Opinion
97-CV-0624 (FJS/GLS).
January 7, 2000
MIGUEL MARTINEZ, Petitioner, Pro Se, Elmira Correctional Facility, Elmira, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York, Attorney for Respondent, Department of Law, OF COUNSEL, STEPHEN H. SCHWARTZ, ESQ., KEITH E. KAMMERER, ESQ., Albany, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Frederick J. Scullin, Jr., United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the habeas corpus petition on May 5, 1997. Magistrate Judge David R. Homer issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent filed his answer, together with the pertinent state court records and a memorandum of law. (Dkt. No. 10). Petitioner filed a traverse on October 6, 1997. (Dkt. No. 11).
This case was reassigned to the undersigned on November 24, 1997. (Dkt. No. 12).
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 9).
Petitioner complains of judgments of conviction rendered against him in Onondaga County Court on February 19, 1991. Upon his pleas of guilty under three Indictments, petitioner was convicted of two counts of criminal possession of a controlled substance in the First Degree, three counts of criminal sale of a controlled substance in the Third Degree and three counts of criminal possession of a controlled substance in the Fourth Degree. Pursuant to the plea agreement, petitioner was sentenced to an aggregate indeterminate term of eighteen years to life imprisonment.
The Appellate Division, Fourth Department, affirmed the convictions in three separate Memoranda and Orders (labeled Appeal No. 1, 2 and 3), each dated November 18, 1992. People v. Martinez, 187 A.D.2d 992, 993, 590 N.Y.S.2d 952 (4th Dep't 1992). The New York Court of Appeals denied leave to appeal on March 9, 1993. People v. Martinez, 81 N.Y.2d 888, 889, 613 N.E.2d 982, 597 N.Y.S.2d 950 (1993).
On appeal, petitioner argued that his plea should be vacated because: 1) he received ineffective assistance of counsel; 2) his plea was not intelligently made; 3) the lower court erred in denying his suppression motion without a hearing; and, 4) the lower court erred in denying his motion pursuant to C.P.L. § 30.20 without a hearing. See Pet'r's Appellate Br. dated May 19, 1992.
This court was not provided with the petitioner's application seeking leave to appeal to the New York Court of Appeals nor the People's response to that application. Respondent has not alleged that the petitioner failed to exhaust certain claims by not presenting them to the New York Court of Appeals. This court presumes that the same issues raised before the Appellate Division were presented to the State's highest court. See, e.g., Lopez v. Warden, Sullivan Correctional Facility, 1998 WL 642725, at *2 (S.D.N.Y. Sept. 18, 1998) (Petitioner exhausted his claims by submitting a letter application and Appellate Division briefs to the New York Court of Appeals in a manner consistent with the requirements of that Court).
On March 19, 1993, petitioner moved to vacate the judgments pursuant to Article 440 of the New York Criminal Procedure Law (hereinafter "C.P.L."). The County Court denied the motion in a Decision/ Order dated April 20, 1993, and on June 10, 1993, the Appellate Division denied the petitioner's application seeking permission to appeal the County Court's decision.
Petitioner argued that: 1) the evidence presented to the grand jury did not conform with the Indictment and that the physical evidence had been tampered with (90-406); 2) the police lacked probable cause to search petitioner's residence when they only possessed an arrest warrant (90-724); 3) the evidence obtained during the illegal search should have been suppressed (90-724); and, 4) the search did not meet the requirements of state law and could not sustain convictions resulting in fifteen years to life imprisonment (90-1027).
The Court found Point One "senseless" in that it refers to evidence received at trial whereas the petitioner pled guilty; that petitioner makes unsubstantiated claims of tampering; that the propriety of the search was previously decided on direct appeal and is thus not a proper basis for a motion pursuant to C.P.L. § 440.10(2)(a); that petitioner fails to allege any facts relevant to his case for the ground alleged in Point Two; and that petitioner raises or could have raised on direct appeal all of the issues presented in Point Four. See Decision/Order (Mulroy, J.), dated April 20, 1993.
On August 6, 1993, petitioner filed a motion for a writ of error coram nobis in Onondaga County Court, alleging impropriety regarding lab reports submitted to the grand jury. The County Court denied the motion on October 26, 1993, and petitioner's request for permission to appeal was denied by the Appellate Division on March 10, 1994.
The County Court considered the motion as one made pursuant to C.P.L. 440.10 to vacate the conviction or, alternatively for a hearing. See Decision/Order, dated October 26, 1993.
Petitioner filed another motion to vacate the judgment pursuant to C.P.L. § 440.10 on April 28, 1994. On July 7, 1994, the County Court denied the motion, finding that all of the issues had been previously raised and addressed. On October 5, 1994, the Appellate Division denied the petitioner's request for permission to appeal the County Court's Order, and the New York Court of Appeals dismissed the petitioner's application seeking leave to appeal on the grounds that the order sought to be appealed is not appealable under C.P.L. § 450.90.
Petitioner claimed that he was denied a fair trial due to counsel's conflict of interest and prosecutorial misconduct. He argued that the Indictment was defective because it was not signed by the grand jury foreman and contained duplicitous counts. See Pet'r's Supp. Aff. dated April 28, 1994.
