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GIL v. MAZZUCA

United States District Court, S.D. New York


March 3, 2004.

PABLO GIL, Petitioner, -v.- WILLIAM MAZZUCA, Warden, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Following a plea of guilty to one count each of Criminal Possession of a Controlled Substance in the Second and Third Degrees in New York County Supreme Court, Pablo Gil was sentenced to a prison term of nine years to life. He is currently incarcerated pursuant to this judgment at the Otisville Correctional Facility. Gil now brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. For the reasons below, the petition should be denied.

I. BACKGROUND

  A. Gil's Arrest, Plea, and Sentence

  By indictment filed January 2, 1998, Gil was charged with one count of Conspiracy in the Second Degree, one count of Criminal Sale of a Controlled Substance in the First Degree, two counts of Criminal Possession of a Controlled Substance in the First Degree, and four counts of Criminal Possession of a Controlled Substance in the Third Degree. Indictment No. 10530/97, filed January 2, 1998 ("Indictment") (reproduced as Ex. A to Declaration of Darian B. Taylor, filed October 27, 2003 (Docket #10) ("Taylor Decl.")). These charges stemmed from an alleged Page 2 conspiracy between Gil, his wife, and others to import heroin from the Dominican Republic and Panama into the United States and distribute it in New York City. Id. at 1-3.

  Prior to this indictment, on September 12, 1997, a New York State Supreme Court warrant had been issued for Gil's arrest. He was arrested 10 days later in Florida and held for extradition to New York. See Complaint/Arrest Affidavit, dated September 22, 1997 (reproduced as Ex. B to Taylor Decl. at 14). Gil was released in Florida on December 23, 1997. See People's Response to Defendant's Omnibus Motion (undated) (reproduced in part as Ex. B to Taylor Decl. at 18). Following his indictment in New York State, Gil was arrested by local authorities in the Dominican Republic on or about March 12, 1998 based on the outstanding New York warrant. See Online Booking System Arrest Worksheet (reproduced as Ex. B to Taylor Decl. at 29), ¶¶ 20-21. He was subsequently returned to New York. See id. ¶ 11.

  Approximately a year later, on March 22, 1999, Gil appeared with counsel before New York State Supreme Court Justice William Wetzel to determine whether Gil or any of his co-defendants wished to accept the prosecution's plea offer often years to life. (Plea: Tr. 2). The court addressed the defendants:

Let me just be sure each of these defendants understands the situation.
You have had a lot of time to talk to your attorney about this case. You know that this case involves multiple counts of first degree possession and/or sale. . . . Possession in the first degree carries a minimum sentence of fifteen to life. There is no lesser sentence. There is nothing to talk about.
You also know the weight of the evidence in this case. It is considerable. Wiretap interceptions that the People suggest show[] that you were involved in this activity, as well as in this case there was a seizure.
. . . .
  Alright. You can go to trial and that's fine. You will have a jury, and they Page 3 will decide if you are found guilty in this kind of involvement.

 

The minimum sentence is fifteen to life. I want to be honest enough with you so you can make the right decision. This was a commercial enterprise. If they can prove that you did what they say you did you are not going to get the minimum sentence from me.
I wouldn't give a minimum sentence to someone who is engaged in trafficking narcotics, as well as swallow[ing] and bring[ing] narcotics up inside their bodies. That's serious business.
You should be confident in [trying] to make this decision in assuming that you will get upwards of twenty years if you are found guilty, because fifteen is the minimum, and this is a serious case. It has all those other aspects. The fact that you were using swallowers transporting through that method, all of that aggravates this case.
If you were in Federal custody you would get forty years. Now you are given the opportunity if you want to plead out and dispose of this case for fifteen years [sic]. I don't care if you do. I have to try something so I might as well try you people.
But, at least at the end I am going to be able to say to you: you understood not only from your attorney, not only from him, but I told you what would happen if you went to trial and lost. I told you what your options were if you didn't want to go to trial.
There it is. I don't pretend this is an easy decision to make, to sign up for ten to life. But, that is the situation you are in. If you can win this case, all well and good, you go right out the door, you're home. But, if you lose the case, remember what I said is going to happen. It would happen.
(Plea: Tr. 2-4). The court adjourned for lunch to allow Gil and his co-defendants the opportunity to consult with counsel. (Plea: Tr. 5).

