Opinion
No. 00 Civ. 3510 (RWS).
January 11, 2001.
JAMES O. MURRAY, III Petitioner Pro Se # 95-A-4417 Southport Correctional Facility Pine City, NY.
HONORABLE ELIOT L. SPITZER Attorney General of the State of New York Attorney for Respondent By: JESSIE PRIETO, ESQ. Assistant Attorney General Of Counsel New York, NY.
OPINION
Petitioner James O. Murray III ("Murray") has moved for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is denied.
Background
On October 4, 1993, Murray was indicted for the first-degree robbery of a Chevy Blazer, after the vehicle's owner, Irving Mojica ("Mojica"), identified Murray as the person who stole the car from him at gunpoint.
Mojica first identified Murray from a photo array that included six photographs, including one of Murray. Based upon that identification, police obtained a court order to produce Murray from Westchester County, where he was being held on another charge, to appear in a lineup. On August 26, 1993, Murray stood in a lineup with five other men, one of whom was Police Officer Kenneth Moreno.
Legal Aid attorney Robert Glick was assigned to represent Murray and was present during the lineup. When Glick spoke with Murray before the lineup began, Murray told him that another lawyer represented him on his other pending case. Although Murray claims to have shouted that Glick did not represent him, Officer Moreno states that no such outburst took place. The lineup proceeded, and Mojica again identified Murray as the robber.
A Wade hearing ws held on June 27-28, 1994 before the Honorable Budd G. Goodman on Murray's motion to suppress the lineup identification. Attorney David Isaacson represented Murray at the hearing, and argued that Glick had not in fact represented Murray at the lineup, so the identification should be suppressed. Glick testified that, although Murray had notified him that he was represented by another lawyer in another case, Murray never objected to Glick's representing him in the lineup or suggested that his other attorney would be representing him on this case.
In an oral ruling, Justice Goodman denied the motion to suppress because the lineup had been "more than fair," and Murray had been "adequately represented by an attorney," who had made it even "fairer" by having the "fillers" switch positions. See Prieto Aff. Ex. B. at 4-5.
Murray appeared with counsel the next day and stated that he wished to plead guilty. Pursuant to a plea agreement, Murray would plead guilty to first-degree robbery and remain at liberty pending sentencing. At the sentencing hearing, Murray would be permitted to withdraw his plea and replead to second-degree robbery, which would receive a sentence of from one and one-half to four and one-half years. Id., Ex. B at 5. The court repeated these terms, and Murray stated that he understood them. Murray was advised that if he failed to appear for sentencing, or if he was arrested again "for any crime," the judge would impose an "appropriate" sentence for first-degree robbery, within the statutory minimum and maximum range. Murray again stated that he understood. Id. After this exchange, the court proceeded through the standard plea inquiries, properly ascertaining that Murray understood the rights he was waiving and was doing so of his own volition. However, the court failed to inquire whether Murray was under the influence of any drugs or medication. Murray allocuted to the crime and the plea was accepted. Id. Six days later, on July 5, 1994, Murray was arrested for an unrelated crime.
The minutes of the plea allocution have not been forwarded to the Court. Instead, both parties rely on the transcript as quoted in the original appellate briefs to the Appellate Division of the Supreme Court of New York.
On May 9, 1995, Murray moved to withdraw his plea on the ground that he had been high on cocaine at the time he entered it, and thus was unable to "fully comprehend the nature of the proceeding or the seriousness and consequences of his plea." Id., Ex. B at 6. In opposition, the prosecution indicated that Murray had been "lucid and coherent" in the plea bargaining conference held "just minutes before" the allocution, and that the motion to withdraw the plea was merely an attempt to avoid "suffering the consequences of breaching his plea agreement." Id. The motion was denied on June 7, 1995 in an opinion that cited the judge's "own recollection and the transcript of the allocution [, which] indicate[d] . . . that the defendant was clearly lucid and knew the crime to which he was pleading and the ramifications thereof." See People v. Murray, N.Y. County Ind. No. 9545/93 (N.Y.Sup.Ct. June 7, 1995) (Goodman, J.).
At sentencing on July 7, 1995, the prosecutor asked the judge to impose the maximum sentence of from eight and one-third to twenty-five years in light of Murray's breach of the plea agreement. The court imposed an indeterminate sentence of from three to nine years, to run concurrently with Murray's Westchester County sentence.
On direct appeal, Murray claimed that the lineup identification should have been suppressed or that the matter should have been remanded for further Wade proceedings because (1) Murray had not received notice of the application for the lineup or an opportunity to be heard thereon; and (2) was not represented by counsel of choice at the lineup; and that (3) Murray was entitled to a hearing on his motion to withdraw his guilty plea for being under the influence of a controlled substance. The Appellate Division unanimously affirmed Murray's conviction on January 12, 1999, finding that Murray had notice of the lineup; that the record did not support his claim to have requested Isaacson's presence; that, in any case, there was no obligation to notify Isaacson where an attorney was provided; and that the record did not support Murray's claim to have been under the influence of narcotics at the plea hearing. People v. Murray, No. 9545-93 (N.Y. A.D. Jan. 12, 1999). Leave to appeal that decision to the Court of Appeals was denied on June 30, 1999. People v. Murray, No. 9545/93 (N Y June 30, 1999)
On or about April 26, 2000, Murray filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising the same issues argued in his direct appeal. Respondent M. McGinnis ("Respondent") filed a response on October 11, 2000, whereupon the motion was deemed fully submitted.
In fact, Murray's habeas corpus petition is a photocopy of the brief filed on his behalf by counsel on direct appeal to the Appellate Division.
Discussion
I. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254
Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254 (a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(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)(1), (2); see Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000).
