United States District Court, S.D. New York
March 3, 2004.
JOHNNY BREA, Petitioner, -v.- NEW YORK CITY PROBATION DEPARTMENT, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Johnny Brea brings this petition for writ of habeas corpus pro se
pursuant to 28 U.S.C. § 2254. On May 3, 2000, in the New York State
Supreme Court, Bronx County, Brea pled guilty to one count of Grand
Larceny in the Third Degree under N.Y. Penal Law § 155.35. On December
20, 2000, Brea was sentenced to probation for a period of five years and
ordered to pay $23,145 (plus service fees) in restitution. Brea is
currently on probation pursuant to that judgment. For the reasons stated
below, Brea's petition should be denied.
By indictment filed in 1999, Brea was charged with Grand Larceny in the
Third Degree and Offering a False Instrument for Filing in the First
Degree. Brief for Defendant-Appellant, dated May 2002 ("Pet. App. Div.
Brief") (annexed as Ex. 1 to Affidavit of Hae Jin Liu in Opposition to
Petition for Habeas Corpus, filed December 1, 2003 (Docket #6) ("Liu
Aff.")), at 2. The indictment alleged that, between November 9, 1995 and
December 15, 1997, Brea stole approximately $24,000 in public assistance,
food stamps, and medical assistance from the
Human Resources Administration by misstating his employment status
in his application for benefits. Id.
B. The Plea Hearing
On May 3, 2000, Brea's trial counsel, Andrew Freifeld, informed the
court that Brea wished to plead guilty to Grand Larceny in the Third
Degree. (5/3/00 Tr. 3). In exchange for his plea, Brea understood that he
would be sentenced to "a period of probation" and be required to pay an
undetermined amount of restitution to be assessed at a subsequent
hearing. (5/3/00 Tr. 3-4).
The following colloquy took place between the trial judge and Brea:
The Court: Your attorney tells me you want to withdraw
your not guilty plea and plead guilty to grand larceny
in the third degree, a class D felony, to satisfy the
charges against you on this indictment; is that true?
[Brea]: That's correct.
The Court: Has anybody threatened you to make you
(5/3/00 Tr. 5). The judge then went on to explain that Brea would
be given the promised sentence of probation and payment of restitution
only if he came to court when requested, was not arrested in the interim,
and signed a confession of judgment. (5/3/00 Tr. 5-6). The court
The Court: Do you understand that if you don't
keep one of those promises to me, if you fail to
come to court of if you get arrested, I don't have
to keep my promise [of probation] to you, and I am
likely to send you to jail. Do you understand
[Brea]: Yes, your Honor.
The Court: Has anybody promised you anything else?
. . . .
The Court:. . . . If I accept the guilty plea
today, and you say next time I would like to take
my guilty plea back, I'm not going to let you do
The Court: If you don't keep one of your promises
to me and I say I am going to send you to jail
because you violated one of those promises, and
you say, I want to take my guilty plea back, then
I am not going to let you do that.
[Brea]: Yes, I understand.
(5/3/00 Tr. 6-7).
The following exchange also took place:
The Court:. . . . The gist of this charge is that you
were gainfully employed, that you were working, and
that you lied to the Department of Social Services
about working so that you could continue to receive
benefits; is that correct?
[Brea]: That's correct.
The Court: Did that happen?
[Brea]: Yes, sir.
. . .
The Court: . . . [I]n two years you collected more
than three thousand dollars?
[Brea]: That's correct.
The Court: Basically you stole more than three
[Brea]: Yeah, okay. Yes.
. . .
[Brea]: Your Honor, let me to the City I stole
money. It's interesting that to the State I didn't.
The Court: If you are innocent here, if you are
The Court: I am not going to accept this plea.
[Brea]: No, I am going to accept the plea of guilty,
because I am tired.
. . .
The Court:. . . . If you don't want to plead guilty,
if you did . . . nothing wrong let me stop you. If
you did nothing wrong in this case, I don't want [you
to] plead guilty. I want you to take your case to the
jury and explain it
[Brea]: No, I am going to plead guilty.
The Court: and have the People prove your guilt
beyond a reasonable doubt. You can raise whatever
defense you can.
[Brea]: I am going to plead guilty, your Honor,
because I am tired.
The Court: I am not going to accept a guilty plea
[Brea]: I am guilty.
