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holding that because section 440.10(b) was discretionary, the court was not prepared to hold that petitioner could not return to file a second section 440.10 motion
Summary of this case from Borcyk v. LempkeOpinion
02 Civ. 7319 (LBS).
October 27, 2005.
MEMORANDUM AND ORDER
Petitioner Ramon Reyes ("Petitioner") filed the above-captioned habeas petition pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the writ is denied and the petition is dismissed.
I. Background
Based on a police investigation of narcotics trafficking in Upper Manhattan, Petitioner was arrested on August 22, 1995 and charged by indictment with, inter alia, conspiracy, second-degree murder, attempted murder, assault, and several weapons violations.
On April 16, 1996, Petitioner entered into a written cooperation agreement with the New York County District Attorney, the terms of which required Petitioner to plead guilty to second-degree conspiracy, second-degree murder, and second-degree attempted murder, charges which carried a maximum sentence of 41 2/3 years to life imprisonment. At the plea proceedings on April 19, 1996, the state court judge explained to Petitioner that if the District Attorney decided that Petitioner had fully satisfied the terms of the cooperation agreement, Petitioner would be permitted, first, to strike his plea to the attempted murder charge and, second, to replead under the murder charge to first-degree manslaughter. These revised charges would yield an aggregate minimum sentence of as few as 14 1/3 years and an aggregate maximum of 43 years. (Resp. Pre-App. Ex. 1 at 9-10). With this understanding, Petitioner then admitted to conspiring to distribute narcotics, intentionally murdering one person, and ordering the murder of another.
At post-plea proceedings on July 16, 1996, the trial judge granted Petitioner's motion for reassignment of counsel, even though she opined that Petitioner's assertion that his counsel was not rendering effective assistance was "utterly baseless." (Resp. Pre-App. Ex. 2 at 5). Three days later, Petitioner's new counsel, Robert Burns, appeared before the court, and was told by the judge to "file anything you want" on Petitioner's behalf. (Resp. Pre-App. Ex. 3 at 2).
On July 30, 1996, Petitioner and Burns appeared before the court for sentencing. At the hearing, the prosecutor explained that the District Attorney's Office had determined that Petitioner had not fulfilled his obligations under the cooperation agreement, and asked that Petitioner be given the maximum authorized sentence for each count to which Petitioner had pled guilty. The court imposed the maximum sentence: 41 2/3 years to life. (Resp. Pre-App. Ex. 4 at 18). Petitioner was also sentenced to an additional 30 days and a $1,000 fine for summary contempt, due to a prolonged outburst. (Resp. Pre-App. Ex. 4 at 18-19).
Petitioner appealed his conviction and sentence to the New York State Appellate Division, arguing that: (1) he was denied his Sixth Amendment right to effective assistance of counsel based on his counsel's failure, first, to join in the pro se motion to withdraw his plea and, second, to request a hearing on whether Petitioner violated the cooperation agreement; (2) the trial court violated his due process rights by summarily denying his motion to withdraw his guilty plea; (3) the trial court violated his due process rights by failing to hold a hearing before accepting the prosecution's determination that he violated the cooperation agreement; and (4) the sentence imposed by the trial court was "unduly harsh and excessive." (Resp. Pre-App. Ex. 7 at 1-2).
The Appellate Division unanimously affirmed Petitioner's conviction and sentence. People v. Reyes, 710 N.Y.S.2d 887 (1st Dep't. 2000). However, it stated that it could not review the portion of Petitioner's ineffectiveness claim dealing with his counsel's failure to join in a pro se motion to withdraw Petitioner's guilty plea because the record did not establish that such a motion had actually been made. Id. at 887. The New York Court of Appeals denied Petitioner leave to appeal. People v. Reyes, 96 N.Y.2d 941 (N.Y. 2001).
Petitioner filed a habeas petition in this Court on September 10, 2002. The petition contained the same claims as those raised in state court, except that the last claim was restyled as an Eighth Amendment violation. In a Memorandum and Order dated January 6, 2003, familiarity with which is assumed, this Court found that Petitioner both had not fairly presented his Eighth Amendment claim to the state courts and had not exhausted the part of his Sixth Amendment claim based on the plea withdrawal motion. Reyes v. Phillips, 02 Civ. 7319, 2003 WL 42009 (S.D.N.Y. Jan. 6, 2003). This Court dismissed those claims as unexhausted and stayed the remainder of the petition, affording Petitioner an opportunity to return to state court to exhaust the unexhausted claims. Id. at *5.
Although Petitioner did then present these unexhausted claims in New York State Supreme Court pursuant to New York Criminal Procedure Law § 440, People v. Reyes, No. 10433/95, 2004 WL 2812887 (N.Y.Sup.Ct. Aug. 16, 2004), he did not appeal their denial to the Appellate Division before requesting termination of the stay and renewal of the petition. In a Memorandum and Order dated September 6, 2005, familiarity with which is also assumed, this Court determined that Petitioner's renewed petition continued to contain the same unexhausted claims, and that the petition would be dismissed without prejudice as "mixed" unless Petitioner chose to delete the unexhausted claims and proceed on the exhausted claims only. Reyes v. Phillips, 02 Civ. 7319, 2005 WL 2173812 (S.D.N.Y. Sept. 6, 2005). Petitioner chose the latter option, and so presents only three claims here.
II. Discussion
A. Standard of Review
This petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under that Act, this Court may not grant Petitioner habeas relief on any claim adjudicated on the merits by a state court unless that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A state decision is "contrary" to clearly established federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Alternatively, a state decision involves an "unreasonable application" of Supreme Court law where the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
Claims that have not been adjudicated on the merits in the state courts are reviewed according to pre-AEDPA standards, where "pure questions of law and mixed questions of law and fact were reviewed de novo." Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001). A state court has not adjudicated a claim on the merits until it has "(1) dispose[d] of the claim `on the merits,' and (2) reduce[d] its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
B. Ineffective Assistance of Counsel
Petitioner first contends that he was denied effective assistance of counsel during his sentencing in violation of his rights under the Sixth Amendment. The general thrust of his claim is that his counsel "was more concerned about offending the court or the district attorney than in protecting [Petitioner's] rights," resulting in representation so "nominal" that Petitioner was essentially without counsel at this critical stage. (Amended Petition for Writ of Habeas Corpus ("Pet.") ¶¶ 28, 30).
In the state courts, the only instance of ineffectiveness that Petitioner presented to support this general assertion was his counsel's failure to request a hearing on whether Petitioner violated the cooperation agreement. This claim was exhausted on the merits. See Reyes, 710 N.Y.S.2d at 887-88 ("Based on the record before us, we find that the defendant was provided with meaningful representation."), leave to appeal denied by 96 N.Y.2d 941 (N.Y. 2001). In his habeas petition, however, Petitioner also raises, although does not specifically enumerate, two additional instances of alleged ineffectiveness. First, he points to the fact that his lawyer proffered no response to the "hostile rather than objective" report the Director of the Disabled Defendant's Project related to the court at sentencing.Id. ¶ 15. Second, he indicates his lawyer's silence when the court requested a response before sentencing Petitioner for summary contempt. Id. ¶ 19.
Here we exclude Petitioner's past allegation of ineffectiveness based on his counsel's failure to join in the pro se plea withdrawal motion because Petitioner did not present the state court with any record that such a motion had ever been made. See Reyes, 710 N.Y.S.2d at 887 ("Defendant's claim that he was denied effective assistance of counsel when his attorney failed to join in his purported pro se motion to withdraw his plea cannot be reviewed on this appeal since it is based on facts dehors the record.").
Clearly these two claims have not been exhausted. See N.Y. Crim. Proc. Law § 440.10(1)(h). Furthermore, because a "claim of ineffective assistance of counsel can turn on the cumulative effect of all of counsel's actions," Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991), these additional allegations render the entire Sixth Amendment claim unexhausted and the petition mixed. See Sanford v. Senkowski, 791 F. Supp. 66, 69 (E.D.N.Y. 1992).
Faced once again with a mixed petition in this case, this Court concludes, for the same reasons explained in our September 6, 2005 Memorandum and Order, that neither a stay nor dismissal of the petition is appropriate here. See Reyes, 2005 WL 2173812, at *7-8. After reviewing the record, this Court has determined that Petitioner's ineffectiveness claim does not warrant habeas relief and so the Court will exercise the discretion afforded under § 2254(b)(2) and deny the claim on the merits.
Section 2254(b)(2) provides: "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). It should be emphasized that a federal court can only take advantage of this provision where, as here, no claims in the application merit habeas relief.
As this amalgam of instances of alleged ineffectiveness has not been presented in the state courts, there has been no adjudication on the merits of this claim and this Court thus reviews de novo. See Washington, 255 F.3d at 55; see also Morales v. Greiner, No. CV-98-6284, 2005 WL 1009545, at *5 (E.D.N.Y. 2005).
The Supreme Court announced the standard for showing ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under Strickland, Petitioner must (1) show that counsel's performance "fell below an objective standard of reasonableness," and (2) "affirmatively prove prejudice," that is, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-89, 693-94; see also Hill v. Lockhart, 474 U.S. 52, 59 (1985) (to show prejudice in context of a guilty plea, petitioner must demonstrate that "counsel's constitutionally ineffective performance affected the outcome of the plea process").
In his petition, Petitioner makes a general assertion that his counsel's performance was so minimal as to constitute a "structural defect" from which "[p]rejudice is presumed." (Pet. ¶ 23). This contention is frivolous. In the context of an ineffective assistance claim, prejudice is presumed only where a lawyer's conduct was so deficient he could not be said to have been functioning as "counsel" within the meaning of the Sixth Amendment. See United States v. Cronic, 466 U.S. 648, 656-62 (1984). Here, however, the record demonstrates that counsel, who had reviewed the plea minutes, the transcript of the allocution, and the cooperation agreement itself, made informed, tactical decisions, such that it cannot reasonably be argued that Petitioner was altogether denied the counsel to which the Sixth Amendment entitles him.
Petitioner first argues that he was denied effective assistance of counsel by his lawyer's failure to request a hearing on the issue of whether Petitioner did in fact fail to cooperate and so breach the plea agreement. (Pet. ¶ 26). This omission does not justify relief under Strickland. As explained in Part II.D. infra, Petitioner had no right to such a hearing. Consequently, his counsel's failure to request one comes nowhere near rendering his performance objectively unreasonable, per the first prong ofStrickland, and there is no need to examine whether Petitioner can show prejudice.
Next, Petitioner maintains that his counsel was ineffective for failing to respond to the report given by Hilel Bodek, the Director of the Disabled Defendant's Project, on the medical care provided to Petitioner in prison. Petitioner complains that Bodek "far exceeded his authority" in, for instance, reporting to the court that Petitioner and his family had made threats to civilian witnesses. Id. ¶ 15. However, Bodek made this comment in the context of giving the reasons why Petitioner was placed in lock down and how that situation complicated efforts to provide him with adequate medical care. (Resp. Pre-App. Ex. 4 at 3). In fact, looking at Bodek's report as a whole, the comments of which Petitioner complains were not gratuitously "hostile," but were made in order to illustrate the difficulties of providing Petitioner with adequate treatment. In this way, regardless of whether Petitioner actually did at the time "dispute the accuracy of these opinions and statements," Petitioner's counsel could very well have decided that it was less damaging to Petitioner's case, and thus a wiser legal strategy, not to pursue the auxiliary issue of how well Petitioner complied with his medical treatment, especially if such a diversion ran the risk of portraying Petitioner in a worse light to the court. (Pet. ¶ 15). Thus, it cannot be said that in remaining silent, the performance of Petitioner's counsel was objectively unreasonable. In addition, it appears that the trial court relied only minimally at most on Bodek's report in sentencing Petitioner, foreclosing any argument that Petitioner was prejudiced by his counsel's silence. Because Petitioner cannot satisfy either part of theStrickland test here, then, there was no constitutional violation occasioned by his counsel's failure to respond.
