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August 29, 1991


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


Petitioner was indicted for, inter alia, second degree murder for the shooting death of James Ebron in Jamaica, Queens. On August 5, 1985, he pled guilty to manslaughter in the first degree, New York Pen.L. § 125.20, in full satisfaction of the indictment, and was sentenced on August 28, 1985 to an indefinite term of 6 to 18 years.

Petitioner took no direct appeal from his conviction. Instead, he appealed only his sentence, contending it was excessive. The Appellate Division affirmed the determination below on February 27, 1989. See People v. Lloyd, 147 A.D.2d 995, 538 N.Y.S.2d 676 (2d Dep't 1989). Leave to appeal to the New York Court of Appeals was subsequently denied. As will be discussed hereafter, he also moved to vacate his sentence under New York CPL § 440.10 and for state habeas corpus relief under New York CPLR Article 70. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner has submitted two separate petitions which have been assigned the same docket number, as they arise from the same arrest and challenge the same conviction. The petitions, which will be designated Petition 1 and Petition 2 in this memorandum, allege 7 and 8 claims for relief, respectively. As those claims overlap considerably, the petitions will be considered together. Petitioner has also moved for discovery of the minutes of the grand jury proceedings relevant to his indictment. For the reasons which follow, that motion, and the two petitions for habeas corpus relief, are denied.


Petitioner asserts the following claims in the two petitions: (1) the investigating officers tampered with physical exculpatory evidence at the crime scene (Petition 2); (2) the investigating officers made false statements on the criminal complaint (Petition 2); (3) the arresting officers transported him across state lines to New Jersey while he was in custody (Petition 1, 2); (4) petitioner was questioned in New Jersey without representation of counsel (Petition 1, 2); (5) petitioner received verbal death threats from an investigating officer (Petition 1, 2); (6) obstruction of justice based on the police officers' (a) removal of exculpatory evidence from the crime scene, (b) coercing the medical examiner to make false statements on the autopsy report, (c) leaving the state with the petitioner, (d) making false statements in court, (e) preventing petitioner from appearing before the grand jury, and (f) the court's allowing a court-assigned attorney to fail to investigate petitioner's removal across state lines (Petition 2); (7) ineffective assistance of (a) trial and (b) appellate counsel (Petition 1, 2); and (8) prosecutorial misconduct by (a) failing to disclose exculpatory evidence to the grand jury, (b) committing perjury, and (c) practicing law when not admitted to the bar in the state of New York (Petition 1, 2).

Petitioner raised claims (1)-(6) as enumerated above in a motion to vacate sentence pursuant to CPL § 440.10. He also raised a seventh claim, "ineffective assistance of counsel." The court considered the first six claims on the merits, for the opinion denying the motion states:

  The first six claims of the defendant . . . are
  all conclusory claims which are not supported by
  any sworn allegations of fact and are totally
  without any merit. These claims are made solely by
  the defendant and are unsupported by any other
  affidavit or evidence. (See, CPL 440.30[4][b][d].)

People v. Lloyd, Index No. 210/85 (Sup.Ct. Queens Co., Oct. 5, 1988). That the court reached the merits of the claims is also revealed by its citation to CPL § 440.30[4][b] and [d], which state:

    4. Upon considering the merits of the motion,
  the court may deny it without conducting a hearing
    (b) The motion is based upon the existence or
  occurrence of facts and the moving papers do not
  contain sworn allegations substantiating or
  tending to substantiate all the essential facts .
  . ., or
    (d) An allegation of fact essential to support
  the motion (i) is contradicted by a court record
  or other official document, or is made solely by
  the defendant and is unsupported by any other
  affidavit or evidence and (ii) under these and the
  other circumstances attending the case,

  there is no reasonable possibility that such
  allegation is true.

Whether the ineffective assistance of counsel claim was dismissed on procedural grounds or after consideration on the merits, however, is ambiguous. The language of the opinion suggests the court reached the merits:

    Defendant's seventh claim that he was denied the
  effective assistance of counsel is denied in that
  there are sufficient facts on the record which

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