Opinion
96-CV-1721 (NAM)(GLS).
March 24, 1999
DAYLE WHEELOCK, Petitioner, Pro Se, Elmira, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York, Department of Law, KEITH E. KAMMERER, Esq., Assistant Attorney General, Albany, New York, For The Respondent.
REPORT-RECOMMENDATION
Introduction
This matter has been referred to the undersigned for Report and Recommendation by the Honorable Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Petitioner Dayle L. Wheelock brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 complaining of the judgment rendered against him by the New York State County Court of Tioga. In the judgment, Petitioner was sentenced to an indeterminate term of four to twelve years after pleading guilty to first degree sodomy. Although Petitioner did not appeal his conviction, he did file a post-conviction motion to vacate his sentence with the Tioga County Court which was denied in a Decision and Order dated February 2, 1995.
Petitioner asserts two claims in this habeas corpus application: (1) constitutionally deficient indictment and grand jury proceedings; and (2) ineffective assistance of counsel.
Respondent filed his answer, together with the pertinent state records and a memorandum of law. In his memorandum of law, Respondent sought dismissal of the petition arguing that Petitioner's first claim had been waived and that his second claim lacked merit.
Background
By indictment dated March 31, 1989, the Tioga County Grand Jury charged Petitioner with eight counts of first degree sodomy and three counts of first degree sexual abuse. The charges stemmed from incidents at Petitioner's home involving four children under the age of eleven. Petitioner retained Vincent Sgueglia, Esq. who thereafter filed an omnibus motion on May 10, 1989.
Among other things, Petitioner's motion sought dismissal of the indictment as defective for insufficiently specifying the dates of the charged crimes. The County Court heard arguments on June 2, 1989 wherein it reserved decision on the propriety of the indictment. On September 11, 1989, Petitioner pled guilty to the second count of the indictment which charged him with first degree sodomy. Thereafter on September 15, 1989, Petitioner was sentenced pursuant to the plea agreement to an indeterminate term of 4 to 12 years incarceration. That same day, Petitioner signed a statement indicating that he did not wish to appeal his conviction.
Petitioner did not file a direct appeal. Rather, he filed a post-conviction motion to vacate the judgment raising 17 grounds for relief. Finding 15 of the 17 grounds unreviewable, the County Court addressed only Petitioner's claims that the trial court failed to rule on his motion to dismiss the indictment for lack of specific evidence and that he received ineffective assistance of counsel. In a Decision and Order dated February 2, 1995, the County Court denied Petitioner's motion without a hearing.
Discussion
I. Indictment and Grand Jury Proceedings
Petitioner maintains that the grand jury proceedings and resulting indictment violated his due process rights. Specifically, Petitioner alleges that: 1) the indictment failed to sufficiently set forth the time of the charged offense; 2) the indictment was not supported by sufficient evidence since the child victims' statements were unsworn, the victim's had recanted, and there was no supporting medical or scientific evidence; and 3) all the available exculpatory evidence was not presented to the grand jury.
In order to assert a cognizable habeas claim, Petitioner must show an error of constitutional magnitude. See Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 479, 116 L.Ed.2d 385 (1991) (federal habeas relief is "limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States"). Pursuant to the due process clause, "an indictment is constitutionally sufficient if it contains the elements of the offense charged and facts sufficient to enable the defendant to frame a proper defense and ensure that his double jeopardy rights are protected." Croney v. Scully, 1987 WL 19422, at *8 (E.D.N.Y. Oct. 23, 1987) (citing Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) and United States v. Panza, 750 F.2d 1141 (2d Cir. 1984)). Since Petitioner has alleged that the indictment impeded his ability to prepare a defense and ensure that each count of the indictment alleged only one offense, the undersigned will assume for purposes of argument that Petitioner has alleged an error of constitutional magnitude. However, Petitioner's guilty plea may serve as a waiver of his claim.
When a criminal defendant pleads guilty, he "waives all nonjurisdictional defects in prior proceedings." Gayle v. Lacey, 1997 WL 610654, at *5 (N.D.N.Y. Oct. 1, 1997). Consequently, Petitioner can allege only that his guilty plea was not knowing and voluntary or that his attorney provided ineffective assistance in advising him to plead guilty. See Gayle, 1997 WL 610654 at *5.
To establish his allegation of ineffective assistance, Petitioner must establish the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Siao-Pao v. Keane, 878 F. Supp. 468, 472 (S.D.N.Y. 1995). Petitioner therefore must demonstrate that counsel's representation fell below an objective standard of reasonableness and that but for the alleged deficiency, the likely outcome of the proceeding would have been different. See Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 369-371, 88 L.Ed.2d 203 (1985) (citing Strickland v. Washington, supra; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir. 1996), In other words, Petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Siao-Pao, 878 F. Supp. at 472 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985).
Liberally construing Petitioner's submissions, he has alleged both that his plea was unknowing and involuntary and that his attorney's advice to plead guilty was constitutionally ineffective. As to Petitioner's claim that his plea was neither knowing nor voluntary, his failure to raise this issue on direct appeal prohibits him from challenging it on collateral review. See Bousley v. United States, 523 U.S. 614, ___, 118 S.Ct. 1604, 1610, 140 L.Ed. 828 (1998).
