Santos v. Rock, 10 Civ. 2896 (LTS) (AJP)
| Decision Date | 05 August 2011 |
| Docket Number | 10 Civ. 2896 (LTS) (AJP) |
| Parties | RICKY SANTOS, Petitioner, v. D. ROCK, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Pro se petitioner Ricky Santos seeks a writ of habeas corpus from his June 27, 2007 conviction following a guilty plea in Supreme Court, New York County, for first degree robbery and sentence of sixteen years imprisonment. (Dkt. No. 9: 2d Am. Pet. ¶¶ 1-5.) Santos' second amended habeas petition appears to assert that: (1) he received ineffective assistance of counsel because counsel failed to "fight by [his] side at all" and failed to notify the court of his mental state at plea or sentencing; (2) his guilty plea was involuntary because he "was in a[n] unstable state of mind, and did not know what was going on"; (3) he was mentally incompetent at plea and sentencing; and (4) his sentence was harsh and excessive. (2d Am. Pet. ¶ 13; see also Dkt. No. 4: Am. Pet. ¶ 13.)
For the reasons set forth below, Santos' habeas petition should be DENIED.
On December 4, 2006, Santos was arrested in connection with several knife-point robberies in East Harlem from November 13 to December 1, 2006. (Dkt. No. 14: La Ferlita Aff. Ex. A: Santos 1st Dep't Br. at 3.) On December 15, 2006, a New York County grand jury indicted Santos for six counts of first degree robbery and one count of first degree attempted robbery. (Santos 1st Dep't Br. at 3.)
On June 12, 2007, Santos appeared with counsel before Justice Edward McLaughlin. At Santos' attorney's request, Justice McLaughlin reviewed with Santos the terms of the pending plea offer of sixteen years imprisonment in exchange for Santos' guilty plea to a single count of first degree robbery. (P. 2-3.) Justice McLaughlin explained that if Santos accepted the plea offer he could be released after thirteen years, eight months and three weeks assuming "a good institutional record," that is, because of good time credit. (P. 3.) Justice McLaughlin explained that if Santos rejected the plea offer and was convicted after trial, he faced the possibility of consecutive sentences and thus a potential sentence of up to forty or fifty years. (P. 3-4.) Justice McLaughlin added that a sentencing judge might impose a prison term on the longer side of the permissible range because some of the crime victims were elderly. (P. 4.) Nonetheless, Justice McLaughlin also explained that while he was "telling [Santos] what the possibilities are," he was "not suggesting what the sentence would be" and "not threatening." (P. 4, 6.) After consulting with his counsel (P. 6), Santos accepted the offer and entered a plea of guilty to first degree robbery. (P. 6-10.)
Justice McLaughlin first inquired as to whether Santos understood the nature of the charges:
(P. 7.) Justice McLaughlin next advised Santos of the rights he was giving up by pleading guilty:
(P. 7-8.) Justice McLaughlin discussed the sentence promised as part of the plea agreement:
(P. 8-9.) Justice McLaughlin also inquired whether Santos was under the influence of drugs:
(P. 9-10.)
Justice McLaughlin adjudicated Santos a second felony offender based on his 1998 conviction for third degree attempted criminal possession of a controlled substance. (P. 10-11.) Justice McLaughlin scheduled sentencing for June 26, 2007. (P. 11-12.)
On June 26, 2007, pursuant to the negotiated plea agreement, Justice McLaughlin sentenced Santos to sixteen years imprisonment. When Justice McLaughlin asked Santos and his counsel if they had anything to say, Santos said "No" and his counsel stated that they would rely on the plea agreement. (S. 2.)
Represented by new counsel, Santos' appeal to the First Department argued that his sentence was "harsh and excessive and should be reduced in the interests of justice." (Dkt. No. 14: La Ferlita Aff. Ex. A: Santos 1st Dep't Br. at 6-14.)
On June 2, 2009, the First Department unanimously affirmed Santos' conviction. People v. Santos, 63 A.D.3d 414, 414, 879 N.Y.S.2d 804, 804 (1st Dep't 2009). On July 29, 2009, the New York Court of Appeals denied leave to appeal. People v. Santos, 12 N.Y.3d 929, 884 N.Y.S.2d 710 (2009).
On or about December 21, 2009, Santos filed a pro se federal habeas corpus petition. (Dkt. No. 2: Pet. at last page.) On April 5, 2010, Chief Judge Preska issued a "60 Day Order" requiring Santos to clarify the nature of his Constitutional claim and whether his claim(s) were exhausted in state court. (Dkt. No. 3: 4/5/10 Order.) On April 22, 2010, Santos filed an amended petition, essentially repeating what he had said in his original petition and adding a list of citations to the New York C.P.L. and state court decisions. (Dkt. No. 4: Am. Pet. at p. 4-5.) On May 12, 2010, this Court ordered Santos to "either (1) confirm that his only claim is the . . . sentencing claim [raised on direct appeal], or (2) state what (other) claims he [was] raising." (Dkt. No. 7: 5/12/10 Order.) That order crossed in the mail with Santos' May 10, 2010 second amended petition appearing to allege that: (1) he received ineffective assistance of counsel because counsel failed to "fight by [his] side at all" or notify the court of his mental state at plea or sentencing; (2) his guilty plea was involuntary because he"was in a[n] unstable state of mind, and did not know what was going on"; (3) he was mentally incompetent at his plea and sentencing; and (4) his sentence was harsh and excessive. (Dkt. No. 9: 2d Am. Pet.)
After the State responded to all of the potential claims in Santos' second amended petition (Dkt. No. 13: State Br.), this Court stayed Santos' habeas petition, because "[o]nly the excessive sentence claim was raised in state court," and "[i]t is possible that at least [Santos'] ineffective assistance claim still can be brought in state court via a C.P.L. § 440 motion." (Dkt. No. 16: 8/2/10 Order.) This Court ordered Santos within "thirty (30) days to bring a C.P.L § 440 motion in state court to attempt to exhaust his three unexhausted claims" and to "file a Third Amended Petition in this Court within thirty (30) days of the final state court ruling." (8/2/10 Order.)1
On August 31, 2010, Santos filed a pro se C.P.L. § 440.10 motion in state court arguing that he was denied the effective assistance of counsel because counsel failed to: (1) review with Santos the facts of the case or the nature or the elements of the charges (Dkt. No. 18: Santos § 440 Br. at 11); (2) investigate a defense of not guilty due to "mental disease or defect" (id. at 11, 13-14); (3) pursue a dismissal of Santos' indictment on speedy trial grounds (id. at 12-13); and (4) notify the court of Santos' mental state at plea or sentencing (id. at 14-15). Santos also alleged that his guilty plea was coerced because Justice McLaughlin "threat[ened] to sentence him to 40 years in prison" if he did not accept the plea, and that he was on medication and therefore incompetent at plea and...
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