Opinion
Civil Action No. 9:18-CV-0521 (GLS/DEP)
06-10-2019
CESAR ANDUJAR, Petitioner, v. SUSAN KICKBUSH, Respondent.
APPEARANCES: FOR PETITIONER CESAR ANDUJAR, Pro Se 15-A-3467 Gowanda Correctional Facility P.O. Box 311 Gowanda, NY 14070 FOR RESPONDENT: HON. LETITIA JAMES New York State Attorney General 28 Liberty Street New York, NY 10005 OF COUNSEL: DENNIS A. RAMBAUD, ESQ. Assistant Attorney General
APPEARANCES:
FOR PETITIONER
CESAR ANDUJAR, Pro Se
15-A-3467
Gowanda Correctional Facility
P.O. Box 311
Gowanda, NY 14070 FOR RESPONDENT: HON. LETITIA JAMES
New York State Attorney General
28 Liberty Street
New York, NY 10005 OF COUNSEL: DENNIS A. RAMBAUD, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Petitioner Cesar Andujar, a New York State prison inmate as the result of his 2015 conviction from Albany County for the sale of a controlled substance, has commenced this proceeding pursuant to 28 U.S.C. § 2254, requesting habeas relief from this court. In his petition, Andujar argues that his due process rights were violated when prosecuting officials failed to honor an agreement under which he agreed to cooperate with law enforcement officers investigating others engaged in criminal activity, in return for not being prosecuted for his own unlawful conduct. Petitioner also asserts that he received ineffective assistance of counsel when his attorney failed to file a motion to dismiss the indictment against him in the interest of justice, based upon his cooperation agreement, and erroneously advised him that the trial court had promised a sentence of three years of incarceration, followed by one and one-half years of post-release supervision when, in fact, he received a lengthier sentence. For the reasons set forth below, I recommend that the petition be denied and dismissed.
I. BACKGROUND
Petitioner was arrested on February 28, 2014, and charged with the sale of a controlled substance. Dkt. No. 16 at 158. Petitioner claims that, following his arrest, he asked Albany City police officers what he could do in order to avoid going to jail for selling heroin. Dkt. No. 16 at 158. After conferring with representatives of the New York State Police, an Albany City detective inquired concerning petitioner's knowledge of illegal gun sales. Id. Petitioner thereafter began cooperating with law enforcement officials in March 2014. Id.
On or about February 15, 2015, an Albany County grand jury returned a single count sealed indictment charging petitioner with third-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.39(1). Dkt. No. 16 at 24-25. That indictment was based upon petitioner's alleged sale of ten bags of heroin to an undercover police officer in Albany, New York on February 28, 2014. Id; see also Dkt. No. 15-1 at 3. Petitioner ceased cooperating with law enforcement officers when he learned of the indictment on March 3, 2015. Dkt. No. 16 at 158.
II. PROCEDURAL HISTORY
A. Proceedings in State Court
Petitioner was arraigned in connection with the indictment returned against him on March 3, 2015, before Albany County Court Judge Stefan W. Herrick. Dkt. No. 16-1 at 1-7. At that time, a not guilty plea was entered on petitioner's behalf, and the Office of the Albany County Public Defender was assigned to represent him. Id. at 2-4.
Petitioner again appeared before County Court Judge Herrick on March 17, 2015, for the purpose of entering a plea to the pending, single count indictment, charging him with third-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.39(1). Dkt. No. 16-1 at 8-30. During the course of the ensuing plea proceedings, petitioner stated that he understood the plea agreement, which did not call for a specified sentence, and confirmed that he had an adequate opportunity to discuss the matter with his counsel, with whom he was satisfied. Id. at 13-15. Petitioner acknowledged that no threats had been made, and no coercion or pressure had been exerted, to convince him to plead guilty; confirmed for the court that no promises had been made to induce his plea; and stated that his plea was entirely voluntary. Id. at 12, 14, 18, 21.
In discussing the issue of sentencing, the trial court informed petitioner of the maximum and minimum sentences that could be imposed based upon his plea as a second felony offender, and stated that the sentence to be imposed would be entirely dependent on what occurred between the time of his plea and the date of sentencing. Dkt. No. 16-1 at 11-12, 19. Significantly, petitioner was informed by the court that in pleading guilty he was relinquishing his right to challenge the criminal prosecution against him, including to move to set aside his conviction. Id. at 19-21. Petitioner's plea was in satisfaction not only of the indictment against him, but of multiple charges pending in other courts. Id. at 10-11.
Criminal sale of a controlled substance in the third degree, a class B felony, carries a potential determinate sentence of between two and twelve years of imprisonment with an additional period of one and one-half to three years' post-release supervision for nonviolent predicate felony offenders. N.Y. Penal Law §§ 70.45(2)(d), 70.70(3)(c); see also Dkt. No. 16 at 36-37.
During his plea allocution petitioner admitted, under oath, to having knowingly and unlawfully possessed and sold heroin on February 28, 2014. Dkt. No. 16-1 at 26-27. Following the entry of his plea, petitioner was released with the directive that he was to return to court for sentencing, and a warning that he must remain free of arrests during the intervening time between the entry of his plea and the time of sentencing. Id. at 24, 27-28.
Petitioner appeared before County Court Judge Herrick on August 17, 2015 for sentencing. Dkt. No. 16-1 at 31-44. During that proceeding Judge Herrick noted that despite his admonition that petitioner remain free of arrests while on post-plea release, Andujar was re-arrested on August 5, 2015 in the Town of Menands and charged with unlawful possession of marijuana, aggravated unlicensed operation of a vehicle, driving while intoxicated, and driving while ability impaired by drugs and alcohol. Id. at 33.
According to the prosecutor who appeared at the time of sentencing, petitioner did in fact cooperate with both state and local law enforcement officials, resulting in the arrest of at least seven other individuals, the issuance of two search warrants, the seizure of two handguns and two rifles, and the confiscation of marijuana, heroin and cocaine. Dkt. No. 16-1 at 35-36. The prosecutor further characterized petitioner's cooperation as leading to the return of indictments against individuals of "great value or interest to the Albany Police Department." Id. at 36.
Petitioner's cooperation was discussed at length during sentencing. See generally Dkt. No. 16-1 at 31-44. As a counterbalance, however, the court noted that petitioner had been arrested on fourteen prior occasions, resulting in nine previous convictions. Id. at 39. At the conclusion of the hearing, Judge Herrick sentenced petitioner to five and one-half years of incarceration plus an additional three-year period of post-release supervision. Id. at 41-42.
On or about August 22, 2017, prior to perfecting a direct appeal, petitioner filed a motion to set aside his conviction, pursuant to N.Y. Criminal Procedure Law § 440.10. Dkt. No. 16 at 175-86. In that motion, he complained of a deprivation of his due process rights arising under both the New York State Constitution and the Fourteenth Amendment to the United States Constitution, based upon an alleged breach by law enforcement officers of the agreement entered into for his cooperation. Id. That motion was denied by a decision and order issued by County Court Judge William A. Carter on November 8, 2017. Id. at 193-95. In his decision, Judge Carter concluded that the grounds for the motion were fully disclosed by the record, and that petitioner's section 440.10 motion was therefore being improperly used by petitioner as a substitute for a direct appeal. Id. Petitioner's application for leave to appeal the denial of his section 440.10 motion, pursuant to N.Y. Criminal Procedure Law § 460.15, was denied on January 30, 2018. Id. at 225.
Petitioner appealed his conviction to the New York State Supreme Court Appellate Division, Third Judicial Department. Dkt. No. 16 at 6. In connection with that appeal, his assigned appellate counsel submitted an Anders brief stating that, based upon a conscientious and good faith review of the record on appeal, counsel found no non-frivolous grounds for reversal or modification of the petitioner's conviction or sentence, and asking to be relieved of the assignment. Dkt. No. 16 at 87-96. Petitioner thereafter filed a pro se supplemental brief, in which the sole ground raised for reversal was that petitioner received ineffective assistance of counsel, in violation of his rights under the Sixth Amendment to the United States Constitution, based upon his attorney's alleged representation that Judge Herrick promised that on a plea of guilty, petitioner would receive a sentence of two years of incarceration with an additional one and one-half year period of post-supervised release if he continued to work with law enforcement officers, which he did. See generally id. at 155-65. Petitioner also argued that his counsel should have moved to dismiss the indictment against him in the interest of justice, based upon his cooperation with law enforcement officials. Id. at 160.
Anders v. California, 386 U.S. 738 (1967).
By memorandum and order decided and entered on December 14, 2017, a five-justice panel of the Third Department unanimously affirmed petitioner's conviction. People v. Andujar, 156 A.D.3d 1060 (3d Dep't 2017) (mem.); see also Dkt. No. 16 at 167-168. In its decision, the Appellate Division succinctly noted its agreement with the opinion of petitioner's appellate counsel, to the effect that there were no non-frivolous issues to be raised by direct appeal by petitioner. Id.
On December 19, 2017, petitioner applied to the New York State Court of Appeals for leave to appeal his conviction to that court, pursuant to N.Y. Penal Law § 460.20. Dkt. No. 16 at 169-173. In that application he argued, inter alia, that his rights under the due process clause of the Fourteenth Amendment were violated based upon the breach of his cooperation agreement by law enforcement and prosecution officials. Id. By order dated March 21, 2018, petitioner's application for leave to appeal was denied. People v. Andujar, 31 N.Y.3d 980, 77 N.Y.S.3d 758 (2018) (table); see Dkt. No. 16 at 174.
On or about February 2, 2018, petitioner applied to the Third Department for the issuance of a writ of error coram nobis. Dkt. No. 16 at 226-230. In his petition for that relief, Andujar argued that the trial court's failure to honor the agreed upon plea bargain violated his rights to equal protection and due process. Id. at 229. That application was summarily denied in a decision and order issued by the Third Department on April 12, 2018. Id. at 236.
B. Proceedings in this Court
Petitioner commenced this proceeding on April 30, 2018. Dkt. No. 1. In his petition, Andujar asserts three grounds for habeas relief, alleging (1) violation of his Fourteenth Amendment right to due process; (2) a claim under the Sixth Amendment alleging ineffective assistance of counsel; and (3) a due process of law violation. See generally id. On September 28, 2018, respondent filed an answer to the petition, accompanied by a compilation of the relevant state court records, helpfully organized and indexed for the convenience of the court and parties. Dkt. Nos. 15, 16. Plaintiff followed with the submission of a reply brief, or "traverse," on October 22, 2018. Dkt. No. 18. This matter, which is now fully briefed, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Although Andujar's petition contains three grounds, I am unable to discern any distinction between grounds one and three, both of which assert due process violations. Compare Dkt. No. 1 at 5-7 with id. at 8-9.
III. DISCUSSION
A. Standard of Review
Before turning to the merits of petitioner's claims, I will first address the standard of review under which those claims must be analyzed. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996) a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (1) was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(d)); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007) (Sotomayor, J.). The AEDPA " 'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.' " Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)); accord, Cullen, 563 U.S. at 181. Federal habeas courts must presume that the state court's factual findings are correct "unless applicants rebut this presumption with 'clear and convincing evidence.' " Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting 28 U.S.C. § 2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro, 550 U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
As required by section 2254, on federal habeas review, a court may only consider claims that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 563 U.S. at 181; Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has held that, when a state court adjudicates a claim on the merits, "a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim—even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see Willson v. Sellars, 138 S. Ct. 1188, 1192 (2018) (holding that a federal habeas court reviewing an unexplained state-court decision on the merits "should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning," but that "the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision").
B. Exhaustion of Remedies
As a threshold matter, I must first determine whether the petitioner is procedurally barred from raising the grounds supporting his request for habeas relief, based on his alleged failure to present them to the state courts for determination. Dkt No. 15-1 at 9-14. In her opposition to the petition, respondent argues that petitioner's due process claim was never fairly presented to the state courts, and as a result remains unexhausted. Id.
1. The Exhaustion Doctrine Generally
Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies or establish either an absence of available state remedies or that such remedies cannot adequately protect his rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982); see also Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) ("Comity concerns lie at the core of the exhaustion requirement."). Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Galdamez, 394 F.3d at 72 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Daye, 696 F.2d at 192 (footnote omitted).
This exhaustion requirement is satisfied if the federal claim has been " 'fairly present[ed]' " to the state court. Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state court was apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191. Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. at 192.
Significantly, "[t]he exhaustion doctrine 'requires only that a petitioner present his claim once on direct or collateral review.' " Salahuddin v. Strack, No. 97-CV-5789, 1998 WL 812648, at *5 (E.D.N.Y. Aug. 12, 1998) (quoting Sanford v. Senkowski, 791 F. Supp. 66, 69 (E.D.N.Y. 1992)); see Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977) ("In order to meet the exhaustion requirement, a petitioner must have presented his claim to the state courts at least once, on direct or collateral review."). "Therefore, even if a claim is not raised at trial or on direct appeal, a claim pursued throughout a full round of state post-conviction proceedings is exhausted." Salahuddin, 1998 WL 812648, at *5 (citing, inter alia, Castille v. Peoples, 489 U.S. 346, 350-51 (1989)); see also Harvey v. Portuondo, No. 98-CV-7371, 2002 WL 2003210, at *5 (E.D.N.Y. Aug. 5, 2002).
2. Analysis
While acknowledging that petitioner's ineffective assistance of counsel claim is fully exhausted, respondent argues that his due process ground is not. Dkt No. 15-1 at 9-14. Respondent therefore urges that the court find Andujar's petition to be a mixed petition, and either dismiss it without prejudice in order to permit Andujar to exhaust the claim or, alternatively, find that it is patently meritless. Id. at 13-17.
