Opinion
99 Civ. 10762 (JSR)(JCF).
November 15, 2000.
REPORT AND RECOMMENDATION
Anthony Pickett brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his conviction in New York State Supreme Court, New York County, following his plea of guilty to a narcotics offense. In his petition, Mr. Pickett argues that: (1) the sentence imposed was illegal; (2) he was not provided with a copy of the presentence report; (3) he received ineffective assistance of counsel; and (4) the trial judge coerced him into accepting the sentence. For the reasons that follow, I recommend that his petition be denied.
Background
On January 27, 1995, the petitioner was arrested by police officers and subsequently indicted on a single count of Criminal Possession of a Controlled Substance in the Third Degree in violation of New York Penal Law § 220.16(1). (Affirmation of Lee Alan Adlerstein dated April 18, 2000 ("Adlerstein Aff."), Exh. F at 1). On September 14, 1995, the petitioner entered a plea of guilty to the charged offense, a class B felony, in exchange for a promised sentence of four and one-half to nine years imprisonment. (Adlerstein Aff., Exh. C at 3). Additionally, Justice Budd G. Goodman, the trial judge, promised Mr. Pickett that if he appeared for his scheduled sentencing, he would be allowed to withdraw his plea and substitute a plea of guilty to Attempted Criminal Possession of a Controlled Substance in the Third Degree, a class C felony, in exchange for a sentence of three to six years imprisonment in full satisfaction of the indictment. (Adlerstein Aff., Exh. C at 4).
The petitioner acknowledged that he understood the rights he was giving up by pleading guilty including, among others, the right to a jury trial. (Adlerstein Aff., Exh. C at 6). He also acknowledged that no promises had been made to him in exchange for his plea other than the arrangement described above, and that his plea was voluntary and made after consultation with his attorney. (Adlerstein Aff., Exh. C at 6-7). Moreover, Mr. Pickett acknowledged that he was a predicate felony offender. (Adlerstein Aff., Exh. C at 7-9). After the allocution, the court accepted his guilty plea.
On January 4, 1996, Mr. Pickett filed a written motion to withdraw his guilty plea to the class B felony. He argued that: (1) he had been denied effective assistance of counsel at the time of his plea; (2) he was innocent of the charges against him; (3) he was not made aware of his potential sentence or the ramifications of his waiver of the right to appeal the court's determination on all pretrial motions; and (4) he had been under extreme emotional distress at the time of his plea. (Adlerstein Aff., Exh. D).
Justice Goodman denied this motion in a written decision dated January 22, 1996. The court determined that the plea had been entered "knowingly and voluntarily" and rejected the petitioner's claims of coercion, ineffective assistance of counsel, and innocence. (Adlerstein Aff., Exh. F at 2). In making this determination, Justice Goodman noted defense counsel's substantial experience, the petitioner's failure to complain earlier despite multiple appearances in court with the same defense counsel, and the petitioner's experience entering pleas in prior criminal matters. (Adlerstein Aff., Exh. F at 3-4).
On February 1, 1996, the petitioner appeared for sentencing but refused to plead to the class C felony. Justice Goodman reiterated his previous promise, but the petitioner's counsel said that Mr. Pickett maintained his innocence and sought to withdraw his guilty plea altogether without pleading to the class C felony. The court explained that it could not sentence Mr. Pickett to the promised term of three to six years unless he pled guilty to the lesser offense. (Adlerstein Aff., Exh. K at 3). Mr. Pickett was offered the opportunity to speak but stated that he had nothing else to say. (Adlerstein Aff., Exh. K at 4). Justice Goodman then imposed the negotiated sentence of four and one-half to nine years imprisonment for the class B felony. (Adelstein Aff., Exh. K at 4).
The petitioner appealed his conviction, asserting:
(1) that the trial court erred in not according him the opportunity to withdraw his guilty plea at the time of his sentencing hearing; (2) that, in the alternative, he should have been provided an evidentiary hearing on his motion to withdraw the guilty plea; and (3) that his sentence should be reduced to three to six years imprisonment.
The Appellate Division, First Department, affirmed Mr. Pickett's conviction and sentence. People v. Pickett, 254 A.D.2d 25, 679 N.Y.S.2d 102 (1st Dep't 998). It held that the denial of the motion to withdraw the plea without a hearing was proper. Since Mr. Pickett was represented by new counsel assigned for the purposes of the motion to withdraw his plea, the court found that he had availed himself of an adequate opportunity to make his assertions through written submissions. In addition, it held that his sentence would not be reduced because it was the minimum required by law. Furthermore, the court held that the sentence was proper in view of the petitioner's insistence upon withdrawing his plea and his refusal to plead to the lesser charge. The petitioner's application for leave to appeal to the New York Court of Appeals was denied on February 26, 1999. (Adlerstein Aff., Exh. J).
Discussion
A. Exhaustion of Remedies
In his petition, Mr. Pickett raises both exhausted and unexhausted claims, thus making his petition a "mixed" one. Specifically, he did not raise in state court the allegations of ineffective assistance of counsel at sentencing or the allegation that he was not provided with the presentence report.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State.
22 U.S.C. § 2254(b)(1). However, the AEDPA permits federal courts to deny a habeas corpus petition where the claims raised are clearly without merit "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." 28 U.S.C. § 2254 (b)(2). This is such a case.
B. Illegal Sentencing
Mr. Pickett implies that his due process rights were violated because he was promised one sentence at the plea hearing and a different one was imposed at the sentencing hearing. (Adlerstein Aff., Exh. A at 5). But Mr. Pickett fails to recognize that the trial court's promise of a reduced sentence was a conditioned upon his pleading to a lesser offense. (Adlerstein Aff., Exh. C at 4).
Justice Goodman specifically told Mr. Pickett that if he returned to court on the date of sentence, he would be allowed to withdraw his plea of guilty to the class B felony and enter a plea of guilty to a class C felony with a sentence of three to six years. (Adlerstein Aff., Exh. C at 4). By refusing to plead to the class C felony, Mr. Pickett forfeited the lesser sentence. Thus, the record does not support the petitioner's contention that the promise of a reduced sentence was unconditional.
C. Voluntariness of the Plea
Mr. Pickett also alleges that the trial judge coerced him into pleading a guilty, thus rendering the plea involuntary. The test for determining the validity of a plea is "whether it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)); see also Parke v. Raley, 506 U.S. 20, 28 (1992) (guilty plea must be both knowing and voluntary).
Neither the petition nor the transcript of the state court proceedings supports the petitioner's claim that his plea was not entered knowingly and voluntarily. He was specifically asked if he had had opportunity to talk to his attorney and if he understood the nature and consequences of the plea, and he answered in the affirmative to both questions. Moreover, Mr. Pickett was asked at the sentencing hearing if he had something else to say, but he declined the opportunity to speak. (Adlerstein Aff., Exh. K at 4). See People v. Hall, 195 A.D.2d 521, 522, 600 N.Y.S.2d 274, 275 (1st Dep't 1993) (defendant's allegation of involuntary plea refuted by failure at plea proceedings to express dissatisfaction after court appraised him of consequences of pleading guilty). In his petition, he offers no new facts that would cast doubt on the voluntariness of his plea.
D. Ineffective Assistance of Counsel
The petitioner next argues that he received ineffective assistance of counsel at various stages in the state proceedings. In order to succeed on this ground:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (Strickland standard applies to assistance of counsel leading to guilty plea). A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Furthermore, when arguing that a plea was involuntary because of ineffective assistance, the petitioner must present "objective evidence" beyond his "self-serving, post-conviction testimony" that demonstrates a "reasonable probability" that he would have acted differently has he received proper representation. United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (citation omitted). Here, Mr. Pickett appears to be complaining both about his counsel at the plea hearing and about the new attorney who represented him at sentencing.
The respondent interpreted the petition as also claiming ineffective assistance of appellate counsel. There is no such claim in the petition. In any event, such a claim would be meritless since the record contains no colorable ground for appeal.
1. Counsel at Plea Hearing
Mr. Pickett's attorney at the plea proceeding had appeared eleven times during the course of the state case. (Adlerstein Aff., Exh. F at 3-4). At none of these appearances did Mr. Pickett complain about his representation. Furthermore, at the allocution Mr. Pickett was specifically asked by Justice Goodman if he had spoken to his attorney and understood the plea agreement, and he answered that he had. (Adlerstein Aff., Exh C at 3, 6-7). Finally, the petitioner makes only a general allegation of ineffective assistance of counsel. He identifies no specific example of purportedly unprofessional advice, and he has thus failed to demonstrate a reasonable probability that he would have acted differently had he received different advice.
2. Counsel at Sentencing
Mr. Pickett's allegations concerning ineffective assistance at sentencing are similarly vague. He has not indicated any instance in which counsel's performance was defective, nor has he identified any different action that he would have taken. Accordingly, the petitioner's claims of inadequate assistance of counsel are without merit.
D. Access to Presentence Report
Finally, Mr. Pickett argues that he was denied due process because the court relied on a report of a presentence investigation without disclosing that report to him or giving him an opportunity to rebut it. In order to make out a due process violation with regard to state sentencing procedures where the sentence is within the statutory limits, a petitioner must show that the state court's sentencing decision was "wholly devoid of discretion or amounted to an arbitrary or capacious abuse of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Campo v. Greiner, No. 97 Civ. 2984, 1998 WL 748318, at *1 (S.D.N.Y. Oct. 20, 1998); see also Jones v. Hollins, 884 F. Supp. 758, 761-62 (W.D.N.Y. 1995), aff'd, 89 F.3d 826 (2d Cir. 1995). Here, Mr. Pickett received the minimum sentence available as a result of a plea agreement. Therefore, any error in failing to provide him with the presentence report caused him no prejudice and does not rise to the level of a constitutional violation.
Conclusion
For the reasons set forth above, I recommend that Mr. Pickett's application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Jed S. Rakoff, Room 1340, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.