Appeal from an opinion and order of the United States District Court for the Southern District of New York (Scheindlin, J.), granting the petition for habeas corpus relief. Because the district court rejected the credibility determinations made by the magistrate judge without holding its own evidentiary hearing, we vacate the ruling of the district court and remand this case to the district court for further proceedings consistent with this opinion.
The opinion of the court was delivered by: Katzmann, Circuit Judge
Before LEVAL, KATZMANN, and LIVINGSTON, Circuit Judges.
This case highlights a difficulty that our courts face in evaluating habeas corpus petitions filed well after the underlying conviction, when memories have faded and witnesses must struggle to reconstruct the relevant events. Over fifteen years ago, petitioner Carlos Carrion was convicted in the New York Supreme Court, New York County, of multiple offenses, including criminal possession of a controlled substance in the first degree and attempted murder, and sentenced to an indeterminate prison term of 125 years to life. In 2003, Carrion filed a petition for habeas corpus claiming that he had received ineffective assistance of counsel in connection with a plea deal that the state offered him, pursuant to which he would have been sentenced to an indeterminate prison term of ten years to life. At a hearing before a magistrate judge, the only witnesses to testify were Carrion, who presented his version of the events leading up to his decision to proceed to trial, and his trial counsel, who had an extremely limited recollection of Carrion's case and testified primarily to his typical established practice, which contradicted Carrion's version of the events in several meaningful respects. Relying on counsel's established practice and rejecting Carrion's account of the facts, the magistrate judge issued a report and recommendation recommending that Carrion's petition be denied. On review, the district court expressed concern relating to counsel's inability to recall specifically the events of this case and granted the petition. In so ruling, the district court implicitly credited portions of Carrion's testimony that had been rejected by the magistrate judge. We write today to emphasize that district courts should normally conduct their own evidentiary hearings--wherein they observe the relevant testimony firsthand--before reaching independent credibility determinations. Because the district court made its own credibility finding without such a hearing, we vacate the judgment of the district court and remand this case for further findings of fact. We also conclude that it is permissible for a court to rely on habit evidence of a lawyer's usual practice in reconstructing events.
On November 13, 1991, a police surveillance team followed a livery cab in which Carlos Carrion rode from the Bronx into Manhattan as part of an investigation conducted by the Manhattan North Narcotics Major Case Unit. After a high-speed pursuit and a collision, Carrion exited the car holding a nine millimeter semiautomatic gun and a shoulder bag.He fired several shots in the direction of the police, hitting a detective. The police fired back, and several bullets hit Carrion. When the police approached Carrion, they recovered the gun and the bag, which contained more than 11 pounds of cocaine. The gunshot wounds left Carrion permanently paralyzed.
A New York grand jury charged Carrion with conspiracy in the second degree, criminal possession of a controlled substance, twenty counts of attempted murder, criminal use of a firearm, two counts of criminal possession of a weapon, and reckless endangerment. The minimum sentence for the drug possession charge alone was fifteen years to life imprisonment.
The state offered Carrion a plea deal. Pursuant to the offer, Carrion would plead guilty to criminal possession of a controlled substance in the second degree in exchange for an indeterminate sentence of ten years to life imprisonment on the condition that Carrion allocute to all of the crimes charged in the indictment.Carrion declined the offer and proceeded to trial in the New York Supreme Court, New York County, before the Honorable Leslie Crocker Snyder. The jury found Carrion guilty of criminal possession of a controlled substance in the first degree, five counts of attempted murder in the first degree, criminal use of a firearm in the first degree, two counts of criminal possession of a weapon in the third degree, and reckless endangerment in the first degree. On December 10, 1993, Judge Snyder sentenced Carrion to an aggregate indeterminate prison term of 125 years to life.
On May 2, 2000, Carrion moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, on the ground that he had been denied effective assistance of trial counsel. He contended, inter alia, that defense counsel failed to advise him of the consequences of declining the state's plea offer. In an order dated December 14, 2001, Judge Snyder denied the motion. Carrion filed a petition for a writ of error coram nobis, and that petition was denied. He sought leave to appeal the denial of his petition, and that application was denied as well.
Carrion then filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York (Scheindlin, J.), arguing, inter alia, that he was denied effective assistance of trial counsel because his lawyer failed fully to inform and advise him about the pretrial plea offer. Carrion claimed that his trial counsel's representation was insufficient in connection with the plea offer in two respects: (1) counsel failed to advise Carrion of his maximum sentencing exposure, and (2) counsel did not urge Carrion to accept the proffered plea bargain. Judge Scheindlin referred the case to Magistrate Judge Maas to conduct an evidentiary hearing.
Magistrate Judge Maas held a hearing on Carrion's habeas petition on February 6, 2006. At the hearing two witnesses testified: Carrion and his trial counsel, Roy Kulcsar. Carrion testified that Kulcsar discussed the plea offer with him only once during a meeting that occurred in Bellevue Hospital. Carrion testified that at this meeting Kulcsar told him there was a plea offer: "[H]e told me that it was 10 to life, and I told him what he think about it? He said, it's my decision. And he thought that it was a good offer." According to Carrion, he was never informed what the maximum sentence could be if he were convicted of the charges against him, nor of the mandatory minimum sentences on the various charges. Carrion stated that Kulcsar did not discuss with him the likelihood that he would be convicted of the cocaine possession charge, or the fact that the charge carried a 15-year minimum sentence. Carrion also testified that in his initial meeting with Kulcsar, he told Kulcsar that he believed he had a legal defense to all of the charges against him because he was on the ground wounded when the police shot him in the back, causing the injury that paralyzed him. According to Carrion, Kulcsar allowed him to believe that he had a chance of prevailing, and so he declined the plea offer and went to trial.
When he testified before Judge Maas, Carrion's counsel, Kulcsar, had little recollection of Carrion's case, tried over twelve years earlier. Kulcsar testified that he was unable to locate the file from Carrion's case. He did not specifically remember any meetings with Carrion, whether he had a translator in communicating with Carrion, precisely what the charges were against Carrion, or what the sentence would be for someone convicted of possessing the amount of cocaine that Carrion had possessed. Apart from his meeting with the lawyers on the habeas petition, Kulcsar had no independent recollection of the plea offer, but he stated that the instant proceeding had refreshed his recollection. When asked whether he remembered discussing the plea offer with Carrion, Kulcsar stated, "I recall discussing the plea offer with Mr. Carrion, but as I said, I did not recall until my recollection was refreshed as to the fact that it was a 10 to life offer. I certainly recall having discussions with him about a plea and a plea offer, and matters relating to a plea." Kulcsar did not recollect precisely when or where the discussions occurred.Kulcsar could not remember how many times he discussed the plea offer with Carrion, and he could not specifically recall what Carrion had said about the plea offer.
When asked whether he recalled making a recommendation to Carrion concerning the plea, Kulcsar explained that as a matter of practice he did not recommend to clients whether or not to take a plea. Kulcsar was asked whether he specifically discussed the various minimum sentences on the individual charges against Carrion, and he did not recall. He elaborated, "I do recall discussing a plea offer with him, and I would reasonably conclude that within the framework of that discussion, I would have discussed with him any aspects relating to sentencing. But if you're asking me do I specifically recall that, then in all candor I have to say that I do not specifically recall that." Kulcsar testified ...