Careful review of both the counseled and pro se briefs filed in connection with petitioner's direct appeal confirm that the due process issue now presented to the court was not raised before the Third Department in his direct appeal. Dkt. No. 16 at 87-96, 155-65. His claim that his due process rights were violated when the cooperation agreement that he reached with law enforcement officials was breached by the prosecution of drug charges against him was first argued following the Third Department's decision and order and in connection with his motion for leave to appeal to the New York State Court of Appeals pursuant to N.Y. Criminal Procedure Law § 460.20. Dkt. No. 16 at 169-73. In that application, petitioner stated the following:
As one of the Justices review my records, they will see for themselves that my Due Process of law were violated along with my Fourth Amendment My Sixth, and my Fourteenth amendment.Id. at 171 (errors in original). Unfortunately for petitioner, it is well-established that presentment of a claim for the first time on an application for discretionary review, such as in a motion for leave to appeal to the New York Court of Appeals, is insufficient to exhaust the claim unless discretionary review is granted and the claim is addressed on the merits. St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004); see also McQueen v. Superintendent, Franklin Corr. Facility, No.15-CV-00077, 2015 WL 6449138, at *6 (N.D.N.Y. Oct. 23, 2015) (Singleton, J.); Mercedes v. Superintendent, No. 12-CV-0687, 2014 WL 2711803, at *5 (N.D.N.Y. June 16, 2014) (Hurd, J.). Here, petitioner's application for leave to appeal to the New York Court of Appeals was denied and, thus, his claim was not addressed on the merits. Dkt. No. 16 at 174.
My Fourth Amen[d]ment and my Fourteenth Amendment as well as the Due Process were violated when the State Police officer breached our Cooperation Agreement that was made on the day I was arrested for the Sale that I caught on February 28, 2014 by filing an indictment against me.
This, however, does not end the court's inquiry because exhaustion requires that the petitioner present is claim to the state courts "at least once, on direct or collateral review." Fielding, 548 F.2d at 1106; see Picard, 404 U.S. at 275. In contrast to his direct appeal, in his motion pursuant to section 440.10 of N.Y. Criminal Procedure Law, which was filed before his direct appeal was perfected or decided, petitioner refers, albeit in general terms, to a due process claim. Dkt. No. 16 at 175-86. Respondent argues that in the motion, petitioner did not adequately present the due process claim now being raised in this proceeding, since the motion was unduly vague. Dkt. No. 15-1 at 10-11.
I disagree. Although it is true that "a generalized and catch-all allusion to the Constitution is insufficient to alert the state court to the existence of a federal constitutional claim," Chaplin v. Kirkpatrick, No. 9:17-CV-0718, 2018 WL 6613359, at *12, n.9 (Oct. 2, 2018) (Peebles, M.J.) (citing Grey v. Netherland, 518 U.S. 152, 163 (1996) ("[I]t is not enough to make a general appeal to a constitutional guaranty as broad as due process to present the 'substance' of such a claim to a state court.")), report and recommendation adopted by 2018 WL 6605917 (Dec. 17, 2018) (D'Agostino, J.), affording the petitioner the lenity to which he is entitled as a pro se litigant, I conclude that the section 440.10 motion did adequately apprise the state courts that he was raising the due process claim now advanced in his habeas petition. Dkt. No. 16 at 175-86. His motion refers to both due process and the formation of a cooperation agreement in March 2014, as well as an alleged breach of that agreement by law enforcement personnel. See, e.g., id. at 178. In the "WHEREFORE" portion of the motion, defendant stated the following:
[T]he defendant, respectfully requests that his conviction be vacated on the ground(s) that: Due Process Right were violated, and so was my one 4th Amendment, when the State Police breached the cooperation agreement we made on February 28, 2014, when I was released to inform for them so I can stay out of prison, before I was indicted on February 13, 2015.Id. at 180 (errors in original). In his reply submission, moreover, Andujar added the following:
[Petitioner] argues that he worked for both agencies for eleven months before the State Police breached our Cooperation Agreement and violated defendant Due Process Rights.Id. at 192 (errors in original). While the state lower court did not address the merits of this claim, instead finding that the issues raised were based upon matters within the record and should have been raised on appeal, petitioner did attempt to fairly present the claim to the state courts. Id. at 194-95; see Klein v. Harris, 667 F.2d 274, 283-84 (2d Cir. 1981) ("[N]o appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division.") (citing People v. Williams, 342 N.Y.S.2d 75, 76 (2d Dep't 1973)).
In his decision and order, Judge Carter stated that "[i]t appears the [petitioner] has not appealed his conviction," nor consequently, had he raised the two grounds asserted in his section 440.10 motion on appeal. Dkt. No. 16 at 193-95 (citing N.Y. CPL § 440.10(2)(c)). The statement that petitioner had not by then appealed his conviction, of course, was not correct. Judge Carter's decision was rendered on November 8, 2017. Id. at 195. By that time, both counsel's Anders brief and Andujar's pro se supplemental brief had been submitted to the Third Department in connection with petitioner's direct appeal, and the prosecution had submitted a responsive letter, dated August 10, 2017, requesting that the conviction be affirmed. Id. at 87-96, 155-65, 166. The Third Department's memorandum and order was issued approximately one month later on December 14, 2017. Andujar, 156 A.D.3d at 1060.
