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ROBINSON v. PERLMAN

September 4, 2003

FRANK ROBINSON, PETITIONER,
v.
KENNETH S. PERLMAN, SUPERINTENDENT, MOHAWK CORRECTIONAL FACILITY, RESPONDENT



The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge

REPORT AND RECOMMENDATION
Frank Robinson, currently incarcerated at the Marcy Correctional Facility, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Robinson was convicted following a jury trial in New York State Supreme Court, Bronx County, of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)) and Unlawful Wearing of a Body Vest (N.Y. Penal Law § 270.20(1)). He was sentenced in 1997 as a persistent violent felony offender to two concurrent terms: 8 years to life on the weapon possession charge and 1-1/2 to 3 years on the body vest charge.

Robinson raises two grounds in support of his petition. First, he argues that his adjudication as a persistent violent felony offender in 1997 was unconstitutional because the plea agreement which formed the basis for one of his earlier convictions was invalid and thus could not serve as the predicate for his subsequent sentence. Second, he argues that his earlier sentences as well as the 1997 sentence were the result of ineffective assistance of counsel. For the reasons stated below, the petition should be denied. Page 2

I. BACKGROUND

A. Robinson's 1988 and 1989 Convictions

1. The 1988 Conviction

On December 4, 1986, Robinson was charged in a felony complaint with Criminal Possession of a Controlled Substance in the Second and Third Degree. See Felony Complaint, dated December 4, 1986 (reproduced in Affidavit in Opposition, dated March 27, 2003 ("Resp. Aff."), Ex. 1). Robinson was subsequently indicted for Criminal Possession of a Controlled Substance in the First Degree. See Indictment Number 6337/86 ("Ind. #6337"), dated December 22, 1986 (reproduced in Resp. Aff. Ex. 2). Robinson was later charged in an unrelated case with Criminal Possession of a Weapon in the Third Degree. See Indictment Number 3765/87 ("Ind. #3765"), dated June 23, 1987 (reproduced in Resp. Aff. Ex. 3).

Pursuant to a plea and sentence agreement, Robinson waived his right to prosecution by indictment and consented to prosecution by a Superior Court Information ("SCI") that charged him with Criminal Possession of a Controlled Substance in the Fourth Degree. See Superior Court Information Number 1431-88 ("SCI #1431"), dated March 4, 1988 (reproduced in Resp. Aff. Ex. 4). He thereafter pled guilty to the charge contained in SCI #1431 — following which Ind. #6337 was dismissed — and to Attempted Criminal Possession of a Weapon in the Third Degree, the crime charged under Ind. #3765. See generally Plea Minutes, dated March 4, 1988 ("3/4/88 Plea Minutes") (reproduced in Appendix Accompanying Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus, undated, Ex. F), at 3-12; see also Sentencing Minutes, dated April 26, 1988 (reproduced in Resp. Aff. Ex. 5), at 2-8. Robinson was sentenced to five years probation. Id. He did not appeal this conviction. See, e.g., Traverse, undated ("Traverse"), ¶ 4. Page 3

2. The 1989 Conviction

In 1989, Robinson was convicted after a jury trial of Criminal Possession of a Weapon in the Third Degree and sentenced — as a second violent felony offender — to a term of imprisonment of from three to six years. See Sentencing Minutes, dated November 14, 1989 ("11/14/89 Sentencing Minutes") (reproduced in Resp. Aff. Ex. 6), at 8-16. At the hearing during which he was adjudicated a second violent felony offender, Robinson stated through counsel that he had read the predicate felony statement and that "all the facts contained in that statement [were] correct and there [was] no constitutional infirmity in [the 1988] plea." Id. at 8-9.

Robinson filed an unsuccessful appeal to the Appellate Division, People v. Frank Robinson a/k/a Frankie James, 183 A.D.2d 420 (1st Dep't 1992), and was later denied leave to appeal to the New York Court of Appeals. People v. Frankie James, 80 N.Y.2d 832 (1992); People v. Frank Robinson, 80 N.Y.2d 837 (1992). On his appeal he apparently did not raise any argument attacking his 1988 guilty plea or his being adjudicated a second violent felony offender in 1989. See, e.g., Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed November 21, 2002 ("Petition"), at 6; see also Sentencing Minutes, dated May 28, 1997 ("5/28/97 Sentencing Minutes"), at 21-22.

