The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Jonathan Parker ("Parker" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial on charges of murder and attempted murder. The parties have consented to disposition of the this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).
Parker was indicted by an Erie County Grand Jury on charges of Murder in the First Degree (New York Penal Law ("P.L.") § 125.27(1), Murder in the Second Degree (P.L.§ 125.25(1)), Attempted Murder in the First Degree (P.L. §§ 110.00, 125.27(1)), Attempted Murder in the Second Degree (P.L. §§ 110.00, 125.25(1)), Aggravated Assault on a Police Officer (P.L. § 120.11), Assault in the First Degree (P.L. § 120.10(1)), Criminal Possession of a Weapon in the Second Degree (P.L.§ 265.03) and Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(4)). The charges arose from an incident in which Buffalo Police Officer Charles McDougald was fatally shot, and his partner, Buffalo Police Officer Michael Martinez, was shot in the foot, on April 9, 1997, in the City of Buffalo. The Erie County District Attorney filed a notice of intent to seek the death penalty. New York's death penalty statute authorizes a prosecutor to file a notice of intent to seek the death penalty against a defendant charged with murder in the first degree. See N.Y. P ENAL L AW § 125.27; N.Y. C RIM. P ROC. L AW § 250.40. Upon conviction by a jury, a capital defendant faces a separate sentencing proceeding before a jury to determine whether the penalty imposed will be death or life imprisonment without parole. See N.Y. C RIM. P ROC. L AW § 400.27.
Following a jury trial, Parker was convicted of first degree murder, attempted first degree murder, aggravated assault on a police officer and both counts of weapon possession. At the conclusion of the penalty phase of Parker's trial, the jury determined that, based on Parker's first degree murder conviction, he should not receive the death penalty but instead be sentenced to life imprisonment without the possibility of parole.
Parker was sentenced, on November 30, 1998 as follows: a term of life imprisonment without the possibility of parole on the first degree murder conviction, twenty-five years to life on the first degree attempted murder, twelve and one-half to twenty five years on the conviction for aggravated assault, seven and one-half to fifteen years on the second degree weapon possession, and three and one-half to seven years on the third degree weapon conviction. The sentence imposed on the convictions related to Officer Martinez were ordered to be served consecutively to any sentence petitioner was then serving. The sentence on the conviction for murdering Officer McDougald was ordered to be served consecutively to the sentences regarding the Officer Martinez convictions and any other sentence petitioner was serving at the time.
Petitioner's appeal was timely perfected and the Appellate Division, Fourth Department, issued a memorandum decision and order on February 7, 2003, in which the court unanimously affirmed his conviction but modified the structure of his sentences. People v. Parker , 304 A.D.2d 146, 755 N.Y.S.2d 521(App. Div. 4 th Dept. 2003). Leave to appeal to the New York Court of Appeals was denied on July 17, 2003. People v. Parker , 100 N.Y.2d 585 (N.Y. 2003).
This timely habeas petition followed. For the reasons set forth below, the request for a writ of habeas corpus is denied and the petition is dismissed.
A. Denial of Right to Enter a Guilty Plea to First Degree Murder
Parker contends that he was deprived of the right to enter a guilty plea based on the constitutional infirmity of several sections of New York's Criminal Procedure Law (C.P.L. § 220.10(5)(e), C.P.L. § 220.30(3)(b)(vii), and C.P.L. § 220.60(2)). Parker claims that if he had been allowed to plea bargain, he possibly could have obtained a sentence allowing for the possibility of parole.
As originally enacted, the statute afforded a defendant the opportunity to ensure a maximum sentence of life without parole by pleading guilty pursuant to the following provisions: "A defendant may not enter a plea of guilty to the crime of murder in the first degree as defined in section 125.27 of the penal law; provided, however, that a defendant may enter such a plea with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole."
N.Y. C RIM. P ROC. L AW §§ 220.10(5)(e); 220.30(3)(b)(vii). Furthermore, the statute provided, "A defendant who has entered a plea of not guilty to an indictment may, with both the permission of the court and the consent of the people, withdraw such plea at any time before the rendition of a verdict and enter: (a) a plea of guilty to part of the indictment pursuant to subdivision three or four but subject to the limitation in subdivision five of section 220.10." N.Y. C RIM. P ROC. L AW § 220.60(2)(a).
