Opinion
99 Civ. 11309 (SAS)
August 1, 2000
John Berdecia, petitioner, Pro Se.
Nancy D. Killian, Esq., Assistant District Attorney, Bronx, New York, for respondent.
OPINION ORDER
Pro se petitioner John Berdecia seeks, pursuant to 28 U.S.C. § 2254, a writ of habeas corpus vacating his sentence on the following grounds: (1) ineffective assistance of counsel; (2) involuntariness of his plea; (3) illegal arrest due to an unlawful search and seizure; (4) violation of Miranda rights; and (5) excessive sentence. For the reasons discussed below, Berdecia's petition is denied.
I. Background A. Factual Background 1. The Offense
On October 13, 1993, at 1:20 p.m., police officers Douglas Davis and Jim Raab responded to a radio call concerning an assault at 3604 Bronx Boulevard in the Bronx. See 5/8/95 Wade Hearing ("Hearing"), Ex. 7 to 3/8/00 Affidavit of Assistant District Attorney Nancy D. Killian in Response to Petition for Habeus Corpus ("Killian Aff."), at 6-7. When the officers arrived, they saw a man holding petitioner. Id. at 7. The two men were surrounded by a crowd of ten to fifteen people. Id. Victoria Hitt approached the officers and told them that petitioner had just burglarized her apartment. Id. She showed the officers a pillowcase containing a Nintendo video game, a juicer, two pliers and two vice grip pliers, one of which contained the lock cylinder from her door. Id. at 9. Hitt told the police that when she arrived home that afternoon, she saw petitioner climb down the fire escape of her apartment, fall off, drop the pillowcase and run away. Id. at 10. She began yelling and screaming and several civilians apprehended petitioner. Id.
After speaking to Hitt, the police approached petitioner, who was bleeding from the head, and asked what had happened. Id. at 11-12. Petitioner told the officers that he had been assaulted by people in the crowd, but he refused to identify his assailants. Id. at 12. Hitt stated that petitioner was injured when he fell off the fire escape. Id. at 13, 18. The police again asked petitioner what happened. Id. At that point, petitioner told the officers: "I, in fact, broke into the house and I took the property." Id. at 18. The police placed petitioner under arrest and searched his jacket pockets. Id. at 16. In his pockets, the officers found jewelry belonging to Hitt. Id.
2. The Conviction
On May 18, 1995, petitioner pled guilty to Burglary in the Second Degree, in accordance with a negotiated plea and sentence agreement. See 5/18/95 Plea Agreement ("Plea"), Ex. 8 to Killian Aff., at 2. Pursuant to the plea, the court agreed that it would sentence petitioner to the statutory minimum sentence of three to six years imprisonment, to run consecutively to the sentence that he was already serving. See id. at 3-7. In pleading guilty, petitioner repeatedly acknowledged that he was waiving his right to appeal. See id. at 5-7. He agreed that, by pleading guilty, he waived his right to cross-examine the People's witnesses, and that all outstanding applications with respect to his case would automatically be withdrawn. Id. at 4-6. Petitioner acknowledged that no promises had been made to him in exchange for his guilty plea, other than the court's promise to sentence him to an indeterminate term of imprisonment of three to six years. Id. at 7-8. Petitioner admitted that on October 13, 1993, he and an unapprehended male broke into an apartment at 3604 Bronx Boulevard in Bronx County by removing the door cylinder and took a juicer, Nintendo game and some jewelry. Id. 8-9.
On September 8, 1992, petitioner pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree. He was released on bail until September 16, 1992. When he failed to surrender on that date, the court issued a warrant for his arrest. When he was arrested for the instant offense, petitioner was sentenced to four and one-half to nine years for this prior offense.
On May 30, 1995, the court arraigned petitioner as a second felony offender. See Sentencing Hearing ("Sentencing"), Ex. 9 to Killian Aff., at 2-4. The People recommended a sentence of five to ten years imprisonment. Id. at 5. Defense counsel requested that the court impose a sentence of three to six years, to run consecutive to the sentence he was already serving. Id. Petitioner declined to address the court. Id. at 5-6. The court imposed the promised sentence of three to six years imprisonment. Id. at 7.
