Opinion
05 Civ. 4900 (WHP) (KNF).
July 10, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Petitioner Bruce Belfer ("Belfer") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Belfer maintains he is being held unlawfully by the state of New York because: (1) he received ineffective assistance from his appellate counsel; (2) the Fifth Amendment's proscription against being twice put in jeopardy was violated in his case; (3) his plea of guilty was not made voluntarily; and (4) the sentence he is serving is excessive.
The respondent opposes Belfer's application for the writ. He maintains the state court decisions on Belfer's ineffective assistance of appellate counsel claim and involuntary plea of guilty claim were neither contrary to nor based on unreasonable applications of clearly established Federal law as determined by the Supreme Court. In addition, the respondent contends Belfer's double jeopardy claim is procedurally barred, because it was rejected by a state court based on independent and adequate state-law grounds. Furthermore, according to the respondent, Belfer's allegation that his sentence is excessive is not a matter that is cognizable on habeas corpus review.
II. BACKGROUND
In October 1997, a Bronx County grand jury returned an indictment against Belfer accusing him of acting in concert, in August 1995, to commit: murder in the second degree; attempted murder in the second degree; assault in the first degree; criminal possession of a weapon in the second degree; and criminal use of a firearm in the first degree. These charges stemmed from Belfer's hiring of another to shoot a Bronx bookmaker and his brother. The bookmaker was killed and his brother received several nonfatal shots to the head. Belfer was also charged, through the indictment, with conspiracy in the fourth degree, arising out of his unwitting attempt to hire an undercover police officer to commit robberies on Belfer's behalf.
Belfer was incarcerated for over two years awaiting the commencement of his trial. In late autumn 1999, after pretrial motions had been resolved, and while jury selection was underway, Belfer considered a plea bargain and, thereafter, elected to plead guilty to: manslaughter in the first degree; attempted murder in the second degree; criminal use of a firearm in the first degree; and conspiracy in the fourth degree in return for a promise of concurrent prison terms of: 12 ½ to 25 years, on the firearm charge; 8 1/3 to 25 years on each of the manslaughter and attempted murder charges; and 1 1/3 to 4 years on the conspiracy charge. By entering into the plea agreement, Belfer avoided the prospect — if he were to be found guilty by the jury — of being sentenced to an indeterminate period of 34 1/3 years to life imprisonment.
In a post-sentence motion to vacate the judgment of conviction, made pursuant to New York's Criminal Procedure Law ("CPL") § 440.10, Belfer resurrected complaints voiced one day before the tendered plea of guilty and later, at his sentencing proceeding, concerning the effectiveness of the assistance his trial counsel had rendered to him. Among other things, the petitioner alleged his trial counsel ignored his letters and telephone calls and did not visit him frequently while he was incarcerated. Furthermore, Belfer questioned the degree to which his counsel had prepared to defend the charges lodged against him. Moreover, during the sentencing proceeding, Belfer advised the trial court that he had pleaded guilty solely because his trial counsel was not prepared to defend him at the trial.
The trial court determined that the allegations made by Belfer, in his motion to vacate the judgement, were record-based and, therefore, should be raised through his direct appeal from the judgment of conviction. Later, the New York State Supreme Court, Appellate Division, First Department agreed to address the allegations made in the CPL § 440.10 motion when it considered Belfer's direct appeal.
Belfer's appeal to the Appellate Division was handled by an attorney different from the attorney who represented him in the trial court. Belfer's appellate counsel asked the Appellate Division to consider three arguments, that: (1) Belfer's convictions should be vacated because the trial court failed to make adequate inquiries, after the petitioner asserted his innocence and explained that his plea of guilty was made because his trial counsel rendered ineffective assistance to him. Alternatively, counsel urged the court to remand the matter for a hearing in the trial court because the allegations in Belfer's CPL § 440.10 motion relied upon facts outside the record and, therefore, it was inappropriate for the Appellate Division to consider those allegations; (2) Belfer's conviction for the class B violent felony offense, criminal use of a firearm in the first degree, and his conviction for either of the two Class B violent felony offenses, attempted murder in the second degree or manslaughter in the first degree, upon which the firearm conviction was predicated, violated the Fifth Amendment's proscription against double jeopardy. According to the petitioner's appellate counsel, this was so because proof of the firearm offense is the same proof required to sustain a conviction for either of the other two class B violent felonies noted above; and (3) Belfer's sentence, 12 ½ to 25 years imprisonment, is, in light of the petitioner's age and ill health, excessively harsh and should be reduced to effectuate the objective the petitioner attempted to achieve by pleading guilty, to wit, avoidance of incarceration for a period that would foreclose the prospect of his being at liberty, with his family, prior to his death.
