Hoffman v. Herbert Doc.

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Case 1:02-cv-00605-HBS Document 28 Filed 07/07/2006 Page 1 of 13

UNITED STATES DISTRICT COURT

ANDREW J. HOFFMAN,
Petitioner,

Hon. Hugh B. Scott

(CONSENT)
VICTOR HERBERT,
Decision
Respondent. &
Order

Before the Court is Petitioner’s Habeas Corpus Petition (Docket No. 1). Parties

consented to proceed before the undersigned as Magistrate Judge (Docket No. 11, April 7, 2003).

This Court rendered two Decisions and Orders denying the Petition (Docket Nos. 12, 21), in

relevant part, because petitioner failed to assert an ineffective assistance of counsel claim (for not

being informed of a plea offer) (Docket No. 21, Order at 5-15). A certificate of appealability was

granted on February 10, 2005 (Docket No. 24), and the United States Court of Appeals for the

Second Circuit vacated the judgment denying the Petition and remanded this proceeding,

Hoffman v. Herbert, No. 05-0735, Summary Order of Apr. 10, 2006, 2006 U.S. App. LEXIS

9447. This Summary Order became a mandate on June 24, 2006 (Docket No. 27). See Fed. R.

App. P. 41.

BACKGROUND

Familiarity with the facts from the prior decisions (Docket Nos. 12, 21) is presumed.

On July 1, 1994, petitioner was involved in a high speed chase in Salamanca that led to

the death of two persons and the injury of two others. On August 12, 1994, the Cattaraugus

Dockets.Justia.com
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County Grand Jury handed down Indictment No. 94-99, charging petitioner with numerous

violations of the New York Vehicle & Traffic Law and Penal Law, the most serious charge being

two counts of manslaughter in the second degree, Penal Law § 125.15, Class C felonies.

First Indictment and Plea Offer

The testimony at the December 9, 2004, evidentiary hearing (see Docket No. 26, Tr. of

Dec. 9, 2004, hearing; Docket No. 14) concerned the September 6, 1994, conference before

Judge Himelein. During that conference, the court clerk noted that the prosecution made a plea

offer of “two D felonies and two E felonies,” a one-level reduction in the severity of the charges,

and noted that the “Court commits to sentence of 2 - 7 years.” (R36a1; see also Pet’r Ex. 2, Sept.

6, 1994, minute entry..) Petitioner never received this offer. Judge Himelein testified that the

plea offer and sentence commitment were not placed on the record (Docket No. 26, Tr. at 46; see

Pet’r Ex. 2, Sept. 6, 1994, minute entry). Cattaraugus County chief clerk Sandra Wogick

testified that she (or someone from her office) would be present in chambers during conferences

with prosecutors and defense counsel, similar to this conference (Docket No. 26, Tr. at 8). She

testified that she, Judge Himelein, then-Cattaraugus County District Attorney Michael Nevins,

and defense attorney Mark O’Connor, were present during that conference (id., Tr. at 18). Others

testified that other defense attorneys were present (but not participants in the conference) in the

chambers during that conference (id., Tr. at 23, 28 (O’Connor), 43-45 (Himelein)).

Defense counsel O’Connor testified that he did not relay to petitioner the initial plea offer

(id., Tr. at 24). He stated that he believed the discussion regarding a plea and sentence was not a

1
“R” refers to the record of criminal proceedings in state courts. “T” refers to the actual
trial transcripts in the criminal prosecution.

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formal plea offer and thus did not relay it to his client (id., Tr. at 27-28, 29). He stated that he

was not familiar with the practice and apparent informality in Cattaraugus County Court (id., Tr.

at 27-28). Former District Attorney Nevins testified that a plea offer was made, but not in

writing and he did not recall making it on the record (id., Tr. at 54, 55). O’Connor and Nevins

each testified that O’Connor did not accept the plea offer between September 6 and

November 28, 1994 (id., Tr. at 24, 26 (O’Connor), 54-55 (Nevins)). Nevins stated that he had no

doubt that a plea bargain offer was made on September 6. Petitioner testified that he learned for

the first time of the 2a to 7-year plea offer on October 5, 1995, at the first day of his trial (id.,

Tr. at 59-60). He testified that, had he known of this initial plea offer, he would have accepted it.

He then testified that, on the advice of counsel, he rejected the later offer of 5 to 15 years (id., Tr.

at 58, 59).

Respondent later reviewed the record from the evidentiary hearing and argued that

petitioner did not establish that a plea offer was actually made. The court clerk recorded in the

minutes the offer, but Judge Himelein’s recollection of the conference was incomplete and the

offer, if it was made, was made so informally and not on the record, as not to be legally binding

or a firm offer (Docket No. 16, Resp’t Memo. at 7-13). Petitioner’s original trial counsel was

unequivocal that no offer was made (id. at 17). Respondent concludes that if an offer was made,

it was not made on the record or made firm or clear enough to have the judge commit to a

sentence (id. at 15, 17). From the disparity between the offered plea and the sentence petitioner

would have faced under the first indictment and the similar disparity between the plea and

sentence under the second, more severe indictment, respondent concludes that petitioner is not

credible in stating that he would have accepted the plea offer to the first indictment (id. at 19-20).

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Second Indictment and Second Plea Offer

Petitioner’s criminal trial counsel moved to dismiss the indictment, which the court

granted on November 28, 1994, with leave for the prosecution to re-present to the grand jury.

(R52a-54a.) On December 2, 1994, the grand jury handed down Indictment No. 94-140,

charging petitioner with the offenses alleged in No. 94-99 and two counts of murder in the

second degree, Penal Law § 125.25(2), Class A-I felonies.

On October 5, 1995, when the trial was to commence, but prior to jury selection, the

prosecution made a second plea offer to petitioner of “two C’s and two D felonies,” or a five to

fifteen-year term, which was a two-level reduction in the severity of the charges. (T2.) During a

colloquy with the court, petitioner’s trial counsel remarked that he did not recall a prior plea offer

from the prosecution and that he did not communicate an offer to his client, reporting that

petitioner would have accepted a D felony at the time of the first plea offer. (T9-10, 11, 12.)

Petitioner at the federal evidentiary hearing later testified that, when he first heard the five-to-

fifteen-year offer, he conferred with O’Connor and petitioner was willing to accept this offer as

well. O’Connor, however, advised him not to accept that offer, claiming that it was too much

time. (Docket No. 26, Tr., at 58-59; see Docket No. 1, Pet., Attachment VII, Record on Appeal

at 30, Hoffman Aff. ¶¶ 8, 9.)

Trial, Post-Conviction Motion Practice, and Appeal

Petitioner was tried and convicted on all charges under the second indictment. Petitioner

was sentenced to twenty-five years to life imprisonment. (R2865.)

Petitioner then moved to set aside the judgment of conviction pursuant to N.Y. CPL

§ 440.10. The trial court denied this motion. People v. Hoffman, 173 Misc.2d 529,

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662 N.Y.S.2d 231 (County Ct. Cattaraugus County 1997). There, the court declined to accept as

true the petitioner’s trial counsel’s assertion that he failed to communicate the first plea offer to

petitioner. Id. Petitioner appealed this decision to the Appellate Division, Fourth Department,

which affirmed. People v. Hoffman, 256 A.D.2d 1195, 685 N.Y.S.2d 142 (4th Dep’t 1998), leave

to appeal denied, 93 N.Y.2d 874, 689 N.Y.S.2d 436, cert. denied, 528 U.S. 863 (1999).

Petitioner then appealed from the judgment, which the Fourth Department affirmed. People v.

Hoffman, 283 A.D.2d 928, 725 N.Y.S.2d 494 (4th Dep’t), leave to appeal denied, 96 N.Y.2d 919,

732 N.Y.S.2d 636 (2001).

Habeas Petition

Petitioner filed this Habeas Petition on August 23, 2002 (Docket No. 1). This Court

rendered an Order (Docket No. 12) which denied most of the grounds raised in the Habeas

Petition, but granted an evidentiary hearing on the question of whether petitioner’s defense

counsel had advised him of the earlier plea offer. See Boria v. Keane, 99 F.3d 492, 495 (2d Cir.

1996) (hearing held on petitioner’s motion to vacate judgment wherein defense counsel testified

that he did not discuss plea with petitioner); see also Sparman v. Edwards, 154 F.3d 51, 52 (2d

Cir. 1998). At the conclusion of that hearing, the Court rendered a Decision dismissing the

ineffective assistance of counsel claim petitioner raised based upon defense counsel’s failure to

convey a plea offer (Docket No. 21), dismissing the last remaining claim.

Appeal

The Second Circuit vacated this decision and remanded for further proceedings, Hoffman,

No. 05-0735, supra, Summary Order of Apr. 10, 2006. The court held that Strickland v.

Washington, 466 U.S. 668 (1984), furnished the clearly established federal law in defense

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counsel’s ineffectiveness, and that the clearly established law need not be particularized to the

type of omission in counsel’s performance, Hoffman, No. 05-0735, supra, Summary Order at 2,

citing Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001); see also Williams v. Taylor,

529 U.S. 362, 391 (2002) (Stevens, J., for the Court). The Circuit Court ruled that

“Because the failure of petitioner’s counsel to communicate the state’s offer to

petitioner plainly constituted performance below reasonable professional

standards, the only question on remand for the district court to consider is whether

there is a reasonable probability that, had Hoffman been informed of and

adequately counseled regarding the plea offer, he would have accepted it. See

Strickland, 446 U.S. at 668. In making this factual determination, the district

court should consider all the circumstances under which that decision would have

been made and may take any additional testimony or other evidence that it deems

relevant. It need not defer to any implicit or explicit rulings made by the state

courts in this case, since ‘the material facts were not adequately developed’ for a

reasonable application of Strickland by the state courts.”

Hoffman, No. 05-0735, supra, Summary Order at 2-3 (quoting Morris v. Reynolds, 264 F.3d 38,

47 (2d Cir. 2002)). The record before this Court is sufficient so as not to require additional

evidence or briefing.

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DISCUSSION

I. Ineffective Assistance of Counsel in Advising on Plea Offer

The remaining claim stems from the failure of trial counsel to relay a plea offer, with the

sole issue whether petitioner would have accepted the plea offer had he received it and was

counseled about it.

A. Standard

The standard for ineffective assistance of counsel was set forth in Strickland v.

Washington, supra, 466 U.S. at 687, that the attorney’s performance was deficient by virtue of

serious errors and these deficiencies prejudiced petitioner’s defense. On review, there is a strong

presumption that counsel’s conduct falls within “the wide range of reasonable professional

assistance,” Strickland, supra, 466 U.S. at 689. To establish an ineffective assistance of counsel

claim, “a defendant must show that counsel’s representation ‘fell below the objective standard of

reasonableness’ based on ‘prevailing professional norms’ and that ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’” Eze v. Senkowski, 321 F.3d 110, 123 (2d Cir. 2003) (quoting Strickland, supra,

466 U.S. at 688, 694). A “reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, supra, 466 U.S. at 694. Under AEDPA, this analysis is

a mixed question of law and fact under 28 U.S.C. § 2254(d)(1), “which requires the habeas court

to determine whether the state court’s decision ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States.’” Shiwlochan v. Portuondo, 345 F. Supp. 2d 242, 258 (E.D.N.Y. 2003) (Report &

Recommendation, Go, Mag. J.), adopted, 345 F. Supp. 242 (E.D.N.Y. 2004), aff’d 150 Fed.

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Appx. 58 (2d Cir. 2005) (summary order); see Overton v. Newton, 295 F.3d 270, 277 (2d Cir.

2002).

The prejudice prong of Strickland can be established here if there is a reasonable

probability that petitioner relied upon defense counsel’s ineffective assistance that affected the

outcome of the proceedings, Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); United

States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998); see Hill v. Lockhart, 474 U.S. 52, 57, 58-59

(1985) (Docket No. 9, Pet’r Memo. of Law at 25-26).

B. First Plea Offer--Two to Seven Years

On the first plea offer defense counsel failed to relay to petitioner, explaining why he

failed to mention the plea offer because the attorney questioned whether the offer was actually

made (T10). Petitioner contends that the state court applied the wrong standard for evaluating

his claim in his CPL 440.10 motion. Instead of assessing the reasonableness of defense counsel’s

actions, the trial court determined whether petitioner ultimately could have received the remedy

he sought, acceptance of a plea under a superseded indictment. By not applying the applicable

standard, the state court made an unreasonable application of federal law as determined by the

United States Supreme Court. (Docket No. 9, Pet’r Memo. of Law, at 22-25, citing Williams v.

Taylor, 529 U.S. 362, 413 (2000).) See Hoffman, No. 05-0735, supra, Summary Order at 3; see

also Shiwlochan, supra, 345 F. Supp. 2d at 260 (finding state CPL 440 court’s determination of

facts was unreasonable in not finding that defense counsel had not relayed plea offer to

petitioner).

The United States Supreme Court has extended the Strickland ineffective assistance

analysis to claims arising from the plea process. See Hill v. Lockhart, 474 U.S. 52, 57, 58-59

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(1985) (prejudice requirement is satisfied if petitioner shows that there is a reasonable probability

that but for counsel’s error he would not have pleaded guilty and would have insisted upon a

trial); see also United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (per curiam); Boria v.

Keane, 99 F.3d 492, 496-97 (2d Cir. 1996) (holding attorney’s advice on plea as constitutionally

required). As noted by the Second Circuit on remanding this case, Strickland itself provides the

applicable standard and the precise professional failure need not be enunciated by the Supreme

Court to be the clearly established legal standard, Hoffman, No. 05-0735, supra, Summary Order

at 2; see Williams v. Taylor, supra, 529 U.S. at 391 (Strickland test requires a case-by-case

examination of the evidence); cf. Boria, supra, 99 F.3d at 496-97.

Defense counsel Mark O’Connor failed to relay to petitioner the first plea offer,

explaining that he failed to mention the plea offer because O’Connor questioned whether the

offer was actually made. The testimony from the evidentiary hearing (as described more fully in

the Background, supra, Docket No. 13; see also Docket Nos. 14, 26) indicates that a plea offer

was made during the September 6, 1994, conference but defense counsel did not recognize it as

such, thus O’Connor did not convey the plea offer to petitioner. Judge Himelein and then-

District Attorney Nevins testified that a plea offer of 2 to 7 years was made to O’Connor in the

presence of the court clerk. The court clerk testified that she entered the minutes on this case

indicating that such an offer was made.

This case presents a more egregious situation than the failure of counsel to advise his

client that occurred in Boria. See Shiwlochan, supra, 345 F. Supp. 2d at 260, 261. Here, defense

counsel did not bother to inform his client of the existence of a plea offer--however informally it

may have seemed to that counsel. Nor did defense counsel confirm whether a plea offer was

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made, or seek to place the colloquy on the record (although the offer was noted in the court’s

minutes) or otherwise formalize the offer. This also distinguishes this plea offer under the first

indictment from the subsequent offer under the second indictment, where petitioner learned of

the offer in open court but was advised against accepting it by defense counsel (see Docket

No. 12, Order at 11).

C. Prejudice Prong

On the issue of whether there is a reasonable probability that, had Hoffman been

informed of and adequately counseled regarding the plea offer, he would have accepted it, the

Court can rely upon the papers submitted earlier by the parties (Docket No. 9, Pet’r Memo. at 25-

26, 30-31; Docket No. 162, Resp’t Memo., Dec. 22, 2004, at 18-20; Docket No. 17, Resp’t

Memo. of Law, Jan. 31, 2003, at 25) and not seek additional briefing or submissions, see also

Hoffman, No. 05-0735, supra, Summary Order at 3 (authorizing this Court to take additional

evidence deemed necessary to resolve remaining issue).

Petitioner contends that a significant sentencing disparity between the sentence that

effective counsel could have procured and the actual sentence imposed provides objective

evidence of prejudice to him for his defense counsel’s failure to tell him of the initial plea offer

(Docket No. 9, Pet’r Memo. at 26, 30), see Shiwlochan, supra, 345 F. Supp. 2d at 263-64 (citing

cases). Petitioner consistently stated that he would have accepted the initial plea offer (id. at 30,

31; see Docket No. 26, Tr. at 58). Petitioner also testified that he would have accepted the

second plea offer under the later indictment but was advised against it by O’Connor (Docket

No. 26, Tr. at 58).

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Respondent refiled this memorandum due to ECF filing error, Docket No. 19.

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Respondent argues that petitioner bears the burden of proving, with objective evidence,

that he would have accepted the 2a-7 years offer. Respondent contends that petitioner testified

on December 2004 that he would have accepted the lesser sentence but admitted that he rejected

the second offer of 5-15 years when facing a more severe penalty (25 years to life) if he went to

trial (Docket No. 16, Resp’t Memo. at 18-19; Docket No. 26, Tr. of Dec. 9, 2004, hearing at 57-

59). Respondent argues that the Court must evaluate the likelihood of acceptance of a plea offer

at the time the offer was made (Docket No. 16, Resp’t Memo. at 20; Docket No. 17, Resp’t

Memo. at 25), see Marel v. Lord, No. 99 Civ. 9968, 1998 U.S. Dist. LEXIS 351, at *12-13

(S.D.N.Y. Jan. 16, 1998). Since petitioner initially faced a top charge of a class D felony, with a

maximum sentence of 2-7 years, respondent concludes that petitioner, had he been told the 2a-7

year offer, would not have accepted it (Docket No. 16, Resp’t Memo. at 20). Reviewing the

minimum sentences offered or possible, respondent argues that the difference between the 2a

years offered and a 5-year sentence if petitioner was convicted under the first indictment is

minimal and petitioner later rejected a greater disparity in minimum sentences (turning down an

offer of 5 years when facing a minimum of 25 years) when he rejected the second plea offer

under the second indictment. Hence, respondent argues that petitioner’s claim (that he would

have accepted the plea offer which had a smaller disparity in sentence) is incredible. (Id.)

Both parties, however, compare petitioner’s possible sentence under the first indictment

as opposed to the sentence he eventually received under the second indictment, but the offer

under the first indictment was not available when the second indictment was returned. So

comparing sentences to establish a sentence disparity is difficult. Unaware of the plea offer on

the initial indictment, petitioner moved to dismiss that indictment, a strategic decision of counsel

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rather than a fundamental right that the petitioner himself had to exercise or waive, cf. Pavel v.

Hollins, 261 F.3d 210, 223 (2d Cir. 2001); N.Y.S. Code of Prof. Resp. EC 7-7 (in areas not

affecting the merits of the cause or substantially prejudicing the rights of a client, the lawyer is

entitled to make decisions), 7-9 (in exercise of this professional judgment, lawyer must act in

best interest of client). Not advised of the first plea offer, petitioner took the risk that his motion

to dismiss would be granted (as it was here) with leave to re-present and possible indictment to

more serious charges. Later, petitioner was advised by that same counsel not to take the plea

offer on the second indictment. Petitioner testified that he would have taken either plea, the first

if he was made aware of it by counsel or the second if not advised against it by counsel.

Petitioner therefore has shown that there is a reasonable probability that he would have accepted

the initial plea offer had it been conveyed to him by counsel, see Shiwlochan, supra, 345 F. Supp.

2d at 264; Strickland, supra, 466 U.S. at 694, and was rendered ineffective assistance of counsel.

D. Remedy

Next, a problem arises as to the remedy, given that petitioner has established that he was

rendered ineffective assistance of counsel. Ordinarily, the relief would be to sentence petitioner

pursuant to the plea offer he was not given. But that plea offer was based upon an indictment

that was later superceded; a similar offer could not be given under the superceding indictment.

But, as other courts in this Circuit have resolved this issue, see Boria, supra, 99 F.3d at 499;

Shiwlochan, supra, 345 F. Supp. 2d at 264-65 (as both parties have recognized (see Docket

No. 9, Pet’r Memo at 33; Docket No. 6, Resp’t Memo. at 26)), the remedy here is to allow the

conviction under the second indictment to stand but reduce petitioner’s sentence to the maximum

of the initial offer and, as here, release petitioner if he has served that amount of time already.

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Petitioner has served more than the maximum of the original plea offer of seven years. Thus,

since the evidentiary hearing established that petitioner was rendered ineffective assistance of

counsel by his defense attorney failing to disclose an earlier plea offer, then petitioner would be

entitled to be released for the time he has served.

E. Conclusion

Therefore, habeas relief for petitioner’s claim for ineffective assistance of counsel for not

advising him of the initial plea is granted. Petitioner is entitled to be released for the time

already served.

CONCLUSION

The remaining claim in the Petition for Writ of Habeas Corpus in this action (Docket

No. 1) is hereby granted as discussed above.

So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York

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