Izaguirre v. Lee
Filing
47
MEMORANDUM AND OPINION. For the reasons set forth in the attached Memorandum and Order, Petitioner has demonstrated a basis for relief under 28 U.S.C. § 2254 in connection with his retaliatory sentencing claim. Accordingly, a writ of habeas corp us shall issue unless, within ninety days of the date of the Memorandum and Order, Petitioner is resentenced before a judge other than the one who delivered the sentence at issue in the instant petition. Moreover, Petitioner's remaining grounds for habeas relief are denied. With respect to these other grounds for relief, because Petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue on these grounds. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/25/2012. (Maxwell, Rita)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-3216 (JFB)
_____________________
RAUL IZAGUIRRE,
Petitioner,
VERSUS
WILLIAM LEE,
Respondent.
___________________
MEMORANDUM AND ORDER
April 25, 2012
___________________
JOSEPH F. BIANCO, District Judge.
Raul Izaguirre (hereinafter “Petitioner”)
petitions this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his
conviction in the County Court, Nassau
County, State of New York. Petitioner was
convicted in a judgment rendered on
September 9, 2005, following a jury trial, of
Manslaughter in the First Degree (N.Y. Penal
Law § 125.20(1)) and was sentenced to
twenty-five years in prison followed by five
years of post-release supervision. In the
instant petition, Petitioner challenges his
conviction, claiming his constitutional rights
were violated because: (1) the County Court
improperly attempted to persuade him to plead
guilty; (2) the County Court’s sentence was
harsh, excessive, and retaliatory; and (3) the
evidence was legally insufficient to support his
conviction for First-Degree Manslaughter.
For the reasons discussed below, the
petition is denied in part and granted in part.
Petitioner’s claim that there was insufficient
evidence to support his conviction is
procedurally barred and, in the alternative, fails
on the merits. Petitioner’s claim that the
County Court improperly advocated on behalf
of the State to get Petitioner to enter a guilty
plea is also without merit. Petitioner’s claim
that his sentence was excessive is without
merit, but his contention that the state court
unreasonably applied clearly established
federal law on his vindictive sentence claim is
meritorious, and warrants the granting of
habeas relief unless the State of New York
grants Petitioner a re-sentencing within ninety
days by a judge other than the one who
delivered the sentence at issue.
did not ask for the statutory maximum of 25
years at sentencing, but rather a sentence of
“no less than 15 years in prison.” (S. 3.)
Second, the court provided no explanation for
how it arrived at the statutory maximum at
sentencing other than an extremely brief
reference to the young age of the victim.
Although the Respondent attempts to rely on
the surrounding context to minimize or reinterpret the unequivocal pre-trial statement by
the judge that she would impose the maximum
if the defendant were convicted after trial,
those arguments are entirely unpersuasive to
rebut the presumption of vindictiveness
triggered by that pivotal statement. In fact, the
context gives more, not less, support for the
vindictiveness claim. In particular, the pretrial statement by the court that the petitioner
“will” receive the statutory maximum was in
the context of the court, at defense counsel’s
urging, attempting to make the petitioner aware
of the advantages of pleading guilty and the
perils of going to trial. Thus, the court’s pretrial statements surrounding the explicit
prediction of the imposition of the statutory
maximum after trial are equally troubling, and
included the following: (1) “The prisons are
filled with people who were convicted of
crimes where there was no eye witness, and
they are filled with people who feel they were
wrongfully convicted because there wasn’t
enough evidence, or who have convinced
themselves that there wasn’t enough evidence.
Those people are not necessarily the kind of
people you want to spend the next 20 years of
your life with.”; (2) “You are a very young
man. You also have an immigration hold. You
will probably, if you get convicted, never see
daylight again, because you will probably sit in
a New York State facility for at least 20 years
and then be deported to . . . Honduras, and I
don’t know what they will do to you in
Honduras after having served a prison sentence
here.”; and (3) “Your best chance is, if you
As discussed in detail infra, with respect to
the vindictive sentence claim, the state court
unreasonably applied clearly established
Supreme Court jurisprudence for a vindictive
sentence claim to the facts of the instant case.
The Supreme Court rule, that has been well
established for decades, is that a presumption
of vindictiveness arises in cases where an
“action detrimental to the defendant has been
taken after the exercise of a legal right” by the
defendant under circumstances in which “a
reasonable likelihood of vindictiveness exists.”
United States v. Goodwin, 457 U.S. 368, 373
(1982). After a careful review of the record,
this Court concludes that this case is precisely
one of those cases.
Here, there was a
reasonable likelihood of actual vindictiveness
by the sentencing judge because she
announced, prior to trial in the context of plea
discussions, that Petitioner would receive the
statutory maximum of 25 years’ imprisonment
if he were to be convicted at trial: “Mr.
Izaguirre, do you understand that if you are
found guilty after this trial you will do 25
years in prison?” (T. 7.)1 (emphasis added).
This unequivocal, pre-trial statement that the
Court would impose the maximum sentence,
even though it was not mandatory, created a
presumption of vindictiveness once the
statutory maximum was, in fact, imposed at
the time of sentencing. That presumption was
not rebutted by any other objective
information in the record. To the contrary,
other portions of the record provide further
support for this claim. First, the prosecutor
1
“T.” refers to the trial transcript, “H.” refers to the
pre-trial hearing transcript, and “S.” refers to the
sentencing minutes.
2
wish to plead guilty, is to enter a plea, take the
ten years, and hope they will forget about your
immigration hold….”
(T. 7-9.)2 These
comments hardly rebut the presumption of
vindictiveness that arose from the central
statement that the court intended to impose the
statutory maximum if convicted. In short,
although this Court is well aware of the
deferential standard of review on a habeas
petition, the record in this case on the
vindictive sentencing claim reflects an
unreasonable application of clearly established
federal law as determined by the United States
Supreme Court and requires habeas relief
unless the Petitioner is re-sentenced by a
different judge.
Ilusiones bar shortly after midnight.3 (T. 66768.) Also present in the Ilusiones bar at that
time was Petitioner. (T. 669.) Maldonado,
who knew Petitioner from their work together
in a local supermarket, introduced Petitioner to
Valle and the men exchanged greetings inside
the bar. (T. 669-72.) Shortly thereafter, a
disagreement between Petitioner and Valle
over the payment for beers escalated into a
physical altercation, which resulted in
Petitioner receiving a bloodied nose from
Valle. (T. 675, 769-72, 832-35.) The
altercation provoked many of the bar’s patrons
to flee the premises, and Valle and Petitioner
were consequently escorted out.4 (T. 677, 45152.)
I. FACTUAL BACKGROUND
Hours later, at around 5:30 a.m.,
Hempstead Police responded to a radio call
indicating that there was a “man down” on the
corner of Fulton and Meadowbrook Avenues.
(T. 455.) Responding officers discovered
Valle, face-up on the sidewalk in the vicinity
of Ilusiones bar, with multiple stab wounds to
The Court has adduced the following facts
from the instant petition and the underlying
record.
At approximately 5:30 a.m. on June 24,
2003, the body of Marvin Valle (“Valle”) was
found dead on a sidewalk at the corner of
Fulton and Meadowbrook Avenues in
Hempstead, New York. (T. 455-56.) An
ensuing police investigation revealed that on
the previous night, June 23, 2003, Valle had
been out drinking with a boyhood friend of
his, Juan Antonio Maldonado (“Maldonado”).
(T. 663, 666-68.) After drinking beer in
several bars in and around Hempstead, the two
men arrived at an establishment called the
3
Ilusiones bar is located at 774 Fulton Avenue at the
corner of Fulton Avenue and Courtenay Road in
Hempstead, New York. (T. 452.)
4
Hempstead Police Officer Darryl Aiken testified that,
around 1:00 a.m., he was on routine patrol on Fulton
Avenue near the Meadowbrook Avenue intersection
when he observed a crowd running out of the Ilusiones
bar and decided to pull over. (T. 451-52.) Before
exiting his patrol car, Officer Aiken called over his radio
for another squad car to report to the disturbance. (T.
452.) Upon approaching the bar, Aiken was informed by
security that a fight had taken place inside. (T. 453.)
Aiken observed chairs and broken glass on the floor. (T.
453.) The security guard, later identified as the bar’s
owner, Jesus Romero, told Aiken that the individuals
involved in the fight had since left. (T. 453.) After
returning to his patrol car, Aiken observed the scene for
another five to ten minutes before driving away, heading
west on Fulton Avenue. (T. 454.) Officer Aiken would
later return to the area to find Marvin Valle dead. (T.
455-57.)
2
As discussed in detail infra, the reference to 20 years
would reflect the amount of time, after good time credit
and time already served, that Petitioner likely would
have left to serve on a twenty-five year sentence. Thus,
after accounting for these issues, there is no basis to
conclude that the reference to 20 years during this
discussion was anything other than a re-calculation of
the stated 25-year intended sentence.
3
his body and abrasions on his face and scalp.
(T. 518-20, 538-39, 1057.) Valle suffered,
among other injuries, a fatal stab wound to his
chest that reached a depth of five inches,
penetrated two of his ribs, and perforated both
his heart and left lung. (T. 995, 999, 1001-02.)
Valle was pronounced dead at approximately
5:41 a.m. on the morning of June 24, 2003.5
(T. 586.)
Petitioner used the phone in Antonio’s
bedroom to place a telephone call to another
cousin, Griselda Molina Izaguirre (“Griselda”).
(T. 851-52, 1012, 1027.) According to
Griselda, Petitioner asked her to loan him two
hundred dollars because “he had to leave” and
“that he had some problems.” (T. 1012-14.)
Griselda also testified that Petitioner “told [her]
he had stabbed someone, but didn’t know what
had happened to him [the stab victim].” (T.
1022.) Jose Martinez, a tenant in the apartment
from which Petitioner placed the telephone call
to Griselda, overheard the conversation from
the next room. (T. 851-52.) Martinez testified
that Petitioner told Griselda that he needed
money “because he had some trouble.” (T.
851-52.) Martinez subsequently contacted the
police to report what he had heard. (T. 853.)
Later, on the same day, Petitioner showed
up for work at Uncle Guiseppe’s supermarket.
(T. 789, 791.) At approximately 12:30 p.m.,
Melvin Alvarado Bonilla (“Bonilla”), another
supermarket employee, was on his lunch break
when he overheard Petitioner having a
conversation on a public pay phone outside of
the market on Hempstead Turnpike. (T. 792.)
Bonilla testified that Petitioner was speaking
with his cousin Antonio Izaguirre (“Antonio”).