Finally, Petitioner finds ineffectiveness in the fact that his lawyer remained silent when the trial judge asked him if he had anything to say before Petitioner was sentenced for summary contempt. This omission similarly fails to satisfy the Strickland test. Even assuming arguendo that counsel's silence was objectively unreasonable, thus satisfying the first prong of Strickland, this claim easily fails on the second prong. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). First of all, considering that before his outburst, Petitioner had already been sentenced to the crimes to which he had pled guilty, nothing Petitioner's counsel could have said at this point would have changed the outcome of the completed sentencing. Furthermore, after the extremely profane language Petitioner had just used towards the judge, there cannot be said to have been a reasonable probability that any action taken by Petitioner's counsel at this point would have changed the result of the summary contempt sentencing.
In sum, because Petitioner has not shown any instances of ineffectiveness that, when considered individually or cumulatively, call for relief under Strickland, this Court denies Petitioner's Sixth Amendment claim on the merits.
C. Summary Denial of Motion to Withdraw Guilty Plea
Petitioner's second claim is that his due process rights under the Fourteenth Amendment were violated by the trial court's summary denial of his pro se motion to withdraw his guilty plea. The Appellate Division was not able to review this claim, since the appellate record did "not establish the grounds of the motion, or even that there was such a motion pending before the court at the time of sentencing." Id. at 887. Although this due process claim is based on the same alleged pro se motion as the Sixth Amendment claim which was deleted from the petition for failure to exhaust, this Court, in its Memorandum and Order dated September 6, 2005, did not instruct Petitioner that the due process claim as well should be deleted from the petition as unexhausted. However, since it is clear that Petitioner is not entitled to relief on this claim, this Court will deny the claim on the merits. See 28 U.S.C. § 2254(b)(2).
Because of the ambiguities concerning whether this motion was actually made by Petitioner and ruled on by the trial judge, this Court will assume, arguendo, that the motion was made and denied in the trial court, and proceed here to review the merits of the claim de novo.
Although we proceed directly to the merits of Petitioner's constitutional claim, it should be noted that this Court also cannot find any evidence that Petitioner ever made a pro se motion to withdraw his guilty plea, whether orally or in writing. The record shows that on April 19, 1996, Petitioner allocuted before the trial judge, voluntarily admitting his participation in a narcotics conspiracy, as well as his role in the murder of one person and the attempted murder of another. (Resp. Pre-App. Ex. 1 at 2-9, 12, 14-15, 17). Subsequently, on June 24, 1996, Petitioner made a pro se motion seeking new counsel due to his "complete lack of confidence . . . in his counsel's ability to represent him vigorously," as exemplified by his lawyer's alleged failure "to visit [Petitioner] at his place of confinement and discuss the instant case at length"; "to inform [Petitioner] of any pertinent motions made"; and to "conduct an investigation . . . [or] request that a private investigator be assigned." (Resp. Pre-App. Ex. 6 at 3, ¶ 6[I]).
On July 16, 1996, the attorney then representing Petitioner, Howard Jaffe, requested to withdraw as counsel, a move he believed necessary due both to Petitioner's pro se motion for reassignment of counsel, as well as Petitioner's desire to bring "other motions in which [Jaffe felt he could not] possibly effectively represent" Petitioner. (Resp. Pre-App. Ex. 2 at 2). More specifically, Jaffe stated that Petitioner would be seeking to withdraw his guilty plea because the court and counsel had "put pressure on him" to plead guilty and that "he and his family [were] being threatened." (Resp. Pre-App. Ex. 2 at 4). Although the trial judge characterized these reasons as "totally inaccurate" and "utterly baseless," the court nevertheless agreed to appoint a new lawyer to represent Petitioner. (Resp. Pre-App. Ex. 2 at 3, 5).
Three days later, Petitioner's newly-appointed lawyer, Robert Burns, appeared before the trial judge. Although the judge commented that she believed Petitioner's request for new counsel had been "frivolous," she invited Burns to file "anything [he] want[ed]" on Petitioner's behalf and to file "whatever [Petitioner] ask[ed] him to" in time for the judge to rule on the motions on July 30. (Resp. Pre-App. Ex. 3, at 2-3). However, when Burns and Petitioner returned to court on that date, Burns had made no motion to withdraw Petitioner's guilty plea, nor did Petitioner make any such application pro se. (Resp. Pre-App. Ex. 4 at 15-17).
Bodek, however, did tell the court that Petitioner had "brought [a] pro se motion several weeks ago to withdraw his plea in this case." (Resp. Pre-App. Ex. 4 at 13). However, Bodek's description of Petitioner's allegations in that motion — that his lawyer did not visit him or retain an investigator for his case — reveal that Bodek misspoke; Bodek was in fact referring to Petitioner's pro se motion for reassignment of counsel. It was in response to these allegations that the trial court, repeating Bodek's mislabeling of the motion, stated that Petitioner's "motion to withdraw his plea is ludicrous and is being denied." (Resp. Pre-App. Ex. 4 at 13). Nowhere in that motion, or in any other, did Petitioner articulate a desire to withdraw his guilty plea.
To begin, it should be noted that Petitioner's habeas petition never asserts that Petitioner's guilty plea was made involuntarily; indeed, if Petitioner had a basis to put forth such an assertion, it is odd that it is not included in the petition as an independent claim for habeas relief. Instead, Petitioner limits his claim to the contention that it was error for the trial court to deny his (assumed) motion to withdraw his plea without a hearing, (Pet. ¶¶ 31-32), but absent a claim of involuntariness, it is difficult to know the constitutional basis for Petitioner's claim.
Moreover, even construing the petition to make such an assertion, (see Pet. ¶ 24), his challenge to the trial court's (assumed) ruling still fails. "Both federal and state precedent have established that a defendant is not entitled as a matter of right to an evidentiary hearing on a motion to withdraw a guilty plea." Hines v. Miller, 318 F.3d 157, 162 (2d Cir. 2003). Rather, in order to be entitled to a hearing on a motion to withdraw a plea under federal law,
the defendant must present some significant questions concerning the voluntariness or general validity of the plea to justify an evidentiary hearing. No hearing need be granted when the allegations on a motion to withdraw a guilty plea before sentencing merely contradict the record, are inherently incredible, or are simply conclusory.United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (citation omitted). Because Petitioner cannot make the showing required by these criteria, he was not entitled to a hearing under federal criminal practice, thus foreclosing any argument that the state court's denial of a hearing violated due process.
The record demonstrates that Petitioner pled guilty voluntarily, in exchange for a very favorable plea agreement. Before accepting Petitioner's plea, the court explained the maximum sentence Petitioner would face if convicted at trial, the rights he was giving up by foregoing a trial, and the terms of the cooperation agreement. (Resp. Pre-App. Ex. 1 at 5, 9-12). After ensuring Petitioner had consulted with his attorney and had his questions answered, the court asked Petitioner if he was "pleading guilty of [his] own free will," a question which Petitioner answered in the affirmative. (Resp. Pre-App. Ex. 1 at 4). Petitioner acknowledged his understanding that if he violated the cooperation agreement, he would not be permitted to withdraw his guilty plea. (Resp. Pre-App. Ex. 1 at 12-13). Additionally, because Petitioner expressed concern about his family's safety, it was explained to him that the government would do "anything that [it] can consistent with [its] resources and [its] means to attempt to protect the [Petitioner's] family" but that there were "no guarantees . . . as to anybody's safety." (Resp. Pre-App. Ex. 1 at 15). Petitioner then proceeded to plead guilty.
