Deal v. Bellneir
| Decision Date | 24 February 2015 |
| Docket Number | 10-CV-3307 (MKB) |
| Parties | DEREK A. DEAL, Petitioner, v. JOSEPH A. BELLNEIR, Superintendent, Marcy Correctional Facility Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Derek A. Deal, proceeding pro se, brings the above-captioned habeas corpus petition pursuant to 28 U.S.C. § 2554, in which he alleges he is being held in state custody in violation of his federal constitutional rights. Petitioner's claims arise from a judgment of conviction rendered in the Suffolk County Court on October 14, 2005, following his plea of guilty to one count of burglary in the second degree, N.Y. Penal Law Section 140.25(2). Petitioner was sentenced, as a violent offender pursuant to N.Y. Penal Law Section 70.02,1 to seven years of incarceration followed by a period of five years of post-release supervision. Petitioner appealed his conviction to the New York Supreme Court Appellate Division, Second Department ("Appellate Division"), claiming, inter alia, that he was denied due process, and his sentence was invalid, because (1) an individual of ordinary intelligence would not have had fair notice that the burglary offense defined in Section 140.25(2) qualified as a violent crime, and (2)Section 70.02 was vague-as-applied, and the rule of lenity required that his sentence be vacated. On March 24, 2009, the Appellate Division rejected Petitioner's claims and affirmed his conviction. People v. Deal, 874 N.Y.S.2d 824 (App. Div. 2009). On July 13, 2009, the New York Court of Appeals denied leave to appeal. People v. Deal, 12 N.Y.3d 924 (2009).
In the instant application, Petitioner argues that: (1) Petitioner was deprived of due process in violation of the Fourteenth Amendment of the United States Constitution because he was not given fair notice that burglary in the second degree, as defined in N.Y. Penal Law Section 140.25(2), is a violent felony offense subject to sentencing under Section 70.02(1)(b); and (2) the rule of lenity should apply to Petitioner's burglary sentence because "reasonable doubt exists as to the statute['s] intended scope." (Pet. 5(a).)2 For the reasons set forth below, the petition is denied.
On May 10, 2005, at approximately 3:40 PM, Petitioner entered into a residence in Shirley, a hamlet in the town of Brookhaven, New York. (Plea Tr. dated Aug. 10, 2005 ("Plea Tr.") 12:7-13:20.) Petitioner stole money and jewelry. (Plea Tr. 12:19-13:3.) On May 11, 2005, Petitioner entered into another residence in Shirley during daytime hours, and stole jewelry and a Motorola cellular telephone. (Pet'r App. Br. dated Sept. 13, 2008, at 1.) Petitioner was arrested, charged and indicted in the Suffolk County Court for (1) two counts of burglary in the second degree, N.Y. Penal Law § 140.25(2), both class C violent felonies; (2) one count ofcriminal mischief in the third degree, N.Y. Penal Law § 145.05, a class E Felony; and (3) resisting arrest, N.Y. Penal Law § 205.30, a class A misdemeanor. (Resp't Reply Mem., Docket Entry No. 7, ¶ 4.)
On August 10, 2005, Petitioner verbally entered a plea of guilty to one count of burglary in the second degree, a class C violent felony. (Plea Tr. 13:5-13:20.) In exchange for his guilty plea, Petitioner was promised that he would be sentenced to seven years' incarceration followed by five years' post-release supervision, contingent upon Petitioner's payment of $7000 restitution prior to sentencing. (Plea Tr. 2:22-4:3, 9:2-10:3.) At the plea allocution, Petitioner affirmed that he was not under the influence of any drugs, medication or alcohol, he had fully discussed his plea with his counsel, he was satisfied with his legal representation, he understood the terms of the plea, he was pleading voluntarily and without threat or coercion, and he understood that pleading guilty is "the functional equivalent of a guilty verdict post-trial." (Plea Tr. 6:8-24, 8:7-21.) He acknowledged that he was pleading guilty to the burglary because he was, in fact, guilty of that crime. (Plea Tr. 11:18-13:7.) Petitioner specifically waived his constitutional right to trial and other attendant rights, which were described to him, (Plea Tr. 6:25-7:14), waived any defenses he had in this case, (Plea Tr. 8:22-25), and waived "any and all basis [] for appeal, and any and all appellate rights," (Plea Tr. 7:15-8:6).
Upon the court's acceptance of Petitioner's guilty plea to one count of burglary in the second degree, Petitioner requested permission to speak, stating:
I understand I waived my right for any kind of appeal. However, do I need to state my objections on the record for any post conviction collateral challenge, as the statute is unconstitutional, vague or overly broad with respect to my conduct, because I am considered to be a violent felony [sic] offender, and I am going tochallenge the statute in your courtroom in some later date, maybe a couple of years or a year.
