Opinion
00 CIV. 6691 (DLC)
November 19, 2001
John R. Lewis, Sleepy Hollow, NY, Attorney for the Petitioner.
Ellen Sue Handman, Assistant District Attorney, New York County, New York, NY, Attorney for the Respondents.
OPINION AND ORDER
On July 22, 1997, petitioner Davis pleaded guilty to two counts of murder in the first degree and one count of attempted murder in the second degree. The New York Supreme Court's Appellate Division denied Davis's challenge to his plea and on September 6, 2000, Davis filed a petition for a writ of habeas corpus with the Southern District of New York. On September 14, 2000, Davis's petition was referred to Magistrate Judge Douglas F. Eaton. Judge Eaton submitted a Report and Recommendation ("Report") on September 4, 2001, recommending that Davis's petition be stayed and his claim of ineffective assistance of counsel dismissed. For the reasons that follow, petitioner's and respondents' objections are denied and the Report is adopted.
BACKGROUND
On May 22, 1996, Davis fatally shot Frederick Broughton and Edward Wyss and wounded Kimberly Tucker. Davis was indicted on two counts of first and second degree murder and one count each of attempted first degree murder, attempted second degree murder, first degree assault, and second and third degree criminal possession of a weapon. On October 18, 1996, the prosecution announced that it would not seek the death penalty but would seek life imprisonment without parole.
In preparing his defense, Davis's counsel arranged for his examination by a forensic psychologist, Dr. Sanford L. Drob. Dr. Drob diagnosed Davis with "serious depressive, paranoid and schizotypal illness," and concluded that "a number of factors indicate that at the time of the homicide, Mr. Davis acted under the influence of an extreme emotional disturbance" ("EED").
Davis pleaded guilty on July 22, 1997, to two counts of murder in the first degree and one count of attempted murder in the second degree. In exchange for his plea, Davis was to receive consecutive sentences of twenty years for each murder count and a concurrent ten to twenty year term for the attempted murder count.
At sentencing on August 8, 1997, Davis asserted that he had felt "pressured" into taking the guilty plea and asked Justice Jeffrey Atlas if he could withdraw his plea. Justice Atlas explained that while Davis was free to move for withdrawal of the plea, he would have to show "some special reason" if withdrawal were to be granted. Justice Atlas then ordered a short recess so Davis could consult with his attorney. After the recess, Davis requested new counsel. Justice Atlas found no basis to assign new counsel and explained that because of the seriousness of the case, he would not accept a pro se motion to withdraw the plea. Justice Atlas adjourned the proceedings to allow Davis to confer with his counsel.
Davis returned for sentencing on September 8, 1997. At that time, Davis indicated that he was ready to be sentenced. When Justice Atlas asked whether he wished to say anything before his sentence was imposed, Davis answered in the negative. Justice Atlas noted that he was satisfied that Davis had had time to think and to consult with his counsel and sentenced Davis to two consecutive twenty years and one concurrent ten to twenty year term of imprisonment.
Represented by new counsel, Davis appealed from his judgment of conviction to the Appellate Division. He presented two claims to the Appellate Division. First, Davis argued that the trial court had erred in refusing to accept his request to withdraw his guilty plea. Second, Davis alleged that he had received ineffective assistance of trial counsel because competent counsel would not have advised him to abandon a viable EED defense in exchange for a guilty plea that provided him with no discernible strategic benefit.
Davis argues that he received no benefit in exchange for his plea. Davis is currently eligible for parole at age seventy-two. Had his EED defense been unsuccessful at trial, he would have received a sentence of life imprisonment without parole. Had he successfully asserted an EED defense, however, he might have received a substantially shorter sentence.
