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MARTINEZ v. COSTELLO

January 5, 2004.

ALBERTO MARTINEZ, Petitioner, -v.- JOSEPH J. COSTELLO, Superintendent, Mid-State Correctional Facility, and ELIOT SPITZER, Attorney General of the State of New York, Respondents


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

OPINION AND ORDER

Following a plea of guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree in New York County Supreme Court, Alberto Martinez was sentenced as a second felony offender to a prison term of six years to life. He now brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of jurisdiction over this petition by a United States Magistrate Judge under 28 U.S.C. § 636(c). For the reasons below, the petition is denied.

I. BACKGROUND

  In March 1998, Martinez was indicted for Criminal Possession of a Controlled Substance in the First Degree and related charges in connection with a drug sale turned shoot-out which occurred in Martinez's apartment. See Martinez's Appellate Brief, dated May 2001 ("App. Brief") (annexed to Petition for Writ of Habeas Corpus, filed April 22, 2003 (Docket #2) ("Petition")), at 3; Plea: Tr. 3, 7-9. During this incident, Martinez was shot in the face and three Page 2 other participants also sustained gunshot wounds. App. Brief at 3; Respondents' Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, filed September 3, 2003 (Docket #ll)("Resp. Opp."), at 2.

  On August 19, 1999, Martinez appeared with counsel before the Honorable Ronald A. Zweibel of the New York County Supreme Court for a pre-trial hearing. See generally Transcript of Plea Hearing Conducted August 19, 1999 (Docket #10). Martinez was represented by Alfredo Hernandez, a court-appointed lawyer. Petition at 1. Apparently, plea discussions had been ongoing over the entire one-and-a-half-year period since the case was first indicted. (Plea: Tr. 3). Defense counsel stated to the court that he had "had extensive conversations with Mr. Martinez" and that he had explained to Martinez that various people had made statements against him; Felix Pabon, a participant in the crime, would likely testify against him; cocaine had been recovered from outside Martinez's apartment; and his fingerprints had been lifted from one of the bricks of cocaine. (Plea: Tr. 3). If convicted as charged, Martinez faced a minimum sentence of fifteen years to life, (Plea: Tr. 2), and a maximum of twenty-five years to life, (Plea: Tr. 5). Nonetheless, defense counsel reported that Martinez had been "completely recalcitrant" in participating in the plea discussions. (Plea: Tr. 3).

  As of August 19, 1999, all other individuals involved in the incident had pled guilty. (Plea: Tr. 4). The Assistant District Attorney stated on the record that she was offering Martinez a sentence of six years to life in return for a plea of guilty to Criminal Possession of a Controlled Substance in the Second Degree in full satisfaction of the indictment. (Plea: Tr. 3-4, 7). She made it clear that this was the best offer she was allowed to make and that the offer would be revoked as soon as the pre-trial hearing began. (Plea: Tr. 9). She explained her offer based on Page 3 the facts that "this defendant arranged a drug deal for three kilos of cocaine, in a residential area. . . . As a result . . . four people were shot. . . . He has three prior felony convictions." (Plea: Tr. 7-8).

  After consulting with Martinez, defense counsel reported to the court that Martinez was rejecting the offer and was prepared to proceed with the hearing. (Plea: Tr. 9). The first witness was called to the stand but before he could be sworn in, defense counsel asked the court to "hold on just a second" so he could consult with Martinez. (Plea: Tr. 10). Thereafter, Martinez's counsel stated that Martinez was withdrawing his plea of not guilty and entering a plea of guilty. (Plea: Tr. 10-11).

  During the subsequent allocation, Martinez acknowledged that he had discussed his case and plea with his attorney, that he understood he was waiving certain constitutional rights, and that he was pleading guilty of his own free will. (Plea: Tr. 11-12). The court asked him: "Are you pleading guilty because you are, in fact, guilty of this crime?" Martinez replied "Yes, sir." (Plea: Tr. 12).

  The court asked Martinez if he understood that a plea had the same effect as if he had been convicted after a trial, to which Martinez responded that he did. (Plea: Tr. 12-13). Martinez also stated that he understood the charge he was pleading to and that no one had forced him to enter into the plea. (Plea: Tr. 13). The court then repeated the nature of the charge — Criminal Possession of a Controlled Substance in the Second Degree — and the following colloquy ensued:

  THE COURT: It is alleged that the defendant[], Alberto Martinez[,] . . . in the County of New York, on or about March 15th, 1998, knowingly and unlawfully possessed one or more preparations, compounds, mixtures and substances Page 4 containing a narcotic drug; to wit, cocaine, and said preparations, compounds, mixtures and substances are of an aggregate weight of two ounces or more. Do you plead guilty to that charge?

  THE DEFENDANT: Yes, sir.

 (Plea: Tr. 13-14). The clerk officially recorded the plea and the case was scheduled for sentencing on September 1, 1999. (Plea: Tr. 14-15).

  A few days later, Martinez filed a pro se motion to withdraw his plea that annexed an affidavit. See Notice of Motion, dated August 24, 1999, and Affidavit of Alberto Martinez, dated August 25, 1999 ("Martinez Aff") (both annexed as Ex. A to Resp. Opp.). Both the Notice of Motion and affidavit were "fill-in-the-blank" forms inasmuch as lines appear where case-specific information, such as the defendant's name, docket number, and dates, needs to be filled in. Martinez filled in some of these lines but left blank a large space provided for him to fill in the specific facts supporting his motion. Martinez Aff. ¶ 5.

  The affidavit form states that the affiant is "not fully aware of the circumstances involved when he made such guilty plea," that he "plead [sic] guilty for reasons which are outside the record," that "he was unaware of the fact[] that he has a good meritorious defense to the prosecution," and that "he is not guilty of the offense." Martinez Aff. ¶¶ 4-7. The affidavit also contained a statement that "defendant . . . was fully aware of the consequences of his plea of guilty." Id. ¶ 6. Martinez's counsel later explained that this was a ...


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