Larweth v. Conway

• Decision Date: 29 June 2007
• Docket Number: No. 04-CV-0050(VEB).,04-CV-0050(VEB).
• Parties: Dennis LARWETH, Petitioner, v. John CONWAY, Respondent.
• Court: U.S. District Court — Western District of New York

493 F.Supp.2d 662

Dennis LARWETH, Petitioner, v. John CONWAY, Respondent.

No. 04-CV-0050(VEB).

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

June 29, 2007.

COPYRIGHT MATERIAL OMITTED

Dennis Larweth, Attica, NY, Pro se.

Darren Longo, Office of the New York State Attorney General, Buffalo, NY, for Respondent.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

I. Introduction

Dennis Larweth ("Larweth"`or "petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on August 6, 2001, in Cattaraugus County Court following a guilty plea to one charge of attempted assault in the first degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

II. Factual Background and Procedural History

The conviction here at issue stems from the beating inflicted by Larweth upon his girlfriend, Carol Doak ("Doak" or "the victim") on February 28, 2001. On that date, Larweth entered Doak's home and punched and kicked her repeatedly, primarily in the head and face. See Exhibit ("Ex.") D at 6-7, Respondent's Appendix of Exhibits ("Resp't Ex."). Doak sustained serious injuries, including a fractured maxillary sinus and orbital wall, a blow-out fracture of the orbital floor, a hematoma of the left adenoid and maxillary sinuses, and multiple bruises and abrasions. See Resp't Ex. B at 47-48. Larweth was indicted on one count of first degree burglary (N.Y. Penal Law § 140.32(2)), a class B felony; and two counts of first degree assault (N.Y. Penal Law § 120.10(1), (4)), a class B felony. On June 18, 2001, petitioner accepted an offer to plead guilty to one count of attempted first degree assault in full satisfaction of the indictment in exchange for a waiver of his appellate rights and a sentencing cap of twelve years. See Resp't Ex. D at 2-6. On August 1, 2001, the prosecutor filed its notice of intent to request that Larweth be sentenced as a second felony offender. See Resp't Ex. B at 73. Sentencing took place on August 6, 2001, and the trial court imposed the agreed-upon sentence of a determinate term of twelve years, in accordance with the prosecutor's sentencing promise. See Resp't Ex. E at 6. On August 9, 2001, Larweth filed a pro se motion to vacate his sentence pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20, alleging that (1) his due process rights were violated at sentencing by "`Jenna's Law', (post supervision) [sic]"¹ (2) his predicate felony status was obtained in violation of his constitutional rights; and (3) his guilty plea was involuntary. See Resp't Ex. B at 122; see also Petitioner's Traverse ("Tray.") at 5, ¶ 11 (Dkt.# 10). The trial court denied the motion on September 7, 2001. See Resp't Ex. B at 124-25. Leave to appeal the denial of this motion was denied by the Appellate Division.

On September 30, 2001, the Appellate Division, Fourth Department, of the New York State Supreme Court denied Larweth's application to proceed in forma pauperis because defense counsel had failed to file a notice of appeal. Thereafter, Larweth filed an application for permission to file a late appeal, which was granted. The Appellate Division directed new defense counsel to file and serve a late notice of appeal on or before January 21, 2001. On or about September 22, 2002, appellate counsel filed a brief on behalf of Larweth, arguing that (1) "[a]s [petitioner's] plea bargain was not properly enforced, his waiver of his right to appeal is unenforceable and he must be allowed to withdraw his plea of guilty" or be excused from his appellate-rights waiver; (2) the plea colloquy did not establish the requisite element of a "dangerous instrument" for purposes of N.Y. Penal Law § 120.10(1) (assault with intent to cause serious physical injury by means of a deadly weapon or dangerous instrument); (3) petitioner's plea was not knowing and voluntary because he was not informed of the five-year period of post-release supervision mandatorily added to his determinate twelve-year term of incarceration; (4) the trial court erred in sentencing petitioner as a predicate felon (second felony offender); and (5) his twelve-year determinate sentence was harsh and excessive. See Resp't Ex. A.

