12-0700-pr (L)
Cardoza v. Rock

                    UNITED STATES COURT OF APPEALS

                          FOR THE SECOND CIRCUIT

                                August Term, 2012

(Argued: February 15, 2013                                  Decided: September 24, 2013)

                  Docket Nos. 12-0700-pr (L), 12-0709-pr (XAP)

                           -------------------------------------

                              WILLIAM CARDOZA,

                      Petitioner-Appellee-Cross-Appellant,

                                          -v-

  DAVID ROCK, Superintendent, Great Meadow Correctional Facility, ERIC T.
          SCHNEIDERMAN, New York State Attorney General,

                    Respondents-Appellants-Cross-Appellees.

                           -------------------------------------

Before:     SACK, HALL, and LIVINGSTON, Circuit Judges.

            Appeal by the respondents from a judgment of the United States

District Court for the Southern District of New York (Paul A. Crotty, Judge)

granting in part the petitioner's habeas corpus application. The petitioner cross-

appeals from so much of the judgment as denied his application for habeas relief.

We conclude that the state court's decision denying the petitioner's claim that he
received ineffective assistance of counsel because his attorneys failed to

communicate to him all of his plea options was not based on an unreasonable

determination of the facts in light of the evidence presented. We therefore

reverse the judgment of the district court granting the application. We also

conclude that the state court's denial of the petitioner's claim that he received

ineffective assistance of counsel because one of his attorneys was a coconspirator

of his did not rest on an unreasonable determination of the facts, and we affirm

the district court's denial of the habeas application on this ground.

             Affirmed in part; reversed in part.

                                 SVETLANA M. KORNFEIND, The Legal Aid
                                 Society, Criminal Appeals Bureau, New York,
                                 NY, for Petitioner-Appellee-Cross-Appellant.

                                 MICHELLE MAEROV, Assistant Attorney
                                 General (Barbara D. Underwood, Solicitor
                                 General, Roseann B. MacKechnie, Deputy
                                 Solicitor General for Criminal Matters, on the
                                 brief), for Eric T. Schneiderman, Attorney General
                                 of the State of New York, New York, NY, for
                                 Respondents-Appellants-Cross-Appellees.

SACK, Circuit Judge:

             In this appeal from the judgment of the United States District Court

for the Southern District of New York (Paul A. Crotty, Judge) granting petitioner




                                          2
William Cardoza's application1 for habeas corpus relief under 28 U.S.C. § 2254,

we consider whether a state court's decision rejecting Cardoza's ineffective

assistance of counsel claims rested on an "unreasonable determination of the facts

in light of the evidence presented," id. § 2254(d)(2).

              Cardoza was tried and convicted of drug conspiracy and possession

charges, and sentenced to forty years to life by a state court judge. On direct

appeal and in his motion to vacate the judgment, Cardoza argued that his

attorneys had provided ineffective assistance because, among other things, (1)

they failed adequately to explain his plea options to him, and (2) his first

attorney, Russell Carbone, was a coconspirator in the crime for which Cardoza

was being tried and therefore burdened by a conflict of interest. These claims

were rejected by the state trial court and the Appellate Division. Cardoza

challenged both decisions in his habeas application.



       1
          Although the document with which the incarcerated person seeks relief under
28 U.S.C. § 2254 is referred to in the statute as an "application," it is nonetheless
ordinarily referred to following common-law terminology as a habeas or habeas corpus
"petition." See, e.g., Parker v. Matthews, --- U.S. ---, 

, 2150 (2012) (per
curiam) ("Following an unsuccessful state postconviction proceeding, Matthews filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District
Court for the Western District of Kentucky."). Compare, for example, the pre-section
2254 case, Ex parte Hawk, 

, 115 (1944) (per curiam) ("Petitioner . . . filed in
the United States District Court for Nebraska a petition for habeas corpus, alleging
matters not previously brought to the attention of the state courts."). We use the terms
interchangeably.

                                             3
             The district court, adopting the Report and Recommendation (the

"R&R") of a magistrate judge (Ronald L. Ellis, Magistrate Judge), agreed with the

state appeals court that the record did not support Cardoza's allegation that

Carbone was a coconspirator in the narcotics conspiracy. But the district court

also determined, again adopting the magistrate judge's recommendation, that the

state trial court that rejected Cardoza's motion to vacate his conviction had

misunderstood material aspects of the record, and that Cardoza was entitled to

habeas relief because his attorneys had failed to discuss with him a critical plea

option that likely would have resulted in a sentence significantly lower than that

actually imposed.

             On appeal, the respondents challenge the district court's decision

granting Cardoza's habeas petition on his claim regarding his counsel's failure to

communicate certain plea options. Cardoza cross-appeals from the court's denial

of his conflict of interest claim. We conclude that the state court's determination

that there is insufficient evidence to support the allegation that Carbone was a

coconspirator was not, under section 2254(d)(2), based on an "unreasonable

determination of the facts in light of the evidence presented," and therefore

affirm the district court's denial of Cardoza's conflict of interest claim. We

further conclude that in granting Cardoza's habeas petition on the ground that he


                                          4
was not made aware of a particular plea option, the magistrate judge and district

court misread the state court's decision denying that claim. Because we conclude

that the state court's finding that Cardoza was made aware of another, more

favorable, plea option was not an "unreasonable determination of the facts," we

reverse the district court's decision insofar as it grants Cardoza's habeas petition

on this ground.

