Opinion
02. Civ. 1181 (RWS)
September 6, 2001
Oliver A. Smith, New York, NY, Attorney for Calvin Cary.
Robert T. Johnson, Bronx County District Attorney, Bronx, NY, Nancy D. Killian, John M. Moreira, Assistant District Attorneys, for respondent.
OPINION
Petitioner Calvin Cary ("Cary") has filed two petitions seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The first alleges a breach of his plea agreement and ineffectiveness of counsel, and the second attacks a prior conviction on the grounds that it adversely affected his current sentence. The petitions are hereby consolidated for review, and, for the reasons set forth below, will be dismissed.
See Padilla v. Mantell, NoB. CV 98-3064 (RR), CV 98-5862 (RR), 2000 WL 1471596, *1 (E.D.N.Y. Aug. 8, 2000) (sua sponte consolidating overlapping habeas petitions).
Background
The facts and procedural history of case number 00 Civ. 8926 (RWS) are set forth in a prior opinion of this Court, familiarity with which is assumed. Cary v. Ricks, No. 00 Civ. 8926 (RWS), 2001 WL 314654 (S.D.N Y March 30, 2001) ("Cary I")
Cary's plea agreement provided for a noncustodial sentence if he were to enter and successfully complete a drug rehabilitation program, or, in the alternative, a 4 1/2 to 9 year prison term. Cary contends that the plea agreement was violated when he was sentenced to a 4 1/2 to 9 year term of incarceration after being ejected from the drug program through no fault of his own, and that his attorney was constitutionally ineffective for failing to move to withdraw his guilty plea on this basis prior to sentencing on December 22, 1997.
The respondent has argued that these claims are procedurally defaulted because Cary never moved to withdraw his guilty plea prior to sentencing. The Appellate Division affirmed Cary's conviction on this basis on May 18, 1999, but nonetheless went on to state that "were we to review the claim, we would find that the sentence was properly imposed since defendant failed to complete the drug program, a condition of the plea bargain." People v. Cary, 261 A.D.2d 242, 242, 688 N.Y.S.2d 884, 884 (N Y App. Div. 1999). Notably, the Appellate Division found that Cary's "assertion that he was prepared to participate in the program but was refused acceptance is contradicted by the record." Id. As set forth in the prior opinion, contemporaneous documents from the Treatment Alternatives to Street Crime ("TASC") reveal that he was discharged voluntarily because he presented "a threat to the environment after a number of incidents."
Cary exhausted his state court remedies and filed a petition for habeas corpus in No. 00 Civ. 8926 (RWS) on November 22, 2000. On or about the same date, Cary filed motions for bail and for the appointment of counsel. Bail was denied in a prior opinion because Cary's petition did not raise a "substantial claim" in light of the presumption of correctness afforded to the state court's findings of fact on the dispositive question of why he was discharged from TASC. Cary I, No. 00 Civ. 8926 (RWS), 2001 WL 314654, at *4.
Nonetheless, counsel was appointed to file a reply brief on Cary's behalf due to the possibility that a factual investigation could reveal evidence to support Cary's allegation that he was unfairly ejected from the program. Such evidence, if it exists, would not only undermine the state court's factual finding as to the plea agreement claim, but would also support Cary's allegation that his attorney was ineffective for failing to move to withdraw the guilty plea before sentencing. See People v. Selikoff, 35 N.Y.2d 227, 239, 318 N.E.2d 784, 793, 360 N.Y.S.2d 623, 634 (N.Y. 1974) ("the failure or inability to fulfill a [sentencing] promise requires either that the plea of guilty be vacated or the promise fulfilled"); People v. Jackson, 272 A.D.2d 342, 708 N.Y.S.2d 416 (N Y App. Div. 2000) (holding that defendant should have been allowed to withdraw guilty plea after TASC terminated him from drug treatment because he required Prozac for a preexisting psychiatric condition). Cary's petition in case number 00 Civ. 8926 (RWS) presents no viable grounds for issuing a writ of habeas corpus without this evidence. See Cary I, No. 00 Civ. 8926 (RWS), 2001 WL 314654, at * 3—*4 Cary's reply was filed on July 20, 2001, whereupon the motion was deemed fully submitted.
