UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
July 16, 2009
ROBBIN WHITELAW, PETITIONER,
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, RESPONDENT.
The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Robbin Whitelaw, f/k/a Robbin Egan ("Whitelaw" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging her conviction on August 7, 2002 in Ontario County Court on three counts of Issuing a Bad Check in violation of N.Y. Penal Law §190.05.*fn1 Whitelaw was sentenced by the Honorable Craig J. Doran to a definite term of 90 days imprisonment on each count, to be served concurrently with each other and also with a term of imprisonment on an unrelated conviction.*fn2
II. Factual Background and Procedural History
In September and October, 2001, the petitioner purchased merchandise from Raymour & Flannigan's, Kaufmann's, and Sears with checks drawn on a closed bank account. Based on these facts, Whitelaw was arrested and remained in custody for sixteen days prior to her release. The Ontario Grand Jury subsequently returned an indictment charging Whitelaw with one count of Scheme to Defraud in the First Degree (N.Y. Penal Law § 190.65), one count of Grand Larceny in the Fourth Degree (N.Y. Penal Law § 155.30), and two counts of Petit Larceny (N.Y. Penal Law § 155.25). The petitioner pleaded guilty in accordance with a plea agreement between her attorney and the Ontario County District Attorney's Office. Pursuant to the agreement, the indictment was amended to a reduced charge of three counts of Issuing a Bad Check (a Class B Misdemeanor), in violation of N.Y. Penal Law § 190.05.
As part of the plea agreement, Whitehall would receive a sentence of 90 days incarceration for each charge, to be served concurrently with each other in addition to a jail sentence imposed on her on an unrelated conviction. The petitioner also stipulated that she waived her right to appeal the convictions.
Thereafter, Whitehall filed a Notice of Appeal. The Appellate Division, Fourth Department, affirmed the conviction. People v. Egan, 6 A.D.3d 1206 (4th Dept. 2004). Leave to appeal was denied by the New York Court of Appeals. People v. Egan, 3 N.Y.3d 639 (2004). This habeas petition followed, in which Whitelaw asserted two bases for relief: (1) a denial of the right to a speedy trial under the Sixth Amendment; and (2) a violation of her Fifth Amendment rights due to a defective indictment. Petition ("Pet.") ¶ 12 (A)-(B) (Dkt. #1).
For the reasons that follow, this petition is denied.
A. Speedy Trial
In "Ground one" of the petition, Whitelaw claims that she was denied her right to a speedy trial because she was incarcerated for 16 days after her arrest, and because the prosecution failed to announce its readiness for trial in a timely manner. Pet. ¶ 12(A). The Appellate Division, Fourth Department, held that the waiver of her right to appeal as part of her guilty plea was knowingly, intelligently, and voluntarily entered, and that her speedy trial claim was forfeited by the plea. People v. Egan, 6 A.D.3d 1206 (4th Dept. 2004). This Court agrees.
The Supreme Court has held "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). A plea agreement containing a waiver of appeal rights has the same effect. Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008) (citing United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000)). Such waivers extend to speedy trial claims, in that the right to a speedy trial is "non-jurisdictional" Parisi, 529 F.3d at 138 (citing United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996)). As such, speedy trial claims can be waived by a guilty plea that does not include a court-approved reservation of the issue. United States v. LoFranco, 818 F.2d 276, 277 (2d Cir. 1987)(internal citations omitted).
To raise a constitutional claim despite a guilty plea, the petitioner may only attack the "voluntary and intelligent character of the guilty plea by showing that the advice [she] received from counsel was not within the standards set forth in McMann v. Richardson." Tollett, 411 U.S. at 267 (1973) (citations omitted); see also United States v. Da Cai Chen, 127 F.3d 286, 289-90 (2d Cir. 1997) (waiver of appeal is enforced where it was knowingly and voluntarily made).
Whitelaw does not attack her guilty plea, and the record shows that the trial court conducted an extensive plea colloquy in which the petitioner explicitly waived her right to appeal, her right to a jury trial, and other constitutional guarantees. S. 11-13.*fn3 By pleading guilty to the charges of Issuing a Bad Check, Whitelaw waived her constitutional claim, for "a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him." United States ex rel. Glenn v. McMann, 349 F.2d 1018, 1019 (2d Cir. 1965)(internal citations omitted). As a result, habeas review of this claim is foreclosed.
B. Defective Indictment as Amended
Whitelaw's second and final claim alleges that her guilty plea to the amended indictment violated her constitutional rights under the Fifth Amendment.*fn4 The petitioner's claim is based on the Grand Jury Clause of the United States Constitution. U.S. Const. amend. V. However, the Fifth Amendment right to a grand jury presentation in felony cases is not applicable to the states. Alexander v. Lousiana, 405 U.S. 625, 633 (1972). Once a state creates such a right, however, due process may prevent it from causing the right to be forfeited in an arbitrary or fundamentally unfair manner. Michael v. Dalsheim, No. 90-CV-2959, 1991 WL 99368, *10 (E.D.N.Y. May 21, 1991). The facts adduced by petitioner do not establish arbitrary or fundamentally unfair conduct. Accordingly, "any alleged impropriety in the amendment of the indictment is predicated on state law, and is therefore beyond this Court's review." Rodriguez v. Senkowski, No. 92-CV-5484, 1995 WL 347024, *2 (E.D.N.Y. May 31, 1995).
For the reasons stated, Whitelaw's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Whitelaw has failed to make a "substantial showing of a denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. See, e.g. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000). The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438 (1962).
Rochester, New York