                                 BACKGROUND

             Criminal Proceedings

             William Cardoza was a leader of a narcotics trafficking enterprise

known as the Juan Carlos Organization (the "Organization"). On June 6, 1997,

officers in the New York City Drug Enforcement Task Force ("NYDETF") seized

102 kilograms of cocaine from a garage in Brooklyn, New York, and arrested six

persons connected with the Organization. Cardoza retained a lawyer named

Russell Carbone to represent five of the six individuals arrested.

             On July 3, 1997, NYDETF seized 135 kilograms of cocaine from a

garage in Queens, New York, and arrested Cardoza and five others at the scene.

NYDETF agents also arrested Cardoza's wife, Consuela Perez, later that day.

             Cardoza was charged with two counts of Criminal Possession of a

Controlled Substance in the First Degree, in violation of New York Penal Law


                                          5
§ 220.21(1); two counts of Criminal Possession of a Controlled Substance in the

Third Degree, in violation of New York Penal Law § 220.16(1); and one count of

Conspiracy in the Second Degree, in violation of New York Penal Law § 105.15.

Perez was charged with a single conspiracy count. He retained Carbone to

represent him and his wife.

            In late August and early September 1997, Cardoza, then represented

by Carbone, engaged in three proffer sessions with New York County Assistant

District Attorney ("ADA") Lisa Tompkins in which he revealed information about

the Organization and his role in it. His cooperation was apparently designed to

secure his wife's release on bail and a reduced sentence for her.

            At the first such session, ADA Tompkins explained to Cardoza his

minimum and maximum sentence exposure. She further made clear that the

state was "not making an offer to him of a plea to a lesser charge." Undated

Affirmation of New York County Assistant District Attorney Lisa Tompkins

("Tompkins Aff."), at ¶ 8, Joint App'x at 114. Because of Cardoza's leadership role

in the Organization and the strength of the case against him, the state had

decided to condition any plea agreement that allowed Cardoza to plead to a

"lesser charge" upon his cooperation with the prosecution. Id. at ¶ 4, Joint App'x

at 113. The state did make non-cooperation "plea offers" to Cardoza's co-


                                         6
defendants, all of whom played a comparatively minor role in the Organization.

Id.

            Because she believed Cardoza was interested in cooperating with the

prosecution, ADA Tompkins drafted a cooperation agreement between Cardoza

and the state. The draft cooperation agreement required Cardoza to plead guilty

to the top count of the indictment -- Criminal Possession of a Controlled

Substance in the First Degree, an A-I felony -- and set forth the following

sentencing parameters: (1) if Cardoza's cooperation proved fruitless but he did

not breach the agreement, he would receive a sentence of seventeen years; (2) if

Cardoza adhered to the agreement and his cooperation was helpful, the

government would agree to a sentence of less than seventeen years; and (3) if

Cardoza breached the agreement, he would receive an indeterminate sentence of

twenty-five years to life. Draft Plea & Cooperation Agreement, Joint App'x at

130-42. Plea negotiations broke down at the third and final proffer session,

however. Cardoza refused to provide the prosecution with information about

others involved in the Organization. He never entered into a cooperation

agreement with the state.

            During a calendar call in New York County Supreme Court on

September 10, 1997, ADA Tompkins provided Cardoza and his co-defendants


                                         7
with a "plea letter" setting forth the offers being made to each defendant.

According to an affidavit submitted by ADA Tompkins during later collateral

proceedings, "[b]ecause [the DA's] office was not making a plea offer as to

[Cardoza], the plea letter stated that the People would make a sentencing

recommendation to the Court of 17 years to life if [Cardoza] chose to plead to the

top count of the indictment before trial."2 Tompkins Aff. at ¶ 5, Joint App'x at

113.

              In mid-September 1997, Cardoza terminated Carbone as his counsel

and hired Lawrence Herrmann in Carbone's stead. In a short affidavit filed by

Herrmann in collateral proceedings before the state court, he recalled "discussing

alternatives" with Cardoza, who was "never pleased and seemingly unable to

accept the gravity of the allegations." Affidavit dated July 26, 2007, of Lawrence

M. Herrmann ("Herrmann Aff."), at ¶ 9, Joint App'x at 119. Herrmann

remembered a "plea offer from the [prosecutor] of a plea to an A-I felony with a

recommended sentence of some 18 years to life, rather than the 25 to life he

would face after a lost trial," but could recall "no indication of interest in the plea"

on Cardoza's part. Id. at ¶¶ 10-11, Joint App'x at 119.



       2
               The state was unable to locate a copy of this "plea letter" during the course
of collateral proceedings before the state courts. Id.

                                             8
             In April 1998, Cardoza released Herrmann and replaced him with

Christopher Chan. ADA Tompkins recalled discussing the sentencing

recommendation set forth in the "plea letter" with Chan. Tompkins Aff. at ¶ 11,

Joint App'x at 116-17. In June 1998, ADA Tompkins was preparing to take a

maternity leave. She turned the prosecution of the case over to Assistant District

Attorney Joseph DePadilla.

             ADA DePadilla stated that he "reviewed with Mr. Chan the earlier

offer to plead guilty to the top count of the indictment with a sentencing

recommendation of 17 years to life." Affirmation dated Sept. 5, 2007, of Assistant

District Attorney Joseph DePadilla ("DePadilla Aff."), at ¶ 4, Joint App'x at 111.

