Cross v. Perez

• Decision Date: 04 October 2011
• Docket Number: No. 11 Civ. 1186 (BMC).,11 Civ. 1186 (BMC).
• Citation: 823 F.Supp.2d 142
• Parties: Kyle CROSS, Petitioner, v. Ada PEREZ, Warden of Downstate Correctional Facility, Defendant.
• Court: U.S. District Court — Eastern District of New York

823 F.Supp.2d 142

Kyle CROSS, Petitioner,

v.Ada PEREZ, Warden of Downstate Correctional Facility, Defendant.

No. 11 Civ. 1186 (BMC).

United States District Court, E.D. New York.

Oct. 4, 2011.

Kyle Cross, Fishkill, NY, pro se.

Alyson Joy Gill, New York State Office of the Attorney General, New York, NY, Karen Wigle Weiss, Kew Gardens, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d) in connection with his guilty plea to a charge of armed robbery. Petitioner claims that he accepted a plea offer based on his attorney's incorrect advice as to whether a prior New Jersey conviction qualified him as a second violent felony offender under New York law. This case raises issues as to whether a waiver of appellate and collateral-challenge rights in connection with a guilty plea is worth the paper it is written on; the differences between federal and New York law in applying that waiver; and the extent to which an objectively reasonable defense lawyer should understand these issues when advising a client of how foreign convictions will affect his sentence. I hold that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore grant the writ of habeas corpus.

I

The facts set forth below are taken from the record of proceedings in the state courts. In addition, the Court has accepted as true petitioner's factual allegations concerning his off-the-record discussions with his defense counsel at the time of his guilty plea and sentence, as they are detailed and credible, and respondent has not sought to contradict them.

Petitioner, facing a charge of first-degree robbery, decided to conditionally accept a plea agreement that the prosecutor offered on the eve of trial. The discussions over whether petitioner would accept it, some of which occurred off the record, initially focused on whether he would be sentenced as a “persistent violent felony offender” under § 70.08(1)(a) of New York's Penal Law, which carries a mandatory minimum sentence of twenty years' custody. This enhanced sentencing status depended upon how many, if any, of three prior New Jersey convictions would “count” as predicate violent felony offenses under the Penal Law. When that issue was identified during on-the-record plea negotiations, the prosecutor agreed to allow a plea to a lesser charge that would carry a term of twelve years to life. The trial court was scrupulous in laying out petitioner's options without pressuring him to accept the twelve-year plea.

At that point, the transcript reflects that the parties had an off-the-record discussion. Petitioner asserts, and it is consistent with what follows in the transcript, that he had done his own legal and factual research, obtaining the indictments underlying his New Jersey convictions and comparing these convictions to their New York statutory counterparts. Petitioner presented supporting authorities to his attorney and communicated his view that none of his three prior New Jersey convictions were sufficiently analogous to their New York statutory counterparts to serve as predicate violent felony offenses. According to petitioner, his attorney, the prosecutor, and the trial court agreed with him that two of his prior convictions corresponded to New York misdemeanors and petitioner therefore could not be sentenced as a persistent violent felony offender (a status that could only be imposed if petitioner had two or more prior violent felonies). However, the prosecutor, defense attorney, and judge each held the view that petitioner's third prior conviction, for aggravated assault against a police officer under N.J. Stat. § 2C:12–1(b)(5)(a) ¹ (the “New Jersey assault statute”), qualified as a predicate violent felony under N.Y. Pen. L. § 70.04(1)(b)(i), which provides for enhanced sentencing of a “second violent felony offender” (as opposed to a “persistent violent felony offender”). Under the attorneys' and the court's view, the New Jersey assault conviction qualified as a predicate felony because it is analogous to N.Y. Pen. L. § 120.11, “Aggravated Assault on a Police Officer or Peace Officer” (the “New York assault statute”). ² Petitioner disagreed with his attorney, the prosecutor, and the trial court, but deferred to their view of the issue. Based on the determination that petitioner was a “second violent felony offender,” rather than a “persistent violent felony offender,” the prosecutor lowered his plea offer to ten years, which petitioner accepted. This sentence reflected the minimum sentence for a second violent felony offender convicted of first-degree robbery in New York.

The trial court then went back on the record and stated that petitioner had agreed to plead guilty as a second violent felony offender and accept a ten-year sentence, summarizing their off-the-record discussion as follows:

THE COURT: On the record. Let me start. Everybody sit for a second. We have been discussing this case at length off the record to see, number one, whether or not defendant is truly a mandatory violent persistent felony offender, at least facing adjudication as such, upon a conviction on the matter before me today.

It would appear that there is a very good reason to believe that he is not. Upon defendant's own research and the paperwork which we are going to be photocopying and [the prosecutor] will take back to his office so that at the time of sentencing, defendant can be dealt with as a second violent felony offender but not a mandatory persistent violent felony offender. That sounds okay right now.

[DEFENSE COUNSEL]: Yes.

[THE PROSECUTOR]: Yes, Judge.

THE COURT: Right. And People, from your analysis of what you're being shown and going over the statute and our penal law sections as opposed to the New Jersey statute, it would appear that defendant's research seems accurate, actually.

[THE PROSECUTOR]: It appears that the certified documents in comparison with the New Jersey statutes of aggravated assault and other related New Jersey statutes that appears to be accurate, Judge.

THE COURT: Right, good. And then based on that, I understand now that you have approval at this time, therefore [we are] going to do this right now which is what I'm ready to do, to offer defendant as a second violent felony offender which—he will be adjudicated formally as such prior to sentence, but to offer him a sentence, a determinate sentence of ten years flat.

[THE PROSECUTOR]: Correct.

The trial court then accepted petitioner's guilty plea after putting him through a very thorough allocution as to the fact of his guilt and the rights that he was surrendering by pleading guilty. The trial court specifically advised petitioner that he would be sentenced as a second violent felony offender and receive ten years:

THE COURT: ... The promised sentence of ten years is based on the fact that it is this Court's understanding that prior to sentence you are admitting that you have what constitutes a previous violent felony conviction, which based on that, will therefore expose you to sentencing as a second violent felony offender.

We are going to arraign you on all the appropriate paperwork and adjudicate you as such prior to sentence on the next Court date. Do you understand, sir?

THE DEFENDANT: Yes.

THE COURT: But without—Putting the formalities aside, is it your intention and your understanding that you're going to be prepared to admit such prior to sentence?

THE DEFENDANT: Yes.

THE COURT: Okay. And indeed this whole plea is predicated on that Otherwise, you know—

THE DEFENDANT: Understood.

[DEFENSE COUNSEL]: So the record is complete, the other side of the coin is that on the date of sentence, the understanding is that [the prosecutor] will not come in here and say I have done more research and that one conviction in Jersey that I agreed isn't or I did agree was a non-violent now I'm changing my mind.

[THE PROSECUTOR]: That's [my] understanding.

THE COURT: You don't intend to do that?

[THE PROSECUTOR]: No.

The trial court also went over the appeal waiver that was part of the plea agreement. In reference to the written appeal waiver that petitioner signed, the trial court advised him:

THE COURT: ... All right, Mr. Cross, let's discuss this issue of waiver of right to appeal.

You, sir, as well as every defendant would have, without signing this document, you would have every right to challenge this plea and sentence at a later time.

So if couple of days from now, a hundred days from now or a thousand days from now, just to give you some examples, you decide that you want to challenge this plea and sentence before me or another Judge in this Court or in a higher Court or even in Federal Court, you would have every right to make such challenges. You understand?

THE DEFENDANT: Yes.

THE COURT: And or file such appeals. You would have that right. But by agreeing to this waiver document, you're saying, Judge, I understand that I would have had those rights but I am knowingly, intelligently and voluntarily giving up my right to make such challenges and/or challenge such appeals, do you understand?

THE DEFENDANT: Yes.

THE COURT: And why would you do that? Well, you certainly can recognize from what just took place today before we even got to the point of putting on a negotiated disposition on the record, that it's the D.A.'s position that they are offering you a plea bargain, they want this to be final. Took a lot of work to work out this disposition. They don't want you to then turn around and try to challenge or undo this plea and sentence at a later time. You understand?

THE DEFENDANT: Yes.

THE COURT: And you're saying, sir, you're saying, Judge, yes, I understand this and I'm willing to give up those legal and constitutional rights that I otherwise would have as part of what we call the consideration, part of what you are giving up as part of...