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Audra Harris v. Sabina Kaplan

March 13, 2012


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Audra Harris petitions for habeas corpus relief under 28 U.S.C. § 2254. Having completed a five-year term of incarceration, Harris is currently undergoing a five-year period of post-release supervision. For the reasons stated herein, Harris's application for relief is denied.


In the spring of 2007, Harris became romantically involved with Miodrag Dragovic. When Dragovic ended the relationship, Harris, who suffers from alcoholism and has been diagnosed with major depressive disorder, narcissistic personality disorder with borderline personality traits, and borderline personality disorder, began an obsessive campaign to win back his affection. She called, wrote, and followed Dragovic relentlessly, even after a court order was issued forbidding her to do so. In May 2007 Harris entered Dragovic's home, caused his locks to be changed, and stole his passport and laptop. In January 2008, Harris called the police to falsely report a suicide in Dragovic's apartment; firefighters to falsely report a fire in Dragovic's apartment; and the police to falsely report an injury due to the purported fire.

For these and other acts, Harris was arrested and charged with several crimes under the New York Penal Law. On June 20, 2008, appearing before Judge Grosso in the New York Supreme Court, Queens County, Harris agreed to a plea bargain pursuant to which she pled guilty to burglary in the second degree, criminal contempt in the first degree, falsely reporting an incident in the second degree, burglary in the third degree, and identity theft in the third degree. Prior to entering her guilty pleas, Harris was orally advised in court that, in exchange for pleading guilty, she would be permitted to enter an in-patient alcohol treatment program at Samaritan Village. According to the in-court discussion, if Harris successfully graduated from the treatment program, the charge for burglary in the second degree would be dismissed and the government would recommend a sentence of probation. If Harris did not graduate from the treatment program, the government would recommend and the judge would impose a sentence of ten years. During the plea colloquy, Harris signed a written waiver of her appeal rights (the "written waiver"). According to the written waiver, if Harris did not graduate from the treatment program, she would receive a prison sentence of seven years.

Pursuant to the plea agreement, Harris was released from prison for entry in the Samaritan Village treatment program on June 26, 2008. By her own admission, however, Harris never arrived at the treatment program; she absconded while she was being escorted from prison to the program. Harris ultimately turned herself over to authorities and was sentenced by Judge Grosso. At Harris's sentencing proceedings, Judge Grosso accepted Harris's admission that she did not enter the treatment program as provided in her plea agreement, and he sentenced her to a prison term of ten years.

Harris timely appealed her judgments of conviction and sentences to the Appellate Division. In her principal brief written by counsel and her pro se supplemental brief, she argued that her plea was involuntary under Santobello v. New York, 404 U.S. 257 (1971). Harris also argued that her waiver of her right to appeal was involuntary because of the confusion resulting from the differences between the terms of the plea agreement as stated in court and the terms set forth in the written waiver. Finally, Harris argued that her sentences were excessive, that the court abused its discretion in imposing them, that she received ineffective assistance of counsel, and that she did not have the requisite mens rea for the burglary crimes of which she was convicted.

The Appellate Division considered Harris's challenges to her sentences on the merits, and it reduced her term of imprisonment from ten years to five years on the charge of burglary in the second degree and from a maximum of seven years to a maximum of four years on the charge of burglary in the third degree. The Appellate Division dismissed Harris's challenge that her plea was involuntary on procedural grounds, noting that she had failed to move to withdraw her pleas. The court dismissed Harris's remaining challenges on the merits.

Harris timely sought leave to appeal to the New York Court of Appeals. In her application for leave written by counsel as well as in her pro se request for reconsideration of the denial of leave to appeal, Harris raised many of the same claims she raised before the Appellate Division. The Court of Appeals denied Harris's application for leave to appeal on March 8, 2011, and it denied her motion for reconsideration on June 13, 2011. Harris timely filed her habeas petition in this court on September 26, 2011.


A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal habeas court may overturn a state court's ruling on the merits of a claim only if the state decision was "contrary to, or involved an unreasonable application of, a clearly established Federal law, as determined by the Supreme Court of the United States" or "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). A habeas court must also presume that all state court factual determinations are correct, unless and until the petitioner has rebutted this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

B. Analysis

Harris identifies three grounds upon which she believes habeas ...

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