Hayes v. Tracy

Full title: RANDOLPH HYES Petitioner, v. FRANK TACY, Superintendent, Respondent

Court: United States District Court, E.D. New York

Date published: Jan 5, 2005

03CV5237 (SLT) (E.D.N.Y. Jan. 5, 2005)

Opinion

03CV5237 (SLT).

January 5, 2005

MEMORANDUM ORDER

SANDRA TOWNES, District Judge

The petition for a writ of habeas corpus is denied. This memorandum briefly addresses Petitioner's claims.

I. Facts and Procedural History

Petitioner Randolph Hayes ("Petitioner") was charged under Kings County Indictment 6256/2000 with multiple counts of criminal sale of a controlled substance in the first, second, and third degrees, multiple counts of criminal possession of a controlled substance in the first and third degrees, two counts of weapons possession, and one count of conspiracy.¹ These counts represent multiple incidents in which Petitioner allegedly possessed and/or sold cocaine to undercover police officers on ten days in 1999 and 2000. On September 21, 2000, Petitioner pleaded guilty to two counts of Criminal Sale of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.41 (1)). He was represented by counsel at the proceeding. His plea was in full satisfaction of the indictment, and in exchange for the promised consecutive prison terms of seven years to life and three years to life. On October 6, 2000, the trial court, New York State Supreme Court, Kings County (Justice Neil Firetog), sentenced Petitioner to the term of imprisonment promised in the plea agreement. Petitioner appealed his sentence to the New York State Supreme Court, Appellate Division, Second Judicial Department ("Appellate Division") on December 3, 2001. The Appellate Division unanimously rejected his appeal and affirmed Petitioner's sentence. People v. Hayes, 293 A.D.2d 964 (N.Y.App. Div 2002) (2^nd Dep't). The Court of Appeals denied Petitioner's application for leave to appeal on August 29, 2002. People v. Hayes, 98 N.Y.2d 710 (N.Y. 2002).

1 The specific counts are: five counts of Criminal Sale of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.43(1)); two counts of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21 (1)); three counts of Criminal Possession of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.41 (1)); four counts of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.18 (1)); one count of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39(1)); fourteen counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1)); two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (N.Y. Penal Law § 220.03 (1)); one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03 (2)); one count of Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01 (1)); and one count of Conspiracy in the Second Degree (N.Y. Penal Law § 105.15).

On October 9, 2003, Petitioner filed the instant petition, claiming he was deprived of the effective assistance of counsel and that he was sentenced under a statutory sentencing guideline in violation of the Constitution. (Pet. ¶ 13.) He simultaneously moved to place this petition on a suspended calendar pending further exhaustion of his state remedies. On November 11, 2003, the District Attorney filed its opposition to the petition. On December 23, 2003, this Court (GLEESON, J.) granted Petitioner's request on the condition that he return to the Court within 30 days of the Appellate Division's decision. An order which granted to Petitioner the same relief while correcting a technical error was signed March 18, 2004.

On April 15, 2004, Petitioner's motion to vacate his judgment of conviction pursuant to N.Y. Crim Proc. § 440.10 was denied by the trial court. In his motion, Petitioner alleged he did not receive effective assistance of counsel and that the statutory scheme under which he was sentenced was unconstitutional. (Mem. of Law in Sup. of Motion to Vacate J. Pursuant to CPL 440.10 ("440.10 Motion").) On August 12, 2004, the Appellate Division denied his application for leave to appeal the trial court's decision. On September 29, 2004, this Court vacated the stay of Petitioner's writ of habeas corpus and ordered the Respondent to submit his brief and the record. This Court heard oral argument on November 19, 2004.

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits in state court only if it concludes that the adjudication of the claim "(1) 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; or (2) resulted in a decision 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).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'CONNOR, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applies clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d. Cir. 2000) (internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, 341 F.3d 104 (2d Cir. 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, 340 F.3d 63, 72 (2d Cir. 2003).

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). Since the trial court heard and ruled on the Petitioner's motion to vacate, in which he raised the same claims as he does in his habeas petition, and the Appellate Division denied him leave to appeal from that decision, his claims are exhausted and properly before this court.

