Ross v. Kirkpatrick

Background

Gerald Ross filed a petition under 28 U.S.C. § 2254 challenging his New York state conviction for two counts of attempted sexual abuse in the first degree and one count of endangering the welfare of a child. Before trial, the prosecution offered Ross a plea involving one count of attempted sexual abuse and a lower sentence than the sentence he ultimately received after trial.

Ross later moved in state court to vacate his conviction, arguing that his trial lawyer had not properly advised him about his possible sentence if the sentences on the two attempted-sexual-abuse counts were imposed consecutively. The state trial court denied the motion without an evidentiary hearing. The state appellate court affirmed, concluding that Ross had not shown a reasonable probability that he would have accepted the plea offer even if he had received different advice.

Report and Recommendation and Objections

Magistrate Judge Barbara C. Moses recommended denying Ross’s federal petition. She concluded that Ross had not overcome the state court’s factual finding that he failed to establish that his lawyer had given him incorrect advice. She also concluded that Ross had not shown that the state appellate court unreasonably applied federal law when it found insufficient evidence that he would have accepted the plea.

Ross objected to the recommendation. He argued that the state court should not have rejected his claim without an evidentiary hearing and that the courts placed too much weight on his statement that he would have “seriously considered” accepting the plea. He also argued that the difference between the sentence he was told he faced and the sentence he could actually receive supported a finding of prejudice.

Court’s Analysis

The court applied the Antiterrorism and Effective Death Penalty Act, which permits federal relief on a state-court decision only when the decision conflicts with clearly established federal law, unreasonably applies that law, or rests on an unreasonable determination of the facts under the governing statutory standards.

On the deficiency issue, the court held that the state trial court had made a factual finding that Ross had not shown that his lawyer failed to explain the possibility of consecutive sentences. Ross had not presented clear and convincing evidence rebutting that finding. The court also held that the state court’s decision not to conduct an evidentiary hearing was not an unreasonable application of clearly established federal law.

On the prejudice issue, the court explained that a defendant who rejects a plea offer must show a reasonable probability that he would have accepted it, that the prosecution and court would have proceeded with it, and that the resulting sentence would have been less severe. The court held that Ross’s statement that he would have “seriously considered” the plea was insufficient to require federal relief. It concluded that the state appellate court could reasonably find that Ross had not shown he would have accepted the offer.

The court also rejected Ross’s request for a federal evidentiary hearing. Because the state courts had adjudicated his claim on the merits, the court held that a hearing was not available unless Ross first satisfied the statutory standards for overturning the state-court decision, which he had not done.

Disposition

Judge Analisa Torres overruled Ross’s objections and adopted Judge Moses’s report and recommendation in its entirety. The court denied Ross’s § 2254 petition, denied his request for an evidentiary hearing, and denied his request for a certificate of appealability. The clerk was directed to close the case.