Magee v. Romano

• Decision Date: 16 September 1992
• Docket Number: No. CV 91-0387.,CV 91-0387.
• Citation: 799 F. Supp. 296
• Parties: Gary MAGEE, Petitioner, v. Salvatore ROMANO, Warden, Suffolk County Jail, Respondent.
• Court: U.S. District Court — Eastern District of New York

799 F. Supp. 296

Gary MAGEE, Petitioner, v. Salvatore ROMANO, Warden, Suffolk County Jail, Respondent.

No. CV 91-0387.

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

September 16, 1992.

Gary Magee, pro se.

James Catterson, Suffolk County Dist. Atty. by Michael Blakey, Riverhead, N.Y., for respondent.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Gary Magee ("petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following his arrest for selling cocaine to an undercover police officer, petitioner was charged with Criminal Possession of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Laws §§ 220.16 and 220.39, respectively. Petitioner subsequently entered into a plea agreement in which he pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree and waived his right to appeal in return for a four to eight year prison sentence. He now challenges that conviction on the grounds that (1) it was obtained by a guilty plea which was unlawfully induced or made involuntarily, without an understanding of the plea and its consequences; (2) he was denied effective assistance of counsel; (3) he was improperly denied substitute counsel; and (4) he was denied the right to appeal. For the reasons stated below, the petition is denied.

I. BACKGROUND

Petitioner was arrested on August 25, 1990, after he sold cocaine to an undercover police officer. On August 31, 1990 he was indicted on two class B felonies: Criminal Possession of a Controlled substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree. As a predicate felony offender under Penal Law § 70.06, petitioner risked receiving a sentence of at least six to fifteen years in prison. Rather than proceed to trial, he entered into an agreement in which he pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, a class C felony. In return for a four to eight year prison sentence, he waived his right to appeal except on grounds of excessiveness of sentence or jurisdiction of the court.

Before accepting petitioner's plea, the state court directly inquired as to whether petitioner understood the consequences of the plea bargain:

MISS HOFFMAN (attorney for the state): Your Honor, the People would consent to that application, with the understanding that at the time of sentence, the defendant be sentenced to an indeterminate period, the maximum being eight years, the minimum being four years, and he waive any right to appeal.

THE COURT: Four to eight would mean the defendant is a predicate felony offender.

MR. SILVERMAN (attorney for petitioner): Yes, he is.

THE COURT: An authorized disposition of sentence if the defendant is a predicate felony offender.

MR. SILVERMAN: Yes, I believe him to be a predicate felony offender, Your Honor.

THE COURT: Mr. Magee, did you hear what your lawyer said?

THE DEFENDANT: I heard what he said.

THE COURT: You heard what she said.

THE DEFENDANT: Uh-huh.

THE COURT: And it's a negotiated plea. You're waiving your right to appeal, and that you wish to enter a plea to this charge of Attempted Criminal Sale of a Controlled Substance in the Third Degree, a Class C Felony; is that correct, "C"?

MR. SILVERMAN: Reduced to a C Felony.

THE DEFENDANT: Yeah.

THE COURT: You understand?

THE DEFENDANT: Yeah.

THE COURT: I want you to understand fully that by pleading guilty, you are waiving and giving up your right to a jury trial and to confront, that is, cross examine, the witnesses against you. You understand?

THE DEFENDANT: I understand.

THE COURT: Further, that by pleading guilty, you're waiving, giving up, your right against self-incrimination, which means you must tell us what occurred at or about the time the incident happened, on the record, under oath; you understand that?

THE DEFENDANT: I understand that.

THE COURT: Are you willing to do that? Are you willing to do that?

THE DEFENDANT: Yeah. If I know what happened, I'll say what happened.

THE COURT: Well, if you can't tell us what happened, then we will require a trial.

People v. Magee, Indictment No. 1624-90, Transcript of Plea Agreement (County Court, Suffolk County, January 7, 1991) at pp. 2-4.

MISS HOFFMAN: Mr. Magee, in the presence of your attorney, do you now waive any right to appeal this conviction?

THE DEFENDANT: You say I can't appeal this?

MISS HOFFMAN: Except on the grounds of excessiveness of sentence or jurisdiction of the Court, do you agree not to waive this plea — appeal this plea, rather?

(Discussion, off the record between Mr. Silverman and the defendant).

