Opinion
No. 03 Civ. 2458 (CBM)
November 4, 2003
Lorraine Maddalo, for Petitioner
Lynetta M. St. Clair, for Respondents
MEMORANDUM OPINION AND ORDER
In this habeas proceeding pursuant to 28 U.S.C. § 2254, petitioner Victor Garcia has failed to establish a violation of his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). He has, however, established a violation of his rights underStrickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
BACKGROUND
Trial ProceedingsPetitioner was convicted in the New York Supreme Court, Bronx County, on March 24, 1997, of two counts of murder in the second degree and four counts of robbery in the first degree. He was sentenced to two concurrent terms of incarceration of twenty-five years to life on each count of murder in the first degree, to run consecutively with four consecutive terms of incarceration of eight and one third to twenty-five years on the counts of robbery in the first degree. His aggregate sentence was fifty-eight and one third years to life.
During jury selection at petitioner's trial, defense counsel raised aBatson claim, arguing that the prosecution was using its peremptory challenges in a discriminatory manner to strike Latino jurors. After the prosecution challenged all three prospective Latino jurors in the second round of jury selection, the court, agreeing that there was a prima facie case of discrimination, required that the prosecution provide race-neutral reasons for those challenges. After hearing the proffered reasons, the court found that in the case of one of the challenged Latino jurors, Vasquez, the prosecution's reasons for exercising the peremptory challenge were discriminatory, and reseated the juror. The prosecution's next challenge was exercised against Marlene Arce, and defense counsel, believing her to be Latina, renewed his Batson motion. The court refused to require the prosecution to provide reasons for this challenge because "nothing about [Ms. Arce] suggested to" the court that she was Latina. The
prosecution stated that "To me she was white." Defense counsel reasserted his belief that she was Latina. Defense counsel's request that something be done to verify her ethnicity was denied. When the prosecution used a peremptory challenge to strike another prospective Latina juror, Erida Velez, in the next round of jury selection, the defense again raised a Batson claim. The court did not require the prosecution to provide race-neutral reasons for its challenge and announced that "Based on the grounds stated, the objection is overruled." Defense counsel made no object to the court's handling of this claim.
Direct Appeal
On direct appeal, petitioner argued, inter alia, that the trial court's denial of his Batson motion deprived him of his Sixth and Fourteenth Amendment rights to equal protection and a fair trial. The Appellate Division affirmed the conviction, finding that the trial court made a suitable inquiry into the potential juror whose ethnicity was questioned, and that "[w]hen the prosecutor stated that she did not believe that this juror was Latina, and the court found that belief to be sincere, this was sufficient to complete theBatson process and establish that the prosecutor had no intent to discriminate against that venireperson on the basis of ethnicity." The court also found that the claim regarding the failure of the trial court to require that the prosecution provide race-neutral reasons for challenging Ms. Velez was unpreserved for appellate review. Leave to appeal to the New York Court of Appeals was denied on November 8, 2000.
Motion to Vacate Judgment
On July 10, 2001, petitioner moved to vacate his conviction, pursuant to N.Y.C.P.L. § 440.10(1)(h). His motion was based on facts contained in affirmations by petitioner, his sister, and his appellate counsel. He claimed that he was denied the effective assistance of counsel at plea negotiations because his counsel misinformed him as to his maximum possible sentence, stating that the maximum was twenty-five years to life, and that this misinformation dissuaded him from accepting an alleged pre-trial plea bargain of fifteen years. The court denied the motion without a hearing. The court found that affirmations submitted by the prosecution — one by the trial prosecutor, affirming that her notes indicated that no plea offer with a sentence of fifteen years to life was made to petitioner, and one by petitioner's trial lawyer, in which he refuted petitioner's allegations regarding the alleged plea and his alleged pre-trial advice to petitioner — provided sufficient proof to warrant summary denial of petitioner's motion pursuant to C.P.L. § 440.30(4)(c), which provides as follows:
4. Upon considering the merits of the motion [to vacate a judgment], the court may deny it without conducting a hearing if: . . .
(c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof;
The court added that its own records indicated that, "once the cases were sent to Part 24 for trial," no plea offer with a sentence of fifteen years to life was made. The court also concluded that there was no "objective evidence" that defendant would have accepted a plea offer with a sentence of fifteen years to life, had one been made.
