Velasquez v. Ercole

• Decision Date: 20 July 2012
• Docket Number: No. 09–CV–0608 (JFB).,09–CV–0608 (JFB).
• Citation: 878 F.Supp.2d 387
• Parties: Wilfredo VELASQUEZ, Petitioner, v. Robert ERCOLE, Superintendent, Respondent.
• Court: U.S. District Court — Eastern District of New York

878 F.Supp.2d 387

Wilfredo VELASQUEZ, Petitioner,

v.Robert ERCOLE, Superintendent, Respondent.

No. 09–CV–0608 (JFB).

United States District Court,

E.D. New York.

July 20, 2012.

Wilfredo Velasquez, pro se.

Karla Lato and Guy Arcidiacono, Assistant District Attorneys, Suffolk County District Attorney's Office, Riverhead, NY, for Respondent.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Wilfredo Velasquez (“petitioner” or “Velasquez”) petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction entered on April 30, 2002, in the County Court, Suffolk County (the “trial court”), for murder in the second degree (N.Y. Penal Law § 125.25(1) and (2)) and robbery in the first degree (N.Y. Penal Law § 160.15). Petitioner was sentenced to an indeterminate sentence of 25 years' to life imprisonment for second degree murder and a determinate sentence of 10 years for robbery, to run concurrently. (5/29/02 Sent. Tr.¹ at 3.) In the instant petition, petitioner argues for a grant of a writ of habeas corpus claiming that (1) his guilty plea and waiver of right to appeal was not knowingly, voluntarily and intelligently made, and (2) he received ineffective assistance of counsel. For the reasons set forth below, the petition is denied in its entirety. Although the petition is timely, the claim that the guilty plea was not knowing, voluntary, or intelligent is procedurally barred, and, in any event, is meritless. Furthermore, the claim that petitioner received ineffective assistance of counsel is also without merit.

I. Background

A. Factual Background

Petitioner was charged with two counts of second degree murder, N.Y. Penal Law § 125.25; robbery in the first degree, N.Y. Penal Law § 160.15; grand larceny in the fourth degree, N.Y. Penal Law § 155.30; and leaving the scene of an incident without reporting, N.Y. Vehicle and Traffic Law § 600.1, in connection with the stabbing death of Katrin Czaplick (“Czaplick”). (Suffolk County, Indictment Number 1870–01.)

On April 30, 2002 Velasquez pled guilty to robbery in the first degree and one count of second degree murder whereby the remaining charges were dismissed. (Plea T.² at 9–10, 21–22.) During Velasquez's plea, he stated that, on August 21, 2001, he robbed a taxi driver at knife point and drove away with the taxicab. (Plea T. at 16–19.) Velasquez also stated that, on August 23, 2001 he stabbed his landlord Czaplick to death with a kitchen knife. ( Id. at 19–21.)

During the plea proceeding, the court did not inform Velasquez that his conviction, pursuant to his plea agreement, was not appealable. However, during the petitioner's sentencing proceeding, the court explained to Velasquez that he would be forfeiting his right to appeal his conviction if he still decided to accept the plea agreement. (5/29/02 Sent. Tr. at 4–7.) After discussing the matter with his attorney ( id. at 6), Velasquez chose to accept the plea agreement, and the court sentenced him to 25 years' to life imprisonment for second degree murder and 10 years' imprisonment for robbery in the first degree. ( Id. at 11.) The sentences were to run concurrently. ( Id.) After petitioner was sentenced, five years of post-release supervision was added to the petitioner's sentence because post-release supervision was a mandatory component of a determinate sentence for robbery in the first degree. N.Y. Penal Law §§ 70.00(6), 70.45(2)(f); People v. Velasquez, Ind. No. 1870–2001 (Cnty. Ct., Suffolk Cnty., Feb. 27, 2008).

B. Procedural History

Petitioner's motion to file a late Notice of Appeal was denied by the Second Department. People v. Velasquez, AD No. 2003–00636 (N.Y.App.Div.2d Dept., Feb. 26, 2003). The Court of Appeals denied leave to appeal on April 28, 2003. People v. Velasquez, 99 N.Y.2d 659, 760 N.Y.S.2d 124, 790 N.E.2d 298 (2003).

On February 4, 2008, Velasquez filed a motion under N.Y. C.P.L. § 440.10(1)(h) in Suffolk County Court seeking to vacate his conviction, claiming that: (1) he did not knowingly and voluntarily enter into the plea agreement, and (2) his counsel was ineffective. (Pet.'s Mot. to Vacate Judgment Under C.P.L. § 440.10(1)(h), Feb. 4, 2008.) Specifically, the petitioner argued that the court did not tell him the nature of the charges, the elements of the crimes charged, the rights he would relinquish and the potential consequences of the plea, or of the post-release supervision. ( Id.) Velasquez also argued that his attorney failed to: (1) discover potentially exculpatory evidence (2) advise petitioner of possible defenses to the charges; and (3) file a notice of appeal on his behalf. ( Id.) On February 27, 2008, the Suffolk County Court denied Velasquez's C.P.L. § 440.10 motion on the merits, ruling that after reviewing the transcripts of the plea and sentencing it was evident that the court carefully questioned the defendant to ascertain that the defendant fully understood the gravity of the charges against him and the potential sentences he could receive were he to be found guilty after trial. People v. Velasquez, Ind. No. 1870–2001 (Cnty. Ct., Suffolk Cnty., Feb. 27, 2008). Thus, the court found that it was clear that the defendant understood what he was doing and that he received a sentence more favorable than what he was otherwise exposed to, through the efforts of his attorney. Id. The court also found that the defendant received effective assistance of counsel, ruling that the defendant's attorney negotiated a favorable disposition after having made appropriate motions, conducting investigations, and attending numerous conferences. Id. The court, however, also ruled that, since post-release supervision was not part of the initial record, the petitioner should be resentenced. Id. Accordingly, the petitioner was resentenced on February 25, 2009, in Suffolk County Court, to the terms that were previously imposed, but without any post-release supervision. (2/25/09 Sent. Tr.³ at 3.) Leave to appeal the C.P.L. § 440.10 determination to the Appellate Division, Second Department, was denied. People v. Velasquez, Ind. No. 1870–01 (N.Y.App.Div.2d Dept., May 13, 2008).

On February 5, 2009, petitioner, proceeding pro se, submitted the instant habeas petitioner through the prison mailing system. On March 30, 2009, respondent moved to dismiss the petition on the grounds that it was untimely. Petitioner replied in opposition to the motion to dismiss on June 10, 2009. By Order dated February 16, 2010, the Court denied the motion to dismiss without prejudice, explaining that respondent had not addressed the issue of whether petitioner's February 25, 2009 resentencing restarted the statute of limitations. The Court directed that respondent address that issue, as well as the merits of the petition. On April 13, 2010, respondent submitted a memorandum of law opposing the habeas corpus petition.

II. Standard of Review

To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented by the State court proceedings.

28 U.S.C. § 2254(d). “Clearly established Federal law” is compromised of “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Green v. Travis, 414 F.3d 288, 296 (2d Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A decision is an “unreasonable application” of clearly established federal law if a state court “identifies the correct governing legal principles from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case.” Id.

AEDPA establishes a deferential standard of review: “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decisions applied clearly established federal law erroneously or incorrectly. Rather, that application must be unreasonable.” Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir.2001) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). The Second Circuit added that, while “[s]ome increment of incorrectness beyond error is required ... the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)). Finally, “if the federal claim was not adjudicated on the merits, ‘AEDPA deference is not required, and conclusions of law and mixed feelings of fact and conclusions of law are reviewed de novo.’ ” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir.2009) (quoting Spears v. Greiner, 459 F.3d 200, 203 (2d Cir.2006)).

III. Discussion

The petitioner has alleged two grounds in his habeas petition: (1) he did not knowingly, intelligently and voluntarily enter into the plea agreement;...