The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
The above matter comes to me following a Report and Recommendation by Magistrate Edward M. Conan, duly filed on the 24th day of June 1986. Following ten days from the service thereof, the Clerk has sent me the entire file including any objections submitted thereto.
On November 14, 1980 petitioner, Glenn Carrington Goodrich, stabbed his father to death in his parents' home. Petitioner then forced his mother to accompany him to Albany, New York, where he released her. Petitioner has a long history of emotional problems and is a diagnosed paranoid schizophrenic. Based upon two psychiatric examinations,a the defense psychiatrist indicated that he would support a plea of not guilty by reason of insanity. After the state court trial commenced and after a third examination, the psychiatrist no longer thought a plea of insanity was "supportable." The psychiatrist based that conclusion on the fact that after the third consultation it became clear to the psychiatrist that petitioner knew the nature and consequence of his conduct and that he knew such conduct was wrong.
After the defense psychiatrist changed his mind, petitioner pled guilty to reduced charges: one count of first degree manslaughter in violation of New York Penal Law § 125.20 and one count of second degree kidnapping in violation of § 135.20 of th Penal Law. Those offenses are both class B violent felonies. The sentencing guidelines for class B violent felonies are set forth in §§ 70.02(3)(a) and 70.02(4) of the Penal Law. Those sections provide:
3. Maximum term of sentence. The maximum term of an indeterminate sentence for a violent felony offense must be fixed by the court as follows:
(a) For a class B felony, the term must be at least six years and must not exceed twenty-five years;. . .
4. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate sentence for a violent felony offense must be fixed by the court at one third of the maximum term imposed and must be specified in the sentence; provided, however, that the court may impose a minimum term which is between one-third the maximum and one-half the maximum term imposed when the sentence is for a conviction of a class B armed felony offense.
On May 6, 1981 petitioner was sentenced to concurrent indeterminate terms of 8 1/3 years to 25 years. That conviction was affirmed without opinion by the Appellate Division Third Department and leave to appeal was denied by the Court of Appeals.
Petitioner next brought a state court proceeding to have hi sentence set aside asserting that his attorney failed to effectively represent him at the sentencing. Petitioner based that assertion on the fact that later his attorney candidly admitted that he believed the statute mandated a sentence of 8 1/3 years to 25 years for class B violent felonies, when, in fact, a proper reading of that statute indicates that terms of lesser duration are appropriate for class B violent felonies. Petitioner further alleged that because of that misimpression regarding the sentencing statute, his attorney failed to act as his advocate at sentencing, and that had his attorney done so, a lighter sentence might have been imposed. Petitioner does not challenge the validity of his guilty plea.
Petitioner's motion to set aside his sentence was denied. The Appellate Division Third Department denied petitioner's motion for leave to appeal. Thus, petitioner having exhausted his state remedies, commenced this federal habeas corpus proceeding on February 6, 1985, arguing denial of effective assistance of counsel.
MAGISTRATE'S REPORT & RECOMMENDATION
The Magistrate recommended that the petition be denied and dismissed. In reaching that decision, the Magistrate applied th two-prong test for ineffective assistance of counsel adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In Strickland, the Court stated:
[T]he defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes ...