Opinion
01 Civ. 4512 (JSM).
May 31, 2002.
OPINION AND ORDER
Daniel Torres pleaded guilty to Criminal Sale of a Controlled Substance in the Third Degree and was sentenced to prison for a term of 4 1/2 to 9 years. He now brings this action under 28 U.S.C. § 2254, seeking to vacate his sentence. The Petition was filed pro se, but after a review of the Petition and the Respondents' papers in opposition, the Court appointed counsel for Petitioner. Counsel then submitted reply papers on Petitioner's behalf and Respondent was permitted to file a response to the reply.
Petitioner contends that his due process rights were violated when the sentencing judge refused to afford him the benefit of a plea bargain without conducting a hearing at which he was permitted to contest the allegations relied on by the court in determining that he had not lived up to his obligations under the agreement.
The facts underlying this claim are relatively brief. Petitioner pleaded guilty to the felony charge of Criminal Sale of a Controlled Substance in the Third Degree pursuant to an agreement that the court would release him to Phoenix House, a residential drug treatment program, with the understanding that,
"If you work out, you will be allowed to come back, replead to a misdemeanor, and I will sentence you to time served."
Thereafter, Petitioner was discharged from Phoenix House because of allegations that he was involved in attempts to bring drugs into the facility and was involved in gang activity.
At the time of his subsequent re-sentencing, Petitioner's counsel acknowledged that he had received a copy of a communication to the court from Phoenix House which stated that new residents in the program had reported overhearing conversations in Spanish between Petitioner and others claiming that they could make drugs available within the facility, and that it was suspected that Petitioner had participated in gang meetings in the facility. Both Petitioner and his counsel advised the court that Petitioner denied having anything to do with drugs in the facility and stated that Petitioner wanted a review of the charges. The court responded,
"The application is denied. The report convinced me that he violated the conditions I set down, very seriously."
The court then sentenced Petitioner on his felony plea.
On appeal, the Appellate Division, First Department, unanimously affirmed Petitioner's sentence, finding that Petitioner was properly sentenced because the court had conducted an inquiry and satisfied itself that there was a "legitimate basis for defendant's exclusion from the drug program."
Petitioner's application for leave to appeal to the New York Court of Appeals was denied.
DISCUSSION
Were this an appeal to the Second Circuit from a sentence imposed in similar circumstances by a federal judge, a close question would be presented as to the scope of the hearing required when a defendant contests a fact relied on by the court in imposing sentence. See generally United States v. Fatico, 579 F.2d 707 (2d Cir. 1978). However, this Petition was filed after the effective date of the amendments to 28 U.S.C. § 2254 (d), contained in the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1218 (1996). Those amendments provide that a writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the result "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "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), (2); Lainfiesta v. Artuz, 253 F.3d 151 (2d Cir. 2001), cert. denied, 2002 U.S. Lexis 2886 (April 22, 2002).
Therefore, in reviewing this Petition, this Court is not called upon to determine whether the state court was incorrect or erroneous, but rather whether it was "objectively unreasonable." Such "objective unreasonableness" is defined as "some increment of incorrectness beyond error." Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001); Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) ("We are determining the reasonableness of the state courts' `decision,' not grading their papers."); Lainfiesta v. Artuz, supra, 253 F.3d at 155.
While there is clear Supreme Court law recognizing that a defendant has a due process right to enforce the terms of a plea bargain, Santabello v. New York, 404 U.S. 257, 92 S.Ct. 495 (1971), that proposition was never at issue in this case. The only issue raised by Petitioner in the state courts related to the scope of the hearing required to resolve a disputed factual issue. The trial court clearly relied on the hearsay report from Phoenix House, which stated that Petitioner was suspected of bringing drugs into that facility and engaging in gang activity, and rejected Petitioner's denial of that charge. Thus, the issue here is whether there is "clearly established Federal law, as determined by the Supreme Court of the United States" that holds that a trial court may not rely on hearsay statements such as that provided by Phoenix House, in deciding that a defendant has breached a condition of his plea agreement, and imposing a substantially increased sentence based on that finding.
Although Petitioner was denied a full-fledged hearing and an opportunity to cross-examine witnesses against him, he was represented by counsel and was given an opportunity to speak at his sentencing and attempt to convince the sentencing judge that he had not engaged in the activities on the basis of which Phoenix House had discharged him from their program.
