of prohibited conduct by the defendant). This appears to have been the goal of the New York Court of Appeals in Outley when it ruled that defendants charged with violating no-arrest conditions could challenge the legitimacy of their arrest. Nevertheless, Spence insists that for due process to be served the breach of a no-arrest condition must be supported by a judicial finding by at least a preponderance of the evidence that defendant committed the crime for which he was arrested.
Spence's argument has considerable appeal. The preponderance standard is frequently relied upon to resolve factual disputes at adversarial proceedings. While less demanding than proof beyond a reasonable doubt, or even proof by clear and convincing evidence, the preponderance standard nevertheless requires a neutral factfinder to weigh competing evidence and, where appropriate, to make credibility findings before deciding whether a disputed matter is more likely true than not true. See United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir.), cert. denied, 513 U.S. 879, 130 L. Ed. 2d 140, 115 S. Ct. 211 (1994); see also 4 L. Sand, et al., Modern Federal Jury Instructions: Civil, P 73.01, at 73-4 (1997).
By contrast, "probable cause" is a "fluid" standard, "not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); accord Ornelas v. United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657, 1661 (1996). It deals more with the probabilities of a given set of circumstances than with the resolution of factual disputes. See Illinois v. Gates, 462 U.S. at 235. As such, it is a standard often applied to non-adversarial proceedings, such as applications for warrants and grand jury presentations, or to proceedings preliminary to fuller factual hearings. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 484-89, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) (two-stage consideration for parole revocation: preliminary hearing to determine whether there is probable cause to believe parole has been violated, followed by revocation hearing at which contested facts are reviewed under preponderance standard); see generally United States v. Miller, 116 F.3d 641, 669 (2d Cir. 1997) (in ruling on admissibility of murder victim's hearsay declarations, a grand jury's finding of probable cause to indict a defendant for murder is "not an acceptable surrogate for a court's finding, after a hearing at which both sides have the opportunity to be heard, that the defendant's responsibility for that murder is established by a preponderance of the evidence").
In urging the advantages of applying a preponderance rather than a probable cause standard to disputes over a defendant's breach of a no-arrest condition, Spence points to the facts of his own case. Soon after Bonita Bobbitt was robbed, she identified her assailants to police as brothers named Donovan and Kerith. Police quickly ascertained that Donovan and Kerith Spence were brothers with arrest records for robberies. Thereafter, Ms. Bobbitt identified Donovan Spence from a photo spread. Spence concedes that these facts established probable cause to support his arrest. See Miloslavsky v. AES Engineering Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) (victim complaints suffice to establish probable cause), aff'd, 993 F.2d 1534 (2d Cir. 1993), cert. denied, 510 U.S. 817, 126 L. Ed. 2d 37, 114 S. Ct. 68 (1993). Indeed, it is difficult to imagine that any court would find that there was not a "legitimate basis" for the police to arrest Spence. See People v. Outley, 80 N.Y.2d at 713, 594 N.Y.S.2d at 688. But he also maintains that Ms. Bobbitt was mistaken in her identification of him and points to the fact that he was acquitted by a jury that heard Ms. Bobbitt's testimony as well as that of his alibi witnesses.
Of course, an acquittal is not a factual finding that a defendant did not engage in the charged conduct. It is simply a finding that the prosecution has failed to prove its case beyond a reasonable doubt. See United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633, 637 (1997). If, however, Ms. Bobbitt was mistaken in her identification of Spence and if petitioner did spend the entire night of the robbery at home, then he really did nothing to warrant his rearrest or to violate his plea agreement. An inquiry limited to the legitimacy of the rearrest, i.e., a probable cause inquiry, such as was conducted in this case, never addressed this possibility, much less resolved it. Meanwhile, Spence is incarcerated purportedly for breaching his plea agreement although no neutral factfinder has weighed the competing evidence and independently concluded that his involvement in the Bobbitt robbery was indeed established by a preponderance of the evidence.
This court cannot, however, grant Spence habeas corpus relief on his due process claim. Even if it were to conclude that due process does require a sentencing court to apply a preponderance of the evidence rather than probable cause standard when a defendant charged with breaching the no-arrest condition of a plea agreement denies committing the underlying crime, such a holding would constitute a "new rule" that could not be applied on collateral review. See Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).
