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ACOSTA v. GIAMBRUNO

July 12, 2004.

RAUL ACOSTA, Petitioner,
v.
M. GIAMBRUNO, Warden of Wyoming, C.F., Respondent.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Pro se petitioner Raul Acosta ("Acosta") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). Acosta pled guilty in New York State Supreme Court to criminal use of a firearm in the first degree in violation of New York Penal Law § 265.09(1), for which he was sentenced to an indeterminate term of imprisonment from eight to sixteen years. As part of his plea agreement, Acosta waived his right to appeal. In his petition for habeas corpus review, Acosta claims that his waiver encompassed only his right to appeal his conviction and not his right to appeal his sentence. Acosta further claims that his sentence was excessive given his age and the circumstances of his offense. Respondent M. Giambruno, the warden of New York State Wyoming Correctional Facility (the "State") where Acosta is housed, opposes the petition. For the reasons discussed below, Acosta's petition is denied in its entirety. I. BACKGROUND*fn1

A. FACTUAL SUMMARY AND PROCEDURAL HISTORY

  On July 24, 1993, Acosta shot and killed Isaac Lopez ("Lopez") following an argument that originated from Lopez's refusal to move his double-parked car, which blocked passage of the vehicle Acosta was driving. Acosta was subsequently indicted on charges of murder in the second degree, manslaughter in the first degree, criminal possession of a firearm in the second and third degrees, and reckless endangerment in the first degree.

  During Acosta's plea hearing on July 21, 2000, he pled guilty to criminal use of a firearm in the first degree in full satisfaction of his indictment. In exchange, Acosta consented to a sentence of eight to sixteen years imprisonment and an agreement not to appeal. During the plea hearing, Acosta's counsel made clear that Acosta "would not be appealing his plea and sentence." (Opp. Ex. 1 at 3.) The state court judge who presided over the plea hearing reaffirmed the bargain by asking Acosta whether he understood that he was giving up his "right to appeal, to challenge this plea and that sentence of eight to sixteen years." (Opp. Ex. 1 at 7.) Acosta affirmed that this was the promise he had made in exchange for his plea. (See id.)

  On August 17, 2000, the New York Supreme Court, Bronx County (the "sentencing court") convicted Acosta, pursuant to his guilty plea. After both the prosecutor and defense counsel asked the sentencing court to impose the agreed-upon sentence, the court sentenced Acosta to the indeterminate prison term of eight to sixteen years. At the end of the sentencing hearing when the clerk of the court notified Acosta of his right to appeal, Acosta's counsel stated that "the record should reflect that [Acosta] waived his right to appeal." (Opp. Ex. 2 at 4.)

  On direct appeal to the Supreme Court of New York, Appellate Division, First Department (the "Appellate Division") Acosta argued only that his negotiated sentence was excessive. He claimed that "notwithstanding [his] waiver of his right to appeal, following the court's cursory inquiry into the waiver, this Court should consider whether [his] sentence was excessive in the interest of justice." (Opp. Ex. 3 at 8.) In response, the state prosecutor invoked 22 N.Y.C.R.R. § 600.16(b)*fn2 and elected not to address the merits of the excessive sentence claim, but rather urged the Appellate Division to enforce the waiver.

  On February 27, 2003, the Appellate Division affirmed the sentencing court's judgment without opinion. See People v. Acosta, 754 N.Y.S.2d 620 (App. Div. 1st Dep't 2003). On June 10, 2003, the New York Court of Appeals denied leave to appeal. See People v. Acosta, 795 N.E.2d 42 (N.Y. 2003).

  B. ACOSTA'S HABEAS CORPUS PETITION

  Acosta makes two claims in his petition for habeas corpus. First, he insists that his guilty plea "was elicited with the understanding that the conviction could not be appealed, not [that] the sentence [could not be appealed]." (Petition at 5.) He asserts that there was an understanding that the sentencing judge could consider any mitigating factors and potentially reduce the sentence. Second, Acosta claims that the eight to sixteen year prison sentence was unduly harsh considering that he is approximately 47 years old and that the incident was provoked by the victim, who was angry, high on drugs, and armed with a gun.

  The State oppose Acosta's petition on the grounds that: (1) Acosta's claims are unexhausted; (2) Acosta's excessive sentence claim is procedurally barred; and (3) Acosta's underlying claim of excessive sentence is not cognizable on habeas review. II. DISCUSSION

  A. STANDARD FOR HABEAS CORPUS REVIEW

  1. General Principles

  A petitioner in custody pursuant to a judgment of a state court is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254(a). The purpose of federal habeas review of state court convictions is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have ...


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