The People, in opposition, argued that as to his first claim regarding the performance of his plea bargain, his failure to move to withdraw the plea rendered the issue unpreserved and, in any event, the claim was without merit since the period of post-release supervision was not within the control of the sentencing court, the court did not violate its part of the plea bargain. Accordingly, the People, argued, there was no basis to release Larweth from his agreed-upon waiver of his appellate rights. The People argued that the issue relating to factual insufficiency of the plea colloquy was encompassed within his valid waiver of his appellate rights. As to the claim that his plea was involuntary due to the trial court's failure to inform him of the period of post-release supervision, the People asserted the lack of preservation based on petitioner's failure to move to withdraw his plea, as well as the appellate rights waiver. The People further contended that petitioner was properly adjudicated as a second felony offender, and that his agreed-upon sentence was neither harsh nor excessive. See Resp't Ex. F.

The Appellate Division unanimously affirmed Larweth's conviction on March 21, 2003. People v. Larweth, 303 A.D.2d 1029, 756 N.Y.S.2d 815 (App.Div. 4th Dept.2003); Resp't Ex. G. Leave to appeal to the New York State Court of Appeals was denied. People v. Larweth, 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294 (N.Y.2003); Resp't Ex. H.

Larweth then moved, pro se, to vacate the judgment pursuant to C.P.L. § 440.10 on September 19, 2003, arguing that (1) trial counsel was ineffective because he "completely failed to advise defendant of post-release supervision; to the very contrary, defense counsel mis-advised defendant that he would receive an indeterminate sentence of 12 years at top, and his minimum jail time would be 4 to 12 years" and that (2) trial counsel was ineffective in failing to move to withdraw the plea or to file a notice of appeal despite being requested to do so. See Resp't Ex. I. The trial court denied the motion on October 21, 2003, stating that it did "not understand why failing to advise a pleading defendant of the period of post-release supervision after a determinate sentence is any different than advising a defendant of parole supervision after an indeterminate sentence." Resp't Ex. K at 2. The trial court noted that "some courts have apparently held that defendants must be told of the parole supervision period after a determinate sentence is served," it did "not see a distinction." Id. at 3. Finally, the trial court stated that it was "unaware of any authority holding the failure to advise a defendant of a period of post-release supervision, even if that were the case, rises to the level of ineffective assistance of counsel." Id. Accordingly, the trial court held, the C.P.L. § 440.10 motion was "in all respects denied." Id. Petitioner sought leave to appeal the denial of the C.P.L. § 440.10 motion. See Resp't Ex. L. The People opposed this application. See Resp't Ex. L.

This habeas petition followed in which Larweth claims the following grounds for relief, all of which were raised on direct appeal or in support of his collateral motions for vacatur: (1) the mandatory period of post-release supervision renders his plea bargain not properly enforceable because he cannot receive his bargained-for twelve-year sentence; (2) his plea colloquy did not establish the "dangerous instrument" element of the offense of attempted first degree assault with a deadly weapon or dangerous instrument; (3) his plea was not knowing and voluntary because the trial court erred in failing to inform him, prior to his plea, of the mandatory five-year period of post-release supervision to be added to his sentence; (4) the trial court erred in sentencing him as a predicate felon (second felony offender); (5) trial counsel was ineffective in failing to inform him that his sentence contained a mandatory five-year period of post-release supervision; (6) trial counsel was ineffective because he falsely represented that petitioner only would have to serve 4 years of an indeterminate sentence; and (7) trial counsel was ineffective in failing to move to withdraw the plea or to file a notice of appeal. See Petition ("Pet.") at 7-8, and unnumbered page titled "Additional Grounds" (Dkt.# 1). Respondent concedes that all of the grounds raised in Larweth's habeas petition are fully exhausted pursuant to 28 U.S.C. § 2254(b)(1). Respondent's Memorandum of Law ("Resp't Mem.") at 4 (Dkt.# 8). For the reasons set forth below, Larweth's petition for a writ of habeas corpus is granted in part and denied in part.

III. Discussion

A. Standard of Review

The filing of Larweth's petition postdates the amendment of the federal habeas corpus statute on April 24, 1996, by the enactment of the Anti-terrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to AEDPA, when a state court has adjudicated a habeas petitioner's claims on the merits, habeas relief may not be granted unless the state court's holding was contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or was based on unreasonable determination of the facts in light of the evidence presented in petitioner's state court proceeding. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In order to grant, the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial...