Another habeas grant in the district courts! The case is called Cross v. Perez. There's a lot going on in the case: Can a defendant waive his right to file a habeas petition when he pleads guilty? Does IAC invalidate such a waiver? IAC during plea negotiations. Whether out-of-state convictions can be used as predicate felony convictions in New York. The defendant knowing more about the law than the trial attorney.
The facts are actually pretty simple: during plea negotiations, the prosecution wanted to use three different New Jersey convictions to enhance petitioner's sentence. Defense counsel did not put up a fight. Petitioner stood up and said, wait, none of the New Jersey convictions qualify as predicate felony convictions under New York law. He handed up to the court case law to support his position. The prosecutor, defense counsel and the court were willing to accept that two of them did not, but believed that one of them did -- aggravated assault against a police officer. Petitioner disagreed but let the issue go. He was offered a plea with a sentence for a second violent felony offender. As part of the plea, he agreed to waive his right to bring a federal habeas petition.
He brought one anyways. In his petition, he argued that he received IAC during plea negotiations because the NJ conviction did not qualify as a felony in New York and his attorney's deficient performance rendered involuntary the waiver of his rights.
The DJ agreed. First, the DJ concluded, in what appears to be a relatively novel conclusion, that a petitioner could waive his rights to bring a federal habeas petition but that IAC could render such a waiver involuntary. There is a lenghty discussion on this issue in the opinion. The DJ then found that the NJ conviction did not qualify as a New York felony because it criminalized conduct as a felony that would not be a felony in New York.
And here's where the case runs into Lafler v. Cooper: the DJ also concluded that petitioner would have been offered and would have accepted a lower offer as a first time violent felony offender. The DJ orders specific performance of a plea offer that was not actually ever made. So that's a little controversial. Let's see if the State appeals. Despite the opinion being dated October 4th, an amended judgment was entered on October 20, so the time to appeal has not yet run out.
Here are the details:
- Habeas Granted
- 11-CV-1186, 2011WL 4711466 (EDNY Oct. 4, 2011) (BMC)
- Issues: IAC in plea negotiations based on counsel's failure to challenge use of out-of-state conviction to enhance petitioner's sentence