B. Procedural Background
On direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department, petitioner, through his counsel Michael Paul, asserted claims under the Fourth, Fifth and Eighth Amendments to the Constitution. See Killian Aff. ¶ 6; see also 8/12/97 Brief by Petitioner's Counsel, Michael Paul, on Behalf of Defendant Appellant ("Paul Brief"), Ex. 1 to Killian Aff., at 3. Specifically, petitioner's Fourth Amendment claim alleged that certain incriminating statements should have been suppressed and that the police had no probable cause to arrest him. Id. Petitioner's Fifth Amendment claim alleged that his Miranda rights had been violated. Id. Petitioner's Sixth Amendment claim alleged that counsel was ineffective at the guilty plea stage of the proceedings and in failing to communicate with petitioner regarding a motion to withdraw his guilty plea. Id. Finally, petitioner's Eighth Amendment claim alleged that his sentence was excessive. Id.
By order of the Appellate Division, Jay Weiner was appointed co-counsel for petitioner. See 5/6/97 Order for Co-counsel ("Order"), Ex. 2 to Killian Aff., at 1; see also 2/24/98 Brief by petitioner's co-counsel, Jay Weiner, on Behalf of Defendant Appellant ("Weiner Brief"), Ex. 3 to Killian Aff., at 4-9. Weiner filed an appellate brief, arguing that the waiver of appeal entered by petitioner did not include the right to appeal his sentence. See Killian Aff. ¶ 6. The People filed a brief in response. See 5/98 Brief by District Attorney, Robert Johnson, on behalf of Respondent ("Resp. Brief"), Ex. 4 to Killian Aff. On October 6, 1998, the Appellate Division, First Department, unanimously affirmed petitioner's judgment of conviction. See 10/6/98 Judgment Order by Appellate Division, First Department ("Judgment Order"), Ex. 5 to Killian Aff., at 11-12.
On December 10, 1998, the New York Court of Appeals denied petitioner's application for leave to appeal. See 12/10/98 Certificate by State of New York Court of Appeals, Denying Leave ("Certif."), Ex. 6 to Killian Aff., at 1.
Petitioner now moves for habeas relief pursuant to 28 U.S.C. § 2254 claiming ineffective assistance of counsel and challenging the voluntariness of his plea. Specifically, petitioner alleges that "counsel didnot advi[s]e the defendant [of] the consequences of a plea waiver of appeal and [the] nature of said plea bargain." Petition for Writ of Habeas Corpus, dated October 24, 1999 ("Pet.") at 5. Petitioner further alleges that he was illegally arrested following an unlawful search and seizure, his Miranda rights were violated and his sentence was excessive.
II. Discussion A. Exhaustion of State Remedies
A petitioner must "present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Meatley v. Artuz, 886 F. Supp. 1009, 1013 (E.D.N.Y. 1995). Exhaustion can be achieved "either by direct appeal or through collateral post-conviction remedies." Id.
The exhaustion rule is satisfied "if the claim has been `fairly presented' to the state courts." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997). The "fair presentation" requirement is fulfilled if the state courts are aware of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Id. (quoting Daye v. Attorney General of N.Y., 696 F.2d 186, 191 (2d Cir. 1982)). And while exhaustion "does not require petitioner to cite `chapter and verse' of hornbook law, the federal constitutional nature of the claims must be `fairly presented' to the state court." Meatley, 886 F. Supp. at 1013.
By presenting his claims to the First Department on appeal, petitioner has exhausted his: (1) Fourth Amendment claim relating to an unconstitutional search and seizure; (2) Fifth Amendment claim relating to an alleged Miranda violation; (3) Eighth Amendment claim of an excessive sentence; and (4) Sixth Amendment claim of ineffective counsel. Accordingly, this Court may consider these claims on habeas review.
Although petitioner does not state that the sentence is excessive under the Eighth Amendment, I presume he is claiming that his lengthy sentence constitutes cruel and unusual punishment. In Daye, 696 F.2d at 186, the court described four ways in which a defendant could fairly present the constitutional nature of his claim to a state court without expressly referring to the constitutional provision. Petitioner has satisfied the third method by asserting "the claim in terms so particular as to call to mind a specific right protected by the Constitution." Id. at 194.
B. Standard of Review for Claims Adjudicated on the Merits in State Court
Claims that have been adjudicated on the merits in state court proceedings are governed by 28 U.S.C. § 2254(d) which precludes federal habeas relief unless the state-court adjudications "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (West Supp. 1999). Section 2254(d) applies, for example, where a state court denies an ineffective assistance of counsel claim on a writ of error coram nobis and the petitioner then seeks habeas relief on that ground. See Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000).
