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Evans v. Graham

United States District Court, E.D. New York

February 11, 2015

SHAWN EVANS, Petitioner,
v.
HAROLD GRAHAM, Superintendent, Respondent.

SHAWN EVANS Auburn, NY, Petitioner, pro se

Amy Merrill Appelbaum, KENNETH P. THOMPSON, District Attorney, Kings County, Brooklyn, New York, Attorney for Respondent.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge.

Shawn Evans petitions under 28 U.S.C. § 2254 for a writ of habeas corpus. Evans is presently incarcerated pursuant to a New York conviction and sentence of eight years following a guilty plea to Criminal Possession of a Weapon in the Second Degree. He argues that his guilty plea was not voluntary and that his sentence was unconstitutional because he was improperly found to have had a predicate violent felony offense. I heard oral argument on the motion on November 25, 2014; Evans appeared by videoconference from his place of incarceration. For the reasons given below, neither a writ nor a certificate of appealability shall issue.

BACKGROUND

Evans was charged in Kings County, New York, with two counts of Criminal Possession of a Weapon in the Second Degree and one count each of Criminal Possession of a Weapon in the Fourth Degree, Assault in the Third Degree, and Reckless Endangerment in the First Degree. Appelbaum Aff., ECF No. 9, ¶ 6. The charges arose from events on August 12, 2009, at 363 Dumont Avenue in Brooklyn, New York, where Evans was observed to have pulled out a handgun and shoot in the street at four individuals known to him. The shots injured one of the individuals. Evans was arrested on October 17, 2009. See id. ¶ 5, Ex. C (Pre-Sentence Report) at 2.

On August 17, 2010, Evans pled guilty to Criminal Possession of a Weapon in the Second Degree. Id. ¶ 7, Ex. A (Plea) at 8. The government's offer to Evans was a sentence of nine years' imprisonment and five years' post-release supervision. Id. at 4. Prior to the entry of the plea, the court asked whether the defendant was a "violent predicate." The government replied yes, based on a 2002 robbery, but the defendant said no. Id. The court explained that when the defendant pled guilty to robbery in 2002, even though he was a juvenile at the time, he was convicted as an adult, which made Evans a "violent predicate" with respect to the present case. Id. at 5. The court said his sentencing range was therefore seven to fifteen years, but that it would sentence Evans to eight years - one year below the government's offer. See id. at 4-5.

During the plea colloquy, Evans responded that he had not consumed drugs, alcohol, or any other substance in the previous twenty-four hours that would affect his judgment; he was satisfied with the representation of his lawyer; he understood what rights he was giving up; no one had promised him anything other than the court's promise of an eight-year sentence; he was guilty of the charge in question; and no one forced or threatened him into pleading guilty. See id. at 6-9. The court found the plea to be acceptable. Id. at 9.

In motion papers dated December 28, 2010, Evans moved to withdraw his plea on grounds that included his contention that his prior felony had resulted in a juvenile delinquency determination, and thus could not be used to enhance the sentence in this case. See Appelbaum Aff. ¶ 14, Ex. L (Hirsch Aff., Dec. 28, 2010) at 3. Evans also made the argument that "his plea was involuntary due to enormous pressure being put on the defendant both by the Court and by his prior counsel." See id. The court had assigned new counsel for Evans for this motion. See id. at 2. The motion was denied in a written order dated February 4, 2011, the same day Evans appeared for sentencing. Insofar as it relates to the instant petition, the state court stated only that it had "explained to the defendant [at the guilty plea] why his prior conviction qualifies him as a violent predicate.'" Appelbaum Aff. ¶ 14, Ex. L (Order, Feb. 4, 2011).[1] The court also found no basis for Evans's contention he was coerced by his attorney into accepting the plea. Id. at 2.

At the sentencing proceeding, Evans's attorney and Evans himself told the court that Evans's 2002 conviction could not be the basis for a predicate statement. Appelbaum Aff. ¶ 15, Ex. B (sentencing minutes) at 2-3. The court clarified that even though the government filed a predicate statement, the defendant was "never deemed a predicate" and "[t]his sentence has got nothing to do with you being a predicate." Id. at 4. Evans was then advised that the correct sentencing range was three-and-a-half to fifteen years' imprisonment. Id. Evans was thus neither adjudicated nor sentenced as a second violent felony offender. Id. The court sentenced Evans to eight years' imprisonment. See id. at 4-5.

Evans appealed to the Appellate Division, Second Department, and claimed that the waiver of his right to appeal was invalid and that his sentence was excessive. The Second Department held that Evans's sentence was not excessive, but that Evans's waiver of his right to appeal was invalid. People v. Evans, 959 N.Y.S.2d 926 (2d Dep't 2013). Evans's application for leave to appeal to the New York Court of Appeals was denied. People v. Evans, 21 N.Y.3d 942 (2013) (Read, J.).

In March of 2011, Evans brought a pro se collateral attack in Supreme Court, Kings County under N.Y. C.P.L. § 440.20, claiming that he was improperly denied a hearing on whether he was a second violent felony offender. See Appelbaum Aff. ¶ 17, Ex. G (Order, People v. Evans, No. 9669/2009 (Sup.Ct. Kings Cnty., July 15, 2011)). The court denied Evans's motion, stating that "the defendant was not deemed a predicate felon and... the agreed to sentence was not a sentence imposed upon the defendant as a predicate felon." Id.

Evans brought a second collateral attack, which was denied in December of 2012. Id. ¶ 17, Ex. I (Order, People v. Evans, No. 9669/2009 (Sup.Ct. Kings Cnty., Dec. 27, 2012)). In this second motion, the defendant argued that he did not understand or remember the plea because he was on medication at the time. He also claimed that he had been diagnosed with "mood disorder and psychosis associated with bipolar disorder, " and that he was not interviewed by the probation department in the preparation of his pre-sentence report. Id. He also claimed, oddly, that he was a second felony offender, and also that he was denied a hearing on that issue. Id. The same judge who had sentenced Evans and denied his prior motions rejected the medication and mental health-related claims on the merits, noted the anomaly that a defendant who was sentenced as a first offender would assert in a § 440 motion that he was a second offender, and once again rejected the claim that Evans was entitled to a hearing. See id.

Finally, Evans brought a third collateral attack, claiming that his plea was induced by misrepresentation and he should have received the minimum sentence of three-and-a-half years. See Appelbaum Aff. ¶ 17, Ex. J (Def. Br., June 16, 2014) at 2-4. Evans also argued ineffective assistance of counsel in that counsel allowed the court to improperly sentence him as a second violent ...


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