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UNITED STATES EX REL. HOGAN v. BARA

January 9, 1984

UNITED STATES OF AMERICA EX REL. LAMONT HOGAN, Petitioner, against RAYMOND R. BARA, SUPERINTENDENT, QUEENSBORO CORRECTIONAL FACILITY, ET AL., Respondents.


The opinion of the court was delivered by: MCLAUGHLIN

ORDER

McLAUGHLIN, District Judge

 The annexed Report and Recommendation of the Honorable John L. Caden, United States Magistrate, is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted.

 SO ORDERED.

 [Appendix]

 REPORT AND RECOMMENDATION

 This pro se habeas corpus petition is before the Court on the application of Lamont Hogan, who is currently incarcerated at the Arthur Kill Correctional Facility. The matter was referred to the undersigned by an order dated March 27, 1981.

 FACTS

 Petitioner was arrested on April 20, 1974 for the robbery of a restaurant. He made a statement to Detective Clerkin at the 71st Precinct in Brooklyn, admitting his role in the robbery. Two witnesses also identified petitioner as one of the perpetrators seen running out of the restaurant immediately after the robbery. On April 30, petitioner, along with two others, was indicted under indictment number 2157/74 for two counts of robbery in the first degree (N.Y. Penal Law § 160.15), one count of robbery in the second degree (N.Y. Penal Law § 160.10), and two counts of grand larceny (N.Y. Penal Law § 155.30). Petitiner was then released on bail. On May 20, 1974, he failed to appear in connection with this charge in New York State Supreme Court, Part One. A bench warrant was issued for his arrest.

 Petitioner was also indicted under indictment number 2212/76 for criminal possession of stolen property in the second degree (N.Y. Penal Law § 165.45). He had allegedly sold a stolen United States treasury check, valued at $426.25, to an undercover police officer for $45.00, on March 19, 1976.

 Petitioner was arrested with another on December 21, 1976 after allegedly taking property from a person who was sleeping on a subway bench. At the time, petitioner was using an alias. He was indicted under indictment number 4021/76 for grand larceny in the third degree (N.Y. Penal Law $155.30), criminal possession of stolen property in the third degree (N.Y. Penal Law § 165.40) and jostling (N.Y. Penal Law § 165.25). Petitioner was arraigned on January 18, 1977 and released on bail. After his failure to appear in court on February 10, 1977, a warrant was issued for his arrest.

 On January 11, 1978, petitioner was arraigned on indictment numbers 2157/74 and 2212/76. He also retained Ira Van Leer, Esq. as counsel on that date. Petitioner had an outstanding indictment (number 5499/73) on his record for robbery in the first degree. The indictment was under the name of "Aaron Haley."

 On June 8, 1976, the People moved to consolidate indictments 2157/74 and 5499/73 into 2157/74. The court granted the motion. Indictment 4021/76 was also consolidated into indictment number 2212/76 (Plea minutes pp. 2-3). Petitioner pled guilty to consolidated indictments 2157/74 and 2212/76. In exchange for these pleas, the court promised petitioner a sentence of three and a half years minimum to seven years maximum on indictment 2157/74 and a concurrent sentence of two to four years on indictment 2212/76 (Plea minutes pp. 10-11, 20).

 At the time of accepting each plea, the court asked petitioner if he was satisfied with the representation he was being afforded by his attorney. Petitioner answered in the affirmative both times (Plea minutes pp. 5, 16). Petitioner also indicated to the court that he was pleading guilty of his own free will. The court then inquired as to whether petitioner understood that the guilty pleas were the equivalent of comfessions of guilt, that he was not obligated to plead guilty, and that by pleading guilty he would waive his rights to a ...


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