Belfer supplemented his counsel's appellate brief with a pro se appellate brief. Through that brief, Belfer asked the Appellate Division to vacate his plea of guilty. He explained that he was entitled to that relief because: (a) his guilty plea was "defective" because it did not contain the elements of the charged crimes, was the product of intimidation and was initiated by the trial court, not the parties; (b) the trial court erred when sentencing him for his firearm conviction; and (c) he was the victim of selective prosecution, which occasioned the first-degree criminal use of a firearm charge.
The Appellate Division rejected the arguments urged on it by the petitioner and his counsel. It found Belfer's "postplea claims of innocence did not undermine a plea which, the record demonstrates, was not the result of ineffective assistance of counsel or coercion by the court . . . and was otherwise knowing and voluntary." People v. Belfer, 304 A.D.2d 314, 757 N.Y.S.2d 746 (App.Div. 1st Dep't 2003). The court noted further that Belfer's allegation, that his simultaneous convictions for first-degree criminal use of a firearm, first-degree manslaughter and second-degree attempted murder violated the Constitution's proscription against double jeopardy, was not preserved for appellate review. The Appellate Division declined to review that claim, in its discretion, in the interest of justice, and indicated that, were it to review the claim, it would find that no violation of the prohibition against double jeopardy occurred. Finding no reason to reduce Belfer's sentence, the Appellate Division stated it had considered and rejected all the remaining claims raised either by Belfer, in his pro se submission to the court, or his counsel, through his appellate brief. See People v. Belfer, 304 A.D.2d at 315, 757 N.Y.S.2d at 743.
Belfer sought leave to appeal to the New York Court of Appeals from the determination of the Appellate Division. That application was denied. See People v. Belfer, 100 N.Y.2d 592, 766 N.Y.S.2d 167 (2003). Thereafter, Belfer made an application to the Appellate Division for a writ of error coram nobis. Belfer maintained his appellate counsel rendered ineffective assistance to him by advancing three arguments Belfer characterized as "flaccid" sic while failing to advance what Belfer believed was a significant, meritorious and obvious argument, to wit, the Amelioration Doctrine described in People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367 (1956) — applied to first-degree criminal use of a firearm, New York Penal Law (" PL") § 265.09. Belfer explained that, in 1996, the year after he committed his crimes, and three years before he was sentenced, the Legislature amended PL § 265.09. The amendment provided that, in a circumstance where a person is convicted of both a class B violent felony offense and first-degree criminal use of a firearm, based solely on his or her own conduct and not the conduct of another, under PL § 20.00, an additional five-year term of incarceration may be added to the minimum term of an indeterminate prison sentence imposed for committing the underlying Class B violent felony offense.
In Oliver, the New York Court of Appeals explained that,
where an ameliorative statute takes the form of a reduction of punishment for a particular crime, the law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act may have been committed before that date. People v. Oliver, 1 N.Y.2d at 159-60, 151 N.Y.S.2d at 373.
Belfer contends an Amelioration Doctrine argument, based onOliver, "would have addressed all the relief [Belfer's appellate] counsel was seeking with the three flaccid [arguments]" he urged on the Appellate Division. According to the petitioner, if the Amelioration Doctrine argument had been advanced by his appellate counsel, the sentence imposed upon him "would have been modified or vacated." The Appellate Division was not persuaded by the arguments urged on it by Belfer in his application for the writ. Therefore, it denied the application. See People v. Belfer, 10 A.D.3d 846, 783 N.Y.S.2d 23 (App.Div. 1st Dep't 2004).
