Gilday v. Garvey
| Decision Date | 11 March 1996 |
| Docket Number | Civil A. No. 95-30109-MAP. |
| Citation | 919 F. Supp. 506 |
| Parties | Mark A. GILDAY, Petitioner, v. Robert GARVEY, Sheriff, Hampshire County House of Correction, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
COPYRIGHT MATERIAL OMITTED
Mark A. Gilday, Fort Dix, NJ, pro se.
William J. Meade, Assistant Attorney General, Boston, MA, for Respondent.
MEMORANDUM AND ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE NEIMAN
On January 19, 1996, Magistrate Judge Neiman issued his Report and Recommendation regarding the two claims raised by this Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. In his Report and Recommendation, the magistrate judge recommended that the petition be denied. On February 12, 1996, the petitioner filed his objections to the Report and Recommendation.
Having carefully reviewed the Report and Recommendation issued by Magistrate Judge Neiman, this court must agree that the two grounds for relief offered in the amended petition — ineffective assistance of counsel and violation of the plea agreement — are unsupportable. The Report and Recommendation is therefore hereby ADOPTED in toto. The petition is hereby DENIED and this case is ordered dismissed.
It is so ORDERED.
REPORT AND RECOMMENDATION REGARDING PETITIONER'S AMENDED HABEAS CORPUS PETITION
Before the Court is the pro se petition of Mark A. Gilday ("Petitioner") seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 on grounds that he was denied effective assistance of counsel and that his plea agreement was violated. Robert Garvey, Sheriff of the Hampshire County House of Correction ("Respondent"), opposes the petition. Pursuant to Rule 3 of the Rules of United States Magistrates in the United States District Court for the District of Massachusetts, the petition has been referred to this Court for a report and recommendation. 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Court recommends that the petition be denied.
On October 3, 1990, a grand jury in Berkshire County, Massachusetts, indicted Petitioner for multiple counts of uttering and larceny. On October 19, 1990, the Superior Court appointed Richard D. LeBlanc ("Leblanc") as Petitioner's counsel and, at arraignment, Petitioner entered pleas of not guilty. Over one year later, on November 8, 1991, Petitioner changed his pleas to guilty and, on November 27, 1991, he was sentenced to serve four concurrent terms of nine to ten years on the uttering counts and three concurrent terms of three to five years on the larceny counts.
On February 22, 1992, Petitioner moved to withdraw his guilty pleas and, on August 2, 1993, Superior Court Judge Daniel A. Ford held an evidentiary hearing on Petitioner's motion. Judge Ford — who chose to accept evidence via live testimony rather than through the submission of affidavits — heard from both Petitioner, who was represented by counsel, and from LeBlanc. Judge Ford also reviewed the transcripts from the plea and sentencing hearings. After receiving this evidence, Judge Ford, in a memorandum of decision dated August 27, 1993 ("MD"), outlined his factual findings and denied Petitioner's motion.
Petitioner thereafter filed a timely notice of appeal. On February 15, 1995, the Massachusetts Appeals Court, in an unpublished opinion, summarily affirmed the denial of Petitioner's motion to withdraw his guilty pleas, and, on March 27, 1995, the Massachusetts Supreme Judicial Court denied Petitioner's application for leave to obtain further appellate review. See Commonwealth v. Gilday, 419 Mass. 1109, 647 N.E.2d 720 (1995).
On or about May 5, 1995, Petitioner filed a federal habeas corpus petition which asserted seven grounds for relief. After Respondent moved to dismiss the petition for failure to exhaust five of the seven grounds, Petitioner moved to amend his petition to pursue only the two exhausted claims. On July 17, 1995, District Court Judge Michael A. Ponsor allowed the amendment and denied the motion to dismiss. In his amended petition, Petitioner raises his two exhausted grounds for relief: ineffective assistance of counsel and violation of the plea agreement.1
The relevant facts underlying the petition follow. Because Judge Ford's factual findings are "fairly supported by the record" — the record being the transcripts from plea hearing ("TR I"), the sentencing hearing ("TR II") and the August 2, 1993 motion hearing ("TR III"), summarized below — the Court is required to accord them a presumption of correctness. See 28 U.S.C. § 2254(d). This presumption also extends to Judge Ford's finding that, on all contested matters on which Petitioner's testimony differed from LeBlanc's, LeBlanc's version of events was much more credible, and thus, accepted as true. MD at 9. See Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) () (citing Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983)).
In March of 1990, Petitioner opened an account at a local bank. TR I at 12. In June of 1990, the bank closed Petitioner's account as it was overdrawn. Id. Two months later, however, Petitioner signed and offered two checks from that closed account and those checks were then deposited in the account of Ronald Rhodes. Id. at 11-12. Sometime thereafter, the deposited funds were withdrawn and divided between Rhodes and Petitioner. Id. at 12. Petitioner also took two checks from his roommate, endorsed his roommate's name on the checks and offered them. Id. at 11.
As indicated, the court appointed LeBlanc to represent Petitioner at his October 19, 1990 arraignment. TR III at 95. At that time, LeBlanc explained and reviewed the elements of the offenses with Petitioner. Id. Because LeBlanc also represented Petitioner in a narcotics trafficking case which was "about to go to trial," he concentrated his efforts on the narcotics charge of which Petitioner was eventually acquitted. Id.2
Thereafter, LeBlanc familiarized himself with the new charges, obtained discovery, including grand jury minutes, and began to prepare for trial. TR III at 65-68, 74-75. Petitioner agreed to call LeBlanc to set up an appointment, but neglected to do so. Id. at 66. Petitioner also defaulted on numerous district court matters and did not contact LeBlanc. Id. at 100-101. In addition, Petitioner apparently failed to supply LeBlanc with the names of any witnesses to interview, nor did he suggest that a handwriting expert be retained. Id.
On or about October 1, 1991, Petitioner was arrested on default warrants issued by the local District Court and was held on bail. TR III at 101. LeBlanc went to the county jail to see Petitioner. Id. Petitioner told LeBlanc that he wanted to plead guilty to all charges pending against him in both the District and Superior Courts, with the single exception of an assault and battery charge pending in the Superior Court on which LeBlanc did not represent him. Id. LeBlanc informed Petitioner that he had the option of going to trial, or make an agreed or unagreed plea with the Commonwealth. Id. Petitioner stated that he wanted to plead guilty. Id. at 102.
On October 20, 1991, after a number of discussions with the prosecutor, LeBlanc again visited Petitioner at the jail. LeBlanc informed Petitioner of the Commonwealth's recommendation of nine to ten years at MCI Cedar Junction. TR III at 74-77. LeBlanc explained the elements of each offense, reviewed the potential penalties, informed Petitioner that the recommendation was below the sentencing guidelines, discussed possible options and made it clear to Petitioner that the recommendation provided for no split sentence and no probationary period. Id. Petitioner was disappointed and upset with the recommendation. Id. He told LeBlanc that he would have to serve three years before he was even eligible for parole, and felt that he would not be paroled when he first became eligible due his long criminal record. Id. LeBlanc agreed with Petitioner's assessment of his likely parole situation and reminded Petitioner of his additional options — going to trial or pleading guilty with unagreed sentencing recommendations. Id. No decision was reached at that meeting. Id.
Two days later, on October 22, 1991, LeBlanc went back to the jail to speak with Petitioner. TR III at 77-79. Upon Petitioner's inquiry, LeBlanc opined that the Commonwealth's recommendation was lenient as it was below the sentencing guidelines that called for thirteen to thirty-eight years. Id. Although LeBlanc again reminded Petitioner of his right to a trial, Petitioner stated that he would plead guilty to all the charges, except for the assault and battery charge. Id. After various discussions with the prosecutor and several days prior to the November 8, 1991 plea hearing, LeBlanc had another conversation with Petitioner to confirm Petitioner's decision to plead guilty. Id. at 102. Petitioner agreed to call LeBlanc on November 7th if he "changed his mind." Id. Petitioner did not call. Id.3
Petitioner was brought to court on November 8th for a change of plea before Superior Court Judge Charles L. Alberti. TR III at 85. It was Judge Alberti's practice to require both counsel and the defendant to prepare and sign a document entitled "Stipulation on Agreed Change of Plea." Id. at 86. Accordingly, LeBlanc took the pre-printed form to the holding cell and reviewed it with Petitioner. Id. at 87. Written on that form in ink was the joint recommendation of the parties. Id. It indicated that Petitioner would be sentenced to nine to ten years at MCI Cedar Junction on the four uttering indictments, and three to five years on the four larceny indictments, all...
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