Opinion
No. 02 Civ. 8709 (LAP)(KNF).
March 25, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Elliot Robinson ("Robinson") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Robinson contends that his confinement by the state of New York is unlawful because: (1) his plea of guilty to attempted second degree murder was coerced by a judicial officer, who relied upon an incorrect legal principle in urging him to plead guilty; (2) his Sixth Amendment right to counsel was violated when his arraignment was delayed so that he could be interrogated by a prosecutor; (3) his waiver of Miranda rights, prior to being interrogated by a detective, was neither knowing nor voluntary and, therefore, any statements he made to law enforcement officials should have been suppressed; and (4) evidence of his identification during a lineup procedure should have been suppressed because the lineup procedure was tainted and unduly suggestive.
The respondent opposes the petitioner's application for a writ of habeas corpus. The respondent contends that the application should be denied because the petitioner is either procedurally barred from obtaining habeas corpus relief on the claims he has asserted or those claims were previously adjudicated on the merits in the state courts and the determinations reached in those courts are consistent with Supreme Court jurisprudential precedence.
II. BACKGROUND
On January 10, 1999, Robinson shot Juan Jacobs ("Jacobs") in the chest twice, as Jacobs was discussing with Robinson's brother money that Robinson's brother owed to him. Approximately three months later, in April 1999, Robinson was arrested and charged with the shooting.
Robinson later pleaded guilty in the New York State Supreme Court, New York County, to one count of attempted murder in the second degree. In return for tendering a plea of guilty, the prosecution recommended that the court sentence Robinson to a determinate term of eight years incarceration. Prior to tendering his plea of guilty, Robinson had moved, unsuccessfully before a different judicial officer, to suppress statements he had given to: (a) a detective, after receiving Miranda warnings; and (b) an assistant district attorney, during a videotaped interrogation. The statements made by Robinson on videotape came after the prosecutor had administered Miranda warnings to Robinson anew, approximately 14 hours after the detective had given Robinson Miranda warnings.
In support of the suppression motion, Robinson claimed, in part, that he did not waive his Fifth Amendment right to remain silent and agree to speak with the detective. He alleged that this was evidenced by the absence of his signature from a police department form through which Robinson was asked to acknowledge receiving and waiving his Miranda rights. However, at the suppression hearing held in connection with Robinson's motion, the detective testified that Robinson acknowledged orally that he understood each of the rights contained on the Miranda warnings form. The detective testified that, although Robinson refused to sign that document, Robinson answered his questions freely. During that questioning, Robinson admitted to the detective that he was at the scene of the shooting, but denied that he was the shooter.
After Robinson was questioned by the detective, the detective determined to conduct a lineup. Therefore, the detective and a colleague traveled to a shelter and recruited men to act as "fillers," that is, to serve as additional participants in the lineup with Robinson. According to Robinson, the lineup fillers differed from him in age, height, build, and hair color. In particular, Robinson's hair was graying. It was characterized at the suppression hearing by a detective who had interviewed the victim shortly after the shooting, as "salt and pepper" in nature. Graying hair was a prominent feature in the description of the shooter that was given by the shooting victim to that detective.
The detective who was conducting the lineup attempted to contact the victim at his home in order to summon him to the police precinct to view the lineup. However, he learned from the victim's mother that her son was not at home. The victim's mother was advised that a suspect had been apprehended in connection with the shooting of her son and that her son was needed at the police precinct to make a "positive identification." Later that evening, the victim contacted the detective via telephone. He was asked to come to the precinct to view a lineup. When the victim arrived at the police precinct, he was directed by police personnel to go to the detective squad room, which was located on the second floor of the precinct. A wanted poster for Robinson was on the first floor of the police precinct but it was not in a room accessible to the public. A wanted poster for Robinson was also in the detective squad room, but it, too, was not in an area accessible to the public.
Prior to viewing the lineup, the victim asked whether the shooter was in the lineup. The detective who was with the victim stated that he did not know. He instructed the victim to view the lineup and to indicate to the officer whether he recognized anyone in the lineup. Robinson, who had selected his own position in the lineup and the number he would display during the lineup, was then viewed by the victim through a one-way mirror along with the lineup fillers. The victim stated that he recognized Robinson, who was holding number three, and explained that Robinson was the person who had shot him. Robinson argued in the state courts that since: (a) the lineup fillers had physical characteristics different from his own; (b) a detective had told the victim's mother that her son was needed at the police precinct to make a "positive identification;" and (c) wanted posters depicting him were displayed in the police precinct, the lineup procedure was tainted and unduly suggestive.
