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HOGAN v. WARD

March 20, 1998

PAUL D. HOGAN, Petitioner,
v.
C. WARD, Superintendent of Mt. McGregor Correctional Facility, Respondent.



The opinion of the court was delivered by: HECKMAN

 The parties have consented pursuant to 28 U.S.C. § 636(c) to have the undersigned conduct all further proceedings in this petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons that follow, the petition is denied.

 BACKGROUND

 On March 16, 1994, petitioner appeared before Hon. Henry J. Scudder in Steuben County Court. Petitioner was represented by Philip Roche, Esq. As reflected by the transcript of the plea proceedings, after discussing the matter with his attorney, petitioner entered a plea of guilty to the crime of attempted murder in the second degree, charged in Superior Court Information No. W-7344 under New York Penal Law §§ 110.05 and 125.25 *fn1" (see Item 10, Ex. 8). Petitioner also agreed to waive grand jury presentment. Counsel stated on the record that the plea agreement was entered with the understanding that the sentence would be a prison term of four to twelve years (id., pp. 2-5).

 During the plea proceedings, the following colloquy took place:

 
THE COURT: . . . Now, as to the charge itself then, let me ask you on February 4th, 1994, did you place a wire from a distributor to a sparkplug and then place the sparkplug into the gas tank filler of a particular van belonging to Charles Robert Hatcher, did you do that?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: And did you do that such that when the ignition key would be turned a spark would be generated at the plug and cause the vapors to ignite?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: And then did you do that with the intent to cause the death of Charles Robert Hatcher?
 
THE DEFENDANT: Yes, sir.

 (Id., pp. 10-11).

 On April 25, 1994, Judge Scudder sentenced petitioner to a minimum prison term of four years and a maximum term of twelve years (id., Ex. 9). Petitioner filed a notice of appeal to the Appellate Division, Fourth Department. Howard K. Broder, Esq., was assigned as appellate counsel. Mr. Broder filed a brief on petitioner's behalf in which he asserted the ground of excessive sentence. On December 23, 1994, the Fourth Department unanimously affirmed the judgment of conviction, without opinion. People v. Hogan, 210 A.D.2d 1013, 620 N.Y.S.2d 873 (4th Dept. 1994). On January 27, 1995, the Court of Appeals denied leave to appeal. 84 N.Y.2d 1032.

 Petitioner subsequently moved pro se pursuant to N.Y. Crim. Proc. L. § 440.10 to vacate the judgment on the following grounds:

 
1. The felony complaint was jurisdictionally defective because it failed to contain non-hearsay allegations establishing every element of the offense charged;
 
2. The felony complaint was defective because it was not signed or supported by deposition; and,
 
3. Ineffective assistance of counsel.

 (Id., Ex. 3). Judge Scudder denied the motion, and the Fourth Department denied leave to appeal ...


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