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United States District Court, Southern District of New York

July 2, 2003


The opinion of the court was delivered by: James Francis, Magistrate Judge


Thomas Butti, a prison inmate, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends: (1) that he was denied his Sixth Amendment right to effective assistance of counsel; and (2) that his Sixth Amendment right to a speedy trial was violated when his sentencing was delayed. The respondent opposes the petition on the grounds that Mr. Butti's claims are unexhausted, procedurally barred, and lack merit. For the reasons discussed below, I recommend the petition be denied.


Mr. Butti was charged with multiple crimes relating to insurance fraud. On August 18, 1994, he pled guilty in Westchester County Court to grand larceny in the second degree, insurance fraud in the second degree, attempted grand larceny in the third degree, and offering a false instrument for filing in the first degree. (Minutes of Plea Proceedings dated Aug. 18, 1994, at 13-14, attached as Exh. 3 to the Appendix of the Petition for Writ of Habeas Corpus (the "Appendix")). This plea was based on an agreement entered into by Mr. Butti and the Westchester County District Attorney. (Memorandum of Understanding Between the District Attorney of Westchester County and Thomas A. Butti dated Aug. 17, 1994 ("Cooperation Agreement"), attached as Exh. 2 to the Appendix). Mr. Butti agreed to comply with a number of requirements that would assist the prosecution with its investigation into the insurance fraud scheme. (Cooperation Agreement at 1-2). He also agreed not to engage in, permit, or facilitate future illegal activity, and he agreed not to reveal anything regarding the agreement or the investigation to anyone. (Cooperation Agreement at 2). In exchange, the prosecution agreed that if Mr. Butti cooperated fully, the prosecutor would either refrain from taking a position with regard to Mr. Butti's sentence or would recommend a sentence of no more than three to nine years. (Cooperation Agreement at 4).

From 1994 until 1997, Mr. Butti cooperated with the investigation. However, the level of his cooperation is disputed. On February 12, 1997, the petitioner moved to withdraw his guilty plea on the basis that the Agreement had been violated by the prosecution. (Motion to Withdraw Plea of Guilty dated Feb. 12, 1997, attached as Exh. 5 to the Appendix). On July 15, 1997, the court denied Mr. Butti's motion and in addition found that he had himself breached the Agreement. (Decision and Order dated July 15, 1997 ("7/15/97 Order"), attached as Exh. 7 to the Appendix).

Prior to sentencing, Mr. Butti filed an application for a writ of prohibition in which he argued that the County Court had lost jurisdiction because of its delay in sentencing him. (Application for Writ of Prohibition dated Aug. 25, 1997 ("Writ App."), attached as Exh. 8 to the Appendix). This application was later denied by the Appellate Division, Second Department. (Decision, Order, & Judgment dated Oct. 6, 1997 attached as Exh. 14 to the Appendix).

Mr. Butti was sentenced on September 5, 1997. At sentencing, the prosecution contended that Mr. Butti had violated the Cooperation Agreement and recommended that he be sentenced to prison for a period of five to fifteen years. The prosecution also recommended that the court order restitution. (S. Tr. 32).*fn1 The court sentenced Mr. Butti to a combined sentence of three to nine years and ordered him to pay restitution in the amount of $285,000. (S. Tr. at 47-49).

On November 14, 1997, Mr. Butti filed an appeal to the Appellate Division, Second Department, claiming, among other things, that the trial court lost jurisdiction when sentencing was unreasonably delayed, that the court never provided him with a copy of the pre-sentence report, and that the Cooperation Agreement was illusory. (Defendant-Appellant's Brief to the Appellate Division dated Nov. 14, 1997, attached as Exh. 15 to the Appendix). Mr. Butti filed a supplemental pro se brief claiming that he was denied his constitutional rights to a speedy trial and to effective assistance of counsel, that the trial court abused its discretion by denying a hearing on the amount of restitution, and that the court imposed a harsh and excessive sentence. (Defendant-Appellant's Supplemental Brief dated Feb. 25, 1998, attached as Exh. 18 to the Appendix).

