Torres v. McGrath, 04 Civ. 7971(DC).
| Decision Date | 03 January 2006 |
| Docket Number | No. 04 Civ. 7971(DC).,04 Civ. 7971(DC). |
| Parties | Luis TORRES, Petitioner, v. George McGRATH, Acting Superintendent of Wallkill Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Luis Torres, Wallkill, NY, Petitioner, Pro Se.
Eliot Spitzer, Esq., Attorney General for the State of New York, by: Luke Martland, Esq., Ashlyn H. Dannelly, Esq., Assistant Attorneys General, New York, NY, for Respondent.
Pro se petitioner Luis Torres petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Torres pled guilty to attempted reckless endangerment in the first degree in violation of New York Penal Law §§ 110.00 and 120.25. He was sentenced as a second felony offender to an indeterminate term of one and a half to three years imprisonment. He now contends that his constitutional rights were violated because (1) his plea allocution was insufficient to establish his guilt and (2) both trial and appellate counsel provided ineffective assistance. For the reasons that follow, the petition is denied.
On March 16, 2000, Torres was involved in a confrontation with his niece and her boyfriend in an apartment on West 143rd Street in Manhattan. (Pet. Mem. at 2).1 Torres lived in the apartment with two siblings as well as his niece. (Id.). Torres claims that he was stabbed by his niece during the altercation. (Id. at 3).
The niece complained to the police and alleged that Torres had drawn a firearm and pointed it at her two-year old daughter. (See RX F at 2; RX I at 3). According to the complaint, Torres, while holding the gun just twelve to eighteen inches away from the girl, squeezed the trigger pulled back the slide to release a bullet, placed the bullet back into the clip, and then reinserted the clip into the gun. (RX I at 3). Torres then allegedly chased the girl's parents while yelling that he was going to cut the girl up and mail her back to them in pieces. (Id.).
On March 24, 2000, Torres was arrested for the incident. He already had three prior felony convictions and was on parole, having served five months of a six-year term of parole. (Id.).
Torres was indicted for reckless endangerment in the first degree and menacing in the second degree. (Id.). On April 14, 2000, he entered a plea of not guilty. (Id.). On June 21, 2000, he agreed to plead guilty to the lesser offense of attempted reckless endangerment in the first degree, in exchange for the minimum possible sentence of one and a half to three years imprisonment. (Id. at 2).
On July 21, 2000, Torres appeared for the guilty plea. His attorney advised the court (Michael Obus, J.) that "my client has authorized me to withdraw his previously entered plea of not guilty and enter a plea of guilty to 110/120.25, attempted reckless endangerment." (RX N at 2-3). The court and Torres then engaged in a colloquy:
(Id. at 3). Torres further acknowledged his understanding that by pleading guilty he was waiving his rights to confront the People's witnesses and to present evidence on his own behalf. (Id. at 3-4).
The court did not elicit the specific facts of the offense, but it did review the charge with Torres as follows:
THE COURT: And with regard to the incident itself, it's alleged that on March 16th of this year, that you engaged in conduct which recklessly endangered the life of another person.
I understand, first of all, that as you stated in your letter, there are some other circumstances surrounding this incident that you wanted the People to be aware [of]. I understand that you're not accused of actually hurting anybody at this incident and you're not even accused of trying to hurt someone during the course of this incident, but if you want to resolve the case this way, I do need to know whether or not you are accepting that you engaged in conduct which recklessly created that risk set forth in the indictment.
(Id. at 4-5). After giving Torres an opportunity to confer with counsel, the court accepted the plea, noting the following:
All right, the Court is, first of all, satisfied that the defendant has considered this matter with counsel, that he understands his rights and his alternatives and while attempted reckless endangerment would not be a charge that would be submitted to a jury at trial, for purposes of a disposition in light of the factual allocution here, it is an acceptable plea for purposes of resolving the case, and I do find the defendant under the circumstances is making a knowing and voluntary decision to resolve the case.
(Id. at 5).
The court then asked the clerk "to arraign" and the clerk did so:
THE CLERK: Luis Torres, do you now wish to withdraw your previously entered plea of not guilty, and do you now plead guilty to the crime of attempted reckless endangerment in the first degree?
(Id. at 5-6). The transcript shows that Torres conferred with his lawyer and then responded "No." (Id. at 6). The transcript shows no acknowledgment from anyone that Torres had responded negatively, and the court continued the proceedings, without objection or discussion, as if Torres had responded "Yes." (Id. at 6-8). Indeed, the court then found that Torres was a predicate violent felony offender, based on petitioner's 1993 conviction for robbery in the first degree, and set a date for sentencing. (Id. at 7-8).
On July 19, 2000, Torres appeared for sentencing. (RX O at 1). His lawyer addressed the court and stated:
Mr. Torres adamantly indicates that he never possessed a weapon, that he was never in possession of a weapon during this entire incident, and I believe the court's allocution did not include a weapon being present or used by my client.
(Id. at 3). The court then asked, "I take it he's not asking to withdraw his plea, however?" Torres's counsel responded, "No, judge." (Id.). The court then gave both counsel and Torres himself a further opportunity to speak:
(Id.). The court then observed:
All right. The defendant, of course, did enter a plea of guilty after a full allocution in this matter and after consulting with counsel and even now I don't understand him to be asking to withdraw that plea[.] [O]f course the court will impose the sentence that was promised at the time of that plea, which is a period of one and one half to three years....
(Id.).
As of the filing of this petition, Torres was incarcerated at Wallkill Correctional Facility pursuant to this sentence.2
On appeal, Torres was initially represented by counsel, but counsel moved for leave to withdraw because of the absence of any non-frivolous issues to raise on appeal. (RX A, B). On October 29, 2002, the Appellate Division affirmed the judgment and granted counsel leave to withdraw, agreeing that there were no nonfrivolous points that could be raised. (RX C). See People v. Torres, 298 A.D.2d 313, 748 N.Y.S.2d 499 (1st Dep't 2002).
On November 19, 2002, Torres submitted a pro se application to the Court of Appeals for leave to appeal the Appellate Division's decision. (RX D). The Court of Appeals denied the application on June 3, 2003. (RX E).
In the meantime, Torres filed a pro se motion pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction. (DX F). On August 16, 2002, Justice Obus denied the motion, holding that under New York law, a "`bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed.'" (DX I at 3 (quoting People v. Clairborne, 29 N.Y.2d 950, 329 N.Y.S.2d 580, 580, 280 N.E.2d 366 (1972))). He also rejected Torres's contention that his attorney had coerced him into pleading guilty. (Id.).
On November 4, 2003, Torres submitted a pro se motion to the Appellate Division for a writ of error coram nobis, arguing that the trial court improperly accepted the guilty plea, the plea allocution was insufficient to support his conviction, and trial and appellate counsel was ineffective. (RX J). On May 11, 2004, the Appellate Division denied Torres's application. (RX L).
On May 4, 2004, Torres filed a habeas petition in this Court. See Torres v. Nichols, No. 04 Civ. 3381(MBM). Chief Judge Mukasey dismissed the petition without prejudice, because Torres had not exhausted his state remedies, as his coram nobis petition was still pending in the First Department. The coram nobis petition was denied a week later.
The instant habeas petition was received by this Court's Pro Se Office on July 1, 2004.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "placed a new restriction on the power of federal courts to grant writs of habeas...
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