The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Ivan Bonner, a/k/a Ivan Vonner, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bonner is currently in the custody of the New York Department of Correctional Services, incarcerated at the Green Haven Correctional Facility.
I. BACKGROUND/PRIOR PROCEEDINGS
In his petition, Bonner raised four grounds for relief (1) guilty plea was not knowingly, intelligently or voluntarily entered; (2) deprivation of his right to testify before the grand jury; (3) ineffective assistance of trial counsel; and (4) prosecutorial fraud and breach of the plea agreement. Bonner abandoned his second and third grounds in his traverse, and this Court proceeded on the first and fourth grounds. This Court, in a Memorandum Decision, found in favor of Bonner on the first ground, declined to address the fourth, and granted Bonner's petition. Judgment was entered accordingly.*fn1 Respondent appealed to the Court of Appeals for the Second Circuit, which reversed and remanded for consideration of the fourth ground.*fn2 The background and prior proceedings preceding this Court's initial decision are well known to the parties and are set forth in that Memorandum Decision. Accordingly, they will not be repeated here.
II. GROUND PRESENTED/DEFENSES
The sole remaining ground to be addressed by the Court is his fourth ground: prosecutorial fraud and that the plea agreement was breached by the People. Respondent has asserted no affirmative defense.*fn3
Because Bonner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn6
When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn7 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn8 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn9
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn10 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn11
To the extent that Bonner raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn12 A federal court must accept that state courts correctly applied state laws.*fn13 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn14 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn15
Bonner argues that by the clear terms of the plea agreement he was to plead guilty to second degree robbery, that he would not be declared a persistent felony offender or persistent violent felony offender, and the People would not "seek" to call him to testify at the trial of a co-defendant.*fn16 The record clearly reflects that Bonner was sentenced as a second-felony offender, not as either a persistent felony offender or as a persistent violent felony offender.*fn17
The same prosecutor who made the plea agreement with Bonner also executed an affidavit seeking an order directing the New York Department of Correctional Services to deliver Bonner to testify at the trial of the co-defendant. There is no evidence in the record that Bonner testified, and Bonner tacitly admits that he did not testify. Nevertheless, Bonner contends that in executing the affidavit in support of the issuance of the production order, the prosecutor committed fraud on the court, and the issuance of the order constituted a breach of the terms of his plea agreement. Bonner argues that, as a result, he should be allowed to vacate his guilty plea or have the original plea offer specifically enforced.*fn18 Bonner raised this issue in a motion under New York Criminal Procedure Law § 440.10. In denying his motion, the Albany County Court held:*fn19
In the previous motion, defendant asserted that his plea agreement was that he was not required to testify at the trial of his co-defendant, Melvin McEaddy, and the agreement was violated by the prosecutor when he was subpoenaed to testify at the trial. Defendant requested that he be re-sentenced to the original plea offer of l0 years which was offered and rejected earlier in the proceedings.
The transcripts submitted by defendant reveal that defendant was initially offered a plea bargain which called for a sentence of 10 years and his cooperation in testifying at the co-defendant's trial. Defendant rejected that offer as he did not want to testify at the trial of the co-defendant and that offer was therefore withdrawn. He subsequently agreed to accept a different plea offer which did not require his cooperation. He was sentenced to the 14 year term and incarcerated. In October 2005, the prosecutor obtained an order to produce defendant from the correctional facility for purposes of a criminal proceeding against McEaddy on October 31, 2005, the date scheduled for that trial to commence. However, court records indicate that defendant did not testify at the trial.
Relief was denied on the previous motion in that there was no error in the sentence and thus no ability for the court to change the sentence (see, CPL 440.20). It was noted that the appropriate motion to be made in that type of situation was a motion to vacate the conviction based perhaps upon the purported misconduct or misrepresentation of the prosecutor in not adhering to the plea agreement or due to the plea not having been voluntarily entered. The remedy to be afforded in appropriate circumstances in that instance would be to permit the withdrawal [sic] of the plea and afford defendant a trial or give him the benefit of his plea bargain. It was stated that even if such a motion had been made, that relief would not be appropriate under the circumstances of this case. The earlier plea offer with a proposed sentence of 10 years was conditioned on defendant testifying, which is something that he did not do. Defendant did not assert that he was pressured to testify in contravention of the plea agreement. He merely stated that he was subpoenaed. He did not state what occurred upon his presumed arrival at the courthouse. In fact, defendant did not even indicate that he did not testify. Therefore, there was no basis to afford defendant the benefit of an earlier plea and sentence offer which he rejected, and which, in considering subsequent circumstances, he did not fulfill what would have been his obligation pursuant to the original offer.
Defendant has now made a motion to vacate the conviction for the reasons stated above. He included a copy of the order to produce to bring him from the correctional facility to the courthouse for the trial of the co-defendant. He states that he seeks to have the conviction vacated or for specific performance of the original plea agreement.
