Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SNYPE v. HOKE

January 3, 1990

VERNON SNYPE, PETITIONER,
v.
ROBERT HOKE, RESPONDENT.



The opinion of the court was delivered by: Sprizzo, District Judge:

MEMORANDUM OPINION AND ORDER

Petitioner Vernon Snype brings this petition for Habeas Corpus pursuant to 28 West Page 208 U.S.C. § 2254 (1982). The matter was originally referred to United States Magistrate Kathleen A. Roberts for Report and Recommendation pursuant to 28 U.S.C. § 636(b) (1982). The Magistrate agreed with respondent's argument that the petition contained a mixture of exhausted and unexhausted claims and recommended that the petition be dismissed without prejudice pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See Report and Recommendation ("Report") at 5-6. However, subsequent to the time that the Magistrate's report was filed, respondent brought to the Court's attention new information which bears upon the exhaustion issue, and requires the Court to review the merits of the petition.

BACKGROUND

Petitioner pleaded guilty to two counts of Robbery in the First Degree, see N.Y.Penal Law § 160.15 (McKinney 1988), and was sentenced by Justice Salman to two concurrent, indeterminate terms of imprisonment of from ten years to life because he was classified as a persistent felony offender.*fn1 See Response to the Petition for Habeas Corpus ("Response") at ¶ 5.

Petitioner then challenged the legality of this sentence by a pro se motion pursuant to N.Y.Crim.Proc.Law § 440.20 (McKinney 1983). Resentencing was ordered because petitioner should have been sentenced as a second violent felony offender instead of a persistant felony offender. See Response at ¶ 6 & Ex. 1. Consequently, the sentence was vacated and petitioner appeared for resentencing on February 26, 1985. At that time, resentencing was adjourned to June 4, 1985 to allow petitioner to make a motion to withdraw his guilty plea. See Transcript of February 26, 1985 at 3-4 (annexed to Response at Ex. 9). However, for reasons not clear from the record, petitioner was next produced before the Court, not on June 4, 1985, but instead on February 28, 1985, two days later, when he was resentenced, as a second violent felony offender, to the same sentence of two indeterminate, concurrent terms of imprisonment of from ten to twenty years. See Response at ¶ 6.

On January 24, 1986, petitioner filed a pro se motion pursuant to N.Y.Crim. Proc.Law § 440.10(1)(b) & (1)(h) (McKinney 1983), alleging the following claims: 1) that his guilty plea was involuntarily and unknowingly entered because his defense attorney mistakenly told him that he could be sentenced to twenty-five years to life after trial as a persistent felony offender, and that he would not have pleaded guilty had he known that he was not a persistent felony offender; 2) that the court's failure to permit him to withdraw his guilty plea when he learned that he was not a persistent felony offender was a violation of due process; and 3) that he was denied the effective assistance of counsel. See Petitioner's Motion Pursuant to N.Y.Crim. Proc.Law § 440.10 at 3-10 (annexed to Response as Ex. 2).

Justice Salman denied this motion because sufficient facts appeared in the record to permit review of these claims on a direct appeal of his conviction, which was then pending. See Court Order dated March 13, 1986 (annexed to Response as Ex. 4); N YCrim.Proc.Law § 440.10(2)(b) (McKinney 1983). The Appellate Division denied leave to appeal the denial of this motion on June 24, 1986, see Certificate of Appellate Division dated June 24, 1986 (annexed to Petitioner's Reply to Respondent's Opposition to the Petition ("Reply")),*fn2 and petitioner did not seek leave to appeal that denial to the Court of Appeals. See Response at ¶ 8.

On direct appeal from his sentence, petitioner raised three claims: 1) that the court erred in accepting petitioner's guilty plea because the court failed to establish a sufficient factual basis for the plea; 2) that the court erred in denying petitioner's application to withdraw his guilty plea; 3) that petitioner was denied the effective assistance of counsel at trial in violation of the Sixth Amendment. See Brief for Appellant, People v. Snype, 128 A.D.2d 1031, 512 N.Y.S.2d 610 (1st Dept.), appeal denied, 69 N.Y.2d 1010, 511 N.E.2d 103, 517 N.Y.S.2d 1044 (1987) ("Snype's Brief") (annexed to Response as Ex. 5); Brief for Respondent, People v. Snype, supra (annexed to Response as Ex. 6). In asserting these claims, petitioner relied on the circumstance that he was allegedly misinformed about the potential sentence he would face should he proceed to trial. See Snype's Brief at 7-12.

On October 23, 1986, petitioner moved for permission to file a supplemental pro se brief in support of his direct appeal. See Response at ¶ 10, Ex. 7. The Appellate Division denied this motion on February 3, 1987. See Response at ¶ 11 & Ex. 8. On March 5, 1987, petitioner moved for reargument of the court's order denying him permission to file a supplemental brief. See id. at ¶ 12. In so doing, petitioner argued that his appellate counsel had not been provided with a copy of the transcript of the February 26, 1985 proceedings, where petitioner had been granted an adjournment of his resentencing to make a motion to withdraw his guilty plea, and therefore could not have included any arguments based on that circumstance in his original brief. In this connection, petitioner annexed a letter from his appellate counsel dated February 16, 1987, confirming that he did not receive the February 26 transcript. See id. at ¶ 12 & Ex. 9. This motion was denied on April 23, 1987. See id. at ¶ 14 & Ex. 11.

  On March 12, 1987, the Appellate Division affirmed petitioner's
conviction without opinion. See People v. Snype, 128 A.D.2d 1031,
 512 N.Y.S.2d 610 (1st Dept. 1987) (Response at ¶ 13 & Ex.
10). The New York Court of Appeals denied leave to appeal this
decision on May 8, 1987. People v. Snype, 69 N.Y.2d 1010,
511 N.E.2d 103, 517 N.Y.S.2d 1044 (1987) (Response at ¶ 15 & Ex. 12).

Petitioner then filed a petition for a writ of habeas corpus in this Court on April 26, 1988. The petition alleged: 1) that his guilty plea was involuntarily and unknowingly obtained because of his mistaken belief that a greater sentence could have been imposed after trial; 2) that he was denied his right to due process under the Fourteenth Amendment because the trial court resentenced him without hearing petitioner's motion to withdraw his guilty plea; 3) that he was deprived of effective assistance of counsel at trial in violation of the Sixth Amendment; and 4) that he was deprived of effective assistance of appellate counsel. Petitioner was permitted to withdraw this petition without prejudice on September 29, 1988 and judgment dismissing this Petition was entered on October 14, 1988. See Report at 1-2.

Petitioner then filed a petition for a writ of error coram nobis alleging ineffective assistance of his appellate counsel as required by People v. Bachert, 69 N.Y.2d 593, 509 N.E.2d 318, 516 N.Y.S.2d 623 (1987). This petition was denied on December 13, 1988. See Order of the Appellate Division dated December 13, 1988 (annexed to Reply)

Petitioner returned to this Court on March 27, 1989 and filed the present petition for a writ of habeas corpus. This petition raised three grounds for relief: 1) that petitioner's guilty plea was unlawfully induced or made involuntarily and unintelligently without understanding the nature of the charge or the consequence of the plea, see Petition at ¶ 12A; 2) that petitioner was not competently represented by trial counsel, see id. at ¶ 12B; and 3) that petitioner was not competently represented by appellate counsel because the brief submitted on his behalf was ineffective and incomplete, see id. at ¶ 12C.


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.