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FLETCHER v. MANN

February 4, 1997

TIMOTHY FLETCHER, Petitioner,
v.
LOUIS F. MANN, Respondent.



The opinion of the court was delivered by: SCULLIN

 Presently before this Court is petitioner Timothy Fletcher's pro se petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.

 Petitioner is currently incarcerated at the Shawangunk Correctional Facility in Wallkill, New York, a state prison facility. In his petition for a writ of habeas corpus, petitioner alleges: (1) the prosecution failed to provide notice of grand jury proceedings as required by statute, and thus he was denied the opportunity to testify; (2) identification procedures violated his statutory and constitutional rights; (3) he was illegally sentenced as a persistent felony offender; (4) he was denied the effective assistance of trial counsel due to a conflict of interest; (5) he was denied due process of law by the prosecutor's improper conduct during summation; (6) he was denied due process of law by the conduct of the trial court; (7) he was denied a fair trial by the court, prosecutor and defense counsel; and, (8) he was denied the effective assistance of appellate counsel. The Court will consider these claims seriatim.

 BACKGROUND

 In August of 1988, petitioner participated in an uprising at Coxsackie Correctional Facility in which 32 inmates took control of the "special housing unit" and held five corrections officers hostage for 14 hours. As a consequence, petitioner was indicted on 13 counts for various crimes. After a trial, petitioner was acquitted on seven counts and convicted on the remaining six, which included two counts of promoting prison contraband in the first degree, two counts of criminal possession of a weapon in the third degree, one count of promoting prison contraband in the second degree, and one count of menacing.

 Petitioner was treated as a persistent felon and sentenced to concurrent prison terms of 15 years to life for the four felony convictions and concurrent terms of one year for promoting prison contraband in the second degree and six months for menacing.

 Petitioner appealed the judgment of conviction to the Appellate Division, Third Department. Before the Appellate Division he argued: (1) he was not notified of grand jury proceedings; (2) his identification should have been suppressed; (3) the persistent felony offender finding was illegal; (4) he was denied effective assistance of trial counsel; and, (5) he was denied a fair trial. The Appellate Division affirmed the conviction on December 26, 1991. People v. Fletcher, 178 A.D.2d 776, 578 N.Y.S.2d 266 (3d Dep't 1991), leave to appeal denied, 79 N.Y.2d 1000 (1992).

 Petitioner moved to vacate the judgment in Greene County Court, claiming, inter alia, that he was denied effective assistance of counsel due to a conflict of interest, that the prosecutor engaged in improper conduct during summation, and that he was illegally sentenced as a persistent felon. The motion was denied by Decision dated January 28, 1993. Permission to appeal to the Appellate Division, Third Department, was denied by Order dated March 31, 1993. Petitioner's application for permission to appeal to the New York Court of Appeals was denied by Order dated June 10, 1993.

 Petitioner made an application to the Appellate Division, Third Department, for a writ of error coram nobis on the ground of ineffective assistance of counsel on his direct appeal. This application was denied on April 14, 1994, and petitioner's subsequent application for permission to appeal to the New York Court of Appeals was dismissed.

 Petitioner filed this petition for a writ of habeas corpus on September 25, 1995.

 DISCUSSION

 I. State Procedural Defaults

 With respect to petitioner's first and fifth claims, this Court is procedurally barred from hearing them. 28 U.S.C. § 2254(a) provides:

 
The Supreme Court, a Justice thereof, a circuit judge, or a district court shalt entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in ...

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