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Paliulis v. Saratoga County Probation Dep't

May 2, 2010

JURGIS PALIULIS, PETITIONER,
v.
SARATOGA COUNTY PROBATION DEPARTMENT, CHERYL GALARNEAU, SARATOGA COUNTY PROBATION OFFICER, AND PAUL VISCUSI, SARATOGA COUNTY PROBATION DEPARTMENT, RESPONDENTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Petitioner Jurgis Paliulis seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from his 2005 conviction in Saratoga County Court for first-degree sexual abuse on the grounds that (1) his guilty plea was involuntary; (2) counsel was ineffective; and (3) his sentence is harsh and excessive. See Dkt. No. 9, Amended Petition for a Writ of Habeas Corpus to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2254 ("Memorandum") at 4-23; Dkt. No. 9, Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by Person in State Custody ("Amended Petition") at 6-10.

II. RELEVANT BACKGROUND

On January 17, 2005, Petitioner was arrested and charged with first-degree criminal sexual act stemming from engaging in oral sexual contact with a nine-year-old boy when Petitioner was sixteen years old. See Dkt. No. 9, Memorandum at 2, 4; Dkt. No. 20, Exhibit "A," Affidavit in Support of Motion to Vacate ("Petitioner's Affidavit"), at ¶6; Exhibit "B," People's Affirmation in Opposition [to Petitioner's motion to vacate his sentence], at ¶¶ 5-7; Dkt. No. 21, Respondents' Memorandum of Law ("Respondents' Memorandum"), at 2. In March 2005, Petitioner's original attorney, Peter L. Coseo, began to negotiate a plea agreement. Under its terms, Petitioner would enter a guilty plea to first-degree sexual abuse in exchange for a ten-year term of probation with the possibility that Petitioner would be granted youthful offender status.*fn1 See Transcript of Hearing on Petitioner's motion to vacate his sentence pursuant to New York Criminal Procedure Law ("CPL") § 440.20, dated January 29, 2007 ("Motion Tr."), at 4-6. Attorney Margaret Vella was retained to represent Petitioner in March 2005, and continued to negotiate the terms of the plea agreement. See Motion Tr. at 80-81.

On August 1, 2005, Petitioner was arraigned on a Superior Court Information charging him with first-degree sexual abuse. See Dkt. No. 20, Exhibit "B," at ¶ 7; Motion Tr. at 85. In August 2005,*fn2 Petitioner met with a Saratoga County probation officer and a pre-plea investigation report was prepared. See Motion Tr. at 26. Although the report was generally favorable to Petitioner, the probation officer recommended that the court deny Petitioner youthful offender status because she did not think that Petitioner comprehended "the harmful effects of his actions." See Dkt. No. 20, Exhibit "A," Attorney Affirmation at ¶ 6; Motion Tr. at 28-29.

On September 26, 2005, the parties met with Saratoga County Court Judge Jerry J. Scarano to review the pre-plea investigation report. See Dkt. No. 20, Exhibit "B," at ¶ 8; Exhibit "C," Decision and Order, Scarano, J. (Dec. 7, 2006), at 1; Motion Tr. at 28-29, 86-87. The judge indicated that, if Petitioner pled guilty to first-degree sexual abuse, it was "highly unlikely that youthful offender status would be granted." See Dkt. No. 20, Exhibit "C." Counsel asked for an adjournment in order for counsel and Petitioner to discuss further the options available to Petitioner. See id; Motion Tr. at 88-90.

On October 17, 2005, Petitioner pled guilty to first-degree sexual abuse in exchange for a ten-year term of probation, a waiver of appeal, and a classification as a Level 1 sex offender for purposes of New York's Sex Offender Registration Act.*fn3 See Transcript of Plea ("Plea Tr.") at 2-3. The court also agreed to grant Petitioner a Certificate of Relief from Civil Disabilities. See id. at 5-6. Since the pre-sentence investigation was already prepared, the court sentenced Petitioner the same day. See id. at 2-3, 9. Petitioner and his attorney asked the court to consider granting Petitioner youthful offender status. See id. at 8-9, 15-16. The court declined to grant youthful offender status and sentenced Petitioner to the agreed-upon sentence. See id. at 17-18.

