The opinion of the court was delivered by: Honorable Frank Maas, United States Magistrate Judge
AMENDED REPORT AND RECOMMENDATION
Petitioner Pedro Robles ("Robles") brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge his conviction on one count of Murder in the Second Degree and two counts of Assault in the First Degree in Supreme Court, New York County. (See Pet. ¶¶ 1, 5; Ans. ¶ 2). After Robles pleaded guilty to these charges, Justice Charles J. Solomon sentenced Robles on May 30, 2000, to a term of fifteen years to life on the murder count and concurrent fifteen-year terms on the assault counts. (Ans. ¶ 2).
In his petition ("Pet." or "Petition"), Robles alleges that his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated because his attorney provided ineffective assistance in connection with his guilty plea. (Pet. ¶ 12). For the reasons that follow, the Petition should be denied. Additionally, Robles should be denied a certificate of appealability because he has failed to make the substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2). II. Background
A. Factual Background Shortly before 9 p.m. on June 5, 1999, Robles drove his white flatbed pickup truck from Riverside Drive onto West 72nd Street in Manhattan and continued eastbound in the opposing lane of traffic at the rate of approximately sixty to seventy miles per hour. (H. 39-40, 46; P. 8-10).*fn1 At the time, Robles was under the influence of alcohol, marijuana, and PCP. (T. 9; P. 9; S. 14). Robles went through a red light at the intersection of West 72nd Street and Broadway, striking and seriously injuring two pedestrians who were in the crosswalk. (H. 196; S. 4-5, 8). He then struck a car traveling on Broadway, killing the driver. (H. 50-51; P. 10; S. 14). Eventually, Robles was forced to stop after he crashed his truck into other cars on the southeast corner of West 72nd Street and Broadway. (H. 168). When police officers reached Robles, he was attempting to back up and flee. (Id. at 56). As one of the officers handcuffed Robles, he spit at the officer. (Id. at 57).
On June 18, 1999, the grand jury returned an indictment in which Robles was charged with Murder in the Second Degree, Vehicular Manslaughter in the Second Degree, two counts of Assault in the First Degree, two counts of Assault in the Second Degree, two counts of Vehicular Assault in the Second Degree, Reckless Endangerment in the First Degree, and Driving While Intoxicated. (See Resp't's Br. at 2).
On March 29, 2000, the state court began a hearing on Robles' motions to suppress certain physical evidence, his statements to the police, and several pretrial identifications of him. Before the first witness was called, Robles' counsel told Justice Solomon that the People would agree to the imposition of concurrent sentences on the first degree assault counts if Robles pleaded guilty to those counts and the second degree murder count. (H. 16). The prosecutor confirmed this discussion, but cautioned that "after this hearing I will no longer be holding that position. My position will be that there are two separate and apart assaults in the first degree which I believe carry a maximum term of 15 years to life in addition to the murder in the second degree." (Id. at 16-17). Neither the court nor defense counsel responded to this assessment of Robles' sentencing exposure. (Id. at 17). Nonetheless, Justice Solomon emphasized the prosecutor's key point for Robles, explaining that the prosecutor would "take a different position" and make "no bargains and no promises of concurrent sentence[s]" after the hearing. (Id. at 19, 21).
Justice Solomon then asked defense counsel whether Robles was interested in a disposition of the case. After counsel indicated that Robles had not expressed any such interest prior to the receipt of the Rosario material a week earlier, the Justice suggested that he pursue this subject with his client. Robles then interjected, "I can understand everything you are saying, your Honor. But this was an accident." (Id. at 19). After conferring with Robles, defense counsel informed the court that his client would not plead guilty and was "ready to go forward." (Id. at 20-21).
On April 26, 2000, Justice Solomon issued a written decision denying Robles' suppression motions. (See Ans. App. Ex. B).
On the morning of May 10, 2000, just before jury selection, Justice Solomon observed that there had been extensive discussions regarding a possible plea over the past several weeks. (T. 2-3). Defense counsel indicated that Robles had requested "a flat thirteen years," but that the prosecutor would require him to plead guilty to charges which included the second degree murder count that carried a mandatory minimum sentence of fifteen years. (Id. at 3-5). In exchange for a guilty plea, however, the prosecutor agreed that neither she nor the victims nor their families would ask the court to impose a particular sentence. (Id. at 4-6).
The prosecutor also noted that if the case proceeded to trial, she would not "remain[ ] silent" on sentencing, nor would the victims be prevented from addressing that topic. (Id. at 6). The prosecutor added:
I feel that . . . this is an after trial, actually even before trial, my feeling had always been that [this] is [a] twenty-five years to life case.
Twenty-five years, you know, to life is what I have gotten almost routinely on homicides after trial. Added to that two other victims whose lives are ruined. (Id. at 6-7). The prosecutor also indicated that she did not believe that Robles could prevail on his defense of carbon monoxide intoxication since "we all know what drugs he had on board." (Id. at 8). Justice Solomon noted that he would impose the minimum fifteen-year sentence if Robles pleaded guilty, but that there was a possibility that he might sentence Robles to consecutive sentences if Robles were convicted after a trial because "[t]hese are separate victims, separate acts." (Id. at 9-10).
Robles then addressed the court directly, stating that he was only willing to plead guilty to "thirteen years for Criminally Negligent Homicide" because he was not a murderer and did not intend to hurt anyone. (Id. at 11). Robles opined further that if he had been permitted to testify before the grand jury, he probably would only have been indicted on that charge, which carried a lesser sentence. (Id.). He also told the court for the first time, "I'm not being represented properly, Your Honor. My rights have not been, correct. I can't take it to trial, I want to get my own attorney." (Id. at 13-14). As he explained, defense counsel allegedly had advised him inaccurately that he would not be indicted for murder. Robles added that if he had known he would be charged with murder, he would have testified before the grand jury, which then would have indicted him only on the lesser charge of "vehicular homicide," to which he could have pleaded guilty. (Id. at 14). Finally, Robles suggested that the court was attempting to "railroad" him. (Id. at 15).
After defense counsel requested that Robles again be asked whether he wanted to plead guilty, Justice Solomon responded, "I'm not here to brow beat him and to twist arms and to try to force a disposition here. I don't do that. I'm not going to do it here." (Id. at 17-18). The Justice also noted that defense counsel had made approximately twenty appearances on behalf of Robles since July 20, 1999, during which Robles had never expressed any dissatisfaction with his services or requested another attorney. (Id. at 18-19). For that reason, the Justice rejected Robles' request for the appointment of new counsel. (Id. at 19).
Justice Solomon then asked Robles for his position regarding a plea. (Id. at 20). After conferring with defense counsel, Robles reaffirmed that he did not want to plead guilty. (Id. at 23). The court then proceeded to a discussion of pretrial matters and held a Sandoval hearing. (Id. at 24-105).
Justice Solomon delayed jury selection until after lunch so that Robles could talk to his counsel without undue pressure. (Id. at 99-100). When court reconvened that afternoon, Robles' attorney informed the court that he had participated in a "very, very long conference" with Robles, who, "upon further reflection," wanted to change his plea. (P. 2). After the court asked whether that was correct, Robles responded, "Yes." (Id.). The following exchange then took place:
COURT: Just so we're clear on the record, the People's right under our law in this State is to have the defendant enter a plea to every count if they insisted in the indictment. The law is pretty clear on that but . . . what would you seek as far as ...