Perez v. Miller
Filing
12
-CLERK TO FOLLOW UP-DECISION AND ORDER denying and dismissing 1 Petition for Writ of Habeas Corpus filed by Neftali Perez, and denying a certificate of appealability. The Clerk of the Court is requested to close this case. Signed by Hon. Michael A. Telesca on 5/16/2016. (AFB) A copy of ECF No. 12 (Decision and Order) and Filing Receipt sent by U.S. Mail to Petitioner at his address of record by AFB on 5/16/2016. Modified on 5/16/2016 (AFB).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NEFTALI PEREZ,
Petitioner,
No. 6:14-cv-06223-MAT
DECISION AND ORDER
-vsCHRISTOPHER MILLER,
Respondent.
I.
Introduction
Pro se petitioner Neftali Perez (“Petitioner”) seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is
being detained in Respondent’s custody in violation of his Federal
constitutional rights. Petitioner is incarcerated as the result of
a judgment of conviction entered against him on October 8, 2010, in
New
York
State
Supreme
Court,
Chemung
County
(Hayden,
J.),
following his guilty plea to one count of Assault in the First
Degree (N.Y. Penal Law (“P.L.”) § 120.10(1)).
II.
Factual Background and Procedural History
The
conviction
involvement
in
Echevarria-Perez
an
here
at
altercation
issue
on
(“Echevarria”),
stems
from
April 23, 2010,
a
fellow
inmate
Petitioner’s
with
Ariel
at
Elmira
Correctional Facility, after Echevarria allegedly “disrespected”
Petitioner. Echeverria attacked Petitioner with a shank (here, a
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9½-inch-long sharpened piece of metal), but Petitioner subsequently
gained control of the shank. Petitioner then assaulted Echeverria
with
the
shank,
causing
a
stab
wound
to
the
right
side
of
Echeverria’s chest as well as multiple lacerations to his head and
left wrist. Echeverria suffered transections of the left radial and
ulnar arteries which resulted in profuse bleeding and required
emergency surgery.
On May 27, 2010, a Chemung County grand jury returned an
indictment charging Petitioner with Attempted Murder in the Second
Degree (P.L. §§ 110.00/125.25(1)); Assault in the First Degree
(P.L.
§
120.10(1));
Assault
in
the
Second
Degree
(P.L.
§
120.05(7)); and three counts of Promoting Prison Contraband in the
First Degree (P.L. § 205.25(2)).
On August 16, 2010, the Chemung County District Attorney’s
Office offered Petitioner the opportunity to plead guilty to
first-degree assault in full satisfaction of the indictment, in
exchange for Petitioner’s acceptance of a maximum determinate
sentence of 15 years in prison plus 5 years of post-release
supervision.
The Chemung County Public Defender, who was representing
Petitioner, sent a letter dated August 26, 2010, to Judge Hayden
stating that he had “spoken at length with [Petitioner],” who
“wishes to accept the plea bargain offer.” (SR.117-18). Trial
counsel’s letter also “advise[d] the Court and the People of what
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[trial
counsel]
expect[ed]
to
be
the
general
substance
of
[Petitioner’s] allocution in advance of the plea[,]” namely, that
the victim
was the initial aggressor, attacking [Petitioner] with a
sharpened metal object. [Petitioner] was, at first,
acting in self-defense. There came a point, however, that
[Petitioner] was able to take the metal object away from
Echeverria, and had injured and subdued him to the extent
that he no longer posed a threat. At that point,
[Petitioner] engaged in a new assault, using the deadly
weapon/dangerous instrument with the intent to cause
serious physical injury to Mr. Echeverria. Having
successfully defended himself, this later assault was
intended to send a message to other inmates.
(SR.117).
On August 27, 2010, Petitioner appeared with Defense Counsel
before Judge Hayden. The proceedings were translated for Petitioner
by a sworn Spanish interpreter.
that
he
had
done
that
When asked to explain what it was
caused
him
to
want
to
plead
guilty,
Petitioner explained, through the interpreter as follows:
I was coming out of my work, I went to my cell, and I
came out to get a cup of coffee. But the other individual
came out of his cell to go to work, but he attacks me
with a knife, wounding me here in my hands. And so, I
came and I took it away from him. And the circumstances
are, that led me to then attack him, because he had
attacked me first.
And I
I was
but I
and I
told the superintendent when I had my hearing that
going to declare myself guilty, because I did it,
took the knife away from him. The knife was his,
attacked him with it.
. . .
Judge
Hayden
inquired
further
circumstances of the assault:
-3-
of
Petitioner
regarding
the
THE COURT:
knife?
Where did–did you strike him with the
THE DEFENDANT: And when the guards came, and they told me
to let him go. I dropped it on the floor, the knife on
the floor, because the guards hadn’t been there, they
didn’t see it when he attacked me.
THE COURT: That was not my question. Did you strike the
other person with the knife?
THE DEFENDANT: With the same knife, his knife.
THE COURT: Where did you strike him?
THE DEFENDANT: Up here, (indicating), around the neck.
THE COURT: And when you struck him with the knife, did
you cut him?
THE DEFENDANT: Yes, I did, I cut him.
. . .
THE COURT: At the time you struck him with the knife, did
he have any kind of weapon in his hands?
THE DEFENDANT: No, he didn’t. He was trying to get me,
but I was getting him. He was punching at me, and I hit
him with the knife.
Judge Hayden confirmed that Petitioner understood the rights he was
giving up by pleading guilty, including the right to have a jury
trial at which he could assert a defense of justification and
testify on his own behalf.
“offered
sufficient
After determining that Petitioner had
factors
to
justify
the
plea,”
and
had
“discussed the option of raising a claim of self-defense at trial,”
and was “choosing not to take that option,” (SR.18), Judge Hayden
accepted Petitioner’s guilty plea.
Petitioner
appeared
for
sentencing
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with
his
attorney
on
October 8, 2010. Judge Hayden adjudicated petitioner a second
violent
felony
second-degree
Petitioner’s
offender
murder.
based
(SR.21-23,
on
“extraordinary
his
25).
history
of
prior
Judge
conviction
Hayden
violence”
for
balanced
against
the
incident involving Echevarria, “which may well have started out as
an effort to defend [him]self, but then again, [his] actions went
beyond what was necessary to defend [him]self. . . .” (SR.24-25).
Judge Hayden then sentenced Petitioner to a determinate term of 12
years, which was 3 years less than the maximum possible under the
plea agreement. The sentence was set to run consecutively to the
sentence Petitioner presently was serving, and 5 years of mandatory
post-release supervision also were imposed. (SR.25).
Represented by counsel, Petitioner pursued a direct appeal to
the Appellate Division, Third Department, of New York State Supreme
Court. On December 6, 2012, the Appellate Division unanimously
affirmed the judgment of conviction. People v. Perez, 101 A.D.3d
1162 (3d Dep’t 2012). Leave to appeal to the New York Court of
Appeals was denied on February 6, 2013.
This timely habeas petition followed in which Petitioner
raises the following grounds for relief: (1) the trial court erred
in accepting the guilty plea because Petitioner continued to assert
he acted in self- defense; and (2) trial counsel should not have
advised Petitioner to plead guilty since Petitioner had a valid
claim of self-defense.
-5-
Respondent has opposed the petition arguing that Petitioner’s
second claim is unexhausted and procedurally defaulted, that both
claims are barred by an adequate and independent state ground, and
both claims are without merit. Petitioner has not filed a reply.
For the reasons discussed below, the Court finds that Petitioner’s
claims lack merit. Accordingly, a writ of habeas corpus will not
issue.
III.
Merits of the Petition
A.
Trial Court Erred in Accepting Plea Despite Petitioner’s
Assertions of Acting in Self-Defense
As his first ground for relief, Petitioner states that during
the plea colloquy, he “insisted that he took the weapon from the
other person and defended himself and the court[,] despite knowing
a self defense claim was presented[,] accepted a plea to assault
charges knowing a viable self defense claim existed and such was
error.” Pet., p. 4. This claim is factually unsupported and legally
without merit.
First, as set forth above in the Factual Background, the trial
court “specifically questioned [Petitioner] about his right to
raise the claim of self-defense and confirmed that [Petitioner] had
already
discussed
a
possible
claim
of
self-defense
with
his
counsel.” People v. Perez, 101 A.D.3d at 1162-63. Second, the Court
agrees with the Third Department that “[t]he record amply supports
the conclusion that [Petitioner] fully understood the
nature of
the charge and waived any claim of self-defense in exchange for the
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favorable plea agreement[.]” Id. (citation omitted). In particular,
Judge Hayden took care to ascertain that Petitioner knew he was
giving up the right to assert a self-defense claim at trial:
THE COURT: Has your lawyer explained to you that you have
the right to raise a claim of self-defense at trial?
