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Luster v. Molihan

July 14, 2009

BERNARD LUSTER, PETITIONER,
v.
WILLIAM MOLIHAN, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Bernard Luster, currently incarcerated in the Mid-State Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in New York State Supreme Court of first-degree rape. Luster alleges that the trial judge failed to apprise him of his rights and that his guilty plea was therefore not knowing, voluntary, and intelligent. For the reasons stated below, Luster's petition is denied.

BACKGROUND

The government alleged that Luster had sexual intercourse with a twelve-year old girl on three occasions beginning in July 2003. He was charged with three counts of first-degree rape, second-degree sexual abuse, three counts of second-degree kidnapping, and endangering the welfare of a child.

On May 13, 2005, Luster appeared with counsel for trial. After reviewing Luster's file, the trial court offered Luster an eight-year prison term if he pleaded guilty to first-degree rape. He noted that if the offer was not accepted, "the plea offer will be off the table and we will go to trial. I will not make this offer to you again. You will in this part have an absolutely fair trial. You have a very competent lawyer who will represent you. We will make sure that each side in this case gets a fair trial." May 13, 2005 Tr. 5. He told Luster that if he was found guilty on any one or more of the rape counts, there would be "no chance" that he would receive a sentence of eight years or less. Id. He invited Luster to ask any questions he had for the court through his lawyer, and conducted an off-the-record conversation with counsel for both sides. He then told Luster that "your attorney had mentioned to me at sidebar what you wanted him to mention to me. I told him that the minimum offer is eight years, it's nonnegotiable and the plea would have to be to the rape one." Id. at 6-7. He then stated "I don't expect you to make such a difficult decision in five or ten minutes," and adjourned the proceedings to allow Luster to consult with counsel and formulate "any questions that you have of me" regarding the plea. Id. at 7.

After the recess, Luster confirmed that he did not want to plead guilty. The court then went on to "address the issue of an Antommarchi waiver."*fn1 Id. at 8. Luster stated that he had discussed the issue with his lawyer and "would like to be a part of the process." Id. The court then described the voir dire process and Luster confirmed that he wanted to be present at any sidebar conferences with potential jurors. The court then adjourned the proceedings to May 17, 2005.

On May 17, the judge noted that defense counsel, after speaking with Luster's family, "had asked me if I would reoffer the plea that I offered you on [May 13]." May 17, 2005 Tr. 3. He asked Luster "whether or not [he was] willing to take that offer," and Luster said "yes." Id. at 4. After being sworn, Luster stated that he was satisfied with the services of counsel, that he had not been threatened or otherwise coerced into accepting a plea, and that no promises, other than the court's promise regarding the eight-year sentence, had been made to him. Tr. 5. The court also stated that it would not accept the plea unless Luster waived his right to appeal. The judge then explained the waiver, and Luster agreed that he was waiving his right to appeal.

Luster then asked if he could be sentenced "today" or "tomorrow if possible?" Id. at 7. The court stated that he wanted to make sure "that we not rush through this plea. I want to make sure that you fully understand what you are doing." Tr. 7. He then asked whether Luster committed the first rape count:

THE COURT: Did you on that day knowingly and intentionally engage in sexual intercourse with that young woman?

THE DEFENDANT: Despite the fact that I am impotent?

THE COURT: I am asking you, sir, if you did?

THE DEFENDANT: Despite the fact that I am impotent --

THE COURT: It is either ...


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