        09-4320-pr
        Bonner v. Ercole


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                    AMENDED SUMMARY ORDER
     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
     IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
     ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2      Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3      on the 2nd day of February, two thousand eleven.
 4
 5      PRESENT:
 6
 7              GUIDO CALABRESI,
 8              DEBRA ANN LIVINGSTON,
 9                             Circuit Judges,
10
11              PAUL A. CROTTY,
12                              District Judge.*
13      _______________________________________________
14
15      IVAN BONNER,
16
17                                    Petitioner-Appellant,
18
19                         v.                                               No. 09-4320-pr
20
21      ROBERT E. ERCOLE, Superintendent,
22
23                              Respondent-Appellee.
24      ______________________________________________
25
26


                *
                The Honorable Paul A. Crotty, District Judge of the United States District Court for the
        Southern District of New York, sitting by designation.

                                                         1
 1                                         MARJORIE M. SMITH , Piermont, New York, for Petitioner-
 2                                         Appellant.
 3
 4                                         PAUL B. LYONS, Assistant Attorney General of the State of
 5                                         New York; Andrew M. Cuomo, Attorney General of the
 6                                         State of New York, New York, New York, for Respondent-
 7                                         Appellee.
 8

 9          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

10   that the judgment of the district court be AFFIRMED.

11          Petitioner-Appellant Ivan Bonner (“Bonner”) appeals from a decision and order of the United

12   States District Court for the Northern District of New York (Singleton, J.) denying his petition for

13   a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Bonner v. Ercole, No. 07-cv-00399,

14   2009 U.S. Dist. LEXIS 93098 (N.D.N.Y. Oct. 6, 2009). Bonner challenges his May 27, 2003

15   conviction in New York State, Albany County Court, convicting him, upon his guilty plea, of one

16   count of Robbery in the Second Degree. The Appellate Division affirmed Bonner’s conviction on

17   September 22, 2005, while the New York Court of Appeals denied leave to appeal on January 20,

18   2006. People v. Bonner, 21 A.D.3d 1184 (N.Y. App. Div. 3d Dep’t 2005), leave denied, 6 N.Y.3d

19   773 (2006). This Court granted a Certificate of Appealability on the issue of “whether appellant’s

20   due process rights were denied by the prosecutor’s breach of a plea agreement and, if they were, what

21   the appropriate remedy should be.” We assume the parties’ familiarity with the underlying facts and

22   procedural history.

23          We review a district court’s denial of a petition for habeas corpus de novo, and its factual

24   findings for clear error. Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007); Anderson v. Miller,

25   346 F.3d 315, 324 (2d Cir. 2003). The petitioner bears the burden of proving a violation of his



                                                      2
 1   constitutional rights by a preponderance of the evidence. Hawkins v. Costello, 460 F.3d 238, 246

 2   (2d Cir. 2006). Because Bonner challenges a state court claim adjudicated on the merits, we apply

 3   the deferential standard of review codified in the Antiterrorism and Effective Death Penalty Act of

 4   1996, 28 U.S.C. § 2254(d) (“AEDPA”). Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009).

 5   Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that

 6   was adjudicated on the merits in state court only if the state court’s decision was “contrary to, or

 7   involved an unreasonable application of, clearly established Federal law as determined by the

 8   Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Dolphy, 552 F.3d at 238.

 9           Bonner argues on appeal that: 1) the state prosecutor breached his plea agreement not to

10   “seek” to call Bonner to testify at his co-defendant’s trial; and 2) this breach was sufficient to warrant

11   habeas relief. See Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen a plea rests in any

12   significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of

13   the inducement or consideration, such promise must be fulfilled.”). Although the district court

14   agreed that the prosecutor had breached the plea agreement, it concluded that the breach was

15   nonmaterial and thus did not warrant relief.

16           We, instead, do not believe that any plea agreement was actually breached. In this case, we

17   do not have before us a written plea agreement or even a clear account of the agreement by the

18   parties. What we have is a statement about the agreement by the trial judge. Read in the context of

19   the judge’s use of some of the same words shortly before that statement, we conclude that the

20   arrangement agreed to was simply that Bonner not be made to testify. Since, as all agree, he was not,

21   there was no breach. We therefore conclude that the district court correctly denied habeas.

22


                                                         3
1   For the foregoing reasons, the judgment of the district court is AFFIRMED.

2                                               FOR THE COURT:
3                                               Catherine O’Hagan Wolfe, Clerk


4




                                           4
