Opinion
05 Civ. 1998 (SAS).
January 30, 2008
Petitioner (Pro Se):, Daniel Lugo Eastern Correctional Facility Napanoch, NY.
For Respondent: Michelle Maerov Assistant Attorney General New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Daniel Lugo ("petitioner"), proceeding pro se, brought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("section 2254") challenging his state court convictions for Possession of a Controlled Substance in the Third Degree and Conspiracy in the Second Degree resulting from his guilty plea before a state-court judge. One of the grounds for habeas relief asserted by petitioner was that he was denied the right to counsel when the police spoke to him in the absence of counsel, after the right to counsel had attached, and used statements obtained in that conversation to obtain a search warrant for his apartment from which drugs and a gun were recovered.
See id. § 105.15.
On August 23, 2006, this Court denied Lugo's petition in its entirety. In so doing, this Court found that any alleged, pre-plea constitutional violations were waived when Lugo pled guilty before a state-court judge.
See Lugo v. Artuz, No. 05 Civ. 1998, 2006 WL 2463547, at *7 (S.D.N.Y. Aug. 23, 2006). Familiarity with this Opinion and Order is assumed.
[P]etitioner claims that the police violated his right to counsel when they questioned him alone, after he demanded counsel, and thereafter conducted an unlawful search of his apartment. Lugo argues that because his right to counsel was violated, the search and seizure was illegal and any evidence seized should have been suppressed.
But Lugo has effectively waived these claims by pleading guilty. "A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea. `He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.'"
Id. at *5 (quoting United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973) (alteration in original)).
Relying primarily on Lefkowitz v. Newsome, Lugo now argues that this Court was mistaken in holding that "`[p]etitioner's plea therefore precludes any constitutional claims resulting from conduct occurring before his guilty plea.'" According to Lugo, this Court was mistaken in its analysis of what the United States Supreme Court held with regard to a New York defendant who pleads guilty after alleging constitutional violations.
The Supreme Court held [that] although a New York defendant may plea[d] guilty, he does not forfeit his right to an appeal and to have adequate review of the issues he raise[s] thereon. By the Supreme Court recognizing that New York State affords defendants who plea[d] guilty the right to an appeal, that Court has clearly established that New York defendants are entitled to habeas review of constitutional issues that are reviewable on state appeal.
420 U.S. 283 (1975).
Memorandum of Law in Support of a Motion Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("Pet. Mem.") at 2 (quoting Lugo, 2006 WL 2463547, at *5).
See id.
Id.
In sum, Lugo claims that this Court overlooked the fact that New York law provides a defendant who pleads guilty "with the right to appeal the violation of fundamental constitutional rights." Accordingly, Lugo maintains that because he "did not waive his right to appeal when pleading guilty, he still had the right to appeal and seek redress for the violation of his fundamental constitutional right to counsel." Lugo, however, misinterprets the statutory exception discussed in Lefkowitz, a misunderstanding which proves fatal to the instant motion.
Id. at 4.
Id. at 5.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) ("Rule 60(b)") governs the procedure for obtaining relief from final judgments and is available to habeas petitioners seeking to re-open previously dismissed petitions brought pursuant to 28 U.S.C. § 2254. Rule 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. . . ." The Second Circuit has held that "[m]otions under rule 60(b) are addressed to the sound discretion of the district court and are generally granted only upon a showing of exceptional circumstances." A motion made pursuant to Rule 60(b)(1) must be made "not more than one year after the judgment, order or proceeding was entered or taken." This time limit is jurisdictional and district courts do not have the discretion to extend the period of limitation.
See Gonzalez v. Crosby, 545 U.S. 524, 538 (2005) ("We hold that a Rule 60(b)(6) motion in a § 2254 case is not to be treated as a successive petition if it does not assert, or reassert, claims of error in the movant's state conviction."); Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001) ("[A] motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should therefore be treated as any other motion under Rule 60(b).").
Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff'd, 501 U.S. 115 (1991). Accord Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); Petersen v. Valenzano, 803 F. Supp. 875, 877 (S.D.N.Y. 1992).
See Arrieta v. Battaglia, 461 F.3d 861, 864 (7th Cir. 2006).
See Smith v. Secretary of Health Human Servs., 776 F.2d 1330, 1332-33 (6th Cir. 1985).
"Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments and the incessant command of the court's conscience that justice be done in light of all the facts." Accordingly, Rule 60(b)(1) motions premised upon "mistake" are intended to provide relief to a party when "the judge has made a substantive mistake of law or fact in the final judgment or order." Thus, Rule 60(b)(1) motions can be used by a trial court to correct judicial errors. Ordinarily, a movant alleging a "mistake" under Rule 60(b)(1) "must show that the district court committed a specific error." Moreover, "the district court is not required to grant relief unless the legal error is obvious." However, Rule 60(b)(1) does not provide parties with the opportunity to rehash arguments in an attempt to win a point already "`carefully analyzed and justifiably disposed.'"
Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (quotation marks, ellipses, and citation omitted).
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996).
See International Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977) (stating that district court's mistake of "substantive legal nature" may be corrected under Rule 60(b)(1)); Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 515 n. 1 (6th Cir. 2001) (stating that a Rule 60(b)(1) mistake includes a district court's mistake of law in the order or judgment from which relief is sought); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999) ("[T]he words `mistake' and `inadvertence' . . . may include mistake and inadvertence by the judge."); Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (a "mistake" may occur if the district court made a substantive mistake of law in its order). Relief under Rule 60(b)(1) is also appropriate where a court may have overlooked certain parties' arguments or evidence in the record. See, e.g., Rumsey v. New York State Dep `t of Corr. Servs., 580 F. Supp. 1052, 1055-56 (N.D.N.Y. 1984) (granting Rule 60(b)(1) motion where court may have overlooked triable issues of fact).
Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989).
Chambers v. Florida Parole Comm `n, No. 07-10998, 2007 WL 4275509, at *1 (11th Cir. Dec. 7, 2007).
Bulk Oil (USA) Inc. v. United States, No. 93 Civ. 4492, 2007 WL 1121739, at *10 (S.D.N.Y. Apr. 10, 2007) (quoting Matura v. United States, 189 F.R.D. 86, 90 (S.D.N.Y. 1999)) ("A Court should not `reconsider issues already examined simply because Petitioner is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources.'").
III. DISCUSSION
A. The Tollett Rule in General
Relying on the Brady trilogy of cases, the Supreme Court has held that where a state criminal defendant pleads guilty on advice of counsel, he cannot subsequently raise claims in a federal habeas petition relating to the deprivation of constitutional rights that antedated the plea. In so holding, the Supreme Court reaffirmed the following principle first recognized in the Brady trilogy:
The Brady trilogy consists of Brady v. United States, 397 U.S. 742 (1970), McMann v. Richardson, 397 U.S. 759 (1970), and Parker v. North Carolina, 397 U.S. 790 (1970).
See Tollett, 411 U.S. at 266 ("We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence of an antecedent constitutional infirmity.").
a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759 (1970)].
Id. at 267.
"Therefore, at least on collateral attack of a judgment of conviction, under Tollett a petitioner may not assert pre-plea constitutional violations bearing on the valid establishment of his factual guilt."
United States v. Gregg, 463 F.3d 160, 164 (2d Cir. 2006).
The ruling in Tollett does not rely on a presumption of waiver but rests instead on notions of relevance. According to the Supreme Court, none of the cases in the Brady trilogy
See id. ("[A] guilty plea does not `waive' constitutional challenges so much as it conclusively resolves the question of factual guilt supporting the conviction, thereby rendering any antecedent constitutional violation bearing on factual guilt a non-issue[.]").
stand for the proposition that counseled guilty pleas inevitably "waive" all antecedent constitutional violations. . . . [I]n Tollett we emphasized that waiver was not the basic ingredient of this line of cases. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.
Menna v. New York, 423 U.S. 61, 62 n. 2 (1975).
The Supreme Court further explained that:
[the] decisions in Tollett and the cases that followed simply recognized that when a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. State law treats a guilty plea as "a break in the chain of events [that] preceded it in the criminal process[.]" Therefore, the conclusion that a Fourth Amendment claim ordinarily may not be raised in a habeas proceeding following a plea of guilty does not rest on any notion of waiver, but rests on the simple fact that the claim is irrelevant to the constitutional validity of the conviction.
Haring v. Prosise, 462 U.S. 306, 321 (1983) (quoting Tollett, 411 U.S. at 267).
