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Ferrer v. Superintendent

July 25, 2008

ALEX FERRER, PETITIONER,
v.
SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Norman A. Mordue, Chief United States District Judge

MEMORANDUM-DECISION AND ORDER

I. Background

A. State Court Proceedings

The state court records reflect that at approximately 2:30 a.m. on August 21, 2001, Margaret Frost was awoken by an ambulance outside her home in Binghamton, New York. See Transcript of Suppression Hearing (4/17/02) ("Suppression Tr.") at pp. 28-29. As she woke up, she noticed an individual standing in her bedroom, approximately ten feet away from her. Id. at p. 29. When she confronted him, he put a jacket over his head and flashed a light in her eyes. Id. at pp. 29-30. She then informed him that she was going to call the police, and, as a result, he ran out of the residence through its back door. Id. at p. 31.

After he fled, Frost discovered that several items from her home had been misplaced or missing, including a ceramic bowl and $50.00 from her purse. Id. at pp. 41-43. She promptly called the police, and, when law enforcement officials arrived, they discovered a backpack that contained numerous documents bearing the name of petitioner, pro se Alex Ferrer on Frost's front porch. Id. at p. 6. Ferrer was then identified as a suspect, and on August 24, 2001, the police located him and brought him to the police station for questioning. Id. at pp. 8-9. Upon arriving at that location, he was advised of his Miranda rights.*fn1 Suppression Tr. at p. 11. He then indicated that he was willing to talk with the officers without the benefit of counsel, and eventually admitted his involvement in the incident which occurred at Frost's residence. Id. at pp. 15-19.

By Indictment Number 01-619, a Broome County grand jury charged Ferrer with one count of burglary in the second degree, contrary to N.Y. Penal Law § 140.25(1)(d).

On April 17, 2002, Broome County Court Judge Patrick H. Mathews presided over a suppression hearing, after which he issued a decision which denied Ferrer's suppression motion in all respects. See Suppression Tr. at p. 82.

Ferrer's jury trial on the charge commenced on April 23, 2002, with Judge Mathews presiding. See Transcript of Trial and Change of Plea (4/23/02) ("April Tr.") at p. 2. After the jury was selected, a luncheon recess was held, during which time the prosecutor received permission from the trial court to compare a palm print found on Frost's ceramic bowl with a palm print taken from Ferrer. April Tr. at pp. 73-74. A comparison of those two prints yielded a "positive match." Id. at pp. 74-75. Upon being advised of that development, Ferrer indicated to his attorney that he wished to accept the prosecutor's previous offer to allow Ferrer, a second violent felony offender, to enter a guilty plea to the charge of attempted second degree burglary in satisfaction of the charge against him in the Indictment, as well as a potential perjury charge.

Id. at p. 79-80.

The County Court then engaged in a colloquy with him regarding the proposed plea, after which Judge Mathews accepted Ferrer's guilty plea to the attempted burglary charge.*fn2 Id. at p. 83.

On May 30, 2002, the date on which Ferrer was scheduled to be sentenced, Judge Mathews, after having reviewed various pro se requests of Ferrer, ordered him to undergo a psychiatric examination pursuant to New York Criminal Procedure Law ("CPL") § 730.30. That exam was conducted by two psychiatrists, and, although the contents of those reports were not placed on the trial record, the record reflects that Ferrer was found to be competent. See Decision and Order of Judge Mathews (6/9/03) ("June, 2003 Decision") at p. 5.

On July 30, 2002, Ferrer appeared with counsel for sentencing. See Transcript of Sentencing of Alex Ferrer (7/30/02). At that proceeding, Ferrer claimed that he was not guilty of the crime to which he pleaded guilty because his palm print could not have been on the ceramic bowl, which he claimed had fallen on the floor. Id. at p. 2. Notwithstanding that comment, the court sentenced Ferrer, pursuant to the terms of the plea bargain, to a determinate term of five years imprisonment, followed by five years of post-release supervision. Id. at p. 3.

On March 10, 2003, before his appeal was perfected, Ferrer filed a pro se motion to vacate his conviction pursuant to CPL § 440.10. See Dkt. No. 22, Exh. A ("CPL Motion"). In that application, Ferrer claimed, inter alia, that: i) he was forced to testify before the grand jury in "shackles;" ii) perjurious testimony was presented to the grand jury; iii) the manner in which he was questioned was constitutionally infirm; iv) the grand jury panel lacked "ethnic minorities;" and v) he received the ineffective assistance of trial counsel. See CPL Motion. The prosecutor opposed that application, and Judge Mathews thereafter denied such request without a hearing. See June, 2003 Decision.

