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GOMEZ v. DUNCAN

United States District Court, S.D. New York


January 27, 2004.

EDDIE GOMEZ, Petitioner, -against- GEORGE W. DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

Pro se petitioner Eddie Gomez seeks a writ of habeas corpus from his February 16, 1994 conviction, following a guilty plea in Supreme Court, New York County, of first degree attempted murder and first degree reckless endangerment, and sentence to concurrent terms, the longest of which was fifteen years to life imprisonment. (Dkt. No. 2: Pet. ¶ 1-2.) See People v. Gomez, 249 A.D.2d 237, 237, 672 N.Y.S.2d 681, 681 (1st Dep't), appeal denied, 92 N.Y.2d 852, 677 N.Y.S.2d 83 (1998): see also Gomez v. Duncan, 02 Civ. 0846, 2002 WL 1424584 at *1 (S.D.N.Y. July 1, 2002) (Peck, M. J.) (denying the State's motion to dismiss the petition as time barred), report & rec. adopted, Dkt. No. 22, slip op. (S.D.N.Y. Aug. 29, 2003) (Preska, D.J.). Page 2

Gomez's habeas petition raises three grounds: (a) his guilty plea was not knowing and voluntary (Pet. at 28-33); (b) he was denied effective assistance of trial counsel (Pet. at 4-27); and (c) he was denied effective assistance of appellate counsel (Pet. at 34-36).

  For the reasons set forth below, Gomez's habeas petition should be DENIED.

  FACTS

  Petitioner Eddie Gomez was arrested in the early morning hours of February 22, 1993 after police received reports of gunfire at a restaurant at 174th Street in upper Manhattan. After a shootout with the two police officers who pulled over the car in which Gomez was a passenger, Gomez was taken into police custody. He and the car's driver, George Pena, each were charged with two counts of first degree attempted murder, second degree assault, first degree reckless endangerment, and three counts of criminal possession of a weapon. (See generally Dkt. No. 2: Pet. at 4-10.)

 Gomez's Pretrial Suppression Hearing

  On December 2, 1993 and January 6, 1994, the court (Justice James Leff) held a Wade-Huntley suppression hearing (Dkt. No. 29: 12/2/93 Suppression Hearing Transcript ["Tr."]) involving both Gomez and his co-defendant George Pena (Tr. 2).

  The Prosecution Case at the Suppression Hearing

  In the early morning hours of February 22, 1993, New York City Police Detective Israel Larraquente and fellow Detectives Patricia Powers and Evelyn Delgato went to the 43rd Precinct in the Bronx to interview two men whom Bronx police officers had arrested in connection with the shooting of a police officer in Manhattan. (Larraquente: Tr. 6-7; Powers: Tr. 28-29; Page 3 Delgato: Tr. 19.) Detective Larraquente testified that he, Detective Powers and Detective Delgato observed Emergency Medical Service personnel bandage Gomez's head, after which he was placed in a holding cell. (Larraquente: Tr. 13, 20.) Detective Larraquente escorted Gomez from the holding cell to an interview room in order to question him. (Larraquente: Tr. 18.) Detective Delgato, in the presence of Detectives Larraquente and Powers, read Gomez Miranda warnings in Spanish. (Larraquente: Tr. 7-8; Delgato: Tr. 20-21, 26-27.) Gomez answered "yes" in Spanish to each question, indicating that he understood his Miranda rights. (Delgato: Tr. 22.) Detective Delgato gave Gomez coffee, towels, and "stuff to clean himself before Gomez was questioned. (Delgato: Tr. 24-25.) Ten to fifteen minutes later, Detective Larraquente again read Gomez Miranda warnings in Spanish. (Larraquente: Tr. 8-9.) Gomez again indicated that he understood his Miranda rights and stated that he was willing to answer questions about events earlier that morning. (Larraquente: Tr. 11.)

  Gomez stated that he had spent the evening of February 21, 1993, drinking with Pena at a restaurant at 174th Street and St. Nicholas Avenue. (Larraquente: Tr. 11-12.) Around midnight, he and Pena left the restaurant and took a taxi to visit Pena's girlfriend, who lived on Rosedale Avenue in the Bronx. (Larraquente: Tr. 12.) Because they had been drinking, Gomez and Pena mistakenly got out of the taxi two blocks away from their destination. (Larraquente: Tr. 12.) As they walked to Pena's girlfriend's house, police officers approached, beat and arrested them. (Larraquente: Tr. 12.) Page 4

  Detective Larraquente testified that he had noticed that Gomez had "whiskey breath," but Gomez still had responded coherently to all of the questions he was asked. (Larraquente: Tr. 21 — 22, 27.) Although Gomez's head was bandaged and his clothes were wet, Gomez never indicated that he did not feel well nor did he request medical assistance. (Larraquente: Tr. 14, 20, 22-24; Powers: Tr. 34-35; Delgato: Tr. 25.) Gomez also never requested an attorney. (Larraquente: Tr. 14.) At approximately 5:40 a.m., Detective Larraquente wrote down Gomez's statement and asked him to sign it, but Gomez refused. (Larraquente: Tr. 12-13.)

  Detectives Larraquente, Powers and Delgato escorted Pena to the interview room, where Detective Larraquente read him his Miranda warnings in Spanish. (Larraquente: Tr. 15, 24; Powers: Tr. 29.) Pena answered "yes" to each question, indicating that he understood his Miranda rights. (Larraquente: Tr. 15.) Detective Larraquente interviewed Pena in Spanish, translating his responses into English so Detective Powers, who did not speak Spanish, could record Pena's statement. (Larraquente: Tr. 15-16; Powers: Tr. 29-30.)

  Pena stated that shortly after 3:00 p.m. on February 21, 1993, he arrived at Los Compadres Restaurant, where he spent several hours drinking with friends. (Powers: Tr. 30.) Pena left the restaurant, picked up money from a friend, returned to the restaurant and met his friend "Seago," referring to Gomez. (Powers: Tr. 30-31.) Pena and Gomez decided to visit Pena's girlfriend in the Bronx, taking a taxi to 174th Street and Rosedale Avenue, a few blocks from her house. (Powers: Tr. 31.) As they walked towards the house, police officers stopped and arrested them. (Powers: Tr. 31.) Pena's clothes were wet during the interview; Pena told the detectives that they were wet from the morning's snow. (Powers: Tr. 31-33.) Page 5

  After these interviews were completed, Detective Daniel Rodriguez of the Manhattan North Homicide Squad and Detectives Gennaro Giorgio and Jose Caban of the 34th Precinct Homicide Squad went to the 43rd Precinct to participate in the investigation into the shooting of a police officer in Manhattan. (Caban: Tr. 45-46; Giorgio: Tr. 7-8; Rodriguez: Tr. 28.) Detective Rodriguez, after talking with Detectives Larraquente, Powers and Delgato, interviewed Gomez in the Detective Squad Room in the presence of Detectives Giorgio and Caban. (Rodriguez: Tr. 28-29.)

  At approximately 9:50 a.m., before questioning Gomez, Detective Rodriguez again read Gomez Miranda warnings in Spanish. (Rodriguez: Tr. 29-31, 36.) Gomez again indicated that he understood and was willing to answer questions, and he signed a Miranda-waiver form. (Rodriguez: Tr. 29-31.) Detective Rodriguez questioned Gomez in Spanish, recording his answers in Spanish. (Rodriguez: Tr. 31-32.) Gomez told Detective Rodriguez that he drove with three other men, Jorge (co-defendant George Pena), Felix, and Gabby, to a restaurant on 173rd Street and St. Nicholas Avenue at about midnight on February 22, 1993. (Rodriguez: Tr. 32-33.) Gomez slept in the car while Jorge, Felix, and Gabby entered the restaurant. (Rodriguez: Tr. 33.) Gomez's three companions returned to the car about two hours later, then re-entered the restaurant with Gomez because of a dispute over the bill. (Id.) As Gomez and his companions turned to leave, Gomez overheard someone say, "[p]ass me the gun" before hearing a shot fired. (Id.) Pena told Gomez to retrieve a gun from underneath the passenger-side seat of his car. (Id.) Gomez retrieved a 45 caliber pistol and fired a shot in the direction of the restaurant manager, who was holding a gun himself. (Id.) Gomez aimed "high" to avoid hitting anyone. (Id.) Gomez entered the front passenger-side seat and Pena drove the men to 175th Street and Audobon Avenue, where they picked up a man Page 6 named Richard. (Id.) Richard took Gomez's seat in the front, and Gomez moved to the back seat. (Id.) Richard picked up the 45 caliber gun and loaded it. (Rodriguez: Tr. 34.)

  Gomez noticed a flashing police light at the intersection of 181st Street and Amsterdam Avenue. (Id.) Richard asked, "`[w]hat are we going to do?,'" but before anyone answered, Richard fired at the police as they got out of their car. (Id.) Pena also may have shot at the police. (Id.) Pena drove them to the Bronx, where the car broke down. (Id.) They got out of the car, and Richard handed Gomez the 45 caliber gun, which Gomez unloaded, then reloaded after Pena told him to do so. (Id.) Pena and Gomez fled in one direction, while Richard ran in another. (Id.) Gomez put the gun down next to a wall before being apprehended by the police. (Id.) Pena told Gomez that he had dropped a nine millimeter handgun into the Bronx River while crossing the river. (Rodriguez: Tr. 35.)

  After Gomez finished describing what had occurred, Detective Rodriguez asked him to review the statement he had written. (Rodriguez: Tr. 31-32, 35.) Gomez reviewed the statement, then signed each page of it. (Rodriguez: Tr. 32, 35.) Detective Rodriguez testified that Gomez did not appear drunk during questioning and never requested medical treatment. (Rodriguez: Tr. 37.)

  Meanwhile, Detective Michael Carew of the Police Scuba Team went to 174th Street and the Bronx River to retrieve a gun that was believed to be in the river. (Carew: Tr. 36-37.) After speaking to officers at the scene, Detective Carew and his team entered the river to search for the gun but did not find it. (Carew: Tr. 36-37.) Another officer told Detective Carew that one of the perpetrators would provide the gun's exact location. (Carew: Tr. 37-38.) At around noon on February 22, 1993, Detective Carew went to the 43rd Precinct to interview Gomez in order to learn Page 7 where the gun could be found. (Carew: Tr. 38.) Upon arriving at the precinct, Detective Carew saw detectives escorting Gomez out the back door in order to drive him to the river. (Carew: Tr. 38, 43.) Detective Carew asked the detectives to wait so Gomez could describe the area to him. (Carew: Tr. 38.) Gomez described the area, and told Detective Carew that he had dropped the gun to the front and left of several abandoned cars in the river. (Carew: Tr. 39.) Detective Carew did not administer Miranda warnings to Gomez before speaking with him. (Carew: Tr. 42-43, 44.) After this conversation, detectives escorted Gomez to the Bronx River, where he pointed out the area where he had dropped the gun. (Carew: Tr. 39.) At approximately 12:30 p.m, Detective Carew searched and found a nine millimeter semi-automatic gun in front of an abandoned car in the river. (Carew: Tr. 41.)

  Meanwhile, at around 6:00 p.m., Detectives Rodriguez and Caban drove Pena to the 34th Precinct in Manhattan, where Detective Giorgio interviewed him. (Caban: Tr. 46.) Pena told Detective Giorgio that he and his friend Eddy (i.e., Gomez) had gone to Los Compadres restaurant on 176th Street and St. Nicholas Avenue, where they had "more than two" drinks. (Giorgio: Tr. 11.) While at the restaurant, Pena placed a beer bottle on a glass-top table and a piece of the table broke off. (Giorgio: Tr. 12.) The manager asked Pena to pay the bill for the broken table, which Pena testified he did. (Id.) After paying, Gomez said, "`[L]et's get out of here,'" and he and Pena left the restaurant. (Id.) Pena did not hear any shots or breaking glass as they drove away. (Id.) Pena drove north on Amsterdam Avenue, but stopped the car north of 181st Street near the entrance to the Cross-Bronx Expressway when he heard a police siren and saw "police lights." (Giorgio: Tr. 12-13.) Gomez told Pena to "keep going," and as Pena drove onto the on-ramp for the Expressway, Gomez Page 8 pointed a gun out the window and fired at the officers. (Giorgio: Tr. 13.) Pena stopped the car and Gomez told him to run, but the police apprehended them. (Id.) Pena signed a statement to this effect. (Giorgio: Tr. 14-15.)

  At 9:40 p.m. on February 22, 1993 at the 34th Precinct, Detective Caban conducted a line-up involving six men, including Gomez. (Caban: Tr. 48-50.) Because Gomez had a bandage on his head, a similar bandage was placed on the head of each of the five other men. (Caban: Tr. 49-50.) Four witnesses viewed the line-up separately; the witnesses were two restaurant workers, a cabdriver who had witnessed the shooting, and Officer Ahearn. (Caban: Tr. 51-52.) Officer Ahearn recognized Gomez from the car he had stopped on 181st Street and Amsterdam Avenue. (Caban: Tr. 53-54.)*fn1 One of the restaurant workers identified Gomez as one of the men he had seen inside the restaurant the previous evening. (Caban: Tr. 54-55.) The other restaurant worker and the cabdriver did not recognize anyone in the line-up. (Caban: Tr. 54.) Defense counsel did not cross-examine Detective Caban about the lineups. (See Caban: Tr. 6.)

  The Defense's Arguments at the Hearing's Conclusion

  Neither Gomez nor Pena called any witnesses at the suppression hearing. (Tr. 40.) In arguments before Justice Leff at the end of the State's evidence at the hearing, Gomez's counsel argued that the gun recovered from the Bronx River should be suppressed under the "fruit of the poisonous tree" doctrine, as Gomez was not read his Miranda rights immediately prior to speaking Page 9 with Detective Carew of the police Scuba Team. (Tr. 42-43) Defense counsel argued that Gomez's written statements should be suppressed because the waiver of his Miranda rights was coerced; Gomez's clothes were soaking wet, he had bruises on his face and he had sustained a head injury, and therefore he must have been in enough physical pain such that he could not make a reasonable determination as to whether he should waive his Fifth Amendment privileges. (Tr. 43-44.) As to the line-up identification evidence, Gomez's counsel merely said he would "rely on the record." (Tr. 44.)

  The prosecutor responded that Gomez's written statements were given voluntarily because he was twice read his Miranda rights and voluntarily waived them. (Tr. 44.) The prosecutor pointed out that Gomez had been read his Miranda rights an hour and ten minutes before talking to Detective Carew, such that reading them to him again was unnecessary. (Tr. 45-46.) The prosecutor also argued that although there was some testimony indicating Gomez was injured, there was none to suggest that he was in a great amount of pain or too drunk to knowingly waive his Miranda rights. (Tr. 46.)

  The Judge's Decision

  Justice Leff concluded that the lineups were not unduly suggestive, as shown by the fact that some of the witnesses did not identify Gomez. (Tr. 54.) Justice Leff refused to suppress Gomez's statements to police, finding that Gomez had been read the Miranda warnings and understood his rights. (Tr. 54-55.) Justice Leff also concluded that there was no causal connection between Gomez's injuries sustained at the time of arrest and the statements he made to police hours Page 10 later. (Tr. 55.) He did, however, grant the defendants' motions to sever their trials and hold two trials. (Tr. 54; see also Tr. 49-54.)

 Gomez's Plea Allocution

  On January 27, 1994, after Justice Leff denied Gomez's suppression motion, Gomez pled guilty to one count of first degree reckless endangerment and two counts of first degree attempted murder, with an agreed sentence of fifteen years to life. (Dkt. No. 23: State Ans. & App. Ex. A: 1/27/94 Plea Transcript ["P."] at 12.) At the very beginning of the plea proceeding, after off the record discussion, Justice Leff informed Gomez that he had presided over co-defendant Pena's trial and that if Gomez was convicted at trial, his sentence would be at least as severe as Pena's:

THE COURT: I'm watching [Gomez] and saying, this has to be the stupidest jerk I've seen on the bench. He is charged with shooting a uniformed police officer. He had a co-defendant. Mr. George Pena. I already heard the case once, so I know what the witnesses are going to testify tO
You had a gun. Pena had a gun. The police officers came along after you shot up the restaurant, and you knew they were police officers. You had a gun and you shot a New York City police officer. I don't think whether you hit him or not that that's something you take slightly.
The police officers were on duty. They went to stop the serious felony that you and Pena committed. Pena already went to trial. So I heard all the testimony about the Shell station; how you and Pena drove the car to the Bronx; that you got out of the car, that you swam the river; the cops arrested you. And the witnesses all testified there was a white [Oldsmobile] car . . .
  It had bullet holes in it. And the jury went out and they convicted Pena. Pena in effect said all he did was drive the car, you did all the shooting. . . . Page 11

 

I'm not going to sentence Pena for another three weeks, but he was convicted of two counts of attempted murder of a police officer; not one police officer, but two police officers. . . .
My own feelings is that if Pena's sentence is a consecutive sentence, 15 to life on each of them that that's not too much of a sentence to give Pena. And if you're convicted. I intend to give you the same. Why you should get less. I don't know. But that's what's going to happen. So you're entitled to a trial. . . .
(P. 2-3, emphasis added.) Gomez, speaking through an interpreter, told the judge that he was at the scene of the shootout with police, but he "never shot at the police. . . . It was somebody else who escaped." (P. 4.) Justice Leff responded, "You tell that to the jury. If they believe your story, you walk out of here and worry about the Bronx case. If they don't buy your story, I figure this is 1994, figure you get 30 years, to life, you'll be out 2023. That's a good thing." (P. 4.)

  Gomez tried to convince Justice Leff to give him a more lenient sentence:

MR. GOMEZ: If you give 12 and a half to 25, I will take it right now.
THE COURT: So, that's fine, but I'm not going to give it to you. You want 15 to life, you can have it, I'll give you a bargain. I'll give you concurrent sentences. You take it in the next 10 minutes and if you don't, that's all right too.
MR. GOMEZ: Judge, I take the plea for 15 years if you let me take it back later.
THE COURT: Why would you want to take it back?
MR. GOMEZ: So if it's possible I can serve less time maybe.
THE COURT: Bring in the jury. I'm not going to sit here and coax him.
(P. 4-5.) After Gomez's attorney noted that he needed a few more minutes of discussion with the A.D.A. but that the judge's "help may have resolved an unnecessary trial" (P. 5), Gomez interrupted, Page 12 telling Justice Leff that, "I'm asking questions to know. That's what I'm doing. It's my right. I want to know and it's my right." (Id.) Justice Leff responded:
THE COURT: Your right is to have a jury trial. That's what we're going to have. When it's over, you're going to listen to the jury decide whether you're guilty of an attempt to shoot two policemen. And if they say you're guilty, you don't tell me what your rights are . . . Right now you will have a jury trial. That's what we're going to give you. Bring in a panel.
(P. 5-6.) Immediately following this statement, Gomez's attorney informed Justice Leff that Gomez desired "to withdraw his plea of not guilty previously entered and enter a plea of guilty . . . in full satisfaction of the seven counts of the indictment." (P. 6-8.) Justice Leff asked Gomez directly if he understood what his lawyer had just said, to which Gomez responded, "Yes." (P. 8.) Justice Leff stated:
THE COURT: Now, one thing I want clear, if you give up your right to have a jury trial today on this case and you plead guilty to the first three counts of the indictment, no way can you change your mind after you make that plea. You understand that? You can't say you didn't understand or you didn't want to take the plea or somebody forced you to. No way you can change your mind. You understand that?
(P. 8.) Gomez responded that he understood "perfectly well," but that he wanted to make sure he still had the right to appeal (P. 8-9) — presumably from the denial of his suppression motion. Justice Leff told him, "You can appeal. You can appeal. I don't know what you are going to appeal, but you can appeal." (P. 9.) Justice Leff made sure that Gomez understood the terms of his plea:

  THE COURT: [W]hen you plead guilty, you are giving up your right to pick a jury of 12 citizens who will sit over there in those seats. They will listen to the witnesses against you. You can help choose those jurors. After the jury is selected, you have a right to hear the witnesses who will testify against you. There was some 15 or 18 witnesses who testified Page 13 at George Pena's trial, police officers, among others, Ah[ea]rn and Torres, who were the two police officers who were the victims in the second and third counts [of the indictment]. You will hear them.

 

You would have a right to have your lawyer question those witnesses. You would have a right to testify yourself if you wanted to or if you had any witnesses that you wanted to call, you could call those witnesses. You understand that?
MR. GOMEZ: Yes.
THE COURT: You understand that after the case is heard, it is submitted to the jury. And the jury decides whether you're guilty of these charges against you.
If you plead guilty, there is not going to be a jury that decides this case. And by pleading guilty, you are admitting to certain facts. You're admitting as to the first count that on February 22, 1993 under circumstances evincing a depraved indifference to human life, you recklessly engaged in conduct that created a grave risk of death to another person by shooting a loaded firearm to [sic] a crowded restaurant. That's at 1263 St. Nicholas Avenue.
Did you do that?
MR. GOMEZ: Yes.
THE COURT: The second count charges an attempt to commit the crime of murder in the first degree, and so does the third count. When you plead guilty, you're admitting to those counts; that you're over 18 years of age; that on February 22. of 1993 with intent to cause the death of Police Officer Patrick Ah[ea]rn and a Police Officer Gonzalo Torres, you attempted to cause their death and they were police officers as defined in law and at the time that you fired your weapon at them. You reasonable [sic] should have known that they were police officers and that they were in the course of performing their official duties.
  Specifically, what they were doing was attempting to intersect [sic: intercept] the car that you were in and Pena was in. It was an Oldsmobile that you were driving away from the scene of the St. Page 14 Nicholas Avenue restaurant and away from the Shell station on 181 Street.

 

Did you do that? Did you fire a gun at those police officers?
MR. GOMEZ: Do I have to admit it?
THE COURT: You certainly do. And if you don't, the jury will decide.
MR. GOMEZ: Yes. I did it.
THE COURT: I'm sorry.
MR. GOMEZ: Do I have to admit it even if I didn't do it?
THE COURT: If you didn't do it, let the jury hear the witnesses. If you're claiming you didn't do it, go to trial.
MR. GOMEZ: I'm only asking a question to know.
THE COURT: The question I'm asking you is whether or not-1 just read what the charge was, attempting to cause the death of Ah[ea]rn and Torres. And I'm asking you whether you fired a gun knowing that they were police officers.
MR. GOMEZ: Yes.
THE COURT: No question about that? Is there anything you don't understand that you want to have explained to you?
MR. GOMEZ: No.
THE COURT: Did Mr. Traub tell you that the sentence that you're going to get is 15 years to life on the second count and concurrent which means served at the same time with the third count, and you're going to get a sentence on the first count of two and a third to seven, that's also concurrent?
  MR. GOMEZ: Yes. Page 15

 

THE COURT: Except for that, did anybody promise you anything to make you plead guilty?
MR. GOMEZ: No.
THE COURT: You want to take that plea now?
MR. GOMEZ: Yes. (P. 9-12, emphasis added). Gomez's counsel (Traub) and Assistant District Attorney Bosco placed on the record the additional terms of Gomez's plea agreement as to sentencing on unrelated cases in the Bronx:
MR. TRAUB: Your Honor, there is some other promises that the People will put on the record as part of the plea agreement that the Court may not be aware of, that Mr. Gomez has two pending indictments in the Bronx. The People have spoken to the Assistant [District Attorney] in the Bronx and they are prepared to offer concurrent time on the two cases that's [sic] pending in the Bronx.
Mr. Gomez is also a suspect in a robbery out of the 34th Precinct in Manhattan. I have been contacted by the detectives in reference to that case. The People will cover that as well, and he will not be charged in reference to that case. The People have also indicated that this plea out of New York County will cover all known and unknown cases that might arise against Mr. Gomez as long as someone was not seriously hurt as defined under the Penal Law, assault in the first degree. Those are the additional promises the People have made.
THE COURT: You want to respond?
[A.D.A.] BOSCO: Yes, your Honor. What Mr. Traub states is true. I want to state, Mr. Lima(ph), the ADA in the Bronx who is handling the defendant's two Bronx robbery indictments, he and I have agreed that if the defendant decided to plead guilty to those cases in the Bronx, the sentences will run concurrent to this sentence.
  As to the known and unknown robberies, I can only say that we will cover known an[d] unknown robberies where there wasn't serious Page 16 injuries in Manhattan. I personally cannot speak for what may or may not happen in the Bronx. I can't do that. I don't have the power to do that. But other than that, that's the agreement that is being entered.

