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applying Houston rule to federal habeas petition, citing cases
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No. 97 Civ. 3288 (AJP)
February 2000
OPINION AND ORDER
Jei Yeung, pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from his New York state conviction, after jury trial, of first degree kidnapping. (Dkt. No. 1: Pet. ¶¶ 1-4.) Yeung alleges that he was denied effective assistance of counsel during plea negotiations (Pet. ¶ 12(A)) and that the trial court's reasonable doubt jury instruction shifted the burden of proof to Yeung (Pet. ¶ 12(B)).
The parties have consented to decision of Yeung's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 19.) For the reasons discussed below, Yeung's petition is denied. Yeung's first claim is without merit. Yeung's second claim was denied by the state court on an adequate and independent state law ground, barring federal habeas review, and in any event, is without merit.
By application dated December 1, 1999, Yeung applied for appointment of counsel. (Dkt. No. 17.) In light of the Court's denial of the petition, Yeung's application for appointment of counsel is denied as moot.
FACTS
Petitioner Jei Yeung was convicted, after jury trial, of two counts of first degree kidnapping and was sentenced to consecutive terms of twenty-five years to life imprisonment. See People v. Yeung, 219 A.D.2d 507, 508, 631 N.Y.S.2d 656, 656 (1st Dep't 1995). (See also Pet. ¶¶ 1-4.) Yeung's conviction stems from charges related to the beating and imprisonment of two immigrants for a period of five to seven days in November 1990 by Yeung and others. (Ex. E: Yeung 1st Dep't Br. at 12.) On November 20, 1990, Yeung and eight others were arrested, and jointly charged, under an acting in concert theory, with four counts of first degree kidnapping and various assault counts. (Id. at 4.) Six of Yeung's co-defendants pled guilty before August 13, 1991. (Id.)The Rejected Guilty Plea Offer
On the morning of August 13, 1991, jury selection was to start for the trial of the remaining three defendants (Yeung, Yungping Zheng and Wei Chen). (Ex. E: Yeung 1st Dep't Br. at 4, citing Wade/Mapp Tr. 503.) Prior to commencement of the voir dire, however, Yeung's counsel advised the court that Yeung wanted a new attorney. (Ex. E: Yeung 1st Dep't Br. at 4.) The trial court refused to entertain the application at that time and began interviewing prospective jurors. (Id.)
That afternoon, with formal voir dire yet to begin, counsel announced his readiness to proceed with the Wade/Mapp hearing, but again advised the court of Yeung's desire to apply to have him relieved as counsel. (Wade/Mapp Tr. 595.) Through an interpreter, Yeung explained to the court that, during the almost nine months he had been in jail, counsel had visited him only once, and Yeung did not believe counsel understood the case. (Wade/Mapp Tr. 595, 597.) The court told Yeung that assigned counsel was "very competent" and that the court would not appoint another lawyer on the "eve of trial," stating that Yeung had had "ample opportunity" to make the application earlier. (Wade/Mapp Tr. 596.) The court also informed Yeung that, although ill-advised, Yeung could dismiss his attorney and proceed pro se. (Id.)
In a further effort to persuade the court to appoint new counsel, Yeung explained that he had tried on many occasions to contact his attorney through a Chinese interpreter in order to determine the status of his case, that the interpreter had relayed the message to counsel, and that counsel had responded by promising to speak with Yeung in court. (Wade/Mapp Tr. 597.)
Nevertheless, Yeung appeared in court on several occasions and, until the day before, counsel never spoke with him. (Wade/Mapp Tr. 597-98.) Additionally, prior to that day, Yeung had not had an opportunity to voice his complaint to the court. (Wade/Mapp Tr. 598.)
Yeung's counsel said that he did not recall ever being contacted by an interpreter, that he spoke with Yeung for over six hours on December 13, 1990 before the lineup and Yeung provided him with "his version of the events," and that counsel had "extensively" spoken again with Yeung the day before and was not given any new information. (Wade/Mapp Tr. 598-99.) Counsel also asserted that he was prepared to defend Yeung. (Wade/Mapp Tr. 595, 599.) With that, the court ordered the prosecutor to call her first witness for the hearing. (Wade/Mapp Tr. 599.) When Yeung stated that he had new information to relate to his attorney, the court agreed to allow counsel to meet with Yeung after direct examination of the hearing's first witness. (Wade/Mapp Tr. 599-601.) The court adjourned for the day after the direct examination. (Wade/Mapp Tr. 613-14.)