Meanwhile, Cary filed a second habeas corpus petition in case number 01 Civ. 1181 (RWS) on February 15, 2001. That petition sought to attack a prior misdemeanor conviction for which Cary served a six month sentence during the period in which he was meant to be enrolled in TASC pursuant to the felony plea agreement. Construing the pro se petition liberally, Cary maintains that the custodial misdemeanor sentence was unjustly imposed and that his six-month term adversely affected his ability to complete the TASC program. Specifically, Cary alleges that he was originally given a term of community service on the misdemeanor charge, but was unable to complete it because he enrolled in the residential drug treatment program pursuant to the felony plea agreement, and was therefore remanded to serve a six-month sentence. Because he had to leave TASC to serve the misdemeanor sentence, Cary already had one strike against him when he returned to the program. After reenrolling for a brief period, he was again discharged and refused reentry. Cary contends that he would have been readmitted to TASC but for the custodial misdemeanor sentence, so the misdemeanor conviction has adversely affected the sentence he is currently serving.
The respondent filed a response to the petition in case number 01 Civ. 1181 (RWS) on May 4, 2001, alleging that this Court lacks subject matter jurisdiction over the action because Cary is no longer "in custody" on the misdemeanor sentence, or, in the alternative, that the claim is not cognizable because the prior sentence did not adversely affect his felony sentence as a matter of law.
Counsel for Cary filed a reply brief on July 19, 2001, whereupon the motion was deemed fully submitted.
Discussion
I. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.c. S 2254
Section 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254 (a); see Chandler v. Florida, 449 U.S. 560, 571, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997)
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254 (e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(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 (d)(1), (2); see Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
Federal habeas relief is barred where the state court judgment rested on "adequate and independent state grounds." See Coleman v. Thompson, 501 U.S. 722, 726 (1991); Harris v. Reed, 489 U.S. 255, 261-62 (1989);Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir. 1993). This doctrine arises "[blecause of comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes."Epps v. Commissioner of Correctional Servs., 13 F.3d 615, 617 (2d Cir.), cert. denied, 511 U.S. 1023, 114 S.Ct. 1409, 128 L.Ed.2d 81 (1994)
In order to bar federal habeas review on this basis, a state court judgment must include a "plain statement" that "clearly and expressly" states that the "judgment rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision," even if the state court judgment a1so considers federal law. Harris, 489 U.S. at 260 (citations and internal quotations omitted); see Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ("As to the role of adequate and independent state grounds, it is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts"). After Harris, federal habeas courts reviewing state prisoner claims "will presume that there is no independent and adequate state ground for a state court decision when the decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Coleman v. Thompson, 501 U.S. 722, 734-35, 111 S.Ct. 2546, 2556, 115 L.Ed.2d 640 (1991) (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)).
The Second Circuit has recently reaffirmed that a state appellate court's rejection of a claim for failure to raise it below under state procedural rules is an adequate and independent state ground for decision, even when the state court goes on to opine that the claim would also be denied if considered the merits. See Fama v. Commissioner of Correctional Services, 235 F.3d 804, 811 n. 4 (2d Cir. 2000). In Cary's case, the First Department of the Appellate Division held that the plea withdrawal "claim was not preserved since defendant did not move to withdraw his plea," but nonetheless stated opine that "[w]ere we to review the claim, we would find that sentence was properly imposed since defendant failed to complete the drug program, a condition of the plea bargain." People v. Cary, 261 A.D.2d at 242. Under Fama, this holding turns on the adequate and independent state ground of the procedural default, and therefore precludes consideration of Cary's claims on the merits unless he can show that his attorney's ineffectiveness was cause for the default and prejudiced him.
Cary must also demonstrate cause and prejudice before the Court may consider his claim regarding the misdemeanor, as he never raised it below. As set forth below, however, Cary cannot demonstrate that his attorney was constitutionally ineffective for failing to move to withdraw the guilty plea or to raise the prior misdemeanor as an explanation for TASC's decision not to readmit Cary.
II. Cary, Not the Government, Breached the Plea Agreement
Cary contends that the government breached its plea agreement with him when TASC refused to allow him back into the program, thereby depriving him of the noncustodial drug rehabilitation sentencing option, and that his attorney was ineffective for failing to move to withdraw the plea when it became apparent that he would be sentenced to time in prison. Even if these claims were not procedurally defaulted, they would not prevail because the evidence demonstrates that Cary, not the government, breached the plea agreement.
