Opinion
97-CV-0512 (NAM/GLS).
May 4, 2000
VICTOR F. MARZIALE, JR., Petitioner, Pro Se, Auburn Correctional Facility, Auburn, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York Department of Law, OF COUNSEL, Jeffrey M. Dvorin, Esq., Asst. Attorney General, Albany, New York, Attorney for Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed a habeas corpus petition and memorandum of law on April 14, 1997. Magistrate Judge Homer issued an Order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, ordering service of the petition on respondent and requiring service of an answer or other pleading by respondent. Respondent filed an answer, together with the pertinent state court records and a memorandum of law.
This case was reassigned to the undersigned on November 24, 1997. (Dkt. No. 10).
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 7).
Petitioner complains of a judgment of conviction rendered against him in Otsego County Court on July 29, 1991, following his plea of guilty to murder in the second degree. Pursuant to the plea agreement, petitioner was sentenced to an indeterminate term of fifteen years to life imprisonment.
The Appellate Division, Third Department, affirmed the conviction on April 20, 1992. People v. Marziale, 182 A.D.2d 1035, 583 N.Y.S.2d 36 (3rd Dep't 1992). Petitioner's application seeking leave to appeal to the New York Court of Appeals was denied by that Court on June 29, 1992. People v. Marziale, 80 N.Y.2d 835, 600 N.E.2d 646, 586 N.Y.S.2d 919 (1992).
On direct appeal, petitioner argued that:: 1) the plea allocution was insufficient; and, 2) that his motion to withdraw his plea should have been granted.
In his leave application, petitioner limited the question presented for the Court of Appeals review to whether he knowingly, voluntarily and intelligently waived his right to appeal.
Although petitioner claims to have filed a motion pursuant to Article 440 of the New York Criminal Procedure Law [hereinafter "CPL"], there is nothing in the record presented to this court confirming that such motion was ever filed.
Stacey Mattice, legal assistant for the Attorney General of the State of New York, submitted an affidavit documenting her efforts to locate a copy of this motion. (Dkt. No. 8).
In his petition, petitioner raises three grounds for habeas corpus relief. In Grounds One and Two, petitioner argues that he was deprived of effective assistance of counsel because: 1) his attorney coerced him into pleading guilty; and, 2) his attorney failed to raise an issue concerning the fact that fact petitioner had been questioned by investigators who were subsequently convicted of evidence tampering in unrelated cases. In Ground Three, petitioner argues that he was questioned by police investigators for eight hours without being informed of his Miranda rights. Petitioner raises two additional claims in his supporting memorandum of law. Petitioner argues that: (1) the plea allocution was insufficient; and, (2) the County Court erred by refusing to permit him to withdraw his plea.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Respondent seeks dismissal of the petition on the grounds that the petition is barred by the applicable statute of limitations. Alternatively, respondent argues that: 1) the petitioner waived his right to federal habeas corpus review as a result of his appeal waiver; 2) the petition is a "mixed" petition subject to dismissal pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); and, 3) the petitioner has procedurally defaulted on his third ground for relief as well as both claims raised in his memorandum of law.
For the following reasons, this court recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction resulted from an incident that occurred in Ithaca, New York, on January 28, 1991. On that date, petitioner murdered Robert Smith in Smith's home and then set the victim's body on fire.
Petitioner had been living with Smith's estranged wife. When Smith's wife informed petitioner that she intended to reconcile with Smith, petitioner went to Smith's home allegedly to talk with Smith. However, petitioner was armed with a knife and parked his car at a distance from Smith's house. In Smith's dining room, an altercation ensued between the two men whereupon petitioner stabbed Smith multiple times in the chest, back and throat. Petitioner then dragged Smith's body into the living room where he set it on fire. See Marziale, 182 A.D.2d at 1035, 583 N.Y.S.2d at 36.
The next day petitioner signed a written statement in which he admitted stabbing Smith several times and setting the body on fire. See Statement attached to Pet'r's Appellate Br., at A-4.