Murray is proceeding pro se in this federal habeas petition. Generally, "[t]he complaint of a pro se litigant is to be liberally construed in his favor." Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)). "[T]he district court "should review habeas petitions with a lenient eye, allowing borderline cases to proceed."Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983).
II. Analysis
A. The Lineup Did Not Violate the United States Constitution
Murray's petition alleges that the alleged failure to provide him notice or to allow him to be represented by his counsel of choice at the lineup procedure violated his due process rights under the Fifth Amendment of the United States Constitution, his right to counsel, in violation of the Sixth Amendment of the United States Constitution, and his right to be free from unlawful searches and seizures pursuant to the Fourth Amendment of the United States Constitution. Pet. at 10.
The United States Constitution does not require that a suspect in a pre-indictment lineup be represented by counsel, whether retained or represented. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877 (1972) (holding that because Sixth Amendment right to counsel does not attach before indictment, suspect has no constitutional right to counsel at preaccusatory lineup); Boyd v. Henderson, 555 F.2d 56, 61 (2d Cir. 1977) (recognizing that, Sixth Amendment right to counsel does not attach until charging, even if suspect is represented on another charge); DeJesus v. Duncan, No. 00 Civ. 2095 (JSM), 2000 WL 1654853, *1 (S.D.N.Y. Nov. 3, 2000) (dismissing habeas claim).
In light of this rule, there is no federal constitutional violation where police fail to provide notice to counsel before the lineup. See Aziz v. Warden of Clinton Correctional Facility, No. 89 Civ. 6053 (JSM), 1991 WL 278907, *7 (S.D.N.Y. 1991) ("It would be anomalous to find that failure to give notice of application for an order to compel violates a suspect's due process rights when the courts have not established that the order itself is constitutionally necessary."). In any case, the trial court found that counsel for Murray was present and acted effectively during the lineup, a finding that is not an unreasonable determination of the facts in light of the record.
As Murray has never alleged that the lineup was unduly suggestive or unreliable, the Due Process Clause of the Fifth and Fourteenth Amendments are not implicated. See United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967).
Finally, as the police obtained a court order before producing Murray for the lineup, the procedure did not violate his Fourth Amendment rights to be free from unreasonable search and seizure. See Aziz, 1991 WL 278907, at *7 (holding that lineup appearance of suspect who is already in custody on unrelated charge does not violate Fourth Amendment even absent a court order).
Therefore, the petition raises no federal grounds for habeas corpus relief with regard to the identification-related claims.
B. Petitioner Has Not Established a Right to a Hearing Regarding His Notion to Withdraw His Guilty Plea
The Due Process Clause of the Fourteenth Amendment requires that a plea of guilty be knowingly and voluntarily entered. Thomas v. Senkowski, 968 F. Supp. 953, 955 (S.D.N Y 1997) (citing Boykin v. Alabama, 395 U.S. 238, 242-43 n. 5, 89 5. Ct. 1709 (1969) and Meachem v. Keane, 899 F. Supp. 1130, 1139 (S.D.N.Y. 1995). "[T]he standard for determining the validity of guilty pleas [is] whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992) (internal alterations, quotation marks, and citations omitted); see Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 2687 n. 12 (1993) ("The purpose of the `knowing and voluntary' inquiry . . . is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.").
A state court's determination of the voluntariness of a defendant's guilty plea is a factual issue that is entitled to a presumption of correctness on habeas review. See 28 U.S.C. § 2254 (e)(1);Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990); Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993). The petitioner has the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § S 2254(e)(1). There is no absolute right to withdraw a guilty plea; whether to hold a hearing on the motion to withdraw is within the sound discretion of the trial court. U.S. ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2d Cir. 1970),cert. denied, 402 U.S. 909 (1971).
The voluntariness of a plea of guilty should be determined in light of the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). A specific inquiry regarding any medications that a defendant has consumed, while required by federal statute, See Fed.R.Crim.P. 11, is merely one way of satisfying the constitutional requirement that plea be voluntary and intelligent in the context of state defendants. See Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) (per curiam).
Here, the trial judge conducted a detailed inquiry into the factual basis for the plea and ascertained that Murray understood the consequences of the plea and that he wished to plead guilty. None of the parties argues that Murray manifested any outward indication that he was not able to understand the proceedings; in fact, the trial judge noted that there were no problems at all. Cf. Guzman v. Sabourin, No. 00 Civ. 1358 (RWS), 2000 WL 1775062 (S.D.N.Y. Dec. 4, 2000) (lengthy and contradictory allocution suggest that further inquiry into defendant's state of mind may be appropriate). Moreover, Murray was represented by competent counsel at the plea hearing, which weighs heavily toward a finding of voluntariness. Willbright, 745 F.2d at 780; see also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1986) (recognizing "strong presumption" that representation is constitutionally reasonable); Guzman, 2000 WL 1775062, at *7 (recognizing importance of representation at allocutions and motions to withdraw guilty pleas). Murray has not alleged that his counsel was constitutionally ineffective, or that he is factually innocent. Finally, the fact that Murray had been arrested six days after pleading guilty, in violation of his plea agreement, gave him an incentive to withdraw the plea in an attempt to renegotiate his punishment.
Murray has not shown that he is entitled to a hearing on his motion to withdraw his guilty plea.
C. No Certificate of Appealability Will Issue
As Murray has failed to make a substantial showing of the denial of any constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997). I certify pursuant to the Prisoner Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. § 1915(a)(3), that any appeal from this opinion would not be taken in good faith. See Coppedege v. United States, 369 U.S. 438, 444-45 (1962).
Conclusion
For the reasons discussed above, the habeas petition is denied and a certificate of appealability will not issue.
It is so ordered.