vouchsafed by Article I § 9 of the Constitution, which provides that the "privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." If the plea agreement cannot properly be enforced given its vacatur by the state court without consent of the prosecution, it may be subject to rescission. If harm was caused and can be rectified, means for doing so must be explored.
Petitioner argues that serious but irrevocable harm has occurred and asks the court to release the petitioner or reduce his sentence to that called for by the vacated plea bargain. He points to irrevocable disclosures of information, such as revealing what a title search would have shown, that his wife was a co-owner of the house in which the drug operation was found. No actual as distinct from possible consequences from any revelations, however, have been suggested.
Petitioner also points out that as part of the plea he admitted his guilt. That admission was, however, not used against him at his trial. The impact of such an admission on his application for release is neutral at best, if not negative in view of the implications for the public of a drug manufacturing operation of the scale found on petitioner's premises. See Stewart v. United States, 817 F. Supp. 12 (SDNY 1993).
Pursuant to the plea agreement petitioner and his wife acceded to forfeiture of the house involved to the United States. While the house has been re-sold, upon rescission of the plea agreement this transaction could be reversed and the equivalent in money awarded to petitioner and his wife if appropriate.
The same forfeiture, however, whether to state or federal authorities, would flow from petitioner's conviction or the facts found by the jury as implemented by a parallel civil case.
If so, any effect of the plea agreement would be superseded and hence moot. See United States v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986); compare in a civil context, Fed.R.Civ.P. 61.
Petitioner further suggests that his admission of guilt is an irrevocable stigma resulting from his plea. This may be true. The plea should only have been taken if petitioner was guilty of the charges to which he pleaded. He does not deny that the state court conducted an allocation to assure itself of this. Improper harm can hardly be done by a voluntarily given truthful admission, however much based on hopes which were dashed by events beyond the control of the other party to the arrangement.
Petitioner does not claim that he was not guilty. Instead he seeks to take advantage of inconsistencies in positions taken by the prosecutor and the state court to parlay resulting errors so as to paralyze substantive justice in this criminal case. It would be bizarre indeed if an admission of guilt in a vacated plea were to lead to overturn of a finding of guilt after trial.
Thus, the plea agreement has been effectively rescinded, but no further relief can be granted because no remaining adverse consequences which can be abrogated remain. No further consequences from the vacatur of the plea agreement remain to be enforced.
Petitioner argues that he received ineffective assistance of counsel because his attorney failed to pursue some of the points raised above in state court. One reason for petitioner's advancing such an argument may be to circumvent what might otherwise be a state court procedural default or failure to exhaust state remedies which might bar his present claim based on the plea agreement under 28 USC 2254(b) and case law. See Marcus, "Federal Habeas Corpus After State Court Default," 53 Fordham L Rev 663 (1985).
Petitioner's assault on his conviction because of the plea imbroglio being without merit, there was no censurable ineffective assistance of counsel, and had there been any it would have had no effect on federal rights. Since I deny the petition on the merits, the exhaustion or default issues need not be considered under 28 USC 2254(b).
Another consequence of the ineffective assistance claim is to challenge petitioner's attorney's decision not to seek to reinstate the original plea agreement after its vacatur but prior to trial. This argument assumes that the prosecutor was bound to agree to reinstate the original plea agreement even after it was independently vacated by the state court over the prosecutor's objection. It also assumes that petitioner's decision to go to trial was not intelligently made with proper legal advice, perhaps based on the same view taken by petitioner in his present petition, that there was no significant (because no substantial direct) evidence against him.
Petitioner asserts that uncharged evidence was improperly introduced and that variances of the indictment were permitted. He does not claim that an adjournment to avoid surprise due to lack of notice was requested and denied.
The issue before me is whether or not a federal constitutional violation combined with prejudice to petitioner has occurred. I need not determine whether or not the evidence or variances would have been permissible in federal criminal practice. See Huddleston v. United States, 485 U.S. 681, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). Nor am I called upon to determine whether or not state law was violated. People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981). No federal constitutional violation has been established.
Dated: White Plains, New York
December 13, 1993
/s/ John S. Martin, USDJ for
VINCENT L. BRODERICK, U.S.D.J.