Bonie v. Annucci
| Decision Date | 18 November 2021 |
| Docket Number | 19cv11822 (AJN) (DF) |
| Parties | NASEAN BONIE, Petitioner, v. ANTHONY ANNUCCI, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Mr Nasean Bonie
Southport Correctional Facility
Respondent's counsel
REPORT AND RECOMMENDATION
Proceeding pro se, petitioner Nasean Bonie (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state conviction upon a guilty plea to one count of Assault in the Second Degree, in violation of N.Y. Penal Law § 120.05(2). As a result of his plea, Petitioner was sentenced to a determinate term of imprisonment of four years, plus three years of post-release supervision. Although, at the time he filed his Petition, Petitioner was incarcerated at Green Haven Correctional Facility, in Stormville, New York the Docket reflects that he was later transferred to Southport Correctional Facility, in Pine City, New York (“Southport”). (See Dkt. 24.)[1] In this action, Petitioner challenges: (1) the validity of the appeal waiver that he gave at the time of his plea (although, liberally construed, [2] this claim might also be read as challenging the validity of the plea itself), and (2) his sentence, which he claims was excessive. For the reasons discussed below, I recommend that the Petition be dismissed.
As Petitioner's criminal case did not proceed to trial, the factual background of his criminal conduct, as summarized below, is principally taken from the transcript of his plea proceedings, which were held before the Honorable Ralph Fabrizio, J.S.C., in the Supreme Court of the State of New York, Bronx County, on February 26, 2015. (See Declaration [of Ryan J. Foley, Esq.] in Opposition, dated July 7, 2020 (“Foley Decl.”) (Dkt. 19), Ex. 6 (Transcript of plea proceedings, conducted Feb. 26, 2015 ((“Plea Tr.”)) (Dkt. 19-7, at ECF 1-29[3]).) At that time, the prosecution proffered certain facts to the trial court, and Petitioner, through counsel, did not dispute their accuracy.
In particular, the prosecution described that, on July 10, 2012, Petitioner had engaged in sustained acts of domestic violence against his wife, Crystal Campbell (“Campbell”). (See generally id.) The prosecution described how, moving through different rooms of their apartment, over a period of up to approximately half an hour (see id., at 10), Petitioner whipped Campbell with a belt, “which was used hard enough and often enough to leave the imprint of th[e] belt buckle on [her] legs” (id., at 11) and to cause her “substantial pain and difficulty . . . walking” (id., at 19), and threw a folding wooden tray table at her “with enough force . . . to shatter it into several pieces and cause lacerations to [her] arm” (id., at 11; see also id., at 19). In addition, the prosecution represented that, in the course of the assault, Campbell suffered a broken orbital bone, requiring a surgical procedure to implant a device to “act[] as an artificial floor to her right eye socket, holding the eye in place.” (Id., at 11-12.) Overall, the prosecution described an attack that was severe enough to render Campbell unconscious, and further informed the court that, when Campbell “was no longer conscious, [Petitioner] shaved her head and cut her hair, which was down the length of her back prior to this assaultive conduct.” (Id., at 11.)
In connection with the assault on Campbell, Petitioner was charged in an Indictment with two counts of second-degree assault, two counts of fourth-degree criminal possession of a weapon, and three counts of third-degree assault.[4] Petitioner, however, eventually pleaded guilty to only the top count of the Indictment: Assault in the Second Degree, in violation of N.Y. Penal Law § 120.05(2). (See Plea Tr., at 21, 23; see also Foley Decl. ¶ 5.) Under this provision of New York law, a person is guilty of second-degree assault when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person . . . by means of . . . a dangerous instrument.” N.Y. Penal Law § 120.05(2). Apparently, the particular second-degree assault charge to which Petitioner pleaded related specifically to his having struck Campbell with a belt. (See Plea Tr., at 27.)
Prior to Petitioner's plea, the prosecution and Petitioner's counsel engaged in colloquy with the trial judge regarding the terms under which Petitioner would agree to plead guilty. (See Plea Tr., at 2-20.) Petitioner's counsel noted that, prior to Petitioner's indictment, the prosecution had offered a plea deal under which it would recommend a sentence of two years' imprisonment, but that, post-indictment, the prosecution had changed those proposed terms, and had indicated that it was then only prepared to offer a plea deal with a recommended sentence of four years' imprisonment. Petitioner's counsel urged the trial court to consider allowing Petitioner to plead guilty in return for something “closer to” a two-year sentence, which, counsel argued, was “more just and appropriate for [Petitioner].” (Id., at 2-3.)
In support of his argument that mitigating circumstances warranted a lower sentence than that which was then being requested by the prosecution, Petitioner's counsel informed the court that Petitioner was an honorably discharged army veteran, who had been diagnosed with post-traumatic stress disorder (“PTSD”) after having seen combat. (Id., at 4.) According to Petitioner's counsel, Petitioner was, at the time of the proceedings, receiving a full disability pension, as he was considered by the Veterans Affairs Administration to be unemployable as a result of his trauma. (Id., at 4-5.) Counsel suggested to the court that Petitioner's PTSD may have “manifested itself in struggles with the relationship with his wife.” (Id., at 5.) Counsel also informed the court that, after the assault, Petitioner “was so horrified by his own conduct . . . that he checked himself straight away [in]to the Veteran's Affairs Hospital.” (Id., at 16-17; see also id., at 17 ().) Petitioner's counsel further argued that Petitioner had “always been a good loving father, ” who was “continuing] to pay child support as he [could, ] through his pension.” (Id., at 8.)
After hearing argument from both sides, the court indicated that it was “not willing to come lower than four years in state prison followed by three years post release supervision on this indictment.” (Id., at 20.) At that point, Petitioner's counsel conferred with Petitioner, who agreed to plead guilty. (Id., at 21.) The court then conducted a plea allocution, during which it informed Petitioner of the terms of the sentence that it intended to impose upon Petitioner's guilty plea (id., at 23-24); confirmed that Petitioner had had an opportunity to discuss the charges, his defenses, and the terms of the expected sentence with his counsel, and that he was satisfied with his counsel's legal advice and representation (id.); confirmed that no one was “forcing [Petitioner] in any[]way to plead guilty” (id., at 24); advised Petitioner of the rights that he would be waiving if he proceeded with his plea (see id., at 25-27); and confirmed that there was a factual basis for the plea (id., at 27).
As relevant here, with respect to Petitioner's right to appeal, the trial court engaged in the following exchange with Petitioner:
(Id., at 25.)
At the close of the allocution, after confirming with both Petitioner's counsel and the prosecution that the allocution was “acceptable, ” the court permitted Petitioner to withdraw his prior plea of “not guilty, ” and to enter a plea of “guilty” to the single assault charge. (See id., at 27-28.)
The trial court held a sentencing hearing on April 22, 2015. (See Foley Decl., Ex. 7 () (Dkt. 19-8, at ECF 15-22[5]).) At that time, the court inquired about a statement that had apparently been made by Petitioner and included in the probation report, to the effect that he had discovered his wife cheating on him, and that he had “snapped.” (Id., at ECF 17.) The prosecution requested that this statement be stricken from the report, arguing that it represented “one last attempt on the part of [Petitioner] to institutionalize the humiliation of the woman that he abused and assaulted ....” (Id.)
The court declined to strike the statement, but it did...
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