claim, may, in particular circumstances, constitute ineffective
assistance of counsel. Tollett, supra, at 267, 93 S.Ct. 1602.
In the instant matter, Petitioner claims that Anderson failed
to inquire into the Petitioner's claim that he was incarcerated
at the time of the unlawful imprisonment, and failed to discover
the allegedly exculpatory police reports. Petition at 5.
Initially, as discussed, Petitioner cannot show that the police
reports were favorable to his defense, or material to a
determination of guilt or innocence. Brady, supra, at 87, 83
S.Ct. 1194. Moreover, the Petitioner has submitted no evidence
that Anderson provided incorrect legal advice or otherwise
misrepresented to the Petitioner the consequences of his guilty
plea.*fn8 See Mabry, supra, at 509, 104 S.Ct. 2543 (plea of
guilty made by one fully aware of the direct consequences must
stand unless induced by threats, misrepresentation, or promises
that are by their nature improper as having no proper
relationship to the prosecutor's business); Herring v. Artuz,
28 F. Supp.2d 852, 855 (S.D.N.Y. 1998) (finding no evidence to
support the petitioner's claim that his attorney misrepresented
relevant facts to the petitioner prior to his plea of guilty to
murder where, after conferring with counsel, petitioner conceded
during plea allocution that he intended to kill someone);
compare United States v. Gordon, 156 F.3d 376, 380 (2d Cir.
1998) (where attorney "grossly misrepresented" defendant's
sentencing exposure in letter sent to client during plea
negotiation, and defendant decided not to accept plea offer based
on such misrepresentation, defendant was denied effective
assistance of counsel).
Thus, the court finds that Petitioner's claims do not present
an issue on which federal habeas relief may be granted, and the
petition should be DISMISSED as to these grounds.
2. Evidentiary Hearing Requirement
There is no need for an evidentiary hearing to attempt to
reconstruct the facts as to the unlawful imprisonment charge. It
is within the court's discretion to deny a petition when the
supporting papers are facially insufficient to support a hearing.
Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974). To
warrant a hearing, a habeas petitioner must set forth specific
facts supported by competent evidence, which, if proved at a
hearing, would entitle to him to relief. See Machibroda v.
United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473
(1962); United States v. Aiello, 814 F.2d 109, 113 (2d Cir.
1987); Ramirez v. Headley, 1998 WL 788782, *10 (S.D.N.Y. 1998).
In the instant matter, as the petition is based on a charge for
which the Petitioner was never "in custody" pursuant to
28 U.S.C. § 2254(a), and is facially insufficient, an evidentiary hearing
addressing issues arising from the unlawful imprisonment charge
is unwarranted. Nothing in the record suggests the presence of
unresolved material issues of fact whether, while in the custody
of state officials pursuant to the judgment of a state court, the
Petitioner suffered some violation of his federal constitutional
rights based on the unlawful imprisonment charge. To remove any
lingering effects flowing even at this late date from the 1984
false imprisonment charge, petitioner should be left to state law
remedies, if available. Moreover, as to the possession of a
forged instrument conviction, the Petitioner has failed to assert
facts giving rise to material issues whether, in pleading guilty
to the Information, he was deprived of any federal constitutional
rights. As the Petitioner has failed to make the requisite
showing, no hearing is required.
3. Petitioner's Motion Pursuant to Fed. R.App.Proc. 23
Petitioner filed, on October 16, 1997 (Docket Item No. 10), a
motion for relief
pursuant to Fed.R.App.Proc. 23(a). Pursuant to this rule,
Pending review of a decision in a habeas corpus
proceeding commenced before a court, justice, or
judge of the United States for the release of a
prisoner, the person having custody of the prisoner
must not transfer custody to another unless a
transfer is directed in accordance with this rule.
When, upon application, a custodian shows the need
for a transfer, the court, justice, or judge
rendering the decision under review may authorize the
transfer and substitute the successor custodian as a
Fed.R.App.Proc. 23(a). In the instant matter, the petition is not
before the court on appeal from a prior decision in a habeas
proceeding, and Fed.R.App.Proc. 23(a) is therefore inapplicable.
Based on the foregoing, the petition should be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the
Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of the Court within ten (10) days of service
of this Report and Recommendation in accordance with the above
statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil
Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair
Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to
the attorneys for the Petitioner and the Respondent.
May 24, 1999.