Perez v. Miller

• Decision Date: 15 December 2015
• Docket Number: 14-CV-06223
• Parties: NEFTALI PEREZ, Petitioner, v. CHRISTOPHER MILLER, SUPERINTENDENT GREAT MEADOW CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Western District of New York

NEFTALI PEREZ, Petitioner, v. CHRISTOPHER MILLER, SUPERINTENDENT GREAT MEADOW CORRECTIONAL FACILITY, Respondent.

14-CV-06223

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

December 15, 2015

DECISION & ORDER

APPEARANCES

For Petitioner:

Neftali Perez, pro se

80 A 2470

Great Meadow Correctional Facility

Box 51

Comstock, NY 12821-0051

For Defendant:

Paul Lyons, A.A.G.

Office of New York State Attorney General

120 Broadway

New York, NY 10271

(212) 416-8229

INTRODUCTION

Siragusa, J. Before the Court is Petitioner Neftali Perez's ("Petitioner") application for appointment of counsel pursuant to 28 U.S.C. § 1915(d) to provide legal assistance in pursuing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ For the reasons stated below the application is denied with prejudice.

BACKGROUND

In order to determine whether the Court should "request an attorney to represent any person unable to afford counsel," 28 U.S.C. § 1915 (1996), "the Court must decidewhether, 'from the face of the pleadings,' the claims asserted by the plaintiff 'may have merit,' or the plaintiff 'appears to have some chance of success.'" Martinson v. U.S. Parole Comm'n., No. 02CIV.4913 (DLC)(DF), 2004 WL 203005, at *2 (S.D.N.Y. Feb. 2, 2004) (quoting Stewart v. McMikens, 677 F. Supp. 226, 228 (S.D.N.Y.1988), and Baskerville v. Goord, No. 97 Civ. 6413(BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001)).² Therefore, the Court takes the following facts from the petition, and the answer, solely for the purpose of determining whether Petitioner's claims may have merit, or he appears to have some chance of success. Respondent notes that the original state criminal charge and subsequent conviction resulted from an event,

[o]n April 23, 2010, at Elmira Correctional Facility, petitioner and another inmate, Ariel Echevarria-Perez, entered into a dispute after Echevarria-Perez "disrespected" petitioner. Echeverria-Perez was the initial aggressor, attacking petitioner with a "shank" - a 9-1/2 inch sharpened metal object... petitioner assaulted Echeverria-Perez with the same shank, slashing and stabbing him about the head and body, causing a stab wound to his right chest and multiple deep lacerations on his head and left wrist, including transections of the left radial and ulnar arteries.

Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus at 1, Oct. 8, 2014, ECF No. 7.

On May 27, 2010, Petitioner was charged with: Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25(1)); Assault in the First Degree (N.Y. Penal Law § 120.10(1)); Assault in the Second Degree (N.Y. Penal Law § 120.05(7)); and three counts of Promoting Prison Contraband in the First Degree (N.Y. Penal Law § 205.25(2)). State Court Record 66-68, Oct. 8, 2014, ECF No. 8-1 (Indictment No. 2010-129).

In a letter dated August 26, 2010, addressed to the state judge, Petitioner's former counsel stated that he "[spoke] at length with [petitioner], and he wishes to accept the plea bargain offer." State Court Record 117-18. Counsel's letter also "advise[d] the Court and the People of what [counsel] expect[ed] to be the general substance of [petitioner's] allocution in advance of the plea," writing:

The alleged victim ("Echeverria") was the initial aggressor, attacking [petitioner] with a sharpened metal object. [Petitioner] was, at first, acting in self-defense. There came a point, however, that [petitioner] was able to take the metal object away from Echeverria, and had injured and subdued him to the extent that he no longer posed a threat. At that point, [petitioner] engaged in a new assault, using the deadly weapon/dangerous instrument with the intent to cause serious physical injury to Mr. Echeverria. Having successfully defended himself, this later assault was intended to send a message to other inmates.

State Court Record 117.

Petitioner appeared before Chemung County Court Judge James T. Hayden on August 27, 2010, with counsel to accept a plea that offered a maximum of 15 years and 5 years of post-release supervision. State Court Record 11-12. The judge asked Petitioner the following questions, to which he gave the following answers:

THE COURT: By pleading guilty, you would be giving up that right [against self-incrimination], because one of the things I'm going to ask you to do is to tell me what you did.

THE DEFENDANT: I understand.

THE COURT: Understand? Knowing that, do you still wish to plead guilty?

THE DEFENDANT: Yes, guilty with an explanation.

THE COURT: Just a minute. Is there anything at this point in the process you do not understand?

THE DEFENDANT: Yes, I am understanding, you're translating for me in Spanish.

THE COURT: Do you need to ask your lawyer any additional questions?