  After the recess, Gil withdrew his plea of not guilty and entered a plea of guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree and one count of Criminal Possession of a Controlled Substance in the Third Degree, in full satisfaction of the indictment and in exchange for a sentence of nine years to life. (Plea: Tr. 5-12). On the record, Page 4 Gil admitted committing these two crimes and also provided details on the particular drug and person involved. (Plea: Tr. 6-8). He also stated that he understood he was giving up a number of rights, including the right to seek suppression of evidence, the right to a jury trial, the right to be convicted only upon proof of guilt beyond a reasonable doubt found by a unanimous jury, and the right to appeal. (Plea: Tr. 9-10). Gil also indicated that no other promises had been made to him other than that he would be sentenced to nine years to life, that nobody had threatened him or forced him to plead guilty, that he had discussed the matter with his attorney, and that he was entering the plea "voluntarily, of [his own] free will." (Plea: Tr. 8-9, 11). He acknowledged that a sentence of nine years to life was a "definite benefit." (Plea: Tr. 10-11).

  On April 1, 1999, Justice Wetzel sentenced Gil, as agreed, to consecutive prison terms of seven years to life and two to six years, for a total of nine years to life. (Sentencing: Tr. 2-3). It appears Gil filed a timely notice of appeal from that judgment, although the appeal was not perfected at that time. See Letter to Ronald Uzenski from District Attorney's Office, dated May 3, 2001 (reproduced in part as Ex. E to Taylor Decl.).

  B. The Section 440.10 Motion

  More than a year and a half after his sentencing, in December 2000, Gil filed a pro se motion to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. See Notice of Motion to Vacate Judgment Pursuant to CPL 440.10, dated December 2000 (reproduced as Ex. B to Taylor Decl. at 1). Gil argued that his conviction should be overturned for the following reasons: (1) the trial court lacked jurisdiction over him, (2) the prosecutor knowingly relied upon false material evidence, (3) the judgment violated the extradition treaty between the United States and the Dominican Republic, (4) trial counsel was Page 5 ineffective, and (5) "improper and prejudicial conduct occurred during the trial not appearing in the record." Affidavit of Pablo Gil in Support of Motion to Vacate, dated December 5, 2000 ("440.10 Aff") (reproduced as Ex. B to Taylor Decl. at 2-12), ¶ 7.

  Thereafter, without holding a hearing Justice Wetzel, in a written decision, denied the motion "in all respects." See Decision and Order, dated January 19, 2001 ("Decision") (reproduced as Ex. C to Taylor Decl.), at 1. Specifically, as to Gil's claim that he was illegally arrested in the Dominican Republic and brought to the United States by New York law enforcement authorities in violation of the extradition treaty between the two countries, the court found that, absent any complaint made by the government of the Dominican Republic, Gil had no standing to raise this allegation. Id. The court also stated that Gil "has offered no factual support for his claim that he was arrested in the Dominican Republic by New York authorities." Id. In any event, the court noted, "[h]e was brought back to this Court pursuant to a properly issued bench warrant, and he never challenged jurisdiction prior to admitting [his] guilt[]." Id. As for the ineffective assistance of counsel claim, the court detailed counsel's efforts "in securing a better plea than that originally offered by the People" and held that "[c]ounsel's representation throughout was adequate and meaningful." Id. at 2. Because Gil pled guilty prior to receiving all of the eavesdropping tapes, the court found any attack on the eavesdropping warrant "irrelevant." Id

  C. Gil's Appeal

  Gil moved for leave to appeal the trial court's denial of his motion to vacate and sought to have that appeal consolidated with his direct appeal. See Notice of Application Pursuant to CPL § 460.15, dated February 14, 2001 (reproduced as Ex. D to Taylor Decl. at 1-2). The Appellate Page 6 Division, First Department, granted both requests. See Certificate Granting Leave, dated May 17, 2001 (reproduced as Ex. F to Taylor Dec!.).