The Court: I am not going to accept the plea because
you are tired. I am going to accept the plea because
you stole this money.
[Brea]: Yes, I stole.
The Court: Did you steal it?
[Brea]: Yes, sir.
(5/3/00 Tr. 9-14).
The court then asked Brea whether he understood that pleading guilty to
a felony "could subject [him] to deportation" if he was not a United
States citizen. (5/3/00 Tr. 17). Brea responded, "That's correct."
(5/3/00 Tr. 17). Brea then stated that Freifeld had explained to him
that the judge was going to sentence him to five years' probation,
which Brea felt was "a little bit very excessive I think." (5/3/00 Tr.
17). The court responded, "I will give you six months in jail instead."
(5/3/00 Tr. 17). Brea responded, "No, I don't want to go to prison. I
have a job, your Honor. I can't." (5/3/00 Tr. 18).
The plea hearing concluded with the following:
The Court: Do you want to enter this guilty plea?
[Brea]: Yes, your Honor.
. . .
The Court Clerk: [Brea], do you now withdraw your
previously entered plea of not guilty and now
plead guilty to the crime of grand larceny in the
third degree under indictment 5406 of `99, that
plea to cover the entire indictment?
(5/3/00 Tr. 19-20).
C. Plea Through Sentencing
On August 1, 2000, Freifeld asked to be relieved as Brea's attorney
because Brea allegedly believed that he had been coerced by Freifeld,
among others, to plead guilty and because Brea wished to withdraw his
guilty plea. (8/1/00 Tr. 2-3). The court indicated that it would ask for
new assignment of counsel. (8/1/00 Tr. 3). On August 4, 2000, Bruce Klein
appeared as Brea's new attorney. (8/4/00 Tr. 1). The case was adjourned
so that Brea could consider whether he wished to withdraw his guilty
plea. (8/4/00 Tr. 3). At his next court appearance, on October 17, 2000,
Brea stated that he did not want to withdraw his plea. (10/17/00 Tr.
3-4). The case was adjourned for a restitution hearing. (10/17/00 Tr. 4).
At the restitution hearing, which began on November 17, 2000, Klein
indicated that Brea was moving to withdraw his guilty plea. (11/17/00
Tr. 2-3). Klein argued that, while Brea had been informed that a felony
conviction could subject him to deportation, he had not been informed
prior to his plea that his conviction was an automatic ground for
deportation. (11/17/00 Tr. 2-3). This was the only basis articulated in
support of Brea's motion. (See 11/17/00 Tr. 2-4). The court denied the
motion. (11/17/00 Tr. 3).
At the sentencing hearing on December 20, 2000, Brea expressed
reservations with signing an affidavit of confession of judgment.
(12/20/00 Tr. 13-15). The court indicated that Brea need not sign the
affidavit but that, if he did not, the court would sentence him to a term
of imprisonment. (12/20/00 Tr. 14-15). Klein stated that Brea felt that
"he [was] being forced to sign the confession of judgment." (12/20/00 Tr.
16). The court indicated that "Brea may do as he wishes." (12/20/00 Tr.
16). Brea signed the affidavit and swore to its accuracy. (12/20/00 Tr.
17). The following discussion then ensued:
The Court:. . . . Mr. Brea do you want to say
. . . .
[Brea]: If, yes. I was forced to sign those
The Court: Do you want to take them back?
[Brea]: No, no, that's it. I was forced to.
The Court: You may have them back and I will tear
them up if you wish. Would you like me to have
them torn up?
[Brea]: Yeah, but you gave me no choice, then you
going to throw me in jail.
The Court: Would you like me to tear them up; yes
[Klein]: I think the answer would be no, Judge.
(12/20/00 Tr. 19-20). The court thereupon sentenced Brea to five
years' probation and ordered him to pay $23,145 (plus service fees) in
restitution. (12/20/00 Tr. 22).
D. Direct Appeal
Represented by new counsel, Brea appealed his conviction to the
Appellate Division, First Department. In his brief, he raised the
following two issues: (1) that his motion to vacate his plea should have
been granted "because his mental state at the time, and his unwillingness
to fully admit to the crime, rendered his plea involuntary" in violation
of, inter alia, the Fourteenth Amendment to the Constitution; and (2) that
the amount of restitution was excessive and "should be reduced in the
interest of justice, as [Brea] is an indigent person supporting an ill
wife and three children." Pet. App. Div. Brief at 10, 14. Brea cited no
federal law on the second issue. See id. at 14-15.
