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Saxon v. Lempke

United States District Court, S.D. New York

March 21, 2014

KEVIN SAXON, Petitioner,
JOHN B. LEMPKE, Respondent.


PAUL G. GARDEPHE, District Judge.

Petitioner Kevin Saxon, proceeding pro se, brings this petition for a writ of habeas corpus (the "Petition") pursuant to 28 U.S.C. § 2254. On May 23, 2011, Magistrate Judge Kevin N. Fox issued a Report and Recommendation ("R & R"), recommending that the Petition be denied. (Dkt. No. 18) Both Saxon and Respondent filed objections to the R&R. (Pet. Obj. (Dkt. No. 24); Resp. Obj. (June 14, 2011 Ltr.)) For the reasons set forth below, the Court hereby adopts the R & R in its entirety. Accordingly, Saxon's Petition will be denied.



Saxon challenges a June 11, 2002 judgment imposed by the Supreme Court of the State of New York, New York County, after he pled guilty to an eleven-count indictment charging him with, inter alia, second degree murder.[1] The Indictment stemmed from an investigation of a violent narcotics trafficking organization based in the Lincoln Housing Projects ("LHP") in Manhattan. (R & R (Dkt. No. 18) at 3 (citing Resp. Ex. A ("Indictment"))) The investigation revealed that Saxon was a leader of the gang, that he had participated in numerous drug sales, and that he was involved in acts of violence, including the drug-related murder of LHP resident Richard Gaines. (Id. at 3 (citing Indictment and Resp. Ex. C (Pre-Sentence Memorandum)))

On August 9, 2001, Saxon entered into a written cooperation agreement with the New York County District Attorney's Office ("DAO"). (R & R (Dkt. No. 18) (citing Resp. Ex. B (the "Agreement")) In the Agreement, Saxon promised, inter alia, to: (1) "furnish information and testimony" to the DAO "in connection with the investigation and prosecution of criminal activity involving or related to violent drug gangs;" (2) testify before the "Grand Jury and in any trial or trials or ancillary proceedings;" (3) "refrain from any and all further criminal activity;" and (4) plead guilty to an eleven-count indictment that included murder, weapons, and drug trafficking charges. (Agreement ¶¶ 2-5)

In exchange for Saxon's promised cooperation, the DAO agreed that it would allow Saxon to "withdraw his guilty plea to Murder in the Second Degree... and replead to Manslaughter in the First Degree" once it had determined that Saxon had "provided full and complete cooperation and testimony." (R & R at 4 (citing Agreement ¶ 7)) If Saxon met his obligations under the Agreement, the DAO agreed to "recommend that he be sentenced to eighteen years incarceration on his guilty plea to Manslaughter in the First Degree" and that "his sentence to his guilty pleas on the remaining counts in [the] Indictment... run concurrent to the eighteen year sentence." (Agreement ¶ 7) Saxon was on parole at the time of his plea, and the Agreement memorialized the parties' understanding that Saxon "ha[d] not been violated by the New York State Department of Parole at the time of this agreement and that any parole time owed by [Saxon] will run concurrent to the eighteen years specified in Paragraph Seven until he is sentenced under this agreement." (Id. ¶ 8) The DAO further promised to "take all reasonable precautions to ensure [Saxon's] safety and that of [Saxon's] family." (Id. ¶ 9)

Saxon entered his guilty plea on August 9, 2011 - the same day that he signed the Agreement. (Pet. Ex. A (Plea Transcript ("Tr.") 3) At the plea proceeding, Saxon acknowledged, inter alia, that (1) he was pleading guilty, pursuant to the Agreement, of his own free will; (2) he had discussed the case and the Agreement thoroughly with his attorney; (3) all of his questions had been answered; (4) he understood that, by pleading guilty, he was giving up his right to a jury trial; and (5) he was telling the truth. (R & R (Dkt. No. 18) at 5 (citing Plea Tr. 2-5)) Saxon then allocuted to the elements of all of the charged crimes. (Plea Tr. 5-11) In response to the court's questioning, Saxon also acknowledged that he was waiving his right to appeal, "although it[']s not in the written agreement." (Id. at 15-16) Saxon's counsel confirmed that he had discussed the appellate waiver with Saxon and that Saxon was "waiving his right to appeal knowingly [and] voluntarily." (Id. at 11, 15-16)

The trial judge advised Saxon of the consequences of breaching the Agreement, including the fact that the court would be "free to impose the maximum [sentence]." (Id. at 14) The court also informed Saxon that the prosecutor, and not the judge, would be the ultimate arbiter of his cooperation. (Id. at 12-13)

The court and the parties then discussed whether the eighteen-year sentence promised in the Agreement would run concurrent with "the two years, four months" that Petitioner would owe the Division of Parole for violating his parole. (Id. at 17) Under New York law, Petitioner would be required to serve six-sevenths of his eighteen-year sentence, which amounts to approximately fifteen years and four months. Saxon's counsel, the court, and the Hillel Bodek, the court's sentencing expert, engaged in the following colloquy:

[DEFENSE ATTORNEY]:... I want it to be crystal clear... that this determinate sentence of eighteen years, as well as the two years, four months he owes to the New York State Division of Parole is to run concurrent.... [And] on that eighteen year sentence, he has to do six sevenths, which comes out to be approximately fifteen years and four months. What we envision and what we are requesting, everyone is agreeing to, is that the time he owes parole runs concurrent to the fifteen years four months that he will have to serve on the eighteen year sentence and that it not at any time run consecutive.
THE COURT: Normally of course it does run consecutively. Apparently Mr. Bodek and [the prosecutors] have worked this out.
MR. BODEK: The sentence must run consecutively. It will run consecutively. However, my reading of it as well as the reading of the counsel of the State Department of Correctional Services [is that] given the amount of time he has done, and the eighteen years of that determinate sentence, that he will serve on that case which is 15 years and change, six sevenths of the eighteen, whatever that is and that would satisfy any parole time he might still owe if they violate him. So all of the time won't run concurrent per se. In effect it will have that same result. He should get out at six sevenths of his eighteen years....
THE COURT: This is why I was surprised by your statement. As far as I know, parole time did have to run consecutive.
[DEFENSE ATTORNEY]: As a matter of law I agree with the Court. I want the record to be clear, whether we call it consecutive or concurrent, I think what Mr. Bodek is saying is that the amount of time Mr. Saxon will have to serve, will cover his obligation to the New York State Division of Parole. That is what he is saying.
MR. BODEK: One thing. There have been almost no cases that I could find on this issue. It's a relatively new statute. I do have a call into the Division of Parole. And this issue hasn't come up yet and I am going to hear from their counsel next week I hope.
THE COURT: That is fine. We have plenty of time in which to deal with this issue. That is not the problem at the moment. I think what is clear in the record, what is important is that the intent be that the [e]ffect of the time owed by parole, assuming the cooperation is successful in the People's eyes, in effect have a concurrent effect. And that is as long as that intent is on the record, I feel we would be able to work that out.
[DEFENSE ATTORNEY]: I don't want it to be my request or my desire, but the intention of the [District Attorney]'s office.
THE COURT: I think it is clear that if the cooperation is fully successful, that will be an intention they will be forced to implement because it[']s so stated on the record. However, they will be evaluating the cooperation and if it is not satisfactory or partially satisfactory, then you have to understand Mr. Saxon, they will come back with some immediate recommendation or potentially tell me to impose the maximum consecutive on all sentences. That is clear to you; is it not?
[THE PROSECUTOR]: Paragraph eight of the agreement is specifically focused on that issue. He is on parole for a Bronx County indictment. He had not been violated by the State Department of Parole at this time, of this agreement or as of today. And the agreement states that any parole time owed by Kevin Saxon will run concurrent. I am using concurrent as a general definition, not as a legal definition, concurrent to the eighteen years specified in paragraph seven [of the cooperation agreement] until he is sentenced under the agreement.
THE COURT: It[']s important that we understand I can't do what is illegal. I cannot at the time of sentence say parole is to run concurrent. I can only attempt with Mr. Bodek's help to state it in a way that is lawful but achieves the result that is sought.
[DEFENSE COUNSEL]: Intention of the parties. That is the intention of all the parties, subject to the evaluation of Mr. Saxon's cooperation.

(Id. at 17-21)

Saxon then withdrew his not guilty plea, and pled guilty to the eleven-count Indictment. (Id. at 22-23)

Saxon subsequently breached the Agreement. On May 2, 2002 - during transport to the Westchester County Jail in Valhalla, New York, after testifying before a grand jury in New York County - Saxon escaped. (R & R (Dkt. No. 18) at 7) He was apprehended in Yorktown, Virginia on May 22, 2002. (Id.)

After his capture, Saxon appeared for sentencing on his guilty plea. After Saxon admitted his prior weapons and manslaughter convictions, the court determined that he was a predicate violent felony offender. (Pet. Ex. B (Sentencing Tr. 2-4)) In light of Saxon's criminal record, the serious nature of the charges to which he had pled guilty, and his breach of the cooperation agreement, the State asked the court to impose "the maximum sentence of 119 and a half years to life.... and the maximum fine of $150, 000." (Id. at 13-14) Saxon argued that the DAO had breached the Agreement by failing to adequately protect his family. (Id. at 14-20) The court rejected Saxon's arguments and sentenced him to a prison term of 109 years to life. (Id. at 27)


A. State Court Proceedings

In May 2004, Saxon filed a pro se motion pursuant to N.Y. Crim. Proc. L. ("CPL") §§ 440.10 and 440.20 to vacate the judgment and set aside his sentence. (R & R (Dkt. No. 18) at 9-10 (citing Resp. Ex. D) ("First CPL Motion")) Saxon argued that the judgment should be vacated because the DAO had induced his plea by "fraud, false statements, misrepresentation, threats, duress, or broken promises, " and that the sentence should be set aside because he was denied due process when the sentencing court denied his request for an inquiry into the prosecutor's alleged breach of the Agreement. (Id. (citing First CPL Motion at 1-2, 10-14)) Saxon contended that the DAO had "renege[d]" on its promise to protect his family in exchange for his cooperation, and that he had "detrimentally rel[ied] on [that] promise" in agreeing to plead guilty. (First CPL Motion at 1-3, 8-10) Justice William Wetzel of the Supreme Court of the State of New York, New York County, issued an opinion denying Petitioner's motion on December 1, 2004. (Resp. Ex. F) Saxon then moved for leave to appeal the denial of the motion to the Appellate Division. The Appellate Division granted that application and consolidated that appeal with defendant's direct appeal from the judgment of conviction. People v. Saxon, Slip Op. M5886 (1st Dept. February 5, 2005) (Ellerin, J.)

In his appeal to the Appellate Division, Saxon argued that he was entitled to either specific performance of the Agreement or withdrawal of his guilty plea. (Resp. Ex. H ("Pet. App. Br.") at 17-27) Saxon argued that the DAO had breached the Agreement in the first instance. Saxon further argued that the sentencing court should have conducted a hearing into the reasons for his escape, and that Justice Wetzel erred in denying his fraudulent inducement and due process claims. (Id. at 22-25) The Appellate Division rejected these arguments and affirmed Saxon's conviction on April 18, 2006. Saxon then sought leave to appeal from the New York Court of Appeals. That Court denied his request on June 28, 2006. See People v. Saxon, 7 N.Y.3d 763 (2006).

While Saxon's direct appeal was pending, he filed a second CPL § 440 motion. Although Saxon again argued that his plea had been induced by fraud and misrepresentation (Pet. Ex. C ("Second CPL Motion")), he offered a different theory of misrepresentation. Saxon asserted that he had relied on Bodek's misrepresentation that the promised eighteen-year sentence would run concurrently with any time he might owe if he were violated on his parole. (Id. at 3-4) Then-existing law required that any sentence imposed on a parole violation run consecutively to any sentence imposed on a separate crime. Saxon argued that he also relied on Bodek's false assertions that (1) he could not find any cases addressing the issue; (2) the relevant statute was a new one; and (3) "this issue hasn't come up yet." (Id. at 9, 15-16) Saxon claimed that these misrepresentations likewise induced his guilty plea. (Id. at 6, 8-9, 11)

Saxon also claimed that the prosecutor had committed "fraud or misrepresentation" by allegedly assuring Saxon that he had not yet been found in violation of parole, and that Saxon would not be found in violation merely as a result of his guilty plea. (Id. at 13) As proof of the falsity of this representation, Saxon attached a May 11, 2006 Notice of Delinquency to his CPL motion which states that the date of delinquency was November 11, 1999. (Id.) Saxon argued that the Notice clearly shows that he had been found in violation of parole prior to entering the Agreement in 2001.

Justice Wetzel denied Saxon's second CPL Motion in a January 29, 2007 order. (Pet. Ex. D ("Jan. 29, 2007 Order")) The court found that "every issue contained within the plea agreement was fully discussed" with Saxon and his attorney. (Id. at 4) The court further noted that "Bodek explained that because of the anticipated sentence of 18 years (premised on the defendant's full compliance with the terms of the cooperation agreement) and the fact that the defendant could reduce that sentence to 15 years and some amount of months with good behavior, a parole violation if lodged running consecutively would bring the defendant back to the ultimate sentence of 18 years." (R & R at 15 (citing Jan. 29, 2007 Order at 5-6)) All of this was explained "on the record at the time of the plea before the court, the defendant and counsel." (Jan. 29, 2007 Order at 6) Consequently, the court concluded that Saxon's claim "that there was a misrepresentation... is ridiculous." (Id.) Saxon subsequently applied, pursuant to CPL § 460.5, for leave to appeal from the denial of his motion. (Pet. Ex. E) On May 3, 2007, the Appellate Division denied Saxon's application. (Id.)

In April 2007, Saxon moved for a writ of error coram nobis. (Pet. Ex. F ("Writ of Error Coram Nobis")) Saxon asserted that his appellate counsel had rendered ineffective assistance by failing to argue that his lawyer at sentencing had rendered ineffective assistance in not moving to withdraw Saxon's plea based on the alleged misrepresentations and in not requesting a hearing on the issue. (Writ of Error Coram Nobis at 2-3) The Appellate Division denied Petitioner's motion, People v. Saxon, M-2062, 2007 N.Y.App.Div. LEXIS 8683 (1st Dept. July 19, 2007), and the Court of Appeals ...

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