Opinion
99 CV 7281 (NG)
July 24, 2002
ORDER
This is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, Roy Hampton, is currently incarcerated at Attica Correctional Facility pursuant to a judgment of conviction rendered January 10, 1995 in New York Supreme Court, Kings County, upon his guilty plea to a charge of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4). Petitioner was sentenced, as a second violent felony offender, to a prison term of six to twelve years (Pesce, J.). The remaining state court proceedings are set forth infra.
Hampton has petitioned this Court on the following grounds: (1) the trial court improperly declined to order, sua sponte, a second psychiatric evaluation after the Mid-Hudson Psychiatric Center ("MHPC") had determined that petitioner was fit to stand trial; (2) petitioner's guilty plea was not knowing, voluntary and intelligent; (2) petitioner's trial counsel was ineffective for failing to file a Clayton motion, People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973), and for coercing petitioner's guilty plea; (3) petitioner's appellate counsel was deficient for failing to raise on direct appeal the claim of ineffective trial counsel; and (4) the trial court erred by refusing to dismiss the indictment in the interest of justice. For the reasons stated below, the petition is denied.
Procedural Background
I. Initial Psychiatric Examination
On October 25, 1993, the New York Supreme Court, Kings County (Feldman, J.) issued an order of examination of petitioner pursuant to N.Y. Criminal Procedure Law ("CPL") § 730.30(1). The examination revealed that petitioner was unfit to proceed. Thereafter, on November 18, 1993, the court issued an order of commitment pursuant to CPL § 730.50(1). On November 26, 1993, MHPC completed a "core evaluation" of Hampton. The report stated that petitioner had "a long history of psychiatric hospitalizations." He had been admitted to the Manhattan Psychiatric Center, the Creedmoor Psychiatric Center, the Pilgrim Psychiatric Center, and the Kings Park Psychiatric Center. The report recommended that petitioner undergo individual and group psychotherapy sessions when ready. The report also stated that petitioner had "a long history of substance abuse." In addition, the evaluation included information of petitioner's "history of suicide attempts," and stated that he suffered from "poor insight and poor self image." Petitioner also tested positive for HIV.
On February 15, 1994, by letter dated February 7, 1994, Doctor Erdogan Tekben, the Executive Director of the MHPC at the time, reported that petitioner was fit to proceed. On February 16, 1994, the court ordered petitioner produced for further proceedings (Feldman, J.). Although other hearings were held between that date and June 20, 1994, the record here does not contain the minutes of those proceedings. On June 20, 1994, a calendar call was held before Justice Garson. On that date, the matter was adjourned until July 18, 1994. The minutes of the proceedings conducted between June 20 and November 22, 1994 are not in the record before this Court.
II. Plea Hearing
On November 22, 1994, petitioner, through counsel, Frederick Pratt, Esq., withdrew his previously entered plea of not guilty and expressed his desire to plead guilty to a charge of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4). The following colloquy ensued:
THE COURT: You Roy Hampton?
MR. HAMPTON: Yes, I am.
THE COURT: Mr. Hampton have you heard what Mr. Pratt said?
MR. HAMPTON: I heard him.
THE COURT: Have you discussed this plea with Mr. Pratt?
MR. HAMPTON: I spoke with him earlier today.
THE COURT: You spoke with him on the prior adjournment, right?
MR. HAMPTON: The prior what?
THE COURT: Last time you were here. Do you remember talking to him last time you were here?
MR. HAMPTON: Yeah.
THE COURT: We talked about it too, right. Okay now Mr. Hampton, are you satisfied with the advice Mr. Pratt has given you.
MR. HAMPTON: Yes. At this particular time, yes I am.
THE COURT: Mr. Hampton, it's alleged that on March third, 1993, at about 10:30 in the morning, at 1654 Bushwick Avenue, while acting in concert with Eddie Walker, and displaying a gun, some money was taken from —
MS. PRAGER: Leslie Bailey.
THE COURT: Leslie Bailey. Do you remember that incident?
MR. HAMPTON: Yes, I do.
THE COURT: Who had the gun, you or Mr. Walker?
