Carrion v. SmithCarrion v. Smith
- Reporters:
- , , ,
- Before:
- Shira A. Scheindlin
SHIRA A. SCHEINDLIN, U.S.D.J.:
I. INTRODUCTION
Approximately seventeen years ago, petitioner Carlos Carrion was charged with one count of criminal possession of a controlled substance in the first degree, twenty counts of attempted murder in the first degree, one count of criminal use of a firearm in the first degree, two counts of criminal possession of a weapon in the third degree, and one count of reckless endangerment in the first degree.1 These charges grew out of Carrion‘s purchase of a large amount of cocaine and an ensuing gun fight with the police. Carrion purchased eleven
After properly exhausting his state court remedies, Carrion filed the instant petition for habeas corpus. He raised the following claims:
- ineffective assistance of trial counsel, in violation of the Sixth Amendment, resulting from his trial attorney‘s alleged failure “to fully inform and advise him” about the People‘s pretrial offer
- ineffective assistance of appellate counsel, in violation of the Sixth Amendment, resulting from his appellate attorney‘s alleged failed to raise “significant and obvious” issues on appeal
- violation of his Sixth Amendment right to be present at all material stages of the trial resulting from his exclusion from an ancillary proceeding
- violation of his Sixth and Fourteenth Amendment rights by the trial court when it imposed a sentence of 125 years to life as punishment for Carrion‘s decision to reject the prosecutor‘s pretrial plea offer and insist on a trial
- violation of the Eighth Amendment as the sentence imposed on Carrion constitutes cruel and unusual punishment because he is a paraplegic confined to a wheelchair.16
On January 25, 2007, Magistrate Judge Frank Maas issued an R&R to this Court in which he recommended Carrion‘s petition be denied. Carrion filed timely objections to the R&R which focused on Judge Maas‘s denial of his ineffective assistance of trial counsel claim.17 After reviewing the R&R and
II. BACKGROUND
A. Prior Proceedings
In my original decision, I found that Carrion satisfied the two-part test for ineffective assistance of counsel claims, as established in Strickland v. Washington.24
Other than Kulcsar‘s lukewarm endorsement that the proffered plea bargain was a “good offer,” he did nothing to persuade his client to take what was obviously a very beneficial deal. Moreover, Kulcsar was aware, and so informed Justice Snyder, that the events responsible for
causing his client‘s paralysis was an impediment to his client taking the plea because his client believed that these events established a defense to all of the charges he was facing. But Kulcsar made no efforts to explore this area with his client in order to dispel his belief that the shooting established a viable defense to the charges against him. Finally, Kulcsar must have been aware that the People had an open and shut case against his client, at least with respect to the drug possession charge, which carried a mandatory minimum fifteen year penalty. In sum, only a constitutionally deficient attorney would have failed to vigorously advise his client to take the plea. Under these circumstances, I find that Kulcsar‘s representation fell below the requirement for constitutionally effective assistance of counsel.25
In addition, based on statements made by Carrion in a post-hearing affidavit26 and the significant disparity between the plea offer and the sentence imposed after
B. The State Court Decision
The relevant state court decision is the trial court‘s December 14, 2001 Order (the “Order”) denying Carrion‘s pro se motion to vacate his judgment of conviction pursuant to
