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DIAZ v. MANTELLO

September 26, 2000

JOSE DIAZ PETITIONER,
V.
DOMINIC MANTELLO, RESPONDENT.



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

  ADOPTION OF REPORT AND RECOMMENDATION

On June 21, 2000, Magistrate Judge Theodore H. Katz issued a Report and Recommendation recommending that Petitioner's habeas corpus petition be denied. See 28 U.S.C. § 636(b)(1)(C); Local Civil Rule 72.1(d). Both Petitioner and Respondent have filed objections to the Report and Recommendation.

28 U.S.C. § 636(b)(1)(c) requires the Court to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." After conducting a de novo review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d).

Petitioner contests his conviction for depraved indifference murder. The facts in this matter are sufficiently set forth in Judge Katz's Report and Recommendation and will not be reiterated here. Judge Katz assessed Petitioner's claims that: (1) his plea of guilty was not knowing and voluntary because he received ineffective assistance of counsel and because the trial court failed to conduct a full inquiry with respect to his plea; and (2) he was denied the effective assistance of counsel because counsel failed to inform him of the elements of second degree murder and manslaughter, failed to inform him of the possibility of an affirmative defense, failed to inform him of the evidence against him if he chose to proceed to trial, and failed to inform him of the consequences of a guilty plea. Respondent moved to dismiss the action.

Judge Katz concluded, and this Court concurs, that Petitioner's claims fail on the merits and are procedurally barred.

A. Objections

Petitioner objects to Judge Katz's finding that Petitioner failed to exhaust all of his claims.*fn1 Further, Petitioner objects to Judge Katz's finding that both his claim of trial court failure to fully inquire prior to the plea and his claims of ineffective assistance of counsel are without merit.

Respondent objects to the Report and Recommendation conclusion that Petitioner's claim that the trial court's failure to fully inquire prior to the plea was not exhausted.

A. Exhaustion

1. Guilty Plea

As Judge Katz concluded, the trial court clearly reached the merits of Petitioner's claim that the trial court failed inquire fully prior to his plea, when considering Petitioner's § 440.10 motion. Further, by mentioning the claim only within a laundry list of claims while failing to argue the issue along with the other issues argued on appeal, Petitioner has not exhausted the claim. See Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000) (finding no exhaustion on claims where Petitioner vigorously argued other claims and made only passing reference to disputed claim); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (attaching appellate brief insufficient notice where leave letter argued only one of three claims). Thus, this claim was not exhausted.

However, the claim is procedurally forfeited pursuant to CPL § 460.15 (permitting only one application to appeal denial of a CPL § 440.10 motion). Accordingly, the Court adopts Judge Katz's recommendation, finding that the plea allocution claim was not exhausted but is procedurally forfeited.

B. Merits

Judge Katz also reached the merits of Petitioner's claims.

1. Guilty Plea

Petitioner argues in his objection that the trial court failed to accept a plea to the proper count of the Indictment. Petitioner is correct that the trial court misspoke when stating that Petitioner was entering a plea to Count One (intentional second degree murder); when, in fact, he entered a plea to Count Two (depraved indifference second degree murder).

However, prior to accepting the plea, the Court and counsel referred directly to the statute to clarify that Petitioner was in fact entering a plea for violation of New York Penal Law 125.25 Subsection 2, depraved indifference. See Plea Transcript at 3:17-18. Under the statute, murder committed "under circumstances evincing a depraved indifference to human life" elevates reckless homicide to second-degree murder. See People v. Swartz, 130 A.D.2d 288, 520 N.Y.S.2d 224 (3d Dept. 1987). Thus, the trial court's misstatement was harmless and is not grounds for habeas relief.

2. Ineffective Assistance of Counsel

For the reasons stated in Judge Katz's Report and Recommendation, and after de novo review, the Court finds Plaintiff's ineffective assistance of counsel claims to be without merit.

Accordingly, Petitioner's habeas petition is denied. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. See also Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (discussing certificate of probable cause under standard prior to amendment of 2253); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

Accordingly, after conducting an independent de novo review of the Report and Recommendation, and ...


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