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UNITED STATES EX REL. RICHARDS v. BARTLETT

August 13, 1993

UNITED STATES OF AMERICA ex rel. JUSTO RICHARDS, Petitioner,
v.
GEORGE BARTLETT, Superintendent, Elmira Correctional Facility, Respondent.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Pro se petitioner Justo Richards seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied in its entirety.

 FACTS

 Petitioner was initially represented by Barry Goldstein. Goldstein was subsequently replaced with Michael Macklowitz. On February 25, 1981, before the jurors were sworn, Macklowitz was replaced by Jay Horlick. On the same day, petitioner walked out of the courtroom for a lunch break and failed to return. The trial was continued in absentia, and the jury convicted petitioner of robbery in the first degree, N.Y. Penal Law § 160.15(4) (McKinney 1988), and criminal possession of stolen property in the first degree, N.Y. Penal Law § 165.50 (McKinney 1975). *fn2"

 Petitioner was sentenced on December 18, 1981 to concurrent terms of imprisonment of six to eighteen years on the robbery charge and six years on the criminal possession charge. Thereafter, petitioner brought three motions to vacate judgment and two applications for writs of habeas corpus in state court. These motions and applications were denied. On March 3, 1986, his conviction was affirmed by the Appellate Division, Second Department, People v. Richards, 118 A.D.2d 604, 499 N.Y.S.2d 209 (2d Dep't 1986), and leave to appeal to the New York Court of Appeals was denied on May 9, 1986. People v. Richards, 67 N.Y.2d 1056, 504 N.Y.S.2d 1032, 495 N.E.2d 365 (1986).

 By petition dated June 1, 1986, petitioner sought a writ of habeas corpus from the United States District Court for the Southern District of New York. Richards v. Scully, No. 86-8078 (S.D.N.Y. 1986) (Ward, J.). In that petition, he claimed that (1) his indictment was defective because it charged armed robbery but failed to charge separately possession of a weapon, an essential element of the crime of armed robbery; (2) he was selectively prosecuted and evidence was not preserved because the car and registration were returned to Thompson without a court order; (3) he received ineffective assistance of counsel; and (4) he was subjected to multiple punishments because both of his convictions were based on the same stolen property.

 After respondent replied to petitioner's application, petitioner submitted a "Traverse" dated April 13, 1987, in which petitioner expanded on the claims in his petition. In addition, petitioner raised new claims under the headings "Denial of Due Process," "Denial of Equal Protection," and "Prejudice." In these sections, petitioner claimed that: (1) he was denied due process because the New York State Board of Parole improperly used the uncharged crime of possession of a weapon in his parole determination; (2) he was denied equal protection because he was not provided with a transcript to prepare his pro se supplemental brief for his state appeal; and (3) he was prejudiced by a 51 month delay in the state appellate process.

 Petitioner discussed his initial claims under the headings "Ground I: Defective Indictment," "Ground II: Selective Prosecution," "Ground III: Multiple Punishments," and "Ground IV: Ineffective Assistance of Counsel." Intermingled with these claims, petitioner touched upon claims that: (1) at trial, the prosecutor led witnesses and changed facts and circumstances; (2) the prosecutor intentionally withheld evidence; (3) attorney Macklowitz was associated with the District Attorney's Office and had a conflict of interest; and (4) the in-court witness identifications were unnecessarily suggestive.

 Subsequently, on November 30, 1987, petitioner filed a motion for reconsideration. *fn3" In his motion, petitioner renewed his claim that he had been denied equal protection because he had not received a transcript to prepare his pro se supplemental brief for his state appeal. He also made several references in his motion to his "Traverse" and some of the other grounds raised in that document.

 By letter dated July 4, 1988, petitioner notified the district court that no action had been taken on his motion. In response to petitioner's letter, the pro se clerk sent petitioner a copy of his docket sheet and informed him that his case was closed. (Letter from Pro se Clerk to Petitioner dated July 11, 1988.) Shortly thereafter, on August 11, 1988, Judge Costantino ordered that judgment be entered in petitioner's case. The Clerk of the Court entered judgment on August 15, 1988.

 Soon after petitioner wrote his letter, on July 13, 1988, he applied to the Second Circuit for a writ of mandamus or prohibition. Three days later, on July 16, 1988, petitioner filed a notice of appeal and an application for a certificate of probable cause with the circuit court. Petitioner asked the circuit court to review the district court's denial of his petition and ...


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