The opinion of the court was delivered by: Marrero, District Judge.
George Morris ("Morris" or "Petitioner") petitions for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In support, Morris
alleges that after he had entered a plea of guilty to a
misdemeanor charge on which he was indicted, a state trial court
judge improperly reinstated a previously dismissed felony count
in the same indictment. Morris argues that such reinstatement
violated his constitutional right under the Fifth Amendment of
the United States Constitution not to be twice put in jeopardy.
The Magistrate Judge, to whom the petition was referred, issued a
Report and Recommendation advising that the habeas petition be
granted and that Morris be released from state custody. For the
reasons set forth below, the Court declines to accept the Report
and Recommendation and denies the petition.
Morris was indicted on December 9, 1993 for criminal possession
of a weapon in the third degree (a Class D felony) and the lesser
included offense of criminal possession of a weapon in the fourth
degree (a Class A misdemeanor) for carrying a loaded pistol on
November 9, 1993. On March 4, 1994, Petitioner moved to dismiss
the indictment for insufficient evidence. The State opposed the
motion in a written response dated March 24, 1994. Justice
Dominic Massaro of the New York State Supreme Court, Bronx County
Justice"), orally dismissed the felony count at a calendar call
on May 10, 1994.
During a conference held on June 7, 1994, the Trial Justice
acknowledged that he had previously dismissed the felony count.
Asked by Morris's counsel for a copy of the written decision on
Morris's motion, the Trial Justice replied that a copy could be
obtained from the court's clerk and that there "probably" was one
in the file. See Transcript from Hearing in People v. Morris,
dated June 7, 1994, at 2-3; Affidavit of Raffaelina Gianfrancesco
in Opposition, dated July 20, 1999 ("Gianfrancesco Aff."), Ex. 2.
Morris was scheduled to plead to the misdemeanor charge on
August 1, 1994. Before his plea was taken, the prosecutor asked
the Trial Justice for a copy of the written decision concerning
the felony count and was told that she should have gotten a copy
of it sooner. See Gianfrancesco Aff., Ex. 2. On that day, over
the prosecutor's protest that there was no written decision
dismissing the felony count (see Gianfrancesco Aff., Ex. 2),
the Trial Justice allowed Morris to withdraw his earlier plea of
not guilty and to enter a plea of guilty to the misdemeanor
charge, which the Trial Justice characterized as the "remaining
count." See Transcript from Hearing in People v. Morris,
dated Aug. 1, 1994, at 14. After allocution, the Trial Justice
accepted the plea, indicating that he would impose a sentence of
three years' probation. See id. at 12. The prosecutor averred
that "[d]irectly after the plea was taken," (see Gianfrancesco
Aff., Ex. 2), she called the Trial Justice's Law Secretary to
request a copy of the Trial Justice's written decision and was
informed that the decision was not "completed" but that it would
reflect that the Trial Justice had found the evidence before the
grand jury sufficient to sustain the indictment. See id.
"Several days later," the prosecutor received a copy of that
decision. See id. The Trial Justice's written decision, which
was dated July 29, 1994 (the "Decision"), formally denied
Morris's motion to dismiss the felony count. The Decision found
that the "credible evidence educed from the Grand Jury is legally
sufficient to sustain the indictment." Id., Ex. 3.
During Morris's sentencing on October 21, 1994, the Trial
Justice orally confirmed his reinstatement of the felony count,
asserting that the previous dismissal was issued in error:
After review, [the felony count] is reinstated. I
will afford the gentleman the opportunity to withdraw
his plea, which was obviously made under the
impression that that had been reduced — I mean,
On July 29th, 1994, the Court issued its written
decision, Court [sic] having pointed out that the
dismissal of Criminal Possession of a Weapon in the
Third Degree previously enunciated from the Bench on
5/10, ma'am, I believe not 6/7, but in any event was
incorrect. When the matter was reduced to the written
decision, the Court realizing it's [sic] own error,
corrected itself. And having done so, any Bench
decision rendered either on 5/10 or 6/7 is withdrawn
and the decision of July 29th, 1994 stands.
