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