Murden v. Artuz

• Decision Date: 07 September 2001
• Docket Number: No. 98-CV-2619.,98-CV-2619.
• Citation: 253 F.Supp.2d 376
• Parties: Stanford MURDEN, Petitioner, v. Christopher ARTUZ, Respondent.
• Court: U.S. District Court — Eastern District of New York

253 F.Supp.2d 376

Stanford MURDEN, Petitioner, v. Christopher ARTUZ, Respondent.

No. 98-CV-2619.

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

September 7, 2001.

COPYRIGHT MATERIAL OMITTED

Stanford Murden, Collins, NY, for Petitioner.

ORDER

GERSHON, District Judge.

Stanford Murden brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions in the New York State Supreme Court, Kings County, of arson in the second degree and murder in the second degree.

Petitioner pleaded guilty to the charge of arson in the second degree on February 5, 1982. During his plea allocution, petitioner stated that, on July 15, 1981, he started a fire at 306 Montauk Avenue in Brooklyn by lighting some clothing with a match in a second floor apartment. Petitioner was sentenced on June 8, 1982 to a term of imprisonment of seven and one half to 15 years.

On December 6, 1983, Wendy Kornegay died from injuries, which, according to the State, were causally related to the fire at 306 Montauk Avenue. In order to escape the fire, Ms. Kornegay had jumped from a window in her third-floor apartment. She remained hospitalized until her death over two years later. After Ms. Kornegay died, the State charged petitioner with two counts of murder in the second degree (one count of felony murder and one count of depraved indifference murder), and, following a jury trial, petitioner was convicted on the felony murder count.¹ The State argued at trial that the arson was the underlying felony that had caused Ms. Kornegay's death, and petitioner's plea allocution was admitted into evidence. On April 25, 1985, petitioner was sentenced to a term of imprisonment of 25 years to life to run concurrently with his sentence on the prior arson conviction.

The instant petition was received by the pro se clerk's office on April 6, 1998. Petitioner raises the following claims: (1) that his plea on the arson charge was not voluntary and, therefore, that his plea allocution should not have been admitted at the subsequent murder trial; (2) that the Double Jeopardy Clause was violated because he was prosecuted for two crimes arising out of the same incident; (3) that the State failed to prove beyond a reasonable doubt that the arson had caused Ms. Kornegay's death; (4) that the trial court made various errors in its final charge to the jury; and (5) that he was deprived of the effective assistance of counsel. For the following reasons, the petition is denied.²

Voluntariness of Petitioner's Plea

Petitioner argues that his decision to plead guilty on the arson charge was not made voluntarily because he did not know that the plea could be used against him in a subsequent murder prosecution. As a result, he claims that the plea allocution should not have been admitted at trial.

Petitioner raised this claim initially through counsel in 1995 in a motion to vacate his murder conviction pursuant to N.Y.Crim. Proc. Law § 440.10. He supported the motion with a copy of the plea minutes and his sworn affidavit, in which he stated the following:

At no time before I was sentenced for arson in the second degree was I fully apprised of the consequences of pleading guilty. [Defense counsel], the District Attorney, and Judge Egitto all failed to inform me that I could be convicted again for another offense that might arise in the future from the July 15, 1981 fire. In fact, I believed that I could never again be charged and convicted for any crime stemming from this incident ...

Furthermore, I was not told that my plea to arson could be used against me at a later murder trial arising from the very same incident to which I plead guilty ...

If my attorney, the District Attorney or the court would have disclosed to me what the consequences of my plea were, I would not have plead guilty to arson in the second degree.

In a decision dated June 19, 1997, New York Supreme Court Justice Larry D. Martin wrote that he was

persuaded that Defendant was not advised that his plea allocution could be used against him in a subsequent murder trial. Defense counsel submitted a copy of the plea minutes. There is no indication on the record that such a possibility was discussed. The judge did advise the Defendant of a number of rights that he was giving up, among them his right to remain silent but without any indication that his waiver of that right might expose him to the use of his admissions at such a subsequent trial.