After reciting the federal and state standards for ineffective assistance of counsel, the state court addressed Carrion‘s representation claim and held that Carrion received effective trial representation under both standards.31 However, with regard to the advice claim – that Carrion received constitutionally inadequate advice regarding the advisability of accepting the ten-year plea offer – the state court relied on the arguments set forth by the People in opposition to Carrion‘s section 440.10 motion.32
In the People‘s Response to Defendant‘s
C. The Hearing Before the Magistrate Judge
The crucial question, then, is what actually transpired between Carrion and Kulcsar over fifteen years ago. At the hearing before Magistrate Judge Maas, Carrion testified that Kulcsar discussed the plea offer with him once, at a meeting they had at Bellevue Hospital.36
Carrion testified that at this meeting Kulcsar told him there was a plea offer: “[H]e told me that it was 10 to life, and I
told him what he think about it? He said, it‘s my decision. And he thought that it was a good offer.” According to Carrion, he was never informed what the maximum sentence could be if he were convicted of the charges against him, nor of the mandatory minimum sentences on the various charges. Carrion stated that Kulcsar did not discuss with him the likelihood that he would be convicted of the cocaine possession charge, or the fact that the charge carried a 15-year minimum sentence.37
Kulcsar, on the other hand, had little recollection of Carrion‘s case and did not remember any meetings with Carrion.38 Kulcsar did not remember how many times he discussed the plea offer with Carrion or when and where such discussions took place.39 Instead of providing specific details, Kulcsar testified that it was his standard practice to make no recommendation to clients as to whether they should take a plea.40 Based on Kulcsar‘s established practice, “Judge Maas rejected Carrion‘s assertions as incredible and found that Kulcsar had advised him of the possibility of a very lengthy minimum sentence if he proceeded to trial.”41
This Court conducted its own evidentiary hearing on April 15, 2009, April 28, 2009, and May 4, 2009.42 After the hearing, the parties submitted post-hearing memoranda of law. At the hearing, both parties were represented by counsel. Both Carrion and Kulcsar, among others, testified at the hearing. The following is a summary of the relevant portions of their testimony.
1. Carrion‘s Testimony
After retained counsel withdrew from Carrion‘s criminal case, the state court assigned Kulcsar to represent Carrion.43 Carrion recalled having first met Kulcsar while at Bellevue Hospital, where Carrion was recuperating from five gun shot wounds he received while battling with the police.44 It was at this meeting, which lasted approximately thirty to forty-five minutes, that Kulcsar conveyed to Carrion the terms of the People‘s ten to life plea offer.45 Kulcsar did not, however, explain what Carrion would have to do to obtain this plea, nor did
Carrion also testified that Kulcsar never informed him of his sentencing exposure if he went to trial and was unsuccessful.51 Carrion admitted to Kulcsar that he possessed eleven pounds of cocaine at the time he exited and fled from the cab.52 Kulcsar never told Carrion that the minimum sentence for that quantity of cocaine was fifteen years to life, nor did he tell Carrion that his conviction on the drug count was virtually inevitable.53 Although Carrion also admitted that he had two handguns at the time of his arrest, Kulcsar failed to
Carrion testified that had he known of the consequences of going to trial, he would have accepted the plea offer.
Q. Did Mr. Kulcsar give you some idea of what might happen if you went to trial?
A. No.
Q. Would you have been willing to accept the plea offer of ten to life if you had known that the mandatory minimum sentence you could receive on the narcotics possession count against you was fifteen to life?
A. Of course.
Q. What if accepting the plea offer required you to say that you attempted to murder ten police officers; would you have been able to do that, if you had known what the mandatory minimum was for narcotics possession? A. Yes.57
Carrion further testified that he was not influenced in deciding whether to plead guilty or go to trial by the hope of a recovery in a civil lawsuit.58
2. Kulcsar‘s Testimony
Kulcsar testified that there was no defense to the drug charge Carrion was facing59 and that, “[b]arring some miracle from God, [he] could not have obtained an acquittal.”60 Kulcsar conceded that if Carrion were convicted on the drug count alone, he would have been sentenced to at least fifteen years to life, but that he had been offered a plea of ten years to life.61 Although Kulcsar could not recall if he actually told Carrion that there was no defense to the drug charge, he thought “that in the context of [their] discussions it was clear that there was no
When asked whether he advised Carrion of the consequence of going to trial, Kulcsar remembered, in general terms, a discussion “as to the substantial sentence that [Carrion] could receive if he were convicted.”63 Kulcsar could not, however, recall any specific discussions he had with Carrion concerning the sentencing ranges for the various counts with which Carrion was charged.64 Kulcsar stated that as a matter of routine, established practice, he discussed relevant sentencing ranges with his clients and he believed he had done so with Carrion.65 However, excluding reliance on Kulcsar‘s established practice, Kulcsar could not remember whether he specifically advised Carrion of the maximum penalty should he go to trial and lose.66
Kulcsar testified that the “main stumbling block” to Carrion taking the plea was the prosecution‘s requirement that he allocute to the entire
I had no discussions with Mr. Carrion relating to his civil case, how the criminal case would affect the civil case or not. The only discussions I had with him related
specifically to the criminal case, whether or not he wanted to take the plea, that he understood what the parameters of the plea were and what was required of him to take the plea, and that it was his decision as to whether or not he wanted to plead.71
Kulcsar does not, however, advise his clients as to the advisability of taking a plea, even when it is in their best interests to do so. Kulcsar‘s established “no advice” policy became apparent through the following colloquy:
THE COURT: You don‘t give advice?
THE WITNESS: I don‘t tell them what I believe they should do when they ask me, what do you think I should do. What I‘ve always said . . . is the ultimate decision is only yours. I can only assist you in whichever way you decide, but the decision has to be yours because whatever that decision is – you have to live with it.
THE COURT: You don‘t say my advice is?
THE WITNESS: No.
THE COURT: If that person asks for advice, do you give it?
THE WITNESS: No. Because my experience after 30 years, the question is always phrased, what do you think I should do? And I‘ve always said, I can‘t tell you what you should do. I know what I would do, but that‘s not necessarily the same thing you should do or you would want to do.
THE COURT: Anyway, you don‘t give advice and if asked you don‘t give the advice either? THE WITNESS: I don‘t give specific advice, yes, you should take the plea or, no, you should not take the plea. . . .72
Kulcsar followed his “no advice” policy and did not advise Carrion to take the plea offer even though he realized Carrion‘s judgment was “clouded” by his physical injuries and paralysis.73 Kulcsar never told Carrion that going to trial was a bad decision, much less the worst decision he ever made in his life.74 In Kulcsar‘s own words: “I did not bang him over the head and tell him, if you don‘t take this plea and go to trial in front of [the judge] . . . you‘re going to get a substantial, substantial, substantial, substantial sentence.”75 Nor did Kulcsar recall any conversation in which Carrion asked Kulcsar what he should do.76
III. STANDARDS80
A. Section 2254 Standard
In applying the “unreasonable application” prong of
More recently, the Supreme Court addressed the issue of ineffective assistance of counsel within the context of a
In state post-conviction proceedings, Mirzayance claimed that his attorney‘s recommendation to withdraw the NGI plea constituted ineffective assistance of counsel under Strickland.86 The trial court‘s denial of Mirzayance‘s state habeas petition was affirmed by the California Court of Appeal.87 Mirzayance then filed a petition for federal habeas relief under section 2254, which was initially denied by the district court.88 The Ninth Circuit reversed the district court and “ordered an evidentiary hearing on counsel‘s recommendation to
The Supreme Court held that the state court decision denying Mirzayance‘s ineffective assistance claim did not violate clearly established federal law.93
With no Supreme Court precedent establishing a “nothing to lose” standard for ineffective-assistance-of-counsel claims, habeas relief cannot be granted pursuant to
§ 2254(d)(1) based on such a standard. Instead, such relief may be granted only if the state-court decision unreasonably applied the more general standard forineffective-assistance-of-counsel claims established by Strickland . . . . Indeed, this Court has repeatedly applied that standard to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point.94
“[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.”95 The Supreme Court thus held that “[u]nder the doubly deferential judicial review that applies to a Strickland claim evaluated under the
B. Strickland
To succeed on a claim of ineffective assistance of counsel in violation
“Under the second prong – the prejudice prong – a ‘reasonable probability’ of a different result is a ‘probability sufficient to undermine confidence in the outcome.‘”104 “The prejudice prong can be satisfied ‘even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.‘”105
C. Ineffective Assistance of Counsel - Plea Offers
Among the “basic duties” of a defense attorney are the “duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.”106 The professional norms of conduct “provide at least two benchmarks for the representation of a client who is deciding whether to accept a plea offer.”107
A closely related duty is that “defense counsel ‘must give the client the benefit of counsel‘s professional advice on this crucial decision’ of whether to plead guilty.”111 In a pre-Strickland case, the Supreme Court described the duty to provide informed advice on a plea offer as one of the basic functions of defense counsel: “Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved
In Boria v. Keane, the Second Circuit held that Boria‘s attorney had failed to adequately advise his client with respect to a plea offer.115 Boria‘s attorney not only failed to give his ultimate opinion as to the wisdom of the plea offer but “never gave his client any advice or suggestion as to how to deal with the People‘s offered plea bargain.”116 In granting Carrion‘s petition, this Court stated that the “instant case is quite similar to that considered in Boria v. Keane.”117 The Second Circuit disagreed with this statement, pointing out that this case “is not within [the] scope of the ruling in Boria.”118 The court explained
In Boria, where the defendant rejected the plea offer, counsel, who was found ineffective, “never gave his client any advice or suggestion as to how to deal with the People‘s offered plea bargain.” In the present case, in contrast, regardless of whether Kulcsar told his client the sentencing exposure, the district court credited that he told his client that the offer was a “good offer.” . . . To find Kulcsar‘s advice ineffective would represent a further extension of Boria.119
The Second Circuit further noted that Boria is a pre-AEDPA case and, therefore, employed a more liberal rule than the deferential AEDPA standard.120
IV. DISCUSSION
The question is whether this Court, after conducting its own evidentiary hearing, finds the state court‘s denial of Carrion‘s ineffective assistance of trial counsel claim to be an unreasonable application of federal law under the deferential AEDPA standard. This question implicates three distinct inquiries: (1) whether Kulcsar‘s assistance to Carrion with regard to the plea offer fell below an objective standard of reasonableness under prevailing professional
A. Carrion Did Not Receive Effective Assistance of Counsel
Kulcsar‘s assistance fell below an objective standard of reasonableness in two ways: (1) he failed to advise Carrion of the sentencing exposure he faced if he were convicted at trial; and (2) he failed to give Carrion advice regarding the advisability of accepting the plea offer that was sufficiently robust under the circumstances.
1. Sentencing Exposure
Carrion testified that Kulcsar never advised him as to the sentencing ranges for the charges he faced.122 Although this testimony is self-serving, I find it credible, especially given his demeanor in testifying and Carrion‘s other corroborating testimony that he lacked the sophistication to invent.123 Kulcsar, on the other hand, testified that he had no present recollection if he ever discussed with Carrion the mandatory minimum and maximum sentences for every count in the indictment.124 After the passage of so much time, the only evidence available
Furthermore, Kulcsar testified that if he had to do it over again, he would have asked the state court to appoint a psychiatrist to determine whether Carrion was suffering from post-traumatic stress disorder, or some other psychiatric disorder, that was impairing his judgment.128 This testimony is relevant as it demonstrates that Kulcsar was uncertain as to whether Carrion was capable of understanding whatever information Kulcsar did impart as to the plea offer. Accordingly, on the basis of the testimony at the evidentiary hearing conducted by this Court, I find that Kulcsar failed to apprise Carrion of the mandatory minimum sentence he faced if he went to trial and his total sentencing exposure.129
2. Advocacy
“Defense counsel have a constitutional duty to give their clients
Had Kulcsar fulfilled his duty to give effective plea advice, he would have laid out in appropriately stark terms the choices facing Carrion: either accept the plea offer of 10 years-life and allocute to the attempted murder charges, or go to trial without any defense to the drug, weapon possession and reckless endangerment charges and face a likely minimum 40-year-life sentence, and very possibly the life-without-possibility-of-parole sentence he actually received. He would have also explained to Carrion in no uncertain terms that . . . even if he allocuted to the attempted murder charges, it would not prevent him from
going forward with his civil claim, as to which proof that the police had attempted to assassinate him would be relevant.135
Under the particular circumstances presented here, more was required of Kulcsar than what he gave.136 Kulcsar‘s “no advice” policy under the circumstances is tantamount to the absence of counsel. Carrion should have been advised to accept the plea offer given counsel‘s understanding that Carrion would be convicted, at a minimum, of a count requiring a mandatory fifteen year sentence and that Carrion did not deny his guilty with respect to this count. Under these unique circumstances, where nothing could be gained by proceeding to trial, counsel should have made an explicit recommendation to take the plea offer, at the very least. If Carrion declined to accept that advice, he would then have no one to blame but himself. Consequently, regardless of the sentencing exposure issue, I find that Carrion received ineffective assistance of counsel from Kulcsar with
This finding is not in conflict with the recent decision of the Honorable Denise Cote in Berry v. Ercole,138 a case that is both similar and dissimilar to the case sub judice. In Berry, the defendant was indicted for, inter alia, Attempted Murder in the Second Degree, the most serious charge.139 Berry was represented by Allan Brenner who, like Kulcsar, could not recall specific conversations with his client but testified as to his established practice.140 Before the trial began, Berry, like Carrion, was offered a generous plea bargain. His attorney conveyed the offer with little advice as to whether Berry should take it.141 Berry was convicted of all counts contained in the indictment and was sentenced to an aggregate prison term of thirty-five years.142 At the time of his sentencing,
Five years later, Berry filed a federal petition for a writ of habeas corpus claiming that his trial counsel failed to provide him “with advice as to whether to accept the prosecution‘s favorable 9 year plea offer.”144 Judge Cote held an evidentiary hearing during which “Berry admitted that he had repeatedly told Brenner that he was innocent.”145 Furthermore, with regard to Brenner‘s advice, Judge Cote found that “Brenner did not explicitly advise Berry on February 2, 2001 to plead guilty and accept the offer of a nine year sentence. Brenner did, however, advise Berry that it was a generous offer.”146 Finally, citing Berry‘s colloquy with the state court judge, Judge Cote found that Berry failed to
Berry is distinguishable from the instant case on two separate grounds. First, unlike Berry, who consistently maintained his innocence as to all charges, Carrion never disavowed possessing eleven pounds of cocaine, nor could he. Thus, this “innocence factor,” which Judge Cote relied upon so heavily in finding that there was no prejudice to Berry,148 does not apply to Carrion. Second, in Berry, Judge Cote found that the trial court‘s direct interaction with Berry during the plea colloquy was entitled to “great weight in any assessment of whether Berry made a voluntary and informed decision to reject the plea offer.”149 Here, there was no such colloquy. Although the trial judge was informed that Carrion‘s preoccupation with a contemplated civil suit was a major impediment to his accepting the plea offer, there is no indication that she ever explored this concern with Carrion directly or otherwise questioned him as to whether he
In sum, having found that Carrion has met the first prong of Strickland in that he has shown that Kulcsar‘s performance fell below an objective standard of reasonableness, the next query is whether Carrion has established the requisite prejudice. Only if this question can be answered in the affirmative can this Court proceed to analyze whether the state court‘s decision denying Carrion‘s ineffective assistance claim constituted an unreasonable application of federal law.
B. Prejudice
The second Strickland prong requires a showing of prejudice which, in the Second Circuit, requires “some objective evidence other than defendant‘s assertions.”151 “Generally, a defendant suffers prejudice if there is a reasonable
The People argued to the state court that Carrion suffered no prejudice because he thought that agreeing to the plea bargain would negatively
C. The State Court Decision Represents an Unreasonable Application of Federal Law
Carrion was denied the effective assistance of counsel by Kulcsar‘s
As stated earlier, the relevant state court decision is the December 14, 2001 Order denying Carrion‘s section 440.10 motion. In his motion, Carrion stated:
As defendant has sworn to in his affidavit, had he known his odds, he would have accepted the people‘s offer, for counsel not to truly stress the position of the case, allowing the defendant to press on to trial, viewing the nature of the charges, five counts of attempted murder upon the police, counsel failed to advise the defendant not to pursue the suicidal course he seemed bent upon following.157
The trial court did not squarely address Carrion‘s ineffectiveness of pretrial counsel claim but instead held that “[a]s to the defendant‘s remaining arguments, they are denied for the reasons set forth by the People in their response.”158 The December 14, 2001 Order is undeniably a decision on the merits. The question is
Where “‘a state court fails to articulate the rationale underlying its rejection of a petitioner‘s claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court‘s ultimate decision was an unreasonable application of clearly established Supreme Court precedent.‘”159 For the reasons just discussed, I conclude that the state court‘s decision denying Carrion‘s ineffective assistance claim is an unreasonable application of the Strickland standard.
The conclusion remains the same even when this Court analyzes the People‘s response to Carrion‘s section 440.10 motion. The People‘s opposition is
When I first decided this case, I stated “A district court has considerable discretion in fashioning an appropriate remedy in a habeas proceeding.”164 Citing United States v. Day,165 I held that “[t]he appropriate remedy here is to give Carrion the benefit of the original plea offer and re-sentence him accordingly.”166 But Day was a case brought pursuant to
Following Boria, I am ordering specific performance of the rejected plea offer with the goal of placing Carrion in the position he would have occupied had he accepted the offer. Because this case has a different fact pattern from Boria, the result is different. Here, unlike Boria, the plea offer would have allowed Carrion to plead guilty to only one count in the indictment, rather than the
E. Stay
After this Court granted Carrion‘s habeas petition, respondent moved
upon Carrion‘s release from state custody, he will be detained by federal immigration authorities for a substantial period of time before he is deported. Thus, he will still be in custody, albeit in a different, and perhaps less favorable, venue while his case remains on appeal. If, on the other hand, Carrion is deported while his case is pending, there is a risk of flight from further reincarceration should the State prevail. The United States has only a limited extradition treaty with the Dominican Republic. It is therefore very difficult and costly, and sometimes impossible, to extradite a Dominican national. Finally, there is a strong public interest in not having the sentence of a violent felon, imposed in accordance with state law, modified by the actions of a federal district court until the Second Circuit has had an opportunity to address the constitutional challenge presented on appeal.173
In all likelihood, respondent will again appeal the decision granting Carrion‘s petition and will inevitably move for a stay pending that appeal. In the interest of efficiency, this Court hereby stays the instant Opinion and Order pending review by the Second Circuit. In the absence of a timely appeal, the stay will automatically be lifted.
For the reasons stated above, Carrion‘s petition for a writ of habeas corpus is granted. The Clerk of the Court is directed to close this case.
SO ORDERED:
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
August 12, 2009
For Petitioner:
Marjorie M. Smith, Esq.
Law Office of Marjorie M. Smith
P.O. Box 234
Piermont, New York 10968
(845) 365-6335
For Respondent:
Mary C. Farrington
Deborah Hickey
Assistant District Attorneys
One Hogan Place
New York, New York 10013
(212) 335-9000
Notes
Affidavit Opposing Report and Recommendation to the Honorable Shira A. Scheindlin ¶ 9.I would have accepted the favorable plea had I been properly notified and advised by counsel that the minimum I faced was 15 years to life. It surely served my best interest to do so considering the overwhelming damning evidence and unfavorable odds that were against me at the time.