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SHAWN M. DELAYO v. ROBERT M. CARNEY

December 1, 2010

SHAWN M. DELAYO, PETITIONER,
v.
ROBERT M. CARNEY, RESPONDENT.



(GTS)

DECISION and ORDER

In his Petition for a writ of habeas corpus filed on September 28, 2009 (Dkt. No. 1 [hereinafter "Petition"]), Shawn M. Delayo ("Petitioner") challenges his conviction of September 16, 2005, in Schenectady County Court on two counts of third degree criminal sale of a controlled substance. (Dkt. No. 17, Attach. 15 [Transcript of Change of Plea of Shawn M. Delayo, dated 9/16/05] [hereinafter "Plea Tr."].) Petitioner was thereafter sentenced to an aggregate, indeterminate term of seventeen to twenty-five years imprisonment. (Dkt. No. 17, Attach. 15 [Transcript of Sentencing of Shawn M. Delayo, dated 11/17/06] [hereinafter "Sentencing Tr."].) Petitioner's conviction and sentence were unanimously affirmed. See People v. Delayo, 52 A.D.3d 1114 (N.Y. App. Div., 3d Dept. 2008). On September 26, 2008, the New York Court of Appeals denied Petitioner leave to appeal. People v. Delayo, 11 N.Y.3d 787 (N.Y. 2008).

In his Petition, Petitioner raises the following grounds for relief: (1) he was entitled to an evidentiary hearing on whether he had breached the terms of a Cooperation Agreement into which he had entered with the prosecution on September 15, 2005 (Petition, Ground One);*fn1 (2) the prosecutor was required to establish that Petitioner had violated the terms of the Cooperation Agreement "by a fair preponderance" of evidence, a burden that he failed to meet (Petition, Grounds Two, Three); and (3) Petitioner is entitled to specific performance of the Cooperation Agreement (Petition, Ground Four). For the reasons that follow, the Petition is denied and dismissed.

I. RELEVANT BACKGROUND

A. State Court Proceedings

The records supplied to this Court establish that on March 21, 2005, a Schenectady County grand jury returned a nine count indictment against Petitioner. In that accusatory instrument, he was charged with four counts of criminal sale of a controlled substance in the third degree, in violation of New York Penal Law ("Penal Law") § 220.39, and five counts of criminal possession of a controlled substance in the third degree, contrary to Penal Law § 220.16. (Dkt. No. 17, Attach. 3 [Indictment No. 105-28] [hereinafter "Indictment"].)

As the criminal matter involving those drug charges progressed, on September 12, 2005, Petitioner provided an affidavit to the Rotterdam Police Department in which he provided law enforcement agents with details surrounding the death of a female in December, 2003, as well as events that occurred subsequent to that homicide. (Dkt. No. 17, Attach. 2 [Affidavit of Shawn

M. Delayo dated 9/12/05] [hereinafter "Delayo Affidavit"].) In that document, Petitioner stated that one morning in December, 2003, he was in his bedroom, smoking crack and watching television, when he heard "a loud pop." (Id. at 4.) When he opened his bedroom door, he saw his friend, Dwayne Wilson, holding a gun and standing over a woman, who was subsequently identified as Crystal Glasper, lying on the floor with a bullet hole in her forehead. (Id. at 4-5.) Petitioner stated that he and Wilson remained in the apartment with Glasper, who eventually died from the gunshot wound, until they detected an odor. (Id. at 6-7.) Wilson claimed that the victim's body was then washed, wrapped in a blanket, and bundled in construction bags secured by duct tape. (Id. at 8-9.) At some point between the end of December, 2003 and the beginning of January, 2004, the two men decided to move the victim's body to the home of Wilson's girlfriend on Cedarlawn Avenue in Rotterdam. (Id. at 9-10.) Petitioner and Wilson drove the body to that residence, hid it under the home's porch, and obscured it from view with wood and garbage. (Id. at 10.) Petitioner informed law enforcement authorities that he helped Wilson conceal the murder and dispose of the body, and kept silent about the crime, because he was afraid of Wilson and also believed that he might harm Petitioner's mother. (Id.)

Three days after Petitioner signed the above affidavit, he, his counsel and an Assistant District Attorney with Schenectady County executed the Cooperation Agreement. According to the terms of that agreement, Petitioner would plead guilty to two counts of the third degree criminal sale of a controlled substance in full satisfaction of all charges brought against him in the Indictment. (Cooperation Agreement at 1.) He was also required to assist the authorities in their investigation into the murder of Glasper by providing "truthful statements" to the police and the District Attorney's office concerning that homicide, in addition to "truthful testimony" at any hearings, Grand Jury proceedings or trials relating to that murder. (Id. at 1-2.) Petitioner acknowledged that the truthfulness of the information he provided to law enforcement agents was "a condition of this plea and sentence offer," and further promised in his Cooperation Agreement that he would not make false statements to anyone regarding Glasper's murder, engage in conduct "calculated to undermine his credibility as a witness," or commit any new crimes. (Id. at 2.)*fn2 If Petitioner complied with all of his obligations under that agreement, he would be permitted to withdraw his guilty plea to two counts of third degree criminal sale of a controlled substance, and instead plead guilty to a single count of attempted third degree criminal sale of a controlled substance, and receive an indeterminate sentence of two to six years imprisonment. (Cooperation Agreement at 2.) That agreement further provided, however, that if Petitioner failed to abide by the terms of such agreement, he would still nevertheless be bound by his original guilty plea and thereafter be sentenced by the County Court to an indeterminate term of eight and one-third to twenty-five years imprisonment for his conviction on Count One of the Indictment, and a consecutive, determinate term of nine years imprisonment on his conviction on Count Three of the Indictment, resulting in an aggregate, indeterminate sentence of seventeen to twenty-five years imprisonment. (Id. at 2-3.)

On September 16, 2005, Petitioner appeared before Schenectady County Court Judge Karen A. Drago and pleaded guilty to two counts of third degree criminal sale of a controlled substance. At that proceeding, Petitioner informed the County Court that he had discussed the agreement with his counsel, and that Petitioner understood and accepted the terms and consequences of the agreement. (Plea Tr. at 4.) After being advised of the various rights he would forfeit by pleading guilty to the charges, the trial court questioned Petitioner about his proposed guilty plea and ultimately accepted his guilty plea to the third degree criminal sale of a controlled substance charges. (Id. at 4-14.)

As the investigation into the homicide continued, law enforcement agents found a number of discrepancies between Petitioner's version of what transpired around the time Glasper was killed and other evidence discovered during the investigation, which evidence included affidavits provided by a married couple who lived in a first floor apartment in the same building where Petitioner and Wilson lived at the time of the murder.*fn3 (Dkt. No. 17, Attach. 1 at ¶¶ 27-44 [Affidavit of Philip W. Mueller dated 11/17/06] [hereinafter "Muller Aff."]; see also Dkt. No. 17, Attach. 6-7 [Husband Affidavit and Wife Affidavit] [hereinafter collectively, "Husband and Wife Affidavits"].) In an attempt to resolve the differences that existed between the description of what transpired around the time of the homicide as contained in the Husband and Wife Affidavits vis-A-vis the information provided to the authorities by Petitioner, an Assistant District Attorney and a police investigator re-interviewed the Wife, and Petitioner was re-interviewed twice. (Muller Aff. at ¶¶ 45-47.) Those differences could not be resolved, however, and Petitioner ultimately claimed that the substantial discrepancies which existed between those two different accounts of what transpired was attributable to the fact that the Husband and Wife had provided false information to law enforcement agents. (Id. at ¶¶ 50-52.)

After considering the fact that neither the Husband nor Wife had any criminal charges pending against them, whereas the Petitioner, by his own admission, routinely committed serious crimes, and had only cooperated with the authorities in exchange for leniency with respect to the narcotics charges that were pending against him, the District Attorney's Office ultimately concluded that Petitioner had lied in the statements he provided to the police and had therefore breached the terms of the Cooperation Agreement. (Id. at ¶¶ 56-58.) The prosecutor informed Petitioner and his counsel of this fact, as well as the District Attorney's belief that Petitioner's credibility had been undermined, and his value as a witness had been compromised, by Petitioner's misrepresentations. (Id. at ¶ 58.)

Prior to Petitioner's sentencing, the prosecution filed an affirmation with the Trial Court in which the District Attorney discussed in detail the discrepancies which existed between Petitioner's statement to law enforcement agents and the statements provided to the authorities by the Husband and Wife. (Muller Aff.) On November 17, 2006, Petitioner appeared before Judge Drago for sentencing. At that proceeding, the prosecutor reiterated the basis for his determination that Petitioner had breached his obligations under the Cooperation Agreement. (Sentencing Tr. at 18-25.)*fn4 Petitioner did not dispute the District Attorney's conclusion that Petitioner had breached his obligations under the Cooperation Agreement, nor did Petitioner offer any evidence to the contrary, request a hearing on the matter, or move to withdraw his guilty plea. Instead, Petitioner's counsel declared that he had "nothing to add at this time" just prior to Petitioner's sentencing (Id. at 27.) Judge Drago then determined that Petitioner had breached the terms of the Cooperation Agreement in the manner described by the prosecution. (Id. at 30.) The County Court then sentenced him to an aggregate, indeterminate term of fourteen to twenty-four years imprisonment--a term that was less than the maximum sentence that could have been imposed on Petitioner under the terms of the Cooperation Agreement. (Id. at 44-45;Cooperation Agreement at 2-3.) After imposing sentence, the County Court afforded the Petitioner an opportunity to make a statement, but he declined to do so. (Sentencing Tr. at 46-47.)

As noted above, Petitioner's appeal of his convictions and sentences was unanimously denied by the Appellate Division.

B. Proceedings in this Court

Petitioner commenced the present action by filing a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this District on September 28, 2009. (Petition.)

On June 22, 2010, the Office of the Attorney General of the State of New York, acting on Respondent's behalf, filed an answer in opposition to Petitioner's Petition, together with various state court records relating to his conviction. (Dkt. Nos. 16, 17.) In opposing the Petition, Respondent argues that all but one of Petitioner's claims are unexhausted, and that the only claim which Petitioner exhausted in the state courts must be denied because such claim was denied on procedural grounds. (Dkt. No. 17, Attach. 1 [Respondent's Memorandum of Law in Opposition to Petition] [hereinafter "Resp. Mem."].) On August 23, 2010, Petitioner filed a Traverse in further support of his habeas application. (Dkt. No. 20 [hereinafter "Traverse"].)

This matter is currently before this Court for disposition.

II. DISCUSSION

A. Procedural Default

1. Claim Barred By Independent and Adequate State Ground Doctrine

In his initial ground for relief, Petitioner argues that his sentence must be vacated because the County Court failed to conduct an evidentiary hearing on the issue of whether Petitioner breached the terms of the Cooperation Agreement. (Petition, Ground One.) Respondent claims that Petitioner is barred from obtaining federal habeas relief as to this claim under the independent and adequate state ground doctrine. (Resp. Mem. at 23-29.)

It is "well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.' " Cone v. Bell, 129 S.Ct. 1769, 1780 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 [1991]) (other citation omitted). Thus, this Court must determine whether the Appellate Division denied Petitioner's claim regarding the County Court's failure to hold a hearing on the issue of whether he violated the terms of the Cooperation Agreement on an independent and adequate state procedural ground.

In addressing Petitioner's claim that the County Court wrongfully failed to hold such a hearing, the Appellate Division determined that, because Petitioner "neither requested such a hearing nor moved to withdraw his plea, this issue is unpreserved for our review." Delayo, 52 A.D.3d at 1115. A finding by an appellate court that an issue is unpreserved for review is an independent and adequate state procedural denial of such a claim that is both firmly established and regularly followed by the New York courts. Parker v. Conway, 07-CV-0373, 2010 WL 1854079, at *5 (N.D.N.Y. May 7, 2010) (Singleton, J., sitting by 05-CV-0084, 2009 ...


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