United States District Court, S.D. New York
July 7, 2004.
ERIC WILSON, Petitioner,
MICHAEL McGINNIS, Superintendent, Southport Correctional Facility, Respondent.
The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
OPINION AND ORDER DENYING HABEAS CORPUS
Petitioner Eric Wilson petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner pleaded guilty to
Attempted Robbery (N.Y. Penal Law §§ 110/160.10), and was
sentenced on December 22, 1998 by the Supreme Court, Bronx
County, pursuant to his plea agreement, to a term of twelve years
to life. Since, at the time petitioner committed his crime, he
was on bail from a previous conviction, waiting to begin a
sentence of three to six years for selling narcotics, the
sentencing judge was required by law to sentence him
consecutively. N.Y. Penal Law § 70.25(2-b). Accordingly, the
sentencing judge ordered that petitioner's term of twelve years
to life should run consecutively to his term of three to six
Petitioner was not advised when he pleaded guilty that his
sentences were to run consecutively. He was advised only that his
prior convictions required him to be sentenced as a persistent
violent felony offender to an enhanced indeterminate term of
between twelve and twenty-five years, and life. Petitioner
demanded, upon hearing his sentence and the number of years that
it was to run, that he be allowed to withdraw his plea; "Why
can't I get my cop out back?" he cried. S Tr. at 9.*fn1 The court refused, holding
that his plea had been made knowingly and intelligently.
Petitioner now challenges his conviction on the ground that his
guilty plea was not made knowingly and intelligently, because the
trial court neglected to inform him that his sentence would run
consecutively to a previously ordered sentence. I hold that
petitioner's constitutional rights were not violated when the
sentencing judge refused to allow petitioner to withdraw his
plea. Petitioner knew that his sentence was a life sentence, and
that he would be sentenced to an indeterminate term of twelve to
twenty-five years minimum, and life. The fact that he could not
be considered for parole until after the fifteenth year, rather
than the twelfth year, of his term, in the context of what he was
told, did not rise to an infringement of his constitutional
rights. Furthermore, petitioner's plea agreement related to his
offense of attempted robbery, and did not mention the unrelated
prior offense of selling narcotics, nor provide whether he should
merit concurrent, rather than consecutive, treatment to a
previously ordered sentence. Petitioner did not have a
constitutional right to withdraw from his plea agreement.
On April 28, 1995, petitioner was arrested and charged with
selling narcotics to an undercover police officer, a Class E
felony. N.Y. Penal L. § 221.45. He pleaded guilty on October 7,
1997 in the Supreme Court, Bronx County, and was sentenced on
March 30, 1998 to a term of three to six years in prison. On
August 26, 1996, a year and four months after his crime of
selling narcotics, petitioner committed a second crime, robbery,
by pulling a gold chain from around another man's neck. He
committed the crime while he was on recognizance or bail with respect to his crime of selling narcotics, but prior to the
imposition of sentence for that crime. Petitioner pleaded guilty
to attempted robbery on September 15, 1998.
The court's allocution of petitioner in connection with his
plea of guilty made petitioner aware that he was subject to an
indeterminate term of 12 to 25 years, to life, and that the
"minimum sentence that I can sentence you to is 12 to life." P
Tr. at 60.*fn2 The court advised petitioner that his plea of
guilty to attempted robbery, "a violent felony offense," made him
a persistent violent felony offender, for he had "previously been
subjected to two or more predicate violent felony convictions,"
N.Y. Penal Law § 70.08(1)(a): attempted robbery in the second
degree in 1983, and robbery in the first degree in 1986. The
court explained to petitioner, "In your case you have been
convicted of two prior violent felony offenses and therefore,
this being a violent felony offense the minimum sentence I can
give you is 12 years, maximum life. Do you understand that." P
Tr. at 64. Petitioner answered "Yes." Id. Petitioner confirmed
that he had discussed the plea with his attorney, that no one had
forced him to plead guilty, and that no one had told him anything
other than that his sentence would be "minimum 12, maximum life."
At petitioner's sentencing, on December 22, 1998, the
prosecutor advised the court the sentence for attempted robbery
of twelve years to life was required to run consecutively to
petitioner's unexecuted sentence for selling narcotics of three
to six years. N.Y. Penal Law § 70.25(2-b). Petitioner, upon
hearing the sentence, complained vehemently that the prison term
was too long:
I don't feel I should just cop out to 12 years to
life. I'm 32 years old. I'll be 40 something when I
come home. I want a fair trial. I want a fair trial
so I can have my part. I have a fighting part in
this. I don't feel its right just to give me 12 to
life for a chain snatching that never took place.