On April 16, 1998, the Appellate Division ordered that the amount of restitution be reduced from $285,920 to $184,492. People v. Butti, 250 A.D.2d 859, 859, 672 N.Y.S.2d 794, 794 (2d Dep't 1998). The court also held that the petitioner's claim that the trial court lacked jurisdiction was unpreserved for appellate review and the rest of his claims were either unpreserved for appellate review, without merit, or based on matters outside the record. Id. at 860, 672 N.Y.S.2d at 795. On September 28, 1998, the Court of Appeals denied leave to appeal. People v. Butti, 92 N.Y.2d 923, 680 N.Y.S.2d 464 (1998).

On March 5, 1999, Mr. Butti filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the Southern District of New York, and on December 17, 1999, I issued a Report and Recommendation finding that while Mr. Butti's ineffective assistance of counsel claim was unexhausted, his speedy trial claim was exhausted, and I recommended that the petition be denied without prejudice. (Report and Recommendation dated Dec. 17, 1999, at 11). On March 13, 2000, the Honorable Denise L. Cote adopted the Report and Recommendation and dismissed the petition without prejudice. Butti v. Superintendent Gowanda Correctional Facility, No. 99 Civ. 1667, 2000 WL 280039, *1 (S.D.N.Y March 14, 2000).

On May 26, 2000, Mr. Butti filed a motion to vacate his conviction in Westchester County Court pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Mr. Butti claimed that he was denied the right to effective assistance of counsel because (1) the Cooperation Agreement was non-binding since it was never made part of the record at the time of plea; (2) his guilty plea was involuntary and based upon coercion and misrepresentations made by the prosecution; and (3) trial counsel coerced Mr. Butti to abandon his defense of duress and extortion in which he sought to prove that his actions were involuntary pursuant to New York Penal Law § 15.10. Additionally, Mr. Butti argued that the sentencing judge's failure to personally address him during the plea allocution prevented the judge from determining whether Mr. Butti's pleas was knowing, intelligent, and voluntary. (Petitioner's CPL § 440.10 Motion dated May 26, 2000, attached as Exh. 29 to the Appendix).

The petitioner's § 440.10 motion was denied on September 13, 2001. The court dismissed his ineffective assistance claim because the issue of placing the terms of the Cooperation Agreement on the record had already been raised and rejected as part of the direct appeal and because the two coercion arguments lacked merit. (Decision and Order on CPL 440 Motion dated Sept. 13, 2001 ("440 Order"), at 5-6, attached as Exh. 33 to the Appendix). The court also rebuffed the argument regarding the trial court's failure to determine the voluntariness and terms of the guilty plea on the basis that CPL § 440.10 relief was not available because the petitioner had already raised that issue as part of his direct appeal. (440 Order at 7). Mr. Butti's application to appeal this decision to the Appellate Division, Second Department was subsequently denied. (Decision and Order on Application dated March 11, 2002, attached as Exh. 39 to the Appendix). Mr. Butti then filed the instant petition.


A. Exhaustion of Remedies

A petitioner in a habeas corpus proceeding must exhaust all available state remedies for each claim prior to federal review. 28 U.S.C. § 2254(b),(c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). Thus, before a state prisoner may receive federal habeas corpus review, he must allow the state courts a fair opportunity to consider his federal claims. 28 U.S.C. § 2254(b), (c). See also Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 (2d Cir. 1982).

A claim has been fairly presented to the state court when the court has been apprised of both the factual and legal premises of the claim upon which the petitioner now seeks federal relief. Picard, 404 U.S. at 276-77. It is not necessary that the petitioner cite "book and verse on the federal constitution" in order to have fairly presented the federal claim. Id. at 278 (internal quotation marks and citation omitted). Rather, the legal basis of the claim made in state court need only be the "substantial equivalent" of the federal habeas claim. Id. A substantially equivalent claim is one that is likely to alert the state court to the federal nature of the matter. Daye, 696 F.2d at 192.

Any claim that is not yet exhausted may be dismissed without prejudice so that the petitioner may return to the state court and exhaust that claim. See Pacheco v. Artuz, 193 F. Supp.2d 756, 761 (S.D.N.Y. 2002); Ojeda v. Artuz, No. 96 Civ. 5900, 1997 WL 283398, at *3 n. 5 (S.D.N.Y. May 29, 1997). Alternatively, pursuant to Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), "[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." 28 U.S.C. § 2254 (b)(2) (1996). Thus, if the federal court "finds `unexhausted' claims to be patently frivolous, the court may summarily reject those claims on the merits and pass on to the `exhausted' claims in the petition." Ojeda, 1997 WL 283398, at *3 n. 5; see also Pacheco, 193 F. Supp.2d at 761.