When proceedings continued the next day, the court expressed its concern about learning that Yeung had conferred the night before, in his counsel's presence, with Mr. Moriarty, counsel for co-defendant Yungping Zheng. (Wade/Mapp Tr. 621-22, 626.) The court's impression was that Moriarty was trying to encourage Yeung to plead guilty and make statements during plea allocution that would exculpate Zheng. (Wade/Mapp Tr. 627-28.) Yeung's counsel stated that he had explained to Yeung that Moriarty had Zheng's, not Yeung's, best interests in mind. (Wade/Mapp Tr. 626-27.) Nevertheless, Yeung had wanted to meet with Moriarty. (Id.)
References to "Moriarty" in this opinion are to co-defendant Zheng's attorney, not to be confused with Professor Moriarty, the "Napoleon of crime" of the Sherlock Holmes stories. See Arthur Conan Doyle, "The Final Problem," The Memoirs of Sherlock Holmes.
The prosecutor recounted that Yeung's counsel had approached her about Yeung's pleading guilty to a lesser offense. (Wade/Mapp Tr. 630.) The prosecutor told Yeung's counsel that a condition of such a plea bargain was that Yeung "would have to tell [her] in some detail on the record what Wei Chen and what Yung Ping Zheng did as a part of this kidnapping and that if he did not inculpate them and prove their guilt by his statements, [she] would not offer him that lesser charge." (Wade/Mapp Tr. 631.) The prosecutor further explained that, subsequent to that discussion, Moriarty and Yeung's counsel came to her office during a lunch recess and Moriarty informed her, based on his communication with Yeung, that Yeung would say that Moriarty's client, Zheng, was not guilty. (Id.) Upon hearing that, the prosecutor advised Yeung's counsel to make clear to Yeung the conditions of the plea bargain, i.e., inculpating Zheng and Chen. ((Wade/Mapp Tr. 631-32.))
Yeung repeated his request to have his attorney relieved, explaining that counsel had promised to speak with him that morning but had failed to do so. (Wade/Mapp Tr. 629-30.) The court again denied Yeung's application for new counsel, but assured Yeung that he would allow him to talk to his attorney about the possibility of a guilty plea. (Wade/Mapp Tr. 630.) The court ordered counsel and Yeung to discuss the matter and come back with a decision. (Wade/Mapp Tr. 632-35.)
While Yeung and defense counsel conferred, Moriarty complained to the court that he had been trying to negotiate a plea for his client, but his major impediment was that Yeung was not seeing his lawyer. (Wade/Mapp Tr. 636-37.) Co-defendant Chen's counsel agreed. (Wade/Mapp Tr. 636.) No decision as to a plea was announced and the Wade/Mapp hearing continued. (Wade/Mapp Tr. 640.) Upon its completion at approximately 5:15 p.m., Yeung and his counsel met jointly with the other co-defendants and their attorneys to discuss plea bargains. (Wade/Mapp Tr. 681-83.) Forty-five minutes later, however, the prosecutor announced that all offers, if not immediately accepted, would be withdrawn. (Wade/Mapp Tr. 683.) Moriarty objected, declaring that there was only one interpreter available for all three defendants and that the attorneys had not even finished explaining the fundamentals of a guilty plea. (Wade/Mapp Tr. 683, 685.) All three defense counsel told the court that there was no disposition at that time. (Wade/Mapp Tr. 684-85.)
Co-defendant Chen's attorney joined in the application to hold open the plea offer at least until the following day; Chen's attorney explained that, because Yeung's counsel had been away the prior week, she (Chen's attorney) was unable until a few days ago to speak with him regarding what Yeung would testify to at trial, and that she needed that information to discuss with Chen the possibility of a plea. (Wade/Mapp Tr. 691-93.) The prosecutor refused to extend the offer. (Wade/Mapp Tr. 685, 692-93.)
Before recessing for the day, however, the court asked Yeung whether he wanted to plead guilty to the lesser charge of attempted first degree kidnapping. (Wade/Mapp Tr. 694, 696-97.) Yeung's counsel asked for some time to discuss the matter with Yeung, who was having difficulty understanding the sentencing terminology, specifically the meaning of an indeterminate sentence. (Wade/Mapp Tr. 694, 698.) The court explained to Yeung that the total sentence being offered was eight to twenty-four years (seven to twenty-one years for attempted kidnapping and a possible consecutive sentence of one to three years on a robbery charge from a separate indictment). (Wade/Mapp Tr. 699-700.) Yeung agreed to plead guilty to attempted kidnapping in the kidnapping case, but not plead guilty in the robbery case. (Wade/Mapp Tr. 700-02.) The court agreed and asked Yeung's counsel whether Yeung understood what the allocution was, to which Yeung's counsel replied, "I think so." (Wade/Mapp Tr. 701.) The court then explained to Yeung the rights he was waiving by not going to trial, which Yeung acknowledged that he understood. (Wade/Mapp Tr. 703-07.)
