CHARLES J. SIRAGUSA, District Judge.
Before the Court is Petitioner Neftali Perez's ("Petitioner") application for appointment of counsel pursuant to 28 U.S.C. § 1915(d) to provide legal assistance in pursuing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In order to determine whether the Court should "request an attorney to represent any person unable to afford counsel," 28 U.S.C. § 1915 (1996), "the Court must decide whether, `from the face of the pleadings,' the claims asserted by the plaintiff `may have merit,' or the plaintiff `appears to have some chance of success.'" Martinson v. U.S. Parole Comm'n., No. 02CIV.4913 (DLC)(DF), 2004 WL 203005, at *2 (S.D.N.Y. Feb. 2, 2004) (quoting Stewart v. McMikens, 677 F.Supp. 226, 228 (S.D.N.Y.1988), and Baskerville v. Goord, No. 97 Civ. 6413(BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001)).
Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus at 1, Oct. 8, 2014, ECF No. 7.
On May 27, 2010, Petitioner was charged with: Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25(1)); Assault in the First Degree (N.Y. Penal Law § 120.10(1)); Assault in the Second Degree (N.Y. Penal Law § 120.05(7)); and three counts of Promoting Prison Contraband in the First Degree (N.Y. Penal Law § 205.25(2)). State Court Record 66-68, Oct. 8, 2014, ECF No. 8-1 (Indictment No. 2010-129).
In a letter dated August 26, 2010, addressed to the state judge, Petitioner's former counsel stated that he "[spoke] at length with [petitioner], and he wishes to accept the plea bargain offer." State Court Record 117-18. Counsel's letter also "advise[d] the Court and the People of what [counsel] expect[ed] to be the general substance of [petitioner's] allocution in advance of the plea," writing:
State Court Record 117.
Petitioner appeared before Chemung County Court Judge James T. Hayden on August 27, 2010, with counsel to accept a plea that offered a maximum of 15 years and 5 years of post-release supervision. State Court Record 11-12. The judge asked Petitioner the following questions, to which he gave the following answers:
State Court Record 14-18.
After entering the plea, Petitioner appealed to the Appellate Division, Third Department. Petitioner claimed: the trial court erred in accepting his guilty plea because Petitioner continued to assert self-defense, and that Petitioner's trial counsel was ineffective for advising him to plead guilty when he maintained self-defense. State Court Record 26-60. The Appellate Division, Third Department affirmed the plea agreement, writing:
People v. Perez, 101 A.D.3d 1162, 955 N.Y.S.2d 435, 2012 N.Y. Slip Op. 08355 (N.Y. App. Div. 3rd Dep't 2012). Petitioner then filed an application for leave to appeal to New York Court of Appeals, raising the same issues. State Court Record 170-73. On February 6, 2013, the Appellate Division issued an order denying leave to appeal to the Court of Appeals. State Court Record 177-78. Petitioner has not filed any state collateral proceedings. Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ¶ 11, May 2, 2014, ECF No. 1.
The Court has a limited degree of discretion when deciding if an indigent individual should receive appointed legal counsel. Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), provides the requirements that must be met for counsel to be appointed to a civil litigant:
Hodge, 802 F.2d at 60. As the district court observed in Martinson v. United States Parole Comm'n, No. No. 02CIV.4913 (DLC)(DF), 2004 WL 203005, at *2 (S.D.N.Y. Feb. 2, 2004):
Another important criterion a court must consider is the merit of a claim; frivolous claims that will not be successful do not require assignment of legal counsel. Moreover,
Id.
Respondent's counsel's argument that Petitioner is procedurally barred from obtaining a writ of habeas corpus from the Court is well taken. It appears from the pleadings that Petitioner had an independent and adequate state procedure he needed to use in order to preserve his challenge to the sufficiency of plea allocution by either moving the state trial court to vacate the judgment or enter a different plea. Further, Petitioner it appears so far that Petitioner may have failed to,
People v. Perez, 101 A.D.3d 1162, 1162 (N.Y. App. Div. 3d Dep't 2012). This procedure is the "sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights," James v. Kentucky, 466 U.S. 341, 348-49 (1984), because it meets the requirements set forth in Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003). Cotto sets forth three important guidelines that must be considered when examining the legitimacy of a procedural default: (1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest. Id. at 240.
Applying the three Cotto factors, the Court notes first that the trial judge in taking the plea specifically raised the issue of self defense with Petitioner. Although Petitioner in his petition suggests his self-defense was ignored ("THE COURT ERRED IN ACCEPTING DEFENDANT'S PLEA WHEN DEFENDANT CONTINUED TO ASSERT SELF DEFENSE"), Pet. ¶ 10(f), the transcript of his plea proceeding, partially quoted above starting at 3, belies any assertion that Petitioner insisted in raising a claim of self-defense at his plea colloquy. Thus, Petitioner's plea never "was `actually relied on' by the trial court in the sense that the trial court never was given occasion to consider— and conceivably cure by granting his motion to withdraw his plea—the alleged insufficiency." Brea v. New York City Probation Dept., No. 03 Civ. 4822, 2004 WL 389011, at *7 (S.D.N.Y. Mar. 3, 2004).
Regarding the second Cotto factor, ample case law exists that requires Petitioner to preserve his challenge to the involuntariness of his plea prior to moving to appeal. See, e.g., People v. Clarke, 93 N.Y.2d 904, 906 (1999) ("this case does not qualify for the narrow, rare exception to the requirement that the claim of an invalid guilty plea must be appropriately preserved"); People v. Lopez, 71 N.Y.2d 662, 665-66 (1988) ("in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10"); People v. Claudio, 64 N.Y.2d 858, 858-59 (1985) ("the argument that defendant's guilty plea should not have been accepted is also not preserved for appellate review because defendant neither moved to withdraw the plea before sentencing nor raised the issue by a motion to vacate the judgment of conviction"); People v. Hilliard, 39 A.D.3d 1021, 1022 (N.Y. App. Div. 3d Dep't 2007) ("defendant's assertion that his guilty plea was involuntarily entered is unpreserved for our review in light of his failure to move to withdraw the plea or vacate the judgment of conviction"); People v. Peterson, 35 A.D.3d 1195, 1196 (N.Y. App. Div. 4th Dep't 2006) ("by failing to move to withdraw his plea or to vacate the judgment, defendant failed to preserve [his contention that his plea was not knowingly, voluntarily or intelligently entered] for our review"). The same procedural ground that requires Petitioner to preserve his challenge to his plea has been used in New York courts, "`[t]o the extent that a claim of ineffective assistance of counsel impacts on the voluntariness of a defendant's guilty plea, . . . the claim must ordinarily be preserved by a motion to withdraw the plea or a motion to vacate the judgment of conviction.'" People v. Dickson, 292 A.D.2d 643, 644 (3d Dep't 2002) (citation omitted); accord, e.g., People v. Doe, 95 A.D.3d 1449, 1449 (3d Dep't 2012); People v. Campbell, 89 A.D.3d 1279, 1279 (3d Dep't 2011); People v. Ross, 41 A.D.3d 870, 870 (2d Dep't 2007); People v. Grant, 294 A.D.2d 671, 672 (3d Dep't 2002); People v. Johnson, 288 A.D.2d 501, 502 (3d Dep't 2001). The Court agrees with the state court
The third Cotto guideline is met because Petitioner never complied with procedural rule. He did not withdraw his plea or move to vacate the judgment before direct appeal. "By definition, total noncompliance cannot also be `substantial compliance.'" Clark v. Perez, 510 F.3d 382, 391 (2d Cir. 2008).
After meeting all three Cotto guidelines, the Court finds that the procedural bar is legitimate. However, a court may nonetheless review a claim that is procedurally barred if "the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). As the Court will examine below, Petitioner's claims appear to lack merit.
Even though Petitioner's claims appear to be frivolous due to a procedural bar, the Court will also examine the merits of his Petition to determine if a miscarriage of justice would occur by not considering the claims. Prior to examining the merits, the issues raised by Petitioner must meet the exhaustion rule requirement.
Baldwin v. Reese, 541 U.S. 27, 29 (2004). Petitioner has raised two claims in his petition: one for ineffective assistance of counsel, and the other for an involuntary plea. The Court finds that the Petitioner did not exhaust all state remedies pertaining to his ineffective assistance of counsel claims because he did not indicate the potential federal claim on any of his state papers, thus precluding him from raising this issue before the Court. Although the Court agrees that Petitioner's involuntary plea claim is exhausted, it does not survive the requirements set forth in Hill v. Lockhart, 474 U.S. 52 (1985): "The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Id. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)) (other citations omitted).
Petitioner admitted under oath that he was guilty, and provided an explanation of his actions. He went far beyond self-defense and his legal counsel at the time advised him to accept the plea bargain, specifically spelling out the justification for his advice. When asked by the judge if he understood, Petitioner asserted he did understand what the plea agreement meant. The above series of events satisfies the voluntary and intelligent requirements of Hill.
The Supreme Court shed light upon "a particular risk that an after-the-fact assessment will run counter to the deference that must be accorded counsel's judgment and perspective when the plea was negotiated, offered, and entered." Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 742 (2011). As Petitioner clearly reassessed his plea agreement after receiving advice from a judge, he still "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130, 1473, 1485 (2010). Petitioner has done little more than assert self-defense. Further, Petitioner did not explain to the trial court how proceeding to slash the inmate who initiated the assault, after Petitioner successfully disarmed him, was within the realm of self-defense. Petitioner's counsel's August 26, 2010, letter to the state judge remarked that slashing the inmate was to gain respect, not self-defense. State Court Record 117 ("Having successfully defended himself, this later assault was intended to send a message to other inmates."). Petitioner's claim that his plea was involuntary is not supported by the evidence as it exists at this time.
For the reasons stated above, Petitioner's application for assignment of pro bono counsel, ECF No. 9, is denied. Petitioner must move forward with this case either by obtaining counsel on his own, or by representing himself. Petitioner shall have until January 29, 2016, to reply to Respondent's memorandum in opposition, and to identify any further evidence necessary for the Court to consider before rendering judgment on his petition.