Following petitioner's conviction and sentence to life without parole, the New York Court of Appeals in Matter of Hynes v. Tomei , 92 N.Y.2d 613, 620 (N.Y. 1998), cert. denied , 527 U.S. 1015 (1999), struck as unconstitutional these statutory provisions allowing defendants to plead guilty to first degree murder with the consent of the prosecutor and the approval of the trial court, because "only those defendants who exercise the Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial put themselves at risk of death." Id. (citing United States v. Jackson , 390 U.S. 570 (1968)). The New York Court of Appeals found the challenged statutory provisions allowing capital defendants to plead guilty to first degree murder--with the consent of the prosecutor and approval of the court--constitutionally indistinguishable from a similar provision of the 1934 Federal Kidnaping Act that the United States Supreme Court held unconstitutional in United States v. Jackson , 390 U.S. at 585-86. The Supreme Court stated that by "explicitly provid[ing] two levels of penalty for the same offense, imposing death only on those who assert innocence and proceed to trial," the statute unfairly burdened a defendant's Fifth and Sixth Amendment rights. Similarly, the New York Court of Appeals held in Matter of Hynes v. Tomei that New York's plea bargaining restrictions were unconstitutional because they placed an "impermissible burden" on a defendant's exercise of constitutional rights. Hynes v. Tomei , 92 N.Y.2d at 624. Under the challenged provisions of the New York Criminal Procedure Law, "only those defendants who exercise the Fifth Amendment right against self-incrimination and the Sixth Amendment right to a jury trial put themselves at risk of death," but a defendant who "abandons his right to contest his guilt before a jury is assured that he cannot be executed." Id. The unconstitutionality of the statute inhered in its provision of two different punishments for the same crime, with the greater sentence (i.e., execution) reserved for those defendants who asserted their right to proceed to trial. The New York Court of Appeals found the constitutionally offensive provisions severable from the death penalty statute, however.
Turning to Parker's specific claims, he contends that as a result of the constitutionally defective plea bargaining restrictions in existence at the time of his trial, he was denied an option open to every other criminal defendant in New York, the right to plead guilty to the entire indictment. Parker speculates that he been permitted to plead guilty, it would have been possible for him to have received a sentence less than life without parole. As a result of this allegedly disparate treatment, Parker contends, he was deprived of his right to due process and equal protection of the law. Respondent argues that Parker is entitled neither to vacatur of his conviction nor to a reduction of his sentence.
First, as respondent points out, the New York Court of Appeals has held that capital defendants, such as Parker, who proceeded to trial and were sentenced prior to the December 22, 1998, decision in Matter of Hynes v. Tomei are not entitled to vacatur of their first degree murder convictions. People v. Harris , 98 N.Y.2d 452, 496 (N.Y. 2002). Rather, "[t]he appropriate remedy [for a Jackson / Hynes violation] is to vacate[the defendant's] death sentence and to remit his case to [the trial court] . . . for resentencing in accordance with Penal Law §§ 60.06 and 70.00(5)." Id. Therefore, Parker is not entitled to vacatur of his criminal conviction merely because he proceeded to trial when the unconstitutional sections of the statute were still in effect.