When asked his role in the kidnapping, Yeung asserted that he participated in getting the money and in the abductions. (Wade/Mapp Tr. 707.) When the court named co-defendant Chen as a participant, Yeung said that "[Chen] was not in it," Yeung "[did]n't know whether [Chen] participate in this case or not," and Yeung "didn't plan anything with [Chen]." (Wade/Mapp Tr. 708.) Yeung also stated that co-defendant Zheng "didn't do anything." (Id.) The prosecutor declared the plea unacceptable and the court announced that the plea offer was withdrawn by the prosecutor. (Wade/Mapp Tr. 708-09.) The prosecutor also withdrew her plea offer as to co-defendant Chen after Chen's attorney reported that Chen was unwilling to fully inculpate Yeung and Zheng. (Wade/Mapp 709-11.)
This portion of the plea colloquy went as follows:
THE COURT: Now, is it a fact that sometime during the period from about November 13th, 1990 to about November the 19th, 1990, that you did, acting with others, abduct, that is, restrain Zhou Zhi Lau, Zhou Zhi Quang, with the intent that he pay or deliver money as ransom for his release? Did you participate in that?
DEFENDANT YEUNG: Yes, I participate in getting money.
THE COURT: What did you do?
DEFENDANT YEUNG: I participate in getting the money and I don't know who relative they got the money from, but I went to get the money.
THE COURT: But did you —
DEFENDANT YEUNG: What I meant to say, I went over there to collect the money. I went there.
THE COURT: And you participated in the abduction of Zhou Zhi Lau, you acted with the others?
DEFENDANT YEUNG: Yes.
THE COURT: And the others included . . . Mr. Wei Chen; is that correct?
DEFENDANT YEUNG: He was not in it.
THE COURT: What did Mr. Wei Chen do?
DEFENDANT YEUNG: I don't know whether he participate in this case or not.
THE COURT: What did you see him doing?
DEFENDANT YEUNG: But I didn't plan anything with him.
THE COURT: What did you see him doing?
DEFENDANT YEUNG: I didn't see anything.
[PROSECUTOR]: Your Honor, plea's not acceptable.
THE COURT: One moment. What about Mr. Yung Ping Zheng, did you see him do anything?
DEFENDANT YEUNG: Concerning what?
THE COURT: Concerning this whole thing between November the 13th and November the 19th, 1990. Concerning the abduction, concerning the efforts obtaining ransom.
DEFENDANT YEUNG: He didn't do anything.
[PROSECUTOR]: Plea's not acceptable to the People.
THE COURT: All right, the plea is being withdrawn. The offer is being withdrawn by the People.
(Wade/Mapp Tr. 707-09, emphasis added.)
The following morning, the court had the interpreter translate a letter that Yeung had handed to the court. (Wade/Mapp Tr. 728-31.) The letter stated that Yeung was asking the court to assign him new counsel because, until two days ago, his attorney had spoken with him only once since his arrest. (Wade/Mapp Tr. 729-30.) Yeung had tried on multiple occasions to contact and speak with his attorney because he had information to relate to him, but to no avail. (Wade/Mapp Tr. 730.) During the past two days, counsel had not spent much time speaking with him, and Yeung had not had sufficient time to understand the details of the case. (Id.)
The court denied the application, stating that Yeung had had ample time to request another attorney, and extracting from Yeung's counsel his assurance that he was ready to proceed. (Wade/Mapp Tr. 731-32.)
That afternoon, co-defendant Zheng offered to plead guilty to attempted first degree kidnapping, in exchange for a sentence of four to twelve years imprisonment. (Wade/Mapp Tr. 737, 742.) During his allocution, when asked by the prosecutor whether he participated in the kidnapping with Yeung and Chen, Zheng stated, "A lot of things I didn't know. I wasn't present." (Wade/Mapp Tr. 744.) The court asked whether he knew that Chen and Yeung participated in the kidnapping, and told Zheng to speak with his lawyer if he did not understand the question. (Id.) Moriarty intervened, asserting that his client had hesitated in responding because Yeung's involvement was much greater than Chen's and Zheng did not want to equate them. (Wade/Mapp Tr. 744-45.) The court then asked Zheng whether both individuals had "some involvement" and Zheng said "yes." (Wade/Mapp Tr. 745.) The court accepted Zheng's plea. (Id.)
Yeung's counsel objected to the prosecutor's "selective policy of plea bargaining" and renewed Yeung's application to plead guilty. (Wade/Mapp Tr. 751.) He explained that Yeung had attempted to plead guilty the previous day, but due to a substantial language problem, did not fully understand the court's question about his co-defendants's involvement. (Wade/Mapp Tr. 751-53.) Yeung's counsel also noted that, rather than the court's further explaining the matter to Yeung or having counsel speak with him, as was done at Zheng's plea, the prosecutor abruptly withdrew the offer. (Wade/Mapp Tr. 752.) Further, Zheng's plea allocution did not specify the co-defendants's roles, as the prosecutor had demanded of Yeung. (Wade/Mapp Tr. 752-53.) The prosecutor responded that Yeung had not misunderstood the question during his allocution, but had simply refused to inculpate the other defendants. (Wade/Mapp Tr. 758-59.)
Subsequently, Yeung's and Chen's cases were severed and Chen was tried first. (Ex. E: Yeung 1st Dep't Br. at 12.) When Yeung's trial commenced on March 10, 1992, he was represented by a different assigned counsel. (Id.)
The Trial Evidence
According to the evidence at trial, Yeung and several others abducted two brothers, Zhi Quiang Zhou and Zhi Lao Zhou, who had been illegally smuggled into the United States ten days earlier. (Ex. E: Yeung 1st Dep't Br. at 12.) The brothers were kept in a Manhattan warehouse for two to three days and in a house in Queens for three to four days, and were repeatedly beaten with a rod and a gun, and burned with a lighter, causing several injuries, including broken sternums. (Id.)
During the five to seven days of captivity, Yeung communicated with a third brother, Zhi Hang Zhou, by telephone and in person, demanding money for the brothers' release. (Ex. E: Yeung 1st Dep't Br. at 13.) Hang and his nephew, who had witnessed the actual abduction, contacted the police, who set up surveillance and arrested Yeung, Chen and Zheng at the ransom pick-up. (Id.)
The Jury Charge
The trial court charged the jury on the elements of the six counts submitted: two counts of first degree kidnapping under N Y Penal Law § 135.25(1); two counts of first degree kidnapping under N.Y. Penal Law § 135.25(2); and two counts of second degree assault, and explained that to find Yeung guilty of any count, each of its elements must be proved beyond a reasonable doubt. (Ex. E: Yeung 1st Dep't Br. at 13; Trial Transcript ["Tr."] 561-87.) The trial court also instructed the jury on the proper evaluation of evidence, on the manner in which to assess testimony of expert, police, and interested witnesses, and on Yeung's right not to testify. (Tr. 588-98.) The judge reminded the jury that he had said "over and over again" that "the defendant is presumed innocent until the country has proven him guilty," that "the burden of proving the defendant guilty rests at all times on the People," and that "[t]he defendant has no obligation to disprove the accusations or to prove his innocence." (Tr. 598.)
The jury charge portion of the trial transcript is Exhibit B to the November 17, 1999 Supplemental Affirmation of ADA Adlerstein.
In explaining reasonable doubt, the court told the jury that "[w]e are not talking about balance of probabilities" (Tr. 600), and instructed the jury to conduct the following analysis:
Ask yourself, as to each material issue, do I have a doubt?
If the answer is no, get on to the next question.
If the answer is yes, some gut feeling or hunch or something going through your mind that gives you a doubt. If your answer is yes to that question, then you have an obligation to ask yourself a second question. Is that doubt reasonable? Is it a doubt based on a reason that you can give, arising out of the evidence or lack of evidence in this case. Because proof beyond a reasonable doubt does not mean absolutely or mathematically certain.
A person can dream up doubts about anything in life and certainly during the course of a trial. But a reasonable doubt is not a surmise. It is not a whim. It is not a guess. It is not some gut feeling. A reasonable doubt is a doubt based upon a reason, which you can give arising out of the evidence or lack of evidence in this case.
And ladies and gentlemen of the jury, it is not a subterfuge. A reasonable doubt is not a subterfuge, to which any juror may resort in order to avoid doing what might be an unpleasant or disagreeable doubt. That is not a reasonable doubt.
