United States District Court, S.D. New York
De'Quan Duncan Auburn Correctional Facility, Auburn, New York, Petitioner (Pro Se).
John J. Sergi, Assistant District Attorney, Westchester County White Plains, New York, for Respondent.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Petitioner De'Quan Duncan brings this prose habeas corpus petition pursuant to section 2254 of Title 28 of the United States Code challenging his conviction from the Westchester County Supreme Court upon his plea of guilty to the crime of Murder in the Second Degree. Duncan was sentenced to and is now serving an indeterminate term of eighteen years to life. On April 11, 2012, Duncan filed the instant Petition,  challenging his conviction on the following grounds: (1) actual innocence; (2) ineffective assistance of counsel; and (3) his guilty plea was not knowingly, voluntarily, or intelligently entered. For the following reasons, the Petition is denied.
A. The Offending Conduct
On May 22, 2008, Duncan called a cab to go to the home of Adam Arroyo. The driver of his cab was Geraldo Gutierrez. In Duncan's written statement, he said that he planned to "hop the cab" because he lacked the money to pay for the trip. Arroyo met the cab at the top of Buckingham Road in Yonkers, New York. Upon reaching Arroyo, Duncan got out of the cab and proceeded to have an argument with Gutierrez over the fare. Duncan alleges that Gutierrez pulled out a knife,  but Arroyo claims that it was Duncan's knife. Duncan admits that he "flicked" the knife at Gutierrez several times. After the incident, which resulted in Gutierrez's sustaining multiple stab wounds, Gutierrez got back into his cab and drove away. Gutierrez died shortly after. Duncan was arrested and charged on June 12, 2008. Duncan was sixteen years old at the time of arrest.
B. Procedural History
Duncan was originally represented by Gregory Bartlett who was replaced by Richard L. Ferrante around November 25, 2009. Ferrante was the court appointed attorney at Duncan's pre-trial conference on March 18, 2009, during which Duncan pled guilty to intentional murder in the second degree.
Approximately two months after Duncan entered his plea, Duncan sent letters to the court and the Office of the District Attorney seeking to withdraw his plea on the basis that Ferrante had "pressure[d] him" into accepting it. In response, the court assigned a new attorney, Brendan O'Meara, who sought permission for Duncan to withdraw his plea with a motion pursuant to New York Criminal Procedure Law section 220.60(3). The motion was accompanied by a sworn statement from Jessica Murphy who allegedly had information inculpating Arroyo based on a telephone conversation she overheard where he first stated, "I killed somebody, " and later in the same conversation said, "We killed somebody."
The court denied Duncan's application to withdraw his plea on August 6, 2009, finding that his claims were "refuted by the record of the plea proceedings wherein he knowingly and voluntarily admitted his guilt in a thorough and complete plea allocution." Sentencing took place on August 13, 2009,  at which time Duncan was sentenced to a term of eighteen years to life.
Duncan appealed his conviction to the Appellate Division, Second Department, raising the following claims: (1) "he was innocent of the charge of intentional murder"; (2) "the plea allocution was defective because it failed to inquire into the factual circumstances of [Duncan's] alleged intent"; and (3) the trial court erred by failing to either vacate the plea or to conduct a hearing to consider vacating the plea. In support of his last claim, Duncan argued that (a) "by moving to vacate his plea before sentencing, [Duncan] preserved his right to challenge the voluntariness of his plea"; and (b) Duncan's plea was not made knowingly or voluntarily as he was coerced by his attorney.
The Appellate Division unanimously affirmed Duncan's conviction on November 30, 2010, holding that:
The defendant's contention that certain statements he made to law enforcement officials cast doubt upon his guilt and rendered his plea factually insufficient is unpreserved for appellate review because he did not raise this contention in his motion to withdraw his plea... [Duncan's] contentions regarding his innocence and a justification defense are unsupported by the record and do not afford a basis for withdrawal of his plea[.]... [Duncan]'s acceptance of the plea offer was an informed choice... [and his] claim of coercion is belied by his statements under oath expressing satisfaction with his attorney's representation and acknowledging that no one had coerced his plea[.] [A]s there was no legitimate question as to the voluntariness of the plea, the Supreme Court providently denied the motion without conducting an evidentiary hearing.
Duncan submitted a letter seeking leave to appeal to the New York Court of Appeals arguing that the Appellate Division abused its discretion in not allowing him to withdraw his previously entered plea and that his plea was not knowingly, voluntarily or intelligently entered because it was coerced by his attorney. On April 21, 2011, leave to appeal was denied because no question of law worthy of review was presented.
On April 11, 2012, Duncan filed his pro se habeas corpus petition. On June 26, 2012, Duncan moved for a stay of the habeas proceedings, so he could return to state court to "preserve issues that have a constitutional infringement of rights[.]" However, on August 16, ...