B. The 1997 Conviction and the Section 440.20 Motion

In 1997, Robinson was convicted after a jury trial of Criminal Possession of a Weapon in the Third Degree and the Unlawful Wearing of a Body Vest. See 5/28/97 Sentencing Minutes, at 31-32. The trial court sentenced him as a "persistent violent felony offender" based on his convictions for attempted third-degree criminal possession of a weapon (the 1988 conviction) Page 4 and third-degree criminal possession of a weapon (the 1989 conviction). Id. at 25-26, 31-32, 46-49.

At the sentencing hearing on May 28, 1997 during which he was adjudicated a persistent violent felony offender, Robinson argued — both himself and through counsel — that although he had previously waived constitutional challenges to the 1988 conviction during his 1989 sentencing hearing, he had not been "properly allocuted" as a predicate felon in 1989 and thus the waiver was not "knowingly and intelligently" made. Id. at 11-14, 27-30. Robinson further argued that he was not made aware at the time of his guilty plea in 1988 that he was pleading to a felony on the gun charge; rather, he thought he was pleading guilty to a "misdemeanor for criminal possession of a weapon in the fourth degree." Id. at 28. The sentencing judge rejected these arguments, stating that

defendant was properly allocuted as a second felony offender on November 14, 1989. I note that case law is clear that no formal [catechism] is mandated; here the record of those proceedings reflects more than the mere concession by the defendant of the existence of a prior felony conviction. Not only was no objection made at the time he was adjudicated a predicate felon, but his counsel specifically represented in the presence of the defendant that counsel had discussed the matter with the defendant and that no constitutional infirmity is alleged satisfies me that substantial compliance of CPL 400.21 was effectuated on November 14, 1989 permitting the defendant to be properly sentenced on that date as a predicate felon. . . . I note also that defendant has failed to seek review of that adjudication by direct appeal or appropriate post judgment motion previously. . . .
I would also note that the plea minutes for the underlying 1988 conviction are before me and I had reviewed them and in my view they reflect a thorough allocution of the defendant regarding a plea on his part to less than the top count for the indictment charging him with criminal possession of a weapon in the third degree . . . And, I am satisfied that he had no misconception about what he was pleading to or the sentence that he was to receive on the conditions upon which that sentence was premised.
Id. at 20-23 (citations omitted); accord id. at 30-31. Page 5

Thereafter, Robinson moved pro se pursuant to New York Criminal Procedure Law ("CPL") § 440.20 to set aside his sentence, claiming that "the sentence imposed, might, as a matter of law, be invalid" and that "the persistent sentence imposed was base, in part, upon a prior felony, which was obtained from a invalid plea bargain, which sentencing therefrom was in violation of plea bargaining restrictions." Notice of Motion to Set Aside Sentence, dated January 11, 1999 ("440 Motion") (reproduced in Resp. Aff. Ex. 8), at 1-2 (errors in original); accord Statement of Law, undated ("440 Law Mem.") (annexed to 440 Motion), at 10-22. Specifically, he argued that his 1988 conviction under SCI #1431 was invalid because he was improperly permitted to waive his right to indictment and plead guilty to SCI #1431 in violation of CPL § 195.10; and because his plea under SCI #1431 was invalid, his plea to Ind. #3765 — which was an integral part of the plea agreement — was likewise invalid. See generally 440 Law Mem. at 10-22. Robinson's position was supported at least in part by some case law in existence in 1988 and by a decision from the New York Court of Appeals rendered after his plea. See People v. Boston, 75 N.Y.2d 585 (1990). In Boston, the Court of Appeals held that the waiver of an indictment and plea to a SCI must occur prior to and not after the filing of an indictment. Id. at 586-89. In his section 440 motion, Robinson also argued that he was denied effective assistance of the trial counsel who represented him during the proceedings in 1988, 1989 and 1997. See 440 Law Mem. at 23-27. The State opposed this motion. See Affirmation in Opposition, dated April 1999 (reproduced in Resp. Aff. Ex. 12).

