In Sеptember 1992 a New York Supreme Court Justice having defendant Donovan Spence before him on a robbery charge, offered the promise of youthful offender treatment to Spence on the condition that he not engage in any further misconduct or get rearrested. If Spence broke that condition, the judge warned, he would impose a sentence of eight and one-third to 25 years. He then deferred sentence until November 1992 to see if the youth could keep out of trouble. -This appeal is about what occurred in the interval and the legal ramifications of those events.
Defendant was quickly rearrested and charged with another robbery, which it turns out he did not commit. But before that was determined, the heavy sentence he was warned about had already been imposed and is presently being served. It is time to correct what we perceive to be a miscarriage of justice, to grant the writ of habeas corpus and to release defendant from prison.
Donovan Spence (petitioner, defendant or appellant) appeals from a judgment entered on November 26, 1997 in the United States District Court for the Eastern District of New York (Raggi, J.), which denied his petition for a writ of habeas corpus, but at the same time found an issue that presented a serious legal question and issued a certificate of appealability.
See Spence v. Superintendent,
BACKGROUND
Eight years ago, on May 29, 1992, Spence and two others robbed a Brooklyn grocery store, taking money from the cash register. Spence pled guilty on September 30, 1992 to multiple robbery counts arising from this single incident. At the plea proceeding New York State Supreme *166 Court Justice Michaеl Feinberg explained to him that if he successfully complied with a one-year period of supervision, he would be put on probation and probably be granted youthful offender treatment. The state trial court warned him that if he failed to abide by the conditions set at the acceptance of his plea, he would be sentenced to imprisonment for a term of eight and one-third to 25 years.
Several weeks after the plea was entered, Spence was again arrested for robbery and brought back to state court before the same judge. On November 16, 1992 defense counsel requested an adjournment of sentencing on the robbery of the grocery store — the one that was the subject of the September рlea — so that he could examine alibi witnesses on the new robbery charge. An adjournment was granted until December 1, 1992 at which time defendant, with different counsel, moved to withdraw his September guilty plea and asked for an adjournment of sentence on the original robbery charge, telling the court that he had five alibi witnesses: two City Probation employees, a registered nurse, a student, and an employee of the New York Telephone Company, all of whom would testify that defendant was at home, not at the location where the robbery occurred. Trial counsel also noted that the officer responsible for Spence’s rearrest knew the terms of the judge’s warning and knew that a new arrest would result in an enhanced sentence. The state trial judge denied the motion, and imposed the eight and one-third to 25 year sentence he had warned defendant about. Later, when the new robbery charges went to trial, Spence was acquitted.
In February 1993 the New York Court of Appeals decided
People v. Outley,
As a result of that decision, Justice Feinberg held an Outley hearing in April 1993 on Spence’s new robbery arrest. At its close, he ruled that Spence had clearly violated the “no arrest” condition by being arrested on October 20, 1992, and that the arrest had a legitimate basis, being supported by probable cause. The court ruled the original sentence of eight and one-third to 25 years would stand as imposed.
Defendants appealed to the state appellate division contending that the hearing held to determine if he had violated the no arrest provision of the plea agreement violated due process and that the enhanced sentence constituted cruel and unusual punishment. Both claims were rejected,
see People v. Spence,
The panel that heard the appeal requested additional briefing that was received in late December 1999. We asked the parties to brief the following issues:
(1) whether it violates due process to sentence Spence for being rearrested when his plea agreement may reasonably be interpreted to require the commission of а future criminal act and not merely rearrest;
*167 (2) whether petitioner exhausted his state law remedies as to this question;
(3) whether petitioner has procedurally defaulted on this question on direct appeal; and
(4) whether any ground or exception nonetheless applies to permit its consideration on habeas review.
This request was prompted by the colloquy in New York State Supreme Court, Kings County, during the plea proceeding before Justice Feinberg on September 30, 1992. At that time, the sentencing judge put defendant on probation to be supervised by Court Employment, the probation department and by his mother, who whs present in the courtroom that day, with the promise that if Spence had “no violations” and is “not rearrested” and did not “get into any other trouble,” that he (the judge) would look “very favorably” at sentencing on granting Spence youthful offender status and giving him five years probation. ■ But, Justice Feinberg continued, “[i]f you get rearrested, that’s a voluntary choice you made by going out and doing something which you should not have been doing. It rests solely with you. If you get rearrested ... I’m going to sentence you up to the maximum time allowed by law — again, its eight and a third to 25.”
We think the court’s instruction to Spence was ambiguous, and susceptible to two meanings: Spence would violate the terms of his probation simply by being rearrested; or, Spence would violate probation only if he committed some wrongful act within his control. That is to say, the plea agreemеnt could be understood either as a “no arrest” or as a “no misconduct” agreement.
The district court and state courts that considered this matter concluded it was a no arrest agreement. We think it was a no misconduct agreement because we do not believe a youthful defendant like Spence would understand that a “no arrest” bargain as Justice Feinberg explained ■ it to him included an arrest in circumstances where he had committed absolutely no wrongful act, and that such arrest unilaterally initiated by the police could certainly not be said to be conduct resting solely with defendant. Our reasons are set out in the ensuing discussion.
DISCUSSION
I The No Misconduct Agreement
A. Defendant’s Right to Performance of the Agreement
We first review the merits of Spence’s claim because they inform our disposition, with resрect to the threshold question whether his petition, as the district court held, is procedurally barred, Because a defendant pleading guilty pursuant to a plea agreement waives a number of fundamental constitutional rights,
see Boykin v. Alabama,
In Spence’s case, the plea agreement was not reduced to writing, but rather reviewed orally by the judge in the presence of petitioner, his counsel, and his mother.
See Spence,
As noted, the most critical part of the colloquy involved the judge’s explanation of what it meant to be “rearrested.” Specifically, he told Spence “if you get rearrested, that’s a voluntary choice you made by going out and doing something which you should not have been doing. It rests solely with you.” (emphasis added). Spenсe has persistently maintained in the trial court, on direct appeal and in his habeas petition that his sentence should not be enhanced based on an act he did not commit. It is apparent from his protests that he understood the rearrest provision to cover only those acts over which he had control, as suggested by the judge’s own definition of the term.
A defendant in Spence’s position, relying solely on a judge’s explanation, would understand the crucial term in the-condition to mean what the judge defined it to be: misconduct within the defendant’s volition that would be a violation of the agreement. By embellishing and defining rearrest in these terms, the sentencing court we think sought to foster in Spence’s mind a sense of personal responsibility so that he would abide by the conditions to which he had agreed. As a result, the court should have known that Spence would understand that if he did not do anything wrong, he would not be violating this condition. Where Spence had no reason to know of any other meaning than that apparent from the judge’s own words, and the judge had reason to know the meaning Spence would attach to the definition of rearrest, Spence’s understanding prevails. See Restatement (Second) of Contracts § 201(2)(b) (1981). Construed as it must be in defendant’s favor, Spence agreed in exchange for his guilty plea to a “no misconduct” agreement, for breach of which he would receive the full enhanced sentence instead of the youthful offender status and probation he was promised.
Because we find that the condition Spence agreed to specified “no misconduct,” we need not address the due process requirements for proving breach of a “no arrest” condition that properly conditions a plea agreement on defendant not being rearrested. Thus, we have no occasion to consider, as the district court did, whether a showing that a post-plea arrest has a “legitimate basis” as required by
Outley
accords a defendant sufficient due process.
See Spence,
B. Proving a Breach of a Plea Agreement
The essential flaw in the state court post-plea proceeding was its focus on the legitimate basis for Spence’s rearrest, rather than on how probable it was that Spence committed the criminal act for which he was arrested, and thus whether he had breached the no miscоnduct plea agreement. Due process requires the government to prove a breach of a plea agreement by a preponderance of the evidence.
See United States v. Alexander,
As Spence reasonably understood the plea agreement and with its ambiguity construed in his favor, he had bargained for a term of probation in exchange for a promise not to engage in misconduct leading to an arrest. The state was thereforе obliged to show by a preponderance of the evidence that he committed the criminal act underlying the arrest. The trial court’s inquiry into the circumstances of Spence’s second arrest did not meet this standard. Instead, the trial court conducted the hearing only to give defendant an opportunity to show “that the arrest was without foundation,” and to establish whether there was a “legitimate basis” for the second arrest “within the meaning of [Outley ].”
Instead of what he bargained for — probation and no incarceration if he committed no criminal act — Spence was imprisoned for a term of eight and one-third to 25 years without the government having to prove that he committed the alleged act for which he was rearrested. We recognize that Spence’s subsequent acquittal on the charges brought in the wake of his second arrest does not prove he was innocent, but simply that there was reasonable doubt as to his guilt.
See United States v. Watts,
Under the facts here, the state had to show that Spence was guilty of the misconduct that served as the predicate for withdrawing its promise of probation. To remand for such a determination now is futile because under New York law, a sentencing court may not consider conduct for which a defendant has been acquitted.