  Represented by new counsel, Gil raised the following issues in his brief to the Appellate Division:

1. Whether appellant's guilty plea was involuntary because it was entered after the court threatened to impose a heavier sentence if he were convicted after trial. U.S. Const., Amend. XIV; N.Y. Const., Art. 1, § 6.
2. Whether the court's summary denial of appellant's motion to vacate judgment pursuant to C.P.L. § 440.10 deprived him of due process of law. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6.
3. Whether appellant's aggregate 9 — year — to — life sentence for his convictions of possession of a controlled substance in the second and third degrees is excessive.
Brief for Defendant — Appellant on Direct Appeal and on Appeal of Denial of C.P.L. § 440.10 Motion, dated August 2001 ("Pet. App. Brief) (reproduced as Ex. H to Taylor Decl.), at 2. Gil's brief included a discussion regarding the alleged failings of his trial counsel. See id at 17, 21-22.

  The Appellate Division unanimously affirmed Gil's conviction on February 5, 2002, holding that Gil's claim that his plea was coerced was "unpreserved" and that his motion to vacate was properly denied without a hearing. People v. Gil, 291 A.D.2d 217, 217 (1st Dep't 2002). The court also addressed the merits of the underlying jurisdictional and ineffective assistance of counsel issues raised in the motion to vacate:

  Defendant failed to provide sufficient factual allegations to support his claim that his arrest in the Dominican Republic involved egregious misconduct warranting dismissal. Defendant's ineffective assistance claim was likewise unsubstantiated. The record establishes that defendant received meaningful representation within the context of a guilty plea, and that the issues that defendant faults his counsel for failing to raise would have been unavailing. Page 7

 Id. at 217-18 (citations omitted). Gil sought leave to appeal to the New York Court of Appeals, which was denied on May 10, 2002. People v. Gil, 98 N.Y.2d 651 (2002).

  D. The Instant Petition

  The instant habeas petition was timely submitted to the Court's Pro Se Office on April 3, 2003. See Petition for Writ of Habeas Corpus, filed May 9, 2003 (Docket #2) ("Petition"). Gil seeks relief on the following grounds: (1) his guilty plea was involuntary, id at 5A-5C; (2) counsel was ineffective for failing to challenge an eavesdropping warrant and Gil's extradition to, and prosecution in, the United States, id. at 5C-5D; and (3) the New York State Supreme Court was without jurisdiction to hear the case because the State lacks authority to enter an agreement with a foreign nation, id at 5E. Gil has properly exhausted his state law remedies by fairly presenting the federal constitutional nature of his claims to each available level of the state courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en bane), cert. denied, 464 U.S. 1048(1984).

 II. DISCUSSION

  A. Standard of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The Second Circuit has held that an "adjudication on Page 8 the merits" requires only that the state court base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Furthermore, it is not necessary for the state court to refer to any federal claim or to any federal law for AEDPA's deferential standard to apply. Id. at 312.

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "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 different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "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." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

  B. The Merits of Gil's Claims

  1. Manner in Which Gil Came Before the New York State Courts

  Gil claims that New York authorities acted unlawfully in having him "illegally arrested" in the Dominican Republic based solely on a New York warrant "and forcibly return[ing] him to New York." Memorandum of Law in Support of Petition for Writ of Habeas Corpus, filed May 9, 2003 (Docket #3) ("Pet. Mem."), ¶¶ 65, 74. Gil contends that the federal Constitution prohibits state authorities from entering into agreements with foreign governments. Id. UK 74-79. Page 9 Further, he points out that he could not have been extradited based on the extradition treaty between the United States and the Dominican Republic because drug crimes are not listed therein as extraditable offenses, id. ¶ 68 — a contention that appears to be at odds with another agreement signed by both the United States and the Dominican Republic, see Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done Dec. 20, 1988, art. 6, para. 2, 28 I.L.M. 493, 507 ("Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties."). Thus, Gil argues, the New York court was without jurisdiction to try the case. Pet. Mem. ¶¶ 65-79.

