Robles v. Lempke

DAVID ROBLES, Petitioner, v. JOHN LEMPKE, Respondent.

09-CV-2636 (AMD) (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 14, 2018

MEMORANDUM AND ORDER

ANN M. DONNELLY, United States District Judge,

David Robles, proceeding pro se, filed a habeas petition under 28 U.S.C. § 2254 challenging his state convictions for attempted murder in the first degree and related offenses, for which he was sentenced to an aggregate prison term of 40 years to life. In a Report and Recommendation dated September 9, 2011, Magistrate Judge James Orenstein recommended that the petition be denied. The Honorable Sandra Townes later adopted Judge Orenstein's Report and Recommendation in its entirety. (Report and Recommendations dated Sept. 9, 2011, Dkt. No. 35 ("R&R"), adopted by, Order dated Nov. 14, 2012, Dkt. No. 45.).¹ Almost six years later, in a motion pursuant to Federal Rule of Civil Procedure 60(b), Robles argues that one of his lawyers was ineffective for failing to inform him of a pre-indictment plea offer that included a 12-year determinate sentence. For the reasons set forth below, Robles' motion is denied.

I. Background

A. Factual History

At around 2 a.m. on March 3, 2003, two intruders repeatedly stabbed William Lavery and his brother in their third-floor Queens apartment.² (R&R at 1-2.) During the attack, the Laverysfought back by biting the intruders. (Id. at 2.) Shortly after the attack, a neighbor saw Robles, who lived one floor below the victims, covered in blood. (Id. at 2-3.) A police detective who interviewed Robles saw what looked like a bite mark on Robles' hand. (Id. at 3.) Robles confessed to his involvement in the attack—both in writing and in a videotaped statement. (Id.) In those statements, Robles said that the attack was part of an agreement with his landlord, who wanted to oust the Laverys from their apartment. (Id.) Days after the attack, William Lavery identified Robles from a photograph as one of the assailants. (Id. at 4.)

B. Procedural History

In June of 2004, following a jury trial before Justice Evelyn Braun of New York Supreme Court, Queens County, Robles was convicted of attempted murder in the first degree and 16 related offenses. (Id. at 6; Dkt. No. 6-2 at 50, 193.³) The court sentenced him to an aggregate prison term of 40 years to life. (R&R at 6.) The Appellate Division, Second Department unanimously affirmed the conviction, and the New York Court of Appeals denied leave to appeal. People v. Robles, 34 A.D.3d 849 (2d Dep't 2006), leave denied, 8 N.Y.3d 884 (N.Y. 2007). In May of 2007, Robles, proceeding pro se, filed a motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. (R&R at 8.) Justice Braun denied the motion in October of 2008, and the Appellate Division, Second Department denied leave to appeal in January of 2009. (Id. at 8-9.)

In June of 2009, Robles filed a habeas petition alleging 11 claims for relief. (Id. at 9, 10-11.) Among other things, he argued that his confession was involuntary and obtained in violation of his Miranda rights; that Lavery's identification of him was unduly suggestive andshould have been suppressed; and that his trial counsel was ineffective for various reasons. (Id. at 9, 40, 61-62.) In his ineffectiveness claim, Robles targeted the performance of Kathleen Gallo, the attorney who represented him at trial. (Id. at 61-62.) Before Gallo began representing Robles, attorney Tejender Baines served as his counsel. (Petitioner's Rule 60(b) Motion dated Aug. 14, 2017, Dkt. No. 55 ("Pet. Mot."), at 2 ¶ 2.) At Robles' request, the trial judge discharged Baines in early April of 2003.⁴ Robles' habeas petition, however, did not mention Baines, let alone allege that he was ineffective.

Judge Townes referred Robles' habeas petition to Magistrate Judge Orenstein for a report and recommendation. (Dkt. Entry dated 12/04/2009.) In September of 2011, Judge Orenstein issued a report in which he recommended that Robles' petition be denied. (R&R at 84.) In November of 2012, the Court adopted Judge Orenstein's report in its entirety and denied Robles' petition. (Dkt. No. 45.)

In July of 2012, Robles filed a second § 440.10 motion in state court, arguing for the first time that his first attorney—Baines—was ineffective because he did not inform him or Gallo that on March 19, 2003, the prosecution had made a pre-indictment plea offer that included a determinate sentence of 12 years. (Pet. Mot. at 1, 2, 17.) Robles learned about the offer on May 17, 2004 (the first day of trial), when an assistant district attorney mentioned the previous offeron the record. (Id. at 17, 54-55; Dkt. No. 6-2 at 50, 193.) By that point, the offer was off the table. (Pet. Mot at 18, 55.)

Justice Braun held a hearing on Robles' second § 440.10 motion at which Robles, Baines. Gallo, the prosecuting assistant district attorney, and a supervising assistant district attorney testified. (Id. at 13 ¶ 11.) Robles testified that he would have taken the pre-indictment plea offer had he known about it. (Id. at 33-34, 73.)

In October of 2014, Justice Braun issued an 86-page decision denying Robles' § 440.10 motion. (Id. at 13, 41.) Although Robles has annexed only three pages of that decision to his motion (id. at 26-27. 41), Justice Braun apparently concluded that Baines did not inform Robles or Gallo about the pre-indictment plea offer, or put the offer on the record. (Id. at 13, 26-27.) As a result, she determined that Baines' performance fell below an objectively reasonable level and that Robles therefore satisfied Strickland's first prong for establishing a claim of ineffective assistance of counsel. (Id. at 2, 27.)⁵ Justice Braun apparently concluded that Robles failed to meet Strickland's second prong, and that there was no prejudice because Robles would have rejected the plea offer had he known about it. (Pet. Mot. at 3 ¶ 5.)⁶ Consequently. Justice Braundenied the § 440.10 motion. (Pet. Mot. at 41.) Robles moved for a "Reargument/Rehearing," and Justice Braun denied the motion in December of 2014. (Id. at 13 ¶ 13.) Three months later, the Appellate Division, Second Department denied leave to appeal and, on May 18, 2015, the New York Court of Appeals also denied leave. (Id. at 13-14 ¶¶ 16-17.)

In papers filed on August 27, 2015, Robles asked the Second Circuit for leave to file a successive habeas petition. (Dkt. No. 56-1.) He argued that he was denied effective assistance of counsel based on Baines' mishandling of the prosecution's pre-indictment plea offer. (Id. at 8.) On September 21, 2015, the Second Circuit denied the motion because Robles failed to satisfy the requirements of 28 U.S.C. § 2244(b). (Dkt. No. 54.)

C. Rule 60(b) Motion

Almost two years later, on August 25, 2017, Robles filed this motion under Rule 60(b) to "challenge and test the legality" of Justice's Braun's denial of his second § 440.10 motion, and "to have her judgment/decision overturned on facts of law." (Pet. Mot. at 3 ¶ 6.) Robles purports to proceed under subsections (3), (4), and (6) of Rule 60(b). (Id. at 2 ¶ 3). These subsections, respectively, permit district judges to vacate judgments that are procured by "fraud" or are "void" or for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(3)-(4), (6).

Robles argues that Justice Braun's decision denying his second § 440.10 motion "is contrary to all state and federal standards set forth by the United States Supreme Court." (Pet. Mot. at 11.) In his view, these authorities dictate that "whenever there is a bona fide ineffective assistance of counsel, as in this instant case . . . , prejudice is automatically attached." (Id. (emphasis in original).) According to Robles, Justice Braun correctly concluded that Baines' performance was objectively unreasonable under Strickland's first prong, but erred in finding noprejudice under the second prong because he would have accepted the 12-year plea offer had he known about it. (Id. at 19.) Robles appears to believe that Justice Braun's decision was motivated at least in part by her personal animus against him. (Id. at 21-22.) His submission includes complaints that he has filed against the judge—including with the New York State Commission on Judicial Conduct—in which he accuses her of flouting state and federal law in her rulings against him. (Id. at 42-52.)

In September of 2017, New York's Attorney General opposed Robles' motion, arguing that it constitutes a successive habeas petition and warrants dismissal on that basis. (Declaration in Opposition to Petitioner's Motion Pursuant to FRCP 60(B) dated Sept. 14, 2017, Dkt. No. 56, ¶ 6.) Robles filed one reply declaration in October of 2017 and another in February of 2018. (Declaration in Opposition to the People's Opposition filed on Oct. 2, 2017, Dkt. No. 57 ("Pet. First Reply"); Declaration in Support for Relief from Judgement filed on Feb. 1, 2018, Dkt. No. 59 ("Pet. Second Reply").) Given Robles' pro se status, the Court considers both declarations and construes all of his submissions liberally, interpreting them to raise the strongest arguments that they suggest.

II. Discussion

A. Legal Standard

Federal Rule of Civil Procedure 60(b) provides that district courts may relieve parties from judgments and orders under specific circumstances. Though Rule 60(b) applies to habeas proceedings, a petitioner cannot use it "to avoid the restriction on second or successive habeas corpus petitions," and courts have "the obligation to characterize the request for relief properly, regardless of the label that the petitioner applies." Dent v. United States, No. 09-CV-1938 (BMC), 2013 WL 2302044, at *2 (E.D.N.Y. May 24, 2013); see also Fed. R. Civ. P.81(a)(4)(A); Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) ("Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only to the extent that it is not inconsistent with applicable federal statutory provisions and rules.") ...