The Appellate Division affirmed his conviction on October 28, 1999, explaining that Davis's ineffective assistance claim "would require a CPL 440.10 motion in order to amplify the record as to the nature of the advice rendered to defendant and as to counsel's strategic analysis of the case underlying such advice." People v. Davis, 697 N.Y.S.2d 596, 597 (N.Y.App.Div. 1999). According to the court, "[o]n the existing record, we conclude that the defendant has not established `the absence of strategic or other legitimate explanations' for counsel's conduct, and find that defendant received meaningful representation." Id. (quoting People v. Rivera, 530 N.Y.S.2d 52, 54 (N.Y. 1988)). The court concluded that the "defense psychologist's report, when viewed against the factual background, does not establish a viable defense of extreme emotional disturbance." Id. The Appellate Division also held that "[t]he record, read as a whole, establishes that defendant abandoned his application to withdraw his guilty plea" and that "[i]n any event, defendant had offered only conclusory assertions of having been `pressured' into entering the plea, and these assertions were belied by the transcript of the plea allocution, which clearly establishes that his decision was knowing and voluntary." Id. On January 20, 2000, the Appellate Division denied Davis's request for certification to the Court of Appeals. Davis did not file a writ of certiorari to the United States Supreme Court.
Davis filed the instant habeas petition on September 6, 2000, claiming that his trial counsel was ineffective and that Justice Atlas erred in not granting his request to withdraw his plea. Judge Eaton found that Davis's claim of ineffective assistance had not been exhausted because Davis had not presented this claim to the trial court in a Section 440.10 motion. He rejected both parties' arguments that recourse to a Section 440.10 motion would be futile, reasoning that the decision of the Appellate Division on direct appeal of Davis's case would not bind a lower court hearing a Section 440.10 motion. Judge Eaton recommended that Davis's petition be stayed pending resolution of his Section 440.10 motion.
DISCUSSION
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). The Court reviews de novo those portions of the Report to which an objection has been made. Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Both the petitioner and the respondents have objected to the Report. Accordingly, the Court will review de novo those portions of the report to which an objection has been raised.
A. Exhaustion of Ineffective Assistance Claim
Petitioner and respondents challenge Judge Eaton's determination that Davis's ineffective assistance claim must be presented in a Section 440.10 motion before it can be considered in a federal habeas petition. Section 2254(b) of Title 28 of the United States Code requires exhaustion of all state remedies by habeas petitioners.
State remedies are deemed exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim.
Ramirez v. Attorney General, No. 99-2047, 2001 WL 1028326, ___ F.3d ___, at *5 (2d Cir. Sept. 7, 2001).
As the Appellate Division ruled, because the evidentiary record supporting Davis's claim of ineffective assistance lacks necessary information about the adequacy of assistance he received, the proper procedural vehicle for his claim is a Section 440.10 motion. Davis, 697 N.Y.S.2d at 597. The only evidence in the record relevant to Davis's claim is a report by one forensic psychologist and Davis's unsupported assertions that he felt "pressured" into taking the plea. Without the benefit of an expanded record, a reviewing court can only speculate about defense counsel's evaluation of Davis's EED defense or advice to Davis regarding the potential risks and advantages of trial. Section 440.10 proceedings are particularly necessary here because Davis claims that his trial counsel, in a conversation with his appellate attorney, displayed a misunderstanding about the consequences of an EED defense.
Unlike the attorney in Boria v. Keane, 99 F.3d 492, 498 (2d Cir. 1996), who failed to advise his client at all, defense counsel in this case had to decide how best to advise her client.
B. The Appellate Division's Decision
In his challenge to his conviction before the Appellate Division, Davis argued that competent counsel would not have advised him to abandon a viable EED defense in exchange for a guilty plea that provided no strategic advantage. Petitioner and respondents maintain that a Section 440.10 motion would be futile because the Appellate Division determined that Davis did not have a viable EED defense and that he received a benefit in exchange for his plea. If the court hearing his Section 440.10 motion is bound by the finding that Davis did not have a viable EED defense, Davis's claim of ineffective assistance must fail. The parties object to Judge Eaton's characterization of the Appellate Division's decision as non-binding.
Even were a lower court bound by the finding that Davis received a benefit in exchange for his plea, this finding is only one part of Davis's claim. A finding that Davis's EED defense was not viable, on the other hand, would dictate a particular outcome and thus would render a Section 440.10 futile.
Under New York law, a determination becomes the "law of the case" only for those subsequent decisions that are based on the same set of facts. People v. Cabreja, 663 N.Y.S.2d 203, 204 (N.Y.App.Div. 1997); see also Smith v. Metro. Transp. Auth., 641 N.Y.S.2d 8 (N.Y.App.Div. 1996). Here, the Appellate Division explicitly acknowledged this limitation by emphasizing that its analysis of Dr. Drob's report was based on the record presented to it on direct appeal. It concluded that
[o]n the existing record, . . . the defendant has not established `the absence of strategic or other legitimate explanations' for counsel's conduct, and . . . that defendant received meaningful representation. The defense psychologist's report, when viewed against the factual background, does not establish a viable defense of extreme emotional disturbance.
Davis, 697 N.Y.S.2d at 597 (quoting Rivera, 530 N.Y.S.2d at 54) (citations omitted). Davis would be allowed, on a Section 440.10 motion, to present additional information regarding the viability of his EED defense. The court hearing the Section 440.10 motion on an expanded evidentiary record would not be bound by the Appellate Division's decision.
Other courts interpreting similar language in Appellate Division decisions have concluded that the petitioner was not barred from reasserting his ineffective assistance claim in a Section 440.10 motion. In Washington v. Greiger, for example, Judge Sweet heard a habeas petition from state court conviction affirmed by the Appellate Division. The Appellate Division had held that "[o]n the existing record," the petitioner had "received effective assistance of counsel." Washington v. Greiger, No. 00 Civ. 2383 (RWS), 2001 WL 214236, at *3 (S.D.N Y Mar. 1, 2000) (quoting People v. Washington, 672 N.Y.S.2d 700, 700 (N.Y.App. Div. 1998)). Judge Sweet found that a Section 440.10 motion was still available to the petitioner because "under New York law, a defendant may move at any time to vacate his conviction on grounds of a federal constitutional violation where the factual basis of the claim does not appear from the record." Id.; see also Hanson v. Albaugh, No. 99 Civ. 9733 (JGK), 2000 WL 426420, at * 2 (S.D.N.Y. Apr. 20, 2000).
The attempts by both petitioner and respondents to distinguish Washington and Hanson are not persuasive. Whether the Appellate Division's holding is binding on a court addressing a Section 440.10 motion will depend on whether it is presented with the same set of facts before the Appellate Division.
C. Stay of the Proceedings
Respondent has objected to Judge Eaton's recommendation that Davis's petition be stayed pending exhaustion of his ineffective assistance claim in a Section 440.10 motion. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a defendant convicted in state court has one year after the state court proceedings become final in which to challenge his conviction in a federal habeas petition. Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001). District courts are required to stay a petition pending exhaustion of unexhausted claims when dismissal of the entire petition could cause a petitioner's claims to become time barred. Id. at 380.
The statute of limitations on Davis's claims expired just over seven months after he filed the instant petition. AEDPA's one-year statute of limitations is not tolled during the pendency of federal habeas proceedings. Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001). Davis's state proceedings became final on April 20, 2000, and his habeas claims were time barred as of April 20, 2001. Because dismissal of Davis's petition in this case would "`jeopardize the timeliness of [his] collateral attack,'" the Court is required to stay his petition pending exhaustion of his ineffective assistance claim. Zarvela, 254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)). The stay is conditioned, however, on Davis's prompt filing of an action in state court to exhaust his claim of ineffective assistance and a prompt motion to reopen the exhausted claim if the state court proceedings do not resolve the matter. Id. at 381. In each case, the petitioner should act within thirty days. Id.
The Appellate Division denied Davis's request for certification to the Court of Appeals on January 20, 2000. Davis's petition became final three months later, when the time period within which he could file a writ of certiorari with the Supreme Court expired.
Respondents cite Thomas v. Morgenthau, No. 01 Civ. 1365 (NRB), 2001 WL 845445 (S.D.N.Y. July 25, 2001), for the proposition that district courts are not required to stay mixed petitions pending exhaustion of state remedies. Thomas did not apply the Supreme Court's decision in Duncan, 121 S.Ct. at 2129, which clarified that the one-year limitations period is not tolled by the filling of a federal petition. See Zarvela, 254 F.3d at 379.
CONCLUSION
For the foregoing reasons, the September 4, 2001 Report of Judge Eaton is adopted. Davis's claim of ineffective assistance of counsel is dismissed and the balance of his petition is stayed. The stay is conditioned on Davis initiating a Section 440.10 motion to exhaust his ineffective assistance claim within thirty days of this Opinion, and moving to reopen this claim before Judge Eaton within thirty days of exhausting his state court remedies.
SO ORDERED: