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Fulton v. Graham

United States Court of Appeals, Second Circuit

September 11, 2015

DERRICK FULTON, Petitioner-Appellant,
v.
HAROLD GRAHAM, SUPERINTENDENT, Respondent-Appellee. [*]

Argued May 13, 2015

Page 258

[Copyrighted Material Omitted]

Page 259

Petitioner Derrick Fulton appeals from the May 6, 2014 judgment of the United States District Court for the Northern District of New York (Mae A. D'Agostino, Judge) adopting the Report and Recommendation of a Magistrate Judge (Andrew T. Baxter, Judge) denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . Fulton contends that the District Court erred in deferring to the state court's determination that he failed to preserve his ineffective assistance of counsel claim by not raising it on direct appeal in his state court proceedings. We agree. We also conclude that, upon further development of the factual record, Fulton may be able to demonstrate constitutionally unreasonable performance of his counsel during the plea process. Accordingly, we VACATE the judgment of the District Court and REMAND the cause for further proceedings.

RANDOLPH Z. VOLKELL, Merrick, NY, for Petitioner-Appellant.

ALYSON J. GILL, Chief, Federal Habeas Corpus Section, Office of the Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General for Criminal Matters, and Daniel J. Jawor, Assistant Attorney General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Respondent-Appellee.

Before: STRAUB, PARKER, and CARNEY, Circuit Judges.

OPINION

Page 260

Susan L. Carney, Circuit Judge.

Petitioner Derrick Fulton appeals from the May 6, 2014 judgment of the United States District Court for the Northern District of New York (Mae A. D'Agostino, Judge ) adopting the Report and Recommendation of a Magistrate Judge (Andrew T. Baxter, Judge ) denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Fulton contends that the District Court erred in deferring to the state court's determination that he failed to preserve his ineffective assistance of counsel claim by not raising it on direct appeal in his state court proceedings. We agree. We also conclude that, upon further development of the factual record, Fulton may be able to demonstrate constitutionally unreasonable performance of his counsel during the plea process. Accordingly, we VACATE the judgment of the District Court and REMAND the cause for further proceedings.

BACKGROUND

On February 27, 2008, an Oneida County, New York grand jury charged Fulton with two counts of burglary in the first degree, in violation of N.Y. Penal Law § § 140.30(2), (4); one count of robbery in the first degree, in violation of N.Y. Penal Law § 160.15(4);

Page 261

and two counts of robbery in the second degree, in violation of N.Y. Penal Law § § 160.10(1), (2)(a). As Fulton now recounts, before trial, the state prosecutor offered him a plea agreement under which he would have received a ten-year term of imprisonment and a five-year term of post" release supervision. Fulton avers that his trial counsel " failed to discuss" with him " the pros and cons of accepting the plea offer" and provided " no guidance" about whether he should accept the plea offer or proceed to trial. App. 28 (Fulton Aff. ¶ ¶ 8, 9). Fulton rejected the plea offer and proceeded to trial.

At his two-day jury trial in May 2008, Fulton presented no evidence. The jury returned a verdict of guilty on all counts.

In August 2008, the state court sentenced Fulton, a second felony offender, to twenty years' imprisonment and five years' post-release supervision on each of the two burglary counts, and fifteen years' imprisonment with five years' post" release supervision on each of the two counts of robbery in the second degree. These four sentences were to run concurrently. The state court also sentenced Fulton to twenty years' imprisonment with five years' post-release supervision on the count of robbery in the first degree, to be served consecutively to the other prison terms. All told, Fulton received an effective sentence of forty years' imprisonment and five years' post-release supervision. On Fulton's counseled direct appeal, the Appellate Division affirmed Fulton's conviction and sentence, and ...


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