  The Appellate Division addressed these arguments on the merits, finding that "[Gil] failed to provide sufficient factual allegations to support his claim that his arrest in the Dominican Republic involved egregious misconduct warranting dismissal." Gil. 291 A.D.2d at 217-18 (citing, inter alia. Ker v. Illinois, 119 U.S. 436 (1886) and Frisbie v. Collins, 342 U.S. 519 (1952)). Since the state court reviewed this claim on the merits, habeas relief is only available if the state court decision was "contrary to" or "an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d): see Williams. 529 U.S. at 405-06, 413.

  This Court need not reach the issue of the State of New York's power to issue a warrant executable in the Dominican Republic. Nor do we need to examine the extradition treaty between the two countries. This is because under the "Ker-Frisbie doctrine," "the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.'" Frisbie, 342 U.S. at 522. The rationale behind this rule is that Page 10

 

due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.
Id. A limited exception to this doctrine exists where a defendant alleges "conduct of the most outrageous and reprehensible kind by United States government agents." United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.) (discussing United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974)), cert. denied, 421 U.S. 1001 (1975).

  In Toscanino, the petitioner alleged that foreign agents acting on behalf of the United States kidnaped him in front of his wife, brought him from Uruguay to Brazil, tortured and interrogated him for 17 days, and then drugged him for a flight to New York, all with the knowledge of United States government officials. 500 F.2d at 269-70. The court held that if proven, such allegations would require the district court to divest itself of jurisdiction over the petitioner. Id. at 275-76. In contrast, the petitioner in Lujan alleged that he was lured from Argentina to Bolivia, taken into custody by Bolivian officers paid by the United States, not permitted to communicate with the embassy, an attorney, or his family, and then brought to New York five days later. 510 F.2d at 63. The Second Circuit held that these circumstances did not justify ordering the trial court to divest itself of jurisdiction over the petitioner. Id. at 68. Lujan noted that the habeas corpus petition lacked "any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process." Id. at 66.

  Because Gil has provided no factual allegations of any abuse — let alone "conduct of the most outrageous and reprehensible kind" — the Appellate Division's decision denying relief on Page 11 this ground was obviously not "contrary to" or "an unreasonable application of clearly established federal law. Therefore, habeas relief must be denied on this claim.*fn1

  2. Involuntary Guilty Plea

  Gil next claims that his guilty plea was coerced by the judge's statements regarding the sentence he would likely receive if he were convicted after a jury trial. See Pet. Mem. 23-31. Gil raised this issue before the Appellate Division, which found it "unpreserved" because Gil "never moved to withdraw his plea, and since his motion to vacate the judgment was made on other grounds." Gil, 291 A.D.2d at 217 (citing People v. AH. 96 N.Y.2d 840 (2001) and People v. Hopeton, 256 A.D.2d 81 (1st Dep't 1998)). The court went on to state, "Were we to review this claim, we would find that the court's statement did not render the plea involuntary since defendant was indicted on multiple charges pursuant to which he could have faced aggregate maximum sentences of 75 years to life." Id

  Respondent now argues that habeas review of Gil's claim that his plea was involuntarily entered is barred by a state procedural rule — specifically, that a defendant must move to withdraw a guilty plea pursuant to CPL § 220.60 or move to vacate the judgment pursuant to CPL § 440.10 to preserve such a claim. Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed October 27, 2003 (Docket #9), at 8-11. Gil argues Page 12 that the claim was preserved as he raised it in his motion to vacate in the context of his argument that his counsel's representation was deficient. Pet. Mem. ¶ 31: see also 440.10 Aff. at 10 (mentioning counsel's failure to object when the trial judge "threatened" Gil). Rather than determine whether alluding to this issue in the context of making an ineffective assistance argument is sufficient preservation, the Court will dispose of this claim on the merits since the underlying issue is easily resolved. See, e.g., Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002) (federal habeas court may "hurdl[e] the procedural questions to reach the merits of a habeas petition" where the underlying issue is "easily resolvable against the habeas petitioner, whereas the procedural — bar issue involve[s] complicated issues of state law" (internal quotation marks and citation omitted)).