On October 8, 2002, the Appellate Division unanimously affirmed Brea's
conviction. People v. Brea, 298 A.D.2d 173 (1st Dep't 2002). On the first
issue, the court held:
[Brea's] motion to withdraw his guilty plea was
properly denied. The record establishes that the plea
was knowing, intelligent and voluntary, and nothing in
[Brea's] factual recitation, wherein he specifically
admitted to the elements of the crime, casts doubt on
his guilt (see People v Toxey, 86 N.Y.2d 725). To the
extent that [Brea] contends that his mental state at
the time of sentencing was too disturbed to have
enabled him to enter a voluntary plea, this claim is
unpreserved and we decline to review it in the
interest of justice. Were we to review this claim, we
would find that it is not supported by anything in the
Id. at 173. With respect to the second issue, the court held that "[t]he
amount of restitution imposed by the court was proper, and we perceive no
basis for a reduction of sentence." Id.
By letter application dated October 11, 2002, Brea sought leave to
appeal to the New York Court of Appeals. See Letter from Bruce D.
Austern, Center for Appellate Litigation, to the Hon. Judith S. Kaye,
dated October 11, 2002 (annexed as Ex. 4 to Liu Aff). In that letter,
counsel requested that the court "review all claims in our brief [to the
Appellate Division]." Id. at 1. On December 23, 2002, leave was denied.
People v. Brea, 99 N.Y.2d 556 (2002).
E. The Instant Habeas Corpus Petition
Brea timely filed this petition for writ of habeas corpus on June 27,
2003. In it, he argues that his guilty plea was involuntary and that he
received ineffective assistance of trial counsel from both Freifeld and
Klein. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody, filed June 27, 2003 (Docket #1) ("Petition"),
¶ 13. Respondent has opposed the petition. See Liu Aff. ¶ 1; Memorandum
of Law, dated December 2003 ("Resp. Mem.") (annexed to Liu Aff). Brea has
not filed any papers other than his actual petition.
II. APPLICABLE LEGAL PRINCIPLES
A. The Legal Standard for Habeas Petitions Brought Pursuant to
28 U.S.C. § 2254
The federal habeas corpus statute provides:
[A] district court shall entertain an application
for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties
of the United States.
28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal
habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
("[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions."). Rather, a
petitioner must demonstrate that his conviction resulted from a state
court decision that violated federal law.
See, e.g., id. at 68. A petitioner is considered "in custody" for
purposes of 28 U.S.C. § 2254(a) when the petitioner is on probation. See,
e.g., Jones v. Cunningham, 371 U.S. 236
, 242-43 (1963).
Before a federal court may consider the merits of a habeas claim, a
petitioner is first required to exhaust his available state court
remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the
applicant has exhausted the remedies available in the courts of the
State. . . ."); accord Dave v. Attorney Gen., 696 F.2d 186, 190-91 (2d
Cir. 1982) (en bane), cert. denied, 464 U.S. 1048 (1984). To exhaust a
habeas claim, a petitioner is required to have presented the federal
constitutional nature of each claim to all levels of the state appellate
courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per
curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Grey v. Hoke,
933 F.2d 117, 119 (2d Cir. 1991); Dave, 696 F.2d at 191.
C. Procedural Default
Where a state court rejects a petitioner's claim because the petitioner
failed to comply with a state procedural rule, the procedural default
constitutes an adequate and independent ground for the state court
decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50
(1991). Although procedurally defaulted claims are deemed exhausted for
habeas purposes, a procedural default will "bar federal habeas review of
the federal claim, unless the habeas petitioner can show `cause' for the
default and `prejudice attributable thereto,' or demonstrate that failure
to consider the federal claim will result in a `fundamental miscarriage
Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord
Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804,
809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994),
cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n.10
("[A]s long as the state court explicitly invokes a state procedural bar
rule as a separate basis for decision," the adequate and independent
state ground doctrine "curtails reconsideration of the federal issue on
federal habeas."). The bar on habeas review resulting from a procedural
default applies even where, as here, the state court issues an
alternative holding addressing the procedurally defaulted claim on the
merits. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
As indicated, Brea's habeas petition asserts that his guilty plea was
involuntary and that he received ineffective assistance of trial counsel.
