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SMITH v. BURGE

United States District Court, S.D. New York


January 12, 2005.

CRAIG SMITH, Petitioner,
v.
JOHN BURGE, Respondent.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

The petitioner Craig Smith ("Smith"), an inmate incarcerated at Auburn Correctional Facility in Auburn, New York, proceeding here pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent John Burge, Superintendent of Auburn Correctional Facility (the "Respondent"), has opposed the petition. For the reasons set forth below, the petition is denied.

  Prior Proceedings

  Following Smith's guilty pleas, two separate judgment of conviction were entered on January 27, 1999 in New York State Supreme Court, New York County, convicting Smith of seven counts of Burglary in the Second Degree under New York Penal Law ("Penal Law") §§ 140.25(1)(b) and 140.25(1)(c), one count of Assault in the Second Degree under Penal Law § 120.05(6), and one count of Burglary in the Third Degree under Penal Law § 140.20. As a consequence of these convictions, Smith was sentenced as a second felony offender to seven concurrent terms of 8 years as to each of the second-degree burglary counts and a concurrent term of 7 years as to the assault count. In addition, Smith was sentenced to a term of 2 to 4 years for the third-degree burglary charge, to run consecutive to the other sentences. By an order and decision dated March 8, 2000, the Honorable Michael Obus denied Smith's motion brought pursuant to New York Criminal Procedure Law ("CPL") § 440.10 to vacate his conviction under the latter of the two underlying indictments. Smith subsequently sought leave from the Appellate Division, First Department, to appeal from the denial of his § 440.10 motion. On June 16, 2000, the Honorable Ernst H. Rosenberger granted Smith permission to appeal from the denial of his § 440.10 motion, and consolidated that appeal with Smith's direct appeal from his conviction. The Appellate Division thereafter affirmed Smith's conviction in a decision issued on May 22, 2003. See People v. Smith, 305 A.D.2d 291, 758 N.Y.S.2d 812 (N.Y.App. Div. 1st Dep't 2003). Leave to appeal to the New York State Court of Appeals was denied on July 22, 2003, see People v. Smith, 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490 (N.Y. 2003), and reconsideration was denied on August 27, 2003. See People v. Smith, 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 (N.Y. 2003).

  The instant petition, dated September 15, 2003, was filed on October 31, 2003 and Smith moved for discovery pursuant to Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts on or about December 10, 2003.*fn1 Respondent filed opposition to the petition on March 22, 2004, and Smith was thereafter granted leave to file a reply. Upon the receipt of a traverse and various supplements to the traverse submitted by Smith, this matter was deemed fully submitted on August 19, 2004.

  The Underlying Indictments

  On October 10, 1997, Smith entered 230 Park Avenue, left identification with a security guard under the pretense that he was a messenger, and proceeded to a law office on the 18th floor of the building. Inside, while attorney John Sarcone ("Sarcone") was away from his desk, Smith took Sarcone's law school ring and wallet, the latter containing five credit cards. When Sarcone returned and discovered Smith, he became suspicious when Smith claimed to be a messenger. Sarcone asked Smith to wait for security, at which point Smith ran, and Sarcone's wallet was later found in a stairwell. Smith was eventually traced through the identification he had left with building security and was apprehended on November 11, 1997. Sarcone identified Smith in a lineup. Smith confessed to police that he had been in the building and had been confronted by Sarcone but said nothing about taking any of Sarcone's property. By Indictment Number 9939/97, filed on November 24, 1997, a New York County Grand Jury charged Smith with one count of Burglary in the Third Degree under Penal Law § 140.20, five counts of Grand Larceny in the Fourth Degree under Penal Law § 155.30(4), and one count of Petit Larceny under Penal Law § 155.25. In early 1998, Smith made bail. On March 23, 1998, while the case against Smith stemming from the Park Avenue incident was pending, Smith entered the Empire State Building, despite having previously signed a "trespass notice" expressly informing him that he would be trespassing if he ever re-entered the building.*fn2 Smith proceeded to the 46th floor of the building. When a woman in an office observed Smith through a glass door, he fled. The same woman received a number of telephone calls several hours later from someone who described the clothing she was wearing and uttered obscenities about her.

  Two days later, on March 25, 1998, Smith re-entered the Empire State Building and proceeded to the 28th floor. A security guard recognized Smith as a trespasser and confronted him. Smith sprayed the security guard with mace and fled. He also injured another building employee when he pushed the employee through a glass window, causing bloody gashes. Smith was subsequently apprehended by security guards on the street, after having sprayed three more people with mace and having knocked two others to the ground, resulting in varying degrees of injury. At least four witnesses identified Smith, including the woman who had seen him two days earlier. By Indictment Number 2646/98, filed on April 10, 1998, a New York County Grand Jury charged Smith in connection with the events of March 25, 1998 with seven counts of Burglary in the Second Degree under Penal Law §§ 140.25(1)(b) and 140.25(1)(c), five counts of Assault in the Second Degree under Penal Law §§ 120.05(2) and 120.05(6), and one count of Attempted Assault in the Second Degree under Penal Law §§ 110.00 and 120.05(2). Three counts pertaining to the incident of March 23, 1998 were subsequently dropped.

  The Guilty Pleas

  On November 5, 1998 Smith appeared with his trial attorney, Michelle Gelernt of the Legal Aid Society ("Gelernt"), who informed Justice Obus that Smith wished to plead guilty under both indictments in exchange for a sentence of 2 to 4 years on the Park Avenue incident and 8 years on the Empire State Building incident. The court noted the prosecution's recommendation that a longer sentence be imposed, but agreed to offer the disposition that Smith's attorney had requested. Gelernt informed the court that she had discussed the plea bargain with Smith, and the court directly addressed Smith, asking Smith if he wished to avail himself of the offer, to which Smith responded in the affirmative. The court confirmed Smith's understanding that a guilty plea would waive Smith's rights to have a trial, to present evidence, to confront the prosecution's witnesses, and to require proof beyond a reasonable doubt of his guilt. Smith indicated that he had not been promised anything other than the agreed-upon sentence or threatened by anyone to plead guilty. Smith then admitted that on October 10, 1997 he had entered the Park Avenue building with the intent to steal property inside. Smith further admitted that he had entered the Empire State Building on March 25, 1998 with the intent to commit a crime, injured several people in the process, and used or threatened to use a dangerous instrument (mace). The court clarified that Smith's intent need not have extended to injuring the victims, so long as he intended to commit a crime in the building.

  Justice Obus proceeded to explain to Smith that a guilty plea would be "a final resolution to the case" and that "the imposition of the promised sentence" was all that remained. (Declaration of Michael P. King, dated Mar. 22, 2004 ("King Decl."), Exh. T, at 7.) Justice Obus further explained:

If you decide between even now th[at] you would prefer to have a trial rather than going ahead with this disposition then we will not take the plea and we will set a trial date and whatever happens will happen.
  But, if you decide as I understand you have to resolve the case now given the alternatives this way then I will accept your plea. So, if you need any further time to speak to your lawyer now or if you have any question that you want to ask the Court about, let me know at this point. (King Decl., Exh. T, at 7-8.) Smith assured the court that he wanted to proceed with the pleas. The court announced its opinion that Smith, while possibly unhappy with his predicament, understood the risks involved and was making "a knowing decision under the circumstances and a voluntary one to resolve the cases in what is the most favorable manner possible under the circumstances." (King Decl., Exh. T, at 8.) The court formally accepted the pleas, adjudicated Smith a predicate felony offender, and adjourned the case for sentencing.

  Thereafter, on December 30, 1998, Smith, proceeding pro se, submitted a written motion to withdraw his plea. Smith contended that, while he had been given a notice regarding his lack of permission to enter the Empire State Building, the use of that information to prove his current burglary charge was forbidden because the charges arising from the earlier incident had been dismissed. On January 27, 1999, the court denied Smith's motion orally and by a written endorsement. The court characterized Smith's motion to withdraw his plea as "reiterating his position with regard to the underlying trespass warning," and noted that the court had previously rejected that argument prior to the plea.*fn3 (King Decl., Exh. U, at 3.) The court further explained that, regardless of whether the case concerning the January 7, 1997 incident had been dismissed, the notice that Smith received on that day showed that he lacked permission to return to the Empire State Building. Smith was then sentenced as set forth above.

  The CPL § 440.10 Motion

  On November 3, 1999, Smith, again proceeding pro se, filed a motion to vacate his conviction under Indictment Number 2646/98, moving under CPL § 440.10. Smith renewed his argument that the January 7, 1997 trespass notice was invalid, thus defeating the second-degree burglary charges, and asserted that the court's rejection of that argument in deciding Smith's previous motion had been erroneous. Smith further claimed that Gelernt and her supervisor at the Legal Aid Society, Richard Anderson, were ineffective because they persuaded him to plead guilty by telling him that he had no defense and no right to appeal.

  In a written decision and order dated March 8, 2000, the trial court denied Smith's § 440.10 motion without a hearing. The court noted that Smith's arguments concerning the January 7, 1997 trespass notice had been advanced and rejected pre-judgment, and had to be rejected on post-judgment review in view of Smith's pending appeal. The court nonetheless noted that,

[T]he No Trespass Notice, which bears the defendant's signature, presented to the grand jury was obtained from personnel at the Empire State Building, not the sealed file arising out of the defendant's 1997 arrest as the defendant claims.
(King Decl., Exh. G, at 2.) As to the ineffective assistance claim, the court observed that Smith's counsel's "assessment of the strength of the People's case against the defendant and the likelihood of prevailing, either on appeal or at trial, on the No Trespass Notice issue" were "matters of strategy and tactics that cannot be assailed as ineffective." (King Decl., Exh. G, at 3.)

  Smith thereafter sought leave to appeal from denial of the § 440.10 motion with the Appellate Division, First Department, which leave was granted by Associate Justice Rosenberger on June 16, 2000. The appeal was consolidated with Smith's direct appeal.

  The Appeal

  On appeal, Smith's counsel filed papers dated September 3, 2002 arguing that Smith had been deprived of effective legal representation because trial counsel had mislead him with deceptive advice concerning his right to appeal. Smith subsequently submitted a pro se supplemental brief dated November 20, 2002 raising five arguments. Smith argued that: (1) the prosecutor's use of the January 7, 1997 trespass notice violated his due process rights; (2) the trial court should have permitted him to withdraw his guilty plea; (3) he had been deprived of effective assistance of counsel for failure to raise a defense; (4) the trial court erred in denying his § 440.10 motion without a hearing; and (5) he was entitled to withdraw his guilty plea for third-degree burglary, assuming that his conviction for the 1998 indictment was vacated. In opposition, it was argued that Smith's plea was valid, his claims about events preceding the valid plea were waived by the plea, his trial counsel was not ineffective for advising him to enter the plea, and the trial court properly denied Smith's pro se motion to vacate the judgment.

  On May 22, 2003, the Appellate Division unanimously affirmed Smith's conviction. See People v. Smith, 305 A.D.2d 291, 758 N.Y.S.2d 812 (N.Y.App. Div. 1st Dep't 2003). The Appellate Division held that "[t]he record establishes that defendant received meaningful representation in connection with his highly advantageous guilty pleas." Id. at 291, 758 N.Y.S.2d at 812 (internal citations omitted). Specifically, the Appellate Division concluded that:

Defendant has not established that his attorney gave him erroneous advice as to the issues that may be raised on appeal following a guilty plea as opposed to a conviction after trial, or that he pleaded guilty as the result of any such advice. In any event, regardless of the procedural posture, we would reject, on the merits, the arguments that defendant wishes to raise concerning a notice prohibiting him from entering the subject premises.
Id. at 291, 758 N.Y.S.2d at 812.

  The Appellate Division further held that the trial court had properly denied Smith's § 440.10 motion without a hearing, "since the motion could be decided on the basis of the record and defendant's submission." Id. at 291, 758 N.Y.S.2d at 812 (citation omitted). The Appellate Division stated that it had considered and rejected Smith's remaining claims as lacking merit, including those claims contained in Smith's pro se supplemental brief.

  Smith's counsel subsequently sought leave to appeal to the New York State Court of Appeals by letters dated June 18, 2003 and July 3, 2003. Smith also submitted letters seeking leave to appeal, dated June 15, 2003, June 22, 2003 and June 23, 2003. Leave to appeal was denied on July 22, 2003, see People v. Smith, 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490 (N.Y. 2003), and reconsideration was denied on August 27, 2003. See People v. Smith, 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 (N.Y. 2003).

  The Habeas Corpus Standard Smith seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As he has filed for habeas corpus relief after April 26, 1996, certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable here. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362 (2000). These provisions, codified at 28 U.S.C. § 2254(d), specify that:

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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).

  According to the U.S. Supreme Court, the provisions introduced by the 1996 amendment have imposed a "new constraint" on courts reviewing habeas corpus petitions regarding claims that were reached on the merits by the state court. Williams, 529 U.S. at 412. In addressing 28 U.S.C. § 2254(d)(1), the Court explained that under the "contrary to" clause, a habeas court "may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003). In addressing the "unreasonable application" cause, the Court stressed that "unreasonable" does not mean "incorrect" or "erroneous." Williams, 529 U.S. at 410-11. A writ therefore may only issue "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Vasquez v. Strack, 228 F.3d 143, 147-48 (2d Cir. 2000). The Second Circuit has interpreted the 1996 amendment as requiring the denial of a habeas corpus petition even in cases where the state court is incorrect, so long as the state court is not unreasonable. See Jones v. Stinson, 229 F.3d 112, 119-21 (2d Cir. 2000).

  If the dispute involves a purely factual question, § 2254(d)(2) governs, and a federal court can grant a habeas corpus application only if the state court's decision "`was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (quoting 28 U.S.C. § 2254(d)(2)); see also Channer v. Brooks, 320 F.3d 188, 195 (2d Cir. 2003). A state court determination of a factual issue is "presumed to be correct" and the petitioner can rebut the presumption only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). In addition to imposing a more deferential standard of review, the 1996 amendment restricts courts when reviewing habeas claims to the case law of the U.S. Supreme Court. See Williams, 529 U.S. at 410-13; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002). Accordingly, and as appropriate, the courts evaluating a habeas petition should survey the legal landscape at the time the state court adjudicated the petitioner's claim to determine the applicable U.S. Supreme Court authority, as federal law is "clearly established" only if the Supreme Court precedent in existence at the time of the petitioner's conviction would have compelled a particular result in the case. See Williams, 529 U.S. at 412 (The phrase "`clearly established Federal law' . . . refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision."); accord Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.), cert. denied, 540 U.S. 1091 (2003); see generally 28 U.S.C. § 2254(d).

  Pursuant to 28 U.S.C. § 2254, federal habeas relief is unavailable unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Respondent has expressly acknowledge that Smith has fully exhausted all of his claims. Respondent has likewise acknowledged that Smith's petition is timely, having been filed well within the one-year limitation period that runs from the date that Smith's conviction became final, in this case October 20, 2003. See 28 U.S.C. § 2244(d)(1)(A); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).

  In addressing the present petition and Smith's other papers submitted in this matter, the Court is mindful that Smith is proceeding pro se and that his submission should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted).

  Discussion

  In the instant petition Smith claims that: (1) the district attorney improperly admitted false evidence (namely, the January 7, 1997 trespass notice) at the grand jury proceedings, rendering the indictment insufficient; (2) the state court decision regarding the trespass notice claim was contrary to clearly established state and federal law; (3) Smith was denied the effective assistance of counsel because trial counsel failed to inform Smith of a possible defense and erroneously advised him that he had no right to appeal; and (4) Smith's plea was involuntary due to trial counsel's ineffective representation. Each argument will be addressed in turn.

  A. Smith's Claims Concerning The Trespass Notice Do Not Warrant Habeas Relief And Smith's Motion For Discovery Is Denied

  As the first ground of his petition, Smith argues that the prosecutor committed misconduct and improperly admitted false evidence — consisting of the January 7, 1997 trespass notice — at the grand jury proceedings concerning the second-degree burglary charges. In particular, Smith contends that the district attorney failed to apply for an unsealing order and therefore improperly used the previously sealed trespass notice at the grand jury proceedings in violation of CPL § 160.50.*fn4 Smith further argues that the 1998 indictment relating to the Empire State Building incident was insufficient because the trespass notice was invalid. Relatedly, and as the second ground of his petition, Smith argues that the Appellate Division's decision rejecting his claim concerning the January 7, 1997 trespass notice and the prosecutor's improper access to a sealed document was contrary to clearly established federal law.

  Smith's claims concerning alleged defects in the grand jury proceedings and the insufficiency of the indictment are noncognizable. As the U.S. Supreme Court has recognized,

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (noting that the defendant may nonetheless "attack the voluntary and intelligent character of the guilty plea"); see also United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003) (per curiam) ("It is well settled that a defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings."); United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) ("A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea. `He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.'") (quoting Tollett, 411 U.S. at 267) (alteration in original)); Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991) ("Generally a knowing and voluntary guilty plea precludes federal habeas corpus review of claims relating to constitutional rights at issue prior to the entry of the plea.").*fn5

  In other words, if a habeas petitioner entered a voluntary and knowing guilty plea while represented by competent counsel, any non-jurisdictional defects, including defects with regard to grand jury proceedings, are waived. See Jordan v. Dufrain, No. 98 Civ. 4166 (MBM), 2003 WL 1740439, at *3 (S.D.N.Y. Apr. 2, 2003) (concluding that the petitioner had "admitted his guilt when he entered his guilty plea, and thus any errors in the grand jury proceedings were rendered harmless") (citing, inter alia Alston v. Ricks, No. 01 Civ. 9862 (GWG), 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003) ("[A] guilty plea extinguishes the ability of a habeas petitioner to raise a claim regarding misconduct before a grand jury."); Lloyd v. Walker, 771 F. Supp. 570, 576-77 (E.D.N.Y. 1991) ("Having admitted to the factual basis of the charges against him upon entering a plea of guilty, any error in the proceeding which led to his indictment is, as Lopez v. Riley[, 865 F.2d 30 (2d Cir. 1989)] teaches, rendered harmless, and is not a cognizable claim in a federal habeas proceeding."); Ballard v. Costello, No. 01 Civ. 1000 (FB), 2001 WL 1388297, at *2 (E.D.N.Y. Nov. 2, 2001) ("Ballard's guilty pleas cured any possible deficiencies in the grand jury proceedings.")).

  Smith's efforts to distinguish Tollett from the present case on the basis that Smith was not party to a plea bargain of the sort at issue in Tollett are unconvincing, as the applicability of the rule announced in Tollett in no way depends upon the particular conditions of the plea agreement at issue in that case. Smith's invocation of Menna v. New York, 423 U.S. 61 (1975) (per curiam), is similarly unavailing. In Menna, the Supreme Court observed that the rule set forth in Tollett was not without exceptions, explaining that:

Neither Tollett v. Henderson, . . . nor our earlier cases on which it relied, . . . stand for the proposition that counseled guilty pleas inevitably "waive" all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct [in holding that a guilty plea had waived the petitioner's double jeopardy claim]. However in Tollett we emphasized that waiver was not the basic ingredient of this line of cases. . . . The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.
Menna, 423 U.S. at 62 n. 2 (concluding that a guilty plea did not bar the petitioner's double jeopardy claim, as "the claim is that the State may not convict petitioner no matter how validly his factual guilt is established") (emphasis in original). As Smith's argument concerning the presentation of the trespass notice to the grand jury, unlike the claim raised in Menna, does not go to the constitutional permissibility of the state's initiation of proceedings against him or otherwise represent an argument that, had it been accepted before trial, "would forever preclude the state from obtaining a valid conviction against him, regardless of how much the state might endeavor to correct the defect," United States v. Curcio, 712 F.2d 1532, 1539 (2d Cir. 1983) (Friendly, C.J.), his claim concerning the grand jury proceedings does not survive the guilty plea on the underlying indictment.

  In any event, even if Smith's claims were cognizable, they would fail on the merits. As Justice Obus recognized, the mere fact of the dismissal of the criminal case concerning the incident of January 7, 1997 at the Empire State Building does not, in itself, invalidate the trespass notice issued on that date, which notice remained in effect and on file at the Empire State Building. See generally Williams v. Lacy, No. 96 Civ. 0868 (AGS), 1997 WL 40922, at *1 (S.D.N.Y. Jan. 31, 1997) ("`Privately owned premises which provide public accommodations may exclude individuals provided the exclusion is not based upon a violation of a civil right, such as race, color, creed or national origin.'") (citation omitted), aff'd, 152 F.3d 922 (2d Cir. 1998) (unpublished). Nor does it appear that any use of the trespass notice at the grand jury proceedings was improper under CPL § 160.50; as the trial court observed in denying Smith's § 440.10 motion on other grounds,

[T]he No Trespass Notice, which bears the defendant's signature, presented to the grand jury was obtained from personnel at the Empire State Building, not the sealed file arising out of the defendant's 1997 arrest as the defendant claims.
(King Decl., Exh. G, at 2.) Smith has cited no evidence tending to show the contrary, much less any clear and convincing evidence of the sort necessary to overcome the presumption of correctness accorded the trial court's determination of the factual issue here. To the extent that Smith challenges the validity of the trespass notice on the grounds that he never signed the notice and that the criminal charges arising from the January 7, 1997 arrest were dismissed when it became apparent that they were based on "fabricated" evidence (Pet. Traverse at 9), he has wholly failed to substantiate these claims.

  Insofar as Smith has relied on the holding of People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 (N.Y. 1984) in support of his argument, his reliance is misplaced, as he has made no showing that the prosecutor, by presenting the trespass notice to the grand jury, engaged in the type of bad-faith conduct held impermissible in Pelchat. See Pelchat, 62 N.Y.2d at 106-07, 476 N.Y.S.2d at 84, 464 N.E.2d at 452 (reversing a conviction upon a guilty plea and dismissing an indictment "because the evidence before the Grand Jury failed to meet legal standards and the prosecutor knew that when he permitted the court to take defendant's plea to the full indictment"). Moreover, and in any event, "Pelchat rested on state, not federal grounds, and thus a violation would not be cognizable in a federal habeas corpus proceeding." Jordan, 2003 WL 1740439, at *4.*fn6

  In sum, even if Smith's claims were cognizable, there is no basis upon which to conclude that the factual determination of the trial court was unreasonable. Nor does it appear that the Appellate Division's decision rejecting Smith's state-law-based argument concerning the trespass notice was either contrary to, or an unreasonable application of, Supreme Court precedent. Accordingly, because Smith entered a guilty plea and because, for the reasons set forth below, that plea was voluntary and knowing, Smith's plea forecloses any review of his claims concerning the grand jury proceedings that preceded entry of his guilty plea, and his claims in this regard must be denied, as must his claim with regard to the Appellate Division's decision concerning the trespass notice. As Smith's claims with regard to the grand jury proceedings are non-cognizable, his motion for discovery under Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts seeking that portion of the grand jury minutes containing Smith's testimony and purportedly relevant to Smith's arguments concerning the trespass notice must likewise be denied. See O'Gara v. Artuz, No. 97 Civ. 7793 (JSR) (KNF), 1998 WL 549495, at *1 (S.D.N.Y. Aug. 26, 1998) (denying a petitioner's motion for discovery of grand jury minutes where a claim of insufficient evidence to indict was not cognizable), adopted by, 1998 U.S. Dist. LEXIS 15118 (S.D.N.Y. Sept. 28, 1998); Lloyd, 771 F. Supp. at 577 (holding that, "because any error in the grand jury proceeding was cured by petitioner's guilty plea, his motion for disclosure of the grand jury minutes is denied").

  B. Smith's Claim Of Ineffective Assistance Of Counsel Does Not Warrant Habeas Relief

  As the third ground asserted in his petition, Smith contends that he received ineffective assistance of counsel. Specifically, Smith argues that his trial counsel failed to inform him of a possible defense under People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913 (N.Y. 1989), and failed to raise this defense at any stage of the court proceedings prior to entry of his guilty pleas. Smith further contends that trial counsel erroneously advised him that he had no defense and no right to appeal. As the Appellate Division rejected these same arguments on the merits and the decision of the Appellate Division was neither contrary to, nor an unreasonable application of, Supreme Court precedent, Smith's ineffective assistance claim is denied.

  "In a petition for habeas relief alleging ineffective counsel, the question as to whether the matter is governed by existing Supreme Court precedent `is easily answered because the merits of [such] claim[s] are squarely governed by [the Supreme Court's] holding in Strickland v. Washington.'" Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (quoting Williams, 529 U.S. at 390). A petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also clearly established. See Williams, 529 U.S. at 391; Aparicio v. Artuz, 269 F.3d 78, 95 n. 8 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001). As the Court of Appeals for the Second Circuit has recognized, the New York State standard for evaluating ineffective assistance claims is analogous in all relevant respects to the Strickland standard for purposes of federal constitutional analysis. See Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001); Lindstadt, 239 F.3d at 198.

  In Strickland, the Supreme Court established a two-pronged test for determining whether counsel's assistance was so defective as to require reversal of a conviction: "First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner claiming ineffective assistance of counsel must not only overcome a strong presumption that his or her counsel's conduct was reasonable and show that the counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms"; he or she must also "affirmatively prove prejudice," that is, show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94; see also Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000) (noting that "[u]nder the Strickland standard, a petitioner must establish both (1) that counsel made errors so serious that defendant was deprived of reasonably competent representation, and (2) that counsel's deficient performance prejudiced the defense"). Only if both of these elements are satisfied will a petitioner have demonstrated that his or her counsel made errors "so serious" that "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment," and that the petitioner was, as a result, deprived of a fair proceeding. Strickland, 466 U.S. at 687.

  To show deficient performance, a petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Id. at 688. There exists "`a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' which forces the [petitioner] to `overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Strickland, 466 U.S. at 689). In keeping with this presumption, a court's "scrutiny of counsel's performance is `highly deferential' because `[i]t is all too tempting for a defendant to second-guess counsel's assistance after a conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.'" Eze, 321 F.3d at 125 (quoting Strickland, 466 U.S. at 689). Thus, 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." Strickland, 466 U.S. at 689.

  To establish prejudice, a petitioner is required to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In a case such as this, where a petitioner was convicted pursuant to entry of a guilty plea, in order to satisfy the `prejudice' requirement, the petitioner must show at least "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); accord Tate v. Wood, 963 F.2d 20, 26 (2d Cir. 1992). The "assessment of whether the defendant would have gone to trial but for counsel's errors `will depend largely on whether the affirmative defense likely would have succeeded at trial.'" Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991) (quoting Hill, 474 U.S. at 59).

  No hearing is required to resolve the factual issue of whether Smith was advised by his trial counsel of any defense arising under Gaines prior to entry of his guilty plea, as, even assuming that Smith was never so informed, it has not been established that he was denied effective assistance of counsel with regard to this aspect of his claim. First, Smith has waived any pre-plea ineffective assistance claim for the reasons set forth above; consequently, to the extent his argument concerns the purported failure of trial counsel to raise the so-called Gaines defense prior to his plea, his claim is not cognizable. Second, and in any event, Gaines did not create an affirmative defense which a defendant would be required to plead but merely clarified the intent element of a burglary charge. See Gaines, 74 N.Y.2d at 360, 547 N.Y.S.2d at 621, 546 N.E.2d at 914 (holding that, to establish a burglary charge, the prosecutor must prove that the defendant's intent to commit a crime existed at the time he or she entered the premises unlawfully). While a defendant entering a guilty plea must be informed of all the elements of the offense,*fn7 the Second Circuit has explained that "[d]ue process does not require that a defendant be advised of every basis on which he might escape or receive a lesser punishment for an offense that he has committed." Mitchell v. Scully, 746 F.2d 951, 956-57 (2d Cir. 1984) (concluding that defense counsel's failure to advise the defendant of an affirmative defense unlikely to succeed did not fall outside the range of competence required of attorneys in criminal matters). Finally, even assuming Smith were able to demonstrate that his counsel's purported failure to advise him of an available avenue of defense constituted deficient performance, Smith has failed to allege in his petition, much less demonstrate the reasonable probability, that he would not have pleaded guilty but, instead proceeded to trial had he been advised of the possibility of the supposed defense.*fn8 This "failure to allege that correct advice from defense counsel would have altered the defendant's decision" is fatal to Smith's ineffective assistance claim to the extent that the claim relates to Smith's decision to plead guilty. Aied v. Bennett, 296 F.3d 58, 64 (2d Cir.), cert. denied, 537 U.S. 1093 (2002); see also Hill, 474 U.S. at 60.

  Smith has also asserted that Gelernt and her supervisor erroneously informed him that he would have no defense*fn9 and no right to an appeal if he proceeded to trial. In support of this claim, Smith has cited certain handwritten notes of his trial counsel concerning the various possible outcomes were he to enter a guilty plea or proceed to trial. The notes following the heading "plea" contain the phrase "plus appeal," while the notes following various possible trial outcomes include the phrases "no appeal (harmless error)" and "no appeal." (King Decl., Exh. V, at 1.) In the present petition, as in his § 440.10 motion and his appeal, Smith relies upon these notes as evidence that he was advised that he would have no right to an appeal after an unsuccessful trial.

  The Appellate Division rejected Smith's argument in this regard, affirming the trial court's similar decision and explaining that,

The record establishes that defendant received meaningful representation in connection with his highly advantageous guilty pleas. Defendant has not established that his attorney gave him erroneous advice as to the issues that may be raised on appeal following a guilty plea as opposed to a conviction after trial, or that he pleaded guilty as the result of any such advice.
Smith, 305 A.D.2d at 291, 758 N.Y.S.2d at 812 (internal citations omitted). Smith has offered no clear and convincing evidence that would suggest that either the trial court's or the Appellate Division's interpretation of the notes in question and the record overall represent "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1). Although the notes could be interpreted as Smith suggests, they could also reasonably be understood to represent shorthand notations of the strength of any arguments that could be made on appeal and the likelihood that Smith would prevail with such an appeal. Indeed, as Respondent argued to the Appellate Division, if Smith were being advised that he had no right to an appeal after trial whatsoever, the reference to "harmless error" (which words appear next to a notation of "no appeal") would make little sense.

  Moreover, Smith has failed to demonstrate a reasonable probability that, but for the alleged errors of counsel, he would have proceeded to trial, the second prong of the ineffective assistance standard in the context of a guilty plea. Although Smith asserts that the advice he received was "instrumental" in his decision to accept the guilty pleas (Petition at 5), there is nothing in the record to suggest that, had he been fully informed of his right to appeal under all contingencies and the likely success of any such appeal, which he alleges he was not, there is a reasonable probability that his decision would have been any different with regard to entering a guilty plea. To the contrary, the record demonstrates that there was considerable evidence of the offenses of which Smith was charged and that proceeding to trial would have exposed Smith to a possible sentence of life imprisonment without any evidently strong defense either at trial or on appeal. Any advice as to Smith's right to appeal following a trial necessarily would have been tempered by advice as to the risks posed by proceeding to trial under the circumstances presented, and there is no basis here upon which to conclude that a better understanding of the mere availability of an appeal following a trial would have swayed Smith from entering a guilty plea in light of the attendant risks. The Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)); see also Mask v. McGinnis, 233 F.3d 132, 141-42 (2d Cir. 2000). No such evidence is present here.*fn10

  C. Smith's Claim That His Plea Was Involuntary Is Without Merit As his fourth ground for habeas relief, Smith argues that his plea was not voluntary because trial counsel provided him with erroneous advice, and, in particular, advised him that he had no defense and that he had no right to an appeal. Smith further asserts that his guilty pleas were not made voluntarily with an understanding of the nature of the charges and the consequences of the pleas. The state courts rejected these claims on the merits, and their decisions in this regard were neither contrary to, nor an unreasonable application of, Supreme Court precedent. Accordingly, Smith is not entitled to habeas relief.

  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 (1970); see also Bousley v. United States, 523 U.S. 614, 618 (1998) ("A plea of guilty is constitutionally valid only to the extent it is voluntary and intelligent.") (internal quotation marks and citation omitted). A plea is voluntary when it is "entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel," and the plea "must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotation marks and citation omitted). Whether a guilty plea was voluntarily made is determined by considering all of the relevant circumstances. See id. at 749.

  At the plea allocution, the trial court set forth the sentence on the various offenses that Smith would receive and confirmed Smith's understanding of the sentence. The trial court further confirmed Smith's understanding that he would be giving up his trial rights by pleading guilty and verified with Smith that no one had many any other promises or threats aside from the promise of the sentences themselves. The trial court proceeded to outline each of the offenses and Smith confirmed that he was pleading guilty to the offenses thus described. The trial court then, once again, made clear that a guilty plea would represent a final resolution of the case and invited Smith to raise any questions he might have. When Smith once again confirmed that he wished to plead guilty, the court stated:

The Court finds that the defendant certainly has considered this matter over the relatively lengthy period that both of these indictments have been pending with his attorney. He clearly understands the alternatives available.
He understands his rights, trial rights, and he understands the risks that are involved and while I'm equally sure that the defendant is not happy with the alternatives, I know that he understands them and is making a knowing decision under the circumstances and a voluntary one to resolve the cases in what is the most favorable manner possible under the circumstances.
(King Decl., Exh. T, at 8.) Even assuming, arguendo, that Smith's counsel failed to adequately explain the rights he would be giving up by pleading guilty or the elements of the offenses against him, the trial court provided explanations of these rights and elements that were more than adequate at the plea allocution, also reaching the express, and unrebutted, factual determination that Smith's plea was both knowing and voluntary. Insofar as Smith was allegedly not informed of any so-called Gaines defense or any affirmative defense that might have been brought, the failure of either counsel or the trial court to inform a defendant of an affirmative defense does not render his plea "invalid on grounds that it is not knowing and voluntary." Panuccio, 927 F.2d at 111. It follows that the failure to inform a defendant of a line of argument not amounting to an affirmative defense is similarly incapable of rendering a plea involuntary or unknowing.

  Finally, as set forth above, Smith has not established that he received ineffective assistance of counsel with regard to entry of his guilty pleas and his counsel's purported advice that he would have no right to an appeal were he to proceed to trial. As a defendant who pleads guilty upon advice of counsel may only attack the voluntary and intelligent nature of the plea by showing that he received ineffective assistance of counsel, see Hill, 474 U.S. at 56-57, Smith's claim that his plea was involuntary or otherwise unlawfully induced based on his counsel's purportedly erroneous advice fails. Conclusion

  Smith's remaining arguments have been considered and are without merit. Accordingly, for the foregoing reasons, Smith's motion for discovery is denied, as is his petition. Because Smith has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), the Court also certifies that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  It is so ordered.


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