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MORRIS v. REYNOLDS

August 3, 2000

GEORGE MORRIS, PETITIONER,
V.
EDWARD REYNOLDS, SUPERINTENDENT OF MOHAWK CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Marrero, District Judge.

  DECISION AND ORDER

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.

FACTS*fn1

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 (the "Trial 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, dismissed.
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 misdemeanor plea.

PROCEDURAL HISTORY

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. at 16.

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.

STANDARD OF REVIEW

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.

1. Exhaustion

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, ...


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