Pressley was indeed notified of the charges prior to his actual testimony, Pressley's argument is an ipse dixit and does not provide a basis for concluding that the Fifth Amendment imposes any requirement of advance notice. The Supreme Court has held that a grand jury need not "identify the offender it suspects, or even `the precise nature of the offense' it is investigating." Williams, 504 U.S. at 48, 112 S.Ct. 1735 (citation omitted). There is no reason why a defendant's decision to testify before that grand jury should accord that defendant additional rights that would not have existed otherwise.
Pressley focuses on the fact that the grand jury testimony "played a critical role in his conviction." Pet. Mem. at 37. Accepting his premise as correct, the significance of his grand jury testimony turned on his apparent concession that he perjured himself before the grand jury about the September incident (despite being given explicit warnings that his testimony could be used against him, see GJ Test. at 34 (A. 173)) and on the fact that his grand jury testimony was later discredited by Gurley's testimony and the DNA evidence. But there was nothing unfair about the process Pressley was subjected to. He was informed of all the charges prior to actually entering the grand jury room to testify; he was informed that he did not have to testify; he was allowed to appear with counsel before the grand jury; he declined additional time to consult with his counsel; he was explicitly informed that his statements could be used against him at trial and he voluntarily testified after being so informed. Perjury during testimony before a grand jury that is material to the proceeding is a crime in and of itself, see Penal Law § 210.15, that cannot be excused because a defendant vainly hoped to use it to his advantage. To the extent Pressley argues that his false testimony before the grand jury was the first step in a chain of events that resulted in his ultimate conviction at trial, his own perjury was the supervening cause of that chain of events, not the lack of a fair process.
For these reasons, Pressley's due process claim fails on the merits.
C. Ground Two: Ineffective Assistance of Counsel Claim
Pressley also argues his Sixth Amendment right to counsel was violated because Bogan, his counsel at the grand jury proceeding, was unconstitutionally ineffective. Pet. Mem. at 38-51.
The "right to counsel [under the Sixth Amendment] is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The purpose of this right is "simply to ensure that criminal defendants receive a fair trial." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. A criminal defendant's counsel's performance is constitutionally ineffective if (1) counsel's performance was "deficient," meaning counsel made "errors so serious" that his or her conduct "fell below an objective standard of reasonableness"; and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 687-88, 690, 694, 104 S.Ct. 2052; accord United States v. Guevara, 277 F.3d 111, 127 (2d Cir. 2001), amended on other grounds, 298 F.3d 124 (2d Cir. 2002); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). "In gauging deficiency, the court must be `highly deferential,' must `consider all the circumstances,' must make `every effort . . . to eliminate the distorting effects of hindsight,' and must operate with a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). In addition, the Court must "`evaluate the conduct from counsel's perspective at the time.'" Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
Pressley claims that Bogan's conduct was unreasonable because he "allow[ed] [Pressley] to go before the grand jury and give sworn testimony" about the September incident "without taking any opportunity to make any investigation of the facts or the law" or "stopping to consider the legal and factual consequences of giving `ad lib' testimony." Pet. Mem. at 43. The crux of Pressley's argument is that by "allowing" him to testify that he was not with Gurley on the day in question, Bogan locked Pressley into a defense that could not be squared with the evidence presented at trial. Specifically, Pressley's grand jury testimony that he had not been with Gurley on the day of the September incident was contradicted by Gurley's testimony describing the inside of Pressley's house. According to Pressley, a competent attorney in Bogan's situation would have either not let the client testify at all or obtained an adjournment "to consider the additional charges." Id. at 43-44.
Pressley's argument is unavailing for many reasons. As an initial matter, it is difficult to evaluate Pressley's argument in the absence of a complete record as to what transpired between him and Bogan. The record reflects that Bogan consulted with Pressley to see if he still wanted to testify before the grand jury after learning that the District Attorney planned to present the September incident. Tr. 899 (A. 164). But the only information offered by Pressley about this conversation (contained in an affidavit) gives no description of what Pressley told Bogan prior to the grand jury testimony about his own involvement in the incident. See Affidavit of Terry Alexander Pressley, dated June 27, 1997 (reproduced in Answer, Ex. E). Pressley did not testify at the section 440 hearing. Thus, for example, we do not know if Pressley informed Bogan that he planned to perjure himself. If he did so inform Bogan, an investigation was certainly unnecessary.*fn3
If on the other hand Pressley lied to Bogan about his whereabouts on September 2, Pressley's argument rests on the proposition that it is unreasonable for a lawyer to trust the accuracy of his or her client's statements without first investigating those statements. The Court rejects this proposition because the attornoy-client relationship is premised on mutual trust. To promote this trust, the law permits a criminal defendant to honestly disclose even inculpatory facts about past events to his or her attorney without fear of any adverse consequences. Indeed, it is to support this relationship that the courts have created a virtually absolute attorney-client privilege. See, e.g., Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Contrary to the premise of Pressley's argument, attorneys are not obligated to distrust their clients and conduct independent investigations of their clients' statements before they may reasonably rely on their accuracy.
