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BENN v. STINSON

July 17, 1995

RONALD BENN, Petitioner, against JAMES STINSON, Superintendent, Great Meadows Correctional Facility, Respondent.


The opinion of the court was delivered by: PECK

 TO THE HONORABLE SIDNEY H. STEIN, United States District Judge:

 Ronald Benn filed this petition for a writ of habeas corpus alleging that he was denied effective assistance of appellate counsel because in appealing his murder conviction, his appellate counsel failed to appeal the fact that Benn allegedly was not present during the closing argument and jury instruction phases of his trial. Benn's habeas corpus petition was referred to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 4 of the S.D.N.Y.'s Rules for Proceedings before Magistrate Judges. For the reasons set forth below, I recommend that Benn's petition for a writ of habeas corpus be denied.

 FACTS

 Benn's Trial and Conviction

 On August 24, 1981, petitioner Ronald Benn was convicted of two counts of murder in the second degree, and one count of attempted murder in the second degree. (Trial Transcript ["Tr."] at 539.) Benn was sentenced, as a predicate felony offender, to concurrent indeterminate prison terms of 25 years to life on the two murder counts and 12-1/2 to 25 years on the attempted murder conviction. (Resentencing Minutes at 8.)

 Benn's Direct Appeal in State Court

 In a brief filed in March 1984, Benn's appellate counsel raised three grounds for relief: (1) the admission of Benn's confession violated his constitutional and statutory rights; (2) the trial court improperly allowed the jury to hear details of Benn's arrest and conviction on an unrelated robbery; and (3) Benn's sentence was excessive. ("Brief for Defendant-Appellant," dated March 1984 ("3/84 Brief"), at 10-19.)

 In an unpublished memorandum decision, the Appellate Division unanimously affirmed Benn's conviction on October 11, 1984. People v. Benn, 104 A.D.2d 1059, 481 N.Y.S.2d 841 (1st Dep't 1984). Leave to appeal to the New York Court of Appeals was denied on November 28, 1984. People v. Benn, 64 N.Y.2d 648, 485 N.Y.S.2d 1033, 474 N.E.2d 262 (1984).

 Benn's State Court Collateral Attacks on His Conviction

 In May 1988, Benn applied pro se to the Appellate Division for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. Benn argued that appellate counsel's representation was ineffective in that he neglected to appeal trial counsel's failure to suppress defendant's identification testimony. On June 30, 1988, the Appellate Division unanimously denied Benn's application. People v. Benn, No. M-1861, 1988 N.Y. App. Div. LEXIS 8096 (1st Dep't June 30, 1988).

 In June 1993, almost twelve years after his conviction, Benn filed a second pro se application for a writ of error coram nobis, alleging for the first time the grounds that Benn now pursues in his present federal habeas corpus petition: appellate counsel was ineffective because he allegedly failed to argue that Benn was absent during summations and the court's charge and instead raised only "frivolous" appeal issues. ("Petition for a Writ of Error Coram Nobis, " dated June 23, 1993, at 6-10.) On September 23, 1993, the Appellate Division unanimously denied petitioner's application. People v. Benn, 196 A.D. 948, 603 N.Y.S.2d 722 (1st Dep't 1993).

 Benn's Federal Habeas Corpus Petition

 Benn now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Benn alleges that (1) he was denied effective assistance of appellate counsel because counsel allegedly did not appeal Benn's absence at his trial, and (2) but for this ...


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