Ferrer's direct appeal was thereafter perfected, and, in his brief, appellate counsel argued that: i) Ferrer was entitled to withdraw of his guilty plea because he received the ineffective assistance of trial counsel; and ii) the County Court erred by not granting Ferrer new counsel and then ordering a competency hearing under the CPL. That appeal was opposed by the district attorney, and, after consolidating Ferrer's direct appeal with his appeal of the denial of his CPL Motion, the New York State Supreme Court Appellate Division, Third Department, unanimously affirmed both Ferrer's conviction and the denial of the CPL Motion. See People v. Ferrer, 16 A.D.3d 913 (3d Dept. 2005). Ferrer, through counsel, sought leave to appeal the Appellate Division's decision, however in a decision dated July 7, 2005, New York's Court of Appeals denied his leave application. People v. Ferrer, 5 N.Y.3d 788 (2005).

B. This Action

Ferrer filed a pro se petition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 10, 2005. Before any response to that pleading was filed by the respondent, Ferrer filed an amended petition in which he asserts numerous grounds for relief. See Dkt. No. 18 ("Am. Pet.").*fn3 In that pleading, Ferrer asserts that: i) the prosecutor failed to disclose Brady*fn4 evidence to Ferrer; ii) his incriminating statement was obtained in violation of his Miranda rights; iii) his guilty plea was unlawfully induced and involuntarily made; iv) the district attorney suborned perjurious testimony at both the grand jury proceeding and the suppression hearing; v) he was improperly forced to testify in "shackles" before the grand jury that ultimately indicted him; vi) the panel for the grand jury was "unconstitutionally selected and impaneled;" vii) the County Court erred in refusing to grant Ferrer's motion to withdraw his plea; viii) the trial court wrongfully failed to allow Ferrer to testify in support of his claim that he was not competent to plead guilty to the charge; ix) the County Court erred by denying Ferrer his right to an allocution at his sentencing; and x) he received the ineffective assistance of trial counsel. See Am. Pet.; see also Traverse (Dkt. No. 26) ("Traverse"); Memorandum of Law in Support of Amended Petition (Dkt. No. 36).

The Office of the Attorney General for the State of New York, acting on respondent's behalf, has filed a response in opposition to Ferrer's application. Dkt. No. 22. Attached to that response was a memorandum of law requesting dismissal of the amended petition ("Resp. Mem."). In his memorandum, respondent claims that Ferrer is procedurally barred from asserting some of his claims for relief and that, in any event, the claims raised in the amended petition are without merit. See Resp. Mem. After he filed his Traverse, Ferrer filed additional exhibits, together with a supplemental letter and brief in further support of his amended pleading. See Dkt. Nos. 29, 33 and 34. This Court has considered the above-referenced documents in conjunction with its review of the amended petition, which is currently before this Court for disposition.*fn5

II. Discussion

A. Standard of Review Applicable to Ferrer's Claims

The April, 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) that: a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) 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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Rodriguez, 439 F.3d at 73 (quoting 28 U.S.C. § 2254(d)); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). In providing guidance concerning application of this test, the Second Circuit has noted that:

[A] state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362,] at 405-06 [2000]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001).... [A] state court's decision is "unreasonable application of" clearly established federal law 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 case before it. Williams, 529 U.S. at 413.

Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

Significantly, a federal court engaged in habeas review is not charged with determining whether the state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams, 529 U.S. at 409; see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). Objectively unreasonable in this context means "'some increment of incorrectness beyond error is required'" in order to grant a federal habeas application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Francis S., 221 F.3d at 111).

B. Review of Ferrer's Claims

1. Brady Violation

Ferrer argues that his conviction must be overturned because the prosecutor withheld evidence that was favorable to the defense until after the jury was selected, thereby violating his right to a fair trial. See Am. Pet., Ground One. Specifically, he asserts that the prosecutor withheld evidence concerning the palm print found on the ceramic bowl "for nine (9) months and suddenly mention[ed] it for the first time ever after the selection of the jury." Traverse; Point Three.

In Brady, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. To prove a Brady violation, a habeas petitioner must establish that: 1) the evidence at issue was favorable to the accused, either because it was exculpatory or could have impeached a prosecution witness; 2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and 3) prejudice ensued from the withholding. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

In discussing the first element of a Brady claim, the Second Circuit has noted that "[e]vidence is favorable to the accused if it either tends to show the accused is not guilty or impeaches a prosecution witness." Boyette, 246 F.3d at 90 (citing United States v. Bagley, 473 U.S. 667, 674 (1985)); see also Strickler, 527 U.S. at 281.

In the case sub judice, the evidence that petitioner asserts was wrongfully withheld by the prosecution -- the palm print found on the victim's ceramic bowl -- inculpated, rather than exculpated, Ferrer. See April Tr. at pp. 74-75. Thus, he has plainly not established that the subject evidence was favorable to his defense.

