The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Timothy Makas has filed a petition for habeas corpus under 28 U.S.C. § 2254. Makas is currently in the custody of New York Commissioner of Mental Health at the Mid-Hudson Forensic Psychiatric Center, Orange County, New York, a secure facility.
Makas challenges his continued detention in a secure mental health facility after pleading not responsible by reason of mental disease or defect (NRRMDD) to charges arising out of the arson of real property he owned.*fn2 Makas contends that his NRRMDD plea was involuntary because he was ill informed as to a charge of Arson in the Second Degree, a class B felony. In a related claim Makas contends that his attorney provided him ineffective assistance in advising him regarding the consequences of a NRRMDD plea. In his petition to this Court Makas presents three grounds for relief: (1) Ineffective assistance of counsel for failure to obtain discovery material apparently related to his guilt of second-degree arson; (2) Ineffective assistance of counsel by misrepresenting that entry of an NRRMDD plea to the second-degree arson charge as opposed to entering a NRRMDD plea to the third-degree arson charge would not matter once Makas was committed, i.e., would not influence the duration of any commitment; and (3) That the facts did not fit the crime-second-degree arson-to which he entered the NRRMDD plea (implicitly involuntary plea and ineffective counsel).*fn3 In order to put Makas' claims in context it is necessary to set out in some detail the procedural history of this case and the consequences that the New York Legislature imposes on NRRMDD acquittees.
The facts of the crime are summarized in the opinion of the New York Appellate Division, People v. Makas, 709 N.Y.S.2d 650, 651 (N.Y. App. Div.2000) (names of lessees in brackets supplied).
Around 3:00 A.M. on May 9, 1998, defendant intentionally started a fire in a residential building he owned in the Village of Hurley, Ulster County. The building, which had just been rented to a new tenant [Furman] but was unoccupied at the time of the fire, had a covered breezeway connecting it to a second, larger residence 14 1/2 feet away. The second building was also owned by defendant and rented to other tenants [the McKeighans] who were occupying it at the time of the fire. After setting fire to the unoccupied building, defendant called 911, stating that he had set a fire and wanted the police to come and shoot him. No one was injured as a result of the fire, but the unoccupied building was severely damaged.
The early proceedings in this case are also summarized in People v. Makas, supra.
After his arrest Makas was found to be suicidal and depressed with psychotic thinking, and was determined to be incapacitated. He was committed to a mental institution. Makas was indicted on charges of arson in the second degree,*fn4 arson in the third degree,*fn5 and attempted arson in the third degree in the Ulster County Court. He was found competent to proceed but had two psychiatric examinations on the recommendation of the forensic health team of the Ulster County Jail. The examining physicians found him to be guarded and mildly depressed, and opined that his crime probably resulted from his mental illness.
As part of his omnibus motions made in November 1998, Makas moved for dismissal of the indictment as unsupported by "legally sufficient evidence" because, he argued, the residential structures, while adjacent, were separate buildings; the fire was initiated in the unoccupied building; and the occupied building was not damaged by the fire. N.Y. CRIM. PROC. LAW § 210.30 (motion to dismiss indictment); § 70.10 (definition of "legally sufficient evidence"). In aid of this motion Makas submitted an affidavit of an architect describing the physical features, including each building's separate foundation and the lack of access to the occupied building from the breezeway, leading to the architect's conclusion that the structures were separate buildings. The trial court denied the motion finding that whether the "structure was occupied" was a question for the jury. People v. Swamp, 646 N.E.2d 774 (N.Y.1995) (legally sufficient evidence is the equivalent of a prima facie case it does not entail proof beyond reasonable doubt).
