Judge Berman held an informal hearing on Petitioner's motion on January 20, 1989, after having reviewed the plea minutes and Meachem's submission. The court determined that the claims of coercion were unfounded. With respect to his claim of coercion by defense counsel based upon having been rushed into "copping out," the court noted that there had been extensive plea discussions prior to the suppression hearing, and, after the State presented its evidence, defense counsel "took an extended period of time to discuss the matter with the defendant" before he pled guilty. (ST. at 10-12.) Moreover, Judge Berman pointed to the detailed inquiry he made into whether Meachem was satisfied with counsel and the advice rendered by counsel. (Id. at 13-15.) He also noted the responses he received to the questions that he had posed to Meachem to ensure that the plea was voluntary. (Id. at 16.) In addition, Judge Berman rejected a related claim that Meachem raised for the first time during the hearing -- that he was coerced into changing his plea since the court allegedly refused his request for additional time in order to pray to Allah -- based on the fact that the record did not reflect, nor did he recall, such a request. (Id. at 9.)
With respect to whether Meachem knowingly entered into his plea, the court noted that, at the plea allocution, it had extensively questioned Petitioner about the crime, his state of mind, and his understanding of court proceedings. (Id. at 15, 17-18.) Meachem's affirmative responses, combined with the fact that, during court proceedings he appeared articulate, intelligent, and knowledgeable with respect to the law (id. at 12-13), had supported the trial court's conclusion that the plea was knowing and intelligent (id. at 18). Upon review of the plea allocution record, Judge Berman concluded, "I was satisfied then that he had entered the plea voluntarily, intelligently and knowingly, and despite his charge to the contrary . . . I still am satisfied that he has knowingly, intelligently and voluntarily entered into this plea." (Id.)
Based upon the above conclusion, the court denied Petitioner's motion to withdraw the plea (id. at 18), and his request for another psychiatric evaluation (id. at 13). Meachem was then sentenced as a predicate felony offender. (Id. at 22-23.)
Respondent does not contest that Petitioner's claim challenging the constitutionality of his guilty plea has been presented to New York State's highest court and is therefore exhausted. However, Respondent argues that Petitioner's sentencing claim is not entitled to federal habeas review, since it is not exhausted. (Remer-Smith Aff. P 9.)
An application for a writ of habeas corpus may not be heard unless all available state court remedies have been exhausted. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438 (1971); Ellman v. R.E. Davis, 42 F.3d 144, 147 (2d Cir. 1994). Where state law affords a petitioner the right to raise a constitutional claim "by any available procedure," and the claim is not raised, it cannot be exhausted. Id. See also 28 U.S.C. § 2254(c).
"It is not sufficient merely that the [petitioner] . . . has been through the state courts." Picard, 404 U.S. at 275-76, 92 S. Ct. at 512. Rather, the federal claims must be "fairly presented" to the state courts so that the state has an opportunity to correct any alleged constitutional violations. Id., 404 U.S. at 276, 92 S. Ct. at 512-13; Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380, reh'g denied, 490 U.S. 1076, 109 S. Ct. 2091, 104 L. Ed. 2d 654 (1989); McGann v. New York, 870 F.2d 908, 910 (2d Cir. 1989), Daye v. Attorney Gen. of New York, 696 F.2d 186, 191-92 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S. Ct. 723, 79 L. Ed. 2d 184 (1984); Alvarez v. Scully, 1993 U.S. Dist. LEXIS 225, No. 91 Civ. 6651 (PKL), 1993 WL 15455, *3 (S.D.N.Y. January 11, 1993), aff'd without opinion, 23 F.3d 397 (2d Cir. 1994). See also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, U.S. , 115 S. Ct. 1436, 131 L. Ed. 2d 316 (1995) ("to fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'") (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam)).
In the present action, Petitioner asserted only a single claim -- that the trial court erred in denying his motion to withdraw his guilty plea -- when he sought leave to appeal to the Court of Appeals. See Leave Letter, Resp. App. Ex. H. Because the sentencing claim that Petitioner raised on direct appeal to the Appellate Division was not appealed to the State's highest court, this claim has not been exhausted. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ("The fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned.").
