The opinion of the court was delivered by: Elfvin, District Judge.
ORDERED that Judge Foschio's Report and Recommendation is
confirmed in its entirety and the Petition for a writ of habeas
corpus is denied and this case shall be closed.
REPORT and RECOMMENDATION
Petitioner, Norman J. Charnock III, initiated this action
requesting relief under 28 U.S.C. § 2254 on March 20, 1997. The
matter was referred to the undersigned by the Hon. John T.
Elfvin, on June 3, 1997, for all proceedings necessary to reach a
determination in this action.
On May 24, 1984, Petitioner Norman J. Charnock III
("Petitioner") ("Charnock") was arraigned in Lackawanna City
Court before City Court Justice Norman F. Walawender on charges
of Grand Larceny in the Second Degree pursuant to § 155.35 of the
New York Penal Law, and Possession of Stolen Property in the
Third Degree pursuant to § 165.50 of the New York Penal Law.
Specifically, Petitioner was charged with the theft of a vehicle
from an automobile dealership on Abbott Road in Lackawanna, New
York, and theft of a license plate from another vehicle located
at the premises, occurring at approximately 10:55 P.M. on May 24,
On June 11, 1984, Petitioner waived a felony hearing on the
above charges, and requested that the charges be brought before a
Grand Jury. While exiting court following adjournment on this
occasion, Petitioner was arrested and immediately arraigned on
the charge of Unlawful Imprisonment in the First Degree pursuant
to § 135.10 of the New York Penal Law, as the result of an
incident which allegedly occurred on May 22, 1984. Specifically,
Petitioner was charged by felony complaint filed on June 11,
1984, with grabbing Robyn Norris, a 16 year old female, pulling
her into a vehicle and driving off, against Norris' will.
Petitioner then allegedly restrained Norris in his residence on
Bell Street in Lackawanna, New York from May 22, 1984 until she
was able to escape on May 24, 1984.
This matter, including the pending charges of Grand Larceny in
the Second Degree and Criminal Possession of Stolen Property in
the Third Degree, was then adjourned until June 26, 1984. On June
26, 1984, Petitioner appeared and waived his right to a
preliminary hearing as to all charges, and the charges were
transferred to the grand jury for possible indictment. However,
Petitioner later elected to waive indictment and proceed by
Superior Court Information, pursuant to New York Criminal
Procedure Law § 195.10.
On September 28, 1984, Petitioner's waiver of the indictment
was approved by New York Supreme Court Justice Penny M. Wolfgang,
and Petitioner, accompanied by his recently appointed attorney,
Lillian Anderson,*fn1 pled guilty to a Superior Court
Information ("the Information") charging him with Criminal
Possession of a Forged Instrument, in satisfaction of all
remaining charges, including the stolen property, theft and
unlawful imprisonment charges. The Information charged Petitioner
two counts of Criminal Possession of a Forged Instrument in the
Second Degree pursuant to § 170.25 of the New York Penal Law,
based on two occasions in which the Petitioner signed his
father's name to bank checks belonging to his father's account,
on June 8, 1984 and June 20, 1984. The larceny, stolen property,
and unlawful imprisonment charges were then dismissed. Petitioner
was incarcerated in the Erie County Holding Center until his bail
was posted on June 27, 1984.
On March 20, 1985, Justice Wolfgang sentenced Petitioner to two
to six years imprisonment following his guilty plea to the forged
instrument charge, to run concurrently with a federal sentence
which Petitioner was then serving. Defendant did not appeal his
state conviction or sentence.
Petitioner moved, on August 11, 1995, for an order pursuant to
N YCrim.Proc. Law § 440.10 vacating the court's judgment,
arguing that, based on information received by the Petitioner on
June 1, 1995 from the Orchard Park Police Department,
demonstrating that, at the time of the alleged unlawful
imprisonment of Ms. Norris, he was incarcerated in Lackawanna
City Jail, and therefore he had been unlawfully arrested and
convicted of unlawful imprisonment.
