Opinion
00 Civ. 0403 (SAS)(JCF).
November 9, 2000.
REPORT AND RECOMMENDATION
Hiram Roman brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for felony murder and robbery following his plea of guilty in New York State Supreme Court, Bronx County. In the petition, Mr. Roman argues that: (1) the sentencing procedure was flawed and deprived him of due process, and (2) his conviction was constitutionally defective because his plea was involuntary, he received ineffective assistance of counsel, and he was denied a hearing in the trial court on those issues. Recognizing that his claim concerning sentencing was not fully exhausted, Mr. Roman has withdrawn it. (Traverse dated June 20, 2000 at 1). His claims concerning his plea are without merit, and the petition should therefore be denied.
Background
According to a proffer made by the prosecutor prior to the petitioner's plea and again at his sentencing, Mr. Roman conspired with Eduardo Nevedo and Edwin Castro to rob an Epic Security van that was transporting cash and food stamps. Mr. Nevedo, who had lost his job with Epic Security, still had a key to the van and knew its route. On September 9, 1994, the three men attempted to seize the van in front of a supermarket in the Bronx. Mr. Nevedo was to serve as the getaway driver while Mr. Roman and Mr. Castro took the van.
However, as the robbers neared the van, Jose Cruz, an Epic Security guard, also approached the vehicle. Mr.Castro shot him twice with a .45 caliber pistol, killing him. Two New York City police detectives who had been in the supermarket heard the shots as they were returning to their unmarked car. When they drew their weapons and announced themselves as police officers, a gunfight ensued. One detective was wounded, and he in turn shot Mr. Castro twice.
The robbers fled. A teenager who initially helped Mr. Castro then contacted the police who apprehended him at a hospital where he was being treated for his gunshot wounds. Upon being arrested, Mr. Castro confessed and identified Mr. Roman and Mr. Nevedo as the other perpetrators. Mr. Nevedo was arrested next, and he too admitted his guilt and identified the other participants. Finally, the police located and arrested Mr. Roman. (Pl. Tr. at 804-10; S. Tr. at 26-32).
"Pl. Tr." refers to the portion of the trial transcript containing Mr. Roman's plea allocution, which is attached as Exhibit 1 to the Affidavit of Cheryl D. Harris dated April 28, 2000 ("Harris Aff."). "S. Tr." refers to the transcript of Mr. Roman's sentencing, which is attached as Exhibit 2 to the Harris Aff.
Mr. Roman was charged with the felony murder of Mr. Cruz, attempted murder of the police officer, and robbery. (Pl. Tr. at 798; S. Tr. at 8). He proceeded to trial, and both of his accomplices testified against him. (S. Tr. at 7-8). Near the close of the prosecution's case, Mr. Roman's attorney indicated that the defendant wished to accept a plea bargain. Pursuant to the agreement, Mr. Roman would plead guilty to felony murder for which he would receive a sentence of imprisonment of fifteen years to life. He would also plead guilty to robbery in the first degree, for which he would receive a concurrent term of five to ten years. (Pl. Tr. at 798-99).
Justice Harold Silverman, the trial judge, then questioned Mr. Roman under oath concerning the plea. The petitioner acknowledged that he wished to plead guilty to the felony murder and robbery charges. (Pl. Tr. at 800- 01). He indicated that he had discussed the plea with his attorney, and Justice Silverman offered to allow him additional time to consult with counsel. (Pl. Tr. at 801-03). Mr. Roman acknowledged that he was pleading guilty because he was in fact guilty and not because he had been coerced to do so. (Pl. Tr. at 801-02).
Finally, the petitioner acknowledged that he was waiving his right to appeal, and when Justice Silverman asked whether he wished to speak with his attorney about the waiver, Mr. Roman stated that he already had. (Pl. Tr. at 803).
The petitioner agreed only with a part of the prosecutor's description of his role in the crime. (Pl. Tr. at 811). In his explanation, Mr. Roman initially indicated that he did not know that Edwin Castro had a gun during the robbery. (Pl. Tr. at 814). When Justice Silverman stated that he would not accept the plea, the petitioner conferred with counsel again. (Pl. Tr. at 814-15). Thereafter, his lawyer explained that Mr. Roman had been confused by the judge's question and intended to say that he knew that Mr. Castro had a weapon but that Mr. Castro had received it from another previously unidentified participant in the crime. (Pl. Tr. at 815-16). Mr. Roman then confirmed that he knew that Mr. Castro had a loaded gun that was to be used for security during the robbery. (Pl. Tr. at 816-18). He further stated that he knew the security guards were armed and that, if necessary, Mr. Castro would use the gun against them. (Pl. Tr. at 822-23).
After this colloquy, Mr. Roman acknowledged that he was giving up his rights to continue with his trial and to force the prosecution to produce the rest of its witnesses. (Pl. Tr. at 824-26). Justice Silverman again offered the petitioner the opportunity to speak with his attorney about this, but the petitioner indicated that he understood the rights he was waiving. (Pl. Tr. at 824- 25). The court then accepted the plea. (Pl. Tr. at 828).
At the sentencing proceeding, Mr. Roman, represented by new counsel, moved to withdraw his plea. (S. Tr. at 2). He contended that he was innocent and had pled only because of bad advice of his prior attorney. (S. Tr. at 3). The petitioner claimed that he was able to recite the facts of the crime only because he had heard the trial testimony and learned other details from his attorney. (S. Tr. at 3). Finally, he contended that the presentence report was erroneous where it noted that he had acknowledged his guilt and was remorseful. Mr. Roman attributed this statement to a miscommunication by the interpreter, and he maintained that he had only told the probation officer that he was sorry about what had occurred, not that he was guilty. (S. Tr. at 3-4).
Justice Silverman denied the motion without a formal hearing. (S. Tr. at 12). He noted that the petitioner's suggestion that he did not know he had the right to a jury trial was belied by the fact that he was in the midst of trial when he decided to plead. (S. Tr. at 12). The judge further observed that Mr. Roman gave a narrative of the facts of the crime without significant consultation with his trial attorney. (S. Tr. at 13). Justice Silverman also rejected the petitioner's claim that his statements to the probation were misinterpreted, noting that Mr. Roman had taken college courses that were given in English. (S. Tr. at 15-16).
Immediately prior to being sentenced, Mr. Roman renewed his motion to withdraw his plea. (S. Tr. at 39). He addressed the court himself, stating that he was innocent and that he pled guilty because he was "going through a depression process." (S. Tr. at 44). He claimed that his trial attorney told him to plead guilty after a conference with the judge:
When you spoke to him he told me that they were going to give me 50 years and put me in a depression process. That's when I said to him just do whatever you think is more convenient to do. But I am innocent of this.
(S. Tr. at 46). Finally, Mr. Roman again denied that he admitted his guilt to the probation officer who prepared the presentence report. He asserted that his English "is not so perfect" and that he speaks it only at a third or fourth grade level. (S. Tr. at 47-48).
Justice Silverman once more rejected each of the petitioner's arguments. He reiterated that, based on personal observation, he had found Mr. Roman's trial attorney to be highly competent. (S. Tr. at 39-41). Further, the court found that the petitioner had exhibited no signs of depression, but had testified in a clear, lucid, and unemotional manner. (Tr. at 44-45). Justice Silverman quoted the presentence report where the probation officer wrote that Mr. Roman "[a]cknowledg[ed] guilt in the instant offense, . . . stated he did it for monetary gain, . . . [and] expressed remorse." (S. Tr. at 46). The judge also rejected the petitioner's claim of being deficient in English, noting again that he had taken college level courses and was able to read documents in court that were written in English and respond appropriately. (S. Tr. at 48-50). Justice Silverman concluded by observing that he did not believe anything Mr. Roman had said. (S. Tr. at 50). The judge then proceeded with sentencing.
Mr. Roman appealed. His court-appointed attorney filed an Anders brief, identifying potential claims and stating that no non-frivolous issues could be presented for review. (Harris Aff., Exh. 3). The attorney concluded that Mr. Roman had waived his right to appeal, that his guilty plea had been validly entered, and that his sentence was not excessive since it was the minimum sentence available under the law. (Harris Aff., Exh. 3 at 7-9, 11-12). Mr. Roman then submitted his own pro se supplemental brief, contending that the plea and sentencing proceedings violated his due process rights. (Harris Aff., Exh. 4)
This procedure was authorized by the Supreme Court in Anders v. California, 386 U.S. 738, 744-45 (1967).
On May 6, 1999, the Appellate Division, First Department affirmed Mr. Roman's conviction, finding that his assigned attorney was correct in concluding that there were no non-frivolous issues for appeal and that the issues raised in the petitioner's pro se supplemental brief were without merit. People v. Roman, 261 A.D.2d 148, 148-49, 687 N.Y.S.2d 263, 263 (1st Dep't 1999). The New York Court of Appeals denied leave to appeal on July 29, 1999. People v. Roman, 93 N.Y.2d 1005, 695 N.Y.S.2d 751 (1999). Mr. Roman then filed the instant petition for a writ of habeas corpus.
Discussion
Mr. Roman's challenge to the guilty plea underlying his conviction consists of three related arguments. First, the petitioner contends that he received ineffective assistance of counsel in that his attorney coerced him into pleading guilty. Next, Mr. Roman argues that his plea was involuntary. Finally, he maintains that the trial court wrongly denied him a hearing on these issues. None of these claims has merit.
A. Assistance of Counsel
"If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases.'" Tollett v. Henderson, 411 U.S. 258, 266 (1973) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The two-pronged standard for judging the effectiveness of counsel articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Accordingly, a petitioner seeking to overturn a conviction based on a plea must demonstrate both that his attorney's representation fell below an objective standard of reasonableness and that he was prejudiced as a result of the lawyer's deficiencies.Strickland, 466 U.S. at 687. To satisfy the prejudice prong in the context of a guilty plea, the petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.
Mr. Roman has not met this standard. He has offered no evidence to rebut the findings of Justice Silverman concerning the competence of his trial counsel. He has not complained that his attorney was unprepared; indeed the trial was well underway when the petitioner decided to plead. Nor has the petitioner identified any specific respect in which counsel provided faulty advice; for example, he does not allege that he had any potential legal defense that his attorney failed to inform him about.
Mr. Roman's primary argument, as articulated at the sentencing proceeding and in his application for leave to appeal to the Court of Appeals, appears to be that his attorney pressured him into pleading, in part by emphasizing the lengthy sentence that he might receive if he continued with the trial and was found guilty. (S. Tr. at 46; Harris Aff., Exh. 7). But "[t]he fact that counsel, upon a realistic appraisal of the situation, may have strongly impressed his view upon the petitioner is not in itself improper, in the absence of any showing that [the petitioner's] will was overborne." Gunn v. Kuhlman, 479 F. Supp. 338, 343 (S.D.N.Y. 1979); see also Holmes v. Strack, No. 96 Civ. 5901, 1997 WL 232323, at *2 (S.D.N.Y. May 7, 1997); Meachem v. Keane, 899 F. Supp. 1130, 1141 (S.D.N.Y. 1995). Here, there is no evidence that Mr. Roman's will was "overborne." The petitioner himself had seen the strength of the evidence presented against him at trial. He then acknowledged that he was pleading guilty of his own free will and without compulsion from anyone else. (Pl. Tr. at 801-02). The petitioner's belated assertion of coercion by his trial attorney is wholly unsupported.
B. Voluntariness of the Plea
Mr. Roman also maintains that he should have been permitted to withdraw his plea because he entered it while "going through a depression process" when, in fact, he was innocent. (S. Tr. at 44). Justice Silverman, however, explicitly found that the petitioner was competent at the time of the allocution. (S. Tr. at 44- 45). Mr. Roman has presented no evidence to undermine that conclusion, let alone the clear and convincing proof required for a federal habeas corpus court to overturn the factual finding of a state tribunal. 28 U.S.C. § 2254 (e)(1).
Nor is Mr. Roman's claim of innocence persuasive. The petitioner relies on his initial testimony during the plea allocution when he seemed to indicate that he was unaware that Edwin Castro had a gun during the robbery. (Harris Aff., Exh. 4 at 16; Pl. Tr. at 814). However, after consulting with Mr. Roman, his attorney said that the petitioner meant that Mr. Castro did not have the weapon at first, but received it from the previously unidentified participant. (Pl. Tr. at 815-16). Mr. Roman confirmed this statement. He testified under oath that he saw this other person give the gun to Mr. Castro; he further admitted that he knew it was loaded. (Pl. Tr. at 816-17). Moreover, he acknowledged that Mr. Castro's role in the robbery was to provide "security" by preventing the armed guards from interfering. (Pl. Tr. at 817-18, 822-23). This testimony was more than sufficient to rebut the suggestion that Mr. Roman was coerced into pleading guilty despite his innocence. See Herring v. Artuz, 28 F. Supp.2d 852, 854 (S.D.N.Y. 1998) (guilty plea for intentional murder upheld despite petitioner's initial allocution that he did not intend shot to be fatal where he subsequently admitted intent to kill).
Indeed, even if Mr. Roman did subjectively believe himself to be innocent, that alone would not render the guilty plea involuntary. See North Carolina v. Alford, 400 U.S. 25, 37 (1970); Charnock v. Herbert, 60 F. Supp.2d 91, 101-02 (W.D.N Y 1999).
C. State Court Hearing
Finally, Mr. Roman complains generally that he was denied a hearing in state court concerning withdrawal of his plea. Yet, Justice Silverman not only gave the petitioner's attorney a full opportunity to argue the motion prior to sentencing, but he also allowed Mr. Roman himself to present the basis for his claims. (S. Tr. at 42-49). Justice Silverman's rejection of the petitioner's testimony as lacking in credibility does not constitute a denial of the right to be heard. Moreover, at no time has Mr. Roman identified what additional evidence he could have presented at any further hearing. There is no constitutional requirement that a state court engage in the empty exercise of conducting a hearing where no factual issues have been framed.
Conclusion
For the reasons set forth above, I recommend that Mr. Roman's application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Shira A. Scheindlin, Room 1050, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.