Munson v. Rock , 507 F. App'x 53 ( 2013 )

11-2943-pr(L)
Munson v. Rock
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER 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 32.1.1. 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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 7th day of January, two thousand thirteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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TIMOTHY MUNSON,
Petitioner-Appellant,
-v.- 11-2943-pr(L)
11-3516-pr(Con)
ROCK, SUPERINTENDENT, UPSTATE
CORRECTIONAL FACILITY, ANDREW CUOMO,
NEW YORK STATE ATTORNEY GENERAL,
Respondents-Appellees.
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FOR PETITIONER-APPELLANT: MICHAEL K. BACHRACH, Law Office of
Michael K. Bachrach, New York, New
York.
FOR RESPONDENTS-APPELLEES: LESLIE E. SWIFT, Senior Assistant
District Attorney, for Sandra
Doorley, Monroe County District
Attorney, Rochester, New York.
Appeal from the United States District Court for the
Western District of New York (Telesca, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment and order of the district court is
AFFIRMED.
Petitioner-appellant Timothy Munson appeals the
district court's judgment dated June 24, 2011, entered pursuant
to its decision and order dated June 23, 2011, denying his
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, as well as the district court's order dated July 29,
2011, denying his motion for reconsideration. We granted a
certificate of appealability on the following issue: "Whether
Appellant Munson is entitled to a writ of habeas corpus based on
his claim that he received ineffective assistance of counsel when
counsel advised him that he faced consecutive sentences of up to
50 years in prison." We assume the parties' familiarity with the
underlying facts, the procedural history of the case, and the
issues presented for review.
On April 19, 2004, Munson was indicted in New York
State Supreme Court, Monroe County, on two counts of robbery in
the first degree, one count of assault in the first degree, and
one count of criminal possession of a weapon in the second
degree, in violation of New York Penal Law §§ 160.15(1), (2),
120.10(4), 265.03(2), and 20.00. The underlying allegation was
that Munson had robbed an individual at gunpoint and shot the
individual during the commission of the robbery.
On January 18, 2005, the day jury selection was
scheduled to begin, Munson pled guilty to one count of assault in
the first degree. During the plea negotiations in the days
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preceding trial, the prosecution offered Munson sentences first
of 12 years and then of 10 years if he pled guilty, but he
rejected both offers. During these discussions, defense counsel
advised Munson that he faced as much as 50 years' imprisonment if
he were convicted of all charges at trial.
As jury selection was about to begin, defense counsel
informed the court that Munson had changed his mind and wanted to
plead guilty "in light of" two developments: First, a previously
unavailable witness had been arrested pursuant to a material
witness warrant and was thus available to testify. Second,
Munson had been recorded in a telephone conversation with his
brother from the Monroe County Jail apparently discussing making
an effort to interfere with the victim of his assault. Defense
counsel reiterated his earlier estimate that "if this case were
to go to trial and all that [sic] those factors were to come to
light, [and Munson] were to be convicted that I advised him my
guess was looking at a sentence in the range of forty to fifty
years."
The court subsequently conducted a thorough colloquy
and accepted Munson's guilty plea to assault in the first degree.
Pursuant to the plea offer, on March 15, 2005, Munson was
sentenced to 14 years' imprisonment.
The New York State Appellate Division, Fourth
Department, summarily affirmed Munson's conviction on June 6,
2008. People v. Munson, 858 N.Y.S.2d 645 (4th Dep't 2008).
Judge Robert S. Smith of the New York Court of Appeals denied his
application for leave to appeal on September 15, 2008. People v.
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Munson, 11 N.Y.3d 792 (2008). Munson subsequently filed a habeas
petition pursuant to 28 U.S.C. § 2254, which the district court
denied.
We review de novo the district court's denial of a
§ 2254 petition. See Hemstreet v. Greiner, 491 F.3d 84, 89 (2d
Cir. 2007). Pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), a federal court may not grant a
habeas petition on a "claim that was adjudicated on the merits"
in state court unless that adjudication: "(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).
When reviewing § 2254 habeas claims, a federal court
must determine "what arguments or theories supported or . . .
could have supported the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in
a prior decision of [the Supreme] Court." Harrington v. Richter,
131 S. Ct. 770, 786 (2011). For the purposes of AEDPA deference,
a summary disposition constitutes a disposition "on the merits."
Id. at 784-85; see also Davis v. Greiner, 428 F.3d 81, 88 (2d
Cir. 2005) (noting that where state courts summarily deny relief
on the merits, "we must focus on the ultimate decisions of those
courts, rather than on the courts' reasoning" (quoting Aeid v.
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Bennett, 296 F.3d 58, 62 (2d Cir. 2002)) (internal quotation
marks omitted)).
To prevail on a claim of ineffective assistance of
counsel, a petitioner must demonstrate that (1) counsel's
representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that,
but for counsel's errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984).
Munson contends that his counsel rendered ineffective
assistance by advising him that he faced a sentence of up to 50
years in prison, when in fact the maximum possible sentence was
only 25 years. It is well settled that an attorney's failure to
properly inform his client about his sentencing exposure may
constitute ineffective assistance. See, e.g., Jenkins v. Greene,
630 F.3d 298, 309 (2d Cir. 2010) ("[C]ounsel's failure to
properly advise a client of his sentencing exposure, such as the
possibility of consecutive sentences, may indicate
constitutionally ineffective assistance."); United States v.
Gordon, 156 F.3d 376, 380 (2d Cir. 1998) ("By grossly
underestimating [the defendant's] sentencing exposure . . .,
[counsel] breached his duty as a defense lawyer in a criminal
case to advise his client fully on whether a particular plea to a
charge appears desirable." (citation and internal quotation marks
omitted)).
We need not address whether defense counsel's advice
was reasonable, however, because even assuming arguendo that
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counsel's assistance fell below an objective standard of
reasonableness, Munson fails to show that the Appellate Division
unreasonably applied clearly established Supreme Court precedent.
In the context of a guilty plea, Strickland's prejudice prong
requires a defendant to demonstrate a reasonable probability
that, "but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial." Hill v. Lockhart,
474 U.S. 52, 59 (1985); accord United States v. Arteca, 411 F.3d
315, 320 (2d Cir. 2005).
Although Munson asserted in state court that he would
not have pled guilty had counsel advised him he was facing a
maximum sentence of 25 years rather than 50 years, we
nevertheless conclude that "fairminded jurists could disagree" as
to whether Munson demonstrated a reasonable probability that, but
for counsel's deficient advice, he would not have pled guilty.
See Harrington, 131 S. Ct. at 786.
The record demonstrates that Munson's decision to plead
guilty was triggered by the new developments in his case, not by
his counsel's advice regarding his sentencing exposure. Even
though defense counsel had advised Munson prior to January 18,
2005 that he faced a potential sentence of 50 years, Munson still
did not plead guilty at that time. Instead, Munson chose to
plead guilty only after two developments came to light on January
17, 2005. Specifically, Munson learned that a key witness had
been taken into custody pursuant to a material witness warrant.
Munson also learned that the government had discovered recorded
telephone conversations in which Munson had given his brother the
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victim's telephone number and address and asked him to "get [the
victim] some greenbacks so he don't come to the drop-off. Tell
him not to come to the party because some shit gonna happen at
the party." The recordings captured Munson telling his brother
that he needed to know whether the victim would testify so he
could decide whether or not to "cop out," i.e., plead guilty. As
defense counsel stated on the record, these developments "put[]
the whole case in a totally, totally different light just as
we're preparing to pick a jury."
Even if we might not have decided the issue in the way
that the Appellate Division did, we cannot conclude that it would
be impossible for the proverbial "fairminded jurist" to determine
that no prejudice occurred. See Harrington, 131 S. Ct. at 786.
Accordingly, we conclude that the Appellate Division did not
unreasonably apply clearly established Supreme Court precedent in
rejecting Munson's claim that his counsel provided
constitutionally ineffective assistance by advising him that he
faced a sentence of up to 50 years in prison.
We have considered Munson's remaining arguments and
conclude that they are without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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