Opinion
9:98-CV-0532 (FJS)(GLS)
January 9, 2001
FOR THE PETITIONER: KEITH GRAVES, Petitioner, Pro Se, Syracuse, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, OF COUNSEL: STEVEN H. SCHWARTZ, ESQ., Ass't Attorney General, Office of Attorney General, Albany, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Keith Graves ("petitioner" or "Graves") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the Western District of New York on March 11, 1998. This matter was transferred to this District by order of Chief U.S. District Judge David G. Larimer dated March 25, 1998. Docket No. 2. This court then issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition. Docket No. 4. Respondent filed a response and memorandum of law in support of his request that this court dismiss Graves' petition, Docket Nos. 8 and 9, to which petitioner filed a traverse. Docket No. 10. On May 31, 2000, Graves advised this court that he was released from prison, and provided the Clerk with his new address. Docket No. 12.
II. Discussion
A. Release from Prison
Initially, the court notes that the substantive claim challenging the conviction does not appear to be moot despite petitioner's release. Graves filed the habeas petition while in custody, and the collateral consequences which the court may presume still exist as a result of his conviction, such as the ability to engage in certain businesses, vote in any election held in New York State or serve as a juror, do not render this matter moot. Spencer v. Kemna, 523 U.S. 1, 12 (1998) ("it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. New York, 392 U.S. 40 (1968)); Binder v. Szostak, 1997 WL 176353 (N.D.N.Y. Apr. 11, 1997) (Pooler, D.J.) (citations omitted). Therefore, the court will review the substance of the petition.
B. State-Court Proceedings
On May 6, 1994, an Onondaga County Grand Jury returned an indictment that charged Graves with robbery in the second degree and grand larceny in the fourth degree. See Indictment No. 94-417-1. This indictment accused Graves of forcibly stealing a purse from Carrie Detor ("Detor") on March 11, 1994, and, in the course of committing the crime, causing physical injury to her. Id.
The respondent provided the court with various state court papers in support of his request for dismissal of the petition.
On July 14, 1994, Graves entered a plea of guilty to the first count of the indictment (robbery in the second degree), in full satisfaction of all charges against him arising out of the March 11th incident. Plea Colloquy before the Hon. James W. McCarthy (7/14/94) ("Plea"). As part of his guilty plea, Graves agreed to waive his right to appeal the conviction. Id. at 4, 7. On October 6, 1994, Judge McCarthy sentenced Graves as a predicate felony offender to an indeterminate sentence of six to twelve years imprisonment. Sentencing Tr. (10/6/94) at 12. Notwithstanding his waiver of his right to appeal, Graves appealed his conviction to the Appellate Division, Fourth Department which unanimously affirmed. People v. Graves, 222 A.D.2d 1117 (4th Dep't 1995). The Court of Appeals denied Graves leave to appeal. People v. Graves, 87 N.Y.2d 1020 (1996). Subsequent state-court challenges to the conviction were also denied.
Since Graves failed to appear at the original sentencing on August 30, 1994, Judge McCarthy did not sentence Graves to the three to six year sentence referred to in the plea bargain. Id. at 3, 8, 12.
Graves asserts only one Ground in support of his petition. He claims that the prosecution wrongfully failed to reduce the charge against him from robbery in the second degree to robbery in the third degree, after learning that the victim had not been injured as a result of Graves' conduct during the robbery.
Unlike second degree robbery, robbery in the third degree does not contain, as an element of the crime, injury to the victim. See New York's Criminal Procedure Law ("C.P.L.") § 160.05.
C. Merits of the Petition
In opposing the petition, respondent argues that this court cannot consider the merits of the petition because Graves waived his right to challenge the conviction in his plea agreement.