 (P. 13-14, emphasis added.) Immediately following this exchange, Gomez's guilty plea was formally entered. (P. 15.)

 Gomez's Sentencing

  On February 16, 1994, Justice Leff presided over Gomez's sentencing. (Dkt. No. 23: State Ans. & App. Ex. B: 2/16/94 Sentencing Transcript ["S"].) Gomez's counsel (Traub) informed Justice Leff that there was a "question about the honoring" of the terms of Gomez's plea agreement with respect to the Bronx case. (S. 4.) Apparently, the Bronx A.D.A. had offered Gomez a twenty-to-forty year sentence to run concurrently with the Manhattan sentence. (Dkt. No. 2: Pet. at 31; S. 4.) Gomez rejected this offer, alleging that it violated the Manhattan plea agreement. (Pet. at 31.) Specifically, Gomez alleged that the Manhattan A.D.A. had promised him that if he pled guilty in Manhattan, "any sentence imposed in the Bronx cases would not be more than 15 years and would run concurrent with the [Manhattan] sentence." (Pet. at 31.) The Bronx A.D.A. told Gomez that he had only promised that, if he pled guilty to the Bronx cases, the sentences would run concurrently with the Manhattan sentence, and that he was under no obligation to offer Gomez a sentence less than the one being offered in Manhattan. (Pet. at 31.) After being informed of what had transpired in the Bronx, Justice Leff told Gomez's counsel:

THE COURT: I have no control over the Bronx.
  He took a plea here with the understanding he was going to get fifteen to life on each of two counts and that he was going to be sentenced on the reckless endangerment count. Page 17

  I intend to sentence him.

 

MR. TRAUB: That may be, your Honor, except that part —
THE COURT: What does he want to do about it? He wants his plea back? I'll be happy to give him his plea back. He can start from Square One and go to trial.
I already had a trial with Pena. And it's not really a trial; it's an inquest.
We can go through the same trial again if he doesn't want to take the fifteen to life. I assure him he's going to get more.
MR. TRAUB: He says he wants his plea back.
[A.D.A.] BOSCO: Your Honor, People have no problem with that.
THE COURT: No problem with that. Very good.
When do you want to try the case?
I'll tell you in no way will he get fifteen to life. No way will he get fifteen. I don't care what they do in the Bronx. He's going to get the life sentence anyway.
If he wants the plea back, we'll try this case.
I'll tell him right now. I haven't sentenced Pena yet. Pena went to trial. He's not getting the minimum.
Tell him that right now so it will be no surprise. So that if he gets tried, I don't care what they do [in the Bronx], twenty to life will be less than what he's going to get from me.
  He doesn't want it, that's fine. I've dealt with wise guys. I look at this half-baked jerk sitting here. He's going to go to state prison. As far as I can see, he's never coming out. And he's telling me what he wants to do. Page 18

 

He either takes the sentence we agreed upon or he has his plea back and he'll never see the light of day. He's going to die in the state prison. I'll tell him that right now.
(S. 4-6.) Justice Leff asked Gomez's counsel and A.D.A. Bosco to suggest dates for trial. (S. 7.) Gomez interrupted, telling Justice Leff, "Do whatever you want. I haven't killed anybody. . . . "

  (S. 7.) Justice Leff responded:

THE COURT: You want to impose the original sentence?
I recall very carefully telling him when I started to take the plea that no way was he going to change his mind. I don't [c]are what they do in the Bronx.
(S. 7-8.) Justice Leff instructed the clerk to arraign Gomez on the predicate felony, and the prosecutor interjected:
[A.D.A.] BOSCO: Your Honor, let me just state this: The original plea was on the condition that he get concurrent time on his Bronx case.
Obviously you have no control over what happens in the Bronx. Nor do I.
At the time of the . . . plea, I put on the record my discussions I had with the Bronx Assistant district attorney. And my understanding at the time was defendant was going to get concurrent time on this case and the Bronx case.
I just wanted to make that clear for the record.
If the Court wants to proceed with the sentencing, People have no objection at this time.
  On the other hand, if the Court wants to let the defendant take his plea back, People have no objection. Page 19

 

THE COURT: No, I'm going to proceed. I'm not going to let him dictate the terms of the conditions on which he is going to get sentenced.
(S. 8-9, emphasis added.) Justice Leff had the court clerk arraign Gomez as a predicate violent felony offender for a prior conviction for second degree attempted robbery. (S. 9-10.)*fn2 Before entering sentence, Justice Leff allowed Gomez's counsel to speak about the terms of the plea bargain:
MR. TRAUB: People are correct in that it was a negotiated plea.
The Assistant did indicate, at the time of the plea, did indicate at the time of the sentencing this was going to run concurrent with two cases that's running in the Bronx.
And that if in fact it doesn't happen, that will give him a right of appeal based upon that factor alone.
And I assume, knowing [A.D.A.] Bosco, he will make all efforts to make the Bronx aware of the fact of what took place down here in Manhattan.
Other than that, I would ask the Court to sentence Mr. Gomez in accordance with what he indicated. He did indicate he wanted to withdraw the plea. Court has already ruled on that application.
THE COURT: He's got a right to say anything he wants to now.
Want to say anything?
  DEFENDANT: Judge, yes, it's okay. I plead guilty because in fact I didn't do what they're charging me with. But I understand, but I can see, I can face a lot of time in jail if they [the jury] find me guilty. Page 20 But they made a deal with me according to my attorney that I wouldn't serve more than fifteen years in jail.

  THE COURT: That's not true.

  DEFENDANT: When [sic] I went to the Bronx.

  THE COURT: That's not true.

 

DEFENDANT: Give me my plea so I can go to trial and you can give me a hundred years.
THE COURT: Anything else you want to say? (S. 12-15.) Justice Leff sentenced Gomez as follows:
THE COURT: Sentence of the Court on Count Number One: two and a third to seven . . .
On the Second Count, attempted murder of a policeman, sentence is fifteen to life.
And on the Third Count, attempted murder of a policeman, the sentence is fifteen to life.
I would like some record to be made of the fact that this defendant is going to state prison completely oblivious to the fact he had a loaded, operable gun and shot it at a New York City cop.
And nobody should get out of jail ever who does that.
DEFENDANT: I didn't do that. I haven't shot any police officer or anyone else.
  THE COURT: All right. Then you tell that to the Parole Board when you come up for the first time in fifteen years that after fifteen years you are denying that you're guilty. And we can't rehabilitate an innocent man. Page 21 [There is] nothing that prevents me, when I sentence a defendant to fifteen years to life, prevents me telling the Probation Department that that sentence is a life sentence, not a fifteen-year sentence.

 

The sentences I have indicated, two and a third to seven, fifteen to life, fifteen to life, they are to be concurrent sentences.
DEFENDANT: Judge, I don't have anything against the sentence because that was the agreement.
But you have to understand that they are not fulfilling the agreement that they made.
THE COURT: That's your problem.
DEFENDANT: But that's not my problem. That's the agreement I made. Those were the conditions.
I can't do anything. I don't have any power to do anything.
THE COURT: Good. We'll see you.
MR. TRAUB: Actually, I think you have to indicate he hasn't been sentenced yet in the Bronx; that this is to run concurrent.
That was part of the agreement that you can so endorse.
THE COURT: The Bronx Judge can do that.
MR. TRAUB: But that was part of the promise here, that you would run it concurrent with those. That was part of the agreement, Your Honor.
THE COURT: I will indicate that that was on the record at the time of the plea.
  The Bronx Judge could take into account that the twenty-year sentence in the Bronx is not going to make any difference because Page 22 he's not going to get off on this sentence for as long as he lives. He can stay in State prison. It's a life sentence I impose.

 

So if the Bronx D.A. wants to jerk around, it isn't going to make any difference.
You tell him it would be very appropriate if he not interfere with the carrying out of this sentence.
(S. 16-20).

 The Bronx Sentence

  Gomez rejected the plea he was offered in the Bronx and went to trial for those charges. (Dkt. No. 2: Pet. at 33.) After being convicted by a jury, Justice John P. Collins on August 4, 1994 sentenced Gomez to twelve and a half to twenty-five years, to run consecutively to the sentence Justice Leff imposed on Gomez in Manhattan. (Dkt. No. 31: 8/4/94 Bx. Sentencing Transcript ["Bx."] at 14.)

  During Gomez's sentencing in the Bronx, his lawyer, Alex Sanchez, informed Justice Collins that Gomez was under the impression that the sentence in the Bronx would run concurrent to the Manhattan sentence. (Bx. at 9-10.) Sanchez told Justice Collins that he "personally investigated that matter [him] self and apparently . . . that was the impression that was actually conveyed to Mr. Gomez." (Bx. at 10.) Justice Collins responded: "If that's so, then that's a matter that has to be challenged in New York County." (Id.)*fn3 Page 23

 Post-Conviction Proceedings

  Gomez's First C.P.L. $ 440 Motion

  On March 27, 1995, prior to filing his direct appeal, Gomez moved to vacate his sentence in the Manhattan case pursuant to C.P.L. § 440.10, arguing that his guilty plea was involuntary because it had been induced by a broken prosecutorial promise, namely that the Bronx sentence would be imposed concurrently to the Manhattan sentence and that "since [Gomez] was getting such a substantial sentence that there would be no additional time imposed as a result of the Bronx cases." (Dkt. No. 8: A.D.A. Beder 5/16/02 Aff. Ex. A: Gomez § 440 Motion Aff. at 2-3.) Justice Leff denied the motion on May 2, 1995, stating that the Manhattan plea "could not foreclose the Bronx County judge or prosecutor from imposing any sentence in the Bronx the court deemed appropriate." (Dkt. No. 8: Beder 5/16/02 Aff. Ex. B: 5/2/95 Justice Leff Order.) On May 8, 1995, Gomez sought leave to appeal to the First Department from Justice Leff's denial of his § 440 motion. (Dkt. No. 8: Beder 5/16/02 Aff. Ex. C.) The First Department denied leave to appeal on July 13, 1995. People v. Gomez, 1995 N.Y. App. Div. LEXIS 8041 (1st Dep't July 13, 1995). Page 24

  Gomez's Direct Appeal

  In August 1997, represented by new appointed appellate counsel (Legal Aid Society), Gomez filed his direct appeal to the First Department. (Dkt. No. 8: Beder 5/16/02 Aff. Ex. F.) Gomez argued that his motion to suppress should have been granted "because the People failed to prove beyond a reasonable doubt that [Gomez's] written statement was not the product of police coercion." (Beder 5/16/02 Aff. Ex. F: Gomez 1st Dep't Br. at 9: see also id, at 9-14.) Specifically, Gomez's counsel argued that Gomez had been physically beaten by police officers, was not allowed to change out of his "cold, wet clothes" until he signed a written confession, and was intoxicated at the time he confessed. (Beder 5/16/02 Aff. Ex. F: Gomez 1st Dep't Br. at 11-13.) Gomez's counsel argued that although any single one of these factors might be insufficient to demonstrate that Gomez's confession was involuntary, in combination they were sufficient to establish that Gomez was "physically coerced" into confessing, in violation of both the New York State and federal Constitutions. (Id. at 9-11.)

