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Harrison v. Griffin

United States District Court, E.D. New York

July 20, 2017

EDWARD HARRISON, Petitioner,
v.
THOMAS GRIFFIN, Respondent.

          MEMORANDUM DECISION AND ORDER

          Ann M. Donnelly United States District Judge.

         The pro se petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in connection with his New York State guilty plea to Attempted Robbery in the Second Degree (Penal Law § 160.10(2)(b)) and Attempted Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03). The petitioner argues that he was not indicted within the timeframe set out in CPL § 180.80, that his sentence as a persistent violent felony offender was improper, and that his lawyer was ineffective by failing to object to the CPL § 180.80 violation and by failing to advise him that he faced sentencing as a persistent violent felony offender. For the reasons that follow, the petition for a writ of habeas corpus is denied.

         FACTUAL AND PROCEDURAL HISTORY

         On August 9, 2010, at approximately 5:45 p.m., the petitioner went into the Family Dollar store located at 375 Tomkins Avenue in Staten Island, New York. In the course of stealing money from the store, the petitioner threatened an employee with a loaded gun, telling him, "Don't fucking say anything or move." (ECF 9, Ex. 5 at 10-11.) Two days later, on August 11, 2010, at approximately 7:00 a.m., the petitioner possessed a loaded .32 caliber revolver at 51 Hill Street, apartment 5K, in Staten Island. (Id. at 9; Ex. 1 at 7.)

         On August 19, 2010, a grand jury charged the petitioner with two counts of Robbery in the First Degree, one count of Robbery in the Second Degree, one count of Robbery in the Third Degree, one count of Criminal Possession of a Weapon in the Second Degree, and two counts of Criminal Possession of a Weapon in the Third Degree. (ECF 9, Ex. 5 at 19-21.)

         On January 6, 2011, the petitioner pleaded guilty before Justice Leonard Rienzi to Attempted Robbery in the Second Degree, a lesser included offense of the third count of the indictment, and Attempted Criminal Possession of a Weapon in the Second Degree, a lesser included offense of the sixth count of the indictment. (ECF 9, Ex. 1 at 2-3.) In exchange for the petitioner's plea, the prosecutor dismissed the remaining counts of the indictment, and recommended the minimum sentence permissible by law, concurrent sentences of 12 years to life on both counts. (Id. at 2, 6.) Judge Rienzi promised to sentence the petitioner in accordance with the prosecutor's recommendation. (Id. at 6.)

         At the plea hearing, the petitioner confirmed, under oath, that he had discussed the plea agreement with his lawyer, and that he was "100% satisfied" with her representation. (Id. at 4, 9.) He also stated that he understood that he was giving up his right to a jury trial, to confront and cross-examine witnesses, and to remain silent. (Id. at 5.) The petitioner acknowledged that his plea was voluntary, that he was not under the influence of any drugs or alcohol, and that no one had threatened him or forced him to plead guilty. (Id. at 7-9.) Judge Rienzi explained that if convicted of the top counts-first degree robbery and second degree weapons possession-the petitioner faced consecutive sentences of between 20 to 25 years to life for the robbery and 16 to 25 years to life for the weapons possession, but that the People were offering the petitioner a plea to less serious charges, with a promised sentence of concurrent terms of 12 years to life, the minimum permissible term for someone with the petitioner's record. (Id. at 5-6.) The petitioner admitted that he was guilty of the lesser included offenses, and the court accepted the petitioner's plea.[1] (Id.)

         The prosecutor had filed a statement pursuant to CPL § 70.04, alleging that the petitioner was a persistent violent felony offender; the statement detailed the petitioner's prior record of violent felony convictions, and included the periods of incarceration that tolled the ten-year period pursuant to CPL § 400.15. Following the petitioner's plea, the court placed those convictions on the record: a 1990 conviction for Robbery in the First Degree, for which the petitioner was sentenced to five to ten years in prison, and a 1995 conviction for Assault in the Second Degree, for which he was sentenced to three and a half to seven years in prison. The petitioner confirmed that he had been provided with a copy of the statement, that he had reviewed it with his lawyer, that he was convicted of the felonies, and was incarcerated as detailed in the predicate felony statement. (Id. at 11.) The court asked the petitioner whether he wished to challenge the constitutionality of the two prior convictions, and the petitioner responded "no." (Id. at 12.) Defense counsel also confirmed that she had reviewed the petitioner's criminal history statement and agreed the petitioner should be sentenced as a persistent violent felony offender, and that the tolling provision applied. (Id.)