Leave to appeal was denied by a Justice of the Appellate Division, First Department, in an order entered on September 12, 2002.
DISCUSSION
Petitioner raises two claims: (i) that the trial court's handing of theBatson claims violated his right to equal protection, and (ii) that his trial counsel's advice regarding his potential sentencing exposure violated his right to effective assistance of counsel.
A. Standard of review, 28 U.S.C. § 2254:
Pursuant to 28 U.S.C. § 2254, habeas relief may not be granted with respect to a claim that was adjudicated on the merits in state court proceedings unless the adjudication resulted in a decision
(1) that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or
(2) that 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) (1994).B. Procedural default
Federal habeas review is barred where a state prisoner has defaulted his or her federal claims in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). The Second Circuit Court of Appeals has recently clarified that, in the context of a state procedural rule, the relevant question with regard to determining "adequacy" is whether application of the rule is "firmly established and regularly followed" in the specific circumstances presented in the case.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003).
No bar to federal habeas review exists "unless `the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (quoting Harris v. Reed. 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1989)). Where "the last reasoned opinion" on a claim explicitly imposes a procedural default, it is presumed that a later decision rejecting the claim "did not silently disregard that bar and consider the merits." See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (19991).
C. Petitioner's arguments: 1. Bats on issue
Petitioner's Batson arguments concern the peremptory challenges brought by the prosecution against two potential jurors: Arce and Velez. In Batson v. Kentucky, the Supreme Court set forth a three-part test that trial courts are to employ in evaluating allegations of race-based exercise of peremptory challenges.:
(1) First, the trial court must decide whether the party challenging the peremptory strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race.
(2) Second, if that showing has been made, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror.
(3) Finally, if a race-neutral explanation has been given, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723-24.
a. Potential juror Arce
The adjudication of the Batson claim concerning potential juror Arce was neither contrary to nor an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). Nor was it based on an unreasonable determination of the facts. See id. § 2254(d)(2). The trial court adhered to the Batson framework, giving petitioner's counsel adequate opportunity to carry his step-one burden of making a prima facie case of purposeful discrimination. There can be no purposeful discrimination by a non-movant against a potential juror on the basis of her Latino ethnicity where the potential juror does not appear to the non-movant to be Latina. Here, where both the impressions of the court and the stated impressions of the prosecutor were that Arce was not Latina, the court acted reasonably in determining that Arce did not appear to be Latina and, therefore, that defense counsel had not made out a prima facie case of purposeful discrimination. It was not unreasonable for the court to refuse additional factual inquiry into Arce's actual ethnicity, since the question of Arce's apparent ethnicity was the salient one. We therefore reject this claim. b. Potential juror Velez
In the absence of a showing by petitioner of cause and prejudice with regard to the default of his claim regarding Velez, or that failure to consider the claim would result in a fundamental miscarriage of justice, the default acts as a bar to federal habeas review. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565 (1991);Peterson v. Scully, 96 F.3d 661 (2d Cir. 1990) (holding that where a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with a "contemporaneous objection" rule such as N.Y.C.P.L. § 470.05(2), a federal court generally may not consider the merits of the constitutional claim on habeas corpus review.)
The rule that a claim alleging a departure from the Batson protocols by the trial court is unpreserved for review if it is not raised at the trial court level is "firmly established and regularly followed." See, e.g., People v. Cruz, 748 N.Y.S.2d 14 (N.Y.App.Div. 2002); People v. McLeod, 722 N.Y.S.2d 507 (N.Y. A.D. 2001); People v. Swails, 672 N.Y.S.2d 874 (N.Y.App.Div. 1998). New York's contemporaneous objection rule, N.Y.C.P.L. § 470.05 "require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error." People v. Luperon, 85 N.Y.2d 71, 78 (2d Cir. 1995).
The last state court to render a judgment with respect to this claim was the Appellate Division. It "clearly and expressly" stated that its judgment rested on a state procedural bar. See Levine, 44 F.3d at 126. Although the court indicated how it would rule if it were to review the claim, it stated that, because of the default, it declined to review the claim. The subsequent order of the Court of Appeals denying leave to appeal without comment does not remove the-procedural bar. See id. We therefore decline to review this claim.