Until recently, the applicable standard of review under § 2254(d) was uncertain. See Clark, 214 F.3d at 320. Then, in Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000), the Supreme Court clarified the key phrases "contrary to" and "unreasonable application." With regard to the former, the Williams Court held that
a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.
Id. at 1519. With regard to the latter, the Court held that a
state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts or the particular state prisoner's case.
Id. at 1520. The Court emphasized that "unreasonable" is different from "incorrect" or "erroneous" stating: "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522.
Thus, following Williams, the power of a federal habeas court to grant a state prisoner's application with respect to claims adjudicated on the merits in state court is sharply circumscribed. The newly articulated standard prohibits a federal habeas court from substituting its own judgment for that of the state-court judge, requiring a great deal of deference to the state-court judgment. Moreover, the standard set forth in Williams abrogates the de novo review that was required under Brown v. Allen, 344 U.S. 443 (1953).
Prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of questions of law and mixed questions of law and fact was de novo, requiring a federal habeas court to treat the petition as a wholly new complaint. Under Brown, state-court adjudications were treated as nothing more than a potentially relevant authority. 344 U.S. at 458. Of course, pure questions of fact were accorded a statutory presumption of correctness both before and after AEDPA. See Swain v. Pressley, 430 U.S. 372, 383 (1977) ("a state judge's resolution of a factual issue will be presumed to be correct") (citing 28 U.S.C. § 2254(d)(2) and (3)). For historical context, in 1996 AEDPA redesignated former subsection(d) as (e).
In the instant case, § 2254(d) applies to petitioner's ineffective assistance of counsel and involuntary waiver claims. These claims — which involve either questions of law or mixed questions of law and fact rather than pure fact issues — were raised in petitioner's state court appeal but were found to lack merit. See People v. Berdecia, 678 N.Y.S.2d 716 (1st Dep't 1998). That these claims were summarily dismissed does not alter my conclusion that they were "adjudicated on the merits" for purposes of § 2254(d). See, e.g., Thomas v. Taylor, 170 F.3d 466, 474 (4th Cir.), cert. denied, 527 U.S. 1016 (1999) ("[T]he phrase `adjudication on the merits' in section 2254(d) excludes only claims that were not raised in state court, and not claims that were decided in state court, albeit in summary fashion."); Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999) (§ 2254(d) applies to all claims adjudicated on the merits, i.e., "those claims substantively reviewed and finally determined as evidenced by the state court's issuance of a formal judgment or decree"); Hannon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997) (perfunctory state-court rulings are nonetheless evaluated pursuant to § 2254(d) for reasonableness).
Section 2254(d) does not apply to plaintiff's Fourth, Fifth and Eighth Amendment claims. Although those claims were presented to the state court on appeal, they were not adjudicated on the merits. Instead, the state court dismissed those claims based upon "independent and adequate" state procedural grounds, thus barring any federal habeas review. See infra Part II.C.2.
Summary dismissal makes it more difficult, however, to review the state court's application of federal law, thus lessening the practical significance of the new standard. See Weeks v. Angelone, 4 F. Supp.2d 497, 522 (E.D.Va. 1998) ("In cases where there is no indication of how the state court came to its decision, it will obviously be more difficult for the federal court to judge whether the ultimate determination involved an unreasonable application of federal law."), appeal denied and pet. dismissed, 176 F.3d 249 (4th Cir. 1999). Nonetheless, this added difficulty does not abrogate the standard of heightened deference. A federal habeas court must review the state court ruling to determine whether there is a violation of the United States Constitution. See Edwards v. Murphy, 96 F. Supp.2d 31, 42 (D.Mass. 2000); see also Cardwell, 151 F.3d at 339 (where the state court decision fails to articulate any rationale for its adverse determination of petitioner's claim, federal habeas court cannot review state court's "application of clearly established Federal law" but must independently ascertain whether the record reveals a constitutional violation). In effect, where a state court summarily dismisses a petitioner's habeas claim, a federal habeas court is forced to engage in a type of de novo review — one which considers the facts of petitioner's case anew but employs the more deferential reasonableness standard described above.
C. Petitioner's Claims 1. Sixth Amendment Claim: Ineffective Assistance of Counsel/Voluntariness of Plea Agreement
The test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. A.L. Lockhart, 474 U.S. 52, 56 (1985); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970). Petitioner claims that his plea, including the waiver of his right to appeal, was involuntary because of ineffective assistance of counsel, and because the record was not clear that the plea represented petitioner's voluntary and intelligent choice.
a. Ineffectiveness of Counsel
Petitioner alleges that his plea was "involuntary" as a result of ineffective assistance of counsel. Where a defendant is represented by counsel during the plea process and enters his plea with the advice of that counsel, the voluntariness of the plea depends upon whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970).
Petitioner claims that counsel was ineffective in two other respects: (1) by failing to communicate to petitioner his right to make a motion to vacate his guilty plea; and (2) by "a denial of a suppression hearing ruling". See Pet. at 3. With respect to the former, petitioner may not challenge counsel's failure to inform petitioner of his "right to make a motion to vacate," because petitioner entered into a plea agreement waiving his right to appeal. See People v. Mingues, 681 N.Y.S.2d 802, 802 (3d Dep't 1998). Accordingly, review of counsel's assistance is limited to his assistance in connection with the plea agreement itself, precisely the issue discussed above. See id.
With respect to the latter, although petitioner characterizes his suppression claim as one of "ineffective assistance", he does not challenge his counsel's conduct. Instead, petitioner merely attacks the substantive ruling of the state court which is not subject to collateral review by this Court for the reasons stated supra note 10.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court adopted a two-part test to evaluate claims of ineffective counsel. This test is also applicable to ineffective assistance claims arising out of the plea process. Hill, 474 U.S. at 58-59.
To meet the first prong of the Strickland test, petitioner must prove that "counsel's representation fell below an objective standard of reasonableness," considering all of the circumstances. Strickland, 466 U.S. at 687-88. The Sixth Amendment does not itself set forth specific guidelines or criteria for evaluating an attorney's performance. Rather, the "objective standard of reasonableness" is derived from "the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the [ Sixth] Amendment envisions." Id. at 688. Therefore, "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id.
The second prong of the Strickland test requires defendant to show "that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 691.
The New York Constitution provides a general standard for measuring the performance of counsel. "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v. Baldi, 54 N.Y.2d 137, 147 (1981). "Meaningful representation" does not mean "perfect representation." See People v. Ford, 86 N.Y.2d 397, 404 (1995). When referring to a guilty plea, "a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." Id.
In the instant case, petitioner was indicted and charged with: (1) burglary in the second degree; (2) possession of burglar's tools; (3) criminal mischief in the fourth degree; and (4) criminal possession of stolen property in the fifth degree. See Paul Brief, Ex. 1 to Killian Aff., at 1. In accordance with his plea agreement, petitioner pled guilty to one count of burglary in the second degree. Petitioner was sentenced to three to six years, to run consecutively to the time remaining on a prior sentence. Id. at 2. Thus, petitioner received meaningful representation because his counsel was able to limit his sentence to the statutory minimum, rather than the prosecutor's recommended sentence of five to ten years.
Because petitioner fails to satisfy the first prong of the Strickland test, his plea was not involuntary due to ineffective assistance of counsel.
Because petitioner failed to meet the first prong of Stickland, it is unnecessary to consider the second prong of that test.
b. Petitioner's Waiver was Voluntary
Courts have a constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of the plea and its consequences. The record must clearly demonstrate that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Alford, 400 U.S. at 31.Similarly, although the right to appeal may be waived as a condition of a sentence or a plea bargain, the waiver must be voluntary. See United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1992). Thus, before a waiver of the right to appeal may be enforced, the record must be examined to insure that the waiver was voluntary, knowing and intelligent. See United States v. Tang, 99 Civ. 1726, 2000 WL 554690, at *3 (2d Cir. May 8, 2000) ("[A]ny waiver in [the] plea agreement of defendant's right to appeal [his] sentence was rendered unenforceable by [the] district court's failure to inform defendant of [the] consequences of such waiver and [to] inquire as to his understanding of it."). These requirements cannot be satisfied by a silent record. See Balbuena v. United States, 99 Civ. 6097, 2000 WL 776822, at *5 (S.D.N.Y. June 16, 2000).
Here, the record affords a sufficient basis for concluding that petitioner's waiver of his right to appeal was knowing, intelligent and voluntary. During petitioner's plea allocution, petitioner pled guilty to the charges against him, admitting that he broke into Hitt's apartment and stole some of her possessions. He then confirmed his acceptance of the agreed-upon sentence of three to six years in exchange for his guilty plea.
