Summary
applying Hodge factors to habeas petitioner's request for counsel
Summary of this case from United States v. MercedesOpinion
00 Civ. 8926 (RWS)
March 28, 2001
Calvin Cary, Pro Se, No. 98A0268, Southport Correctional Facility, Pine City, New York.
Robert T. Johnson, Esq., District Attorney, Bronx, New York, Nancy D. Killian, Esq., John M. Moreira, Esq., Attorneys for the Respondent.
OPINION
Petitioner Calvin Cary ("Cary") has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. In addition, he has filed a motion which, construed liberally due to his pro se status, Roldan v. Racette, 984 F.2d 85, 87 (2d Cir. 1993), seeks to have the Court release him on bail or modify the conditions of his confinement pending a decision on the merits of his habeas corpus petition. Cary has also moved to have counsel assigned to represent him in this matter. The government opposed the bail motion in its answer to the habeas petition, filed on Monday, March 19, 2001.
For the reasons set forth below, the motion for bail will be denied, but counsel shall be assigned to represent him and file a reply brief on his behalf.
Facts
On January 10, 1997, Cary pled guilty to third degree criminal sale of crack cocaine, a Class B felony, in the Bronx County Supreme Court. The judge advised Cary that, as per his plea agreement, if he "entered and successfully complete[d]" an 18-24 month in-house drug treatment program provided by the Treatment Alternatives to Street Crime ("TASC", his plea would be withdrawn and reduced to the Class C felony of attempted sale of crack cocaine, and sentenced to time served. "Otherwise," the judge warned him, "you may be sentenced to a minimum term of four and a half years, maximum term of nine years."
The habeas petition alleges, and the allocution minutes confirm, that Cary pled guilty on the specific understanding that he could enroll in the TASC drug treatment program and receive time served if and when he successfully completed it. Before accepting the guilty plea, the judge notified Cary that he would not be able to withdraw his plea for any reason after it was entered.
Intake forms filed with the habeas petition reflect that Cary enrolled in TASC on March 18 or 19, 1997. However, Cary had to leave the program in order to serve a six-month sentence imposed on a prior misdemeanor conviction on May 15, 1997. He was readmitted to TASC's Daytop facility at Meadow Run on October 6, 1997 after completing that sentence, but was discharged on November 18, 1997. His discharge form reflects that he presented "a threat to the environment after a number of incidents," and that he had voluntarily chosen to leave the program.
This conviction, for which Cary was later sentenced to a six-month term of incarceration in 1997, is the subject of another Cary's second habeas petition. See Cary v. Ricks, No. 01 Civ. 1181 (RWS). The petition also alleges that "[m]inor verbal disputes led to a discharge from Day Top Village on April 4th 1997." (Pet. At 6 ¶ D.)
At the sentencing hearing on December 22, 1997, the prosecutor advised the sentencing judge that TASC would not accept Cary back into the program for a third time. The judge noted that he confirmed with the TASC supervisor that Cary would not be readmitted to the program. The prosecution recommended a straight 4 1/2 to 9 year term of incarceration. Defense counsel acknowledged that Cary "did leave the program" after being readmitted following his misdemeanor sentence, but appealed to family considerations in an apparent plea for leniency. Cary also addressed the court, stating that "I just want to try to get less time because I tried to go back and TASC won't let me back." Without any further colloquy, the judge sentenced Cary as a predicate felon to a 4 1/2 to 9 year term.
The Appellate Division affirmed Cary's conviction on May 18, 1999 on the grounds that he had Procedurally defaulted the claim for failure to raise it at sentencing, and that, in any case, the sentence had been properly imposed due to Cary's failure to complete the TASC program.People v. Cary, 261 A.D.2d 242 (N.Y.App.Div. 1999). The court noted that "[d]efendant's assertion that he was prepared to participate in the program but was refused acceptance is contradicted by the record." Id. The Court of Appeals denied leave to appeal on November 2, 1999. People v. Cary, 94 N.Y.2d 820, 724 N.E.2d 382, 702 N.Y.S.2d 590 (1999).
Cary filed a pro se motion collaterally challenging the conviction pursuant to New York Criminal Procedure Law § 440.10, on the grounds of ineffective assistance of counsel, breach of the plea agreement, and newly discovered evidence. The Bronx Supreme Court denied this motion on May 17, 2000. The Appellate Division denied leave to appeal on August 24, 2000. Cary filed the instant habeas petition in this Court on November 22, 2000.
The habeas petition claims (1) ineffective assistance of trial counsel for advising Cary to accept the prosecutor's plea offer and not to testify before the grand jury; (2) prosecutorial and judicial misconduct for breaching the plea agreement; and (3) "misrepresentation by the TASC organization."
Discussion
I. Bail
Although federal courts have the "inherent power" to release habeas petitioners on bail while considering the merits of their claims, Mapp v. Reno, No. 99-2735, ___ F.3d ___, 2001 WL 179811, *1, *4 (2d Cir. Feb. 23, 2001), bail should be granted "only in unusual cases . . . or when extraordinary or exceptional circumstances exist." Ostrer v. U.S., 584 F.2d 594, 596 n. 1 (2d Cir. 1978) (internal quotation marks and citations omitted). "The standard for bail pending habeas litigation is a difficult one to meet: The petitioner must demonstrate that the habeas petition raise(s) substantial claims and that extraordinary circumstances exist(] that make the grant of bail necessary to make the habeas remedy effective." Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990) (alterations in original) (internal quotation marks and citation omitted).
Without deciding the merits of the petition, the most promising claim the petition raises is ineffective assistance of counsel for failure to move to withdraw the plea when it became clear that the original condition of the agreement — drug treatment and the possibility of a reduced sentence — was not available.
