United States District Court, S.D. New York
January 21, 2004.
GEORGE LOPEZ, Petitioner, -against- THOMAS C. SANDERS, Respondent
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
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.
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
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
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'
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
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
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
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.
II. STANDARD OF REVIEW FOR A 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
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
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 clear and
convincing evidence." 28 U.S.C. § 2254(e)(1).
"In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this
case, Lopez defaulted his federal due process claim under New York
procedural rules because, as the Appellate Division panel stated, he
"neither requested such a hearing nor moved to withdraw his plea of
guilty." Lopez, 735 N.Y.S.2d at 781; see also N.Y. Crim. Proc. Law §
470.05(2) (stating criteria for preserving error); People v. Messina,
517 N.Y.S.2d 75 (App. Div.2d Dep't 1987) (declining to review the issue
whether a hearing was required to determine appellant's compliance
with plea agreement because appellant neither requested a hearing nor
moved to withdraw his plea). In fact, the sentencing transcript: makes
clear that both parties affirmatively chose to avoid a hearing by
striking an alternate agreement. Lopez reaped the benefit of that choice
by being sentenced to less than the statutory maximum.
Lopez now contends that the waiver was ineffective because it violated
the terms of the plea agreement.*fn3 This does not amount to "cause"
excusing a procedural default. In Murray v. Carrier, the Supreme Court
explained that "cause" for procedural default "must ordinarily turn on
whether the prisoner can show that some objective factor external to the
defense impeded counsel's efforts to comply with the State's procedural
rule." 477 U.S. 478, 488 (1986) (emphasis added). The Court noted that "a
showing that the factual or legal basis for a claim was not reasonably
available to counsel" or a showing that the prosecution interfered with
the petitioner's compliance would suffice. Id. Here, Lopez, through his
lawyer, explicitly agreed to forego a hearing.
Even assuming that the oral agreement violated the terms of the plea deal
(which is far from settled), Lopez puts forth no reason why he or his
lawyer did not object to the oral agreement before the trial court. The
most likely explanation is that they affirmatively sought the oral
agreement as a way to ensure the lowest possible sentence for Lopez.*fn4
In any event, even if Lopez could make a showing of "cause" for the
failure to request a hearing, he fails to put forth any reason to believe
he has been prejudiced. That is, he demonstrates no reason why the trial
court would not have actually given him a higher sentence had the court
gone forward with a full hearing. Lopez also puts forth no reason why
"failure to consider the claims will result in a fundamental miscarriage
of justice." Coleman, 501 U.S. at 750. Accordingly, Lopez's claim is
procedurally defaulted and therefore cannot be the basis for habeas
The Court finds, in the alternative, that Lopez's substantive claim for
relief is without merit. Lopez's right to enforce his plea agreement at
his sentencing is certainly a Fourteenth Amendment "liberty interest,"
whose "termination calls for some orderly process, however informal,"
Due Process Clause. See Morrissey v. Brewer, 408 U.S. 471, 482 (1982)
(holding that parolee's right to not have parole revoked is a protectable
liberty interest); see also United States v. Fatico, 579 F.2d 707, 711
(2d Cir. 1978) ("The Due Process Clause is plainly implicated at
sentencing."). The Supreme Court has emphasized that due process is
"`flexible and calls for such procedural protections as the particular
situation demands.'" Gilbert: v. Homar, 520 U.S. 924, 930 (1997) (quoting
Morrissey, 408 U.S. at 481). Lopez points to no Supreme Court case (nor
could the Court find one) holding that, under the Due Process Clause,
disputed factual issues regarding plea agreement compliance must be
resolved in a full-blown hearing. The issue is thus whether, on the facts
of this case, the trial court afforded Lopez the process he was due under
the Constitution at sentencing.
Generally, due process does not require the same heightened procedural
safeguards for sentencing purposes as a criminal trial. See, e.g.,
McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986) (upholding the use of a
lower standard of proof at sentencing than at trial); Williams v. State
of New York, 337 U.S. 241, 252 (1949) (upholding the use of hearsay at
sentencing). However, as explained above, some process at sentencing is
nonetheless mandated by the Due Process Clause. On this point, the
closest analogous case is Torres v.
Berbary, 340 F.3d 63 (2d Cir. 2003), in which a Second Circuit panel held
that a re-sentencing proceeding failed the due process test, and ordered
that habeas petitioner Daniel Torres ("Torres") be released unless the
state provided a new hearing. Torres pled guilty to a felony drug charge
and, in accordance with a plea agreement, he was conditionally released
to a drug treatment facility, instead of prison. Id. at: 64. Under the
agreement, if he successfully completed the drug treatment program, he
would re-plead guilty to only a misdemeanor and be sentenced to time
served. Id. The drug treatment facility discharged Torres for attempting
to bring drugs into the facility, and, despite Torres's protestations of
innocence, the state court sentenced him to 4 ½ to 9 years'
The Second Circuit held that, since the trial court's determination
rested upon a "a single report replete with multiple levels of hearsay
and speculation," Torres's right to due process was violated. Id. at 71.
The Circuit Court panel relied upon Supreme Court decisions which
mandated a certain level of process, including some procedures in
particular, when state officials revoke parole, see Morrisey, 408 U.S. at
489, or when state officials determine that a prisoner has committed
"serious misconduct" and thereby deny the prisoner "good-time" credits,
see Wolff v. McDonnell, 418 U.S. 539,
563-72 (1974). See Torres, 340 F.3d at 71. The panel concluded that
"well-settled and clearly established Supreme Court due process
jurisprudence or, at the very least, a reasonable extension of it,
mandates a finding of denial of due process in Torres'[s] sentencing."
Id. However, the panel was careful to limit its holding to the "unique"
facts of the case, namely:
total reliance by the trial court on a hearsay report
that itself contains only uncorroborated statements of
unnamed informants; omission of any finding by the
trial court as to the reliability of the informants or
as to reasons for the non-disclosure of their
identities; failure of the trial court to conduct some
kind of hearing, including provision for the
examination of Torres under oath; lack of
preponderating evidence of Torres' wrongdoing; and the
gross disparity between a sentence that would release
Torres to society on a plea to a misdemeanor charge
after completion of the [drug treatment] program and
the four-and-a-half-to-nine-year felony sentence to
state prison that he received for violating the
original sentence condition.
Id. In this case, unlike the situation in Torres, the trial court did
have a reasonable basis to determine that Lopez had violated his plea
agreement namely, that Lopez admitted, at the very least, to
having denied involvement in the crime at all, after having pled guilty
to the crime. Moreover, also unlike in Torres, Lopez agreed that it would
be up to the DA to determine whether he had fully cooperated.*fn5
these facts, the Court concludes that the state trial court did not
need, as a matter of due process, to conduct a further hearing to
determine Lopez's compliance. In any event, the trial court's decision
was not an "unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States. . . ."
28 U.S.C. § 2254(d) (emphasis added). Lopez's petition must therefore
For the reasons stated, it is hereby
ORDERED that the petition of George Lopez ("Lopez") for a writ of
habeas corpus is denied.
The Clerk of Court is directed to close this case.
As Lopez has failed to make a substantial showing of the denial of a
constitutional right, the Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253; Lucidore v. New York State Div.
of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).