On August 9, 1999, the trial court denied Robinson's motion to set aside his sentence. See Decision, dated August 9, 1999 ("440 Decision") (reproduced in Resp. Aff. Ex. 18). The court first noted that Robinson may have had "an arguable constitutional challenge [to the 1988 Page 6 plea] at the time of his predicate violent felony adjudication in 1989." Id. at 10. However, citing CPL §§ 400.15(8) and 400.16(2), the court held that "by failing to controvert his predicate felony statement at the time of sentencing in 1989, [Robinson] waived any future challenge to the constitutionality of his 1988 conviction" and was thus estopped from challenging the conviction. Id. at 10-11. The court further held that while Robinson "attempt[ed] to avoid this statutory bar" by alleging ineffective assistance of counsel, the allegations were not "substantiated" and failed to rise to the level of ineffective assistance. Id. at 11-15. Accordingly, Robinson's motion to vacate the sentence based on his adjudication as a persistent violent felony offender was denied.

Robinson moved for leave to appeal the denial of his motion to vacate, see Notice of Motion, dated August 16, 1999 (reproduced in Resp. Aff. Ex. 19), which the State opposed by letter brief. See Letter to Clerk of the Court from Shelly A.R. Chichester, dated August 24, 1999 (reproduced in Resp. Aff. Ex. 20). On September 9, 1999, the Appellate Division denied Robinson's motion for leave to appeal. See Certificate Denying Leave, dated September 9, 1999 (reproduced in Resp. Aff. Ex. 22).

C. The Direct Appeal

In April 1999 — while his section 440 motion was pending — Robinson's counsel submitted a brief on his direct appeal, raising two claims: 1) that the stop leading to Robinson's arrest constituted an unreasonable search and seizure; and 2) that the trial court erroneously denied Robinson's motion for a mistrial because the prosecutor made certain impermissible propensity arguments. See Brief for Defendant-Appellant, dated April 1999 (reproduced in Resp. Aff. Ex. 10), at 14-25. After being granted leave to file a pro se supplemental brief in support of the direct appeal, see Order, dated May 18, 1999 (reproduced in Resp. Aff. Ex. 12), Page 7 Robinson submitted a pro se brief in which he raised two additional issues unrelated to the instant petition. See Supplemental Brief for Defendant-Appellant, dated August 12, 1999 (reproduced in Resp. Aff. Ex. 21), at 11-22.

On July 6, 2000, the Appellate Division upheld the conviction. See People v. Robinson, 271 A.D.2d 17 (1st Dep't 2000). The New York Court of Appeals granted leave to appeal, People v. Robinson, 95 N.Y.2d 968 (2000), and affirmed the conviction on December 18, 2001. People v. Robinson, 97 N.Y.2d 341 (2001).

Robinson does not seek federal habeas relief based on any of the issues raised on his direct appeal.

D. The Instant Habeas Corpus Petition

Robinson filed the instant petition on November 21, 2002, arguing — as he did in his section 440.20 motion — that his 1997 adjudication as a persistent violent felony offender was improper because of a defect in the 1988 plea agreement: namely, that "no defendant may waive his constitutional right to indictment once an indictment has been filed" and thus the "waiver of indictment by a Grand Jury was unconstitutional." See Petition at 9-10. He also argues that "the promise [sic] sentence to two concurrent terms of five years probation violated [CPL § 220.30], which prevents a plea of guilt for two separate indictments under a plea bargain when one of the indictments is charging a class A-felony" and that SCI #1431 was "misleading" and "based upon false statement . . . because the waiver of indictment executed by the petitioner failed to comply with provisions outlined under [CPL §§ 195.10, 195.20]." Id. at 10. Lastly, he argues that he was denied effective assistance of counsel during the 1988 proceedings (when the ...


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