On May 31, 1991, petitioner pled guilty to murder in the second degree in satisfaction of all charges. On June 27, 1991, defense counsel requested that new counsel be assigned in light of the fact that petitioner wished to withdraw his plea alleging that counsel had misled him into pleading guilty. See Affirmation by Attorney Rothermel, attachment to Pet'r's Appellate Br., at A-9. New counsel was assigned. The court denied petitioner's motion to withdraw his plea, and on July 29, 1991, petitioner was sentenced in accordance with the plea agreement to fifteen years to life imprisonment.
2. Statute of Limitations
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. The AEDPA provides that an application for a writ of habeas corpus from a person in custody pursuant to a State court judgment must be filed within one year from the latest of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." AEDPA § 101, 28 U.S.C. § 2244(d)(1)(A) ("subsection (A)").
However, in Ross v. Artuz, 150 F.3d 97, 101 (2d Cir. 1998), the Second Circuit set forth a bright line rule providing prisoners whose convictions became final prior to the enactment of the AEDPA a one-year period after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255 motion. Petitioner's conviction became final on June 29, 1992, when he was denied permission to appeal to the New York Court of Appeals, or certainly no later than September 27, 1992, which marks the conclusion of the ninety days during which he could have sought certiorari in the United States Supreme Court. See Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of the Rules of the Supreme Court of the United States). Since petitioner's conviction became final before the effective date of the AEDPA, he was statutorily accorded until April 24, 1997, to file his habeas corpus petition. See Ross, 150 F.3d at 97. Petitioner's application was filed with the court on April 14, 1997, and thus, was filed timely.
3. Ineffective Assistance of Counsel
Petitioner argues that he was deprived of ineffective assistance of counsel because his attorney coerced him into pleading guilty. In support of his argument, petitioner claims that counsel misrepresented the strength of the People's case and told him that he would have "no chance at trial." See Pet., at 5.
Petitioner failed to exhaust his claim of ineffective assistance of counsel. Since petitioner's allegations of coercion and ineffective assistance of counsel are based upon facts outside the record, he would have had to litigate the issue in a post-conviction motion to vacate the judgment pursuant to C.P.L. Article 440. Petitioner made no such motion.
In his memorandum of law, petitioner refers to having made a motion based on newly discovered evidence. However, petitioner does not claim to have raised ineffective assistance of counsel in this motion. According to petitioner, the motion was made in February of 1993 after he learned that State Police Investigator Robert Lishansky was under Indictment in Tompkins County on charges of evidence tampering and perjury. Petitioner claims to have raised an issue concerning his having been questioned for eight hours without being advised of his Miranda rights. See Mem. of Law, at 2. As previously stated, respondent has been unable to unearth any evidence that such motion was ever filed. In any event, since petitioner does not claim to have argued that he received ineffective assistance of counsel based on coercion, the motion, even if filed, would not impact on this court's determination regarding petitioner's failure to exhaust Grounds One and Two.
Respondent urges this court to dismiss the entire petition because it is a "mixed petition" containing both exhausted and unexhausted claims. Although federal courts were required to dismiss "mixed petitions" prior to the adoption of the AEDPA, Rose, 455 U.S. 509, 102 S.Ct. 1198, the AEDPA now provides the court with discretion to deny, on the merits, habeas petitions containing unexhausted claims. 28 U.S.C. § 2254(b)(2), see also, Orraca v. Walker, 53 F. Supp.2d 605, 610 (S.D.N.Y. 1999).
This section provides that "an application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." 28 U.S.C. § 2254(b)(2).
Although the Second Circuit has not established what standard applies when determining whether to dismiss on the merits or require complete exhaustion, several district courts have considered whether the unexhausted claim is "patently frivolous." Id. at 610-611 (citations omitted). "Where the unexhausted claims are non-frivolous, the tendency is to adhere to the broad principles underlying the `total exhaustion' rule, and to dismiss the entire petition without prejudice." Heron v. People of the State of New York, 1999 WL 1125059, at *3 (S.D.N.Y. Dec. 8, 1999) (citations omitted). Since a review of the record in this case belies petitioner's claim of ineffective assistance of counsel, this court recommends that Grounds One and Two of the petition be denied on the merits.
Initially, this court finds that petitioner's allegations of coercion are unsupported and conclusory. Such allegations are insufficient to rebut the presumption of regularity. See e.g., Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991).