Based upon the foregoing, I conclude that both grounds of Andujar's petition have been fully exhausted. See, e.g., Desrosiers v. Phillips, No. 05-CV-2941, 2006 WL 2092481, at *9 (E.D.N.Y. July 27, 2006) ("A habeas petitioner can exhaust a claim through a 440 motion."); Tenace v. Artus, No. 04-CV-29, 2005 WL 1397139, at *2 (May 27, 2005) (Homer, M.J.) ("The exhaustion doctrine requirement is 'that a petitioner must have presented his [or her] claim to the state courts at least once, on direct or collateral review.' " (quoting Fielding, 548 F.2d at 1106)).
C. Ineffective Assistance of Counsel
In his petition, Andujar asserts that he received ineffective assistance from his trial counsel. Dkt. No. 1 at 7-8. That claim was implicitly found to be frivolous by the Third Department in response to petitioner's direct appeal. Andjuar, 156 A.D.3d at 1060. The court must therefore determine whether the Third Department's determination, in rejecting the ineffective assistance of counsel claim, was either contrary to or an unreasonable application of clearly established Supreme Court law.
1. Ineffective Assistance of Counsel
Under the well-established standard governing ineffective assistance of counsel claims,
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.Strickland v. Wash., 466 U.S. 668, 687 (1984); accord, Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. 2007).
To be constitutionally deficient, the attorney's conduct must fall "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690; accord, Rivas v. Fischer, 780 F.3d 529, 547 (2d Cir. 2015). An attorney's performance is judged against this standard in light of the totality of the circumstances and from the perspective of counsel at the time of trial, with every effort made to "eliminate the distorting effects of hindsight[.]" Strickland, 466 U.S. at 689; see also Rivas, 780 F.3d at 547 (noting the court's "scrutiny of counsel's performance must be 'highly deferential' " (quoting Strickland, 466 U.S. at 689)).
Addressing the second prong of the Strickland test, courts have generally held that prejudice is established by showing that there is a "reasonable probability" that, but for the attorney's deficient conduct, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Murden, 497 F.3d at 198 ("Under Strickland, a defendant must show that . . . there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (quotation marks omitted)).
2. Analysis
The focus of petitioner's ineffective assistance ground is upon two discrete issues—whether his attorney should have moved to dismiss the pending indictment based upon his cooperation agreement, and whether counsel mistakenly advised him regarding a promised sentence. Dkt. No. 1 at 7-8. Respondent argues that the first prong of petitioner's ineffective assistance of counsel argument, involving the failure of petitioner's trial attorney to move for dismissal of the indictment against him, has been waived. Dkt. No. 15-1 at 19-20.
a. Waiver
It is well-established that a voluntary guilty plea that is knowingly, intelligently, and voluntarily entered constitutes a waiver of non-jurisdictional defects occurring prior to entry of the plea. See United States ex-rel. Glenn v. McMann, 349 F.2d 1018, 1019 (2d Cir. 1967). As the Supreme Court has explained, "a guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267 (1973). In this case, petitioner's guilty plea effectively waived all ineffective assistance of counsel claims relating to events prior to entry of the plea. See United States v. Coffin, 76 F.3d 494, 497-98 (2d Cir. 1996) ("A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea."); see also Morris v. Smith, No. 13-CV-1441, 2015 WL 13745077, at *5 (Jul. 29, 2015) (Treece, M.J.), report and recommendation adopted by, 2016 WL 4532160 (N.D.N.Y. Aug. 30, 2016) (Sharpe, J.); Conyers v. McLaughlin, 96-CV- 1743, 2000 WL 33767755, at *7 (N.D.N.Y. Jan. 27, 2000) (Sharpe, J.). This includes any argument that petitioner's trial attorney should have moved to dismiss the indictment against him in the interest of justice based on his cooperation agreement.
b. Merits
In the first prong of petitioner's ineffective assistance of counsel argument, he claims that his trial attorney's performance was deficient based upon her failure to move to dismiss the indictment against him in the interest of justice. Dkt. No. 1 at 4-8. Pivotal to that argument is his contention that law enforcement officials entered into a binding agreement with him under which he would avoid incarceration based upon his cooperation. See id.
Though arising under federal law, the First Circuit's decision in United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000) is instructive regarding this issue. In Flemmi, the court examined a prosecution following an alleged promise of immunity by law enforcement representatives, in that case from agents of the Federal Bureau of Investigation ("FBI"). Id. 81-82. The court concluded that absent a showing of authorization by prosecuting authorities, those authorities could not be bound by a promise made by FBI agents. Id. at 91.
In New York, it is well-established that in order to obtain dismissal of an indictment based upon a cooperation agreement, a defendant "must demonstrate, by a preponderance of the evidence, 'a clear and specific promise from the authorities [and] services performed by the defendant involving a significant degree of risk or sacrifice[.]'" People v. Andrades, 119 A.D.3d 951, 951 (2d Dep't 2014) (quoting People v. Trombley, 72 A.D.3d 1402, 1403 (3d Dep't 2010)); see People v. Fournier, 77 A.D.3d 1201, 1202 (3d Dep't 2010); People v. Reed, 184 A.D.2d 536, 537 (2d Dep't 1992); People v. Rittenhouse, 37 A.D.2d 866, 897 (3d Dep't 1971) ("Our courts have previously held that the [prosecution] must authorize the promise of immunity." (citations omitted)).
