09-4320-pr
        Bonner v. Ercole

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2      Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3      on the 29th day of October, two thousand and ten.
 4
 5      PRESENT:
 6
 7              GUIDO CALABRESI,
 8              DEBRA ANN LIVINGSTON,
 9                             Circuit Judges,
10
11              PAUL A. CROTTY,
12                              District Judge.*
13      _______________________________________________
14
15      IVAN BONNER,
16
17                                    Petitioner-Appellant,
18
19                         v.                                               No. 09-4320-pr
20
21      ROBERT E. ERCOLE, Superintendent,
22
23                              Respondent-Appellee.
24      ______________________________________________
25
26


                *
                The Honorable Paul A. Crotty, District Judge of the United States District Court for the
        Southern District of New York, sitting by designation.

                                                         1
 1                                         MARJORIE M. SMITH, Piermont, New York, for Petitioner-
 2                                         Appellant.
 3
 4                                         ANDREW M. CUOMO, Attorney General of the State of New
 5                                         York; PAUL B. LYONS, Assistant Attorney General, New
 6                                         York, New York, for Respondent-Appellee.
 7

 8          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 9   that the judgment of the district court be AFFIRMED.

10          Petitioner-Appellant Ivan Bonner (“Bonner”) appeals from a decision and order of the United

11   States District Court for the Northern District of New York (Singleton, J.) denying his petition for

12   a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Bonner v. Ercole, No. 07-cv-00399,

13   

(N.D.N.Y. Oct. 6, 2009). Bonner challenges his May 27, 2003

14   conviction in New York State, Albany County Court, convicting him, upon his guilty plea, of one

15   count of Robbery in the Second Degree. The Appellate Division affirmed Bonner’s conviction on

16   September 22, 2005, while the New York Court of Appeals denied leave to appeal on January 20,

17   2006. People v. Bonner, 

(N.Y. App. Div. 3d Dep’t 2005), leave denied, 

  773 (2006). This Court granted a Certificate of Appealability on the issue of “whether appellant’s

19   due process rights were denied by the prosecutor’s breach of a plea agreement and, if they were,

20   what the appropriate remedy should be.” We assume the parties’ familiarity with the underlying

21   facts and procedural history.

22          We review a district court’s denial of a petition for habeas corpus de novo, and its factual

23   findings for clear error. Hemstreet v. Greiner, 

, 89 (2d Cir. 2007); Anderson v. Miller,

24   

, 324 (2d Cir. 2003). The petitioner bears the burden of proving a violation of his

25   constitutional rights by a preponderance of the evidence. Hawkins v. Costello, 

, 246

26   (2d Cir. 2006). Because Bonner challenges a state court claim adjudicated on the merits, we apply

27   the deferential standard of review codified in the Antiterrorism and Effective Death Penalty Act of

                                                      2
 1   1996, 28 U.S.C. § 2254(d) (“AEDPA”). Dolphy v. Mantello, 

, 238 (2d Cir. 2009).

 2   Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that

 3   was adjudicated on the merits in state court only if the state court’s decision was “contrary to, or

 4   involved an unreasonable application of, clearly established Federal law as determined by the

 5   Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); 

.

 6          Bonner argues on appeal that: 1) the state prosecutor breached his plea agreement not to

 7   “seek” to call Bonner to testify at his co-defendant’s trial; and 2) this breach was sufficient to

 8   warrant habeas relief. See Santobello v. New York, 

, 262 (1971) (“[W]hen a plea rests

 9   in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a

10   part of the inducement or consideration, such promise must be fulfilled.”). Although the district

11   court agreed that the prosecutor had breached the plea agreement, it concluded that the breach was

12   nonmaterial and thus did not warrant relief.

13          We, instead, do not believe that any plea agreement was actually breached. In this case, we

14   do not have before us a written plea agreement or even a clear account of the agreement by the

15   parties. What we have is a statement about the agreement by the trial judge. Read in the context

16   of the judge’s use of some of the same words shortly before that statement, we conclude that the

17   arrangement agreed to was simply that Bonner not be made to testify. Since, as all agree, he was

18   not, there was no breach. When one adds the fact that no action to withdraw the plea was taken for

19   sixteen months and considers the ABA Standards for Criminal Justice, which suggest that such a

20   motion should be “timely,” Standard 14-2.1(b), we believe the district court correctly denied habeas.

21          For the foregoing reasons, the judgment of the district court is AFFIRMED.

22

23                                                         FOR THE COURT:
24                                                         Catherine O’Hagan Wolfe, Clerk


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