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JONES v. HOLLINS

April 11, 1995

TERRENCE JONES, Petitioner,
v.
MELVIN L. HOLLINS, Superintendent, Oneida Correctional Facility, Respondent.



The opinion of the court was delivered by: CAROL E. HECKMAN

 The parties have consented to having the Magistrate Judge conduct all proceedings, including entry of judgment, in this petition under 28 U.S.C. § 2254 for habeas corpus relief from a state court conviction. For the reasons that follow, the petition is dismissed.

 BACKGROUND

 This is the second habeas corpus petition heard by this court in which the petitioner, Terrance Jones, seeks relief from his June 19, 1985 state court conviction for first degree manslaughter and third degree assault. The facts underlying his conviction are set forth at considerable length in this court's Decision and Order dismissing his first petition, see Jones v. Speckard, 827 F. Supp. 139 (W.D.N.Y. June 15, 1993), aff'd, 14 F.3d 592 (2d Cir. November 24, 1993), and will not be restated here unless pertinent or necessary to the determination of this successive petition.

 On August 5, 1985, Niagara County Judge Aldo L. DiFlorio sentenced petitioner as a predicate felon to an indeterminate term of imprisonment of 9 to 18 years on the manslaughter conviction and one year on the assault conviction, with the sentences to run concurrently. On direct appeal to the Appellate Division, Fourth Department, petitioner argued that:

 
(1) the trial court erred by allowing a rebuttal witness to present evidence that had previously been suppressed;
 
(2) the trial court failed to give the jury a limiting instruction on the consideration to be given the rebuttal witness's testimony;
 
(3) the trial court improperly charged the jury on principal and accessorial liability;
 
(4) he was denied effective assistance based on trial counsel's:
 
(a) failure to request limiting instructions on the consideration to be given the rebuttal testimony;
 
(b) failure to object to the rebuttal witness's testimony;
 
(c) failure to object to the court's "interested witness" charge;
 
(d) failure to object to the court's improper charge on principal and accessorial liability; and
 
(e) failure to object to the sentence; and,
 
(5) the court sentenced him based on the erroneous belief that the minimum allowable sentence was 9 to 18 years (see Pro Se Appellate Brief dated April 2, 1987, State Court Records).

 At resentencing on January 1, 1988, Judge DiFlorio gave petitioner the same 9 to 18 year term. Petitioner appealed, arguing that the judge should not have used his February, 1979 conviction, entered on a plea of guilty to robbery charges filed against him in 1978 when he was 14 years old, as a predicate felony to enhance his sentence. He also argued that the sentence was harsh and vindictive.

 On July 12, 1989, the Fourth Department affirmed the judgment on resentencing. The court found that a prior juvenile offender felony conviction is a predicate felony for sentencing purposes, and that there was no merit to petitioner's arguments that his sentence was harsh and excessive. People v. Jones, 152 A.D.2d 917, 917, 544 N.Y.S.2d 745, 745 (4th Dept. 1989). Leave to appeal to the Court of Appeals was denied on September 15, 1989. People v. Jones, 74 N.Y.2d 848, 546 N.Y.S.2d 1013 (1989).

 Meanwhile, on June 29, 1988, petitioner filed his original petition for habeas corpus (No. 88-CV-0688E) with this court, in which he raised the following six grounds for relief: *fn1"

 
(1) improper use of previously suppressed evidence on rebuttal;
 
(2) failure to properly instruct the jury as to how that evidence should be considered;
 
(3) improper jury instruction on accessorial liability;
 
(4) denial of effective assistance of trial counsel;
 
(5) denial of right to be present at all material stages of the trial; and
 
(6) failure to instruct the jury as to manslaughter in the second degree as a lesser included offense of second degree murder.

 On June 9, 1992, No. 88-CV-0688E was referred to the undersigned to hear and report, pursuant to 28 U.S.C. § 636(b)(1)(B). Upon being informed that petitioner's previously assigned counsel could not continue in her representation, this court assigned new counsel, allowed further amendment of the petition and set a new briefing schedule. An amended petition was filed on November 2, 1992, asserting the following four grounds for relief:

 
(1) failure to instruct the jury as to second degree manslaughter as a ...

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