Petitioner appears to claim that such a binding agreement was entered into and was authorized, and that a motion to dismiss in the interest of justice on the basis of an alleged breach of that agreement should have been made, and would have succeeded. See, e.g., Dkt. No. 1 at 7; Dkt. No. 18 at 3. In New York, a motion to dismiss in the interest of justice is directed to the trial court's discretion, which must be exercised "sparingly" and "only in that 'rare' and 'unusual' case where it 'cries out for fundamental justice beyond the confines of conventional considerations.' " People v. Insignares, 109 A.D.2d 221, 234 (1st Dep't 1985). In this case, petitioner advances only his self-serving assertions to support the claim that he entered into a cooperation agreement with law enforcement officials and performed pursuant to that agreement. There is no independent evidence of such an agreement, nor is there any indication that it was either endorsed or authorized by prosecuting authorities. Under the circumstances, petitioner cannot demonstrate that a motion to dismiss in the interest of justice would have succeeded. The Third Department's rejection of this portion of petitioner's ineffective assistance argument was therefore neither contrary to nor an unreasonable application of Supreme Court law, including standard articulated in Strickland.
With respect to the second prong of the ineffective assistance argument, claiming that petitioner's counsel erroneously told him that he had been promised a moderate sentence, this claim, too, is both waived and belied by the petitioner's own responses during his plea allocution. During the plea proceeding, the court advised the petitioner as to the potential penalties associated with his plea, and stated "[s]o basically you're pleading guilty to a B [felony] with no promises." Dkt. No. 16-1 at 11-12. The point was reiterated further on in the proceeding when the court asked the following:
And you understand basically it's a plea to the indictment, no promises? That's what the plea bargain is; do you understand that?Id. at 14. To that inquiry, petitioner responded "yes, sir." Id. The court also assured itself that no one was forcing petitioner to plead guilty or threatening, coercing or pressuring him. Id. at 18. The closest the trial court came to making a promise with respect to sentencing came in the form of the following colloquy:
THE COURT . . . . Other than the Court's intention on sentence, which there is no plea agreement other than it's up to you in how you perform, has anyone made any promises or representations to you in order to get you to plead guilty?Id. at 24. By pleading guilty under those circumstances, petitioner effectively waived any argument he received ineffective assistance of counsel, and contradicted his present claim that he was promised a more lenient sentence by the trial court, through his counsel.
THE DEFENDANT: No, Sir.
The circumstances surrounding petitioner's claims are in many ways similar to those presented in Flores-Mendez v. United States, No. 17-CV-2767, 2018 WL 357311 (S.D.N.Y. Jan. 10, 2018). In that case the court noted the following:
Petitioner claims that his counsel informed him that he would receive a sentence of no more than ten
years. However, at his plea hearing, petitioner explicitly swore under oath that no person had made him a promise regarding a specific sentence. This fact alone is enough to demonstrate that neither his guilty plea or his sentence were the result of unreasonable action by his counsel, who, according to petitioner's statement to the Court, did not promise a specific sentence.Id. at *3 (emphasis in original).
In sum, the rejection of this second portion of petitioner's ineffective assistance of counsel argument by the Third Department was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.
D. Due Process Claim
Although petitioner did present the due process claim now raised to the trial court in his motion pursuant to section 440.10 of N.Y. Criminal Procedure Law, Dkt. No. 16 at 175-86, the state court did not address the merits of his claim. Id. at 193-95. As a result of the lack of state court adjudication, " 'the federal habeas court applies the pre-AEDPA standards, and reviews de novo the state court disposition of the petitioner's federal claims.' " Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001)); see Cone v. Bell, 556 U.S. 449, 472 (2009); Morrishaw v. Rock, No. 12-CV-00748, 2015 WL 5750151, at *3 (N.D.N.Y. Sept. 30, 2015) (D'Agostino, J.). Accordingly, this court must determine de novo whether there is merit to plaintiff's due process claim.
Undeniably, the failure of prosecuting authorities to honor a legally binding agreement for immunity for favored treatment based upon a cooperation agreement would represent a violation of the defendant's right to due process arising under the Fourteenth Amendment. See Santobello v. New York, 404 U.S. 257, 262 (1971) ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."). As a threshold matter, however, for the reasons stated above, I find that petitioner's guilty plea also resulted in a waiver of his due process claim. See Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991) ("Generally a knowing and voluntary guilty plea precludes federal habeas corpus review of claims relating to constitutional rights at issue prior to the entry of the plea."). Throughout the colloquy, petitioner and his experienced counsel made no mention on the record of any purported cooperation agreement, even though petitioner belatedly later asserted at the sentencing phase that such a promise existed. See generally Dkt. No. 16-1 at 8-44. Indeed, petitioner's sworn testimony during the plea hearing shows that his plea was knowing and voluntary, and the petitioner has not presented evidence to suggest otherwise. Id. The petitioner entered his plea in open court, where he stated that nobody had offered him any inducements, threatened him, or forced him to plead guilty. Id. Simply stated, his guilty plea represented "a break in the chain of events which has preceded it in the criminal process." Tollett, 411 U.S. at 267.