New York courts allow the defendant to withdraw his guilty plea in two relevant circumstances. Where the conditions of a plea agreement change between the allocution and sentencing, courts may either impose the original sentence or allow the defendant to withdraw the plea, depending on the defendant's level of fault in causing the changed circumstances. See Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L. Ed.2d 427 (1971); 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"). For example, in Pepole v. Jackson, 272 A.D.2d 342, 708 N.Y.S.2d 416 (N.Y.App.Div. 2000), the Appellate Division held that the defendant should have been allowed to withdraw his guilty plea after TASC terminated him from drug treatment before completion because he required Prozac for a preexisting psychiatric condition.
Second, a plea may be withdrawn or a sentence reduced where the court did not sufficiently advise the defendant of the sentencing consequences for his failure to comport with the terms of the plea agreement. See Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir. 1988) (granting habeas to New York petitioner who breached conditions of agreement because sentencing judge failed to specify that plea could not be withdrawn in event defendant violated plea conditions); People v. Torres, 45 N.Y.2d 751, 380 N.E.2d 313, 408 N.Y.S.2d 487 (N.Y. 1978) (remanding for resentencing of defendant not allowed to withdraw plea when he was found not to be a youthful offender, despite the fact that this was an essential inducement to the plea); People v. Rosenberg, 148 A.D.2d 346, 347, 538 N.Y.S.2d 558, 559 (N.Y.App.Div. 198 9) (remanding for resentencing where defendant had failed to appear at sentencing and court had imposed eight-month sentence rather than probation and drug treatment, as per the plea agreement)
However, the facts Cary has presents in the petition and supporting documents suggest that neither of these scenarios is present here: Cary's failure to complete the TASC program was due to his own choice to be discharged after being cited for inappropriate behavior, rather than TASC's unwillingness to admit him. The state courts' factual finding to this effect is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254 (d)(2), (e)(1). Moreover, the judge who presided over the guilty plea clearly advised him that he would receive a 4 1/2 to 9 year sentence if he failed to enter and complete the drug treatment program. As Cary was given exactly the sentence he was advised he would receive if he did not successfully complete the TASC program, a claim that his plea was entered involuntarily or unknowingly is unlikely to succeed. See People v. Morales, 264 A.D.2d 677, 696 N.Y.S.2d 25 (N.Y.App.Div. 1999); cf. Innis, 864 F.2d at 978.
The government argues that these claims are also procedurally barred because, as the state appellate courts found, the claims were not properly raised below. However, this issue is addressed here in the merits in the event that the petitioner, if assisted by counsel, were to raise a claim that his trial counsel's ineffectiveness constituted cause for the procedural default, and that actual prejudice exists to excuse it. Seee.g., Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)) (identifying ineffectiveness of counsel as cause for procedural default).
In addition to the substantive claims asserted in the habeas petition, Cary notes that he has served "four years and 18 days" in prison as of February 23, 2001. If the claims he raised were more substantial, the fact that Cary has now completed over four years of his 4 1/2 to 9 year sentence could well constitute an extraordinary circumstance warranting his release on bail in order to effectuate the habeas corpus remedy. Levy v. Parker, 396 U.S. 1204, 90 S.Ct. 1 (1969) (Douglas, J.) (granting bail to habeas petitioner whose three-year sentence was due to be completed twelve days later); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (considering that federal habeas court may appropriately grant bail where petitioner has served most of his sentence); Boyer v. City of Orlando, 402 F.2d 966 (5th Cir. 1968). However, the mere fact that Cary has almost completed his sentence is not sufficient foundation for granting bail absent a substantial habeas claim. If it were, every prisoner nearing the end of a term could bring a successful bail motion in connection with a habeas petition. As set forth above, in the context of a habeas corpus petition, bail is an extraordinary remedy intended to be ordered only in order to make the habeas corpus remedy effective, not to give prisoners a second chance at parole.
Cary advances the following additional grounds for granting bail: he has been drug-free since his incarceration, has "never received an outstanding bench warrant for a felony case," and has "no violence on [his] record or rapsheet." Although these remaining considerations will be relevant to a parole application, they do not rise to the level of "extraordinary circumstances" that would justify release on bail pending the resolution of this action on the merits. See, e.g., Ketchum v. Ward, 391 F. Supp. 332 (W.D.N.Y. 1975).
II. Assignment of Counsel
Whether to appoint of counsel to assist a § 2254 habeas petitioner is within the Court's discretion. Miranda v. United States, 455 F.2d 402, 404-05 (per curiam), supplemented, 458 F.2d 1179 (2d Cir.) (per curiam),cert. denied, 409 U.S. 874, 935. Ct. 207, 34 L.Ed.2d 126 (1972). Any person, according to 18 U.S.C. § 3006A(g), "seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18 may be furnished representation . . . whenever . . . the interests of justice so require and such person is financially unable to obtain representation." The Second Circuit has articulated the following factors for determining whether to appoint counsel to an indigent civil litigant pursuant to 28 U.S.C. § 1915 (e), which have also been found useful in the habeas context: the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1985) (discussing factors for 28 U.S.C. § 1915 (e) analysis); Jackson v. Moscicki, No. 99 Civ. 2427, 99 Civ. 9746, 2000 WL 511642, at *4 (S.D.N.Y. April 27, 2000) (applying factors to habeas petitioner's request for counsel).
There is a possibility that an appropriate investigation would uncover facts regarding TASC's decision not to readmit Cary to the program that could bear on the merits of his claim. Cary is unable to pursue such an investigation effectively without the assistance of counsel. In the interests of justice, it is hereby ordered that counsel from the Criminal Justice Act panel be assigned and file a reply brief on his behalf.
Conclusion
For the foregoing reasons, the motion for bail is denied, but counsel shall be assigned as per the order that accompanies this opinion.
It is so ordered.