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January 14, 2004.

MICHAEL ROWE, Petitioner, -against- DAVID MILLER, Respondent

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Petitioner pleaded guilty in New York Supreme Court, New York County, to murder and criminal possession of a weapon, both in the second degree. Prior to sentencing, he moved to withdraw the plea, claiming that he had been misinformed as to the amount of time he actually Page 2 would have to serve and his ability to renege his plea and that he was innocent. He then was sentenced principally to a term of imprisonment of twenty years to life. Petitioner now seeks a writ of habeas corpus on the grounds that his rights to the effective assistance of counsel and due process of law were violated in connection with the application to withdraw the plea.


  Petitioner pleaded guilty on November 28, 1994.*fn1 On January 5, 1995, he appeared for sentencing before the judge who had taken the plea.

  At the outset of the proceedings, his attorney stated that petitioner had advised him to tell the court that he had not been involved in the homicide, that he was innocent and that he therefore wished to withdraw his guilty plea.*fn2 The People opposed the application, arguing that the plea was knowing and willing and that the court had taken pains to ensure that the petitioner "understood exactly what he was doing."*fn3 Petitioner's counsel then stated that petitioner "did willingly and knowingly enter the plea" but argued that petitioner perhaps had been moved to enter the plea because it offered him a substantially lower sentence that he would have faced had he been convicted after trial. He urged the court not to "stick to the strict four corners of [the] knowingly and Page 3 willingly standard of voluntariness of a plea."*fn4 The court thereupon denied the motion.

  Immediately after the court ruled, the petitioner addressed the court and said that he had not realized what he had been doing at the time of the plea. He asserted that his attorney had told him that he already was serving a thirteen year sentence from a previous conviction and that he would "only . . . get another additional few years" if he pleaded guilty.*fn5 He claimed that he "was told that off of a twenty year sentence you would only do half of that sum or something like that which is not true."*fn6 So, he said, despite the fact that he "didn't do this crime," he decided to plead guilty, "just so [he] could get a couple more years . . . ."*fn7 Petitioner's attorney did not respond to petitioner's assertions concerning the advice he allegedly had given, and the court again denied the motion. Sentencing proceeded, during which petitioner asserted that he had been "lead [sic] to Page 4 believe I would be able to . . . renege on this plea of guilty."*fn8 The court imposed concurrent sentences of twenty years to life on the murder charge and three to nine years on the weapons count.

  Petitioner appealed to the Appellate Division, First Department, arguing that he was: (1) denied his rights to due process when the court, without making a thorough inquiry, denied his motion to withdraw his guilty plea based upon his alleged misapprehension of the effect of the sentence to be imposed and that the plea therefore was not entered knowingly and voluntarily, (2) denied his right to counsel in that defense counsel took a position adverse to the plea withdrawal motion and the sentencing court nonetheless failed to appoint new counsel to litigate that motion, and (3) sentenced to an excessively harsh prison term that should be reduced in the interest of justice.

  On April 4, 2000, the Appellate Division unanimously affirmed in a brief memorandum. It disposed of the claim that the denial of the motion to withdraw the plea had been erroneous, stating that:
"[a]fter sufficient inquiry, the [state] court properly denied defendant's request to withdraw his guilty plea. Defendant's claim of innocence was conclusory and his claim that he misunderstood the minimum period of incarceration involved in his sentence `is not entitled to judicial recognition' (People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 468 N.E.2d 692). In denying the application, the court properly relied on its recollection of the plea proceedings."*fn9
It rejected the right to counsel claim, asserting that "[t]here was no need to appoint new counsel where a fair reading of the record establishes that defendant's counsel did not take a position adverse Page 5 to the plea withdrawal application, which was in any event without merit."*fn10 Additionally, the court "perceive[d] no abuse of discretion in sentencing."*fn11 The New York Court of Appeals denied leave to appeal on August 7, 2000.

  Petitioner timely filed this petition on or about October 23, 2001. He contends that (1) his Sixth Amendment right to conflict-free counsel was violated when the sentencing court failed to appoint new counsel to represent him on that motion, (2) his right to due process of law was violated when the sentencing court denied his motion to withdraw his guilty plea based on an insufficient record because his plea was invalid and because the court erred in failing to hold an evidentiary hearing; and (3) his sentence was excessive.


 A. The AEDPA Review Standard

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")*fn12 provides that a federal court may grant a writ of habeas corpus to a state prisoner on a federal claim that was "adjudicated on the merits" in a state court proceeding only if it finds that the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly Page 6 established Federal law, as determined by the Supreme Court of the United States."*fn13

  The Appellate Division held that the sentencing court made "sufficient inquiry" into the defendant's motion and that "there was no need to appoint new counsel" because petitioner and his attorney's positions were not adverse.*fn14 Neither party contests that it decided petitioner's claim on the merits. Accordingly, its decision must be reviewed under the deferential standard afforded to state court judgments by AEDPA.*fn15

  Petitioner does not contend that the state court decision was "contrary to clearly established Federal law."*fn16 He therefore is entitled to relief only if the Appellate Division's decision involved an unreasonable application of clearly established federal law. In other words, he may prevail only "if the state court identifie[d] the correct governing legal principle from [the Supreme ...

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