  On April 30, 1998, the First Department unanimously affirmed Gomez's conviction, stating in full:

Defendant's motion to suppress statements was properly denied. The court properly found that, under the totality of the circumstances, defendant's statements were voluntary. Defendant knowingly waived his rights and willingly provided a clear and coherent statement. There is no evidence that defendant was intoxicated or in any distress at the time of his statement, and there was no causal connection between the minor injuries received at the time of arrest and the statement taken hours later. We have considered defendant's remaining contentions and find them to be without merit.
People v. Gomez, 249 A.D.2d 237, 237, 672 N.Y.S.2d 681 (1st Dep't 1998) (citations omitted). Page 25

  On June 23, 1998, the New York Court of Appeals denied leave to appeal. People v. Gomez, 92 N.Y.2d 852, 677 N.Y.S.2d 83 (1998).

  Gomez's Second C.P.L. § 440 Motion

  On August 4, 1999, Gomez brought his second C.P.L. § 440.10 motion, arguing that his conviction should be vacated on three grounds. (Dkt. No. 8: Beder 5/16/02 Aff. Ex. J: Gomez 8/4/99 C.P.L. § 440 Motion.) First, he argued that he had received ineffective assistance of trial counsel, because his trial counsel: failed to investigate or pursue suppression of evidence at the suppression hearing; failed to inform him of "favorable" evidence; failed to call Gomez as a witness at the suppression hearing or advise him that he had the right to testify; and, improperly advised Gomez to plead guilty by overstating the likelihood of his conviction at trial. (Beder 5/16/02 Aff. Ex. J: Gomez 8/4/99 C.P.L. § 440 Aff. ¶ 1(a).) Second, Gomez argued that his guilty plea was procured by "duress, threat, misrepresentation or fraud on the part of the Court" and/or prosecutor, who, Gomez claimed, coerced Gomez to plead guilty through a false promise that he would not receive additional time for the cases pending in the Bronx. Id., ¶ 1(b).) Gomez further argued that Justice Leff threatened him with a heavier sentence if he did not plead guilty. (Id.) Third, Gomez argued that the indictment to which he pled guilty was unconstitutional, because the evidence presented to the Grand Jury was false and/or obtained through a violation of his Due Process rights, and was or should have been known to be false by the prosecutor. (Id., ¶ 1(c).)

  On August 6, 1999, the State opposed Gomez's motion, arguing that it was procedurally barred pursuant to C.P.L. § 440.10(2)(c), because Gomez could have raised on direct appeal all the issues he was bringing in the § 440 motion. (Beder 5/16/02 Aff. Ex. K: ADA Gieri Page 26 Aff. ¶ 9.) The State further argued that, even if Gomez's motion was not procedurally barred, his claims were all without merit. (Id., ¶¶ 10-23.)

  On October 1, 1999, Justice Leslie Crocker Snyder of the Supreme Court, New York County, denied Gomez's motion without a hearing "for the reasons set forth by the People in their response." (Beder 5/16/02 Aff. Ex. L: 10/1/99 Order.)

  On October 19, 1999, Gomez sought leave to appeal Justice Snyder's denial of his second C.P.L. § 440 motion. (Beder 5/16/02 Aff. Ex. M.) On January 18, 2000, the First Department denied leave to appeal. People v. Gomez, No. M-7671, 2000 N.Y. App. Div. LEXIS 755 (Ist Dep't Jan. 18, 2000). On March 16, 2000, the First Department denied Gomez's motion for reconsideration. People v. Gomez, No. M-771, 2000 N.Y. App. Div. LEXIS 3144 (1st Dep't Mar. 16, 2000).

  Gomez's Coram Nobis Petition to the First Department

  On April 7, 2000, Gomez brought a petition for a writ of error coram nobis in the First Department, alleging ineffective assistance of appellate counsel. (Dkt. No. 8: Beder 5/16/02 Aff. Ex. T: Gomez Coram Nobis Petition.) Gomez argued that his appellate counsel was ineffective because she failed to raise two arguments: first, that Gomez's guilty plea was not knowing and voluntary (id. at 26-28), and second, that trial counsel was ineffective for failing to properly explain the sentencing alternatives available under the indictment (id. at 28-29).

  The First Department denied Gomez's coram nobis petition without opinion on May 8, 2001. People v. Gomez, 283 A.D.2d 1035, 726 N.Y.S.2d 43 (1st Dep't 2001). Page 27 Reconsideration was denied on November 8, 2001. People v. Gomez, No. M-3383, 2001 N.Y. App. Div. LEXIS 10802 (1st Dep't Nov. 8, 2001).

 Gomez's Federal Habeas Petition

  On November 23, 2001, Gomez filed his federal habeas corpus petition, raising three grounds: First, he argues that he received ineffective assistance of trial counsel, citing his counsel's failure to investigate and present evidence at the suppression hearing, counsel's failure to call Gomez as a witness at that hearing or inform him of his right to testify, and counsel's failure to inform Gomez of "favorable" evidence that would have dissuaded Gomez from pleading guilty. (Dkt. No. 2: Pet. at 4-27.) Second, Gomez argues that his guilty plea was not knowing and voluntary because the trial court threatened him with a heavier sentence if he was convicted at trial, and because it was induced by a prosecutorial promise that was later broken. (Pet. at 28-33.) Third, Gomez argues that he received ineffective assistance of appellate counsel, due to her failure to argue that the trial court's threat of a heavier sentence, the broken prosecutorial promise, and the trial court's refusal to allow Gomez to withdraw his guilty plea made his guilty plea involuntary. (Pet. at 34-36.)

  On July 1, 2002, this Court denied the State's motion to dismiss Gomez's petition as time-barred and ordered the State to respond to its merits. Gomez v. Duncan, 02 Civ. 0846, 2002 WL 1424584 (S.D.N.Y. July 1, 2002) (Peck, M.J.), report & rec. adopted, Dkt. No. 22: 8/29/03 Order (S.D.N.Y. Aug. 29, 2003) (Preska, D.J.). Page 28

  ANALYSIS

 I. THE AEDPA REVIEW STANDARD*fn4 Page 29

  Before the Court can determine whether Gomez is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

  In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
  (2) . . . 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)(1)-(2)*fn5 Page 30

  The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519*fn6 Both, however, "restrict[ ] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn7 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200. Page 31

  As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn8

  In Williams, the Supreme Court explained that" [u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.*fn9 However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn10 Rather, the issue is "whether the state court's Page 32 application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn11 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the 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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S v. Stone. 221 F.3d 100, 111 (2d Cir. 2000)).*fn12

  Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn13 Page 33 Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

  Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312: accord Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference.").*fn14" By its terms, § 2254(d) requires such deference only with respect Page 34 to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn15 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

  In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). Page 35

  A. The Review Standards Applicable to Gomez's Habeas Claims

  Gomez's ineffective assistance of appellate counsel claim, raised in his state coram nobis petition, was denied by the First Department without opinion. (See page 26 above.) Thus, AEDPA deference applies. See, e.g., Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002); see also cases cited at pages 33-34 n.14 above.

  Determination of whether AEDPA deference applies to Gomez's remaining two habeas claims is not as straightforward. Gomez's federal habeas claims that the trial court coerced his guilty plea with the threat of a heavier sentence and that he received ineffective assistance of trial counsel were first raised in his second C.P.L. § 440 Motion. (Dkt. No. 8: Beder 5/16/02 Aff. Ex. J: Gomez 8/4/99 C.P.L. § 440 Aff. ¶ 1(a), (b).) The State's opposition argued that Gomez's motion was (1) procedurally barred pursuant to C.P.L. § 440.10(2)(c), because Gomez could have raised on direct appeal all the issues he was bringing in the § 440 motion. (Beder 5/16/02 Aff. Ex. K: ADA Gieri Aff. ¶ 9) and (2) even if not procedurally barred, his claims were all without merit (id., ¶¶ 10-23). Because the state court denied Gomez's motion "for the reasons set forth by the People in their response" (Beder 5/16/02 Aff. Ex. L: 10/1/99 Order), this Court cannot determine from the face of the state court's decision whether these claims were denied as procedurally barred or on their merits.

   The Second Circuit most recently summarized its holdings regarding ambiguous state rulings in Su v. Filion, 335 F.3d 119 (2d Cir. 2003):

   In Ryan v. Miller, 303 F.3d 231, 246 (2d Cir. 2002), we granted AEDPA deference to a state court that had used the language that a particular claim was "either unpreserved for appellate review or without merit." But we did this, and treated the state decision as on the merits, because the record showed that the petitioner had preserved the disputed claim at every stage, thereby indicating that the Appellate Division had not denied that claim because it was unpreserved. Id. at 246 n.6. Conversely, we have also held that where a state court's Page 36 ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits. Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). And we did so fully aware that we have also "explicitly h[e]ld that when a state court uses language such as `[t]he defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama, 235 F.3d at 810.

   In other words, our cases seem to contemplate situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required. But, to decide the instant case, we need not determine whether that indeed is so.

   335 F.3d at 126 n.3 (emphasis added); see also, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *25 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (discussing and attempting to resolve apparent conflict in Second Circuit decisions on review standard where state court denied claim for reasons given in prosecutor's brief, which raised merits and procedural arguments).

   Similar to Ryan, the Court concludes that Gomez's ineffective assistance claims were based on facts outside the record and could not have been raised on direct appeal but had to be raised in a C.P.L. § 440 motion; thus the claims were not procedurally barred, and so must have been rejected on the merits. See, e.g., Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *21 & n.34 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("[U]nder New York law, ineffective counsel claims involving matters outside the record . . . `must be pursued by way of a C.P.L. § 440 motion.'") (& cases cited therein). Therefore, AEDPA deference should apply. Conversely, the Court concludes that Gomez's coerced plea claim likely was deemed procedurally barred because it involved matters entirely in the plea and sentencing transcript and, therefore, could and should have been raised on direct appeal. Because the state court's ruling as to the coerced plea claim "does not make clear whether a claim was rejected for procedural or substantive reasons and . . . the record does not Page 37 otherwise preclude the possibility that the claim was denied on procedural grounds," the Court will not apply the deferential AEDPA review standard to this habeas claim, and thus review the claim de novo See Su v. Filion. 335 F.3d at 126 n.3.*fn16

  II. GOMEZ'S GUILTY PLEA WAS NOT COERCED

   Gomez argues that his guilty plea was not knowing and voluntary because the trial court threatened him with a heavier sentence if he was convicted at trial, and because it was induced by a prosecutorial promise as to his Bronx sentence that was later broken. (Pet. at 28-33.) The Court disagrees Constitutional due process requires that a guilty plea be voluntary, knowing and intelligent. E.g., United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 2455 (2002); Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609 (1998); Mabry. v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-47 (1984); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469 (1970); Boykin v. Alabama, 395 U.S. 238, 242-43 & n.5, 89 S.Ct. 1709, 1711-12 & n.5 (1969); Innes v. Dalsheim, 864 F.2d 974, 977 (2d Cir. 1988), cert. denied, 493 U.S. 89, 110 S.Ct. 50 (1989); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *10 (S.D.N.Y. May 16, 2000) (Peck, M.J.).*fn17 Page 38

   "The standard for determining the 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.'" Urena v. People of the State of New York, 160 F. Supp.2d 606, 610 (S.D.N.Y. 2001) (Weinstein, D.J.) (quoting Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992)). A plea is involuntary where the defendant did not have "`knowledge of the nature of the constitutional protections he will forgo by entering his plea.'" Marcelin v. Garvin, 1999 WL 977221 at *5 (quoting Matusiak v. Kelly, 786 F.2d at 543).*fn18 "A plea is `intelligent' and `voluntary' when a defendant had the advice of counsel, understood the consequences of his plea and the plea was not physically or mentally coerced." Heron v. People, 98 Civ. 7941, 1999 WL 1125059 at *5 (S.D.N.Y. Dec. 8, 1999); accord, e.g., Foreman v. Garvin, 2000 WL 631397 at *10; see, e.g., Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 224 (1988); France v. Strack, No. 99-CV-2510, 2001 WL 135744 at *3 (E.D.N.Y. Jan. 30, 2001) ("Pleading guilty to avoid a more severe sentence does not in itself qualify as involuntary because the plea can nonetheless be the `product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage.'"); Ramirez v. Page 39 Headley, 98 Civ. 2603, 1998 WL 788782 at *5 (S.D.N.Y. Nov. 10, 1998); Martuzas v. Reynolds, 983 F. Supp. 87, 94 (N.D.N.Y. 1997) (Pooler, D.J.); Phan v. McCoy, No. 94-CV-1596, 1997 WL 570690 at *6 (N.D.N.Y. Aug. 28, 1997) (Pooler, D.J.) ("The mere fact that a defendant pleaded guilty solely to limit his possible penalty does not make that plea involuntary."); United States v. Millan-Colon, 829 F. Supp. 620, 635 (S.D.N.Y. 1993), aff'd, 17 F.3d 14 (2d Cir. 1994). A "`plea of guilty entered by one fully aware of the direct consequences' of the plea is voluntary in a constitutional sense `unless induced by threats, misrepresentations, or perhaps by promises that are by their nature improper.'" Bousley v. United States, 523 U.S. at 619, 118 S.Ct. at 1609 (ellipses omitted) (quoting Brady v. United States, 397 U.S. at 744, 90 S.Ct. at 1472)).*fn19

   "`It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.'" Bousley v. United States, 523 U.S. at 621, 118 S.Ct. at 1610 (quoting Mabry v. Johnson, 467 U.S. at 508, 104 S.Ct. at 2547-47); accord, e.g., Foreman v. Garvin, 2000 WL 631397 at *11; Marcelin v. Garvin1999 WL 977221 at *6; see also, e.g., Ramirez v. Headley, 1998 WL 788782 at *5.