A habeas petitioner must satisfy all three elements of a Brady claim to prevail on such a claim. Hughes v. Phillips, 457 F.Supp.2d 343, 359 (S.D.N.Y. 2006) (citing Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001)). Since Ferrer has not demonstrated the first required element of his Brady claim, the Third Department's decision denying this claim, see Ferrer, 16 A.D.3d at 914-15, is neither contrary to, nor represents an unreasonable application of, Brady and its progeny. Petitioner's Brady claim is therefore denied.

2. Admissibility of Incriminating Statement

Ferrer also claims that his guilty plea must be vacated because it was the product of an illegally obtained confession. See Am. Pet., Ground Two; Traverse, Point One. In support of this assertion, Ferrer asserts that law enforcement officials were aware that he was represented by counsel in another criminal matter at the time he was questioned, but that they failed to consult with such attorney before questioning Ferrer, and instead resorted to "coercion, deception and trickery" to extract a confession from him. Am. Pet., Ground Two; Traverse, Point One. Petitioner also asserts that he had "mental issues," and was in need of "psychiatric medication" while being questioned, but that those facts were ignored by the police. Id.

Under Miranda, "a person questioned by law enforcement officers after being 'taken into custody or otherwise deprived of his freedom of action in any significant way' must first 'be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.'" Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda, 384 U.S. at 444). In considering whether a party has voluntarily provided a statement to the police, courts are to consider the "totality of the circumstances," including evidence of police coercion, the length of the interrogation, the defendant's maturity and education, and whether the police failed to advise the defendant of his rights to both remain silent and to have counsel present during the custodial interrogation. Withrow v. Williams, 507 U.S. 680, 693-94 (1993); see also Colorado v. Spring, 479 U.S. 564, 573 (1987).*fn6 In determining whether a statement was coerced, a court must "examine[] 'whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession[,] ... tak[ing] into consideration 'the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation.'" Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Under the AEDPA, a state court's factual findings at a suppression hearing are presumed to be correct, and the petitioner has the burden of overcoming that presumption by clear and convincing evidence. See Sorto v. Herbert, No. 01-CV-2955, 2004 WL 2852358, at *2 (E.D.N.Y. Dec. 13, 2004) (citing 28 U.S.C. § 2254(e)(1)); James v. Walker, No. 99-CV-6191, 2003 WL 22952861, at *6 (E.D.N.Y. Aug. 28, 2003), aff'd, 2004 WL 2496742, at *6 (2d Cir. 2004). However, "ultimately legal questions, such as whether a defendant has effectively waived his federal constitutional rights in a proceeding, are governed by federal standards." Oyague v. Artuz, 393 F.3d 99, 104 (2d Cir. 2004).

This Court has reviewed the transcript of the suppression hearing over which Judge Mathews presided. See Suppression Tr. The evidence adduced at the suppression hearing supports the trial court's conclusion that Ferrer voluntarily agreed to provide the incriminating statement to the police after he was advised of his Miranda rights.*fn7 See, e.g., Suppression Tr. at pp. 80-81. Nor has he established that he was threatened, coerced, tricked or otherwise improperly persuaded into providing the incriminating statement. Since the salient evidence demonstrates that Ferrer voluntarily waived his Miranda rights when he provided the statement to law enforcement officials, e.g., Oyague, 393 F.3d at 104, this Court finds that the Appellate Division's decision rejecting this claim, see Ferrer, 16 A.D.3d at 914-15, is nether contrary to, nor represents an unreasonable application of, Miranda and its progeny. Ferrer's Miranda claims are therefore denied.

3. Guilty Plea

a. Validity of Guilty Plea

Ferrer also asserts that his guilty plea was unlawfully induced and not voluntarily made. See Am. Pet., Ground One. In a related claim, Ferrer argues that his guilty plea was "illegal" because the Court never specifically asked him whether he understood the charge that had been brought against him, or whether he was under the influence of narcotics at the time of the plea. See Traverse, Point Four.

The Due Process Clause of the United States Constitution requires an affirmative showing that a defendant's plea is entered both knowingly and voluntarily before the trial court may accept the plea. See Godinez v. Moran, 509 U.S. 389, 400 (1993); Salas v. United States, 139 F.3d 322, 324 (2d Cir. 1998), cert. denied, 524 U.S. 956 (1998). "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)); see also Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (United States Constitution requires that guilty plea be knowingly and voluntarily entered); Parke v. Raley, 506 U.S. 20, 29 (1992) (plea is valid when it is both knowingly and voluntarily made). On collateral review, a court may only vacate a guilty plea where the petitioner can establish that the plea was not made knowingly and voluntarily. See Salas, 139 F.3d at 324; Tejeda v. United States, No. 99 CIV. 2948, 1999 WL 893275, at *4 (S.D.N.Y. Oct. 18, 1999); Ramirez v. Headley, No. 98 CIV. 2603, 1998 WL 788782, at *5 (S.D.N.Y. Nov.10, 1998).

The transcript of the April proceeding at which Ferrer ultimately pleaded guilty to the attempted burglary ...


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