Diaz v. Mantello
| Decision Date | 26 September 2000 |
| Docket Number | No. 98 CIV. 3521 (DAB).,98 CIV. 3521 (DAB). |
| Parties | Jose DIAZ Petitioner, v. Dominic MANTELLO, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Jose Diaz, Dannemora, NY, pro se.
Raffaelina Gianfrancesco, Assistant District Attorney, Office of the Bronx County District Attorney, Bronx, NY, for Respondent.
ADOPTION OF REPORT AND RECOMMENDATION
On June 21, 2000, Magistrate Judge Theodore H. Katz issued a Report and Recommendation recommending that Petitioner's habeas corpus petition be denied. See 28 U.S.C. § 636(b)(1)(C); Local Civil Rule 72.1(d). Both Petitioner and Respondent have filed objections to the Report and Recommendation.
28 U.S.C. § 636(b)(1)(c) requires the Court to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." After conducting a de novo review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d).
Petitioner contests his conviction for depraved indifference murder. The facts in this matter are sufficiently set forth in Judge Katz's Report and Recommendation and will not be reiterated here. Judge Katz assessed Petitioner's claims that: (1) his plea of guilty was not knowing and voluntary because he received ineffective assistance of counsel and because the trial court failed to conduct a full inquiry with respect to his plea; and (2) he was denied the effective assistance of counsel because counsel failed to inform him of the elements of second degree murder and manslaughter, failed to inform him of the possibility of an affirmative defense, failed to inform him of the evidence against him if he chose to proceed to trial, and failed to inform him of the consequences of a guilty plea. Respondent moved to dismiss the action.
Judge Katz concluded, and this Court concurs, that Petitioner's claims fail on the merits and are procedurally barred.
A. Objections
Petitioner objects to Judge Katz's finding that Petitioner failed to exhaust all of his claims.1 Further, Petitioner objects to Judge Katz's finding that both his claim of trial court failure to fully inquire prior to the plea and his claims of ineffective assistance of counsel are without merit.
Respondent objects to the Report and Recommendation conclusion that Petitioner's claim that the trial court's failure to fully inquire prior to the plea was not exhausted.
1. Guilty Plea
As Judge Katz concluded, the trial court clearly reached the merits of Petitioner's claim that the trial court failed inquire fully prior to his plea, when considering Petitioner's § 440.10 motion. Further, by mentioning the claim only within a laundry list of claims while failing to argue the issue along with the other issues argued on appeal, Petitioner has not exhausted the claim. See Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir.2000) (); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (). Thus, this claim was not exhausted.
However, the claim is procedurally forfeited pursuant to CPL § 460.15 (). Accordingly, the Court adopts Judge Katz's recommendation, finding that the plea allocution claim was not exhausted but is procedurally forfeited.
Judge Katz also reached the merits of Petitioner's claims.
Petitioner argues in his objection that the trial court failed to accept a plea to the proper count of the Indictment. Petitioner is correct that the trial court misspoke when stating that Petitioner was entering a plea to Count One (intentional second degree murder); when, in fact, he entered a plea to Count Two (depraved indifference second degree murder).
However, prior to accepting the plea, the Court and counsel referred directly to the statute to clarify that Petitioner was in fact entering a plea for violation of New York Penal Law 125.25 Subsection 2, depraved indifference. See Plea Transcript at 3:17-18. Under the statute, murder committed "under circumstances evincing a depraved indifference to human life" elevates reckless homicide to second-degree murder. See People v. Swartz, 130 A.D.2d 288, 520 N.Y.S.2d 224 (3d Dept. 1987). Thus, the trial court's misstatement was harmless and is not grounds for habeas relief.
For the reasons stated in Judge Katz's Report and Recommendation, and after de novo review, the Court finds Plaintiff's ineffective assistance of counsel claims to be without merit.
Accordingly, Petitioner's habeas petition is denied. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. See also Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir.1979). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Accordingly, after conducting an independent de novo review of the Report and Recommendation, and reviewing the record herein, it is
ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge Katz dated June 21, 2000, is approved, adopted, and ratified by the Court;
2. The petition for a writ of habeas corpus is hereby DENIED;
3. The Clerk of the Court is directed to dismiss the petition.
REPORT AND RECOMMENDATION
This habeas corpus petition was referred to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72.1(d) of the Southern District of New York. Petitioner, a New York State prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254, claiming that his conviction resulted from the deprivation of his constitutional rights, insofar as: (1) his plea of guilty was not knowing and voluntary because he received ineffective assistance of counsel and because the trial court failed to conduct a full inquiry with respect to his plea; and (2) he was denied the effective assistance of counsel because counsel failed to inform him of the elements of second degree murder and manslaugther, failed to inform him of the possibility of an affirmative defense, failed to inform him of the evidence against him if he chose to proceed to trial, and failed to inform him of the consequences of a guilty plea. See Petition. Respondent has moved to dismiss the action.1 For the reasons that follow, I respectfully recommend that the action be dismissed with prejudice.
On November 29, 1991, petitioner pled guilty in New York State Supreme Court, Bronx County (Stadtmauer, J.), to depraved indifference murder, in violation of New York Penal Law § 125.25(2). Petitioner acknowledged during his plea allocation, that on August 30, 1990, in the vicinity of 230 East 163rd Street in the Bronx, at eleven o'clock in the morning, petitioner drove to the front of a grocery store and fired numerous shots in the direction of the store and at a Jessie Miller who was standing in the doorway. (Transcript of Guilty Plea ("Pl.") at 4.) Petitioner knew that there were individuals inside the store. (Pl. at 4.) These shots caused the injury of Jessie Miller and the death of Assistant District Attorney Sean Healy, who was a customer in the store. (Pl. at 4.) Petitioner then drove around the corner where he shot another individual, Tony, and then drove away. (Pl. at 5.) Petitioner was sentenced to an indeterminate prison term of from fifteen years to life.2
On December 20, 1991, petitioner filed a notice of appeal, although, he never perfected his appeal. See Respondent's Affidavit in Opposition ("Resp.Aff."), at ¶ 6. On June 27, 1996, petitioner moved to vacate his judgment of conviction, pursuant to New York Criminal Procedure Law § 440.10, arguing that: (1) he was denied the effective assistance of counsel because counsel advised him to plead guilty although he lacked the necessary intent for the crime, and because counsel failed to inform him that intent was a required element of the crime; (2) his plea was involuntary because he received ineffective assistance of counsel; and (3) the trial court erred in accepting his plea without further inquiry as to the circumstances surrounding the homicide. See Ex. 1 to Resp. Aff. On March 27, 1997, the court denied petitioner's motion, holding that counsel had rendered effective assistance; that petitioner had failed to demonstrate that his plea was not knowing and voluntary; and that the record reflected that petitioner had "properly allocuted" to the crime of depraved indifference murder. See Ex. 4 to Resp. Aff. The court also noted that due to the extensive efforts of defense counsel, petitioner had obtained an advantageous plea agreement which resulted in a significantly lower sentence than petitioner would have faced had he proceeded to trial. See id. On July 17 1997, the Appellate Division, First Department, denied petitioner's application for leave to appeal. See Ex. 6 to Resp. Aff.
The instant petition followed.
Respondent contends that petitioner did not exhaust his state remedies. See Respondent's Memorandum of Law ("Resp.Mem."), at 5.
It is well-settled that all state remedies must be exhausted before a federal court may...
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