On November 15, 1994, petitioner filed another motion to vacate the judgment pursuant to C.P.L. § 440.10. On December 2, 1994, the County Court denied the motion finding that no issues were raised that could not have been raised in prior applications. On March 20, 1995, the Appellate Division denied the petitioner's request for permission to appeal the County Court's Order, and the Court of Appeals dismissed the petitioner's application seeking leave to appeal. The Court of Appeals denied the petitioner's motion for reconsideration on May 4, 1995.
In this motion, petitioner challenged the search warrant application process, arguing that his rights had been violated because the issuing judge failed to record or summarize information presented in support of the search warrant application. See Pet'r's Aff. Supp. of Mot. dated November 15, 1994.
Petitioner filed a petition for a writ of habeas corpus in New York State Supreme Court, Clinton County, challenging the legality of the search warrants. The Appellate Division affirmed Clinton County Court's denial of the petition agreeing that the petitioner's failure to raise the claims on direct appeal or by a motion pursuant to C.P.L. Article 440 warranted dismissal of the petition. People ex rel. Martinez v. Senkowski, 227 A.D.2d 751, 642 N.Y.S.2d 566 (3rd Dep't), leave to appeal denied, 88 N.Y.2d 809, 671 N.E.2d 1275, 648 N.Y.S.2d 878 (1996).
This court was not provided with the petitioner's state court habeas corpus papers.
On January 7, 1997, petitioner filed his last motion to vacate the judgment pursuant to C.P.L. § 440.10. In denying the motion, the County Court noted that the petitioner had based his argument on a "totally erroneous interpretation of C.P.L. § 210.10(5)(a)(1)." The Appellate Division denied the petitioner's application seeking permission to appeal on June 9, 1997.
Petitioner claimed that the court lacked jurisdiction to accept the plea and that counsel was ineffective for advising him to plead guilty to an A-1 Felony. Citing C.P.L. § 220.10(5)(a)(i), petitioner claimed that the guilty pleas entered to the top counts of Indictments 90-724 and 90-1027 (criminal possession of a controlled substance in the First Degree) were not authorized because they did not include a plea to an A-II Felony.
The Decision/Order is dated January 23, 1996, but it is the response to petitioner's January 6, 1997, motion.
The decision erroneously refers to C.P.L. § 210(5)(a)(1); the statute in question is actually C.P.L. § 220(5)(a)(1).
Petitioner raises Ten Grounds for habeas corpus relief in his application. Petitioner claims that: (1) he was denied effective assistance of counsel [90-724 and 90-1027]; (2) his pleas under Indictments 90-724 and 90-1027 were not intelligently made; (3) the trial court erred in denying without a hearing, his suppression motion [90-734] and (4) Speedy Trial motion [90-406]; (5) the charges contained in the Indictment did not conform with the evidence presented to the grand jury suggesting evidence tampering [90-406]; (6) the police improperly acted upon an arrest warrant to conduct an illegal search of the petitioner's home [90-734]; (7) the evidence obtained during the search should have been suppressed under the exclusionary rule [90-734]; (8) as a result of the illegal search, the petitioner's conviction and sentence of 15 years to life violated his rights under the Fourth and Fourteenth Amendments [90-1027]; (9) the evidence submitted to the grand jury did not meet state law requirements [90-406, 90-734, 90-1027]; and, (10) he was denied due process and equal protection by the court's failure to record or summarize information presented in support of the search warrant applications [90-724, 90-1027].
Respondent seeks dismissal of the petition on the grounds that the petitioner has failed to meet the current standard as set forth in 28 U.S.C. § 2254(d). Respondent also argues that Grounds One and Two fail on the merits; that Grounds Three, Four, Five and Nine are not cognizable for federal habeas corpus review; and that the petitioner has procedurally defaulted on the claims raised in Grounds Six, Eight, Nine and Ten.
This section provides that:
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
For the following reasons, this court agrees with respondent and recommends that the petition be denied and dismissed.
1. Facts
On May 8, 1990, Indictment 90-406 was returned, charging petitioner with various counts of possession and sale of cocaine. Petitioner had sold cocaine to an undercover officer on February 2, 1989, March 14, 1989, and April 7, 1989. On July 11, 1990, an arrest warrant was executed at the petitioner's home. Although petitioner was arrested on the first floor of the house, the police went upstairs looking for two other men they thought were living at that address and for whom they also had arrest warrants. They saw Jose Rodriguez-Delgado and Luis Reyes-Perez near an opening in the wall. Plastic bags containing a white powdery substance and a handgun were visible inside the wall. The three men were taken into custody and a search warrant was obtained for the house. See Decision/Order (Mulroy, J.), dated November 15, 1990. On August 17, 1990, Indictment 90-724 was returned charging the petitioner with possessing the cocaine and handgun which were recovered from his home on July 11, 1990.
Petitioner was charged with three counts of criminal sale of a controlled substance in the Third Degree, three counts of criminal possession of a controlled substance in the Third Degree, and three counts of criminal possession of a controlled substance in the Fourth Degree.
The Indictment charges the petitioner with possession of 456.45 grams of cocaine.
The court denied the petitioner's request to dismiss Indictment 90-406 on Speedy Trial grounds. Just prior to jury selection, the petitioner pled guilty to all counts in exchange for concurrent sentences of three to nine years incarceration. See Hr'g, Trial and Plea dated November 13 and 14, 1990 (hereinafter "Hr'g, Trial and Plea"), at 122-132. Petitioner was released on bail pending sentencing.