B. The Applicability of Teague v. Lane to Spence's Due Process Claim
In Teague v. Lane, the Supreme Court ruled that a federal court considering a habeas corpus petition cannot announce a new rule of criminal procedure for the benefit of a sentenced state prisoner. See 489 U.S. at 305-10; accord Butler v. McKellar, 494 U.S. 407, 412, 108 L. Ed. 2d 347, 110 S. Ct. 1212 (1990). A case announces a new rule "when it breaks new ground or imposes a new obligation on the States or the Federal Government." Teague v. Lane, 489 U.S. at 301. Only two exceptions are recognized: (1) when a new rule places certain conduct beyond the power of the criminal law-making authority to proscribe, id. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971)); and (2) when a new rule is "so central to an accurate determination of innocence or guilt" that without it, "the likelihood of an accurate conviction is seriously diminished," 489 U.S. at 313.
Petitioner seeks to avoid the application of Teague to his due process claim by arguing that he is not seeking the enunciation of any procedural rule; he is challenging the state court's failure to consider whether he actually committed the criminal conduct that led to his rearrest. "In other words, petitioner argues that the sentencing court answered the wrong question, not that it arrived at its answer by the wrong procedure." Petitioner's Letter to the Court, March 13, 1997, at 4. In fact, anything that defines the scope of a hearing that must be conducted before liberty is denied -- whether relating to the questions that must be resolved or the evidentiary standards that must be applied -- is fairly characterized as a rule of procedural due process. At its core, Spence's claim is that the state court did not afford him adequate procedural due process when it held him in violation of the no-arrest condition of his plea agreement. He asserts that the state court had to do more than find that he had been rearrested, and that his rearrest had been legitimate, i.e., not malicious and supported by probable cause. Petitioner submits that to afford him the procedural due process guaranteed by the Constitution, the state court was required to weigh the competing evidence and decide whether his commission of the crime for which he was rearrested was established by a preponderance. Such a ruling by this court would necessarily mandate new procedures to be followed by state courts in violation hearings.
Spence argues that, even if his claim does call for a procedural rule, it cannot be deemed a new one: "It is hardly new law to assert that where a sentence depends on the resolution of disputed factual issues, a hearing is necessary, or that the disputed facts must be determined by a preponderance of the evidence. See, e.g., United States v. Fatico, 579 F.2d 707, 711, 713 (2d Cir. 1978)[, cert. denied, 440 U.S. 910, 59 L. Ed. 2d 458, 99 S. Ct. 1221 (1979)] . . . ." Petitioner's Letter to the Court, March 13, 1997, at 5-6. This court agrees that the principle enunciated in Fatico is well established, but habeas petitioners cannot cite broad, general principles to avoid Teague analysis. See Sawyer v. Smith, 497 U.S. 227, 236, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990) (principle of reliability in capital sentencing did not dictate subsequent ruling prohibiting death sentence determination by sentencer who was led to believe responsibility for decision would rest elsewhere). While a petitioner need not point to an earlier case decided on facts identical to his own, he must show that preexisting law was "specific enough to dictate the rule" on which his own conviction or sentence may be held unlawful. Wright v. West, 505 U.S. 277, 311, 120 L. Ed. 2d 225, 112 S. Ct. 2482 (1992) (Souter, J., concurring).
For this same reason, case law generally requiring the government to establish the breach of a plea agreement by a preponderance of the evidence is of little assistance to Spence. See, e.g., United States v. Ataya, 864 F.2d at 1329-30; United States v. Packwood, 848 F.2d at 1011; United States v. Calabrese, 645 F.2d at 1390. As already noted, Spence's plea agreement provided for him not to be rearrested. There is no question about the government's ability to prove his subsequent arrest by a preponderance. The real issue in the case is whether due process requires any further inquiry when a defendant denies the criminal conduct underlying an undisputed arrest. Ataya, Packwood, and Calabrese do not address this question. The only cases to do so directly are People v. Outley, 80 N.Y.2d at 712, 594 N.Y.S.2d at 688, and Innes v. Dalsheim 680 F. Supp. at 519.
In Innes, the court held that "where a breach will subject the defendant to increased punishment, due process requires some knowing action by the defendant." 680 F. Supp. at 519 (emphasis added). But nowhere does it discuss the type of inquiry or standard of review that must be applied in such circumstances. The decision refers only to a defendant's right "to require the prosecution to make some kind of showing that he did engage in acts that led to an arrest and charge." Id. at 520 (emphasis added). In any event, a district court decision reversed on other grounds can hardly be characterized as the sort of precedent that would have "dictated" the procedural rule Spence now urges.
