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United States District Court, S.D. New York

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 Court's] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case."*fn17

  In making an `unreasonable application' inquiry, a federal court must ask if the state Page 7 court's application of federal law was "objectively unreasonable."*fn18 "[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law . . . [A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."*fn19 "[S]ome increment of incorrectness beyond error is required."*fn20 Nevertheless, this increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence."*fn21

 B. Ineffective Assistance and the Sentencing Court's Failure to Appoint New Counsel

  Following the People's response to petitioner's motion to withdraw his guilty plea, his attorney responded that the plea had been knowing and voluntary, which was an admission that the state law standard for acceptance of a guilty plea had been satisfied.*fn22 After the judge's initial ruling, petitioner himself addressed the court and asserted in substance that his attorney had given him incorrect advice about the number of years additional to his preexisting sentence that he would have to serve under the terms of the plea bargain and that he had relied on that advice in entering a Page 8 guilty plea in spite of his innocence of the crime charged. His attorney then stood mute, and the court rejected the motion to withdraw the plea without further inquiry. Prior to the imposition of sentence, petitioner asserted that he had been led to believe that he would be able to "renege" on his guilty plea, but again his attorney stood silent.

  Petitioner contends that a conflict of interest arose when petitioner told the court that he had been misinformed, evidently by counsel,*fn23 that he would "do only half . . . or something like that" of the twenty year sentence called for by the plea bargain.*fn24 The crux of his position is that his attorney at that point had a personal incentive to secure the acceptance of the plea in order to avoid scrutiny of the advice he had given, an interest that was diametrically opposed to petitioner's desire to persuade the court that he had not been informed accurately of the consequences of the plea and that the plea therefore had not been knowing. Petitioner asserts that the court's failure to appoint new counsel at that point deprived him of his Sixth Amendment right to the effective assistance of counsel.

  In order to prevail, a defendant with an ineffective assistance of counsel claim must satisfy the two-part test laid out in Strickland v. Washington:*fn25 (1) the attorney's performance must have been below an "objective standard of reasonableness," and (2) the defendant must have suffered prejudice in the sense that but for the attorney's errors the proceeding's results would have been Page 9 different. In Hill v. Lockhart,*fn26 the Supreme Court extended Strickland to ineffective assistance claims arising out of the plea process. Regarding the right to counsel in the plea negotiation process, the Second Circuit has stressed that "the decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case . . . [and] counsel may and must give the client the benefit of counsel's professional advice on this crucial decision."*fn27 Further, the withdrawal of a guilty plea before sentencing is a critical stage of a prosecution in which defendants have a Sixth Amendment right to effective assistance of counsel.*fn28 The Second Circuit has stated also: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."*fn29 Thus, for AEDPA purposes, "the Strickland standard . . . is the relevant `clearly established Federal law, as determined by the Supreme Court."*fn30

  A defendant's Sixth Amendment right includes representation that is free from Page 10 conflict of interest.*fn31 To demonstrate a violation of this right, it must be shown that the attorney in question had either (1) an actual conflict that adversely affected the attorney's performance, or (2) a potential conflict of interest that resulted in prejudice to the defendant.*fn32 An actual conflict exists when, "during the course of the representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action."*fn33 If a defendant demonstrates that his attorney labored under an actual conflict and that the conflict "adversely affected his lawyer's performance," then defendant is entitled to a presumption of prejudice.*fn34 When, however, the alleged conflict is only potential, a defendant must show that he was prejudiced by the conflict.*fn35 The Supreme Court has held also that the mere possibility of a conflict of interest is insufficient to impugn a criminal conviction.*fn36 Page 11

 1. Actual Conflict of Interest

  According to the state court, "a fair reading of the record establishes that defendant's counsel did not take a position adverse to the plea withdrawal application, which was in any event without merit."*fn37 Thus, it rejected the claim of a conflict of interest and concluded that the application to withdraw the plea in any event was baseless.

  Petitioner points to no Supreme Court decision that even suggests that his assertions at the sentencing hearing created an actual conflict of interest for his attorney. He cites instead Lopez v. Scully*fn38 in support of the allegation that his counsel had an incentive to claim the plea was knowing in order to protect himself from inquiry into whether he misinformed petitioner about the consequences of his plea. But Lopez is of no assistance to him for two reasons.

  First, the deferential AEDPA standard is met only where a state court unreasonably applies Supreme Court decisions. An unreasonable application of a Court of Appeals decision is insufficient.*fn39

  Second, Lopez does not support petitioner's position. The petitioner in that case, Page 12 unlike this one, accused his attorney of having procured his plea through "threats and coercion."*fn40 While that petitioner prevailed, the Court of Appeals has made plain that the coercion claim was crucial to the outcome.*fn41 At no point did this petitioner accuse his attorney of coercing him to plead guilty.*fn42

  But all of this is beside the point. Even if there were an actual conflict, the Appellate Division did not unreasonably apply federal law in concluding that the withdrawal application lacked merit in any case.