After the New York Court of Appeals denied Belfer's application to appeal to that court from the determination of the Appellate Division, Belfer filed an application for a writ of habeas corpus in this judicial district. By order dated August 18, 2004, your Honor granted Belfer's request for an order permitting him to dismiss his application for the writ voluntarily. Approximately four months earlier, Belfer had petitioned the Appellate Division for a writ of error coram nobis.
III. DISCUSSION
An application for a writ of habeas corpus made by a prisoner in custody pursuant to a judgment entered in a state court may be granted only upon a finding that the prisoner is in custody in violation of the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a).Ineffective Assistance of Appellate Counsel
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 104 S. Ct. at 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 104 S. Ct. at 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 104 S. Ct. at 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different."Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome."See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066.The Sixth Amendment right to effective assistance of counsel also extends to the prosecution of a direct appeal from a judgment of conviction. See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S. Ct. 830, 836 (1985). Since appellate counsel is permitted to exercise professional judgment when determining which issue(s) to pursue on appeal, failure to present every nonfrivolous argument to the appellate court does not constitute ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983). "Failure to raise an argument on appeal constitutes ineffective assistance only when the omitted issue is clearly stronger and more significant than those presented." Rivera v. Conway, 350 F. Supp. 2d 536, 546 (S.D.N.Y. 2004) (citing Mayo v. Henderson, 13 F.3d 528, 533 [2d Cir. 1994]). Further, "[t]o establish that a habeas petitioner was prejudiced by appellate counsel's failings under the second prong of the Strickland test, the petitioner must establish that there is a reasonable probability that the omitted claim would have been successful before the state's highest court." Id. at 546-47 (citation omitted).
The express language of PL § 265.09(2) and the Practice Commentary associated with that statute make clear that the 1996 amendment enacted by the Legislature permits a court to impose an enhanced punishment on a class B violent felony offender who, during the commission of his or her offense, simultaneously commits the crime criminal use of a firearm in the first degree. The amendment does not provide for a reduced sentence. Consequently, Belfer is mistaken when he alleges his appellate counsel rendered ineffective assistance to him by failing to argue that the Amelioration Doctrine warranted the Appellate Division in reducing or vacating his sentence. The doctrine was inapplicable to Belfer's situation.
Since the Amelioration Doctrine argument was not applicable to Belfer's case, it did not provide him a non-frivolous argument clearly stronger and more significant than the three arguments Belfer's appellate counsel asked the Appellate Division to consider. Therefore, the Court finds, in the circumstance of the instant case, Belfer has not established that a reasonable probability exists "that the omitted claim would have been successful before the state's highest court." Rivera, 350 F. Supp. 2d at 546-47 (citation omitted). Consequently, the Court concludes that Belfer's appellate counsel did not render ineffective assistance to him, in violation of the Sixth Amendment, when he elected not to argue that an inapplicable doctrine should be employed by the Appellate Division in deciding whether to grant Belfer relief from the judgment. As a result, granting Belfer habeas corpus relief based on this ground is inappropriate.
Double Jeopardy
The Fifth Amendment's proscription against double jeopardy provides three constitutional protections. It guards against a second prosecution for the same offense following either an acquittal or a conviction and protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969) (overturned in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201). In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932), the Supreme Court set forth a test through which courts can ascertain whether a person has been subjected to multiple punishments for the same offense.
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.Blockburger, 284 U.S. at 304, 52 S. Ct. at 182.
However, in Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673 (1983), the Supreme Court explained that, where a legislature authorizes cumulative punishment under two statutes when a person commits one criminal act, the Double Jeopardy Clause is not violated. Id., at 368-69, 103 S. Ct. 679. "The Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."Missouri, 459 U.S. at 366, 103 S. Ct. at 678.
In urging the Appellate Division to grant him relief, the petitioner conceded that using a firearm is not an element of either first-degree manslaughter or attempted second-degree murder. As a result of that concession, based on Blockburger, Belfer's convictions, arising out of his plea of guilty to three class B violent felony offenses did not run afoul of the Fifth Amendment's prohibition against double jeopardy.
