Beckary v. Chappius
Filing
17
DECISION AND ORDER denying the petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/25/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ALBERT M. BECKARY,
DECISION AND ORDER
No. 11-CV-00850(MAT)
Petitioner,
-vsPAUL CHAPPIUS, WARDEN,
ELMIRA CORRECTIONAL FACILITY
Respondent.
________________________________
I.
Introduction
Petitioner Albert M. Beckary (“Petitioner”), through counsel,
has filed a timely petition for a writ of habeas corpus under
28 U.S.C. § 2254 challenging the constitutionality of his custody
pursuant to a judgment entered July 25, 2008, in New York State,
County Court, Wyoming County, convicting him, upon a plea of
guilty, of Attempted Assault in the First Degree (N.Y. Penal Law
(“Penal Law”) §§ 110.00, 120.10[1]).
Petitioner was sentenced to
a determinate term of fifteen years imprisonment with five years of
post-release supervision.
II.
Factual Background and Procedural History
A.
Introduction
Petitioner was indicted by a Wyoming County grand jury and
charged with Attempted Murder in the Second Degree (Penal Law
-1-
§§ 110.00, 125.25[1]), Assault in the First Degree (Penal Law
§
120.10[1]),
§ 120.05[1]).
and
Assault
in
the
Second
Degree
(Penal
Law
The charges arose from an incident that occurred on
the evening of June 5, 2007, wherein 44-year-old Petitioner beat
71-year-old Gary Preen (“Preen” or “the victim”), causing serious
physical injury to Preen, in the parking lot of the “Vet’s Club” in
the Village of Perry, New York.
B.
Pre-Plea Proceedings
On June 20, 2007, Petitioner appeared with counsel at a felony
hearing held in the Village Court, Village of Perry, New York.
Caroline Vosberg (“Vosberg”) testified that she was tending bar at
the “Vet’s Club” on the night of June 5, 2007.
6, 10.
See Resp’t Ex. A at
At approximately 9:30 p.m., she had to “throw [Petitioner]
out” of the club because he “had too much to drink” and “was
bothering people.”
Id. at 6-7, 10-11.
Specifically, Petitioner
“started yelling at [Preen]” but “[Preen] didn’t want to fight,”
and
instead
“put
his
beer
down”
and
left.
Id.
at
10-11.
Therafter, Vosberg heard a noise outside, so she opened the back
door and saw Petitioner’s “upper body,” as he was standing behind
a
vehicle.
Vosberg thought
that Petitioner
somebody’s vehicle or something . . . .”
screaming and jumping up and down.
you. Bunch of swear words.”
“was
beating
on
Petitioner “started
I hate you.
I’m going to kill
Vosberg testified that “it dawned on”
her that “it was [Preen’s] truck behind [Petitioner] and [she]
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couldn’t see [Preen].” Id. at 7. Vosberg “started screaming,” but
Petitioner “kept jumping and jumping and kicking.” Id. Petitioner
eventually “turned and looked at [Vosberg] and starting coming at”
her, at which time she “slammed the door shut” and “locked it.”
Id. at 7-8.
She called 911, and when she went out to see the
victim in the parking lot, “[h]e was halfway under his vehicle.
There was blood all over the place.
. . . barely breathing and conscious.
was falling off.”
His face was swollen.
He was
His ear . . . looked like it
Vosberg “thought [Preen] was dead.”
Id. at 8.
Vosberg confirmed that certain pictures offered by the People
accurately depicted the victim’s injuries that night.
Id. at 9.
Her hearing testimony also matched her sworn police statement from
the night of the assault.
See Resp’t Ex. C.
Police Officer Antonio Geraci of the Perry Police Department
testified at the felony hearing that on the night of the assault,
he arrested Petitioner at his home. See Resp’t Ex. A at 12-14, 20.
Following his arrest, Petitioner made certain sel-incriminating
statements that Officer Geraci recorded in a written report that
was admitted into evidence at the hearing.
20.
See Resp’t Ex. A at 14-
According to Officer Geraci’s report, Petitioner told Officer
Geraci that “he was stupid for what he had done to Gary Preen,” and
that he had “just lost it and beat the hell out of him.”
Resp’t Ex. D.
See
Petitioner further stated, “[o]h my god[,] I am
stupid[,] I can’t believe this, I am a bad man, and I am in jail
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for beating up that man.
something.
This is God[‘]s way of telling me
I am learning a lesson of God[‘]s way.
I never
disrespect my elders and I can[‘]t believe I did that to Gary.
have hated him for so long and now this happens.”
I
Id.
Carol Preen, the victim’s wife, testified that her husband was
rushed to the hospital after the assault.
His injuries included
“bleeding on the brain,” “a very huge hematoma on the right eye,”
a gash over the eye, and “his ear was torn away,” such that it “had
to be cauterized and stitched.”
See Resp’t Ex. A at 22-23.
At the
time of the hearing, the victim still needed speech and other
therapy.
See Resp’t Ex. A at 23-24.
According to hospital records, Preen suffered an “[a]ssault
with subarachnoid hemorrhage, cerebral contusion and abrasions.”
See Resp’t Ex. E at 1, 3.
Photographs taken by the police at the
hospital showed Petitioner’s badly beaten face, which required
multiple stitches.
See Resp’t Ex. B.
He was discharged eight days
later, on June 14, 2007, but required continuing “speech therapy”
as well as occupational and physical therapy.
See Resp’t Ex. E.
Officer Geraci also testified at a grand jury proceeding,
where he offered the same account of Petitioner’s arrest and
statements on the night of the arrest.
See Resp’t Ex. F at 22-24.
Officer Geraci described the victim as “laying on the ground with
half his head peeled off at the earlobe.”
Id. at 20, 26.
On
August 31, 2007, a Wyoming County grand jury charged Petitioner
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with second-degree attempted murder, first-degree assault, and
second-degree assault.
See Resp’t Ex. G.
Subsequently, Petitioner retained new counsel, Michael Mohun,
Esq.
In a letter to counsel on October 8, 2007, Petitioner
described the extreme side-effects he suffered from taking the
anti-depressant Paxil. Petitioner also listed a number of “goals,”
including, “staying out of prison”; “[b]lame a drug and not me - if
possible”; and “civil lawsuit against . . . Paxil and generic mfr.”
See Resp’t Ex. H at 4-5.
Attorney Mohun later filed a Notice of
Intent to Proffer Psychiatric Evidence to support the defenses of
“extreme emotional disturbance” or “intoxication.”
See Resp’t
Ex. I.
On November 8, 2007, a Huntley hearing was conducted with
respect to Petitioner’s motion to suppress his statements to
Officer Geraci.
See Resp’t Ex. J.
The court denied the motion.
See Resp’t Ex. K.
Counsel retained a psychiatric expert, Jeffrey J. Grace, M.D.,
Chief of Forensic Medicine at Buffalo Psychiatric Center, to
determine whether Petitioner was competent to stand trial, and to
advise whether Petitioner could assert the defenses of extreme
emotional distress or intoxication.
See Resp’t Exs. L, M.
In
order to aid Dr. Grace, counsel provided him with certain material,
including Petitioner’s October 8, 2007 letter, which, according to
counsel, described Petitioner’s mental state “before Paxil” and
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“after Paxil.”
See Resp’t Ex. L.
On February 19, 2008, Dr. Grace
issued his report (hereinafter “the Grace report”) finding that
Petitioner “was competent to proceed with court proceedings.”
Dr. Grace also found, however, that at the time of the crime,
Petitioner
was
“act[ing]
emotional disturbance.”
under
the
influence
See Resp’t Ex. M.
of
an
extreme
Dr. Grace referenced
and attached to his report the documents forwarded by counsel,
including Petitioner’s October 8, 2007 letter to counsel.
Id.
Counsel later produced the Grace report, with attachments, to the
prosecution and the court, citing his disclosure obligations under
CPL § 240.30.
See Resp’t Ex. N.
Counsel also retained a “blood spatter expert,” Dr. Herbert L.
MacDonnell.
See Resp’t Ex. O.
After reviewing the victim’s
medical records as well as Petitioner’s shoes and clothing from the
night of
the
assault,
Dr.
MacDonnell
issued
a
report, dated
January 9, 2008 (“MacDonnell report”), opining, among other things,
that Petitioner’s shoes could not have caused the victim’s injuries
because of the “directionality” of the blood stains on the shoes
and clothing, and the “very small amount of what appears to be
bloodstains on [Petitioner’s] clothing and shoes.”
See Resp’t
Ex. O.
B.
The Plea
The People offered Petitioner a plea deal, following which
Petitioner sent counsel a letter from jail on April 3, 2008,
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stating that, days earlier, he had decided to abruptly reduce his
dose of Paxil.
