Sonberg v. Graham

Filing 37

ORDER denying petition for writ of habeas corpus and dismissing the action. Signed by Hon. Michael A. Telesca on 6/14/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NORMAN C. SONBERG, 08-B-0886,
Petitioner,
-v-

09-CV-987(MAT)
ORDER

HAROLD GRAHAM,
Respondent.

I.

Introduction
Pro se petitioner Norman Sonberg (“petitioner”) seeks relief

pursuant to 28 U.S.C. § 2254 alleging that his conviction in
Niagara County Court of Sexual Abuse in the First Degree (N.Y.
Penal

Law

(“Penal

L.”)

§

130.65

[1])

was

unconstitutionally

obtained. The judgment of conviction, entered March 14, 2008,
followed a guilty plea before Judge Sara S. Sperrazza. Petitioner
was sentenced to a determinate term of imprisonment of five years,
followed by three years of post-release supervision.
II.

Factual Background and Procedural History
Petitioner

was

charged

in

a

fifteen-count

indictment

in

Niagara County with various sex crimes against the underage child
of a family with whom he had been staying. See Ind. No. 2007-142.
On the eve of jury selection, the indictment was dismissed, and
petitioner

agreed

to

be

prosecuted

upon

a

Superior

Court

Information (“SCI”). Petitioner was arraigned on Niagara County SCI
No. 2007-142A, which charged him with Sexual Abuse in the First

Degree (Penal L. § 130.65[1]), Rape in the First Degree (Penal L.
§ 130.35[1]), Rape in the Second Degree (Penal L. § 130.30[1]) and
Endangering

the

Welfare

Thereafter,

petitioner

of

a

Child

pleaded

(Penal

guilty

to

L.
the

§

260.10[1]).

top

count

in

satisfaction of the charges. He executed a written waiver of his
right to appeal and the county court committed to a five-year cap
on his sentence with three years of post-release supervision. See
Plea Mins. dated 1/16/2008.
Prior to sentencing, petitioner moved to withdraw his guilty
plea, alleging that the day he took the plea he was improperly
medicated and therefore was mentally incompetent to plead guilty.
The court denied his motion and imposed the agreed-upon sentence of
five

years

imprisonment

with

three

years

of

post-release

supervision. See Sentencing Mins. dated 3/14/2008.
Petitioner appealed his conviction to the Appellate Division,
Fourth Department, on the following grounds: (1) the waiver of the
right to appeal was invalid; (2) the court erred in refusing
petitioner’s request to withdraw his plea; and (3) the plea was not
knowingly,

intelligently

and

voluntarily

Appellate Br., Docket No. KA 08-00861.

entered.

See

Pet’r

The Appellate Division

rejected petitioner’s contention that the county court abused its
discretion in denying his motion to withdraw his plea because it
was not knowingly, intelligently and voluntarily entered:
Although the record establishes that defendant
was being treated for medical conditions with
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prescription medications, “[t]here was not the
slightest
indication
that
defendant
was
uninformed, confused or incompetent” when he
entered the plea. Indeed, when the court asked
defendant whether the medication he was taking
affected his ability to think clearly,
defendant responded in the negative. The court
also asked defendant whether he had sufficient
time to discuss the matter with his attorney
and whether he was in good physical and mental
condition, and defendant responded in the
affirmative. Even if we were to credit the
contention of defendant that he had taken the
wrong medication on the day he entered his
plea, we nevertheless would conclude on the
record before us that he was not thereby “so
stripped . . . of orientation or cognition
that he lacked the capacity to plead guilty.”
People v. Sonberg, 61 A.D.3d 1350, 1351 (4th Dept. 2009) (quoting
People v. Alexander, 97 N.Y.2d 482, 486 (2002); other citations
omitted).
Petitioner sought leave to appeal the Appellate Division’s
decision, which was denied by the New York Court of Appeals. People
v. Sonberg, 13 N.Y.3d 800 (2009).
This habeas petition followed (Dkt. #1), in which petitioner
alleges, in sum and substance, that his plea was not knowing,
intelligent and voluntary because he was mentally incompetent at
the plea proceeding. (Dkt. #1, ¶ 12).1

1

In support of the petition, petitioner has submitted volumes of
rambling, discursive writings, medical records, and random pieces of
correspondence between himself and various government offices. From what the
Court can discern, petitioner alleges one intelligible ground for relief in
the petition. While he refers to a “conflict of interest” and a “breach of
confidence” with regard to his trial counsel in the item labeled “Ground Four”
of the petition, those claims are largely unexplained, belied by the record,
and appear to be unexhausted despite petitioner’s numerous references to an
application for writ of error coram nobis in the Appellate Division. There is
no evidence anywhere in petitioner’s submissions or the state court records
3

For the reasons that follow, the Court finds that petitioner
is not entitled to the writ, and the petition is dismissed.
III. Discussion
A.

Standard of Review for Federal Habeas Petitions

Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “resulted in a decision that was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or if it “was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2). A state
court decision is “contrary to” clearly established federal law “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, 413 (2000). The phrase, “clearly established Federal law, as

that an application for writ of error coram nobis was filed. In any event, the
coram nobis proceeding is inappropriate for the claims petitioner purports to
have raised. See Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (the writ
of error coram nobis lies for the purpose of seeking to vacate an order
determining an appeal on the ground that the defendant was deprived of the
effective assistance of appellate counsel); see also Klein v. Harris, 667 F.2d
274, 282 (2d Cir. 1981) (“[A] petitioner cannot show exhaustion unless he has
fairly presented to an appropriate state court the same federal constitutional
claim that he now urges upon the federal courts.”) (internal citations
omitted)).
4

determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner's claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision. Williams, 529 U.S. at 412; accord Sevencan v.
Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S.
1197 (2004).
A

state

court

decision

is

based

on

an

“unreasonable

application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case. Williams, 529 U.S. at 413; see
also id. at 408-10. “[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.” Aparicio v.
Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, “[t]he state court's
application must reflect some additional increment of incorrectness
such that it may be said to be unreasonable.” Id. This 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.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct. The [petitioner] shall
have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also

5

Parsad

v.

Greiner,

337

F.3d

175,

181

(2d

Cir.

2003)

(“The

presumption of correctness is particularly important when reviewing
the trial court's assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state
court's findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
B.

Merits of the Petition
1.

Voluntariness of Guilty Plea

In his petition for habeas corpus, petitioner challenges the
knowing, intelligent and voluntary nature of his guilty plea
entered in Niagara County Court on January 16, 2008. (Dkt. #1,
¶ 12).
It is well-settled that “[a] criminal defendant may not be
tried unless he is competent, and he may not . . . plead guilty
unless he does so ‘competently and intelligently.’” Godinez v.
Moran, 509 U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304
U.S. 458, 468 (1938) and citing Pate v. Robinson, 383 U.S. 375, 378
(1966)). “For the plea to be voluntary, ‘[i]t is axiomatic’ that
the defendant must at least be competent to proceed.” Oyague v.
Artuz, 393 F.3d 99, 106 (2d Cir. 2004) (quoting United States v.
Masthers, 539 F.2d 721, 725 (D.C. Cir. 1976)). The federal standard
for determining competency to stand trial or plead guilty is

6

whether a defendant has “sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding” and
has “a rational as well as factual understanding of the proceedings
against him.” Godinez v. Moran, 509 U.S. at 396-397 (quoting Dusky
v. United States, 362 U.S. 402 (1960) (per curiam)). “When a guilty
plea

is

entered,

the

defendant

waives

several

federal

constitutional rights, including the right to trial by jury, the
right

to

confront

his

accusers,

and

the

privilege

against

compulsory self-incrimination.” Oyague v. Artuz, 393 F.3d at 106
(citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). Thus, a
guilty plea is valid only if the record demonstrates that it is
voluntary and intelligent. Boykin v. Alabama, 395 U.S. at 242-43.
“[A]lthough ‘the governing standard as to whether a plea of
guilty is voluntary for purposes of the Federal Constitution is a
question of federal law,’ questions of historical fact, including
inferences properly drawn from such facts, are in this context
entitled to the presumption of correctness accorded state court
factual findings.’” Parke v. Raley, 506 U.S. 20, 35 (1992) (quoting
Marshall v. Lonberger, 459 U.S. 422, 431 (1983) (internal citation
omitted)).

Statements

made

by

a

defendant

at

a

plea

hearing

constitute a “formidable barrier” that cannot be easily overcome in
subsequent collateral proceedings because “[s]olemn declarations in
open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is

7

subject to summary dismissal, as are contentions that in the face
of the record are wholly incredible.” Blackledge v. Allison, 431
U.S. 63, 73-74 (1977).
The

plea

colloquy,

summarized

herein,

demonstrates

that

petitioner clearly understood the consequences of his guilty plea,
including the rights that he was relinquishing.
At the plea proceeding, petitioner informed the court that he
was fifty-one years-old, completed approximately one-and-a-half
years of college, and was able to read, write, and understand the
English language. He confirmed that he understood the nature of the
case against him and the nature of the specific charge he would be
pleading guilty to. When the court inquired whether the petitioner
was under a physician’s care, petitioner acknowledged that he was,
but stated that his medications for his liver and heart did not
“bother him” or affect his ability to “think clear-headed”. He
affirmed that he was in good mental and physical condition, aside
from his aforementioned ailments. Finally, he told the court that
he was not under the influence of alcohol or illegal drugs, and had
sufficient time to discuss his case with his attorney. Plea Mins.
7-10.
At that point, the court inquired whether petitioner was
satisfied with his representation, to which petitioner responded in
the affirmative. The court then explained to petitioner rights he
would be relinquishing, including the right to a jury trial, to

8

confront and cross-examine witnesses, to remain silent, and to
offer testimony or evidence on his own behalf. The court also
stated that the prosecution had the burden of proof beyond a
reasonable doubt. Petitioner responded that he understood the
waiver of those rights. Plea Mins. 10-11. Finally, petitioner told
the court that he was not forced, threatened, or coerced into
pleading guilty, that his plea was made voluntarily and of his own
free will, and that the plea was conditioned upon his voluntary
waiver of the right to appeal. Id. at 11-12. After discussing the
sentencing commitment, the court asked petitioner whether he was
prepared to move forward with the plea, and petitioner stated that
he was. Id. at 13. Petitioner then admitted that in June, 2006, he
subjected the victim to sexual contact by forcible compulsion, and
entered a plea of guilty. Id. at 13-14. The court confirmed again
that petitioner’s answers were truthful and voluntary prior to
accepting the plea. Id. at 14.
The Court agrees with respondent that petitioner’s in-court,
under-oath statements as summarized above undermine his contention
that he was too disoriented to understand what occurred at the plea
hearing. In sum, the record does not support petitioner’s belated
and unsubstantiated assertions that his plea was not voluntary,
knowing and intelligent because he was mentally incapable of
comprehending the plea proceeding. Furthermore, they are contrary
to petitioner's express, sworn representations during the plea

9

colloquy.

Moreover, petitioner’s attorney, “‘who was in the best

position to assess defendant's capacity,’ did not raise the issue
of

defendant's

fitness

to

proceed

or

request

an

examination

pursuant to [N.Y.Crim. Proc. Law] § 730.30(2).” People v. Carbonel,
296 A.D.2d 858, 858 (4th Dept. 2002) (quoting People v. Gelikkaya,
84 N.Y.2d 456, 459 (1994)).
The record amply supports the conclusion that, at the time he
entered his guilty plea, petitioner “a rational as well as factual
understanding of the proceedings against him,” Godinez, 509 U.S. at
396. Petitioner has thus failed to establish that the Appellate
Division’s
knowingly

determination
and

voluntarily

that

petitioner’s

entered

was

not

guilty
contrary

plea
to

or

was
an

unreasonable application of Supreme Court precedent, and habeas
relief is denied on this claim.
2.

Motion for Release

Petitioner has also filed a motion for release on “probation”
pending the disposition of the habeas petition (Dkt. #34) . In
light of the Court’s determination to dismiss the petition, his
request is denied.
IV.

Conclusion
For the reasons stated above, Norman Sonberg’s petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1) is
denied, and the action is dismissed. Petitioner has failed to make
a “substantial showing of a denial of a constitutional right”,

10

28

U.S.C.

§

2253

(c)(2),

the

court

declines

the

issue

of

certificate of appealability. See, e.g., Lucidore v. New York State
Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000). The Court
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person. Coppedge v.
United States, 369 U.S. 438 (1962).
Further, petitioner’s motion for release pending disposition
of the habeas petition (Dkt. #34) is denied.
SO ORDERED.
S/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

June 14, 2011
Rochester, New York

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