(T. 792.) The sum and substance of this
conversation involved an explanation by
Petitioner to his cousin that: (1) he had
purchased a dagger the night before; (2) he
had subsequently gone to a bar; (3) while
inside the bar, someone hit him in the face,
causing him to observe blood on his hand; and
(4) he then took out the dagger and stabbed the
person.6 (T. 792-93.) Bonilla further testified
that he heard Petitioner ask his cousin, “What
do I do?” (T. 793.) Neither Bonilla nor the
supermarket’s manager saw Petitioner at work
or anyplace else after that. (T. 792-93 , 86163.)
On June 26, 2003, Demetrios Kerasiotis
(“Kerasiotis”), the manager of the supermarket
at which Petitioner was employed, was
performing inventory in the store and began to
straighten up Petitioner’s former work station
when he discovered a black folding knife
hidden on a shelf above Petitioner’s station. (T.
864-65.)
Aware of the ongoing police
investigation into Petitioner, he notified his
supervisor of his discovery and the two
proceeded to contact the police.7 (T. 865.)
Nassau County Police later determined the
knife to be four inches long and one inch wide.
(T. 914.) Forensic DNA-testing revealed that
Valle’s blood matched the blood on that knife.
(T. 1200-02.)
A day later, on June 25, 2003, Petitioner
visited his cousin Antonio’s apartment at 753
Front Street in Hempstead. (T. 850-51.)
In furtherance of its investigation, the
Nassau County Police Department determined
that a Greyhound bus had left Hempstead on
5
Valle was twenty years old at the time of the stabbing.
(T. 509.)
7
Although Petitioner was employed as a butcher in the
supermarket and often worked with knives to prepare
certain dishes, Kerasiotis testified that it was not normal
for a knife like the one discovered above Petitioner’s
workstation to be there. (T. 873.)
6
Bonilla was an acquaintance of Petitioner’s cousin,
Antonio, as the men lived together in an apartment in
Hempstead. (T. 794.)
4
II. PROCEDURAL BACKGROUND
June 25 – the same day Petitioner asked to
borrow two hundred dollars from his cousin
Griselda – and was scheduled to arrive in
Miami, Florida on June 27. (H. 336-40.)
Suspecting that Petitioner had borrowed the
money from Griselda to flee New York,
Nassau County police furnished homicide
detectives from the Miami-Dade Police
Department with a photograph of Petitioner
and enlisted their assistance in his arrest. (T.
952-55.) Accordingly, Miami police officers
waited for, and later apprehended, Petitioner
as he exited the bus in Florida. (T. 954-957.)
Upon disembarking the bus, Petitioner was
approached by the Miami-Dade police
officers, who asked for his name. (T. 956.)
Petitioner falsely responded that his name was
“Manuel,” only to subsequently present a
resident alien card bearing his true name. (T.
956-57.) Petitioner was then taken into
custody. (T. 957.) On July 11, 2003, Nassau
County detectives traveled to Florida for the
purpose of taking Petitioner into their custody
and accompanied him back to New York. (T.
1054-55.) Petitioner was indicted in County
Court, Nassau County on two counts of
murder in the second degree: one count for an
intentional killing pursuant to New York Penal
Law Section 125.25(1), and a second count for
a depraved indifference killing pursuant to
Penal Law section 125.25(2).
A. State Court Proceedings
1. Plea Bargaining and Trial
Prior to trial in County Court, the Nassau
County District Attorney’s Office engaged in
substantial plea bargaining with Petitioner. In
return for his willingness to enter a plea of
guilty, the People offered to reduce Petitioner’s
criminal charge to a class C violent felony,
punishable by a sentencing range of three-andone-half to fifteen years in prison. (T. 5.)
According to Petitioner, the State offered to
recommend an eight-year prison sentence and
two years of supervised release. (Pet.’s Mem.
of Law at 7, Nov. 19, 2010, ECF No. 15-2; T.
34 (Petitioner’s counsel recounted that he was
informed “by the assistant district attorney that
the People would advance the defendant a
further opportunity to enter a plea of guilty to
a lesser charge on a conditional sentence,
condition being that the defendant be sentenced
to eight years. I understand that that was with
the consent of the deceased’s family.”).)
Petitioner steadfastly refused to enter a guilty
plea, apparently acting under the mistaken
belief that he could not be convicted lest the
prosecution produce an eyewitness to the
killing. On the first day of trial, Petitioner’s
counsel, outside the presence of the jury, made
a lengthy statement for the record. (T. 5-7.)
Defense counsel expressed his preparedness to
proceed to trial on Petitioner’s case, but
nevertheless indicated that he believed a guilty
plea to a lesser charge would have “been in
[Petitioner’s] best interest.” (T. 5.) The
relevant portions of counsel’s remarks are
excerpted below:
I told him [Petitioner], that he
is a young person, that he
should be able to go home and
5
might be in his best interest to
take this disposition.
raise his family, rather than his
grandchildren, and I believe
that at this point in time, right
before the selection of the jury,
he should reconsidering [sic]
his options. . . .
(T. 7.) Following counsel’s statements, the
trial judge immediately asked, “Mr. Izaguirre,
do you understand that if you are found guilty
after this trial you will do 25 years in prison?”
(T. 7.) After Petitioner responded that he
understood but maintained his innocence, the
trial judge made additional remarks in an
apparent attempt to correct Petitioner’s
possible legal misapprehension and to fully
apprise Petitioner of his options:
Judge Donnino spoke with
him. I, again, spoke with him,
and I have expressed with him
my concerns, the fact that he
could be convicted based on
the evidence. . . .
Mr. Izaguirre, I don’t know
whether you are guilty or not
guilty, but what your lawyer
seems to feel is that you don’t
understand the law of the State
of New York, which would
make sense since you are not a
lawyer and have never been in
any kind of trouble before.
I believe he, in his mind,
believes that under New York
State law that he could not be
convicted unless somebody
comes in and directly indicates
that they saw him stab the
deceased.
I have tried to express to him
the fact that’s not required. I
have gone through this with
him numerous times explaining
to him the law and the
consequences of his decision.
The prisons are filled with
people who were convicted of
crimes where there was no eye
witness, and they are filled with
people who feel they were
wrongfully convicted because
there wasn’t enough evidence,
or who have convinced
themselves that there wasn’t
enough evidence.
Those
people are not necessarily the
kind of people you want to
spend the next 20 years of your
life with.
(T. 6-7.) Counsel then went on to make clear
that, notwithstanding his prior efforts to
educate his client with regard to the perils of
going to trial, Petitioner still had a chance to
plead guilty to his crime:
He [Petitioner] has indicated to
me that he understands it and
that he wishes to proceed. But
I want to be clear, the fact that
he has this last opportunity
right before the jury is brought
into this courtroom to review
his options, to see that this
You are a very young man. You
also have an immigration hold.
You will probably, if you get
convicted, never see daylight
again, because you will
6
During the charge conference, which took
place after both sides rested their case, the
court agreed to charge the jury on the lesser
included offense of Manslaughter in the First
Degree pursuant to New York Penal Law
Section 125.20(1). (T. 1210-12.) On March
18, 2005, the jury reached a verdict, finding
Petitioner not guilty of Murder in the Second
Degree and guilty of Manslaughter in the First
Degree. (T. 1344.)
probably sit in a New York
State facility for at least 20
years and then be deported to
. . . Honduras, and I don’t
know what they will do to you
in Honduras after having
served a prison sentence here.
Your best chance is, if you
wish to plead guilty, is to enter
a plea, take the ten years, and
hope they will forget about
your immigration hold. . . .
2. Sentencing
So, I hope that you understand
all of these factors and you
understand that the evidence is
against you, there are
numerous statements that they
[the People] claim you made to
other people in which you
admitted to this . . .
Petitioner appeared before the County
Court, County of Nassau, for sentencing on
September 9, 2005. The prosecutor requested
that the petitioner receive “no less than 15
years in prison.” (S. 3.) The sentencing judge,
after hearing statements from counsel,
Petitioner, and the victim’s family,8 lamented
the loss of life resulting from Petitioner’s
crime:
I don’t know whether you are
guilty or not guilty, but I know
that the district attorney is
prepared to put forward a
case . . . and only you know
what the truth is here and only
you know what is in your best
interest.
[Valle] was a son; he was a
friend; and he was a young man
just like [Petitioner] and now
he will never grow old and he
will never have an opportunity
to have children and he will
never have an opportunity to
take care of his father as his
father gets older.
But once I bring that jury in
and we start selecting them,
any question as to whether you
want to plead guilty or not is
going to disappear. Do you
understand?
(S. 8.) The judge sentenced Petitioner to a
term of twenty-five years in prison with five
years’ post-release supervision. (S. 8-9.)
(T. 7-9.) After answering in the affirmative,
Petitioner proceeded to trial by jury on
February 23, 2005.
8
At sentencing, Valle’s father, Pedro Valle, addressed
the court. Mr. Valle gave a short statement in which he
did not request a specific sentence to be imposed, but
asked that the court give Petitioner “the sentence that he
deserves.” (S. 5.)
7
his mental state at the time of the stabbing; and
(3) in any event, Petitioner’s claim was not
raised on direct appeal and, therefore, was
unpreserved for review on a Section 440.10
motion. (Resp.’s Ex. 2, County Court Order
Dated Sept. 1, 2009, Aug. 26, 2010, ECF No.
8-4.)
3. Appeals
Petitioner appealed his conviction and
sentence to the Supreme Court of the State of
New York, Appellate Division, Second
Judicial Department, on the grounds that: (1)
the County Court improperly attempted to
persuade Petitioner to enter a plea of guilty;
and (2) the County Court’s sentence was
harsh, excessive and retaliatory for Petitioner’s
exercise of his right to a trial. In an Order
dated May 20, 2008, a panel of the Appellate
Division, Second Department, affirmed both
Petitioner’s conviction and sentence,
concluding that: (1) the trial judge considered
the appropriate factors in sentencing
Petitioner; (2) the sentence imposed was not
excessive; and (3) Petitioner’s remaining
contention was without merit. See People v.
Izaguirre, 856 N.Y.S.2d 886 (App. Div. 2008).
Leave to Appeal to the New York Court of
Appeals was subsequently denied by Order
dated November 9, 2009. See People v.
Izaguirre, 891 N.Y.S.2d 694 (2009).
