Carrion v. Smith , 365 F. App'x 278 ( 2010 )

09-3717-pr
Carrion v. Smith
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED ON
OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 11th day of February, two thousand ten.
Present:
PIERRE N. LEVAL,
CHESTER J. STRAUB,
RICHARD C. WESLEY,
Circuit Judges.
______________________________________________________
CARLOS CARRION,
Petitioner-Appellee,
- v. - No. 09-3717-pr
JOSEPH SMITH, Superintendent of Shawangunk Correctional Facility,
Respondent-Appellant.
______________________________________________________
FOR THE PETITIONER-APPELLEE: MARJORIE M. SMITH , Piermont, NY (on the brief,
Michael W. Martin, Laura DeRossi (Legal Intern),
Lani Medina (Legal Intern), Fordham University
School of Law, New York, NY).
FOR THE RESPONDENT-APPELLANT: MARY C. FARRINGTON , Assistant District Attorney
(on the brief, Morrie I. Kleinbart, Special Assistant
District Attorney), for Cyrus R. Vance, Jr., District
Attorney, New York County, New York, NY.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Respondent-Appellant appeals from an Opinion and Order of the United States District Court
for the Southern District of New York (Shira A. Scheindlin, Judge), dated August 12, 2009, granting
Petitioner-Appellee’s Petition for habeas corpus relief on the basis of ineffective assistance of
counsel, vacating Petitioner’s several convictions, with the exception of criminal possession of a
controlled substance in the first degree, and ordering that Petitioner’s term of imprisonment be
reduced from 125-years-to-life to ten-years-to-life. Carrion v. Smith, 644 F. Supp. 2d 452 (S.D.N.Y.
2009).
We assume the parties’ familiarity with the underlying facts and procedural history of the
case, as well as with the issues on appeal. Over seventeen years ago, Petitioner was charged in New
York state court with one count of criminal possession of a controlled substance in the first degree,
ten counts of attempted murder in the first degree, ten counts of attempted murder in the second
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. These
charges stemmed from Petitioner’s purchase of a large amount of cocaine and an ensuing gun fight
with the police. During his attempt to evade arrest, Petitioner fired his gun at the police officers,
shooting one of the officers in the arm. Petitioner was eventually shot several times by the officers
and was rendered a paraplegic as a result of the injuries he sustained that day.
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After he was indicted, the prosecution offered Petitioner a plea deal. Although the exact
terms of the plea offer are uncertain, it is clear that the offer would have allowed Petitioner to plead
guilty to criminal possession of a controlled substance, either in the first degree or second degree,
and allocute to the entire indictment in exchange for an indeterminate sentence of imprisonment of
ten years to life. Petitioner declined the offer and proceeded to trial. On October 19, 1993, the jury
convicted Petitioner of five counts of attempted murder and the remaining charges. On December
10, 1993, the state court sentenced Petitioner to an aggregate indeterminate prison term of 125 years
to life.
On February 8, 2004, Petitioner filed this Petition for habeas corpus relief alleging, inter alia,
ineffective assistance of counsel in connection with the advice his defense counsel provided him
regarding the prosecution’s plea offer. The District Court referred the matter to Magistrate Judge
Frank Maas, who held an evidentiary hearing on February 6, 2006. Petitioner testified at the hearing
that his defense counsel failed to advise him of his sentencing exposure if convicted at trial or
provide any other advice regarding the plea deal, other than stating its terms and that it was a “good”
offer. See Carrion v. Smith, 549 F.3d 583, 586 (2d Cir. 2008). Petitioner’s defense counsel testified
that he had no specific recollection regarding what he told Petitioner in connection with the plea
deal, but his general practice was to advise his clients of their sentencing exposure if convicted at
trial. See id. at 586-87, 588-89, 590. On January 25, 2007, the Magistrate Judge issued a Report
& Recommendation (“R&R”), concluding that Petitioner received effective assistance of counsel
in connection with the plea advice. In doing so, the Magistrate Judge credited the testimony of
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Petitioner’s defense counsel regarding his general practice over that of Petitioner regarding his
specific recollection of what his counsel had advised him. See id. at 590.
On February 22, 2008, the District Court rejected the findings in the Magistrate Judge’s R&R
and concluded that defense counsel was in fact ineffective because he did not adequately advise
Petitioner regarding the plea offer. Carrion v. Smith, 537 F. Supp. 2d 518 (S.D.N.Y. 2008).
Respondent appealed, and in an opinion dated December 8, 2008, we vacated the District Court’s
decision, reasoning that “in determining that [defense counsel] did not advise [Petitioner] of his
sentencing exposure, [the District Court] necessarily credited [Petitioner’s] testimony.” Carrion,
549 F.3d at 588. We held that this was error because the District Court made its “own credibility
findings contrary to those made by the magistrate judge without hearing the witnesses [it]self.” Id.
at 590. We explained, “For the district court, upon remand, to adhere to its own credibility
conclusions, as opposed to those found by the magistrate judge, the district court would need to
conduct a renewed hearing to appraise the credibility of the witnesses.” Id. Accordingly, we vacated
the District Court’s judgment and remanded for it “either to enter judgment in accordance with the
magistrate judge’s findings, or to conduct a new hearing as a basis for whatever findings the court
may then make.” Id.In accordance with our remand instructions, the District Court held an evidentiary hearing
where several witnesses testified, including Petitioner and his defense counsel. The District Court
ultimately concluded that defense counsel rendered ineffective assistance of counsel by not providing
Petitioner with adequate advice regarding the plea deal. Respondent timely appealed to this Court.
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“We review a district court’s decision to grant or deny a habeas petition de novo and its
findings of fact for clear error.” Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007), cert. denied,
128 S. Ct. 962 (2008). Under Strickland, to establish ineffective assistance, Petitioner “must (1)
demonstrate that his counsel’s performance fell below an objective standard of reasonableness in
light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel’s
allegedly deficient representation.” Carrion, 549 F.3d at 588 (internal quotation marks omitted).
“To satisfy the first prong–the performance prong–the record must demonstrate that ‘counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “Such errors include ‘omissions [that] cannot be explained
convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness,
ineptitude, or laziness.’” Id. (quoting Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003)).
In the context of a defense counsel’s advice surrounding a plea offer, “[a] lawyer shall
explain a matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation.” Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (internal
quotation marks omitted) (quoting Model Rules of Professional Conduct Rule 1.4(b) (1995)). “The
decision whether to plead guilty or contest a criminal charge is ordinarily the most important single
decision in a criminal case . . . [and] counsel may and must give the client the benefit of counsel’s
professional advice on this crucial decision.” Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996)
(internal quotation marks omitted) (quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense
of Criminal Cases (1988)), cert. denied, Keane v. Boria, 521 U.S. 1118 (1997). “As part of this
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advice, counsel must communicate to the defendant the terms of the plea offer, and should usually
inform the defendant of the strengths and weaknesses of the case against him, as well as the
alternative sentences to which he will most likely be exposed.” Purdy, 208 F.3d at 45 (internal
citations omitted). “[K]nowledge of the comparative sentence exposure between standing trial and
accepting a plea offer will often be crucial to the decision whether to plead guilty.” U.S. v. Gordon,
156 F.3d 376, 380 (2d Cir. 1998) (per curiam) (citation and internal quotation marks omitted).
To satisfy the prejudice prong, “[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. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. “[A] significant sentencing disparity [between what is
provided for under a plea agreement and the sentence imposed after trial,] in combination with
defendant’s statement of his intention [that he would have pled guilty] is sufficient to support a
prejudice finding.” Pham v. U.S., 317 F.3d 178, 182 (2d Cir. 2003); see also Mask v. McGinnis, 233
F.3d 132, 141 (2d Cir. 2000), cert. denied, 534 U.S. 943 (2001).
“AEDPA, however, requires more than a conclusion that counsel’s performance was
constitutionally inadequate.” Carrion, 549 F.3d at 591 n.4; see also Schriro v. Landrigan, 550 U.S.
465, 473 (2007). “[P]etitioner must identify some increment of incorrectness beyond error in order
to obtain habeas relief. That increment, however, need not be great; otherwise habeas relief would
be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Jones
v. West, 555 F.3d 90, 96 (2d Cir. 2009) (citations and internal quotation marks omitted).
Nevertheless, “because the Strickland standard is a general standard, a state court has even more
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latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v.
Mirzayance, 129 S.Ct. 1411, 1420 (2009).
Here, it is clear that it would be an unreasonable application of Strickland to reject
Petitioner’s claim assuming that (1) defense counsel failed to advise him of his sentencing exposure
if convicted at trial, and (2) had Petitioner known of his sentencing exposure, he would have
accepted the plea deal. Indeed, Petitioner ultimately received a sentence of 125 years to life after
being convicted at trial, and defense counsel admitted that he recognized at the time of representation
that “barring some miracle from God,” Petitioner would be convicted at least of the drug charge,
which would alone carry a minimum of fifteen years to life, more than the ten years to life offered
in the plea deal. Under these circumstances and assuming those facts, the legal determination that
habeas relief should be granted is correct. See Pham, 317 F.3d at 182; Mask, 233 F.3d at 141; Purdy,
208 F.3d at 44-45, 47; Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999); Gordon, 156 F.3d
at 380; Boria, 99 F.3d at 496-97.
Respondent argues, however, that the District Court’s factual findings underlying its
conclusion that defense counsel was ineffective are clearly erroneous. “A finding of fact is not
clearly erroneous unless ‘the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Krieger v. Gold Bond Bldg. Prods., a Div. of Nat’l
Gypsum Co., 863 F.2d 1091, 1098 (2d Cir. 1988) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)); see also Drake v. Portuondo, 553 F.3d 230, 239-40 (2d Cir. 2009).
“In reviewing findings for clear error, we are not allowed to second-guess either the trial court’s
credibility assessments or its choice between permissible competing inferences.” Amalfitano v.
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Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008) (internal quotation marks omitted) (quoting Ceraso
v. Motiva Enters., LLC, 326 F.3d 303, 316 (2d Cir. 2003)); see also Anderson v. City of Bessemer
City, 470 U.S. 564, 575 (1985).
Respondent argues that with respect to Strickland’s deficiency prong, the District Court
committed clear error in finding that defense counsel did not advise Petitioner as to his sentencing
exposure if convicted at trial. We disagree because the District Court’s finding in this respect is
based upon evidence in the record and its own credibility determinations. Specifically, the District
Court credited Petitioner’s testimony on this topic, including that defense counsel did not advise him
that the minimum sentence for the drug charge was fifteen years to life and that his conviction on
that count was virtually inevitable. Carrion, 644 F. Supp. 2d at 460, 467. Although the record
reveals that defense counsel “remembered, in general terms, a discussion ‘as to the substantial
sentence that [Petitioner] could receive if he were convicted,’” id. at 461 (quoting transcript available
at JA 270-71), defense counsel testified repeatedly that he had no specific recollection of his
discussions with Petitioner concerning the sentencing ranges for the various counts with which
Petitioner was charged, id. Defense counsel could only testify to his general practice. The District
Court recognized that defense counsel’s general practice testimony was probative, particularly in
light of the significant lapse of time since the representation, but found Petitioner’s testimony more
credible. Carrion, 644 F. Supp. 2d at 467 (“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.”); see also Cullen, 194 F.3d at 407 (explaining that although a
habeas petitioner’s testimony is often self-serving, “it ought not to be rejected solely on this
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account”). At bottom, the District Court credited Petitioner’s testimony regarding his specific
recollections over that of defense counsel’s testimony regarding his general practice. There is no
basis in this record to disturb this credibility finding. See, e.g., Anderson, 470 U.S. at 575 (“[W]hen
a trial judge’s finding is based on his decision to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by
extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”).
With respect to Strickland’s prejudice prong, Respondent argues that the District Court
committed clear error in finding that “had [Petitioner] known of the consequences of going to trial,
he would have accepted the plea offer” and that he was not influenced in deciding not to plead guilty
by the prospect of a recovery in a civil suit against the City. Carrion, 644 F. Supp. 2d at 460, 471-
72; see also Cullen, 194 F.3d at 405 (“the determination of the likelihood that [the petitioner] would
have accepted the plea bargain if he had been fully informed of its terms and accurately advised of
the likely sentencing ranges under the plea bargain and upon conviction after trial was, like all
predictions of what might have been, a factual issue, albeit a hypothetical one.”). But this finding
is also supported by the record and based on the District Court’s credibility determinations. Carrion,
644 F. Supp. 2d at 471. Accordingly, the District Court’s findings are not clearly erroneous. See,
e.g., Anderson, 470 U.S. at 573-74 (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).1
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Respondent also argues that the District Court erred in concluding that, under the
circumstances of this case, defense counsel’s failure to advise Petitioner to take the plea deal was
constitutionally deficient, even if defense counsel had advised Petitioner regarding his sentencing
exposure if convicted at trial. Carrion, 644 F. Supp. 2d at 468-70. We need not reach this question
because, as explained, we hold that the District Court did not commit clear error in finding that
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Finally, we hold that the District Court did not exceed its allowable discretion in crafting a
remedy. “We review the district court’s choice of [a habeas] remedy . . . for an abuse of discretion.”
Gordon, 156 F.3d at 381 (explaining that district courts have “considerable discretion in fashioning
a remedy” where a Sixth Amendment violation occurred (quoting United States v. Day, 969 F.2d 39,
47 (3d Cir. 1992)); see also Hilton v. Braunskill, 481 U.S. 770, 775 (1987). “[W]here there has been
a finding of ineffective assistance of counsel in a [habeas] proceeding, the remedy ‘should be tailored
to the injury suffered from the constitutional violation and should not unnecessarily infringe on
competing interests,’” Gordon, 156 F.3d at 381 (quoting United States v. Morrison, 449 U.S. 361,
364 (1981)). “That remedy is one that as much as possible restores the defendant to the
circumstances that would have existed had there been no constitutional error.” U.S. v. Carmichael,
216 F.3d 224, 227 (2d Cir. 2000).
Here, Petitioner was sentenced to a much harsher term of imprisonment as a result of not
accepting the plea deal (125 years to life). In fashioning its remedy, the District Court focused on
reducing Petitioner’s sentence to that contemplated by the original plea offer (ten years to life).
Respondent argues that this was an abuse of discretion because the terms of the plea offer required
that Petitioner allocute to the entire indictment. It argues that the court was required to vacate
Petitioner’s convictions in their entirety, to allow him to plead guilty to criminal possession in the
second degree and to allocute to the remaining charges of the indictment, and only then could
Petitioner be appropriately resentenced. We disagree. Although there may be circumstances where
defense counsel did not advise Petitioner of his sentencing exposure if convicted at trial, and it
would be unreasonable to hold that, under the circumstances of this case, this failure does not
amount to ineffective assistance of counsel.
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a court’s refusal to implement conditions of a plea bargain that remain easy to perform would
constitute an abuse of discretion, the facts of this case do not support such a conclusion. The remedy
thus “restores the defendant to the circumstances that would have existed had there been no
constitutional error,” Carmichael, 216 F.3d at 227, but concomitantly “[does] not unnecessarily
infringe on competing interests,” Gordon, 156 F.3d at 381.
We do note that the District Court, sua sponte, ordered that Petitioner “immediately be
summoned to the Parole Board to determine whether he is eligible for release . . . .” Carrion, 644
F. Supp. 2d at 474. We do not read that aspect of the District Court’s decision to direct that
Petitioner be entitled to procedures or treatment with respect to the decision of the Parole Board
other than that required under New York law. See N.Y. EXEC . LAW § 259, et seq. (McKinney’s
2009).
Furthermore, while the District Court stated that the Parole Board will determine Petitioner’s
eligibility for parole “in light of his newly imposed sentence,” Carrion, 644 F. Supp. 2d at 474, we
do not read this aspect of the court’s order to abrogate, or in any way alter, the factors that the Parole
Board is entitled to consider in adjudicating the parole decision of an eligible inmate. Under New
York law, the Parole Board will have access to Petitioner’s criminal record and the circumstances
of his crime, as well as various other record materials that will allow it to make an informed decision
as to whether, and when, the Petitioner is fit for parole. See N.Y. EXEC . LAW § 259, et seq.
Although Petitioner is eligible for release, the decision to actually grant him parole remains within
the discretion of the Parole Board. Inmates in New York have no liberty interest in parole because
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under New York law there is no entitlement to release. See Barna v. Travis, 239 F.3d 169, 171 (2d
Cir. 2001).
We have considered Respondent’s remaining arguments on appeal and find them to be
meritless. Accordingly, we AFFIRM the District Court’s Opinion and Order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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