On November 2, 2006, Petitioner filed a motion to vacate his conviction pursuant to CPL § 440.20 on the ground that the court should have granted him youthful offender status. See Dkt. No. 20, Exhibit "A." In his affidavit in support of the motion, Petitioner admitted his guilt and explained that he was remorseful for his crime. See id., Petitioner's Affidavitat ¶ 7. He also outlined the effect that registering as a sex offender had on his ability to attend college. See id. at ¶¶ 10-18. Petitioner's attorney affirmed that, although Petitioner was not promised youthful offender status, Petitioner believed that, as part of the plea agreement, the prosecutor would not oppose youthful offender status if the court was inclined to grant it. See Dkt. No. 20, Exhibit "A," Attorney Affirmation, at ¶¶ 11, 17. Counsel also stated that Petitioner's probation officer was not "hopeful that [Petitioner] [would] be able to further his education and that all the benefits of rehabilitation [could not] be achieved given [Petitioner's] limited academic opportunities" due to his status as a registered sex offender. See id. at ¶ 7. Counsel also argued that the court should have granted Petitioner youthful offender status and asked the court to vacate Petitioner's sentence, order a new pre-sentence investigation, and re-sentence Petitioner. See id. at ¶ 18. The People opposed the motion. See Dkt. No. 20, Exhibit "B."

On December 7, 2006, the sentencing court denied Petitioner's motion, rejecting his apparent argument that his sentence should be vacated due to a misrepresentation made to Petitioner about whether he would receive youthful offender status. See Dkt. No. 20, Exhibit "C" at 1. The court also noted that Petitioner would "likely become a more productive member of society if he was allowed to achieve a college education" but that, "given the People's opposition to the motion, and the court's finding that there had been no misrepresentations made prior to Petitioner's guilty plea, there was no basis to vacate the sentence under CPL § 440.20." See id. at 2.

Petitioner's counsel moved for reconsideration of the denial of his section 440.20 motion based upon sworn affidavits that Petitioner's parents submitted. See Dkt. No. 20, Exhibits "D," "E." The sentencing court granted Petitioner's motion for reconsideration and held a hearing on the motion on January 29, 2007. See id. at Exhibit "F;" Motion Tr. at 2-118. Petitioner and his parents testified in support of Petitioner's motion. See Motion Tr. at 4-77. Attorney Margaret Vella testified for the People. See id. at 78-117. On January 31, 2007, the sentencing court again denied Petitioner's motion, finding that Petitioner and his parents were "fully informed on the unlikelihood of Youthful Offender status prior to the plea." See Dkt. No. 20, Exhibit "G" at 1. The court concluded that Petitioner's conviction was not obtained under duress or by fraud or misrepresentation and that there had been no violation of Petitioner's state or federal constitutional rights. See id.

Petitioner sought permission to appeal the denial of his section 440.20 motion in the Appellate Division, Third Department, arguing (1) that his plea was invalid because he was denied youthful offender status in violation of the terms of the plea agreement and (2) that counsel failed to discuss Petitioner's options with him fully, failed to discuss possible defenses, and failed to meet with him sufficiently prior to the plea. See Dkt. No. 20, Exhibit "H" at 7-12. The Appellate Division denied leave to appeal on July 31, 2007. See Dkt. No. 20, Exhibit "I."

Petitioner's original application for a writ of habeas corpus, dated November 21, 2008, was received for filing in this Court on November 28, 2008. See Dkt. No. 1. In a Memorandum-Decision and Order dated December 8, 2008, the Court directed Petitioner to file an amended petition in which he stated why the Court should not dismiss his petition as time-barred under the AEDPA's one-year statute of limitations period. See Dkt. No. 2 at 6. The Court also directed Petitioner to name the proper respondent(s) in any amended petition that he filed with this Court. See id. at 5 n.3.*fn4

On March 6, 2009, Petitioner filed an amended petition and an accompanying memorandum of law that was dated February 27, 2009. See Dkt. No. 6. The amended petition only partially complied with the Court's December 8, 2008 Memorandum-Decision and Order. Petitioner stated his reasons in support of his request that the Court equitably toll the statute of limitations, but he did not name the proper respondent(s) as the Court's December 8, 2008 Memorandum-Decision and Order required. See Dkt. No. 6, Memorandum of Law, at ΒΆ 5; Dkt. No. 7 at 4-5. In a Memorandum-Decision and Order dated March 17, 2009, the Court directed Petitioner to submit an amended petition that fully ...


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