In short, Petitioner has only exhausted one of his two claims for habeas relief. He has therefore presented this Court with a mixed habeas petition, containing both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 520, 102 S. Ct. 1198, 1205, 71 L. Ed. 2d 379 (1982); Gatto v. Hoke, 809 F. Supp. 1030, 1035 (E.D.N.Y.), aff'd without opinion, 986 F.2d 500 (2d Cir. 1992). Although the court must dismiss a mixed petition so as to allow the petitioner to exhaust his unexhausted claim or to file another petition without it, Rose, 455 U.S. at 510, 102 S. Ct. at 1199; Bossett, 41 F.3d at 828; Grey, 933 F.2d at 120, if the petitioner no longer has "remedies available" in the state courts because he is procedurally barred by state law from raising the unexhausted claim, the court may deem that claim exhausted. Engle v. Isaac, 456 U.S. 107, 125-26 n.28, 102 S. Ct. 1558, 1570-71 n.28, 71 L. Ed. 2d 783, reh'g denied, 456 U.S. 1001, 102 S. Ct. 2286, 73 L. Ed. 2d 1296 (1982); Bossett, 41 F.3d at 828; Grey, 933 F.2d at 120-21 (citing Harris v. Reed, 489 U.S. 255, 263 n.9, 109 S. Ct. 1038, 1043 n.9, 103 L. Ed. 2d 308 (1989)); Holmes v. Bartlett, 810 F. Supp. 550, 554 (S.D.N.Y. 1993).
Here, Petitioner is procedurally barred from raising his unexhausted sentencing claim in the New York State courts, since a person is entitled to only one request for leave to appeal to the New York State Court of Appeals and Petitioner has already availed himself of that opportunity. See N.Y. Court Rules § 500.10(a); Bossett, 41 F.3d at 829; Grey, 933 F.2d at 120; Holmes, 810 F. Supp. at 554-555 Collateral review of this claim in the New York State courts is also precluded since it could have been raised on direct appeal and determined on the basis of the existing record, but it was not. See N.Y. Criminal Procedure Law § 440.10(2)(c); People v. Cooks, 67 N.Y.2d 100, 101, 491 N.E.2d 676, 500 N.Y.S.2d 503 (1986).
Because New York courts would find Petitioner's unexhausted claim barred from review, it would be fruitless to require Petitioner to return to state court to exhaust it. Bossett, 41 F.3d at 829; Grey, 933 F.2d at 120; Holmes, 810 F. Supp. at 555. The claim is therefore procedurally defaulted. See Ellman, 42 F.3d at 147; Bossett, 41 F.3d at 829; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, U.S. , 114 S. Ct. 895, 127 L. Ed. 2d 87 (1994).
Petitioner may only receive federal habeas review for his procedurally defaulted sentencing claim if he can establish "cause and prejudice" for the default, see Teague v. Lane, 489 U.S. 288, 297-99, 109 S. Ct. 1060, 1067-69, 103 L. Ed. 2d 334, reh'g denied, 490 U.S. 1031, 109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989), or that failure to consider his claim will result in a "fundamental miscarriage of justice." Murray v. Carrier, 477 U.S. 478, 495, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986); see also Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).
In the present case, Petitioner cannot establish cause for failing to raise the sentencing claim in his application for leave to appeal to the Court of Appeals. The factual and legal bases for this claim were "reasonably available" to his appellate counsel, since it involved the sentencing proceeding and therefore was part of the record on appeal. See Murray, 477 U.S. at 488, 106 S. Ct. at 2645. In fact, the Appellate Division considered and rejected this claim when Petitioner appealed his conviction to that court. Nor has Petitioner alleged any interference by state officials making compliance with state procedural rules impracticable, or claimed ineffective assistance of appellate counsel, to demonstrate cause. See Murray, 477 U.S. at 488, 106 S. Ct. at 2645. "As Petitioner has failed to establish 'cause', in other words why he did not raise these claims at the appropriate time and in the appropriate forum, it is unnecessary to make an inquiry into the question of prejudice." Bentley v. Scully, 851 F. Supp. 586, 604 (S.D.N.Y.), vacated on other grounds, 41 F.3d 818 (2d Cir. 1994).
Finally, Petitioner's procedural default may not be excused because there has been a "fundamental miscarriage of justice." A miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S. Ct. at 2649; Washington, 996 F.2d at 1447. Petitioner's sentencing claim has no bearing on his guilt or innocence, nor is there anything in the record to suggest that Petitioner is innocent. The miscarriage of justice standard therefore has not been met.
In sum, since Petitioner has not established cause and prejudice for his procedural default, or that a fundamental miscarriage of justice would result from this Court's failure to review the defaulted claim, so as to excuse the procedural default, the Court is precluded from addressing the merits of Petitioner's sentencing claim.
However, since Petitioner exhausted his state court remedies with respect to the constitutional challenge to his guilty plea, this claim will be addressed on the merits.
II Petitioner's Guilty Plea
Petitioner claims that the trial court erred in denying his motion to withdraw his guilty plea, since it was the product of "coercion and confusion." (Pet. at 5.) It is my view, consistent with that of the unanimous opinion of the Appellate Division, which rejected Petitioner's argument on direct appeal, that this claim is without merit.
It is well settled that the Due Process Clause of the Constitution requires an affirmative showing that an accused's plea of guilty is entered knowingly and voluntarily before the trial court may accept the plea. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). See also Godinez v. Moran, U.S. , 113 S. Ct. 2680, 2687, 125 L. Ed. 2d 321 (1993); Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992), reh'g denied, U.S. , 113 S. Ct. 1068, 122 L. Ed. 2d 372 (1993); Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984). In order to ensure that a defendant's guilty plea represents "'a voluntary and intelligent choice among the alternative courses of action open to the defendant,'" Parke, U.S. , 113 S. Ct. at 523 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970)), the trial court judge must make a searching inquiry into the circumstances surrounding the plea. See Boykin, 395 U.S. at 243-44, 89 S. Ct. at 1712 ("what is at stake . . . demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has full understanding of what the plea connotes and of its consequence.")
On habeas review, the question of whether a guilty plea -- which results in a defendant's conviction as well as a waiver of constitutional rights -- has been entered voluntarily within the meaning of the Constitution, "is a complex one that involves questions of law and questions of fact." Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. dismissed, 479 U.S. 805, 107 S. Ct. 248, 93 L. Ed. 2d 172 (1986); see also Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir. 1992); Oppel v. Meachum, 851 F.2d 34, 37 (2d Cir.), cert. denied, 488 U.S. 911, 109 S. Ct. 266, 102 L. Ed. 2d 254 (1988). As such, "'the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law' . . . [but] questions of historical fact, including inferences properly drawn from such facts, are in this context entitled to the presumption of correctness accorded state court factual findings under 28 U.S.C. § 2254(d)."
Parke, U.S. , 113 S. Ct. at 526 (quoting Marshall v. Lonberger, 459 U.S. 422, 431-32, 103 S. Ct. 843, 849, 74 L. Ed. 2d 646 (1983)).
Questions as to a defendant's competence to enter into a guilty plea are among those historical facts entitled to deference by a federal court on habeas review. See Demosthenes v. Baal, 495 U.S. 731, 735-36, 110 S. Ct. 2223, 2225, 109 L. Ed. 2d 762 (1990) (state court's conclusion as to competency entitled to presumption of correctness); Maggio v. Fulford, 462 U.S. 111, 117, 103 S. Ct. 2261, 2264, 76 L. Ed. 2d 794, reh'g denied, 463 U.S. 1236, 104 S. Ct. 29, 77 L. Ed. 2d 1451 (1983) (same); Marshall, 459 U.S. at 435, 103 S. Ct. at 851 (federal habeas court bound to respect trial court's finding that defendant was intelligent); Matusiak, 786 F.2d at 543 (finding of trial court that petitioner had knowledge of charges and was competent to stand trial are questions of fact, subject to requirements of § 2254(d)). Where the record fairly supports a state court's factual findings, and they are therefore presumed to be correct, a petitioner must establish by "convincing evidence" that the State court's findings were erroneous. Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993); Ventura, 957 F.2d at 1054, 1056.
In the present action, there is ample support in the record for the trial court's finding at the hearing on Petitioner's motion that, based upon Petitioner's plea allocution, his motion papers, and the evidence and prior proceedings, the plea was knowing and voluntary. At the outset of the plea allocution, Judge Berman advised Petitioner to consult with defense counsel during plea proceedings if he did not understand any questions, which Petitioner did at least once during the allocution. Judge Berman read the portions of the indictment related to the charged crimes and asked detailed questions regarding the circumstances of the incident and Petitioner's decision to plead guilty. Petitioner recounted the facts giving rise to the crime, and presented an account that was consistent with the evidence presented at the suppression hearing. Petitioner acknowledged that he was guilty of the crimes to which he was pleading guilty.
Petitioner specifically affirmed at the plea allocution that he was pleading voluntarily, without threats or coercion by anyone. In addition, Meachem stated that he understood each of the constitutional rights that he was relinquishing, that he was in good physical health, and that he understood the nature of the plea proceedings. After this detailed inquiry the trial court accepted his plea. Based upon the above facts, there is ample support in the record for the trial court's determination that Petitioner's plea was knowing, voluntary and intelligent. See, e.g., Isaraphanich v. United States, 632 F. Supp. 1531, 1533 (S.D.N.Y. 1986) (where petitioner recounted the facts of the crime to which he was pleading guilty, was informed of the rights he was waiving by pleading guilty, and denied that he was pressured into changing his plea, habeas court held that plea was voluntary and knowing).
Nonetheless, Petitioner claims that defense counsel coerced him into pleading guilty. The record fully supports the trial court's conclusion that Petitioner was not subject to any such coercion. Petitioner had initially entered a plea of innocent and resisted earlier attempts at a plea agreement. It was only after hearing the evidence at the suppression hearing and the court asked whether he was open to reconsidering his plea, that he changed his mind. Judge Berman asked numerous questions at the plea allocution to determine whether Petitioner was satisfied with his counsel's advice and representation. Petitioner answered these questions in the affirmative. Judge Berman subsequently noted that he had asked such questions because Petitioner had previously interposed and then withdrawn a motion for new counsel. In light of Petitioner's affirmative responses, and in the absence of evidence to the contrary, the state court's finding is entitled to deference.
See Ventura, 957 F.2d at 1056 (state court's finding that petitioner's plea was not involuntary, where petitioner claimed attorney's letter and alleged "closed-door deal" induced him to lie, was granted deference by federal habeas court, since petitioner answered court's questions affirmatively during a thorough plea allocution).
Further, even if defense counsel had advised Petitioner to change his plea based upon the State's evidence of his guilt, strong advice under such circumstances does not constitute coercion. See, e.g., Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir.) (advice based on the strength of State's case and the weakness of the defense is not coercive), cert. denied, 429 U.S. 849, 97 S. Ct. 136, 50 L. Ed. 2d 122 reh'g. denied, 429 U.S. 988, 97 S. Ct. 512, 50 L. Ed. 2d 601 (1976); Mead v. Walker, 839 F. Supp. 1030, 1034 (S.D.N.Y. 1993) (habeas petitioner was not coerced by trial counsel into accepting plea, where the record indicated that prosecution's case was strong and the likelihood of conviction was high); Gunn v. Kuhlman, 479 F. Supp. 338, 343 (S.D.N.Y. 1979) ("the fact that counsel, upon a realistic appraisal of the situation, may have strongly impressed his view upon the petitioner is not in itself improper, in the absence of any showing that [petitioner's] will was overborne.").
With respect to Petitioner's claim of coercion by the trial court in pressing him for a decision, there is no suggestion in the record of any request by Petitioner for an extension of time to consider the State's plea offer -- for religious, or any other, reasons. Indeed, at the hearing on Petitioner's motion, Judge Berman explicitly found that no such request had been presented to the trial court. In addition, as Judge Berman noted, Petitioner had ample time to consider changing his plea, both before and after the State presented evidence at the suppression hearing. The record supports the trial judge's conclusion, since it indicates that Petitioner had been aware of his plea options, and there had been some plea discussions, long before the suppression hearing had commenced. See Psychiatric Evaluation dated March 4, 1988, Resp. App. Ex. B. In sum, the record provides no support for Petitioner's bare allegations that the trial court had placed him under undue time constraints to decide whether to plea guilty. Accordingly, he has failed to meet his burden of showing convincing evidence of coercion by the court. See Senna, 5 F.3d at 20; Ventura, 957 F.2d at 1056.
In her brief on direct appeal, Petitioner's counsel also argued that Petitioner was especially vulnerable to coercion, due to the combination of his prior mental illness and drug addiction, and the stress of having been accused of murdering his sister. Emotional turmoil from being accused of a crime does not give rise to a finding of coercion.
See. e.g., Fluitt v. Superintendent, Green Haven Correctional Facility, 480 F. Supp. 81, 86 (S.D.N.Y. 1979) ("'Distress' and 'nervousness' are the characteristics of most persons facing immediate trial under a criminal prosecution. To accept such a normal emotional reaction as a ground to vitiate a plea entered only after extensive questioning of a defendant to assure its constitutional validity, would make a shambles of the guilty plea procedure.").
In addition, Petitioner asserts that he was "confused" during the plea allocution due to his prior mental illness, and therefore, the plea was unknowing.
The trial court confirmed six months prior to the plea allocution, upon defense counsel's motion, that Petitioner was competent to proceed. Neither the trial judge nor defense counsel subsequently saw any reason to request re-examination of Petitioner. When Petitioner sought a competency examination in conjunction with his motion to withdraw the plea, the court determined that one was not warranted. Rather, the court found that there was nothing about Meachem's demeanor or ability to express himself to suggest that he was incompetent. On the contrary, the trial judge determined that Petitioner appeared intelligent and articulate in court, which finding is entitled to deference on habeas review. See, e.g., Marshall, 459 U.S. at 434, 103 S. Ct. at 851 ("Title 28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.").