2. Ineffective assistance of trial counsel
A claim of ineffective assistance of counsel requires a showing that (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 687-96, 104 S.Ct. at 2064-69.
The trial court's treatment of petitioner's motion to vacate the judgment on grounds of ineffective assistance of counsel was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2). Contrary to the court's conclusion, there was no allegation of fact essential to support the motion that was "conclusively refuted by unquestionable documentary proof," and thus there was no basis for the denial of a hearing on the issue. See N.Y.C.P.L. § 440.30(4)(c). The allegation that a pre-trial plea offer of 15 years to life had been made was contradicted only by sworn allegations. The allegation that petitioner's trial counsel erroneously advised petitioner regarding his maximum sentencing exposure was refuted only by an affirmation by petitioner's trial counsel himself. Without holding a hearing on the issue, the court chose to credit this affirmation over the contradictory affirmation given by petitioner's appellate counsel. The allegation that petitioner would have accepted a plea offer of fifteen years to life was refuted only by petitioner's unwillingness to abandon his claims of innocence. It was unreasonable for the court to determine that a claim of innocence on the part of petitioner, in the form of a statement in the presentence report, constituted "unquestionable documentary proof that petitioner, if he had been correctly advised by his trial counsel as to his maximum sentencing exposure, would have refused a plea bargain of fifteen years to life. See, e.g., Mask v. McGinnis, 233 F.3d 132, 142 (2d Cir. 2000) (holding that petitioner's protestations of innocence did not forestall a conclusion that he would have been amenable to a reasonable plea offer.).
Regardless of whether, under N.Y.C.P.L § 440.30(4)(c), the court was precluded from resolving this motion without a hearing, it was unreasonable, in the light of the parties' contradictory factual allegations regarding the alleged fifteen-year plea and the advice given by petitioner's trial counsel, to resolve the disputed issues without a hearing. In U.S. v. Gordon, the Second Circuit Court of Appeals found that a petitioner making similar allegations had satisfied bothStrickland prongs. See U.S. v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998). In that case, defense counsel's underestimation of his client's sentencing exposure, contained in a letter informing the client that his maximum term of incarceration was 120 months, when in fact the guideline range for imprisonment was 262 to 327 months, was held to satisfy the first Strickland prong. See Gordon, 156 F.3d at 380. As to the second prong, the Court of Appeals affirmed the district court's finding that whether the government had made a formal plea offer was irrelevant, since the defendant "was nonetheless prejudiced because he did not have accurate information upon which to make his decision to pursue further plea negotiations or go to trial." Id The Court of Appeals found that the disparity between the actual sentencing exposure and the exposure as represented by defendant's attorney, when combined with a post-trial statement by the defendant that, but for his attorney's advice, he would have taken whatever plea had been offered, supported a finding of prejudice underStrickland, Id. at 380-81. In this case, where an analogous disparity was alleged, and petitioner had stated that, but for his attorney's advice, he would have taken a plea of fifteen years to life, the trial court acted unreasonably in refusing to hold a hearing.
The alleged procedural bar to this claim does not serve as an independent and adequate state ground prohibiting federal habeas review. The trial court's ground for denying a hearing on the ineffective assistance of counsel claim was not "independent" from the federal claim, since, rather than being simply procedural, it required consideration of the merits. Indeed, the provision under which the hearing was denied states that it is only " upon considering the merits"of a motion to vacate that the court may deny the motion without a hearing. N.Y.C.P.L. § 440.30(4)(c) (emphasis added).
CONCLUSION
We reject as meritless petitioner's Batson claim concerning potential juror Arce, and decline to review his Batson claim concerning potential juror Velez. We find that petitioner has demonstrated a violation of his rights under Strickland, and therefore grant his writ of habeas corpus on this ground. Since more than six years have elapsed since petitioner's trial, it is unlikely that a hearing to resolve the disputed factual issues regarding any pre-trial plea offers and legal advice from petitioner's trial counsel would be productive. Petitioner's convictions shall, therefore, be dismissed, unless a new trial is commenced within sixty days of the date of entry of this order.
SO ORDERED.