(Tr. 600-01, emphasis added.)
Verdict and Sentence
The jury convicted Yeung of two counts of first degree kidnapping and the court imposed the maximum sentence of two consecutive terms of twenty-five years to life imprisonment. See People v. Yeung, 219 A.D.2d 507, 508, 631 N.Y.S.2d 656, 656 (1st Dep't 1995). (See also Pet. ¶¶ 1-4.)
Yeung's Direct Appeal
Yeung appealed to the First Department, alleging, inter alia, that he had received ineffective assistance of counsel since counsel's failure to adequately inform and advise him prevented him from pleading guilty to the lesser offense of attempted kidnapping (Ex. E: Yeung 1st Dep't Br. at 15-25), and that the trial court's reasonable doubt jury instruction was improper (id. at 25-31).
On September 19, 1995, the First Department affirmed Yeung's conviction. People v. Yeung, 219 A.D.2d 507, 508, 631 N.Y.S.2d 656, 656 (1st Dep't 1995). As to Yeung's ineffective assistance claim, the First Department held:
It is not difficult to understand why defendant now seeks an opportunity to undo his decision to forgo a generous plea offer which would have required him to inculpate his accomplices. Defendant fails, however, to establish that his counsel provided ineffective assistance or in any way denied or hindered his right to take advantage of the People's plea offer.
Id. The First Department also rejected Yeung's challenge to the jury charge:
Defendant's arguments concerning the jury charge are not preserved for appellate review as a matter of law, and we decline to reach them in the interest of justice. Were we to review, we would find that the charge, viewed as a whole, properly informed the jury of the correct rule to apply in arriving at its verdict.
Id. (citations omitted).
On November 20, 1995, the New York Court of Appeals denied leave to appeal. People v. Yeung, 87 N.Y.2d 847, 638 N.Y.S.2d 606 (1995).
Yeung's Present Federal Habeas Petition
Yeung's federal habeas petition, dated April 21, 1997, was received by the Court's Pro Se Office on April 28, 1997. (See Dkt. No 1: Pet. cover page's date stamp; Pet. at p. 7.) Relying on Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), in which the Second Circuit held that inmates whose convictions became final before the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") had a "reasonable time" to file a habeas petition, the Court dismissed Yeung's petition as time-barred. Yeung v. Artuz, 97 Civ. 3288, 1997 WL 572908 at *1-3 (S.D.N.Y. Sept. 10, 1997) (Baer, D.J. Peck, M.J.).
Subsequently, in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), the Second Circuit rejected its statements in Peterson as dicta and held that a habeas petition filed within one year after the AEDPA's April 24, 1996 effective date is timely. As a result, on February 25, 1999, the Second Circuit remanded Yeung's case for further proceedings, instructing:
[T]he district court on remand should . . . determine the date on which Yeung filed his petition. If the petition was filed on or before April 24, 1997, the court should entertain the petition. If it was filed later than April 24, 1997, the court should dismiss the petition as untimely.
Yeung v. Artuz, No. 98-2133, 175 F.3d 1009 (table), 1999 WL 97364 at *1 (2d Cir. Feb. 25, 1999).
On June 15, 1999, this Court directed Yeung to submit proof as to when he delivered his petition to prison officials. (Dkt. No. 13.)
On July 1, 1999, this Court received copies of Yeung's certified mail receipt bearing an illegible date, as well as a Department of Correctional Services disbursement form, dated April 22, 1997, showing payment for certified mail. (Dkt. No. 15.)
In August 1999, the parties consented to decision of Yeung's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 19.)
ANALYSIS
I. YEUNG'S PETITION IS TIMELY
Under Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 2382 (1988), a pro se prisoner's papers are considered filed when they are given to prison officials for forwarding to the court. See also, e.g., Yeung v. Artuz, No. 98-2133, 175 F.3d 1009 (table), 1999 WL 97364 at *1 (2d Cir. Feb. 25, 1999); Covington v. DiBiase, No. 97-2650, 172 F.3d 37 (table), 1999 WL 48775 at *1 (2d Cir. Jan. 29, 1999); Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997); Dory v. Ryan, 999 F.2d 679, 681-82 (2d Cir. 1993), modified on other grounds, 25 F.3d 81 (2d Cir. 1994); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *4 (S.D.N Y Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Bunting v. Artuz, 98 Civ. 2443, 1999 WL 476432 at *3 (S.D.N.Y. July 8, 1999); Brooks v. Greiner, 49 F. Supp.2d 240, 241 n. 1 (S.D.N.Y. 1999); Torres v. Irvin, 33 F. Supp.2d 257, 270 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Covington v. City of New York, 916 F. Supp. 282, 286 (S.D.N.Y. 1996) (Scheindlin, D.J. Peck, M.J.).
Yeung has submitted a Department of Correctional Services disbursement form dated April 22, 1997, showing payment for certified mail. Based on that submission, this Court finds that Yeung's habeas petition was handed to prison authorities on or before April 22, 1997, less than one-year from the effective date of the AEDPA, and is thus timely under Ross v. Artuz.
II. YEUNG WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH HIS DECISION NOT TO PLEAD GUILTY
The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, the defendant must show that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms. Id. at 687-88, 104 S. Ct. at 2064-65. Second, the defendant must show prejudice from counsel's performance: "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. The Strickland Court defined a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id.; see also, e.g., Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *15-16 n. 7 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.), cases cited therein.
In Hill v. Lockhart, the Supreme Court applied the Strickland two-prong test to ineffective assistance claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 370 (1985). While Hill involved an ineffective assistance challenge to a defendant's decision to plead guilty, the Second Circuit (and the district courts therein) has applied the Strickland/Hill test to ineffective assistance claims where the defendant has forgone an offered plea and proceeded to trial. See, e.g., Cullen v. United States, 194 F.3d 401, 403-04 (2d Cir. 1999); United States v. Gordon, 156 F.3d 376, 379-80 (2d Cir. 1998); Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir.), clarified on rehearing, 90 F.3d 36 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S. Ct. 2508 (1997); see also, e.g., Slevin v. United States, 98 Civ. 0904, 1999 WL 1005715 at *4 (S.D.N.Y. Nov. 3, 1999); Konop v. United States, No. 98 CV 7387, 1999 WL 1011944 at *1-2 (E.D.N.Y. Sept. 28, 1999); Slevin v. United States, 71 F. Supp.2d 348, 354-64 (S.D.N.Y. 1999); Mask v. McGinnis, 28 F. Supp.2d 122, 124-25 (S.D.N.Y. 1998); Yanez v. Keane, 16 F. Supp. 2 d 364, 370-72 (S.D.N.Y. 1998) (Haight, D.J. Peck, M.J.); Carmichael v. United States, Nos. 3:92CR0098 3:97CR00185, 1998 WL 894592 at *4-7 (D. Conn. Dec. 16, 1998); Marel v. Lord, 95 Civ. 9668, 1998 WL 17730 at *3-4 (S.D.N.Y. Jan. 16, 1998), aff'd, 173 F.3d 845 (1999); United States v. Smith, 824 F. Supp. 420, 425 (S.D.N.Y. 1993); Londono v. United States, No. CV-91-5131, 1992 WL 100162 at *2 (E.D.N.Y. April 20, 1992).
Yeung alleges that his attorney "never fully and clearly informed [him of] the consequence of a trial and the plea agreement from the State." (Pet. ¶ 12(A).) These alleged deficiencies need not be addressed because this Court concludes that Yeung cannot satisfy the second (prejudice) prong of Strickland. The Strickland Court specifically recommended this approach to ineffectiveness claims: "The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069; see also, e.g., Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991); Tapia-Garcia v. United States, 53 F. Supp.2d 370, 381 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.), cases cited therein.
Yeung also alleges that his counsel "only talked to petitioner once in nine months." (Pet. ¶ 12(A).) That allegation, however, is not relevant to Yeung's habeas claim that counsel did not advise Yeung concerning the government's plea offer.
It is well-established that "prejudice from counsel's failure to provide adequate representation during plea bargaining is possible, despite a subsequent fair trial." United States v. Day, 969 F.2d 39, 44 (3d Cir. 1992) (collecting cases); see also, e.g., Boria v. Keane, 99 F.3d at 497; Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995); United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994); United States v. Rodriguez, 929 F.2d 747, 753 n. 1 (1st Cir. 1991); Marel v. Lord, 1998 WL 17730 at *2 ("`[B]ecause failing to advise a client as to the nature of a plea bargain deprives the client of the opportunity to accept a plea bargain, in exchange for a lesser sentence, a fair trial does not remedy the attorney's incompetence.'").
As noted above, under the second Strickland prong, Yeung "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. United States, 466 U.S. at 694, 104 S. Ct. at 2068; see also, e.g., Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370. Yeung has the burden of establishing that there is a reasonable probability that but for counsel's alleged failure to adequately inform him of the terms and conditions of the plea offer and the consequences of going to trial, Yeung would have accepted the plea offer. See, e.g., Cullen v. United States, 194 F.3d at 404; United States v. Gordon, 156 F.3d at 380-81; Slevin v. United States, 71 F. Supp.2d at 360; Slevin v. United States, 1999 WL 549010 at *11; Mask v. McGinnis, 28 F. Supp.2d at 125; Marel v. Lord, 1998 WL 17730 at *4. In order to carry this burden, Yeung "must first assert in his affidavit that had it not been for counsel's allegedly erroneous advice, he would have accepted the plea." Slevin v. United States, 71 F. Supp.2d at 360; see also, e.g., Engelen v. United States, 68 F.3d at 241; Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (reasonable probability not shown without a statement by petitioner that he would have accepted plea offer), cert. denied, 505 U.S. 1223, 112 S. Ct. 3038 (1992); United States v. Turchi, 645 F. Supp. 558, 568 (E.D. Pa. 1986) (same), aff'd, 815 F.2d 697 (3d Cir.), cert. denied, 484 U.S. 912, 108 S. Ct. 252 (1987); cf. Hill v. Lockhart, 474 U.S. at 60, 106 S. Ct. at 371 (rejecting habeas claim because petitioner failed to allege that had counsel's advice on plea offer been accurate, he would not have pled guilty); Brown v. United States, 95 Civ. 4368, 1996 WL 479248 at *6 (S.D.N.Y. Aug. 23, 1996) (petitioner "does not even contend that, had his counsel acted differently, he would have chosen not to plead guilty and, instead, would have gone to trial").
In addition, Yeung must present "objective evidence" beyond his own "self-serving, post-conviction testimony" that demonstrates a "reasonable probability" that he would have accepted the plea offer. United States v. Gordon, 156 F.3d at 380-81; see, e.g., Toro v. Fairman, 940 F.2d at 1068; Slevin v. United States, 71 F. Supp.2d at 362; Marel v. Lord, 1998 WL 17730 at *4 (rejecting ineffective assistance claim where "plaintiff has proffered no evidence in support of her contention that she would have accepted the . . . plea offer.").
Here, Yeung has not submitted an affidavit, but in his petition alleges that he "was willing to take a plea bargain from the State," but that "[b]ecause of lack of effective assistance of counsel, [he] was forced to go to trial without knowing its consequences." (Pet. ¶ 12(A).) However, Yeung points to no evidence demonstrating that he was willing to inculpate his co-defendants, a key condition of the government's plea offer. Indeed, the record shows that Yeung was unwilling to implicate his co-defendants. (See discussion at pages 7-9 n. 4 above.) Cf. Engelen v. United States, 68 F.3d at 241 ("The record is completely barren of any evidence that [petitioner] would have acknowledged his guilt prior to trial."); Slevin v. United States, 71 F. Supp.2d at 358 ("Not only is petitioner unable to satisfy his evidentiary burden, the circumstantial evidence surrounding petitioner's allegations belies his claims. . . ."); Londono v. United States, 1992 WL 100162 at *2 ("The petitioner's claim that he would have accepted the plea-offer had he been aware of it is not consistent with his continued insistence that he was innocent of the offense with which he was charged."). The only condition of the plea offer that Yeung implicitly claims was not made clear to him by counsel — that Yeung would have to implicate his co-defendants — was explicitly stated on the record by the prosecutor before Yeung was allowed to confer with his counsel and decide whether to plead. (Wade/Mapp Tr. 631-32, quoted at page 5 above.) But when Yeung, after discussion with counsel (Wade/Mapp Tr. 632-35, 681-85, 694, 698), agreed to plead guilty, he did not inculpate his co-defendants, instead allocuting that Chen "was not in it" and Yeung "didn't plan anything with" Chen, and that Zheng "didn't do anything." (Wade/Mapp Tr. 707-09, quoted at page 7 n. 4 above.) The prosecutor immediately stated in open court that Yeung's plea was not acceptable. (Id.) Moreover, even after his conviction, Yeung argued in his direct appeal brief only that if he had been properly informed he "could have allocuted to the prosecutor's satisfaction" and that he "likely would have been able to make the minimal showing the prosecutor required." (Ex. E: Yeung 1st Dep't Br. at 24, emphasis added.) However, ability to act is not tantamount to willingness to act. See, e.g., Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.) ("Although [petitioner] argues that he would have been able to accept the agreement but for [counsel]'s actions, [petitioner's] freedom to act does not establish a reasonable probability that he would have acted."), cert. denied, 479 U.S. 937, 107 S. Ct. 416 (1986).
Yeung was faced with a variation on the classic "prisoner's dilemma" in deciding whether to plead guilty — he and two co-defendants were told one of them could plead guilty and receive a lesser sentence if he inculpated his co-defendants. Whether because of pressure from his co-defendants (see Wade/Mapp Tr. 621-22, 626-28), or misplaced loyalty to is co-defendants, or some other reason, Yeung chose not to plead guilty and inculpate his co-defendants. Yeung was informed in open court by the prosecutor that a condition of the plea was inculpating the co-defendants. Yeung here presents no circumstantial evidence or other corroborating evidence as required by Second Circuit case law, to support his self-serving claim of ineffective assistance of counsel. Yeung's ineffective assistance claim is denied.
III. YEUNG'S CLAIM THAT THE JURY CHARGE WAS IMPROPER IS BARRED FROM FEDERAL HABEAS REVIEW BECAUSE THE FIRST DEPARTMENT'S DECISION WAS BASED ON AN ADEQUATE AND INDEPENDENT STATE LAW GROUND
Yeung claims that the jury charge was improper. He argues that "[t]he trial court's reasonable doubt charge, which instructed the jurors to ask themselves if they had a doubt and to convict if they answered in the negative, explained that a reasonable doubt is a doubt for which they could give a reason, based on the evidence or lack of evidence, and provided multiple examples of what a reasonable doubt was not, shifted and diminished the State's burden of proof." (Pet. ¶ 12(B).) The First Department held that the jury charge issue was "not preserved for appellate review as a matter of law," citing N.Y. CPL § 470.05(2), New York's contemporaneous objection rule. People v. Yeung, 219 A.D.2d 507, 508, 631 N.Y.S.2d 656, 656 (1st Dep't 1995).
N.Y. CPL § 470.05(2) provides in relevant part:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. . . .
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989) (citations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).
Here, the First Department explicitly held that the jury charge issue was "not preserved for appellate review" because of Yeung's counsel's failure to object to the charge at trial. People v. Yeung, 219 A.D.2d at 508, 631 N.Y.S.2d at 656. "The Second Circuit has held that the failure to object at trial is an adequate and independent state ground." Cruz v. Greiner, 1999 WL 1043961 at *14 (citing cases). Thus, Yeung's jury charge claim is barred from federal habeas review unless Yeung can show cause for the default and prejudice, or a fundamental miscarriage of justice. Yeung has not attempted to demonstrate cause and prejudice, or a fundamental miscarriage of justice, and it is clear that he could not do so.
That the First Department also addressed the merits of the jury charge issue does not change the result. E.g., Cruz v. Greiner, 1999 WL 1043961 at *13 (citing Supreme Court, Second Circuit and Southern District decisions) (claims barred from habeas review where First Department rejected claims as "unpreserved and without merit"); accord, e.g., Chisolm v. Headley, 58 F. Supp.2d at 286-87; Torres v. Irvin, 33 F. Supp. 2 d at 274; Williams v. Bennet, 1998 WL 236222 at *5; Liner v. Keane, 1996 WL 33990 at *7 n. 2.
The New York Court of Appeals denied Yeung's application for leave to appeal without opinion. People v. Yeung, 87 N.Y.2d 847, 638 N.Y.S.2d 606 (1995). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S. Ct. at 2594; accord, e.g., Cruz v. Greiner, 1999 WL 1043961 at *13 n. 3; Chisolm v. Headley, 58 F. Supp.2d at 287 n. 3; Owens v. Portuondo, 1999 WL 378343 at *5 n. 3; Torres v. Irvin, 33 F. Supp.2d at 274 n. 2; Williams v. Bennet, 1998 WL 236222 at *7; Vera v. Hanslmaeir, 928 F. Supp. at 286 n. 3. Yeung has presented no facts to rebut that presumption here.
Even if this Court could review this claim, the jury charge viewed as a whole did not improperly shift or diminish the State's burden of proof. See, e.g., Lugo v. Kuhlmann, 1999 WL 946793 at *16-17, cases cited therein.
CONCLUSION
For the reasons set forth above, Yeung's petition for a writ of habeas corpus is denied. Because Yeung has failed to make "a substantial showing of the denial of a constitutional right," the Court denies a certificate of appealability pursuant to 28 U.S.C. § 2253(b).SO ORDERED.