Irvis v. Haggat
| Decision Date | 13 October 2015 |
| Docket Number | 9:12-CV-01538 (FJS/TWD) |
| Parties | BARRY D. IRVIS, Petitioner, v. SUPERINTENDENT HAGGAT, Mt. McGregor Correctional Facility, Respondent. |
| Court | U.S. District Court — Northern District of New York |
PRISCILLA I. STEWARD, ESQ.
This matter has been referred to this Court for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District Local Rule 72.3(c), by the Hon. Frederick J. Scullin, Senior United States District Judge.
Presently before this Court is the timely Petition of Petitioner Barry D. Irvis, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner brings this proceeding challenging a judgment of conviction entered on August 12, 2008, on Petitioner's June 3, 2008, guilty plea to Rape in the Second Degree (N.Y. Penal Law § 130.30), a Class D Felony, and Attempted Rape in the Second Degree (N.Y. Penal Law §§ 110.00 and 130.30), a Class E Felony, in Greene County Court. (Dkt. No. 9 at 99.)1
Pursuant to a plea agreement, Petitioner, was sentenced as a second felony offender to three and a half to seven years for the crime of Rape in the Second Degree and one and a half years to three years for the crime of Attempted Rape in the Second Degree. Id. at 107. The terms were to run consecutively so that Petitioner's total term of imprisonment would be five to to ten years. Id.
The Appellate Division Third Department ("Appellate Division") unanimously affirmed the judgment of conviction on December 22, 2011, and leave to appeal to the New York Court of Appeals was denied on June 8, 2012. People v. Irvis, 935.Y.S.2d 371 (3rd Dep't 2011), lv. denied, 950 N.Y.S.2d 114 (2012). Petitioner is currently incarcerated in Gowanda Correctional Facility pursuant to the conviction. (Dkt. Entry, July 15, 2015.)
Petitioner has raised numerous grounds for habeas review: (1) his guilty plea was not made voluntarily with an understanding of the consequences; (2) ineffective assistance of counsel; (3) he was denied the right to appeal all issues; (4) his conviction was obtained by evidence gained through an unconstitutional search and seizure; (5 & 11) Penal Law § 130.30 isunconstitutional on the grounds that it does not allow mistake as to the victim's age as a defense, and he was denied a fair trial because he was deprived of the defense; (6) the County Court Judge was biased against him; (7) the District Attorney was biased against him; (8) he was the victim of selective and malicious prosecution because he is Black and the victim is White; (9) he was denied a speedy trial; and (10) he was denied due process in various ways related to the grand jury proceedings and the timing of the suppression hearing in relation to his N.Y. Criminal Procedure Law ("CPL") § 210.30 motion to inspect the grand jury minutes and dismiss the indictment. (Dkt. No. 1 at ¶ 12(A)-(K).)
For the reasons discussed below, the Court recommends that Petitioner's Petition (Dkt. No. 1) be denied and dismissed in its entirety.
On October 5, 2006, after declining his parole officer's request to provide a buccal DNA sample, Petitioner accompanied a New York State Police Investigator to the Catskill Police Department. (Dkt. No. 9 at 9, 16, 20.) The Investigator had learned that a fourteen year old girl, referred to herein as V.C., was pregnant, and that she had engaged in sexual intercourse with Petitioner, who was twenty-nine years old, on several occasions around the time she had become pregnant. Id. at 17-19, 24. The Investigator interviewed Petitioner and asked him to provide a buccal DNA sample to determine if he was the father of V.C.'s child. Id. at 26, 50-51. Although he was initially resistant, Petitioner agreed after numerous requests and signed the consent form. Id. at 26-28, 52, 56-57. The DNA test established Petitioner as the father of V.C.'s baby. (Dkt. No. 10-1 at 107.)
After being interviewed by the Investigator and giving the DNA sample, Petitioner was arrested and arraigned on charges of Rape in the Second Degree and Endangering the Welfare of a Child for allegedly having engaged in sexual intercourse with V.C. (Dkt. Nos. 9 at 19; 10-1 at 64-66, 86, 110, 112.) Petitioner was subsequently indicted on four charges of Rape in the Second Degree (Penal Law § 130.00) and one count of Criminal Sexual Act in the Second Degree (Penal Law § 130.45). Id. at 54-55.
The Greene County Public Defender was assigned to represent Petitioner. (Dkt. No. 10-1 at 41.) In an April 24, 2007, notarized letter to the Hon. Daniel K. Lalor, Greene County Court Judge, Petitioner requested that he be assigned another attorney to represent him because the Public Defender representing him had been the Assistant District Attorney on Petitioner's 1996 drug case, and Petitioner did not believe he had his best interest in mind. Id. Petitioner claimed that the Public Defender was waiting for the present District Attorney to retire so that he could take over, and that he would use Petitioner's case as a stepping stone. Id.
Judge Lalor assigned Petitioner new counsel on or about April 8, 2008. (Dkt. No. 9-3 at 64.) Before being replaced, the Public Defender filed an omnibus motion for inspection of the grand jury minutes and dismissal of the indictment based upon deficiencies; a Sandoval hearing; for discovery and a bill of particulars; and participated in a suppression hearing with regard to statements given to law enforcement personnel, including those given during the October 5, 2006, interview with the Investigator, and the DNA sample. (Dkt. No. 10-1 at 68-69.)
In his April 24, 2007, letter to Judge Lalor, Petitioner also requested a change of venue or the appointment of a judge from another county to hear his case because of Judge Lalor's personal dislike of Petitioner and his family as a result of Petitioner's former relationship with Judge Lalor's sons involving the apparent use and selling of drugs, and Petitioner's father's relationship with the Judge's secretary. (Dkt. No. 10-1 at 41.) However, Judge Lalor continued to preside over the case through Petitioner's guilty plea and sentencing. (Dkt. No. 9 at 78-109.)
A suppression hearing regarding oral and written statements bearing on the indictment given to law enforcement personnel and the question of consent regarding the DNA sample was held in Greene County Court on September 27, 2007. (Dkt. No. 9 at 1-77.) According to testimony by the Investigator, he interviewed Petitioner regarding V.C. after advising him of his Miranda rights. Id. at 21-23. Petitioner testified at the suppression hearing that he was never advised of his Miranda rights, and that he was interviewed in a cold room for three to four hours and given nothing to eat or drink. Id. at 54-55. Petitioner claimed he requested a lawyer and was told by the Investigator he was not under arrest. Id. at 55. Petitioner also testified that he was under the impression that the DNA sample was for a paternity test for Social Services because that is what his parole officer had told him when he was first asked to give a DNA sample. Id. at 70.
According to a January 15, 2008, letter to Petitioner from the Public Defender, who had represented Petitioner at the suppression hearing, Judge Lalor found in his decision on thehearing, which does not appear to be part of the record, that while law enforcement had used deception to obtain the DNA sample, the statement was preceded by Miranda warnings and was therefore admissible. (Dkt. No. 10-1 at 107.) Judge Lalor also found that the deception was not so unfair as to render the DNA results identifying Petitioner as the father of V.C.'s baby inadmissible. Id.
In his April 24, 2007, letter to Judge Lalor, Petitioner also requested the appointment of a prosecutor from another county because the Greene County District Attorney's brother had an order of protection against him, and Petitioner had a parole stipulation to stay away from and have no contact with the brother or his family. (Dkt. No. 10-1 at 42.) In April 2008, the District Attorney filed an application for the appointment of a Special District Attorney to prosecute Petitioner's case. (Dkt. No. 9-3 at 59-60.) The District Attorney stated in the application that he had been advised in a February 11, 2008, letter from Petitioner that one of the conditions of Petitioner's parole in 2000 had been that he stay away from the District Attorney's brother and his family because of threats Petitioner had made to kill them. Id. Judge Lalor granted the request and appointed an attorney from the New York State Prosecutor's Training Institute as Special District Attorney. Id. at 57-58.
Petitioner had remained in jail from the time of his arrest on October 5, 2006, until his June 3, 2008, trial date. (Dkt. No. 10 at 35.) On June 3, 2008, Judge Lalor held a conference at the start of trial. (Dkt. No. 9 at 78-101.) During the conference, Petitioner consented to a plea agreement pursuant to which he pleaded guilty to the first count of the indictment, Rape in theSecond Degree (Penal Law § 130.00) and one count of Attempted Rape in the Second Degree (Penal Law §§ 110.00 and 130.30). Id. at 87, 99. A part of the plea agreement was a waiver by Petitioner of his right to appeal his conviction and sentence. Id. Pursuant to the plea agreement, Petitioner was sentenced as a second felony offender to three and a half to seven years for the crime of Rape in the Second...
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