11-2943-pr(L)
Munson v. Rock

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 7th day of January, two thousand thirteen.

PRESENT:    ROBERT D. SACK,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                    Circuit Judges.

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TIMOTHY MUNSON,
                     Petitioner-Appellant,

                        -v.-                            11-2943-pr(L)
                                                        11-3516-pr(Con)
ROCK, SUPERINTENDENT, UPSTATE
CORRECTIONAL FACILITY, ANDREW CUOMO,
NEW YORK STATE ATTORNEY GENERAL,
                  Respondents-Appellees.

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FOR PETITIONER-APPELLANT:            MICHAEL K. BACHRACH, Law Office of
                                     Michael K. Bachrach, New York, New
                                     York.

FOR RESPONDENTS-APPELLEES:           LESLIE E. SWIFT, Senior Assistant
                                     District Attorney, for Sandra
                                     Doorley, Monroe County District
                                     Attorney, Rochester, New York.

            Appeal from the United States District Court for the

Western District of New York (Telesca, J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment and order of the district court is

AFFIRMED.

            Petitioner-appellant Timothy Munson appeals the

district court's judgment dated June 24, 2011, entered pursuant

to its decision and order dated June 23, 2011, denying his

petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, as well as the district court's order dated July 29,

2011, denying his motion for reconsideration.    We granted a

certificate of appealability on the following issue:    "Whether

Appellant Munson is entitled to a writ of habeas corpus based on

his claim that he received ineffective assistance of counsel when

counsel advised him that he faced consecutive sentences of up to

50 years in prison."    We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the

issues presented for review.

            On April 19, 2004, Munson was indicted in New York

State Supreme Court, Monroe County, on two counts of robbery in
the first degree, one count of assault in the first degree, and

one count of criminal possession of a weapon in the second

degree, in violation of New York Penal Law §§ 160.15(1), (2),

120.10(4), 265.03(2), and 20.00.    The underlying allegation was

that Munson had robbed an individual at gunpoint and shot the

individual during the commission of the robbery.

            On January 18, 2005, the day jury selection was

scheduled to begin, Munson pled guilty to one count of assault in

the first degree.    During the plea negotiations in the days


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preceding trial, the prosecution offered Munson sentences first

of 12 years and then of 10 years if he pled guilty, but he

rejected both offers.   During these discussions, defense counsel

advised Munson that he faced as much as 50 years' imprisonment if

he were convicted of all charges at trial.

           As jury selection was about to begin, defense counsel

informed the court that Munson had changed his mind and wanted to

plead guilty "in light of" two developments:   First, a previously

unavailable witness had been arrested pursuant to a material

witness warrant and was thus available to testify.   Second,

Munson had been recorded in a telephone conversation with his

brother from the Monroe County Jail apparently discussing making

an effort to interfere with the victim of his assault.     Defense

counsel reiterated his earlier estimate that "if this case were

to go to trial and all that [sic] those factors were to come to

light, [and Munson] were to be convicted that I advised him my

guess was looking at a sentence in the range of forty to fifty

years."

           The court subsequently conducted a thorough colloquy

and accepted Munson's guilty plea to assault in the first degree.

Pursuant to the plea offer, on March 15, 2005, Munson was

sentenced to 14 years' imprisonment.

           The New York State Appellate Division, Fourth

Department, summarily affirmed Munson's conviction on June 6,

2008.   People v. Munson, 858 N.Y.S.2d 645 (4th Dep't 2008).
Judge Robert S. Smith of the New York Court of Appeals denied his

application for leave to appeal on September 15, 2008.     People v.


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Munson, 11 N.Y.3d 792 (2008).    Munson subsequently filed a habeas

petition pursuant to 28 U.S.C. § 2254, which the district court

denied.

          We review de novo the district court's denial of a

§ 2254 petition.    See Hemstreet v. Greiner, 491 F.3d 84, 89 (2d

Cir. 2007).    Pursuant to the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), a federal court may not grant a

habeas petition on a "claim that was adjudicated on the merits"

in state court unless that adjudication: "(1) resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding."   28 U.S.C. § 2254(d).

          When reviewing § 2254 habeas claims, a federal court

must determine "what arguments or theories supported or . . .

could have supported the state court's decision; and then it must

ask whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in

a prior decision of [the Supreme] Court."    Harrington v. Richter,
131 S. Ct. 770, 786 (2011).   For the purposes of AEDPA deference,

a summary disposition constitutes a disposition "on the merits."

Id. at 784-85; see also Davis v. Greiner, 428 F.3d 81, 88 (2d
Cir. 2005) (noting that where state courts summarily deny relief

on the merits, "we must focus on the ultimate decisions of those

courts, rather than on the courts' reasoning" (quoting Aeid v.


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Bennett, 296 F.3d 58, 62 (2d Cir. 2002)) (internal quotation

marks omitted)).

          To prevail on a claim of ineffective assistance of

counsel, a petitioner must demonstrate that (1) counsel's

representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that,

but for counsel's errors, the result of the proceeding would have

been different.    Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984).

          Munson contends that his counsel rendered ineffective

assistance by advising him that he faced a sentence of up to 50

years in prison, when in fact the maximum possible sentence was

only 25 years.    It is well settled that an attorney's failure to

properly inform his client about his sentencing exposure may

constitute ineffective assistance.     See, e.g., Jenkins v. Greene,
630 F.3d 298, 309 (2d Cir. 2010) ("[C]ounsel's failure to

properly advise a client of his sentencing exposure, such as the

possibility of consecutive sentences, may indicate
constitutionally ineffective assistance."); United States v.

Gordon, 156 F.3d 376, 380 (2d Cir. 1998) ("By grossly

underestimating [the defendant's] sentencing exposure . . .,

[counsel] breached his duty as a defense lawyer in a criminal

case to advise his client fully on whether a particular plea to a

charge appears desirable." (citation and internal quotation marks
omitted)).

          We need not address whether defense counsel's advice

was reasonable, however, because even assuming arguendo that


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counsel's assistance fell below an objective standard of

reasonableness, Munson fails to show that the Appellate Division

unreasonably applied clearly established Supreme Court precedent.

In the context of a guilty plea, Strickland's prejudice prong

requires a defendant to demonstrate a reasonable probability

that, "but for counsel's errors, he would not have pleaded guilty

and would have insisted on going to trial."     Hill v. Lockhart,

474 U.S. 52, 59 (1985); accord United States v. Arteca, 411 F.3d

315, 320 (2d Cir. 2005).

            Although Munson asserted in state court that he would

not have pled guilty had counsel advised him he was facing a

maximum sentence of 25 years rather than 50 years, we
nevertheless conclude that "fairminded jurists could disagree" as

to whether Munson demonstrated a reasonable probability that, but

for counsel's deficient advice, he would not have pled guilty.

See Harrington, 131 S. Ct. at 786.

            The record demonstrates that Munson's decision to plead

guilty was triggered by the new developments in his case, not by

his counsel's advice regarding his sentencing exposure.     Even

though defense counsel had advised Munson prior to January 18,

2005 that he faced a potential sentence of 50 years, Munson still

did not plead guilty at that time.     Instead, Munson chose to

plead guilty only after two developments came to light on January

17, 2005.   Specifically, Munson learned that a key witness had

been taken into custody pursuant to a material witness warrant.

Munson also learned that the government had discovered recorded

telephone conversations in which Munson had given his brother the


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victim's telephone number and address and asked him to "get [the

victim] some greenbacks so he don't come to the drop-off.   Tell

him not to come to the party because some shit gonna happen at

the party."   The recordings captured Munson telling his brother

that he needed to know whether the victim would testify so he

could decide whether or not to "cop out," i.e., plead guilty.    As

defense counsel stated on the record, these developments "put[]

the whole case in a totally, totally different light just as

we're preparing to pick a jury."
          Even if we might not have decided the issue in the way

that the Appellate Division did, we cannot conclude that it would

be impossible for the proverbial "fairminded jurist" to determine

that no prejudice occurred.   See Harrington, 131 S. Ct. at 786.

Accordingly, we conclude that the Appellate Division did not

unreasonably apply clearly established Supreme Court precedent in

rejecting Munson's claim that his counsel provided

constitutionally ineffective assistance by advising him that he

faced a sentence of up to 50 years in prison.

          We have considered Munson's remaining arguments and
conclude that they are without merit.   Accordingly, we AFFIRM the

judgment of the district court.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




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