Never got no chain or nothing like that. . . . There is no way I will take 12 years
to my life, you know what I'm saying, for something I
know I could fight and got a possible chance of
beating. I'm asking the mercy on the Court and
everybody else, that they please let me go to trial.
Please let me take this plea back. I did not do this.
S Tr. at 3-5.
Petitioner argued that there was little evidence of his guilt,
that he had repeatedly asserted his innocence, and that he was
pressured to plead guilty by his attorney. The court denied the
motion, pointing out that petitioner's asserted alibi was
demonstrably false, and that he clearly knew what he was doing
when he pleaded guilty. Petitioner did not mention the
consecutive aspect of the sentence in his argument to the court.
Petitioner appealed to the Appellate Division, First
Department, presenting two arguments: (1) that his plea was not
intelligent and knowing since the court failed to advise him that
the sentence would run consecutively to the earlier imposed
sentence; and (2) that his plea was involuntary based on his
assertions of innocence and impaired judgment. The Appellate
Division unanimously affirmed petitioner's conviction on the
merits, rejecting his argument that his plea was not voluntary.
People v. Wilson, 749 N.Y.S.2d 409 (App. Div., 1st Dept. 2002).
Leave to appeal to the Court of Appeals was denied. People v.
Wilson, 99 N.Y.2d 566, 784 N.E.2d 92 (N.Y. 2002).
In his petition to this court for a writ of habeas corpus,
petitioner claims that his guilty plea was not knowing and
intelligent because he was not informed that his sentence was to
run consecutively to his sentence for selling narcotics. II. Discussion.
A. Standard of Review
The standard of review of a state court decision on a habeas
petition is to consider if the decision (1) "was contrary to or
involved an unreasonable application of clearly established
federal law, as determined by the Supreme Court of the United
States;" or (2) "was based on an unreasonable determination of
the facts in light of the evidence presented."
28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412-13
The petitioner must have exhausted the remedies available in
the state courts, unless "there is an absence of available State
corrective process," or "circumstances exist that render such
process ineffective to protect the rights of the applicant."
28 U.S.C. § 2254(b)(1)(A), (B). The petitioner must have "utilized
all available mechanisms to secure [state] appellate review of
the denial" of his claims, having made the state courts aware
that the United States Constitution was a basis for the requested
relief. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).
Factual determinations "shall be presumed to be correct[,]"
28 U.S.C. § 2254(e)(1), subject to rebuttal by "clear and convincing
Petitioner has exhausted all available mechanisms of review by
the New York State courts. Accordingly, I review the merits of
B. Petitioner's Guilty Plea was Knowing and Intelligent
Petitioner contends that his plea was not intelligently made
since the court did not inform him when he pleaded guilty to
attempted robbery that his sentence would run consecutively to
the sentence he previously had been given for selling narcotics.
The Appellate Division rejected his argument. The court held:
The fact that defendant was not informed that his
bargained-for term would run consecutively with the
undischarged sentence on a previous conviction did
not impair the voluntariness of the plea, since the
requirement that the sentences run consecutively was
a statutory mandate and not a part of the plea
People v. Wilson, 749 N.Y.S.2d at 409.
Whether a guilty plea was knowing and intelligent is a question
of federal constitutional law, Boykin v. Alabama, 395 U.S. 238,
242-43 (1969), and a knowing and intelligent plea is a
requirement of due process. Brady v. United States,
397 U.S. 742, 748 (1970). A plea of guilty waives a defendant's
constitutional right to trial by jury, and "[w]aivers of
constitutional rights . . . must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and
likely consequences." Id. A court cannot accept a plea of
guilty without an affirmative showing that it was intelligent.
Boykin, 395 U.S. at 242.
State courts have the obligation of "canvassing the matter with
the accused to make sure he has a full understanding of what the
plea connotes and of its consequences." Id. at 243-44. That is,
"[t]he election to plead guilty requires notification of certain
consequences in order to assure that the relinquishment of
significant rights at the time of the plea is knowing and
voluntary." Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir.