  In People v. Ramos,*fn43 the New York Court of Appeals held that alleged misadvice by defense counsel that is "not placed on the record at the time of [a guilty] plea . . . is not entitled to judicial recognition" and therefore is not a legally sufficient ground for an application to withdraw the plea.*fn44 In view of Ramos, the application to withdraw the plea on the ground that counsel had Page 13 given erroneous advice, in the procedural context in which it was made,*fn45 was doomed, and its prospects would not have been enhanced even had the court appointed new counsel. Moreover, the suggestion that counsel's conflict manifested itself in his failure to argue mitigating circumstances with respect to sentencing*fn46 overlooks the fact that the sentence to be imposed was agreed upon as part of the plea bargain. Thus, even if counsel was conflicted, there was no viable alternative strategy available. In consequence, the Appellate Division certainly did not apply Supreme Court precedent unreasonably in concluding that there was no violation of petitioner's right to counsel by reason of any actual conflict of interest.

 2. Potential Conflict of Interest

  Perhaps recognizing that the actual conflict argument is unlikely to carry the day, petitioner argues that counsel at least had a potential conflict of interest borne of the presumed desire to avoid close scrutiny of his pre-plea advice to petitioner. But the potential conflict argument stands him in no better stead.

  In the case of a potential conflict of interest, however, Strickland requires a showing of prejudice, viz. "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."*fn47 And in considering whether this requirement has been satisfied, it is vitally important to keep one's eye on the ball — that is, to focus Page 14 on which proceeding petitioner must show probably would have come out differently if counsel had acted appropriately.

  One almost inevitably falls into considering whether petitioner has made an adequate showing that he would not have pleaded guilty had he been advised properly, which would be the appropriate inquiry were petitioner's contention here that he lacked effective assistance of counsel in entering his plea. But that is not exactly the argument he makes. Rather, both the petition and the brief of his able appointed counsel in this Court, insofar as they are relevant to this point, assert that he was deprived of the effective assistance of counsel on the motion to withdraw the plea.

  This makes a very considerable difference. For reasons already noted, the motion to withdraw the plea had no prospect for success in light of Ramos. Petitioner has not shown that the outcome of that motion could possibly have been different even if he had been represented by other counsel.

  To be sure, there is a very close relationship between the argument petitioner has made (i.e., he lacked effective assistance on the motion to withdraw the plea) and the argument that he has not made (i.e., he lack effective assistance when he entered the plea) — both depend upon the same factual premise. At first blush, it is difficult to see why both arguments were not made and why the Court should not regard them as so interrelated as to warrant dealing with both. Upon reflection, however, the reasons seem plain.

  Ramos made clear that petitioner could challenge his conviction in the state courts on the ground that he did not receive the effective assistance of counsel when he pleaded guilty, albeit Page 15 only on a post-conviction application.*fn48 But there is no suggestion anywhere in petitioner's papers that he ever has done so. An attack on the plea, as distinguished from an attack on the ruling on the motion to withdraw the plea, therefore would be foreclosed by this failure to exhaust his state remedies.*fn49 Indeed, including that argument would render this a mixed petition and result in its dismissal or stay pending exhaustion.*fn50 Thus, it appears that petitioner, who is represented by counsel, has made a deliberate choice that ought to be respected. In any case, this Court is obliged by statute*fn51 not to address the merits of an unexhausted claim.

  In sum, petitioner has failed to show that there is a reasonable possibility that the outcome of the plea withdrawal motion would have been different had he been represented by other counsel. The ineffective assistance claim with respect to that proceeding therefore is without merit.

 C. Petitioner's Motion to Withdraw His Guilty Plea

  Petitioner alleges that the denial of his motion to withdraw his guilty plea was improper and violated his right to due process because the motion judge denied his motion based on a record that failed to establish that his plea was knowing and voluntary, failed to inquire into the facts underlying his application, and failed to hold an evidentiary hearing on his motion.

  The governing principles here are clear. A guilty plea is valid only if it is entered Page 16 knowingly, voluntarily and intelligently.*fn52 Furthermore, the record must affirmatively disclose that a defendant who pleaded guilty did so understandingly and voluntarily.*fn53 When a defendant pleads guilty to a charge, he must do so with a full understanding of the consequences.*fn54 The test for determining the constitutional validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant."*fn55 When evaluating the voluntariness of a plea, "a habeas court must examine the totality of the circumstances surrounding that plea."*fn56 But these principles do not exist in a vacuum. Page 17

  The Second Circuit recently considered, in Hines v. Miller,*fn57 whether a state trial court's failure to hold an evidentiary hearing on a motion to withdraw a guilty plea violated due process. It noted that under both federal and state precedent, a defendant is not entitled as a matter of right to an evidentiary hearing on a motion to withdraw a guilty plea.*fn58 It went on to say that the failure to hold an evidentiary hearing on a defendant's motion to withdraw a plea does not offend a deeply rooted or "fundamental" principle of justice.*fn59

  A fortiori, the Appellate Division's conclusion that the state court properly denied defendant's request to withdraw his guilty plea "after sufficient inquiry"*fn60 and without a hearing was not unreasonable.*fn61

 D. The Excessive Sentence Claim

  The petition asserts that the sentence was excessively harsh and should be reduced in light of the mitigating circumstances that the sentencing judge failed to take into account.*fn62 The Page 18 severity of a sentence, however, ordinarily is not a ground for habeas relief because "no federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law."*fn63 Petitioner concedes his sentence is within the legal statutory limit.*fn64 Accordingly, this Court may not review it for excessiveness.*fn65 Page 19


  Petitioner has failed to demonstrate that the state court unreasonably applied clearly established federal law as determined by the Supreme Court. For the reasons set forth above, the petition is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).


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