See Petition ¶ 13. These two claims are discussed in turn.
A. Claim as to Involuntariness of Guilty Plea
Brea asserts that his guilty plea was involuntary for four reasons: (1)
because Freifeld coerced him to plead guilty; (2) because he "was very
tired"; (3) because he "did not understand that a felony guilty plea [was]
a deportable [offense]"; and (4) because the trial judge "threatend [sic]
me severals [sic] times that he was going to throw me in jail." Petition
¶ 13. Respondent argues that, of these four reasons, the only one that
was fairly presented to the state courts is Brea's claim that his plea
was involuntary because he "was very tired." See Liu Aff. ¶ 17. This
claim is discussed first, followed by a discussion concerning the balance
of Brea's reasons for asserting that his plea was involuntary.
1. "Very Tired" Reason for Pleading Guilty
Respondent argues that Brea's claim that he pled guilty only because he
"was very tired" is barred from federal habeas consideration because it
was procedurally defaulted in the state courts. See Resp. Mem. at 3-8. As
noted above, "federal habeas review is foreclosed when a state court has
expressly relied on a procedural default as an independent and adequate
state ground." Velasquez, 898 F.2d at 9; accord Harris, 489 U.S. at 262.
a. "Independent" State Ground. In the trial court, Brea never moved to
withdraw his plea on the ground that he "was very tired" or indeed based
on any mental condition affecting him. Rather, at the restitution hearing
on November 17, 2000, Klein stated that Brea was moving to withdraw his
guilty plea because he "was not informed by either [Freifeld] or [the
trial judge] that the plea to the felony was an automatic basis for
deportation." (11/17/00 Tr. 2). Brea did not in any way alert the trial
court to the issue raised in the Appellate Division and in this Court:
whether his guilty plea should have been withdrawn because some
deficiency in his mental condition rendered his plea involuntary.
The People thus argued on appeal that Brea's claim was not preserved
for appellate review because "he failed to make a motion to withdraw the
plea on these grounds prior to sentencing pursuant to [N.Y. Crim. Proc.
Law ("CPL")] § 220.60(3), or after sentencing by a motion to vacate the
judgment of conviction pursuant to CPL § 440.10." Respondent's Brief,
dated August 2002 (annexed as Ex. 2 to Liu Aff.), at 8 (citing People v.
Lopez, 71 N.Y.2d 662 (1988); People v. Ambrose, 266 A.D.2d 26 (1st Dep't
1999); People v. Washington, 254 A.D.2d 179 (1st Dep't 1998)). The
Appellate Division agreed that the issue was "unpreserved." Brea, 298
A.D.2d at 173.
Relying on New York's contemporaneous objection rule, CPL § 470.05, the
Court of Appeals of New York has made clear that "in order to preserve a
challenge to the factual sufficiency of a plea allocution there must have
been a motion to withdraw the plea under CPL 220.60(3) or a motion to
vacate the judgment of conviction under CPL 440.10." Lopez, 71 N.Y.2d at
665 (citations omitted); accord People v. Wallace, 247 A.D.2d 257, 259
(1st Dep't 1998). As Lopez explained, "[t]he failure to make the
appropriate motion denies the trial court the opportunity to address the
perceived error and to take corrective measures, if needed." 71 N.Y.2d at
665-66. It is settled under New York law that where a defendant does in
fact move to withdraw his plea in the trial court, but fails to raise a
particular ground in support of that motion, that ground may not later be
used to challenge the sufficiency of the plea allocution on appeal. See,
e.g., People v. Mackey, 77 N.Y.2d 846, 847 (1991); People v. Gonzalez,
300 A.D.2d 150, 150 (1st Dep't 2002); People v. Negron, 222 A.D.2d 327,
327 (1st Dep't 1995).
While the Appellate Division did not specifically state the basis for
its holding that the issue was not preserved, its terse statement that
the issue was "unpreserved" is sufficient to show that it was relying on
a procedural bar. See, e.g., Harris, 489 U.S. at 265 n.12. In addition,
it makes no difference that the Appellate Division issued an alternative
holding addressing the claim on the merits. See, e.g., id. at 264 n.10;
Velasquez, 898 F.2d at 9.
Finally, that the Court of Appeals issued a summary denial of leave to
appeal is of no moment because where "the last reasoned opinion on the
claim explicitly imposes a procedural default" as is true of the
Appellate Division's decision in this case a federal habeas court "will
presume that a later decision rejecting the claim did not silently
disregard that bar and consider the merits." Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991); accord Levine v. Comm'r
of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas court
looks to Appellate Division's reliance on procedural bar where Court of
Appeals issues summary denial of leave to appeal). Thus, the procedural
default relied on by the Appellate Division constituted an "independent"
state law ground for the decision. The remaining question is "whether the
state ground relied upon is `adequate' to preclude federal habeas
review," Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
b. "Adequate" State Ground. A procedural bar is "adequate" if it is
based on a rule that is "`firmly established and regularly followed' by
the state in question." Garcia, 188 F.3d at 77 (quoting Ford v. Georgia,
498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule
is "firmly established and regularly followed" must be judged in the
context of "the specific circumstances presented in the case, an inquiry
that includes an evaluation of the asserted state interest in applying
the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217,
240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)).
The Second Circuit has set forth the following "guideposts" for making
(1) whether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether state
caselaw indicated that compliance with the rule was
demanded in the specific circumstances presented; and
(3) whether petitioner had "substantially complied"
with the rule given "the realities of trial," and,
therefore, whether demanding perfect compliance with
the rule would serve a legitimate governmental
Id. (citing Lee, 534 U.S. at 381-85).
Application of these considerations to Brea's case shows that the
procedural bar relied on by the Appellate Division is one that is "firmly
established and regularly followed." With respect to the first guidepost,
Brea's failure to specifically argue that his guilty plea was involuntary
because of some deficiency in his mental condition was "actually relied
on" by the trial court in the sense that the trial court never was given
occasion to consider and conceivably cure by granting his motion to
withdraw his plea the alleged insufficiency. Cf. Cotto, 331 F.3d at 243
(while "the likely impact of a timely objection involves a certain degree
of speculation," it is possible that "the trial court may well have come
to a different conclusion" had the reasons for the objection been
As for the second consideration, it is well-settled under New York law
that the failure to alert a trial court to a particular basis supporting
a motion to withdraw a guilty plea precludes later use of that basis for
creating a question of law on appeal. See, e.g., Mackey, 77 N.Y.2d at
847; Gonzalez, 300 A.D.2d at 150; Negron, 222 A.D.2d at 327. Thus, state
case law indicates that "compliance with the rule was demanded in the
specific circumstances presented," Cotto, 331 F.3d at 240.
The final guidepost likewise fails to help Brea for there is no
argument that he "substantially complied" with the state procedural rule
through his motion to withdraw the plea at the restitution hearing. The
trial court was not in any way alerted that the plea may have been
involuntary because of some problem with Brea's mental state but rather
was only alerted to Brea's argument that he "was not informed by either
[Freifeld] or [the trial judge] that the plea to the felony was an
automatic basis for deportation" (11/17/00 Tr. 2).
In sum, the Appellate Division's reliance on the state procedural rule
in this situation constitutes both an "independent" and an "adequate"
ground for its decision. Brea's claim is thus procedurally defaulted.
Consistent with this conclusion, federal habeas courts have refused to
consider claims rejected as unpreserved by the New York state courts on
the ground that the
defendant failed to raise the specific insufficiency of the plea
allocution in a motion to withdraw the plea under CPL § 220.60(3) or in a
motion to vacate the judgment of conviction under CPL § 440.10. See,
e.g., Shanks v. Greiner, 2001 WL 1568815, at *4 (S.D.N.Y. Dec. 10, 2001);
Washington v. Ross, 1996 WL 172983, at *5 (E.D.N.Y. Apr. 8, 1996); Oldring
v. Artuz, 1994 WL 665807, at *3-*4 (S.D.N.Y. Nov. 29, 1994).
Although procedurally defaulted claims are deemed exhausted for habeas
purposes, a procedural default will "bar federal habeas review of the
federal claim, unless the habeas petitioner can 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, 489 U.S. at 262 (citations omitted); accord
Coleman, 501 U.S. at 749-50; Fama, 235 F.3d at 809; Bossett, 41 F.3d at
829. To show a "fundamental miscarriage of justice," a petitioner must
make a demonstration of "actual innocence." See, e.g., Calderon v.