Any allegation that Petitioner's attorney is to blame for Petitioner's failure to appeal is meritless. As indicated in his habeas petition, Petitioner did not file a direct appeal. He indicated in writing both his understanding that he had the right to appeal his conviction and that he did not wish to do so. See Notice of Intention with Respect to Appeal. Moreover, the sentencing court advised Petitioner that he had the right to appeal and that his attorney would discuss said right with him further. See Sentencing Transcript (Sept. 15, 1989), p. 3. Despite his bald contentions that he did not understand his right to appeal, in light of the above, the undersigned finds that Petitioner voluntarily and knowingly waived his right to appeal.
Moreover, for the reasons discussed infra in relation to the prejudice prong of Petitioner's allegation of ineffective assistance of counsel, Petitioner's guilty plea was knowing and voluntary.
With regards to his ineffective assistance argument, Petitioner has alleged that his trial attorney was objectively unreasonable by: 1) failing to secure the trial court's decision on his motion to dismiss the indictment; 2) having a conflict of interest; 3) failing to investigate the charges and evidence against Petitioner; and 4) failing to properly advise Petitioner of the critical facts and the law.
Plaintiff raised only his second allegation of ineffective assistance of counsel in his post-conviction motion. See Memorandum of Law, pp. 6-7. As to his first allegation, Petitioner merely stated that his attorney was in error for not pursing the motion to dismiss the indictment as unspecific. See id. at 13. Petitioner did not raise the issue as a separate claim for the state court's review.
Viewing the entire record as a whole, it is clear that Petitioner received effective assistance of counsel. Petitioner's attorney filed an omnibus pre-trial motion concerning the allegedly "defective" indictment, discovery, a bill of particulars, and other pre-trial issues. He also interviewed two of the child accusers and obtained a statement from the child relevant to the charge for which Petitioner pled guilty. Also, Petitioner's attorney secured a very favorable plea agreement of 4 to 12 years and thus, avoided the possibility that Petitioner would receive the maximum sentence of 8 1/3 to 25 years on several counts. With regards to counsel's failure to secure a decision by the trial court on his motion to dismiss, the County Court inspected the pertinent grand jury minutes and found that the evidence submitted to the grand jury was both sufficient and proper. Consequently, any failure to pursue the motion was not unreasonable since an attorney can not be faulted for failing to pursue a frivolous point. See Medina v. Herbert, 1998 WL 799173, at *7 (S.D.N.Y. Nov. 16, 1998) (declining to find counsel's decision in failing to file a motion challenging an indictment constitutionally deficient where the indictment complied with federal and state law). Next, Petitioner contends that his attorney was saddled with a conflict of interest. Specifically, Petitioner maintains that his attorney was conflicted by his role as a law advocate and prior representation of an individual Petitioner turned in to authorities. At best, Petitioner's allegation is purely speculative. He offers no evidence that his attorney had a divided loyalty, but merely asserts that his attorney told him that his prior client was a fine boy and that he indicated that he believed Petitioner to be guilty of every charge. See Petitioner's Second Response (docket # 14), ¶¶ 85, 93. Such allegations are insufficient to demonstrate that counsel actively represented conflicting interests. In fact, counsel's prior representation did not result in a conviction. See id. at ¶ 83. Petitioner also alleges that his attorney failed to properly investigate the charges and evidence against Petitioner. The record reveals that counsel did conduct some investigation such as interviewing two of the child accusers. As to the remaining evidence that Petitioner enumerates, Petitioner has failed to establish that such evidence was unknown to him at the time of his plea agreement. Although Petitioner provides detailed factual assertions, almost all of the evidence he claims his attorney did not investigate relates to the counts in the indictment for which Petitioner was not convicted. As to the count to which Petitioner pled guilty, he admits that he had that child's statement. See Petitioner's Second Response (docket # 14), ¶ 62. Finally, Petitioner maintains that his attorney failed to advise him of the critical facts and law. However, Petitioner does not specify what facts or law his attorney failed to discuss with him.
Although unclear from the state court's file, the state prosecutor stated upon information and belief that the trial judge had determined the proceedings before the grand jury to be sufficient. See County Court Decision and Order dated February 2, 1995, p. 4.
In addition to his failure to establish that counsel's representation was objectively unreasonable, Petitioner has failed to establish that the result of the proceedings would have been different. Petitioner has made only bald assertions that he was convicted of a crime he did not commit. He does not allege that but for his attorney's "errors," he would have insisted on a trial. At the time he plead guilty, Petitioner was aware that: (1) his motion to dismiss had not been decided; (2) his attorney was "prejudiced" against him due to his work as a law guardian and prior representation of a client connected to the drug ring Petitioner reported, see Petitioner's Second Response (docket # 14), ¶¶ 82-85, 93; and (3) his attorney had not investigated the various facts requested by Petitioner, see id., ¶ 92. Despite this knowledge, Petitioner appeared in court and pled guilty to one count of sodomy. He indicated his understanding of the charge against him and that a guilty plea is a factual admission to the charge. See Change of Plea Transcript (Sept. 11, 1989), p. 4. Following the court's reading of the indictment, Petitioner pled guilty and thereafter gave a detailed factual account of the incident underlying the charge. See id. at 5-8. At the change of plea hearing and subsequent sentencing, Petitioner did not assert that his attorney's representation was deficient in any manner. Moreover, following his conviction, Petitioner sent a letter to the court thanking the judge and prosecutor "for going easy on [him]" See County Court Decision and Order dated February 2, 1995, p. 6. Accordingly, the undersigned finds that Petitioner was not denied effective assistance of counsel. As a result, his guilty plea should stand such that Petitioner waived his right to appeal all non-jurisdictional defects relating to the grand jury proceedings and indictment.