Criminal defendants have no "absolute right" to withdraw their guilty pleas. A motion to withdraw a guilty plea will be successful only if the defendant can demonstrate that the plea was not voluntary and intelligent, see Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), for reasons that may include ineffective assistance of counsel. A defendant may also prevail on a motion to withdraw a guilty plea if he can show that the government has breached its part of a plea agreement, see Santobello v. NewYork, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Mosher v. Lavallee, 491 F.2d 1346, 1348 (2d Cir. 1974). See also Stone v. Cardwell, 575 F.2d 724, 726 (9th Cir. 1978). However, withdrawal of a guilty plea is not the only remedy dictated by the government's breach of the plea agreement. Instead, the trial court may, in its discretion, either allow the defendant to withdraw the guilty plea or order specific performance of the agreement. Santobello, 404 U.S. at 263, 92 S.Ct. at 499; United States v. Alexander, 869 F.2d 91, 94 (2d Cir. 1989)
Making and withdrawing a guilty plea before sentencing are critical stages of prosecution in which defendants have a Sixth Amendment right to representation. See Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995) (recognizing that defendants have constitutional right to counsel through critical stage of sentencing); see also United States v. Sanchez-Barreto, 93 F.3d 17, 22 (1st Cir. 1996) (withdrawal of guilty plea is critical stage); United States v. Crowley, 529 F.2d 1066, 1069 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976) (same); Guzman v. Sabourin, 124 F. Supp.2d 828, 836 (S.D.N.Y. 2000) (same).
As Cary does not contend that he misunderstood the terms of the plea agreement or was coerced into making the plea, the relevant question is whether the government breached the plea agreement. If so, then it is conceivable that the trial court might have allowed Cary to withdraw his plea if his attorney had so moved prior to sentencing, and his attorney may have been constitutionally ineffective for failing to do so. However, if Cary's inability to pursue the noncustodial treatment option was a result of his own breach of the plea agreement, then he had no right to withdraw his plea on that basis, and his ineffective assistance of counsel claim must fail. See United States v. Merritt, 988 F.2d 1298, 1313 (2d Cir.) ("a defendant who materially breaches a plea agreement may not claim its benefits"), cert. denied, 508 U.S. 961 (1993)
Claims of ineffectiveness in the context of guilty pleas are measured under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a petitioner to demonstrate that (1) that the representation fell below an objective standard of reasonableness measured by prevailing professional norms; and (2) resulting prejudice. 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064-65, 2068; See Hill v. Lockhart, 474 U.S. 52, 57-58, 106 5. Ct. 366, 370, 88 L.Ed.2d 203 (1985). Prejudice exists where a petitioner can show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id.
Cary's plea agreement clearly provided that if he "entered and successfully complete[dl" the 18-24 month in-house drug treatment program at TASC, his guilty plea would be withdrawn, the charge against him reduced from a Class B felony to a Class C felony, and he would be sentenced to time served. "Otherwise," the judge who accepted Cary's plea warned him, "you may be sentenced to a minimum term of four and a half years, maximum term of nine years," as per the plea agreement. When the plea was entered on January 10, 1997, the judge set forth the terms of the agreement and specifically told Cary that he would not be able to withdraw the plea for any reason after it was entered.
Although Cary entered TASC on or about March 18 or 19, 1997, he left the program on May 15, 1997 to serve a six-month sentence for a prior misdemeanor. He was readmitted on October 6, 1997, but was voluntarily discharged on November 18, 1997 because, as TASC's Daytop facility documents put it, he presented "a threat to the environment after a number of incidents." At sentencing on December 22, 1997, the judge noted that TASC would not readmit Cary to the program, and sentenced him to 4 1/2 to 9 years in prison as per the plea agreement.
III. The Prior Misdemeanor Claim is Unavailing
Cary now contends that he was prejudiced by the court's failure to consolidate his felony and misdemeanor sentences, first by having to serve six months on the misdemeanor charge for failing to complete community service while in residential drug treatment, and then by not being allowed to re-enroll in TASC, at least in part because of the misdemeanor sentence. However, even if Cary's pro se petition could be construed to have raised the issue in state collateral proceedings, it is purely speculative whether the custodial misdemeanor sentence in fact contributed to TASC's decision not to readmit him a third time, or, if so, whether that fact would have swayed the judge at sentencing. As such, it is impossible to say that the outcome of the proceedings would have been different if this issue had been raised prior to sentencing.
Cary's petition pursuant to N.Y. C.P.L. § 440 claimed "a breach in original Plead Bargain Agreement Contract outside of court with TASC Counselor in full satisfaction of two cases which were presented and agreed upon by District Attorney." (Moreira Aff. Ex. 6.)