  The Due Process Clause of the Fourteenth Amendment requires that a guilty plea be knowingly and voluntarily entered. E.g., Bovkin v. Alabama, 395 U.S. 238, 242-43 (1969). A plea is made knowingly when it is entered "`with [an] understanding of the nature of the charge and the consequences of the plea.'" Santobello v. New York, 404 U.S. 257, 261 n.1 (1971) (quoting Fed.R.Crim.P. 11). A plea is voluntary "if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.) (citing Brady v. United States. 397 U.S. 742, 750 (1970)), cert denied, 488 U.S. 890 (1988).

  In this case, Gil's only claim is that he was coerced into pleading guilty by the trial court's statements that he would be sentenced to "upwards of twenty years" if he was found guilty by a jury. See Pet. Mem. ¶ 16; Plea: Tr. 3-4, 10-11. The Supreme Court has held that "[w]hile confronting a defendant with the risk of more severe punishment clearly may have a Page 13 `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.'" Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Chaffm v. Stvnchcombe, 412 U.S. 17, 31 (1973)). Gil has made no allegations "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," Ovague v. Artuz, 274 F. Supp.2d 251, 258 (E.D.N.Y. 2003) (plea not coerced where petitioner was allegedly told by the trial court off — the — record that if he went to trial and was convicted he would be facing a likely 65 years to life in prison). Case law is replete with instances where similar warnings from a trial judge as to a potential sentence after trial have passed constitutional muster. See, e.g., Gomez v. Duncan, 2004 WL 119360, at *18-*22 (S.D.N.Y. Jan. 27, 2004) (Report and Recommendation) (citing cases). The Appellate Division here noted that Gil could have faced up to 75 years to life in prison had he proceeded to trial. Gil, 291 A.D.2d at 217. In the absence of evidence of coercion, the Court must accept Gil's on — the — record statement that he pled guilty voluntarily (Plea: Tr. 11). See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (defendant's statements at a plea allocution "carry a strong presumption of verity"): accord Adames v. United States. 171 F.3d 728, 732 (2d Cir. 1999).

  Thus, habeas relief should be denied on this claim.

  3. Ineffective Assistance of Counsel

  Gil's remaining contention is that he was denied effective assistance of counsel because of trial counsel's: (1) failure to investigate the circumstances of Gil's arrest in the Dominican Republic and to challenge the state court's jurisdiction over Gil, Pet. Mem. ¶¶ 33-37, 44, 58-59; Page 14 (2) failure to prevent Gil from pleading guilty when he knew that Gil was not in New York at the time the crimes were committed, id. UK 38-40, 43; (3) failure to prevent Gil from pleading guilty when the trial court threatened him with a longer sentence should he exercise his right to a jury trial, id. ¶ 41; (4) failure to move to suppress the fruits of an eavesdropping warrant based on the prosecution's lack of compliance with CPL § 700.70, which requires eavesdropping warrants to be provided to defense counsel within 15 days of arraignment, id. ¶¶ 45-48, 63; (5) failure to challenge the pen register on Gil's phone, id. ¶¶ 49-50; and (6) failure to move to suppress the eavesdropping warrant on the basis that the affidavit upon which it was based contained "recklessly false" information, id. ¶¶ 51-57, 63.

  As discussed further below, only some of these claims of ineffective assistance were presented to the Appellate Division. See Pet. App. Brief at 17, 21-22. Specifically, Gil's new appellate counsel raised only trial counsel's failure to challenge the court's jurisdiction (#1 above) and failure to move to suppress based on the People's violation of CPL § 700.70 (#4 above). Id. The Appellate Division considered these latter claims on the merits, holding: "[Gil]'s ineffective assistance claim was likewise unsubstantiated. The record establishes that [Gil] received meaningful representation within the context of a guilty plea, and that the issues that [Gil] faults his counsel for failing to raise would have been unavailing." Gil, 291 A.D.2d at 218. This Court may grant relief only if this decision is either "contrary to" or "an unreasonable application of clearly established federal law, or is based on an "unreasonable determination of the facts." 28 U.S.C. § 2254(d).