   "As `the Supreme Court has noted, statements made at plea allocutions "carry a strong presumption of verity" and "constitute a formidable barrier in any subsequent collateral proceeding."' "Marcelin v. Garvin, 1999 WL 977221 at *7 (quoting Singh v. Kuhlmann, 1995 WL 870113 at *7 (quoting Blackledge v. Allison. 431 U.S. 63.74.97 So. Ct. 1621.1629 (1977))); accord, e.g., Foreman v. Garvin, 2000 WL 631397 at * 11; see, e.g., Adames v. United States, 171 F.3d 728, Page 40 732-33 (2d Cir. 1999) (statements at plea allocution "`carry a strong presumption of verity' . . . and are generally treated as conclusive in the face of the defendant's later attempt to contradict them," citing cases); United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) ("A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea."); United States v. Gonzalez, 970 F.2d 1095, 1100-01 (2d Cir. 1992); Panuccio v. Kelly, 927 F.2d 106, 110-11 (2d Cir. 1991).*fn20

   This Court may credit Gomez's statements at the plea allocution — that his guilty plea was voluntary and not the result of any threats or promises (P. 9-12, quoted at pages 12-15 above)

   — over his later allegations of coercion. See, e.g., Foreman v. Garvin, 2000 WL 631397 at *12; Marcelin v. Garvin, 1999 WL 977221 at *7: see also, e.g., United States v. Torres, 129 F.3d at 715; United States v. Gonzalez, 970 F.2d at 1100-01; Urena v. People of the State of New York, 160 F. Supp.2d at 611 (Petitioner "stated on the record that he knew that he was giving up the right to trial and the safeguards that accompany that right, that he was not threatened or forced to plead guilty, and that he sold over two ounces of cocaine to an undercover officer. These statements undermine petitioner's claim that his plea was involuntary or that he is innocent of the crime to which he pled guilty.") (citing cases); France v. Strack, 2001 WL 135744 at *4 ("Where a petitioner's claims of mistake and coercion find no support in the record and are contradicted by the statements Page 41 made under oath at the plea proceeding, they do not entitle him to relief."); United States v. Hoffenberg, 169 F.R.D. 267, 275 (S.D.N.Y. 1996), aff'd, Nos. 97-1159, 97-1166, 164 F.3d 620 (table), 1998 WL 695933 (2d Cir. Sept. 22, 1998); Singh v. Kuhlmann, 1995 WL 870113 at *7; United States v. Caesar, 1995 WL 312443 at *4 ("This Court is justified in crediting [defendants'] sworn statements at allocution over their later self-serving allegations of coercion."); United States v. Collado-Gomez, 674 F. Supp. 426, 428 (E.D.N.Y. 1987).

   A. Gomez's Guilty Plea Was Not Coerced By The "Threat of a Heavier Sentence"

   Gomez alleges that "[b]efore entering the plea . . . the court intimidated and explicitly threatened to give petitioner 30 years to life, two consecutive sentences of 15 years to life, if petitioner rejected the plea offer of two concurrent sentences of 15 years to life and proceeded to trial and got convicted by the jury." (Pet. at 28.)

   Justice Leff essentially told Gomez that if he sentenced his co-defendant Pena to two consecutive terms of 15 years to life for the attempted murder counts,*fn21 he intended to give Gomez the same if he was convicted after trial:

   THE COURT: I'm not going to sentence Pena for another three weeks, but he was convicted of two counts of attempted murder of a police officer; not one police officer, but two police officers. . . . Page 42 My own feelings is that if Pena's sentence is a consecutive sentence, 15 to life on each of them that that's not too much of a sentence to give Pena. And if you're convicted. I intend to give you the same. Why you should get less, I don't know. But that's what's going to happen. So you're entitled to a trial. . . . (P. 2-3.) Justice Leff reiterated his intention at sentencing, when Gomez moved to withdraw his plea:

  

THE COURT: I'll tell him right now. I haven't sentenced Pena yet. Pena went to trial. He's not getting the minimum.
Tell him that right now so it will be no surprise. So that if gets tried, I don't care what they do [in the Bronx], twenty to life will be less than what he's going to get from me.
He doesn't want it, that's fine. I've dealt with wise guys. I look at this half-baked jerk sitting here. He's going to go to state prison. As far as I can see, he's never coming out. And he's telling me what he wants to do.
He either takes the sentence we agreed upon or he has his plea back and he'll never see the light of day. He's going to die in the state prison. I'll tell him that right now.
(S. 4-6.)

   As a preliminary matter, the Court notes that under New York law, "state court judges are not prohibited from engaging in plea negotiations." Williams v. Lacy, 96 Civ. 0868, 1997 WL 40922 at *2 (S.D.N.Y. Jan. 31, 1997), aff'd, No. 97-2572, 152 F.3d 922 (table), 1998 WL 352965 (2d Cir. May 7, 1998); accord McMahon v. Hodges, 225 F. Supp.2d 357, 369 (S.D.N.Y. 2002) ("In New York, state court judges do participate in plea discussions."); Schaffner v. Greco, 458 F. Supp. 202, 206 (S.D.N.Y. 1978) ("New York law permits participation by the judge in plea negotiations . . . ") (collecting 2d Cir. cases); see also Thomas v. Kuhlman, No. 99-CV-3737, 2003 Page 43 WL 21294065 at *7 (E.D.N.Y. Apr. 8, 2003) (Plea bargaining systems that permit judicial involvement are not constitutionally impermissible.). Thus, Justice Leff's participation in the plea discussions is not an issue; the issue is whether his statements at the plea hearing improperly coerced Gomez into pleading guilty.

   Every defendant involved in plea negotiations suffers the threat of conviction (often of greater charges or with a greater penalty), and must face such "difficult choices." E.g., Bordenkircher v. Haves, 434 U.S. 357, 364, 98 S.Ct. 663, 668 (1978) ("While confronting a defendant with the risk of more severe punishment clearly may have a `discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable' — and permissible — `attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'") (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985 (1973) (possibility that if defendant "exercises his right to plead innocent and to demand a jury trial, he will receive a higher sentence than would have followed a waiver of those rights . . . Although every such circumstance has a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices was upheld [by the Supreme Court] as an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.")); Brady v. United States, 397 U.S. 742, 751-52, 90 S.Ct. 1463, 1470-71 (1970) (guilty plea constitutionally valid even though "motivated by defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged"); United States v. Cruz, 156 F.3d 366, 374 (2d Cir. 1998); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *12 (S.D.N.Y. May 16, 2000) (Peck, Page 44 M.J.); Carter v. Scully, 745 F. Supp. 854, 858 (E.D.N.Y. 1990); United States v. Rombom, 421 F. Supp. 1295, 1299-300 (S.D.N.Y. 1976); see also, e.g., Ovague v. Artuz, 274 F. Supp.2d 251, 258 (E.D.N.Y. 2003) (Weinstein, D.J.) (Guilty plea not coerced where petitioner alleged that in an off-the-record conversation, the trial court told petitioner that if he was convicted after trial "he would spend the rest of his life in prison because he would be facing a likely 65 years to life sentence. Assuming the conversation took place, there is no allegation that the trial court did not believe that its statements were accurate or that the court was motivated by anything but a desire to fully inform petitioner of the consequences of going to trial."); Phan v. McCoy, No. 94-CV-1596, 1997 WL 570690 at *6 (N.D.N.Y. Aug. 28, 1997) (Pooler, D.J.) (Where petitioner claimed his guilty plea "was involuntary because withdrawal of that plea would have required him to face the possibility of conviction and sentencing for as many as one hundred and thirty offenses," claim rejected because the only coercion petitioner alleged was from "the inherent risks of going to trial."); Williams v. Lacy, 1997 WL 40922 at *2 ("In telling [petitioner] that he could be sentenced as a persistent felony offender if convicted after a trial [rather than as a second violent felony offender under the plea agreement], [the trial judge] was not vindictively threatening petitioner with an enhanced penalty, but merely informing him of one of the benefits of the proposed plea bargain.").

   Presented with judicial comments similar to those here, a habeas court in McMahon v. Hodges, 225 F. Supp.2d 357 (S.D.N.Y. 2002), found that the comments were "exceedingly blunt" but "not inappropriate in the context in which they were made, i.e., the plea bargaining process." Id. at 369. In McMahon. petitioner alleged, inter alia, that his due process rights were violated because his trial judge was biased and prejudiced against him. As here, that judge had presided over the co-defendant's Page 45 trial, which had been severed for trial. Id. at 359. "On the eve of trial, at a conference with the parties, the judge tried to negotiate a plea, . . . [and] alluded to the `powerful' evidence he had seen at [co-defendant's] trial that would be admissible against [petitioner] at his trial, and suggested that [petitioner] plead guilty to avoid consecutive sentences for multiple crimes." Id. The habeas court found that:

[t]he trial judge's comments undoubtedly were designed to induce [petitioner] to take a plea, but the state court system permits a judge to participate in such negotiations. . . . The trial judge was familiar with the evidence; he gave [petitioner] and his lawyer an appraisal of their case, a prediction on the likely outcome of a trial, and an explanation of the risks attendant to going to trial as opposed to pleading guilty. [Petitioner] did not like what he heard, but the trial judge, as an experienced, impartial arbiter, was merely giving his assessment to help the parties evaluate their options, as the state court system contemplates. While the trial judge's statements placed significant pressure on [petitioner] to plead guilty, as a matter of constitutional law, I conclude that [petitioner's] due process rights were not violated.
Id. at 369.*fn22

   Judge Weinstein faced similar facts to those here, although in the context of a claim that the state court had punished petitioner for moving to withdraw his guilty plea and proceeding to trial. Smith v. Scully, Nos. 02-CV-6329, 02-MISC-0066, 2003 WL 22952848 (E.D.N.Y. Oct. 16, 2003) (Weinstein, D.J.). When petitioner moved to withdraw a portion of his guilty plea, "[t]he trial court, obviously frustrated and under the impression that petitioner was `playing games,' stated to petitioner, `I'm going to tell you now, if you get convicted by a jury, you're going to get the maximum sentence. . . . Did you listen to me? You've been playing games with the Court." Id. at Page 46 *5. Judge Weinstein noted that if "[t]aken out of context, this comment could be understood to be coercive and improper, leaving the impression that petitioner would be punished for proceeding to trial." Id. The trial court further commented that it had just reviewed petitioner's probation report, which characterized petitioner as "a professional criminal," and his record, which "takes your breath away." Id. In light of the trial court's comments about petitioner's extensive record, Judge Weinstein found that "the trial court's remarks to petitioner about the likelihood of receiving a `maximum sentence' have more of a flavor of notice than threat. . . . Although the `maximum sentence' statement could have been prudently worded, petitioner was not denied due process or a fair trial by the court's actions or statements." Id.

