Opinion
01-CV-0200E(B).
June 21, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Petitioner Green, currently incarcerated in a New York State prison and serving an indeterminate term of imprisonment of eight to sixteen years following his guilty plea in New York State Supreme Court, Monroe County, filed a March 22, 2001 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action was subsequently referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1)(B), for an evaluation of the merits and a recommended disposition. Judge Bianchini filed a December 5, 2003 Report and Recommendation ("RR") in which he recommended that the petition be denied in its entirety. Green timely filed his Objection to the RR on December 18, 2003.
Petitioner was charged with ten counts of Robbery in the First Degree; he pleaded guilty to nine of such counts.
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed. In support of his habeas petition, petitioner contends that (1) his constitutional right to effective assistance of counsel had been violated, (2) he received an unfair trial because the trial court judge failed to inform him of an affirmative defense and (3) his sentence was harsh and excessive given the possibility of such an affirmative defense. See Pet. ¶ 12.
A more detailed recitation of the facts and procedural history in this case is set out in Magistrate Judge Bianchini's RR.
Petitioner claims that he received ineffective assistance because his trial counsel had advised him to plead guilty but had failed to inform him of the possibility of an affirmative defense — to wit, that displaying an unloaded gun during the commission of the crimes was an affirmative defense to the robbery charges. Pet. ¶ 12A.
After an extensive examination of the state court record, Judge Bianchini concluded that petitioner's ineffective assistance of counsel claim was without merit because he would not have received a more favorable outcome even with a successfully pleaded affirmative defense. RR, at 6-8. In addition, Judge Bianchini found that the trial court was not required to inform petitioner of a possible affirmative defense. See id. at 9 (reasoning that a defendant needs to be informed only of the elements of the crime and not of possible affirmative defenses). Judge Bianchini determined that petitioner knowingly and voluntarily pled guilty to robbery in the first degree. Id. at 10. Judge Bianchini finally concluded that petitioner's sentence was not harsh and excessive inasmuch as it did not exceed the range allowable under New York law. Id. at 11.
Judge Bianchini explained that in order to establish his affirmative defense, petitioner would likely have had to admit his guilt to all ten counts of the second degree robbery charges, thereby exposing him to a harsher sentence than the one he actually received. See RR at 8 (citing Mitchell v. Scully, 746 F.2d 951, 957 (2d Cir 1984)).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1). It is entirely within the province of this Court to adopt the portions of the RR to which no specific objection is raised. Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). However, the undersigned must make a de novo determination with respect to those portions of the RR to which specific objections have been made. 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673-676 (1980).
The Court now turns to petitioner's specific objections. Petitioner objects to the RR by essentially reiterating his arguments in support of his habeas petition — to wit, that the failure of both his counsel and the trial court to inform him of the relevant affirmative defense to first degree robbery resulted in constitutional violations. See Pet'r's Objs., at 6-9. Petitioner's objections will be overruled.
Petitioner's first contention that the trial court was required to inform him of the possible affirmative defense is squarely and adequately addressed in Judge Bianchini's RR. See RR, at 8-10 (citing cases and discussing the fact that due process did not require that petitioner be advised of every basis that might provide a ground for a lesser punishment and that petitioner's plea was knowing and voluntary). Such objection will be overruled with no further discussion.
Petitioner cites to several cases from the Appellate Division of the New York State Supreme Court in support of his argument. See Pet'r's Objs., at 10-11. However, such cases are not pertinent to the issue of plaintiff's alleged constitutional violations. As Judge Bianchini discussed in his RR, the Due Process Clause was not violated when the state trial court did not inform the defendant of the relevant affirmative defense. See RR at 8-10 (explaining that, for the purpose of a due process analysis, there is a distinction between an element of a crime and an affirmative defense to a crime and that a defendant must only be informed of the critical elements of the crime as opposed to every possible defense).
Petitioner's second objection is that Judge Bianchini erroneously applied the Strickland standard in analyzing his ineffective assistance of counsel claim. Petitioner adds that, if his counsel had informed him of the relevant affirmative defense, he could only have been convicted of Robbery in the Second Degree, thereby possibly reducing his sentence. Pet'r's Objs., at 7. However, petitioner misapprehends the RR. In order to establish his affirmative defense, petitioner most likely would have had to admit to all ten counts of robbery. His sentence resulting from these admissions would be an increase over his present sentence even if he received the minimum sentence for each count. Therefore, it is not reasonably probable that, but for his attorney's ineffectiveness, petitioner would have received a more favorable outcome. Petitioner also contends that Judge Bianchini erred in his discussion of Ames — supra note 8 — inasmuch as his case is factually distinguishable. Id. at 7-8. However, the differences that petitioner cites are not relevant to his ineffective assistance of counsel claim. The Court therefore adopts Judge Biachini's findings and analysis with regard to his discussion of Ames.
See Strickland v. Washington, 466 U.S. 668, 694 (1984) (holding that a defendant claiming ineffective assistance of counsel must show not only a deficient performance by his attorney but also "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").
Judge Bianchini explained that it was unlikely that petitioner would have succeeded in receiving a more favorable outcome because in order for him to successfully prove the affirmative defense he would likely have had to admit that he committed the robberies. See RR at 7-8 (citing Ames v. New York State Div. of Parole, 772 F.2d 13, 16 (2d Cir. 1985)). Petitioner therefore would have been found guilty of ten counts of Robbery in the Second Degree, thereby subjecting him to a sentence greater than his actual sentence.
Under New York law, the allowable sentence for Robbery in the Second Degree is between three and one-half and fifteen years. N.Y. Penal Law § 160.10 (McKinney 1998); N.Y. Penal Law § 70.02(3) (McKinney Supp. 2004). Petitioner has presented no reason to think that he would have received concurrent sentences following his conviction for ten separate robberies. Therefore, assuming that petitioner could have successfully proven his affirmative defenses, he would not likely have received a more favorable sentence than the eight-to-sixteen-year sentence that he received.
In sum, upon de novo review of those portions of the RR to which petitioner has specifically objected, the Court finds that petitioner has shown neither meritorious grounds for habeas relief nor that Judge Bianchini made any erroneous factual analyses or conclusions of law.
Accordingly, it is hereby ORDERED that petitioner's objections are overruled, that Judge Bianchini's December 5, 2003 Report and Recommendation is adopted in its entirety, that petitioner's petition for a writ of habeas corpus is dismissed and that, there being no substantial question presented for appeal, a certificate of appealability will not issue.