Justice Martin explained that he "would feel constrained to ... vacate the judgment" based on the authority of People v. Latham, 234 A.D.2d 864, 652 N.Y.S.2d 328 (3d Dep't 1996).³ However, considering that petitioner's videotaped confession to the arson (which was determined by the trial court to be voluntary on the basis of a pretrial evidentiary hearing) had also been admitted at trial, Justice Martin concluded that the introduction of petitioner's plea allocution "was merely duplicative" and denied petitioner's motion. On November 17, 1997, the Appellate Division denied petitioner's application for leave to appeal.

A plea of guilty "`entered by one fully aware of the direct consequences' of the plea is voluntary in a constitutional sense `unless induced by threats ..., misrepresentation ..., or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business.'" Bousley v. United States, 523 U.S. 614, 619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The Second Circuit has held that "[c]ertain possible consequences of a guilty plea are collateral rather than direct" and that these collateral consequences "need not be explained to the defendant in order to ensure that the plea is voluntary." United States v. Salerno, 66 F.3d 544, 550-51 (2d Cir.1995) (quoting United States v. United States Currency, 895 F.2d 908, 915 (2d Cir.1990)) (internal quotations omitted). "[W]hether a consequence of a plea is direct or collateral depends on whether the undesired consequence is `definite, immediate, and largely automatic'" Salerno, 66 F.3d at 551 (quoting United States Currency, 895 F.2d at 915).

Petitioner argues that the subsequent use of his plea allocution was a direct consequence of his plea and that the fact that he was never advised of this consequence rendered the plea involuntary. When evaluating this claim, I treat as presumptively correct Justice Martin's factual finding that petitioner was not advised that his plea allocution could be used against him in a subsequent murder trial. See 28 U.S.C. § 2254(e)(1). With respect to the legal question whether the use of petitioner's plea allocution under these circumstances violated his federal constitutional rights, I review Justice Martin's decision only to determine whether it involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).

The Supreme Court has never held that federal due process requires a defendant to be advised that his guilty plea may be used against him in a subsequent criminal prosecution. For that reason alone, petitioner's claim may be denied. See Mask v. McGinnis, 252 F.3d 85, 89-90 (2d Cir. 2001) ("petitioner is entitled to habeas relief only upon a showing that the state courts unreasonably applied clearly established Supreme Court precedent") (emphasis in original).

Nor, for that matter, has petitioner identified any decision of any federal court that has addressed this question. Indeed, the Second Circuit rejected a similar claim in United States v. Persico, 774 F.2d 30, 33 (2d Cir.1985), a case construing the requirements of Fed.R.Crim.P. 11. After explaining that Rule 11 "requires advice concerning only the direct consequences of a guilty plea," the Second Circuit concluded that Rule 11 did not require a federal district court to advise the defendants that the crimes to which they had pleaded guilty could be used as predicate acts in a subsequent RICO prosecution. Id.

There is no reason to reach a different result in petitioner's case. Although I recognize that, unlike the defendants in Persico, petitioner did not have to take any action other than to plead guilty before he faced the consequence of his plea, see Persico, 774 F.2d at 33 (Rule 11 "in no event requires advice that the conduct underlying the plea may become a predicate act for criminal offenses continued by the defendant after the date of such conduct"), the use of his allocution in a separate proceeding does not qualify as "automatic" under Second Circuit law. See United States Currency, 895 F.2d at 916 n. 7 (explaining that civil forfeiture is not an automatic consequence of a guilty plea because it can occur only after a separate proceeding in which the defendant is given an opportunity to present evidence that the property should not be forfeited). Nor was the subsequent use of petitioner's plea allocution an "immediate" or a "definite" consequence of his plea. Salerno, 66 F.3d at 551 (quoting United States Currency, 895 F.2d at 915). Indeed, it was contingent upon, not only the death of Wendy Kornegay over two years after petitioner pleaded guilty to arson, but also the independent decision of the State to prosecute petitioner for her murder. Under these circumstances, I cannot conclude that due process required either the court or counsel to foresee that petitioner's plea allocution might be used against him in a subsequent murder trial and to inform him of that possibility. Cf. Pet'r Reply Mem. in Supp. of § 440.10 Mot. at 3 n. 1 (acknowledging that, at the time he pleaded guilty to arson, it "was unlikely that a homicide proceeding would be held" because "for two years after the incident, there was no indication that Wendy Kornegay would die from the injuries she allegedly sustained as a result of the fire"). Therefore, it was objectively...