Opinion
No. 00-CV-6435P.
July 29, 2004
DECISION ORDER
INTRODUCTION
Petitioner, Oscar Tucker ("Tucker"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges Tucker's August 28, 1997, conviction in Ontario County Court following a guilty plea to two New York State felonies, namely, two counts of Course of Sexual Conduct Against a Child in the Second Degree. The parties have consented to have a United States Magistrate Judge conduct all further proceedings in this case, including entry of judgment, in accordance with 28 U.S.C. § 636(c). (Docket #14). For the reasons set forth below, Tucker's § 2254 petition is denied.
FACTUAL BACKGROUND
I. Procedural History
On July 16, 1997, Tucker was charged in a Felony Complaint with Sexual Abuse in the First Degree (a Class D Felony), in violation of § 130.65(3) of the New York State Penal Law. (Docket #13, Ex. A.). Pursuant to a plea agreement, on August 28, 1997, Tucker executed a waiver of indictment and pleaded guilty in Ontario County Court to a Felony Information charging him with two counts of Course of Sexual Conduct With a Child in the Second Degree (Class D felonies), in violation of § 130.80 of the New York State Penal Law. (Docket #8, App. B and C). As provided in the plea agreement, Tucker was thereafter sentenced to two indeterminate terms of three and one-half to seven years in prison, to be served concurrently. (Docket # 8, App. C).
Two years prior to this conviction, Tucker had been convicted of Sexual Abuse in the First Degree in Monroe County Court. He was sentenced to five years' probation and, as a result of the instant conviction, he was charged with a violation of probation. On February 27, 1998, Tucker's probation was revoked, and he was sentenced to a term of two and one-third to seven years' imprisonment, to be served consecutively to the term of incarceration imposed on the conviction at issue here.
Tucker appealed his conviction to the Appellate Division, Fourth Department, and he was appointed new counsel to represent him on the appeal. (Docket #8, App. D). After reviewing the record and twice requesting extensions of time, on July 17, 1998, his attorney filed a brief pursuant to People v. Crawford, 421 N.Y.S.2d 485 (1979), and a motion seeking to be relieved of her assignment because she had identified no appealable issues. On the same day that she filed the brief, she mailed Tucker a letter informing him that she had filed a Crawford brief and that he was entitled to request permission to file a pro se supplemental brief within thirty days. ( Id.).
Tucker requested permission to file a pro se brief, but his request was denied as untimely, and on October 2, 1998, the Appellate Division issued an order affirming petitioner's conviction. Tucker thereafter moved to reconsider the October 2, 1998, order on the grounds that the court improperly had failed to consider his pro se brief. The Appellate Division denied his motion for reconsideration, but only after "reading and filing the supplemental brief of Oscar Tucker submitted December 28, 1998, together with the record on appeal, and due deliberation having been had thereon." (Docket #8, Ex. E).
The record is unclear as to when Tucker sought permission to file the brief, but the letter denying his request was dated September 9, 1998 and stated — plainly incorrectly so — that he was required to file his application on or before April 3, 1998. (Docket # 13, Ex. H).
Tucker sought leave to appeal both decisions to the New York Court of Appeals. Leave to appeal the order affirming his conviction was denied on October 27, 1999; his application for leave to appeal the order denying his motion for reconsideration was dismissed on July 5, 1999. (Docket #8, App. E). The instant petition constitutes Tucker's first collateral attack on his conviction in either state or federal court.
II. Tucker's Petition for Writ of Habeas Corpus
In his instant petition, Tucker claims that his conviction must be vacated on five separate grounds: first, that his conviction was obtained in violation of the constitutional proscription against double jeopardy; second, that his plea was coerced; third, that the statute under which he was convicted is unconstitutional; fourth, that the waiver of indictment was jurisdictionally defective; and, finally, that he was deprived of effective assistance of counsel at both the trial and appellate stages of his prosecution. ( See Docket ## 1 and 13).
DISCUSSION
I. Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
As an initial matter, a state court prisoner is generally not entitled to habeas relief unless he has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). E.g., Rose v. Lundy, 455 U.S. 509, 519 (1982); Picard v. Connor, 404 U.S. 270, 278 (1971); Jones v. Keane, 329 F.3d 290, 294 (2d Cir. 2003). This exhaustion requirement, which is rooted in principles of comity between federal and state courts, acknowledges "that state courts, `no less than federal courts, are bound to safeguard the federal rights of state criminal defendants.'" Jones v. Keane, 329 F.3d at 294 (quoting Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) ( en banc), cert. denied, 464 U.S. 1048 (1984)). A claim is deemed exhausted where the petitioner has presented "the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it." Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003).