After the lineup procedure was completed, Robinson was removed from the police precinct, transported to court and placed in the custody of the Department of Corrections to await his arraignment before a judicial officer. However, before he was presented to a judicial officer for arraignment, Robinson was retrieved from the custody of the Department of Corrections by the arresting detective and was taken to meet with an assistant district attorney. The assistant district attorney determined to interrogate Robinson and to videotape that interrogation session. The assistant district attorney administered Miranda warnings to Robinson prior to questioning him. During that questioning, Robinson made an exculpatory statement. He stated that one of his brothers had shot Jacobs. Robinson argued on appeal from the judgment of conviction that his Sixth Amendment right to counsel was violated when he was plucked from the Department of Corrections' custody and transported to the Office of the District Attorney, because his arraignment and his concomitant right to have counsel appointed to represent him on the charged crimes was delayed.
Robinson appeared in court after a written decision denying his suppression motion was issued. At that time, the prosecution indicated its readiness to proceed to trial. However, the presiding judge was informed that the prosecution was prepared to: (1) accept a plea of guilty from Robinson to the top charge in the indictment, in full satisfaction of all charges made against him; and (ii) recommend that the court impose a determinate sentence of eight years imprisonment. If Robinson proceeded to trial and was found guilty, he faced the prospect, because he had acquired felony convictions in the past, that the sentencing judge might exercise his or her discretion and sentence him as a persistent felony offender to a period of 25 years to life imprisonment.
The judge to whom Robinson tendered his plea of guilty at one point stated mistakenly that if Robinson did not accept the plea bargain offer that had been made to him, and was found guilty after trial, he exposed himself to a sentence of 15 years imprisonment instead of the eight years imprisonment that was being recommended by the prosecution. In fact, Robinson would have faced a sentence of 25 years imprisonment.
Robinson argued on appeal from the judgment of conviction that the judge to whom he tendered his plea of guilty coerced him into doing so by threatening to classify him a persistent felony offender and to impose an enhanced sentence upon him. However, the record generated at the pleading proceeding makes clear that the judge to whom Robinson tendered his plea of guilty advised Robinson that if he elected to proceed to trial, she would not be presiding at his trial and, therefore, would not be the judicial officer who would determine, in the event that Robinson was found guilty after trial, whether he should be sentenced as a persistent felony offender. The record also indicates that the judge to whom Robinson tendered his plea of guilty allowed him an opportunity to discuss his options with his wife, who was present in the courtroom, and with his attorney, at length, before agreeing to accept his plea of guilty under the terms of the plea bargain he had struck with the prosecution. Thereafter, under oath, Robinson admitted that he was the person who shot Jacobs on January 10, 1999. He was subsequently sentenced to imprisonment for eight years.
As noted above, Robinson appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Robinson urged that court to upset his conviction on the same grounds for which he seeks habeas corpus relief. Those grounds are that: 1) his plea of guilty was coerced by the judge to whom he tendered his plea of guilty because she threatened to sentence him as a persistent felony offender if he did not accept the terms of a plea bargain offered to him by the prosecution. Furthermore, Robinson maintained that his plea of guilty was based upon an incorrect legal principle, that is, that the court advised him erroneously that he was eligible for sentencing as a persistent felony offender. According to Robinson, a felony conviction he had obtained in Florida that was discussed by the judge during the pleading proceeding and was considered by her, in assessing whether Robinson might be eligible, after trial, for sentencing as a persistent felony offender, was, in fact, not a felony conviction and, therefore, could not be used in determining whether he was eligible for sentencing as a persistent felony offender; 2) the delay in presenting him before a judicial officer for arraignment, occasioned by the prosecutor's decision to interrogate him, violated his Sixth Amendment right to counsel; 3) statements made by Robinson to a detective and to the prosecutor should have been suppressed because the prosecution failed to establish at the suppression hearing that Robinson had knowingly and voluntarily waived hisMiranda rights; and 4) evidence of the out-of-court identification of Robinson as the shooter, by Jacobs, should have been suppressed because the lineup procedure was unduly suggestive.
The Appellate Division rejected all the bases upon which Robinson urged it to upset his conviction. That court found that the record did not support a conclusion that any evidence acquired by law enforcement officials was obtained as a result of an undue delay in bringing Robinson before a court for arraignment. Furthermore, the Appellate Division found that the prosecution had established, beyond a reasonable doubt, that Robinson's statements to law enforcement officials were given voluntarily, notwithstanding the fact that Robinson declined to execute the Miranda warnings document that had been presented to him by the arresting detective. With respect to Robinson's claims about the discrepancies that existed between the physical characteristics of the lineup fillers and those of himself, particularly the absence of graying hair from any of the lineup fillers, the Appellate Division found them wanting. The court agreed with the suppression hearing judge's assessment that the lineup was not unduly suggestive. As to Robinson's claim that the lineup procedure was tainted because Jacobs had been exposed to wanted posters bearing Robinson's likeness immediately before viewing the lineup, the Appellate Division found that the issue had not been preserved for appellate review. Therefore, it declined to exercise its discretion and review that claim in the interest of justice. However, the court noted that, notwithstanding this procedural impediment to its review of the claim, were the court to review the claim, it would find that the record does not support the allegation of taint made by Robinson because no wanted poster bearing his likeness was on display in any area of the police precinct to which the shooting victim had access.
