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January 3, 2003


The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.


Eliot Lopez ("Lopez" or "Petitioner") seeks a writ of habeas corpus from his conviction in Supreme Court, Bronx County upon his guilty plea of six counts of Murder in the Second Degree (PL 125.25[1]), for which he was sentenced to an aggregate term of 30 years to life imprisonment. (Barrett, J.) In his petition, Lopez seeks relief based on the following grounds: (1) that his conviction was obtained by a guilty plea not made voluntarily, as Lopez w as psychologically impaired and (2) trial and prior appellate counsel were ineffective in failing to observe and raise the issue of Lopez's psychological impairment. Subsequently, Petitioner withdrew his claim of ineffective assistance of counsel as to his appellate counsel only. For the reasons set forth below, Lopez's petition is DENIED.


Lopez's conviction stems from the murder of six people on February 14, 1993. Lopez admitted at his plea colloquy to intentionally causing the deaths of the victims. (See Plea Colloquy ("Plea"), at Pet'r's Ex. F at 23.) At no time was it alleged that Lopez was the shooter but rather that he acted in concert with the shooter, Anthony Casellas, as well as three other individuals to cause the deaths of the victims. Casellas was tried and found guilty of six counts of intentional murder in the second degree, six counts of felony murder in the second degree, and conspiracy in the second degree. He was sentenced to 162 years to life imprisonment.

Lopez decided to plead guilty prior to trial. The transcript of the plea colloquy is twenty-four pages in length. During the colloquy, the trial judge, Justice Barrett, advised Lopez at length of the rights he was giving up by pleading guilty and queried the nature of his plea, including whether or not he understood the effects of that plea. (See Plea at 3-12.) Justice Barrett also ascertained that Lopez speaks and understands English, that he was represented by counsel, that he had spoken with counsel about his plea of guilty and that his attorney had explained the consequences of his plea as well as the alternative of a trial. (See Plea at 2-3.) Finally, Justice Barrett questioned, and Lopez affirmed, that Lopez waived his rights freely and voluntarily, that no one forced him to plead guilty, and that it was his wish to so plead. (See Plea at 12-14.) The Assistant District Attorney, Risa Sugarman, recited the details of the crime and Lopez's participation in it, which were then repeated by Justice Barrett and assented to by Lopez. (See Plea at 14-22.) While it is true that Lopez's participation in the plea colloquy was largely in the form of monosyllabic responses, those responses were appropriate and consistent with one who is competent as well as voluntarily pleading guilty. The sentencing hearing was similarly lengthy, running twenty-six transcribed pages. At sentencing, Lopez was given the opportunity to make a statement to the Court. In that statement, Lopez referred to the crime as one he "did admit to, but did not commit." (Sentencing Minutes ("Sentencing") at Pet'r's Ex. G at 18.) He also claimed that "I never in my life would hurt anyone, never did, never will." (Sentencing at 18.) Contrarily, he said, "I made my family suffer, their family and the deceased's families. I do have a lot of remorse for their family and I feel very sorry for what happened." (Sentencing at 18-19.) He explained further, "I am pleading guilty today because I feel if I had gone to trial, I would not have received a fair trial due to the newspapers and the media." (Sentencing at 18.) He went on to say that "[a]fter someone else gets 162 and a half to life, I had no other choice, but to plead guilty. I did make a mistake, but to say that I would hurt anyone is out of my character." (Sentencing at 18.) Outside of these statements to the trial court, no evidence was presented that Lopez did not act to intentionally cause the deaths of the six victims. As promised by the court at his plea, Lopez was sentenced to 30 years to life imprisonment.*fn1 (See Sentencing at 24; Plea at 4.)


On September 26, 1995, Lopez was convicted in Supreme Court, Bronx County of the crime described above. He was sentenced on October 20, 1995. In April 1997, Lopez's original appellate attorney, Virginia LoPreto was assigned to represent Lopez after The Legal Aid Society was relieved. On November 9, 1998, she filed a brief on Lopez's behalf, arguing that the plea and sentencing allocutions cast significant doubt upon Lopez's guilt and negated the essential element of homicidal intent, and that the sentence was harsh and excessive. (See Resp't's Ex. 3.) Two days later, Lopez moved the Appellate Division, First Department, for an order relieving Ms. LoPreto; this motion was granted on December 22, 1998. (See Resp't's Exs. 4 and 6.) Ms. LoPreto was replaced by Robert S. Dean of the Center for Appellate Litigation. Mr. Dean remains Lopez's attorney.

In February 1999, Mr. Dean appealed the original judgment of the Supreme Court, Bronx County on the following grounds: (1) Lopez was denied due process when the court sentenced him without conducting any inquiry into his claims of innocence and (2) his sentence was excessive. (See Resp't's Ex. 7.) On June 10, 1999, the Appellate Division, First Department unanimously affirmed Lopez's conviction. See People v. Lopez (1st Dept. 1999), 262 A.D.2d 109. The court held that Lopez "had failed to preserve his claim that the court should not have imposed sentence without inquiring into defendant's post-plea claims of innocence." Id. at 109. While the court declined to review the claim in the interest of justice, the court found that were it to do so, it would reject the claim. The court explained, "[s]ince the defendant made no application to withdraw his guilty plea, and since his statements at sentencing clearly expressed his intention that his plea should stand notwithstanding his claim of innocence, there was no requirement that the court make any further inquiry." Id. The court concluded that "the plea minutes cast no doubt on defendant's guilt or the voluntariness of his plea, and that his assertions of innocence were conclusory." Id. Lopez then applied for a certificate granting leave to appeal to the court of appeals pursuant to C.P.L. 460.20. This application was denied by the Court of Appeals of the State of New York on the grounds that "no question of law [was] presented which ought to be reviewed by the Court of Appeals." (Resp't's Ex. 10.) On July 6, 1999, Lopez made a motion, pursuant to C.P.L. 440.10 seeking an order vacating the judgment of conviction, claiming that the plea was involuntary because Lopez was incompetent and that erroneous advice given to Lopez and an incomplete investigation contributed to the involuntariness of Lopez's plea. The trial court denied the motion on its merits, finding that "[o]ther than the bald allegation contained in defendant's affidavit, nothing in the record or other accompanying papers supports defendant's claim[s]." People v. Lopez (N.Y.Sup.Ct. Dec. 18, 2000), No. 1612/93, slip op. at 1. Lopez then moved for a certificate granting leave to appeal to the Appellate Division, First Department. (See Resp't's Ex. 15.) On February 15, 2001, this application was denied for the reason that "upon the record and proceedings herein, there is no question of law or fact presented which ought to be reviewed . . ." People v. Lopez (N.Y.Sup.Ct.App. Div. Feb. 15, 2001), No. 1612/93, slip op. at 1.


On April 24, 2001, petitioner filed a petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. His petition is based on two grounds: first, that the conviction was obtained by a guilty plea not made voluntarily due to petitioner's mental impairment and second, that trial and previous appellate counsel were ineffective in failing to observe and raise the first issue. Lopez further alleges that trial counsel was ineffective in failing to investigate the circumstances underlying his interrogation and in inaccurately leading him to believe that he could be released from prison in as little as 15 years if he pleaded guilty. The government argued in its memorandum of law in opposition to the petition for habeas relief that Lopez's claim of ineffective assistance of appellate counsel was unexhausted since it was not raised in state court. Lopez subsequently withdrew his claim of ineffective assistance of appellate counsel. Thus, the two grounds on which Lopez seeks relief are: (1) that his conviction was obtained by a guilty plea not made voluntarily and (2) ineffective assistance of trial counsel.

Standard of Review

The standard of review applicable to habeas corpus petitions challenging state court judgments is set out in 28 U.S.C. § 2254(d). This provision was amended in 1996 by the Antiterrorism and Effective death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1219 (1996). In enacting AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." [Terry] Williams v. Taylor (2000) 529 U.S. 362, 403. Since Lopez's application for habeas corpus relief was filed after April 26, 1996, his petition is governed by the habeas statute as amended by AED PA. Section 2254(d), as amended by AEDPA, reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

This statute was construed by the Supreme Court in [Terry] Williams v. Taylor. 529 U.S. 362 (2000). In explaining the first ...

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