MICHAEL A. TELESCA, District Judge.
Proceeding
After Petitioner was arrested and charged in the non-fatal stabbing of Melquiaedes Torres, he was indicted on one count of assault in the first degree (N.Y. Penal Law § 120.10(1)). Petitioner elected to enter a plea of guilty to the sole count charged in the indictment, and was denied youthful offender status by the plea court. Petitioner was sentenced to a determinate term of 15 years plus 5 years of post-release supervision.
On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction.
This timely habeas petition followed. Respondent answered the petition, but Petitioner failed to timely file a reply. For the reasons discussed below, the petition is dismissed.
Petitioner asserts that his waiver of appellate rights was invalid and insufficient to preclude the denial of his request for youthful offender status and to preclude review of his sentence as harsh and excessive. On appeal, the Appellate Division held that Petitioner's appellate rights waiver was knowing, voluntary and intelligent.
Petitioner has not cited, and the Court is not aware of, any federal precedent standing for the proposition that specific language must be used by the trial judge in apprising a defendant pleading guilty of the individual rights relinquished.
On appeal, Petitioner asserted that his 15-year determinate sentence was unduly harsh and severe, and that the sentencing judge abused his discretion in not imposing a shorter sentence. Petitioner urged the Appellate Division to exercise its discretionary authority under New York State law to review factual questions and reduce the length of his sentence in the interests of justice. Thus, Petitioner's claims with respect to his sentence, based solely on state law, are not appropriate for federal habeas review.
The Second Circuit has stated that no federal constitutional issue amenable to habeas review is presented where the sentence is within the range prescribed by state law.
Petitioner contends that the trial court abused its discretion in declining to accord him youthful offender status. As Respondent argues, this claim is not cognizable on Federal habeas review.
Under New York law, "[t]he decision whether to grant youthful offender status to an eligible youth generally `lies within the sound discretion of the sentencing court.'"
Respondent states that, construed liberally, Petitioner's pleadings can be read to assert that his guilty plea was involuntary. In particular, Respondent cites the point heading regarding Ground I of Petitioner's memorandum of law. The Court has reviewed the memorandum of law and agrees that Petitioner is asserting that his plea was involuntary, due to the "purported appeal waiver being ineffective to preclude Petitioner['s] challenge" to the trial court's denial of youthful offender status and to the length of his sentence. Petitioner's involuntariness argument is similar to arguments raised elsewhere in his petition regarding the validity of his appellate rights waiver. To the extent that Petitioner's involuntariness claim is interpreted as a due process claim, separate and apart from his claims concerning his appellate rights waiver, Respondent argues that it is unexhausted because it was not presented to the state courts in constitutional terms. "In New York, claims about the voluntariness of a guilty plea must be presented to the state court in one of three ways: a motion to withdraw the plea before sentencing, a post-judgment New York Criminal Procedure Law ("C.P.L.") § 440.10 motion in the trial court, or on direct appeal if the record permits."
Respondent contends that the claim should be deemed exhausted and procedurally defaulted because state procedural bar rules operate to deny Petitioner of any available remedies in the state courts. In the interest of judicial economy, the Court declines to resolve the exhaustion and potential procedural default issues and proceeds instead to the merits of the voluntariness claim.
In evaluating whether a plea was voluntarily made, courts consider (1) whether the defendant had the competent advice of counsel; (2) whether he understood the consequences of pleading guilty; and (3) whether the plea resulted from coercion, be it physical or psychological.
With regard to the effectiveness of the appellate waiver to preclude review of the denial of youthful offender status, the Appellate Division in fact agreed with Petitioner, and reviewed the trial court's decision regarding youthful offender status on direct appeal. Therefore, Petitioner's claim on that point is moot.
The Appellate Division did not agree with Petitioner regarding the effectiveness of the waiver to preclude a challenge to his sentence, however, and accordingly did not review his sentencing challenge. Petitioner's assertion that he did not understand he was giving up his right to raise a later challenge to his sentence is belied by the following colloquy he had with the trial court:
Plea Transcript, p. 8 (emphasis supplied). Thus, the record contradicts Petitioner's contention that the plea was involuntary because he did not understand or agree that, as a part of the plea agreement, he was giving up his right to contest the length of his sentence.
In the second point of his memorandum of law, Petitioner asserts that his sentence violates the Eighth and Fourteenth Amendments because it is disproportionate to the seriousness of his crime and does not take into account various mitigating factors. Respondent has not addressed this claim, which is based on the Eighth Amendment and is unexhausted, having never been fairly presented to the state courts in federal constitutional terms. Although Petitioner challenged his sentence on direct appeal, he requested only that the Appellate Division exercise its statutory authority to reduce the sentence on the basis that it was harsh and excessive. Because Petitioner could return to state court and file a motion pursuant to C.P.L. § 440.20 to set aside the sentence on the ground that it is illegal and unconstitutional, his Eighth Amendment claim remains unexhausted.
The Court has the discretion to dismiss the petition on the merits notwithstanding Petitioner's failure to exhaust all of his claims.
The Supreme Court has articulated a narrow principle of "gross disproportionality" for measuring whether a prisoner's sentence violates the Eighth Amendment proscription against "cruel and unusual punishment."
Here, as explained above, Petitioner's 15-year determinate sentence fell roughly in the middle of the applicable sentencing range for his conviction of the class B violent felony offense of first degree assault with a dangerous instrument, with intent to cause serious physical injury (P.L. § 120.10(1)). He received 10 years less than the 25-year maximum he could have received. The victim in this case survived the attack, but was in a month-long coma as the result of the life-threatening injuries he suffered. Petitioner has cited a number of factors in his favor, such as his acceptance of responsibility and statements from family members that this act was wholly out of character. However, looking at the Supreme Court's precedents on the Eighth Amendment and disproportionality,
For the reasons discussed above, the petition (Dkt.# 1) is dismissed. Because Petitioner has failed to make a substantial showing of a denial of a constitutional right, the Court declines to issue a certificate of appealability.