   Because the Court must judge the voluntariness of Gomez's plea by federal constitutional standards, it need not determine whether Justice Leff's comments would render the plea involuntary as a matter of New York state law, which holds that "`a court wrongly burdens the defendant's exercise of his right to trial when it indicates he will receive the maximum sentence, or maximum consecutive sentences, after trial, but a significantly lighter sentence after a plea.'" People v. Stevens, 298 A.D.2d 267, 268, 748 N.Y.S.2d 589, 590-91 (1st Dep't 2002) (quoting People v. Min, 249 A.D.2d 130, 132, 671 N.Y.S.2d 480, 481 (1st Dep't 1998)), appeal dismissed, 99 N.Y.2d 585, 755 N.Y.S.2d 721 (2003); see also, e.g., People v. Christian, 139 A.D.2d 896, 896, 527 N.Y.S.2d 1020, 1020 (4th Dep't) ("A defendant may not be induced to plead guilty by the threat of a heavier sentence if he decides to proceed to trial. . . . `To capitulate and enter a plea under a threat of an `or else' can hardly be regarded as the result of the voluntary bargaining process between the defendant and the People sanctioned by propriety and practice.'"), appeal denied, 71 N.Y.2d 1024, Page 47 530 N.Y.S.2d 559 (1988). New York courts distinguish between a trial judge "impart[ing] a reasonable assessment of the sentencing prospects in the event of a conviction," which is permissible,*fn23 and "unequivocally stat[ing] that upon a conviction, the maximum sentence would Page 48 be imposed," which is coercive.*fn24 People v. Stevens, 298 A.D.2d at 268, 748 N.Y.S.2d at 590.

   Here, Justice Leff was familiar with the evidence against Gomez from the suppression hearing and from the co-defendant's trial. Justice Leff also felt (with good reason based on the transcript) that Gomez was being a wise guy. Justice Leff's comments perhaps could have been better expressed, but in context they were not improperly coercive and did not violate Gomez's federal constitutional rights.

   Gomez's claim that the trial court's comments coerced his guilty plea should be denied. Page 49

   B. The State Court Conducted a Proper Inquiry to Determine the Voluntariness of Gomez's Guilty Plea

   Gomez also alleges that "[n]otwithstanding the fact that petitioner had twice denied that he had shot at the police officers, and thus denied that he had committed the crime to which he pleaded, the court failed to make any appropriate inquiry of petitioner to ensure that his plea was knowingly, intelligently and voluntarily entered." (Pet. at 30.) Contrary to Gomez's assertions, the trial court conducted a proper allocution:

THE COURT: [W]hen you plead guilty, you are giving up your right to pick a jury of 12 citizens who will sit over there in those seats. They will listen to the witnesses against you. You can help choose those jurors. After the jury is selected, you have a right to hear the witnesses who will testify against you. There was some 15 or 18 witnesses who testified at George Pena's trial, police officers, among others, Ah[ea]rn and Torres, who were the two police officers who were the victims in the second and third counts [of the indictment]. You will hear them.
You would have a right to have your lawyer question those witnesses. You would have a right to testify yourself if you wanted to or if you had any witnesses that you wanted to call, you could call those witnesses. You understand that?
MR. GOMEZ: Yes.
THE COURT: You understand that after the case is heard, it is submitted to the jury. And the jury decides whether you're guilty of these charges against you.
If you plead guilty, there is not going to be a jury that decides this case. And by pleading guilty, you are admitting to certain facts. You're admitting as to the first count that on February 22, 1993 under circumstances evincing a depraved indifference to human life, you recklessly engaged in conduct that created a grave risk of death to another person by shooting a loaded firearm to [sic] a crowded restaurant. That's at 1263 St. Nicholas Avenue.
   Did you do that? Page 50

   MR. GOMEZ: Yes

  

THE COURT: The second count charges an attempt to commit the crime of murder in the first degree, and so does the third count. When you plead guilty, you're admitting to those counts; that you're over 18 years of age; that on February 22. of 1993 with intent to cause the death of Police Officer Patrick Ahearn and a Police Officer Gonzalo Torres, you attempted to cause their death and they were police officers as defined in law and at the time that you fired your weapon at them. you reasonable [sic] should have known that they were police officers and that they were in the course of performing their official duties.
Specifically, what they were doing was attempting to intersect [sic: intercept] the car that you were in and Pena was in. It was an Oldsmobile that you were driving away from the scene of the St. Nicholas Avenue restaurant and away from the Shell station on 181 Street.
Did you do that? Did you fire a gun at those police officers?
MR. GOMEZ: Do I have to admit it?
THE COURT: You certainly do. And if you don't, the jury will decide.
MR. GOMEZ: Yes. I did it.
THE COURT: I'm sorry.
MR. GOMEZ: Do I have to admit it even if I didn't do it?
THE COURT: If you didn't do it. let the jury hear the witnesses. If you're claiming you didn't do it. go to trial.
MR. GOMEZ: I'm only asking a question to know.
THE COURT: The question I'm asking you is whether or not -1 just read what the charge was, attempting to cause the death of Ah[ea]rn and Torres. And I'm asking you whether you fired a gun knowing that they were police officers.
   MR. GOMEZ: Yes. Page 51

  

THE COURT: No question about that? Is there anything you don't understand that you want to have explained to you?
MR. GOMEZ: No.
(P. 9-12, emphasis added.)

   The Supreme Court in North Carolina v. Alford, 400 U.S. 25. 91 S.Ct. 160 (1970), held that:

a guilty plea may be valid despite the defendant's protestations of innocence if there is strong evidence of guilt that "substantially negate[s] [the] claim of innocence and . . . further provide[s] a means by which the judge could test whether the plea was being intelligently entered," and held that a defendant's protestation of innocence does not invalidate a guilty plea where "a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt."
Joyner v. Vacco, No. 00-2200, 23 Fed. Appx. 25, 27-28, 2001 WL 1168326 at *2 (2d Cir. Sept. 21, 2001) (quoting North Carolina v. Alford, 400 U.S. at 38, 91 S.Ct. at 167), cert. denied, 535 U.S. 1101, 1228. Ct. 2304(2002).

   Justice Leff properly determined that Gomez's plea was voluntary despite his equivocal statements of innocence. Joyner v. Vacco, 2001 WL 1168326 at *4 ("From the trial record, it is clear that the state court considered the strength of the prosecution's case and found that it substantially negated [petitioner's] equivocal claims of innocence."). Indeed, Justice Leff knew what the evidence against Gomez would be, from his trial of Gomez's co-defendant, and knew the evidence was strong.

   As Gomez concedes, Justice Leff cautioned Gomez that if he was claiming that he did not commit the crime, he should go to trial to allow the jury to decide. (Pet. at 29.) Gomez also concedes that "[w]hen petitioner admitted that he had been at the scene of the police shooting but Page 52 denied being the shooter, the court told petitioner that he could `tell that to the jury' and if `they believe you[r] story, you walk out of here and worry about the Bronx case.'" (Pet. at 29.) Gomez admits that during the plea allocution "[t]he Court advised petitioner to go to trial and let the jury hear the witnesses if he didn't commit the crime or was claiming that he didn't do it." (Pet. at 30; see also P. 11.)*fn25 Justice Leff asked again if Gomez fired a gun at the officers knowing they were officers, Gomez responded "yes," and Justice Leff asked if there was any question about that or anything Gomez wanted explained, and Gomez said "no." (P. 12, quoted at page 14 above.) Thus, following Justice Leff's advice that he should go to trial if he wanted to maintain his claim of innocence, Gomez nevertheless freely allocuted to shooting at the police officers. (See page 14 above.)

   Gomez's habeas claim that the court failed to conduct a proper inquiry into his guilt or innocence should be denied.

   C. Gomez's Guilty Plea Was Not Coerced by a Broken Prosecutorial Promise Since the Promise as to Bronx Sentencing Was Complied With

   Gomez alleges that his guilty plea was coerced by a broken prosecutorial promise as to sentencing in unrelated Bronx cases. (Pet. at 30-33.)

   The Second Circuit "`review[s] interpretations of plea agreements . . . in accordance with principles of contract law.'" United States v. Palladino, 347 F.3d 29, 32 (2d Cir. 2003) (quoting United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002)); see also. e.g., Guzman v. Couture, 99 Civ. 11316, 2003 WL 165746 at *16 (S.D.N.Y. Jan. 22, 2003) ("`Principles of contract law and special Page 53 due process concerns for fairness govern our interpretation of plea agreements.'") (quoting Spence v. Superintendent. Great Meadow Corr. Facility, 219 F.3d 162, 167-68 (2d Cir. 2000); White v. Keane, 00 Civ. 6202, 2001 WL 699053 at *3 (S.D.N.Y. June 21, 2001) ("Plea agreements are to be interpreted according to the principles of contract law."). "A sentenced imposed pursuant to a plea agreement `must follow the reasonable understandings and expectations of the defendant with respect to the bargained-for sentence.'" United States v. Palladino. 347 F.3dat 33. Furthermore, "`[b]ecause the government ordinarily has certain awesome advantages in bargaining power, any ambiguities in the agreement must be resolved in favor of the defendant.'" United States v. Palladino, 347 F.3d at 33 (quoting United States v. Riera, 298 F.3d at 133); see also, e.g., Guzman v. Couture, 2003 WL 165746 at *16 ("`In construing the promises made in return for the plea, a court must look to what the parties reasonably understood the terms to mean, and resolve any ambiguity in the agreement in favor of the defendant.'") (citing cases). Nevertheless, the Second Circuit has cautioned that in the habeas context, the courts must also apply the deferential AEDPA review standard to claims of breaches of a plea agreement. See Mask v. McGinnis, 252 F.3d 85, 89-91 & n.2 (2d Cir. 2001).

   "The first step in deciding whether petitioner's plea agreement has been violated is to determine what the terms of the agreement are." Guzman v. Couture, 2003 WL 165746 at *16 (citing cases). During Gomez's plea proceeding, Justice Leff, defense counsel and the prosecutor stated the plea's terms on the record:

   THE COURT: Did Mr. Traub tell you that the sentence that you're going to get is 15 years to life on the second count and concurrent which means served at the same time with the third count, and you're going to get a sentence on the first count of two and a third to seven, that's also concurrent? Page 54

   MR. GOMEZ: Yes.

  

THE COURT: Except for that, did anybody promise you anything to make you plead guilty?
MR. GOMEZ: No.
THE COURT: You want to take that plea now?
MR. GOMEZ: Yes.
MR. TRAUB: Your Honor, there is some other promises that the People will put on the record as part of the plea agreement that the Court may not be aware of, that Mr. Gomez has two pending indictments in the Bronx. The People have spoken to the Assistant [District Attorney] in the Bronx and they are prepared to offer concurrent time on the two cases that's [sic] pending in the Bronx.
Mr. Gomez is also a suspect in a robbery out of the 34th Precinct in Manhattan. I have been contacted by the detectives in reference to that case. The People will cover that as well, and he will not be charged in reference to that case. The People have also indicated that this plea out of New York County will cover all known and unknown cases that might arise against Mr. Gomez as long as someone was not seriously hurt as defined under the Penal Law, assault in the first degree. Those are the additional promises the People have made.
THE COURT: You want to respond?
[A.D.A.] BOSCO: Yes, your Honor. What Mr. Traub states is true. I want to state, Mr. Lima(ph), the ADA in the Bronx who is handling the defendant's two Bronx robbery indictments, he and I have agreed that if the defendant decided to plead guilty to those cases in the Bronx, the sentences will run concurrent to this sentence.
As to the known and unknown robberies, I can only say that we will cover known an[d] unknown robberies where there wasn't serious injuries in Manhattan. I personally cannot speak for what may or may not happen in the Bronx. I cant do that. I don't have the power to do that. But other than that, that's the agreement that is being entered.
(P. 12-14, emphasis added.) Page 55

   Gomez's petition states that "[a]t the time petitioner's plea was entered, several promises were made to petitioner in exchange for his guilty plea," specifically:

The court promised to give petitioner 15 years to life. (P. 3). The State District Attorney promised to have this sentence run concurrent with two Bronx robbery cases that were pending against petitioner at that time (P. 13, 14). The prosecutor stated that he and the Assistan[t] District Attorney who was handling petitioner's Bronx cases had agreed that if petitioner decided to ple[ad] guilty to the Bronx cases, the sentence will run concurrent with this sentence. (P. 14). The District Attorney also promised that petitioner's plea in this case would cover all known and unknown Robberies cases where there wasn't any serious injuries in Manhattan. (P. 14).
(Pet. at 30.)