Transcript from Hearing in People v. Morris, dated Oct. 21,
1994 ("Oct.Tr."), at 2, 7-8. The Trial Justice offered to allow
Morris to withdraw his plea to the misdemeanor charge, which the
court acknowledged had been made under the impression that the
felony count had been dismissed. See id. Morris refused. The
Trial Justice then, over Morris's objection, vacated the
In December 1994, Morris filed a petition for prohibition with
the Appellate Division, First Department, under Article 78 of New
York's Civil Practice Law and Rules ("C.P.L.R.") seeking to
prohibit the Trial Justice from carrying out his decision to
vacate Morris's misdemeanor guilty plea
and reinstate the felony count, and also to compel the Trial
Justice to sentence him to three years probation, in accordance
with the terms of Morris's August 1, 1994 misdemeanor plea. As
Respondents, Morris's appeal named the Trial Justice and the
Bronx County District Attorney. The petition advanced two
arguments: that (1) the Trial Justice had no authority, sua
sponte and unilaterally without Petitioner's consent, to vacate
the earlier plea and reinstate the previously dismissed felony
count, absent some impropriety associated with the taking of the
plea (see Verified Petition, dated Dec. 6, 1994 ("Verified
Petition"), ¶¶ 19, 22*fn2); and (2) the reinstatement of the
felony count violated Morris's double jeopardy rights under the
United States Constitution. See id., ¶ 22.
The Appellate Division granted Morris's petition, with two
Justices dissenting. See Van Leer-Greenberg ex rel. Morris v.
Massaro, 215 A.D.2d 283, 626 N.Y.S.2d 779 (1st Dep't 1995). The
majority found that no statutory authority existed permitting the
Trial Justice to vacate a guilty plea without the defendant's
consent. See id. at 780. Moreover, the court found that despite
the Trial Justice's attempted reinstatement of the felony count,
because prior agreement on a plea to the lesser charge had been
reached and there was no change in circumstances, Morris was
entitled to the benefit of his plea bargain. See id.
The dissent argued that since the Trial Justice "ruled in
error, he has the inherent power to vacate the plea, which would
have been improper, prior to the imposition of sentence and to
correct his own error and reinstate the previously dismissed
charge." Id. at 781. Accordingly, the dissenters concluded that
the Trial Justice merely exercised inherent authority to correct
his error when he vacated the guilty plea and reinstated the
felony count. See id. The dissent further maintained that since
the trial court had the inherent power, prior to the imposition
of sentence, to vacate an illegal or invalid plea and "restore
the action to its pre-plea status," further proceedings would not
be barred by double jeopardy concerns. See id. at 782. In such
circumstances, (a) vacatur of a guilty plea was not the
equivalent of an acquittal based on an adjudication as to the
factual elements of the charge, (see id.), and (b) the double
jeopardy clause was not violated because the proceeding did not
"terminate" in a "judgment" — a conviction and the sentence
imposed thereon — but only in a "conviction" by virtue of a
guilty plea. See id.
Shortly after its decision, the Appellate Division granted the
Respondents leave to appeal to the New York Court of Appeals and
certified a question, (see Van Leer-Greenberg ex rel.Morris v.
Massaro, 216 A.D.2d 972, 628 N.Y.S.2d 1013 (1st Dep't 1995)), as
provided for in the case of an appeal that may be taken by
permission. The question presented to the Court of Appeals was
whether the Appellate Division's decision and order entered on
May 23, 1995 was properly made. See Objections to the
Magistrate's Report and Recommendation, dated Jan. 20, 2000 (the
"Objections"), Ex. 5.
A unanimous Court of Appeals declined to answer the certified
question and reversed the judgment of the Appellate Division,
holding that the Trial Justice had not acted improperly because a
trial court has the inherent authority to correct its own error
before imposition of sentence. See Van Leer-Greenberg ex rel.
Morris v. Massaro, 87 N.Y.2d 996, 642 N.Y.S.2d 618,
665 N.E.2d 188, 189 (1996). On June 4, 1997, Morris entered a guilty plea to
the felony count and was sentenced to between two-and-a-half and
five years in prison. Morris did not appeal this conviction.
Morris filed with this Court in March 1998 a petition for a
writ of habeas corpus which was later amended to remove
unexhausted claims and refiled as the instant petition raising
two points as grounds for relief. These arguments were the same
ones Morris had made in his state court appeal: that (1) absent
impropriety in the taking of the plea, the Trial Justice lacked
authority sua sponte and without Morris's consent to vacate
Morris's plea and restore the previously dismissed felony charge
and (2) the reinstatement of the felony count violated Morris's
federal double jeopardy rights. See Amended Petition for a Writ
of Habeas Corpus, dated May 21, 1999, at 3-4. The State's
response to Morris's amended petition argued that Morris's first
ground must be dismissed because it did not raise a federal
constitutional issue (see Memorandum of Law in Opposition to
Writ, dated July, 1999, at 13), and that Morris's rights under
the Double Jeopardy Clause were not violated because the vacatur
of a guilty plea was not the equivalent of an acquittal based on
the adjudication of the factual elements of the charge. See id.
