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Hector Garcia v. Anthony Boucaud

May 11, 2011

HECTOR GARCIA, PETITIONER,
v.
ANTHONY BOUCAUD
RESPONDENT



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

Hector Garcia brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 27, 2006, petitioner pled guilty in the Supreme Court of New York County to Conspiracy in the Second Degree in violation of New York Penal Law § 105.15 and was later sentenced to a term of 7 to 21 years imprisonment. Magistrate Judge Gabriel W. Gorenstein issued a Report and Recommendation on May 7, 2010, advising that the petition should be denied. Having reviewed the report, the record, and petitioner's objections, the Court concludes that the petition should be denied and Magistrate Judge Gorenstein's report should be adopted in its entirety.

BACKGROUND

The basic facts of this case are set forth in Magistrate Judge Gorenstein's report, familiarity with which is assumed. The court restates the facts only as they relate to the habeas petition and petitioner's objections to the report.

On February 22, 2005, Garcia was charged with Conspiracy in the Second Degree, Criminal Possession of a Controlled Substance in the First Degree, and Criminal Possession of a Controlled Substance in the Third Degree. These charges stemmed from Garcia's role as middleman for suppliers of cocaine. The same day, Garcia appeared before the court and pled not guilty. At some time after that initial plea, the prosecution offered a plea that included a proposed sentence of seven years to life in prison. On June 20, 2005, Garcia reiterated his not guilty plea and declared his intention to defend against the charges at trial.

On September 12, 2005, Garcia appeared before the court. At the hearing, the court made an extensive statement referring to the fact that Garcia had rejected plea offers; noting the court's opinion of the strength government's case; and commenting that the system might be "better served" by a trial. At the next hearing, on October 11, 2005, the court again noted that Garcia had been "adamant that he will go trial" and stated that the court would not accept any plea other than to the charges in the indictment.

On January 27, 2006, Garcia declared his intention to plead guilty to Conspiracy in the Second Degree in exchange for a sentence of seven to twenty-one years imprisonment. During the plea allocution, Garcia admitted to conspiring to "obtain and ultimately sell" 50 kilograms of cocaine. In response to questions by the court, Garcia stated that he had discussed the case with his attorney; that he was satisfied with the legal advice he had received; that he understood the range of his sentence following a plea as well as the sentence range following a conviction at trial; and that his plea was voluntary. Later the same day, Garcia signed a "Waiver of Right to Appeal" in which he acknowledged that, after consulting with his attorney, he understood that his plea forfeited his right to appeal his conviction except with respect to the legality of his sentence, his competency, and the voluntariness of the waiver.

On February 16, 2006, the court sentenced Garcia to a term of seven to twenty-one years imprisonment.

After an unsuccessful motion under N.Y.C.P.R. § 440.20 to reduce his sentence pursuant to the Drug Law Reform Act, Garcia appealed his conviction to the Appellate Division on two grounds: (1) that his waiver of his right to an appeal in his guilty plea was not knowing, voluntary and intelligent; and (2) that his guilty plea was invalid. Garcia argued that the latter was so because (a) he did not recite the elements of the crime charged; (b) the trial court failed to clarify whether Garcia knew the value of the cocaine he conspired to distribute; (c) the trial court failed to explain the consequences of waiving the right to an appeal; and (d) the trial court had coerced and confused Garcia at his various plea hearings. The Appellate Division affirmed Garcia's conviction on the ground that Garcia's claims were "unpreserved because he did not move to withdraw his plea, and because this case does not come within the narrow exception to the preservation requirement" established by People v. Lopez, 71 N.Y.2d 662 (1988). People v. Garcia, 865 N.Y.S.2d 83 (1st Dep't 2008). The Appellate Division also rejected Garcia's claim "on the merits" because "[t]he record establishe[d] that defendant's plea was knowing, intelligent and voluntary," "nothing in the plea allocution . . . cast significant doubt on his guilt," and prior colloquies were not coercive. Id. The Court of Appeals denied Garcia's request for leave to appeal. People v. Garcia, 904 N.E.2d 846 (N.Y. 2009).

Garcia filed this petition for writ of habeas corpus on April 27, 2009. Garcia raised two grounds for relief: (1) his plea was not knowing, intelligent, and voluntary largely for the reasons Garcia claimed in his direct appeal; and (2) his trial counsel was ineffective because he did not take any action during the plea allocution to ensure that Garcia's plea was a knowing, intelligent, and voluntary one. On May 7, 2010, Magistrate Judge Gorenstein issued a Report and Recommendation ("the Report"), advising that the petition should be denied. See Garcia v. Boucaud,2010 WL 1875636 (S.D.N.Y. May 10, 2010). Garcia submitted objections to the Report on August 18, 2010.

LEGAL STANDARD

A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

Where timely objections are made, the court is required to "make a de novo determination of those portions of a report . . . to which objection is made." Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). But "when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and ...


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