actions, the case would have turned out differently, or that counsel's decisions were influenced by the unethical fee arrangement.
II. Petitioner's Plea as an Intelligent, Voluntary Act
Petitioner's second claim for relief is that he was denied due process when the trial court accepted his guilty plea because the plea was not an intelligent, voluntary act. He claims his guilty plea was not voluntary because he was not made aware of the defense of intoxication or of the intent requirement for the crime of first-degree sodomy. A guilty plea is constitutionally adequate if it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Each defendant must have notice of the "true nature of the charges against him." Henderson v. Morgan, 426 U.S. 637, 645, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976).
Petitioner claims that the court did not discuss the elements of the crime to which he pleaded guilty, particularly the requisite mental state. However, petitioner stated in the plea allocution that he understood the charges in the Indictment and the meaning of what he was pleading to (Plea Transcript, 10). The crimes he was charged with were plainly laid out in the Indictment. The court clearly informed the petitioner that he was pleading guilty to forcible sodomy, which is deviate sexual intercourse by forcible compulsion. Kohler acknowledged that he understood this and agreed to it (Plea Transcript, 7). Petitioner has failed to show that any additional mental state is required for the crime of sodomy. In addition, at no time during the plea allocution did petitioner deny his guilt and claim innocence; at all times he clearly showed his intent to go through with the guilty plea. Panuccio, 927 F.2d at 110.
Petitioner's claim that his guilty plea was involuntary because he was not informed of the defense of intoxication is also without merit. Intoxication is an affirmative defense, not an element of the crime charged. "Due process does not require that a defendant be advised of every basis on which he might escape or receive a lesser punishment for an offense that he has committed." Mitchell v. Scully, 746 F.2d 951, 956 (2d Cir. 1984). Therefore, petitioner may only show that his guilty plea was not voluntary by showing that the advice he received from counsel to plead guilty was constitutionally ineffective. Id. at 957. As discussed above, counsel was not ineffective even if he did not inform petitioner of the defense of intoxication.
Petitioner's reliance on Henderson v. Morgan, 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976), and Harned v. Henderson, 588 F.2d 12 (1978) is misplaced. In both cases the defendant was unaware of an essential element of the crime to which he pleaded guilty, not the availability of an affirmative defense. In Henderson, the defendant was unaware of the element of intent (to cause death) in the crime of second-degree murder. In addition, the defendant was substantially below average intelligence, the indictment did not charge second-degree murder, and there was no evidence that the nature of the crime had been discussed. In Harned, the defendant was unaware of the element of intent (to cause physical injury) for first-degree burglary. The defendant never admitted that he committed any violence, an essential element of the crime. In the instant case, the defendant clearly admitted that he did engage in deviate sexual intercourse--oral sodomy--by forcible compulsion, through punching the victim. Therefore, I find that petitioner's guilty plea was intelligent and voluntary.
The petitioner's application for a writ of habeas corpus is denied. Certificate of probable cause is denied.
For the reasons set forth above, I hereby certify that any appeal from this order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a), and leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge v. United States, 369 U.S. 438, 8 L. Ed. 2d 21, 82 S. Ct. 917 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
JOHN T. CURTIN
United States District Judge
Dated: August 29, 1994
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