In his traverse, petitioner argues that the plea agreement was contrary to public policy in that the "indictment [was] based solely on false evidence." Docket No. 10. Petitioner argues that because the indictment was void, he may properly challenge it despite his guilty plea and waiver of his right to appeal. Id. In support of his claim that the only evidence supporting the robbery indictment was false, petitioner refers the court to a copy of the police report taken from the victim at the time of the robbery in which she stated that she was not injured during the course of the robbery. Id. at Ex. A.
"[I]n certain specific circumstances, a defendant's appellate claim could be reviewed despite a bargained-for waiver of the right to appeal." People v. Callahan, 80 N.Y.2d 273, 280 (1992). For example, a party may challenge a conviction based upon a guilty plea to an accusatory instrument which is void because the prosecutor knew that the only evidence to support the charge was false. People v. Pelchat, 62 N.Y.2d 97,107, 108 (1984) (emphasis added) (reversing conviction where "Grand Jury had no evidence before it worthy of belief that defendant had committed a crime"); see e.g., U.S. v. Hogan, 712 F.2d 757, 759 (2nd Cir. 1983) (Due Process considerations prohibit government from obtaining an indictment based on known perjured testimony) (citation omitted).
In this case, petitioner has wholly failed to establish that the only evidence submitted to the Grand Jury established that Detor was not injured. While the police report indicated that she was not injured, it is the proof presented to the Grand Jury that determines the charges in an indictment. Graves never obtained a court order directing that the content of the Grand Jury proceedings be disclosed, and his claim that there was no evidence before the Grand Jury supporting the charge of injury to the victim is necessarily speculative. Courts cannot grant habeas relief based upon unsubstantiated conclusions, opinions or speculation. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts should not grant "habeas relief on the basis of little more than speculation with slight support"); Osinoiki v. Riley, 1990 WL 152540, at *3 (E.D.N.Y. Sept. 28, 1990) (denying petition for writ of habeas corpus requesting bail, where two of petitioner's bases for relief were based on "nothing more than rank speculation"); Jones v. O'Keefe, 2000 WL 1290595, at *5 (S.D.N.Y. Sept. 12, 2000) (same) (citations omitted).
See C.P.L. § 190.25(4)(a) (Grand Jury proceedings are secret and may not be obtained without order of the court).
The court notes that petitioner admitted that he injured the victim's shoulder during the robbery, "causing her substantial pain over . . . [an] extended period of time." Plea at 9.
Since Graves has not established that the only evidence supporting the indictment presented to the Grand Jury was false, this theory does not afford this court a basis for granting the relief petitioner seeks.
"[A] petitioner is barred from collaterally attacking his conviction and sentence after he has made a knowing and voluntary waiver of his right to appeal as a condition of his plea bargain." Pryor v. McCoy, No. 96-CV-1810, 1997 WL 436809, at *1 (N.D.N.Y. July 25, 1997) (Pooler, D.J.) (citing United States v. Coffin, 76 F.3d 494, 496 (2d Cir.), cert. denied, 517 U.S. 1147 (1996)).
In this case, it is clear that petitioner's plea was both knowing and voluntary. During the plea colloquy, Judge McCarthy elicited testimony from Graves that indicated he had had fifteen and one-half years of education, and could read and write English "very well." Plea at 5. The judge informed Graves of all of the rights he was waiving by entering his guilty plea, and specifically advised him that, under the terms of the plea agreement, Graves was waiving his right to appeal the conviction. Id. at 7. Graves testified that, other than the proposed sentence offered under the agreement, no one had made any promises in exchange for his plea, or threatened Graves in any way. Toward the end of the colloquy, Graves admitted all of the elements in the first count in the indictment (including injuring the victim), and noted that he had no doubts relative to his plea. Id. at 9.
In light of the fact that petitioner: (i) has not established that the only evidence presented to the Grand Jury was insufficient to support the charge to which he plead guilty; and, (ii) knowingly and voluntarily waived his right to appeal the conviction as a condition of his plea bargain, the court recommends that his habeas petition be denied and dismissed.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Graves' petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation on the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.