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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 ...

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