Thereafter, three days before the case was set for trial, Makas pled guilty to arson in the second degree and was sentenced to an indeterminate prison term of 6 to 12 years. Makas appealed alleging two grounds: 1) that his counsel had provided ineffective assistance of counsel by failing to pursue a NRRMDD plea and 2) that his plea was involuntary because the plea allocution failed to establish the elements necessary to establish second-degree arson. The Appellate Division noted both grounds, emphasized that Makas placed great emphasis on his lack of mental capacity, but concluded that because the plea colloquy established that Makas vigorously contended that the rental units were two separate units and the trial court never made a specific finding that they constituted one unit for purposes of second-degree arson and communicated that finding to Makas concluded the plea was defective.*fn6 In other words, while there is no express reference to an Alford-plea in the appellate decision,*fn7 New York law recognizes such a plea and the appellate court faulted the trial court for not either obtaining an admission of guilt from Makas that the two buildings were one structure or alternatively an admission that, while Makas continued to contend that he was innocent of second-degree arson, he recognized what the jury would have to find in order to convict him and conceded that a jury could find him guilty of second-degree arson, in which case he might receive a longer sentence and wished to enter the plea to avoid a longer sentence. See People v. Makas, supra. After remand to the Ulster County Court, Makas obtained new counsel-Dennis B. Schlenker-and the case was scheduled for trial. A few days before the date set for trial Makas entered a NRRMDD plea to the charges in the indictment under N.Y. CRIM. PROC. LAW § 220.15.*fn8
NRRMDD is an affirmative defense that the defendant must prove by a preponderance of the evidence. N.Y. CRIM. PROC. LAW § 25.00 (defining affirmative defense) and N.Y. CRIM. PROC. LAW § 40.15 (mental disease or defect as affirmative defense). A NRRMDD plea may only be accepted with the permission of the court and the consent of the people, i.e., the prosecution. Before accepting the plea the trial court must address the defendant personally and determine that he is competent and factually guilty of the offenses to which he contemplates pleading NRRMDD. To this end the prosecutor must set out in detail the evidence that would be presented if the case went to trial. Once a NRRMDD plea is accepted, the case is governed by N.Y. CRIM. PROC. LAW §330.20 (see § 220.15(6)). N.Y. CRIM. PROC. LAW § 330.20 provides for the temporary detention of the acquittee until an examination may be performed to determine if the acquittee suffered from a dangerous mental disorder, i.e., that he constituted a physical danger to himself or others on account of a mental illness.*fn9 No appeal was taken from the order accepting the plea and ordering Makas temporarily detained.
On April 12, 2001, the Ulster County Court, upon finding Makas suffered from a dangerous mental disorder, as defined in N.Y. CRIM. PROC. LAW. § 330.20,*fn10 entered a commitment order remanding Makas to the custody of the New York State Commissioner of Mental Health.*fn11 Makas sought a rehearing and review of the initial commitment order in the Orange County Court, which by order dated March 11, 2002, confirmed the initial commitment order.*fn12 Subsequent retention orders issued in the Orange County Court on November 14, 2001,*fn13 and February 18, 2004, found Makas to be still suffering from a dangerous mental disorder and continued his retention in a secure psychiatric facility. Makas appealed the orders dated November 14, 2001, and March 11, 2002, and the Appellate Division affirmed the orders. Matter of Timothy M., 763 N.Y.S.2d 320 (N.Y. App. Div.2003).*fn14 Makas did not seek leave to appeal to the New York Court of Appeals.
On or prior to August 23, 2001,*fn15 Makas, appearing pro se, filed a motion to vacate the judgment under N.Y. CRIM. PROC. LAW § 440.10 contending:*fn16 (1) he was denied effective assistance of counsel in that his attorney did not tell him in advance which counts of the indictment he would be pleading to and told him that there was no difference between a plea to Arson in the Second Degree and Arson in the Third Degree; (2) his plea was not knowing and voluntary; and (3) the People improperly withheld exculpatory material.*fn17 The Ulster County Court denied the motion, the Appellate Division denied leave to appeal on December 31, 2001, and the New York Court of Appeals dismissed his application for leave to appeal the Appellate Division's denial on March 5, 2002. People v. Makas, 769 N.E.2d 363 (N.Y.2002).*fn18
The state court records filed with this Court show that on July 18, 2002, Makas filed a petition for a writ of habeas corpus in the Orange County Supreme Court. In that petition, Makas raised five issues: (1) Ineffective assistance of counsel (entering an insanity plea versus fighting to reduce the charge from second-degree arson to third-degree arson); (2) The facts did not support a charge of second-degree arson; (3) The indictment was impermissibly broadened at the plea hearing; (4) A Brady-type violation; and (5) The indictment was invalid due to factual misrepresentations made to the grand jury. Although in his petition Makas alleges that his petition was denied April 3, 2002, in his response Respondent affirmatively alleges that the records of the Orange County Court do not show that the court ever ruled on that petition. In any event, neither party has furnished this Court with a copy of any decision or order of the Orange County Court disposing of that petition. Thus, for the purpose of ruling on the petition before this Court, it will assume that the habeas corpus petition is still pending.
Respondent concedes Makas timely filed his petition herein in the Southern District of New York, which petition was transferred to this Court on June 26, 2002. This Court initially dismissed his petition finding that Makas failed to demonstrate exhaustion of state remedies. On appeal the Court of Appeals remanded the case to:
1) require the state to respond to Appellant's 28 U.S.C. § 2254 petition and address whether the Appellant exhausted his state appellate remedies; 2) if the district court determines that appellant failed to exhaust, consider whether the exhaustion requirement should be excused; and 3) determine whether the appointment of counsel, or a guardian ad litem, would be appropriate. 28 U.S.C. § 2254(b)(l)(B)(ii); see also Fed. R. Civ. P. 17(c).
II. INITIAL ISSUES ON REMAND
A. Appointment of Counsel/Guardian Ad Litem
The Court of Appeals mandate directed this Court to determine if appointment of counsel or a guardian ad litem would be appropriate. Appointment of a guardian ad litem, while within the broad discretion of this Court under FED. R. CIV. P. 17(c), is not undertaken lightly. Cf. Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 651-52 (2d Cir.1999) (discussing the procedural safeguards necessary before appointing a guardian ad litem because of the stigma attached to a finding of incompetency and the impact of such a finding on the interest of the litigant in maintaining control over the litigation). Neither Makas nor the Respondent question Makas' competency. Review of the record in this case indicates that the only point at which the competency of Makas was at issue preceded entry of his initial guilty plea after which he was found competent to proceed in the criminal proceedings.*fn19 A review of the plea colloquy shows that Makas fully understood the nature of the proceedings, responded appropriately to questions from the court, did not exhibit confusion or uncertainty, and consulted with counsel. The subsequent hearings in the New York state courts addressed whether Makas posed a danger to himself or others because of his mental illness and do not appear to bring into question legal competency. See Matter of Timothy M., supra. The record appears to establish that Makas responds well to medication. Makas has not been adjudicated incompetent by any court nor has there been presented to this Court any other evidence of incompetence, e.g., a diagnosis by a mental health professional that Makas is being treated for a mental illness that would render him legally incompetent. See Ferrelli v. River Manor Health Care Center, 323 F.23d 196, 201--202 (2d Cir.2003); Bowen v. Rubin, 213 F.Supp.2d 220 (E.D.N.Y.2001). It is his current competence that governs in determining whether to appoint a guardian ad litem or counsel. Makas was found to be competent in the prior state court proceedings and there is no basis for a contrary finding in these proceedings; consequently, the Court finds Makas to be currently competent.
The Second Circuit has not established standards guiding the appointment of a guardian ad litem under Rule 17(c). In the absence of contrary controlling law, this Court adopts the position of the Eastern District in Bowen, 213 F.Supp.2d at 223, that competency is determined by reference to the law of New York. Under New York law a guardian is appointed for "an adult incapable of adequately prosecuting or defending his rights." N.Y. CIV. PRAC. LAW & RULES § 1201.
Appointment of "a guardian ad litem is justified when, based on a preponderance of the evidence, the court concludes that a party's condition impedes [Makas'] ability to protect [his] rights...." New York Life Ins. Co. v. V.K., 711 N.Y.S.2d 90, 96 (N.Y. Civ. Ct.1999). Because no detailed definition of incapacity is set forth in N.Y. CIV. PRAC. LAW & RULES § 1201, it has been held that it is appropriate to utilize the definition of incapacity in the criminal rules. See Matter of Vance A., 432 N.Y.S.2d 137, 146 (N.Y. Fam. Ct.1980). Under N.Y. CRIM. PROC. LAW § 730.10 a defendant in a criminal case is incapacitated from standing trial if he "lacks capacity to understand the proceedings against him or to assist in his own defense." This is also the federal standard. Godinez v. Moran, 509 U.S. 389 (1993) (standard for competency to plead guilty or waive civil rights is the same as the test for competency to stand trial ). There is no evidence before this Court that indicates Makas does not understand the nature of the proceedings or is unable to assist in the prosecution of his case. Simply stated, there is no basis in the record to question Makas' legal competency or, more importantly to this issue, to question his ability to manage his own case.
At Docket No. 36, in response to the remand from the Second Circuit, Makas requested appointment of counsel. At Docket No. 67 this Court denied that request.*fn20 A district court may not usually change its prior decisions absent an "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice." Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir.2003). Inasmuch as there has been no change in circumstances in the interim, the Court has no reason to revisit that order. Moreover, even if the Court were to revisit its prior order it would not change the result.
No court has determined that Makas is indigent. He was represented by retained counsel prior to his guilty plea. On remand he hired Mr. Schlenker to represent him. Finally, he has been represented by retained counsel during his periodic retention hearings. Makas has not retained new counsel.
Assuming without deciding that Makas is currently indigent,*fn21 the court could appoint counsel in an appropriate case. In determining whether to appoint counsel under Rule 17(c), in Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2d. Cir.1998) the Second Circuit appears to have approved the test utilized under the in forma pauperis statute, 28 U.S.C. § 1915, stating:
[I]n determining whether to appoint counsel for an indigent litigant, a district judge should first determine whether the indigent's position seems likely to be of substance.
If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.
As discussed further below, Makas in this case does not meet the threshold requirement that his position seems likely to be of substance. Moreover, even assuming his claims met the threshold requirement, the other factors militate against appointment of counsel. Makas is a mature individual in his mid-forties with a college degree; the crucial facts have been identified; there is no conflicting evidence; and the lack of any testimonial evidence eliminates any need for cross-examination. The absence of disputed issues of material fact have led the Court, in the exercise of its discretion, to conclude that no evidentiary hearing need be held. Schriro v. Landrigan, 550 U.S.___, 127 S.Ct. 1933, 1940--41 (2007); Chang v. United States, 250 F.3d 79, 85 (2d Cir.2001); see United States v. Gonzales, 970 F.2d 1095,1101 (2d Cir.1992) (no evidentiary hearing necessary where criminal defendant makes allegations that simply contradict his statements made under oath at plea allocution).
While the legal issues presented are somewhat complex, the papers filed by Makas in this Court show that he fully understands the nature of the proceedings and, although the Court does not agree with his legal analysis, he nonetheless exhibits an understanding of the issues and the law involved at least equal to that of most pro se prisoners and better than many. No special reason exists to appoint counsel. It should be noted that New York law provides detailed standards governing the acceptance of NRRMDD pleas to assure that the plea is voluntary. N.Y. CRIM. PROC. LAW § 220.15.
The extensive plea hearing held in this case, which was fully transcribed, provides a basis for determining whether there was substantial compliance with the statute. Both the Second Circuit Court of Appeals and the New York Court of Appeals have provided detailed guidance regarding the consequences of a NRRMDD plea.
Based on the record before it, this court can not say representation by an attorney or the appointment of a guardian ad litem is necessary to protect Makas' rights. The Court therefore in the exercise of its discretion declines to appoint either counsel or a guardian ad litem.
In order to exhaust his state remedies Makas must have presented each of his federal claims identified as such to a New York court of first instance and then appealed any adverse decision to the extent of any appeals as a matter of right and then sought discretionary appeals to New York's highest court. The Court has identified Makas' claims as involving two related issues: 1) did he enter a voluntary NRRMDD plea; and 2) was his plea the result of ineffective assistance of counsel because it was based upon misinformation. In so doing the Court reviewed the record with care and interpreted each of Makas' assertions liberally stating his case as forcefully as the facts and the law suggest. See Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003).*fn22 Specifically, Makas argues that his attorney did not sufficiently and accurately explain to him the consequences of a NRRMDD plea as it would affect his future confinement so that he could intelligently compare possible outcomes if he was convicted by a jury of the crimes charged in the indictment as opposed to entering a NRRMDD plea. In evaluating this claim it is important to recognize what Makas is not contending. He concedes his mental illness which is a severe psychosis (paranoid schizophrenia). He also concedes (or, at least, has never contested) that at roughly the same time he intentionally set three fires, one was to a rental unit which he owns but, while rented, was unoccupied at the time he set the fire. Makas denies that he set fire to an adjacent unit which he also owned, which he knew was occupied by his sleeping tenants; but he does not contest the fact that the two units were adjacent and only 141/2 feet apart, the apparent width of the breezeway, that the second occupied unit was joined to the first unit by an enclosed covered breezeway, and that smoke from the fire at the first unit penetrated and damaged the second unit forcing its inhabitants to evacuate in the early morning hours. Makas has always denied that he intended to set fire to an occupied building and as we shall see has vigorously litigated the question whether the two adjacent rental units which he owned constituted a single building. He has not, however, denied that he knows that he was charged with Arson in the Second Degree and that he knew the elements of that offense. He really cannot deny this knowledge since the elements of Arson in the Second Degree involving the same two rental units formed part of the basis of his appeal from his earlier plea of guilty to Arson in the Second Degree. This is important because before a New York trial judge may accept a NRRMDD plea N.Y. CRIM. PROC. LAW § 220.15 requires the judge to address the defendant personally and determine whether there is an evidentiary basis for the plea.
Since a NRRMDD plea admits factual guilt, in entering such a plea a defendant consents to a finding that he or she could be found guilty beyond a reasonable doubt of each of the crimes charged in the indictment. The trial court must, therefore, consider the prosecutor's proffer, the statements of defense counsel and the defendant's admissions and either make a finding that the defendant concedes those facts or independently determine that those facts, if unimpeached and uncontradicted, would permit a jury acting reasonably to find guilt beyond reasonable doubt. As we saw in discussing the reversal of Makas' conviction of second-degree arson, New York Courts allow an Alford-plea and this Court assumes that New York law would allow a competent defendant proposing a NRRMDD plea to concede a factual basis for such a plea despite a claim of factual innocence. The New York Court of Appeals affirmed an Alford-plea in Alexander despite evidence that the defendant, while competent, had a history of mental illness. It appears that the Appellate Divisions's real concern when it reversed Makas' conviction of second-degree arson was the fear that a defendant may plead guilty on the mistaken assumption that he is guilty because he doesn't know what the government would have to prove beyond a reasonable doubt in order to convict him. See Henderson v. Morgan, 426 U.S. 637 (1976) (stressing importance that mentally retarded defendant understand the charge and its elements). To avoid this result the defendant must demonstrate that he knows what the government must prove and either concedes factual guilt or acknowledges that a jury could find guilt beyond reasonable doubt on the government's proffer and the defendant's concessions, and the defendant indicates his desire to go forward with the plea despite his claim of innocence. In this case it is clear that Makas knew what the prosecution would have to prove in order to convict him of second-degree arson. Makas' claim is that he entered what was in effect an Alford-plea on the mistaken assumption that admitting to factual guilt of second-degree arson would have no impact upon future commitment hearings beyond admitting to the facts of third-degree arson.*fn23
This contention will be addressed hereafter.
III. MAKAS' MISCONCEPTIONS REGARDING THE LAW
In presenting his claims Makas seems to be laboring under a number of misconceptions regarding the law, which explains to a certain extent the nature of his claims. In order to decide the exhaustion issue these misconceptions will be addressed in order.
First, Makas seems to believe that if his defense had been more vigorous the charge of second-degree arson could have been dismissed pre-trial. In fact, the first attorney employed by Makas challenged the charge of second-degree arson pretrial and introduced evidence regarding the relationship between unit 1 and unit 2. He offered the testimony of an architect describing the units their separate foundations the way the breezeway was constructed and based upon this evidence sought dismissal of the second-degree arson charge. The trial court denied this motion concluding that whether the units constituted two buildings or only one was a fact question for the jury, i.e., that the prosecution had made a prima facie case. At this point Makas on the advice of his first attorney entered a plea of guilty to second-degree arson. He later appealed the resulting conviction arguing 1) that his counsel was ineffective for not pursuing a NRRMDD plea and 2) the plea colloquy did not establish a voluntary plea to second-degree arson. The appellate court noted the first claim but resolved the case on the second claim. On remand Makas obtained new counsel and eventually entered the NRRMDD plea at issue here.
Second, Makas seems to believe that had he gone to trial he would have necessarily obtained either an order of dismissal, see N.Y. CRIM. PROC. LAW § 290.10, regarding second-degree-arson or a favorable jury verdict of acquittal and that he would be able to prove an affirmative defense to Arson in the third degree.*fn24 Of course, as Schlenker conceded during the NRRMDD plea hearing, no one knows for sure what a jury would have decided. It is clear, however, that a jury acting reasonably could have convicted Makas of second-degree arson on one of two theories, both of which are recognized in People v. Makas, supra. The first is that the two rental units constituted a single building. It is undisputed that both units were owned by Makas and were side by side joined by a covered breezeway. The prosecutor argued that both units were carried on the county tax records as a single building. For purposes of Arson "building" is defined as follows (N.Y. PENAL LAW § 150.00 (Arson definitions)):
1. "Building", in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein. Where a building consists of two or more units separately secured or occupied, each unit shall not be deemed a separate building.
The language that a building consisting of two or more units shall not constitute separate buildings was added to change prior New York law, which did treat two apartments in the same apartment house as separate buildings. See discussion in People v. Keech, 467 N.Y.S.2d 786 (N.Y. Sup. Ct. 1983). Given the facts that are undisputed, interpreted in light of the definition in § 150.00, a jury could reasonably have found beyond reasonable doubt that the two units joined by an enclosed and covered breezeway constituted a single building, i.e., were structurally connected. Cf. People v. Grassi, 708 N.E.2d 976 (N.Y.1999) (upholding Arson in the second degree conviction when fire was set in an unoccupied night club adjacent to an occupied motel where the two structures were "essentially a single entity" because they shared a common wall). Since it is undisputed that Makas started a fire in unit 1 and knew that the adjacent unit was occupied, and that unit suffered smoke damage as a direct result of the fire, such a jury finding would pass constitutional muster. Slight damage is sufficient to satisfy the "damage" to a building prong of the various arson statutes. See People v. McDonald, 496 N.E.2d 844 ( N.Y. 1986); People v. Calderon, 682 N.Y.S.2d 38 ( N.Y. App. Div.1998) (blistering and smoke damage); People v. Fleming, 560 N.Y.S.2d 50 (N.Y. App. Div.1990) (smoke damage and heat damage to light fixtures).
Alternatively, a jury could have found that Makas started a fire in unit 1, which he knew would endanger unit 2 and in fact did damage unit 2 at least to the extent of causing smoke damage, which forced the evacuation of the unit by its occupants. People v. Davis, 392 N.Y.S.2d 195, 197 (N.Y. Sup. Ct.1977). It is instructive that Makas told the police that he wished to commit suicide and started fires at his various properties to destroy them so that his family would not have to dispose of his property. Clearly unit 2 was part of his property from which a jury could infer that he intended to destroy that as well but reconsidered when he thought about the occupants of unit 2 whom he knew to be sleeping there leading him to call the police.
