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United States District Court, Southern District of New York

April 1, 2003


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 present. Finally, the Court rejected Jordan's claim that he was not told of his right to appeal, finding that the transcript clearly showed that he was so advised by counsel and the clerk of the court. The First Department and the New York Court of Appeals denied Jordan's applications to appeal. (Report at 5-7)


A. Grand Jury Claims

I agree with Magistrate Judge Fox that Jordan's claim that flawed and legally insufficient evidence was presented to the grand jury cannot support habeas corpus relief here.

In Lopez v. Riley, 865 F.2d 30 (2d Cir. 1989), the Second Circuit held that the petitioner's claims regarding the sufficiency of the evidence before the state grand jury that indicted him, the use of misleading and prejudicial evidence in those grand jury proceedings, and the legal instructions given to that grand jury, could not be raised where a properly instructed petit jury heard all relevant evidence and convicted. Relying on the Supreme Court's holding in United States v. Mechanik, 475 U.S. 66 (1986), that conviction by a petit jury rendered harmless certain errors in a federal grand jury proceeding, the Second Circuit held that the alleged errors before the state grand jury were rendered harmless by the conviction. Lopez, 865 F.2d at 30-33.

The same logic applies here. Jordan admitted his guilt when he entered his guilty plea, and thus any errors in the grand jury proceedings were rendered harmless. See Lloyd v. Walker, 771 F. Supp. 570, 576-77 (E.D.N.Y. 1991) ("Having admitted to the factual basis of the charges against him upon entering a plea of guilty, any error in the proceeding which led to his indictment is, as Lopez v. Riley teaches, rendered harmless, and is not a cognizable claim in a federal habeas proceeding."); see also Alston v. Ricks, No. 01 Civ. 9862, 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003) ("[A] guilty plea extinguishes the ability of a habeas petitioner to raise a claim regarding misconduct before a grand jury."); Ballard v. Costello, No. 01 Civ. 1000, 2001 WL 1388297, at *2 (E.D.N.Y. Nov. 2, 2001) ("Ballard's guilty pleas cured any possible deficiencies in the grand jury proceedings."); United States v. Tiedemann, Nos. Crim 95-406-1, Civ. 97-3997, 1997 WL 587255, at *6 (E.D. Pa. Sept. 12, 1997) ("Even if there were governmental misconduct, the defendant cannot challenge the grand jury proceedings in a habeas action, after a plea of guilty.")

In his Objections, Jordan points to People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79 (1984), and argues that a federal court has the authority to review the evidence underlying an indictment even after a plea of guilty. (Objections at 3-4) In Pelchat, although the defendant had pleaded guilty, the New York Court of Appeals reversed the conviction and dismissed the indictment. In that case, the defendant showed that at the time he entered his plea the prosecutor knew but failed to disclose that the indictment rested solely on false evidence. The Court held that under these circumstances a defendant by pleading guilty has not waived his right to bring a challenge. Pelchat, 62 N.Y.2d at 108, 476 N.Y.S.2d at 85.

Jordan argues that the prosecutor in his case had no evidence to put before the grand jury that Jordan physically assaulted two store employees. (Objections at 4) Jordan asserts that the prosecutor knew in advance of Jordan's plea that he had no evidence to support the charge, but he failed to inform the trial court or the grand jury before Jordan pleaded guilty. Thus, according to Jordan, he is entitled to relief under Pelchat. (Objections at 4)

Jordan claims that he shoplifted two sweatshirts from a store, was followed by two store employees, and was then arrested. (Pet. at 5) According to Jordan, no physical assault actually took place. (Id.) Jordan says the only evidence of physical assault was his own testimony when he entered his plea. (Pet. at 5; Objections at 1) Jordan appears to conclude that the grand jury heard no evidence of physical assault based on the fact that his lawyer told him in April 1989 that the complaining witnesses could not be found. (Pet. at 5) However, the fact that the witnesses could not be located in 1989 does not mean they did not testify before the grand jury in 1987. Furthermore, as Magistrate Judge Fox points out, there is no requirement under New York law that a victim of third degree robbery suffer physical injury, or even that the defendant physically touch the victim. See N.Y. Penal Law §§ 160.00, .05; People v. Rychel, 284 A.D.2d 662, 728 N.Y.S.2d 211 (3d Dep't 2001) ("The applicable statutes [defining robbery in the third degree] do not require the use or display of a weapon nor actual injury or contact with a victim. All that is necessary is that there be a threatened use of force, which may be implicit from the defendant's conduct or gleaned from a view of the totality of the circumstances. (citations omitted))

Jordan has made no showing that the prosecutor in his case engaged in the type of bad-faith conduct held impermissible in Pelchat. Cf. United States v. Kalevas, 622 F. Supp. 1523, 1525 (S.D.N.Y. 1985) (Weinfeld, D.J.) ("Given the absence of any factual support for the allegations of misconduct, there is no reason to disregard the presumption of regularity of grand jury proceedings by either dismissing the indictment or inspecting the minutes in camera.") In any event, Pelchat rested on state, not federal grounds, and thus a violation would not be cognizable in a federal habeas corpus proceeding.

B. Absence of Appointed Counsel

I agree with Magistrate Judge Fox that Jordan consented to being represented at sentencing by Freiss. The transcript from the sentencing proceeding reads as follows:

MR. FREISS: Allen Freiss, substituting for my partner Ronald Kliegerman who was assigned on this matter. I have indicated to the defendant that [Kliegerman] is not available today. The defendant consents to my standing in for the sentence.
THE COURT: Is that correct, Mr. Jordan?


(Jones Aff., Ex. H) Jordan argues in his Objections: "[T]he stenographic record and affirmation of substitute counsel are abstracts of the actual sentencing proceedings, and should not be taken as the whole gospel. In that proceeding, Mr. [Freiss] (substitute counsel) did not ask petitioner any questions; he told petitioner what he was doing." (Objections at 6) Despite Jordan's objections, the record clearly shows that Jordan consented to Freiss's representation. The trial court did not err in allowing this representation.*fn2

To the extent that Jordan is arguing that Freiss's representation at the sentencing proceeding constituted ineffective assistance of counsel, he has failed to show either that the lawyer's performance at the proceeding was deficient or that any deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668 (1984). The purpose of the proceeding was to sentence Jordan after he had already entered a guilty plea. Jordan was sentenced to one year in jail, which was his expectation.

Jordan argues also that the trial court should have required Kliegerman to give "a compelling legal or personal reason for his absence for the three consecutive days he failed to appear at sentencing of petitioner." (Objections at 6) The trial court's failure to demand that Kliegerman account for his absence is not a ground for federal habeas relief. Jordan's statement that Kliegerman's performance "influenced the trial court in a prejudicial manner towards petitioner" (id. at 2) is unsupported by any evidence. The trial court sentenced Jordan to one year, which is what was agreed to when he entered his plea. To the extent that Jordan is arguing that Kliegerman's failure to appear amounted to ineffective assistance of counsel, Jordan has failed to show he suffered any prejudice as is required by Strickland v. Washington.

C. Ineffective Assistance of Counsel

In his petition, Jordan alleges that he told Freiss, who represented Jordan at the sentencing proceeding in place of his law partner Kliegerman, that he wanted him to file an appeal. (Pet. at 6(b)) Jordan apparently intended to withdraw this claim in his reply memorandum, and his Objections do not specifically raise this issue. Therefore, I will review only for clear error Magistrate Judge Fox's conclusion that this claim is not grounds for habeas relief.

The record before this court does not indicate that Jordan ever asserted in state court that he had told Freiss to file an appeal. Instead, in his 1997 motion under CPL § 440.10, Jordan alleged that he was never advised by counsel or the court of his right to appeal from his conviction. Jordan stated in this motion: "After sentence was imposed upon Mr. Jordan, Mr. [Freiss] said goodbye to Mr. Jordan and left the courtroom. Mr. [Freiss] nor the Court advised Mr. Jordan of his right to appeal. There was no appeal taken and no appeal perfected." (Jones Aff., Ex. E, at 17 (citation omitted))

Magistrate Judge Fox noted that this claim may not have been exhausted because a habeas corpus petitioner must first fairly present to the state courts "both the factual and the legal premises of the claim [asserted] in federal court." Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). However, Magistrate Judge Fox noted that, under 28 U.S.C. § 2254 (b)(2), "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State," and said that this discretion should be exercised here.*fn3

Magistrate Judge Fox concluded that Jordan's statement that he told Freiss to appeal is not credible in light of the record. (Report at 10-13) In 1997, Jordan's explanation for not filing an appeal was that he was not advised of his right to appeal by counsel or the court. However, the transcript of the sentencing proceeding shows he was so advised. It appears that when it became clear to Jordan that he could no longer claim he was not informed of his right to appeal, he instead claimed that he had told Freiss to appeal. Magistrate Judge Fox's conclusion that Jordan's statement was not credible and that he is not entitled to relief on this ground is not clearly erroneous.*fn4

D. Other Objections

Jordan claims also in his Objections that his lawyer, Kliegerman, acted "as a proxy for the prosecutor" by discouraging him from going to trial and by pressuring him to plead guilty. (Objections at 4-6) According to Jordan, Kliegerman told him that the complaining witnesses could not be located but said: "Even if you win the robbery trial, they will take you to trial on bail jumping, and I don't know anyone who has ever won a bail jumping trial." (Objections at 4) Jordan says also that his lawyer "repeatedly described for petitioner how the assault was carried-out, and thereby petitioner would know what to say at the plea proceedings." (Id. at 5)

Jordan did not raise this claim in his original petition. He cannot raise in his objection to the Report new claims not raised in his initial petition. See Chisolm v. Headley, 58 F. Supp.2d 281, 284 (S.D.N.Y. 1999). In any event, Jordan does not allege that counsel refused to bring the case to trial or lied or misled him about the evidence in the case. Even if Kliegerman said what Jordan claims he said, these statements do not show he provided ineffective assistance of counsel. Rather, the statements show only that his lawyer advised him regarding the disadvantages of going to trial and prepared him for his plea proceeding.

Respondent, responding to Jordan's Objections, states that Jordan is arguing that his guilty plea was not knowingly and voluntarily made because of his Post Traumatic Stress Disorder and his withdrawal from drug and alcohol addictions. (Resp't's Resp. at 2) I do not read Jordan's Objections as raising this claim. In any event, as Jordan did not raise this claim in his original petition or in state court, I will not consider it here.

For the reasons stated above, Magistrate Judge Fox's Report recommending denial of Jordan's petition for a writ of habeas corpus is adopted, and the petition is dismissed. Furthermore, a certificate of appealability will not issue because Jordan has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2) (2000).


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