People v. Harris , 98 N.Y.2d at 496. Moreover, there is no need to remand Parker's case for resentencing, because he did not receive a death sentence in the first instance. See id. ; accord , e.g. , Parker v. United States , 400 F.2d 248, 252 (9 th Cir. 1968) (reaffirming that only three classes of defendants convicted under the Federal Kidnaping Act who allege a Jackson violation can only contest their convictions: defendants who pleaded guilty, defendants who waived a jury trial, and defendants who demanded a jury trial and are now under a sentence of death; petitioner did not come within any of these categories since "he was given a jury trial and is not now under a death penalty"), cert. denied , 393 U.S. 1097 (1969). Such is the case with this petitioner. Although he "risked death, [he] . . . suffered no detriment as a result of that risk[,]" and, "[c]onsequently, he cannot now raise the issue as to what might have occurred had the jury recommended death, or what might have happened had he been dissuaded from choosing a jury trial." Parker v. United States , 400 F.2d at 252. Moreover, under New York's Penal Law, a sentence of life without parole may also be imposed upon a defendant who pleads guilty. See Moss v. Artus , No. 06 Civ. 6178(SAS)(HBP), 2008 WL 544582, at *10 (S.D.N.Y. Feb. 26, 2008) (citing Holland v. Donnelly , 216 F. Supp.2d 227 (S.D.N.Y.2002), aff'd , 324 F.3d 99 (2d Cir. 2003)). Thus, even if Parker had been offered the chance to plead guilty, he still could have received the same sentence that he received after going through a capital murder trial--that is, a term of life without the possibility of parole. Furthermore, there is no merit to petitioner's claim that because of the Jackson defect in New York's death penalty statute, as found by Hynes v. Tomei , his sentence of life imprisonment without parole is unconstitutional. See Corbitt v. New Jersey , 439 U.S. 212, 217-18 (1978) ("Here, although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial."); contrast with . United States v. Jackson , 390 U.S. 570, 583 (1970) (""[T]he evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them.") (emphases in original).
The Supreme Court, moreover, has held that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid; specifically, there is no per se rule against encouraging guilty pleas. In Corbitt , the Supreme Court found that the probability or certainty of leniency in return for a non vult plea did not invalidate the defendant's mandatory life sentence, there having been no assurances that a plea would have been accepted and if it had been that a lesser sentence would have been imposed. Id. (comparing Bordenkircher v. Hayes , 434 U.S. 357 (1978)). Even assuming for the sake of argument that Parker had tendered an acceptable plea, and the sentencing court had imposed a term of years less than life, that "would simply have recognized that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account." Corbitt . Given the continuing validity of the Supreme Court cases permitting guilty pleas and plea bargaining, the Constitution does not prohibit the state from extending a "proper degree of leniency in return for guilty pleas," and "New Jersey ha[d] done no more than that." Id.
Finally, the defect in New York's statute did not undermine the validity of Parker's life-without-parole sentence on equal protection grounds. See Corbitt v New Jersey , 439 U.S. 212, 216-21; cf. Jackson , 390 U.S. at 581-83. In Corbitt , as in the present case, the statutes at issue provided for mandatory punishment of life imprisonment for defendant convicted by jury of first-degree murder, but also allowed possibility of a sentence of less than life imprisonment for a defendant who enters a plea of non vult . All New Jersey defendants were given the same choice as to whether to go to trial or plead guilty non vult . Moreover, defendants found guilty by a jury were not penalized for exercising their right to a jury trial any more than defendants who pled guilty were penalized for giving up the chance of acquittal at trial. Similarly, in New York at the time of Parker's trial, a defendant could receive a life-without-parole sentence by pleading guilty to first degree murder, or by proceeding to trial on a non-capital first degree murder charge, or (like petitioner) by having the jury recommend such a sentence in a capital first degree murder case. See N.Y. C RIM. P ROC. L AW § 400.27(1); N.Y. P ENAL L AW §§ 60.06, 70.00(5). Because the law authorized a sentence of life without parole to be imposed in any of these circumstances, and was not reserved only for defendants who assert their right to proceed to trial, it does not impermissibly infringe upon petitioner's equal protection rights under the Fourteenth Amendment. As the Supreme Court observed in Corbitt v. New Jersey , the results of a criminal proceeding "may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a state has invidiously 'classified' . . . ." Corbitt , 439 U.S. at 225-26 (quoting North Carolina v. Pearce , 395 U.S. 711, 722 (1969)).
Robtoy v Kincheloe , a Ninth Circuit case relied upon by Parker, see Petitioner's Memorandum of Law at 30, is distinguishable. As Parker correctly notes, the panel in Robtoy invalidated a sentence of life without parole on the basis of the Supreme Court's holding in Jackson . However, unlike the situation in New York or in the New Jersey scheme in Corbitt , the maximum sentence following a guilty plea was life with parole under the applicable statute in Robtoy . 871 F.2d 1478, 1480-81 (9 th Cir. 1989), cert. denied sub nom. Robtoy v Callahan , 494 U.S. 1031, reh'g denied , 495 U.S. 966 (1990). In other words, a defendant who pled guilty to first degree murder did not face the potential of a life-without-imprisonment sentence; he only faced such a sentence if he proceeded to trial. See id. The Ninth Circuit found that because a life-without-parole sentence could not have been imposed if Robtoy had chosen to plead guilty, the statute unfairly burdened the defendant's Fifth and Sixth Amendment rights by penalizing him for pleading not guilty and exercising his right to a jury trial. 871 F.2d at 1481.
Parker also advances the argument that he was denied his constitutional rights to equal protection, a fair trial, and due process of law because, as a result of New York's defective statute, he was denied an opportunity to plead guilty to the entire indictment without the consent of the prosecution or the approval of the court. If the statute had been constitutionally drafted, he contends, it necessarily would have contained provisions under which he theoretically could have pleaded guilty and received an indeterminate sentence that would have made him eligible for parole at some future time.
What the New York Court of Appeals did in Matter of Hynes v. Tomei in its discussion of severability makes this argument by petitioner a dead-end. The Court of Appeals explained that "while CPL 220.10(5)(e) and 220.30(3)(b)(vii) relate exclusively to pleas in first degree murder cases and 'needlessly' encourage guilty pleas in violation of Jackson , CPL 220.60(2)(a) is not limited to first degree murder cases, nor does it, in the absence of CPL 220.10(5)(e), violate Jackson ." 92 N.Y.2d at 629. Therefore, only CPL 220.10(5)(e) and 220.30(3)(b)(vii) were required to be stricken. However, the Court of Appeals noted, there was "nothing objectionable in the portion of the two unconstitutional provisions that merely allow[ed] a defendant to plead guilty to first degree murder with the permission of the court and consent of the People . . . ." Id. n. 7. Later, the New York Court of Appeals explained in Francois v. Dolan , 95 N.Y.2d 33, 36 (N.Y. 2000), it did not have to strike the death penalty provision wholesale in order to cure the Jackson defect. Rather, it could--and did--remedy the statute by striking only the guilty plea provisions and "interpreting the statute as prohibiting a guilty plea to capital murder while such a death notice was pending." See Matter of Hynes , 92 N.Y.2d at 629 ("Under the resulting statute, a defendant may not plead guilty to first degree murder while a notice of intent to seek the death penalty is pending."); see also People v. Parker , 304 A.D.2d 146, 153, 755 N.Y.S.2d 521, 527 ("In Hynes , the Court's solution to the Jackson violation was to eliminate the option to plead guilty to first degree murder once a notice of intent to seek the death penalty is pending. Thus, under the post- Hynes statutory scheme, it cannot be said that the maximum penalty is reserved for those defendants who exercise the right to trial, inasmuch as defendants against whom a notice of intent to seek the death penalty is pending have no choice but to go to trial. A defendant against whom a notice of intent to seek the death penalty has not been filed or has been filed and then withdrawn may plead guilty to murder in the first degree, and a defendant against whom a notice of intent to seek the death penalty is pending may plead guilty to a lesser crime[.]).
Parker suggests that this prohibition against extending the opportunity to plead guilty to defendants facing capital charges is unconstitutional. However, the Supreme Court has made it clear that a defendant has no constitutionally protected right to enter a guilty plea. See North Carolina v Alford , 400 U.S. 25, 39 n. 11 (1970) ("A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court."); accord Lynch v. Overholser , 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962); Corbitt v. New Jersey , at 226; Cf. People v Hansen , 290 A.D.2d at 56 (noting that there is no fundamental right to a sentencing jury and that defendants convicted of non-capital first degree murder are not members of a suspect class).
Petitioner submits that there must be a "compelling state justification" for the different treatment of capital and non-capital defendants with respect to the entry of a guilty plea. See Petitioner's Memorandum of Law at 32, 33. Respondent counters that a "compelling" justification is not required because the distinction at issue here neither creates a "suspect" classification nor affects a "fundamental right." As respondent correctly notes, "in the absence of a classification affecting fundamental rights or creating suspect classifications which must be invalidated unless justified by some compelling State interest, equal protection requires only that a classification which results in unequal treatment rationally further 'some legitimate articulated state purpose.'" Matter of Doe v Coughlin , 71 N.Y.2d 48, 56 (1987), cert. denied , 488 U.S. 879 (1988) (quoting McGinnis v Royster , 410 U.S. 263, 270 (1973)). If petitioner has not demonstrated that the challenged legislative classification affects a fundamental right or creates a suspect classification, it should follow that he has not shown that the classification should be judged using the highest level of scrutiny. The Court does not believe that Parker, as a defendant accused of and convicted of first degree murder, has demonstrated that he is a member of a suspect class. See Dickerson v. Latessa , 872 F.2d 1116, 1119 (1 st Cir. 1989) (" We conclude that the 'rational basis test' is the appropriate standard of review in this case. Dickerson does not and could not successfully contend that, as a person convicted of first degree murder, he is a member of a suspect class. See Williams v. Lynaugh , 814 F.2d 205, 208 (5th Cir.) (capital defendants not a suspect class for equal protection purposes), cert. denied , 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987)); see also id. ("Support for use of the "rational basis test" appears in the Supreme Court's language in cases dealing with access to the appeals process. See Estelle v. Dorrough , 420 U.S. 534, 538, 95 S.Ct. 1173, 1176, 43 L.Ed.2d 377 (1975) ( "[T]his Court in dealing with equal protection challenges to state regulation of the right of appeal in criminal cases ha[s] applied the traditional rational-basis test."). Accord Smith v. Mitchell , 567 F.3d 246, 262 (6 th Cir. 2009) ("Regarding the equal-protection claim, [petitioner] Smith argues that the one-tier system unconstitutionally treats non-capital defendants more favorably than capital defendants with no rational basis for the disparate treatment. The Ohio Supreme Court correctly applied rational-basis review to Smith's claim, following the standard in Estelle v. Dorrough , 420 U.S. 534, 539, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975).").
Federal courts have employed the rational basis test and denied equal protection challenges brought by capital defendants alleging that they were treated differently than non-capital defendants. E.g. , Dickerson v. Latessa , 872 F.2d at 1119; Smith v. Mitchell , 567 F.3d at 262. To pass muster under the less stringent "rational relationship" test, a legislative classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia , 253 U.S. 412, 415 (1920). In Smith , the capital defendant argued that the one-tier-only system of direct appellate review of capital cases was unconstitutional because it treated non-capital defendants more favorably than capital defendants with no rational basis for the disparate treatment. The Sixth Circuit held that the Ohio Supreme Court properly applied rational-basis review to Smith's claim, following the standard in Estelle v. Dorrough , 420 U.S. at 539. The Sixth Circuit found that the Ohio Supreme Court's articulated rationale*fn1 for treating capital defendants differently than non-capital defendants was not contrary to or an unreasonable application of clearly established federal law. Id.
Under this second-tier level scrutiny called for by the "rational basis" test, "a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." Danridge v. Williams , 397 U.S. 471, 485 (1970). The petitioners in, e.g. , Smith and Dickerson essentially were arguing that because "[d]eath is different," capital defendants should be provided more process than non-capital defendants[,]" Smith , 567 F.3d at 562 (quotation omitted; alteration in original). Undoubtedly, the death penalty is "unique in its severity and irrevocability[.]" See , e.g. , Gregg v. Georgia , 428 U.S. 153, 187 (1976). The New York Legislature, in declining to allow guilty pleas to capital crimes, is in a way affording capital defendants more process rather than less: By not allowing those accused of capital crimes and facing the ultimate penalty to plead guilty, the statute ensures that these defendants will not waive any of the significant constitutional rights guaranteed to criminal defendants--e.g., to have their guilt proven beyond a reasonable doubt by the State in front of an impartial judge and jury-- and will not permit ...