V. Analysis of Claims²

A. Ineffectiveness of Counsel Claim

2 Petitioner does not question the validity of his plea directly. However, reading his pleadings liberally, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), they could suggest that his plea was generally defective. The trial court, however, found that his plea was voluntary, intelligent and knowing.
Under the Constitution, a guilty plea is "valid only to the extent it is voluntary and intelligent." Bousley v. United States, 523 U.S. 614, 618 (U.S. 1998) (quotation marks omitted). "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.'" Hewitt v. Griener, 2003 U.S. Dist. LEXIS 13642, *15 (E.D.N.Y. 2003) (quoting Hill v. Lockhart, 474 U.S. at 52, 56 (1985)).
Petitioner's pleadings belie a claim that his plea was not valid. In his 440.10 Motion, Petitioner wrote, "Faced with decades in jail defendant was under extreme duress as to accept a plea bargain or proceed to trial based on counsel's advice." (440.10 Motion at 6.) On its face, this statement demonstrates that he considered his options, and although they caused him great distress, he made a voluntary and intelligent choice among them. Moreover, his situation is no different from that of any criminal defendant in similar circumstances, and therefore cannot invalidate his plea. Further, during his plea allocution, he stated, under oath, that no one forced or coerced him to plead guilty, and that he pleaded guilty of his "own free will." See Plea Hearing Tr., at 5. This Court holds that Petitioner's plea was voluntary and intelligent, and therefore valid. As a result, the trial court's decision with respect to this issue was not contrary to or an unreasonable application of Federal law.

"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged . . . [h]e may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [ Mann v. Richardson, 397 U.S. 759, 771 (1970)]." Tollett v. Henderson, 411 U.S. 258, 267 (U.S. 1973). This challenge is "governed by the two-part Strickland v. Washington [ 466 U.S. 668 (1984)] test." Tate v. Wood, 963 F.2d 20, 26 (2d Cir. 1992) (citing Hill, 474 U.S. at 58); see also United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002).

In Strickland, the Court wrote: "The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. To evaluate counsel's conduct, the court crafted and applied a two-part test.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defendant. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687.

With respect to the first prong of Strickland, Petitioner must demonstrate that counsel's advice "was not within the range of competence demanded of attorneys in criminal cases." Mann, 397 U.S. at 771; see also Tollet v. Henderson, 411 U.S. 258, 266 (1976) ("The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.").

"To satisfy the `prejudice' requirement, the defendant 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." Hill v. Lockhart, 474 U.S. 52, 59 (U.S. 1985). The Second Circuit requires "some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon, 156 F.3d 376, 380-81. (2d Cir. 1998)).

Petitioner claims that he would not have pleaded guilty if he had been "adequately represented." Specifically, he claims he was denied effective assistance of counsel because his attorney failed to (1) "adequately investigate the factual circumstances of defendant's charges;" (2) file any suppression motions; (3) seek a suppression hearing; (4) "challenge the lawfulness of defendant's arrest and detention as well as the fruits thereferom"; and/or (5) "challenge the lawfulness of intercepted telephonic communications." (440.10 Motion at 3.) He also claims that counsel was ineffective for failing to move for severance from his co-defendants. (440.10 Motion at 6.) The trial court denied his ineffective assistance of counsel claims citing Strickland and an analogous New York case, People v. Benevento, 91 N.Y.2d 708 (1998).

1. Failure to Investigate

Petitioner's claim that counsel was ineffective for failing to "adequately investigate the factual circumstances of defendant's charges" relies on possible factual defenses to Petitioner's conviction. Specifically, Petitioner claims counsel failed to investigate Petitioner's allegations (1) that no "buy money was recovered from defendant;" (2) that he was "either misidentified or not sufficiently identified as the being the seller of cocaine to an undercover police officer;" (3) "the video and sound recordings allegedly made against [ sic] defendant were on some occasions not working;" and (4) "there is absolutely no chain of custody which sufficiently documents the retrieval of cocaine from defendant and adequately establishes that such cocaine was delivered in a tamper proof manner for testing and further that said cocaine actually tested positive for cocaine." (440.10 Motion at 5.)

"The performance and prejudice prongs of Strickland may be addressed in either order, and `if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'" Miller v. New York, 275 F.Supp. 2d 294, 298 (E.D.N.Y. 2003) (quoting Strickland, 466 U.S. at 697). "Where the alleged error of counsel is a failure to investigate . . . the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." See Hill, 474 U.S. at 59.