The Appellate Division also found Robinson's claim that his plea was the product of coercion to be a matter unpreserved for appellate review. The court explained that Robinson had failed to make an application to withdraw his plea or to vacate the judgment of conviction in the trial court, as provided for under New York law. The Appellate Division declined, in the exercise of its discretion, to review the matter in the interest of justice. However, the court noted that had it reviewed the claim, it would have found that the record supports a conclusion that Robinson tendered his plea of guilty knowingly, intelligently and voluntarily and that he did so in return for a favorable sentence. The Appellate Division indicated that the statements made by the judge to whom Robinson tendered his guilty plea, concerning the permissible scope of sentencing that would be available if Robinson were convicted after a trial, were not coercive but, rather, were accurate statements in light of the sentence of five years imprisonment that Robinson had received in Florida for a felony offense notwithstanding the fact that he served only 88 days in prison based on that conviction.
The Appellate Division indicated that it had reviewed all of Robinson's remaining arguments and found them unpersuasive; therefore, they were rejected. See People v. Robinson, 287 A.D.2d 398, 731 N.Y.S.2d 709 (App Div. 1st Dep't 2001). Robinson sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. That application was denied by the chief judge of that court. See People v. Robinson, 98 N.Y.2d 680, 746 N.Y.S.2d 470 (2002). The instant application for a writ of habeas corpus followed.
III. DISCUSSION
Coerced Plea of GuiltyA federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). This proscription applies even in those circumstances where a state court expressly relies on a procedural default as an independent and adequate state law ground but, nevertheless, rules in the alternative on the merits of the federal claim (see Velasquez v. Leonardo, 898 F.2d 7, 9 [2d Cir. 1990]) or indicates the conclusion it would reach were it to review the claim (see Simmons v. Mazzuca, No. 00 Civ. 8174, 2001 WL 537086, at *10 (S.D.N.Y. May 21, 2001]). However, a habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend (that is, that the petitioner is actually innocent of the crime for which he was convicted), if the claim is not reviewed by the habeas court. See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989).
The Appellate Division did not dispose of the petitioner's claim, that his plea of guilty was coerced, on the merits. It found that the petitioner had failed to preserve that issue for appellate review as is required by New York law. However, the court did note, alternatively, that if it were to review the claim, it would find that the claim lacked merit.
In most cases, a state procedural bar constitutes an adequate and independent state law ground that is sufficient to preclude federal habeas corpus review. "In exceptional cases, however, an exorbitant application of a generally sound rule may affect the adequacy and independence of the state procedural ground, and allow the United States district court to consider the merits of a constitutional claim." Rosa v. Herbert, 277 F. Supp. 2d 342, 351 (S.D.N.Y. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885); see also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural bar does not . . . automatically preclude review in this court.").
The Second Circuit Court of Appeals has stated that a procedural bar is adequate to support a state court judgment only if it is based on a rule that is "firmly established and regularly followed" by the state in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003). Thus, the parties to an action must have notice of the state procedural rule and the rule must be applied consistently in similar circumstances. See Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural rule must serve a legitimate state interest. See Rosa, 277 F. Supp. 2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986). However, "the adequacy of a state procedural bar is determined with reference to the particular application of the rule; it is not enough that the rule generally serves a legitimate state interest." Cotto, 331 F.3d at 240 (quotingLee, 534 U.S. at 387, 122 S. Ct. at 891) (internal quotation marks omitted). Therefore, an inquiry into whether the application of a procedural rule is "firmly established and regularly followed" in the specific circumstances presented in a case includes "an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id.
New York appellate courts have held repeatedly that the failure of a criminal defendant to make a motion to withdraw a plea of guilty pursuant to New York's Criminal Procedure Law ("CPL") § 220.60 or to move to vacate the resulting judgment of conviction, pursuant to CPL § 440.10, prevents that criminal defendant from raising, on appeal, the basis upon which it is believed that the plea of guilty may be withdrawn or the resulting judgment of conviction vacated. These courts have explained that by failing to employ these statutory provisions, the defendant has not preserved the issue for appellate review. See, e.g. People v. Bell, 47 N.Y.2d 839, 840, 418 N.Y.S.2d 584 (1979); People v. Adams, 46 N.Y.2d 1047-48, 416 N.Y.S.2d 588 (1979); People v. Ambrose, 266 A.D.2d 26, 27, 697 N.Y.S.2d 616, 617 (App.Div. 1st Dep't 1999). The inability of the state appellate courts to entertain an issue that has not been preserved for their review is rooted in New York's Contemporaneous Objection Rule. That Rule is found in CPL § 470.05 which, in its most pertinent part, provides that:
For the purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court. . . .