Counsel was appointed in August 1999 to represent Morris with
regard to this petition. The Magistrate Judge issued a thorough,
reasoned Report and Recommendation (the "Report") on December 16,
1999. With respect to Morris's first ground, the Magistrate Judge
found that the argument raised a question of state law
authoritatively answered by the New York Court of Appeals. See
Report at 13. The analysis of the constitutional claim, however,
yielded a conclusion that Morris's double jeopardy rights were
violated, prompting a recommendation that Morris be released.
See id. at 29-30. The Bronx County District Attorney,
representing the State, filed objections to the Report. Morris
submitted a response to the objections, urging that the
Magistrate Judge's findings be upheld.
A. Magistrate Judge's Report
The Federal Magistrate Act provides that a district judge may
"designate a magistrate to conduct hearings, including
evidentiary hearings" in order to "submit to a judge of the court
proposed findings of fact and recommendations for the disposition
. . . of applications for posttrial relief made by individuals
convicted of criminal offenses. . . ." 28 U.S.C. § 636(b)(1)(B)
(2000). In reviewing the Report, this Court "may accept, reject,
or modify, in whole or in part, the findings or recommendations
made by the magistrate." 28 U.S.C. § 636(b)(1)(2000); see
Fed.R.Civ.P. 72(b). Any party may object to the Magistrate
Judge's findings and recommendations. See id. If an objection
is timely filed, as is the case here, the Court is bound to make
a "de novo determination of those portions of the report . . . or
recommendations to which objection is made." Id. See United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
B. Anti-Terrorism and Effective Death Penalty Act
As a preliminary matter, the Court notes that, because Morris's
petition was filed after the effective date of the Anti-Terrorism
and Effective Death Penalty Act ("AEDPA"), this action is
governed by the habeas statute as amended. See Williams v.
Taylor, ___ U.S. ___, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000);
28 U.S.C. § 2254. Pursuant to the various sections of
28 U.S.C. § 2254, this Court's review is guided by certain restrictions on
the nature and extent of review that a federal court can conduct
in considering a habeas petition.
A federal court may entertain a petition for a writ of habeas
corpus only where the petitioner has first "exhausted the
remedies available in the courts of the State."
28 U.S.C. § 2254(b)(1)(A) (2000).
See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30
L.Ed.2d 438 (1971); Caballero v. Keane, 42 F.3d 738, 740 (2d
Cir. 1994); Daye v. Attorney General of New York, 696 F.2d 186,
190 (2d Cir. 1982). This requirement mandates a habeas petitioner
to have "fairly presented" in state court the claims that are
raised in the habeas petition. Picard, 404 U.S. at 275, 92
S.Ct. 509. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct.
887, 130 L.Ed.2d 865 (1995); Strogov v. Attorney General of New
York, 191 F.3d 188, 191 (2d Cir. 1999), cert. denied, ___ U.S.
___, 120 S.Ct. 2723, 147 L.Ed.2d 987 (2000); Gonzalez v.
Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). The petitioner must
present both the factual and legal premises of his claims to the
state court. See Daye, 696 F.2d at 191-92. In this case, the
State has conceded that the two claims Morris raises in the
instant petition were exhausted in state courts. See
Gianfrancesco Aff., ¶ 19 n. 1; Report at 12. The Magistrate Judge
found that these claims were exhausted. See Report at 12. This
Court finds sufficient support in the record to sustain the
Magistrate Judge's finding in this regard. Accordingly, this
Court concludes that Petitioner's claims have been exhausted.
2. Presumption of Correctness
In a habeas corpus proceeding, "a determination of a factual
issue made by a state court shall be presumed to be correct."
28 U.S.C. § 2254(e)(1) (2000). Petitioner, however, may rebut the
presumption by clear and convincing evidence. See id.; Pons v.
Artuz, 00 Civ. 2004, 2000 WL 777942, at *2 (2d Cir. June 14,
2000). Consequently, this Court presumes that the factual
findings of the New York courts are correct and will not set
aside those findings unless "`the material facts were not
adequately developed at the State court hearing' or the court's
factual determinations are not fairly supported by the record."
James v. Greiner, 99 Civ. 2513, 2000 WL 233696, at *1 (2d Cir.
Feb. 16, 2000) (quoting Smith v. Mann, 173 F.3d 73, ...