Opinion
No. 01 Civ. 3993 (AKH)
July 9, 2002
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Miguel Rodriguez petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a guilty plea, judgment was entered against petitioner on December 5, 1997 by the New York Supreme Court, Bronx County, convicting petitioner of Murder in the Second Degree, N.Y. Penal Law § 125.25[1]. Petitioner was sentenced to an indeterminate term of fifteen years to life.
Petitioner raises one ground of alleged constitutional error, contending the trial court erred by summarily denying petitioner's motion to withdraw his guilty plea without reassignment of counsel. After considering this contention on the merits, I conclude that it does not warrant the requested relief and dismiss the petition.
I. Background
By Bronx County Indictment No. 4236/95, filed on June 23, 1995, petitioner was charged with Murder in the Second Degree, N.Y. Penal Law § 125.25, Manslaughter in the First Degree, N.Y. Penal Law § 125.20, Criminal Use of a Firearm in the First Degree, N.Y. Penal Law § 265.09, Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, and Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02.
On November 26, 1997, petitioner agreed to withdraw his previous plea of not guilty and to plead guilty to second-degree murder, in exchange for a sentence of fifteen years to life in prison. (Resp't Br. at 3, quoting Plea Tr. at 2). Petitioner affirmed that his attorney's statement was correct and that he discussed his plea with him at length. (Resp't Br. at 3, quoting Plea Tr. at 3). He said that he was pleading guilty freely, voluntarily, and of his own free will and that no one had threatened him or in anyway induced him to plead guilty. (Def.-Appellant Br. at 3, quoting Plea Tr. at 4). Petitioner then admitted that on or about June 10, 1995, at about 9:30 in the morning, on the corner of East 179th and Washington Avenue, Bronx, New York, he shot Garrett McMahan several times with the intent to kill him, and that Mr. McMahan subsequently died of his injuries. (Def.-Appellant Br. at 3, quoting Plea Tr. at 4-5). Petitioner further stated that he understood that his guilty plea eliminated his right to a jury trial, his right to "see" the witnesses against him, his right to have his attorney cross-examine those witnesses, his right to remain silent, his right to have his attorney prepare and present a defense in his behalf and his right to appeal. (Def.-Appellant Br. at 3, quoting Plea Tr. at 6-7). Petitioner said that he knew what was going on and that he would not come back at sentencing and attempt to withdraw his plea. (Def.-Appellant Br. at 3, quoting Plea Tr. at 8).
Because the records of petitioner's plea allocution and sentencing from the New York County Supreme Court are unavailable, my discussion of petitioner's arguments is based upon the submissions by the petitioner and the Government both in this Court and on direct appeal to the Appellate Division. I find that the current record suffices to allow me to resolve petitioner's claims, particularly since the facts are not in dispute. See Rules Governing Section 2254 Cases in the U.S. District Courts, Rule 5 ("If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted.").
On December 5, 1997, petitioner was arraigned for sentencing. After the prosecutor completed his pre-sentence statement, petitioner, through counsel, moved to withdraw his plea at sentencing:
DEFENSE COUNSEL: Your Honor, I visited my client upstairs and apparently he's dissatisfied with the services of counsel. At this time, he wishes to withdraw his plea and have new counsel.
COURT: On what ground?
DEFENSE COUNSEL: He feels he was coerced by his attorney and by the Judge. I informed him that he swore on the record that he understood all of his rights and he understood what he was pleading to. However, he says upon further thought he hasn't spoken with his attorney enough and he hasn't been given fair and adequate representation.
COURT: This case is reaching its third anniversary. He's telling me he hasn't had enough time? Anything else?
DEFENSE COUNSEL: Rely on the promise of fifteen to life.
COURT: You have a right to address the Court. Do you want to say anything to me?
PETITIONER: People v. Rodriguez is ready to go to trial as of today.
COURT: I don't know what case you're talking about, but it's not this one. You plead guilty on November 26, and I questioned you very carefully about what you did, and if you were pleading guilty because that's what you wanted to do. I asked you specifically if anyone forced you to plead guilty. You said no. You admitted your guilt, so your application to withdraw you plea and to go to trial is denied.
(Def.-Appellant Br., quoting Sentencing Tr. at 3-5).
The trial court then sentenced petitioner to a term of fifteen years to life.
Petitioner filed a Notice of Appeal to the New York State Supreme Court, Appellate Division, First Department. Petitioner's brief to the Appellate Division, filed on December 3, 1999, argued for reversal of petitioner's conviction on the ground that was later asserted in the instant petition: because the trial court did not assign new counsel it could not conduct an adequate inquiry into petitioner's motion to withdraw his guilty plea and therefore erred in denying petitioner's motion.