Thus, to the extent that this Court's earlier decision frames Lugo's pre-plea claims in terms of waiver, this is error. This error is harmless, however, given that Lugo's alleged antecedent constitutional violations are not cognizable on habeas review.
B. The Lefkowitz Exception
In Lefkowitz v. Newsome, the Supreme Court addressed "the question of a defendant's right to file a federal habeas corpus petition challenging the lawfulness of a search or the voluntariness of a confession or presenting other constitutional claims when a State provides for appellate review of those issues after a guilty plea." Newsome, the defendant in Lefkowitz, brought a motion to suppress the evidence seized at the time of his arrest. The state trial court denied the motion, after which time the defendant pled guilty. After sentencing, the defendant appealed the denial of his suppression motion, which was affirmed on appeal.
Lefkowitz, 420 U.S. at 287.
See id. at 284.
See id.
See id. at 285 (appeal of the adverse decision on defendant's motion to suppress was authorized by N.Y. Code Crim. Proc. § 813-c, now re-codified as N.Y. Crim. Proc. Law §§ 710.20(1), 710.70(2)). Section 710.70 states that: "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty." N.Y. Crim. Proc. Law § 710.70(2).
Against this background, the Supreme Court carved out an exception to the general rule announced in the Brady trilogy, and reaffirmed in Tollett, "that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings." The Court noted the "special nature" of Newsome's guilty plea given the statutory scheme whereby a defendant who pleads guilty is given the opportunity to challenge, on appeal, the denial of a motion to suppress. The Court described the interplay of guilty pleas and New York's statutory scheme as follows:
Lefkowitz, 420 U.S. at 288.
See id. at 288-89 n. 5.
New York, however, has chosen not to treat a guilty plea as such a `break in the chain of event' with regard to certain types of constitutional claims raised in pretrial proceedings. For a New York defendant whose basic defense consists of one of those constitutional claims and who has already lost a pretrial motion to suppress based on that claim, there is no practical difference in terms of appellate review between going to trial and pleading guilty. In neither event does the State assert any claim of finality because of the judgment of conviction. In either event under New York procedure the defendant has available the full range of state appellate review of his constitutional claims. As to those claims, therefore, there is no `break' at all in the usual state procedure for adjudicating constitutional issues. The guilty plea operates simply as a procedure by which the constitutional issues can be litigated without the necessity of going through the time and effort of conducting a trial, the result of which is foreordained if the constitutional claim is invalid. The plea is entered with the clear understanding and expectation by the State, the defendant, and the courts that it will not foreclose judicial review of the merits of the alleged constitutional violations.
Id. at 289-90.
In light of New York's statutory scheme, the Court found "no meaningful difference between Newsome's conviction and a New York conviction entered after trial." Accordingly, the Court held "that when state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding."
Id. at 290.
Id. at 293.
Here, Lugo cannot avail himself of the Lefkowitz exception for one simple reason: he failed to file a suppression motion. The relief provided in section 710.70(2) was therefore unavailable to Lugo during his state court proceedings. By pleading guilty without first filing a motion to suppress, Lugo removed the right to counsel and illegal search issues from his case. Ironically, by pleading guilty, Lugo also removed the ineffective assistance of counsel claim based on his attorney's failure to file a suppression motion. This Court previously determined that Lugo was not deprived of the effective assistance of counsel. Because Lugo's plea was knowing and voluntary, all of his alleged pre-plea constitutional violations were, in effect, extinguished. Lugo's motion under Rule 60(b) is therefore without merit and must be dismissed.
Lugo acknowledges that his "counsel did not move to suppress a statement items seized from Petitioner's apartment in violation of his right to counsel. . . ." Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, Ground One, page 6.
See N.Y. Crim. Proc. Law § 710.70(3) ("A motion to suppress evidence made pursuant to this article is the exclusive method of challenging the admissibility of evidence upon the grounds specified in section 710.20, and a defendant who does not make such a motion before or in the course of a criminal action waives his right to judicial determination of any such contention.").
See Lugo, 2006 WL 2463547, at *6 ("Lugo cannot overcome the strong presumption that his counsel's conduct was reasonable under Strickland.").