B. Procedural Default

The Court must also determine whether Mr. Butti has procedurally defaulted on his claims. Procedural default occurs when a petitioner's claims are barred by state procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). Procedural default constitutes an independent and adequate state ground for the court's decision, thereby generally barring federal habeas corpus review, "unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,' . . . or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)). When a claim has been procedurally defaulted, the petitioner no longer has "remedies available in the courts of the State" within the meaning of 28 U.S.C. § 2254(b). Hollis, 489 U.S. at 263 n. 9; Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Therefore, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Harris, 489 U.S. at 263 n. 9. As the Supreme Court stated:

[j]ust as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer "available" to him.
Coleman v. Thompson, 501 U.S. 722, 731-732 (1991) (citations omitted).

C. Speedy Trial

The respondent argues that the speedy trial claim is unexhausted because Mr. Butti merely attached his Appellate Division brief to his application for leave to appeal to the Court of Appeals. (Respondent's Memorandum of Law at 3). But this Court has already determined that the speedy trial claim is exhausted. (Report and Recommendation at 10-11). The petitioner has fairly presented this claim to the highest state court. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). Mr. Butti's attorney raised the speedy trial claim in the application for leave to the Court of Appeals. (Application for Leave to the Court of Appeals dated June 10, 1998 at 1-3, attached as Exh. 21 to the Appendix). He also attached to the application a copy of Mr. Butti's motion for a writ of prohibition. In that motion, Mr. Butti raised the speedy trial claim in federal constitutional terms. (Write App. at 3). As such, the state court was fairly apprised of the federal claim. Consequently, the speedy trial claim is fully exhausted. See Gonzalez v. Kuhlman, 911 F. Supp. 120, 124 n. 1 (S.D.N.Y. 1995). ("[E]ven if [the petitioner's application for leave to appeal] could have been more explicit, the attachment of the lower court briefs raising the constitutional issue, at least here, where the Court of Appeals could identify the issue without searching for a `needle in a paper haystack.'").

The Appellate Division denied the petitioner's speedy trial claim because . . . he "raised [it] for the first time on appeal and therefore [the claim is] unpreserved for appellate review." People v. Butti, 250 A.D.2d at 859, 672 N.Y.S.2d at 794. Specifically, the court noted that [s]ince the defendant failed to raise this issue before the sentencing court, the record is devoid of the facts necessary to review his claim, and we decline to remit the case to the County Court for a hearing." Id. at 859-60, 672 N.Y.S.2d at 794. The court, therefore, relied on independent state procedural grounds in denying the appeal. Coleman, 501 U.S. at 729; Harris, 489 U.S. at 263.

However, the Appellate Division relied on inadequate grounds when it said that "the defendant failed to raise this issue before the sentencing court." Butti, 250 A.D.2d at 859, 672 N.Y.S.2d at 794. Not only did Mr. Butti file his writ of prohibition, in which he raised the speedy trial claim challenging the court's jurisdiction, in advance of sentencing, but the record indicates that the delay in sentencing was discussed extensively at the petitioner's sentencing hearing. (S. Tr. 1-12, 35). "[A]n objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here." Lee v. Kemna, 534 U.S. 362, 378 (2002) (citation and internal quotation marks omitted). By filing the writ of prohibition and raising the objection at sentencing, the petitioner did bring the alleged federal error to the attention of the trial court. As such, the speedy trial claim is not procedurally barred from further review.

Nevertheless, the speedy trial claim may still not be reviewed on the merits. As part of the Cooperation Agreement, Mr. Butti agreed to waive "[h]is right to a speedy trial under the United States and New York State constitutions and statutes." (Agreement at 2, section I, ¶ 4(a)). The petitioner further agreed that "all waivers and concessions by Butti and all actions and conditions to which Butti has agreed, specifically section I, paragraph (4) (a-f), supra, in this Memorandum of Understanding survive both any determination that a provision has been violated and any declaration that the Memorandum of Understanding is null and void. . . ." (Agreement at 5, section III, ¶ (2)(d)). Consequently, the petitioner is foreclosed from bringing the speedy trial claim.

D. Ineffective Assistance of Counsel

In his petition, Mr. Butti raises three separate ineffective assistance of counsel claims. I will address each one in turn.

1. The Cooperation Agreement

In his CPL § 440.10 motion, Mr. Butti claimed that counsel failed to make the Cooperation Agreement part of the record during the plea allocution, whereas in his habeas petition he claims that counsel withheld the Cooperation Agreement. The respondent contends, therefore, that the instant claim is one of affirmative misfeasance while the CPL § 440.10 claim was one of mere nonfeasance, meaning that the petitioner did not present the same claim to the state court. This difference in language, however, does not change the nature of the petitioner's claim. The issue of the Cooperation Agreement being part of the record was fairly presented in the CPL § 440.10 motion and is substantively similar to the current claim; consequently, the state courts were provided with an adequate opportunity to review the claim. See Vasquez v. Hillery, 474 U.S. 254, 258 (1986); Picard, 404 U.S. at 276-78. The petitioner's claim regarding the failure to place the Cooperation Agreement on the record is therefore exhausted.

When this claim was considered on direct appeal it was dismissed, along with the entire ineffective assistance claim, in a one line summary. The Appellate Division held that "[t]he defendant's remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for appellate review, without merit, or based on matters outside the record." People v. Butti, 250 A.D.2d at 860, 672 N.Y.S.2d at 795. When state courts summarily deny claims, the federal court can look to what the prosecution argued as an indication of how the state court ruled on each claim. See Ortega-Rodriguez v. United States, 507 U.S. 234, 235 n. 1 (1993) (court discerns basis for one line dismissal of appeal by analyzing arguments presented in government's motion to dismiss). The respondent in this case argued that this particular aspect of Mr. Butti's ineffective assistance claim lacked merit. Therefore, it can be inferred that the Appellate Division determined that this argument was without merit. Accordingly, this claim may now be decided on the merits.

The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct "so undermined the functioning of the adversarial process that the trial cannot be relied on as a having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). A convicted defendant's claim that counsel's assistance was so defective as to require reversal has two components: (1) the petitioner must show that the attorney's performance was deficient, in that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment, and (2) the petitioner must show that the attorney's deficient performance prejudiced the defense, in that counsel's errors deprived the defendant of a fair trial. Strickland, 466 U.S. at 687. The petitioner's burden is heavy, since "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The petitioner must overcome the presumption that the challenged action constitutes sound trial strategy. Id.

Regardless of the appropriateness of making the Cooperation Agreement part of the record at the time of the guilty plea, Mr. Butti has not shown that he was prejudiced in any way. Mr. Butti was well aware of the terms of the Cooperation Agreement, regardless of the fact that it was not placed on the record. His awareness of those terms is evidenced by his statement that "after a number of days, [I] realized that this agreement made sense." (Affidavit in Support of Motion to Withdraw Guilty Plea dated Feb. 12, 1997 ("Pet. Aff."), at 2, attached as Exh. 5 to the Appendix). The petitioner does not now allege that any term of the agreement were violated by the prosecution. In fact, in denying Mr. Butti's motion to withdraw his guilty plea, the court rejected the notion that the prosecution ever violated the agreement. (7/15/97 Order at 5).

2. Voluntariness of the Guilty Plea

In the instant petition, Mr. Butti raises his attorney's failure to ensure that the trial court ascertained the voluntariness of the plea as a basis for his broader ineffective assistance of counsel argument. In his CPL § 440.10 motion, he presented this issue as an independent argument, not as an element of an ineffective assistance claim. He did the same on direct appeal. As a result, this claim is unexhausted. Where an argument in state court appears in a section of the brief devoted to a different claim by the petitioner and is offered principally as a basis for maintaining that claim, the claim is presented only indirectly. Parron v. Quick, 869 F.2d 87, 89 (2d Cir. 1989). And, if there is no reason to assume that a state appellate court considered the indirectly presented claim, it has not been exhausted. Id. That is the case with respect to the portion of Mr. Butti's effective assistance claim predicated on the voluntariness of his plea.

Although this claim is unexhausted, it is also procedurally barred from further review. When a federal claim is not raised in state court, but it is clear that the petitioner would be precluded by state procedural rules from subsequently raising the claim, a federal habeas court may deem the federal claim procedurally forfeited. Harris, 489 U.S. at 263, n. 9; see also Castille v. Peoples, 489 U.S. 346, 351 (1989); Teague v. Lane, 489 U.S. 288, 297-98 (1989).