ADA DePadilla told Chan that this sentencing recommendation "offer" would

expire on July 31, 1998. Id. When Cardoza did not agree to plead guilty by that

date, DePadilla sent Chan a memorandum titled "Plea offer for William Cardoza

a/k/a Juan Carlos a/k/a Tony," which read:

             As per our discussion on July 22, 1998, the offer to
             William Cardoza of 17 years to life is withdrawn as of
             today. There will be no other offers in this case. If the
             defendant chooses to plea on the day of trial the People
             will insist the defendant plea to the entire indictment
             and the People's recommendation for sentence will be
             an appropriate number between 20 and 25 years to life.




                                         9
Mem. from Assistant District Attorney Joseph DePadilla to Christopher Chan,

Esq. (July 31, 1998) ("DePadilla Memo"), Joint App'x at 129.

             In September 1998, Cardoza fired Chan and hired his fourth and (for

the purposes of the trial proceedings) final lawyer, Irving Anolik. After trial, a

jury convicted Cardoza on all of the conspiracy and possession counts. On

March 31, 1999, the trial court (Bonnie G. Wittner, Justice) sentenced Cardoza to

an indeterminate prison term of 40 years to life. His direct appeal was denied.

People v. Cardoza, 

, 

 (1st Dep't 2005). So too was

his application for leave to appeal to the New York Court of Appeals. People v.

Cardoza, 

, 

, 

 (2006) (Ciparick,

Judge). In June 2006, Cardoza was resentenced under New York State's Drug

Law Reform Act to a term of thirty years to life.

             Section 440 Proceedings

             Shortly thereafter, in September 2006, Cardoza obtained and

examined a "Case Information Sheet" purporting to list the "offers" extended to

Cardoza and his co-defendants. Below the "offer" column next to Cardoza's

name was handwritten "17-life."

             Cardoza then filed a pro se motion to vacate the judgment of

conviction pursuant to New York Criminal Procedure Law § 440.10. He initially


                                         10
took the position that the only "offer" he knew about was the proposed

cooperation agreement; the newly discovered Case Information Sheet, he

contended, revealed that the state had made a non-cooperation plea offer of "17

to life," which he alleged had never been communicated to him by counsel. He

argued that his lawyers' failure to convey to him this non-cooperation plea offer

of seventeen years to life constituted ineffective assistance of counsel. Cardoza

also argued that Carbone provided ineffective assistance because Carbone

himself was involved in the drug conspiracy, and therefore had a conflict of

interest.

             In its response to the section 440.10 motion, the State maintained that

it had never offered the defendant a "plea bargain" that did not require his

cooperation, and that the "17 years to life" was not a "plea offer," but simply a

"recommendation to the Court if [Cardoza] sought to plead guilty to the top

count prior to trial." Affirmation dated February 14, 2007, of Assistant District

Attorney Susan Krischel,3 at ¶ 53; Pet'r's Br. at 20-21 (quoting Krischel



       3
          The relevant portion of the affirmation submitted by ADA Krischel in the
section 440.10 proceedings was omitted, accidentally it seems, from filings before the
district court. Before the parties filed their briefs on appeal, we granted Cardoza's
motion, made with the consent of the respondents, to submit the omitted portions of the
affirmation. ADA Krischel was part of the Office of the Special Narcotics Prosecutor for
the City of New York and was assigned to respond to Cardoza's pro se motion to vacate
his conviction.

                                          11
Affirmation). ADA Tompkins would later aver, similarly, that the State never

intended to make Cardoza a non-cooperation "plea offer," in the sense of "an offer

to him of a plea to a lesser charge." Tompkins Aff. at ¶¶ 4, 8, Joint App'x at 113-

14.

             The State's representation in response to his motion apparently

caused Cardoza, at this point represented by counsel, to pivot toward a new

position. Cardoza abandoned his argument that his lawyers had failed to tell

him about a cooperation-free plea option of seventeen years, and instead asserted

that such an option had in fact never been available to him, and that his lawyers'

deficiency was that they failed to explain to him that he had a right, under New

York law, to plead guilty to the entire indictment before trial, see N.Y. Crim. Proc.

Law § 220.10(2). This option would not have required him to cooperate with

authorities and could have resulted in a lighter sentence, he argued, so his

lawyers' failure to present it to him caused him prejudice.

             The New York County Supreme Court Justice who had presided at

trial denied Cardoza's section 440.10 motion without a hearing. People v.

Cardoza, Sup. Ct., NY County, Oct. 4, 2007, Wittner, J., Indictment No. 5504/97.

With respect to a "plea offer," the court found that the prosecution "never offered

[Cardoza] a plea as that term is commonly understood once he indicated he was


                                         12
unwilling to cooperate. Rather, they indicated on numerous occasions in open

court in front of defendant and in writing that if defendant ple[d] guilty to the

top count of the indictment they would recommend a sentence of 17 years to life."

Id. at 8. The court went on to conclude that "[s]ince an offer of 17 (or possibly 18)

years was 'on the table,' discussion of a plea to the entire indictment is, in any

case, irrelevant." Id.

             With respect to the conflict of interest claim, the state court

concluded that it was barred by New York Criminal Procedure Law

§ 440.10(2)(a)4 because it was raised and determined on the merits in Cardoza's

direct appeal, and that, in any event, the claim could not succeed because

Cardoza could not show any "adverse impact" from the alleged conflict. Id. at 7.

The Appellate Division affirmed the judgment on appeal, People v. Cardoza, 

, 

 (1st Dep't 2008), and Cardoza's application for leave

to appeal to the Court of Appeals was denied, 

, 

,

 (2009) (Ciparick, Judge).




      4
              New York Criminal Procedure Law § 440.10(2)(a) provides that a "court
must deny a motion to vacate a judgment when . . . [t]he ground or issue raised upon
the motion was previously determined on the merits upon an appeal from the
judgment." The Appellate Division had denied Cardoza's conflict of interest claim on
direct appeal. People v. Cardoza, 

, 429, 

, 66 (1st Dep't
2005).

                                          13
             Cardoza timely filed a habeas application in the United States

District Court for the Southern District of New York pursuant to 28 U.S.C. § 2254.

He claimed that he had been denied the effective assistance of counsel because

none of his attorneys informed him of his right to plead guilty to the entire

indictment pursuant to New York Criminal Procedure Law § 220.10(2). He also

asserted that Carbone provided ineffective assistance because, as a coconspirator,

Carbone's representation was burdened by a per se conflict of interest.

             On December 30, 2010, Magistrate Judge Ellis issued the R&R,

Cardoza v. Rock, No. 08-Civ-8210, 

, 

 (S.D.N.Y. Dec. 30, 2010), recommending that the district court grant the

petition as to Cardoza's claim that his attorneys had failed to explore

non-cooperation plea options, and remand to the state court to vacate the

conviction and resentence Cardoza to a sentence of no more than twenty-five

years, the high end of the range referenced in ADA DePadilla's memorandum of

July 31, 1998.

             The magistrate judge noted that Cardoza's lawyers had a

constitutional duty to inform Cardoza about his right to plead guilty to the entire

indictment and receive a recommended sentence of twenty to twenty-five years.

Because there was no evidence in the record that any of Cardoza's lawyers


                                        14
discussed this option with him -- and because his sentence after trial was

considerably longer than the twenty to twenty-five years he would have received

-- the magistrate judge concluded that Cardoza had indeed been denied the

effective assistance of counsel.

             The lynchpin of the magistrate judge's decision was his

determination that in denying the section 440.10 motion, the state court had

confused the proffered cooperation agreement -- which offered seventeen years

for fruitless cooperation and fewer years for helpful cooperation -- with the

section 220.10(2) option to plead to the entire indictment. The magistrate judge

concluded that the state court had therefore erroneously denied Cardoza's

motion on what it thought was the accurate-but-irrelevant fact that Cardoza had

been informed about the cooperation offer. Because the basis of Cardoza's claim

was that he was not willing to cooperate and was never informed of his right to

plead pursuant to section 220.10(2) -- his only plea option that did not require

cooperation -- the magistrate judge determined that the state court had failed to

analyze the ineffective assistance claim properly.

             The magistrate judge recommended denying relief based on

Carbone's alleged conflict of interest, concluding that Cardoza's proffered

evidence was "speculative" and "even if true, would not be enough to support a


                                        15
finding of a per se conflict of interest." Id. at *12, 

, at

*34.

              On September 27, 2011, the district court adopted the R&R in full,

despite objections by both sides, but amended the remedy to lift the requirement

that Cardoza be sentenced to twenty-five years. Cardoza v. Rock, No. 08-Civ-

8210, 

, 

 (S.D.N.Y. Sept. 27, 2011).

The respondents moved for reconsideration, arguing that the court had

overlooked the fact that prosecutors had offered Cardoza the opportunity to

plead guilty to the top count of the indictment in exchange for a sentencing

recommendation of seventeen years to life, without requiring that he cooperate.

The district court denied the motion, concluding that the respondents had

waived this argument when they failed to raise it in the proceedings before the

magistrate judge. Order Den. Mot. for Recons., Feb. 3, 2012, Dist. Ct. ECF No. 32.

              The respondents now appeal the portion of the district court's order

granting Cardoza's habeas application on the ground that he received ineffective

assistance of counsel because his attorneys failed to inform him of his option to

plead guilty to the entire indictment. Cardoza cross-appeals the denial of his

claim of ineffective assistance of counsel on the ground that Carbone had a

conflict of interest.


                                          16
                                   DISCUSSION

              We review the district court's grant of an application for a writ of

habeas corpus de novo, Overton v. Newton, 

, 275 (2d Cir. 2002), and

its underlying findings of fact for clear error, Clark v. Perez, 

, 389 (2d

Cir. 2008).

              I.    Review Under The Antiterrorism and Effective Death Penalty
                    Act of 1996

              Our review of Cardoza's habeas application is governed by the

principles set forth in section 2254 of the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"). Under that section, when "a person in custody

pursuant to the judgment of a State court" raises a claim that was "adjudicated on

the merits in State court proceedings," relief may be granted only where the state

court's decision was either (1) "contrary to, or involved an unreasonable

application of, clearly established Federal law," or (2) "based on an unreasonable

determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d).

Our review under AEDPA is "highly deferential" to the state courts,

"demand[ing] that state-court decisions be given the benefit of the doubt." Hardy

v. Cross, –– U.S. –––, 

, 491 (2011) (per curiam) (internal quotation

marks omitted).



                                          17
              Cardoza argues that the state court's rejection of his claim that he

was denied effective assistance because his attorneys failed to inform him of his

right to plead guilty to the entire indictment was based on an "unreasonable

determination of the facts in light of the evidence" before the state court.5 The

Supreme Court has made clear that a "state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance." Wood v. Allen, 

, 301 (2010).

Where "[r]easonable minds reviewing the record might disagree" as to the

relevant finding, that is not sufficient to supplant the state court's factual

determination. Rice v. Collins, 

, 341-42 (2006). Nevertheless, the state


       5
          This Court -- and most other federal courts including the Supreme Court -- has
had fewer opportunities to consider what constitutes an "unreasonable determination of
the facts" under section 2254(d)(2) than we have had to address the "contrary to, or
involved an unreasonable application" of federal law prong of section 2254(d)(1).
Complicating matters somewhat is 28 U.S.C. § 2254(e)(1), which provides that "a
determination of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence." The Supreme Court has yet to explain how these two
provisions interact, specifically whether § 2254(e)(1) applies in every case in which a
petitioner brings a challenge under § 2254(d)(2). See Wood v. Allen, 

, 300-01
(2010) (declining to decide the issue). This Circuit has not resolved the question. See
Jones v. Murphy, 

, 238 n.4 (2d Cir. 2012), cert. denied, 

 (2013).

       Without answering this question, we will review Cardoza's challenge under
§ 2254(d)(2)'s unreasonableness standard. We need not consider the application of the
more stringent "clear and convincing evidence" standard under § 2254(e)(1), inasmuch
as, even under the broader provisions of § 2254(d)(2), we conclude that the state court's
decision was not based on an unreasonable determination of the facts.

                                            18
court's finding might represent an "unreasonable determination of the facts"

where, for example, reasonable minds could not disagree that the trial court

misapprehended or misstated material aspects of the record in making its

finding, see Wiggins v. Smith, 

, 528 (2003), or where the court ignored

highly probative and material evidence, see Miller-El v. Cockrell, 

,

346 (2003).

              Of course, AEDPA "sets forth a precondition to the grant of habeas

relief . . . , not an entitlement to it," Fry v. Pliler, 

, 119 (2007), so even if

the standard set forth in section 2254(d)(2) is met, the petitioner still "bears the

ultimate burden of proving by a preponderance of the evidence that his

constitutional rights have been violated," Epps v. Poole, 

, 50 (2d Cir.

2012).

              II.    Ineffective Assistance With Respect to Communication of Plea
                     Options

              Cardoza’s argument that his attorneys provided him with ineffective

assistance because they failed to convey the full range of his plea options to him

is governed by the legal principles laid out in Strickland v. Washington, 

 (1984). In order to establish an ineffective assistance claim, a petitioner must




                                             19
show that counsel's performance was deficient, and that the deficiency

prejudiced the defense. Id. at 687.

             "'The decision whether to plead guilty or contest a criminal charge is

ordinarily the most important single decision in any criminal case . . . . [C]ounsel

may and must give the client the benefit of counsel's professional advice on this

crucial decision.'" Boria v. Keane, 

, 496-97 (2d Cir. 1996) (quoting

Anthony G. Amsterdam, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES

(1988)) (emphases omitted). It is well-settled that defense counsel have a

"constitutional duty" to convey any plea offers from the government and to

advise their clients on the "crucial decision" whether to accept a plea offer. Pham

v. United States, 

, 182 (2d Cir. 2003) (citing Boria, 99 F.3d at 498). A

significant disparity between the sentence the defendant might have received had

he pled guilty, and the sentence he received after trial, provides objective

evidence that a defendant was prejudiced by his attorney's failure to adequately

inform him of his plea options. See id. at 182-83.

             A.    Guilty Pleas Under New York Law

             New York Criminal Procedure Law § 220.10 provides that a

defendant may enter the following pleas to a criminal indictment:




                                         20
             1. The defendant may as a matter of right enter a plea of
             "not guilty" to the indictment.

             2. Except as provided [elsewhere in the statute], the
             defendant may as a matter of right enter a plea of
             "guilty" to the entire indictment.

             3. Except as provided [elsewhere in the statute], where
             the indictment charges but one crime, the defendant
             may, with both the permission of the court and the
             consent of the people, enter a plea of guilty of a lesser
             included offense.

             4. Except as provided [elsewhere in the statute], where
             the indictment charges two or more offenses in separate
             counts, the defendant may, with both the permission of
             the court and the consent of the people, enter a plea of:

             (a) Guilty of one or more but not all of the offenses
             charged; or

             (b) Guilty of a lesser included offense with respect to
             any or all of the offenses charged; or

             (c) Guilty of any combination of offenses charged and
             lesser offenses included within other offenses charged.

             As the statute makes clear, certain types of pleas, those under section

220.10(3) and (4), require the consent of the prosecution and the permission of the

court. By contrast, a plea under section 220.10(1) -- a plea of not guilty -- and

section 220.10(2) -- a plea of guilty to the entire indictment -- may be entered as a

matter of right. Cardoza asserts that none of his lawyers informed him that he



                                         21
had the right to plead guilty to the entire indictment pursuant to

section 220.10(2).

             A source of confusion in this case has been the use of the term "plea

offer" (and similar terms, like "plea deal" or "plea bargain"), and its meaning as it

is commonly understood by New York practitioners. A "plea offer" -- at least as

that term is employed by the prosecution and the state judge in this case --

includes an agreement between the prosecution and the defendant, with the

permission of the court, to plead to a lesser included charge, perhaps with

assurances from the court as to the eventual sentence. See Resp'ts' Br. at 23;

People v. Cardoza, Sup. Ct., NY County, Oct. 4, 2007, Wittner, J., Indictment No.

5504/97, at 8.

             By contrast, an agreement that the prosecution will recommend a

specific sentence in exchange for the defendant's plea to the top count of the

indictment is not -- at least according to the respondents and for our purposes

here -- considered a true "plea offer." Despite this, it seems that both the lawyers

and the state court use or have used the term "plea offer" or "offer" to refer

informally to any conditions attached to the prosecution's consent to a certain

plea. While this may not present a problem in state court, where both the

attorneys and the judges understand to what they are referring, it seems to have


                                         22
generated substantial confusion in this case, where federal courts are called upon

to review and interpret a New York State court record in which all of the parties

have, at various times, referred to a sentencing recommendation as a "plea offer"

or "offer."

              B.    Analysis

              Cardoza maintains that his only options in the face of the indictment

were: (1) cooperate and receive a reduced sentence pursuant to the cooperation

agreement; (2) plead guilty to the entire indictment pursuant to section 220.10(2)

and receive a reduced sentence; or (3) go to trial. Cardoza was unwilling to

cooperate with the prosecution because of the danger it would pose for him and

his family. He contends that none of his four attorneys informed him of his

second option, the right to plead to the entire indictment under section 220.10(2).

Cardoza asserts that he was therefore under the mistaken impression that his

only option was to proceed to trial.

              The magistrate judge and district court agreed with Cardoza that

this failure on the part of his lawyers constituted ineffective assistance of counsel

because he should have been told about his right to plead guilty to the entire

indictment pursuant to section 220.10(2) and because, had he entered such a plea

before trial, he likely would have received a sentence far shorter than what he


                                         23
received following his conviction at trial. To the degree that the state court

concluded otherwise, the magistrate judge found that the state court had

confused the cooperation agreement with the section 220.10(2) plea option and

had failed to analyze the true basis of Cardoza's claim, which was that he was

never informed of his right to plead pursuant to section 220.10(2). Cardoza v.

Rock, 

, at *9-*10, 

, at *23-*30.

Because only the section 220.10(2) option did not require Cardoza's cooperation,

the magistrate judge reasoned, it was not enough that Cardoza was aware of and

rejected an offer to cooperate in exchange for a reduced sentence. Cardoza's

attorneys also had a duty to "convey and explore the section 220.10(2) plea

option" that was available to him. Id. at *10, 

, at *27.

             A review of the record strongly suggests that the magistrate judge

and district court misunderstood the factual basis for the state court's decision.

Cardoza was plainly unwilling to agree to (and in fact to) cooperate with the

state. As Cardoza points out, a plea of guilty to the entire indictment pursuant to

section 220.10(2) would not require him to cooperate. Cardoza's argument -- that

counsel was defective for failing to inform him of this right to plead guilty to the

entire indictment -- depends upon the factual premise that Cardoza was not

made aware of a more favorable plea option that also did not require


                                         24
cooperation. If Cardoza was made aware of such a cooperation-free option and

he rejected it, then his argument falls apart: counsel could hardly be deficient for

failing to convey the section 220.10(2) option if that option was less favorable in

all respects than a plea option Cardoza had been unwilling to accept.

             The existence of such an option appears to be just what the state

court found. Justice Wittner's opinion stated that -- in addition to offering the

cooperation agreement that Cardoza rejected –- the prosecution also had

informed at least three of Cardoza's attorneys and stated in open court that it

would be willing to recommend a sentence of seventeen years to life if Cardoza

pleaded guilty to the top count of the indictment. In other words, the state court

found that Cardoza was presented with the option under section 220.10(4)(a) of a

plea to less than all of the counts in the indictment -- an option that would not

have required him to cooperate -- and he rejected it. Id.

             We think this is clear from the state court's opinion denying

Cardoza's section 440 motion. The court explicitly found that the prosecution

"indicated on numerous occasions in open court in front of the defendant and in

writing that if [Cardoza] ple[d] guilty to the top count of the indictment they

would recommend a sentence of 17 years to life." People v. Cardoza, Sup. Ct.,

NY County, Oct. 4, 2007, Wittner, J., indictment No. 5504/97, at *8. The court


                                         25
noted that "the People never offered [Cardoza] a plea as that term is commonly

understood once he indicated he was unwilling to cooperate." Id. (emphasis

added). By that we understand the court to have meant that, absent cooperation,

the prosecution would not consent to a plea to a lesser charge. The state court

found, however, that the prosecution had agreed to recommend a specific

sentence in exchange for a plea to the top count of the indictment.

             The state court then stated, in a manner that we find somewhat

confusing, that "[s]ince an offer of 17 . . . years was 'on the table,' discussion of a

plea to the entire indictment is, in any case, irrelevant." Id. (emphasis added).

Thus, although the court distinguishes a true "plea offer" from the sentencing

recommendation option offered by the prosecution, it then proceeded to refer to

the sentencing recommendation as an "offer of 17 . . . years." (emphasis added).

This imprecise use of the term "offer" to describe anything from a cooperation

agreement to a sentencing recommendation appears throughout the record in

this case; we suppose it was this that led the magistrate judge and district court to

misunderstand the state court opinion.6


      6
             For instance, the prosecution insisted that it "was not making a plea offer
as to [Cardoza]." Tompkins. Aff at ¶ 5, Joint App'x at 113. Yet on July 31, 1998, ADA
DePadilla sent Chan a memorandum entitled: "Plea offer for William Cardoza a/k/a
Juan Carlos a/k/a Tony," that stated:


                                           26
              But contrary to what both thought had occurred, the state court

concluded that a plea under section 220.10(2) was irrelevant not because Cardoza

also had available to him a cooperation agreement, but because the prosecution

had already informed Cardoza that it would be willing to recommend a sentence

of seventeen years in exchange for a plea to the top count only, without any

cooperation from Cardoza. That was plainly a better option for him than to

exercise the right he had to plead to all counts under section 220.10(2), which

would have resulted in a higher sentence. We therefore conclude that if in fact

Cardoza was made aware of a non-cooperation option to plead guilty to the top



              As per our discussion on July 22, 1998, the offer to William
              Cardoza of 17 years to life is withdrawn as of today. There
              will be no other offers in this case. If the defendant chooses
              to plea on the day of trial the People will insist the defendant
              plea to the entire indictment and the People's
              recommendation for sentence will be an appropriate number
              between 20 and 25 years to life."

DePadilla Memo, Joint App'x at 129 (emphases added).

                A reviewing court unfamiliar with the fluid use of the terms "plea offer" or
"offer" by state practitioners could easily read the word "offer" here to refer to the
cooperation agreement, particularly since both the prosecution and the state court noted
that no "plea offer" was being made to Cardoza absent his cooperation. Read that way,
it creates the impression that the government would only consent to a reduced sentence
if Cardoza either (1) cooperated or (2) pled guilty to the entire indictment. This is
apparently how the magistrate judge understood this exchange. See Cardoza, 

, at *10, 

, at *25. As is now reasonably clear,
DePadilla was referring in this memorandum to a third option -- a plea to the top count
in exchange for a seventeen-year sentence recommendation.

                                            27
count in exchange for a sentencing recommendation of seventeen years, the

question of whether he was also apprised of his right to plead guilty to the entire

indictment is, indeed, "irrelevant."7

              The remaining consideration is whether the state court's

determination that Cardoza was made aware of a cooperation-free sentencing

recommendation option was an "unreasonable determination of the facts in light

of the evidence presented." We conclude that it was not. The state court relied

on the following evidence: (1) its own recollection that the prosecution "indicated

on numerous occasions in open court in front of [Cardoza]" that he could plead

guilty to the top count and receive a seventeen-year sentence recommendation

without any requirement that he cooperate; (2) ADA DePadilla's statement that

he discussed the seventeen-year sentencing recommendation with Chan; (3) the

July 31 memorandum from ADA DePadilla to Chan reflecting discussion of a


       7
          Following a motion for reconsideration in which the respondents make this
very argument, the district court denied the motion on the ground that the respondents
had failed to make this objection to the R&R and had thereby waived the argument.
Order Den. Mot. for Recons., Feb. 3, 2012, Dist. Ct. ECF No. 32. "We have adopted the
rule that failure to object timely to a magistrate judge's report may operate as a waiver
of any further judicial review of the decision, as long as the parties receive clear notice
of the consequences of their failure to object. The rule is enforced under our
supervisory powers and 'is a nonjurisdictional waiver provision whose violation we
may excuse in the interest of justice.'" United States v. Male Juvenile, 

, 38-39
(2d Cir. 1997) (citations omitted). While the record is somewhat unclear on this issue,
assuming the objection was not properly raised, under the circumstances of this appeal,
we excuse any failure to object "in the interest of justice."

                                            28
plea to the top count in exchange for a sentence recommendation of seventeen

years; (4) Hermann's recollection in his affidavit of a "plea offer from the

[prosecutor] of a plea to an A-I felony with a recommended sentence of some 18

years to life" in which Cardoza showed "no indication of interest"; and (5) ADA

Tompkins' statements in her affirmation that she informed defense counsel orally

and in writing of the State's willingness to recommend seventeen years in

exchange for a plea to the top count of the indictment. Id. at 5-6, 8-9.

             We acknowledge that the factual record with regard to the plea

negotiations is sparse and is complicated by the confusing use of the term "offer."

From our perspective, it seems that much of this confusion could have been

avoided had a hearing been held somewhere along the path to this appeal –- at

the state or federal level –- in which defense counsel and the prosecution testified

as to their recollection of what precisely occurred during plea negotiations in this

case. This would have allowed for a more complete record for review and helped

to clarify what exactly the prosecution "offered" to Cardoza before trial.

             Nevertheless, AEDPA sets a high bar for a federal court considering

a section 2254 habeas application. Although we find the record unfortunately

thin, the state court's determination that Cardoza was aware of his option to

plead guilty to the top count of the indictment in exchange for a sentencing


                                         29
recommendation of seventeen years, without any requirement that he cooperate,

is a reasonable one in light of the evidence before it. As we have discussed,

neither the magistrate judge nor the district court seemed to have considered the

state court's finding that Cardoza was made aware of the top-count sentencing

recommendation option. In light of the foregoing evidence, however, we cannot

say that the state court's conclusion represents an "unreasonable determination of

the facts" for the purposes of 28 U.S.C. § 2254(d)(2).

             Cardoza argues that the state court's determination was erroneous

because the court "failed to grasp" that any references in the record to a

"sentencing recommendation" of seventeen years pertain to the plea offer made

per the cooperation agreement, and therefore his only cooperation-free plea

option was a plea to the entire indictment pursuant to section 220.10(2). Cardoza

relies on the confusion surrounding the use of the term "plea offer" in the record

-- an issue we have already addressed at some length. The state court found,

however, that the sentencing recommendation did not require cooperation and

that Cardoza was aware of this plea option. Because this conclusion is not an

unreasonable one, AEDPA requires us to reject Cardoza's claim that he received

ineffective assistance with respect to his plea options.




                                         30
              We therefore reverse the judgment of the district court with respect

to this claim.

              III. Ineffective Assistance with Respect to Conflict of Interest

              Cardoza cross-appeals from the district court's denial of his second

ineffective assistance of counsel claim, predicated on the allegation that Carbone

was involved in Cardoza's criminal conspiracy and therefore was burdened by a

per se conflict of interest.

              Where a criminal defendant has a Sixth Amendment right to

counsel, he also has a "correlative right to representation that is free from

conflicts of interest." Wood v. Georgia, 

, 271 (1981). Although a

defendant who raised no objection at trial must generally "demonstrate that an

actual conflict of interest adversely affected his lawyer's performance," Cuyler v.

Sullivan, 

, 348 (1980), a defendant need not make such a showing if

the circumstances of the representation gave rise to a per se conflict of interest,

see Holloway v. Arkansas, 

, 488-91 (1978). We have observed that the

per se rule applies "when an attorney is implicated in the crimes of his or her

client" because "the attorney cannot be free from fear that a vigorous defense

should lead the prosecutor or the trial judge to discover evidence of the attorney's




                                          31
own wrongdoing." United States v. Fulton, 

, 611 (2d Cir. 1993)(internal

quotation marks omitted).8

              In his direct appeal, Cardoza argued that Carbone, who represented

Cardoza for some eleven weeks during the early stages of the prosecution, was

burdened by a conflict of interest because, among other things, Carbone himself

participated in the drug conspiracy. The Appellate Division rejected Cardoza's

claim, finding that "[t]he record does not support defendant's arguments that

counsel was a coconspirator in his crimes." Cardoza, 22 A.D.3d at 429, 803

N.Y.S.2d at 66. And in denying his habeas petition on this ground, the district

court noted that Cardoza provides only "minimal and speculative evidence" that

Carbone was involved in the criminal conspiracy. Cardoza, 

, at

*7, 

, at *20.

              In support of his argument, Cardoza first contends that after agents

seized cocaine and made arrests at the Brooklyn garage, he hired Carbone and



       8
              The Supreme Court has, however, recognized a per se conflict of interest
in only one circumstance -- "where defense counsel is forced to represent codefendants
over his timely objection," Mickens v. Taylor, 

, 168 (2002) -- and has
declined to extend the per se rule to other potential conflicts, see id. at 173-74. Insofar as
Cardoza argues that the state court's decision denying this claim "was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1)(emphasis added),
that argument clearly fails.

                                             32
directed him to check the garage for cocaine that may have been overlooked, or

for signs that the police had dusted for fingerprints. As the respondents point

out, however, the wiretap evidence on which Cardoza relies for his assertion that

Carbone went to the garage is ambiguous at best. Moreover, it is not clear that

visiting the garage on behalf of a client to see what evidence was seized would

necessarily implicate Carbone in the criminal conspiracy.

             Cardoza also alleges that Carbone advised him to disconnect his

telephone line and install a new line through which they could communicate.

The only evidence in the record to support this allegation is a statement in

Cardoza's affidavit to that effect. Affirmation dated May 15, 2007, of William

Cardoza, at ¶ 7, Joint App'x at 125. And again, a lawyer is not necessarily a

coconspirator simply because he advises his client on ways to protect their

communications from law enforcement.

              Finally, Cardoza asserts that Carbone interfered with an attempt to

obtain new counsel for a coconspirator in order to prevent him from cooperating

with the prosecution. In considering this allegation, the Appellate Division

concluded that "[a]t most, the record indicates counsel's interference, at the

behest of defendant, with a potential change of counsel by one of defendant's

associates . . . ." Cardoza, 22 A.D.3d at 429, 803 N.Y.S.2d at 66. Even if Cardoza's


                                         33
allegation were true, he fails to show how it would prove that Carbone was part

of the drug conspiracy.

             Without more to support his claim, the finding by the Appellate

Division that there was insufficient evidence that Carbone was a coconspirator

was not an "unreasonable determination of the facts" and is entitled to deference

by this court. We therefore affirm the district court's denial of that claim.

                                  CONCLUSION

             For the foregoing reasons, we reverse the district court's judgment

granting Cardoza's habeas corpus application on the ground that he received

ineffective assistance with respect to his plea options. We affirm the district

court's denial of Cardoza's ineffective assistance claim with respect to a

purported per se conflict of interest by counsel.




                                         34