Opinion
99 Civ. 11235 (WHP) (JCF).
March 20, 2001.
REPORT AND RECOMMENDATION
Sefkija Vucetovic brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for burglary in the second degree following a guilty plea in New York State Supreme Court, New York County. Mr. Vucetovic argues that his conviction should be overturned because he was deprived of his Sixth Amendment right to effective assistance of counsel and because his plea was coerced in violation of his due process rights. For the reasons set forth below, I recommend that the petition be denied.
Background
On May 23, 1997, Mr. Vucetovic was arrested and charged with burglary in the second degree, N.Y. Penal Law § 140.25(2), and robbery in the second degree N.Y. Penal Law § 160.10(1). (Indictment attached to Appendix ("Pet. App.") to Memorandum of Law in Support of Federal Petition for Writ of Habeas Corpus ("Pet. Memo.") at 3; Petitioner's Appellate Brief ("App. Brief"), attached as Exh. C to Affirmation in Opposition to Writ of Habeas Corpus ("Resp. Aff.") at 3). The petitioner's trial commenced on March 12, 1998, before the Honorable Dorothy Cropper, and five days later he pled guilty to the second degree burglary charge, pursuant to an agreement that he would receive a sentence of three-and-one-half to seven years. (S. Tr. at 3-4). At the sentencing hearing, held on April 8, 1998, the petitioner's counsel, Dennis Coppin, asked for an adjournment. According to Mr. Coppin, the petitioner needed the extra time to find a new attorney to represent him in an effort to withdraw his plea because he now felt that the promised sentence was overly harsh. (S. Tr. at 4). The judge denied this request. (S. Tr. at 4).
"S. Tr." refers to the transcript of the sentencing hearing, included in Pet. Memo.
Mr. Vucetovic appealed, claiming both that he did not receive effective assistance of counsel and that his plea was involuntary. (App. Brief at 12, 19). The Appellate Division, First Department, affirmed his conviction, People v. Vucetovic, 258 A.D.2d 335, 685 N.Y.S.2d 203 (1st Dep't 1999), and the Court of Appeals denied leave to appeal. People v. Vucetovic, 93 N.Y.2d 930, 693 N.Y.S.2d 514 (1999). Mr. Vucetovic filed his petition for writ of habeas corpus in this Court on September 27, 1999.
Discussion
A. Voluntariness of the Plea
Mr. Vucetovic argues that the trial court "appl[ied] undue pressure and unfair persuasion through implied threats and discorteous conduct" to force him to plead guilty. (Petition for Writ of Habeas Corpus ("Petition") at 5).
To be considered valid, a plea must "represent a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart, 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, 31 (1992) ("guilty plea must be both knowing and voluntary"); Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988) (plea must be "intelligent and voluntary"); Diaz v. Mantello, 115 F. Supp.2d 411, 418 (S.D.N.Y. 2000). A plea is made knowingly and intelligently when "the accused had the advice of counsel and understood the consequences of his plea, even if only in a fairly rudimentary way." Miller, 848 F.2d at 1320; see also Rashid v. Kuhlman, No. 97 Civ. 3037, 2000 WL 1855114, at *15 (S.D.N.Y. Dec. 19, 2000); United States v. Millan-Colon, 829 F. Supp. 620, 635 (S.D.N.Y. 1993), aff'd, 17 F.3d 14 (2d Cir. 1994). For the plea to be voluntary, the defendant must understand the charge against him. See United States v. Broce, 488 U.S. 563, 570 (1989); Salas v. United States, 139 F.3d 322, 324 (2d Cir. 1998). In addition, a plea cannot be considered voluntary if it was "the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." Miller, 848 F.2d at 1320.
The record demonstrates that Mr. Vucetovic understood the consequences of his plea. He had had the opportunity to evaluate much of the prosecution's evidence, having sat through five days of testimony. According to his counsel, Mr. Vucetovic decided to plead guilty to the burglary charge after an extensive conversation with members of his family and the attorney. (P. Tr. at 3). The petitioner confirmed that he had an opportunity to consult with counsel about the plea. (P. Tr. at 3-4). He also indicated that he realized that by pleading guilty he was giving up his right to a jury trial, the right to call his own witnesses and to cross-examine those who would testify against him, and the right to remain silent. (P. Tr. at 4-5). Prompted by the judge, Mr. Vucetovic confirmed his understanding that as the result of his guilty plea and subsequent conviction he could face deportation or denial of his application for United States citizenship, as well as enhanced punishment for any future crime. (P. Tr. at 6).
"P. Tr." refers to the transcript of the plea allocution, included in Pet. App.
Mr. Vucetovic contends that the trial judge abused what he describes as her "dominant legal position over [the] . . . defendant" by issuing an "implied threat to unilaterally terminate the plea proceedings without just cause unless the [p]etitioner pled guilty." (Pet. Memo. at 26, 31). The allegedly threatening conduct occurred towards the end of the allocution, when the judge denied Mr. Coppin's requests to adjourn the sentencing hearing for a month so that the petitioner could "see to his wife and child." (P. Tr. at 8). The petitioner presses this Court to examine the "underlying semantic content" of the judge's statements. He complains that the judge's tone was "surly" and that her question "Would you like me to bring out the jury now?" constituted a threat. (Pet. Memo. at 32). Mr. Vucetovic objects to the judge "order[ing] [him] to either plead guilty or continue with the trial." (Petition at 5).
The fact that Justice Cropper required the petitioner to make a choice between the available options does not constitute coercion. It is well recognized that some pressure will inevitably be exerted on criminal defendants by prosecutors, judges, their own attorneys, and family members during the plea bargaining process. See, e.g., Miles v. Dorsey, 61 F.3d 1459, 1468-71 (10th Cir. 1995) (pressure from prosecution, family members, and own counsel did not invalidate guilty plea); Caudill v. Jago, 747 F.2d 1046, 1049-51 (6th Cir. 1984) (guilty plea not involuntary where trial judge told defendant on day before trial that court would not hesitate to impose death penalty); Luntz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976) (no undue coercion in "strong urging" from counsel and petitioner's sister); Meachem v. Keane, 899 F. Supp. 1130, 1141 (S.D.N.Y. 1995) (advice from counsel did not constitute coercion).
Nor did Justice Cropper's refusal to adjourn sentencing render the plea involuntary. In New York, such a decision is discretionary, see N.Y. Crim. Proc. L. § 380.30(3); People v. Alpern, 217 A.D.2d 853, 855, 630 N.Y.S.2d 106, 108 (3d Dep't 1995) (decision to adjourn reviewed for abuse of discretion); People v. Mitchell, 184 A.D.2d 737, 738, 587 N.Y.S.2d 187, 188 (2d Dep't 1992) (same), and the petitioner has never argued that Justice Copper abused her discretion. The record does not indicate that the judge's behavior ever rose to the level of "mental coercion overbearing the defendant's will." Miller, 848 F.2d at 1320; see also Schaffner v. Greco, 458 F. Supp. 202, 208 (S.D.N.Y. 1978) (guilty plea was involuntary where judge's extensive involvement in plea negotiations and conduct during trial could reasonably lead petitioner to perceive judge "as an adversary rather than an impartial mediator"). In fact, Mr. Coppin told the court that the petitioner had authorized him to enter a guilty plea, and Mr. Vucetovic immediately acknowledged that it was his wish to do so. (P. Tr. at 3-4). Subsequently, the petitioner also denied that any threats or promises had been used to induce his decision. (P. Tr. at 5). Accordingly, the petitioner's argument that his plea was coerced is without merit.
B. Ineffective Assistance of Counsel
Mr. Vucetovic also claims that he was denied effective assistance of counsel because his attorney "was forced to go forward with the sentenc[ing hearing] even though he was going to be replaced." (Pet. Memo. at 17). To establish a violation of the Sixth Amendment right to counsel, the petitioner must "(1) show that counsel's conduct fell below `an objective standard of reasonableness' under `prevailing professional norms,' and (2) `affirmatively prove prejudice.'" United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (quoting Strickland v. Washington, 466 U.S. 668, 688, 693 (1984)). Mr. Vucetovic repeatedly alleges that the trial judge denied him effective assistance of counsel by proceeding with the sentencing hearing even though his attorney was unprepared. (Petition at 5; Pet. Memo. at 17; Memorandum of Law in Reply to Respondent's Opposition to Petitioner's Application for a Writ of Habeas Corpus at 3). Yet under Strickland, the focus of the Sixth Amendment inquiry is not on the judge's behavior but on the attorney's performance, and the petitioner has failed to establish that Mr. Coppin's conduct was so unreasonable as to fall below professional norms.
Mr. Vucetovic claims that his counsel was not ready to proceed with the sentencing hearing because Mr. Coppin did not prepare a pre-sentence memorandum or file a motion to vacate the plea. (Pet. Memo. at 17). In fact, the record reveals that the petitioner's counsel zealously advocated on behalf of his client during the sentencing hearing. Although he did not file a written response to the pre-sentence report, Mr. Coppin argued against what he believed to be an unreasonably harsh sentence imposed by the trial court, citing extenuating circumstances and displaying familiarity with the petitioner's background. (S. Tr. at 6-10).
In addition, Mr. Vucetovic's attorney repeatedly requested an adjournment to allow time to file a motion to vacate the plea. (S. Tr. at 4-6). Mr. Coppin had not filed that motion himself prior to the sentencing hearing because he had been led to believe that another attorney was going to be substituted for him specifically for that purpose (S. Tr. at 4), and Mr. Vucetovic acknowledges that his family indeed intended to seek new counsel. (Petition at 5).
Finally, the petitioner has not shown in what way his attorney's allegedly unreasonable conduct could have prejudiced his case. The lack of a written memorandum apparently did not prevent Mr. Coppin from arguing for a more lenient sentence. Likewise, counsel's failure to file a motion to vacate the petitioner's plea could not by itself have prejudiced his client's case without a showing that such a motion would have had some merit. See Fluitt v. Superintendent, Green Haven Correctional Facility, 480 F. Supp. 81, 86 (S.D.N.Y. 1979); see also United States v. Holland, 117 F.3d 589, 594 (D.C. Cir. 1997) (no ineffective assistance where motion to vacate was meritless); United States v. Gaudet, 81 F.3d 585, 591-92 (5th Cir. 1996) (failure to file motion to vacate plea was strategic choice). Accordingly, the petitioner's claim that he was denied effective assistance of counsel is without merit because the petitioner has failed to establish that his attorney's conduct was both unreasonable and prejudicial.
Conclusion
For the reasons set forth above, I recommend that Mr. Vucetovic's application for a writ of habeas corpus be denied and his 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 William H. Pauley, III, Room 234, 40 Foley Square, New York, New York, 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
JAMES C. FRANCIS IV, U.S. Magistrate Judge