Burvick v. Brown
| Decision Date | 09 July 2013 |
| Docket Number | No 10-CV-5597 (JFB),10-CV-5597 (JFB) |
| Parties | ROY BURVICK, Petitioner, v. WILLIAM D. BROWN, SUPERINTENDENT, EASTERN NEW YORK CORRECTIONAL FACILITY, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Roy Burvick ("Burvick" or "petitioner") petitions this Court pro se for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his May 30, 2006 conviction. Petitioner pled guilty to robbery in the first degree, N.Y. Penal Law ("N.Y.P.L.") § 160.15(2). Petitioner was sentenced to a determinate term of fifteen years' imprisonment and five years' supervised release. Pursuant to the terms of his plea agreement, petitioner waived his right to appeal.
Petitioner now challenges his conviction, arguing that: (1) he was arrested without probable cause; (2) the vehicle search of the car in which he was a passenger did not satisfy the requirements for an inventory search; (3) his sentence should be reduced because it was harsh and excessive; and (4) his guilty plea was made involuntarily. Petitioner's claims regarding his arrest, the vehicle search, and the excessiveness of his sentence are procedurally barred. Petitioner's claims regarding his arrest and the vehicle search are also barred from review due to petitioner's guilty plea, and because petitioner had a full and fair opportunity to litigate these claims during a suppression hearing in state court. The Court has also reviewed petitioner's claims regarding the voluntariness of his plea and the excessiveness of his sentence and concludes they are without merit. Accordingly, the petition for a writ of habeas corpus is denied.
Under Nassau County Indictment Number 2495N-05, petitioner was charged with four counts of robbery in the first degree, N.Y.P.L. § 160.15(2), two counts of assault in the second degree, N.Y.P.L. § 120.05(2), and one count of attempted robbery in the first degree, N.Y.P.L. §§ 110.00, 160.15(2), in connection with the robbery of two bars in Nassau County.
On May 30, 2006, petitioner pled guilty to one count of robbery in the first degree pursuant to a plea agreement whereby the remaining charges were dismissed. (Plea Tr.1 at 3.) Petitioner pled guilty to robbing a bar in West Hempstead, Nassau County on August 24, 2005. (Id at 4-5.) Petitioner admitted that he, along with three co-defendants, assaulted patrons of the bar and stole money. (Id. at 5-6.) One of petitioner's co-defendants carried a gun, while petitioner carried a sledgehammer. (Id. at 7-8.) Although he did not plead guilty to any other crimes, petitioner also admitted that he participated in a robbery of a bar in Rockville Centre, Nassau County on May 14, 2005. (Id. at 8.)
During his plea, the court told petitioner that "as a condition of the plea and sentence promised you, you're asked to waive your right to appeal." (Id. at 11.) The court asked petitioner, "Are you willing to waive your right to appeal in this case, including the decision in the hearing you had, in return for the sentence promised you." (Id. at 12.) Petitioner responded, "Yes." (Id.) The court then asked petitioner, "Do you waive your right to appeal voluntarily, of your own free will?" Petitioner again responded "Yes." (Id.) The Court then informed petitioner: Petitioner responded, "Yes." (Id.)
Because petitioner was only eighteen years old, petitioner's counsel asked the court to grant youthful offender treatment. (Id. at 14.) The Court replied that youthful offender treatment was not warranted "given the seriousness [of] the charges here, two robberies, armed, multiple perpetrators, assaults on patrons, including by [petitioner]." (Id.) Pursuant to the terms of the plea agreement, petitioner was sentenced on June 29, 2006, to a determinate term of imprisonment of fifteen years and a post-release supervision period of five years. (See Sentencing Tr.2 at 5.)
Petitioner appealed his conviction to the Appellate Division, Second Department, arguing that: (1) there was no probable cause to justify his arrest; (2) therefore, the evidence recovered from his vehicle as a result of his arrest should have been suppressed; and (3) the sentence was excessive. (See Br. For Def.-Appellant, Dec. 3, 2007, ECF No. 7-14.) On March 3, 2009, the Appellate Division unanimously affirmed petitioner's conviction and sentence, finding that petitioner's claims were foreclosed by his knowing, intelligent, and voluntary waiver of his right to appeal. People v. Burvick, 874 N.Y.S.2d 808, 809 (2d Dep't 2009).
On June 19, 2009, petitioner requested that the Court of Appeals grant him leave to appeal from the Appellate Division'sdecision affirming his judgment. On August 17, 2009, the Court of Appeals denied leave to appeal. People v. Burvick, 13 N.Y.3d 742, 742 (2009).
On or about July 9, 2010, petitioner filed a New York Criminal Procedure Law § 440.20 motion to set aside his sentence, arguing that the sentence was improper because it resulted in a twenty-year prison sentence, which was beyond the statutory maximum permitted by law. Petitioner claimed that he should be sentenced to ten years of imprisonment and five years of post-release supervision. Moreover, petitioner claimed that the trial court failed to advise him as to the direct and collateral consequences of his post-release supervision. (See Sworn Aff. in Supp. of Mot., June 29, 2010, ECF No. 7-22.) The New York State Supreme Court denied petitioner's motion on August 10, 2010, holding that petitioner's sentence "was not unauthorized, illegally imposed, or otherwise invalid as a matter of law" and that petitioner's allegation that the court did not inform him regarding the post-release supervision component of his sentence was "conclusively refuted by the transcript of the plea proceeding." People v. Burvick, No. 2495N/2005 (N.Y. Sup. Ct. Aug. 10, 2010).
On August 27, 2010, petitioner requested that the Appellate Division grant him leave to appeal Supreme Court's denial of his § 440.20 motion. On December 9, 2010, the Appellate Division denied petitioner's application for leave to appeal. (People v. Burvick, Decision & Order on Appl., Dec. 9, 2010, ECF No. 7-27.)
On November 29, 2010, petitioner filed the instant petition for a writ of habeas corpus. This Court issued an Order to Show Cause on December 8, 2010. Respondent filed his opposition on March 21, 2011. Petitioner submitted a reply on April 27, 2011. As discussed infra, petitioner has repeatedly filed motions to stay his petition so that he could exhaust a claim based upon the alleged joint representation of petitioner and a co-defendant by the same law firm. However, in a letter dated March 3, 2013, petitioner advised the Court that he no longer wishes to exhaust that claim. (ECF No. 18.) The Court has fully considered the submissions and arguments of the parties.
To determine whether a petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which provides, in relevant part:
28 U.S.C. § 2254(d). "'Clearly established Federal law'" is comprised of "'the holdings, as opposed to the dicta, of Court's decisions as of the time of the relevant state-court decision.'" Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A decision is an "unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413.
AEDPA establishes a deferential standard of review: " " Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). Additionally, while "'some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Id. (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). Finally, "if the federal claim was not adjudicated on the merits, 'AEDPA deference is not required, and conclusions of law...
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