MR. HAMPTON: I was in possession of a weapon.
THE COURT: Did you display that weapon to Leslie Bailey?
MR. HAMPTON: Yes, I did.
THE COURT: Who took the money from Leslie Bailey?
MR. HAMPTON: No one took it. Leslie Bailey give the money to us.
THE COURT: After you displayed the gun? He didn't give it voluntarily, did he?
MR. HAMPTON: He did not.
THE COURT: You asked him for it?
MR. HAMPTON: Yes.
THE COURT: You took the money?
MR. HAMPTON: Yes, sir.
THE COURT: Were you going to share those proceeds with Eddie Walker?
MR. HAMPTON: Yes, sir.
THE COURT: Now, Mr. Hampton, do you understand, when you plead guilty you waive your right to a trial?
MR. HAMPTON: I understand that.
THE COURT: And you waive the right to testify or not to testify, to bring in witnesses or any defense you may have in your own behalf, to cross-examine the witnesses the People bring to trial. You also waive the right to have the People prove the case beyond a reasonable doubt, and for the people to obtain a unanimous verdict from a jury before you can be convicted. Do you understand you waive all those rights?
MR. HAMPTON: Yes.
THE COURT: Do you also understand, Mr. Hampton, that in consideration of the fact that you're going to receive a minimum sentence of this case, you're waiving your right to appeal all of the proceedings of this case. Do you understand that?
MR. HAMPTON: Yes.
THE COURT: Are you pleading guilty voluntarily?
MR. HAMPTON: Yes, I am.
THE COURT: Are you pleading guilty because you are guilty?
MR. HAMPTON: Yes, I am.
THE COURT: Have you understood all my questions?
MR. HAMPTON: Practically.
THE COURT: Have you told the truth?
MR. HAMPTON: Yes, I have.
THE COURT: Do you have any questions?
MR. HAMPTON: No, I don't.
After further inquiry into the petitioner's prior criminal record, the judge stated that on December 1, 1994, petitioner would be sentenced to an agreed upon sentence of between six and twelve years in jail.
III. Sentencing Hearing
After a previous adjournment of the sentence, on January 10, 1995, Mr. Pratt requested another adjournment so that Mr. Hampton could meet with his family to sign legal documents unrelated to his indictment. The following dialogue occurred:
THE COURT: Well, I am not going to grant the adjournment. I granted the adjournment for that purpose once before. This —
MR. HAMPTON: Your Honor.
THE COURT: Let me finish. This defendant pled guilty on November 22, 1994. The matter was adjourned to December 1. The defendant was not produced on December 1. It was adjourned to December 15. On December 15 defendant again was not produced and he claimed a medical refusal. It was adjourned to 12/20. On 12/20 defendant again refused to come to court. It was adjourned to January 5. On January 5 he advised this court that he needed an adjournment so that he could sign some legal documents for his family. That was supposed to have arrived last week or during this past weekend. I, therefore, adjourned the case to January 6. January 6 defendant was not produced. I adjourned it to January 9, and I was advised by Corrections that defendant refused to appear in court. I issued a force order yesterday and defendant is produced today, and now he is asking me for another adjournment for these legal documents. Mr. Hampton, my feeling is —
MR. HAMPTON: Your, Honor, that is why I asked for the adjournment. I made it perfectly clear to my attorney that I feel I am — I want to go to trial with my case. I want to withdraw my plea. I made that perfectly clear.
THE COURT: Mr. Hampton, you admitted your guilt before me on December 1.
MR. HAMPTON: Your Honor —
THE COURT: I am sorry. On November 22 of 1994 when you pled guilty, you admitted guilt to me.
MR. HAMPTON: Your Honor, my state of mind has been up and down since I have been in IC. I suffer from mental problems as well as suffering from physical viruses of AIDS, you know so my mental capacity is very shaky at this point. And I made it perfectly clear I even — the last time when I had got an adjournment, I made it perfectly clear then that I was considering going to trial with my case because of my ill health, and I also felt that the possibility of my living six years is null and void at this point, and I felt my best chance was to give myself a chance to go to trial to prove my innocence.
THE COURT: Okay. You also, as I said, you admitted guilt to Probation and you also told Probation that you were not sure about keeping the plea.
MR. HAMPTON: Yes.
THE COURT: That, Mr. Hampton, has nothing to do with whether or not you were guilty in this matter. You admitted guilt to me. You admitted guilt on probation. Now you decide, rather than spend six years upstate, you would rather go to trial.
MR. HAMPTON: No. I made it clear to the probation department, your Honor — the Probation Department asked me about that — I made it perfectly clear tot he Probation Department that my mind, I am on shaky ground right now and I could not formulate what I really wanted to do because of my state of mind and my health. And now that my health is starting to deteriorate, it is getting worse, I felt the need to try to do my best for myself.
THE COURT: Okay, Mr. Hampton. My own opinion is that you have been manipulative with this Court in setting up your own schedule for, first, sentencing and now that I have denied your application for further adjournment, to sign these legal documents that are arriving.
MR. HAMPTON: I didn't ask my attorney to do that, your Honor. That is not what I asked of my attorney, to even speak on that. I did not ask that.
THE COURT: That is what I have, Mr. Hampton. I have that —
MR. HAMPTON: I am making it plain right in front of you, your Honor. That is not what I asked my attorney to do.
Petitioner then asked to withdraw his guilty plea pursuant to CPL § 220.60(3). Justice Pesce denied the motion, and sentenced petitioner to six to twelve years in jail.
N.Y. Criminal Procedure Law § 220.60(3) provides that "[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment . . . to withdraw such a plea, and in such an event the indictment, as it existed at the time of such plea, is restored."
On November 4, 1997, petitioner, assisted by new counsel, appealed from his judgment of conviction to the Appellate Division, Second Department. Petitioner raised the following claims on appeal: (1) the trial court erred in failing to order, sua sponte, a psychological examination; and (2) the trial court abused its discretion by denying his motion to withdraw his guilty plea without a proper inquiry. On August 19, 1998, Hampton filed a pro se supplemental brief with the Appellate Division, claiming ineffective trial and appellate counsel.
By memorandum decision and order dated June 7, 1999, the Appellate Division unanimously affirmed petitioner's conviction. People v. Hampton, 262 A.D.2d 422 (2d Dept.), lv. denied, 93 N.Y.2d 1019 (1999). The Appellate Division held: (1) the trial court "did not err in failing to sua sponte order another competency hearing prior to accepting the defendant's plea of guilty"; and (2) the trial court "did not improvidently exercise its discretion in denying the defendant's subsequent motion to withdraw his plea." Id. Moreover, the Appellate Division held that the claims Hampton raised in his pro se supplemental brief alleging denial of effective assistance of counsel were based on facts dehors the record and consequently were not properly before the Appellate Division. Id.
In December, 1998, while his direct appeal was pending, petitioner moved pro se to vacate the judgment of conviction and set aside the sentence pursuant to CPL § § 440.10 and 440.20. Petitioner alleged, first, that he suffered from diminished mental capacity when he pleaded guilty, second, that his trial counsel was ineffective, and third, that the sentence imposed by the trial court was harsh and excessive given his medical condition.
On July 30, 1999, Justice Pesce issued a written decision denying petitioner's motion to set aside the sentence pursuant to CPL § 440.20. First, the court held that the plea minutes revealed that petitioner's plea was knowing and voluntary. The court also noted that petitioner's criminal record, dating back to 1966, was an indication that petitioner was familiar with the consequences of a plea. Next, the court determined that the petitioner "failed to demonstrate that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. Thus, the court concluded, petitioner's ineffective trial counsel claim was without merit. Finally, the court held CPL § 440.20 inapplicable, as petitioner failed to state a valid ground on which relief could be granted. According to the court, "[s]ince the sentence imposed upon the defendant was valid as a matter of law . . . [h]e seeks, in essence, a modification of his sentence, which is beyond the scope . . ." of § 440.20. Id.
On November 8, 1999, petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254.
Discussion
I. Exhaustion
A state prisoner seeking federal habeas corpus review of his state court conviction must first exhaust his available state court remedies. See 28 U.S.C. § 2254 (b)(1) and (c). This requirement is rooted in notions of comity. See Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982). The exhaustion requirement is satisfied only after the federal claim has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971); Bossett v. Walker 41 F.3d 825, 828 (2d Cir. 1994). For a claim to be "fairly presented," the claim before the federal habeas court must be the "substantial equivalent" of the claim presented to the state courts. Picard, 404 U.S. at 275.
Respondent argues in his memorandum in opposition to Hampton's petition that the ineffective assistance of appellate counsel claim is unexhausted because he did not appeal his Section 440 motion. However, petitioner presented his ineffective appellate counsel claim on direct appeal. See Supplemental Brief for Appellant at 5. Thus, his ineffective appellate counsel claim was "fairly presented" to the state courts and is properly before this court.
II. Standard of Habeas Corpus Review
The federal habeas corpus statute limits federal habeas corpus remedies for a person in state custody to situations in which the state court adjudication of the claim
(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). Clearly established law is that "dictated by precedent existing at the time the defendant's conviction became final." Williams v. Taylor, 529 U.S. 362, 381 (2000) (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). A decision is "contrary to" clearly established law if it represents a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides the case differently from how the Supreme Court has on a materially indistinguishable set of facts. Williams, 529 U.S. at 405. A decision results in an "unreasonable application" of clearly established federal law if it identifies the correct principle of law but misapplies it to the facts. Id. at 426-27. In addition, the state court's factual findings are entitled to deference, and the petitioner bears the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
III. Validity of Petitioner's Plea
Petitioner claims that the trial court erred by not ordering, sua sponte, a second psychiatric evaluation pursuant to CPL § 730.30(1). The standard of competency for pleading guilty is the same as the competency standard for standing trial. Godinez v. Moran, 509 U.S. 389 (1993). And, "[i]n addition to determining that a defendant who seeks to plead guilty . . . is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary." Id. at 400.
Where a bona fide doubt is raised as to a defendant's competency, the trial judge must make an appropriate inquiry. Pate v. Robinson, 383 U.S. 375, 387 (1966); see Silverstein v. Henderson, 706 F.2d 361, 369 (2d Cir. 1983), cert. denied, 464 U.S. 864 (1983) (holding that a hearing is required only if there is "reasonable ground" for believing that the defendant may be incompetent to stand trial).
In Drope v. Missouri, 420 U.S. 162, 180 (1975), the Court held that "[t]he import of our decision in Pate v. Robinson is that evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient." Here, there is no dispute as to the accuracy of the medical findings that the petitioner was competent as of the time of those findings in February 1994. After the determination that petitioner was fit to proceed, the only indication to the contrary was an objection by Mr. Pratt, petitioner's counsel, at the June 20, 1994 hearing before Justice Garson. With nothing more, this objection was not sufficient to raise a bona fide doubt regarding petitioner's competency at the time of his plea. The Court in Drope held that, "[a]lthough we do not, of course, suggest that courts must accept without question a lawyer's representations concerning the competence of his client, an expressed doubt in that regard by one with the closest contact with the defendant, is unquestionably a factor which should be considered." Id. at 178, n. 13 (internal citations and quotations omitted). Here, however, Mr. Pratt never renewed the objection, but in fact presented the petitioner to the court for the taking of a guilty plea.
THE COURT: But are you ready for your hearings, right?
MR. PRATT: The only reservation I could say about being ready for hearings is that I am not sure that Mr. Hampton is fit.
THE COURT: That's what this is all about. We know that.
MR. PRATT: What hearing are you talking about, pretrial hearings? We are not ready either for the pretrial hearings or for the hearing to controvert. We are not ready for the hearing to controvert because we don't have anything we need for the psychiatrist, and we are not ready for the pretrial hearing yet because we don't know whether Mr. Hampton is fit or not.
In sum, petitioner underwent a court-ordered psychiatric evaluation and in February 1994 was deemed competent to stand trial. Despite the comment by Mr. Pratt five months earlier, nothing at the November 1994 plea proceeding suggested petitioner was incompetent. Hampton appeared lucid and articulate. In addition, petitioner's statements at the sentencing hearing on January 10, 1995 support a finding of competence. There, petitioner indicated that he was having nothing more than second thoughts about having pleaded guilty. That petitioner vacillated about his prior decision does not indicate that he was incompetent at the time of the plea. At most, it suggests that his mental and physical condition at the time of the plea made his decision more difficult. In no way, though, does it amount to proof that he pleaded guilty while incompetent. In light of the absence of evidence in the record to the contrary, the trial court did not err in failing to order, sua sponte, another psychiatric examination. The Appellate Division upheld that decision, and this court, affording the state court the deference required by 28 U.S.C. § 2254 (d)(1), finds no reason to upset its determination.
Petitioner's plea was also knowing, voluntary and intelligent. "The focus of a competency inquiry is the defendant's mental capacity[,]" and thus "the question is whether he has the ability to understand the proceedings. The purpose of the `knowing and voluntary' inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced." Godinez v. Moran, 509 U.S. 389, 401, n. 12 (1993) (emphasis in original) (internal citations omitted). As the foregoing discussion articulates, petitioner was competent and thus was able to understand the plea hearing. Moreover, as the following discussion illustrates, the record supports the finding that petitioner actually did understand the proceedings.
A guilty plea is valid only upon an affirmative showing that such plea represents a voluntary and intelligent choice among the alternative choices available to a defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969). In order for a defendant's plea to be voluntary, it cannot be the product of "[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant theats. . . ." Boykin v. Alabama, 395 U.S. 238, 243 (1969). In determining whether a plea is knowing and intelligent, a trial judge should consider whether defendant "was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties. . . ." Brady v. United States, 397 U.S. 742, 756 (1970). At a plea hearing, statements made by a defendant and his lawyer, as well as determinations made by the trial judge, constitute a "formidable barrier" which cannot easily be attacked in subsequent collateral hearings. Blackledge v. Allison, 431 U.S. 63, 74 (1977). "Solemn declarations in open court carry a strong presumption of verity." Id. That petitioner stated his guilty plea was made knowingly and voluntarily cannot now be overcome by mere suggestions, with nothing more, to the contrary. Id.
To ascertain whether a guilty plea is voluntary and intelligent, the trial court is required to conduct a "searching inquiry." See Diaz v. Mantello, 115 F. Supp.2d 411, 418 (S.D.N.Y. 2000). Although the state court inquiry need not be of the type required by Rule 11 of the Federal Rules of Criminal Procedure, see Fed.R.Crim.P. 11; Panuccio v. Kelly, 927 F.2d 106, 110 (2d Cir. 1991), the trial judge is required to examine the circumstances surrounding the plea. See Parke v. Raley, 506 U.S. 20, 28 (1992). Here, the inquiry, set forth above, supports the trial judge's acceptance of the plea as voluntary and knowing.
The record does not indicate that any further inquiries than those made by Justice Pesce would have revealed that the plea was not knowing and voluntary. On the contrary, all the evidence, including petitioner's statements as to why he wanted to withdraw the plea, support both his competency and the knowing and voluntary nature of his plea. He simply had changed his mind.
IV. Ineffective Assistance of Trial Counsel
Petitioner also claims ineffective trial counsel. In Strickland v. Washington, 466 U.S. 668, 686 (1984), the Court held that "the benchmark for judging any claim of ineffectiveness [of trial counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The two-part standard set forth in Strickland for evaluating effectiveness of trial counsel requires that "[f]irst, the defendant must show that counsel's performance was deficient[,] [and] [s]econd, the defendant must show that the deficient performance prejudiced the defense." Id. at 687.
Petitioner asserts his trial counsel, Mr. Pratt, was ineffective for failing to make a Clayton motion to dismiss pursuant to CPL § 210.40(1) and People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973). Under Clayton, upon a request to dismiss an indictment in the furtherance of justice, the court must examine the following: the seriousness of the offense; the extent of harm caused by the offense; evidence of guilt; the defendant's prior record; the purpose of further punishment; and the resulting effect on the public interest. New York courts have granted such motions only sparingly. For example, courts have dismissed charges in the interest of justice where a defendant's "extreme frailty and apparently bleak prognosis" combined with other factors to warrant the dismissal. People v. Lawson, 198 A.D.2d 71, 72 (1st Dept. 1993), aff'd sub nom. People v. Herman L., 83 N.Y.2d 958 (1994). However, a "defendant's affliction with the HIV virus, a precursor of the acquired immune deficiency syndrome, does not by itself warrant the reduction of an otherwise appropriate sentence," People v. Chrzanowski, 147 A.D.2d 652, 653 (2d Dept. 1989), much less the dismissal of all charges.
N.Y. Criminal Procedure Law § 210.40(1) states that: "An indictment or any count thereof may be dismissed in furtherance of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is requires as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such an indictment or count would constitute or result in injustice."
Despite petitioner's suggestion that he had no more than six years to live, the record does not provide evidence that Hampton appeared before the trial court as "an obviously sick man in precipitous and, to all appearances, terminal decline." People v. Lawson, 198 A.D.2d at 73. Thus, by failing to make a Clayton motion, counsel's performance did not fall below the objective standards of reasonableness dictated by prevailing professional norms. In addition, such a motion would most likely have been denied. Thus, petitioner was not prejudiced by Mr. Pratt's failure to make the motion. Other than the medical record indicating that petitioner was HIV positive, there is no basis whatever for his claim that a Clayton motion should have been made and would have been granted.
Next, petitioner asserts that Mr. Pratt provided ineffective assistance by coercing his guilty plea. As the Court explained in McMann v. Richardson, 397 U.S. 759, 771 (1970), the voluntariness of a defendant's plea "depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." The record does not support a finding that Mr. Pratt's advice, which led to a plea to the minimum sentence, was incompetent.
Petitioner now asserts that he pleaded guilty because Mr. Pratt informed him that, as the result of his physical condition, petitioner would be committed to a hospital facility rather than serve jail time. However, petitioner offers no proof that Mr. Pratt told him of that arrangement. To the contrary, at the plea hearing on November 22, 1994, the court informed Hampton that he would serve six to twelve years in jail. The court asked Hampton if he understood the sentence and he answered affirmatively. Thus, it is not the case that, but for petitioner's misunderstanding as to the sentencing agreement, petitioner would have pleaded not guilty. Accordingly, assuming Mr. Pratt did misinform petitioner, petitioner was not prejudiced. See Hill v. Lockhart, 474 U.S. 52, 60 (1985); Hanna v. United States, No. 97-CV-970, 2001 U.S. Dist. LEXIS 22284, at *9-14 (E.D.N.Y. Dec. 27, 2001). Relying on these factors, Justice Pesce denied petitioner's ineffective counsel claim contained in his Section 440 motion. In light of the deferential standard afforded a state court's decision under 28 U.S.C. § 2254 (d)(1), this court finds no reason to overturn the state court's decision.
The following colloquy took place at the November 22, 1994 plea hearing:
THE COURT: You will be sentenced also on December first, to a term of six to twelve years in jail as a second felony offender; second violent felony offender, and that sentence will be imposed on 12/1, with the consent of the people.
MS. PRAGER: Yes.
THE COURT: Did you understand that, Mr. Hampton?
MR. HAMPTON: Yes.
V. Ineffective Assistance of Appellate Counsel
Petitioner claims that his appellate counsel was deficient for not raising on direct appeal the ineffective trial counsel claim. The two-part Strickland test applies to this claim. Evitts v. Lucey, 469 U.S. 387, 396 (1985). As the foregoing discussion illustrates, trial counsel's assistance was not constitutionally inadequate nor was petitioner prejudiced by it. Because the ineffective trial counsel claim lacks merit, petitioner's claim that appellate counsel was deficient for failing to raise it is without merit.
VI. Trial Court's Failure to Dismiss the Indictment in the Interest of Justice
Petitioner concedes that his trial counsel never made a Clayton motion to dismiss the indictment in the interest of justice. Consequently, petitioner's claim that the trial judge erred by failing to dismiss the indictment in the interest of justice is without merit.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is denied.
SO ORDERED