B. The Instant Petition
On July 6, 2010, Petitioner filed the
instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, alleging that: (1)
the evidence was legally insufficient to support
his conviction because Petitioner’s intoxication
rendered him incapable of possessing the
requisite mens rea for First-Degree
Manslaughter; (2) the County Court
improperly attempted to persuade him to plead
guilty; and (3) the County Court’s sentence
was harsh, excessive, and retaliatory for
Petitioner’s decision to proceed to trial. On
August 26, 2010, the Respondent filed a
declaration and memorandum of law in
opposition to the petition. Petitioner submitted
a memorandum and declaration in reply, which
were filed on November 19, 2010. On June 14,
2011, the Court conducted a conference to
advise the parties that it was requesting
supplemental briefing on the vindictive
sentencing claim. Moreover, the Court stated
that, in its discretion, it was going to appoint an
attorney from the Habeas Corpus Panel of
Attorneys to represent Petitioner. The Court
subsequently issued an Order, dated July 6,
2011, explaining the reasons for such
appointment, and appointing Kevin Keating,
Esq., to represent Petitioner. On July 22, 2011,
Respondent filed his supplemental brief on the
vindictive sentencing claim. On August 25,
2011, counsel for Petitioner filed a
On or about April 9, 2008, Petitioner,
appearing pro se, filed a motion pursuant to
New York Criminal Procedure Law section
440.10 to vacate the County Court’s judgment
of conviction. (Resp.’s Ex. 5, Aug. 26, 2010,
ECF No. 8-3.) He asserted there, as he does
here, that the evidence at trial was legally
insufficient to support his conviction. (Id.) In
support of that contention Petitioner posited
that his intoxication on the night of the killing
rendered him incapable of possessing the
requisite intent necessary for Manslaughter in
the First Degree. By Order dated September
1, 2009, the County Court denied Petitioner’s
Section 440.10 motion, concluding that: (1)
Petitioner failed to offer new evidence of his
innocence that was unavailable at trial to
support his contention; (2) Petitioner was not
intoxicated to the point of being unaware of
8
supplemental letter on that issue.9
On
December 5, 2011, Respondent requested oral
argument. On March 9, 2012, with Petitioner
present, the Court heard oral argument. On
March 9, 2012, the Court received a
supplemental letter from the Respondent. The
Court has fully considered the arguments and
submissions of the parties.
as determined by the Supreme
Court of the United States; or
II. STANDARD OF REVIEW
28 U.S.C. § 2254(d). “An ‘adjudication on the
merits’ is one that ‘(1) disposes of the claim on
the merits, and (2) reduces its disposition to
judgment.’” Bell v. Miller, 500 F.3d 149, 155
(2d Cir. 2007) (citing Sellan v. Kuhlman, 261
F.3d 303, 312 (2d Cir. 2001)); see Spears v.
Greiner, 459 F.3d 200, 203 (2d Cir. 2006).
(2) resulted in a decision that
was based on an unreasonable
determination of the facts in
light of the evidence presented
in the State court proceeding.
The Anti-Terrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254,
governs applications of incarcerated state court
defendants seeking federal habeas corpus
relief. Pursuant to 28 U.S.C. § 2254(d), an
application for a writ of habeas corpus that has
met the procedural prerequisites
Once claims have been adjudicated on the
merits, “a federal habeas court may grant the
writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme]
Court has on a set of materially
indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000);
28 U.S.C. § 2254(d)(1). Alternatively, “a
federal habeas corpus court may grant the writ
if the “state court identifies the correct
governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies it to
the facts of a Petitioner’s case.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (citing
Williams, 529 U.S. at 413).
shall not be granted with
respect to any claim that was
adjudicated on the merits in
State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that
was contrary to, or involved an
unreasonable application of,
clearly established Federal law,
9
On September 1, 2011, Petitioner’s counsel requested
permission to conduct a limited, preliminary
investigation of Petitioner’s claims, including
interviewing two witnesses, in connection with a
potential motion in state court under Section 440.10
based upon newly discovered evidence. The Court
granted that application on September 6, 2011. On
November 15, 2011, Petitioner’s counsel reported the
results of his investigation and stated that it had reached
an impasse. The Court issued an Order on November
28, 2011 stating that, in light of Petitioner’s November
15, 2011 letter, the Court considered the petition to be
fully submitted. At oral argument, the Court confirmed
that Petitioner was not requesting any additional time to
further investigate his claims.
AEDPA establishes a deferential standard
of review: “a federal habeas court may not
issue the writ simply because the court
concludes in its independent judgment that the
relevant state-court decisions applied clearly
established federal law erroneously or
incorrectly. Rather, that application must be
unreasonable.” Gilchrist v. O’Keefe, 260 F.3d
87, 93 (2d Cir. 2001) (quoting Williams, 529
9
the sentence was within the permitted
guidelines range. However, Petitioner’s claim
that the state court unreasonably applied
clearly established federal law in connection
with his vindictive sentence claim is
meritorious and requires relief unless the state
court re-sentences the Petitioner in the next 90
days. The Court addresses each claim in turn.
U.S. at 411). The Second Circuit added that,
while “[s]ome increment of incorrectness
beyond error is required . . . the increment
need not be great; otherwise, habeas relief
would be limited to state court decisions so far
off the mark as to suggest judicial
incompetence.” Id. (quoting Francis S. v.
Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Finally, “if the federal claim was not
adjudicated on the merits, ‘AEDPA deference
is not required, and conclusions of law and
mixed findings of fact and conclusions of law
are reviewed de novo.’” Dolphy v. Mantello,
552 F.3d 236, 238 (2d Cir. 2009) (quoting
Spears v. Greiner, 459 F.3d 200, 203 (2d Cir.
2006)).
A. Sufficiency of the Evidence Claim
Petitioner’s claim that, because he was
intoxicated on the night of Valle’s death, there
was insufficient evidence to support a
conviction for Manslaughter in the First
Degree is procedurally barred and, in the
alternative, is without merit.
III. DISCUSSION
1. Procedural Default
For the reasons discussed below, this
Court denies in part, and grants in part, the
relief sought by Petitioner. Petitioner’s
argument that there was insufficient evidence
for a rational jury to conclude beyond a
reasonable doubt that he possessed the
requisite mens rea for a conviction of
Manslaughter in the First Degree is
procedurally barred and, in the alternative,
fails on the merits. A rational jury, viewing
the evidence presented at trial in the light most
favorable to the prosecution, could have
concluded beyond a reasonable doubt that
petitioner intended to inflict serious physical
injury on Valle. Petitioner’s claim that the
County Court improperly advocated on behalf
of the State to get Petitioner to enter into a
plea agreement is also without merit because
Petitioner has failed to demonstrate any
constitutional violation based upon the
statements, including a failure by Petitioner to
demonstrate any prejudice from the County
Court’s statements given that Petitioner did
not plead guilty. Petitioner’s argument that his
sentence was excessive is also without merit as
A petitioner’s federal claims may be
procedurally barred from habeas corpus review
if they were decided at the state level on
“adequate and independent” state procedural
grounds. Coleman v. Thompson, 501 U.S. 722,
729-33 (1991). In such a case, a federal habeas
court will defer to the “[s]tate’s interest in
enforcing its laws.” Garcia v. Lewis, 188 F.3d
71, 76 (2d Cir. 1999) (quoting Coleman, 501
U.S. at 730-31). The procedural rule at issue
is adequate if it is “firmly established and
regularly followed by the state in question.”
Id. at 77. To be independent, the “state court
must actually have relied on the procedural bar
as an independent basis for its disposition of
the case,” Harris v. Reed, 489 U.S. 255, 261
(1989) (quoting Caldwell v. Mississippi, 472
U.S. 320, 327 (1985)), by “clearly and
expressly stat[ing] that its judgment rests on a
state procedural bar.” Id. at 263 (internal
quotations omitted). If it determines that a
claim is procedurally barred, a federal habeas
court may not review the claim on the merits
unless the petitioner can demonstrate both
10
cause for the default and prejudice resulting
therefrom, or if he can demonstrate that the
failure to consider the claim will result in a
miscarriage of justice. Coleman, 501 U.S. at
750 (citations omitted). A miscarriage of
justice results only in extraordinary cases,
such as where a constitutional violation results
in the conviction of an individual who is
actually innocent. Murray v. Carrier, 477
U.S. 478, 496 (1986). “To be credible, such a
claim requires petitioner to support his
allegations of constitutional error with new
reliable evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence – that
was not presented at trial.” Schlup v. Delo,
513 U.S. 298, 324 (1995).
affecting his mental state for purposes of a
conviction of Manslaughter in the First Degree.
On Petitioner’s post-conviction motion to
vacate the jury’s verdict, he argued, as he does
here, that his own intoxication on the night of
the killing rendered him incapable of
possessing the intent necessary to support a
conviction for First-Degree Manslaughter. As
a result, Petitioner contends, the State failed to
satisfy its burden of proof with respect to
Petitioner’s mental state. In denying this
motion, the County Court concluded that
“although sufficient facts appear[ed] on record
to have permitted review,” Petitioner “failed to
raise the issue on direct appeal” of his
conviction. (Resp.’s Ex. 2, County Court
Order Dated Sept. 1, 2009, Aug. 26, 2010, ECF
No. 8-4.) Noting that “[t]he purpose of a
440.10 [motion] is to advise the Court of facts
that were unknown at the time of the
judgment,” the County Court rejected
Petitioner’s legal insufficiency claim as
unpreserved since it relied entirely on matters
of record being improperly raised for the first
time. Id. Failure to preserve an issue for state
appellate review by not raising it on direct
appeal is clearly an adequate and independent
procedural ground recognized in New York
and one on which the County Court relied in
denying Petitioner’s motion to vacate
judgment.11 See, e.g., People v. Cooks, 67
N.Y.2d 100, 103-04 (N.Y. 1986) (recognizing
Petitioner’s insufficiency of the evidence
claim is procedurally defaulted because a state
court relied on a firmly established procedural
rule to deny this claim.10 The County Court
denied Petitioner’s motion to vacate the jury’s
verdict, concluding that Petitioner failed to
raise on direct appeal the issue of intoxication
10
The Court deems Petitioner’s sufficiency of the
evidence claim exhausted, but procedurally barred. The
AEDPA provides that a federal court may not grant a
writ of habeas corpus unless the petitioner has properly
exhausted all of her state court remedies. See 28 U.S.C.
§ 2254(b)(1)(A). Thus, “when a prisoner alleges that his
continued confinement for a state court conviction
violates federal law, the state courts should have the first
opportunity to review this claim and provide any
necessary relief.” O’Sullivan v. Boerckel, 526 U.S. 838,
844 (1999).
In the instant case, Petitioner’s
insufficiency of the evidence claim is exhausted, but
procedurally barred, because he failed to raise it on
direct appeal and “no longer has any state remedies
available to him.” Calvo v. Donelli, No. 06-CV-1794
(JFB), 2007 WL 1288098, at *9 (E.D.N.Y. Apr. 30,
2007) (concluding that a claim was exhausted but
procedurally barred where it was clear that a state court
would have to deny a motion to vacate judgment on that
claim based on petitioner’s failure to raise the issue on
direct appeal).