The record clearly indicates petitioner's understanding that he was waiving his right to appeal his conviction in exchange for a favorable sentence. He did not voice any objection to the plea agreement, nor did he move to vacate his conviction. The following discussion between the court and the petitioner satisfies the requirements of a knowing and voluntary waiver of the right to appeal:
THE COURT: Now, if you take this plea the trial ends right here and of course any — I don't recall what — as part of this plea bargain no appeal, Mr. Sanchez, as part of the arrangement, the plea bargain, no appeal as part of this favorable plea to your client. . . .
DEFENSE COUNSEL: He's read [sic] his right to appeal, Your Honor.
THE COURT: You, know, I'm not talking about his narcotics case. He may appeal that. . . . All we are talking about is this case, all right. Do you understand that, Mr. Berdecia?
DEFENDANT: Yes I do, Sir.
THE COURT: All right. And do you understand that as part of the minimum promised here that you are forfeiting your right to appeal or if there are any applications pending . . . they would be withdrawn, and if the plea goes in, you get the sentence on this case and only this case and that is the end of it. Do you understand all that?
DEFENDANT: Yes, Sir, I do.
THE COURT: And that is what you want to do?
DEFENDANT: Yes, sir.
Plea, Ex. 8 to Killian Aff., at 4-6.
The trial court inquired, on the record, whether petitioner understood the implications of his waiver. The court further explained to petitioner the extent of the appellate rights he would be waiving. There was nothing in petitioner's background to indicate that he did not understand the obvious meaning of the words he spoke when he waived his right to appeal. The trial court record amply supports the conclusion that petitioner agreed to plead and did so voluntarily, with knowledge and understanding of the consequences. Therefore, the plea is legally enforceable, and petitioner's claim regarding the voluntariness of his plea is dismissed.
2. Fourth, Fifth and Eighth Amendment Claims: Unconstitutional Search and Seizure, Miranda Violation and Excessive Sentence (respectively)
Habeas review is generally prohibited if a state court rests its judgment on an independent and adequate state ground. The Supreme Court held that "it will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 160 (1989); see also Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113, at *12 (S.D.N.Y. Aug. 25, 1995). To determine whether federal review is barred, the court must ask whether the state court's opinion contains a "`plain statement' that [its] decision rests upon adequate and independent state grounds." Harris, 489 U.S. at 261.
At his plea hearing, petitioner agreed that, by pleading guilty, he would withdraw all of his outstanding applications with respect to his case. See Plea, Ex. 8 to Killian Aff., at 5-7. He also relinquished his right to appeal. Id. On appeal, the Appellate Division, First Department, unanimously affirmed petitioner's judgment of conviction. See Judgment Order, Ex. 5 to Killian Aff., at 11-12. The court stated, "[T]he record establishes that defendant knowingly, intelligently and voluntarily pleaded guilty and waived his right to appeal as a condition of his plea. . . . and thus has waived appellate review of his current claims . . ." Id. (citing People v. Callahan, 80 N.Y.2d 273 (1992) and People v. Seaburg, 74 N.Y.2d 1 (1989)). By citing two New York Court of Appeal cases, both of which hold that a waiver of the right to appeal is valid and enforceable if knowingly, intelligently and voluntarily made, the Appellate Division conclusively rested its decision on New York law, qualifying the waiver as an independent and adequate state ground.
As discussed supra Part II.C.1.b., the outcome would be the same under applicable federal law which permits a criminal defendant to waive his right to appeal as a condition of a plea bargain, as long as that waiver is knowing and voluntary. See United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999); United States v. Ready, 82 F.3d 551, 557 (2d Cir. 1996).
Because petitioner's waiver of his right to appeal constitutes an adequate and independent state ground, his Fourth, Fifth and Eighth Amendment claims are barred from habeas review. There is, therefore, no need to address the merits of those claims.
Even if petitioner's Fourth Amendment claim was not barred from habeas review as a result of his waiver, under Stone v. Powell, 428 U.S. 465, 466 (1976), no federal habeas corpus relief is available on a Fourth Amendment claim unless the state denied the prisoner "an opportunity for full and fair litigation" of that claim. See also Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). Petitioner does not argue that he was denied an opportunity to fully and fairly litigate his Fourth Amendment claim in the state courts. Accordingly, petitioner's Fourth Amendment claim would be dismissed in any event.
III. Conclusion
For the foregoing reasons, petitioner's motion for habeas corpus relief is denied. The Clerk of the Court is directed to close this case.
SO ORDERED: