 1667 (DLC), 2000 WL 280039 (S.D.N.Y. Mar. 14, 2000). Butti then filed a motion to vacate his conviction on May 26, 2000. That motion was denied on September 13, 2001, and on March 11, 2002, the Appellate Division denied his application to appeal. On April 15, 2002, Butti filed the present petition with this Court. On December 26, this Court found that the statute of limitations period was equitably tolled during the pendency of his first habeas petition and that the present petition is therefore not time-barred under Title 28, U.S.C. § 2244(d). Butti v. Gaimabruno, No. 02 Civ. 3900 (DLC), 2002 WL 31885973 (S.D.N.Y. Dec. 26, 2002).
The petition bears the date April 15, was received by the Pro Se Office of this District on April 19, and was docketed1 on May 22.See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 534 U.S. 886 (2001).
Discussion
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). The Court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
A. Speedy Trial Claim
Butti contends that the delay in his sentence violated the Sixth Amendment's guarantee of the right to a speedy trial. Butti was sentenced approximately three years after he entered his plea of guilty. The Report found, contrary to the finding by the Appellate Division that the claim was unpreserved, that Butti had raised this claim before the trial court. Concluding correctly that the claim was not procedurally barred and that it was exhausted, the Report nevertheless recommended denial of the claim because Butti had explicitly waived his Sixth Amendment right to a speedy trial in the Agreement.
Butti objects to the Report's conclusion that the claim should be denied because he had waived his right to a speedy trial. He asserts that the Agreement was not binding because it was only a preliminary document and to be binding had to be approved by the trial court and bear the signature of the District Attorney herself. Moreover, he asserts that the trial court had a duty at the time of the plea to ascertain that the waiver in the Agreement was a knowing one, and that it could not do so because the Agreement was not part of the record. Even assuming that Butti could genuinely dispute that his waiver of his right to a speedy trial was knowing and voluntary, however, he would not be entitled to relief under the Sixth Amendment:.
The Second Circuit has acknowledged that the Sixth Amendment right to a speedy trial applies to sentencing. United States v. Bryce, 287 F.3d 249, 256 (2d Cir. 2002). The determination of whether a delay violates the Sixth Amendment is governed by the test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), which identifies four factors for a court to consider: the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003). These factors, as well as other relevant circumstances, should be weighed on a case-by-case basis. Id.
Butti was sentenced approximately three years after the entry of his guilty plea. Although this was a substantial delay, no Sixth Amendment violation was found in cases where defendants faced similar or longer delays before proceeding to trial. Barker, 407 U.S. at 533 (finding no violation in five year delay before trial); Davis, 316 F.3d 125, 128 (finding no violation in three-year delay between trials). In this case, the reason for the delay deserves particular emphasis. Butti's sentencing was originally postponed so that he could cooperate, as provided in the Agreement, with the DA's investigation of the complex insurance fraud scheme of which he was a part. The DA made a motion to proceed to sentence in November 1996, after having investigated and confirmed Butti's efforts to obstruct its investigation, in violation of the Agreement. Sentencing was again delayed, however, by Butti's February 1997 motion to withdraw his guilty plea.
Butti did assert his right to a speedy sentencing, although not until he brought a motion before the Appellate Division in August 1997, subsequent to the trial court's conclusion that he had violated the Agreement. Finally, any prejudice resulting from the delay was attributable to Butti's failure to cooperate and his efforts to subvert the DA's investigation. Considering all of these factors, Butti has not shown an unreasonable delay in violation of his Sixth Amendment right to a speedy trial.
B. Ineffective Assistance of Counsel
Butti asserts essentially that his counsel failed to place the Agreement on the record at the time of his plea, failed to ensure that the trial court ascertained the voluntariness of the plea, and coerced his plea. Each of these claims is properly denied.
1. Entry of Agreement into Record at the Time of the Plea
The Report concluded that the claim that Butti's attorney erred in failing to enter the Agreement into the record at the time of his plea was exhausted. The Report recommended denying this claim since, at a minimum, Butti has shown no prejudice. It observed that Butti has admitted knowing the Agreement's terms, that he does not now allege that the prosecutor violated any of its terms, and the state court explicitly rejected Butti's previous argument that the prosecutor had violated the Agreement.
Butti asserts in his objections that he was prejudiced because he had expected a term of probation and the opportunity to continue his chiropractic practice rather than a sentence to a term of imprisonment. He asserts that his attorney erred in describing the Agreement at the time of the plea by saying that the prosecutor would recommend a sentence of "three to nine," when the Agreement was that the prosecutor would recommend a sentence of no more than three to nine years' imprisonment if Butti cooperated.
Butti also argues that the Report erred in stating that Butti no longer asserted that the prosecutor violated the Agreement. He points to prior arguments that he has made that the prosecutor breached the Agreement by "wiring" an individual to record a conversation with Butti surrepticiously after Butti's plea of guilty and to obtain evidence against him in violation of Butti's Sixth Amendment right to counsel.
The failure to mark the Agreement as an exhibit at the time Butti entered his plea had no impact on Butti's sentence. It was kept off the record so as to keep Butti's cooperation in the DA's investigation confidential. The Agreement and its precise terms were available to the sentencing judge. The term of imprisonment imposed on Butti was within the scope of the sentence that the Agreement described that the prosecutor might recommend. This claim is properly dismissed.