Having failed to raise this claim on direct appeal, the petitioner would now be procedurally barred from doing so. CPL § 460.10. Furthermore, CPL § 440.10(2)(c) generally bars collateral review of claims of error contained in the record. See Rowe v. State of New York, No. 99 Civ. 12281, 2001 WL 1606744, at *4 (S.D.N.Y. Dec. 12, 2001) ("[c]laims of ineffective assistance of counsel based on errors contained in the record are barred from collateral relief pursuant to New York Criminal Procedure Law § 440.10(2)(c), and are procedurally defaulted if not raised on direct appeal"). Because this claim alleges errors that appeared on the record at the time of the plea, the claim is procedurally defaulted absent any showing of cause and prejudice or a miscarriage of justice.

Mr. Butti does not present a cause and prejudice argument, but he does argue that not hearing this claim would constitute a miscarriage of justice. The petitioner cites Coleman, 501 U.S. at 750, Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991), Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), and Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), but he does not explain why the miscarriage of justice exception applies. The threshold that must be met to invoke the exception is a high one, generally requiring an assertion of actual innocense. See Murray, 477 U.S. at 496 ("where a constitutional violation has probably resulted in the conviction of one who is actually innocent a federal habeas court may grant the writ"). The petitioner cannot meet that threshold here since in the plea allocution he admitted his criminal conduct. Consequently, this claim is barred.

3. Coercion and Misrepresentation

Mr. Butti's two remaining claims for ineffective assistance of counsel are that (1) the guilty plea was involuntary because it was the product of coercion and misrepresentation, and (2) trial counsel coerced the petitioner to abandon his defense of duress and extortion. These claims may be decided on the merits because they were presented in the petitioner's CPL § 440.10 motion, rejected by the County Court on the merits, and were the basis of the petitioner's application for leave to appeal to the Appellate Division. The standard for judging any claim of ineffectiveness of counsel is detailed above.

Both of these claims are without merit. Mr. Butti's own statements undermine any assertions of coercion by counsel. At his plea allocution, Mr. Butti stated that he was "satisfied with the representation" given to him by his attorney, that he understood that he was waiving his right to trial and all the rights associated with it, that nobody had "threatened, coerced, or forced" him in any way to plead guilty, that he was entering his plea of guilty "freely and voluntarily," that nobody had made any promises or representations to him apart from the plea agreement in order to get him to plead guilty, and that he understood that his statements at the allocution could be used against him in other judicial proceedings. (Minutes of Plea Proceedings dated at 8-13). Furthermore, Mr. Butti stated in his Affidavit in Support of Motion to Withdraw Guilty Plea that "[d]uring the course of that trial, then Assistant District Attorney, Lawrence Keane, approached my attorney with a view towards entering into the above mentioned agreement. I was reluctant to do so, however, after a number of days, realized that this agreement made sense." Mr. Butti also stated that in accepting the plea, he took into account the expense and length of trial, concerns for his family, and financial obligations towards a child from a previous marriage. (Pet. Aff. at 2). Contrary to his conclusory claims of coercion and misrepresentation, Mr. Butti made clear during the allocution that he was well aware of the benefits, consequences, and terms of the cooperation agreement and guilty plea. See United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bold statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea."); Agyekum v. United States, No. 01 Civ. 5808, 2002 WL 1000950, at *5 (S.D.N.Y. May 16, 2002); Singh v. Kuhlman, No. 94 Civ. 2213, 1996 WL 337283, at *2 (S.D.N.Y. June 19, 1996).

The petitioner has not demonstrated any error by trial counsel. Advising a client to plead guilty does not constitute coercion. See United States v. Moree, 220 F.3d 65, 72 (2d Cir. 2000) ("That the attorney advised [the defendant] to take the [plea] offer and warned him that his failure to do so would lead to a thirty year sentence merely asserts that the lawyer gave professional advice as to what the consequences of his choice might be. The defendant's statement that he was `scared' is understandable, but is not attributed to any misconduct of his attorney."); Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988) ("As a general matter, a plea is deemed . . . `voluntary' if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally."). Accordingly, counsel was not ineffective. In fact, the attorney secured for Mr. Butti exactly what he sought — an opportunity to cooperate with the district attorney's office in exchange for a reduced sentence.


For the reasons set forth above, I recommend that Mr. Butti's request for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Denise L. Cote, Room 1040, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

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