According to Petitioner, the City of Lackawanna Police
Department "used fraud and malice" in arresting him on June 11,
1984 for unlawful imprisonment, as a proper investigation would
have revealed that Petitioner was incarcerated at the time of the
alleged incident. Affidavit of Norman J. Charnock III in Support
of Motion to Vacate, see Exhibit A to Petition ("Petitioner's
Affidavit"). Additionally, Petitioner claimed (1) his plea of
guilty to the charge of unlawful imprisonment was unlawfully
obtained; (2) Assistant Erie County District Attorney Thomas J.
Eoannou failed to disclose that the Petitioner was incarcerated
on another charge at the time of the alleged offense, and thereby
fraudulently obtained Petitioner's arrest and conviction for this
charge; and (3) Petitioner's assigned counsel wrongfully
instructed him, immediately prior to his plea of guilty in
satisfaction of all charges, that despite pleading guilty, the
record would reflect that Petitioner was not guilty of unlawful
Petitioner also requested an evidentiary hearing, in which the
testimony of the following individuals could be obtained: (1)
Robyn Norris; (2) Lackawanna City Police Detectives Rozwood and
Gelyon; (3) Orchard Park Town Police Officers O'Connor and Stuhr;
(4) the owner of the automobile dealership, Michael Zuchowski;
(5) the owner of the stolen license plate, Mark E. Williams; and
(6) Lackawanna City Police Officers Joel Budimirovich and Mark
In an order filed September 5, 1995, Justice Wolfgang denied
Petitioner's motion to vacate the conviction and conduct an
evidentiary hearing, determining that Petitioner sought vacatur
of a judgment that was never entered. Additionally, Justice
Wolfgang determined that the Petitioner's allegations were
contradicted by the record before the court, and therefore an
evidentiary hearing was unnecessary.
On September 11, 1995, Petitioner appealed to the Appellate
Division, New York Supreme Court, Fourth Department, reiterating
the grounds relied upon in his motion to vacate. Petitioner also
argued that his Sixth Amendment right to effective assistance of
counsel, Eighth Amendment right to be free of cruel and unusual
punishment, and Fourteenth Amendment right to due process had
been violated as Petitioner pled guilty to unlawful imprisonment
despite the existence of evidence demonstrating that he was not
guilty. Additionally, Petitioner alleged that the lower court
erred in not conducting an evidentiary hearing. Affidavit of
Norman J. Charnock III in Support of Motion for Leave to Appeal,
see Exhibit A to Petition.
On December 13, 1995, the Appellate Division denied
Petitioner's request for
permission to appeal, determining that no reviewable question of
law or fact existed. Order Denying Leave to Appeal, Exhibit A to
Petition.*fn2 Petitioner applied to the court for
reconsideration of the motion on December 26, 1995, filing an
addendum to accompany this application on February 5, 1996, in
which Petitioner repeated his arguments on appeal, and also
argued that review of the lower court's decision was warranted,
as the court failed to set forth the required findings of fact
and conclusions of law. The Appellate Division denied
Petitioner's request for reconsideration on February 5, 1996.
See Exhibit A to Petition.
Petitioner then applied for leave to appeal to the New York
Court of Appeals in March 1996, arguing that the judgment of the
trial court should be vacated, as he should not have been charged
with unlawful imprisonment, and his conviction for unlawful
imprisonment was based on evidence known to be false by the
prosecutor and court. Petitioner's Notice of Application to the
New York Court of Appeals, see Exhibit A to Petition. The
Honorable Vito J. Titone, Associate Judge of the New York Court
of Appeals, denied Petitioner's request for leave to appeal on
March 25, 1996, finding that the Appellate Division's February 5,
1996 order denying Petitioner's request for reconsideration was
not an appealable order pursuant to N.Y.Crim. Proc.Law §
450.90(1). People v. Charnock, 666 N.E.2d 1065 (N.Y. 1996).
Petitioner then requested reconsideration of his motion, arguing
that the prosecutor had engaged in misconduct by not providing
transcripts of the Petitioner's ...