In the alternative, even if petitioner had not waived his due process claim by the entry of his knowing, voluntary, and intelligent guilty plea, his claim nonetheless lacks merit. As was also discussed above, government officials retain the discretion to enter into agreements involving a defendant's cooperation in return for immunity from prosecution or favorable consideration in connection pending or prospective criminal action. United States v. Aleman, 286 F.3d 86, 89-90 (2d Cir. 2002); United States v. Resto, 74 F.3d 22, 25 (2d Cir. 1996); United States v. Kourani, No. 17-CR-417, 2018 WL 1989583, at *3 (S.D.N.Y. Apr. 26, 2018). Such agreements are interpreted by the courts in accordance with ordinary principles of contract law. Kourani, 2018 WL 1989583 at *3; United States v. Doumanis, No. 17-CR-0087, 2018 WL 623551, at *1 (S.D.N.Y. Jan. 29, 2018). Petitioner bears the burden of proving the existence of an authorized and binding cooperation agreement. United States v. Rosario, 237 F. Supp. 2d 242, 245 (E.D.N.Y. 2002) (collecting cases).
In this case, petitioner has failed to carry his burden. See Rosario, 237 F. Supp. 2d at 245. Petitioner alleges that he entered into a cooperation agreement with an Albany City detective or the New York State Police. See, e.g., Dkt. No. 1 at 2; Dkt. No. 16 at 171-72. Dkt. No 18 at 1. As evidence of this cooperation agreement with law enforcement, petitioner points to his sentencing hearing, wherein the following colloquy occurred:
THE COURT: And, [petitioner], do you wish to be heard?
[PETITIONER]: Yes, Your Honor. Your Honor, when I caught this case, I was released, and I was told that as long as I do everything I was supposed to do, everything would be okay. And like she said, I worked for Albany and the State Police so when I was working with the Albany Police, the State Police come in here and violate me. Like, I'm confused. If I am still working for both agencies, how can I still get violated, if I am still working for Albany County? That's like - -
THE COURT: I don't think ''violate - - ''
MS. SODHI: Judge, what he's referring to is that he was working with
one agency and I think the other agency pushed for him to get indicted, so that's what he was confused with.Dkt. No. 16-1 at 37-38. Petitioner does not allege, at any point, that his purported agreement with law enforcement officials was either ratified by or entered into with prosecutors.
THE COURT: Oh, I remember that, yes, okay. I'm aware of that.
THE DEFENDANT: So I am confused. I'm doing everything I'm supposed to do. Like, even though I'm not saying I'm right for selling marijuana, I am not saying I'm right for that, I'm doing everything I'm supposed to do. Like, why would one agency, for whatever disagreement, come here and indict me while I'm still doing what I'm supposed to do with the other agency? I'm not saying it's right or wrong and what I did was right or wrong, but it's, like, I'm confused about that, like, just for whatever reason.
THE COURT: Well, I think we're well beyond that because you did get indicted and you pled guilty to a B felony with no promises.
Petitioner's assertions present several issues. First, the court has not found any precedent that provides that a cooperation agreement entered between an individual and a law enforcement agent has a corresponding binding effect on a prosecutor. Moreover, to the extent that the Supreme Court concluded in Santobello that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled[,]" it appears that Santobello has been construed narrowly by the courts to only apply to the circumstances present in that case. See e.g. Curtis v. United States, No. 98-CV-4245, 1998 WL 34304660, at *3 (E.D.N.Y. 1998) (holding that because "Santobello did not address the inter-district binding force of a plea agreement . . . it [wa]s distinguishable from the present case and d[id] not assist . . . petition[er.]"); Farrell v. Inserra, No. 10-CV-434, 2011 WL 1870240, at *6 (N.D.N.Y. 2011) (Baxter, M.J.) ( "There is no Supreme Court precedent that extends [Santobello] . . . to a 'promise' allegedly made by the court with regard to a subject over which the court has no control.").
In Santobello, the prosecutor ignored the terms of a prior plea agreement and recommended a more severe sentence than was promised at the time the plea deal was struck. See generally Santobello, 404 U.S. at 257. The Supreme Court held that, where a guilty plea is induced by a promise by the prosecutor, that promise must be kept, or the defendant must be given the privilege to withdraw the plea. See generally id.