  To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate: (1) "that counsel's representation fell below an objective standard of Page 15 reasonableness"; and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). This same two — part standard applies to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985). With respect to the first prong, the relevant question in the context of a guilty plea is "whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In evaluating this prong "`[j]udicial scrutiny . . . must be highly deferential'" and "`every effort [must] 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.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689); see Dunham, 313 F.3d at 730 (according counsel a presumption of competence). "[I]n 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." Hill, 474 U.S. at 59. The Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).

  Each ground is discussed below.

  a. Failing to Challenge Court's Jurisdiction.

  As discussed above, Gil's claim regarding the state court's lack of jurisdiction is without merit. Whatever additional protection New York State law might have afforded Gil beyond the Ker-Frisbie doctrine would not have prevented his prosecution. See People v. Isaacson, Page 16 44 N.Y.2d 511, 520-21 (1978) (criminal conviction may be overturned under state due process clause only where there has been a "disregard for cherished principles of law and order" or "outrageous conduct of law enforcement agents such as to warrant a restraint of the government from invoking judicial procedures in obtaining a conviction"). Therefore, Gil's claim of ineffective assistance of counsel based on counsel's failure to raise this argument is also meritless. See, e.g., Frederick v. Warden. Lewisburg Corr. Facility, 308 F.3d 192, 198 (2d Cir. 2002) (because there was no underlying violation, not objectively unreasonable for counsel to fail to raise the claim), cert. denied. 537 U.S. 1146 (2003); Davis v. McLaughlin, 122 F. Supp.2d 437, 443-44 (S.D.N.Y. 2000) (when underlying motion would have been unsuccessful, trial counsel's failure to make the motion does not constitute ineffective assistance of counsel). To the extent that Gil separately challenges counsel's failure to challenge the state court warrant under which he was arrested, see Pet. Mem. ¶¶ 33-34, 37, he provides no explanation or case law suggesting that challenging this warrant would have resulted in a dismissal of the charges against him.

  b. Allowing Guilty Plea Despite Evidence Gil Was Not in the State when the Crimes Were Committed.

  Gil next claims that his counsel was ineffective for allowing him to plead guilty when he knew that Gil "was not in the demanding state [(New York)] at the time the crimes were committed." Pet. Mem. ¶ 38. This claim was not raised as a ground for appeal in Gil's appellate brief, see Pet. App. Brief at 21-22, although the factual basis for it had been made part of the record in Gil's motion for leave to appeal under CPL § 460.15. See Ex. D to Taylor Decl. at 89. Thus, this claim is unexhausted. See 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of Page 17 habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State."); Daye, 696 F.2d at 191.

  It is not necessary, however, to stay this petition to permit Gil to exhaust this claim. Where there are no longer any remedies available to a petitioner in state court, a federal habeas court may deem unexhausted claims to be exhausted. See, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). In such a case, however, the habeas court will still be prevented from addressing the claim on the merits if the state court would now find that the claim was procedurally defaulted. Bossett, 41 F.3d at 829. Overcoming a procedural default requires a habeas petitioner to "show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris v. Reed. 489 U.S. 255, 262 (1989) (citations omitted), which requires a showing of "actual innocence," see, e.g., Herrera v. Collins, 506 U.S. 390, 404 (1993); Dunham, 313 F.3d at 730.

  Gil makes no allegations that would constitute "cause" for failing to raise this claim in his appeal to the Appellate Division. Nor has he made a showing of "actual innocence." Because this claim was part of the record made prior to Gil's appeal and thus could have been raised in his direct appeal, he may not seek to raise the matter again in the state courts. See CPL § 440.10(2)(c) (barring collateral review if claim is record based and there was an unjustifiable failure to raise it on direct appeal); N.Y. Court Rules § 500.10(a) (only one application for leave Page 18 to appeal permitted). Therefore, the claim has been procedurally defaulted and may not be the subject of habeas review. See, e.g., Bossett, 41 F.3d at 829.*fn2

  c. Allowing Plea when Gil Faced Threats by the Trial Court.

  As discussed above, Gil's claim that he was coerced into pleading guilty by threats made by the trial court regarding his likely sentence if he insisted on going to trial is without merit. Therefore, his claim of ineffective assistance of counsel based on counsel's failure to prevent him from pleading guilty in the face of such "threats" also fails. See Frederick, 308 F.3d at 198; Davis, 122 F. Supp.2d at 443-44.

  d. Failing to Suppress the Eavesdropping Warrant Because It Was Not Provided Within 15 Days of Gil's Arraignment.

  Gil argues that defense counsel was ineffective for failing to hold the Special Narcotics Office to its statutory obligation of turning over the eavesdropping warrant and accompanying application within 15 days of his arraignment. Pet. Mem. ¶¶ 45-48, 63. CPL § 700.70 provides:

  The contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed upon a trial of a defendant unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved. Page 19

 This provision has been strictly enforced by New York courts. See, e.g., People v. Schulz, 67 N.Y.2d 144, 147 (1986) ("Evidence derived from an intercepted communication must be suppressed where there has been a failure to comply with the notice provision of CPL § 700.70.").

  Pursuant to the eavesdropping warrant in this case, the government obtained over 600 audiotapes of conversations and at least 33 of these tapes and corresponding English transcripts were provided to defense counsel prior to Gil's guilty plea. See Letters from Bruce Berger and Aida Vernon, dated March 11, 1998 and October 29, 1998 (reproduced at Ex. B to Taylor Decl. at 20-23). Gil maintains, however, that the eavesdropping warrant and affidavits used to procure the warrant were never turned over to defense counsel. See Pet. Mem. ¶¶ 45-48. Gil presented this claim to the Appellate Division, see Pet. App. Brief at 21-22, and the Appellate Division held that Gil's ineffective assistance claim was "unsubstantiated" and that "the issues that [Gil] faults his counsel for failing to raise would have been unavailing," Gil. 291 A.D.2d at 218. In order to so hold, the Appellate Division necessarily must have found that the provisions of CPL § 700.70 had been complied with.

  There is evidence in the record to support this determination. As the prosecution pointed out in its brief to the Appellate Division, the People's Response to Defendant's Omnibus Motion stated that the eavesdropping warrants were "all previously filed and served in this case." See Brief for Respondent, dated December 2001 (reproduced as Ex. I to Taylor Decl.), at 32. The prosecutor's office also stated in response to Gil's Freedom of Information Law request that the warrant had previously been provided to his attorney "as the criminal law requires." See Letter from Nancy Greenberg to Gil, dated April 13, 2000 (reproduced as Ex. B to Taylor Decl. at 35). Page 20 In addition, Gil stated in his affidavit in support of his motion to vacate that, based on the fact that counsel did not make a specific request for the eavesdropping warrant in the omnibus motion, "it can easily be concluded that a copy of the eavesdropping warrant and any supporting documents had already been disclosed to defense counsel within fifteen (15) days after defendant's arraignment as required by CPL § 700.70." 440.10 Aff. at 9.

  The only evidence to support Gil's contention that the warrant was not timely provided is a letter that his trial counsel wrote as part of a disciplinary investigation based on a complaint from Gil. In that letter, counsel — apparently responding to a request from Gil for a copy of the search warrant affidavit — states that he did not have it because "`these items are given to defense attorneys upon the Court granting Rosario material just prior to trial. Since we did not go to trial this item remains with Prosecution.'" Pet. Mem. ¶ 46 (quoting Letter from Antonio Morales to Donna M. Killian, dated August 18, 2000 (reproduced as Ex. D to Taylor Aff. at 57-58)). But this statement by Gil's counsel, made in a letter more than a year after Gil's plea, is not sufficient to establish that the Appellate Division's ruling "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). In other words, the attorney's letter to the disciplinary committee is an insufficient basis for concluding that the Appellate Division acted unreasonably in concluding that the materials had been timely provided.

  Assuming that the warrant and underlying documents had been turned over to counsel within the statutory period, counsel would have had no basis for moving to suppress the fruits of the warrant on this basis and thus his failure to do so would not constitute representation falling Page 21 below an objective standard of reasonableness. Therefore, habeas relief should be denied on this ground.

  e. Failing to Challenge the Pen Register.

  Gil has made a conclusory allegation that counsel was ineffective by failing to challenge the legality of the order issued on April 28, 1997 authorizing the use of a pen register. Pet. Mem. ¶¶ 49-50. This claim was not raised on appeal and is thus unexhausted. Because the claim appears to be record — based (inasmuch as the order Gil challenges was part of the record), Gil unjustifiably failed to raise it on his direct appeal and thus may not raise it again in the state courts. See CPL § 440.10(2)(c). In such a situation, the claim is deemed exhausted and this Court is barred from reaching the merits by virtue of the procedural default. Bossett, 41 F.3d at 828-29. Again, Gil has shown no "cause" excusing this default or "actual innocence." Even if the Court were to examine the merits of this claim it would have to be denied inasmuch as Gil has not stated how the installation of the pen register violated any law. See CPL § 705.10 (authorizing the use of a pen register or a trap or trace device). Finally, Gil contends that his counsel was ineffective because he failed to move to suppress the audiotapes on the ground that the eavesdropping warrant used to procure them was based on "recklessly false" information. Pet. Mem. ¶¶ 51-57; see Franks v. Delaware, 438 U.S. 154, 155-56 (1978) ("where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding

  f. Failing to Suppress the Eavesdropping Warrant Because It Contained "Recklessly False" Information.

  Finally, Gil contends that his counsel was ineffective because he failed to move to suppress the audiotapes on the ground that the eavesdropping warrant used to procure them was based on "recklessly false" information. Pet. Mem. 51-57; see Franks v. Delaware, 438 U.S. 154, 155-56 (1978) ("where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding Page 22 of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request"). Gil points to specific information contained in affidavits submitted by Special Agent Mathias Koppinger and District Attorney Robert M. Morgenthau in support of an application for the eavesdropping warrant on one telephone number. Pet. Mem. ¶¶ 2-4, 52-54. Koppinger apparently stated that either he or other New York Drug Enforcement Task Force officers saw Gil in Brooklyn on May 15, 1997 engaging in suspicious activity. Id. ¶¶ 4, 53. Gil has presented copies of his passport to demonstrate that this is impossible, as he was in the Dominican Republic — and not Brooklyn — from May 12, 1997 to May 30, 1997. See Passport of Pablo Gil (reproduced as Ex. D to Taylor Aff. at 89-101); Pet. Mem. ¶ 55. Neither Gil nor the respondent has submitted a copy of the warrant or the underlying affidavits.

  This ground for relief is also procedurally barred. In his appeal, Gil made no specific challenge to the contents of the eavesdropping warrant or the affidavits in support thereof. Instead, he stated generally and without elaboration that "counsel wrongly failed to challenge the eavesdropping warrant and move to suppress its fruits," Pet. App. Brief at 21. His brief never presented any reason why a motion to suppress would have been successful — other than the argument discussed above that CPL § 700.70 had been violated, see id at 21-22. Thus, Gil's present claim that the affidavits contained false information has never been presented to the state courts.

  Because the claim could have been raised on direct appeal and was not, it must be deemed exhausted and barred from habeas review. See CPL § 440.10(2)(c); Bossett, 41 F.3d at 828-29. Gil has not shown "cause" for his failure to do so or demonstrated "actual innocence"; Page 23 accordingly, this Court may not reach the merits of this claim because of the procedural default. See Harris. 489 U.S. at 262.

 Conclusion

  For the reasons stated above, Gil's petition should be denied.

 

PROCEDURE FOR FILING 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 have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. William H. Pauley, III, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Pauley. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am. 474 U.S. 140 (1985).


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