Third, Makas seems to think he could gain the benefit of plea negotiations by pleading not guilty to second-degree arson and NRRMDD to third-degree arson. But the statute makes it clear that a plea of NRRMDD must be made to the entire indictment if it is to resolve the case. While Makas could have persisted in his plea of not guilty to second-degree arson he would have had to go to trial and risk conviction. There is nothing in the record to suggest that the prosecution would have been willing to dismiss the second-degree arson charge in return for a plea to third-degree arson.
Fourth, Makas seems to believe that if he had gone to trial and been acquitted of second-degree arson and found NRRMDD as to third-degree arson he could not have been placed in track 1 in a subsequent commitment hearing. Makas is incorrect. At the commitment hearing three issues were in question. First, was he mentally ill? Makas is indisputably suffering from a serious mental illness: psychosis (paranoid schizophrenia). Second, was his mental illness related to his crime? This would be established by the jury (or court) finding him NRRMDD as to third-degree arson. Third, was he suffering from a "dangerous mental disorder" defined as someone with a mental illness who because of that condition currently constitutes a physical danger to himself or others? It is undisputed that Makas threatened suicide and thus was a danger to himself. It is also undisputed that Makas started fires under circumstances that endangered others. While second-degree arson clearly involves physical danger to others, the facts of this case, even without a second-degree arson finding, would support a finding of dangerous mental disorder. Thus, it seems that, given the facts of this case, a sustained plea of NRRMDD as to arson in either the second-degree or third-degree would have resulted in track 1 placement.
Fifth, Makas seems to think that the sentence he received for second-degree arson when he pled guilty to that charge-6 to 12 years indeterminate-would somehow limit the period he could be confined as a NRRMDD acquittee. First, that sentence would not limit the sentence to which he could have been sentenced if he went to trial and was convicted of second-degree arson. His exposure was 47 years not 6 to 12 years. But in determining whether to retain a NRRMDD acquittee the court is not concerned with the maximum sentence he could have received if he had been convicted of the underlying charges. In making this determination, the court is only concerned with whether he remains mentally ill and, as a result, is a danger to himself or others. Thus, the maximum sentence for second-degree arson and for that matter the maximum sentence available for third-degree arson does not determine the maximum period of confinement to which a NRRMDD acquittee is vulnerable.
Having thoroughly reviewed the record it appears that Makas' case is controlled by Hill v. Lockhart, 474 U.S. 52 (1985). Hill also brought two claims. First he contended that his plea was involuntary because his counsel had failed to inform him that as a second offender he would have to serve one half of his sentence before becoming eligible for parole and second that his counsel's failure to advise him constituted ineffective assistance of counsel. The court held that parole eligibility is a collateral consequence of a plea. Thus, the court concluded that Hill's claim that his plea was involuntary collapsed into his claim that he received ineffective assistance of counsel.
Beyond Hill the Supreme Court has not definitively distinguished between direct and collateral consequences of a plea. See Wilson v. McGinnis, 413 F.3d 196 (2d Cir.2005). In the Second Circuit direct consequences are those that have a "definite, immediate and largely automatic effect on the range of the defendant's punishment," all other consequences are deemed collateral. Id. at 199. It appears that New York law applies the same test. See People v. Catu, 825 N.E.2d 1081 (N.Y.2005) (collateral consequences are peculiar to the individual and generally result from the actions taken by agencies the court does not control); People v. Ford, 657 N.E.2d 265 (N.Y.1995). Makas was informed of the direct consequences of his plea that he would be examined by a psychiatrist and subject to a commitment hearing. He was further informed that if he was found to be mentally ill and dangerous to himself or others he would be committed to a mental health facility subject to a further hearing in six months. As we have seen, assuming that counsel told Makas that pleading NRRMDD to second-degree arson would not be any worse than pleading NRRMDD to third-degree arson, that is factually correct. It is the facts of his conduct interpreted in light of his mental illness that is determinative of whether he has a dangerous mental disorder, not the precise crime to which he pled, that control. In sum, all of the factors that might result in a longer or shorter commitment time beyond the initial commitment hearing are collateral, not direct, results of a NRRMDD plea.