In this letter, Petitioner noted, among other
things, that “[he] [was] - of course - leaning towards accepting
the plea deal . . . .”
See Resp’t Ex. P.
On April 10, 2008, Petitioner appeared with counsel and
entered a plea of guilty to Attempted Assault in the First Degree.
See Resp’t Ex. Q.
On the record, Petitioner acknowledged that he
understood that, in satisfaction of the entire indictment, he was
pleading guilty to Attempted Assault in the First Degree, a Class
C felony, which would carry a determinate sentence ranging from 3 ½
to 15 years, at the judge’s discretion, along with 2 ½ to 5 years
of post-release supervision.
Id. at 2-3, 5-7.
As part of the
plea, Petitioner also waived his right to appeal, and executed a
formal waiver.
Id. at 6-8; Resp’t Ex. R.
Petitioner acknowledged
that he had discussed the plea with counsel, and that his plea had
not been induced by any other promises or threats.
Ex. Q at 8-9.
See Resp’t
He also stated that he understood that he was giving
up various rights, including the right to a jury trial and to
testify.
Id. at 9-10.
He then formally admitted the elements of
attempted assault in connection with his attack on Preen.
Id. at
11.
On April 25, 2008, Petitioner consulted Paul A. Kettl, M.D.,
a psychiatrist, who reported that Petitioner’s current “mood is
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good,” and that Petitioner will “gradually taper Paxil over the
next couple of weeks.”
C.
See Resp’t Ex. S.
Motion to Withdraw the Plea
Petitioner subsequently fired attorney Mohun and hired new
counsel, Scott M. Green, Esq., who filed a motion dated July 11,
2008, to withdraw Petitioner’s plea on the grounds that it was
involuntary. Petitioner alleged that: (1) attorney Mohun “coerced”
him into accepting the plea by threatening that the court would
otherwise raise his bail; and (2) he was not competent to enter a
voluntary plea because, prior to the plea hearing, he reduced his
Paxil dosage and, as a result, could not “comprehend and understand
the ramifications of his plea.”
See Resp’t Ex. T at ¶¶ 10, 19.
In
a decision and order dated July 22, 2008, the county court denied
Petitioner’s motion.
D.
See Resp’t Ex. V at 2.
Sentencing
Petitioner appeared with counsel for sentencing on July 25,
2008.
At that time, the court imposed a determinate term of
fifteen years imprisonment, along with five years of post-release
supervision.
E.
See Resp’t Ex. W.
Direct Appeal
Petitioner filed a counseled notice of appeal in the Appellate
Division, Fourth Department.
See Resp’t Ex. X.
to dismiss the appeal for failure to perfect.
The People moved
See Resp’t Ex. Y.
Subsequently, Petitioner retained new counsel, who opposed the
-8-
motion and requested additional time. See Resp’t Ex. AA. On April
15, 2010, the Appellate Division granted the People’s motion to
dismiss, stating that “the appeal is dismissed without further
order unless the appeal is perfected on or before July 14, 2010.”
See Resp’t Ex. BB.
submitted
a
On July 12, 2010, Petitioner, through counsel,
letter
to
the
Appellate
Division
stating
that
Petitioner had “determined to withdraw his appeal.” See Resp’t Ex.
CC.
In a letter dated July 19, 2010, the Appellate Division
informed Petitioner that his appeal had been dismissed on July 14,
2010.
F.
See Resp’t Ex. DD.
Motion to Vacate the Judgement of Conviction
On March 11, 2011, Petitioner filed a counseled motion,
pursuant to N.Y. Crim. Proc. Law (“CPL”) § 440.10, to vacate the
judgment of conviction on the following grounds: (1) his plea was
involuntary because of Petitioner’s withdrawal symptoms from a
reduction of Paxil; (2) attorney Mohun was ineffective prior to and
at the plea proceeding; and (3) the county court improperly refused
to recuse itself.
See Resp’t Ex. EE.
Among other things,
Petitioner attached the following to his motion: a report dated
August 4, 2010, authored by Dr. Kevin D. Whaley, a medical expert,
opining that the victim’s injuries had been caused by a stroke
rather than blunt force trauma. Id. at attached Ex. 2 (hereinafter
“the Whaley report”); and a report dated January 6, 2011, authored
by Peter R. Breggin, M.D. (hereinafter “the Breggin report”), a
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psychiatric expert, opining that Petitioner had not been competent
at the time of the plea due to his withdrawal from Paxil.
Resp’t
Ex.
EE
(attaching
Ex.
12)
(hereinafter
“the
See
Breggin
report”).
In a decision and order dated April 21, 2011, the Wyoming
County Court denied the motion.
appeal was denied.
G.
See Resp’t Ex. HH.
Leave to
See Resp’t Ex. LL.
The Habeas Corpus Petition
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) involuntary guilty plea; and
(2) ineffective assistance of counsel.
See Pet. ¶ 12 (Dkt. No. 1);
Addendum (“Pet. Add.”); Reply (Dkt. No. 15).
The Court points out that Petitioner lists “[i]nnocence of the
petitioner” at ground four of the petition and refers the Court to
his attached addendum for the supporting facts.
Ground Four.
See Pet. ¶ 12,
As a result of Petitioner having listed this issue as
a stand-alone claim in the petition, Respondent addressed it as a
such in its answering papers.
However, in his Reply, Petitioner
asserts that Respondent has “mischaracterize[d] and misconstrue[d]”
Petitioner’s claim, explaining that:
the issue is not, as stated by Respondent,
whether Mr. Beckary was factually innocent;
rather[,]
the
question
is
whether
Mr.
Beckary’s
attorney,
Michael
Mohun,
unreasonably failed to conduct a required
investigation into the question of Mr.
Beckary’s innocence . . . .
Nothing put
forth, either in Mr. Beckary’s petition,
-10-
pursuant to Criminal Procedure Law 440.10, or
in
his
Section
2254
petition
can
be
interpreted to constitute a claim of actual
innocence.
Reply at 3. Because Petitioner is represented by counsel in the
instant proceeding and because counsel has explicitly indicated
that he is not raising a claim of actual innocence, the Court
construes the habeas petition as not including a stand-alone claim
of actual innocence, and only relies on Petitioner’s “innocence”
argument in the context of and in support of his ineffective
assistance of counsel claim.
Moreover, in the addendum attached to his habeas petition,
Petitioner alleges that the prosecution engaged in misconduct at
the grand jury proceeding by eliciting false testimony from Officer
Geraci. See Pet. Add. at 6-8.
As Respondent correctly points out,
however, these allegations are stated only in the factual portion
of his addendum.
See Resp’t Mem. of Law at 29.
Further, the
allegations are not labeled or otherwise identified as or in the
context
of
Notably,
a
the
stand-alone
first
claim
sentence
of
of
prosecutorial
the
addendum
misconduct.
states
that
“[P]etitioner . . . submits the attached petition . . . raising the
following constitutional claims: a) [i]neffective assistance of
counsel; and b) [i]nvoluntariness of his guilty plea.”
at 1.
Said addendum then goes on to argue these two points as two
discrete, stand-alone claims.
habeas
Pet. Add.
petition
does
not
Id.
include
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Respondent argues that the
a
claim
of
prosecutorial
misconduct, and that the Court should not liberally construe
Petitioner’s counseled pleadings as raising such.
Petitioner
concedes that the claim was not specifically listed in the grounds
for relief,” but, nonetheless, urges the Court to “evaluate[] the
issue”
because
substance.”
“to
hold
Reply at 10.
otherwise
would
elevate
form
over
Petitioner does not cite caselaw in
support of his position, nor is the Court aware of any that is on
point with the situation presented here that would compel it to
liberally construe Petitioner’s counseled pleadings. Accordingly,
the Court declines to liberally construe Petitioner’s addendum as
raising a stand-alone claim of prosecutorial misconduct. See e.g.,
Jones v. Goord, 435 F.Supp.2d 221, 261 (S.D.N.Y. 2006) (“the
liberal reading of pleadings afforded to pro se litigants is not
applicable when plaintiffs are represented by sophisticated counsel
. . . .
Plaintiffs have stated their claims, and those claims are
what they are.”).
Additionally,
in
his
Reply,
Petitioner
asserts
“[t]he
arguments [set forth therein] establish that the instant habeas
corpus petition demand as a minimum an evidentiary hearing on the
claims presented.”
broad
discretion
Reply at 1.
to
hear
Indeed, “[a] district court has
further
evidence
in
habeas
cases.”
Nieblas v. Smith, 204 F.3d 29, 31 (2d Cir. 1999) (citing Townsend
v. Sain, 372 U.S. 293, 318 (1963)).
“[W]here specific allegations
before the court show reason to believe that the petitioner may, if
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the facts are fully developed, be able to demonstrate that he is .
. . entitled to relief, it is the duty of the court to provide the
necessary facilities and procedures for an adequate inquiry.”
Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1969));
550
U.S.
465,
474
(2007)
(“In
see also Schriro v. Landrigan,
deciding
whether
to
grant
an
evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal
habeas relief.”).
As discussed below, it is abundantly clear that
Petitioner’s claims have no merit and that there are no grounds for
habeas relief.
Accordingly, habeas relief is denied, Petitioner’s
request for an evidentiary hearing is denied, and the petition is
dismissed.
III. The Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .”
28
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
“The
exhaustion requirement is not satisfied unless the federal claim
has been ‘fairly presented’ to the state courts.” Daye v. Attorney
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General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied,
464 U.S. 1048 (1984).
IV.
The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
28 U.S.C.
§ 2254(d)(1)-(2).
V.
Analysis of the Petition
1.
Involuntary Guilty Plea
Petitioner
asserts
that
his
guilty
plea
was
involuntary
because: (1) counsel coerced him to enter a plea even though he was
rendered
incompetent
by
a
reduction
in
his
anti-depressant
medication Paxil; and (2) counsel threatened that if Petitioner did
not accept the plea, the judge would increase his bail.
¶ 12, Ground Three;
Pet. Add. at 25-34.
See Pet.
Petitioner challenged the
voluntariness of his plea in his motion to vacate, and the county
court denied the claim on a state procedural ground, pursuant to
CPL § 440.10(2)(c), finding that “[a]lthough sufficient facts
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appear in the record to have permitted appellate review of the
[c]ourt’s decision denying the motion to withdraw the plea, the
defendant unjustifiably withdrew his direct appeal without seeking
such review.”
The county court went on to alternatively deny the
claim on the merits.
See Resp’t Ex. HH at 2.
In its answering
papers, Respondent asserts that the claim is procedurally barred by
an
adequate
and
§ 440.10(2)(c).
independent
state
law
ground,
See Resp’t Mem. of Law at 17-19.
namely
CPL
Petitioner
disagrees with the position taken by Respondent, arguing that the
claim “is not procedurally barred; nor does the state court’s
rejection of this claim rest upon an independent adequate state law
ground.”
Reply at 14.
Because this claim can be easily resolved
on the merits and because both parties have alternatively argued
the merits of this claim, the Court bypasses the procedural default
issue and addresses the claim on the merits.
To the extent the
county court adjudicated this claim on the merits in an alternative
holding, this
Court
applies
the
AEDPA
standard.
Under
that
standard, Petitioner’s claim is meritless and does not warrant
habeas relief.
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
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(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 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, 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, 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
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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 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).
Applying these standards to the instant case, the Court finds
no basis to conclude that Petitioner’s guilty plea was anything
other than voluntary, knowing and intelligent.
At the plea proceeding, Petitioner acknowledged on the record
that there were no impediments to him entering the plea, including
that: he fully understood the plea agreement; he had an “adequate
opportunity to talk [it] over” with his attorney; nobody had made
additional promises to induce him to enter the plea; and nobody was
“pressuring [him] or forcing [him] in anyway to do this against
[his] will.”
See Resp’t Ex. Q at 8-9.
Moreover, the plea
transcript demonstrates that Petitioner was lucid and coherent, and
that he did not mechanically respond to the court’s questions with
“yes” and “no” answers.
When asked if he understood the proposed
sentence, Petitioner answered, “[y]es, your Honor, I do.”
5-6.
Id. at
When asked if he understood the proposed plea, Petitioner
answered, “[y]es, your Honor, I do.”
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When asked if he had “an
adequate opportunity” to discuss the plea with his attorney and
whether
his
attorney
“answered
all
[his]
question
to
[his]
satisfaction,” Petitioner replied, “[h]e has indeed, your Honor.”
Notably, at this time, Petitioner, nor his attorney, mention or
otherwise indicate to the Court Petitioner was incompetent to enter
the plea.
Moreover, when asked if he was promised anything or had
been pressured or forced to enter the plea against his will,
Petitioner answered, “[n]o, sir.”
When asked whether he had
questions about any of the rights or consequences of the plea, he
answered in the negative, and he answered in the affirmative when
asked if he was ready to go forward with the plea.
Id. at 8-9.
When asked whether he would formally plead guilty to the charges,
Petitioner affirmatively stated, “[y]es, your Honor, I do plead
guilty.” Petitioner then went on to admit to the specific facts in
the indictment.
Id. at 8-9, 11.
The Court agrees with Respondent that Petitioner’s in-court,
under
oath
statements,
as
summarized
above,
undermine
his
contention that his reduced Paxil dosage impaired his mental
abilities, such that he was mentally incapable of comprehending the
plea proceeding.
Furthermore, the evidence Petitioner now offers
of his alleged incompetence at the plea –- namely, his April 3,
2008 letter to counsel and the Breggins’ report (see Pet. Add. at
25-26)
–-
do
nothing
to
alter
this
Court’s
conclusion
Petitioner’s plea was voluntary, knowing, and intelligent.
-18-
that
To support his position, Petitioner points to his April 3,
2008 letter to counsel, wherein he discusses, among other things,
his mental and physical experiences with Paxil. See Resp’t Exs. H,
P.
However, as Respondent points out, this letter undermines
Petitioner’s position rather than support it because, when read as
a whole, it represents the coherent thought process of a rational
individual.
See Resp’t Mem. of Law at 42.
Indeed, the April 3,
2008 letter, which is dated just one week before the plea hearing,
contains a scholarly description of the side effects of Paxil
reduction.
Indeed, such a letter cannot be considered the work of
a man mentally unfit “to consult with his lawyer with a reasonable
degree of rational understanding.”
Godinez, 509 U.S at 396-97.
Similarly, Petitioner’s reliance on the Breggins’ report as
evidence of his incompetence at his plea is equally unavailing for
several
reasons.
First,
the
Breggins’
report
relies
on
Petitioner’s self-serving statements made to Dr. Breggins years
after the plea. Second, various of the assertions contained in the
lengthy Breggins’ report –- e.g., that Petitioner was physically
and mentally exhausted at the plea hearing, that Petitioner was
slurring his speech at the plea hearing, that Petitioner gave “yes”
and
“no”
answers
that
were
“probably
previously-scripted
in
[Petitioner’s] mind” –- are simply belied by the transcript of the
plea proceeding, which demonstrates that Petitioner was lucid when
he answered the questions posed to him by the court.
-19-
Finally, the
conclusion reached in the Breggins’ report –- i.e., that Petitioner
must have been incompetent at the time of the plea -- is undermined
by
Dr.
Breggins’
own
experience with Paxil.
account
of
Petitioner’s
post-hearing
That is, according to Dr. Breggins, on
March 30 and 31, 2008, Petitioner reduced his Paxil dosage by half
(from 30 mg to 15 mg per day).
The report indicates that on
April 1, Petitioner raised his dose to 20 mg, and remained at that
dosage
throughout
the
April
10
plea
hearing.
According
to
Dr. Breggins, “[t]his remained a very rapid reduction that was
certain to cause adverse effects in a man who had been taking the
drug steadily for 8 years.”
21).
See Resp’t Ex. E (attaching Ex. 12 at
Yet, according to this same report, Petitioner consulted
another psychiatrist, Dr. Kettl, on April 25, 2008 (15 days after
the plea hearing), and Dr. Kettl reported that Petitioner had
further reduced his Paxil dose (from 20 mg to 15 mg).
Id.
Upon
examining Petitioner at the lower dose, Dr. Kettl found that
“[c]urrently his mood is good,” and diagnosed Petitioner only with
“alcohol abuse.”
See Resp’t Ex. S.
As Respondent points out in
its reply papers, all of the extreme side effects that Petitioner
claimed to have had at the time of the hearing when his dose was
reduced were absent.
Aside from the Paxil side effects, Petitioner also asserts
that his plea was involuntary because his counsel threatened that
if Petitioner did not accept the plea, the judge would increase his
-20-
bail.
See Pet. Add. at 31.
This claim fails since Petitioner has
offered no proof other than his self-serving assertion in support
of the claim.
Additionally, the record is clear that Petitioner
assured the court at the time of the plea that no one had coerced
him into pleading guilty.
See Resp’t Ex. Q at 8-9.
In sum, Petitioner’s claim is unsupported by the record and is
meritless.
Accordingly, the Court finds that the state court’s
adjudication of this claim did not contravene or unreasonably apply
clearly established Supreme Court law.
The claim is therefore
denied in its entirety.
2.
Ineffective Assistance of Counsel
Petitioner argues, as he did in his CPL § 440.10 motion, that
Petitioner was ineffective because counsel: (1) failed to retain a
medical expert to determine the cause of the victim’s injuries;
(2) labored under “a conflict of interest with Petitioner,” as
evidenced by his request for a deletion from the MacDonnell report;
(3)
violated
the
attorney-client
privilege
by
disclosing
Petitioner’s October 8, 2007 letter to counsel; (4) failed to
advise Petitioner of the intoxication defense; and (5) advised
Petitioner
to
accept
the
guilty
plea,
despite
evidence
that
Petitioner did not cause the victim’s injuries and even though
counsel knew that Petitioner was not competent at the time of his
plea.
See
Pet.
¶
12,
Grounds
-21-
One-Two.
The
county
court
adjudicated this claim on the merits and the AEDPA therefore
applies.
Under that standard, the claim is meritless.
Under the well-established authority, in order to prevail on
an ineffective assistance of counsel claim a petitioner must show
both that 1) his or her counsel’s performance was deficient, in
that it failed to conform to an objective, reasonableness threshold
minimum level, and 2) that deficiency caused actual prejudice to
the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
Greiner v. Wells, 417 F.3d 305, 319 (2d Cir.2005), cert. denied,
546
U.S.
1184
attorney’s
(2006).
conduct
To
must
be
constitutionally
fall
“outside
the
deficient,
wide
range
the
of
professionally competent assistance.” Strickland, 466 U.S. at 690;
Greiner, 417 F.3d at 319.
An attorney’s performance is judged
against this standard in light of the totality of the circumstances
and from the perspective of counsel at the time of trial, with
every effort being made to “eliminate the distorting effects of
hindsight [.]”
Strickland, 466 U.S. at 689;
Greiner, 417 F.3d at
319.
Courts
generally
constitutionally
adequate
presume
under
assistance
has
Strickland
been
rendered,
that
and
significant decisions have been made through the exercise of sound
professional judgment to which “a heavy measure of deference” is
afforded.
Strickland, 466 U.S. at 691;
-22-
Greiner, 417 F.3d at 319.
Prejudice is established by showing that there is a “reasonable
probability” that but for counsel’s deficiencies “the result of the
proceeding would have been different.”
Strickland, 466 U.S. at
694; Henry v. Poole, 409 F.3d 48, 63-64 (2d Cir. 2005). In the
context of a guilty plea, a petitioner must show that there is a
reasonable
probability
that,
but
for
counsel’s
deficient
performance, the petitioner would not have pleaded guilty and
instead would have exercised his or her right to a trial.
Hill v.
Lockhart, 474 U.S. 52, 59 (1985); United States v. Coffin, 76 F.3d
494, 498 (2d Cir.), cert. denied, 517 U.S. 1147 (1996).
“[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he 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).
Thus, a habeas petitioner’s unconditional guilty plea waives all
claims of ineffective assistance of counsel relating to events
prior to the guilty plea that did not affect the voluntariness of
his plea.
(A)
Id. at 267;
accord, e.g., Coffin, 76 F.3d at 497-98.
The Claims Unrelated to the Guilty Plea are Precluded
from Review by Tollett
Petitioner argues that counsel was ineffective because: he
failed to retain a medical expert to determine the cause of the
-23-
victim’s injuries; he labored under “a conflict of interest with
Petitioner”; he disclosed to the county court “privileged and
confidential
information”;
and
that
counsel
Petitioner of “the intoxication defense.”
involve
counsel’s
pre-plea
actions
and
failed
to
advise
These claims, which
do
not
affect
the
voluntariness of the plea itself, were waived by Petitioner’s
voluntary, knowing and intelligent guilty plea (see discussion
supra, at “Section V, 1”).
See Tollett, 411 U.S. at 267; see e.g.,
Burwell v. Perez, 10 Civ. 2560 (CM) (FM), 2012 U.S. Dist. LEXIS
65773 (S.D.N.Y. May 7, 2012) (“Because [Burwell’s] guilty plea was
voluntary and intelligent, Burwell’s ineffective assistance claim,
which concerns only his counsel’s pre-plea actions (or failures to
act), fails to state a violation of his constitutional rights that
this
Court
can
consider.”)
(citations
omitted);
Rodriguez
v.
Conway, 07 Civ. 9863 (JSR) (AJP), 2009 U.S. Dist. LEXIS, *73-74
(S.D.N.Y.
March
13,
2009)
(finding
Petitioner’s
ineffective
assistance of counsel claim based on counsel’s failure to timely
file a notice of intent to produce psychiatric evidence in support
of extreme emotional disturbance defense barred by voluntary guilty
plea), report and recommendation adopted by 2009 U.S. Dist. LEXIS
89340 (S.D.N.Y. Sept. 27, 2009);
Sullivan v. Goord, No. 05-CV-
6060(DGL)(VEB), 2007 U.S. Dist. LEXIS 98564, *11 (W.D.N.Y. Aug. 14,
2007) (Petitioner’s “claims of ineffectiveness ascribed to [his
first] attorney . . . are barred under Tollett v. Henderson because
-24-
the substance of those claims do not relate to the voluntariness of
[petitioner’s] plea or the advice he received with regard to
pleading guilty.”), report and recommendation adopted by 2007 U.S.
Dist, LEXIS 69444 (W.D.N.Y. Sept. 19, 2007).
(B)
The Claims Related to the Guilty Plea are Meritless
Petitioner claims that his counsel was ineffective because he
advised him to accept the guilty plea: (1) despite purported
evidence that Petitioner did not cause the victim’s injuries; and
(2) even though counsel knew that Petitioner was not competent at
the time of the plea.
See Pet. ¶ 12, Ground Two.
These claims are
meritless.
With respect to the former issue, there was overwhelming
evidence –- prior to the plea –- that Petitioner caused the
victim’s injuries. Notably, Petitioner confessed to the assault of
Preen after his arrest, and this confession was fully supported by
the evidence presented at the felony hearing.
Vosberg testified
that she saw Petitioner’s “upper body” as he stood behind Preen’s
truck and appeared to be “beating somebody’s vehicle or something
. . . .”
See Resp’t Ex. A at 7.
According to Vosberg, Petitioner
“started screaming and jumping up and down.
I hate you.
to kill you.
Bunch of swear words.”
Id.
I’m going
Vosberg also testified
that she “started screaming,” but Petitioner “kept jumping and
jumping and kicking.”
Id.
Moments later, she found Preen in the
parking lot, horribly beaten.
Id. at 8.
-25-
In light of Petitioner’s
confession, which was supported by Vosberg’s account of Petitioner
beating the victim in the parking lot, counsel may have reasonably
decided that investigation of the victim’s extensive physical
injuries
would
only
serve
to
inculpate
Petitioner
further.
Moreover, the particular medical expert that Petitioner faults
counsel for having not called –- namely, Dr. Whaley who prepared a
report that was submitted to the county court in support of
Petitioner’s motion to vacate -- concludes that all of the victim’s
injuries were caused by a stroke, rather than being kicked multiple
times in the face and head.
Petitioner asserts that the Whaley
“report raised a reasonable claim of innocence, which is critical
in view of [Petitioner’s attorney’s] refusal to have a forensic
medical expert examine the cause of the Preen injuries, prior to
advising Mr. Beckary to plead guilty.”
Pet. Add. at 10.
The Court
finds this contention meritless since the conclusion set forth in
the Whaley report is refuted by Petitioner’s confession, the
physical evidence of the extensive injuries suffered by the victim,
and the pre-trial hearing testimony.
Thus, the Court finds that
counsel’s decision not to have a forensic medical expert examine
the cause of the victim’s injuries was not unreasonable under the
circumstances, nor is there a reasonable probability that, had
counsel performed as Petitioner wished him to, Petitioner would
have chosen to stand trial rather than accept the plea.
-26-
Similarly,
Petitioner’s
second
argument
–-
that
counsel
improperly advised Petitioner to plead guilty even though he knew
Petitioner was suffering from Paxil withdrawals –- fails insofar as
Petitioner was competent at the time he entered the plea (see
discussion supra at Section “V, 1” ).
failed
to
establish
a
reasonable
Moreover, Petitioner has
probability
that,
but
for
counsel’s actions in this respect, he would have rejected the plea
and insisted upon going to trial.
Notably, in Petitioner’s own
letter of April 3, 2008 to his attorney (in which he sets forth the
withdrawal symptoms of Paxil), he specifically states, “I am - of
course - leaning towards accepting the plea . . . .”
See Resp’t
Ex. P.
In sum, Petitioner’s ineffective assistance of counsel claim
is meritless. Accordingly, the Court cannot find that the state
court’s adjudication of this claim contravened or unreasonably
applied clearly established Supreme Court law.
The claim is
therefore denied in its entirety.
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner 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
-27-
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 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).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 25, 2012
Rochester, New York
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