Moore v. Martuschello
| Decision Date | 23 August 2013 |
| Parties | TERRY MOORE, Petitioner, v. D. MARTUSCHELLO, Superintendent, Coxsackie Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Pro se petitioner Terry Moore, an inmate at the Coxsackie Correctional Facility, brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to vacate his July 28, 2005, conviction for first degree attempted robbery in Supreme Court, Kings County. Pursuant to a plea agreement, Justice Patricia M. DiMango sentenced Moore as a predicate felon to a determinate term of seven years' imprisonment and five years' supervised release. Moore also agreed to waive his right to appeal.
In his petition, Moore argues that: (1) he received ineffective assistance of counsel with regard to his adjudication as a predicate felon; and (2) he was denied due process, equal protection, and proper "jurisdiction" because he did not actually plead guilty to the lesser offense for which he was convicted and sentenced. . For the reasons set for below, the Petition is denied.
Under Kings County Indictment Number 5705/04, Moore was charged with one count of Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law ("P.L.") § 265.01(1)),two counts of Robbery in the First Degree (P.L. § 160.15(4)), two counts of Robbery in the Second Degree (P.L. § 160.10(1)), two counts of Robbery in the Third Degree (P.L. § 160.05), two counts of Grand Larceny in the Fourth Degree (P.L. § 155.30(5)), two counts of Petit Larceny (P.L. § 155.25), two counts of Burglary in the Second Degree (P.L. § 140.25(1)), and two counts of Burglary in the Third Degree (P.L. § 140.20), in connection with two robberies of Brooklyn hair and beauty supply stores. (Aff. of Sholom J. Twersky, dated Mar. 30, 2011, ¶¶ 4-5). In each case, Moore, together with a co-defendant, pointed a gun at the owner and removed money and boxes of hair weave from the store. (P. at 6).1
On December 14, 2004, Moore entered a guilty plea to one count of Robbery in the First Degree in exchange for a promised sentence of seven years' imprisonment. (P. at 4). Moore's plea was made in full satisfaction of the indictment and covered all pending and possibly pending charges against him regarding additional crimes. (P. at 3). At the plea hearing, Justice DiMango asked Moore whether he was pleading guilty freely and voluntarily, (P. at 6), and directed defense counsel to discuss with him the waiver of the right to appeal contained in the plea agreement. (P. at 10). Moore thereafter signed the waiver and indicated to the court that he did so voluntarily, that he understood all of the court's questions, and that his allocution had been truthful. (P. at 10).
On June 23, 2005, Justice DiMango held a hearing during which the prosecutor for the first time indicated that Moore was a predicate felon, so that the minimum sentence for first degree robbery would be eight years - more than the seven years promised in the plea agreement. (H. at 2). Moore, who appeared with a stand-in attorney, said that he did notremember the prior federal offense to which he had pled guilty, but the prosecutor represented to the court that it was pursuant to 18 U.S.C. § 1951, for interference with commerce. (H. at 3). Observing that the prosecutor "probably had no idea about that when we made the offer," Justice DiMango stated that she was prepared to reduce the offense to first degree attempted robbery to preserve the promise of seven years' imprisonment. (H. at 3). The court acquiesced to Moore's request to delay sentencing so that his own attorney could be present. (H. at 3).
On July 28, 2005, Justice DiMango held a sentencing hearing during which defense counsel stated that Moore wanted to withdraw his plea and did not want to "replead" to the lesser offense. (S. at 2). Justice DiMango responded that "actually that's not a reason for a plea back, for him to get a lesser count." (S. at 2). The court initially indicated that Moore would immediately proceed to trial with his co-defendant. (S. at 4). After brief recess, however, the court engaged in the following exchange with Moore and his trial counsel, Joyce David:
(S. at 5-6). The court clerk also presented Moore with a statement by the District Attorney that Moore had been convicted and sentenced on a prior felony in federal court, explaining that Moore had the option of admitting, denying, or standing mute as to whether he was the person so convicted. (S. at 8). Moore indicated that he wished to stand mute. (S. at 9). Justice DiMango thereupon imposed the sentence of seven years' imprisonment and five years' post-release supervision, and adjudicated Moore a second felony offender. (S, at 9).
On December 6, 2006, Moore filed an affidavit (Docket No. 10-2 at 24-33 ("Moore 440")) in support of his pro se N.Y. C.P.L. § 440.20 motion to set aside his sentence. Moore argued that his plea agreement and resulting sentence were "illegal" because he had pled guilty to first degree robbery, not attempted first degree robbery, and that he should have been allowed to plead anew or proceed to trial. (Moore 440 at 3). Moore requested that the court set aside his sentence or, in the alternative, allow him to plead instead to first degree attempted robbery and be resentenced to the statutory minimum for that offense. (Moore 440 at 7). The State opposed the motion, arguing that the trial court had the inherent power to modify the judgment where Moore received the bargained-for sentence and the benefit of a reduced conviction. (Docket No. 10-2 at 35-41).
On December 21, 2007, Justice DiMango issued a decision and order (Docket No. 10-2 at 52-55 ("DiMango D&O")) denying Moore's motion. The court found that "it was able to fulfill its sentencing promise by substituting a less serious offense to assure the legality of the sentence without prejudicing the defendant," and that Moore therefore "received the precise sentence for which he bargained and the clear purpose and intent of the plea agreement was satisfied." (DiMango D&O at 2-3) (emphasis in original). On February 11, 2008, Moore sought leave toappeal the D&O, but the Appellate Division, Second Department ("Appellate Division"), denied his application. (Docket No. 10-2 at 76).
In March 2008, Moore filed a direct appeal through counsel in the Appellate Division. (Docket No. 10-3 at 1-20 ("Appeal Mem.")). His appellate counsel raised a single question: "Whether [Moore's] adjudication as a second felony offender was illegal because his federal conviction . . . encompassed conduct that did not constitute a felony in New York." (Appeal Mem. at 2). Although appellate counsel acknowledged that such a claim, which was unpreserved, would not be exempt from the rules of preservation, she argued that the Appellate Division should nevertheless reach the issue "in the interest of justice." (Appeal Mem. at 13-14). She further contended that Moore's waiver of his right to appeal should not preclude consideration of the issue and that, "[i]n any event, [Moore] was denied his Sixth Amendment right to the effective assistance of counsel when his attorney failed to assert that the federal crime of which he had been convicted was not the equivalent of a New York felony for predicate purposes." (Appeal Mem. at 16).
On December 15, 2008, Moore filed a pro se supplemental brief, (Docket No 10-4 at 15-30 ("Supp. Appeal Mem.")), with permission of the court, asserting that his conviction was illegal because "it was obtained without the entry of a plea of guilty" to attempted robbery and that it violated his Fifth Amendment right to due process, his Sixth Amendment right to trial by jury, and New York State criminal procedure, (Supp. Appeal Mem. at 4). He asked the court to reverse his conviction and dismiss the indictment or, in the alternative, to resentence him to the minimum allowed by the statute, insisting that "[s]ince there was a reduction in the grade of conviction, there should also be a reduction in the sentence." (Supp. Appeal. Mem. at 9).
On November 17, 2009, the Appellate Division affirmed the judgment of conviction, finding that Moore's waiver of his right to appeal was valid. People v. Moore, 67 A.D.3d 930, 930 (2nd Dep't 2009). Focusing on his allegations of ineffective assistance, the Appellate Division wrote that the "valid waiver of his right to appeal precludes appellate review of his contention that he was denied the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of the plea." Id. 930. The Appellate Division found that even if Moore were challenging his plea as involuntary, he "received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel." Id. at 931. With regard to Moore's remaining claims - raised...
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