The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1 Petitioner pro se Donna Arroyo ("Arroyo") is currently an inmate in the custody of the New York State Department of Correctional Services ("DOCS") at Bedford Hills Correctional Facility. Arroyo pleaded guilty on April 28, 1999 to murder in the first degree in Schoharie County Court. Am. Pet. (Dkt . No. 6) ¶¶ 1-6. Arroyo was sentenced to, and is presently serving, twenty-five years to life imprisonment. Id. ¶ 3. Arroyo now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) her plea was not voluntary, knowing, and intelligent, and (2) she is actually innocent of the crime. See Am. Pet. For the reasons which follow, it is recommended that the amended petition be denied.
On May 12, 1997, Arroyo's estranged husband was shot and killed. P. at 26.*fn2 On May 22, 1997, Arroyo was arraigned on a felony complaint and, because the charge carried a maximum sentence of death, the Capital Defender Office (CDO)*fn3 was appointed to represent her. First Caldwell Aff. (Dkt. No. 16-3 at 35-40) ¶ 3. The complaint alleged that Arroyo solicited her boyfriend, Cary McKinley, and McKinley's stepbrother, Daniel Edwards, to murder Arroyo's husband in return for a share of the life insurance proceeds from his death and that Edwards had committed the murder. On May 28, 1997, a grand jury returned an indictment charging Arroyo, McKinley, and Edwards with first degree murder and related offenses. Id. ¶ 4. On January 26, 1998, the prosecution formally indicated an intention to seek the death penalty. Dkt. No. 16-2 at 2; First Caldwell Aff. ¶ 4.
On October 21, 1998, Arroyo, appearing with three attorneys appointed to represent her from the CDO, pled guilty to murder in the first degree. P. at 28; Dkt. No. 16-3 at 26; First Caldwell Aff. ¶¶ 5-6; see also Dkt. No. 16-3 at 41-44 (plea agreement). During the plea allocution, Arroyo told the judge that she was entering into the "plea freely and voluntarily" (P. at 8), was neither under the influence of drugs nor alcohol (P. at 9), and was free of any physical, mental or emotional illness which would affect her ability to understand the plea proceedings (P. at 9). Arroyo stated that she understood the charges against her (P. at 9), had discussed her rights and options with her legal counsel and understood her various options (P. at 10, 14-16), was satisfied with her counsel (P. 10), and understood the rights which she was waiving by pleading guilty (P. at 10-17). The court also reiterated Arroyo's option to continue on to a jury trial. P. at 22-23. Arroyo confirmed that, despite prior trepidation, she had no reservations and wished to continue with her plea. P. at 22-23; see also Dkt. No. 16-3 at 34 (transcript from proceeding prior to plea indicating the court's intention not to take a "tenuous" plea from Arroyo). Arroyo indicated that she made an agreement for another to kill her husband in exchange for a portion of her husband's life insurance proceeds. P. at 26-28. Arroyo also corrected the court's misconception about whether property would also account for a portion of the payment for the murder. P. at 27-28. Arroyo pled guilty, and prior to the court officially accepting the plea, the State withdrew its previously filed notice to pursue the death penalty. P. at 28-30; First Caldwell Aff. ¶¶ 7-8; see also Dkt. No. 16-3 at 131 (prosecution's withdrawal of notice of intent to seek the death penalty dated October 21, 1998).*fn4
Prior to and during Arroyo's incarceration she received treatment for various psychiatric illnesses including depressive, eating, personality, and an anxiety disorders. First Caldwell Aff. ¶¶ 15-16, 20-22; VanBellingham Aff. (Dkt. No. 16-3 at 46-48) ¶¶ 5-6.
Dr. VanBellingham, Arroyo's treating psychiatric, has seen Arroyo "from May 1997 to present, with the exception of a six-week period . . . between August and September 1998 . . . . " VanBellingham Aff. ¶ 4. Arroyo's condition has fluctuated throughout her incarceration. VanBellingham Aff. ¶¶ 8-11. In VanBellingham's opinion, Arroyo was unable "to make a reasoned, intelligent and thoughtful decision to plead in connection with her pleas of guilty . . . . " First Caldwell Aff. ¶ 19; see also VanBellingham Aff. ¶¶ 13-16 . On October 21, 1998, Arroyo began a detailed medication regiment to treat her conditions, but she was not taking this medication at the time of her plea. First Caldwell Aff. ¶ 17; VanBellingham Aff. ¶¶ 12,15.
On February 18, 1999, Arroyo, through her counsel Randal Caldwell, moved to withdraw her guilty plea.*fn5 Second Caldwell Aff. (Dkt. No. 20-1 at 44-45) ¶ 2. On March 15, 1999, the county court heard oral arguments on the motion. Dkt. No. 20-1 at 36-37; Dkt. No. 16-3 at 141 (noting oral argument occurred); Scharf Aff. (Dkt. No. 20-1) ¶ 9. "The court took exception to the allegations . . . that [Arroyo] lacked the requisite mental capacity to enter a knowing and voluntary plea of guilty . . . [but also] stated that it was inclined to conduct a hearing." Dkt. No. 20-1 at 36-37; see also Scharf Aff. ¶ 12. The court reserved judgment. Dkt. No. 20-1 at 37; Scharf Aff. ¶ 14; Second Caldwell Aff. ¶ 4.
On April 6, 1999, Arroyo's motion was denied. Dkt. No. 16-3 at 132-141; 16-11 at 49-57; People v. Arroyo, 691 N.Y.S.2d 734 (Schoharie County Ct. 1999). The court found that Arroyo's plea was knowing and voluntary and that no evidentiary hearing was required. Arroyo, 691 N.Y.S.2d at 736. The court found that Arroyo (1) offered no evidence of innocence, fraud, or mistake in the inducement of her plea, (2) her contentions that she pled guilty for fear of receiving a harsher sentence were unavailing to establish duress, (3) her contentions of irrational thinking were refuted by transcripts of her plea proceedings and her factual recitation during her allocution,*fn6 (4) she claimed to be happy, and was competently represented, by three attorneys at her plea, and (4) neither the court nor her attorneys ever found Arroyo mentally unstable throughout the forty separate court appearances she attended and ninety pretrial motions that were filed. Id. at 736-38; Dkt. No. 16-3 at 134-37; 16-11 at 51-54. Moreover, Arroyo "related to the facts of the commission of the crime [and] even corrected the court as to the payment which she agreed to make . . . ." Arroyo, 691 N.Y.S.2d at 737. Additionally, the court found Dr. VanBellingham's affidavit unavailing because she did not see Arroyo around the time of her plea and her descriptions of Arroyo's conditions lack "specificity, clarification, or explanation . . . . " Dkt. No. 16-3 at 138-39; 16-11 at 55-56; Arroyo, 691 N.Y.S.2d at 738. Moreover, the court denied Arroyo's motion to withdraw her plea in light of Hynes v. Tomei for reasons discussed in a similar decision pertaining to an identical motion made by Arroyo's co-defendant. Dkt. No. 16-3 at 140; 16-11 at 57; Arroyo, 691 N.Y.S.2d at 738.
On April 28, 1999, Arroyo was sentenced to an indeterminate term of twenty-five years to life imprisonment. Dkt. No. 16-3 at 26; S.H.*fn7 During the hearing, Arroyo again expressed that she "did [not] want to plead guilty . . . [and] was afraid of the death penalty." S.H. at 12. Arroyo continued to state that she wished to withdraw her plea of guilty. Id. at 12-13. The court again reiterated that it would not allow Arroyo to withdraw her plea and sentenced her as indicated above. Id. at 14-15.
On January 23, 2006, Arroyo, through new counsel, Paul J. Connolly, brought a motion pursuant to N.Y. Crim. Proc. Law § 440 seeking to vacate her conviction. Dkt. No. 16-5. Arroyo claimed that her conviction was invalid because, in contravention of Hynes v. Tomei, her guilty plea was accepted while the notice to seek the death penalty was still valid. First Connolly Aff. (Dkt. Nos. 16-5 at 2-10) ¶¶ 14-15. On March 27, 2006, the county court denied the motion to vacate as it "revisit[ed] an issue which was previously addressed by th[e] Court . . . [and it] could have been raised by [Arroyo] on her direct appeal; it is therefore not subject to collateral review . . . ." Dkt. No. 16-7 at 3. On April 4, 2006, Connolly appealed the decision denying the 440.10 motion. Dkt. No. 20-1 at 2; see also Second Connolly Aff. (Dkt. No. 20-1 at 4-19) (affirmation filed with appeal to Third Department) ¶¶ 25-27. "On June 7, 2006, the Appellate Division denied [Arroyo's] application for leave to appeal." Resp. Mem. of Law at 11.
In "January 2007, [Arroyo's] counsel . . . filed a brief on [Arroyo's] behalf in the Appellate Division . . . in which he claimed that the trial court erred in denying petitioner's motion to withdraw her guilty plea." Resp. Mem. of Law at 12. On July 26, 2007, the Appellate Division affirmed Arroyo's judgment of conviction holding that (1) decisions permitting withdrawal of a guilty plea or evidentiary hearings is within the sound discretion of the trial court and (2) based on the record which did not include a claim of innocence and did include a detailed plea allocution, the county court did not abuse its discretion in denying Arroyo's request for a hearing regarding the voluntariness of her plea. Dkt. No. 16-9; People v. Arroyo, 838 N.Y.S.2d 920 (1st Dep't 2007). On July 31, 2007, Arroyo sought leave to appeal the decision to the New York Court of Appeals. Dkt. No. 16-10. On October 2, 2007, the petition was denied. People v. Arroyo, 9 N.Y.3d 959 (2007).
Arroyo filed this amended petition seeking habeas relief alleging that her guilty plea was not voluntary because (1) she could not voluntarily agree to its terms as a death penalty notice had yet to be withdrawn and (2) she was incapacitated when she entered it due to her mental condition. Am. Pet. ¶ 12, Ground One. Additionally, Arroyo claims that she was actually innocent of the crime to which she pled guilty relying on the fact that (1) one of her co-defendants was acquitted during trial and (2) she has information that a prosecution witness perjured himself at grand jury and used information from a Florida murder to assist in unlawfully bringing an indictment against Arroyo. Id. ¶ 12, Ground Two; Arroyo's Memorandum of Law (Dkt. No. 20) at 7-8. ...