THE DEFENDANT: For today, yeah, I'm waiving my right. I — yeah, I'm waiving my rights.

MISS HOFFMAN: Is that for today, did you indicate?

THE DEFENDANT: I said — you said — you asked me the question, right?

MISS HOFFMAN: Do you agree to waive any rights to appeal this conviction?

THE COURT: You understand you're giving it up for all time? You understand that?

THE DEFENDANT: This turned into a joke.

THE COURT: This is not a game. Be careful, now, friend.

THE DEFENDANT: This turned into a joke.

THE COURT: Be careful. It could be a very, very serious situation for you. Do you waive that right to appeal for all time?

THE DEFENDANT: Yeah, I'm waiving the right.

Id. at 11-12.

In addition, at the time of sentencing, the trial court advised petitioner that he had thirty days in which to file an appeal as to the judgment and sentence. People v. Magee, Indictment No. 1624-90, Transcript of Sentencing (County Court, Suffolk County, February 14, 1991). Petitioner subsequently moved for assignment of counsel and for an extension of time in which to file an appeal. An attorney from the Legal Aid Society was assigned to the case but was permitted to withdraw because of a conflict of interest which arose due to petitioner's expressed dissatisfaction with the Legal Aid attorney who represented him before the trial court. Subsequently, another attorney was assigned to the case and he filed a brief which stated that no non-frivolous issues could be presented on appeal based on the record below. Petitioner made no further attempt to appeal his case in the state system.

Petitioner now bases his claim of ineffective assistance of counsel solely on the allegation that his trial attorney consistently urged him to plead guilty rather than go to trial.

II. DISCUSSION

A. Effect of Petitioner's Waiver of Appeal

Before a federal court may grant a writ of habeas corpus, a petitioner must first exhaust all available remedies in the state court system. 28 U.S.C. § 2254(b), (c); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). A petitioner does not satisfy this exhaustion requirement if the claims raised in his petition have not been "fairly presented" to the state courts. Id. To fairly present his federal claims, a petitioner must have set forth in state court all the essential factual and legal allegations raised in his federal petition. Otherwise the state court has not had a fair opportunity to rule on his claims. Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2nd Cir.1982).

Petitioner in the instant case has not presented any of his claims to the state appellate courts prior to his filing for federal habeas relief. Moreover, respondent contends that even if petitioner could have challenged the voluntariness of his plea bargain in state court, his failure to do so prior to bringing this habeas petition closed the door on any possible federal remedy.

Respondent argues that petitioner's waiver of his right to a state appeal was deliberate: voluntary, knowing and made under advice of competent counsel. Therefore, respondent contends, this Court should apply the test articulated in Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963) which states that when a petitioner has deliberately bypassed the state courts, a federal habeas judge maintains the discretion to deny that party relief, rather than apply the "cause-and-prejudice" standard established in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Jackson v. Cupp, 693 F.2d 867, 870 (9th Cir.1982) (when a petitioner's failure to appeal is a deliberate bypass, there is no need for a cause-and-prejudice analysis); Ashby v. Wyrick, 693 F.2d 789, 794 n. 7 (8th Cir. 1982) (same).¹

In general, a criminal defendant may waive his right to appeal as a condition of a plea bargain. United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992); People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 972, 541 N.E.2d 1022, 1026 (1989),² and the waiver is enforceable if it is voluntarily and knowingly made. Rutan, 956 F.2d at 829. Although a waiver prevents a criminal defendant from taking a direct appeal on most grounds, it does not prevent him from challenging the voluntariness of his plea. Such a claim may not be waived. Seaberg, 543 N.Y.S.2d at 971-72, 541 N.E.2d 1022.

A significant factor in determining the voluntariness of a plea is whether the plea was based on the advice of competent counsel. Wilbright v. Smith, 745 F.2d 779, 781 (2d Cir.1984); see also Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) (applying Strickland test for ineffective assistance of counsel to challenge to guilty plea). Because petitioner's first two claims: (1) that his guilty plea was unlawfully induced or involuntarily made without an understanding of the charge and the consequences of the plea; and (2) that he was denied the effective assistance of counsel, both go to the voluntariness of his guilty plea, his waiver of his right to appeal would not have encompassed these claims. Thus, petitioner could have raised these challenges to his guilty plea on the state appellate level.

Under these facts, and especially considering that petitioner was specifically informed by counsel for the state during the hearing...