Torres v. Berbary
| Decision Date | 07 August 2003 |
| Docket Number | Docket No. 02-2463. |
| Citation | 340 F.3d 63 |
| Parties | Daniel TORRES, Petitioner-Appellant, v. J. BERBARY, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
DAVID E. LIEBMAN, ESQ., New York, NY, for Petitioner-Appellant.
NISHA M. DESAI, Assistant District Attorney for Bronx County, Bronx, NY, (Joseph N. Ferdenzi, Assistant District Attorney, Robert T. Johnson, District Attorney for Bronx County, Bronx, NY, on the brief), for Respondent-Appellee.
Before: MINER, McLAUGHLIN and POOLER, Circuit Judges.
Petitioner Daniel Torres appeals from a judgment denying a writ of habeas corpus entered in the United States District Court for the Southern District of New York (Martin, J.). Torres filed his petition for the writ pursuant to 28 U.S.C. § 2254 as a person in state custody. By the petition, Torres challenged his resentencing by a state court following an alleged breach of the condition of his original sentence. The District Court determined that the resentencing was justified by a satisfactory evidentiary showing of the breach in state court and concluded that the decision of the trial court was not contrary to the jurisprudence of the Supreme Court of the United States. See Torres v. Berbary, No. 01 CIV 4512, 2002 WL 1218276 (S.D.N.Y. June 4, 2002). Because we conclude that the hearing afforded by the state court that resulted in the resentencing was inconsistent with due process, we vacate the judgment of the District Court and remand with directions to grant the writ conditionally.
On March 16, 1998, Torres entered a plea of guilty in New York Supreme Court, Bronx County, to the offense of Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.39(1), a Class B Felony. The court accepted the plea following the customary allocution and proceeded to impose sentence in accordance with a plea bargain previously arrived at. The sentence provided for a conditional release to Phoenix House, a drug treatment facility and was encompassed in its entirety in the following dialogue between the court and Torres, designated "THE DEFENDANT" in the transcript:
"If you work out" apparently was understood by all concerned to refer to the successful completion by Torres of the drug treatment program provided by Phoenix House. According to the sentence, successful completion would result in a return to court for repleading to a misdemeanor in place of the felony, and a resentencing to time served. Failure to complete would result in a sentence of imprisonment of four-and-a-half-to-nine years on the original felony charge.
Torres immediately entered the Phoenix House program. Less than a month later, Torres was discharged from the program. The "Client Discharge Form" dated April 10, 1998, provided to Torres by Phoenix House, gave the following reasons for his discharge: The Form contained the following legend: Although Torres inserted a checkmark in the space provided in the Form following the words: "I wish a review" and signed the Form, no review was provided to him.
By letter dated the same date as the Discharge Form, Ed Greaux of Phoenix House advised the Bronx Supreme Court of Torres' discharge. The letter, in its substantive entirety, reads as follows:
Your Honor, with reference to the above-named client, information has come to light that compels us to discharge this resident. New resi[d]ents overheard conversations conducted in [S]panish between this client and other residents claiming that they could make illicit drugs available for sale within this facility.
It is suspected that the drugs may have been entering the facility through the use of church trips. Confederates may have met clients at church to pass drugs or money. Also, it is suspected that gang activity in the form of meetings on the male floor and the use of gang hand signals have involved the above-named client.
Although we have been unable to obtain physical evidence, we have received information from residents that clearly implicates this individual in an organized attempt to sell drugs in this facility.
Following his discharge, Torres was returned to the court for further proceedings. At the outset of the proceedings, counsel for Torres addressed the court as follows:
[COUNSEL]: Judge, for the record, my client is, again, he had pled guilty and was given his plea wherein if he completed the Phoenix Drug House program, to which he was assigned, he would be allowed to complete that program and that if he completed it successfully, he would be allowed to withdraw his felony plea and receive a plea with a misdemeanor and time served.
I realize there has been a communication to the Court. I've seen a copy of it indicating that my client was discharged from Phoenix House and making an accusation that he was involved with other people in trying to bring drugs into the facility. My client denies that. He's asked me to state that he never was a participant with anyone else in trying to bring drugs into the facilities, and he has tested clear all times and he would like an opportunity to complete a drug program and complete all the conditions of the plea.
The court responded as follows:
THE COURT: The application is denied. The report has convinced me that he violated the conditions I set down, very seriously. You have an exception for the record.
Later, there was this exchange between counsel and the court:
After a further exchange during the proceedings, counsel again advised the court of Torres' adamant assertion that he did not bring drugs into Phoenix House, and of Torres' request that he have "some sort of hearing, evidentiary hearing on this issue." The court responded to that request as follows:
THE COURT: I decline to do so. I received a communication, as you know, you were given it as soon as I received it, indicating that Phoenix House had had people overhear him plotting with other people to bring drugs into the facility. I'm not going to try that case because Phoenix House, in my opinion, generally gives me accurate reports, and most of the time, they want to keep a client, not let a client go. I'm prepared to sentence your client. I deny any further applications to be given.
Torres then personally requested the opportunity to speak, which the court granted. The following is a transcript of Torres' unsworn statement to the court:
THE DEFENDANT: Yeah. When I went, a lot of people, which is usually people that I know was upstate with me before, one of them, which I don't know, who supposedly got caught with drugs or gave drugs to somebody, now, it's the people I talk to almost every day when I have a cigarette break. When that happened, they took my unit twice and searched me and saying, that's my people, that I screw around, but I say that I don't know what happened. They still threw me out due to the fact that I associate with them, that I say what's up to them, and I say hello to them, when we used to go down for a cigarette smoke. In other words, they also told me, I will have a review with the director, but they are stating that they just threw me out for associating with them. It was really, I don't know who or what really happened.
The court immediately proceeded with sentencing after Torres' statement as follows:
THE COURT: Okay. Based upon everything I know about the case, based upon the recent communication and writing that I received from Phoenix House, Defendant is sentenced to a minimum term, which I promised him if he did not successfully complete the program, four and a half to nine years, and I am imposing the statutory surcharge.
On appeal to the Appellate Division, First Department, Torres' judgment of conviction and sentence was affirmed. The Appellate Division reasoned as follows:
The court promised that it would impose a more lenient disposition in the event that [Torres] successfully completed a drug program. [Torres] was expelled from the drug program. Before imposing sentence, the court conducted an inquiry to determine whether or not there was any legitimate basis for defendant's exclusion from the drug program, and satisfied itself that the report of [Torres'] misconduct in the program was reliable and accurate. Hence, the court properly sentenced [Torres] on the felony.
People v. Torres, 277 A.D.2d 12, 12, 715 N.Y.S.2d 59 (1st Dep't 2000) (mem.) (citations omitted). Leave to appeal to the New York Court of Appeals was denied. See People v. Torres, 96 N.Y.2d 764, 725 N.Y.S.2d 290, 748 N.E.2d 1086 (2001).
In his petition for a writ of habeas corpus dated May 29, 2001, Torres alleged that his due process rights were violated because he was denied an evidentiary hearing in connection with his discharge from Phoenix House. He asserted that he was "ejected from the...
To continue reading
Request your trial
-
Gersten v. Senkowski
...decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, 340 F.3d 63, 68 (2d Cir.2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the bu......
-
Duperry v. Kirk
...of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2); Torres v. Berbary, 340 F.3d 63, 67-68 (2d Cir.2003). This deferential standard of review does not apply where the state court did not reach the merits of a particular claim. Torres, 3......
-
Cotto v. Fischer
...claim on a habeas petition de novo, because the state court failed to address it on the merits) (citing Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003)). For the reasons that follow, we find it to be meritless. A conviction based on perjured testimony is analyzed under the Due Process Cla......
-
Burch v. Millas
...to" or an "unreasonable application" of "a reasonable extension" of the Supreme Court's jurisprudence on an issue. Torres v. Berbary, 340 F.3d 63, 68 (2d Cir.2003). VI. Analysis of the Claims Raised in the Petition A. Ground One: Ineffective Assistance of Trial Counsel a. General Legal Prin......
-
Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders with PTSD and TBI and Reduce Recidivism
...The accused would remain free to apply for secretarial clemency upon vacation of the suspension. 632 See, e.g. , Torres v. Berbary, 340 F.3d 63, 72 (2d. Cir. 2003) (vacating a sentence imposed under a conditional release to a drug treatment facility based on the defendant’s lack of a revoca......