Innes was cited by the New York Court of Appeals in Outley to support its authoritative ruling that, when a defendant denies the conduct leading to an arrest, the mere fact of that arrest will not suffice to establish the defendant's breach of a plea agreement's no-arrest clause. People v. Outley, 80 N.Y.2d at 713, 594 N.Y.S.2d at 688. Indeed, Outley is the leading case recognizing a due process right to a judicial inquiry to ensure against malicious or baseless arrests serving as the basis for violating plea agreements. Nevertheless, in Outley, the Court of Appeals unanimously rejected the argument that sentencing courts were required to find by a preponderance of the evidence that a defendant had actually committed the crime for which he was arrested. Id. at 712-13, 594 N.Y.S.2d at 688. It was satisfied that a more flexible inquiry into the legitimacy of the arrest would adequately safeguard defendants' liberty interests. Id. at 713, 594 N.Y.S.2d at 688.
The need for any further procedural safeguards in no-arrest clause cases was thus not compelled by case law existing at the time Spence was sentenced. See Saffle v. Parks, 494 U.S. 484, 488, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990). The propriety of requiring the government to meet a higher standard of proof than that enunciated in Outley is a subject "susceptible to debate among reasonable minds." Butler v. McKellar, 494 U.S. at 415. When "reasonable jurists may disagree" about the steps the law should take to safeguard constitutional rights, new pronouncements in that area will not be grounds for collateral relief. See Sawyer v. Smith, 497 U.S. at 234. Accordingly, this court cannot announce and apply any new rule in Spence's case.
In a final effort to avoid having his request for relief characterized as a "new rule," Spence cites case law permitting federal courts to factor acquitted conduct into sentencing decisions if the conduct is proved by a preponderance of the evidence. See United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-82 (2d Cir.), cert. denied, 498 U.S. 844, 112 L. Ed. 2d 95, 111 S. Ct. 127 (1990); United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972). This principle was recently affirmed by the Supreme Court in United States v. Watts, 117 S. Ct. at 638. While this court agrees that these cases lend support to the merits of Spence's claim, it cannot say that they should have compelled the state courts to reach the result now urged. In the first place, it does not appear that this line of cases was ever cited to the state courts. Second, many of these cases arise in the context of the federal sentencing guidelines and are thus distinguishable. The sentencing guidelines treat acquitted conduct almost identically to conduct for which a defendant has been convicted, thereby giving rise to concerns that may not apply in state court actions where the sentencing judge may have more discretion.
Petitioner submits that even if the relief he seeks calls for a new procedural rule his case falls within the second Teague exception for "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Petitioner's Letter to the Court, March 13, 1997, at 7 (quoting Saffle v. Parks, 494 U.S. at 495).
Preliminarily, this court notes that in Teague the Supreme Court held that this "watershed" exception would not be applied to all procedural rules that could conceivably improve the accuracy of the factfinding process, but only to those "without which the likelihood of an accurate conviction is seriously diminished." Teague v. Lane, 489 U.S. at 313 (drawing on Justice Harlan's opinions in Desist v. United States, 394 U.S. 244, 256, 22 L. Ed. 2d 248, 89 S. Ct. 1030 (1969) (Harlan, J., dissenting) and Williams v. United States, 401 U.S. 667, 675, 693-95, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971) (Harlan, J., concurring in part and dissenting in part)). In Teague v. Lane, the Supreme Court indicated that the procedures critical to ensuring the accuracy of a conviction are those "central to an accurate determination of innocence or guilt." Id. If the exception is so limited, it simply does not apply to Spence's case. There is, after all, no question that Spence is guilty of the May 1992 robbery. His complaint is with the accuracy of procedures relating to his sentencing, not his culpability for the crimes of conviction.
Assuming, however, that the second Teague exception should be considered when new rules relate to sentencing procedures, see generally Graham v. Collins, 506 U.S. 461, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993) (finding that new rule requiring special jury instructions regarding mitigating evidence during sentencing phase of capital case did not come within second Teague exception); Sawyer v. Smith, 497 U.S. at 242-43; Saffle v. Parks, 494 U.S. at 494-95, petitioner's case would still not qualify. Whatever the precise scope of the second Teague exception, the Supreme Court has repeatedly emphasized that it is "meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty." Graham v. Collins, 506 U.S. at 478 (1993) (internal quotation marks and citations omitted). Indeed, in Teague, the Supreme Court expressed the belief that it was "unlikely that many such components of basic due process have yet to emerge." Teague v. Lane, 489 U.S. at 313.
The rule plaintiff seeks does not come within this narrow category. Petitioner was not, after all, sentenced in the absence of any procedural safeguards. He received the protections articulated by the New York Court of Appeals in Outley. What he seeks is a ruling expanding these protections. Specifically, Spence contends that it was not enough for the sentencing court to afford him an evidentiary hearing, or to make findings that his arrest was not the product of police overreaching and was supported by probable cause to believe he had committed the underlying crime. Spence insists that due process required the trial court to apply a higher standard of review, preponderance of the evidence, in deciding whether he had engaged in the criminal conduct underlying the arrest cited as a breach of his plea agreement.