On November 15, 1990, the County Court denied the petitioner's motion to suppress the physical evidence seized from his home on July 11, 1990. On November 23, 1990, another search warrant was executed at the petitioner's home. Police recovered 57 ounces of cocaine, drug paraphernalia and a radio device to intercept police band transmissions. On December 11, 1990, the petitioner and three co-defendants were charged with possession of cocaine (Indictment 90-1027-2). On January 25, 1991, the petitioner pled guilty to the top counts of Indictment 90-734 and 90-1027 (criminal possession of a controlled substance in the First Degree) in exchange for concurrent sentences of fifteen years to life.
The charges included criminal possession of a controlled substance in the First and Third degrees; three counts of criminally using drug paraphernalia in the Second Degree; and, criminally possessing a hypodermic instrument.
Prior to sentencing, the petitioner requested permission to withdraw his pleas and to change his attorney claiming inadequate representation by counsel. See Letter dated February 9, 1991 (appended to Appellate Br.), and Sentencing Minutes dated February 19, 1991 (hereinafter "Sentence") at 3-5. The court denied petitioner's request and sentenced petitioner to concurrent terms of three to nine years for his convictions under Indictment 90-406, to run consecutive to two concurrent sentences of fifteen years to life for his convictions under Indictments 90-734 and 90-1027.
The basis for petitioner's request to withdraw his plea under Indictment 90-734 was that he believed a co-defendant had been granted re-argument on the suppression issue whereas the petitioner's motion had been denied without a hearing. Regarding Indictment 90-1027, petitioner stated that, when he pled guilty, he believed he could appeal issues related to the search warrant but subsequently learned that the issues were not preserved for appeal. See Sentence at 3-5. Petitioner made no comment regarding his pleas under Indictment 90-406.
2. Effective Assistance of Counsel
In Ground One, petitioner claims that he was denied effective assistance of counsel because his attorney represented the co-defendants named in Indictments 90-724 and 90-1027. Petitioner alleges that neither the court nor counsel alerted him to the perils of joint representation. This claim was raised on direct appeal and has thus been exhausted.
The Appellate Division held that the petitioner failed to demonstrate "that a significant possibility of a conflict of interest existed bearing a substantial relationship to the conduct of the defense." Martinez, 187 A.D.2d at 992, 590 N.Y.S.2d at 953.
"It is well established that the Sixth Amendment right to effective assistance of counsel carries with it a correlative right to representation that is free from conflicts of interest." Strouse v. Leonardo, 928 F.2d 548, 552 (2d Cir. 1991) (quotation omitted). However, multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (citing Holloway v. Arkansas, 455 U.S. 475, 478, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978)). In order to demonstrate a violation of one's Sixth Amendment rights, a defendant who has failed to object at trial must demonstrate that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 348, 349, 100 S.Ct. at 1718.
An actual conflict occurs when during the course of representation the attorney and the defendant's interests "diverge with respect to a material factual or legal issue or to a course of action." Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993) (citing Cuyler, 446 U.S. at 356 n. 3, 100 S.Ct. at 1722, n. 3). To establish adverse effect, a petitioner must establish that an "actual lapse in representation" resulted from the conflict. Id. at 309 (citing Cuyler, 446 U.S. at 336, 100 S.Ct at 1711). An actual lapse in representation can be established by proof that: 1) there existed an alternative defense strategy with sufficient substance to be a viable alternative; and, 2) that this defense strategy was "`inherently in conflict with or not undertaken due to the attorneys other loyalties or interest.'" Leka v. Portuondo, ___ F. Supp.2d ___, 1999 WL 1080621, at *28 (E.D.N Y Nov. 30, 1999) (quoting Winkler, 7 F.3d at 309).
Even if this court were to assume that an actual conflict existed, the petitioner has not established a lapse in his attorney's representation resulting from a conflict. Petitioner refers to his attorney's failure to file motions and failure to prepare a defense for the charges set forth in Indictments 90-724 and 90-1027, and the fact that his co-defendants received significantly less harsh sentences.
Counsel did file omnibus motions pertaining to Indictment 90-724 which included a motion to suppress. Once the suppression motion was denied, an acquittal after trial was unlikely. Petitioner has not set forth any viable alternative defense strategy nor established a lapse in representation resulting from the joint representation.
A large quantity of cocaine (456.45 grams) was found in petitioner's home.
The fact that counsel did not file a suppression motion on Indictment 90-1027 does not establish a lapse in representation resulting from a conflict of interest. Acting upon a search warrant, fifty-seven ounces of cocaine had been seized from the petitioner's home while he was released pending sentencing on his other felony convictions. If, in counsel's opinion, a challenge to the search warrant would have been unsuccessful, negotiation of concurrent sentences for two A-1 Felony convictions was an objectively reasonable strategy.
A copy of the search warrant and affidavits submitted in applying for the warrant is appended to the petition as Ex. G. Police Officers Hogan and Chapman describe their interactions with a confidential reliable informant who informed Hogan that the petitioner was in possession of large amounts of cocaine and that he (the C.R.I.) could purchase cocaine at 1819 South Avenue. In a controlled buy that took place on November 23, 1990, the C.R.I. purchased cocaine from the petitioner at 1819 South Avenue.