Petitioner has cited no Supreme Court precedent that so holds. Although it is true that in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1507 (2000), Justice Stevens stated that "[r]ules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule," the established Supreme Court precedent relevant to this case seems to undermine Petitioner's position. As the Second Circuit explained in United States v. Fatico, supra, 579 F.2d at 511:
The Due Process Clause is plainly implicated at sentencing. E.g., Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality); Williams v. New York, 337 U.S. 241, 252 n. 18, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); See Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 825, 826 (1968). It does not necessarily follow, however, that all of the procedural safeguards and strict evidentiary limitations of a criminal trial proper are required. Gardner v. Florida, supra, 430 U.S. at 358 n. 9, 97 S.Ct. 1197, 51 L.Ed.2d 393. The Supreme Court has held quite to the contrary, specifically on the issue of hearsay in a presentence report. Williams v. New York, supra, held that it was not a denial of due process in sentencing to rely on information supplied by witnesses whom the accused could neither confront nor cross-examine.
Petitioner argues, however, that the proceedings here were analogous to a parole or probation revocation proceeding and that in such proceedings due process requires that the defendant be provided a hearing at which he can cross-examine the witnesses against him. In support of this proposition he cites Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604 (1972). In that case, the Supreme Court ruled with respect to parole revocation proceedings that:
minimum requirements of due process . . . include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
However, in Brewer, the Supreme Court went on to state:
We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.Id. (emphasis added).
Thus, even if the Supreme Court's decision in Brewer could be read to apply in the context of petitioner's re-sentencing, it did not clearly establish that a sentencing court could not rely on a hearsay report from a reliable institution like Phoenix House as the basis for a finding adverse to the defendant.
Petitioner argues that the Second Circuit's decision in Spence v. Superintendent, Great Meadows Correctional Facility, 219 F.3d 162 (2d Cir. 2000), is directly on point and supports his position. However, the issue in Spence was very different. In Spence, the defendant pleaded guilty to robbery charges on the understanding that, if he successfully completed a one year period of supervision, he would be placed on probation and probably treated as a youthful offender. At the time of the plea, Spence was told that one of the conditions was that he not be arrested on another charge during the period of supervision. After Spence was arrested on a new charge within the one year period, he was brought back to court and sentenced to eight and one-third to twenty five years. Prior to sentencing, Spence stated that he was not guilty of the crime for which he had been arrested and that he had several alibi witnesses who would testify for him. The sentencing judge refused to hear Spence's alibi witnesses because he found that the police had probable cause to arrest him.
The Second Circuit found that Spence, who later was acquitted of the new charges, was entitled to habeas corpus relief because the sentencing judge focused on the wrong issue. It noted that, while the court had told Spence at the time the plea was accepted that if he was arrested on another charge he would be sentenced to jail, the colloquy indicated that Spence understood that his plea bargain would be vacated only if he committed a crime for which he was arrested, not that he would be deprived of his bargain if he was arrested for a crime he did not commit. It was in that context that the Second Circuit found error in the sentencing judge's failure to conduct a hearing to determine whether Spence had committed the crime for which he was arrested. In the Spence case, the Second Circuit did not consider the type of hearing that the sentencing court was required to conduct.
Thus, not only is the Second Circuit not the Supreme Court, but Spence does not constitute "clearly established Federal law" that a sentencing judge may not consider hearsay statements that he considers reliable when making a critical sentencing finding.
In addition, Spence v. Superintendent, Great Meadows Correctional Facility, 219 F.3d 162 (2d Cir. 2000), was decided subsequent to Torres' sentencing on April 17, 1998.
In United States v. Fatico, supra, the Second Circuit held that a sentencing court could consider hearsay information if the circumstances indicated that it was reliable. In Petitioner's case, the sentencing judge had a report from a reliable institution to which the courts regularly send defendants for treatment, that Petitioner had been involved in bringing drugs into the institution. While the institution's conclusion was based on information from unnamed, recently admitted residents, there was no reason to believe that the institution did not have an adequate basis to believe their statements. Had the court ordered a hearing, the institution would no doubt have resisted disclosing the identities of those who provided information in confidence. Thus, it is likely that the record at the close of the hearing would have been no different than it was at the time of sentencing, with the petitioner denying the charge, and Phoenix House staff persuaded that the charges were true and stating that they would not re-admit the Petitioner. While reasonable people might disagree with the sentencing judge's decision to rely on the report from Phoenix House, the decision to do so was not contrary to "clearly established Federal law, as determined by the Supreme Court of the United States."
That the law on this issue is not "clearly established" is further confirmed by the Second Circuit's statement in Fatico, that "it is not clear whether, or to what extent, the Confrontation Clause of the Sixth Amendment is implicated at sentencing, or to what extent that Clause overlaps with the hearsay rule and Due Process guarantees when statements of out-of-court declarants cannot be refuted by cross-examination." 579 F.2d 707, 713 (2d Cir. 1978) (citations omitted).
For the foregoing reasons, the Petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. However, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal from this case may be taken in forma pauperis, and a certificate of appealability will issue.
The Court wishes to thank John Cooney, Esq., of the firm of Davis Polk Wardwell, for his able pro bono representation of Petitioner.
SO ORDERED.