Parker v. Phillips

• Decision Date: 08 June 2010
• Docket Number: No. 04-CV-0826(VEB),04-CV-0826(VEB)
• Citation: 717 F.Supp.2d 310
• Parties: Jonathan PARKER, Petitioner, v. William PHILLIPS, Respondent.
• Court: U.S. District Court — Western District of New York

717 F.Supp.2d 310 Jonathan PARKER, Petitioner, v. William PHILLIPS, Respondent. No. 04-CV-0826(VEB). United States District Court, W.D. New York. June 8, 2010.

Jonathan Parker, Stormville, NY, pro se.

Donna A. Milling, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Jonathan Parker ("Parker" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial on charges of murder and attempted murder. The parties have consented to disposition of the this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).

II. Background

Parker was indicted by an Erie County Grand Jury on charges of Murder in the First Degree (New York Penal Law ("P.L.") § 125.27(1), Murder in the Second Degree (P.L. § 125.25(1)), Attempted Murder in the First Degree (P.L. §§ 110.00, 125.27(1)), Attempted Murder in the Second Degree (P.L. §§ 110.00, 125.25(1)), Aggravated Assault on a Police Officer (P.L. § 120.11), Assault in the First Degree (P.L. § 120.10(1)), Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03) and Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(4)). The charges arose from an incident in which Buffalo Police Officer Charles McDougald was fatally shot, and his partner, Buffalo Police Officer Michael Martinez, was shot in the foot, on April 9, 1997, in the City of Buffalo. The Erie County District Attorney filed a notice of intent to seek the death penalty. New York's death penalty statute authorizes a prosecutor to file a notice of intent to seek the death penalty against a defendant charged with murder in the first degree. See N.Y. Penal Law § 125.27; N.Y. Crim. Proc. Law § 250.40. Upon conviction by a jury, a capital defendant faces a separate sentencing proceeding before a jury to determine whether the penalty imposed will be death or life imprisonment without parole. See N.Y. crim. Proc. Law § 400.27.

Following a jury trial, Parker was convicted of first degree murder, attempted first degree murder, aggravated assault on a police officer and both counts of weapon possession. At the conclusion of the penalty phase of Parker's trial, the jury determined that, based on Parker's first degree murder conviction, he should not receive the death penalty but instead be sentenced to life imprisonment without the possibility of parole.

Parker was sentenced, on November 30, 1998 as follows: a term of life imprisonment without the possibility of parole on the first degree murder conviction, twenty-five years to life on the first degree attempted murder, twelve and one-half to twenty five years on the conviction for aggravated assault, seven and one-half to fifteen years on the second degree weapon possession, and three and one-half to seven years on the third degree weapon conviction. The sentence imposed on the convictions related to Officer Martinez were ordered to be served consecutively to any sentence petitioner was then serving. The sentence on the conviction for murdering Officer McDougald was ordered to be served consecutively to the sentences regarding the Officer Martinez convictions and any other sentence petitioner was serving at the time.

Petitioner's appeal was timely perfected and the Appellate Division, Fourth Department, issued a memorandum decision and order on February 7, 2003, in which thecourt unanimously affirmed his conviction but modified the structure of his sentences. People v. Parker, 304 A.D.2d 146, 755 N.Y.S.2d 521(App.Div. 4th Dept.2003). Leave to appeal to the New York Court of Appeals was denied on July 17, 2003. People v. Parker, 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488 (N.Y.2003).

This timely habeas petition followed. For the reasons set forth below, the request for a writ of habeas corpus is denied and the petition is dismissed.

III. Discussion

A. Denial of Right to Enter a Guilty Plea to First Degree Murder

Parker contends that he was deprived of the right to enter a guilty plea based on the constitutional infirmity of several sections of New York's Criminal Procedure Law (C.P.L. § 220.10(5)(e), C.P.L. § 220.30(3)(b)(vii), and C.P.L. § 220.60(2)). Parker claims that if he had been allowed to plea bargain, he possibly could have obtained a sentence allowing for the possibility of parole.

As originally enacted, the statute afforded a defendant the opportunity to ensure a maximum sentence of life without parole by pleading guilty pursuant to the following provisions: "A defendant may not enter a plea of guilty to the crime of murder in the first degree as defined in section 125.27 of the penal law; provided, however, that a defendant may enter such a plea with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole." N.Y. Crim. Proc. Law §§ 220.10(5)(e); 220.30(3)(b)(vii). Furthermore, the statute provided, "A defendant who has entered a plea of not guilty to an indictment may, with both the permission of the court and the consent of the people, withdraw such plea at any time before the rendition of a verdict and enter: (a) a plea of guilty to part of the indictment pursuant to subdivision three or four but subject to the limitation in subdivision five of section 220.10." N.Y. Crim. Proc. Law § 220.60(2)(a).

Following petitioner's conviction and sentence to life without parole, the New York Court of Appeals in Matter of Hynes v. Tomei, 92 N.Y.2d 613, 620, 684 N.Y.S.2d 177, 706 N.E.2d 1201 (N.Y.1998), cert. denied, 527 U.S. 1015, 119 S.Ct. 2359, 144 L.Ed.2d 254 (1999), struck as unconstitutional these statutory provisions allowing defendants to plead guilty to first degree murder with the consent of the prosecutor and the approval of the trial court, because "only those defendants who exercise the Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial put themselves at risk of death." Id. (citing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)). The New York Court of Appeals found the challenged statutory provisions allowing capital defendants to plead guilty to first degree murder-with the consent of the prosecutor and approval of the court-constitutionally indistinguishable from a similar provision of the 1934 Federal Kidnaping Act that the United States Supreme Court held unconstitutional in United States v. Jackson, 390 U.S. at 585-86, 88 S.Ct. 1209. The Supreme Court stated that by "explicitly provid[ing] two levels of penalty for the same offense, imposing death only on those who assert innocence and proceed to trial," the statute unfairly burdened a defendant's Fifth and Sixth Amendment rights. Similarly, the New York Court of Appeals held in Matter of Hynes v. Tomei that New York's plea bargaining restrictions were unconstitutional because they placed an"impermissible burden" on a defendant's exercise of constitutional rights. Hynes v. Tomei, 92 N.Y.2d at 624, 684 N.Y.S.2d 177, 706 N.E.2d 1201. Under the challenged provisions of the New York Criminal Procedure Law, "only those defendants who exercise the Fifth Amendment right against self-incrimination and the Sixth Amendment right to a jury trial put themselves at risk of death," but a defendant who "abandons his right to contest his guilt before a jury is assured that he cannot be executed." Id. The unconstitutionality of the statute inhered in its provision of two different punishments for the same crime, with the greater sentence (i.e., execution) reserved for those defendants who asserted their right to proceed to trial. The New York Court of Appeals found the constitutionally offensive provisions severable from the death penalty statute, however.

Turning to Parker's specific claims, he contends that as a result of the constitutionally defective plea bargaining restrictions in existence at the time of his trial, he was denied an option open to every other criminal defendant in New York, the right to plead guilty to the entire indictment. Parker speculates that he been permitted to plead guilty, it would have been possible for him to have received a sentence less than life without parole. As a result of this allegedly disparate treatment, Parker contends, he was deprived of his right to due process and equal protection of the law. Respondent argues that Parker is entitled neither to vacatur of his conviction nor to a reduction of his sentence.

First, as respondent points out, the New York Court of Appeals has held that capital defendants, such as Parker, who proceeded to trial and were sentenced prior to the December 22, 1998, decision in Matter of Hynes v. Tomei are not entitled to vacatur of their first degree murder convictions. People v. Harris, 98 N.Y.2d 452, 496, 749 N.Y.S.2d 766, 779 N.E.2d 705 (N.Y.2002). Rather, "[t]he appropriate remedy [for a Jackson/ Hynes violation] is to vacate[the defendant's] death sentence and to remit his case to [the trial court] ... for resentencing in accordance with Penal Law §§ 60.06 and 70.00(5)." Id. Therefore, Parker is not entitled to vacatur of his criminal conviction merely because he proceeded to trial when the unconstitutional sections of the statute were still in effect. People v. Harris, 98 N.Y.2d at 496, 749 N.Y.S.2d 766, 779 N.E.2d 705. Moreover, there is no need to remand Parker's case for resentencing, because he did not receive a death sentence in the first instance. See id.; accord, e.g., Parker v. United States, 400 F.2d 248, 252 (9th Cir.1968) (reaffirming that only three classes of defendants convicted under the Federal Kidnaping Act who allege a Jackson violation can only contest their convictions: defendants who pleaded guilty, defendants who waived a jury trial, and defendants who...