A court presented with a petition containing both exhausted and unexhausted claims may "offer the petitioner the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims." Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002); see also Rose v. Lundy, 455 U.S. at 519; Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, 534 U.S. 1015 (2001). In the alternative, a court may also elect to deny unexhausted claims on the merits. See, e.g., 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306 F.3d at 1197; Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001); Edkin v. Travis, 969 F. Supp. 139, 140 n. 1 (W.D.N.Y. 1997).
In this case, the record unfortunately does not clearly show which claims have been exhausted. This confusion results principally from the failure of either side to file with this Court a copy of Tucker's pro se supplemental appellate brief. The Appellate Division, in denying Tucker's motion for reconsideration, made clear that it had reviewed and considered the arguments presented in his brief. While Tucker asserts that he raised on appeal all but one of the issues that are presented in this petition (Docket # 1, ¶ 9(e)(4)), this Court's review of the exhaustion issue plainly would have been aided by review of Tucker's pro se brief itself.
Tucker's petition does not include his coercion claim among those he specifically identifies as having been raised in his supplemental brief. ( Id.).
The record is further obfuscated by the inconsistent positions taken by respondent in his answering papers. At various points in his papers, respondent admits that the issues have been fully exhausted (Docket # 8 at 4, ¶ 1); at other points, he contends that Tucker has failed to exhaust his remedies (Docket # 8 at 2, ¶ 8(b)); at still other points, he contends that some but not all of the claims have been exhausted. (Docket # 8 at 7, ¶ 1). Considering respondent's inconsistent positions, this Court will credit petitioner's representation that he has exhausted the issues he has raised in his petition, except the coercion claim. With respect to that claim — which petitioner apparently concedes that he did not exhaust — this Court nonetheless elects to address the merits of that claim, finding that it is legally frivolous. See 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306 F.3d at 1197. II. Petitioner's Claims A. Double Jeopardy
Tucker asserts that his conviction violated the constitutional prohibition against double jeopardy and thus must be reversed. Although the basis of his claim is not entirely clear, he appears to argue that he was prosecuted twice for the same crime because the crime to which he pleaded guilty (Course of Sexual Conduct with a Child in the Second Degree) was based on the same facts and circumstances as the crime with which he was originally charged in the Felony Complaint (Sexual Abuse in the First Degree). He maintains that because the arrest charge was not mentioned in the waiver of indictment, that charge remained an open charge and his subsequent prosecution for, and guilty plea to, a felony based on the same facts placed him in jeopardy twice for the same offense. Tucker misapprehends the doctrine of double jeopardy, and his argument must be denied.
Without addressing the question whether the two offenses at issue may constitute the same crime for purposes of double jeopardy, see Blockburger v. United States, 284 U.S. 299 (1932), Tucker's claim is meritless because jeopardy had not attached to his prosecution on the charge in the complaint. As the Supreme Court has explained, the Double Jeopardy Clause of the Fifth Amendment:
protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Tucker was neither tried on, nor did he plead guilty to, the offense charged in the complaint. While jeopardy plainly attached when he pleaded guilty to the Course of Sexual Conduct felonies, United States v. Aliotta, 199 F.3d 78, 83 (2d Cir. 1999), Tucker does not allege, nor is there any indication in the record, that the State thereafter attempted to prosecute him for any offense related to the conduct underlying his plea. Had it sought to do so, this Court would confront the question whether the second prosecution amounted to a prosecution for the same offense to which he pleaded guilty. However, because jeopardy never attached to his prosecution on the offense charged in the complaint, he was never subjected to double jeopardy. See, e.g., Crist v. Bretz, 437 U.S. 28, 37-38 (1978); United States v. Podde, 105 F.3d 813, 816 (2d Cir. 1997). Simply put, Tucker's argument that because he was arrested on one charge, but pleaded guilty to another, he was subjected to double jeopardy is without legal support and must be rejected.
B. Coerced Guilty Plea
Petitioner also argues that he is entitled to collateral relief because his plea was "unlawfully induced" or "coerced" by the District Attorney. (Docket # 1 at 5). He appears to contend that the District Attorney misled him into believing that the plea bargain that was offered, and which he accepted, was for a lesser charge than that which would have been presented to the grand jury had he not waived indictment and pleaded guilty. ( Id.). Because the guilty plea that he entered was to two counts of a class D felony, the same felony classification (carrying the same maximum penalty) as the felonies for which the prosecution would have sought indictment, Tucker argues that he was unlawfully induced into pleading guilty.