11
The Court notes that Petitioner failed to assert his
intoxication as a defense to the charges against him until
April of 2009 – fully four years after his conviction and
nearly six years after the death of Valle. By the time
Petitioner sought to raise his drunkenness as a defense,
he had already been convicted, sentenced, denied
appellate relief, and further denied leave to appeal by the
New York Court of Appeals. The Court agrees with the
County Court’s assessment of Petitioner’s claim, namely,
that he “was aware of his level of intoxication on the
night of the assault as well as his mental state at the time
of the stabbing.” (Resp.’s Ex. 2, County Court Order
Dated Sept. 1, 2009, Aug. 26, 2010, ECF No. 8-4.)
11
2. Merits Analysis
that the rule disallowing matters of record to
be raised on a 440.10 motion is designed “to
prevent CPL 440.10 from being employed as
a substitute for direct appeal when defendant
was in a position to raise an issue on appeal or
could readily have raised it on appeal but
failed to do so.”); see also People v. Jossiah,
769 N.Y.S.2d 743 (App. Div. 2003); cf. Glenn
v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)
(finding that failure to preserve issue for
appeal was adequate and independent state law
ground precluding federal habeas review).
This is true even though, in its Order denying
the motion, the County Court went on to
address Petitioner’s claim on the merits in the
alternative. See id. at 724-25; see also Green
v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)
(“[E]ven when a state court says that a claim is
‘not preserved for appellate review’ but then
rules ‘in any event’ on the merits, such a claim
is procedurally defaulted.”).
In an abundance of caution, the Court
concludes that, even if Petitioner’s sufficiency
of the evidence claim was not procedurally
barred, it would not warrant habeas relief on
the merits. As noted above, Petitioner argues
that the evidence was legally insufficient to
support his conviction of Manslaughter in the
First Degree because “involuntary intoxication
rendered petitioner incapable of possessing the
culpable mental state necessary to prove the
intent of the charge.” (Pet. at 3.) After a
careful review of the record, the Court
concludes that, viewing the evidence presented
at trial in the light most favorable to the
prosecution, a rational jury could have found
beyond a reasonable doubt that Petitioner
intended to cause serious physical injury to
Valle, which resulted in Valle’s death.
It is fundamental that a criminal
conviction offends the Due Process Clause of
the Fourteenth Amendment unless based “upon
proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which
[the defendant] is charged.” In re Winship, 397
U.S. 358, 364 (1970). Accordingly, a state
prisoner “is entitled to habeas corpus relief if it
is found that upon the record evidence adduced
at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 324
(1979). The question thus presented is
“whether, as a matter of federal law, there was
sufficient evidence for a jury to find that the
prosecution proved the substantive elements of
the crime as defined by state law.” See id. at
324 & n.16; Green v. Abrams, 984 F.2d 41, 4445 (2d Cir. 1993). A habeas petitioner cannot
prevail on a claim of legally insufficient
evidence, unless he can show that viewing the
evidence in the light most favorable to the
prosecution, “no rational trier of fact could
Federal habeas review of Petitioner’s
insufficiency of the evidence claim is
precluded. Petitioner has demonstrated neither
“cause and prejudice” for his procedural
default nor that failure to consider the claim
will result in a miscarriage of justice. In his
petition and memorandum of law, Petitioner
has wholly failed to explain why he did not
raise on direct appeal the effect of intoxication
on the intent element of First Degree
Manslaughter. Nor has he explained how
failure to consider this issue would result in a
miscarriage of justice.
The Court has
independently analyzed the record and
concludes that no miscarriage of justice would
result. Accordingly, Petitioner’s insufficiency
of the evidence claim is procedurally
defaulted.
12
element of Manslaughter in the First Degree, as
the Second Circuit noted in Policano, “[a]
reviewing court faced with a record of
historical facts that supports conflicting
inferences must presume . . . that the trier of
fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”
507 F.3d at 117 (citing Jackson, 443 U.S. at
324) (quotation marks omitted). Based on the
evidence presented at trial, the Court concludes
that a rational jury could have found beyond a
reasonable doubt that petitioner acted with the
requisite intent to commit serious physical
injury that resulted in the victim’s death.
have found proof of guilt beyond a reasonable
doubt.” Flowers v. Fisher, 296 F. App’x 208,
210 (2d Cir. 2008) (quoting Jackson, 433 U.S.
at 324). When considering the sufficiency of
the evidence of a state conviction, “[a] federal
court must look to state law to determine the
elements of the crime.” Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
Considering the evidence in the light most
favorable to the prosecution and drawing all
reasonable inferences in its favor, see Mannix
v. Phillips, 619 F.3d 187, 201 n.14 (2d Cir.
2010) (quoting Fama v. Comm’r of Corr.
Servs., 235 F.3d 804, 811 (2d Cir. 2000)), the
Court finds that Petitioner plainly has not
satisfied his “very heavy burden.” Id. There
is no doubt here that a “rational trier of fact
could have found the essential elements of
[Manslaughter in the First Degree] beyond a
reasonable doubt.” Jackson, 443 U.S. at 319.
Although Petitioner challenges the sufficiency
of proof of his mental state, it is abundantly
clear that based on the evidence presented at
trial a rational jury could have concluded
beyond a reasonable doubt that Petitioner,
“[w]ith intent to cause serious physical injury
to another person, . . . cause[d] the death of”
Valle. N.Y. Penal L. § 125.20(1) (defining
Manslaughter in the First Degree). Petitioner
argues that his intoxication at the time of the
crime demonstrates that he could not possibly
have possessed the requisite intent to commit
serious physical harm to Valle. It is wellestablished under New York law that
“voluntary intoxication can negate the mens
rea of intent but not recklessness.” Policano
v. Herbert, 507 F.3d 111, 116-17 (2d Cir.
2007) (citing N.Y. Penal L. § 15.25
(“[E]vidence of intoxication of the defendant
may be offered by the defendant whenever it is
relevant to negative an element of the crime
charged.”)). Although, as Petitioner appears to
argue, intoxication can negate the intent
As an initial matter, Petitioner does not
contest that there was sufficient evidence
presented at trial for a rational trier of fact to
conclude that Valle died after being stabbed by
Petitioner. Petitioner solely takes issue with
the sufficiency of the evidence as to his intent
in stabbing Valle. In any event, the Court
concludes that there was sufficient evidence
presented at trial for a rational jury to conclude
beyond a reasonable doubt that Petitioner
stabbed Valle, which resulted in Valle’s death.
At trial, evidence was presented that Petitioner
physically fought with Valle at a bar – an
altercation resulting in Petitioner receiving a
bloody nose and being escorted out of the bar.
Hours later Valle was found dead by police a
relatively short distance from the scene of the
fight with Petitioner. The evidence further
demonstrated that Petitioner was arrested in
Miami while disembarking a Greyhound bus
originating in Hempstead. Petitioner then
provided a false name when apprehended.
Additionally, a police search of Petitioner’s
workstation at his place of employment yielded
a dagger, the dimensions of which resembled
the fatal stab wound to Valle’s chest and which
contained traces of Valle’s blood. Based on
this evidence, a rational jury could conclude
13
presented at trial in the light most favorable to
the prosecution, the evidentiary record here
certainly supports a conclusion beyond a
reasonable doubt that Petitioner possessed the
requisite intent for Manslaughter in the First
Degree. See, e.g., Policano, 507 F.3d at 117
(reversing the district court’s grant of habeas
relief, concluding that it was for the jury and
not the court to weigh “conflicting inferences”
of intent and that the court must presume on
appeal that any conflicts were resolved by the
jury in favor of the prosecution in convicting
petitioner of depraved indifference murder);
see also Gaskin v. Graham, No. 8-CV-1124
(JFB), 2009 WL 5214498, at *7-8, *11
(E.D.N.Y. Dec. 30, 2009) (noting that “when
faced with a record of historical facts that
supports conflicting inferences, this Court must
presume . . . that the trier of fact resolves any
such conflicts in favor of the prosecution, and
must defer to that resolution[,]” and concluding
that a rational jury could have concluded
beyond a reasonable doubt that the petitioner
did not have the mens rea for intentional
murder but convicted petitioner of depraved
indifference murder (citations and internal
quotation marks omitted)).
beyond a reasonable doubt that Petitioner
stabbed Valle.
With respect to the issue of Petitioner’s
intent, although it was clear at trial that
Petitioner had been drinking on the night of
Valle’s death, a rational jury could have
concluded beyond a reasonable doubt that
Petitioner attacked Valle with the intent to
cause him serious physical injury, killing him
in the process. The testimony of Petitioner’s
cousin and co-worker revealed incriminating
statements made by Petitioner the day after
Valle’s death recounting that he stabbed
someone after fighting with him in a bar.
Furthermore, evidence was presented with
respect to the extreme force with which Valle
was stabbed. Valle was stabbed twice. (T.
995, 1000.) The wound determined by the
Nassau County Medical Examiner to be fatal
measured five inches deep – with a blade that
was four inches long – and penetrated several
of Valle’s ribs, his heart and his lung. (T. 99599.) Viewing all of this evidence in the light
most favorable to the prosecution, a rational
jury could have concluded beyond a
reasonable doubt that Petitioner intended to
inflict serious physical injury on Valle
regardless of any intoxication, evidenced by
the number of times Valle was stabbed, the
sheer force necessary to inflict the wounds
suffered by the victim, and by the fact that
Petitioner was able to recount in detail the
events that took place at and after the bar fight
to multiple witnesses.
B. Claim Regarding Court’s Involvement in
Plea Bargain
Petitioner claims that the County Court’s
pre-trial remarks regarding his opportunity to
plead guilty constituted impermissible
interference with his right to a trial.
Essentially, Petitioner asserts that the County
Court became an “advocate” on behalf of the
State and gave him “incorrect or untrue
immigration advice” in an attempt to get
Petitioner to plead guilty. (Pet.’s Mem. of Law
at 6, Nov. 19, 2010, ECF No. 15-2.) The
Appellate Division concluded that this
contention was without merit. See Izaguirre,
856 N.Y.S.2d at 887. The state court’s
In sum, the Court concludes that a rational
jury could have concluded beyond a
reasonable doubt that Petitioner possessed the
requisite intent to cause serious physical injury
to Valle, who died as a result of the wounds
inflicted upon him. It was for the jury, not this
Court, to weigh conflicting evidence of
Petitioner’s intent. Viewing the evidence
14
state judges. See, e.g., Miles v.
Dorsey, 61 F.3d 1459, 1466
(10th Cir. 1995) (stating that
Rule 11 does not apply to state
courts and “does not
necessarily establish a
constitutional prohibition”
(quoting Frank v. Blackburn,
646 F.2d 873, 882 (5th Cir.
1980), cert. denied, 454 U.S.
840, 102 S. Ct. 148, 70 L.Ed.2d
123 (1981)) (collecting cases).
In New York State courts, a
trial judge is permitted to
participate in plea negotiations
with criminal defendants.
People v. Fontaine, 28 N.Y.2d
592, 268 N.E.2d 644, 644, 319
N.Y.S.2d 847 (1971); see also
People v. Signo Trading Int’l
Ltd., 124 Misc. 2d 275, 277,
476 N.Y.S.2d 239, 241 (N.Y.
City. 1984) (“In the absence of
prejudice against or
prejudgment of a defendant,
there is no reason for a judge
[who has participated in plea
discussions] to disqualify
himself.”). While participating
in plea negotiations, a judge is
permitted to discuss the
possible sentencing
repercussions of a defendant’s
choice to go to trial rather than
plead guilty. People v. Zer,
276 A.D.2d 259, 259, 714
N.Y.S.2d 257, 257 (1st Dep’t
2000) (“The court was not
acting in a coercive manner
when it reminded defendant of
the scope of sentencing
available in the event of a
conviction at trial.”).
conclusion was not contrary to, or an
unreasonable application of, clearly
established federal law.
As a threshold matter, “[c]ourts have long
recognized that trial judges are entitled to
encourage guilty pleas by imposing on a
defendant who pleads guilty a lesser sentence
than would have been imposed had the
defendant stood trial.” United States v. Cruz,
977 F.2d 732, 733-34 (2d Cir. 1992). “[T]he
guilty plea and the often concomitant plea
bargain are important components of this
country’s criminal justice system,” Blackledge
v. Allison, 431 U.S. 63, 71 (1977), and, though
a criminal defendant may object to a judge’s
encouragement of his pleading guilty, “not
every burden on the exercise of a
constitutional right, and not every pressure or
encouragement to waive such a right, is
invalid. Specifically, there is no per se rule
against encouraging guilty pleas,” Corbitt v.
New Jersey, 439 U.S. 212, 218-19 (1978). To
be sure, “the breadth of discretion that our
country’s legal system vests in prosecuting
attorneys carries with it the potential for both
individual and institutional abuse. And broad
though that discretion may be, there are
undoubtedly constitutional limits upon its
exercise.” Bordenkircher v. Hayes, 434 U.S.
357, 365 (1978) Nevertheless, “in the ‘giveand-take’ of plea bargaining” there is no
element of impropriety so long as the accused
is free to accept or reject the prosecution’s
offer. Id. at 363.
Moreover, as the Second Circuit has
explained,
Although federal judges are
prohibited from participating in
plea bargaining, see Fed. R.
Crim. P. 11, this blanket
prohibition does not apply to
15
choices which, as the judge points out, could
result in deportation whether or not Petitioner
pleads guilty. See, e.g., Zhang v. United
States, 506 F.3d 162, 169 (2d Cir. 2007) (prior
to his entering into a guilty plea, the sentencing
court was solely obligated to put appellant “on
notice that his guilty plea had potential
immigration consequences, and provided an
opportunity to pursue those consequences more
fully with his attorney or with an immigration
specialist,” concluding that where the
sentencing judge indicated that there was a
“possibility” that appellant would be deported
was sufficient notice and was not inaccurate or
prejudicial even though it was not clear at the
time of the sentencing that appellant could
actually be deported).
McMahon v. Hodges, 382 F.3d 284, 289 n.5
(2d Cir. 2004); see also Flores v. Estelle, 578
F.2d 80, 85 (5th Cir. 1978) (“a state judge’s
participation in plea bargaining does not per se
violate any federal constitutional provision.”).
In the instant case, although the wording
of the comments by the trial judge regarding
the plea negotiations were ill-advised, this
Court finds no evidence of a constitutional
violation warranting habeas relief. See, e.g.,
Smith v. McGinnis, No. 02 Civ. 1185(HB),
2003 WL 21488090, at *3 (S.D.N.Y. June 25,
2003) (the judge’s “conduct and remarks did
not create the kind of fundamental unfairness
required by the Supreme Court in order to
show deprivation of due process”). First, the
comments with which Petitioner now takes
issue were prompted by his own lawyer’s
lengthy statement on the record reflecting his
belief that Petitioner should accept the State’s
offer. Defense counsel made clear that
Petitioner’s decision to proceed to trial
followed competent and strenuous advice by
defense counsel to the contrary, as well as
repeated attempts to disabuse Petitioner of his
own mistaken belief that he could not be
convicted under the law because of the
absence of eyewitnesses to the crime. Further,
the trial judge made clear to Petitioner that she
did not know whether Petitioner was guilty,
and that only Petitioner knew what was in his
best interest. With respect to his immigration
status, the County Court told Petitioner that if
he is convicted after trial, he would “probably”
be deported to his native Honduras after
serving his sentence and that “[y]our best
chance is . . . to enter a plea . . . and hope they
will forget about your immigration hold.” (T.
8-9.) Once again, these comments do not
suggest a pre-trial bias on the part of the
County Court, but rather are an attempt on the
part of the judge to advise Petitioner of the
potential immigration consequences of his
The record is similarly bereft of any
indication that the court’s comments, made
outside the presence of the jury, had any
continuing or permeating effect in any way on
the character of the trial proceedings, including
the judge’s rulings during the course of the
trial. In other words, there is no evidence of
any prejudice Petitioner allegedly suffered
during the trial as a result of the judge’s
comments.12 There can be no question that
Petitioner in the instant case was not only wellcounseled, but that he understood the choices
that were presented to him and freely rejected
the State’s offer. See Corbitt v. New Jersey,
439 U.S. 212, 225 (1978). Thus, his ultimate
decision to forgo the plea deal presented to him
and proceed to trial eliminated any possible
prejudice that could have resulted from the
County Court’s remarks to the extent Petitioner
12
At oral argument, the Court confirmed with Petitioner’s
counsel that Petitioner was not claiming that any rulings
by the trial judge during the trial exhibited any bias or
retaliation against Petitioner because of his refusal to
plead guilt. In any event, the record contains no
evidence of bias or retaliation by the judge during the
trial.
16
excessive because it went beyond the term
recommended by the State – which was “not
less than fifteen years” (S. 3.) – and was
imposed in retaliation for the Petitioner’s
refusal to take the State’s plea bargain. The
Appellate Division summarily rejected
Petitioner’s claim, stating that, “[t]he
sentencing minutes indicate that the Supreme
Court considered the appropriate factors in
sentencing the defendant, and we find that the
sentence imposed was not excessive.”
Izaguirre, 856 N.Y.S.2d at 887 (citation
omitted).13 This Court concludes that the
believes that the judge was improperly trying
to encourage him to plead guilty. Petitioner
disregarded any alleged efforts to persuade
him to plead guilty, rejected the State’s plea
offer despite ardent warnings from his lawyer,
and exercised his right to a trial by jury, as he
was constitutionally permitted to do. Given
the absence of any evidence of any
fundamental unfairness or any other
constitutional violation (including the lack of
any showing of prejudice to Petitioner), the
allegedly improper involvement in plea
negotiations by the trial judge does not warrant
habeas relief.
13
Because the Appellate Division summarily rejected
Petitioner’s claim on the merits without explanation, this
Court focuses on the ultimate decision of the state court,
rather than on the court’s reasoning. See Sellan v.
Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001) (“when
a state court fails to articulate the rationale underlying
its rejection of a petitioner’s claim, and when that
rejection is on the merits, the federal court will focus its
review on whether the state court’s ultimate decision was
an ‘unreasonable application’ of clearly established
Supreme Court precedent.”). The Court notes that it has
some concern as to whether the Appellate Division
addressed this vindictive sentencing claim at all. More
specifically, in its brief Order affirming the conviction,
the Appellate Division stated that “we find that the
sentence imposed was not excessive.” Izaguirre, 51
A.D. 3d at 946. However, Point Two of Petitioner’s
appellate brief was that the sentence “was harsh,
Excessive, and retaliatory for the appellant exercising
[h]is right to a trial.” Defendant-Appellant’s Brief,
People v. Izaguirre, 51 A.D.3d 946 (2008) (No. 200509068), 2008 WL 3832152, at *50 (emphasis added).
The Appellate Division did not mention the Petitioner’s
separate argument that the sentence was retaliatory or
vindictive. Although the court did say that it finds “the
defendant’s remaining contention is without merit,”
Izaguirre, 51 A.D.3d at 946, the Court believes that
sentence is a reference to Point One of Petitioner’s
appellate brief, which separately argued that his entire
conviction should be vacated because “the County Court
Improperly Attempted to Persuade the Appellant to enter
a plea of guilty.” Defendant-Appellant’s Brief, People v.
Izaguirre, 51 A.D.3d 946 (2008) (No. 2005-09068),
2008 WL 3832152, at *47. Thus, because the Appellate
Division’s Order only referenced a singular (rather than
plural) “remaining contention,” it is possible that it never
In sum, Petitioner’s theory that the
County Court improperly became an advocate
on behalf of the State in attempting to
persuade Petitioner to enter a plea agreement
does not provide a basis for habeas relief
under the circumstances of this case. The
County Court attempted to explain to
Petitioner the consequences of entering a plea
as compared to proceeding to trial, making it
clear that the court did not hold a view as to
Petitioner’s guilt or innocence. Petitioner did
not plead guilty following the judge’s
statements and, thus, cannot claim he was
improperly coerced in some way. Furthermore,
there is no evidence that the Petitioner’s trial
was somehow affected by the County Court’s
remarks. Accordingly, in sum, this Court
concludes that, in assessing Petitioner’s claim,
the Appellate Division’s conclusion that it was
without merit was not contrary to, or an
unreasonable application of, clearly
established federal law.
C. Excessive and Retaliatory Sentence Claim
Lastly, Petitioner argues that the County
Court imposed a harsh, excessive and
retaliatory sentence. Specifically, Petitioner
claims that the sentence was harsh and
17
the Eighth Amendment, Petitioner’s claim is
not reviewable by this Court since, “when a
sentence is within [the range of years
prescribed by law], a claim of excessive
punishment does not present a constitutional
question necessary for habeas corpus reversal.”
Underwood v. Kelly, 692 F. Supp. 146, 152
(E.D.N.Y. 1988), aff’d 875 F.2d 857 (2d Cir.
1989); see also White v. Keane, 969 F.2d 1381,
1383 (2d Cir. 1992). Petitioner was convicted
by a jury of Manslaughter in the First Degree,
a class B violent felony punishable by as many
as twenty-five years in prison. See N.Y. Penal
L. §§ 120.20(1), 70.02(a)(1), (a)(3). Thus, the
twenty-five year sentence imposed by the
County Court was within the statutory range
and Petitioner’s claim that it is excessive is
beyond this Court’s review. Similarly, to the
extent Petitioner is also challenging his
sentence of five years of post-release
supervision, that is also within the permissible
range under New York law for a class B
violent felony.14 See N.Y. Penal Law §
70.45(1), (2).
Appellate Division’s determination that the
sentence imposed was not harsh or excessive
was not contrary to, nor an unreasonable
application of, clearly established federal law.
However, the Court further concludes that the
Appellate Division’s determination on the
vindictive sentencing claim – namely, that it
did not require resentencing – was an
unreasonable application of clearly established
federal law as articulated by the Supreme
Court. The Court will address Petitioner’s
sentencing claims in turn.
As a preliminary matter, to the extent that
Petitioner relies on state law as a ground for an
excessive sentence claim, such a claim is not
cognizable on habeas review. See, e.g., Wilson
v. Ercole, No. 06-cv-533 (DLI), 2009 WL
792089, at *11 (E.D.N.Y. Mar. 23, 2009) (“On
his direct appeal, petitioner . . . did not contend
that this sentence violated his constitutional
rights, but instead urged the Appellate
Division to reduce the sentence under C.P.L.
§ 470.15(6)(b), which gives the state court
broad plenary power to modify a sentence that
is unduly harsh or severe, though legal . . . .
Given that this claim rests exclusively on state
law, the court may not review it under 28
U.S.C. § 2254(d).” (internal citations
omitted)); Morris v. Kuhlmann, No. 84-cv2293, 1984 WL 624, at *2 (S.D.N.Y. July
18,1984) (“The question of using a Canadian
conviction as a basis for sentencing as a
second felony offender is a matter of state law
and does not present a federal question
suitable for federal habeas corpus review.”).
However, the final aspect of Petitioner’s
claim, that his sentence was in retaliation for
his refusal to enter into a plea bargain, raises a
different constitutional question and the state
court record on that issue gives this Court great
constitutional concern even under the
deferential standard of review for habeas
petitions. Petitioner argues that the trial court
essentially punished him for exercising his
Sixth Amendment right to a jury trial.
14
In any event, even if the Court could review under the
Eighth Amendment a sentence within the range
prescribed by state law, the Court would find no basis in
this case to conclude that Petitioner’s sentence was
grossly disproportionate to the crime committed so as to
violate the Eighth Amendment given the nature of the
criminal activity – namely, a First-Degree Manslaughter
conviction involving a stabbing of the victim in a bar –
that was the subject of the conviction in the instant case.
Furthermore, to the extent Petitioner
argues that his sentence was excessive and
therefore cruel and unusual punishment under
addressed the vindictive sentencing claim. However,
the Court assumes, for purposes of this petition, that the
Appellate Division summarily rejected the vindictive
sentencing claim on the merits in its decision.
18
Specifically, Petitioner contends that his
sentence was the result of his not accepting the
plea offer, which the trial court judge allegedly
preferred, and that the lack of reasoning given
by the same judge for imposing the maximum
sentence, which was beyond what the
prosecution had recommended, further
demonstrates this intent to punish.
purpose – a presumption that
must be rebutted by “‘objective
information . . . justifying the
increased sentence.’” Texas v.
McCullough, 475 U.S. 134, 142
(1986) (quoting United States v.
Goodwin, 457 U.S. 368, 374
(1982)).
A sentence is unconstitutionally
vindictive if it imposes greater punishment
because the defendant exercised a
constitutional right, such as the right to jury
trial or the right to appeal. Wasman v. United
States, 468 U.S. 559, 567-68 (1984) (citing,
inter alia, North Carolina v. Pearce, 395 U.S.
711, 725 (1969)). Claims of unconstitutional
vindictiveness by the court were initially
addressed by the Supreme Court in Pearce in
the context of a higher sentence after a new
trial. Pearce held that the Due Process Clause
of the Fourteenth Amendment “requires that
vindictiveness against a defendant for having
successfully attacked his first conviction must
play no part in the sentence he receives after a
new trial.” 395 U.S. at 725; accord, e.g.,
Bordenkircher v. Hayes, 434 U.S. 357, 362
(1978). The Supreme Court in Alabama v.
Smith, 490 U.S. 794 (1989), summarized its
precedents on this issue:
Smith, 490 U.S. at 799. Accord, e.g., Correia v.
Hall, 364 F.3d 385, 388 (1st Cir. 2004) (“In the
event a criminal defendant successfully appeals
his conviction and the same trial judge imposes
a stiffer sentence following a retrial, the
presumption arises that the harsher sentence
was a product of judicial vindictiveness in
response to the defendant’s rightful recourse to
the appellate process; yet this presumption is
rebuttable provided the record contains
objective evidence which adequately explains
the more severe sentence.”).
However, the Pearce framework was not
limited by the Supreme Court to sentencings
after re-trials, but rather has been applied by
the Supreme Court to other situations, such as
claims of prosecutorial vindictiveness in
connection with plea negotiations. See, e.g.,
United States v. Goodwin, 457 U.S. 368, 373383 (1982); Bordenkircher v. Hayes, 434 U.S.
at 362. Although the Supreme Court made
clear in those cases that it would be difficult to
find such a presumption against a prosecutor in
the context of the regular give-and-take of plea
negotiations, it nonetheless made clear that this
same rule applies to all vindictiveness claims,
regardless of whether it involved a prosecutor
or judge, or whether it occurred pre-trial, at
trial, at sentencing, or at re-sentencing after a
new trial. In other words, even though the
ability to demonstrate a “reasonable likelihood
of vindictiveness” to invoke the presumption
might be more difficult in one situation as
opposed to another, the rule is the same.
“In order to assure the absence
of such a motivation [of
vindictiveness], we have
concluded that whenever a
judge imposes a more severe
sentence upon a defendant after
a new trial, the reasons for him
doing so must affirmatively
appear.” [Pearce, 395 U.S. at
726.]
Otherwise, a
presumption arises that a
greater sentence has been
imposed for a vindictive
19
For example, in Correia, the First Circuit held
that “[t]he same [Pearce] presumption may
arise when a criminal defendant rejects a plea
agreement – and with it the prospect of a more
lenient sentence – and elects instead to exercise
his constitutional right to a jury trial.” Correia,
364 F.3d at 388 (citing Johnson v. Vose, 927
F.2d 10, 11 (1st Cir. 1991)); accord Jones v.
Perhaps one of the clearest articulations of this
well-established rule was contained in
Goodwin when the Supreme Court stated:
“[I]n certain cases in which action detrimental
to the defendant has been taken after the
exercise of a legal right, the Court has found it
necessary to ‘presume’ an improper vindictive
motive. Given the severity of such a
presumption, however – which may operate in
the absence of any proof of an improper
motive and thus may block a legitimate
response to criminal conduct – the Court has
done so only in cases in which a reasonable
likelihood of vindictiveness exists.” 457 U.S.
at 373. Therefore, for purposes of habeas
review, this Court concludes that this Pearce
standard was clearly established federal law,
as articulated by the Supreme Court, at the
time of the state court decision in the instant
case. The fact that the rule has not been
applied by the Supreme Court to the specific
facts of this type of case is of no legal
significance to Petitioner’s claim here on
habeas review, given that the Supreme Court
clearly articulated a generalized standard that
is to be applied to all vindictiveness claims.
See Kennaugh v. Miller, 289 F.3d 36, 42 (2d
Cir. 2002) (“federal law, as defined by the
Supreme Court, may be either a generalized
standard enunciated in the Court’s case law or
a bright-line rule designed to effectuate such a
standard in a particular context”).
Accordingly, the Pearce standard must be
applied to Petitioner’s vindictive sentencing
claim.
not the state court’s application of federal law was
reasonable. See, e.g., Sedillo v. Hatch, 445 Fed. App’x
95, 103 (10th Cir. 2011) (“To be sure, we may look to
the precedent of the lower federal courts in attempting to
discern when a state court’s decision is contrary to, or
involves an unreasonable application of, clearly
established federal law as defined by the Supreme
Court.”); Casey v. Moore, 386 F.3d 896, 907 (9th Cir.
2004) (“Although lower federal court and state court
precedent may be relevant when that precedent
illuminates the application of clearly established federal
law as determined by the United States Supreme Court,
if it does not do so, it is of no moment.”); Ouber v.
Guarino, 293 F.3d 19, 26 (1st Cir. 2002) (“The AEDPA
also requires that the relevant legal rule be clearly
established in a Supreme Court holding, rather than in
dictum or holdings of lower federal courts . . . This does
not mean, however, that other federal court decisions are
wholly irrelevant to the reasonableness determination.”
(citation omitted)); Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 890 (3d Cir. 1999) (en banc)
(“[W]e do not believe federal habeas courts are
precluded from considering decisions of the inferior
federal courts when evaluating whether the state court’s
application of the law was reasonable.”); see also
Shiwlochan v. Portuondo, 345 F. Supp. 2d 242, 263
(E.D.N.Y. 2004) (report and recommendation) (“federal
habeas courts are not precluded from considering the
decisions of inferior federal courts, as helpful
amplifications of Supreme Court precedent, in evaluating
whether the state court’s application of the law was
reasonable” (citation and internal quotation marks
omitted)); accord Durant v. Strack, 151 F. Supp. 2d 226,
239 n.8 (E.D.N.Y. 2001). However, this Court
emphasizes that, notwithstanding its consideration of
these lower court decisions as helpful guidance, it
understands that it is only clearly established federal law
as articulated by the United States Supreme Court (rather
than a lower court) that is applicable on habeas review
and this Court reaches its conclusion independent of any
lower court decisions cited in this Memorandum and
Order.
Other courts have reached the same
conclusion that the Pearce standard is clearly
established for purposes of habeas review.15
15
Contrary to Respondent’s contention, this Court is not
precluded from considering lower federal court
decisions to help illuminate what was clearly established
by the Supreme Court (not lower courts) at a particular
point in time, as well to assist in evaluating whether or
20
Poole, No. 05-cv-0886, 2010 WL 1949599, at
*36 (W.D.N.Y. May 13, 2010). “‘[T]he evil
the [Pearce] Court sought to prevent’ was not
the imposition of ‘enlarged sentences after a
new trial’ but ‘vindictiveness of a sentencing
judge.’” Smith, 490 U.S. at 799 (quoting Texas
v. McCullough, 475 U.S. 134, 138 (1986) and
citing Chaffin v. Stynchcombe, 412 U.S. 17, 25
(1973) (holding that the Pearce presumption
was not designed to prevent the imposition of
an increased sentence on retrial “for some
valid reason associated with the need for
flexibility and discretion in the sentencing
process,” but was “premised on the apparent
need to guard against vindictiveness in the
resentencing process”)). Similarly, in appeals
on federal cases, courts also have noted the
existence of this well-settled Supreme Court
rule. See, e.g., United States v. Mazzaferro,
865 F.2d 450, 458 (1st Cir. 1989) (“One of the
fundamental principles of our jurisprudence is
that a defendant cannot be punished for
exercising a constitutional right and that
vindictiveness is to play no role in sentencing
of defendants.”).
applied. In the instant case, a reasonable
likelihood of actual vindictiveness exists as
before the trial even began, the County Court
plainly told Petitioner the sentence he would
receive – namely, the non-mandatory, statutory
maximum – if he were convicted at trial.
Before being presented with any of the state’s
evidence, hearing any of Petitioner’s defense,
or reviewing a pre-sentence report regarding
Petitioner, the County Court explicitly stated to
Petitioner, “Mr. Izaguirre, do you understand
that if you are found guilty after this trial you
will do 25 years in prison?” (T. 7.) Following
the jury rendering a guilty verdict, the County
Court did, in fact, sentence Petitioner to 25
years’ imprisonment. Although it is possible
that no actual vindictiveness existed on the part
of the County Court during the sentencing
process, the pre-trial announcement that
Petitioner would receive the statutory
maximum sentence followed by the post-trial
issuance of the promised statutory maximum
sentence (which was discretionary, rather than
mandatory) certainly raises a reasonable
likelihood of actual vindictiveness.
As noted above, the Supreme Court has
restricted application of the Pearce
presumption to those situations in which there
is a “‘reasonable likelihood,’ United States v.
Goodwin, [457 U.S. at 373,] that the increase
in sentence is the product of actual
vindictiveness on the part of the sentencing
authority.” Smith, 490 U.S. at 799. Absent a
“reasonable likelihood” of “actual
vindictiveness,” “the burden remains upon the
defendant to prove actual vindictiveness[.]” Id.
(citing Wasman, 468 U.S. at 569).
Essentially, upon hearing that Petitioner
was reluctant to accept the state’s latest plea
offer, which would result in a sentence of ten
years or less, the County Court announced that
if the Petitioner elected to go to trial and were
convicted, the Court would sentence him to the
statutory maximum, twenty-five years’
imprisonment. Such a statement, made in
connection with Petitioner’s election to go to
trial, unquestionably is sufficient to trigger the
Pearce presumption by raising a reasonable
likelihood of actual vindictiveness.16
16
Thus, the threshold question is whether the
well-settled Pearce presumption should have
been applied to the particular facts of this case.
After carefully reviewing the record, there is
no question that the presumption should be
As the Second Circuit has emphasized in the context of
the Sixth Amendment, “[t]he claim under the Sixth
Amendment is premised entirely upon [the trial judge’s]
alleged threat of a more severe sentence should [the
petitioner] go to trial. If true, this would establish a per
se violation of the defendant’s Sixth Amendment right to
21
to waive such a right, is invalid.” Corbitt, 439
U.S. at 218-20. In this instance, however, the
County Court’s statement was not merely
apprising Petitioner of the potential
consequences of his election to go to trial; the
County Court definitively stated that Petitioner
would receive a non-mandatory 25-year
sentence upon conviction at trial.17 Moreover,
the context of that statement provides further
support for Petitioner’s vindictive sentencing
claim. Other statements by the County Court
during that colloquy included the following:
(1) “The prisons are filled with people who
were convicted of crimes where there was no
eye witness, and they are filled with people
who feel they were wrongfully convicted
because there wasn’t enough evidence, or who
have convinced themselves that there wasn’t
enough evidence. Those people are not
necessarily the kind of people you want to
spend the next 20 years of your life with.”; (2)
“You are a very young man. You also have an
immigration hold. You will probably, if you
get convicted, never see daylight again,
because you will probably sit in a New York
State facility for at least 20 years and then be
deported to . . . Honduras, and I don’t know
what they will do to you in Honduras after
having served a prison sentence here.”; and (3)
In attempting to defend the propriety of the
County Court’s pre-trial statement regarding
Petitioner’s future sentence, Respondent first
argues that the statement was “motivated – and
even invited – by defense counsel’s expressed
concern about his client’s seeming lack of
understanding about the applicable law and the
situation he faced, and not by an agenda of
vindictiveness to punish petitioner for wanting
to proceed to trial.” (Resp.’s Letter at 7, July
22, 2011, ECF No. 30.) The Court agrees that
defense counsel did raise his concern
regarding Petitioner’s possible
misapprehension of the state’s standard of
proof, but such concern was addressed by the
County Court’s statement that, “[t]he prisons
are filled with people who were convicted of
crimes where there was no eye witness . . . .”
(T. 8.) Defense counsel’s concern was not
addressed by, and did not invite, the County
Court’s additional, unequivocal statement that
Petitioner would receive a 25-year sentence
upon conviction.
Respondent next argues that, taken in the
context of the concurrent remarks made by the
County Court, the pre-trial statement regarding
Petitioner’s sentence was not a threat, but
rather “an advisement of the plea offer and the
potential consequences that petitioner faced if
he went to trial.” (Resp.’s Letter at 7, July 22,
2011, ECF No. 30.) The Supreme Court has
held that “there is no per se rule against
encouraging guilty pleas” and that “not every
burden on the exercise of a constitutional
right, and not every pressure or encouragement
17
Unlike the cases cited by Respondent, the County Court
failed to characterize the 25-year sentence as one that
Petitioner “could” face, see, e.g., Williams v. Lacy, No.
96 Civ. 0868 AGS, 1997 WL 40922, at *2 (S.D.N.Y.
Jan. 31, 1997) (petitioner alleged that trial court told him
that he could be sentenced as a persistent felony offender
if convicted after a trial), or even one that Petitioner
would “likely” receive. See e.g., Oyague v. Artuz, 274
F. Supp. 2d. 251, 258 (E.D.N.Y. 2003) (petitioner
alleged that trial court told him that if he went to trial
and were convicted he would spend the rest of his life in
prison because he would be facing a likely 65 years to
life sentence); Spikes v. Graham, No. 9:07-CV-1129
(DNH/GHL), 2010 WL 4005044, at *7 (N.D.N.Y. July
14, 2010) (petitioner alleged that trial court told him that
he would likely be found guilty and receive a 25-year
sentence if he proceeded to trial).
a trial, and require resentencing before a different
judge.” Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d
Cir. 1977) (citing, inter alia, Blackledge v. Perry, 417
U.S. 21, 28 (1973)). Although analyzing the claim
under the Sixth Amendment, the Second Circuit cited a
Supreme Court case decided under the Due Process
Clause (Blackledge), and this Court believes that the
analysis in Fielding applies with equal force in this
context under the Due Process Clause.
22
“Your best chance is, if you wish to plead
guilty, is to enter a plea, take the ten years, and
hope they will forget about your immigration
hold . . . .” (T. 7-9.) Such statements certainly
do not suggest that the County Court’s
previous statement was one setting forth only
a possible sentence, rather than the intended
sentence. In short, examined in the context of
the County Court’s subsequent pre-trial
remarks, the County Court’s original statement
reasonably conveys the ostensible message
that the County Court had predetermined that
Petitioner would receive a much more severe
sentence should Petitioner invoke his right to
trial and further supports the application of the
Pearce presumption.18
Court’s remarks, Petitioner had been in
custody for about one year and eight months.
(T. 34.) If sentenced to twenty-five years,
given credit for time served and given a credit
for good behavior in the future, Petitioner
would serve almost exactly twenty additional
years from the date of the remarks on a twentyfive year sentence. Therefore, the County
Court’s references to twenty years are perfectly
consistent with the County Court’s stated
intention to sentence Petitioner to twenty-five
years should he elect to go to trial.19
In reaching this decision, the Court
emphasizes that it does not conclude that the
Pearce presumption applies simply because the
post-trial sentence exceeded a previous plea
offer. Such a conclusion would be contrary to
well-established Supreme Court precedent and
common sense. Instead, consistent with wellsettled Supreme Court jurisprudence, the Court
finds that the Pearce presumption is warranted
where the trial court stated, pre-trial, in the
context of plea negotiations, that she would
impose the non-mandatory statutory maximum
if the defendant went to trial, and then imposed
that sentence after trial.
Although Respondent attempts to point to
the pre-trial references by the court to 20 years
as an indication that a 25-year sentence had
not been pre-determined despite the explicit
statement, that argument is unpersuasive and
insufficient to prevent the application of the
Pearce presumption in this case. As noted by
Petitioner, the 20-year references could easily
be a reference to the actual time under New
York law that Petitioner would have to serve
on a 25-year sentence, rather than an
indication of some other sentence being
considered. Specifically, the Court notes that,
in New York, credit for good behavior on a
determinate sentence may not exceed oneseventh of the sentence. N.Y. Correct. Law. §
803(1)(c). Thus, a person sentenced to
twenty-five years could hope to serve only
about 21.5 years with a good behavior credit.
It appears that, at the time of the County
Because the Pearce presumption applies to
Petitioner at sentencing, the County Court was
required to affirmatively state sufficient
reasons for the sentence imposed in order to
rebut the presumption that it was motivated by
actual vindictiveness in imposing the
maximum statutory sentence as promised. See
Wasman, 468 U.S. at 569; accord, e.g.,
Somerville v. Hunt, No. 08-CV-1307, 2011 WL
795073, at *10 (E.D.N.Y. Feb. 28, 2011). The
County Court could have discharged this
18
Because the Court finds that the Pearce presumption
applies and is unrebutted, the Court makes no finding
with respect to whether Petitioner carried his burden of
proving actual vindictiveness. See Smith, 490 U.S. at
799-800 (absent a reasonable likelihood of actual
vindictiveness, the burden remains upon the defendant
to prove actual vindictiveness).
19
In any event, it obviously would still be problematic
from a constitutional standpoint if the County Court had
decided prior to trial to impose a sentence of at least 20
years if the defendant elected to go to trial.
23
affirmatively appeared in the County Court’s
rationale for the sentence. Moreover, the
County Court did not mention, and apparently
did not rely upon, any history and
characteristics of Petitioner as grounds for
supporting the statutory maximum.20 Cf. Smith
v. Scully, No. 02-CV-6329, 2003 WL
22952848, at *5 (E.D.N.Y. Oct. 16, 2003)
(the fact that the trial court had reviewed a
“very unfavorable report written by the
Probation officer as to [the petitioner’s] being
a professional criminal” rendered remarks to
the petitioner about the likelihood of receiving
a “maximum sentence” more like a notice than
threat). Therefore, there is no basis on which
to find that the County Court’s reasons at
sentencing, or any other evidence or
information in the record, were sufficient to
rebut the Pearce presumption that the 25-year
sentence was motivated by actual
vindictiveness. Thus, without making any
finding as to the actual reasons for Petitioner’s
sentence, this Court holds that the unrebutted
Pearce presumption of actual vindictiveness
requires resentencing by a different judge in
this case, and any conclusion to the contrary is
an unreasonable application of clearly
established federal law.
burden by indicating on the record its reasons
for imposing the maximum increased sentence
and its reasons were “based on objective
information concerning identifiable conduct
on the part of the defendant,” Pearce, 395 U.S.
at 726; Somerville, 2011 WL 795073 at *10,
sufficient to overcome the presumption.
However, the circumstances surrounding
the sentencing do not provide a sufficient basis
to rebut the presumption. To the contrary, the
circumstances surrounding the sentencing
provide additional support for Petitioner’s
claim. First, even though the state requested a
sentence of “no less than 15 years in prison,”
(S. 3.), the County Court sentenced Petitioner
to 25 years’ imprisonment. Second, the
County Court’s reasons justifying the
imposition of the 25-year sentence were
extremely brief:
[Valle] was a son; he was a
friend; and he was a young man
just like [Petitioner] and now
he will never grow old and he
will never have an opportunity
to have children and he will
never have an opportunity to
take care of his father as his
father gets older.
In reaching this decision, this Court is
aware of the recent decision by the Supreme
Court explaining the standard for “objectively
unreasonableness” in the context of habeas
review. See Harrington v. Richter, 131 S. Ct.
770, 786 (2011). In particular, in Harrington,
the Supreme Court reiterated:
(S. 8.) In short, the extent of the County
Court’s articulated justification for choosing
the maximum sentence possible was that the
victim was a “young man.” This terse
articulation of its reasoning is insufficient to
overcome the Pearce presumption of
vindictiveness under the facts of this case.
Although Respondent speculates that the
County Court’s sentence may have been based
on the violence with which the crime was
committed, or the gruesome nature of the
death, or the great anguish caused to the
victim’s family, none of these factors
A state court’s determination
that a claim lacks merit
precludes federal habeas
20
In fact, during the pre-trial colloquy at issue here, the
court indicated that the Petitioner had never been in “any
kind of trouble before.” (T. 7.)
24
decades (including, inter alia, Bordenkircher
v. Hayes, United States v. Goodwin, and
Alabama v. Smith), has been squarely
established by the Supreme Court. The rule is
based upon holdings, not dicta, of this nation’s
highest court and its application here does not
require an “extension” of that rule; rather, the
application here requires reference only to the
core, well-established rule itself. Moreover, in
this case, there is no indication that the state
court applied this Supreme Court
jurisprudence to the vindictive sentencing
claim, and any application of such precedent
to the facts of this case that resulted in
rejection of the vindictive sentencing claim
would be an unreasonable application under
the above-referenced standard, for the reasons
set forth infra.
review so long as “fairminded
jurists could disagree” on the
correctness of the state court’s
decision.
Yarborough v.
Alvarado, 541 U.S. 652, 124
S. Ct. 2140, 158 L. Ed. 2d 938
(2004). And, as this Court has
explained, “[E]valuating
whether a rule application was
unreasonable requires
considering the rule’s
specificity. The more general
rule the rule, the more leeway
courts have in reaching
outcomes in case-by-case
determinations.” Ibid. “[I]t is
not an unreasonable
application of clearly
established Federal law for a
state court to decline to apply
a specific legal rule that has
not been squarely established
by this Court.” Knowles v.
Mirzayance, 556 U.S. ----, ---, 129 S. Ct. 1411, 1413-14,
173 L. Ed. 2d 251 (2009)
(internal quotation marks
omitted).
The First Circuit reached a similar
conclusion in Longval v. Meachum, 693 F.2d
236 (1st Cir. 1982). In Longval, the judge
stated the following, inter alia, to defense
counsel during the trial near the close of the
prosecution case: “I strongly suggest that you
ask your client to consider a plea, because, if
the jury returns a verdict of guilty, I might be
disposed to impose a substantial prison
sentence.” Id. at 237. The defendant refused
to plead guilty, was convicted, and received a
substantial sentence that was grossly
disproportionate to a co-defendant who
pleaded guilty. In granting the habeas petition
on the vindictiveness sentencing claim, the
First Circuit noted that “[w]hatever his actual
state of mind, or purpose, we regard the
judge’s mid-trial interjections as susceptible of
appearing from the defendant’s perspective to
be an attempt to coerce him to plead.” Id. The
court further clarified that, although the
defendant did not plead guilty, the issue of
coercion was different than the issue of a
retaliatory sentence. Id. at 237 n.2 (“The
Commonwealth argues that the fact that the
131 S. Ct. at 786. The Court further
emphasized, “As a condition for obtaining
habeas corpus from a federal court, a state
prisoner must show that the state court’s
ruling on the claim being presented in federal
court was so lacking in justification that there
was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
at 786-87.
In the instant case, this high standard has
been met. The specific legal rule at issue
here, first articulated in Pearce and applied in
a number of cases over the past several
25
defendant continued with the trial and took
the stand shows that there was no coercion.
This is beside the point; it does not negate the
appearance of an attempt, nor dispel the
possibility of a retaliatory sentence.”). Finally,
applying the rule in Goodwin, the First Circuit
found that actual vindictiveness was not
required, and that a writ of habeas corpus
should issue unless the defendant was
resentenced within sixty days before a
different judge.21 Id. at 238-39; see also
Mazzaferro, 865 F.2d at 460 (“The law is
clear beyond peradventure that a sentence
based on retaliation for exercising the
constitutional right to stand trial is invalid.
Without drawing any conclusions as to the
district court’s actual reasons for appellant’s
sentence, we believe that the appearance of
retaliation is great enough on the facts of this
case to require that the sentence imposed be
set aside and the case remanded for
sentencing by a different judge.”); United
States v. Stockwell, 472 F.2d 1186, 1187 (9th
Cir. 1973) (“While we do not believe that the
experienced trial judge actually punished the
defendant for standing trial, the record leaves
unrebuttted the inference drawn by the
defendant.”). 22
In sum, even under the deferential AEDPA
standard, the Appellate Division’s failure to
find an unrebutted presumption of judicial
vindictiveness at Petitioner’s sentencing in the
imposition of the statutory maximum, which
warranted resentencing by a different judge,
was an unreasonable application of clearly
In Bordenkircher, a prosecutor threatened to indict the
defendant under the state’s habitual criminal act if he did
not plead guilty to the original crime charged, uttering a
forged instrument. After the defendant refused the plea
offer, the prosecutor indicted the defendant under the
habitual criminal act, the jury found the defendant guilty
of uttering a false instrument and found him to be a
habitual criminal, and the defendant was sentenced to
life in prison. The Supreme Court found that the
prosecutor’s conduct did not amount to a due process
violation. Id. at 363-365. However, this Court finds
Bordenkircher inapposite to the facts here.
Bordenkircher addressed prosecutorial conduct in the
course of plea bargaining, and not the context of a judge
explicitly stating her pre-trial intention to impose the
maximum penalty if a defendant exercises his
constitutional right to a trial, and then imposing the
maximum penalty. See id. at 365 (“We hold only that
the course of conduct engaged in by the prosecutor in
this case . . . did not violate the Due Process Clause of
the Fourteenth Amendment.”). Despite the holding in
Bordenkircher, the Supreme Court reaffirmed that “[t]o
punish a person because he has done what the law
plainly allows him to do is a due process violation of the
most basic sort . . . and for an agent of the State to
pursue a course of action whose objective is to penalize
a person’s reliance on his legal rights is patently
unconstitutional.” Id. at 363 (citation and internal
quotations omitted). The Court stated, however, that “in
the ‘give-and-take’ of plea bargaining, there is no such
element of punishment or retaliation so long as the
accused is free to accept or reject the prosecution’s
offer,” id., and went on to explain the crucial role of plea
bargaining in our criminal justice system. In light of the
reasoning and holding of Bordenkircher, which centered
on prosecutorial conduct, the Court finds that
Bordenkircher does not form a reasonable basis for the
Appellate Division’s decision under the circumstances of
this case.
21
Although Respondent notes the dissenting decision by
Justice Rehnquist in the denial to grant certiorari in
Longval because of the concern that Longval might be
creating a new standard for when a presumption of
vindictiveness applies (see Resp.’s Letter at 15, July 22,
2011, ECF No. 30), the First Circuit has made clear in
subsequent decisions that the Pearce presumption would
not apply simply because the post-trial sentence was
longer than the plea offer, but rather where judges
“explicitly linked harsher sentences to the defendants’
refusal to short cut their right to a jury trial, a factor we
deemed crucial [in Longval and Crocker] in establishing
a reasonable likelihood of vindictiveness.” Johnson v.
Vose, 927 F.2d 10, 12 (1st Cir. 1991).
22
In his papers and at oral argument, respondent argued
that the Appellate Division’s decision was reasonable in
light of Bordenkircher v. Hayes, 434 U.S. 357 (1978).
26
***
established federal law as articulated by the
United States Supreme Court.23
Attorneys for Petitioner are Kevin J. Keating,
Law Office of Kevin J. Keating, 666 Old
Country Road, Suite 501, Garden City, NY
11530, and Matthew W. Brissenden, Matthew
W. Brissenden, P.C., 666 Old Country Road,
Suite 501, Garden City, NY 11530. Attorneys
for Respondent are Tammy J. Smiley and
Andrea M. DiGregorio, Assistant District
Attorneys, on behalf of Kathleen M. Rice,
District Attorney, Nassau County, 262 Old
Country Road, Mineola, NY 11501.
IV. CONCLUSION
For the foregoing reasons, Petitioner has
demonstrated a basis for relief under 28 U.S.C.
§ 2254 in connection with his retaliatory
sentencing claim. Accordingly, a writ of
habeas corpus shall issue unless, within ninety
days of the date of this Memorandum and
Order, Petitioner is resentenced before a judge
other than the one who delivered the sentence
at issue in the instant petition. Moreover, for
the reasons set forth above, Petitioner’s
remaining grounds for habeas relief are
denied. With respect to these other grounds for
relief, because Petitioner has failed to make a
substantial showing of a denial of a
constitutional right, no certificate of
appealability shall issue on these grounds. See
28 U.S.C. § 2253(c)(2).
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: April 25, 2012,
Central Islip, New York
23
Given the nature of Petitioner’s claim and the history
of this case, resentencing before a different judge is
warranted to avoid even the appearance of
vindictiveness or unfairness in connection with the
resentencing. See Longval, 693 F.2d at 239 (requiring
resentencing before different judge); Somerville, 2011
WL 795073, at *11 (same); accord Ketchings v.
Jackson, 365 F.3d 509, 514 (6th Cir. 2004).
27
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