In any event, the respondent contends the court may not review the petitioner's double jeopardy claim because it was procedurally defaulted in the state court by virtue of Belfer's failure to preserve the issue for appellate review. According to the respondent, the state court's disposition of Belfer's double jeopardy claim rests on an independent and adequate state-law ground. Furthermore, despite the fact that it declined to entertain Belfer's unpreserved double jeopardy claim, the Appellate Division indicated that, were it to review the claim, it would find that no double jeopardy violation occurred.
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state-law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). A procedural default in a state court will bar federal habeas review where "the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989) (citation omitted). Moreover, "federal habeas 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." Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (citations omitted).
A state procedural rule is "independent" of the merits of a federal-law claim when the state court actually relies on the procedural bar as an independent basis for its disposition. See Harris, 489 U.S. at 260-61, 109 S. Ct. at 1042.
As noted above, the Appellate Division declined to review the petitioner's double jeopardy claim because it was "unpreserved" for judicial review. Although the Appellate Division indicated how it would dispose of the federal-law claim, on the merits, if it had been preserved for appellate review, it rested its decision on the petitioner's failure to comply with New York's contemporaneous-objection rule, a procedural ground that is independent of the federal-law claim. However, "[b]efore accepting a procedural bar defense, a federal court must examine the adequacy of the alleged procedural default." Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003).
The Supreme Court has held consistently that "'the question of when and how defaults in compliance with state procedural rules can preclude . . . consideration of a federal question is itself a federal question.'" See Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Johnson v. Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987). "[A] state procedural ground is not 'adequate' unless the procedural rule is 'strictly or regularly followed,'" and "[s]tate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims." Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S. Ct. 2421, 2426 (1982) (quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S. Ct. 1734, 1736). "Ordinarily, violation of 'firmly established and regularly followed' state rules . . . will be adequate to foreclose review of a federal claim[,]" save for "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885-86 (2002); see Cotto, 331 F.3d at 239-40.
A state contemporaneous-objection requirement violation is an adequate procedural ground for barring review of a claim in a federal habeas corpus proceeding, if it is established that at the time the procedural bar is applied: (1) "[the state] actually had a contemporaneous-objection requirement for claims such as [the petitioner] now advances;" and (2) "that this requirement was actually enforced by the state courts themselves." Washington v. Harris, 650 F.2d 447, 451 (2d Cir. 1981), cert. denied 455 U.S. 951, 102 S. Ct. 1455 (1982); see Ford v. Georgia, 498 U.S. 411, 424, 111 S. Ct. 850, 857-58 (1991). "Though a rule in general terms might be considered 'firmly established and regularly followed,' such a rule considered in the specific circumstances of a case might be inadequate to preclude federal habeas review." Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006).
The Second Circuit Court of Appeals has explained that, in determining whether a state procedural rule violation is an adequate ground on which to bar review of a federal claim in a habeas corpus proceeding, "the question [that must be answered] is whether application of the procedural rule is 'firmly established and regularly followed' in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto, 331 F.3d at 240 (citation omitted);see Lee, 534 U.S. at 382, 122 S. Ct. at 889 (although the procedural rules may not have been novel, their application to the facts was). "The Supreme Court has noted that the contemporaneous objection rule rests on 'the general principle that an objection which is ample and timely to bring an alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review.'" Cotto, 331 F.3d at 242 (quoting Osborne v. Ohio, 495 U.S. 103, 125, 110 S. Ct. 1691, 1704-05). In the habeas corpus context, three guiding factors are considered when determining the adequacy of a state procedural rule: (1) whether the procedural violation actually affected the trial court's ruling; (2) whether state case law indicated that compliance with the procedural rule was required in the specific circumstance presented; and (3) whether the defendant complied substantially with the rule, in light of the realities of trial. See id. at 240.