His argument is belied both by the record and by his own statements in his petition. In the petition, Tucker acknowledges that the District Attorney advised him that if he did not accept the plea, he would be charged with twelve felony counts of Sexual Abuse in the First Degree (New York Penal Law § 130.65), each of which carried a maximum penalty of up to seven years' imprisonment. (Docket # 1 at 5; # 13 at 5). The District Attorney also informed Tucker that should he be convicted, the prosecution would seek the imposition of consecutive sentences to ensure that Tucker received between ten and twenty years' incarceration. ( Id.).
The terms of the plea bargain are reflected in a letter from Tucker's counsel to him dated September 30, 1997. ( See Docket # 1, Attachment 4).
Thus, the heart of the bargain offered by the prosecution was not that petitioner would be permitted to plead to a lesser charge, but rather that he would be promised a lesser sentence than he would face if tried and convicted on the first degree felonies. Such an agreement is not illegal and does not represent unlawful coercion; to the contrary, it embodies the very essence of plea bargaining. See Corbitt v. New Jersey, 439 U.S. 212, 219 (1978) ("[A] state may encourage a guilty plea by offering substantial benefits in return for the plea . . . [including] the possibility or certainty . . . of a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty") (internal quotations omitted); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("While confronting a defendant with the risk of more severe punishment clearly may have a `discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable' — and permissible — `attribute of any legitimate system which tolerates and encourages the negotiation of plea'") (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)).
Significantly, petitioner does not argue that he was misled or confused concerning the sentence that would be imposed if he pleaded guilty. Nor does he dispute that he could have faced a more severe sentence had he proceeded to trial on multiple first degree felonies. On this record, this Court finds no evidence to support Tucker's contention that his plea was illegally induced.
The transcript of Tucker's guilty plea, moreover, demonstrates that the plea was voluntary and intelligent and comported with the requirements of the Due Process Clause of the Fourteenth Amendment. See, e.g., Boykin v. Alabama, 395 U.S. 238, 242-43, n. 5 (1969); McCarthy v. United States, 394 U.S. 459, 466 (1969); accord, e.g., Innes v. Dalsheim, 864 F.2d 974, 977 (2d Cir. 1988), cert. denied, 493 U.S. 809 (1990). "A plea is made knowing[ly] when made `with [an] understanding of the nature of the charge and the consequences of the plea.'" Sims v. Ricks, 2002 WL 1808207, at *3 (S.D.N.Y. Aug. 6, 2002) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). "`[T]he standard for determining the validity of guilty pleas [is] whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In this regard, the trial court judge is charged with making a searching inquiry into the circumstances surrounding the plea in order to determine whether the defendant actually understands the significance and consequences of a particular decision. See Boykin, 395 U.S. at 243-44; Godinez v. Moran, 509 U.S. 389, 401, n. 12 (1993).
At the plea allocution, the prosecutor placed the sentencing promise on the record, and the trial court questioned Tucker thoroughly to ensure that his plea was knowing and voluntary. Tucker affirmed that he understood that he had the right to have the charge presented to a grand jury and that he had the right to a jury trial at which he would have the right to remain silent, to produce witnesses and to cross-examine witnesses. He acknowledged that he understood that he was forfeiting these rights by pleading guilty. The judge inquired whether Tucker had completely discussed the case with his attorney and whether he was "happy with the job [his] lawyer had done"; Tucker responded affirmatively and specifically responded that he did not need any more time and that he had no questions. Moreover, Tucker affirmed that he was not forced or coerced into pleading guilty and had received no promises to induce his plea other than the agreement concerning sentence. ( See Transcript of Plea Hearing, Docket #8, App. A). Considering the record before it, the Court finds no evidence to suggest, let alone conclude, that Tucker's guilty plea was not knowingly or voluntarily entered.
C. Unconstitutionality of Penal Law § 130.80
Petitioner argues that the crime to which he pleaded guilty — New York Penal Law § 130.80 (Course of Sexual Conduct With a Child in the Second Degree) — is unconstitutional because it prevents a defendant from presenting a defense since it does not require the prosecution to specify the dates and times of the alleged sexual conduct. The usual requirement of specificity serves three purposes: to put the defendant on notice of the alleged criminal conduct so that he may prepare a defense, to ensure that the crime for which the defendant is tried is the same crime with which the defendant is charged, and to allow the defendant to frame any appropriate double jeopardy claim. See People v. Shack, 86 N.Y.2d 529, 540 (1995), People v. Colf, 730 N.Y.S.2d 749, 750 (4th Dept. 2001). Tucker's petition alleges that he was intimidated into pleading guilty to charges which he could not defend against because of their lack of temporal specificity.
The crime to which Tucker pleaded guilty, § 130.80 of the New York Penal Law, provides:
a person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct with a child less than eleven years old.
