Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gary Hodges, Pro Se, Correctional Facility v. Robert Ercole

August 27, 2012

GARY HODGES, PRO SE, CORRECTIONAL FACILITY,
PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN
RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUN & ORDER

Pro se petitioner Gary Hodges filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Petition ("Pet."), Doc. Entry No. 1.) Petitioner pled guilty to one count of Murder in the Second Degree (N.Y. Penal Law § 125.25[3]), and two counts of Attempted Robbery in the First Degree (N.Y. Penal Law §§ 110.00, 160.15[1]) and was sentenced to a term of imprisonment of forty years to life. (Sapaskis Affidavit ("Sapaskis Aff."), Doc. Entry No. 3, ¶¶ 7, 26.) Petitioner asserts that: (1) the state court erred when it denied his motion to vacate his guilty plea, as there was insufficient evidence to establish his criminal liability, and (2) his sentence was excessive and should be reduced as the evidence indicates that his role in the crimes charged was minor in comparison to his co-defendants. (Pet. ¶ 13.) Respondent opposes the petition, contending that the claims are barred from federal habeas review as the state court dismissed the claims on independent and adequate state procedural grounds, and that none of the exceptions to the independent-and-adequate doctrine are applicable. (Respondent's Memorandum in Opposition ("Resp. Opp."), Doc. Entry No. 3, pp. 21-38.)

For the reasons set forth below, the Petition is denied in its entirety. The instant action is dismissed with prejudice.

BACKGROUND

On November 9, 2002, petitioner, and two other individuals, Paul Chandler and Jason Wright, discussed plans to commit an armed robbery. (Sapaskis Aff. ¶ 4.) They then drove around Woodside, New York, ultimately targeting a taxicab driver. (Id.) Chandler and Wright exited their car and chased the taxicab driver, who had fled on foot. (Id.) Petitioner remained in the car. (Id.; Pet. ¶ 3.) Chandler fatally shot the driver and informed petitioner of the murder upon returning to their car. (Sapaskis Aff. ¶ 4.)

Three nights later, petitioner, Chandler, Wright, and a fourth individual, Marlon Clements, drove around Jackson Heights, New York, searching for a second driver to rob. (Id. ¶ 5.) Petitioner, Chandler, and Clements approached the victim, who fled on foot. (Id.; Pet. ¶ 3.) They chased the victim and Chandler shot the victim twice. (Sapaskis Aff. ¶ 5.) The victim survived the shooting. (Id.) Petitioner was arrested upon fleeing the crime scene. (Id.)

The indictment charged petitioner with three counts of Murder in the Second Degree (one count each of N.Y. Penal Law § 125.25[1], [2], [3]); one count of Attempted Murder in the Second Degree (N.Y. Penal Law § 125.25[1]); three counts of Assault in the First Degree (one count each of N.Y. Penal Law § 120.10[1], [3], [4]); two counts of Robbery in the First Degree (one count each of N.Y. Penal Law § 160.15[1], [2]), two counts of Attempted Robbery in the First Degree (one count each of N.Y. Penal Law § 160.15[1], [2]); one count of Robbery in the Second Degree (N.Y. Penal Law § 160.10[1]); two counts of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]); one count of Attempted Robbery in the Second Degree (N.Y. Penal Law §§ 110.00, 160.10); and two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4]). (Id. ¶ 6; Queens Co. Indict. No. 4099-02.) The indictment charged co-defendants Chandler and Wright with identical charges. (Sapaskis Aff. ¶ 6.) The indictment charged co-defendant Clements for the counts pertaining to the second robbery, as he was not involved with the first. (Id.)

On June 30, 2004, petitioner pled guilty pursuant to a cooperation agreement to one count of Murder in the Second Degree (N.Y. Penal Law § 125.25[3]), and two counts of Attempted Robbery in the First Degree (N.Y. Penal Law §§ 110.00, 160.15[1]). (Id. ¶ 7.) The terms of the plea agreement permitted petitioner to withdraw his murder guilty plea and to be sentenced solely for the attempted robbery counts, to concurrent, determinate prison terms of fourteen years, in exchange for his full cooperation in prosecuting his co-defendants for both armed robberies. (Id.) During the plea colloquy, the judge asked petitioner a series of questions regarding his waiver of various constitutional protections. (Id.) In particular, petitioner stated he understood that, by the terms of the plea agreement, he waived the right to appeal both the plea and the sentence. (Plea Allocution of Jun. 30, 2004 ("Plea Tr."), Resp. Ex. 6, at 7:19-24; 15:11-16:1.)

Petitioner then described his involvement in both crimes. With respect to the November 9, 2002 armed robbery, which resulted in the death of the victim, petitioner stated that: (1) he, Chandler and Wright were in their car; (2) Chandler and Wright exited the car; and (3) petitioner remained in the car sleeping. (Plea Tr. at 9:10-22.) Petitioner stated that he "had full notice we were going to go rob somebody" and further indicated that Chandler "had the gun." (Id. at 9:17-18.) He also stated that he and his co-defendants discussed their plans for the armed robbery in advance. (Id. at 9:23-10:3.) Petitioner did not hear the fatal gunshot, but he repeatedly stated that he knew Chandler had a gun. (Id. at 10:10-11:7.) With respect to the November 12, 2002 armed robbery, during which the victim was shot twice, but survived, petitioner indicated that he, Chandler, Wright, and Clements targeted the driver. (Id. at 12:5-11.) Petitioner stated that he and his co-defendants intended to rob the victim, but that he did not recall anything being taken from the victim. (Id. at 13:8-14:3.)

Subsequently, co-defendant Clements, who participated solely in the second armed robbery, pled guilty to one count of Robbery in the Second Degree (N.Y. Penal Law § 160.10[1]). (Sapaskis Aff. ¶ 15.) He was sentenced to a determinate term of imprisonment of four years. (Id.) Petitioner's cooperation was not necessary for the disposition of Clements' indictment. (Id.)

In November 2005, petitioner announced that he would not participate in the pending trial of co-defendant Chandler. The state proceeded to trial without petitioner's promised accomplice testimony. (Id. ¶ 17.) The state secured convictions on numerous counts, including two counts of murder and one count of attempted murder. (Id.) The court sentenced Chandler to concurrent, indeterminate prison terms of twenty-five years to life for the two murder convictions, and concurrent, determinate prison terms of lesser length for the convictions of the less serious charges. (Id.)

On February 21, 2006, petitioner met with a new attorney, as his prior attorney had deceased. (Id. ¶ 18.) On February 27, 2006, petitioner moved to vacate his plea, contending that: (1) he was actually innocent of the crimes charged; (2) his attorney pressured him to plead guilty; and (3) alternatively, the factual basis of petitioner's plea allocution was legally insufficient. (Id.; Pet. Mot. to Vacate, Doc. Entry No. 3, Resp. Attachment.) On March 10, 2006, the court denied petitioner's motion in its entirety.

In March 2006, the trial against co-defendant Wright began. (Id. ¶ 21.) Petitioner again refused to testify. (Id.) According to respondent, the state was forced to enter into a plea agreement with co-defendant Wright as the direct result of petitioner's refusal to testify. (Id. ¶ 22.) Subsequently, Wright pled guilty to one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]) and received a sentence of a determinate term of imprisonment of fourteen years. (Id.)

At the sentencing hearing held on May 30, 2006, the prosecutor advocated for a sentence greater than that contemplated by the plea agreement, setting forth the details of the plea and cooperation agreements and contending that petitioner had violated the terms of those agreements by refusing to testify against his co-defendants. (Sentencing Hearing of May 30, 2006 ("S. Tr."), Doc. Entry No. 3, Sapaskis Aff. Attachment; S. Tr. at 4:5-5:22.) Petitioner's attorney argued that petitioner deserved leniency because: (i) petitioner had only a minor role in the two armed robberies, (ii) co-defendant Chandler, the shooter, received a sentence of a term of imprisonment of twenty-five years to life, and (iii) petitioner should not be penalized for his refusal to cooperate, which was based on his fear for his safety. (S. Tr. at 7:3-12:24.) The judge sentenced petitioner to a term of imprisonment of twenty-five years to life for the Murder in the Second Degree (N.Y. Penal Law § 125.25[3]) count, and two terms of imprisonment of fifteen years to life for the two counts of Attempted Robbery in the First Degree (N.Y. Penal Law §§ ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.