Harris v. Bezio
Filing
13
DECISION AND ORDER denying request for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/12/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
VARNER HARRIS, Jr.,
DECISION AND ORDER
No. 11-CV-0360(MAT)
Petitioner,
-vsNORMAN R. BEZIO, Superintendent,
Respondent.
_____________________________________
I.
Introduction
Pro
se
petitioner
Varner
Harris,
Jr.
(“Harris”
or
“Petitioner”) has filed a petition for a writ of habeas corpus
pursuant
to
28
U.S.C.
§
2254
challenging
his
detention
in
Respondent’s custody. Harris is incarcerated as the result of a
judgment of conviction entered against him in Erie County Court of
New York State following his guilty plea to charges of first degree
murder and attempted first degree murder in connection with the
shooting of two police officers, one of whom was left permanently
disabled.
II.
Factual Background and Procedural History
Harris was charged on January 11, 2007, in an eleven-count
indictment with two counts of attempted aggravated murder (N.Y.
Penal
Law
attempted
(“P.L.”)
first
§§
degree
110.00/125.26(a)(i));
murder
(P.L.
§§
four
counts
of
110.00/125.27(a)(i),
(a)(vii)); and one count each of aggravated assault on a police
officer (P.L. § 120.11); first degree assault (P.L. § 120.10(1));
attempted
aggravated
assault
on
a
police
officer
(P.L.
§ 110.00/120.11); second degree assault (P.L. § 120.05(2)); and
second degree criminal possession of a weapon (P.L. § 265.03(3)).
Following a Huntley1 hearing held in Erie County Supreme Court
(Wolfgang, J.), Petitioner’s motion to suppress his statements to
the police was denied. Due to Petitioner’s extensive history of
mental illness, three psychiatrists examined him to evaluate his
competency to participate in his own defense. The opinions of the
psychiatric experts were unanimous that Petitioner was not mentally
incompetent.
On September 17, 2007, Petitioner elected to plead guilty to
two counts of attempted first degree murder (counts three and four
of
the
indictment).
The
trial
court
committed
to
sentencing
Petitioner to an aggregate term of 30 years to life, and on
November 19, 2007, Petitioner was sentenced accordingly.
On appeal to the Appellate Division, Fourth Department, of
New York State Supreme Court, Petitioner argued that his waiver of
appellate rights was invalid; the trial court erroneously refused
to suppress his statements to the police; and the sentences were
unduly harsh and severe and should be modified in the interests of
the
justice.
The
Appellate
Division
unanimously
affirmed
the
conviction on April 30, 2010. People v. Harris, 72 A.D.3d 1624, 899
N.Y.S.2d 686 (4th Dept. 2010). The New York Court of Appeals denied
1
People v. Huntley, 15 N.Y.2d 72 (1965).
-2-
leave to appeal on July 8, 2010. People v. Harris, 15 N.Y.3d 774
(2010).
This timely habeas petition followed in which Petitioner
raises the following grounds for habeas relief: (1) his waiver of
appellate rights was invalid; (2) his guilty plea was involuntary;
(3) his statements to the police were involuntary; (4) his Fourth
Amendment right to be free from unreasonable searches and seizures
was violated; and (5) the trial court abused its discretion in
sentencing.
For the reasons that follow, the request for a writ of habeas
corpus is denied, and the petition is dismissed.
III. Discussion
A.
Ground One: Invalid Waiver of Appellate Rights
Petitioner argues, as he did on direct appeal, that because he
did not specifically allocute to the terms of the waiver of
appellate rights, the waiver was invalid and review of his Miranda2
and sentencing claims was permitted. The Appellate Division only
tangentially referred to this claim, assuming without deciding that
Petitioner’s waiver of the right to appeal was not knowingly,
voluntarily and intelligently entered under state law. People v.
Harris, 72 A.D.3d at 1624 (citing People v. Lopez, 6 N.Y.3d 248,
256-57 (2006) (“[W]e conclude that the record does not demonstrate
2
Miranda v. Arizona, 384 U.S. 436 (1966).
-3-
that defendant understood she was relinquishing a known right and
that her waiver was thus invalid. During the colloquy, the trial
court explained to defendant that ‘when you plead guilty you waive
your right of appeal.’ This misleading statement, when accompanied
by nothing other than defendant’s one-word response to the question
whether
she
understood
the
conditions
of
her
plea,
is
not
sufficient to guarantee that defendant understood the valued right
she was relinquishing. Because her appeal waiver was invalid,
defendant is thus entitled to review of whether her sentence was
excessive.”)).
Petitioner is correct that as a matter of New York state law,
the record “must establish that the defendant understood that the
right
to
appeal
is
separate
and
distinct
from
those
rights
automatically forfeited upon a plea of guilty. . . .” People v.
Lopez, 6 N.Y.3d at 256; see also id. at 256-57 (“Forfeiture of
certain claims occurs by operation of law as a consequence of a
guilty plea, with respect to issues that do not survive the plea.
Waiver, on the other hand, occurs when a defendant intentionally
and voluntarily relinquishes or abandons a known right that would
otherwise survive a guilty plea[.]”) (citation omitted). However,
federal habeas relief is not available to redress mere errors of
state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations
omitted).
-4-
Harris has not cited, nor is the Court aware of, any Federal
precedent standing for the proposition that the trial court must
employ specific language when apprising a defendant pleading guilty
of the individual rights relinquished. Accordingly, Harris has not
set forth an error of constitutional magnitude redressable in this
habeas proceeding. Accord, e.g., Salaam v. Giambruno, 559 F.
Supp.2d 292, 298 (W.D.N.Y. 2008) (finding petitioner’s claim that
his waiver of appellate rights was invalid because the trial court
“did
not
ask
petitioner
to
explain
in
his
own
words
his
understanding of what this waiver meant” did not state a basis for
habeas relief); Nicholas v. Smith, No. 02 CV 6411(ARR), 2007 WL
1213417, at *10–11 (E.D.N.Y. Apr. 24, 2007) (“[W]hile petitioner’s
argument that the appeal waiver was invalid may have some basis in
New York law, petitioner has not demonstrated that the enforcement
of
the
waiver
denied
him
of
any
rights
under
the
federal
Constitution[.]”).
B.
Ground Two: Harsh and Excessive Sentence
A petitioner’s assertion that a sentencing judge abused his
discretion in sentencing is generally not a federal claim subject
to review by a habeas court. See Fielding v. LeFevre, 548 F.2d
1102, 1109 (2d Cir. 1977) (petitioner raised no cognizable federal
claim by seeking to prove that state judge abused his sentencing
discretion by disregarding psychiatric reports) (citing Townsend v.
Burke, 334 U.S. 736, 741 (1948) (“The [petitioner’s] sentence being
-5-
within the limits set by the statute, its severity would not be
grounds for relief here even on direct review of the conviction,
much
less
on
review
of
the
state
court’s
denial
of
habeas
corpus.”)).
As he did on direct appeal, Petitioner challenges the length
of his sentence based upon his “mental history of disability’s
[sic] and disorders” and his age (eighteen-years-old) at the time
of the shooting. The concurrent sentences of 30 years to life
imposed upon Petitioner were part of a negotiated plea agreement.
As the prosecutor explained, if Petitioner proceeded to trial on
the two counts to which he was pleading guilty, he faced maximum
sentences, by operation of law, of 50 years to life on each count.
See Transcript of Plea Hearing at 3. Not only were the sentences
imposed
within
the
applicable
statutory
range,
they
were
considerably less than the sentences Petitioner could have received
had he been convicted of two counts of attempted first degree
murder. In sum, Harris’s challenge to the length of his sentence
does not present a cognizable constitutional issue because the
sentence falls within the statutory range. White v. Keane, 969 F.2d
1381, 1383 (2d Cir. 1992); accord Ross v. Gavin, 101 F.3d 687
(2d Cir. 1996) (unpublished opn.).
-6-
C.
Ground Three: Denial of the Privilege Against SelfIncrimination During the Police Interrogation
Petitioner contends that his waiver of rights under Miranda v.
Arizona, 384 U.S. 436, supra, was invalid because he was only
eighteen-years-old, was handcuffed during the interrogation, he did
not
have
an
attorney
present
with
him,
and
he
was
visibly
exhausted. Following a Huntley hearing, the trial court issued a
decision and order on May 11, 2007, making findings of fact and
conclusions of law.
The Appellate Division then considered the Miranda claim on
the merits and concluded that the trial court properly determined
that the prosecution met its initial burden of establishing the
legality of the police conduct and Petitioner’s waiver of rights.
The Appellate Division further found that Petitioner failed to
establish that he did not waive his Miranda rights, or that the
waiver was not knowing, voluntary and intelligent. People v.
Harris, 72 A.D.3d at 1624 (quotation omitted).
In general, a defendant who pleads guilty to a charged offense
“may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267
(1973). However, “when state law permits a defendant to plead
guilty without forfeiting his right to judicial review of specified
constitutional
issues,
the
defendant
-7-
is
not
foreclosed
from
pursuing those constitutional claims in a federal habeas corpus
proceeding.” Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).
Pursuant to New York Criminal Procedure Law (“C.P.L.”) § 710.70(2),
a criminal defendant may appeal an adverse decision on a pretrial
motion to suppress evidence, despite conviction upon guilty plea.
See United States ex rel. Sanney v. Montanye, 500 F.2d 411, 414 (2d
Cir. 1974) (holding habeas petitioner did not waive constitutional
claims
arising
challenging
from
“illegal
admissibility
of
interrogation,”
statements
made
including
without
claim
Miranda
warnings, because of guilty plea), cert. denied, 419 U.S. 1027
(1974). Harris, having sought to suppress his statements to the
police prior to pleading guilty, has not waived his right to
challenge the admissibility of those statements through a habeas
corpus petition. E.g., Perez v. Ercole, No. 09 Civ. 2180(WHP)(KNF),
2010 WL 2541974, at *4 n.3 (S.D.N.Y. June 22, 2010).
The Supreme Court has held that an individual subjected to
custodial interrogation by law enforcement personnel “must be
warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.” Miranda, 384 U.S. at 479. In
assessing the validity of a waiver, courts examine the totality of
the circumstances surrounding the interrogation. Fare v. Michael
-8-
C., 442 U.S. 707, 725 (1979). The totality-of-the-circumstances
test applies regardless of the age of the accused. Id.
To determine whether a statement was made voluntarily, the
court must first determine whether the statement was the product of
coercion on the part of law enforcement. See Colorado v. Connelly,
479
U.S.
necessary
157,
167
(1986)
predicate to
the
(“[C]oercive
finding
police
that
a
activity
confession
is
is
a
not
‘voluntary’ within the meaning of the Due Process Clause of the
Fourteenth Amendment.”). In addition to the conduct of the police
and the
conditions
of
interrogation,
the
court
looks
to
the
accused’s characteristics, including his experience, background,
relative
youth,
and
level
of
education
or
intelligence,
to
determine if his will has been overborne by the actions of the law
enforcement
officers.
Green
v.
Scully,
850
F.2d
894,
901-02
(2d Cir.) (citations omitted), cert. denied, 488 U.S. 945 (1988).
Officer Dixon, who arrested Petitioner, testified at the
Huntley hearing that when he arrived at the scene, Officer Andolina
(one of the police officers who had been wounded) was lying on top
of Petitioner, pinning him to the ground. According to Officer
Dixon, Petitioner appeared “exhausted” and was “breathing hard.”
Transcript of Huntley Hearing (“Huntley Tr.”) at 13, 14. Petitioner
did not say anything to him at the time. Petitioner was transported
to the police station where, at about 9:45 p.m., Detective Lonergan
administered Miranda warnings from a pre-printed card. Petitioner
-9-
signed both sides of the card. The interview itself only lasted
from 9:45 p.m. until 10:40 p.m., and Petitioner was provided with
food and drink.
This Court has reviewed the Huntley transcript and finds that
the state courts correctly applied federal law in concluding that
Harris’ waiver of his Miranda rights and subsequent statement were
knowing,
voluntary,
and
intelligent.
It
is
misleading
for
Petitioner to assert that he was interrogated while in handcuffs,
because
Detective
Lonergan
removed
the
handcuffs
before
the
questioning began. Huntley Tr. at 25. Petitioner’s age does not
weigh strongly in his favor, as he was eighteen-years-old at the
time of the shooting and had reached the age of majority. Under
New York law, he no longer was, legally speaking, an infant. See
N.Y. CIV. PRAC. LAW & R. § 105(j)). Moreover, Harris cannot claim to
have been inexperienced with the law enforcement, given that he was
on probation for a violent felony offense at the time he shot the
two police officers.
Although Officer Dixon described Petitioner as “exhausted”
and “breathing hard” upon his arrest, his condition was not due to
sleep deprivation. Rather, looking at the continuum of events, it
is apparent that if Petitioner was “exhausted”, it was because he
had just been involved in a shooting and a physical struggle with
one of the wounded police officers. Thus, this is not a case where
the police used physical punishment such as the deprivation of food
-10-
or sleep, e.g., Reck v. Pate, 367 U.S. 433, 443-44 (1961), to
overcome
a
suspect’s
resistance.
Under
the
totality
of
circumstances, the state courts correctly determined that Harris’
waiver of rights and ensuring confession were voluntary, knowing,
and intelligent, and not marred by improper police conduct.
D.
Ground Four: Illegal Search and Seizure
Petitioner contends, apparently for the first time in this
habeas petition, that he was deprived of his rights under the
Fourth Amendment because he was arrested without probable cause by
Officer Andolina, one of the shooting victims. This claim appears
to be unexhausted since it was never raised in a state court
proceeding, but it nevertheless must be deemed exhausted and
procedurally defaulted. See Grey v. Hoke, 933 F.2d 117, 120-21
(2d Cir. 1991). It is, moreover, barred from habeas review, under
the doctrine of Stone v. Powell, 428 U.S. 465, 494 (1976).
“Where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be
granted habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his
trial.” Stone v. Powell, 428 U.S. at 494 (footnotes omitted). The
Second Circuit has carved out two exceptions wherein federal habeas
review
might
corrective
be
warranted:
procedures
at
(1)
all
“[i]f
to
the
redress
state
provides
Fourth
no
Amendment
violations,” or (2) if “the state provides the process but in fact
-11-
the defendant is precluded from utilizing it by reason of an
unconscionable breakdown in that process. . . .” Id. at 840; accord
Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992).
A
petitioner
receives
a
“full
and
fair
opportunity”
to
litigate his Fourth Amendment claim where the state provides a
“‘statutory mechanism’ for suppression of evidence tainted by an
unlawful search and seizure.” McPhail v. Warden, Attica Corr.
Facility, 707 F.2d 67, 69 (2d Cir. 1983). Here, New York clearly
affords
defendants
the
requisite
corrective
procedures.
See
Capellan, 975 F.2d at 70 (noting that “federal courts have approved
New
York’s
procedure
for
litigating
Fourth
Amendment
claims,
embodied in N.Y. Crim. Proc. Law § 710.10 et seq. (McKinney 1984 &
Supp.1988) as being facially adequate”). It matters not whether a
defendant
actually
took
advantage
of
the
state’s
corrective
procedures, for as the Second Circuit has noted, Stone requires
only that “the state have provided the opportunity to the state
prisoner for full and fair litigation of the Fourth Amendment
claim.” Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977)
(en banc), cert. denied, 434 U.S. 1038 (1978) (emphasis added).
There is nothing to suggest that Harris was precluded from
utilizing the state’s corrective process due to an
breakdown
in
that
process.
Harris’
Fourth
unconscionable
Amendment
accordingly must be dismissed without reaching the merits.
-12-
claim
E.
Ground Five: Ineffective Assistance of Trial Counsel
Petitioner asserts that he was denied the effective assistance
of trial counsel in violation of his Sixth Amendment rights. In
particular, Petitioner contends that trial counsel failed to object
during the Huntley hearing that Petitioner did not voluntarily
waive his Miranda rights; failed to “present meaningful arguments
throughout” the court proceedings; failed to “investigate more into
his
client[’s]
mental
history”;
failed
to
“investigate
psychiat[r]ic examiner’s report or cross-examine the psychiatric
examiner’s”; failed to “present character witness”; failed to “have
his client test validity of people’s case through cross-examination
under all circumstances of his client[’s] arrest”; failed “to
conduct a through [sic] interview with his client and his family”;
failed to “properly investigate or raise issue of his client[’s]
mental state before plea was accepted”; and failed “to explain . .
. about waiver of rights that will become lost due to taking plea.
. . .” Petition at 18 (Dkt. #1).
Respondent argues that this claim is unexhausted because
Petitioner failed to raise it on direct appeal or in a collateral
motion to vacate the judgment. Rather than determine the exhaustion
and procedural default issues, the Court proceeds to the claim’s
merits which are easily resolved against Petitioner.
“A
defendant
who
pleads
guilty
unconditionally
while
represented by counsel may not assert independent claims relating
-13-
to events occurring prior to the entry of the guilty plea.”
United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (citation
omitted). To raise a claim of ineffective assistance of counsel
related to events that occurred prior to the entry of the guilty
plea, Petitioner must show that his attorney’s alleged ineffective
assistance in those matters pertained to counsel’s advice regarding
Petitioner’s
decision
whether
to
plead
guilty.
Parisi
v.
United States, 529 F.3d 134, 138–39 (2d Cir. 2008) (citations
omitted). Here, however, Petitioner has not demonstrated a link
between the errors purportedly committed by counsel prior to the
plea and the allegedly involuntary nature of Petitioner’s decision
to plead guilty. See Cortez v. United States, Nos. 09 CV 7220(DAB),
05 CR 55(DAB), 2011 WL 666245, at *6 (S.D.N.Y. Feb. 10, 2011)
(“While the purported ineffectiveness of [§ 2255] Petitioner’s
counsel regarding the pre-plea issues may have changed Petitioner’s
strategic bargaining position, Petitioner has not connected the
purported ineffectiveness with the knowing and voluntary nature of
his decision to plead guilty.”) (citing Parisi, 529 F.3d 138–139
(“[C]hallenging the attorney’s role in shaping the defendant’s
bargaining position cannot avoid the waiver, [but] challenging the
attorney’s advice about that bargaining position, by connecting the
knowing and voluntary nature of the defendant’s plea decision with
the attorney’s conduct, does.”) (emphasis in original)).
-14-
The only alleged error that occurred contemporaneously with
the guilty plea and arguably could be said to pertain to the plea’s
voluntariness is the assertion regarding counsel’s failure to
explain the nature of the appellate-rights waiver. Even assuming
that trial counsel failed to adequately explain what the waiver
entailed, Petitioner cannot demonstrate that he was prejudiced. The
Appellate Division, on direct appeal, assumed for the sake of
argument that the waiver was not valid and, accordingly, considered
Petitioner’s claims that otherwise would have been foreclosed by a
valid waiver. See Swail v. Hunt, 742 F. Supp.2d 352, 364 (W.D.N.Y.
2010) (“Swail cannot demonstrate that he was prejudiced by trial
counsel’s failure to preserve the insufficiency claim by means of
a renewed motion for a trial order of dismissal after the defense
case, because the Appellate Division considered the merits of the
insufficiency claim, notwithstanding the lack of preservation.”).
IV.
Conclusion
For the reasons stated above, Varner Harris, Jr.’s request for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition (Dkt #1) is dismissed. Because Harris has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a 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 also hereby
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from
-15-
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).
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
September 12, 2012
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