Ferrer v. Superintendent

• Decision Date: 25 July 2008
• Docket Number: No. 9:05-CV-1010 (NAM).,9:05-CV-1010 (NAM).
• Citation: 628 F.Supp.2d 294
• Parties: Alex FERRER, Petitioner, v. SUPERINTENDENT, Respondent.
• Court: U.S. District Court — Northern District of New York

628 F.Supp.2d 294

Alex FERRER, Petitioner, v. SUPERINTENDENT, Respondent.

No. 9:05-CV-1010 (NAM).

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

July 25, 2008.

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Alex Ferrer, Pine City, NY, pro se.

Hon. Andrew Cuomo, Office of the Attorney General, State of New York, Frederick H. Wen, Esq., Assistant Attorney General, of Counsel, New York, NY, for Respondent.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Chief Judge.

I. Background

A. State Court Proceedings

The state court records reflect that at approximately 2:30 a.m. on August 21, 2001, Margaret Frost was awoken by an ambulance outside her home in Binghamton, New York. See Transcript of Suppression Hearing (4/17/02) ("Suppression Tr.") at pp. 28-29. As she woke up, she noticed an individual standing in her bedroom, approximately ten feet away from her. Id. at p. 29. When she confronted him, he put a jacket over his head and flashed a light in her eyes. Id. at pp. 29-30. She then informed him that she was going to call the police, and, as a result, he ran out of the residence through its back door. Id. at p. 31.

After he fled, Frost discovered that several items from her home had been misplaced or missing, including a ceramic bowl and $50.00 from her purse. Id. at pp. 41-43. She promptly called the police, and, when law enforcement officials arrived, they discovered a backpack that contained numerous documents bearing the name of petitioner, pro se Alex Ferrer on Frost's front porch. Id. at p. 6. Ferrer was then identified as a suspect, and on August 24, 2001, the police located him and brought him to the police station for questioning. Id. at pp. 8-9. Upon arriving at that location, he was advised of his Miranda rights.¹ Suppression Tr. at p. 11. He then indicated that he was willing to talk with the officers without the benefit of counsel, and eventually admitted his involvement in the incident which occurred at Frost's residence. Id. at pp. 15-19.

By Indictment Number 01-619, a Broome County grand jury charged Ferrer with one count of burglary in the second degree, contrary to N.Y. Penal Law § 140.25(1)(d).

On April 17, 2002, Broome County Court Judge Patrick H. Mathews presided over a suppression hearing, after which he issued a decision which denied Ferrer's suppression motion in all respects. See Suppression Tr. at p. 82.

Ferrer's jury trial on the charge commenced on April 23, 2002, with Judge Mathews presiding. See Transcript of Trial and Change of Plea (4/23/02) ("April Tr.") at p. 2. After the jury was selected, a luncheon recess was held, during which time the prosecutor received permission from the trial court to compare a palm print found on Frost's ceramic bowl with a palm print taken from Ferrer. April Tr. at pp. 73-74. A comparison of those two prints yielded a "positive match." Id. at pp. 74-75. Upon being advised of that development, Ferrer indicated to his attorney that he wished to accept the prosecutor's previous offer to allow Ferrer, a second violent felony offender, to enter a guilty plea to the charge of attempted second degree burglary in satisfaction of the charge against him in the Indictment, as well as a potential perjury charge. Id. at p. 79-80.

The County Court then engaged in a colloquy with him regarding the proposed plea, after which Judge Mathews accepted Ferrer's guilty plea to the attempted burglary charge.² Id. at p. 83.

On May 30, 2002, the date on which Ferrer was scheduled to be sentenced, Judge Mathews, after having reviewed various pro se requests of Ferrer, ordered him to undergo a psychiatric examination pursuant to New York Criminal Procedure Law ("CPL") § 730.30. That exam was conducted by two psychiatrists, and, although the contents of those reports were not placed on the trial record, the record reflects that Ferrer was found to be competent. See Decision and Order of Judge Mathews (6/9/03) ("June, 2003 Decision") at p. 5.

On July 30, 2002, Ferrer appeared with counsel for sentencing. See Transcript of Sentencing of Alex Ferrer (7/30/02). At that proceeding, Ferrer claimed that he was not guilty of the crime to which he pleaded guilty because his palm print could not have been on the ceramic bowl, which he claimed had fallen on the floor. Id. at p. 2. Notwithstanding that comment, the court sentenced Ferrer, pursuant to the terms of the plea bargain, to a determinate term of five years imprisonment, followed by five years of post-release supervision. Id. at p. 3.

On March 10, 2003, before his appeal was perfected, Ferrer filed a pro se motion to vacate his conviction pursuant to CPL § 440.10. See Dkt. No. 22, Exh. A ("CPL Motion"). In that application, Ferrer claimed, inter alia, that: i) he was forced to testify before the grand jury in "shackles;" ii) perjurious testimony was presented to the grand jury; iii) the manner in which he was questioned was constitutionally infirm; iv) the grand jury panel lacked "ethnic minorities;" and v) he received the ineffective assistance of trial counsel. See CPL Motion. The prosecutor opposed that application, and Judge Mathews thereafter denied such request without a hearing. See June, 2003 Decision.

Ferrer's direct appeal was thereafter perfected, and, in his brief, appellate counsel argued that: i) Ferrer was entitled to withdraw of his guilty plea because he received the ineffective assistance of trial counsel; and ii) the County Court erred by not granting Ferrer new counsel and then ordering a competency hearing under the CPL. That appeal was opposed by the district attorney, and, after consolidating Ferrer's direct appeal with his appeal of the denial of his CPL Motion, the New York State Supreme Court Appellate Division, Third Department, unanimously affirmed both Ferrer's conviction and the denial of the CPL Motion. See People v. Ferrer, 16 A.D.3d 913, 791 N.Y.S.2d 721 (3d Dept.2005). Ferrer, through counsel, sought leave to appeal the Appellate Division's decision, however in a decision dated July 7, 2005, New York's Court of Appeals denied his leave application. People v. Ferrer, 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669 (2005).

B. This Action

Ferrer filed a pro se petition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 10, 2005. Before any response to that pleading was filed by the respondent, Ferrer filed an amended petition in which he asserts numerous grounds for relief. See Dkt. No. 18 ("Am. Pet.").³ In that pleading, Ferrer asserts that: i) the prosecutor failed to disclose Brady⁴ evidence to Ferrer; ii) his incriminating statement was obtained in violation of his Miranda rights; iii) his guilty plea was unlawfully induced and involuntarily made; iv) the district attorney suborned perjurious testimony at both the grand jury proceeding and the suppression hearing; v) he was improperly forced to testify in "shackles" before the grand jury that ultimately indicted him; vi) the panel for the grand jury was "unconstitutionally selected and impaneled;" vii) the County Court erred in refusing to grant Ferrer's motion to withdraw his plea; viii) the trial court wrongfully failed to allow Ferrer to testify in support of his claim that he was not competent to plead guilty to the charge; ix) the County Court erred by denying Ferrer his right to an allocution at his sentencing; and x) he received the ineffective assistance of trial counsel. See Am. Pet.; see also Traverse (Dkt. No. 26) ("Traverse"); Memorandum of Law in Support of Amended Petition (Dkt. No. 36).

The Office of the Attorney General for the State of New York, acting on respondent's behalf, has filed a response in opposition to Ferrer's application. Dkt. No. 22. Attached to that response was a memorandum of law requesting dismissal of the amended petition ("Resp. Mem."). In his memorandum, respondent claims that Ferrer is procedurally barred from asserting some of his claims for relief and that, in any event, the claims raised in the amended petition are without merit. See Resp. Mem. After he filed his Traverse, Ferrer filed additional exhibits, together with a supplemental letter and brief in further support of his amended pleading. See Dkt. Nos. 29, 33 and 34. This Court has considered the above-referenced documents in conjunction with its review of the amended petition, which is currently before this Court for disposition.⁵

II. Discussion

A. Standard of Review Applicable to Ferrer's Claims

The April, 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir.2006) that:

a federal court may award habeas corpus relief with respect to a claim adjudicated on the merit's in state court only if the adjudication resulted in an outcome that: (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Rodriguez, 439 F.3d at 73 (quoting 28 U.S.C. § 2254(d)); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir.2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir.2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir.2001). In providing guidance concerning application of this test, the Second Circuit has noted that:

[A]state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362,] at 405-06,...