Nor has the petitioner established that more lenient sentencing for the co-defendants was unwarranted. Notably, when the petitioner pled guilty on Indictment 90-1027, he volunteered to the court that his co-defendants "didn't have nothing to do with the cocaine" and "didn't even know the cocaine was there." See Plea Minutes dated January 25, 1991 [hereinafter "Plea"], at p. 12. Assuming this information was truthful, lesser sentences would have been warranted. Since the petitioner has not set forth any alternative strategy with sufficient substance to be a viable alternative, or any "adverse effect" resulting from counsel's representation of the co-defendants on these Indictments, this Ground should be dismissed.
Petitioner also refused to admit that he acted in concert with the co-defendants charged in Indictment 90-724.
Finally, there is no merit to the petitioner's claim that constitutional error occurred as a result of the court failing to advise him of a potential conflict of interest. Although a state trial court must investigate timely objections to multiple representations, the Sixth Amendment does not require state courts "to initiate inquiries into the propriety of multiple representation in every case." Cuyler, 466 U.S. at 347, 100 S.Ct. at 1717. Absent special circumstances, "trial courts may assume that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist." Id. In any event, the record reveals that the subject of joint representation was addressed by the court and that petitioner and his co-defendants were aware of the joint representation. See Resp't Appellate Br. at 8-12.
3. Knowing and Intelligent Plea
In Ground Two, petitioner argues that the guilty pleas he entered to the top counts of Indictments 90-724 and 90-1027 were not intelligently made because he "never had knowledge of the criminal proceedings" and petitioner did not understand the charges against him. See Pet. at ¶ 11, p. 7. Petitioner claims that he pled guilty because counsel advised him that he would be released from prison within one year if he answered all of the court's questions affirmatively, and asserts that his pleas were induced by counsel's advice that he could win his case on appeal.
On direct appeal, the petitioner argued that his plea to Indictment 90-1027 was not intelligently made because he had been misinformed as to his right to appeal the suppression issues. The Appellate Division held that the petitioner's pleas were knowingly, voluntarily and intelligently made, and that nothing in the record suggests that the petitioner entered into the plea bargain agreement "for any reason other than his own best interests." Martinez, 187 A.D.2d at 992-993, 590 N.Y.S.2d at 953.
Appellate counsel highlighted the fact that the Court misinformed the petitioner as to his ability to raise suppression issues after pleading guilty. See Pet'r's Appellate Br. at 14. The County Court did incorrectly inform the petitioner that he would not give up his right to appeal any action by the police on any of these Indictments by pleading guilty. See Plea, at 8. Since the petitioner pled guilty to the top count of Indictment 90-1027 prior to making a suppression motion, under New York law he waived his right to judicial determination of any potential suppression issues. See C.P.L. § 710.70(3).
"The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct 160, 164, 27 L.Ed.2d 162 (1970)). Accordingly, a defendant must have "`real notice of the true nature of the charge against him,'" as well as a description of the critical elements of the offense such as intent. Panuccio v. Kelly, 927 F.2d 106,110 (2d Cir. 1991) (quoting Henderson v. Morgan, 426 U.S. 637, 645, 647, 96 S.Ct. 2253, 2257, 2258, 49 L.Ed.2d 108 (1976)). A plea is intelligently made if a defendant has the advice of counsel and understands the consequences of his plea, even if only in a rudimentary way. Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988). A guilty plea is voluntarily made where the plea "is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the sheer inability to weigh his options rationally. Id. (citing Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463,1470, 25 L.Ed.2d 747 (1970)).
A review of the transcript reveals that the court conducted a thorough plea colloquy in which it informed the petitioner of his absolute right to a trial by jury on either or both of the Indictments, to be represented by an attorney throughout the proceedings, and to make the District Attorney prove the charges beyond a reasonable doubt. The court explained that petitioner would not be required to take the stand or prove anything, and that by pleading guilty, he would give up the right to confront and cross-examine witnesses and to call witnesses on his behalf. The court stated that petitioner would not give up his right to appeal by pleading guilty. Petitioner responded that he understood his rights, and that no threats or inducements to plead guilty had been made other than his "appeal." Plea at 6-7. Prior to determining whether the petitioner could make a knowing and intelligent waiver of his rights, the court apprised the petitioner of the nature of the offenses, and the elements of the crimes to which he was pleading guilty. Plea at 8-13.
As noted, supra, n. 24, the court did not properly inform the petitioner that, by pleading guilty under Indictment 90-1027, he would waive his right to challenge the search warrant on appeal.
When a "defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorney's in criminal cases.'" Hill, 474 U.S. at 56, 106 S.Ct. at 369 (citation omitted). In this case, the petitioner had unsuccessfully sought to suppress the evidence pertaining to Indictment 90-734. As such, pleading guilty in exchange for the minimum permissible sentence was a voluntary and intelligent choice among the alternatives. Petitioner retained his right to appeal the adverse suppression decision.
If the petitioner had filed a motion challenging whether there was probable cause for a search warrant to be issued in connection with Indictment 90-1027, the offer of concurrent sentencing might have been foregone. Since consecutive sentences were permissible for the two A-1 Felonies, a recommendation by counsel to plead guilty in exchange for concurrent time was certainly within the range of competent advice.
For an A-1 Felony conviction, the range of permissible sentences is a minimum of fifteen years to life and a maximum of twenty-five years to life. N.Y. Pen. Law § 70.03(3)(a)(i).