During the plea hearing defense counsel informed the court that he had explained the elements of Arson in the second degree to Makas. Makas requested and was allowed a recess to speak further with counsel. Counsel indicated after court resumed that he had a further discussion with Makas regarding Arson in the second degree and Makas indicated that he was satisfied and wished to go forward with the plea. See Henderson v. Morgan, 426 U.S. 637, 647 (1976) (importance of a representation by counsel that he had discussed the elements of the charge with the defendant). Thus, Makas' only significant federal claim is ineffective assistance of counsel and it is this claim that must be exhausted.
Upon remand this Court ordered Respondent to address whether Makas exhausted his state appellate remedies. Respondent did respond and Makas filed his traverse. In his response Respondent essentially conceded that Makas had exhausted his overarching ineffective counsel claim and had fairly presented the first two grounds (failure to obtain discovery material and misinforming about consequences of pleading to second-degree versus third-degree arson). The Court agrees that the first and second grounds are exhausted.
As to the third ground the situation is somewhat different. It is possible that it is not a stand alone claim but simply an elaboration of Makas' second claim. Respondent does not address whether the issue of the facts not fitting the crime of second-degree arson has been exhausted. However, it appears that Makas, at least inferentially, raised the third ground in his N.Y. CRIM. PROC. LAW § 440.10 petition. In denying his petition, the Ulster County Court held (footnote added): "To the extent that defendant's motion challenges the factual predicate for the Arson in the Second Degree charge, the same is not reviewable on this motion pursuant to CPL §440.10(2)(C),*fn25 and in any event, there was no conviction of the charge." Thus, the Ulster County Court did address the issue of the sufficiency of the factual predicate for conviction of the crime of second-degree arson. The third ground is also exhausted. Jimenez v. Walker, 458 F.3d 130, 149 (2d Cir.2006). Further it appears that Makas failure to timely appeal the judgment finding him NRRMDD to second-degree arson would render any further recourse to the New York courts futile since the evidentiary basis for a judgment appears to be an appealable issue, as Makas was informed when he appealed his second-degree arson conviction, see People v. Makas, supra, and Makas did not appeal. In any event, Respondent is correct that, even if this claim has not been exhausted, this Court could nonetheless deny the claim on the merits. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); see also Greiner v. Wells, 417 F.3d 305, 317 n. 14 (2d Cir.2005) (holding that because it reached the ineffective claim on the merits, it need not reach the exhaustion issue); Willbright v. Smith, 745 F.2d 779, 780-81 (2d Cir.1984) (due process does not require state court to inquire regarding an evidentiary basis for a plea).
IV. DISCUSSION ON THE MERITS
Because Makas filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). As we have seen, those standards govern challenges by NRRMDD acquittees to their continued confinement. Consequently, this Court cannot grant relief unless the decisions of the state courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court addressing the issue or issues raised in the petition before this Court. Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000). In making this determination, it is irrelevant whether the state court cites the Supreme Court precedents, or is even aware of them; the standard is met "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). In this case the last reasoned decision in this case was the decision of the Ulster County Court on his N.Y. CRIM. PROC. LAW § 440.10 motion. In addition, state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
If a federal claim has not been adjudicated on the merits, AEDPA deference is not required. Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir.2003). In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo. DeBerry v. Portuondo, 403 F.3d 57, 67 (2d Cir.2005). Where there is no reasoned decision of the state court addressing the ground or grounds raised by the petitioner on the merits and no independent state grounds existing for not addressing those grounds, this court must decide ...