The opinion of the court was delivered by: P. Kevin Castel, District Judge
On April 30, 2001, pro se petitioner Jasmine Valentine pled guilty in New York Supreme Court, Bronx County, to a charge of murder in the second degree. Petitioner received a sentence of an indeterminate term of 18 years to life imprisonment. Petitioner appealed her sentence, and it was affirmed. See People v. Valentine, 298 A.D.2d 107 (1st Dep't 2002). Petitioner then sought leave to appeal to the New York Court of Appeals, and leave was denied. See People v. Valentine, 99 N.Y.2d 586 (2003). Petitioner is currently incarcerated in the Bedford Hills Correctional Facility in upstate New York.
On April 24, 2003, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the petition was assigned to the Honorable Naomi Buchwald, U.S.D.J. Petitioner asserted two grounds in the petition: (1) the sentencing court erred in denying petitioner's motion to withdraw her guilty plea; and (2) her sentence was excessive for various reasons, including her age at the time of the crime and her lack of a prior conviction record.
On October 2, 2003, respondent filed an opposition to the petition. (Docket No. 7) On October 9, 2003, petitioner wrote to Judge Buchwald stating that she intended to file, in state court, a motion under Section 440.10 of the New York Criminal Procedure Law to vacate her conviction based upon the allegedly ineffective assistance of her trial counsel. (Docket No. 17) In this letter, petitioner requested a stay of the federal habeas proceedings pending resolution of the motion in state court. (Id.) On October 31, 2003, Judge Buchwald wrote to petitioner to request additional information about the nature of the Section 440.10 claim she intended to make. In addition, Judge Buchwald inquired whether petitioner wished to have the Court address her new claim on the merits, if possible, or whether, in the alternative, petitioner first wished to exhaust her new claim in the state courts. (Id.) On November 17, 2003, petitioner responded in writing to Judge Buchwald and stated that she "intend[ed] to file a 440.10 motion to vacate [the] judgment based on the ineffectiveness of defense counsel prior to [her] accepting the plea." In addition, petitioner wrote, "If it is possible that you can address this issue, I would p[re]fer that[,] rather than undergoing the long process of filing my claim and waiting for the outcome." On November 19, 2003, this case was reassigned to me. (Docket No. 8)
On December 3, 2003, I issued an Order in which I addressed petitioner's statements in her November 17, 2003 letter:
Although the Petitioner's response was not without equivocation, she indicated that she preferred that this Court proceed with considering her claims on the merits. This Court is prepared to do so. (Docket No. 9) In addition, I ordered petitioner to submit a reply to respondent's opposition brief by January 19, 2004, and wrote that "[i]f she does not submit a reply, the Court will decide her petition based on her previous filing." (Docket No. 9) Petitioner did not file a reply. Instead, on April 16, 2004, petitioner filed a document with this Court containing "the points [she] intended to make on a 440 Motion in State Court" -- specifically, her allegations as to the ineffective assistance of her trial counsel. (Docket No. 10) Respondent filed nothing in response. I consider petitioner's April 16, 2004 filing to be an amendment to her petition to include a third claim for ineffective assistance of trial counsel.
On April 26, 2004, I referred the petition to the Honorable Debra Freeman, United States Magistrate Judge. (Docket No. 11) On April 21, 2006, Judge Freeman issued a 31-page Report and Recommendation ("R&R"). (Docket No. 13) In her R&R, familiarity with which is assumed, Judge Freeman set forth the facts underlying petitioner's guilty plea and sentencing in some detail, and, in view of the relevant statutes and case law, recommended that I deny the petition. With the benefit of an extension of time (Docket No. 15), petitioner filed timely objections to Judge Freeman's R&R. (Docket No. 16) In light of petitioner's objections, I have conducted a de novo review of the underlying record, including the transcript of petitioner's plea hearing and related proceedings. See 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P. Having done so, I adopt Judge Freeman's R&R in its entirety, except that I deny petitioner's second claim on its merits but not on the ground that it is procedurally barred. I deny the petition for a writ of habeas corpus.
Denial of Petitioner's Motion to Withdraw Guilty Plea
Judge Freeman applied the appropriate standard to determine the constitutional validity of a guilty plea. "'The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Parke v. Raley, 506 U.S. 20, 28-29 (1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In the Second Circuit, a "wired" plea -- one, as in this case, made pursuant to an offer that "impose[s] conditions which relate to the conduct or treatment of others" -- is constitutional, as long as it is intelligently and voluntarily made. United States v. Bennett, 252 F.3d 559, 562 n.6 (2d Cir. 2001).
In petitioner's case, the transcript from the plea hearing indicates that her guilty plea was made knowingly, intelligently and voluntarily. Although petitioner specifically stated that her decision to plead guilty was made of her own free will and that no one "threatened" or "forced" her to plead guilty (Apr. 30, 2001 Hr'g Tr. at 21), she now argues that her decision was motivated, in large part, by a desire to help her co-defendants avoid trial. (Pet. Mem. at 13-17) Even if true, such a motivation does not render such a decision involuntary in a constitutional sense. See R&R at 16-17 and cases cited therein.
Judge Freeman also properly concluded that there is no basis for this Court to disturb the sentence imposed on petitioner in state court. I agree with Judge Freeman that, construed liberally, petitioner's claim may be read to challenge her sentence as constituting cruel and unusual punishment under the Eighth Amendment. R&R at 18. I also agree that petitioner's second letter to the New York Court of Appeals did not fairly apprise the Court of her excessive sentence claim because it only discussed her claim regarding her motion to withdraw her guilty plea and did not discuss or refer to the excessive sentence claim at all. R&R at 19.
Relying on Ramirez v. AG, 280 F.3d 87, 97 (2d Cir. 2001), Judge Freeman concluded that the excessive sentence claim is unexhausted because petitioner's two letters to the New York Court of Appeals did not fairly apprise the Court that she wished to appeal the denial of her excessive sentence claim. R&R at 18-19. In Ramirez, the Court distinguished two precedents:
We held in Morgan[v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000), cert. denied, 531 U.S. 819 (2000)] that a petitioner had preserved an issue by a request that the Court of Appeals "consider and review all issues" ...