The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se habeas petitioner Jack F. Washington ("Washington" or "petitioner") was arrested on September 18, 2003, for his alleged participating earlier that day in an armed robbery, along with another man, at a convenience store in the City of Rochester. Washington availed himself of his statutory right to testify at the grand jury, testifying that he was not present at the robbery. Nevertheless, the grand jury returned an indictment charging Washington with first degree robbery as a principal and as an accomplice, see N.Y. Penal Law §§160.15(4), 20.00, for displaying what appeared to be a handgun in the act of forcibly stealing money from the store manager and a customer.
Just prior to the commencement of trial, the prosecution offered Washington a plea agreement with a sentence promise of of nine years. Washington declined the plea offer.
During opening argument, trial counsel told the jury that Washington conceded he was involved in the robbery but disputed whether the handguns used during the robbery were "loaded and operable" so as to make Washington guilty of robbery in the first degree. Trial counsel explained that if the jury was not satisfied beyond a reasonable doubt that the handguns were loaded and operable, the jury should consider the lesser included charge of robbery in the second degree. The jury returned a verdict convicting petitioner of robbery in the second degree. Washington was sentenced to a determinate sentence of sixteen years.
Washington subsequently filed a motion to set aside the verdict and a motion to vacate the judgment on the basis that trial counsel's strategy of conceding his guilt to the lesser included charge of robbery in the second degree was the equivalent of entering a guilty plea and was made without his consent in violation of the right of the defendant to make decisions about his fundamental rights at trial. On December 17, 2004, the trial court vacated the judgment on the basis Washington explicitly had not consented to the concession of guilt, while acknowledging that a concession of guilt is not the functional equivalent of a guilty plea. On appeal, the Appellate Division, Fourth Department, of New York State Supreme Court, reversed the decision of the Monroe County Court granting a new trial. The Fourth Department held that a defendant's consent is not required when trial counsel concedes guilt on a lesser included offense. The New York Court of Appeals denied leave to appeal.
This timely habeas petition*fn1 followed, in which Washington raises as his sole ground for relief the argument raised in his C.P.L. § 440.10 motion--that trial counsel's concession of guilt to a lesser included offense, without his consent, deprived him of his Sixth Amendment right to the effective assistance of counsel. Washington states that because he "had testified before the Grand Jury in this case and indicated, in sum and substance, that he did not commit the crime charged, nor was he present[,]" "[d]efense counsel still argued that Petitioner committed the crime of Robbery Second Degree, which precluded Petitioner from testifying at the trial as his testimony would be diabolically [sic] opposed to his attorney's opening statement." Addendum to Petition, ¶12(A) (Docket No. 1). In the answer to the petition, respondent argues that the state court properly determined that the claim was without merit as a matter of state and federal law.
For the reasons that follow, Washington's request for a writ of habeas corpus is denied and the petition is dismissed.
A. General Legal Principles
Section 2254(a), specifies that federal habeas review is only available for state prisoners if they are in custody in violation of the constitution or laws or treaties of the United States. It should be noted that federal habeas corpus review is not available for errors of state law. Lewis v Jeffers, 497 U.S. 764, 780, (1990); 28 U.S.C. § 2254(a). In order to obtain federal habeas review, it is necessary for the petition to contain a federal constitutional issue.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it decides that the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1), (2); see also, e.g., Greiner v Wells, 417 F.3d 305 (2d Cir. 2005).
B. Analysis of Petitioner's Ineffective Assistance Claim
Petitioner claims that trial counsel was ineffective because counsel essentially "pleaded petitioner guilty" without Petitioner's consent. Although the trial court granted C.P.L. § 440.10 relief on the basis that trial counsel had been ineffective, it did so only on the basis that trial counsel had not secured petitioner's consent to the concession-of-guilt strategy. The trial court explicitly stated that if petitioner had agreed to the concession of guilt before trial, the court would have denied the motion for a ...