Furthermore, 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, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). Such a claim is sustainable only if counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, absent counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-688, 694, 104 S.Ct. at 2065, 2068; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Since this case involves a guilty plea, petitioner would have to show that, but for counsel's allegedly deficient performance, he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
The circumstances confronting 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, 106 S.Ct. at 370-371. Prior to petitioner pleading guilty in this case, defense counsel specifically informed the court that he had:
discussed the possible defense of self-defense, the psychiatric defense and possible constitutional issues that could be addressed in connection with his case, and we have discussed all of those and the possible sentences he's facing depending upon the different possible combinations of convictions that can come back. And after discussing all of that, we are in agreement to take the deal.
Plea Proceedings dated May 31, 1991 [hereinafter "Plea"], at 3.
The People informed the court that they intended to offer the petitioner's written statement in which he acknowledged that he stabbed the victim; evidence that the petitioner was in the area during the afternoon of the incident; the autopsy report which showed no evidence of defensive wounds and the presence of several fatal wounds; and a witness who was going to testify that the petitioner had previously told him that he was "giving thought to killing the victim." Plea, at 4-5; 8.
At the plea proceedings, petitioner admitted that he was armed with a knife when he went to the victim's house, allegedly to speak with him and "clear up any matters" between them. Plea, at 6-7. Petitioner stated that the victim came towards petitioner as petitioner started to leave, and that they wound up on the floor fighting. Petitioner told the court that he forgot what happened next, but that "the next thing he knew" the victim was dead. Plea, at 7. Petitioner testified that he knew he must have used the knife because it was out of its sheath and covered with blood. Petitioner admitted that he then set fire to the victim's home. Plea, at 9.
Finally, the court thoroughly explained the rights that the petitioner would be waiving by pleading guilty, including his right to appeal. Plea, at 9-14. The Court asked petitioner if anybody was forcing or threatening him to plead guilty to which the petitioner responded "no." The court inquired if petitioner was satisfied with his legal representation, and petitioner responded that he was. Plea, at 15. Petitioner pled guilty to murder in the second degree in exchange for the promised sentence of fifteen years to life imprisonment. This sentence is the minimum permissible by law for a class A-1 felony conviction.
After informing petitioner what an appeal is, and stating that the plea bargain agreement in his case included a waiver of appeal, the court stated as follows:
We want to have finality to this matter. We want to put an end to it. The courts have said that as part of the agreement to take a plea, that a defendant can waive a right to appeal provided that a waiver is a knowing, voluntary and intelligent waiver.
Now, I put on the record the sum and substance of my conversations with your lawyer and the District Attorney. Is there anything that I've just got through putting on the record, anything different that your lawyer told you? THE DEFENDANT: No, your Honor.
Plea, at 14.
The court informed petitioner that the maximum permissible sentence is twenty-five years to life imprisonment. Plea, at 13. The court also informed petitioner that there was no guarantee of release after serving fifteen years. Id.
Both the New York State Court of Appeals as well as the Second Circuit have upheld the validity of appeal waivers. See e.g., People v. Seaberg, 74 N.Y.2d 1, 541 N.E.2d 1022, 543 N.Y.S.2d 968, (1989); United States v. Salcido-Contreras, 990 F.2d 51 (2d Cir. 1993). Although a waiver of the right to appeal prevents a criminal defendant from appealing most issues, it does not preclude a challenge on the grounds that the plea was not knowingly, voluntarily or intelligently made. See e.g., Magee v. Romano, 799 F. Supp. 296, 299 (E.D.N.Y. 1992). "Where, as here, 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 attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct 1441, 1449, 25 L.Ed.2d 763 (1970)); see also, Bello v. People, 886 F. Supp. 1048 (W.D.N.Y. 1995) (a significant factor in determining whether the plea is voluntary is whether it was based upon advice of competent counsel).
A review of the plea minutes reveals that the petitioner knowingly and voluntarily pled guilty and waived his right to appeal. Petitioner informed the court that he was satisfied with the legal representation that he received. Counsel obtained a very favorable disposition in that petitioner's minimum sentence is ten years less than what he could have received. There is no evidence of coercion or inadequate representation. Petitioner was apprised of the evidence against him, and there is no suggestion that, but for any ineffectiveness on the part of his attorney, petitioner would not have pleaded guilty. As such, this court recommends that Ground One and Two of the petition be dismissed.
