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BREA v. NEW YORK CITY PROBATION DEPARTMENT

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.

I. BACKGROUND

  A. Indictment

  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 Page 2 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 do this?
[Brea]: No.
(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 emphasized:
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 that?
[Brea]: Yes, your Honor.
  The Court: Has anybody promised you anything else? Page 3

  [Brea]: No.

  . . . .

 

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 it.
[Brea]: Okay.
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 thousand dollars?
[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. So, someone — Page 4

 

The Court: If you are innocent here, if you are innocent.
[Brea]: Yes —
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 Page 5 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?
[Brea]: Yes.
(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). Page 6

  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 anything?
. . . .
[Brea]: If, yes. I was forced to sign those documents.
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 or no? Page 7

  [Klein]: I think the answer would be no, Judge.

  [Brea]:No.

 (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 record.
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. Page 8

  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. Page 9 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).

  B. Exhaustion

  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 of justice.'" Page 10 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).

 III. DISCUSSION

  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. Page 11

  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. Page 12

  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 Page 13 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 this determination:

(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 interest.
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 Page 14 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 given).

  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 Page 15 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 Page 16 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 other claims.

  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 Page 17 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 prejudicial.").

  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 Page 18 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 reasonableness. Page 19

  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). Page 20 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 merit.

 Conclusion

  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, Page 21 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 (1985).

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