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explaining the district court could not find, nor could petitioner cite, to any Supreme Court case holding that a mandatory term of parole or post-release supervision is a direct consequence of a guilty plea
Summary of this case from Lockhart v. ChandlerOpinion
No. 03-CV-6186L.
August 30, 2004
DECISION AND ORDER
Petitioner, Eugene J. Lustyk, Jr. ("Lustyk"), filed a petition pursuant to 28 U.S.C. § 2254 to vacate his conviction in Ontario (New York) County Court on October 6, 1999. Lustyk pleaded guilty to an indictment charging driving while intoxicated ("DWI"), assault and related charges stemming from a high speed automobile chase which ended after Lustyk drove his automobile at two police officers striking one and narrowly missing another. Lustyk was sentenced on his plea by Ontario County Court Judge Frederic T. Henry, Jr. to three years on the assault charge and two and one-third to seven years, as a predicate felon, on the driving while intoxicated charge. Lustyk never filed a direct appeal from that judgment.
Two years after his conviction, Lustyk served a motion to set aside his sentence under N.Y. Crim. Proc. L. § 440.20 alleging that his sentence was invalid because he had not been apprised, at the time of sentencing, that he would be subject to a period of supervision on parole following his release from prison. Judge Henry denied the application by order entered October 4, 2001 (P. 83-84). Leave to appeal to the Supreme Court, Appellate Division, Fourth Department was denied. This habeas corpus petition was filed thereafter. For the reasons that follow, the petition is dismissed.
"P." signifies the petition filed by Lustyk on April 21, 2003 (Dkt. #1), together with the annexed memorandum of law and exhibits, all of which were bound together as one document.
DISCUSSION
Lustyk advances one substantive claim in his habeas corpus petition, although he references the defect in alternative ways. Lustyk claims that his state court conviction, which was based on his guilty plea, should be vacated because he claims he was never advised that he would be placed on post-release supervision upon his release from prison. He contends that this rendered his guilty plea involuntary. Lustyk also asserts that his then-attorney's failure to advise him about this mandatory term of supervision constituted ineffective assistance of counsel.
In assessing Lustyk's claims, I am mindful that habeas corpus petitions relate to alleged violations of federal constitutional law, not state law. Federal habeas corpus is not designed to be utilized as a mechanism to appeal alleged errors of state law occurring in state criminal proceedings. Federal courts do not sit as appellate courts, empowered to review state proceedings. See DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) ("an independent basis in federal law is an irreducible prerequisite to obtaining habeas relief, otherwise 'district courts in habeas corpus cases would sit as super state supreme courts . . .") (quoting Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997)).
In addition, under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for a writ of habeas corpus may not be granted with respect to a state court decision unless the state court's decision resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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)(1). This is a considerably more stringent standard than existed before AEDPA's enactment. As the Second Circuit has observed, "AEDPA changed the landscape of federal habeas corpus review by 'significantly curtailing the power of federal courts to grant the habeas petitions of state prisoners.'" Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019 (2002)); see also Bell v. Cone, 535 U.S. 685, 693 (2002) (noting that AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law"); Griffey v. Lindsey, 345 F.3d 1058, 1062 (9th Cir.) ("AEDPA significantly alters the legal standards and procedures governing federal habeas petitions, generally making it more difficult for prisoners to qualify for habeas relief"), vacated as moot, 349 F.3d 1157 (9th Cir. 2003).
In the case at bar, the gist of plaintiff's claim is that his plea was invalid because he did not understand that one of the consequences of the plea was that he would have to serve a term of post-release supervision. Plaintiff does not appear to contend, nor do I see any basis for such a contention, that the state court unreasonably determined any facts. The state court's decision denying Lustyk's § 440.20 motion was based on its legal conclusion that it is "unnecessary to recite post-release supervision in respect to a court sentencing." P. at 84. The issue before me, then, is whether that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
Although the state court did not discuss this issue at length, I note that "to invoke the deferential standards of AEDPA, the state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001).
Due process requires that a guilty plea be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). For a guilty plea to be both knowing and voluntary, a defendant must be "fully aware of the direct consequences" of the plea. Brady v. United States, 397 U.S. 742, 755 (1970). The defendant need not be informed about "collateral consequences" of the plea, however, United States v. United States Currency in the Amount of $228,536.00, 895 F.2d 908, 915 (2d Cir.), cert. denied, 495 U.S. 958 (1990). See, e.g., United States v. Bethurum, 343 F.3d 712, 718 (5th Cir. 2003) (ability to possess a firearm is a collateral matter), cert. denied, 124 S.Ct. 1177 (2004); United States v. Salerno, 66 F.3d 544, 551 (2d Cir. 1995) (defendant need not be told in plea colloquy that his conviction might be treated as a felony drug offense for sentence-enhancement purposes in a separate sentencing for a later offense), cert. denied, 516 U.S. 1063 (1996).
I have not found, nor has Lustyk cited, any Supreme Court case holding that a mandatory term of parole or post-release supervision is a direct consequence of a guilty plea. In general, if the Supreme Court has not ruled at all on a given issue, relief generally cannot be granted, since there is no "clearly established" law to begin with. See, e.g., Busby v. Dretke, 359 F.3d 708, 722 (5th Cir.) (denying relief because "[t]he Supreme Court has never held that reading inmate mail violates the First Amendment"), cert. denied, 124 S.Ct. 2812 (2004); Burgess v. Dretke, 350 F.3d 461, 467-68 (5th Cir. 2003) ("The Supreme Court, however, has never held-much less 'clearly established' — that physical evidence derived as a result of a Fifth Amendment violation must be suppressed. Accordingly, we cannot grant relief"); Holgerson v. Knowles, 309 F.3d 1200, 1203 (9th Cir. 2002) ("Because the Supreme Court has not decided whether the due process fair warning requirement . . . applies to after-the-fact sentence increases, California's affirming his judgment of conviction was not "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. . . ."), cert. denied, 538 U.S. 1005 (2003); Lam v. Kelchner, 304 F.3d 256, 269 (3d Cir. 2002) (state court's admission of petitioner's statement "did not contradict or unreasonably apply Supreme Court precedent on admitting fruits of an involuntary statement because the Supreme Court has not recognized a right to suppress evidence discovered as a result of an involuntary statement") (footnote omitted).
The Supreme Court has held that a defendant need not be apprised of matters concerning eligibility for parole before pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) ("We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary").
Even if I were to find, however, that the state court's decision "constituted an 'unreasonable application' of . . . more general principles" enunciated by the Supreme Court, Gilchrist v. O'Keefe, 260 F.3d 87, 97 (2d Cir. 2001), cert. denied, 535 U.S. 1064 (2002), habeas relief would not be warranted, since the sentence that was imposed, even including the five-year term of post-release supervision, was less than what Lustyk was aware that he could have faced had he gone to trial and been convicted on all charges.
Courts have held that a failure to inform a defendant prior to a guilty plea about the supervised release element of his sentence is harmless error "if the combined sentence of incarceration and supervised release actually received by the defendant is less than the maximum term he was told her could receive." United States v. Goord, 25 F.3d 218, 220 (4th Cir. 1994). See, e.g., United States v. Fuentes-Mendoza, 56 F.3d 1113, 1114 (9th Cir.) (because defendant's actual sentence, including supervised release, was "less than the 40-year sentence to which he believed he could be sentenced, any error by the sentencing court in explaining the term of supervised release that he faced was harmless"), cert. denied, 516 U.S. 925 (1995); United States v. Saenz, 969 F.2d 294, 297 (7th Cir. 1992) (so long as defendant is apprised of the maximum jail term, failure to address supervised release does not warrant reversal unless the term of supervised release plus the prison term exceeds the maximum prison term of which the defendant was advised); Holloway v. United States, 960 F.2d 1348, 1354 (8th Cir. 1992) ("even including the special parole term, Holloway's total sentence of forty-five years is well within the outer limit of the sentence he knew he could be given"); United States v. Barry, 895 F.2d 702, 705 (10th Cir.) ("the [trial] court's failure to advise Barry of the term of supervised release [did not] prejudice his decision to plead guilty" because the "total sentence — including the term of supervised release — [was] only a fraction of the maximum penalty of which he was advised"), cert. denied, 436 U.S. 939 (1990).
Federal courts are required, before accepting a guilty plea, to advise the defendant of the maximum possible penalty, including any term of supervised release. Fed.R. Cr. P. 11(b)(1)(H).
In the case at bar, the record shows that by letter dated September 8, 1999, Lustyk's trial counsel advised him that if Lustyk were found guilty at trial of all the charges against him, he could be sentenced to as much as seven years on his DWI charge, seven years on his assault in the second degree charge, and four years on his attempted assault in the second degree charge. P. at 38-39. He also stated that the sentencing judge might direct that all three sentences run consecutively, for a total term of eighteen years. In addition, Lustyk's attorney stated that because Lustyk had two prior felonies on his record, he risked being sentenced as a persistent felon, which would mean that he could "be sentenced to anywhere from 15 years to life to 25 years to life." Id. at 39.
Lustyk's actual sentence, including post-release supervision, totaled twelve years. Under the authority cited above, any error in failing to advise Lustyk about his mandatory term of supervision was harmless, and was certainly not of constitutional magnitude.
I also note that the record does not indicate that Lustyk was prejudiced by the trial court's failure to tell him about the mandatory supervision term. There is no evidence, nor does Lustyk even appear to assert, that he would not have pleaded guilty had he known about the post-release supervision requirement. Indeed, given the possible sentence that he was facing, it seems unlikely that he would have chosen to go to trial instead of pleading guilty. Tellingly, in his petition Lustyk does not request that he be allowed to withdraw his plea (with the concomitant risk that he could be tried and ultimately end up serving a longer sentence than the one he received), but that he simply not be required to serve any term of post-release supervision. In analogous circumstances involving federal supervised release, the Second Circuit rejected a request by a defendant (who did not seek to be allowed to withdraw his plea) for such "relief akin to specific performance of a contract." United States v. Renaud, 999 F.2d 622, 625 (2d Cir. 1993). See also Masone v. United States, 103 F.Supp.2d 209, 212 (E.D.N.Y. 2000) ("Where a defendant is incorrectly advised of the possible length of a term of supervised release and there is no request to withdraw the previously entered guilty plea, the error is deemed harmless").
I also note that, at Lustyk's sentencing, the trial judge stated that Lustyk had served time in prison on his prior felony and "was paroled . . .," P. at 52, so presumably Lustyk had some familiarity with the concept of remaining on some form of supervised release following release from incarceration.
For largely the same reasons already given, I also reject Lustyk's assertion that his trial attorney rendered ineffective assistance. Under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on this claim, Lustyk would first have to show that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. He would then have to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In judging the reasonableness of counsel's performance, the habeas court "must be highly deferential." Id. at 689. It must assess counsel's conduct in light of the facts and law existing at the time and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
Applying these standards here, Lustyk's claim of ineffective assistance fails. Considering the serious charges that Lustyk was facing, his attorney performed admirably in obtaining as lenient a sentence as he did. Moreover, as stated earlier, there is no evidence that, had counsel told Lustyk about the mandatory post-release supervision term, a different outcome would have ensued. I therefore find this claim to be without merit.
CONCLUSION
For the reasons stated above, Eugene Lustyk's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Lustyk has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. 28 U.S.C. § 2253. Further, I certify that any appeal from this order would not be taken in good faith. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438, 444 (1962).
IT IS SO ORDERED.