The only statement Petitioner offered before sentencing which could undermine the voluntariness of his plea was his allegation that the court and his attorney "put pressure on him" to plead guilty and that "he and his family [were] being threatened." (Resp. Pre-App. Ex. 2 at 4). Petitioner's contention that he was pressured into his plea is contradicted by his assurance at the allocution that he pled guilty of his own free will, and thus the trial judge was not in error for not granting a hearing on this ground. See Gonzalez, 970 F.2d at 1100. Furthermore, assuming arguendo that Petitioner's allegation that he and his family were being threatened were true, the transcript of the allocution reveals that Petitioner was aware of the possibility that his family might be threatened, or that his family was already being threatened, before he decided to plead guilty; if the former, the alleged materialization of threats does not retroactively render his plea involuntary, and if the latter, the case for the voluntariness of his plea is, in fact, strengthened, because it shows that Petitioner agreed to cooperate even in the face of these threats. In this way, Petitioner was not entitled to a hearing on his (assumed) motion to withdraw his plea, and the motion's summary denial does not warrant habeas relief.
D. Failure to Hold a Hearing on Violation of Cooperation Agreement
Petitioner's final contention is that his Fourteenth Amendment due process rights were violated by the trial court's failure to hold a hearing before accepting the prosecutor's determination that Petitioner had breached the cooperation agreement. Petitioner maintains that "the question of whether Petitioner did in fact fail to cooperate is not to be finally determined unilaterally by the People, but rather, by the court, and on the basis of adequate evidence." (Pet. ¶ 34). The Appellate Division rejected this claim, holding that Petitioner "was not entitled to a hearing on his conclusory, unsupported assertions with respect to the plea agreement." People v. Reyes, 710 N.Y.S.2d at 888,leave to appeal denied by 96 N.Y.2d 941 (N.Y. 2001). As this was an adjudication on the merits, deferential review under the AEDPA applies to this properly exhausted claim.
Because the Supreme Court has never held that a defendant has a constitutional right to a hearing in order to determine whether he violated the terms of a cooperation agreement, the "contrary to" clause of § 2254(d)(1) is inapplicable, and Petitioner can secure habeas relief only by demonstrating that the state court's ruling "involved an unreasonable application of" Supreme Court law.
In this regard, Petitioner seems to argue that the state court's failure to hold a hearing was an unreasonable application of the Court's decision in Santobello v. New York, 404 U.S. 257 (1971). However, Santobello merely holds that where a criminal defendant's guilty 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," and the defendant does nothing to violate that plea, the prosecutor's "promise must be fulfilled." Id. at 262. Santobello does not hold that where an issue arises as to a defendant's compliance with his obligations under such an agreement, the trial judge must conduct a hearing to resolve the issue. As such, the Appellate Division's decision is not an "unreasonable application" of Santobello as would warrant habeas relief under the AEDPA.