   Gomez also states that when he appeared in court in the Bronx after his Manhattan plea "he informed the court that the New York County District Attorney had promised him that if he pleaded guilty in the New York case, any sentence imposed in the Bronx case would not be more than 15 years and would run concurrent with the New York sentence." (Pet. at 31.) Gomez "further informed the Bronx court that if the court and the prosecutor were going to honor that plea agreement, he wishes to plea guilty, as long as the sentence didn't exceed the 15 years sentence imposed on him in New York and runs concurrent with the New York sentence." (Id.) In response, the Bronx "prosecutor stated that he had not made such agreement with the New York District Attorney, that he had agreed with the New York prosecutor that if petitioner decided to plea[d] guilty to these cases, the sentence would run concurrent, but not that there wouldn't be any additional time imposed in th[ese] cases." (Id.) The Bronx District Attorney offered petitioner twenty to forty years to run concurrently with the New York sentence, but Gomez "rejected this offer, because it added 5 years to his New York sentence, thereby breaching the New York plea agreement." (Id.) Page 56

   The Court finds nothing in the New York plea transcript to support Gomez's allegation that he was promised that "any sentence in the Bronx cases would not be more than 15 years." (Pet. at 31.) At no time did any party — Gomez, his counsel, the prosecutor, or Justice Leff — state that the Bronx District Attorney promised that his Bronx sentence would not exceed fifteen years or would not exceed the Manhattan sentence. Neither counsel nor Gomez (who clearly was willing to speak out during the plea allocution) referred to a fifteen-year maximum sentence in the Bronx, even when asked by Justice Leff if any other promises had been made to Gomez. (P. 12.) In fact, Gomez does not even contend now that he was promised a maximum term of fifteen years in the Bronx at the time of his Manhattan plea.*fn26 The Manhattan plea minutes clearly show that the Page 57 explicit promise was that the Bronx sentence would be "concurrent," and only if Gomez also pled guilty in the Bronx. (P. 12-14.)

   Even if Gomez subjectively misunderstood "concurrent sentence" in the Bronx to mean "lasting for the same amount of time," no habeas relief is warranted. "Since an objective reading of the plea bargain was susceptible to but one interpretation, the defendant's misunderstanding of the agreement or disappointment with his sentence does not suffice as a reason for vacating his guilty plea." People v. Davis. 161 A.D.2d 787, 787-88, 556 N.Y.S.2d 664, 664-65 (2d Dep't) ("A review of the plea minutes discloses that no promise was made by the court that the defendant's sentence would run concurrently with any discharged parole time. Any off-the-record promise of a concurrent sentence is belied by the defendant's acknowledgment during the plea allocution that no other promises had been made to induce his guilty plea. No inquiry was ever made by the defendant or his attorney as to whether the sentence would run consecutively with the undischarged sentence."), appeal denied, 76 N.Y.2d 939, 563 N.Y.S.2d 68 (1990); see also, e.g., Mask v. McGinnis, 252 F.3d at 90 ("[T]he words of the plea agreement control, and their meaning is measured by objective, not subjective, standards.") (internal quotations omitted); Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *6-7 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.) (Petitioner's "contention that the court `reneged' on a sentencing promise is contradicted by the record of the guilty plea proceedings" where the Judge advised petitioner of the plea agreement's terms and ascertained that no additional promises had been made. "[T]his Court is justified in crediting [petitioner's] Page 58 statements at his plea allocution over his later self-serving allegations of coercion and violation of a plea deal.").

   Here, Gomez was promised a concurrent sentence in the Bronx if he also pled guilty there. That promise was fulfilled with the offer in the Bronx of a concurrent sentence, albeit with a minimum of twenty years. Gomez rejected that offer and went to trial in the Bronx; his Manhattan plea agreement to a concurrent sentence in the Bronx was conditional on Gomez pleading guilty in the Bronx, which he did not. Thus, there was no violation of the New York plea agreement.

  III. GOMEZ'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DENIED

   A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel*fn27 Page 59

   1. Strickland and Trial Counsel

   In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.*fn28

   Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Page 60

  Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).*fn29

   Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.*fn30

   The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry Page 61 should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

   Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the `totality of the evidence before the judge or jury."' Lindstadt v. Keane, 239 F.3d 191.199 (2dCir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

   The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.*fn31

   In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.*fn32 Page 62

   As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.

   2. Strickland Applies to Ineffective Assistance Claims Arising Out of A Guilty Plea

   The Strickland standard also applies to ineffective assistance claims arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370 (1985); United States v. Thomas, No. 01-1070, 74 Fed. Appx. 113, 115, 2003 WL 22055169 at *2 (2d Cir. Sept. 4, 2003); United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2003): Moore v. United States, 00 Civ. 4560, 98 Cr. 833, 2001 WL 253432*11 & n.11 (S.D.N.Y.Mar. 15, 2001) (Peck, M.J.)(& cases cited therein); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *8 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (citing cases); People v. McDonald, 1 N.Y.3d 109, 2003 N.Y. Slip Op. 18777 at *4, 2003 WL 22764237 (N.Y. Nov. 24, 2003). "In the context of a guilty plea, the prejudice requirement `focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Moore v. United States, 2001 WL 253432 at *11 (quoting Hill v. Page 63 Lockhart, 474 U.S. at 59, 106 S.Ct. at 370); People v. McDonald, 2003 N.Y. Slip Op. 18777 at *4 (same).

   3. Strickland and Appellate Counsel*fn33

   The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 So. Ct. 746, 764 (2000).*fn34 A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively Page 64 unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 2002 WL 1173564 at *18 n.30 (discussing the issue of whether a federal or state standard should apply).

   Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).*fn35 ` Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72.*fn36 `Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

   4. Strickland and the AEDPA Review Standard

   For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant `clearly established Federal law, as determined by the Supreme Court of the United States.'" Page 65

   Aparicio v. Artuz, 269 F.3d at 95 & n.8 (quoting 28 U.S.C. § 2254(d)(1)).*fn37 "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also `clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n.8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852: see also Yarborough v. Gentry, 124 S.Ct. 1, 4(2003).

   B. Gomez's Claims of Ineffective Trial Counsel Should Be Denied

   1. Gomez's Claim That Counsel Failed to Investigate, Call Witnesses, and Present Evidence at the Suppression Hearing

   Gomez alleges that his trial counsel "failed to investigate the circumstances surrounding petitioner's statements to the police and under which petitioner's line-up identification became [sic] about, to call any witness or gather or present any evidence at the hearing to show that petitioner's statements were coerced by police brutality, and that the line-up identification procedure employed by the police was impermissibly suggestive." (Pet. at 24.)

   Gomez's claims that trial counsel was ineffective for failing to investigate are conclusory and give no indication as to what exculpatory evidence a proper investigation would have Page 66 revealed, or how such evidence would have benefitted Gomez's case.*fn38 Since "[s]uch speculation satisfies neither Strickland's deficient performance nor prejudice prongs," Gomez's claim must be denied. McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *25 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *33 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (& cases cited therein); see, e.g., Vasquez v. United States, 96 Civ. 2104, 91 Cr. 153, 1997 WL 148812 at *2 (S.D.N.Y. Mar. 28, 1997) (§ 2225 case; "[Petitioner's] allegations with regard to alleged counsel errors in pre-trial preparation and investigation and trial advocacy are Vague, conclusory, and unsupported by citation to the record, any affidavit, or any other source,' and, accordingly, . . . `[t]he vague and unsubstantiated nature of the claims' defeated petitioner's claim of ineffective assistance of counsel. . . ."); Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a postconviction review hearing, the petitioner ordinarily should explain their absence and `demonstrate, with some precision, the content of the testimony they would have given at trial.'") (citations omitted); Lamberti v. United States, 95 Civ. 1557, 1998 WL 118172 at *2 (S.D.N.Y. Mar. 13, 1998) (Leval, C.J.) ("The allegations of failure to investigate or to communicate are vague and conclusory. They do not identify counsel's asserted failings with any specificity or Page 67 show how any different conduct might have changed the result"), aff'd, No. 98-2875, 201 F.3d 430 (table), 1999 WL 1212654 (2d Cir. Dec. 10, 1999); Madarikan v. United States, No. 95 CV 2052, 1997 WL 597085 at *1 (E.D.N.Y. Sept. 24, 1997) (denying ineffective assistance claim based on failure to investigate or interview witnesses; petitioner's "allegations of ineffective assistance are conclusory, and give no indication as to what exculpatory evidence may have been revealed by an investigation"); Matura v. United States, 875 F. Supp. 235, 238 (S.D.N.Y. 1995) ("Petitioner has not stated why his counsel's investigation was inadequate, what his counsel should have investigated, what this investigation would have produced, or how the fruits of this investigation would have aided petitioner's case.").*fn39

   Similarly, Gomez's claim that trial counsel was ineffective for not calling any witnesses should be denied. Gomez fails to name any witness that counsel should have called, much Page 68 less whether they would have been willing to testify, what their testimony would have been, or how their testimony would have affected the outcome of the suppression hearing.

   Courts in this Circuit have made clear that "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357 (1987); accord, e.g., Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *25 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *37 (S.D.N.Y. June 17, 2003) (Peck, M.J.); see, e.g., United States v. DeJesus, No. 01-1479, 57 Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003) ("A trial counsel's `decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.' United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999). Because of this inherently tactical nature, the decision not to call a particular witness generally should not be disturbed." Counsel's decision not to call a character witness was grounded in strategy and not deficient, "even though [defendant] requested that she do so and provided her with contact information for potential witnesses."), cert. denied, 123 S.Ct. 2110 (2003).*fn40 Page 69

   More importantly, "[g]enerally, the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation. . . . [T]he habeas court `will not second-guess trial strategy simply because the chosen strategy has failed . . . especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial." Jones v. Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995) (citations omitted), aff'd, No. 95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30, 1995); accord, e.g., Montalvo v. Annetts, 2003 WL 22962504 at *26 (& cases cited therein); Skinner v. Duncan, 2003 WL 21386032 at *37; see, e.g., United States v. Vegas, 27 F.3d 773, 777-78 (2d Cir.), cert. denied, 513 U.S. 911, 115 S.Ct. 284 (1994).

   Moreover, a petitioner may not merely allege that certain witnesses might have supplied relevant testimony, but must state exactly what testimony they would have supplied and how such testimony would have changed the result. See, e.g., Lawrence v. Armontrout, 900 F.2d at 130 ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial."); Montalvo v. Annetts 2003 WL22962504 at *26; Skinner v. Duncan, 2003 WL 21386032 at *38; Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *33 & n.59 (S.D.N.Y. Dec. 20, 2002) (Peck, M. J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *24 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Greenidge v. United States, No. 01 CV 4143, 2002 WL 720677 at *2 (E.D.N.Y. Mar. 27, 2002) (§ 2255 case; petitioner's ineffective assistance of counsel claim has no merit where petitioner "nowhere specifies how the Page 70 testimony of those witnesses [counsel purportedly failed to call] would have been helpful to his defense.").*fn41

   As this Court has previously held, "`[t]he decision of whether to call or bypass a particular witness is a question of trial strategy which courts will practically never second-guess. . . . In the instant case, the testimony of any of these witnesses may have as likely exposed inconsistencies and weaknesses in defendant's case as have lent support to Petitioner's defense. Additionally, a defendant's conclusory allegations about the testimony of uncalled witnesses are insufficient to demonstrate prejudice.'" Cromwell v. Keane, 2002 WL 929536 at *24 (quoting Ozuru v. United States, No. 95 CV 2241, 1997 WL 124212 at *4 (E.D.N.Y. Mar. 11, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998), cert. denied, 525 U.S. 1083, 119 S.Ct. 828 (1999)); accord, e.g., Montalvo v. Annetts, 2003 WL 22962504 at *27; Skinner v. Duncan, 2003 WL 21386032 at *40.

