Whitehurst v. Senkowski, 9:03-CV-0788 (NPM).

• Decision Date: 23 April 2007
• Docket Number: No. 9:03-CV-0788 (NPM).,9:03-CV-0788 (NPM).
• Parties: Larry F. WHITEHURST, Petitioner, v. Daniel A. SENKOWSKI, Superintendent, Respondent.
• Court: U.S. District Court — Northern District of New York

485 F.Supp.2d 105

Larry F. WHITEHURST, Petitioner, v. Daniel A. SENKOWSKI, Superintendent, Respondent.

No. 9:03-CV-0788 (NPM).

United States District Court, N.D. New York.

April 23, 2007.

Larry F. Whitehurst, Dannemora, NY, Petitioner, Pro Se.

Andrew Cuomo, Executive Chambers-Office of Attorney General, Robin A. Forshaw, Esq., Assistant Attorney General, Albany, NY, for the Respondent.

MEMORANDUM-DECISION AND ORDER

McCURN, Senior District Judge.

I. Background

A. State Court Proceedings

The state court records reflect that at approximately 4:30 the evening of September 21, 1995, Rickel Knox, a seven year-old girl, had disappeared from the front of her home in Kingston, New York. See Supplemental Appendix on Appeal (reproduced in Exhibit C to Dkt. No. 11) ("Supp.App.") at 77. Soon thereafter, law enforcement agents questioned petitioner, pro se, Larry Whitehurst, who had been seen with Rickel around the time of her disappearance. Supp.App. at 78. Whitehurst failed to provide law enforcement agents with any assistance regarding the whereabouts of Knox at that time, see id., and he thereafter retained an attorney to represent him with respect to the investigation relating to the disappearance of Knox. See Affidavit of Russell Schindler (10/5/95) (reproduced in Exhibit B to Dkt. No. 11) at ¶¶ VI 1-3. At approximately 11:00 p.m. on September 23, 1995, the Kingston Police Department arrested Whitehurst. Supp.App. at He was then read his Miranda rights,¹ and although he spoke with law enforcement agents for several hours at that time, he failed to provide the police with any information regarding Knox's whereabouts or condition. Id. The following day, just prior to Whitehurst's scheduled arraignment on kidnapping and other charges, he suggested to law enforcement agents that he could assist them in their efforts to locate Knox. Id. He then requested a meeting with an Assistant District Attorney of Ulster County to discuss the terms of his cooperation. Id. Thereafter, at approximately 11:00 p.m. on September 24, 1995, Assistant District Attorney John Prizzia, Esq. ("ADA Prizzia") met with Whitehurst at the Kingston police station. Id.² Whitehurst then spoke with ADA Prizzia for approximately one hour. See Dkt. No. 11, Exh. B at 153. During that time, Whitehurst initially spoke "hypothetically" about Knox's condition, and suggested that she might well be well alive, however he refused to divulge her whereabouts. See Dkt. No. 11, Exh. B at 153-54. Whitehurst and ADA Prizzia then discussed the possibility of Whitehurst entering into a cooperation agreement with the authorities. Those negotiations ultimately culminated in a written cooperation agreement signed by both parties. See Dkt. No. 11, Exh. B at 138-40; Supp.App. at 79-80.³ Under the terms of the Cooperation Agreement, in return for Whitehurst leading the police to Knox, the District Attorney's office agreed that Whitehurst would be permitted to plead guilty to a charge of first degree kidnapping with respect to Knox. See Cooperation Agreement. If Knox were found alive, Whitehurst would receive a minimum sentence of ten years imprisonment on the kidnapping charge. Id. The Cooperation Agreement further provided that Whitehurst would not be charged with Knox's murder, and noted that if Knox were found dead, the minimum term of Whitehurst's sentence on the kidnapping charge would range "between ten and fifteen years, depending upon the relevant facts and circumstances." See Cooperation Agreement.

In the early morning hours of September 25, 1995, Whitehurst, ADA Prizzia a team of law enforcement officers began searching for Knox. See Supp.App. at 80. During the course of that search, White-hurst initially declared that the victim was "definitely alive" when he left her, however he subsequently admitted that he had struck her in the head before he left her and conceded that he might have strangled the child. See Dkt. No. 11, Exh. B at 155. At Whitehurst's suggestion, the team initially searched for Knox in an area of Ulster County known as "the caves." Id. When Knox could not be located the Whitehurst speculated that the victim might have crawled out of the cave. Id. After approximately five hours of searing several different locations, White-hurst eventually brought the police to the general location of Knox's body. Id. at 155; Supp.App. at 80. At that time, her lifeless body was found buried under brush and leaves near Rockwell Lane in the Town Ulster.⁴ See Dkt. No. 11, Exh. B at 155; see also Supp.App. at 80.

Shortly after the police located Knox, the District Attorney announced that he did not consider himself bound by the Cooperation Agreement. See Dkt. No. 11, Exh. B at 149-50. A felony complaint was subsequently filed against Whitehurst charging him with murder in the first degree. See Dkt. No. 11, Exh. B at 156. The case was subsequently presented to a Ulster County Grand Jury. That accusatory body thereafter returned a multi-count indictment against Whitehurst, charging him with, inter alia, murder in the first degree (in violation of N.Y. Penal Law § 125.27(1)(a)(vii)), second degree murder (contrary to N.Y. Penal Law § 125.25(1)), first degree kidnapping (in violation of N.Y. Penal Law § 135.25(3)), rape in the first degree (contrary to N.Y. Penal Law § 130.35(3)), and first degree sodomy (in violation of N.Y. Penal Law § 130.50(1)). See Indictment No. 172-95 (reproduced at Dkt. No. 11, Exh. B at 9-20) ("Indictment"). By notice filed in the Ulster County Court on January 26, 1996, the District Attorney declared his intention to seek the death penalty should Whitehurst be convicted of first degree murder. See Dkt. No. 11, B at 21.

After his arraignment on the above charges, Whitehurst moved, pursuant to New York Civil Practice Law and Rules ("CPLR") Article 78, for a court order prohibiting the District Attorney from prosecuting Whitehurst for first or second degree murder relating to the death of Knox.⁵ In a Decision and Order dated December 4, 1995, the County Court ruled that it could not prohibit the District Attorney from pursuing those charges because the Cooperation Agreement upon which Whitehurst's CPLR application was based did not create any jurisdictional impediment to the prosecution which White-hurst sought to prevent. See Whitehurst v. Kavanagh, 167 Misc.2d 86, 90, 636 N.Y.S.2d 591 (Albany Co. Sup.Ct.1995). That court also opined that the Cooperation Agreement itself was unenforceable because the "bargaining chip" that White-hurst utilized in securing that agreement — the safe return of the victim — rendered the agreement contrary to public policy. See Whitehurst, 167 Misc.2d at 92, 636 N.Y.S.2d 591 (citation omitted). Petitioner appealed that decision to the New York State Supreme Court, Appellate Division, Third Department. That court, however, ruled that the trial court had properly exercised its discretion in denying petitioners motion. Whitehurst v. Kavanagh, 218 A.D.2d 366, 640 N.Y.S.2d 345 (3rd Dept. 1996). New York's Court of Appeals denied Whitehurst leave to appeal that determination in its decision dated May 7, 19 See Whitehurst v. Kavanagh, 88 N.Y 873, 645 N.Y.S.2d 443, 668 N.E.2d 4 (1996).

On November 20, 1996, following negotiations between Whitehurst's counsel a the District Attorney's office, Whitehurst appeared before County Court Judge Michael Bruhn to enter a change of plea with respect to the charges brought against Whitehurst in the Indictment. Under the terms of that plea agreement Whitehurst was required to plead guilty to one count of first degree murder in satisfaction of all charges brought against him in that accusatory instrument. See Dkt. No. 11, Exh. 13 at 33-34. During the colloquy between Whitehurst and the trial court regarding the proposed plea, Whitehurst informed that court that: i) he was pleading guilty of his own free will; ii) no one was forcing him to plead guilty; iii) he had had the opportunity to discuss the proposed plea with his attorney and other members of the Capital Defender's Office; and iv) he was satisfied with the services provided to him by that Office. See Dkt. No. 11, Exh. B at 34-35. Whitehurst also admitted at that proceeding that he understood that by his plea, he was: i) admitting that on September 21, 1995, he had killed Knox during the course of her abduction; ii) waiving his rights to, inter alia, a jury trial, proof of his guilt beyond a reasonable doubt, cross-examine all prosecution witnesses, and to call witnesses on his own behalf. See Dkt. No. 11, Exh. B at 35-37. The County Court then reviewed the terms of the proposed plea and sentence with Whitehurst. See Dkt. No. 11, Exh. B at 38.⁶ After Judge Bruhn determined that Whitehurst: i) had spoken about the proposed plea and sentence with his attorneys; ii) understood the terms of the plea; and iii) understood the terms of the agreed upon sentence, the County Court accepted Whitehurst's guilty plea. See Dkt. No. 11, Exh. B at 38-40.

On December 12, 1996, petitioner was sentenced by Judge Bruhn to the stipulated term of life imprisonment without the possibility of parole. See Dkt. No. 11, Exh. B at 47, 66. The following month, on January 7, 1997, Whitehurst filed his appeal of his conviction and sentence with the Appellate Division. See Dkt. No. 11, Exh. B at 2. However, prior to perfecting that appeal, he filed a motion to vacate his judgment of conviction pursuant to Section 440.10 of New York's Criminal Procedure Law. See Dkt. No. 11, Exh. B at 69-89 ("CPL Motion"). In that application, Whitehurst sought to vacate his conviction and sentence and to enforce the Cooperation Agreement which Whitehurst argued precluded his prosecution — and subsequent conviction and sentence — on murder charges. Id. In support of his application, Whitehurst claimed that his attorney rendered constitutionally ineffective assistance when he allowed Whitehurst to plead guilty to the first degree murder charge before the trial court...