The issues cited above apparently result from Petitioner's analysis of the materials demonstrating the factual basis for the 34 counts in the indictment, specifically the Rosario ³ and Brady ⁴ materials.⁵ These materials demonstrate the strengths and weakness of the state's case, and were in counsel's possession prior to Petitioner's plea. However, the Rosario materials presumably included statements from the undercover police officers to whom he allegedly sold cocaine. Even if the statements were not included, Petitioner does not allege these officers would not have testified against him had he gone to trial. Moreover, none of the issues he raises suggests that further investigation would have uncovered materials that could contradict the officers' sworn testimony. In addition, he has not alleged that counsel did not take into account these potential weaknesses when she counseled him to plead guilty.⁶ Thus, Petitioner has failed to establish that but for counsel's failure to investigate he would not have pleaded guilty. See United States v. Carraballo, 2001 U.S. Dist. LEXIS 1121 (S.D.N.Y. Feb. 8, 2001) (rejecting a claim of ineffective assistance of counsel, where "[petitioner] has presented nothing to suggest either what exculpatory evidence would have been discovered through a more thorough defense investigation, nor that a rational factfinder would have found him not guilty.").

3 People v. Rosario, 9 N.Y.2d 286, 289 (N.Y. 1961) (requiring prosecutors to disclose statements made by their witness, holding "a right sense of justice entitles the defense to examine a witness's prior statement, whether or not it varies from his testimony on the stand.").

4 Brady v. Maryland, 73 U.S. 83, 87 (U.S. 1963) ("[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").

5 In his 440.10 motion, Petitioner wrote: "Yet, a cursory inspection of the records in counsel's possession as well as the gravity of the charges should have given reasonably adequate counsel enough information to at least subject the prosecutions [ sic] case to meaningful adversarial testing before advising defendant to enter a plea." (440.10 Motion at 6.) At another point in his motion, he refers specifically to Rosario and Brady materials. ( See 440.10 Motion at 5.)

6 No affidavit was requested of or filed by Petitioner's counsel.

Even if counsel's failure prejudiced Petitioner, it was not unreasonable. See e.g., United States v. Jimenez, 2002 U.S. Dist. LEXIS 4449, *7 (S.D.N.Y. Mar. 18, 2002) (where there was overwhelming evidence to support a conviction, attorney was not unreasonable for failing to investigate "mitigating circumstances"); Rojas v. United States, 2001 U.S. Dist. LEXIS 21031, *22 (S.D.N.Y. Dec. 17, 2001) (refusing to find ineffective assistance of counsel where defendant waived the right to appeal in exchange for numerous tangible benefits pursuant to a plea agreement negotiated by counsel).

2. Failure to File Pre-Trial Motions

The remainder of Petitioner's claims refer to counsel's failure to file pre-trial motions, specifically motions to suppress, a motion to controvert the eavesdropping warrant, and a motion for severance. With respect to the suppression motions, "[i]n order to show ineffective assistance for the failure to make a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed." United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990) (citing Kimmelman v. Morrison, 477 U.S. 365, 375-76 (1986)). Other than his bare assertion that "[c]ounsel failed to seek suppression of the identification evidence against defendant as being suggestive or police arranged," Petitioner has not alleged how his rights were violated in the investigation of his case. Thus, he has not established on what basis counsel would have moved to suppress.

Petitioner has also not alleged how the eavesdropping warrant was defective, and therefore has not shown what he lost as a result of counsel's failure to challenge it. See Gil v. Mazzuca, 2004 U.S. Dist. LEXIS 3105 (S.D.N.Y. Mar. 3, 2004) (rejecting an ineffectiveness of counsel claim where Petitioner failed to demonstrate how challenges to an eavesdropping warrant would have been successful). Finally, Petitioner's claim that counsel was ineffective for failure to file a motion to sever fails because he does not demonstrate that he lost an advantage due to counsel's failure. See United States v. Autullo, 1993 U.S. Dist. LEXIS 7428 (D. Ill. May 7, 1993) (denying an ineffective assistance of counsel claim based on, inter alia, counsel's failure to file a motion for severance where petitioner did not demonstrate how the failure to file the motion disadvantaged him).⁷ Thus, Petitioner has not shown that counsel's decision not to file pre-trial motions was unreasonable. See Tollet, 411 U.S. at 268 ("Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution . . . A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement . . . might be factually supported." (citations omitted)).

