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January 16, 1998

ROGERS SHORT, Petitioner,

The opinion of the court was delivered by: HECKMAN

 In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this application for relief pursuant to 28 U.S.C. § 2255. On November 13, 1997, an evidentiary hearing was held on the issue of whether trial counsel's assistance was effective within the meaning of the Sixth Amendment. For the following reasons, petitioner's application is denied.


 On July 1, 1994 petitioner entered a guilty plea to a one-count indictment charging him with bank robbery. On August 26, 1994 Hon. John T. Elfvin sentenced petitioner to a 78-month prison term and ordered him to pay a special assessment and restitution. On September 8, 1994, a corresponding judgment of conviction was entered, and no direct appeal was filed. Petitioner was represented by Assistant Federal Public Defender John Humann, Esq., at both his plea hearing and sentencing hearing.

 On January 31, 1997 petitioner filed this application to vacate his conviction and sentence, pursuant to 28 U.S.C. § 2255 (Item 12). Petitioner asserted the following grounds for § 2255 relief:

1. Ineffective assistance of counsel for advising petitioner to plead guilty without an evaluation of petitioner's mental capacity;
2. Abuse of discretion by the court for failing to question counsel about petitioner's history of mental illness;
3. Denial of due process based on the court's acceptance of the guilty plea without a psychiatric or psychological evaluation; and,
4. Ineffective assistance of trial counsel for failing to appeal the sentence imposed, which was in excess of the sentence represented by the government in the plea agreement.

 On March 3, 1997 the government moved to dismiss the application. On May 21, 1997 Judge Elfvin granted the government's motion to dismiss grounds 2 through 4. However, Judge Elfvin denied the motion to dismiss petitioner's ineffective assistance claim as it pertains to advice rendered in the absence of a mental capacity evaluation. In his memorandum and order, Judge Elfvin stated that petitioner "made a sufficient showing to be entitled to an evidentiary hearing on his ineffective assistance of counsel claim." Short v. United States, 1997 U.S. Dist. LEXIS 7407, 1997 WL 276229, at *2 (W.D.N.Y. May 21, 1997)(Item 20, p. 10).

 On May 22, 1997, Judge Elfvin referred this matter to the undersigned for the purpose of assigning counsel to represent petitioner, conducting an evidentiary hearing on petitioner's claim of ineffective assistance of counsel, and filing a report and recommendation pursuant thereto (Item 21). In accordance with this referral, the court assigned counsel (Item 22), and the parties subsequently consented to have the undersigned conduct all further proceedings (Item 24).

 The hearing took place on November 13, 1997 before the undersigned. As an initial matter, the court addressed Mr. Humann's motion to quash the respondent's subpoena directing members of the Federal Public Defender's Office to testify at the hearing (Item 25). After petitioner expressly waived the attorney-client privilege as to the issues involved in the hearing, the court denied the motion.

 The court then heard testimony from three witnesses: FBI Special Agent Thomas Minton, Assistant Federal Public Defender Kimberly A. Schechter, Esq., and Mr. Humann. Petitioner did not testify.

 Agent Minton testified that in April of 1994, he was assigned to the bank robbery squad of the Buffalo FBI office. He conducted an investigation of a robbery at the Bailey/Kensington branch of the Marine Midland Bank, which occurred on April 11, 1994. He retrieved evidence collected by the Buffalo Police Department, including latent fingerprints, items of clothing and a demand note (Ex. 2). He also received bank surveillance photographs (Exs. 1A and 1B).

 On May 4, 1994, Agent Minton responded to a tip that the individual who conducted the April 11, 1994 robbery was in the vicinity of the bank. He proceeded to the area, accompanied by Special Agents Gary Adams and Michael McKinney. Upon arriving at the bank, Agent Minton observed petitioner standing outside the bank. He recognized petitioner from the bank surveillance photograph. Petitioner began walking south on Bailey Avenue. He turned east on Kensington Avenue, and stopped to urinate on the side of a building. The agents parked their car and approached petitioner. One of the agents called to petitioner to get his attention. Petitioner initially appeared to be agitated, but became calm and cooperative when the agents explained that they were not concerned about his urinating in public but wanted to speak with him about another matter. Petitioner agreed to accompany the agents to the FBI office in downtown Buffalo.

 Agent Minton testified that upon arriving at the downtown FBI office, he advised petitioner that he wanted to ask him about his involvement in the April 11 bank robbery. Before conducting the interview, Agent Minton read petitioner his Miranda rights. Petitioner acknowledged his understanding of his rights, and signed a "Waiver of Rights" (Ex 3). Minton then showed petitioner the bank surveillance photographs. Petitioner stated that it was him depicted in the photographs. He wrote on the back of one of the photographs, "This is me, Rogers Short" (Ex. 1B).

 During the interview, petitioner admitted that he committed the robbery. He stated that prior to the robbery he went to the Salvation Army store a few blocks from the bank and obtained a long winter coat and hat, which he wore during the robbery. Upon leaving the bank after the robbery, he discarded the coat and hat outside the bank and returned to the Salvation Army store to obtain other clothing. Petitioner made a written statement to this effect (Ex. 4).

 Ms. Schechter was called by petitioner as the next witness. Ms. Schechter testified that she interviewed petitioner on May 5, 1994, in the court lock-up prior to his initial appearance before the undersigned, at which she was assigned to represent him. He was loud and agitated during the interview. She questioned petitioner about his mental health. He told her that he was schizophrenic, and had been in several psychiatric hospitals over the years. He also told her that he had previously been incarcerated in a federal prison in Missouri, and had spent part of that incarceration in the hospital of that facility. Ms. Schechter testified that she attempted to obtain medical records from the ...

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