N.Y. Pen. Law § 130.80. As the Appellate Division noted in Colf, the statutory text and legislative history characterize the offense as a continuing crime because it "may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time." 730 N.Y.S.2d at 750 (quoting People v. Keindl, 68 N.Y.2d 410, 421 (1986)). As such, it is not restricted by the usual requirement of specificity. Id. See also People v. Lamphier, 754 N.Y.S.2d 482, 484 (4th Dept. 2003), People v. McLoud, 737 N.Y.S.2d 216, 217 (4th Dept. 2002), People v. Calloway, 672 N.Y.S.2d 638, 640-41 (N.Y. Co. Ct. 1998). Indeed, defendant's double jeopardy rights are expressly safeguarded by the statute which itself provides that a person may not be subsequently prosecuted for a sexual offense involving the same victim within the charged time period. The notice purposes are likewise served because the crime, by definition, does not occur on discrete dates. See Colf, 730 N.Y.S.2d at 750.
To the extent that Tucker's argument is that the statute is unconstitutionally vague, such argument is similarly unavailing. The standards for evaluating whether a statute is unconstitutionally vague are well settled: "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Const. Co., 269 U.S. 385, 391 (1926) (citations omitted). Petitioner has cited no case law to support the argument that a reasonable person would not know that repeated sexual assault of the same child over a specific period of time would violate the law. I reject such an argument and conclude that the statute at issue is neither unconstitutional on its face nor as applied to Tucker.
D. Jurisdictional Defect in the Waiver of Indictment
Tucker's fourth claim is that the waiver of indictment was defective because it failed to refer to the charges on which Tucker was arrested, Sexual Abuse in the First Degree in violation of N.Y. Penal Law § 130.65. Such a claim is not cognizable on federal habeas review both because it is based upon an alleged error of state law, see, e.g., Melendez v. Garvin, 256 F. Supp. 2d 183, 185 (S.D.N.Y. 2003), and because it is antecedent to and independent of his guilty plea, see, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973); Burrows v. Engle, 545 F.2d 552, 553 (6th Cir. 1976).
Even if such a claim were cognizable on collateral review, it is plainly without merit. There is simply no legal requirement, and Tucker does not identify any, that a waiver of indictment must specify not only the charge to which the defendant is waiving his right to indictment, but also any charges previously brought against him. Indeed, such a requirement would make no sense considering that the purpose of a waiver of indictment is to place the defendant on notice of the actual charges that will be filed against him by information in the event that he waives his right to have those charges presented to a grand jury. See N.Y. Crim. Pro. § 195.20. Accordingly, Tucker's claim should be denied.
E. Denial of Effective Assistance of Counsel
Tucker's final claim is that he was deprived of the effective assistance of both trial and appellate counsel. As with the other claims, this Court finds that this claim lacks merit and must be denied.
A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993)), cert. denied, 513 U.S. 820 (1994). A petitioner alleging ineffective assistance of counsel must prove both that counsel's representation fell below prevailing professional norms and that absent counsel's deficient performance, there was a reasonable probability that the outcome of the proceeding would have been different. Mayo, 13 F.3d at 533-34; see also United States v. Vegas, 27 F.3d 773, 777 (2d Cir.), cert. denied, 513 U.S. 911 (1994); Smith v. Robbins, 528 U.S. 259, 285 (2000). A habeas petitioner may ground an ineffective assistance claim on an omission of either federal or state law. Mayo, 13 F.3d at 533; Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001).
Tucker's challenge to his attorneys' effectiveness is easily resolved. He claims that trial counsel was ineffective because (1) counsel permitted him to be coerced into pleading guilty, (2) he advised Tucker to plead to offenses that were unconstitutional, and (3) he advised Tucker to plead guilty even though such plea amounted to double jeopardy. (Docket #1 at 6, ¶ D). Appellate counsel was similarly ineffective, Tucker contends, for failing to raise these issues on appeal. ( Id.).
Petitioner filed a supplemental pro se brief purportedly raising these issues in connection with his motion for reconsideration of the Appellate Division's affirmance of his judgment of conviction. ( See Docket # 1 at 3, ¶ 9(e)(4)). As previously noted, the Appellate Division denied his motion, but only after reading and considering his supplemental brief. (Docket #8, App. E).
All of these issues are, of course, the very issues Tucker raises in this petition. Having found that each of the issues lacks merits, I conclude that neither attorney was ineffective for failing to raise them.
CONCLUSION
For the reasons stated above, Oscar Tucker's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Tucker has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253. Further, I certify that any appeal from this Order would not be taken in good faith. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438, 444 (1962).
IT IS SO ORDERED.