3. Exhaustion and Procedural Default
In Ground Three, petitioner argues that his statement and arrest were unlawful because he was questioned for eight hours by the police without being advised of his Miranda rights. Since petitioner did not raise this argument on direct appeal, it is unexhausted. Bossett v. Walker, 41 F.3d 825 (2d Cir. 1994). However, petitioner no longer has remedies available in state court with regard to this claim; thus, it is deemed exhausted but procedurally defaulted. Bossett, 41 F.3d at 828 (citing Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991)).
Federal courts may address the merits of a procedurally defaulted claim only upon a showing of cause for the default and prejudice to petitioner. Bossett, 41 F.3d at 829 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977)). Cause may be demonstrated if procedural default is a result of ineffective assistance of counsel. Bossett, 41 F.3d at 829 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). Petitioner does not argue in his petition that appellate counsel was ineffective for failing to raise the Miranda argument on direct appeal, nor did he present this claim to the state courts in a petition for a writ of error coram nobis. The exhaustion doctrine generally requires that a federal habeas corpus petitioner present an ineffective assistance of counsel claim to the state courts before it can be used to establish cause for procedural default. Murray, 477 U.S. at 489. However, even had the petitioner raised this argument, he would have been unable to satisfy the two prong test for constitutional error as set forth in Strickland, 466 U.S. 687. As such, this court recommends that Ground Three of the petition be denied.
To meet the first prong, petitioner would have had to demonstrate that his appellate attorney "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). There is, however, a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that such conduct was derived from trial strategy rather than error. Jackson, 162 F.3d at 85 (quoting Strickland, 466 U.S. at 689, 104 S.Ct at 2052). Furthermore, when reviewing counsel's conduct, courts are not to "second-guess" reasonable professional judgments. Id. (quoting Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed.2d 987 (1983)). In this case, petitioner had knowingly, voluntarily and intelligently agreed to waive his right to appeal, and thus, omission of any claim related to the Miranda issue was objectively reasonable.
In his supporting memorandum of law, petitioner argues that the plea allocution was insufficient, and that the trial court erred by failing to grant his motion to withdraw his plea. Petitioner presented these claims to the Appellate Division, Third Department on direct appeal. The Appellate Division held that appellate review of these issues was foreclosed because petitioner's waiver of appeal was knowingly, intelligently and voluntarily given. Marziale, 182 A.D.2d at 1036; 583 N.Y.S.2d at 37.
Petitioner claimed that the court failed to elicit that petitioner intended to cause the victim's death and as such, the plea failed to establish an essential element of murder in the second degree as defined in penal law § 125.25(1). Petitioner further claimed that the court failed to investigate petitioner's mental condition, "rendering it questionable whether appellant's plea was knowing and intelligently made."
In his application seeking leave to the Court of Appeals, petitioner limited the issue for which he sought review, and asked the Court of Appeals to "consider the same issued decided in the Appellate Division, namely, whether defendant `knowingly, voluntarily and intelligently' waived his right to appeal." See Letter dated May 14, 1992, by Attorney Michael Kernan. New York's procedural rules would plainly bar petitioner from now presenting these claims to the state's highest court as only one application for leave to appeal is permitted. N.Y. Court Rules § 500.10(a). As such, the claims raised in Grounds One and Two of petitioner's supporting memorandum are unexhausted but deemed procedurally defaulted. Since petitioner cannot establish cause for this procedural default, this court recommends that Grounds One and Two of the supporting memorandum be dismissed.
Since petitioner "`does not have a constitutional right to counsel to pursue discretionary state appeals . . . he could not be deprived of the effective assistance of counsel by his retained counsel's decision not to pursue certain arguments." Stewart v. Hanslmaier, 1996 WL 449285, at *3 (E.D.N.Y. July 29, 1996) (quoting Wainwright v. Torna, 455 U.S. 586, 587-588, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982) (other citations omitted)).
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.