The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge
Flanders Jordan has filed a petition pro se pursuant to 28 U.S.C. § 2254 (2000), challenging his state court conviction for robbery in the third degree. In his petition, Jordan makes five claims: 1) the evidence before the grand jury that indicted him was fatally flawed and legally insufficient to support the charge; 2) neither of the two complaining witnesses testified before the grand jury that they were physically assaulted by Jordan; 3) the only evidence in the record before the trial court that Jordan had committed an assault was Jordan's own testimony; 4) the trial court erred when it sentenced him in absence of his court-appointed counsel; and 5) Jordan told his "substitute" counsel that he wanted him to file an appeal, but neither substitute counsel nor his appointed counsel filed a notice of appeal, thus forfeiting Jordan's right to appeal.
Magistrate Judge Fox, to whom the case was referred, rejected each of Jordan's claims in a Report and Recommendation ("Report") dated December 28, 2001, and recommended that Jordan's application for a writ of habeas corpus be denied.
Jordan has filed timely objections to the Report ("Objections"). See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72. A district court reviewing a magistrate judge's report may adopt those parts of the report to which no specific objection is raised, provided the findings are not clearly erroneous. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). In an affidavit attached to his Objections, Jordan states that he objects to the Report and Recommendation in its entirety. (Jordan Aff. 1/15/02) However, in his Objections he discusses only his claim that the evidence before the grand jury was legally insufficient, and his claim that the trial court erroneously sentenced him in the absence of his appointed counsel. (Objections) In an affidavit submitted with his Memorandum of Law in Reply to Attorney General's Opposition to Application for Writ of Habeas Corpus ("Reply Memorandum"), Jordan stated that he was withdrawing all claims except for these two claims. (Jordan Aff. 1/4/00)*fn1 However, this affidavit and Reply Memorandum were not in the court file and apparently were not in the possession of Magistrate Judge Fox when he wrote his Report. Jordan refers to the Reply Memorandum on page 2 of his Objections and this court received the documents from the Attorney General's office.
I will not consider Jordan's other claims withdrawn as these documents were not before Magistrate Judge Fox. However, viewing Jordan's Objections in light of the Reply Memorandum and affidavit, I conclude that he is continuing to argue only two points: that the evidence before the grand jury was legally insufficient and that the trial court erred in sentencing him in the absence of his appointed counsel. I will consider these claims de novo and review for clear error Magistrate Judge Fox's holdings regarding Jordan's other claims.
Familiarity with the Report is assumed for current purposes, and only so much of the factual background as is necessary to resolve Jordan's objections to the Report is set forth below.
Jordan was arrested in 1987 for robbery. He failed to return to court again until he was arrested in an unrelated matter in April 1989. By this time, a grand jury sitting in New York County had indicted him for the acts that led to his 1987 arrest. Jordan and his assigned counsel, Robert Kliegerman, negotiated an agreement whereby Jordan would plead guilty to robbery in the third degree in return for a sentence of one year's incarceration. Due to the length of time Jordan had already spent in jail waiting for the disposition of the case, the sentence would essentially amount to time already served. (Report at 2)
On July 12, 1989, Jordan entered his plea of guilty, and the trial court adjourned the matter for sentencing. On the date scheduled for sentencing, Kliegerman did not appear, and the sentencing was postponed. On August 22, 1989, Jordan returned for sentencing. Kliegerman was not present but his law partner, Allen Freiss, was there on his behalf and represented Jordan. The transcript of the proceeding shows that Jordan stated affirmatively to the court that he consented to this representation. The court imposed a sentence of one year and directed Freiss to advise Jordan of his right to appeal. The transcript indicates that the attorney conferred with Jordan and told him of his right to appeal. The transcript shows also that the clerk of the court gave Jordan written instructions for filing an appeal and that Jordan told the court orally that he had received these instructions. (Report at 2-3)
No appeal was taken from Jordan's conviction. Respondent has submitted an affidavit from Kliegerman, which states that he does not normally file notices of appeal in cases "where a defendant has taken a fully negotiated plea to what amounts to "time served.'" (Kliegerman Aff. ¶ 8) Kliegerman states: "At no time did petitioner herein ask me to file such a notice; had he done so I would have deviated from my normal course and followed his direction." (Id. ¶ 9)
Petitioner is now serving a sentence of 11 to 22 years imprisonment, imposed in January 1991 for an unrelated crime. The length of the sentence was based in part on Jordan's prior felony conviction — the third degree robbery conviction at issue here. (Report at 4)
In June 1991, Jordan moved to vacate his 1989 robbery conviction under New York Criminal Procedure Law ("CPL") § 440.10 on various grounds, none of which he raises in the present petition. The trial court denied his motion. The New York State Supreme Court, Appellate Division, First Department and the New York Court of Appeals denied his applications to appeal. (Report at 4-5)
In February 1997, Jordan made a second motion under § 440.10, this time raising the same claims that he raises here. However, instead of arguing that counsel failed to follow his instructions to appeal, Jordan argued in 1997 that he was not informed by counsel or the court of his right to appeal. The New York trial court denied the motion. The Court said that under New York law it must deny Jordan's application because the issues raised in the motion could be presented to an appellate court for review. However, the Court decided to address the merits of the claims. With respect to the claim regarding the evidence presented to the grand jury, the Court found that such an allegation must be made prior to the entry of judgment, and thus Jordan's application was untimely. Furthermore, the Court said that by pleading guilty Jordan had waived any and all non-jurisdictional claims that he might have asserted before entering his plea; in particular, he waived any claim arising from the failure of the two complaining witnesses to testify before the grand jury that they had been assaulted. Next, the Court found from the transcript of the sentencing proceeding that Jordan had consented to having substitute counsel ...