Until recently, however, sentencing courts routinely "heard evidence and found facts without any prescribed burden of proof at all." McMillan v. Pennsylvania, 477 U.S. at 91. It was presumed that neutral judges would resolve sentencing disputes accurately and fairly. While the articulation of particular procedural standards and burdens of proof for sentencing may enhance accuracy and even foster public confidence in the fairness of the process, this court cannot say that without the particular procedural standards urged by petitioner in this case the likelihood of fairly and accurately sentencing defendants charged with violating no-arrest conditions is seriously diminished. See generally Maietta v. Irvin, 1995 U.S. Dist. LEXIS 12302, No. 94 Civ. 1592, 1995 WL 505558, at *2 (S.D.N.Y. Aug. 25, 1995) (in habeas petition from defendant whose case was heard together with Outley by New York Court of Appeals, district court concluded that due process claim asserting a right to a full evidentiary hearing and not simply an "inquiry" sought a new rule of criminal procedure not within the second Teague exception: "a rule requiring a hearing to determine breach of a no-arrest agreement simply does not constitute the type of significant development in the law . . . for which the writ of habeas corpus was designed"), aff'd on other grounds sub nom. Maietta v. Artuz, 84 F.3d 100 (2d Cir.) (defendant's subsequent guilty plea to rearrest charge made it impossible for him to challenge the validity of that arrest), cert. denied, 136 L. Ed. 2d 303, 117 S. Ct. 386 (1996).
The court concludes that the due process claim asserted by Spence seeks a new procedural rule that cannot be applied on habeas corpus review of his case. That part of his habeas corpus petition alleging a violation of due process is denied.
III. Eighth Amendment
Spence's Eighth Amendment claim is, in fact, a variation on his due process argument. He asserts that, in sentencing him to a term of incarceration rather than probation, the state court was penalizing him for his rearrest rather than punishing him for the original crime of conviction. He submits that it constituted cruel and unusual punishment to impose an incarceratory sentence based only on a finding that the rearrest was justified, without any inquiry into whether the conduct underlying that arrest was proved by a preponderance of the evidence.
The court rejects petitioner's contention that his sentence must be viewed as a punishment for the rearrest rather than the original crime of conviction. The state court transcripts make plain that the sentencing judge relied on the rearrest simply as a ground to vacate the original promise of probation. The incarceratory sentence was imposed with reference only to the original crime of conviction. Thus, when defense counsel argued that a term of eight and one-third to twenty-five years was excessive, the sentencing court reviewed aggravating factors from the May 1992 robbery.
Let's see how excessive it is. . . . Let's talk about some of the victims of the first crime. . . . Mr. Frams (ph) in that store was robbed. His property was recovered. He was beaten up. He was kicked. He was punched by all of the defendants. He was employed as a clerk in the store. It was his second day at work and then he subsequently quit for fear of coming back to work. Miss Lou, who is, she was robbed, she was beaten up, kicked and punched. She was kicked several times in the stomach and in the back and the defendants, including Donovan Spence according to her threatened to kill her and her husband.
Another person, Mr. Duran, one of the defendants held a gun to his back, another held a gun to his head while they both stripped him of his money and jewelry. He was kicked in the face several times. The nature of the crime was horrendous.
Transcript, December 1, 1992, at 15-16.
The court is satisfied that the sentence imposed is within the term mandated by the New York State legislature and not disproportionate to the crime of conviction. See Harmelin v. Michigan, 501 U.S. 957, 996, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991) (Kennedy, J., concurring, with O'Connor and Souter, JJ.); Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983). Accordingly, it rejects Spence's Eighth Amendment claim on the merits.
No objections having been raised to the Magistrate Judge's finding that Spence failed to exhaust state remedies for any federal challenge he may have to the sentencing judge's interpretation of his plea agreement, this court hereby dismisses that part of his habeas petition as procedurally barred. The court further rejects petitioner's Eighth Amendment challenge to his sentence as meritless. Petitioner's due process challenge to his sentence would require this court to apply a new rule of criminal procedure to violations of the no-arrest clauses of plea agreements, which cannot be done on collateral review of a conviction absent extraordinary circumstances not present in this case. Accordingly, this part of the petition is also denied. Nevertheless, because this last issue presents a serious legal question, the court grants Spence a certificate of appealability. See 28 U.S.C. § 2253(c)(2) (1994 & Supp. 1997); Nelson v. Walker, 121 F.3d 828 (2d Cir. 1997). The Clerk of the court is to enter judgment in favor of respondents and mark this case closed.
Dated: Brooklyn, New York
November 18, 1997
UNITED STATES DISTRICT JUDGE