         On January 21, 2011, Justice Rienzi sentenced the petitioner, as promised, to concurrent indeterminate prison terms of twelve years to life on each of the two counts. (ECF 9, Ex. 2 at 2-4.) The petitioner never moved to withdraw his plea.

         In November of 2011, the petitioner's appellate counsel filed an Anders brief in the Appellate Division, Second Department, requesting permission to withdraw as counsel and representing that there were no non-frivolous issues presented on appeal. (ECF 9, Ex. 5; ECF 9, Ex. 7 at 1.) On December 1, 2011, the petitioner filed a pro se brief, in which he argued that the prosecutor violated CPL § 180.80, and committed misconduct during the Grand Jury proceeding. (ECF 9, Ex 5. at 4-8.) The petitioner also argued that his guilty plea was invalid because he pleaded guilty to a crime that was not charged in the indictment, and that the gun charge could not be "merged" with the robbery charge because the underlying conduct occurred on different days. (Id.) On December 12, 2012, the Appellate Division, Second Department unanimously affirmed the judgment of conviction and granted appellant counsel's motion for leave to withdraw as counsel. (ECF 9, Ex. 7 at 1.)

         The petitioner sought leave to appeal to the Court of Appeals on December 24, 2012. (ECF 9, Ex. 8 at 1.) In his motion for leave to appeal, the petitioner argued that his plea was jurisdictionally defective because he was not initially indicted on the lesser included offenses to which he pleaded guilty. (Id. at 2-3.) The petitioner also argued that his trial lawyer was ineffective for failing to request a "consolidation motion" and failing to challenge the petitioner's status as a persistent violent felony offender. (Id.) Finally, the petitioner argued that he was improperly adjudicated a persistent violent felony offender by a court clerk instead of a judge. (Id.) On March 27, 2013, the Court of Appeals denied leave to appeal. (ECF 9, Ex. 9 at 1.)

         On September 12, 2013, the petitioner filed a motion to vacate the judgment and set aside the sentence pursuant to CPL §§ 440.10 and 440.20. (ECF 9, Ex. 10 at 1.) The petitioner argued that his guilty plea to attempted second degree robbery was invalid because it was not a lesser included offense of first degree robbery. (Id. at 1-2.) The petitioner also challenged his guilty plea to criminal possession of a weapon in the second degree, claiming that it is not a valid offense under New York law. (Id. at 2.) In addition, the petitioner attacked his sentence as a persistent violent felony offender. He alleged that the judge did not conduct a formal hearing on his status as a persistent offender, and that his two prior felony convictions were unconstitutional. (Id. at 2.) The petitioner further claimed that his trial lawyer was ineffective because she did not advise him that there would be a persistent violent felony offender hearing, did not investigate his prior criminal history, and did not object to the court's determination that he was a persistent violent felony offender. (Id. at 14-15.)

         In a written decision, Judge Rienzi denied the petitioner's motion to vacate the judgment. (ECF 9, Ex. 13 at 1.) The court held that there was "no requirement that [the petitioner] have been 'adjudicated' a prior violent felony offender on any prior occasion;" it was "undisputed" that the petitioner had two violent felony convictions. (Id. at 2.) The court also held that the petitioner's two prior sentences did not "merge" as a matter of law, and that the petitioner was properly convicted of Attempted Robbery in the Second Degree, because the plea hearing minutes "clearly reflect that [he] pled guilty under count three of the indictment, " Robbery in the Second Degree. (Id. at 2.) Finally, because the petitioner was provided with the predicate felony statement, admitted to its accuracy, and declined to challenge the constitutionality of either prior felony conviction, the court found that the petitioner "failed to demonstrate any violation of proper procedure." (Id. at 2-3.)

         On February 15, 2014, the petitioner moved for leave to appeal Judge Rienzi's decision. (ECF 9, Ex. 14 at 1.) On April 7, 2014, the Appellate Division, Second Department denied the petitioner's ...


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