Thompson, 523 U.S. 538, 559 (1998); Murray v. Carrier, 477 U.S. 478, 496
(1986); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).
Even construing his pro se petition liberally, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (per curiam), Brea makes no showing that he
is "actually innocent." Brea could show "cause" for the default if he
demonstrated that Klein was ineffective in failing to base Brea's motion
to withdraw his plea on the argument that Brea's mental state prevented
him from entering into the plea voluntarily. However, even Brea's habeas
petition fails to make allegations that he was denied effective assistance
of counsel in this respect. Instead, Brea alleges merely that Klein "did
not put up a fight in court" and "told me that I was guilty and to forget
about getting back my plea." Petition If 13. Neither of these allegations
would be sufficient to show
that Klein acted improperly in not basing the motion on some deficiency
in Brea's mental condition. Accordingly, the procedural default bars
federal habeas review of Brea's claim that his guilty plea was
involuntary because he "was very tired."
2. Other Reasons for Pleading Guilty
Other than Brea's claim that he "was very tired," none of the other
bases for his claim that his plea was involuntary were addressed or even
hinted at in Brea's brief to the Appellate Division. The brief makes no
mention of coercion on the part of Freifeld, of Brea's failure to
comprehend that a felony guilty plea was a deportable offense, or of
threats by the trial judge that he would incarcerate Brea. See generally
Pet. App. Div. Brief at 10-13. Thus, Brea has not exhausted any of these
Brea is now barred from presenting these issues to the state courts
because he cannot now file an appeal to the Appellate Division, see CPL
§ 460.10, and he has already made his one application for leave to appeal
to the Court of Appeals, see N.Y. Court Rules § 500.10(a). He is also
foreclosed from bringing these claims in the state courts as a collateral
attack on his conviction because the claims are record-based (see 5/3/00
Tr. 6-7, 17; 8/1/00 Tr. 2-3; 11/17/00 Tr. 2-3) and thus could have been
raised on his direct appeal. See CPL § 440.10(2)(c).
Because Brea no longer has remedies available in the state courts, his
claims are "deemed" exhausted. See Bossett, 41 F.3d at 829. But because
these same claims are procedurally defaulted, federal habeas review is
barred unless Brea can establish "cause" for the default and "prejudice"
attributable thereto or demonstrate "actual innocence." See, e.g.,
Harris, 489 U.S. at 262; Murray, 477 U.S. at 496; Dunham, 313 F.3d at 730.
As stated above, Brea
makes no showing of "actual innocence." In addition, no circumstances
constituting "cause" have been alleged in Brea's petition. The claims are
therefore barred from federal habeas review.
B. Ineffective Assistance of Counsel Claims
1. Law Governing Ineffective Assistance of Counsel Claims
"In order to prove ineffective assistance, [a petitioner] must show (1)
`that counsel's representation fell below an objective standard of
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.'" Pham v. United States, 317 F.3d 178, 182 (2d Cir.
2003) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984));
accord United States v. Guevara, 277 F.3d 111, 127 (2d Cir. 2001): see
also Massaro v. United States, 123 S.Ct. 1690, 1694(2003) ("[A] defendant
claiming ineffective counsel must show that counsel's actions were not
supported by a reasonable strategy and that the error was
In evaluating the first prong whether counsel's performance fell
below an objective standard of reasonableness "`[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) (alterations in original) (quoting Strickland,
466 U.S. at 689); see Dunham, 313 F.3d at 730 (according counsel a
presumption of competence); Guevara, 277 F.3d at 127 (same). Concerning the
second prong whether there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different the Second Circuit generally "requires some
objective evidence other than defendant's assertions to establish
prejudice." Pham, 317 F.3d at 182 (citing United States v. Gordon,
156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).
2. Merits of the Claims
Brea argues that the representation he received from both Freifeld and
Klein was deficient. See Petition ¶ 13. Although these claims are
unexhausted, it is appropriate for the Court to exercise its discretion
to deny the claims on the merits. See 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.").
Without considering whether Brea could establish the "prejudice"
component of the ineffective assistance analysis, the claims fail because
Brea has not demonstrated that the representation he received fell below
an objective standard of reasonableness. Beginning first with his claim
against Freifeld, Brea asserts that Freifeld "did not wanted [sic] this
case and just wanted to end all this apperances [sic]." Petition ¶ 13.