THE DEFENDANT: Yes.
THE COURT: Are you telling me that you would rather take
advantage of the plea bargain than risk going to trial?
THE DEFENDANT: I am guilty, because I did hit him with
the knife, I did stab him with the knife.
THE COURT: That wasn’t my question. Are you telling me
that you would rather take advantage of the plea bargain
offered to you than risk going to trial?
THE DEFENDANT: Exactly.
(SR.14-18).
Moreover, “‘due process does not require that a defendant be
advised of every basis on which he might escape or receive a lesser
punishment for an offense that he has committed. . . .’” Panuccio
v. Kelly, 927 F.2d 106, 111 (2d Cir. 1991) (holding that habeas
petitioner’s “claim that his plea was invalid because neither his
counsel nor the trial court informed him of the affirmative defense
of intoxication is . . . without merit”) (quoting Mitchell v.
Scully, 746 F.2d 951, 956–57 (2d Cir. 1984), cert. denied, 470 U.S.
1056 (1985)). Thus, even assuming the trial court did not question
Petitioner regarding his awareness of a potential justification
-7-
defense and his willingness to waive such a defense, Petitioner’s
contentions regarding the alleged factual deficiencies in his plea
allocution do not amount to errors of Federal constitutional
magnitude. See, e.g., Ames v. New York State Div. of Parole, 772
F.2d 13, 15 (2d Cir. 1985) (“Assuming . . . that Ames was not
informed of the fake pistol affirmative defense, a defense that he
would have had to prove by a preponderance of the evidence, this
did not render his plea involuntary. We discern no constitutional
defect in the trial court’s inquiry into whether there was a
factual basis for Ames’s plea.”) (internal and other citations
omitted). Habeas relief is accordingly not warranted.
B.
Ineffective Assistance of Trial Counsel
As his second ground for relief, Petitioner asserts that trial
counsel should not have advised him to plead guilty since he had a
valid claim of self-defense. Petitioner cites trial counsel’s
letter to the court prior to the guilty plea stating, in effect,
“that the facts of the case should be bifurcated into two actions:
the assault began in self defense and the other inmate was subdued
and no longer a threat and a new assault started.” Pet., p. 5.
“Defendants have a Sixth Amendment right to counsel, a right
that extends to the plea-bargaining process.” Lafler v. Cooper, 132
S. Ct. 1376, 1384 (2012) (citations omitted). The Supreme Court has
held
“the
two-part
Strickland
v.
Washington
test
applies
to
challenges to guilty pleas based on ineffective assistance of
-8-
counsel.” Id. (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
“In the context of pleas a defendant must show the outcome of the
plea process would have been different with competent advice.”
Lafler, 132 S. Ct. at 1384 (citations omitted).
“[W]hen a defendant has pled guilty on the advice of counsel
and then challenges the plea on
the ground that it was not
voluntary and knowing because he was not apprised of an affirmative
defense,” evaluation of counsel’s competency involves assessing
“[t]he likelihood that an affirmative defense will be successful at
trial . . . .” Panuccio, 927 F.2d at 111 (citing Mitchell, 746 F.2d
at
957);
see
also
Hill,
474
U.S.
at
59
(explaining
that
Strickland’s prejudice prong, as applied in the plea context, “will
depend largely on whether the affirmative defense likely would have
succeeded at trial”). Here, Petitioner has failed demonstrate there
was
any
reasonable
possibility,
much
less
any
reasonable
probability, that the defense of justification would have succeeded
at trial.
As a matter of New York State law, a person may, under certain
conditions, use physical force upon another person when, and to the
extent, he reasonably believes such force to be necessary to defend
himself from what he reasonably believes to be the use or imminent
use of unlawful physical force by the other person. N.Y. PENAL LAW
§ 35.15(1). “[J]ustification is a complete defense to homicide,
N.Y. PENAL LAW § 35.15,” and “must be disproved by the government at
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trial beyond a reasonable doubt, id. § 25.00.” Tate v. Wood, 963
F.2d 20, 23 (2d Cir. 1992). Where the defendant seeking to invoke
the justification defense uses deadly force, his conduct is not
justified unless he “reasonably believes that [the] other person is
using or about to use deadly physical force.” N.Y. PENAL LAW §
35.15(2) (emphasis supplied).
Here,
Petitioner’s
statements
during
the
plea
colloquy
establish conclusively that he did not have a reasonable belief
that, when he inflicted life-threatening injuries with the shank on
the victim, the victim was using or about to use deadly physical
force:
By that point, Petitioner had already taken the shank away
from him, leaving the victim unarmed. Petitioner stated told the
trial court, for example, “I took the knife away from him. The
knife was his, and I attacked him with it.” The trial court
specifically asked Petitioner whether, at the time he “struck [the
victim] with the knife, did [the victim] have any kind of weapon in
his hands?” Petitioner responded, “No, he didn’t. He was trying to
get me, but I was getting him. He was punching at me, and I hit him
with the knife.” Thus, in the present case, once Petitioner gained
control of the shank, the factual basis for a justification defense
evaporated. See, e.g., Bryant v. Fischer, No. 05 Civ. 0437, 2005 WL
3418282, at *19 n.31 (S.D.N.Y. Dec. 14, 2005) (“Even if this Court
were to give credit to a factual scenario where Sellers attacked
Bryant with the razor, Bryant wrested the razor away from Sellers,
-10-
and Bryant slashed Sellers’ neck in self-defense . . . , a
justification charge would not be warranted.
. . . If Bryant was
able to wrest the razor away from Sellers, Sellers was no longer
using deadly force and Bryant would no longer need to defend
himself from deadly force.”). Even assuming that Echevarria was
punching or attempting to punch Petitioner at the time Petitioner
stabbed him, punching does not constitute “deadly physical force,”
and thus Petitioner could not reasonably believe that Echevarria
was using or about to use deadly physical force against him. See,
e.g., Morales v. Jones, 86 Civ. 7799, 1988 WL 90379, at *2
(S.D.N.Y. July 26, 1988) (“Even if the [trial] court accepted
petitioner’s claim that [the victim] lunged at petitioner after
petitioner gained control of the knife, the court could have
concluded that petitioner’s use of deadly force was not justified.
The fact remains that petitioner was, at that point, armed, and the
victim was not.”). Accordingly, the fact that the victim in this
case was the initial aggressor was not decisive of the issue of
Petitioner’s justified use of deadly physical force at the time of
the stabbing; the shank no longer was in the victim’s possession at
the time of the stabbing and, moreover, the victim was unarmed and
incapable of using deadly physical force. See, e.g., People v.
Hayes, 17 N.Y.3d 46, 54 (2011) (“[A]t a certain point . . . ,
defendant came into possession of a knife and [the victim] was
unarmed. . . . Even accounting for the claim that [the victim]
-11-
continued to struggle with, and swing at defendant, [the victim]
was no longer capable of using deadly physical force against
defendant.”). On these facts, there is no reasonable possibility
that Petitioner would have been able to convince a jury of multiple
necessary elements of the justification defense. Therefore, he
cannot demonstrate prejudice. For substantially the same reasons,
the Court finds that Petitioner has not established the counsel was
professionally unreasonable in advising Petitioner to forego a
trial. See, e.g., Miller v. Graham, No. 10-CV-2174 JG, 2010 WL
5056315, at *6 (E.D.N.Y. Dec. 6, 2010) (finding that counsel was
not unreasonable in deciding to forego a justification defense and
recommend that petitioner plead guilty; “counsel might have further
concluded that even if Miller persuaded the jury that Jones was the
aggressor, it would nevertheless have convicted Miller on the
ground that he had a duty to retreat before using deadly force and
knew he could do so with complete safety. . . .”).
According
to Petitioner,
trial
counsel’s
“actions
[were]
contrary to his claim of self defense.” Pet., p. 5. However, as
discussed at length above, Petitioner’s own actions were contrary
to his claim of self-defense and had the effect of severely
limiting
trial
counsel’s
options
for
representing
him.
Trial
counsel, presented with a virtually un-winnable case, secured a
favorable plea agreement for his client and provided competent
representation.
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IV.
Conclusion
For the reasons stated above, Petitioner’s request for a writ
of habeas corpus is denied, and the petition is dismissed. Because
Petitioner has failed to make a substantial showing of a denial of
a constitutional right, the Court declines to issue a certificate
of appealability. See 28 U.S.C. § 2253.
SO ORDERED.
s/ Michael A. Telesca
_______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
May 16, 2016
Rochester, New York.
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