Under New York law, "in essence, an indictment is jurisdictionally defective only if it does not effectively charge the defendant with commission of a particular crime" People v. Nicholson, 98 A.D.2d 876, 470 N.Y.S.2d 854, 854-55 (3d Dep't 1983) (citing People v. Iannone, 45 N.Y.2d 589, 600-601, 412 N.Y.S.2d 110, 384 N.E.2d 656 (1978)). As time is not an essential element of the crime of sodomy, any error in the indictment for failing to specifically specify the time period is not a jurisdictional defect. See People v. Gutkaiss, 206 A.D.2d 584, 585, 614 N.Y.S.2d 462, 464 (3d Dep't 1994). Moreover, Petitioner's claims that the indictment was not supported by sufficient evidence and that all exculpatory evidence was not presented to the grand jury are non-jurisdictional. See Lopez v. Riley, 865 F.2d 30, 33 (2d Cir. 1989) (sufficiency of evidence and presentation of exculpatory evidence). Consequently, the undersigned finds that Petitioner's guilty plea acts as a waiver of his claims.
Finally, even assuming that Petitioner may bring his claim, the indictment was legally sufficient. Under New York law, an indictment must contain "[a] statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time." N.Y. CRIM. PROC. LAW § 200.50(6). In sodomy cases, the sufficiency of the time period charged in the indictment is determined on a case by case basis. See People v. Fish, 240 A.D.2d 866, 868, 659 N.Y.S.2d 120, 122 (3d Dep't 1997). Relevant factors include: 1) the diligence and good faith of the People in attempting to acquire specific information relating to times and dates; 2) the age and mental capacity of the victims; 3) the length of time alleged in each count of the indictment; and 4) whether the indictment provided reasonable notice to the defendant. See Id. (citing People v. Watt, 81 N.Y.2d 772, 774-75, 593 N.Y.S.2d 782, 609 N.E.2d 135 (1993).
In the instant case, the indictment charged Petitioner with sodomy "during the summer months of 1988." Petitioner has failed to present any evidence that the prosecutor intentionally failed to disclose more specific dates or that there was a lack of due diligence in ascertaining more specific time frames. The victim of the count Petitioner plead guilty to had just turned nine years old. Moreover, this exact time period, as well as even longer periods of time have been upheld. See People v. Green, 250 A.D.2d 63, 683 N.Y.S.2d 597 (3d Dep't 1998) ("between August 1, 1996 and December 31, 1996); Gutkaiss, 206 A.D.2d at 585, 614 N.Y.S.2d at 464 ("during the summer of '88"). Accordingly, the undersigned finds that the indictment was sufficient. Petitioner's claim should be dismissed.
II. Assistance of Counsel
A. Trial Counsel
In his final ground for relief, Petitioner contends that he was denied the effective assistance of counsel at trial. Petitioner's allegations mirror those discussed above in relation to the voluntariness of his guilty plea. For the reasons discussed above, the undersigned recommends that Petitioner's ineffective assistance of counsel claim be denied.
Despite Petitioner's guilty plea, he is not precluded from raising his ineffective assistance of counsel claim as to alleged violations that occurred prior to his plea. See Rivas v. United States, 1997 WL 391464, at *1 (E.D.N.Y. July 8, 1997) ("It is well settled that a guilty plea prior to trial is a waiver of all constitutional claims except that of ineffective assistance of counsel.").
B. Attorney at Post-Conviction Proceedings
Petitioner contends that his attorney who represented him on his post-conviction motion failed to adequately address his defective indictment claim during oral arguments. Thus, Petitioner alleges that he was denied effective assistance of counsel.
Petitioner's motion was not written by his attorney. He wrote it himself.
Petitioner's claim cannot stand as he did not have a federal constitutional right to an attorney in his post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.Ed.2d 539 (1987)). Thus, "[P]etitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Id. (citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982)). Petitioner's claim, therefore, should be dismissed.
Moreover, Petitioner's allegation of ineffective representation is unfounded. Initially, Petitioner's claim is conclusory. Nowhere does he articulate what his attorney said or failed to say at the oral argument. Additionally, counsel can not be faulted for failing to raise an issue that lacked merit. As discussed above and by the County Court judge, the indictment was constitutionally sound.
Conclusion
WHEREFORE, based on the above, it is herebyRECOMMENDED, that Petitioner's habeas corpus petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1), 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 of 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).