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Appukkutta v. Russell

United States District Court, Second Circuit

July 2, 2013

NARAYANAN APPUKKUTTA, Petitioner,
v.
M. RUSSELL, Parole Officer, Respondent.

ORDER

PAUL G. GARDEPHE, District Judge.

On August 3, 2009, Narayanan Appukkutta filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1) In an order dated July 13, 2010, this Court referred the petition to Magistrate Judge Debra Freeman for a Report and Recommendation ("R&R"). (Dkt. No. 14) On June 25, 2012, Judge Freeman issued a 24-page R&R recommending that this Court dismiss Appukkutta's petition in its entirety. (Dkt. No. 27) On July 2, 2012, Appukkutta filed an objection to the R&R. (Dkt. No. 30) He has also submitted several requests for the Court to appoint pro bono counsel to represent him. (Dkt. Nos. 31-34) For the reasons stated below, this Court hereby adopts the R&R of Magistrate Judge Freeman and denies Appukkutta's petition and requests for pro bono counsel.

BACKGROUND

I. FACTUAL BACKGROUND

On May 31, 2002, a woman - referred to as "R.R." for privacy reasons - went to Appukkutta's apartment, located on the Upper West Side of Manhattan. (R&R at 2 (citing Plea Tr. at 3)) Appukkutta told R.R. that he needed someone to clean the apartment, which was set up like a doctor's office with a waiting area, surgical tools, pill bottles, and other medical equipment. (R&R at 2 (citing Plea Tr. at 3-4)) After R.R. cleaned the apartment, Appukkutta grabbed her breasts from behind. (R&R at 2 (citing Plea Tr. at 4)) While struggling to free herself, R.R. heard Appukkutta unzip his pants and say that "he wanted to put it inside her." (R&R at 2 (citing Plea Tr. at 4)) R.R. managed to break free from Appukkutta's grip and leave the apartment. (R&R at 2 (citing Plea Tr. at 4)) She immediately called the police from a public telephone. (R&R at 2 (citing Plea Tr. at 4)) R.R. also called her mother, who called 911 and reported that a man had tried to rape her daughter. (R&R at 2 (citing Plea Tr. at 4))

The police executed a search warrant at Appukkutta's apartment. Officers found that it was furnished as if it were a doctor's office, with surgical tools and equipment. (R&R at 3 (citing Plea Tr. at 4)) Appukkutta does not have a license to practice medicine. (R&R at 3 (citing Plea Tr. at 4))

On June 2, 2002, Appukkutta was arrested and charged with Attempted Rape in the First Degree in violation of N.Y. Penal Law §§ 110.0 and 130.35[1], Sexual Abuse in the First Degree in violation of N.Y. Penal Law § 130.65[1], and Unauthorized Practice of a Profession in violation of N.Y. Education Law § 6512[1]. (See R&R at 3 (citing Pet. App. Mem. 1))

In October 2002, while Appukkutta was released on bail, a second woman reported that she had gone to Appukkutta's apartment for the purpose of seeking employment with a doctor. (R&R at 3 (citing Plea Tr. at 5)) Appukkutta, who was wearing a lab coat, told the woman that he preformed illegal abortions. (R&R at 3 (citing Plea Tr. at 5)) The woman observed two women in the waiting area, one of whom appeared to be pregnant. (R&R at 3 (citing Plea Tr. at 5)) The woman left the apartment and called the police. (R&R at 3 (citing Plea Tr. at 5)) On October 20, 2002, Appukkutta was arrested again and charged with a second count of Unauthorized Practice of a Profession in violation of N.Y. Education Law § 6512[1]. (See R&R at 3 (citing Resp. Mem. 3))

II. PROCEDURAL BACKGROUND

A. Finding of Fitness to Stand Trial

After his arrest in 2002, Appukkutta was found unfit to stand trial and was admitted to the Kirby Psychiatric Center. He remained there for nearly five years. On October 3, 2007, Petitioner was discharged after he was found fit to stand trial and assist in his own defense. (R&R at 2-4 (citing Pet. App. Mem. 2-3))

B. Guilty Plea and Sentence

On October 4, 2007, Appukkutta appeared with counsel before Justice Gregory Carro of the Supreme Court of the State of New York, New York County. (R&R at 4 (citing Plea Tr.)) Justice Carro first confirmed that Appukkutta had been found fit to stand trial. (R&R at 4 (citing Plea Tr. at 2)) Appukkutta's counsel then indicated that Appukkutta wished to plead guilty to one count of Attempted Rape in the First Degree and one count of Unauthorized Practice of a Profession. (R&R at 4 (citing Plea Tr. at 3))

Justice Carro asked the prosecutor to describe the evidence the People intended to present at trial. (R&R at 4 (citing Plea Tr. at 3)) The prosecutor laid out the facts recited above. (See R&R at 4; Plea Tr. at 3-6) At the conclusion of the prosecutor's description, Appukkutta spoke up, saying, "excuse me, there were no patients." Pettitioner's lawyer instructed him not to make any further comments. (See R&R at 4 (citing Plea Tr, at 6))

Appukkatta's counsel then stated that he had received police reports, 911 tapes, and videotapes from the prosecution, and that he had discussed with his client that the evidence would "serve the strength of the People's case." (R&R at 4-5 (quoting Plea Tr. at 7)) Petitioner's counsel explained that he was commenting on the strength of the evidence "because ".. there is an agreement here that the plea will be entered under the so-called Alford or Serrano plea agreement."[1] (R&R at 5 (quoting Plea Tr. at 7)) Petitioner's counsel also stated that, after "numerous discussions, " Petitioner had steadfastly maintained that "(a) there were no patients, and (b) he never sexually or attempted sexually to assault anyone, " even though these contentions "[were] in clear contradiction of what the evidence shows." (R&R at 5 (quoting Plea Tr. at 7)) Petitioner's counsel noted that, although Petitioner was fit to stand trial, he had spent years at Kirby, and, in counsel's view, "it [was] reasonably inferable that [Petitioner's] denials [were] directly related to [Petitioner's] mental condition." (R&R at 5 (quoting Plea Tr. at 7))

Justice Carro asked Appukkutta a series of questions "to make sure [he] understroo]d the proceedings." (See R&R at 5 (quoting Plea Tr. at 9)) Appukkutta confirmed that he understood that (1) he faced a sentence of fifteen years' imprisonment if convicted at trial; (2) that if he pleaded guilty, there would be no trial; (3) that if he pleaded guilty, the recommended sentence was five years' imprisonment, which was approximately the amount of time he had already served; and (4) he would be subject to a term of three years' supervised release and would be required to register as a sex offender. (R&R at 5; Plea Tr. at 9-11) Justice Carro further confirmed that no one had forced Appukkutta to plead guilty or to enter into the plea agreement, and that no other promises had been made to him. (R&R at 5; Plea Tr. at ...


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