Santobello stands for the proposition that parties to a plea agreement are entitled to have the agreement enforced according to its terms. Accordingly, "[c]ooperation agreements, like plea bargains, are interpreted according to principles of contract law," United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990), whereby the "terms of the agreement govern both the conditions constituting breach or performance and the remedies available in the event of a breach." United States v. Aleman, 286 F.3d 86, 89-90 (2d Cir. 2002). Here, the terms of Petitioner's cooperation agreement were unambiguous. In brief, in exchange for a favorable sentence, Petitioner was required to make an "immediate, full, complete and truthful disclosure" of criminal activity of which he was aware, to "testify truthfully as a witness" in any proceeding where he was requested by the prosecutor, and "to refrain from any further criminal activity during the pendency of this agreement." (Pet. Ex. B ¶¶ 1-3). Moreover, it further provided that the "determination as to whether [Petitioner's] cooperation has been of prosecutive or investigative value [would] be made by the District Attorney's Office." Id. ¶ 5. In the April 19 plea proceedings, the trial judge made a point of emphasizing to Petitioner that "it is up to them [the District Attorney's Office] and not to me to evaluate your cooperation. I would have no way of knowing if what you said was true or not, you were exaggerating, you were lying. They determine that in every cooperation situation." (Resp. Pre-App. Ex. 1 at 10). The court also made certain Petitioner knew that "if the prosecution should come back to me and say that you haven't been truthful or complete in your cooperation . . . you would not be able to withdraw your plea of guilty." (Resp. Pre-App. Ex. 1 at 13). Petitioner confirmed his understanding of the agreement — and specifically that it would be the prosecutor who ultimately determined whether he had honored his obligations — in his plea colloquy. (Resp. Pre-App. Ex. 1 at 10-11).
Considering the terms of this plea agreement, then, Petitioner is incorrect in his assertion that the "court is the final arbiter of whether Petitioner complied with the conditions of [the] agreement, not the People." (Pet. ¶ 34). On the contrary, "where the explicit terms of a cooperation agreement leave the acceptance of the defendant's performance to the judgment of the prosecutor, the prosecutor may reject the defendant's performance provided he or she is honestly dissatisfied." Rexach, 896 F.2d at 713. Here, the prosecutor listed several reasons for his dissatisfaction. Per his recitation, several prosecutors had attempted to work with Petitioner, but Petitioner had "refused to cooperate," instead "demontrat[ing] a continuing course of conduct where it is sort of, what we can do for him, as opposed to, what he can do for us." (Resp. Pre-App. Ex. 4 at 8). The prosecutor detailed how Petitioner had "wasted a lot of time with a lot of people," for example by refusing to answer questions because he said "he didn't feel like talking to [the prosecutor] that day." Id. at 12. These instances provided a sufficient basis for the District Attorney's Office to conclude that Petitioner had not fulfilled his commitments under the cooperation agreement. Because the agreement vested the prosecutor with the sole discretion to make that determination, the court was entitled to rely on the prosecutor's evaluation of Petitioner's performance, and no hearing was necessary.
In fact, the only way Petitioner would have been entitled to a hearing concerning the prosecutor's decision would have been to make a sufficient showing that the prosecutor acted in bad faith. If a defendant alleges the government acted in bad faith by not honoring a plea agreement, the prosecutor is required to explain briefly his reasons for concluding the defendant did not satisfy his part of the bargain. Following this explanation, the defendant must make a showing of bad faith sufficient to merit a hearing on the issue. See United States v. Knights, 968 F.2d 1483, 1487 (2d Cir. 1992); United States v. Khan, 920 F.2d 1100, 1106 (2d Cir. 1990). In this case, while Petitioner's lawyer did not allege prosecutorial bad faith, Petitioner himself did tell the court,
I kept my word on [the agreement]. All I did, I changed the lawyer. Okay. By changing the agreement you have reneged on the deal and cop out.
(Resp. Pre-App. Ex. 4 at 17). Even construing this self-serving, conclusory assertion by Petitioner of his own cooperation as an accusation of prosecutorial bad faith in retaliation for Petitioner's decision to change counsel, this unsupported statement, coming in the wake of the government's lengthy outlining of Petitioner's noncompliance, was insufficient to trigger a further inquiry into the issue.
In this way, the trial court was under no obligation to conduct a hearing to determine either whether Petitioner adequately cooperated under the agreement or whether the prosecution acted in bad faith in its determination that Petitioner did not adequately cooperate. The state court's rejection of Petitioner's claim thus was not "contrary to," nor did it involve an "unreasonable application of," Supreme Court law, and so affords no basis for habeas relief.
III. Conclusion
For the foregoing reasons, the writ is denied and the petition is dismissed. Because Petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability shall not issue.
SO ORDERED.