2. Voluntariness of Plea
Butti asserts that his attorney failed to ensure at the time that he entered his plea that the trial court ascertained the voluntariness of the plea. This is not the claim that Butti presented to the state courts in challenging his conviction. There he attacked his plea on the ground that the court itself had failed to ascertain the voluntariness of the plea. The Report correctly concluded that this argument is unexhausted, but procedurally defaulted. A claim that is procedurally defaulted is barred from further review unless the petitioner shows "cause for the default and prejudice" or demonstrates "that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 748-750 (1991)).
Applying the cause and prejudice standard for procedurally barred claims, the Report found that Butti had made no attempt to show either cause for the default or prejudice, but that he did make a claim that there had been a miscarriage of justice. In his objections, Butti does not assert that he was actually innocent of the crimes to which he pleaded guilty. Butti does take issue, however, with the Report's findings that he did not exhaust this claim, and that he did not present a cause and prejudice argument, referring to his memorandum of law in support of his petition. A review of the passages to which he refers provides no basis to find that the Report erred. To satisfy the exhaustion requirement, a petitioner must fairly present his constitutional claims to the state court. Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003). Butti does not show where the claim made here was presented with sufficient clarity to alert the state courts to its existence. Moreover, he does not present any reason or cause for his failure to present the claim to the state courts.
A review of the plea transcript indicates no basis to find that Butti's plea was involuntary or that the colloquy to determine voluntariness was inadequate. Finally, Butti has failed to show that there was a miscarriage of justice. This claim is denied.
3. Coercion and Misrepresentation
Finally, Butti argues that his plea was the product of coercion and misrepresentation, and that his attorney at the time of the plea coerced him to abandon his defense at trial of duress and extortion. The Report correctly found that these claims are exhausted and recommended their denial on the merits.
As Butti described in his affidavit submitted in support of his motion to withdraw his plea of guilty, he had entered into the Agreement knowingly. He asserted in the affidavit that "[during] the course of that trial, [the] prosecutor approached my attorney with a view towards entering into the above mentioned agreement. I was reluctant to do so, however, after a number of days, realized that this agreement made sense." At his plea allocution, Butti stated under oath that he was "satisfied with the representation" given to him by his attorney, that he understood that he was waiving his right to trial and all the rights associated with it, that nobody had "threatened, coerced, or forced" him in any way to plead guilty, that he was entering his plea of guilty "freely and voluntarily," and that he understood that his statements at the allocution could be used against him in other judicial proceedings. A court may rely upon Butti's sworn responses at his plea allocution. Subsequent statements that simply contradict what he said at the allocution are insufficient to dispute that he entered the plea knowingly. United States v. Hernandez, 242 F.3d 110, 112-13 (2d Cir. 2001); United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000).
Butti's principal contention is that the trial judge should have personally asked the questions during the plea allocution and that the judge improperly delegated this critical task to the prosecutor. He asserts that his responses were "not solemn declarations," but rather "yes/no responses to boilerplate questions."
The fact that the prosecutor was the individual to pose all of the questions to him is of no consequence. The plea took place in the midst of his trial. It was clearly, as he himself admits, a decision and moment of importance to him. The allocution was in court, under oath, in the presence of his own attorney and the judge. Butti is an educated man, and points to nothing to suggest that he believed at that moment that his responses could be untruthful or casually given because of the identity of his interlocutor. Similarly, the fact that many of the questions were sufficiently answered with either a yes or no does not. undermine the validity of those answers.
During the allocution, Butti was also asked by the prosecutor whether in pleading guilty he was relying on any promises or representations other than those that had been made to him by the DA and discussed in a robing room conference with the judge. Butti contends that because he was not present for the conference, in responding "no" he assumed that the prosecutor was referring not only to the written Agreement, but to an oral agreement that the prosecutor would recommend probation and the continuation of Butti's chiropractic license in exchange for his cooperation.
Just before Butti's allocution, the judge met with the ADA and with Butti's attorney to discuss the terms of the Agreement. In its opposition, the DA has noted that the Agreement was not entered into the record in order to preserve the confidentiality of Butti's cooperation with the DA's investigation.
His contention that if he had been asked by the judge rather than the prosecutor whether there had been any promises made to him in return for his decision to plead guilty, he would have replied that he "had been promised a sentence of probation with no loss of license and cooperation on my part" is unpersuasive for the reasons discussed above. Moreover, even assuming Butti is correct as to the existence of an oral agreement, he has testified that he understood the agreement to recommend probation and the retention of his chiropractic license to be conditioned on his cooperation. Since Butti was found to have violated the Agreement by failing to cooperate and by actively obstructing the DA's investigation, he has no grounds to argue that the alleged oral agreement was breached or misrepresented.
Butti so testified at a predicate felony hearing on October 4, 2001.
To return to the claim presented by this petition, nothing in Butti's objections provides a basis to reject the Report's recommendation that this Court deny Butti's claim that his counsel was ineffective by coercing his plea. Butti's objections do not provide any basis for finding that his attorney was ineffective by failing to intervene during the plea allocution.
Conclusion
The recommendation of Magistrate Judge Francis is adopted and the petition is dismissed. In addition, I decline to issue a certificate of appealability. The petitioner has not made a 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). I also find pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.SO ORDERED.