In rendering its decision, that Belfer's double jeopardy claim was "unpreserved" for appellate review, the Appellate Division made citation to the New York Court of Appeals decision in People v. Gonzalez, 99 N.Y.2d 76, 82-83, 751 N.Y.S.2d 830 (2002) and its own decision in People v. Johnson, 299 A.D.2d 287, 750 N.Y.S.2d 78 (App.Div. 1st Dep't 2002). In each of those cases, which involve alleged violations of the Fifth Amendment's proscription against double jeopardy, the federal-law claim was not reviewed because the respective criminal defendants had failed to comply with New York's contemporaneous objection rule and, thus, had failed to preserve their double jeopardy claims for appellate review. The Appellate Division's citation to New York Court of Appeals jurisprudence and its own precedent, establishes to the Court's satisfaction, that New York's contemporaneous-objection rule is firmly established and regularly followed by appellate courts in circumstances where a violation of the Fifth Amendment's prohibition against double jeopardy is alleged to have occurred. Belfer never invoked the Double Jeopardy Clause in the trial court, before tendering his plea of guilty. Therefore, it cannot be alleged here that he complied substantially with the state's contemporaneous-objection rule. Based on the above, the Court concurs with the respondent, Belfer's double jeopardy claim is procedurally barred from federal habeas corpus review.
In a circumstance such as exists here, a petitioner may overcome a procedural bar to having a federal court entertain a claim on habeas review if the petitioner can show cause for the default and prejudice resulting therefrom or if the petitioner can demonstrate that failing to consider the federal claim will result in a fundamental miscarriage of justice, because the constitutional violation has resulted in the conviction of a person who is actually innocent. See Harris, 489 U.S. at 262, 109 S. Ct. at 1043; Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986). Belfer has not shown cause for his default and does not allege that he is innocent of the charges to which he pleaded guilty, such that a fundamental miscarriage of justice would attend if the court did not consider his double jeopardy claim.
Inasmuch as Belfer's double jeopardy claim fails on the merits, because it does not satisfy the Blockburger test and, furthermore, is procedurally barred from federal habeas corpus review, he is not entitled to obtain the relief he seeks through the instant petition based on an alleged violation of the Fifth Amendment's prohibition against double jeopardy.
Involuntary Guilty Plea
When a trial court accepts a guilty plea from a criminal defendant, it must ensure that the record shows affirmatively that the criminal defendant's guilty plea was made knowingly and voluntarily. See Bradshaw v. Stumph, 545 U.S. 175, 183, 125 S. Ct. 2398, 2405 (2005); Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 1712-13 (1969). "A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences." Bradshaw, 545 U.S. at 183, 125 S. Ct. at 2405 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469) (internal quotation marks omitted). Although a state trial court is required to make a record that establishes affirmatively that a criminal defendant's plea of guilty is intelligent and voluntary, a state court is not required by federal law to employ any particular catechism like that required of federal courts by the Federal Rules of Criminal Procedure. See Siegal v. State of New York, 691 F.2d 620, 626 (2d Cir. 1982).
To determine whether a criminal defendant's plea of guilty was made voluntarily, a court must consider the totality of the relevant circumstances. See Brady, 397 U.S. at 749, 90 S. Ct. at 1469. "A plea cannot be intelligent unless, at the very least, the defendant understands that he has the right to a trial to determine whether he is guilty, and that, by pleading guilty, he gives up that right and consents to the entry of a guilty verdict, upon which he may be sentenced. A plea is not voluntary unless the defendant understands he is under no compulsion to plead guilty and makes the decision of his own free will." Hanson v. Phillips, 442 F.3d 789, 799 (2d Cir. 2006).
In the case at bar, the trial court suspended proceedings in Belfer's case for a week to enable the prosecution to consider permitting Belfer to plead guilty in return for a sentence of 8 1/3 to 25 years. When the proceedings resumed, the court was advised that the prosecution believed that the appropriate sentence to recommend for Belfer, upon the tender of a plea of guilty, would be 12 ½ to 25 years imprisonment. Belfer informed the court that he needed a few days to consider the plea offer made by the prosecution. He advised the court that he believed he had a small chance of proving his "innocence" not because [he feels] that [he] is "guilty" but because his trial attorney had not investigated the case and did not listen to him. Belfer's trial counsel informed the court that he: (a) had represented Belfer for a long time; (b) was fully familiar with the facts and circumstances of Belfer's case; (c) had participated in extensive pretrial hearings; (d) had received unredacted discovery material from the prosecution; and (e) was prepared to proceed with the trial. The court declined to adjourn the proceedings for several days. Instead, the trial court concluded the voir dire proceedings and then adjourned the matter to the following morning. The court advised Belfer that he could use the time between the conclusion of that day's court proceedings and the following morning, when court would resume, to consider the plea offer that the prosecution had made.
