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Antiqua v. Giambruno


March 30, 2006


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Jose Antigua*fn1 brings this petition for writ of habeas corpus pro se challenging his conviction on September 25, 2002, in the Supreme Court of the State of New York, Bronx County, for one count of Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law ("NYPL") § 220.16). Antigua was sentenced as a predicate felon to an indeterminate prison term of four-and-one-half to nine years. For the reasons stated below, Antigua's petition should be denied.


A. The Plea

On November 7, 2001, Antigua appeared before the Bronx County Supreme Court and pled guilty to Criminal Possession of a Controlled Substance in the Third Degree (NYPL § 220.16) in full satisfaction of a Superior Court Information. Respondent's Brief, dated Feb. 2004 ("Resp. App. Br.") (reproduced as Ex. 2 to Affidavit in Opposition, filed Aug. 19, 2005 (Docket #4) ("Aff. in Opp.")), at 3; Brief for Defendant-Appellant, dated Nov. 4, 2003 ("Def. App. Br.") (reproduced as Ex. 1 to Aff. in Opp.), at 3; P. 2-14.*fn2 A Spanish-language interpreter was present. (P. 2). The court noted that Antigua was going to enter into a plea as well as a concomitant cooperation agreement. (P. 2). The court asked if Antigua had "read over the entirety of [the] plea and cooperation agreement." (P. 3). Antigua's defense counsel responded by stating, "I explained it. I read it to him in English and explained it to him in English through an interpreter." (P. 3). The court then asked Antigua if he had "read it over with the assistance of [his] attorney," and Antigua responded, "Yes." (P. 3). The court asked Antigua to initial each page of the cooperation agreement indicating that he had read and reviewed it with his attorney.

(P. 3-4).

The relevant text of the cooperation agreement was as follows: On November 7, 2001, the Defendant agrees to plead guilty . . . to the class B felony of Criminal Possession of a Controlled Substance in the Third Degree. If the cooperation contemplated herein has been determined to be successful by the District Attorney's Office, the Defendant's sentence will be reduced, in accordance with the terms of this agreement . . .

Upon termination of the Defendant's cooperation contemplated herein, the NYPD will make a full report to the District Attorney's Office regarding the degree of success or failure of Defendant's cooperation. The District Attorney's Office based on the report of the NYPD will determine the value and success of Defendant's cooperation and, with the Court's consent, the Defendant will be sentenced as follows:

(A) If the Defendant does not comply, in the District Attorney's office sole discretion, with the terms of cooperation delineated in paragraph 3,[*fn3 ] infra then the Defendant will receive a sentence of imprisonment of an indeterminate term of 12 1/2 to 25 years.

(B) If the Defendant's cooperation has been successful, and justifies a sentence less than 12 1/2 to 25 years, the District Attorney's Office will agree to recommend a lesser sentence to the sentencing court. If necessary, to permit the imposition of a lesser sentence, the District Attorney's Office will consent to the withdrawal of defendant's plea and entry of a plea to a lesser offense.

The determination of what constitutes successful cooperation will be made solely and exclusively by the District Attorney's Office with input from the New York City Police Department. General intelligence information (which does not lead to an arrest or seizure), attempts to cooperation [sic], good faith, or best efforts at cooperation will not be rewarded. In exchange for the Defendant's full and complete cooperation, the District Attorney's Officer will in good faith work to determine what, if any, reduction in sentence or other consideration the Defendant should receive.

Def. App. Br. at 4-5 (quoting Cooperation Agreement, dated Nov. 7, 2001, at 1-3).

The terms of the agreement were repeated during the course of the plea allocution. The prosecutor noted that "if he's cooperated and the cooperation is substantial, . . . he can get as low as lifetime probation." (P. 5). The prosecutor added that "[a]t this time we're not in a position to make probation as an offer, but with the understanding that in certain cases where the cooperation is extraordinary, we do have the authority to offer this defendant probation." (P. 5). The prosecutor stated further: he's pleading guilty to the B felony with a promise of four and a half to nine. He will be cooperating with the District Attorney's Office. And that's the time that he would be working off. So if he does cooperate and the level of cooperation is worth less than four and a half to nine, then we will permit him to take back his plea and offer him another plea which would substantiate us [sic] lessening his sentence.

(P. 6). Following this statement, the court gave its own summary of the agreement, stating that the "[t]he presumptive sentence is four and a half to nine years" but that "[i]f he offers extraordinary cooperation, you will consider having him substitute a plea, pleading to something like lifetime probation." (P. 6).

During the plea colloquy, the trial judge asked Antigua if he was pleading guilty "with the understanding as to your cooperation and as to possible sentence as set out in the document that you have just signed just minutes previous." (P. 9). Antigua replied, "Yes." (P. 9). The court also asked if Antigua had fully discussed the plea and cooperation agreement with his attorney, "as well as the possible benefits of your cooperation and the consequences to you if you violate any of the conditions." (P. 9). Antigua replied, "Yes." (P. 9). Antigua acknowledged that he was satisfied with the services of his attorney. (P. 9). When asked by the court if anyone had "forced" him to "take this plea" or had made any other promises for his guilty plea, Antigua replied, "No." (P. 10). The court also inquired as to whether there was any part of the agreement that Antigua wished the court or his counsel to explain further to him, and Antigua replied, "No." (P. 12). Antigua stated that he understood that as part of his plea, he was giving up his right to appeal "this plea and sentence on any grounds." (P. 12). Antigua's defense counsel stated that he discussed this waiver with Antigua. (P. 12).

B. Sentencing

When Antigua returned to court for sentencing in September 2002, the District Attorney's office asked the court to sentence Antigua to four-and-a-half to nine years' imprisonment. See S. 2. Following an off-the-record colloquy, the trial judge noted that it was the prosecutor's position that Antigua "failed to honor the cooperation agreement in any respect in that he gave no useful information" to the police. (S. 4-5). The court then asked if Antigua was "contesting or disputing the fact that the defendant did not live up to his end of the cooperation agreement." (S. 5). Antigua's defense counsel stated in response, "The cooperation agreement was predicated upon [the] satisfaction of Detective Suarez. I did speak with Detective Suarez. He was not satisfied with the results." (S. 5).

The trial judge stated, "I am not sure I would have taken [a] cooperation plea that depended entirely upon a detective's assessment of cooperation. Normally, it would have been a discussion of some more objective standard." (S. 5-6). The trial judge then stated that the agreement nonetheless stipulated that the "determination of what constitutes successful cooperation [would] be made solely and exclusively by the District Attorney's Office with input from the police department." (S. 6). When the court asked if Antigua disputed "the factual allegations that he did not cooperate or give any useful information," Antigua's counsel responded by saying, "I did think he did cooperate, but he did not provide the requisite amount of useful information." (S. 7). The Court asked Antigua whether there was anything he wished to say. Antigua replied:

I would like to ask forgiveness for my mistake. Also like [sic] to ask for forgiveness of the Court. I am a working man. I have four small children. This will help me to straighten my ways and to come back to work and take care of my family.

(S. 7-8). The court told Antigua: "I am sorry this didn't work out for you, sir. I appreciate your acknowledgment of guilt and remorse. I don't have any choice but to impose the promised jail alternative." (S. 8). Then the court asked if the prosecutor had anything to add, and she said, "Only that you impose the four and a half to nine and the defendant did agree to waive his right to appeal and that that be imposed as well." (S. 8). The court responded by saying, "I am imposing the promised jail alternative . . . . You have waived your right to appeal." (S. 8). Antigua's defense counsel then said, "I am handing him notice of his right to appeal." (S. 8). The court then terminated Antigua's "probation unfavorably based upon the violation of the cooperation [agreement] and the new offense that he pled to." (S. 9). Antigua's counsel stated that he had no objection to this. (S. 8-9).

C. Direct Appeal

On November 4, 2003, Antigua, through new appellate counsel, appealed to the Appellate Division, First Department. See Def. App. Br. Antigua argued in the Appellate Division that:

The court below violated Jose Antigua's right to due process of law when it accepted a guilty plea and cooperation agreement that left complete control of Jose Antigua's sentence in the hands of the prosecutor, and when it failed to make any inquiry into Mr. Antigua's alleged failure to comply with the conditions of the agreement.

Def. App. Br. at 7. On March 23, 2004, the Appellate Division unanimously affirmed Antigua's conviction. People v. Antigua, 5 A.D.3d 272, 272 (1st Dep't 2004). The Appellate Division found that Antigua's "valid waiver of his right to appeal foreclose[d] his claim that the court failed to exercise any discretion in sentencing." Id. (citing People v. Callahan, 80 N.Y.2d 273 (1992); People v. Diaz, 304 A.D.2d 468 (1st Dep't), lv. denied 100 N.Y.2d 561 (2003)). The Appellate Division also found that even if Antigua had not waived his right to appeal, his claim was "unpreserved and unavailing." Id. at 272-73. The court further "note[d]" that Antigua's sentence was "lawful," and that "he received the minimum sentence permitted by law." Id. at 273. It concluded that "[t]he question of whether [Antigua] deserved even further leniency, by way of a plea to a lesser offense, was a matter of prosecutorial discretion." Id. (citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977)).

By letter of application dated May 3, 2004, Antigua sought leave to appeal to the Court of Appeals based on the same issue raised in his Appellate Division brief. See Letter from Daniel A. Warshawsky to the Hon. Judith S. Kaye, dated May 3, 2004 (reproduced as Ex. 4 to Aff. in Opp.), at 1. On June 17, 2004, the New York Court of Appeals denied the application. People v. Antigua, 3 N.Y.3d 636 (2004).

D. Antigua's Habeas Petition

On February 3, 2005, Antigua timely submitted this petition for writ of habeas corpus in the United States District Court, for the Western District of New York, see Petition Under 28 USC § 2254 For Writ of Habeas Corpus By a Person in State Custody, filed Mar. 9, 2005 (Docket #1 to 05 Civ. 0077 (W.D.N.Y.)) ("Petition"), and the case was transferred to this district, see Order, filed Mar. 9, 2005 (annexed to Petition) (Docket #1 to 05 Civ. 2681 (S.D.N.Y.) (WHP) (GWG)). The petition asserts that Antigua's sentence was illegal and in "violation to both New York State and United States Constitution [sic], due process, U.S. Amend. 14." Petition at 5. Respondent filed opposition papers arguing that the petition must be denied because it was rejected by the Appellate Division based on "adequate and independent state procedural grounds." See Aff. in Opp. ¶ 10; Memorandum of Law, dated Aug. 2005 (annexed to Aff. in Opp.) ("Resp. Mem."), at 2. Antigua filed a reply. Answer to Affidavit in Opposition, filed Dec. 30, 2005 (Docket #8) ("Pet. Reply Mem.").


A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254

A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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).

For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims . . . with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (internal quotation marks and citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered to be "adjudicated on the merits" even if it fails to mention the federal claim and no relevant federal case law is cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (internal quotation marks omitted); accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005) ("This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether the court has alluded to federal law in its decision.").

In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief, a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

B. Procedural Default

Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). "[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).

Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Dretke v. Haley, 541 U.S. 386, 393 (2004); Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n.10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas."). The bar on habeas review resulting from a procedural default applies even where the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n.10; Velasquez, 898 F.2d at 9.


Antigua now claims that his sentence violated his due process rights because when the sentencing court accepted his guilty plea, it left complete control of his sentence in the hands of the prosecutor and failed to make any inquiry into Antigua's alleged failure to comply with the cooperation agreement. Def. App. Br. at 7-12; Petition at 5. The respondent argues that the Appellate Division's conclusion that Antigua's claim was barred by the waiver of appeal and that it was otherwise "unpreserved," Antigua, 5 A.D.3d at 272-273, constitutes independent and adequate state grounds for the Appellate Division's decision. Aff. in Opp. ¶ 10; Resp. Mem. at 2. We concur that federal habeas review of Antigua's claim is barred due to Antigua's failure to preserve it.

As an initial matter, the Appellate Division's statement that Antigua's claim was "unpreserved" was sufficient to establish that it was relying on a procedural bar as an independent ground in disposing of the issue. See Harris, 489 U.S. at 265 n.12. In addition, that the Court of Appeals issued a summary denial of leave to appeal is of no moment because where "the last reasoned opinion on the claim explicitly imposes a procedural default" -- as is true of the Appellate Division's decision in this case -- a federal habeas court "will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); accord Rodriguez v. Schriver, 392 F.3d 505, 511 n.10 (2d Cir. 2004). Thus, the procedural default relied upon by the Appellate Division constituted an "independent" state law ground for its decision.

The remaining question is "whether the state ground relied upon is 'adequate' to preclude federal habeas review." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). Here, Antigua failed to preserve his claim because, as was argued by the District Attorney on appeal, Antigua "never objected to the terms of the cooperation agreement, moved to withdraw his plea, or even requested a hearing to determine his compliance with the agreement." Resp. App. Br. at 13; see generally N.Y. Crim. Proc. Law ("CPL") § 470.05(2). "[A] procedural bar will be deemed 'adequate' only if it is based on a rule that is 'firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule is "'firmly established and regularly followed'" must be judged in the context of "the specific circumstances presented in the case," and "of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following "guideposts" for making this determination:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Id. (citing Lee, 534 U.S. at 381-85).

The first guidepost is not relevant here because "the lack of objection by a party would not, almost by definition, be mentioned by the trial court." Monroe v. Kuhlman, 433 F.3d 236, 242 (2d Cir. 2006) (internal quotation marks omitted). In any event, the lack of objection was "relied upon" by the trial court in the sense that, had an objection been made, it would have allowed the trial court to review and weigh Antigua's request.

The second guidepost also fails to help Antigua. Both statutory law and New York case law are clear that Antigua was required to object to his sentence during the sentencing hearing. New York law stipulates that "appellate challenges to the procedures utilized in determining and imposing sentence are forfeited if they are not raised in a timely manner before the trial court as required by CPL 470.05(2)." People v. Callahan, 80 N.Y.2d 273, 281 (1992). Indeed, the First Department has applied the preservation rule to a claim similar to Antigua's. See People v. Baez, 216 A.D.2d 121, 121 (1st Dep't 1995) ("Defendant's claim that the court failed to exercise its sentencing discretion because, pursuant to a cooperation agreement, the prosecutor had the sole power to determine the value of defendant's cooperation, and thus the sentence to be imposed, is unpreserved for appellate review as a matter of law, and we decline to review it in the interest of justice.").

Finally, Antigua cannot show that he "substantially complied" with the rule requiring him to make a contemporaneous objection. To the contrary, Antigua's defense counsel admitted that according to the terms of the cooperation agreement, the prosecutor was entitled to rely on the subjective determination of the detective in evaluating Antigua's level of cooperation. (S. 5-7).

Accordingly, the procedural bar relied upon by the Appellate Division in this case is "firmly established and regularly followed," and therefore constitutes an adequate state ground barring review of the merits of Antigua's claim. As a result, Antigua's claim on habeas review is unavailable unless Antigua can establish cause for his default and resulting prejudice or can demonstrate that he is "actually innocent." See, e.g., St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004). Even construing his pro se petition liberally, see Williams v. Kullman, 722 F.2d 1048, 1050-51 (2d Cir. 1983), Antigua has made no such showing. Therefore, his claim may not be considered on federal habeas review.*fn4 Conclusion

For the foregoing reasons, Antigua's petition should be denied.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. William H. Pauley, III, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Pauley. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).

GABRIEL W. GORENSTEIN United States Magistrate Judge

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