Brea thus appears to be arguing that Freifeld should not have advised him
to plead guilty and that Freifeld should have advised him to reject the
plea and proceed to trial. However, Brea has failed to demonstrate why
this advice was unreasonable. Brea was charged with, inter alia, Grand
Larceny in the Third Degree, which carries a maximum sentence of seven
years' imprisonment. See N.Y. Penal Law §§ 70.00(2)(d), 155.35. The plea
negotiated by Freifeld carried with it no jail time and five years'
probation. (See 12/20/00 Tr. 22). Brea has not presented any evidence
such as a meritorious defense he had to the charges demonstrating that
Freifeld's advice to accept this plea fell below an objective standard of
In addition, to the extent Brea is arguing that Freifeld was obligated
to advise him that his felony guilty plea would subject him to
deportation, this claim must be rejected. There exists no right to
effective assistance of counsel as to the collateral consequences of a
guilty plea. See, e.g., Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir.
1992), cert. denied, 507 U.S. 1039 (1993). Because deportation is a
collateral consequence of conviction, there is no requirement that a
defendant be made aware of the possibility of deportation prior to
pleading guilty. See United States v. Santelises, 476 F.2d 787, 790 (2d
Cir. 1973); accord United States v. Salerno, 66 F.3d 544, 550-51 (2d Cir.
1995), cert. denied, 516 U.S. 1063 (1996). For these reasons, it is well
settled that an attorney's failure to warn a criminal defendant of
possible deportation prior to pleading guilty does not render the
attorney's legal assistance ineffective. See, e.g., United States v.
Santelises, 509 F.2d 703, 704 (2d Cir. 1975) (per curiam); accord United
States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993) ("[A]n attorney's
failure to advise a client that deportation is a possible consequence of
a guilty plea does not constitute ineffective assistance of counsel.");
Reyati v. Johnson, 2001 WL 1098003, at *3 n.2 (S.D.N.Y. Sept. 10, 2001);
Atunrase v. Lacy, 1996 WL 1088921, at *5 (E.D.N.Y. Sept. 5, 1996): see
also People v. McDonald, 1 N.Y.3d 109, 114 (2003). Accordingly, Brea has
failed to show that Freifeld's representation fell below an objective
standard of reasonableness.
As for the alleged ineffectiveness of Klein, Brea asserts in conclusory
fashion that Klein "did not put up a fight in court" and "told me that I
was guilty and to forget about getting back my plea." Petition ¶ 13.
As for the first statement, it is belied by the transcript of the court
proceedings. At the November 17, 2000 restitution hearing, Klein argued
on behalf of Brea that Brea's motion to withdraw his guilty plea should
have been granted. (See 11/17/00 Tr. 2-4).
Moreover, even after that motion was denied, Klein continued to advocate
for Brea. At the sentencing hearing on December 20, 2000, Klein suggested
that the trial court permit Brea to withdraw his guilty plea because Brea
was unaware that signing a confession of judgment was part of his plea
agreement. (See 12/20/00 Tr. 16). Thus, it cannot be said that Klein "did
not put up a fight in court." As for the second statement that Klein
told Brea that "I was guilty and to forget about getting back my plea"
Brea has not put forth any evidence indicating that Klein's statement
that he "was guilty" was anything but correct. In addition, Klein was
correct in notifying Brea that he was not going to be permitted to
withdraw his guilty plea. The trial judge stated on numerous occasions
that he would not permit Brea to withdraw his plea. (E.g., 5/3/00 Tr. 7;
12/20/00 Tr. 7, 15-16). Indeed, the Appellate Division subsequently
confirmed that Brea had no basis to withdraw his plea. See Brea, 298
A.D.2d at 173. Accordingly, Brea has failed to demonstrate that Klein's
representation was constitutionally deficient.
In sum, Brea's ineffective assistance of counsel claims are without
For the foregoing reasons, Brea'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. Richard
J. Holwell, 500 Pearl Street, New York, New York 10007, and to the
undersigned at 40 Centre Street, New York,
N.Y. 10007. Any request for an extension of time to file objections must
be directed to Judge Holwell. 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
© 1992-2004 VersusLaw Inc.