The next morning, the petitioner's trial counsel advised the court that Belfer had determined to accept the plea offer. During the pleading proceeding, the trial court discussed with Belfer, the maximum exposure he faced without a plea bargain, including the fact that the petitioner faced the prospect of receiving consecutive sentences, if he were to be found guilty at a trial. The court explained that under the terms of the plea offer made by the prosecution, Belfer would face a more limited exposure because the plea offer afforded him the opportunity of receiving concurrent sentences that would reduce the period he would potentially have to remain incarcerated. The court also reviewed with Belfer each of the four charges to which he was tendering a plea of guilty, and Belfer acknowledged that he was guilty of each charge, notwithstanding the criticism Belfer leveled against his trial counsel the day before he tendered his plea of guilty. Belfer advised the court that he was pleading guilty of his own free will, and that no one had either forced him or threatened him to induce him to plead guilty. Moreover, the petitioner informed the court that he understood he did not have to plead guilty and, furthermore, he was aware that all jurors for his trial had been selected and were waiting in another room for the trial to commence. Belfer also noted he understood that the prosecution's witnesses were all available to testify at the trial. Moreover, Belfer acknowledged he was pleading guilty because it was, in his estimation, the best option for him considering his age, health and all the circumstances surrounding the case.
Based on the record as a whole, the Court finds that Belfer's plea of guilty was made knowingly, intelligently and voluntarily. Belfer was aware of his right to have a trial and that by pleading guilty the trial court would not summon the jurors, who had been selected for his trial and were awaiting its commencement, to the courtroom to begin hearing the prosecution's evidence against him. Furthermore, Belfer made clear to the court that he was pleading guilty of his own free will and knew he did not have to plead guilty, but could proceed with the trial. The record supports a finding that Belfer knew the charges made against him and the consequence of pleading guilty, that is, that he exposed himself to receiving a sentence of 12 ½ to 25 years imprisonment. Inasmuch as the record generated at the time Belfer tendered his plea of guilty shows affirmatively that Belfer knew the nature of the charges made against him, the consequences of his guilty plea and the rights that he was relinquishing through his plea, the record satisfies the requirements set forth inBradshaw that are noted above.
Since the Court finds that Belfer's plea was made knowingly, intelligently and voluntarily and, further, that the state court decided this claim correctly, Belfer is not entitled to the relief he seeks, through the instant application for the writ.
Unconstitutional Sentence
As noted earlier in this writing, a state prisoner may not obtain habeas corpus relief unless it is determined that the petitioner is being held by the state in violation of the Constitution, laws or treaties of the United States. No federal constitutional issue exists when the sentence imposed by a court is within the statutory range fixed by a state legislature. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Belfer maintains the trial court sentenced him improperly upon his conviction for first-degree criminal use of a firearm because the sentence he received, 12 ½ to 25 years imprisonment, exceeds the statutory minimum and is unauthorized by PL § 265.09(2).
The thrust of Belfer's argument is that PL § 265.09(2) bars a person, like him, who is charged as an accomplice, pursuant to PL § 20.00, from being sentenced for committing first-degree criminal use of a firearm. In support of his position, Belfer relies upon the Amelioration Doctrine discussed above. For the reasons outlined earlier in this writing, which will not be repeated here, the Amelioration Doctrine has no application to the facts of the instant case.
Upon his conviction for violating PL § 265.09, Belfer exposed himself to an indeterminate term of imprisonment of one-half the maximum sentence for any class B violent felony for which he was simultaneously found guilty. See PL § 70.02(3). Since the maximum sentence for each of the two class B violent felony offenses for which Belfer pled guilty, first-degree manslaughter and attempted second-degree murder, is 25 years imprisonment, the sentence imposed on Belfer for first-degree criminal use of a firearm, 12 ½ to 25 years, is within the range prescribed by the Legislature for that offense. Therefore, Belfer's sentencing claim is not cognizable on federal habeas corpus review and he may not obtain any relief through the instant petition based on this ground.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petition be denied.