(Plea Tr. 14:19-15:7.) Petitioner then inquired what, if any, objections to the law he must make in order to bring a post-conviction motion. (Plea Tr. 15:4-7, 20-24.) The court advised Petitioner that it could not take the matter under consideration since the legislation has defined burglary in the second degree as a class C violent felony, but that Petitioner would have the opportunity to speak fully at sentencing. (Plea Tr. 15:12-19; 15:25-16:3.)
On October 14, 2005, pursuant to the bargained-for plea agreement, Petitioner paid $7000 in restitution and was sentenced to a determinate term of seven years' incarceration, followed by five years' post-release supervision. (Sentencing Tr. dated October 14, 2005 ("Sen. Tr.") 7:17-9:7.) Petitioner addressed the court at sentencing and asserted his intent to file a post-conviction collateral challenge to the constitutionality of the New York State statute classifying burglary in the second degree as a violent felony offense, regardless of whether violence had occurred. (Sen. Tr. 10:14-11:17.) The court allowed Petitioner to place his argument on the record, noting that Petitioner had previously raised some of the same arguments. (Sen. Tr. 11:18-21.)
Despite Petitioner's repeated acknowledgement that he had waived the right to appeal, Petitioner filed a notice of appeal, pro se, on November 2, 2005. On July 26, 2007, Petitioner's assigned appellate counsel filed a brief in the Appellate Division pursuant to Anders v. California, 386 U.S. 738 (1967), claiming that no nonfrivolous issues could be made on appealand requesting leave to withdraw as counsel.3 Counsel noted in his brief that Petitioner: (1) never moved to withdraw his guilty plea pursuant to New York's Civil Practice Law and Rules Section 220.60(3), rendering any claims concerning the plea itself unpreserved for review; (2) never objected to the terms of his sentence; (3) knowingly, intelligently, and voluntarily waived the right to appeal his plea and sentence; (4) entered into a reasonable plea bargain; and (5) raises only meritless arguments concerning the constitutionality of New York Penal Law Section 140.25(2). On October 17, 2007, the Appellate Division granted Petitioner leave to serve and file a pro se supplemental brief. Petitioner filed his supplemental brief, claiming that: (1) N.Y. Penal Law Section 70.02 improperly "circumvent[s] a definition of a violent crime" by simply listing certain other offenses and categorically defining those as violent felonies; (2) N.Y. Penal Law Section 140.25(2) fails to give a person of ordinary intelligence fair notice that the offense defined therein is a violent crime; (3) the Appellate Division had erred in an earlier ruling regarding the construction of Section 70.02 in conjunction with Section 140.25; and (4) because Section 70.02 was vague as applied, the rule of lenity required his sentence be vacated. (Pet. 3(a).)
On March 24, 2009, the Appellate Division affirmed Petitioner's judgment of conviction. People v. Deal, 874 N.Y.S.2d 824, 824 (App. Div. 2009). The court held:
We have reviewed the record and agree with the defendant's assigned counsel that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is granted. The defendant has not, nor could he have, raised any nonfrivolous issues in his supplemental pro se brief.
Id. (internal citations omitted). The Appellate Division thus affirmed Petitioner's conviction. Id. In his application to the New York State Court of Appeals, Petitioner raised only two of the four grounds presented to the Appellate Division, namely: (1) that N.Y. Penal Law Section 70.02 was vague as applied to this offense, which only had a potential for violence, and (2) that Section 140.25(2) fails to give a person of ordinary intelligence fair notice that the offense defined therein is a violent felony offense. (See Pet. 3(a).) Petitioner also raised a third challenge as to how N.Y. Penal Law Section 140.25(2) should be interpreted in light of its legislative history. (Pet. 3(b).) The Court of Appeals denied Petitioner leave to appeal on July 13, 2009. People v. Deal, 12 N.Y.3d 924 (2009).
Petitioner timely filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254, asserting that he was deprived of due process under the Fifth and Fourteenth Amendments of the United States Constitution because: (1) Petitioner was not given fair notice that the burglary offense, as defined, qualified as a violent felony; and (2) N.Y. Penal Law Section 70.02 "refers to a substantive offense, adding the aggravating element of violent mens rea to the specified offense in order to invoke the enhanced penalty provided for 'violent felony offenders,'" and at best ambiguously labels daytime burglary of a dwelling as a violent crime, thus necessitating application of the rule...
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