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Logan v. Unger

June 23, 2009

JAMAR LOGAN, PETITIONER,
v.
DAVID M. UNGER, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Jamar Logan ("Logan" or "petitioner") seeks habeas relief pursuant to 28 U.S.C. § 2254 challenging his conviction following a guilty plea to second degree assault (N.Y. Penal Law § 120.05(8)) in Monroe County Court of New York State Supreme Court. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

Logan was arrested for seriously injuring his five-month-old stepson. The prosecutor offered him a plea bargain pursuant to which he would plead guilty to second degree assault, in exchange for the prosecutor dropping another a misdemeanor charge of failure to register as a sex offender.*fn1 Logan was promised a sentence of five years in prison and five years post-release supervision. In return, Logan would agree to be sentenced as a second felony offender, with a 1975 conviction from the Commonwealth of Virginia serving as the predicate felony for second offender status. The plea colloquy took place on September 17, 2001, and the trial court accepted Logan's plea of guilty to one count of second degree assault. Sentencing was sent for October 10, 2001.

On October 10, 2001, Logan appeared for sentencing with his trial counsel. At that time, the prosecutor presented Logan with a Second Felony Offender Information ("the Felony Information"). The Felony Information alleged that Logan had been convicted in 1996 of the offense of Committing Indecent Liberties With a Child, a felony in the state of Virginia..*fn2 The prosecutor offered Logan the opportunity to admit, deny, or remain silent on the issue of whether he was the same person convicted of the crime of Indecent Liberties on June 26, 1996, in Virginia. Logan readily admitted that he was the same person and, furthermore, denied that he had any constitutional challenges to that conviction. The trial court then sentenced Logan to the agreed-upon sentence of five years in prison followed by five years of post-release supervision.

On direct appeal, the Fourth Department affirmed his conviction in the following memorandum decision and order:

The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence. The further contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to challenge a prior felony conviction in Virginia involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440. The record does not specify the Virginia statute under which defendant was convicted, and thus we cannot determine whether there is a comparable statute in New York.

People v. Logan, 2 A.D.3d 1392, 768 N.Y.S.2d 863 (App. Div. 4th Dept. 2003).The New York Court of Appeals denied leave to appeal.

Logan subsequently brought a motion to vacate pursuant to C.P.L. § 440.10 in the trial court alleging that trial counsel was ineffective in failing to challenge the use of the Virginia conviction as a predicate felony. The trial court concluded that Logan had explicitly waived any challenge to the Virginia conviction serving as the predicate felony at the sentencing hearing. The trial court found that the sentence was part of the plea agreement negotiated by trial counsel and the assistant district attorney. Importantly, the agreed-upon sentence evidently contemplated that Logan would be sentenced as a second felony offender based on the Virginia conviction, since the sentence that Logan received as a result of the plea deal was only available to a defendant with second felony offender status. The trial court relied upon N.Y. Penal Law § 70.06 and 70.45 and People v. Barton, 200 A.D.2d 888 (N.Y. App. Div. 1994).*fn3 See Resp't Ex. Z-2.*fn4 In People v. Barton, the defendant--like Logan--moved to vacate his negotiated sentence on the ground that his prior out-of-State felony conviction did not qualify as a predicate felony under applicable New York law. The trial court had granted Barton's motion, but the Appellate Division reversed, finding that at the time of sentencing, defendant Barton was advised of his right to controvert the predicate felony statement filed by the prosecution, including his right to challenge the constitutionality of the prior conviction. The Appellate Division held that defendant Barton's failure to controvert the use of that prior conviction, or request a hearing in regard thereto, constituted a waiver of his right to challenge that conviction and its validity. Furthermore, the Appellate Division concluded that "the mistake of defendant's counsel, if it indeed was a mistake, in not challenging the predicate felony statement d[id] not rise to the level of ineffective assistance of counsel," since "[c]counsel negotiated a plea which substantially reduced defendant's exposure to a much more lengthy term of imprisonment[.]" Id. (citations omitted).

Following Logan's unsuccessful C.P.L. § 440.10 motion, he instituted the present habeas petition, raising the same contentions he had broached in the state courts--that the Virginia conviction cannot properly serve as a predicate felony, and that his trial counsel was ineffective in allowing him to plead guilty without challenging the validity of the Virginia conviction. Respondent argues that Logan's claims are without merit. For the reasons that follow, I agree that a writ of habeas corpus should not issue with respect to any of Logan's claims.

III. Discussion

A. General Legal Principles

A federal court may entertain a state prisoner's habeas petition only to the extent that it alleges that the prisoner is being held in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Thus, claims arising out of a state court sentencing decision are not normally cognizable on federal habeas review. Haynes v. Butler, 825 F.2d 921, 923 (5th Cir.1987), cert. denied, 484 U.S. 1014 (1988); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (errors of state law are not grounds for habeas relief) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) (additional citation omitted)); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir.1984) (same), cert. denied, 471 U.S. 1136 (1985). A claim that a sentence is excessive is cognizable on federal habeas review only if that sentence is outside the range prescribed by state statutory law, see Townsend v. Burke, 334 U.S. 736, 741 (1948); White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992) (citation omitted); Dorszynski v. United States, 418 U.S. 424, 431 (1974) (a sentence within statutory limitations is ...


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