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MORRIS v. REYNOLDS

May 4, 1999

GEORGE MORRIS, PETITIONER,
v.
EDWARD REYNOLDS, SUPERINTENDENT OF MOHAWK CORRECTION FACILITY, RESPONDENT.



The opinion of the court was delivered by: Baer, District Judge.

Order

WHEREAS Magistrate Judge Andrew J. Peck issued a Report and Recommendation on December 3, 1998, dismissing petitioner's mixed federal habeas corpus petition because it contained both unexhausted and exhausted claims, and

WHEREAS petitioner submitted to this Court a Notice of Motion of Amendment to Complaint which requested that any of the issues raised by his petition which were determined to be unexhausted be stricken; it is hereby

ORDERED that Magistrate Judge Peck's Report and Recommendation is adopted in all respects, and it is further

ORDERED that the petitioner's unexhausted claims are stricken and dismissed, and it is further

ORDERED that the petitioner should submit an amended petition to Magistrate Judge Peck which includes any and all exhausted claims for a consideration of the merits of the habeas corpus petition.

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner George Morris filed this petition for a writ of habeas corpus on March 9, 1998; the New York Court of Appeals decision in his case is dated March 21, 1996. For the reasons set forth below, I recommend that the Court summarily dismiss Morris's petition, not because of the AEDPA's one-year time bar (Morris's claim actually is not time barred), but rather as a "mixed petition" containing unexhausted claims.

FACTS

George Morris's pro se habeas petition was received by the Court's Pro Se Office on March 9, 1998. (See Docket No. 1: Pet. at p. 1, date stamp.)

Morris was indicted in December 1993 on a class D felony count of criminal possession of a weapon in the third degree, and a class A misdemeanor count of criminal possession of a weapon in the fourth degree. See In re Van Leer-Greenberg ex rel. Morris v. Massaro, 87 N.Y.2d 996, 997, 642 N.Y.S.2d 618, 618, 665 N.E.2d 188 (1996). The trial judge initially dismissed the felony count for legal insufficiency, and on August 1, 1994, Morris pled guilty to the misdemeanor count with the promised imposition of a sentence of three years' probation. Id. Thereafter, the trial judge filed a written decision denying Morris's motion to dismiss the felony count. Id. On the date of sentencing, the trial judge orally advised the parties that the felony count was reinstated, and offered Morris the opportunity to withdraw his guilty plea to the misdemeanor count, which Morris refused. Id.

Morris's trial counsel brought an Article 78 petition to prohibit the judge from vacating Morris's plea and to require the judge to impose the promised probation sentence on the misdemeanor guilty plea. The First Department granted the petition, with two judges dissenting. In re Van Leer-Greenberg ex rel. Morris v. Massaro, 215 A.D.2d 283, 626 N.Y.S.2d 779 (1st Dept 1995). On March 21, 1996, the New York Court of Appeals reversed and dismissed the Article 78 proceeding. In re Van Leer-Greenberg ex rel. Morris v. Massaro, 87 N.Y.2d 996, 642 N.Y.S.2d 618, 665 N.E.2d 188 (1996).

Apparently, although Morris's petition is unclear, after the Court of Appeals' decision, Morris was convicted on the felony count on June 4, 1997 and sentenced to two and a half to five year's imprisonment. (See Docket No. 5: Morris 8/25/98 Aff. in Support of Application for Appointment of Counsel.)*fn1 Morris did not further appeal his conviction. (See Pet. ¶ 8; see also Docket No. 6: Morris 9/14/98 Aff. at p. 2.)

As noted above, Morris's federal habeas petition was received by this Court's Pro Se office on March 9, 1998, almost two years after the Court of Appeals' decision. The petition raises four claims: first, that the indictment was insufficient and/or improper evidence was presented to the grand jury; second, that the trial court was required to abide by the plea agreement; third, that vacatur of the guilty plea constituted double jeopardy; and fourth, that the trial court violated Morris's constitutional rights in not disclosing the charges and/or exculpatory evidence when requested by Morris's counsel. (Pet. ¶ 12(A)-(D).)

By Order dated July 30, 1998, Chief Judge Griesa directed Morris to show cause why his petition was not untimely under the AEDPA's one-year statute of ...


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