C. Supreme Court Cases Cited by Lugo Are Distinguishable
Lugo cites a number of Supreme Court cases in support of his contention that his alleged constitutional violations survive his guilty plea. All of these cases are either distinguishable or inapplicable and, thus, to no avail. For example, the issue in Haring v. Prosise was whether an action brought by a plaintiff under 42 U.S.C. § 1983, to redress an alleged Fourth Amendment violation resulting from an allegedly unlawful search of his apartment, was barred by the state-court judgment of conviction entered after plaintiff pled guilty to one count of manufacturing a controlled substance. The Court answered that question in the negative, holding that the plaintiff "did not waive his Fourth Amendment claims by pleading guilty in state court." The Court offered the following explanation:
See Pet. Mem. at 5 ("There are instances when the United States Supreme Court held that a constitutional claim survives a guilty plea. Menna v. New York, 423 U.S. 61 (1975), Blackledge v. Perry, supra, Haynes v. United States, 390 U.S. 85 (1968) and Lefkowitz v. Newsome, supra, are cases which involved constitutional claims that survived an unconditional guilty plea."). Lugo also quotes Haring for the proposition "`that Tollett does not apply to preclude litigation of a Fourth Amendment claim subsequent to a guilty plea when the State itself permits the claim to be raised on appeal.'" Id. (quoting Haring, 462 U.S. at 320). Apparently, Lugo understands "that once New York State allows a defendant to raise an issue on appeal, he is permitted to further litigate in a district court any properly exhausted claims of a constitutional magnitude." See id. Lugo fails, however, to cite any statutory authority permitting him to litigate his alleged constitutional violations after his guilty plea. Because the Lefkowitz exception does not apply, Lugo is relegated to the general rule in Tollett.
See Haring, 462 U.S. at 312.
Id. at 321.
[T]he justifications for denying habeas review of Fourth Amendment claims following a guilty plea are inapplicable to an action under § 1983. While [plaintiff's] Fourth Amendment claim is irrelevant to the constitutionality of his criminal conviction, and for that reason may not be the basis for a writ of habeas corpus, that claim is the crux of his § 1983 action which directly challenges the legality of police conduct.
Id. at 321-22.
Because Haring addresses the collateral estoppel effect of a state-court criminal conviction on subsequent civil litigation, it is not relevant to the instant action and in no way supports Lugo's position.
The remaining Supreme Court cases cited by Lugo are distinguishable because they involve constitutional claims which challenge the underlying jurisdiction of the state court to hale the defendant into court in the first place. For example, in Blackledge v. Perry, the Court held that defendant's guilty plea to a subsequent felony charge, based on the same conduct supporting the original misdemeanor charge, did not bar him from raising his double jeopardy and due process claims in a federal habeas proceeding. The Court distinguished the case before it from Tollett as follows:
Blackledge, 417 U.S. at 31.
While petitioners' reliance upon the Tollett opinion is understandable, there is a fundamental distinction between this case and that one. Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimension, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. The defendants in McMann v. Richardson, for example, could surely have been brought to trial without the use of the allegedly coerced confessions, and even a tainted indictment of the sort alleged in Tollett could have been `cured' through a new indictment by a properly selected grand jury. In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of `antecedent constitutional violations' or of a `deprivation of constitutional rights that occurred prior to the entry of the guilty plea.' Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.
Id. at 30-31.
Thus, where the alleged constitutional violation challenges the court's power to hale a defendant into court in the first place, a guilty plea will not bar subsequent habeas review.
This principle was similarly applied in Menna v. New York, where the Court held that a double jeopardy claim could be raised in federal habeas proceedings following a state-court conviction based on a guilty plea. See Menna, 423 U.S. at 62 ("Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.").
The claims raised by Lugo — denial of the right to counsel and an unlawful search of his apartment — do not challenge the state court's power to bring criminal charges in the first instance. Thus, Lugo's case does not fall within the Blackledge/Menna line of cases. Rather, the claims in issue fit more comfortably with the types of claims raised in the Brady trilogy and Tollett. Accordingly, because Lugo did not file a motion to suppress in state court, his guilty plea foreclosed federal habeas review of all claims involving antecedent constitutional violations.
IV. CONCLUSION
For the reasons stated above, Lugo's motion under Rule 60(b)(1) of the Federal Rules of Civil Procedure is without merit and must be denied. The Clerk of the Court is directed to close this motion [Document # 15].
SO ORDERED: