The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is Petitioner's Habeas Corpus Petition (Docket No. 1). Parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 11, April 7, 2003). This Court rendered two Decisions and Orders denying the Petition (Docket Nos. 12, 21), in relevant part, because petitioner failed to assert an ineffective assistance of counsel claim (for not being informed of a plea offer) (Docket No. 21, Order at 5-15). A certificate of appealability was granted on February 10, 2005 (Docket No. 24), and the United States Court of Appeals for the Second Circuit vacated the judgment denying the Petition and remanded this proceeding, Hoffman v. Herbert, No. 05-0735, Summary Order of Apr. 10, 2006, 2006 U.S. App. LEXIS 9447. This Summary Order became a mandate on June 24, 2006 (Docket No. 27). See Fed. R. App. P. 41.
Familiarity with the facts from the prior decisions (Docket Nos. 12, 21) is presumed. On July 1, 1994, petitioner was involved in a high speed chase in Salamanca that led to the death of two persons and the injury of two others. On August 12, 1994, the Cattaraugus County Grand Jury handed down Indictment No. 94-99, charging petitioner with numerous violations of the New York Vehicle & Traffic Law and Penal Law, the most serious charge being two counts of manslaughter in the second degree, Penal Law § 125.15, Class C felonies.
First Indictment and Plea Offer
The testimony at the December 9, 2004, evidentiary hearing (see Docket No. 26, Tr. of Dec. 9, 2004, hearing; Docket No. 14) concerned the September 6, 1994, conference before Judge Himelein. During that conference, the court clerk noted that the prosecution made a plea offer of "two D felonies and two E felonies," a one-level reduction in the severity of the charges, and noted that the "Court commits to sentence of 2 - 7 years." (R36a*fn1; see also Pet'r Ex. 2, Sept. 6, 1994, minute entry..) Petitioner never received this offer. Judge Himelein testified that the plea offer and sentence commitment were not placed on the record (Docket No. 26, Tr. at 46; see Pet'r Ex. 2, Sept. 6, 1994, minute entry). Cattaraugus County chief clerk Sandra Wogick testified that she (or someone from her office) would be present in chambers during conferences with prosecutors and defense counsel, similar to this conference (Docket No. 26, Tr. at 8). She testified that she, Judge Himelein, then-Cattaraugus County District Attorney Michael Nevins, and defense attorney Mark O'Connor, were present during that conference (id., Tr. at 18). Others testified that other defense attorneys were present (but not participants in the conference) in the chambers during that conference (id., Tr. at 23, 28 (O'Connor), 43-45 (Himelein)).
Defense counsel O'Connor testified that he did not relay to petitioner the initial plea offer (id., Tr. at 24). He stated that he believed the discussion regarding a plea and sentence was not a formal plea offer and thus did not relay it to his client (id., Tr. at 27-28, 29). He stated that he was not familiar with the practice and apparent informality in Cattaraugus County Court (id., Tr. at 27-28). Former District Attorney Nevins testified that a plea offer was made, but not in writing and he did not recall making it on the record (id., Tr. at 54, 55). O'Connor and Nevins each testified that O'Connor did not accept the plea offer between September 6 and November 28, 1994 (id., Tr. at 24, 26 (O'Connor), 54-55 (Nevins)). Nevins stated that he had no doubt that a plea bargain offer was made on September 6. Petitioner testified that he learned for the first time of the 2a to 7-year plea offer on October 5, 1995, at the first day of his trial (id., Tr. at 59-60). He testified that, had he known of this initial plea offer, he would have accepted it. He then testified that, on the advice of counsel, he rejected the later offer of 5 to 15 years (id., Tr. at 58, 59).
Respondent later reviewed the record from the evidentiary hearing and argued that petitioner did not establish that a plea offer was actually made. The court clerk recorded in the minutes the offer, but Judge Himelein's recollection of the conference was incomplete and the offer, if it was made, was made so informally and not on the record, as not to be legally binding or a firm offer (Docket No. 16, Resp't Memo. at 7-13). Petitioner's original trial counsel was unequivocal that no offer was made (id. at 17). Respondent concludes that if an offer was made, it was not made on the record or made firm or clear enough to have the judge commit to a sentence (id. at 15, 17). From the disparity between the offered plea and the sentence petitioner would have faced under the first indictment and the similar disparity between the plea and sentence under the second, more severe indictment, respondent concludes that petitioner is not credible in stating that he would have accepted the plea offer to the first indictment (id. at 19-20).
Second Indictment and Second Plea Offer
Petitioner's criminal trial counsel moved to dismiss the indictment, which the court granted on November 28, 1994, with leave for the prosecution to re-present to the grand jury. (R52a-54a.) On December 2, 1994, the grand jury handed down Indictment No. 94-140, charging petitioner with the offenses alleged in No. 94-99 and two counts of murder in the second degree, Penal Law § 125.25(2), Class A-I felonies.
On October 5, 1995, when the trial was to commence, but prior to jury selection, the prosecution made a second plea offer to petitioner of "two C's and two D felonies," or a five to fifteen-year term, which was a two-level reduction in the severity of the charges. (T2.) During a colloquy with the court, petitioner's trial counsel remarked that he did not recall a prior plea offer from the prosecution and that he did not communicate an offer to his client, reporting that petitioner would have accepted a D felony at the time of the first plea offer. (T9-10, 11, 12.) Petitioner at the federal evidentiary hearing later testified that, when he first heard the five-to-fifteen-year offer, he conferred with O'Connor and petitioner was willing to accept this offer as well. O'Connor, however, advised him not to accept that offer, claiming that it was too much time. (Docket No. 26, Tr., at 58-59; see Docket No. 1, Pet., Attachment VII, Record on Appeal at 30, Hoffman Aff. ¶¶ 8, 9.)
Trial, Post-Conviction Motion Practice, and Appeal
Petitioner was tried and convicted on all charges under the second indictment. Petitioner was sentenced to twenty-five years to life imprisonment. (R2865.)
Petitioner then moved to set aside the judgment of conviction pursuant to N.Y. CPL § 440.10. The trial court denied this motion. People v. Hoffman, 173 Misc.2d 529, 662 N.Y.S.2d 231 (County Ct. Cattaraugus County 1997). There, the court declined to accept as true the petitioner's trial counsel's assertion that he failed to communicate the first plea offer to petitioner. Id. Petitioner appealed this decision to the Appellate Division, Fourth Department, which affirmed. People v. Hoffman, 256 A.D.2d 1195, 685 N.Y.S.2d 142 (4th Dep't 1998), leave to appeal denied, 93 N.Y.2d 874, 689 N.Y.S.2d 436, cert. denied, 528 U.S. 863 (1999). Petitioner then appealed from the ...