THE DEFENDANT: No. He knows what he has to do, I've explained it to him.

THE COURT: The Court is satisfied defendant is knowingly, voluntarily, and intelligently offering the plea, we will entertain it.

What is it you did back on April 23rd, 2010, in the County of Chemung, that causes you to want to plead guilty?

THE DEFENDANT: I was coming out of my work, I went to my cell, and I came out to get a cup of coffee. But the other individual came out of his cell to go to work, but he attacks me with a knife, wounding me here in my hands. And so, I came and I took it away from him. And the circumstances are, that led me to then attack him, because he had attacked me first.

And I told the superintendent when I had my hearing that I was going to declare myself guilty, because I did it, but I took the knife away from him. The knife was his, and I attacked him with it.

The superintendent said I was right, that I had done it in self-defense. So then he gave me two years for the knife. He gave me two and a half years in the box.

THE COURT: After you took the knife from the other man, what did you do with the knife?

THE DEFENDANT: I attacked him, because he attacked me. That's what I said.

THE COURT: Where did - did you strike him with the knife?

THE DEFENDANT: And when the guards came, and they told me to let him go. I dropped it on the floor, the knife on the floor, because the guards hadn't been there, they didn't see it when he attacked me.

THE COURT: That was not my question. Did you strike the other person with the knife?

THE DEFENDANT: With the same knife, his knife.

THE COURT: Where did you strike him?

THE DEFENDANT: Up here, (indicating), around the neck.

THE COURT: And when you struck him with the knife, did you cut him?

THE DEFENDANT: Yes, I did, I cut him.

THE COURT: And is it your understanding that he was badly wounded?

THE DEFENDANT: Well, according to what they said in the hospital, he was bad. But I don't know, I haven't seen him anymore.

THE COURT: At the time you struck him with the knife, did he have any kind of weapon in his hands?

THE DEFENDANT: No, he didn't. He was trying to get me, but I was getting him. He was punching at me, and I hit him with the knife.

THE COURT: Has your lawyer explained to you that you have the right to raise a claim of self-defense at trial?

THE DEFENDANT: Yes.

THE COURT: Are you telling me that you would rather take advantage of the plea bargain than risk going to trial?

THE DEFENDANT: I am guilty, because I did hit him with the knife, I did stab him with the knife.

THE COURT: That wasn't my question. Are you telling me that you would rather take advantage of the plea bargain offered to you than risk going to trial?

THE DEFENDANT: Exactly.

THE COURT: All right. The Court is satisfied defendant has offered sufficient factors to justify the plea, and the Court is also satisfied that he has discussed the Case option of raising a claim of self-defense at trial, and that he is choosing not to take that option.

State Court Record 14-18.

After entering the plea, Petitioner appealed to the Appellate Division, Third Department. Petitioner claimed: the trial court erred in accepting his guilty plea because Petitioner continued to assert self-defense, and that Petitioner's trial counsel was ineffective for advising him to plead guilty when he maintained self-defense. State Court Record 26-60. The Appellate Division, Third Department affirmed the plea agreement, writing:

Initially, inasmuch as the record before us does not indicate that defendant moved to withdraw his plea or sought to vacate the judgment of conviction, "he has failed to preserve his challenge to the sufficiency of the plea allocution premised on County Court's alleged failure to make an adequate inquiry concerning his claim of self-defense" (People v. Simpson, 19 A.D.3d 945, 945, 797 N.Y.S.2d 322 [2005]; see People v. Richardson, 275 A.D.2d 864, 865, 714 N.Y.S.2d 140 [2000], lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000]) and his claim that he was denied the effective assistance of counsel (see People v. Gomez, 72 A.D.3d 1337, 1337, 899 N.Y.S.2d 435 [2010]). Moreover, the narrow exception to the preservation requirement is not applicable here because, even assuming that defendant's remarks raised a legitimate claim of self-defense, the court satisfied its duty of further inquiry (seePeople v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]; People v. Simpson, 19A.D.3d at 945, 797 N.Y.S.2d 322 [2005]; People v. Moore, 270 A.D.2d 715, 716, 705 N.Y.S.2d 425 [2000], lv. denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240 [2000]). The court specifically questioned defendant about his right to raise the claim of self-defense and confirmed that defendant had already discussed a possible claim of self-defense with his counsel. The record amply supports the conclusion that defendant fully understood the nature of the charge and waived any claim of self-defense in exchange for the favorable plea agreement (seePeople v. Rush, 79 A.D.3d 1522, 1523, 914 N.Y.S.2d 349 [2010], lv. denied 16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188 [2011]). Accordingly, defendant has presented no basis for reversal herein.

People v. Perez, 101 A.D.3d 1162, 955 N.Y.S.2d 435, ...