See People v. Varlack,
The conclusion is inescapable that a judge enhancing a defendant’s sentence from probation to up to 25 years incarceration, without a showing that defendant breached the terms of the plea agreement, has acted contrary to the basic tenets of due process. Where a defendant agrees to avoid committing misconduct, it is manifestly wrong to void his side of the plea bargain based only upon the legitimacy' of an arrest, absent, proof that he most likely committed the act charged. The imposition of the heavy term of imprisonment, now being served, is a miscarriage of justice. Consequently, Spence is entitled on the merits of his claim to habeas corpus relief.
II Bars to Reaching the Merits of Spence’s Case
A. Exhaustion of Remedies and Procedural Default
Having considered the merits first, we return to the task of considering and resolving those procedural hurdles that stand in the way of reaching the merits. Spence did not raise the argument on which his relief depends in the state direct *170 review process, until it was too late. Hence, his claim was procedurally defaulted in state court. We must therefore consider whether the procedural bar based on Spence’s previous default may now be overcome.
Spence first raised the argument upon which we think he merits relief in his application for reargument after leave to appeal to the New York Court of Appeals was denied. His application was denied on the grounds that it was not timely filed. He presented this same argument as the third claim in his habeas petition to the district court. The magistrate judge found that the claim was not exhausted in the state courts as required by 28 U.S.C. § 2254(b) and (c) because Spence failed to raise the claim on direct appeal. The magistrate judge also ruled that the application for reargument of leave to appeal was denied on the procedural grounds of timeliness and, as a result, the state’s highest court was never presented with the merits of Spence’s сlaim.
See Grey v. Hoke,
We agree that Spence’s claim was not exhausted on direct appeal in the state courts, and recognize that such would ordinarily preclude habeas corpus review.
See Washington v. James,
The doctrine of procedural default is based on considerations of comity and finality, and not on a jurisdictional limitation on the power of a federal court under 28 U.S.C. § 2254 to look beyond a state procedural default and consider the merits of a defaulted claim that asserts a constitutional violation.
See Murray v. Carrier, 477
U.S. 478, 495-96,
When transporting the concept of “actual innocence” to the sentencing phase of capital trials, the Supreme Court has required that the legal error the defendant raises (his constitutional claim) must have caused an actual error in determining guilt or eligibility for sentence, by “precluding] the development of true facts [or] resulting] in the admission of false ones.”
See Smith v. Murray, 477
U.S. 527, 537-38,
Lower federal courts have followed this principle by recognizing the applicability of the actual innocence- exception to the sentencing phase of noncapital cases.
See United States v. Maybeck,
Excusing Spence’s procedural default and reaching his constitutional claim is fully consonant with the narrow scope of the miscarriage of justice exception. In the context of capital sentencing, the Court has clarified that the exception exists not to introduce mitigating evidence excluded by the constitutional error, but to show that the defendant was actually ineligible for (ie., actually innocent of), the death penalty under state law.
See Sawyer v. Whitley,
In Spence’s case, the constitutional error pertains to the fact that he was actually innocent of breaching the no misconduct condition in his plea agreement — the same breach that the trial judge used as the predicate for his incarceration. By challenging the determination of his responsibility for the act predicating his enhanced sentence, Spence raises precisely the question that the actual innocence exception contemplates. His is a- situation where his sentence for the criminal act to which he pled guilty was substantially enhanced based on another act he purportedly committed after he pled guilty, but before he was sentenced. Any evidence related to the subsequent act would perforce not have been considered at petitioner’s trial, but would only' have been reviewed during the sentencing hearing. Due to a constitutional error at that hearing, the trial court did not ask the right question — whether Spence more likely than not committed the second criminal act — and thereby did not adduce the facts fully relevant to that inquiry. Accordingly, we hold that in these circumstances, the actual innocence exception applies to the sentencing phase of a noncapital trial.
If defendant did not commit the second act, there is no justifiable basis for a court departing from a promised sentence to impose a harsher one. Where a sentencing court relies on the commission of an act subsequent to trial or to a guilty plea as grounds for raising the defendant’s sentence for the original conviction, a petition
*172
er may properly challenge the conclusion that he committed the subsequent act on the ground that he was actually innocent of it. Giving petitioner an opportunity to make this showing on collateral review, even if prоcedurally defaulted on direct review, will prevent a quintessential miscarriage of justice: a person being punished for an act he did not commit.
Cf. Sawyer,
In the context of capital sentencing, the Supreme Court has set a high hurdle for a petitioner to show a fundamental miscarriage of justice based on actual innocence. It held that “to show ‘actual innocence’ оne must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty....”
Id.
at 336,
Applying this demanding standard of proof to Spence’s ease, our inquiry is then whether, by clear and convincing evidence, defendant has shown that he is actually innocent of the act on which his harsher sentence was based.
See Sawyer,
At his post-rearrest hearing, Spence submitted his grand jury testimony in which he denied any involvement in the second crime.
See Spence,
This evidence clearly and convincingly demonstrates that no reasonable finder of fact could have determined that Spence committed a criminal act in violation of his plea agreement that would have made him eligible for a harsher sentence. We conclude therefore that Spence was actually innocent of the act for which he received аn enhanced sentence. Such a manifest injustice brings petitioner within the fundamental miscarriage of justice exception. 1
B. Further Avenue for Pursuing Claim in State Court
The state further argues that Spence retains an unexhausted avenue to pursue his claim in state court, i.e., by a motion to set aside the judgment pursuant to *173 N.Y.Crim. Proc. Law § 440.20(1) (McKinney 1994). This section provides that a defendant, at any time after entry of judgment, may move to set aside a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law.” In its Memorandum of Law to the district court opposing Spence’s petition, the state did not assert § 440.20 as a nonexhaustion defense to his third claim. Instead, in the context of the third claim, the state argued nonexhaustion based on petitioner’s failure to fairly present the claim to the Appellate Division or the Court of Appeals. It further asserted that “the defendant has no available state forum in which to raise this claim.” Thus, the nonexhaustion of § 440.20 as a defense to this claim is raised for the first time on appeal.
The Supreme Court has held that “[w]hen the State answers a habeas corpus petition, it has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies.”
Granberry v. Greer,
We have previously assumed, without deciding, that § 440.20 is available for remedying a claim that a sentence was imposed in violation of a federal right.
See Levine v. Commissioner,
Further review in federal court is not barred by the one-year statute of limitations found in 28 U.S.C. § 2244(d)(1) because the period of limitations has been and would continue to be tolled during the
*174
pendency of the federal habeas proceedings and state post-conviction review.
See Walker v. Artuz,
Because there was a fundamental miscarriage of justice in Spence being deprived of his bargained-for sentence, it is appropriate to deem the nonexhaustion defense based on a potential § 440.20 motion waived.
C. Failure to Object to Magistrate’s ' Findings
One final hurdle remains. In the district court proceedings the magistrate judge found that all of Spence’s claims were procedurally barred from federal review; Spence failed to object to the finding that his third claim was procedurally barred. The district court adopted that finding, but focused its opinion on Spence’s other claims.
See
A party may serve and file objections to a magistrate judge’s report within ten days after being served with it.
See
28 U.S.C. § 636(b)(1). Failure to timely object to a report generally waives any further judicial review of the findings contained in the report.
See Frank v. Johnson,
Ill Remedy
Spence is not charged with violating any of the conditions set by the sentencing judge, except for the ambiguous “no misconduct” provision. In light of his subsequent acquittal, the act he was alleged to have committed may not now be considered in sentencing him. Spence therefore would stand before a state trial judge having not breached his side of the plea agreement. Ordinarily, the remedy for the state’s breach of a plea agreement is either to enforce the bargain made or to allow the defendant to withdraw his guilty plea.
See Santobello,
The remedy varies according to what promise was broken as revealed by the facts of each case.
See United States v. Brody,
In exercising its discretion to fix an appropriate sentence, a trial court may properly consider reasons for departing from the sentence promised in the plea agreement.
See People v. Schultz,
Where defendant has already been imprisoned for eight years, nearly the minimum term of the sentence imposed by the trial judge, after he had been promised probation, it is unfair to remand for a state sentencing court to exercise an option that would force Spence to forsake a bargain he had kept, withdraw his plea, and face trial. While we are cognizant of the costs to society that attend habeas corpus jurisdiction,
see Smith,
CONCLUSION
In the unusual circumstances presented in this case, and to prevent this miscarriage of justice from continuing, we direct the district court to grant Spence’s petition for a writ of habeas corpus and to order his release from prison.
Notes
. We note that this conclusion as to the sufficiency of the evidence does not conflict with the trial court's conclusion that a minimal "legitimate basis” for Spence’s rearrest was shown in the post-plea hearing.
. Because Spence’s petition was filed before the effective date of the 1996 amendments to 28 U.S.C. § 2254, those amendments do not apply to the instant petition.
See Lindh v. Murphy,