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THOMAS v. GREINER

June 15, 2000

ANTHONY THOMAS, PETITIONER,
V.
CHARLES GREINER, SUPT., RESPONDENT.



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

ORDER ADOPTING REPORT AND RECOMMENDATION

On February 17, 2000, Magistrate Judge Peck issued a report and recommendation (the "Report") in the above-captioned case recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. On April 26, 2000, this Court received petitioner's objections to the Report. Subsequently, the Court received a letter from respondent stating that no response to petitioner's objections would be forthcoming.

Having found the Report well-reasoned and thoroughly grounded in the law, and finding petitioner's objections meritless, it is hereby

ORDERED that the Report is adopted in its entirety and the petition is denied. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.

REPORT AND RECOMMENDATION

Petitioner Anthony Thomas seeks a writ of habeas corpus from his May 28, 1991 conviction of first degree robbery, based on his plea of guilty, and sentence of nine to eighteen years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Thomas's habeas petition raises three claims: (a) his conviction was obtained in violation of his Sixth Amendment right to a speedy trial (Pet. ¶ 12(A)), (b) his sentence was excessive and thereby violated his Eighth Amendment protection against cruel and unusual punishment (Pet. ¶ 12(C)), and (c) his sentence violated his Fourteenth Amendment equal protection rights because similarly situated defendants received lesser sentences (Pet. ¶ 12(B)).

For the reasons discussed below, the Court should deny Thomas's petition.

FACTS

On December 10, 1989, Anthony Thomas boarded a northbound number 2 subway train in Manhattan and sat down next to Jason Wadenfeld. (Dkt. No. 20: Affidavit of Asst. Attorney General Susan M. Barbour, dated 11/10/99, Ex. C: DA 1st Dep't Br. at 1; Barbour Aff.Ex. B: Thomas 1st Dep't Br. at 3.) Thomas displayed a knife, stole Wadenfeld's watch and money, and left the train with an accomplice. (DA 1st Dep't Br. at 1; Thomas 1st Dep't Br. at 3.) Within the next several weeks, Thomas committed additional, similar knife-point subway robberies. (DA 1st Dep't Br. at 1-2; Thomas 1st Dep't Br. at 2-3.)

On January 12, 1990, Thomas and his accomplice were recognized by two anticrime officers as fitting the suspects' descriptions in numerous subway robbery complaints. (DA 1st Dep't Br. at 2-3; Thomas 1st Dep't Br. at 2; Dkt. No. 2: Thomas Br. at 2.) His accomplice escaped but Thomas was arrested and found to be carrying two butcher knives and a razor and was wearing a jacket taken from a robbery victim. (Thomas 1st Dep't Br. at 2; DA 1st Dep't Br. at 3.)

Thomas was indicted and charged with five counts of first degree robbery and four counts of second degree robbery. (DA 1st Dep't Br. at 3; Thomas 1st Dep't Br. at 2-3.)

On April 23, 1991, Thomas pled guilty to one count of first degree robbery, admitting to the December 10, 1989 knife point robbery of Jason Wadenfeld. (Thomas 1st Dep't Br. at 3; DA 1st Dep't Br. at 3-4; Thomas Br. at 3.) Pursuant to a plea agreement, his guilty plea covered the entire indictment and carried a promised sentence of nine to eighteen years imprisonment as a second felony offender. (Thomas 1st Dep't Br. at 3; DA 1st Dep't Br. at 4.) On May 28, 1991, Thomas was sentenced by Justice Edwin A. Torres to nine to eighteen years imprisonment pursuant to his plea agreement. (DA 1st Dep't Br. at 3-4; Thomas 1st Dep't Br. at 4; 5/28/91 Sentence Tr. at 5-6; Thomas Br. at 3-4.)

Thomas's Direct State Appeal

Thomas, represented by counsel, appealed to the First Department, raising only the single issue that his sentence was excessive and should be reduced in the interest of justice. (Barbour Aff.Ex. B: Thomas 1st Dep't Br. at 7.) On June 15, 1993, the First Department affirmed Thomas's conviction. People v. Thomas, 194 A.D.2d 1063, 599 N.Y.S.2d 359 (1st Dep't 1993). The New York Court of Appeals denied leave to ...


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