Although not specifically phrased as such, the petitioner's argument concerning Indictment 90-1027 can be construed as a claim that his plea was unintelligent as a result of ineffective assistance of counsel. Even if this court were to assume that counsel misadvised the petitioner as to his right to appeal any search warrant issues pertaining to Indictment 90-1027, the petitioner's claim would fail. A claim of ineffective assistance of counsel arising out of the plea process is governed by the two-part standard set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct 2052, 2068, 80 L.Ed.2d 674 (1984). Hill, 474 U.S. at 57, 106 S.Ct. at 370. Petitioner must prove that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Hill, 474 U.S. at 57, 106 S.Ct. at 369; Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). In other words, the petitioner would have to establish that, but for counsel's allegedly deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Id. "[R]equiring a showing of "prejudice" from defendants who seek to challenge the validity of the guilty pleas on the ground of ineffective assistance of counsel will serve the finality of guilty pleas. Hill, 474 U.S. at 58, 106 S.Ct. at 370.
The record suggests that the petitioner wanted counsel to have filed the motion thereby preserving the issue for appeal before negotiating a plea in exchange for concurrent sentences. See Sentence at 5. Petitioner has not established that, had he been correctly informed that he could not challenge probable cause for the search warrant after pleading guilty, that he would have insisted on going to trial. The circumstances confronting the petitioner at the time he decided to plead guilty, including the evidence against him and the likelihood of success at trial, are relevant to the inquiry. Hill, 474 U.S. at 59-60. Petitioner sought to challenge the search warrant issued in connection with Indictment 90-1027 on the grounds that "the mere fact that an informant claims to have purchased narcotics out of the premises, without any showing whatever that there appeared to be additional narcotics at the premises, [. . .] is insufficient to support a proper request for a search warrant." See Sentence at 5-8. However, a review of the application reveals that a controlled buy took place prior to the application for and issuance of the warrant. Since the petitioner might have lost the favorable offer of concurrent sentences had a motion been made and denied by the court, it cannot be said that he would not have pled guilty had he not been misinformed about his right to challenge the warrant on appeal.
Based on the foregoing, this court finds that the petitioner's pleas of guilty in exchange for concurrent sentences for two A-1 Felonies were voluntary and intelligent choices among the alternative courses of action open to him. Panuccio, 927 F.2d at 110 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Petitioner does not claim that he is innocent of the charges but argues that "despite all the evidence and witness's [sic]", it was still the District Attorney's obligation to prove his guilt beyond a reasonable doubt. See Pet. at ¶ 11, p. 8. Based on the foregoing, this court recommends that Ground Two be dismissed.
4. Petitioner's Fourth Amendment Claims
In Ground Three, the petitioner claims that the County Court erred by denying his suppression motion pertaining to Indictment 90-724 without conducting an evidentiary hearing. He also submits that the suppression motion should have been granted. See Pet. at ¶ 12, p. 8-11. Reconsidering the issue on appeal, the Appellate Division upheld the County Court's summary denial of the suppression motion.
In its written Decision/Order, the County Court made the following findings of fact:
On July 11, 1990, police officers armed with arrest warrants for Defendant Miguel Martinez, Jr., and two other Hispanic men arrived at 1819 South Avenue, Syracuse, New York. The officers sighted Martinez at the public telephone but did not execute the warrant for his arrest until after he returned to his residence. The officers entered the premises and placed defendant Martinez under arrest in the first-floor living area where he was in the company of only women and children. Knowing that purchases of drugs had been made from other men believed to be living at the address, and also knowing that the upstairs area was used in narcotics trafficking, other officers went to the second floor to determine if either of the two men, also subjects of arrest warrants, were there. In doing so, they observed defendants Rodriguez-Delgado and Reyes-Perez next to an opening in the wall in which they could see clear plasic [sic] bags of white powdery substance and a handgun. The other two defendants were then taken into custody and the police secured a search warrant for the house.
The Court held that the police officers were justified in checking the second floor of the petitioner's house because: 1) they were entitled to make a protective sweep of the residence under Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990); and, 2) they possessed arrest warrants for two other individuals also believed to be living in the home. The County Court noted that the drugs were in plain view on the second floor and were seized only after a search warrant was obtained.
The Appellate Division found that:
[t]he evidence, consisting of cocaine and a handgun, was observed in plain view by the officers in the upstairs area of defendant's residence. We conclude that the officers were justified in entering that area to effectuate the arrest warrant because they had observed two men who were believed to be additional subjects of the arrest warrant, enter the defendant's residence. Additionally, the officers were justified in entering that area to conduct a limited protective sweep search because they possessed knowledge that there were other persons in the residence who might have posed a danger to those on the scene. (See, People v. Rivera, 172 A.D.2d 1059, 569 N.Y.S.2d 316, lv denied 78 N.Y.2d 973, 580 N.E.2d 425, 57 N.Y.S.2d 953 (1991); see also, Buie, 494 U.S. 325, 110 S.Ct. 1093). The officers thereafter secured a search warrant for the premises and seized the contraband upon execution of the warrant. Under the circumstances of this case, the officers' conduct was reasonable and proper. (See People v. Febus, 157 A.D.2d 380, 384-385, lv granted 76 N.Y.2d 898, 562 N.E.2d 885, 561 N.Y.S.2d 560 (1990), appeal dismissed 77 N.Y.2d 835, 568 N.E.2d 652, 567 N.Y.S.2d 2013 (1991).