Second, even assuming that a promise by law enforcement officials could effectively bind prosecutors, the off-the-record promise "may not serve as [a] basis for federal habeas review." Gomez v. Duncan, No. 02-CV-0846, 2004 WL 119360, at *26, n.26 (S.D.N.Y. Jan. 27, 2004); compare Siegel v. New York, 691 F.2d 620, 626-27 (2d Cir. 1982) (concluding that neither New York law nor federal due process requires a prosecutor to fulfill off-the-record promise made in plea bargaining negotiations); White v. Keane, No. 00-CV-6202, 2001 WL 699053, at *3 (S.D.N.Y. Jun. 21, 2001) ("[I]t is well settled in this Circuit that federal due process does not require a state prosecutor to honor an off-record promise made in exchange for a plea"); People v. Hood, 62 N.Y.2d 863 (1984) ("[T]here is no basis for judicial recognition of a plea bargain until it is concluded by entry on the record"); People v. Frederick, 45 N.Y.2d 520 (1978) ("A defendant will not be heard to challenge his guilty plea when the minutes of the plea are unequivocal and refute any contention of an off-the- record promise."); People v. Selikoff, 35 N.Y.2d 227 (1974), with Williams v. Spitzer, 246 F. Supp. 2d 368, 382, n.12 (S.D.N.Y. 2003) (rejecting the Second Circuit's decision in Siegel and concluding that the New York "policy of refusing to enforce off-the-record prosecutorial promises is not permissible under the Supreme Court's decision in Santobello.").
Third, beyond pointing to his self-serving statements during sentencing, petitioner has not otherwise proffered evidence of an off-the-record cooperation agreement with either law enforcement or prosecutors. Rosario, 237 F. Supp. 2d 242 at 245. The sentencing judge did acknowledge petitioner was apparently cooperating with one agency, while another agency was responsible for the indictment against him. See generally Dkt. No. 16-1 at 31-44. However, Judge Herrick's acknowledgment of cooperation does not lead the court to conclude that petitioner's present argument is true. In fact, the record makes it extremely difficult, if not impossible, to conclude that the content of the alleged cooperation agreement was what petitioner presently asserts it to be. This is primarily because petitioner was specifically asked during his plea colloquy if any other promises were made in exchange for his guilty plea. Dkt. No. 16-1 at 24-25. Petitioner indicated that there were not any other promises made to him, failing to include any of the terms provided for in the presently disputed cooperation agreement. However, if petitioner was truly relying on the promise not to subsequently indict him—provided by law enforcement via the alleged cooperation agreement—petitioner did not present that reliance in writing or orally during his plea colloquy, after the alleged promise was purportedly breached by petitioner's indictment. Instead, and in the face of what petitioner contends to be a clear violation of said agreement, he elected to plead guilty.
Although there was no written agreement, the lack of such a writing is not necessarily dispositive. Aleman, 286 F.3d at 89 ("Interpretation of the alleged immunity agreement in this case is more difficult because it is oral. Courts have considered unwritten immunity agreements in the past."); Kourani, 2018 WL 1989583, at *3.
Petitioner's failure to share any of the information surrounding a purported cooperation agreement was recognized during the sentencing when Judge Herrick stated, "I think we're well beyond that because you did get indicted and you pled guilty to a B felony with no promises." Dkt. No. 16-1 at 38-39. Petitioner's failure is not only telling, but fatal to his due process claim. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.")
Based upon the foregoing, I recommend that petitioner's due process claim for habeas relief be denied.
E. Certificate of Appealability
To appeal a final order denying a request by a state prisoner for habeas relief, a petitioner must obtain from the court a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) ("[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a "substantial showing" if "the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks omitted).
A similar standard applies when a COA is sought to challenge the denial of a habeas petition on a procedural basis. See Slack v. McDaniel, 529 U.S. 473, 478 (2000) ("[A] COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.").
In this instance, I find that jurists of reason would not find it debatable as to whether the petition in this matter is meritorious. Accordingly, I recommend against the issuance of a COA.
IV. SUMMARY AND RECOMMENDATION
The petition in this matter raises two grounds for habeas relief, both of which, I conclude, have been exhausted. With regard to the first, alleging ineffective assistance of counsel, I find that by pleading guilty, petitioner waived the claim, and further find that the Third Department's determination rejecting that argument was neither contrary to nor an unreasonable application of clearly established Supreme Court law. Turning to petitioner's due process claim, I conclude that he has failed to satisfy his burden of demonstrating the existence of a binding, oral cooperation agreement under which he would not be prosecuted in connection with several potential charges against him, and additionally that his guilty plea effectively precludes him from pursuing that ground for habeas relief. Accordingly, it is hereby respectfully
RECOMMENDED that the petition (Dkt. No. 1) in this matter be DENIED and DISMISSED, and that a certificate of appealability not be issued to the petitioner.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: June 10, 2019
Syracuse, New York