O'Kane v. Kirkpatrick

DAVID O'KANE, Petitioner, v. ROBERT KIRKPATRICK, Respondent.

09 Civ. 05167 (HB)(THK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 15, 2011

REPORT AND RECOMMENDATION

(Pro Se)

TO: HON. HAROLD BAER, JR., UNITED STATES DISTRICT JUDGE.

FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.

Petitioner David O'Kane brings this action for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his July 8, 2004 conviction in New York State Supreme Court, New York County, upon his guilty plea, of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09). Petitioner was sentenced, as a second felony offender, to an indeterminate prison term of 3 to 6 years.¹

In a decision dated October 2, 2008, the Appellate Division, First Department affirmed Petitioner's conviction. See People v. O'Kane, 55 A.D.3d 315, 316, 865 N.Y.S.2d 61 (1st Dep't 2008), lv. denied, 11 N.Y.3d 928, 874 N.Y.S.2d 13 (2009). Petitioner iscurrently incarcerated at the Upstate Correctional Facility in Malone, New York.

In his undated pro se motion for habeas corpus relief, which was later clarified in an amended Petition, dated January 20, 2010, Petitioner argues that: (1) his indictment was defective because false statements were made in the felony complaint and the prosecutor knowingly presented false evidence to the grand jury; and (2) he received ineffective assistance of counsel because his attorney: (a) failed to investigate and impeach purportedly false statements in the felony complaint and pretrial proceedings; and (b) allowed Petitioner to plead guilty although the evidence against him was false. (See Petition for Writ of Habeas Corpus, dated Jan. 20, 2010 ("Pet."), at 1-3.) Respondent opposes the Petition, arguing that Petitioner's claim that the indictment is defective is procedurally barred and is not cognizable on federal habeas review. (See Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated May 28, 2010 ("Resp't Mem."), at 16-23.) Respondent further contends that Petitioner received meaningful assistance of counsel. (See id. at 23-26.)

The Petition was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C).Having carefully considered the parties' submissions and the state court record, for the reasons that follow the Court respectfully recommends that the Petition be denied and Petitioner's claims be dismissed with prejudice.

BACKGROUND

I. Factual Background

A. The Crime

On January 7, 2004, at approximately 3:20 P.M., Detective Ephrem Deshazo ("Deshazo"), who was working undercover as part of a field team in a buy-and-bust operation, was sitting in a car on the corner of 114^th Street and Lenox Avenue in Manhattan. (Pretrial Hearing, dated Apr. 29, 2004 ("H."), at 10-14.) Deshazo observed three people approach Petitioner and line up in front of him. (See id. at 17-21.) Petitioner handed each an object. (See id.) Deshazo could not see what the objects were, and could not see whether the three individuals gave Petitioner anything in exchange. (See id. at 18-19.)

Petitioner then headed north on Lenox Avenue and entered a supermarket on 116^th Street and Lenox Avenue. (See id. at 21-22, 24.) Deshazo followed Petitioner into the store. As he entered, Deshazo removed his police shield from his vest pocket so that it was visible to Petitioner. (See id. at 24-25.) Petitioner looked at Deshazo and said, "[O]fficer, this is not my jacket." (Id. at25.) Deshazo searched the jacket and recovered 50 ziplock bags of crack cocaine from the "right inside jacket pocket." (Id. at 25-27.) (emphasis added).

A short time later, Detective Glenn Puppa ("Puppa") arrived at the store. (See id. at 53-54.) Deshazo informed Puppa that he had recovered the bags of crack cocaine from Petitioner. (See id.) Puppa handcuffed Petitioner, escorted him outside, and searched him, recovering from Petitioner's pockets a wallet, a key, and 71 cents. (See id. at 54-58.) In response to Puppa's questions, Petitioner stated that the jacket that he was wearing did not belong to him, but the wallet and keys did. (See id. at 58, 60-63.)

B. Pretrial Hearing

At a Mapp/Huntley/Dunaway hearing on April 29, 2004, Petitioner introduced the jacket worn at the time of his arrest into evidence. Notably, the jacket had a left inside pocket, but no right inside pocket. Petitioner thus argued that Deshazo gave inconsistent testimony, since Deshazo testified at Petitioner's parole revocation proceeding that he recovered the drugs from the left inside jacket pocket, but had testified, both before the grand jury as well as at the instant hearing, that he recovered the drugs from the "right inside jacket pocket." (Id. at 78-80.)

The court found that whether Deshazo recovered the drugs from the left or right inside jacket pocket was of no "particular moment," because it was clear that Deshazo recovered drugs from a pocket of the jacket that Petitioner was wearing at the time of his arrest. (See id. at 92.)

The court denied Petitioner's motion to suppress the ziplock bags of crack cocaine and the statements made to Deshazo and Puppa. The court further held that Deshazo had probable cause to arrest Petitioner. (See id. at 90-92.)

C. Plea Proceedings

On May 5, 2004, Petitioner appeared before the court with his attorney. After an off-the-record conference with the attorney, the court announced that Petitioner wished to plead guilty. (Plea Hearing, dated May 5, 2004 ("P."), at 105-06.) The court informed Petitioner that he would plead guilty to Criminal Possession of a Controlled Substance in the Fourth Degree in exchange for a promised sentence of 3 to 6 years. (See P. at 105, 108.) The court also explained the terms of a cooperation condition, reminding Petitioner that there was no guarantee of a reduced sentence, and that the ultimate determination of whether the information provided by Petitioner was of value would be in the sole discretion of the prosecutor. (See id. at 108-09.) Petitioner then admitted to possessing over one ounce of crackcocaine on January 7, 2004. (See id. at 109-10.) He confirmed that no one had threatened him, or otherwise compelled him to enter his guilty plea. The court accepted Petitioner's plea and adjudicated him a second felony offender. (See id. at 110-13.)

Petitioner also plead guilty in an unrelated case to Criminal Sale of a Controlled Substance in the Fifth Degree, in exchange for a promised concurrent sentence of 2 ½ to 5 years, again, with the understanding that his sentence could be reduced on the basis of information provided to the prosecutor. (See id. at 111, 113-14.) Petitioner then admitted that he sold cocaine on April 13, 1999, in New York County. (See id. at 114.) The court accepted his plea and adjourned the case for sentencing. (See id. at 114-115.)

D. Sentencing Proceedings

Prior to the sentencing proceedings, Petitioner filed a pro se motion for inspection of the grand jury minutes, new counsel, and withdrawal of his guilty plea to fourth-degree criminal possession. On July 8, 2004, at the sentencing hearing, the court asked Petitioner why he should be allowed to withdraw his plea and be given a new attorney. (Sentencing Hearing, dated July 8, 2004 ("S."), at 2-5.) Petitioner argued that the officers lacked probable cause to stop and search him, and that he thought that if the court were to hear all of the evidence, it would have a "different outlook." (See S. at 5-6.)

The court reminded Petitioner that he "already pled guilty" and stated: "I don't have any reason to give you your plea back. You don't have an automatic right. You have to give me some reason. I don't have a reason." (Id. at 10.) Petitioner argued, in response, that his attorney coerced him into pleading guilty, stating that:

I got scared. I got two lawyers telling me, you blow your hearings, you are not going to win the trial, you might as well take the three-to-six, and I got scared and I took the three-to-six.

(Id. at 10-11.) The prosecutor objected, arguing that Petitioner wanted "three-to-six so bad," and that the plea itself was the result of "an extended negotiation" in which defense counsel convinced the prosecutor to lower his sentence offer from 4 ½ to 9 years to 3 to 6 years. Petitioner stated that he "didn't want three-to-six," and, again, pointed to the inconsistency in Deshazo's testimony, contending that the court did not make a credibility finding on that point at the pretrial hearing. (See id. at 12-14.) The court disagreed: "I believe that was something that came up during the hearing, but I made my determination." (Id. at 15.)

The court denied Petitioner's motion to withdraw his plea. (See id. at 16.) Petitioner was sentenced to concurrent, indeterminate prison terms of 3 to 6 years on the fourth-degree2004 drug possession count and 2 ½ to 5 years on the fifth-degree 1999 drug sale count.

II. Procedural History

A. Motion to Vacate Judgment of Conviction

On March 21, 2006, Petitioner filed a pro se motion, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction, contending that: (1) the indictment on the 2004 criminal possession charge was defective because it was based on false testimony; (2) the prosecutor knowingly presented false testimony to the grand jury; (3) there was no probable cause for his arrest; and (4) he was denied the effective assistance of counsel because his attorney failed to: (a) impeach Deshazo's pretrial statements and testimony regarding from which pocket he had recovered the drugs; and (b) seek a motion to dismiss the indictment on the ground that Deshazo provided false statements in the felony complaint and testified falsely before the grand jury. (See CPL § 440.10 Motion, dated Mar. 21, 2006, attached as Ex. D to Resp't Mem.)

On January 4, 2007, the New York County Supreme Court denied Petitioner's CPL § 440.10 motion. (See CPL § 440.10 Decision, dated ...