It is accepted as true that defendant was brought to the courthouse at the time of trial of the co-defendant. He argues that because he was brought to the courthouse it appears that he was cooperating with the prosecution. This is something that he did not want to do and he claims that he was harmed by the actions of the prosecutor. The People's response does not indicate the reason for bringing defendant to the courthouse. However, court records indicate that defendant did not testify at the trial.
In any event, causing defendant to appear at the courthouse, by itself, does not amount to prosecutorial misconduct and did not violate the plea agreement. He did not testify, or agree to do so, as was required by the first plea offer. Such circumstances do not merit a change in the plea agreement so as to give him the benefit of the first plea offer, which was rejected, which required him to testify in court against the co-defendant. Defendant has not stated that he wishes to withdraw his plea and face trial on the indictment and thus such a remedy is not considered.
Defendant's motion is denied. This shall constitute the decision and order of this court.*fn20
Under Supreme Court precedent, to constitute prosecutorial misconduct, the prosecutor's conduct must "so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process."*fn21 Here the plea bargain was made in April 2003, the sentence was imposed in May 2003, and the affidavit seeking issuance of the order compelling Bonner's delivery by the New York Department of Correctional Services was executed in October 2005. It is unclear how an action taken two and one-half years after the plea was entered could possibly affect the voluntariness of the plea sufficient to warrant allowing that plea to be vacated. Indeed, Bonner's argument is that the fraud or misrepresentation was made in connection with the application for the production order, not in inducing the plea. This Court cannot, under the facts of this case, find that the decision of the Albany County Court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn22
Bonner contends that in simply executing the affidavit, the prosecutor breached the terms of the plea agreement, not to "seek" Bonner's testimony at the trial of his co-defendant. In Santobello v. New York,*fn23 the Supreme Court held that accepting a guilty plea:
[M]ust be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.*fn24
The Supreme Court recently applied Santobello in Puckett v. United States:*fn25
When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission of the agreement, allowing him to take back the consideration he has furnished, i.e., to withdraw his plea. But rescission is not the only possible remedy; in Santobello we allowed for a resentencing at which the Government would fully comply with the agreement-in effect, specific performance of the contract. 404 U.S., at 263, 92 S.Ct. 495. In any case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain.*fn26
Thus, assuming there was a breach of the plea agreement, Supreme Court precedent allows one of two possible remedies-rescission, i.e., withdrawal of the plea, or specific enforcement of the plea agreement, depending upon the circumstances. What Supreme Court precedent does not allow is specific enforcement of a proposed plea agreement that was either withdrawn by the Government or rejected by the defendant. The initial plea offer was never consummated, and Bonner never performed one of the conditions upon which that offer was premised-testimony in the trial of the co-defendant. Consequently, as the Albany County Court correctly held, Bonner is not entitled to the benefits of the first plea offer, a 10-year sentence. That leaves two permissible remedies-withdrawal of his guilty plea or specific performance of the plea agreement that was actually consummated.
Under the facts of this case, specific performance of the plea agreement is not possible. To the extent that the prosecutor breached the agreement by seeking the order to produce Bonner at the trial of his co-defendant, that cannot be undone. On the other hand, because Bonner did not testify at his co-defendant's trial, there is nothing left to enforce. Therefore, the sole viable remedy that this Court may grant is withdrawal of the plea.*fn27
The threshold issue is whether there was a breach of the plea agreement. The Albany County Court found no breach occurred. Plea agreements are reviewed de novo applying principles of contract law.*fn28 In determining whether a plea agreement was breached, the Court looks to the reasonable understanding of the parties as to the terms of the agreement.*fn29 The Government is bound by its plea agreement and is responsible for its material breach.*fn30
For the purposes of deciding this issue, the Court assumes that the People "agreed they would not seek to call [Bonner] at the trial of the co-defendant."*fn31 Bonner's arguments center upon the literal common meaning of the word "seek," i.e., "(1) To search for (2) To endeavor to obtain or reach (3) To try: sought to escape."*fn32 This Court agrees that the action of the prosecutor in obtaining the production order violated the literal, common meaning of the verb "seek." That does not, however, end the inquiry. There is a de minimis exception to granting relief for breaches of plea agreements by the Government. There is no "need for a remedy for a breach of a plea agreement where the violation is so minor that it does not cause the defendant to suffer any meaningful detriment."*fn33 "In assessing whether a defendant suffered a meaningful detriment, the critical question is what the defendant reasonably understood to be the terms of the plea agreement, and whether his or her reasonable expectations have been fulfilled."*fn34 In this case, as implicitly found by the Albany County Court, Bonner's reasonable expectation was that he would not have to testify at the trial of the co-defendant and that expectation was fulfilled. The Supreme Court has never held that a nonmaterial, incidental breach of a plea ...