7 This claim is also irrelevant in light of Petitioner's guilty plea. See United States v. Brown, 870 F.2d 1354, 1360 (7th Cir. 1989) ("A guilty plea renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt. While a motion for severance is granted to avoid the taint of prejudice which may occur when two or more defendants are joined in the same trial, that concern is simply erased when a defendant pleads guilty." (citation omitted)).

Petitioner's plea agreement also demonstrates that counsel's failure to file pre-trial motions or investigate did not prejudice him. See Feliz v. United States, 2002 U.S. Dist. LEXIS 15661, *20 (S.D.N.Y. Aug. 22, 2002) ("No prejudice exists when a plea agreement lessens the severity of the sentence the defendant would face if convicted at trial."). Pursuant to the plea agreement, Petitioner pleaded guilty to two counts of Criminal Sale of a Controlled Substance in the Second Degree in full satisfaction of the 34 counts in the indictment. Had he been convicted of one of the five counts of Criminal Sale of a Controlled Substance in the First Degree, he would have been sentenced to term with a minimum of fifteen to twenty-five years and a maximum of life, for each count. Thus, there is no reasonable probability that Petitioner would not have taken the plea agreement had counsel filed pre-trial motions, or done more factual investigation. See Hill, 411 U.S. at 59.

In addition, Petitioner's ineffective assistance of counsel claims are undermined by his statements, under oath, during his plea hearing. During his plea allocution, he stated that he was satisfied with counsel's representation. See Plea Hearing Tr., at 7. Petitioner also said he understood all of the rights he was waiving by virtue of pleading guilty. See Plea Hearing Tr., at 5-7. There is no evidence in the record, particularly in the sentencing minutes, that Petitioner desired to take the matter to trial. Thus, counsel's failure to investigate or pursue pre-trial motions did not evidence ineffectiveness of counsel. See Agyekum v. United States, 2002 U.S. Dist. LEXIS 8706, *17 (S.D.N.Y. May 16, 2002).

Since the trial court's ruling that Petitioner was not deprived of effective assistance of counsel were not contrary to or an unreasonable application of Federal law, Petitioner's claim fails.

B. Sentencing Scheme Claim

Petitioner's claim that the scheme under which he was sentenced is unconstitutional fails on the merits. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant pleaded guilty to two counts of second degree possession of a firearm for an unlawful purpose, and one count of third degree possession of an antipersonnel bomb. Id. at 469-70. In the plea agreement, the state reserved the right to request a sentencing enhancement on the possession of an antipersonnel bomb count, and received one by proving to the sentencing court by a preponderance of the evidence that "the crime was motivated by racial bias." Id. at 470-71. The sentencing range for the count was five to ten years. With the enhancement, the defendant was sentenced to twelve years of imprisonment. Id. at 471.

He subsequently challenged his sentence claiming that this finding of racial bias should be presented to a jury and established beyond a reasonable doubt. Id. The Supreme Court agreed, and held:

If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not — at the moment the State is put to proof of those circumstances — be deprived of protections that have, until that point, unquestionably attached.

Id. at 484. In other words, "[o]ther than the fact of a prior conviction, any fact that increases the prescribed penalty for a crime beyond the maximum statutory must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Thus, "[j]udicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments." Harris v. United States, 536 U.S. 545, 558 (2002) (emphasis added). The Apprendi court held that the New Jersey scheme in this case was "an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system," and remanded the case. Id. at 497.

Here, Petitioner pleaded guilty to certain counts in the indictment. He was not, however, sentenced to a term of imprisonment greater than the range authorized for his crime, nor was there any subsequent judicial fact-finding in the determination of his sentence. The crime of Criminal Sale of a Controlled Substance in the Second Degree is a Class A-II felony under New York law, for which the minimum term of imprisonment is 3 to 8 1/3 years and the maximum is life. N.Y. Penal Law § 70.00. The sentencing court did not increase his penalties in violation of the Constitution. Thus, the trial court's ruling rejecting this challenge, distinguishing Petitioner's challenge from that posed in Apprendi, was not contrary to or an unreasonable application of Federal law. This Court must therefore deny Petitioner's claim for habeas relief.

VI. Conclusion

The petition for a writ of habeas corpus is denied. No certificate of appealability is granted.

SO ORDERED.