Indeed, Petitioner's own responses during the plea proceedings refute any notion that he was confused either about the charges or the conditions of the plea. Moreover, when he made the motion to withdraw his plea, Petitioner conceded that he had understood the proceedings, his sentencing options, and that he was pleading guilty to a lesser charge. Under these circumstances, there is no basis for Petitioner's claim that his plea was unknowing due to his alleged impaired mental state at the time.
See, e.g., Demosthenes, 495 U.S. at 735-36, 110 S. Ct. at 2225 (habeas relief based on claim that petitioner was not competent to enter into guilty plea denied, where psychiatrists had found petitioner fit to proceed, and trial court had concluded that petitioner was competent after observing him in court and questioning him on the record); Maggio, 462 U.S. at 117-18, 103 S. Ct. at 2264 (trial court's finding that habeas petitioner was competent to stand trial was fairly supported by the record, where judge observed his conduct and defense counsel had failed to seek psychiatric examination until late into proceedings); Mead v. Walker, 839 F. Supp. 1030, 1033-34 (S.D.N.Y. 1993) (where psychiatric reports showed that habeas petitioner had been fit to proceed in his own defense, and the plea allocution record revealed that petitioner was able to comprehend proceedings and was articulate, habeas court affirmed trial court's finding that petitioner's plea was knowing).
Petitioner's appellate counsel also pointed to purported deficiencies in the factual allocution in support of the claim that the plea was unknowing. Specifically, counsel claimed that Petitioner had not admitted the mens rea of recklessness for the manslaughter charge, and that Petitioner did not admit to any connection between threatening the victim with a knife and robbing her of her property. (Pet. App. Brief at 16-17.) To the contrary, the record reveals that the court read the indictment to Petitioner and Petitioner acknowledged that he was guilty of the charged crimes. Petitioner's guilt as to each element of the crimes to which he pled was also conceded by his description of his actions on the night of the incident.
It was apparent from Petitioner's admissions, therefore, that his conduct satisfied each element of the crimes, and that he was not confused. Cf. Panuccio v. Kelly, 927 F.2d 106, 110-11 (2d Cir. 1991) (although habeas petitioner had not expressly admitted an element of the crime to which he pled guilty, plea was upheld because he clearly understood the charges against him); Willbright, 745 F.2d at 780-81 (factual basis inquiry unnecessary to assure that plea comported with due process where circumstances indicated that such an inquiry was not necessary, since plea was in open court, petitioner denied he was coerced, judge had knowledge of underlying facts from other proceedings, and trial counsel was not incompetent).
Moreover, this Court can presume that Petitioner's trial counsel made him aware of the elements of the crimes to which he pled guilty. See, e.g., Marshall, 459 U.S. at 436, 103 S. Ct. at 852 ("respondent must be presumed to have been informed, either by his lawyers or at one of the presentencing proceedings, of the charges on which he was indicted."); Oppel, 851 F.2d at 38 (habeas petitioner's claim that plea was unknowing because trial court failed to inform him that intent was required element of murder was without merit, since "it is normally presumed that the defendant is informed by his attorney of the charges against him and the elements of those charges.").
Since Petitioner's plea was knowing, voluntary, and intelligent, the trial court did not err in denying his motion to withdraw the plea. See Gonzalez v. Green Haven Correctional Facility, No. 85 Civ. 3775 (CSH), 1986 WL 1194, ** 4-5 (S.D.N.Y. January 17, 1986) (trial court did not erroneously deny petitioner's motion to withdraw his guilty plea where there was no indication in the record of plea proceedings that petitioner did not understand the court's questions, and petitioner did not present objective evidence of confusion); Gunn, 479 F. Supp. at 343-44 (where the plea was not constitutionally defective, and the trial court made necessary inquiries into factual bases for the plea, the trial court properly rejected petitioner's motion to withdraw the plea, and as such, habeas relief was not warranted).
Therefore, Petitioner is not entitled to the habeas relief that he seeks.
For the reasons set forth above, I respectfully recommend that the petition for a writ of habeas corpus be denied and that the action be dismissed. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten days from service of this report to file written objections. See also Fed. R. Civ. P. 6(a) and 6(e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, U.S. , 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
Dated: New York New York
July 20, 1995
Theodore H. Katz
United States Magistrate Judge