Opinion
98-CV-7837 (JBW), 00-MISC-0066 (JBW)
June 13, 2003
JUDGMENT ORDER
Petitioner was granted a hearing in this court. He was present by telephone.
The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. This memorandum briefly addresses petitioner's claims.
Petitioner pled guilty to a number of charges stemming from a series of robberies, some of which involved the brandishing of a knife or boxcutter. His convictions are for first and third degree robbery, fourth degree grand larceny, and fourth and fifth degree criminal possession of a weapon. At sentencing, petitioner made a pro se motion to dismiss the indictment on the grounds that he had not been informed by his attorney of his right to testify before the grand jury. He also sought to withdraw his guilty plea. The sentencing court denied the motions and denied petitioner's request for a change of counsel. Petitioner was sentenced to ten years in prison.
Petitioner filed a pro se motion before the sentencing court to vacate his judgment of conviction, arguing inter alia that he was denied effective assistance of counsel on several grounds.
Petitioner's pro se claims in his petition for a writ of habeas corpus are difficult to decipher. Construed most favorably in his support, he seems to claim (1) that his counsel was ineffective for failing to inform him of his right to testify before the grand jury; (2) that his due process rights were abridged by the sentencing court's refusal to provide him with new counsel; and (3) that his sentence should be reduced. Each of these claims is exhausted.
I. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002).
II. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness 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." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 2003).
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
III. Claims
To the extent petitioner claims that his counsel was ineffective for failing to inform him of his right to testify before the grand jury, his claim is meritless. Based upon counsel's representations at sentencing, the trial court found as a matter of fact that counsel did inform petitioner of his right to testify before the grand jury. That factual finding is not unreasonable. Even if counsel failed to inform petitioner of his right to testify before the grand jury, petitioner cannot show that he was prejudiced. At his plea he allocuted to the crimes. Unless he intended to perjure himself before the grand jury, there is no reasonable possibility that an indictment would fail to have been issued. Granting of the writ is not warranted on this ground.
Petitioner also seems to have asked this court to find that his sentence was excessive. The assertion that a sentencing judge abused his or her discretion in sentencing is not a cognizable federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)). A challenge to the term of a sentence will not support a petition if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Petitioner does not assert that his to year sentence falls outside of the statutory range — which appears to have been as much as 82 years. See Sentencing Tr. at 11. There are no grounds for granting the writ on this claim.
Petitioner last claims that his due process rights were abridged by the sentencing court's refusal to provide him at sentencing with new counsel — which he presumably sought in order to be afforded representation on his claim that he should be allowed to withdraw his guilty plea. The sentencing court's decision not to provide petitioner with new counsel for an evidentiary hearing was not an error of a constitutional magnitude. A "defendant is not entitled as a matter of right to an evidentiary hearing on a motion to withdraw a guilty plea." Hines v. Miller, 318 F.3d 157, 162 (2d Cir. 2003). The court did not abuse its discretion in concluding that petitioner's guilty plea was voluntarily made, that no hearing was necessary, that his then counsel was appropriate and that accordingly new counsel was not necessary. Granting of the writ is not warranted on this ground.
IV. Conclusion
The petition for a writ of habeas corpus is denied. A certificate of appealability is not granted since there is no substantial issue for appeal. A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right.
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.