United States District Court, N.D. New York
JAMES K. SINGLETON, Senior District Judge.
Reuben Lewis, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Lewis is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at the Great Meadow Correctional Facility. Respondent has answered, and Lewis has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On August 21, 2007, while confined at the Clinton Correctional Facility, Lewis was charged with attempted aggravated assault on a peace officer and assault on a peace officer after he threw a container filled with hot water at Steven Taylor, a corrections officer, and caused him to fall down seventeen stairs.
On February 28, 2008, Lewis appeared with his attorney before the county court. The prosecutor stated that the People were extending an offer to Lewis that would require him to plead guilty to second-degree assault in full satisfaction of the indictment. Lewis would be sentenced as a second violent felony offender to a determinate sentence of five years' imprisonment plus five years of post-release supervision, fines, and fees. The prosecutor stressed that the offer was to the lower of the two charged offenses and was the minimum sentence for a conviction of second-degree assault. Defense confirmed his understanding of the plea offer and stated that he had relayed it to Lewis on numerous occasions. Defense counsel stated that Lewis was undecided about whether to accept the offer.
Lewis then informed the court that he and his attorney were "in disagreement" because "[t]here was a matter of motions to be filed." The court interrupted Lewis, stating, "Before you go there, this isn't a discussion as to what has been done or might be done or could be done. This is a question of whether the offer that's been made is acceptable to you. That's a yes or no." Lewis explained to the court that, before he could make a decision about the offer, he needed to see the medical records of Taylor's injuries. Lewis further stated that he had asked his attorney to file an omnibus motion to obtain the information and that counsel "doesn't seem to be willing to obtain the information that would help [Lewis] make the best decision." Defense counsel explained that he had filed a discovery demand and a bill of particulars. The court acknowledged the filings and indicated that the prosecution had filed a response to the discovery motion. Lewis reiterated that he had not received any discovery material. In response, the court stated, "I'm not asking you to plead to something you didn't do. The question is, did you do it." The court informed Lewis that "it's never going to get better than five years determinative with a five-year post release... unless [he was] acquitted" after trial.
The court further informed Lewis that it had reviewed the grand jury minutes and determined that the prosecution had established a prima facie case for the charges in the indictment. The court stated that there would be no need for a suppression hearing because the prosecutor had indicated that he would not introduce at trial Lewis's statements to the police but that Lewis would be entitled to a Sandoval  and Ventimiglia  hearing, which would be conducted before trial. When the court asked Lewis what else he wanted done, Lewis replied that he "would like to see some type of medical report that the person was injured and how this person was injured."
At the court's request, the prosecutor stated that he had a copy of Taylor's medical records which he would be willing to provide to defense counsel. The prosecutor further stated, "I do want to point out if this goes to trial and the People win, I'm going to be looking for 15 years prison on the top count as well as seven years prison on the Assault, Second, to run consecutive with each other." The court told defense counsel that he could have a short amount of time to review the medical records with Lewis and announced a brief recess for that purpose.
After the recess, both Lewis and his counsel acknowledged that Lewis had an opportunity to review the medical records. Defense counsel then stated that Lewis wished to avail himself of the plea offer, and Lewis was sworn under oath. While under oath, Lewis told the court that he was not under the care of a physician or psychiatrist, was not taking medications of any kind, and knew of no reason why he could not enter a guilty plea. Lewis confirmed his understanding that, by entering a plea, he was giving up his right to remain silent and admitting that he committed the crime. He further informed the court that no one had promised him anything or threatened him to get him to enter a plea. Lewis acknowledged that he understood that he was giving up his rights to a jury trial, to have the prosecution prove each and every element of the crimes charged, and to cross-examine or present witnesses. He acknowledged his understanding that his guilty plea was "the same as if [he] had been convicted after trial." Lewis also said that he understood that he was waiving his right to make motions directed at evidence that the prosecutor intended to use against him at trial. The court explained to Lewis that, as part of his plea, Lewis would waive his right to appeal as well as his right to bring motions pursuant to New York Criminal Procedure Law ("CPL") § 440. Lewis stated that he understood.
Lewis then acknowledged that he was willing to enter a plea to second-degree assault in satisfaction of the indictment. Lewis admitted that he had assaulted an individual on or about February 9, 2007, and he entered the guilty plea. The court then "accept[ed] the plea as having been knowingly, intelligently and voluntarily made."
On June 17, 2008, Lewis again appeared in court with his attorney for sentencing. Defense counsel told the court that, when the parties agreed that Lewis would be sentenced to a five-year prison term on a guilty plea to second-degree assault, it was with the understanding that Lewis would be sentenced as a second violent felony offender. However, after Lewis entered his plea, the prosecution served the defense with a statement of a predicate felony conviction. Counsel argued that if Lewis was sentenced as a non-violent second felony offender, the minimum prison sentence available to him was three years. The court noted that the statement of a predicate felony conviction indicated that Lewis had been convicted of attempted first-degree rape and two counts of first-degree sexual assault. The court and the prosecutor agreed that those crimes were violent felonies. Defense counsel additionally noted that the prior convictions were being appealed but acknowledged that the appeal had no bearing on the sentence in the instant case. Defense counsel then informed the court that Lewis wished to go along with the negotiated sentence.
Lewis then addressed the court, complaining that no motions had been filed in his case and that, although he had reviewed the medical report, he had not seen evidence concerning the manner in which Taylor was injured. After the court asked Lewis if he wished to withdraw his plea, Lewis replied, "no, that's not what I want to do, Your Honor. I don't want to withdraw the plea." The court told Lewis:
I think the facts were laid out sufficiently and I think you evaluated what your risks were in proceeding to trial and so that you made a judgment call. And whether you feel you did it or you didn't do it, you felt that your risk in getting convicted was too great and that you would have ended up with a worse sentence had you gone to trial, I assume that's what you're saying to me when you entered the plea in the first instance.
Lewis responded, "Essentially, yes." The court then sentenced Lewis "as a second felony offender, second violent felony offender" to a determinate prison term of five years plus five years of post-release supervision.
By papers dated November 24, 2009, Lewis moved pro se pursuant to CPL § 440.10 to vacate the judgment on the ground that his guilty plea was involuntarily entered because he received ineffective assistance of counsel. He claimed that his counsel was ineffective because he: 1) misled Lewis to believe that he had filed pre-trial motions when he had not; 2) advised Lewis to waive his right to challenge the prosecution's evidence through motion practice; 3) advised Lewis to accept the plea offer even though there was insufficient evidence to establish the serious physical injury element of the assault on a peace officer charge; and 4) coerced Lewis to plead guilty to avoid facing additional prison time if he was convicted after trial.
On January 7, 2010, the county court denied Lewis's motion on the ground that, under CPL § 440.10(2)(b), a CPL § 440.10 motion must be denied when the underlying judgment is appealable or pending on appeal. The court additionally found that "no facts have been put forth that the issues raised by the motion were not raised in the appeal that is pending." Lewis sought leave to appeal the denial of his motion to the Appellate Division and to consolidate the matter with his direct appeal. The Appellate Division denied Lewis's leave application on February 26, 2010.
Through counsel, Lewis appealed his conviction, arguing that: 1) his trial counsel was ineffective because he failed to file an omnibus motion in spite of Lewis's request, failed to ensure that Lewis could review grand jury minutes and other discovery material, and failed to obtain Taylor's medical records showing his alleged injuries; and 2) Lewis's waiver of his right to appeal did not encompass his ineffective assistance of counsel claim. Lewis filed a pro se supplemental appellate brief, again claiming that he was denied effective assistance of counsel and that he seemed to be proceeding pro se even though he had not been advised of the risks of proceeding pro se.
On May 20, 2010, The Appellate Division affirmed the judgment of conviction in its entirety in a reasoned opinion. People v. Lewis, 899 N.Y.S.2d 923 (N.Y.App.Div. 2010). The appellate court held that, "[t]o the extent that [Lewis's ineffective assistance of counsel claim] impacts the voluntariness of [his] plea, it survives the waiver of his right to appeal." Id. It nevertheless concluded that the ineffective assistance of counsel claim was "unpreserved for review inasmuch as [Lewis] did not move to withdraw the plea or vacate the judgment of conviction." Id. The ...