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Potter v. Green

July 24, 2009


The opinion of the court was delivered by: Seybert, District Judge


Petitioner, Antonio J. Potter ("Petitioner"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, with regard to his plea of guilty to two counts of Robbery in the First Degree. Respondent, Gary Green ("Respondent"), moves to dismiss the Petition. For the reasons below, Petitioner's request for a writ of habeas corpus is DENIED and DISMISSED.


In 2000, an indictment was filed in Suffolk County charging Petitioner, Gary Morrow ("Morrow"), Kwashie Morrison ("Morrison"), and Clinton Murray ("Murray") with 65 counts of robbery, assault, and attempted murder. (Resp'ts Answer 4.) The indictment arose from a one-night crime spree that included robbery of several individuals and shooting at a vehicle occupied by three other individuals. (Id. at 5.) The Suffolk County Police Department was informed of these crimes, and was given descriptions of the vehicle and individuals involved. (Id.) Police later attempted to stop a vehicle they believed may have been involved in the crimes. (Id.) Petitioner, Morrow, Morrison, and Murray were found in the vehicle with money and guns. (Id.)


Morrow, Morrison, and Murray all pled guilty in 2001. (Id. at 2.) Morrow pled guilty to two counts of Robbery in the First Degree and received a determinate term of incarceration of 13 years. (Id.) Morrison pled guilty to 59 counts and Murray pled guilty to three counts. (Id.). They were sentenced to determinate sentences of 22 years and 16 years, respectively.

Attorney James W. Corrigan ("Corrigan") served as Petitioner's counsel. Corrigan made several motions on Petitioner's behalf, including motions for Wade, Dunaway, and Mapp hearings. (See generally Corrigan's Notice of Mot., Petr's Ex. F.) These motions were denied because Corrigan failed to include sworn allegations of fact as required by New York Criminal Procedure Law § 710.60(1). (Trial Ct. Mem. on Corrigan's Mot., Petr's Ex. B, at 2-3.)

On March 21, 2001, Petitioner pled guilty to two counts of Robbery in the First Degree before the County Court of the State of New York, County of Suffolk ("County Court"). (Plea Mins., Resp'ts Ex. F, at 6.) At the plea hearing, Petitioner was told that the court "would follow the People's recommendation . . . that the [D]efendant . . . receive eighteen years determinate sentence on each [count,] but they would run together." (Id. at 2-3.) The court asked Petitioner if he understood that, as a result of his guilty plea, he would be sentenced to two concurrent and determinate 18-year sentences. Petitioner answered affirmatively. (Id. at 6.)

On April 24, 2001, Petitioner was again before the County Court for sentencing. Petitioner was disruptive throughout the hearing. He made several pro se motions, continually interrupted the court, and refused to stop talking when the court asked him to. (See Sent. Mins., Resp'ts Ex. F, at 5-10.) The court refused to entertain Petitioner's motion given that he was represented by counsel. (Id. at 6.) When the court began to read Petitioner his sentence, Petitioner became more disruptive and was ordered removed from the courtroom. (Id. at 10.)

Attorney Matthew Muraskin ("Muraskin") was assigned to serve as Petitioner's appellate counsel. (Resp'ts Ans. at 2.) Muraskin perfected an appeal with the Supreme Court of the State of New York, Appellate Division, Second Department, claiming that Petitioner's guilty plea should be vacated for three reasons:

(1) the trial court failed to entertain Petitioner's pro se motions; (2) Petitioner was denied effective assistance of trial counsel; and (3) Petitioner was denied his right to be present throughout his sentencing. (See generally Petr's App. Div. Br., Resp'ts Ex. A.) The Court refused to vacate Petitioner's guilty plea. See New York v. Potter, 742 N.Y.S.2d 584 (2002). The New York State Court of Appeals denied leave to appeal. See New York v. Potter, 98 N.Y.S.2d 11 (2002).

In April 2003, pursuant to New York Criminal Procedure Law § 440.10, Petitioner filed a pro se motion with the County Court, to vacate his guilty plea. (See Petr's Notice of Mot. to Vacate J., Resp'ts Ex. C.) Petitioner claimed that the trial court failed to advise him prior to pleading guilty that a five-year mandatory period of post-release supervision would automatically attach to his sentence pursuant to New York Penal Law § 70.45(1). This motion was denied. (See Mem. Den. Petr's Mot. to Vacate J., Resp'ts Ex. E.)

In 2003, Petitioner filed a pro se coram nobis application in the Appellate Division, Second Department, of the New York State Supreme Court, claiming ineffective assistance of appellate counsel. (See Petr's Coram Nobis App., Resp'ts Ex. F.) This application was denied. See New York v. Potter, 767 N.Y.S.2d 672 (2003). The New York State Court of Appeals refused to grant leave to appeal. See New York v. Potter, 777 N.Y.S.2d 31 (2004).

On April 1, 2004, Petitioner filed the instant writ of habeas corpus petition claiming that his Constitutional rights were violated.


I. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a district court may grant a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment if the claim or claims presented were "adjudicated on the merits in state court proceedings" and resulted in a decision "contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court's decision is "contrary to" federal law when it "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Desrosiers v. Phillips, No. CV-05-2941, 2006 WL 2092481, at *6 (E.D.N.Y. July 27, 2006) (quoting Williams v. Taylor, 529 U.S. 362, 412-3, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000)). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States" limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. See Sanchez v. Keller, No. 06-CV-3370, 2007 WL 4927791, at *6 (S.D.N.Y. Dec. 4, 2007) Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653-54, 166 L.Ed. 2d 482 (2006); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed. 2d 389 (2000); accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006). "The 'unreasonable application' standard is independent of the 'contrary to' standard . . . [and] means more than simply an 'erroneous' or 'incorrect' application" of federal law. Sanchez, 2007 WL 4927791 at *6 (citing Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005) (citing Williams, 529 U.S. at 411)). A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Id.

II. Petitioner's Claims

Petitioner's request for habeas relief rests on five separate claims: (1) the state court's failure to inform Petitioner of a mandatory post-release supervision period that automatically attached to his sentence rendered his plea involuntary; (2) the state court violated Petitioner's Sixth Amendment right to self-representation when it denied his pro se trial motions; (3) the state court's removal of Petitioner from the courtroom during sentencing violated his Sixth Amendment right to be present; (4) Petitioner was denied effective assistance of trial counsel; and (5) Petitioner was denied effective assistance of appellate counsel. (See Pet. at 12.)

A. Petitioner's Plea was Constitutionally Valid Notwithstanding the State Court's Error when it Failed to Inform Petitioner of the Post-Release Supervision Period

Petitioner first claims that the state court's failure to advise him of a mandatory five years post-release supervision ("PRS") rendered his guilty plea involuntary and was, therefore, constitutionally defective. See N.Y. Penal Law § 70.45(1) (requiring an additional period of post-release supervision to be added to each determinate sentence). For the reasons that follow, Petitioner is not entitled to relief on this basis. Review of the record indeed indicates that, prior to pleading guilty, Petitioner was never informed that Section 70.45 of the New York Penal Law automatically imposes a period of PRS.*fn1

A guilty plea is "a grave and solemn act to be accepted only with care and discernment." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970); United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006) (quoting United States v. Arteca, 411 F.3d 315, 319 (2d Cir. 2005) ("'[a] guilty plea is no mere formality, but a grave and solemn act."). It is more than "a confession which admits that the accused did various acts; it is itself a conviction." Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969); see Adams, 448 F.3d at 497 (holding that a guilty plea is a "grave and solemn act" because it "waives important rights . . . ."). The Supreme Court has long held that Due Process requires a guilty plea to be "voluntary . . . [and a] knowing [and] intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences." Brady, 397 U.S. at 748; Adams, 448 F.3d at 497 (quoting Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed. 143 (2005) (holding that a plea "'is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.'")).

A guilty plea is intelligent when the defendant "was advised by competent counsel[,] . . . was made aware of the nature of the charge against him, and there was nothing to indicate that [the defendant] was incompetent or otherwise not in control of his mental faculties . . . ." Brady, 397 U.S. at 756. A voluntary plea, on the other hand, is entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, [and] must stand unless induced by threats, misrepresentation, or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business.

Id. at 755 (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957) (emphasis added)).

The voluntariness of a plea, however, is but one element this Court must consider when assessing the constitutionality of that plea. See Jones v. United States, 440 F.2d 466, 468 (1971) (holding that a finding of involuntariness does not require an automatic vacatur of the guilty plea); see also Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976) ("automatic vacatur does not follow [a finding of involuntariness] as a matter of constitutional law."). If the Court determines that the petitioner was unaware of direct consequences of his plea---and, therefore, that his plea was involuntary--it must next determine whether Petitioner's lack of knowledge of the plea's consequences "made any difference in his decision to enter [the] plea." Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir. 1980) (quoting Caputo, 541 F.2d at 984). If not, the plea, although involuntary on its face, was constitutionally valid. See Kelleher v. Henderson, 531 F.2d 78, 82 (2d Cir. 1976) (holding that, although he was not informed of the maximum sentence that he faced, the defendant's guilty plea was constitutionally valid because defendant would not have pled differently had he been informed of the maximum sentence); Nunez v. Costello, No. 93-CV-5282, 1994 WL 719686, at *3 (S.D.N.Y. Dec. 28, 1994) (holding that a defendant's misinformation about a guilty plea's consequences did not invalidate the plea because, even if the information had been provided to him, defendant would have chosen to accept the plea offered).

1. The Supreme Courth has Never held that Mandatory PRS is a Direct Consequence of One's Conviction; therefore, the Trial Court's Failure to Inform Petitioner of his Mandatory PRS Cannot be a Violation of Clearly Established Federal Law

The first question before this Court is whether a defendant who is pleading guilty must be apprised of the PRS mandated by New York Penal Code § 70.45 prior to entering the plea. If so, a failure to do so may violate "due process and [may render the plea] . . . void." Boykin, 395 U.S. at 243; see Ferguson v. United States, 513 F.2d 1011, 1013 (2d Cir. 1975) (holding that "where the transcript or other record of the sentencing proceeding fails to ...

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