Second, given the short time that is typically given between notifying a potential defendant of a grand jury investigation and the voting of an indictment (often in New York State practice a matter of a few days and sometimes less), it would usually be impossible for a lawyer to conduct an independent investigation of the facts underlying the crime. Thus, Pressley's argument would put many attorneys in the situation of routinely being required to advise against testifying in the grand jury. This argument may have some surface appeal as it is extremely unlikely that an attorney could be found ineffective for advising a defendant to refuse to testify in the grand jury. But this is only because there is normally no greater likelihood of conviction at trial in the absence of a defendant's testimony before the grand jury.
Such an argument, however, ignores the strong interest many defendants harbor to make their case before the grand jury in order to avoid the embarrassment an indictment will bring or, more commonly, the continued incarceration that often results. While Pressley repeatedly asserts that Bogan should not have "allowed" him to testify, it was in fact Pressley's decision whether to testify before the grand jury. Cf. Chang v. United States, 250 F.3d 79, 82 (2d Cir. 2001) (decision to testify at trial is personal to the defendant and may not be waived by attorney). An attorney should not be considered to have acted below "an objective standard of reasonableness" simply for acceding — in the absence of such an investigation — to a defendant's wish to vindicate himself.
Pressley suggests that Bogan should have "obtain[ed] an adjournment" of the grand jury proceedings. Pet. Mem. at 43. Because Bogan was entitled to trust Pressley's version of the events, however, Bogan would have had no reason to believe such an adjournment was necessary. In addition, Pressley fails to cite any provision or case law (or even practice in the District Attorney's office) that would necessarily have permitted Bogan to obtain such an adjournment had one been requested. As a practical matter, Pressley's only choice might have been either to testify on February 20 or to forgo testifying at all. Again, while it is safer from the lawyer's point of view to counsel a client against testifying before a grand jury, a decision to "allow" a defendant desirous of testifying to do so does not fall outside "the wide range of reasonable professional assistance." Lindstadt, 239 F.3d at 199.
Finally, the New York Court of Appeals ruled that Pressley's counsel was constitutionally effective. Pressley, 94 N.Y.2d at 937, 708 N.Y.S.2d 32, 729 N.E.2d 689. Therefore, for Pressley's claim to succeed he must show that this decision was not just incorrect, but "objectively unreasonable." See Bell, 535 U.S. at ___, 122 S.Ct. at 1852 ("under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.") (citation omitted). Here, Pressley cites no federal case law, and the Court is aware of none, suggesting that a lawyer must conduct an investigation of facts before his or her client testifies before a grand jury. Nor does he cite any Supreme Court authority that even hints at such a result. The Court of Appeals decision thus could not have involved "an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." Accordingly, Pressley's claim of ineffective assistance of counsel fails.
D. Ground Three: Self-Incrimination
Pressley also argues that "the prosecutor violated [his] privilege against self-incrimination when she interrogated him before the grand jury that he had declined to speak with the police during the course of their investigation." Pet. Mem. at 52. This claim fails for the simple reason that claims of deficiencies in state grand jury proceedings are not cognizable in a federal habeas corpus review. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (citing United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)); Mackenzie v. Portuondo, 208 F. Supp.2d 302, 313 (E.D.N.Y. 2002); Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.), aff'd, 876 F.2d 890 (2d Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 106 (1989). As was noted in Mechanik,
[T]he petit jury's subsequent guilty verdict means
not only that there was probable cause to believe
that the defendants were guilty as charged, but also
that they are in fact guilty as charged beyond a
reasonable doubt. Measured by the petit jury's
verdict, then, any error in the grand jury proceeding
connected with the charging decision was harmless
beyond a reasonable doubt.
475 U.S. at 70, 106 S.Ct. 938 (footnote omitted). The defendant's reliance on United States v. Midland Asphalt Corp., 840 F.2d 1040 (2d Cir. 1988), aff'd, 489 U.S. 794, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989), see Reply Mem. at 15, is misplaced as this case dealt only with the appealability of a motion to dismiss an indictment and in no way narrowed the scope of Mechanik.
E. Ground Four: Pressley's Sentence
Pressley also argues that the sentences he received in this matter as a second violent felony offender (concurrent sentences of 7 to 14 years for the rape charge and 2-1/2 to 5 years for the sexual abuse charge to run consecutive to the 12 year sentence for the sodomy charge) violate the Eighth Amendment prohibition of cruel and unusual punishments. Pet. Mem. at 58 61. He claims the sentences are "unconstitutionally disproportionate to the crimes for which he was convicted." Id. at 59. The Court of Appeals did not clearly adjudicate this claim on the merits. Accordingly, the Court reviews this claim de novo. See, e.g., Brown, 283 F.3d at 498.
Because the Court must grant considerable deference to legislatively mandated terms of imprisonment, successful challenges to sentences will be "exceedingly rare." Hutto v. Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam) (citation omitted); accord Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ("Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals."). The Second Circuit has broadly stated that "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (citation omitted). A court should not defer to a state sentence, however, "in extreme circumstances such as where the punishment is barbaric or vastly disproportionate to the crime committed." Salcedo v. Artuz, 107 F. Supp.2d 405, 414 (S.D.N.Y. 2000) (citing cases); accord United States v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, Babylon, N.Y., 954 F.2d 29, 38 (2d Cir. 1992) ("The Cruel and Unusual Punishment Clause prevents the imposition of a punishment which is `grossly disproportionate' to the crime committed.") (citation omitted), cert. denied, 506 U.S. 815, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992). The Supreme Court has held that, in deciding whether a penalty is grossly disproportionate to the offense, a court should consider "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Solem, 463 U.S. at 292, 103 S.Ct. 3001; accord United States v. Bennett, 252 F.3d 559, 567 (2d Cir. 2001), cert. denied, 535 U.S. 932, 122 S.Ct. 1307, 152 L.Ed.2d 217 (2002). Nonetheless, "a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Solem, 463 U.S. at 290 n. 16, 103 S.Ct. 3001; accord United States v. Santos, 64 F.3d 41, 46 (2d Cir. 1995), vacated on other grounds, 516 U.S. 1156, 116 S.Ct. 1038, 134 L.Ed.2d 186 (1996).
Bearing these considerations in mind, the Court cannot conclude that the sentence violated the Eighth Amendment. First, rape, sexual abuse, and forced sodomy are grave crimes warranting a severe punishment. Under such circumstances, an aggregate term of 19 to 26 years for these crimes does not "shock the collective conscience of society." United States v. Gonzalez, 922 F.2d 1044, 1053 (2d Cir.), cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991). Second, other criminals in New York state have received comparable sentences, as reflected in case law rejecting such sentences as cruel and unusual. See, e.g., Moore v. Irvin, 908 F. Supp. 200 (N.D.N.Y. 1995) (sentences totaling 29-2/3 to 50 years for rape, sodomy and sexual abuse); People v. Gray, 288 A.D.2d 897, 732 N.Y.S.2d 384 (4th Dep't 2001) (22 years for rape, sodomy, sexual abuse, and unlawful imprisonment for second violent felony offender), leave to appeal denied, 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159 (2002); People v. Wilson, 77 A.D.2d 713, 430 N.Y.S.2d 715 (3d Dep't 1980) (7 to 21 years for sodomy). Finally, longer sentences have been upheld for crimes similar to Pressley's in other jurisdictions. See, e.g., State v. Brown, 742 So.2d 1051 (La.App. 1999) (25 years of hard labor for attempted aggravated rape), cert. denied, 760 So.2d 340 (2000); Kidd v. State, 793 So.2d 675 (Miss.App. 2001) (consecutive prison sentences of 25 years for sexual battery and 30 years for each of two counts of rape); Sollers v. State, 664 S.W.2d 726 (Tex.App. 1983) (50 year sentence for aggravated rape). Even "severe" penalties that "may be considered cruel" are not necessarily "unusual in the constitutional sense." Harmelin v. Michigan, 501 U.S. 957, 994, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (imposition of mandatory life sentence for possession of 650 grams of cocaine not cruel and unusual). In Pressley's case, the sentence he received must also be considered in light of his prior record which includes, among other convictions, a 1989 conviction for Attempted Robbery in the Second Degree, Penal Law § 160.10 (a class C felony) and a 1993 conviction for Assault in the Third Degree, Penal Law § 120.00 (a class A misdemeanor). Transcript of Sentencing, August 15, 1997, at 6-7. For these reasons, Pressley's sentence was not in violation of the Eighth Amendment.
Pressley also claims that the "the state court lacked the authority and jurisdiction to impose such a severe sentence" because "P.L. § 70.04, which provides for enhanced sentence for second violent felony offenders, was enacted after Terry Pressley's prior felony conviction and where it was not established that he engaged in violent conduct during the predicate felony." Pet. Mem. at 61. To the extent Pressley is claiming a violation of New York law, the state court rejected this challenge because he was sentenced in accordance with § 70.04 and, in any event, this court cannot review this claim because "`federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)); see 28 U.S.C. § 2254(a); Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.), cert. denied, 525 U.S. 840, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998). To the extent Pressley challenges the application of Penal Law § 70.04 under the Ex Post Facto clause, his argument is rejected. The Second Circuit has expressly held that Penal Law § 70.04 does not violate the Ex Post Facto clause when applied to a criminal conviction obtained prior to its enactment. Covington v. Sullivan, 823 F.2d 37, 39 (2d Cir. 1987); see Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (rejecting Ex Post Facto challenge to state habitual criminal statute enhancing penalties for future crimes because of prior crimes committed before enactment of the statute).
F. Request for Hearing
Finally, Pressley requests a hearing (without specifying what new evidence would be offered at such a hearing) or in the alternative that the Court review "de novo" the record from the CPL § 440.10 hearing. Pet. Mem. at 62-63. 28 U.S.C. § 2254(e)(2) provides in pertinent part that if a habeas petitioner
has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant
shows that (A) the claim relies on . . . a factual
predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.