The purpose of the Rule is "to fairly apprise the court and the opposing party of the nature and scope of the matter contested."People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261 (App.Div. 2d Dep't 1981). This allows the court of first instance to correct the matter at the earliest possible juncture in the proceedings.
As noted above, Robinson may bypass the independent and adequate state law ground upon which the Appellate Division resolved his claim that his plea of guilty was not made voluntarily by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend if the claim is not reviewed by this court. However, Robinson has not presented any evidence to the Court which demonstrates cause for his procedural default. Furthermore, he has not presented any evidence to establish that he is actually innocent for the crime for which he pleaded guilty. Under these circumstances, Robinson is not entitled to habeas corpus relief upon his claim that his plea of guilty was not made voluntarily but, rather, was coerced by the judge to whom he tendered that plea.
Suppression of Statements
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In the case at bar, the Appellate Division adjudicated on the merits (1) Robinson's claim that the delay in presenting him before a judicial officer for arraignment, in order to allow the prosecutor to interrogate him, violated his Sixth Amendment right to counsel, and (2) Robinson's claim that he did not waive his Fifth Amendment right to remain silent and agree to answer a detective's questions because he did not sign a police department form acknowledging that Miranda rights had been administered to him. Therefore, it is incumbent upon Robinson to establish that the decisions reached by the Appellate Division on these two claims were either: (a) contrary to or involved an unreasonable application of federal law as enunciated by the Supreme Court of the United States; or (b) grounded on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Robinson has done neither. Since Robinson has not met the burden placed upon him by 28 U.S.C. § 2254(d), he is not entitled to habeas corpus relief based on either of these claims. Suppression of Lineup Identification
Although not necessary for an adjudication of the instant petition, it is worth noting that delay between arrest and arraignment does not implicate a criminal defendant's Sixth Amendment right to counsel, although it may be a factor to consider as part of a Fifth Amendment analysis of the voluntariness of any statements given by a criminal defendant to law enforcement agents. See Holmes v. Scully, 706 F. Supp. 195, 202 (E.D.N.Y. 1989); Haywood v. Portuando, 288 F. Supp.2d 446, 467 (S.D.N.Y. 2003). Furthermore, with respect to Robinson's failure to execute the form acknowledging that Miranda warnings had been administered to him, the Supreme Court has noted that an express written statement by a criminal defendant waiving his or her right to remain silent is not necessary in order to establish that a waiver of that right has been effected. See North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979).
Robinson waged a two-pronged attack upon the identification procedure employed by the police after his arrest. Robinson alleged that the lineup in which he participated was unduly suggestive principally because he was the only person in the lineup with graying hair. The Appellate Division adjudicated this claim on the merits and found it wanting. Therefore, as noted above, 28 U.S.C. § 2254(d) requires Robinson to demonstrate that the determination reached by that court was contrary to or involved an unreasonable application of clearly established federal law, as set forth by the Supreme Court, or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the proceedings conducted by the state court. Here, again, Robinson has failed to carry the burden imposed upon him by statute. Robinson has not shown in any way how the Appellate Division's determination on the challenge he made to the lineup, predicated on the differing physical characteristics of the lineup participants, was in tension with Supreme Court precedent. Therefore, he is not entitled to habeas corpus relief on this branch of his petition.
Robinson's other claim regarding the lineup procedure, that it was tainted because wanted posters depicting his image were displayed in the police precinct, was not addressed on the merits by the Appellate Division because it found that Robinson had not preserved the matter for appellate review. Despite Robinson's procedural default, the Appellate Division indicated that if it were to review the claim, it would find that the record does not support Robinson's allegation because the wanted posters at issue were not displayed in any area of the police precinct to which the shooting victim had access.
Since the Appellate Division resolved this claim on an independent and adequate state law basis, Robinson would not be entitled to the relief he seeks through the instant application for a writ of habeas corpus unless, as noted earlier in this writing, he can demonstrate cause for his procedural default, prejudice attributable thereto or that a fundamental miscarriage of justice would attend if the court declined to entertain the claim asserted in this portion of his application for the writ. Robinson has not presented any evidence to the court establishing either cause and prejudice for his procedural default or that a miscarriage of justice would attend if the court did not entertain his claim that the identification procedure used in his case was tainted by the posted wanted fliers. Consequently, he is not entitled to the habeas corpus relief he seeks based on the instant claim.
IV. RECOMMENDATION
For the reasons set forth above, Robinson's application for a writ of habeas corpus should be denied.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, United States District Judge, 500 Pearl Street, Room 1320, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Preska. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
SO ORDERED.