Merritt v. Berbary
| Decision Date | 09 January 2012 |
| Docket Number | No. 10-CV-0958(MAT),10-CV-0958(MAT) |
| Parties | ELISHA MERRITT, Petitioner, v. JAMES BERBARY, Respondent. |
| Court | U.S. District Court — Western District of New York |
Elisha Merritt ("Merritt" or "Petitioner") has filed a pro se habeas corpus application pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered on July 13, 2007, in Chemung County Court of New York State. Petitioner was convicted, based on his guilty plea, of Criminal Possession of a Weapon in the Third Degree (New York Penal Law ("P.L.") § 265.02(1)), and Criminal Sale of a Controlled Substance in the Third Degree (P.L. Law § 220.39(1)). Pursuant to the plea agreement, he was sentenced to an indeterminate sentence of two to four years for the weapons-possession conviction, to be served concurrently with a ten-year determinate sentence for the controlled substance conviction, and two years of post-release supervision.
On November 8, 2006, in a parking lot on College Avenue in the City of Elmira, Petitioner sold cocaine to another individual. On November 28, 2006, Petitioner sold cocaine again at that same location. Petitioner was not arrested after these transactions. However, on December 23, 2006, Petitioner was arrested based on an incident in which he displayed a pistol. Two separate indictments followed, charging him with third degree criminal possession of a weapon, second degree menacing, unlawful possession of marihuana, tampering with physical evidence, seventh degree criminal possession of a controlled substance, and two counts of third degree criminal sale of a controlled substance.
On June 20, 2007, after conferring with counsel, Petitioner agreed to plead guilty to third degree criminal possession of a controlled substance and third degree criminal possession of a weapon, in full satisfaction of both indictments. In return for his guilty plea, Petitioner was promised a second-felony-offender indeterminate sentence of 2 to 4 years for the weapons-offense, to be served concurrently with a determinate ten-year prison sentence for the controlled substance offense, in addition to two years of post-release supervision. Additional facts concerning Petitioner's plea and direct appeal are discussed below.
Petitioner filed his initial habeas petition in this Court on November 21, 2010. By Order dated February 24, 2011, the Courtgranted Petitioner leave to withdraw an unexhausted ineffective assistance of appellate counsel claim asserted in his initial petition and to file an amended petition (Docket No. 4). In his amended petition, Petitioner claims that his conviction should be vacated because (1) the prosecution committed a Brady1 violation by not disclosing certain audiotape recordings of the drug sales; (2) Petitioner was denied his right to a speedy trial; (3) the grand jury returned indictments based on insufficient evidence; (4) defense counsel was ineffective because she did not (a) investigate the facts of Petitioner's case before recommending that Petitioner plead guilty, and (b) examine the audio recordings or documentation to verify whether it was Petitioner who made the drug sales; (5) Petitioner's plea was not knowingly and intelligently made; (6) the trial court committed misconduct because (a) it did not adequately inquire into Petitioner's claim that he did not trust his attorney and that she was not working in his best interest, (b) did not replace Petitioner's counsel, and (c) allowed the prosecutor to withhold exculpatory material, presumably the recordings pertaining to the drug sales; and (7) the Appellate Division failed to specifically address the points raised in Petitioner's pro se supplemental brief.
Respondent has opposed the petition on the merits and also has raised the defense of non-exhaustion. Petitioner, in his traverse,argues that he has fairly presented his claims to the state courts. The circumstances pertaining to the issue of exhaustion are rather unique. Because Petitioner's contentions are so plainly without merit, the Court, in the interest of judicial economy, addresses the substance of his claims instead of attempting to unravel the thornier questions of exhaustion and procedural default. See Mallet v. Miller, (citing Cox v. Miller, 296 F.3d at 101 (2d Cir. 2002)); see also See 28 U.S.C. § 2254(b)(2) ().
A guilty plea operates as a waiver of important constitutional rights, and is valid only if done knowingly, intelligently, and voluntarily "'with sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). "[A] plea's validity may not be collaterally attacked merely because the defendant made what turned out, in retrospect, to be a poor deal." Bradshaw, 545 U.S. at 186 (citations omitted). Rather, a defendant may challenge the validity of his guilty plea only if can show either that he entered into the unfavorable deal due to constitutionally-defective advice from counsel or that hecould not understand the terms of the bargain. Id. (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)).
To prevail on a claim of ineffective assistance of counsel, the defendant must meet the two-pronged standard of (1) showing that counsel's conduct falls below "an objective standard of reasonableness" under "prevailing professional norms" and (2) affirmatively proving prejudice, that is, demonstrating a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In the context of a guilty plea, the criminal defendant must also show a reasonable possibility that but for counsel's errors, the outcome would have been different-i.e., that he would not have pleaded guilty and would likely have been acquitted at trial, or would have received a significantly more favorable sentence. Hill v. Lockhart, 474 U.S. 52, 59-60 (1985); accord Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008).
A court may ascertain that a defendant "knowingly" and "voluntarily" entered into the plea agreement from, among other things, his allocution statements. E.g., United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001). As such, statements made by a defendant at a plea allocution carry a "strong presumption of veracity." United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) ().
After reviewing the transcript of Petitioner's plea hearing, the Court is convinced that Petitioner entered his guilty plea with an awareness of the rights he was waiving and the consequences of foregoing a trial. There is no indication that Petitioner has any cognitive defects or was not in possession of his faculties on the day of his plea. To the contrary, the record reveals that Petitioner presented himself as an intelligent young man.
The trial court ensured that Petitioner understood the terms of the plea offer. Defense counsel represented that she had spoken to Petitioner about the offer, and Petitioner confirmed that he had had sufficient time to confer with her. During the course of the plea allocution, Petitioner affirmed his understanding that by pleading guilty, he was giving up his privilege against self-incrimination, his right to confront and cross-examine the witnesses against him, and his right to present evidence and to testify on his own behalf. Petitioner also confirmed that no one had threatened him or coerced him into accepting the plea offer.
Although not required by due process, Petitioner's plea allocution also established that there was a factual basis for his plea. See Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984)( that "due process does not mandate a factual basis inquiry by state courts") (citations omitted). Petitioner admitted that he possessed a .40-caliber Smith and Wesson semi-automatic handgun which he was not licensed to possess, and that he had previously been convicted of third-degree robbery on December 18, 2000. Petitioner also admitted that on November 8, 2006, he sold cocaine to another person in exchange for money.
Petitioner's contentions concerning defense counsel's performance-that she was ineffective because she did not adequately investigate the facts of the case before recommending that Petitioner plead guilty or examine the audio recordings to verify whether the seller recorded on the tapes was Petitioner-are without merit. First, Petitioner has not provided any particulars as to how counsel's investigation was deficient. Review of the record refutes this claimed lack of preparation.
The record indicates that a week before Petitioner's trial was to commence, counsel negotiated the early disclosure of discovery material, including various reports, as well as the grand jury testimony of certain police officers. With that information, defense counsel was in a position to intelligently advise Petitioner about his options when she discussed the plea offer with him. At no point during the plea proceedings did Petitioner complain that defense counsel refused to engage in sufficientpre-plea investigation. Nor did petitioner raise such a complaint at his sentencing on July 13, 2007.
Given his lengthy criminal record, the plea agreement negotiated by counsel was favorable with regard to Petit...
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