Fulton v. Graham
2015 U.S. App. LEXIS 16153
2d Cir.2015Background
- Derrick Fulton was charged in New York with multiple first- and second-degree burglary and robbery counts and proceeded to a two-day jury trial after rejecting a pretrial plea offer.
- Prosecutor’s plea offer would have exposed Fulton to a 10-year sentence plus 5 years post-release supervision; after trial he received an effective 40-year sentence plus 5 years post-release supervision.
- Fulton (pro se) moved under N.Y. CPL § 440.10 alleging trial counsel was ineffective for failing to advise him about the plea; the state trial court denied relief as barred by § 440.10(2)(c) (claim record-based and should have been raised on direct appeal). Appellate leave was denied.
- Fulton sought federal habeas under 28 U.S.C. § 2254; the District Court adopted the magistrate’s report finding Fulton’s claim procedurally defaulted on state independent and adequate grounds and dismissed the petition.
- The Second Circuit held the state court’s reliance on § 440.10(2)(c) was an “exorbitant application” because New York law ordinarily requires ineffective-assistance claims based on out-of-record attorney-client conversations to be pursued in collateral proceedings, and the trial record did not plainly disclose counsel’s advice. The court vacated and remanded for further fact development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fulton’s ineffective-assistance claim was procedurally defaulted by § 440.10(2)(c) | Fulton argued his claim was properly raised in § 440.10 and not barred because it relied on out-of-record counsel conversations | State argued the claim was record-based and thus barred for failure to raise on direct appeal | Court held state’s application of § 440.10(2)(c) was an exorbitant application; federal review not barred |
| Whether the state court’s discussion constituted an on-the-merits adjudication for § 2254(d) purposes | Fulton argued the state court did not decide merits and thus federal de novo review is appropriate | State suggested the merits were considered and could be accorded deference | Court held the state court’s merits discussion was contrary-to-fact and did not constitute an adjudication on the merits; de novo review applies |
| Whether counsel’s performance during plea negotiations was objectively unreasonable | Fulton alleged counsel failed to discuss pros/cons of plea, gave no guidance, and prevented informed decision | State asserted counsel’s conduct was reasonable and the record supported voluntariness of plea rejection | Court found Fulton’s sworn assertions sufficient to warrant further factual development to test reasonableness |
| Whether Fulton suffered Strickland/Lafler prejudice from counsel’s alleged deficient advice | Fulton argued that but for deficient advice he likely would have accepted the 10-year offer and court would have accepted it, yielding a lesser sentence | State argued no reasonable probability of a different plea outcome or acceptance by the court | Court held the large disparity between plea offer (10 years) and actual sentence (40 years) and Fulton’s allegations made the prejudice claim substantial enough to merit evidentiary development |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
- Lafler v. Cooper, 566 U.S. 156 (holds prejudice test for rejected plea offers requires showing plea would have been entered, court would have accepted it, and result would have been less severe)
- Lee v. Kemna, 534 U.S. 362 (exorbitant application doctrine can render a state procedural rule inadequate)
- Cotto v. Herbert, 331 F.3d 217 (Second Circuit guidance on assessing adequacy of state procedural bars)
- Sweet v. Bennett, 353 F.3d 135 (applied § 440.10(2)(c) where ineffective-assistance claim was plainly record-based)
- People v. Haffiz, 19 N.Y.3d 883 (New York Court of Appeals: ineffective-assistance claims predicated on out-of-record matters belong in CPL 440 proceedings)
- People v. Peque, 22 N.Y.3d 168 (reemphasizes that claims based on out-of-record advice should be raised in CPL 440.10 collateral proceedings)
- Williams v. Taylor, 529 U.S. 420 (limits on finding failure to develop factual basis in state court without petitioner diligence)
- Bracy v. Gramley, 520 U.S. 899 (federal courts should order fact development when specific allegations show petitioner may be entitled to relief)
- Cullen v. United States, 194 F.3d 401 (counsel’s duty to advise defendant about plea bargains)