   As for trial counsel's alleged failure to "gather or present any evidence at the hearing" (Pet. at 24), Gomez does not even suggest what evidence counsel could or should have presented or how that evidence might have affected the hearing's outcome. As such, Gomez's assertions about Page 71 counsel's shortcomings are far too conclusory and vague to support a claim for habeas corpus relief. See, e.g., Montalvo v. Annetts, 2003 WL 22962504 at *24 n.39; McPherson v. Greiner, 2003 WL 22405449 at *25 & n.56 (& cases cited therein); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *36 & n.91 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report & rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.).

   Gomez's first ineffective assistance of trial counsel claim should be denied.

   2. Gomez's Claim That Counsel Failed to Inform Gomez of "Favorable" Evidence

   Gomez claims counsel was ineffective because he failed to "inform petitioner of available favorable evidence which had petitioner known of he would have not pleaded guilty and would have proceeded to trial." (Pet. at 4; id. at 27.) According to Gomez, "counsel told petitioner that there [were] no witnesses that would testify on his behalf at trial, and failed to inform him of what kind of evidence was produced at Pena's trial that would work against or in favor of petitioner's case." (Pet. at 27.) Gomez's belief that counsel withheld "favorable" evidence appears to be based solely on a conversation with "his co-defendant George Pena in Downstate Correctional Facility mess hall [who] informed petitioner that all the civilian witnesses that testified at his trial said that they did not see petitioner shooting at the police, and that the only ones that testified that they saw petitioner shooting at the police were the police witnesses." (Pet. at 27.) The claim that counsel "failed to inform" Gomez of this evidence is specious. At the suppression hearing, Detective Caban testified that of the two restaurant workers, a cabdriver, and Officer Ahearn who viewed the line-up, one restaurant worker identified Gomez as someone he had seen in the restaurant, the second restaurant worker and the cabdriver did not recognize anyone in the line-up, and Officer Ahearn Page 72 recognized Gomez from the car he stopped. (See page 8 above.) Gomez cannot claim that counsel failed to inform him of evidence that came out during his own suppression hearing. Based on the suppression hearing testimony, it should have been obvious to Gomez, at the time he decided to plead guilty, that the witnesses who would testify to his shooting at the police most likely would be police officers. There is no reason to believe that this information would have influenced Gomez's decision whether to plead guilty or go to trial.

   Gomez's second ineffective assistance of trial counsel claim should be denied under both Strickland prongs.

   3. Counsel's Failure to Call Gomez to Testify at the Suppression Hearing

   Gomez claims that although he told counsel he wished to testify at the suppression hearing, counsel did not allow him to testify and did not inform him that he had the right to decide whether to testify:

During the hearing, at the defense table, petitioner informed his counsel that he wanted to testify on his own behalf to appraise the hearing court of the true facts surrounding the conditions of how his statements to the police were made and how the police had displayed him to the witness(es) alone in the line-up room, prior to the line-up being conducted. Notwithstanding the fact that he knew that petitioner's testimony may have affected the outcome of the hearing, defense counsel simply told petitioner that he could not testify at the hearing, and failed to inform petitioner that he had the right to testify in his own behalf, that the right to ultimately decide whether or not to testify belonged personally to petitioner and could [not] be waived by counsel.
(Pet. at 24.)

   "A defendant in a criminal case has the constitutional right to testify on his own behalf, see Rock v. Arkansas, 483 U.S. 44, 49-51, 107 S.Ct. 2704 (1987), and [the Second Circuit has] held that a `trial counsel's duty of effective assistance includes the responsibility to advise the Page 73 defendant concerning the exercise of this constitutional right.'" Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001) (quoting Brown v. Artuz, 124 F.3d 73, 78-79 (2d Cir. 1997), aff'd, 95 Civ. 2740, 1996 WL 511558 (S.D.N.Y. June 10, 1996) (Haight, D.J. & Peck, M.J.), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077 (1998)), cert. denied, 534 U.S. 1096, 122 So. Ct. 847 (2002); accord, e.g., United States v. Garcia, No. 02-1049, 51 Fed. Appx. 325, 328, 2002 WL 31309247 at *2 (2d Cir. Oct. 11, 2002); Chang v. United States, 250 F.3d 79, 82-83 (2d Cir. 2001); Ruiz v. United States, 94 Cr. 392, 98 Civ. 6399, 2000 WL 1010828 at *4 (S.D.N.Y. July 21, 2000) (Preska, D.J.). In Brown v. Artuz, the Second Circuit also held that:

Although counsel should always advise the defendant about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best, counsel must inform the defendant that the ultimate decision whether to take the stand belongs to the defendant, and counsel must abide by the defendant's decision on this matter.
124 F.3d at 79; accord, e.g., Chang v. United States, 250 F.3d at 83; Brown v. Rick, 01 Civ. 4310, 2003 WL 22801397 at *7 (S.D.N.Y. Nov. 25, 2003).

   The Supreme Court (and Second Circuit) decisions cited above, however, only dealt with the defendant's personal right to testify at trial. The Supreme Court has not decided whether that personal right also extends to pretrial proceedings such as a suppression hearing. Several district court decisions, in this district and elsewhere, have expressed the opinion that a defendant does not have a Constitutional right to testify at a pretrial proceeding.*fn42 This Court need not decide whether Page 74 a criminal defendant has an absolute and personal right to testify at a suppression hearing. It suffices that the Supreme Court has not decided that such a right exists. As such, the state court's denial of Gomez's ineffective assistance claim — which is premised on the existence of such a right and counsel's failure to advise Gomez of that right — cannot be said to be contrary to or an unreasonable application of Supreme Court caselaw. Under the AEDPA, therefore, the Court should deny Gomez's claim.

   The Court also notes that Gomez's claim that counsel told him he could not testify is self-serving and was not supported in state court by any affidavit from counsel (although counsel did supply Gomez with an affidavit for his first C.P.L. § 440 motion asserting the broken Page 75 prosecutorial promise as to the Bronx sentence).*fn43 Moreover, counsel could well have believed that Gomez's version of events was not credible-for example, Gomez claims that he (and co-defendant Pena) were repeatedly and badly beaten by the police, such that both of their clothes were covered in blood. (Dkt. No. 8: Beder 5/16/02 Aff. Ex. J: Gomez 8/4/99 C.P.L. § 440 Aff. ¶ 7 ("My clothes were all covered with my own blood."); id. ¶ 14 ("There I saw Pena lying on the floor, his face and clothes covered with blood . . . "); id. ¶ 24 ("My face and my wet clothing were all covered with blood once again.").) But at the suppression hearing, the prosecution introduced the photos of Gomez's and Pena's line-ups. (See Tr. 50-51, 56.) Surely, if Gomez and Pena's clothes were as bloody as Gomez claims, the line-up pictures would have shown the blood. Defense counsel could reasonably have found Gomez's version of events too suspect to put Gomez on the witness stand at the suppression hearing — especially since he would have admitted certain of the charged crimes, e.g., reckless endangerment, assault and gun possession, while denying that he shot at police (utilizing the "some other dude did it" defense — last name unknown, who was not seen by any witness — to the Page 76 attempted murder of a police officer charge). See, e.g., United States v. Olney, No. 89-50071, 892 F.2d 84 (table), 1989 WL 154238 at *1 (9th Cir. Dec. 18, 1989) (referring to the "commonly used `phantom' or `some other dude did it' defense"); Ellen Yankiver Suni, "Who Stole the Cookie from the Cookie Jar?: The Law and Ethics of Shifting Blame in Criminal Cases," 68 Fordham L. Rev. 1643, 1693 n.5 (2000) ("This defense is sometimes called to SODDI defense, which `is popularly known in the trade as the "Some Other Dude Did It."'"). The Court need not further analyze Gomez's factual claims (which contain other inconsistencies), since, as noted above, the Supreme Court has not held that a defendant's absolute right to decide to testify at trial also applies to pretrial hearings.

   Under the AEDPA, the state court's denial of this aspect of Gomez's ineffective assistance claim is not contrary to or an unreasonable application of Supreme Court precedent and therefore the claim should be denied.

   C. Gomez's Claim of Ineffective Appellate Counsel Should Be Denied

   Gomez alleges that appellate counsel should have raised on appeal the trial court's threat of a heavier sentence, the broken prosecutorial promise, and the trial court's refusal to allow Gomez to withdraw his guilty plea because of the broken promise. (Pet. at 35.) This Court already has rejected on the merits Gomez's federal habeas claims that his guilty plea was coerced by the court's threat of a heavier sentence and by a broken prosecutorial promise. (See Points II.A & B above.) It is well-settled that appellate counsel cannot be faulted for failing to raise a meritless claim. See. e.g., Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *28 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 (S.D.N.Y. Oct. Page 77 28, 2003) (Peck, M.J.) (& cases cited therein.) Accordingly, Gomez's claim of ineffective appellate counsel should be denied.

   It also could be ineffective for appellate counsel to fail to raise a valid state law claim, even if that claim itself would not be cognizable on federal habeas review.*fn44 As discussed at pages 46-48 & n.23 above, it is a closer call as to whether Justice Leff's plea colloquy with Gomez was defective under New York state decisional law. But even assuming arguendo that it was, appellate counsel was not ineffective for failing to raise that on appeal because the issue was not preserved for appeal. No objection was made at the time of Gomez's guilty plea, and at sentencing the request to withdraw Gomez's plea was based only on the Bronx sentence, not on any alleged coercion of the plea. (S. 4, 8, 12-14; see pages 16-22 above.) Thus, any state law sentence coercion claim was not preserved for appeal and, if raised by appellate counsel, could have been denied by the First Page 78 Department on that basis. See, e.g., People v. Gambaccini, 2003 N.Y. Slip. Op. 19594, 2003 WL 22965480 at *1 (3d Dep't Dec. 18, 2003) (Defendant's "failure to make a motion to withdraw her plea or to vacate the judgment of conviction on this ground renders this claim unpreserved for our review."); People v. Hopeton, 256 A.D.2d 81, 81, 681 N.Y.S.2d 753, 753 (1st Dep't 1998) ("Defendant did not preserve his current claim that he was coerced by the court into entering the guilty plea, since his motion to withdraw the plea was made on other grounds."); People v. Newman, 231 A.D.2d 875, 875, 648 N.Y.S.2d 62, 62 (4th Dep't 1996) (Defendant "failed to preserve for [appellate] review his contention that the pleas were coerced."), appeal denied, 89 N.Y.2d 944, 655 N.Y.S.2d 895 (1997); People v. Crafton, 159 A.D.2d 271, 271, 552 N.Y.S.2d 273, 274 (1st Dep't 1990) ("Defendant failed to raise the issue of the court's alleged coerciveness during the plea in his motion to withdraw his guilty plea. This constitutes a waiver of the claim."). Thus, appellate counsel cannot be faulted, and Gomez cannot show prejudice, from any failure to raise a state law claim that, even assuming arguendo it otherwise had merit, was not preserved for appeal.

   CONCLUSION

   For the reasons set forth above, Gomez's habeas petition should be DENIED, and a certificate of appealability should not be issued except as to the ineffective assistance/right to testify at the suppression hearing claim, since whether such a right exists has not been addressed by the Second Circuit. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 1039 (2003) ("§ 2253(c) permits the issuance of a COA only where a petitioner has made a `substantial showing of the denial of a constitutional right.'" The statute "does not require a showing that the appeal will succeed. Accordingly, a court . . . should not decline the application for a COA merely because it Page 79 believes the applicant will not demonstrate an entitlement to relief."); Slack v. McDaniel, 529 U.S. 473, 475, 120 So. Ct. 1595, 1599 (2000) (Certificate of appealability should issue where "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further."'); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (Certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further."), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000).

  

FILING OF OBJECTIONS to THIS REPORT AND RECOMMENDATION
   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health & Human Servs., 892 F.2d 15.16 (2d Cir. 1989): Wesolek Page 80 v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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