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January 21, 2004.

GEORGE LOPEZ, Petitioner, -against- THOMAS C. SANDERS, Respondent

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se petitioner George Lopez ("Lopez"), imprisoned after pleading guilty to attempted arson, petitions this Court for a writ of habeas corpus on the ground that his sentence was imposed in violation of the Constitution's Due Process Clause. Specifically, he argues that the trial court's determination that he breached his plea agreement with the government (resulting in a higher sentence than otherwise) violated his right to due process because the trial court made that determination without holding an evidentiary hearing. The Court concludes that this claim is procedurally barred from habeas review, and, in the alternative, that the trial court's determination was not contrary to, or an unreasonable application of, clearly established federal law. The petition is denied. Page 2


  Manhattan hardware store owner Leonard Kesselman enlisted Victor Hernandez to find an arsonist to set fire to a competitor's hardware store. Hernandez secured the cooperation of Lopez, who agreed to do the job for $4,000. At about 3:00 a.m. on the morning of October 21, 1995, Lopez hurled a Molotov cocktail*fn2 into a window of the competitor's hardware store, located on the first floor of a residential building on Ninth Avenue in Manhattan.

  Authorities arrested Lopez in short order, and he confessed in a written statement. In that statement, Lopez stated that he spoke in person to both Hernandez and Kesselman about the arson, and that he called to alert Kesselman a few days before the crime. Lopez plead guilty to first degree attempted arson in New York state court on December 9, 1996. Under a plea agreement with the New York County District Attorney's office (the "DA"), Lopez agreed to cooperate with the DA and to provide truthful information, in exchange for Page 3 the DA's recommendation of a sentence of six to 12 years' imprisonment. The agreement noted that Lopez faced a maximum of 12 ½ to 25 years' imprisonment, and that the DA might recommend that sentence if Lopez breached the agreement.

  At a hearing in May 1998, the parties appeared before the trial court in a dispute as to whether Lopez had complied with the agreement. According to the DA, Lopez changed his story after entering the plea agreement, rendering his cooperation useless. Specifically, the DA stated that, on Lopez's new version of the events, Lopez dealt only with Hernandez (not Kesselman), thereby making Lopez useless in assisting a federal prosecution of Kesselman. The DA mentioned one incident in which Lopez, even after having pled guilty, denied any involvement in the crime. The DA emphasized that Lopez's multiple changes of story would make him a poor witness, in any event. Lopez's attorney, James Palumbo, insisted that Lopez had changed his story before the plea agreement, and that the DA knew all along that Lopez would not be able to implicate Kesselman. According to Palumbo, Lopez's change of story was, in fact, a "big issue" in the plea negotiations which "almost resulted in the deal not going through." Hearing Tr. at 16, 19. Palumbo conceded that, after pleading guilty, as part of a "momentary lapse," Lopez had denied committing the crime. However, Palumbo emphasized that Lopez was acting Page 4 under threats to his family and that he immediately retracted chat statement. The judge instructed the parties that, unless they could resolve the issue between themselves, the court would have to hold a factual hearing to determine whether Lopez breached the agreement.

  The parties returned to the trial court in July 2000, having reached an oral agreement to avoid an evidentiary hearing. Under the new agreement (whose terms are not exactly clear from the record), Lopez would face six to 12 years' imprisonment if Lopez assisted in the prosecutions of Kesselman and Hernandez, nine to 18 years' imprisonment if he assisted in the prosecution of Hernandez only, and 10 to 20 years' imprisonment otherwise. Palumbo emphasized that Lopez's potential testimony could implicate Hernandez (who then had not been convicted or sentenced) and urged the court to sentence Lopez to nine to 18 years' imprisonment. The trial court sentenced Lopez to 9 ¾ to 19 ½ years' imprisonment.

  On appeal, Lopez argued that the trial court should have held an evidentiary hearing to determine whether he had, in fact, breached the plea agreement because he would have otherwise been entitled to the DA's recommendation of only six to 12 years' imprisonment. He argued that he was denied the benefit-of-the-bargain with respect to his plea agreement because the trial court simply credited the DA's version of Page 5 events on a sharply disputed issue, without the benefit of testimony. Lopez argued that the purported oral modification of the plea agreement violated the express terms of the agreement, which forbids modifications unless in writing and signed by all of the parties. The DA responded that (1) Lopez waived the issue by failing to ask the trial court for a hearing; (2) a hearing was not necessary, as the trial court had an adequate record from which to determine the issues; (3) by the terms of the plea agreement, it was up to the DA's sole discretion to determine Lopez's compliance; and (4) the oral agreement need not have been in writing because it was within the parameters outlined in the written plea agreement.

  A panel of the New York State Supreme Court, Appellate Division (the "Appellate Division"), rejected Lopez's appeal in a short memorandum order. See People v. Lopez, 735 N.Y.S.2d 781 (App. Div. 1st Dep't 2002). The panel held that the issue of whether an evidentiary hearing was necessary "was not preserved for appellate review since defendant neither requested such a hearing nor moved to withdraw his plea of guilty." Id. Alternatively, the panel held that "the record . . . fully supports the [trial] court's finding that defendant violated the terms of the agreement." Id. Moreover, the panel concluded that "the cooperation agreement clearly provided that it was up to the People to determine whether defendant's Page 6 cooperation was satisfactory" and that: "there was no improper modification of the [plea] agreement." Id. The New York Court: of Appeals denied Lopez's petition for leave to review the decision. See People v. Lopez, 769 N.E.2d 363 (N.Y. 2002) (Table). Lopez then timely brought the present habeas petition.


  Generally, a petitioner is entitled to habeas relief if he can show he is in custody in violation of the United States Constitution or federal law. See 28 U.S.C. § 2254 (a). The purpose of federal habeas review of state court convictions is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have been decided on the merits by a state tribunal." United States ex rel. Radich v. Criminal Court of New York, 459 F.2d 745, 748 (2d Cir. 1972).

  The petitioner must demonstrate that he is in custody because of a state court decision which was either (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "resulted in a decision that was based on an unreasonable determination of the facts Page 7 in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

  On habeas review, a "determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner carries "the burden of rebutting the presumption of correctness by ...

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