The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Ralph Buck Phillips ("Petitioner" or "Phillips") has filed this pro se 28 U.S.C. § 2254 petition for a writ of habeas corpus. Phillips is incarcerated pursuant to a judgment of conviction entered against him on December 19, 2006, New York State County Court, Chautauqua County, following a guilty plea to one count of Aggravated Murder in the First Degree (New York Penal Law ("P.L.") § 125.26), and one count of Attempted Aggravated Murder in the First Degree (P.L. §§ 110.00/125.26). Phillips is currently serving concurrent prison terms of life without parole for the murder count and forty years to life for the attempted murder count.
II. Factual Background and Procedural History
After escaping from the Erie County Jail in April 2006, Phillips shot
at police officers on three separate occasions, killing one officer
(State Trooper Anthony Longobardo) and wounding
two others (State Troopers Donald Baker and Sean Brown).*fn1
During the August 31, 2006 incident which forms the basis for
the convictions at issue here, Phillips shot and killed Longobardo,
and shot and seriously injured Baker. Phillips was indicted by a
Chautauqua County grand jury on charges of aggravated murder (P.L. §
125.26); first degree murder (P.L. § 125.27(1)(a)); attempted
aggravated first degree murder (P.L. §§ 110.00/125.27(1)(a));
aggravated assault on a police officer (P.L. § 120.11); second degree
burglary (P.L. § 120.25(1)(a)); and third degree grand larceny (P.L. §
B. Petitioner's Arrest and Statement to the Police
On September 9, 2006, Phillips gave a statement to the New York State Police during an interview with Investigator James Newell ("Newell"). See Two-Page Statement, attached as an Exhibit to Dkt. #1-2, numbered as pages 69-70. Phillips indicated he was giving the statement because Newell promised to do everything he could to arrange for the dismissal of certain pending charges against Phillips' daughter, Patrina Wright ("Wright"), and Wright's mother, Kasey Crowe ("Crowe"). Phillips stated that as he was approaching Crowe's home, he came upon two men in camouflage. Phillips stated that the men raised their guns; he "was scared did the same." Next, Phillips, stated, he "immediately started shooting from the hip" and "[t]he two guys also were shooting." Phillips ran back into the woods and reloaded his rifle. He "thought they were bounty hunters and [he] was mad that they were after me." He claimed he "did not know that they were police." Phillips showed Newell on a map where he believed he hid his gun and backpack.
Phillips has taken contradictory positions regarding the statement, both arguing that it was coerced and that it provides him with a defense of justification. In any event, the confession became immaterial once Phillips elected to plead guilty.
On November 29, 2006, the parties appeared in New York State Supreme
Court (Chautauqua County) before Acting Supreme Court Justice Richard
C. Kloch, Sr. ("Justice Kloch"). Justice Kloch noted that Richard W.
Rich, Jr., Esq. ("Attorney Rich"), from the City of Chemung Public
Advocate's Office, had been assigned to represent Petitioner in his
then-pending Chemung and Erie County prosecutions. A.12.*fn2
Phillips stated that he wanted Attorney Rich to represent him
in the Chautauqua County prosecution as well, and Justice Kloch court
granted that request. A.12-13.
After arraigning Phillips on the seven charges, Justice Kloch noted that Phillips had reached an agreement with the prosecution, pursuant to which he would enter a guilty plea to counts one and three of the indictment (aggravated first degree murder and attempted aggravated first degree murder, respectively). Phillips stated that he had reviewed with his attorney a plea agreement that encompassed his Chautauqua County charges, along with the Chemung and Erie County charges, as well as pending federal charges (Armed Career Criminal in Possession of a Weapon and Theft of Firearms from a Licensed Firearms Dealer, 18 U.S.C. §§ 924(3), 922(g)(1), 922(u), & 924(I)) in the Western District of New York. See Memorandum of Understanding, A.42-43. It was agreed that at the time of sentencing, pending Chautauqua County charges of Hindering Prosecution against Crowe, and Endangering the Welfare of a Child and Resisting Arrest against Wright, would be dismissed. A.43.
In response to questioning by Justice Kloch, Phillips stated that he had sufficiently discussed the guilty plea with counsel, and that he did not need any further time to do so. A.16. When asked if he was satisfied with the legal services counsel had provided him, he replied, "I am." A.17. The trial court then led Phillips through a series of questions, beginning with how he became a fugitive from justice in the summer and fall of 2006, when the New York State Police and other agencies in New York and Pennsylvania searched for him. He was aware that law enforcement was conducting surveillance of his family and friends in Chautauqua County, having observed individuals and vehicles surrounding the homes of his family and friends in the Town of Pomfret. Phillips admitted suspecting that they were police officers with unmarked police vehicles. A.18. Concerned that pending criminal or family court charges would affect his family's custody rights, he assured his family that he would take care of the police. A.19. To that end, he burglarized a nearby gun store on August 26 or 27, 2006, and acquired approximately 41 weapons, including a .308-caliber "Cetme" rifle. Id.
Phillips acknowledged that on August 31, 2006, Phillips, was near his family's home at 4710 Bachelor Hill Road in Pomfret. A.19. When asked if he knew that the .308 rifle could cause fatal wounds, he responded, "Indeed I did." A.20. He stated that he was "very" familiar with firearms and knew that the Cetme, a very powerful rifle, would most likely cause a person's death if the bullet "hit in the right place." Id. He affirmed that he intentionally fired that rifle at two individuals, whom he later would learn were Longobardo and Baker, acting in their capacity as state troopers at the time they were shot. A.21.
After his capture, Phillips revealed the location of the rifle to the New York State Police and subsequently learned that a ballistics examination identified the Cetme .308-caliber rifle as the weapon that caused the officers' wounds. A.22. Justice Kloch confirmed that Phillips was aware of, and had taken into consideration, the following inculpatory evidence before making his decision to plead guilty: (1) his statements to Todd Nelson that he, Phillips, was angry with the police; (2) written correspondence from Phillips, in the prosecution's possession, indicating Phillips' desire to obtain a .308 caliber rifle to use in shooting the police, and (3) Phillips' post-arrest statements to police implicating him in the shootings of the troopers. A.22-23.
The trial court again confirmed that Phillips had reviewed the terms of the plea agreement with his attorney, and he responded "yes." A.24. Phillips denied that any promises other than those specified in the agreement had been made to him, and confirmed his understanding of the mandatory no-parole sentence that would receive in connection with the first degree murder conviction. Phillips confirmed that he was pleading guilty freely and voluntarily, and that no one had forced him to enter into the plea.
A.25. He agreed that he was doing it because it was "true" and it was in his best interest. A.24. Answering the trial court's questions, Petitioner indicated his full understanding of the rights he was giving up by pleading guilty, including his right to a jury trial at which he could confront and cross-examine his accusers, call witnesses on his own behalf, and where the prosecution must prove his guilt beyond a reasonable doubt. Phillips also understood that by pleading guilty, he was surrendering his right to attack the validity of any statement or confession he made, as well as any of the evidence the prosecution would present at trial. Phillips stated that he understood that, ordinarily he had an absolute right to appeal his judgment of conviction, but under the plea agreement, he as waiving his right to appeal and challenge any pre-plea, plea, or sentencing errors. Phillips stated that he had discussed the appellate-rights waiver with his attorney, and did not need additional time to discuss the waiver with counsel. A.26-27. Justice Kloch then accepted Phillips' guilty pleas to aggravated first-degree murder, and attempted aggravated first-degree murder. A.27.
Phillips was remanded to custody pending the completion of a pre-sentence investigation. A.27.
D. Petitioner's Motion to Withdraw the Guilty Plea
On December 15, 2006, in Erie County Court, Phillips filed a pro se motion to withdraw his guilty plea on several grounds. First, he claimed that in his post-arrest interview with Investigator Newell, he had stated he did not know the men whom he had shot were police officers. According to Phillips, he believed the men outside his family's home were bounty hunters, whom he did not intend to kill, but only intended to humiliate by leaving them naked, trussed with duct tape, to be discovered by the police. Phillips thus contended that he had a viable defense to the charges of aggravated murder because he did not intend to kill anyone, and he did know have reason to know his victims were police officers. Phillips maintained that when he was originally interrogated by Newell, Newell threatened to ensure that Phillips' daughter (Wright) and her mother (Crowe) would be convicted of "accessory to murder" and "felony assault on a police officer". Petitioner's Supporting Affidavit to Petition ("Pet'r Aff.") at 1-2 (Dkt. #1). The statement itself, however, does not indicate the specific charges against Crowe and Wright.
Phillips stated that a few days later, he met with Attorney Rich, who (1) confirmed Newell's false account of the charges against his family; (2) did not discuss his charges or any defenses that may have been available to him based upon his confession to Newell; (3) advised him that he should tell the court that he only wanted him (Attorney Rich) in all of his cases; and (4) assured him that he could not win at trial and that, if he lost, the "feds" could give him the death penalty or put him in a "supermax" prison. Id.
Phillips maintained that he never saw or signed the written Memorandum of Understanding between him and the Chautauqua County District Attorney's Office. Prior to entering the guilty pleas, stated Phillips, Attorney Rich provided him with a "format" that explained how to respond to the trial court's questions. Id. Phillips states that when he refused to comply with the format, Rich became angry and warned that if Phillips alerted the court, his family would be prosecuted. Id.
Second, Phillips contended that defense counsel--knowing that he did not want to plead guilty because he would have to admit untrue facts--threatened Phillips that if he did not plead guilty, his relatives would be prosecuted on charges of accessory-to-murder, and that he might face the death penalty in a federal prosecution. Third, Phillips maintained that he was not guilty of intentional aggravated murder. Fourth, he contended that the prosecutor had made promises (not identified in Phillips' motion) as part of the plea agreement that did not appear on the record, ...