In any event, the misdemeanor claim is not cognizable here. Due to the requirement that petitioners must be in custody to bring habeas corpus claims, a prior expired sentence used to enhance a still undischarged sentence is presumed valid and may not be collaterally attacked pursuant to § 2254 unless it was obtained without the assistance of counsel.Lackawanna County District Attorney v. Coss, 531 U.S. 923, —, 121 S.Ct. 1567, 1572-74, 149 L.Ed.2d 608 (2001). Cary has not argued that he was unrepresented on the misdemeanor charge. Therefore, as Cary is no longer in custody on the misdemeanor sentence, his petition in case number 01 Civ. 1181 (RWS) is hereby dismissed for lack of standing.
Nor can he show that his felony sentence was "enhanced" on the basis of his misdemeanor sentence. Cary received the exact felony sentence he had bargained for on January 10, 1997, before being remanded to serve the misdemeanor sentence: 4 1/2 to 9 years if he did not successfully complete the inpatient drug treatment program.
In sum, the TASC discharge.documents reflect that Cary was ejected from the program due to his own behavior in "a number of incidents" — not only because he left the program to serve his six-month misdemeanor sentence — and his habeas counsel has unearthed no new facts to undermine the state courts' factual findings, which are afforded great deference pursuant to 28 U.S.C. § 2254 (d)(2), (e)(1).
Therefore, any breach of the plea agreement was Cary's alone, and any motion to withdraw the plea on this basis or the misdemeanor sentence would have failed. See Merrit, 988 F.2d at 1313; People v. Sanchez, 254 A.D.2d 30, 30-31, 678 N.Y.S.2d 98, 99 (N.Y.App.Div. 1998) ("The court properly withdrew its promise of youthful offender treatment . . . since, by failing to complete a rehabilitation program, defendant violated the conditions of the plea agreement and the court was entitled to impose defendant's custodial sentence without first giving him an opportunity to withdraw his plea."). Cf. People v. Jackson, 272 A.D.2d 342, 708 N.Y.S.2d 416 (N.Y.App.Div. 2000) (defendant should have been able to withdraw his plea when TASC terminated him for preexisting Prozac prescription).
Moreover, it was not unreasonable for Cary's attorney not to seek to withdraw the guilty plea or to raise the misdemeanor sentence issue when there was no legal or factual basis for doing so. See Rahman v. United States, No. 95 Civ. 9985 (SWK), 1996 WL 337287, at *4 (IIS.D.N.Y. June 18, 1996) (finding no ineffective assistance of counsel in failing to advise defendant he could withdraw guilty plea for government's repudiation of plea agreement because defendant had violated the agreement).
Cary was properly sentenced because he failed to complete the program successfully as was required for him to receive a noncustodial sentence.See People v. Brooks, 728 N.Y.S.2d 195, 2001 WL 522112 (N.Y.App. Div. May 17, 2001) (defendant who left drug treatment program prior to sentencing forfeited right to noncustodial sentence under conditional plea agreement); People v. Williams, 277 A.D.2d 16, 715 N.Y.S.2d 53 (N Y App. Div. 2000) (affirming custodial sentence as per plea agreement that provided noncustodial option of drug treatment where defendant voluntarily left the program before completion); People v. Pike, 276 A.D.2d 649, 649, 714 N.Y.S.2d 720, 721 (N Y App. Div. 2000) (court not bound by leniency provision of plea agreement where defendant "violated a key term of the plea agreement by failing to successfully complete a drug rehabilitation program"); People v. Watson, 272 A.D.2d 270, 270| 71, 708 N.Y.S.2d 392, 393 (N.Y.App.Div. 2000) ("The court properly exercised its discretion in sentencing defendant to the promised term upon her failure to complete her drug treatment program"); People v. Morales, 264 A.D.21d 677, 678, 696 N.Y.S.2d 25, 26 (N.Y.App.Div. 1999) (where "objectively clear" plea agreement provided for 4 1/2 to 9 year term if defendant did not complete drug treatment program, court correctly sentenced defendant to 4 1/2 to 9 year term after defendant was ejected from the program for theft). As set forth above, because the custodial sentence imposed was the exact sentence he was promised if he did not successfully complete the drug treatment program, Cary received no more and no less than the benefit of the bargain he freely entered.
III. A Certificate of Appealability Will Not Issue
As Cary has failed to make a substantial showing of the denial of any constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997). I certify pursuant to the Prisoner Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. § 1915 (a)(3), that any appeal from this opinion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962)
Conclusion
For the aforementioned reasons, the petitions for a writ of habeas corpus in Nos. 00 Civ. 8926 and 01 Civ. 1181 are denied, and no certificate of appealability shall issue.
It is so ordered.