United States District Court, W.D. New York
July 6, 2004.
JOSEPH M. ALLEN, Petitioner,
GARY H. FILION, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner, Joseph M. Allen ("Allen"), filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction in Allegany County Court following a
guilty plea to one count of first degree manslaughter. The
parties have consented to disposition of this matter by the
undersigned pursuant to 28 U.S.C. § 636(b). For the reasons set
forth below, Allen's § 2254 petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Allen was indicted by an Allegany County Grand Jury on one
count of second degree murder, four counts of first degree
robbery, one count of third degree arson, and one count of first
degree conspiracy. The People charged that on May 21, 1998, Allen
and an accomplice, Fred E. Perry, Jr. ("Perry"), went to the home
of James Doan ("Doan") in the rural town of Alma, New York. Doan,
who lived by himself, previously had dated Allen's mother.
Apparently, Allen and Perry intended to kill Doan prior to
Perry, armed with a shotgun, and Allen, with a rifle,
approached Doan's house from the woods so as not to be seen.
After secreting their weapons outside the door, Perry and Allen
entered Doan's house and had a conversation with him. Perry asked
Doan for a glass of water, which Doan provided. Perry then stepped outside the door,
retrieved and loaded his shotgun, and re-entered Doan's dining
room. Perry fired into the left rear part of Doan's skull,
killing him instantly.
Allen and Perry then left Doan's house carrying two of the
victim's horse saddles. After a failed attempt to saddle the
horses, the two perpetrators retreated to the woods to discuss
their plans. Ultimately, Allen and Perry returned to scene of the
crime whereupon they lashed Doan's body to a riding lawn mower
and dragged the body across the road and into a barn. There,
Allen and Perry relieved the victim of $614 in cash and some
Allen and Perry returned to Doan's house where they washed as
much blood and brain matter as possible from the walls and floor.
They dumped the cleaning materials in the barn along with the
victim's body, which they covered with hay. The perpetrators then
doused the barn with gasoline and set it afire. Since they were
in a rural area, no one responded to the blaze. Allen and Perry
returned to their respective homes. Allen gave his portion of the
stolen money to his roommate and asked him to purchase car parts
Later in the day, after the incinerated barn and Doan's remains
were discovered, Allen was questioned by police regarding his
whereabouts on the previous evening. Allen was questioned a
second time later in the evening of May 22, 1998, and gave a
different story. Due to the inconsistencies between his two
accounts, Allen was questioned a third time on May 23, 1998.
Apparently, in the interim, Allen also confided to an
unidentified friend that he had been involved in Doan's murder.
During this time, the police picked up Perry on a probation
violation warrant and sent him to Allegany County Jail. Once
there, Perry confessed his involvement in the Doan murder to a
fellow inmate, Michael Lopez ("Lopez"), who then contacted the
police. Lopez met with Investigator Fish of the state police on
May 24, 1998, and gave a statement concerning Perry's admissions.
(Lopez testified at a pre-trial hearing that he received no
promises of leniency from the police in exchange for this
information.) The same day, after receiving this information from Lopez,
Investigators Fish and Harris went to Allen's home and requested
that he come down to the police barracks. Allen, accompanied by
his mother, followed the troopers to the barracks. Once there,
Investigator Fish read Allen his Miranda rights. Allen asked
for a lawyer, whereupon Investigator Fish left the room.
Immediately thereafter, Allen informed Investigator Harris that
he had something to tell him and spontaneously began recounting
the events of May 21, 1998. Investigator Harris transcribed
Allen's oral statements, but Allen did not sign a written
statement or the officer's notes.
Allen then was placed under arrest and detained at the Allegany
County Jail where he, too, made admissions to an unidentified
person or persons about the Doan murder which were heard by
Lopez. Lopez gave a second written statement to Investigator Fish
on May 28, 1998, with respect to additional inculpatory
statements by Allen and Perry.
A hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 78
(1965) ("Huntley"), was held before County Court Judge Euken on
October 30, 1998, to determine the voluntariness of Allen's oral
statements to the police. Lopez, the jailhouse informant, and
Investigator Harris were the only witnesses at the hearing.
Investigator Harris testified that when Allen arrived at the
barracks on May 24, 1998, he was present when Investigator Fish
read Allen his Miranda warnings, at which point Allen requested
the services of a lawyer. Investigator Fish then left the room
while Investigator Harris remained. According to Investigator
Harris, Allen suddenly said, "I have something I have got to tell
you," and spontaneously began recounting the events surrounding
the Doan murder. See Transcript of Huntley Hearing at 42-43,
Respondent's Appendix of Exhibits ("App.")*fn2 at 166-67.
Investigator Harris indicated that he just listened to Allen and
wrote down what he said. Investigator Harris testified that he
did not ask Allen any questions other than "can [you] repeat what
[you] said" or "could you say it louder" Id. According to
Investigator Harris, he did not ask for additional details, such as information
regarding dates or places or times. Id. at 45, App. at 169.
Allen was not asked to give a written statement, nor was he asked
to sign Investigator Harris's notes. Id. at 46, App. at 170.
Investigator Harris testified that Allen did not leave the
interrogation room to go use the telephone before he started
confessing to the murder. Nor did Investigator Harris offer to
have a lawyer contact Allen at that time. Id. at 60, App. at
183. Investigator Harris conceded that Allen was not free to go,
even before Allen began making inculpatory oral statements that
afternoon. Id. at 62-63, App. at 185-86. Once Allen completed
giving his oral statement, he was placed under arrest.
Judge Euken issued a written decision denying Allen's motion to
suppress on November 30, 1998. The court observed that under New
York law, "[o]nce an attorney has entered the proceeding, the
police may not question a suspect in the absence of counsel
unless there is an affirmative waiver in the presence of counsel
of the defendant's right to counsel." 11/30/98 County Court
Order, App. at 227 (citing People v. Arthur, 22 N.Y.2d 325, 329
(1968)). However, the court noted, the rule in People v. Arthur
"does not apply when the defendant makes spontaneous admissions
that are not the product of police interrogation." Id. (citing
People v. McKie, 25 N.Y.2d 19, 28 (1969)). Furthermore, the
court explained, "a spontaneous oral admission does not
constitute custodial interrogation within the meaning of Miranda
v. Arizona[.]" Id.
In the present case, Judge Euken found, "[t]here was neither
questioning nor the functional equivalent of questioning after
the defendant invoked his right to counsel." Id. The court
Allen blurted out his admissions in a genuinely
spontaneous manner. He just let it out. He had not
been arrested; he had not been asked a single
question about the homicide. The record is void of
any inducement, provocation, encouragement or
acquiescence on the part of the State Police
. . .
The actions of the State Police in asking Allen to
talk to them and then terminating the interview when
he asked for a lawyer does not amount to police
interrogation. Their actions did nothing to evoke his
voluntary, spontaneous admissions. . . .
Id. at 228 (citations omitted).
Finding that neither the Sixth Amendment right to counsel nor
the Fifth Amendment right to remain silent were violated by
Allen's spontaneous admissions, the court held that Allen was not
subjected to a custodial interrogation. Id. at 229.
Accordingly, the court determined that "[w]hile the handwritten
document itself may not be admissible at trial, the investigator
will not be precluded from testifying about the substance of the
oral admissions." Id.
Following extensive pre-trial discovery, the People offered
Allen the opportunity to plead guilty to one count of first
degree manslaughter in full satisfaction of the charges in the
indictment, with the court to retain discretion in sentencing.
Allen accepted, and on February 9, 1999, he appeared with his
attorney in Allegany County Court before Judge Euken. In a
colloquy with his counsel, Allen admitted that he went to James
Doan's property with Perry with the intent to cause serious
physical injury to Doan by shooting him. Transcript of Plea
Hearing at 9, App. at 238. Allen admitted that prior to the
murder, he had requested that Perry cause serious physical injury
to Doan. Id. The court accepted Allen's guilty plea.
Defense counsel requested that Allen be granted youthful
offender status, but Judge Euken declined. The court found it a
significant reflection upon Allen's credibility that Allen made
"conflicting, self-serving" statements in his pre-sentencing
report. The court gave Allen some credit that he was not the
individual who pulled the trigger, but stated that it felt that
"substantial justice" would be served by having Allen and his
co-defendant be in "substantially the same boat." See
Transcript of Sentencing Hearing at 17-19, App. at 258-60.
Accordingly, Judge Euken sentenced Allen on March 26, 1999, to an
indeterminate sentence of 11 ½ to 23 years in prison.
Represented by different counsel, Allen appealed his conviction
to the Appellate Division, Fourth Department. The only issue
raised in counsel's appellate brief was the harshness of Allen's
sentence. The Fourth Department unanimously upheld the conviction
on June 16, 2000, in a summary affirmance. People v. Allen,
273 A.D.2d 951 (4th Dept. 2000). The New York Court of Appeals denied leave to appeal on August 14, 2000.
People v. Allen, 95 N.Y.2d 863 (2000).
Allen, proceeding pro se, collaterally attacked his
conviction by means of a motion to vacate the judgment pursuant
to New York Criminal Procedure Law ("C.P.L.") § 440.10. Allen
alleged that the prosecutor knowingly allowed a false statement
by his co-defendant, Perry, to be included in the record, and
that his guilty plea had been induced by threats and promises.
See 2/16/01 C.P.L. § 440.10 Motion, App. at 280-85. In support
of this motion, Allen submitted a purported affidavit from Perry
dated June 16, 2001, in which Perry stated that Allen "was
wrongfully accused," and that Allen could not have known what
Perry's felonious intentions were because Perry "was Mentally,
and Emotional [sic] sick, and unstable, suffering from `Extreme
Emotional Distress,' which by being in that condition, . . .
[Perry] didn't even know, or was aware of, [his] Intentions."
See 6/16/01 Affidavit of Fred Perry, App. at 284.
Judge Euken issued a written decision and order on March 9,
2001, denying Allen's motion. The court noted that in order to
obtain a vacatur based upon false evidence, the evidence must
have been used at trial. See 3/8/01 County Court Order, App. at
289-91 (citing C.P.L. § 440.10(1)(c).*fn3 Here, the court
found there was no trial since Allen was convicted following a
guilty plea. The court further observed that recantations by a
co-defendant are "extremely unreliable." Id. at 290.
As to Allen's claim that the prosecutor used Allen's young age
to obtain a plea agreement, the court found that there were no
facts to support this allegation. Id. The court also determined
that Allen failed to allege any factual basis for his claim of
duress. Accordingly, the court denied the motion without a
Prior to seeking leave to appeal that decision to the Appellate
Division, Allen filed a petition for a writ of habeas corpus in
this Court on March 21, 2001. Respondent answered, raising the failure to exhaust state remedies based upon Allen's
failure to appeal the denial of the C.P.L. § 440.10 decision to
the Appellate Division, the highest court from which a decision
could be obtained in regards to that matter. Allen subsequently
requested, and was granted, permission to withdraw his petition
in order to return to state court to exhaust his state remedies.
See Allen v. Filion, No. 01-CV-0217 (W.D.N.Y. Mar. 23, 2001).
The Appellate Division subsequently denied leave to appeal the
denial of the C.P.L. § 440.10 motion.
Allen filed an application for a writ of error coram nobis
alleging ineffective assistance of appellate counsel.*fn4
The Appellate Division denied coram nobis relief in a summary
order entered February 1, 2002.
Allen filed the instant habeas petition on February 11, 2002.
I. Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a
petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000). II. Merits of the Petition
A. Ineffective assistance of appellate counsel
In order to prevail on a claim of ineffective assistance of
counsel within the framework established by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984) ("Strickland"),
a habeas petitioner must satisfy a two-part test. First, he must
show that his attorney's performance "fell below an objective
standard of reasonableness," id. at 688, and second, he must
show that there is a "reasonable probability" that but for
counsel's error, the outcome would have been different, id. at
694. Although the Strickland test was formulated in the context
of evaluating the effectiveness of trial counsel, the same
standard applies to claims regarding the performance of appellate
counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)
(citing, e.g., Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.
1992)). Appellate counsel need not present every non-frivolous
argument that could be made on petitioner's behalf. Mayo, 13
F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394 (1985)
(emphasizing that appellate counsel "need not advance every
argument, regardless of merit, urged by the appellant").
Moreover, reviewing courts should not employ hindsight to
second-guess an appellate attorney's choices concerning strategy.
Mayo, 13 F.3d at 533; see also Jones v. Barnes, 463 U.S. 745,
754 (1984) ("For judges to second-guess reasonable professional
judgments and impose on appointed counsel a duty to raise every
`colorable' claim suggested by a client would disserve the 
goal of vigorous and effective advocacy[.]"). However, a habeas
petitioner may establish constitutionally inadequate performance
if he shows that his appellate counsel omitted material and
obvious issues while pursuing arguments that were patently and
significantly weaker. Mayo, 13 F.3d at 533.
Allen points to a letter from his appellate attorney dated
December 6, 1999, informing Allen that counsel would be raising
one argument on appeal namely, that Allen's sentence was harsh
and excessive. See App. at 306. Counsel indicated that the only
other argument which he would consider making was whether the
county court erred in finding that Allen's statements to police were admissible. Counsel explained that were he to make
such an argument and succeed, the judgment of conviction would be
reversed. Id. Although the statements would be suppressed, the
People still would have the right to prove the original charge of
second degree murder against Allen using other evidence. Counsel
stated, "I am not clear as to whether or not you want to take the
chance of having your reduced plea vacated. That decision is up
to you." Id. Counsel asked Allen to let him know as soon as
possible whether he wished to include the admissibility issue in
the appellate brief.
There are no copies of any correspondence from Allen to his
appellate counsel contained in respondent's appendix, and Allen
has not included any in connection with his habeas petition.
Allen implies, however, that he told counsel that he wanted to
include the admissibility issue, notwithstanding the possible
risks: "However, the appellate attorney did not even file [the
issue] in the brief after petitioner wanted him to present the
issue which would of [sic] won a reversal in the appellate
attorney's own words."Petitioner's Memorandum (Docket #8) at
Point I, first paragraph (emphasis supplied). Nevertheless, the
record is devoid of any evidence that he actually instructed his
appellate attorney to present the issue.
A federal or a state law claim that was improperly omitted from
an appeal may form the basis for an ineffective assistance of
appellate counsel claim, "so long as the failure to raise the
state . . . claim fell outside the wide range of professionally
competent assistance." Mayo v. Henderson, 13 F.3d at 533
(quotations omitted). After reviewing the relevant New York case
law, the Court concludes that any such argument likely would have
proved fruitless on appeal since the trial court appears to have
properly applied the relevant state precedent concerning the
admissibility of voluntary statements following the invocation of
the right to counsel.*fn5 The New York Court of Appeals has noted that
[i]f the individual states that he wants an attorney,
the interrogation must cease until an attorney is
present" (Miranda v. Arizona, 384 U.S. 436, 474,
86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 [(1966)]; see
Michigan v. Mosley, 423 U.S. 96, 104, n. 10, 96 So.
Ct. 321, 46 L.Ed.2d 313 [(1975)]; see, also,
concurring opn. (White, J.) 423 U.S. at pp. 109-110,
96 S.Ct. 321.
Once an attorney has been requested, interrogation
must cease, but this rule does not render
inadmissible all statements made after a request for
counsel. The defendant may make a spontaneous
admission or simply change his mind and voluntarily
make a statement. The Miranda decision was designed
to prevent further interrogation, and thus a
statement is admissible if volunteered even if an
attorney is on the way.
People v. Buxton, 44 N.Y.2d 33, 37 (1978) (some citations
omitted); accord, e.g., People v. Davis, 75 N.Y.2d 517, 523
(1990) ("[T]here is no legal requirement that an attorney be
present before the witness changes an earlier decision to remain
silent and talks to the authorities.) (relying on Buxton,
supra); see also People v. Kaye, 25 N.Y.2d 139, 142 (1969)
("The record amply supports the factual findings of the courts
below that defendant volunteered the confession in the police car
without interrogation after having been advised of his
constitutional rights by his attorney and the detectives. The
record indicates that defendant was rational and coherent at the
time he volunteered this confession.") (emphasis supplied).
On federal habeas review, a state court's factual findings are
entitled to a presumption of correctness which the petitioner
must rebut by a showing of clear and convincing evidence. See
28 U.S.C. § 2254(e)(1). Allen, however, has not met this burden.
Moreover, the Court has reviewed the transcript of the Huntley
hearing, and even were the Court to perform a de novo review,
it would find no clear error in the trial court's determinations
of fact. The evidence at the Huntley hearing showed that Allen
spontaneously began making admissions to Investigator Harris
after Investigator Fish left the room. The state court observed
that Allen's admissions were "a form of stream of consciousness,"
and that the errors contained in the admissions "only
corroborate[d] the testimony and role of Inv. [sic] Harris who
acted as a scrivener and not an investigator." See App. at 228.
There was no evidence at the hearing that Investigator Harris
"interrogated" Allen while Allen was giving his narrative version
of the events of May 21, 1998.
The course Allen claims he wanted his appellate counsel to
follow was certainly not without substantial risks. Were a
reversal obtained and Allen's inculpatory statements precluded,
the People still would have been entitled to prove the original
charges of conspiracy and second degree murder based upon
different evidence. At the bail hearing, the prosecutor
represented that there was "a virtual mountain of evidence, both
forensic, physical and documentary to bring to bear in this
case." See Transcript of Bail Hearing at 9, App. at 104. In
addition, the People would have called Lopez, the informant, who
would have testified that Perry made statements inculpating Allen
in the murder. Also, there was a statement by Lopez to
Investigator Fish summarizing admissions that Allen himself
allegedly made to Lopez. There were, apparently, other
individuals who also had heard Allen inculpate himself. Thus,
Investigator Harris's testimony as to Allen's spontaneous
admissions was not the sole evidence on which the state could
build a compelling case against Allen.
The Court concludes that appellate counsel's omission of the
challenged argument was not an example of incompetent lawyering.
The Supreme Court has explained that the second issue of
prejudice need not be addressed if a petitioner is unable to
demonstrate first that his counsel's performance was inadequate.
Strickland, 484 U.S. at 697 ("[T]here is no reason for a court
deciding an ineffective assistance claim to . . . address both
components of the inquiry if the defendant makes an insufficient
showing on one."). Even so, given the fact that the argument
Allen identifies as omitted on appeal is without merit, he is
unable to prove prejudice as well. Omission of insignificant claims that will likely be
unsuccessful does not prejudice a defendant. See Mayo, 13 F.3d
at 534 ("To establish prejudice in the appellate context, a
petitioner must demonstrate that `there was a "reasonable
probability" that [his] claim would have been
successful. . . .'") (alteration in original) (quoting Claudio
v. Scully, 982 F.2d 798, 803 (2d Cir. 1992))). For these
reasons, Allen cannot fulfill the requisite criteria for
obtaining habeas relief based upon his appellate counsel's
B. Harsh and excessive sentence
Allen argues that his sentence did not fall within the
statutory range because he was eligible for youthful offender
status. Allen points to the fact that the Pre-Sentencing Report
("PSR") completed by the probation department indicated that he
was available for youthful offender status, but the judge
specifically declined to grant it. Allen also notes that the PSR
did not include a recommendation that Allen be incarcerated in
A petitioner's assertion that a sentencing judge abused his
discretion in sentencing is generally not a federal claim subject
to review by a habeas court. See Fielding v. LeFevre,
548 F.2d 1102, 1109 (2d Cir. 1977) (petitioner raised no cognizable
federal claim by seeking to prove that state judge abused his
sentencing discretion by disregarding psychiatric reports)
(citing Townsend v. Burke, 334 U.S. 736, 741 (1948) ("The
[petitioner's] sentence being within the limits set by the
statute, its severity would not be grounds for relief here even
on direct review of the conviction, much less on review of the
state court's denial of habeas corpus."). A challenge to the term
of a sentence does not present a cognizable constitutional issue
if the sentence falls within the statutory range. White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); accord Ross v.
Gavin, 101 F.3d 687 (2d Cir. 1996) (unpublished opinion).
In this case, New York Penal Law § 70.02 establishes sentencing
guidelines for those found guilty of first degree manslaughter,
the class B felony to which Allen pled guilty in satisfaction of
an indictment containing counts of second degree murder, robbery,
arson, and conspiracy. Allen's sentence of 11 ½ to 23 years was
well within the statutory limit. See New York Penal Law § 70.02(3)(a) ("For a class B felony, the term
must be at least five years and must not exceed twenty-five
years[.]"). Accordingly, Allen's sentencing claim is not
cognizable on habeas review.
C. Involuntariness of guilty plea
Allen argues that his "plea was not knowing since
petitioner['s] age of 16 and lack of history with the court
system did not allow petitioner the knowledge to [sic] the
defenses and options." Petitioner's Memorandum of Law (Docket #8)
at Point III, second paragraph.*fn6 In rejecting this claim,
brought in support of Allen's C.P.L. § 440.10 motion, the state
court held that there were no facts to support the allegation
that the prosecutor used Allen's age to obtain a plea agreement.
App. at 290. The court explained, "The pre-sentence investigation
lists defendant's age as 17 with a date of birth of 9/6/98. The
indictment lists the crime date of 5/21/98." Id. Thus, Allen
was 16-years-old at the time of the crime, and 17-years-old at
the time he pled guilty.
The Due Process Clause of the Fourteenth Amendment requires
that a plea of guilty be knowingly and voluntarily entered.
Boykin v. Alabama, 395 U.S. 238, 242-43, & n. 5,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States,
394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969);
accord, e.g., Innes v. Dalsheim, 864 F.2d 964, 977 (2d Cir.
1988). "A plea is made knowing[ly] when made `with [an]
understanding of the nature of the charge and the consequences of
the plea.'" Sims v. Ricks, 2002 WL 1808207, at *3 (S.D.N.Y.
Aug. 6, 2002) (quoting Santobello v. New York, 404 U.S. 257,
262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). "`[T]he standard for
determining the validity of guilty pleas [is] whether the plea
represents a voluntary and intelligent choice among alternative
courses of action open to the defendant.'" Ventura v. Meachum,
957 F.2d 1048, 1058 (2d Cir. 1992). In this regard, the trial court judge is charged with making a searching inquiry into the
circumstances surrounding the plea in order to determine whether
the defendant does actually understand the significance and
consequences of a particular decision. See Boykin, 395 U.S. at
243-44; Godinez v. Moran, 509 U.S. 389, 401, n. 12,
113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
Simply because Allen was a juvenile does not, in and of itself,
render him incapable of making a knowing and voluntary waiver of
a constitutional right. An accused's age is but one factor to be
considered in determining the voluntariness of a guilty plea.
See Irizarry v. United States 508 F.2d 960, 964 n. 3 (2d Cir.
1974) (In determining whether defendant tendering plea of guilty
understands nature of charge, factors to be considered include
complexity of charge, defendant's age, record, intelligence,
education, ability to comprehend what was being said to him, and
whether defendant was represented by counsel.). The elements of
the manslaughter charge were not terribly complex, and there is
no allegation that Allen was of below-average intelligence or did
not understand what transpired at the various hearings before the
court. Furthermore, Allen was ably represented by an experienced
trial attorney. Lastly, in his presentencing statement to the
court, Allen spoke articulately about how he regretted the events
of May 21, 1998.
At the plea allocution, the trial court questioned Allen
thoroughly about the consequences of pleading guilty. Allen
agreed that he had "plenty of time" to talk to his lawyer and
discuss his options. Allen confirmed that his attorney was
representing him properly and spending time with him to discuss
the plea agreement. The trial judge ascertained that Allen
understood that he was giving up the right to a jury trial, the
right to confront and cross-examine witnesses, and the right
against self-incrimination. The judge explained that Allen's
guilty plea had the same legal effect as if a jury convicted him.
Allen agreed that he understood the duration of the maximum and
minimum sentences he could receive once he pled guilty. The judge
explained that he did not contemplate sentencing Allen as a
youthful offender. Allen indicated that no promises had been made
to him, nor had any threats been issued to him in order to induce him to plead guilty. Lastly, Allen agreed that he
was entering into the plea agreement so as to avoid the
possibility of being convicted on other, more serious offenses
contained in the indictment, such as murder. See Transcript of
Plea Hearing at 3-8, App. at 232-37.
Upon the record before it, the Court can find no evidence which
would cause it to conclude that Allen's guilty plea was not
knowingly or voluntarily entered. Allen's youth and lack of a
criminal record, without more, are not enough to invalidate his
relinquishment of his rights by pleading guilty.
For the reasons stated above, Joseph Allen's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Allen has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253.
IT IS SO ORDERED