1998).*fn3 A guilty plea must represent "a voluntary and
intelligent choice among the alternative courses of action open
to the defendant." North Carolina v. Alford, 400 U.S. 25, 31
A court does not have to inform a defendant of all consequences
of a guilty plea; "[c]ertain possible consequences of a guilty
plea are `collateral' rather than direct and need not be
explained to the defendant in order to ensure that the plea is
voluntary." United States v. United States Currency in the
Amount of $228,536, 895 F.2d 908, 915 (2d Cir. 1990). Deportation is an example of a "collateral" consequence that
courts are usually not required to disclose to a defendant at a
plea allocution.*fn4 Michel v. United States,
507 F.2d 461, 465-66 (2d Cir. 1974); see also United States
Currency, 895 F.2d at 915-16 (civil tax liability "does not
follow directly from a guilty plea to a charge of filing a false
and fraudulent tax return"; and mentioning other examples of
collateral effects: "parole eligibility or revocation, the
likelihood of an undesirable military discharge, [or] the
potential for civil commitment proceedings").
In Parry v. Rosemeyer, 64 F.3d 110, 114 (3d Cir. 1995), the
trial court did not inform the defendant that his sentence could
be increased if he violated his probation. The Court of Appeals
held that the possibility was collateral, and that defendant's
constitutional right to due process was not violated by enforcing
the plea of guilty. The Court of Appeals held that a revocation
of probation "is not generated by the plea but by the defendant's
own unwillingness or inability to conform to the restrictions
imposed as part of probation." Id.
Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 1998), a
habeas corpus case arising from two federal convictions,
presented essentially the same issue as that in the case before
me. Cucciniello was arrested for unlawfully possessing a firearm,
and was released on bail. Subsequently, he pleaded guilty, with
bail being continued pending sentencing. He then committed a
second crime gambling and racketeering prior to his
sentencing on the gun charge, and was again released on bail,
subject to a special condition of home confinement. Subsequently,
Cucciniello was sentenced, first on the firearms conviction to a
fine and probation, including six months of home detention, and second, on the
racketeering charge, to 57 months of imprisonment.
The issue in Cucciniello was whether or not he was entitled
to credit for his home confinement, in connection with his
sentence of probation on the firearms charge and in connection
with his bail on the gambling and racketeering charges, amounting
to almost two years in all. The Court of Appeals held that
Cucciniello was not entitled to credit. His two sentences were
independent and, by operation of law, consecutive, unless the
court ordered the two terms to run concurrently.
18 U.S.C. § 3584(a). Consequently, his sentence of 57 months imprisonment was
Cucciniello argued also that his sentence was constitutionally
invalid, denying him his right to due process of law, because he
had not been advised that his home detention could not be
credited against a term of imprisonment. The Court of Appeals,
analogizing the issue to the advice that a judge is required to
give upon a plea allocution, Rule 11, Fed.R. Crim. P., rejected
the argument, holding in line with its earlier precedent:
We have even gone so far as to hold that a defendant
pleading guilty need not be informed that any federal
sentence, when required by statute, will be imposed
consecutively to a state sentence, because the
requirement of consecutiveness does not `lengthen' or
`directly affect' the federal sentence.
137 F.3d at 725 (citing United States v. Parkins, 25 F.3d 114
119 (2d Cir. 1994)).
Parkins, in connection with his federal plea of guilty to
misrepresentation of his citizenship, was not advised that his
sentence would run consecutively to a state sentence that he was
currently serving for violating a condition of his parole. The
Court of Appeals held that the trial court's neglect to advise
him that his sentence would begin to run after he was received in
federal custody, that is, consecutive to the completion of his
state sentence, see 18 U.S.C. § 3585 (a), did not violate any constitutional right, for the
consequence was "collateral," not "direct."
While § 3585(a) may in effect lengthen Parkins's time
in jail, it does not lengthen the federal sentence,
or directly affect it in any other way.
25 F.3d at 118. The Court of Appeals observed that its holding
was consistent with precedents in the Third, Fourth, Fifth,
Eighth, and Tenth Circuits. Id., at 119. Compare United States
v. Barbee, 678 F.2d 634 (5th Cir. 1982) (not requiring
allocution that sentences for separate crimes will be
consecutive), with United States v. Wills, 881 F.2d 823
Cir. 1989) (holding that duty to allocute depends on whether
trial judge may or must sentence consecutively; if
discretionary, consequence is "collateral" and allocution on
subject not required; if mandatory, consequence is "direct" and
allocution on subject is required). Cucciniello and Parkins,
not Wills, states the rule to be followed in the courts of the
Second Circuit. See Cucciniello, 137 F.3d at 725-26
(Calabresi, J., concurring).
Petitioner's two guilty pleas for the two offenses he committed
selling narcotics and attempted robbery were entered in two
separate proceedings. Each plea was independent of the other, and
neither was a condition precedent to, nor a cause of, the other.
Similarly, petitioner was sentenced separately for his narcotics
offense and for his attempted robbery offense, and neither
sentence was a condition of the other. As held in Cucciniello,
the two sentences were "collateral" in respect of each other, and
one was not a "direct" consequence of the other. The neglect to
advise petitioner, when he allocuted to his guilt of attempted
robbery, that the sentence for that offense would be consecutive
to the sentence he had already been given for selling narcotics,
did not vitiate the knowing and intelligent quality of
petitioner's guilty plea.
Typically, a New York trial judge, in connection with
procedures following guilty pleas, learns of a defendant's
criminal history after his plea and before his sentence. See generally Rosa v. Herbert, 277 F. Supp.2d 342, 354-55
(S.D.N.Y. 2003); People v. Farrar, 419 N.E.2d 864, 865-66 (N.Y.
1981). If the trial judge learns, after a plea agreement but
before sentence, that defendant's criminal history does not
permit fulfillment of the agreement, the judge should allow the
defendant to re-plead. See Rosa v. Herbert, 277 F. Supp.2d
at 353. In People v. Fuller, 517 N.Y.S.2d 571 (App. Div., 2d
Dept. 1987), the trial court had promised defendant, prior to his
plea of guilty, that his sentence would run concurrently with a
term of imprisonment imposed on defendant for a violation of
parole. However, the court lacked the power to sentence
concurrently; the sentence was required to be consecutive. The
New York Appellate Division held that, under these circumstances,
the defendant's motion to withdraw his plea had to be granted.
In the case before me, unlike Fuller, petitioner had not been
promised a concurrent sentence. Indeed, petitioner acknowledged
that no one had told him anything other than that his sentence
would be "minimum 12, maximum life." P Tr. at 64. Petitioner
cannot complain that his plea was not knowing and intelligent.
People v. Davis, 556 N.Y.S.2d 664, 665 (App. Div., 2d Dept.
1990). In Davis, the court promised, at the time that defendant
pleaded guilty, that defendant would be sentenced as a second
felony offender to three and a half to seven years in jail. The
court did not mention if the sentence would run consecutively or
concurrently with defendant's undischarged parole time in
connection with a prior sentence for a separate and earlier
offense, and defendant acknowledged that no other promises had
been made to him to induce his guilty plea. Defendant's motion to
vacate his guilty plea was denied, for the "defendant's
misunderstanding of the agreement or disappointment with his
sentence does not suffice as a reason for vacating his guilty
Any off-the-record promise of a concurrent sentence
is belied by the defendant's acknowledgment during
the plea allocution that no other promises had been
made to induce his guilty plea. No inquiry was ever made
by the defendant or his attorney as to whether the
sentence would run consecutively with the
undischarged sentence. Under the circumstances, we
can only presume that at the time the plea was
entered, both the court and the defendant's attorney
were aware that consecutive sentences were required
by [section 70.25] and that counsel so advised his
client. . . . Since an objective reading of the plea
bargain was susceptible to but one interpretation,
the defendant's misunderstanding of the agreement or
disappointment with his sentence does not suffice as
a reason for vacating his guilty plea.
Id. at 665.
Petitioner argues that the requirement of consecutive
sentencing provided by N.Y. Penal Law § 70.25(2-b) should be
considered as a "recidivism statute that increase[s] the
statutory [minimum] penalty," requiring that a defendant be so
advised in order to assure that a plea of guilty is knowingly and
intelligently made.*fn5 I do not agree. Petitioner's term
was not enlarged. He was sentenced to a term of 12 years to life
imprisonment, as he was promised. He was told that he was
subject, as a persistent violent felony offender, to a term of 12
to 25 years, to life. His status as a persistent violent felony
offender was required because his plea of guilty to attempted
robbery followed two earlier convictions of robbery and attempted
robbery. Petitioner's plea was knowing and intelligent.
Although not relevant to the situation of this petitioner, I
note that the requirement of consecutive sentencing in New York
is not absolute, and that the judge is not without discretion. A
defendant who is subject to mandatory consecutive sentences may
nevertheless, "in the interest of justice," be sentenced
concurrently, if there are "mitigating circumstances that bear
directly upon the manner in which the crime was committed," or if
the defendant was not the "sole participant in the crime" and his participation was
"relatively minor." N.Y. Penal Law § 70.25(2-b). The parties may
present evidence on the issue, and the judge is authorized to
conduct a hearing with respect to any issue that can help the
judge's determination. Cf. Wills, 881 F.2d at 825.
I hold, therefore, that the trial judge's neglect to advise
petitioner that his sentence for committing attempted robbery and
as a persistent violent felony offender would be consecutive to
his sentence for selling narcotics did not violate petitioner's
C. The State Court Judgment Was Not Contrary to, Nor Did It
Constitute an Unreasonable Application of, Clearly Established
Supreme Court Law
The principle that a guilty plea must be knowing and
intelligent is "clearly established" by Supreme Court law.
E.g., Bousley v. United States, 523 U.S. 614, 620 (1998);
Kercheval v. United States, 274 U.S. 220, 223 (1927) ("Out of
just consideration for persons accused of crime, courts are
careful that a plea of guilty shall not be accepted unless made
voluntarily after proper advice and with full understanding of
the consequences"); Brady v. United States, 397 U.S. 742
(1970). But there is no Supreme Court determination that has
ruled precisely on the point of this case, and none to which the
state court judgment was contrary, or which it unreasonably
The absence of a precise determination by the United States
Supreme Court does not end the analysis. In Cotto v. Herbert,
331 F.3d 217, 249-53 (2d Cir 2003), an eyewitness, because of
intimidation by defendant, testified in a manner that
contradicted his earlier statement to the prosecutor. The
prosecutor then introduced the witness' out-of-court,
incriminating statement. The court, allowing it to be admitted
under an exception to the hearsay rule, barred defendant from
cross-examining the witness, holding that defendant had waived
that right by having intimidated the witness from testifying fully and
truthfully. I denied defendant's petition for habeas corpus,
holding that, in the absence of a determination on point by the
United States Supreme Court, the decision of the New York courts
was not contrary to, and did not reflect an unreasonable
application of, clearly established federal law as determined by
the United States Supreme Court. The Court of Appeals reversed,
holding, in light of "long-standing principles" in relation to
the law of confrontation and the application of those principles
by other federal courts of appeals, that the decision of the New
York courts constituted an unreasonable application of federal
law, notwithstanding the absence of a determination by the
Supreme Court precisely on the point at issue. Id. at 250-51.
Cotto was followed by Crawford v. Washington, 124 S.Ct. 1354
(2004) (out of court statement, admitted as exception to hearsay
rule, nevertheless violates Confrontation Clause).
Petitioner cannot argue that the same considerations should
apply in this case. The judgment of the New York court is
consistent with Cucciniello v. Keller, and, as noted by
Cucciniello, most other United States courts of appeals. And it
is grounded in New York decisional law and practice. People v.
Johnson, 584 N.Y.S.2d 5, 6 (App. Div., 1st Dept. 1992); People
v. Davis, 556 N.Y.S.2d 664, 665 (App. Div., 2d Dept. 1990).
For the reasons stated, the petition for a writ of habeas
corpus is denied. I recommend, however, that the issue be
accepted for appeal and be reviewed by the Court of Appeals.
See 28 U.S.C. § 2253(c). The issue of concurrent, or
consecutive, sentencing has practical effect on how long a person
has to remain in prison, and one may forcefully argue that the
issue is material to the consideration whether the constitutional
rights to trial by jury and due process of law should be waived for the benefits to be expected
from a plea of guilty. Cf. Cucciniello, 137 F.3d at 725-26
(concurring opinion, Calabresi, J.) (liberty interests suggest
that defendants be advised of consequences of guilty pleas, even
though decisional law does not require such advice to be given;
mentioning deportation, no credits for home confinements against
eventual prison time, as examples).
The Clerk shall mark the case closed.