Martinez, 187 A.D.2d at 993, 590 N.Y.S.2d at 953.
Petitioner alleges other violations of his Fourth Amendment rights in Ground Six (the search of his home was illegal because the police acted upon an arrest warrant); Ground Seven (the evidence obtained during the search should have been suppressed); Ground Eight (the convictions cannot be sustained under Indictment 90-1027 because the police failed to follow the requirements set forth in C.P.L. Article 690); and Ground Ten (the court's failure to record or summarize the information presented in support of the search warrant (Indictment 90-734 and 90-1027) denied the petitioner of due process and equal protection. See Pet. at ¶ 15, ¶ 16, ¶ 17 and ¶ 19.
Petitioner claims that no search warrant was issued in connection with Indictment 90-1027 (Pet. at ¶ 17). This is belied by the record, which contains a copy of the affidavits submitted in application for the warrant and a copy of the warrant signed by Judge Brian DeJoseph. See Pet., Ex. G.
Respondent argues that the claim raised in Ground Three involves solely a matter of state procedural law and is not cognizable for federal habeas corpus review; that petitioner procedurally defaulted on the claims raised in Grounds Six, Eight, and Ten; and that because the petitioner had a full and fair opportunity to litigate the claims raised in Grounds Six, Seven, Eight and Ten, they are unavailable for review in this proceeding.
Petitioner raised the claims set forth in Ground Six and Ground Eight in his post-conviction motion dated March 19, 1993. Regarding the claim set forth in Ground Six of the petition, the County Court held that: 1) the propriety of the search had already been decided on direct appeal; and, 2) petitioner failed to allege any relevant facts to support his claim. Regarding the claim set forth in Ground Eight of the petition, the County Court held that the petitioner either raised or could have raised all of the issues on direct appeal, and that petitioner misstated the facts.
Petitioner raised the claim set forth in Ground Ten of the petition in his post-conviction motion dated November 15, 1994. The County Court denied the motion finding that no issues were raised that could not have been raised on prior motions.
Prior to seeking relief in federal court, it is well settled that a petitioner must exhaust available state remedies or show that there is either an absence of available state remedies or that such remedies are ineffective to protect petitioner's rights. Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). Additionally, claims must be fairly presented so that the state court has the opportunity to decide any federal constitutional issues. Id. Finally, the substance of a petitioner's federal claims must be presented to the highest available court of the state. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994).
A review of the application and the petitioner's Appellate Brief reveals that no federal constitutional issue was raised in his claim of trial court error for failure to hold a suppression hearing. Appellate counsel's argument was based solely upon a violation of New York State procedural rules and case law. See Appellate Br. at 17-24. Petitioner claimed that the trial court, in finding that the police officers were justified in doing a "protective sweep", had improperly relied upon disputable facts which should have been resolved by sworn testimony. Petitioner did not argue that the facts that a protective sweep was unwarranted, given the facts as found by the court. Since the issue presented was whether the trial court erred under New York law by deciding the motion without holding a hearing to resolve disputed facts, habeas corpus relief is not available. 28 U.S.C. § 2254(a). This court recommends that Ground Three be dismissed.
A motion to suppress evidence is governed by the procedural requirements set forth in C.P.L. § 710.60. A pretrial motion to suppress evidence may be summarily denied if (a) the motion papers do not allege a ground constituting legal basis for the motion, or (b) the sworn allegations of fact do not as a matter of law support the ground alleged. See C.P.L. § 710.60(3). Appellate counsel argued that the Judge departed from the statutory intent of C.P.L. § 710.60(3)(a) by "applying the People's allegations or presumed allegations of fact, many of them conclusory, to controvert and defeat the motion." See Appellate Br. at 20.
Petitioner cited Buie, 494 U.S. 325, 110 S.Ct. 1093, only when referring to a "protective sweep," and was not part of an argument that the court's failure to hold a hearing constituted a federal constitutional due process violation. See Pet'r's Appellate Br. at 21-22. Cf. Roberts v. Scully, 1992 WL 147914, at *5 (S.D.N.Y. June 17, 1992) (Petitioner cited Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1191 (1967), not in reference to a federal constitutional due process claim but to demonstrate he had a valid legal ground for suppression).
This court agrees that the petitioner has procedurally defaulted on the claims raised in Grounds Six, Eight and Ten. Federal habeas review is barred where a state court has rejected federal claims as defaulted pursuant to an independent and adequate state procedural rule. If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995).
Though Grounds Six, Eight and Ten were raised in post-conviction motions to vacate the judgment, the County Court ruled that the claims either had, or could have been, decided on direct appeal and the Appellate Division denied leave to appeal. The County Court's holding constitutes a statement of procedural default under state law. See e.g., Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir. 1989). Since the last state court to consider these claims "clearly and expressly" relied upon a state procedural bar, these claims are procedurally defaulted pursuant to independent and adequate state grounds. Coleman v. Thompson, 501 U.S. 722, 729-730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); Levine, 44 F.3d at 126.
See Decision/Order, dated April 20, 1993 (Mulroy, J.), and Decision/Order, dated December 2, 1994 (Mulroy, J.). See also, People ex rel. Martinez v. Senkowski, 227 A.D.2d 751, 642 N.Y.S.2d 566 (3d Dept. 1996), leave to appeal denied, 88 N.Y.2d 809, 671 N.E.2d 1275, 648 N.Y.S.2d 878 (1996) (The Appellate Division held that the petitioner's state habeas corpus petition in which he raised a claim that corresponds to Ground Ten of the petition had been properly dismissed by the Supreme Court "inasmuch as petition failed to raise these claims on direct appeal or by motion pursuant to C.P.L. Article 440.")
The fact that the County Court also found that petitioner's arguments lacked merit does not affect the outcome. Federal habeas corpus review is "foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of a federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
An exception exists if a petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman, 501 U.S. at 750, 111 S.Ct. at 2565, or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-2650, 91 L.Ed.2d 397 (1986). Since petitioner failed to show cause for his procedural default, and the state court records do not suggest that he is actually innocent, it is unnecessary for this court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985).
Moreover, even if these claims were not procedurally barred, habeas corpus relief would be unavailable. Where state law affords a state prisoner an opportunity for full and fair litigation of a Fourth Amendment challenge, federal habeas corpus review of that claim is curtailed. Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976). In defining a "full and fair opportunity," the Second Circuit has held that Fourth Amendment claims are reviewable on a habeas petition only when 1) the state has failed to provide corrective procedures to redress the alleged violations; or 2) the defendant was precluded from using procedures provided by the state due to an unconscionable breakdown in the underlying process. Cappellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Gates, 568 F.2d 830, 836-837 (2d Cir. 1977) (en banc).
New York's procedure for litigating Fourth Amendment claims (N Y Crim. Pro. Law § 710) has been approved by federal courts in this circuit. Gates v. Henderson, 568 F.2d at 837 and n. 4; Taylor v. Kuhlman, 36 F. Supp.2d 534, 549 (E.D.N.Y. 1999). Petitioner's suppression claims regarding Indictment 90-724 were addressed by both the trial court and Appellate Division. A corrective procedure was provided and utilized by the petitioner, and the trial court's denial of the motion without a hearing did not constitute an unconscionable breakdown in that procedure. See e.g., Defio v. Henderson, 935 F. Supp. 180, 182 (N.D.N.Y. 1996).
A determination of a factual issue made by a State court shall be presumed to be correct and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also, Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982).
Nor was the petitioner deprived of a full and fair opportunity to litigate whether there was probable cause for the warrant issued in relation to Indictment 90-1027. As previously discussed, negotiating concurrent sentences rather than pursue a challenge to the search warrant was an objectively reasonable strategic choice.
Petitioner has failed to establish that "no state court conducted a `reasoned method of inquiry into relevant questions of fact and law' or any inquiry at all into the Fourth Amendment claim." Taylor, 36 F. Supp.2d at 549 (citations omitted). The state provided corrective procedures for litigating Fourth Amendment claims and there was no unconscionable breakdown in that process. Thus, Grounds Three, Six, Seven, Eight and Ten should be dismissed.
5. Speedy Trial
In his Fourth Ground for relief, petitioner argues that the trial court erred by denying his C.P.L. § 30.20 motion without a hearing. Respondent argues that the Ground should be dismissed because petitioner only raises a state procedural issue, i.e. whether a hearing should have been held. However, on direct appeal and in the petition, petitioner argues that the Speedy Trial motion was both "wrongly and wrongfully" decided. See Pet. at ¶ 13, p. 13.
On appeal, counsel referred to a violation of the petitioner's Sixth and Fourteenth Amendment rights but arguably limited the claim to a due process error under the New York Constitution. See Appellate Br. at 26, 29. (Referring specifically to Article 1, Section 6 of the New York Constitution, counsel noted that New York's due process requirement of a prompt prosecution "is broader than the speedy trial guarantee of the Sixth Amendment"). Criminal Procedure Law § 30.20, however, embodies the federal constitutional right to a Speedy Trial. Woodard v. Berry, 1992 WL 106508, at *2 (E.D.N.Y. April 24, 1992).
After oral argument, the trial court set forth in detail its reasons for denying the motion under People v. Taranovich, 37 N.Y.2d 442, 445, 335 N.E.2d 303, 373 N.Y.S.2d 79 (1975). See Hr'g, Trial and Plea, at 91-96. Reconsidering the issue on appeal, the Appellate Division rejected the petitioner's Speedy Trial claim.
The Appellate Division also evaluated the circumstances of the case in light of the five factors identified by the New York Court of Appeals in Taranovich, 37 N.Y.2d 442, 335 N.E.2d 303, 373 N.Y.S.2d 79. The court found no merit to the petitioner's claim that his constitutional right to a Speedy Trial had been violated as a result of pre-indictment delay. Martinez, 187 A.D.2d 992, 590 N.Y.S.2d 952 (1992). The Court noted that
[a]lthough 15 months elapsed between the date of the first drug sale which is a subject of the Indictment, and the date that defendant was indicted, the delay was attributable to the existence of an ongoing undercover drug investigation and the threat to those involved in the investigation if defendant were immediately arrested. Moreover, there was no extended pretrial incarceration of defendant and the crimes that the defendant was charged with were serious in nature. Finally, counsel's conclusory allegations that defense witnesses might be unavailable to testify failed to show that the defense was prejudiced by pre-indictment delay (citations omitted).
