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Hibbert v. Poole

February 16, 2006


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge



Petitioner, Everton Hibbert ("Hibbert"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) following a guilty plea. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


The conviction here at issue stems from Hibbert's guilty plea to charges of second degree murder and second degree criminal possession of a weapon in connection with the shooting death of his estranged girlfriend, Ella Reaves ("Reaves"). The shooting occurred on March 24, 2000, as Reaves left the nursing home where she worked in the Town of Pittsford, New York. Hibbert then fled to New York City.

On March 30, 2000, officers from the 28th Precinct of the New York City Police Department received a phone call from a woman who said that her son had overheard a conversation in which a man was claiming to have killed his girlfriend, a nurse, up in Rochester.

According to the tip, the man claiming to have killed his girlfriend was staying at an apartment in Harlem. H.18, 164.*fn1 Detective Frank Pascarelli ("Pascarelli") confirmed with the authorities in Rochester that such a crime had occurred and obtained a faxed photograph and description of the alleged perpetrator. He and his partner, Detective Joseph Litrenta ("Litrenta"), went to the address where they found the door ajar. They knocked and were told to enter. They knocked again and said, "Police" as an unnamed male individual opened the door. H.10. Litrenta stated that they had received a call that a woman was being held against her will in the apartment, which was a ruse to keep the occupants of the apartment at ease. H.11, 28, 60. The man said that there was no problem and that they could come in and look around. H.59. Once inside the apartment, Litrenta and Pascarelli saw a man who matched the faxed photograph sitting on the bed. H.33. The detectives asked all of the occupants for identification, but Hibbert did not have identification on him. Litrenta asked Hibbert to step out in the hallway so that he could write down Hibbert's contact information. H.64-65.

When Litrenta asked Hibbert his name, Hibbert "mumbled" a name that was not the name they had been given by the Rochester police. H.65. Litrenta showed Hibbert the faxed photograph they had received and asked him, "Do you know who this is?" H.66. Hibbert replied, "Yeah, that's me." Id. Litrenta then pat-frisked Hibbert and handcuffed him. H.67. Pascarelli escorted Hibbert back to the precinct in a marked police car that they had summoned to the scene. Right after they got in the car, Pascarelli said, "You know what this is all about?" to Hibbert. H.42. Hibbert replied, "I shot my girlfriend." H.43. There was no further conversation after that.

Once back at the precinct, Litrenta received a phone call from a detective in Rochester who advised him that after reading the Miranda warnings to Hibbert, he should ask Hibbert if he had an attorney. H.71. Litrenta recited the Miranda warnings to Hibbert from a pre-printed card, asking him if he understood each warning as it was read. H.73. Hibbert stated that he did and agreed to talk to the detectives. H.74. He never requested an attorney and did not demonstrate any reluctance in speaking to the police. H.74-75.

Hibbert then gave an oral statement which Litrenta reduced to writing. H.75. Litrenta read it back to Hibbert, who said it was accurate and agreed to sign it. H.76. In it, Hibbert stated that he had come to the United States from Jamaica about five years ago. He had been with Reaves, the victim, for about four years; they had a two-year-old daughter together. App. E at 34.*fn2 Hibbert stated that for several days, he followed Reaves after she left work and discovered that she was seeing another man. Id. On the day of the incident, Hibbert walked to the nursing home where Reaves worked. He said that he had a gun in his coat pocket and he waited for Reaves to come out after her shift. Id. When he saw her, he walked up to her and "started shooting at her." She fell to the ground and Hibbert began to run. Id. at 35. According to Hibbert, he spent several days living in the woods near the highway. He eventually ended up purchasing a bus ticket to New York City; when he arrived there he went to the apartment of his friend "Duce" who told him to turn himself in. Id. Hibbert stated that he thought about killing himself while he was on the run but then thought of his daughter and threw the gun away. Id. at 36. Litrenta then gave Hibbert a pad and pen asked to write down in his own handwriting what he had told Litrenta. H.78; see App. E at 37-38.

On the drive back to Rochester, Investigator Gerber ("Gerber") of the Monroe County Sheriff's Department talked further with Hibbert about the shooting. Gerber informed Hibbert that the Miranda warnings still applied and that he did not have to discuss the incident, but Hibbert stated that he would talk about it. Hibbert told Gerber that he "had done everything for [Reaves]," treating her five children (four of whom were not his) like his own and giving her money. When he found out that she was seeing another man, she was "angry and jealous" and that is why he shot her. App. E. at 32. Gerber told Hibbert that he knew that Hibbert's friend Charlie had given Hibbert a ride to the nursing home and that he knew that Hibbert did not spend several days living in the woods. See id.

Hibbert was arraigned on April 18, 2000, on Monroe County indictment #162/2000 which charged him with two counts of murder in the second degree and one count of criminal possession of a weapon in the second degree. Hibbert initially pleaded not guilty to the charges. On June 23, 2000, the parties appeared for a hearing in New York Supreme Court (Monroe County) before Justice Mark on Hibbert's motion to suppress his statements made to police officers at the time of his arrest. At the conclusion of the hearing, the trial court reserved decision.

Several months later, on September 19, 2000, the parties again appeared in court. The prosecutor informed the court that Hibbert had agreed to plead guilty to the first and third counts of the indictment in exchange for a sentence promise of an indeterminate term of imprisonment of twenty years to life. According to the agreement, Hibbert also had to waive his right to appeal and withdraw his pending suppression motion.

Represented by a different attorney from the same public defender's office, Hibbert appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Counsel argued that Hibbert's waiver of appeal was invalid and that the negotiated sentence was unduly harsh and excessive. Hibbert submitted a pro se supplemental brief in which he argued that his oral and written statements to police at the precinct were obtained in violation of his Sixth Amendment right to counsel; that his oral statements in the police car were not admissible because he had not been issued his Miranda warnings; that his arrest was illegal; that his waiver of the right to appeal was invalid; and that his plea was involuntary. The Fourth Department unanimously affirmed his conviction. The New York Court of Appeals denied leave to appeal.

Acting pro se, Hibbert 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 in which argued that his oral statements to police were obtained in violation of his Sixth Amendment right to counsel. Supreme Court (Mark, J.) denied the motion in a written decision and order entered December 6, 2002. Hibbert filed another C.P.L. § 440.10 motion on January 3, 2003, this time alleging that due to his low IQ, his guilty plea was not voluntary because he "did not understand anything that was taking place in the proceedings." See Supreme Court Order at 3 (App. R). Hibbert also contended that his trial counsel coerced him into pleading guilty. See id. at 2-3. Justice Affronti, who had been newly assigned to Hibbert's case following Justice Mark's retirement denied the second C.P.L. § 440.100 motion on the basis that the issues raised therein could have been included in the first C.P.L. § 440.10 motion. See Supreme Court (Affronti, J.) Letter Decision and Order dated January 24, 2003 (citing N.Y. Crim. Proc. Law § 440.10(3)(c)).

The Appellate Division, Fourth Department, of New York State Supreme Court denied leave to appeal on March 11, 2003.

This federal habeas petition followed on January 29, 2003. In the form habeas petition filed with this Court, Hibbert asserts that (1) his guilty plea was not made voluntarily because he was not aware of the nature and consequences of his guilty plea, due to his low IQ; and (2) that he pleaded guilty because trial counsel told him to do so. See Petition ("Pet.") at 5 (Docket #1). Hibbert also states that he was denied the effective assistance of counsel because counsel "coerced him into taking [a] plea." Id. Finally, Hibbert states that he was interrogated by the police in violation of his Sixth Amendment right to counsel; he claims that he was represented by counsel on another matter when he was arrested and questioned. Id. In his memorandum of law filed in support of the petition, Hibbert provides further argument regarding the Sixth Amendment claim and the voluntariness claim, stating that counsel "scared" him into taking the plea offer by telling him that he could receive up to 40 years to life in prison if he were convicted after a trial. See Petitioner's Memorandum of Law ("Pet'r Mem.") at (Docket #1). Hibbert also contends that he was denied the effective assistance of counsel because counsel failed to investigate his case and counsel failed to advise him regarding the "viable defense" of intoxication. Id. He also contends that certain oral statements that he made to the police were inadmissible because they were given prior to the issuance of Miranda warnings and that his warrantless arrest violated the Fourth Amendment. For the reasons set forth below, the petition is denied.


Legal Effect of Guilty Plea

In Tollett v. Henderson, the Supreme Court reaffirmed the principle articulated in the "Brady trilogy"*fn3 that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267 (1973). Once a defendant has pleaded guilty in open court to the offense with which he is charged, he may not subsequently raise independent claims relating to alleged violations of constitutional rights that occurred prior to the entry of the guilty plea. Id. Rather, a defendant "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Id. In other words, under Tollett, the only issues reviewable by a federal habeas court relate to whether the guilty plea in state court "represents 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). Given the Supreme Court's clear holding in Tollett, Hibbert's guilty plea forecloses this Court's consideration on habeas review of the following three claims: (1) that he was questioned by the police despite being represented by counsel on another, unrelated matter; (2) that his oral statements to the police were inadmissible due to their being made prior to the issuance of Miranda warnings; and (3) that his arrest violated the Fourth Amendment.*fn4

Thus, the only claims that Hibbert may raise before this Court are those relating to the voluntary nature of his plea and whether he received the effective assistance of counsel in regard to his decision to plead guilty. The Court will consider the ineffective assistance claim first.

Merits of the Petition

1. Ineffective Assistance of Counsel

To prevail on a claim that trial counsel rendered constitutionally ineffective assistance, a habeas petitioner must show that counsel's representation fell below "an objective standard of reasonableness" under "[p]revailing norms of practice" and "affirmatively prove prejudice" by showing that there is a "reasonable probability" that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984). A petitioner must establish both that counsel's performance was deficient and that he was prejudiced as a result of counsel's errors in order to obtain relief on an ineffective assistance claim. See id. at 687.

A petitioner seeking to establish constitutionally ineffective assistance of counsel must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also, e.g., United States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (holding that counsel's decisions should not be evaluated in hindsight). Even if a petitioner can establish that counsel was deficient, he still must show that he was prejudiced. See id. at 693-94. In the context of a guilty plea, the prejudice prong of the test is met by showing "a reasonable probability that, but for counsel's ...

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