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January 13, 1984


The opinion of the court was delivered by: CARTER

CARTER, District Judge

 Petitioner, pro se, filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 asserting that he had been deprived of rights guaranteed by the due process clause of the 14th Amendment, and that he had been placed in double jeopardy in violation of the 5th Amendment. The case was referred to Magistrate Bernikow, who made proposed findings of fact and recommendations for disposition. 28 U.S.C. § 636(b)(1)(B). In a very thorough opinion, the Magistrate recommended that the petition be dismissed because, he found, petitioner had failed to exhaust his state remedies as to the due process claim. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). *fn1"

 Within the time period designated by the Magistrate, petitioner filed objections to the Magistrate's report. Petitioner argued that he had presented the state court with an opportunity to pass upon the alleged violation of his constitutional rights; in support of this contention he submitted a copy of his Application for Leave to Appeal to the New York State Court of Appeals. In the Application, petitioner requested that the Court of Appeals consider "whether it is a denial of due process of law under the Constitution of this State, and that of the Constitution of the United States for a trial court [to leave] him with no manner of challenging the accuracy or authenticity of the information relied upon [in resentencing petitioner on his guilty plea]." (Exh. to Petitioner's objections at 5). The Application was not considered by the Magistrate in making his recommendation to the Court. *fn2"

 It is, however, on the basis of the Application that the Court must disagree with Magistrate Bernikow; petitioner has exhausted all state remedies since he has fairly presented to the state courts the constitutional question raised in this petition. Daye v. Attorney General of the State of New York, (" Daye II "), 696 F.2d 186 (2d Cir. 1982). Nevertheless, for the reasons elaborated below, I conclude, as did the Magistrate, that the petition must be denied. The Court reaches the merits of the due process claim, but is precluded from considering the double jeopardy allegations.


 On November 12, 1975, petitioner, acting pro se, in the presence of a legal advisor from the Legal Aid Society pled guilty in County Court, Westchester County, before Judge Theodore Dachenhausen, to the commission of 23 crimes, including robbery and related charges, contained in two indictments. The court promised, in exchange for petitioner's plea, to impose a sentence of 7 1/2 to 15 years. The sentence was, however, specifically conditioned. If the information contained in the presentence report differed so substantially from the representations made to the court by petitioner during his plea bargaining conference that the Judge could not "in good conscience" carry out the promised sentence, then he would provide the petitioner with an opportunity to withdraw his guilty plea and go to trial without any prejudice arising from the guilty plea.

 On December 29, 1975, the sentencing date, Judge Dachenhausen, after reviewing the presentence report, decided he could not go forward with the proposed sentence arrangement. "The information now concerning the Defendant's background is in such detail and of such serious nature," he told petitioner, "that the Court feels it cannot in good conscience keep the promise." (Respondent's Exh. B at 3). Petitioner was, therefore, given the opportunity to withdraw his plea. Since he noted confusion as to how to proceed, still acting pro se, the judge directed that his guilty plea be withdrawn and that a not guilty plea be substituted. He gave petitioner the option of proceeding to trial before another judge, or pleading guilty at some subsequent time.

 Petitioner had some understanding of Judge Dachenhausen's decision to change his sentence. "I viewed the Probationary Report [sic] myself, and to a degree . . . I understand your Honor's frame of mind, but that only speaks of the man that was. What about the man as is?" (Respondent's Exh. B at 9). The Judge responded, "the best way I can explain it" is that "the hard facts of the reality of your past keep coming up in my mind, and that is the past that I think caused me to reach the point where I feel in confidence I couldn't carry out my sentence promise." (Respondent's Exh. B at 10). Although, at one point, petitioner asked for more specific information concerning Judge Dachenhausen's reliance on his past, the conversation between them continued on a general level. "You have read my Probationary Report [sic]," petitioner appealed to the court; "How would you or anyone be -- to expect another human being to come out of an environment that I was in and be whole." (Respondent's Exh. B at 11). After some further discussion, Judge Dachenhausen concluded that petitioner understood the basis for the former's decision. (Respondent's Exh. B at 13).

 Subsequently, petitioner elected to proceed to trial. He was convicted of 10 of the 23 counts contained in the two indictments. Judge Daniel McMahon, before whom the trial was held, sentenced petitioner to 22 1/2 years to life in prison, after he was adjudicated a persistent felony offender pursuant to a hearing at which the presentence report was considered. His trial conviction and sentence were, however, vacated upon petitioner's appeal to the Appellate Division, People v. Matthews, 71 A.D. 2d 864, 419 N.Y.S.2d 192 (2d Dep't 1979), which reinstated petitioner's plea of guilty and remanded petitioner to Judge Dachenhausen for sentencing. *fn3" The court specifically stated that "upon resentence the court will not be bound by the conditional promise made when the pleas were entered, but may impose such sentence as is appropriate under the circumstances." Id. at 864, 419 N.Y.S.2d at 193.

 Appearing before Judge Dachenhausen for resentencing, petitioner was represented by counsel who argued that petitioner was entitled to specific enforcement of the original sentence agreement. The court could not break the contract, which the plea bargain entailed, counsel maintained, without a finding on the record that "fraud" exists. *fn4" The record was inadequate, he claimed, because petitioner had not been apprised of the facts which "shock the court to such a degree that it must vacate the bargain." The legal point at issue, petitioner's lawyer stated, concerned

the fact that the plea bargaining system is an integral part of our criminal justice system . . . [and] where the judge reserves the right merely to cite the probation report in general, without specification, [it] undermines the whole rights of defendants to enter into a plea bargaining situation.

 (Respondent's Exh. G at 10). Matthews also attempted to elicit from the Judge the specific information on which the Judge relied in his sentencing. Judge Dachenhausen responded that he thought the record clear enough, and proceeded to sentence Matthews as a persistent felony offender to concurrent terms of imprisonment of from 22 1/2 years to life.

 Petitioner's counsel appealed to the Appellate Division raising the following claims: (1) that petitioner was entitled to "specific performance" of the originally promised sentence of seven and one-half to fifteen years, (2) that the withdrawal of his guilty pleas had placed him in double jeopardy and (3) that he was denied effective assistance of trial counsel. The Appellate Division affirmed the conviction without opinion, People v. Matthews, 85 A.D.2d 935, 445 N.Y.S.2d 670 (2d Dep't. 1981), and the New York Court of Appeals denied leave to appeal. People v. Matthews, ...

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