In an opinion dated March 16, 2000, the Appellate Division unanimously affirmed petitioner's conviction. People v. Rodriguez, 270 A.D.2d 110 (1st Dep't 2000). The Appellate Division held that the trial court properly exercised its discretion in reviewing petitioner's application to withdraw his guilty plea. Id. at 111. The Appellate Division noted that "[t]he court's familiarity with the proceedings, including the thorough plea allocution, permitted it to make an informed determination that defendant's claims of coercion and ineffective assistance were unfounded, and nothing in counsel's brief statement concerning defendant's application necessitated assignment of new counsel." Id.
Petitioner then sought leave to appeal to the New York Court of Appeals. The Court of Appeals denied petitioner's application on May 16, 2000. People v. Rodriguez, 95 N.Y.2d 803 (2000) (table).
Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the United States District Court for the Southern District of New York on April 17, 2000.
II. Discussion
Petitioner argues that the trial court did not allow him an opportunity to advance his claims that his guilty plea had been coerced. While "the reasonable opportunity" requirement is normally met by providing the defendant a chance to speak for himself and having his counsel address the court on his behalf, petitioner argues that counsel could not effectively represent him because the motion called counsel's effectiveness into question.
A. Exhaustion
The federal habeas corpus statute requires that a state prisoner seeking federal habeas review of his conviction exhaust state remedies, 28 U.S.C. § 2254(b) (c), which requires that a petitioner must first give the state courts an opportunity to adjudicate his federal claim. Picard v. Connor, 404 U.S. 270, 275 (1971). To preserve federal grounds for appeal, "the nature or presentation of the claim [in state court] must have been likely to alert the court to the claim's federal nature." Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1986) (en banc).
Respondent claims that petitioner has not exhausted his claim because petitioner's brief to the Appellate Division was insufficient to put the state court on notice that petitioner was asserting a federal constitutional claim. (Resp't Mem. at 5). However, petitioner need not cite "book and verse on the federal constitution" for a state court to be alerted to the federal constitutional nature of his claim. Picard, 404 U.S. at 278 (quoting Daugharty v. Gladden, 257 F.2d 750, 759 (9th Cir. 1958)). A petitioner may also alert a state court of the constitutional nature of his claim by "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis, (c) assertion of a claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Daye 696 F.2d at 194.
Petitioner's brief to the Appellate Division raised an issue of ineffective assistance of counsel, a right clearly guaranteed by the Sixth Amendment, and even contained a citation to the Fourteenth Amendment of the Constitution. This provided sufficient notice to the state court of the federal nature of that claim because it referred to both (1) a specific constitutional right, cited to the Constitution, and (2) a fact pattern within the mainstream of constitutional litigation. See id. at 193. Accordingly, I hold that petitioner has sufficiently exhausted his claim of ineffectiveness of counsel in the state courts to allow me to review his claim on the merits.
B. Actual conflict of interest between petitioner and his attorney did not adversely affect attorney's performance because there was no "plausible alternative defense strategy"
To be considered constitutionally ineffective, counsel's conduct must "so undermine 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). A constitutional violation may occur if a conflict of interest arises at any stage of a criminal proceeding, even after a defendant is convicted and before he is sentenced. Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995).
In Lopez, the petitioner submitted a motion to withdraw his guilty plea and secure appointment of new counsel, claiming that his plea had been induced through coercion by his attorney. The trial court proceeded to sentence Lopez without relieving his attorney or making further inquiry. The Court of Appeals for the Second Circuit held that there was an actual conflict of interest in the defense attorney's continued representation of his client, Lopez, after Lopez had leveled charges of incompetence against the attorney. Id. However, the Second Circuit dismissed Lopez's claim that he was entitled to withdraw his guilty plea because he could not prove that he was adversely affected by his lawyer's performance. Petitioner, to prevail, must show some "plausible alternative defense strategy" that a zealous advocate would reasonably have pursued in the circumstances. Id. at 41-42. Because Lopez had unambiguously admitted that he had committed the crimes charged at his plea allocution and that his plea was knowing and voluntary, petitioner could not show that the actual conflict of interest adversely affected his lawyer's performance. Id. at 42.
The instant case involves facts virtually identical to those of Lopez. Petitioner's participation in the plea allocution indicated unambiguously that he was aware of the consequences of his guilty plea. He indicated that he understood his rights and that no one had threatened him to plead guilty. He then admitted to the state trial court that he had committed the acts charged and that he had done so with the intent to kill. He also promised not to revoke his plea at sentencing. Accordingly, the trial court's denial of petitioner's motion to withdraw his guilty plea was not contrary to the Sixth Amendment's guarantee of effective assistance of counsel.
III. Conclusion
For the reasons stated, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2252(c)(2), petitioner is not entitled to a certificate of appealability. There are no issues worthy of appellate review, and no certificate of appealability will be issued.
The Clerk of the Court is directed to mark this matter as closed.