New York Criminal Procedure Law § 210.45 provides that, under certain circumstances, motions to dismiss an Indictment pursuant to C.P.L. § 210.20, may be denied without a hearing. See C.P.L. § 210.45(5). Since the court's decision to render a decision without holding a hearing is purely a matter of state law, habeas corpus review on this aspect of the petitioner's claim is not available. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479, 116 L.Ed.2d 385 (1991) (citations omitted).
Included within this Section are motions to dismiss the Indictment on Speedy Trial grounds. See C.P.L. § 210.20(g).
The court may deny the motion without a hearing if (a) the moving papers do not allege any ground constituting legal basis for the motion pursuant to Section 210.20(1); (b) the motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all of the essential facts; or (c) an allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof. C.P.L. § 210.45(5)(a)-(c).
To the extent that the petitioner claims that he was denied his Sixth Amendment right to a Speedy Trial, this claim lacks merit. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court identified four factors which a court must consider in determining whether a defendant was denied his right to a Speedy Trial: (1) length of delay; (2) the reason for the delay; 3) the defendant's assertion of his right; and, (4) prejudice to the defendant. Id. at 530, 92 S.Ct at 2192. However, until there is some delay which is "presumptively prejudicial," there is no necessity for inquiry into the other factors that go into the balance. Id.
In this case, fifteen months elapsed between the date of the first drug sale and the return of the indictment. The Appellate Division found that the delay was attributable to the fact that police were conducting an ongoing undercover drug investigation and that the petitioner's immediate arrest would have threatened the safety of those involved. Martinez, 187 A.D.2d at 992, 590 N.Y.S.2d at 952. There was no extended period of pretrial incarceration, and the petitioner was charged with serious crimes. Id. Furthermore, the court concluded that the petitioner's allegations of prejudice were conclusory. Balancing the Barker v. Wingo factors, this court concludes that the petitioner was not deprived of his Sixth Amendment right to a Speedy Trial and recommends that Ground Four of the petition be dismissed.
Petitioner alleged that defense witnesses might be unavailable to testify. Id.
5. Grand Jury Proceedings and Allegations of Evidence Tampering
In Ground Five, petitioner claims that the evidence presented to the grand jury concerning Indictment 90-406 did not conform to the Indictment because Police Investigator Wiegand's affidavit referred to four sales of cocaine whereas the Indictment only charged three sales. See Pet. at ¶ 14. Petitioner claims that this discrepancy proves that Wiegand "pocket[ed] a sale." Id.
In his motion dated March 19, 1993, petitioner argued that Wiegand tampered with the evidence because the evidence bag had been taped rather than heat sealed. See Mot. at 6. The County Court found the petitioner's allegations of tampering unsubstantiated. This court agrees. A review of the record reveals that the petitioner was informed that the bag had been taped because the heat-sealing equipment had malfunctioned. See Hr'g, Trial and Plea, at 135-136. Significantly, counsel informed the petitioner that this could lead to a collateral attack of the chemist's testimony and although petitioner understood that option was available as a trial strategy, he still decided to plead guilty. See Id. at 136. The rest of the petitioner's argument concerned Wiegand's prior contradictory statement and whether it could be received at trial for purposes of impeaching his credibility. Since petitioner pled guilty prior to trial, the County Court concluded that this part of the petitioner's motion was "senseless." See Decision/Order dated April 20, 1993.
It is settled law that 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. "He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973); United States v. Coffin, 76 F.3d 494, 497-98 (2d Cir. 1996). The issue is "not the merits of these [independent] claims as such but rather whether the guilty plea had been made intelligently and voluntarily with the advice of competent counsel." Tollett, 411 U.S. at 265, 93 S.Ct. at 1607; Coffin, 76 F.3d at at 498.
A review of the transcript reveals that the court conducted a thorough plea colloquy concerning Indictment 90-406. See Hr'g, Trial and Plea, at 122-136. The agreed upon three to nine year concurrent sentences was an objectively favorable outcome. Significantly, petitioner never moved to withdraw the pleas entered under this Indictment. By knowingly, voluntarily and intelligently pleading guilty to Indictment 90-406, petitioner waived any challenge to the sufficiency of the grand jury proceedings. See e.g., Hogan v. Ward, 998 F. Supp. 290, 294 (W.D.N.Y. 1998) (A petitioner who fails to demonstrate that his guilty plea was entered involuntarily as a result of advice from incompetent counsel may not assert independent habeas claims relating to events occurring prior to the entry of the plea.).
In Ground Nine, petitioner alleges that the lab reports submitted to the grand jury as evidence concerning Indictments 90-724 and 90-1027 failed to meet the requirements of Criminal Procedure Law § 190.30(2) as they were not "stamped" by the grand jury. See Pet. at ¶ 18, p. 16. Petitioner presented this argument to the state courts in his post-conviction motion dated August 6, 1993. The County Court denied the motion finding no evidence to support the claim, and noting that such claim could have been made part of the petitioner's direct appeal or prior Article 440 motion.
New York Criminal Procedure Law § 190.30(2) provides rules of evidence governing grand jury proceedings. As a matter of state law, it is not reviewable on a petition for federal habeas corpus. Hogan, 998 F. Supp. at 294. Moreover, even if it were reviewable, the state court rejected the petitioner's claim on state procedural grounds, and it is thus barred from review due to independent and adequate state grounds. Arce, 889 F.2d 1271; Velasquez, 898 F.2d 7.
As such, this court recommends that Ground Nine be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN DAYS within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review. It is further
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.