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AEID v. BENNETT

January 3, 2002

SULIMAN D. AEID, PETITIONER,
V.
FLOYD G. BENNETT, SUPERINTENDENT, RESPONDENT.



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

MEMORANDUM — DECISION AND ORDER

Petitioner Suliman D. Aeid was found guilty on March 21, 1996, following a jury trial in Onondaga County Court, of sodomy in the first degree (two counts), attempted rape in the first degree, and menacing in the second degree. On April 11, 1996, Petitioner was sentenced to a total indeterminate term of imprisonment of twelve to twenty-four years. S.T. 4-7.*fn1 On November 7, 1999, Petitioner filed for a writ of habeas corpus challenging the constitutionality of his state court convictions and his subsequent incarceration pursuant to 28 U.S.C. § 2254. Petitioner alleges that (1) the trial court failed to charge the jury on a lesser included offense; (2) he was denied the effective assistance of counsel*fn2; and (3) the prosecutor improperly submitted documents to the trial court ex parte.

This matter was referred to Magistrate Judge David R. Homer for a Report-Recommendation ("Report") pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Northern District of New York. Magistrate Judge Homer filed his Report on September 26, 2001. After being granted an extension of time to file objections, Respondent filed objections to the Report on October 19, 2001. Petitioner did not file objections to the Report. The matter is now before the Court for the adoption or rejection of the Report.

With the exception of Petitioner's ineffective assistance of counsel claim at the plea bargaining stage, the Magistrate Judge's Report denied all of Petitioner's claims for pursuing this habeas petition. The Report found merit in Petitioner's claim that, during the plea bargaining phase of his case, defense counsel's erroneous advice regarding Petitioner's possible term of incarceration was prejudicial to Petitioner. Respondent objects only to the portion of the Report finding ineffective assistance of counsel at the plea bargaining stage and to the proposed remedy for the constitutional violation. As Petitioner made no objection to the Report, the Court adopts the Magistrate Judge's Report, except as it relates to Petitioner's claim of ineffective assistance of counsel during the plea bargaining stage of his case, and the proposed remedy. The merits of that claim and the appropriate remedy are discussed below.

I. BACKGROUND

A. Events of October 29, 1995

On October 29, 1995, Petitioner and two other individuals entered Yak's Place, a bar on Burnett Avenue in Syracuse, New York. T.120-22.*fn3 After having a few drinks and playing pool, Petitioner and the two other individuals left the bar. T.124-25. Approximately ten minutes later, Petitioner returned to the bar by himself. T.124-25. Petitioner ordered another beer, then asked the bartender, Ellen Taylor, if she wanted to play pool. T.125-26. At this time, there were no customers in the bar other than Petitioner, and Taylor was the only employee in the bar. T.125-26. Petitioner drew a gun on Taylor and attempted to rape her. T. 125-31. Petitioner forced Taylor to first perform oral sex on him, then to have anal intercourse. T. 131-36. Petitioner then threatened to kill Taylor and her daughter if she told anyone what he had done to her. T. 136.

B. Procedural Background

On November 17, 1995, a grand jury returned a four count indictment charging Petitioner with sodomy in the first degree (two counts), attempted rape in the first degree, and menacing in the second degree. Following a jury trial, Petitioner was found guilty of all charges. Petitioner was sentenced to a term of imprisonment of twenty-four years, with a minimum of twelve years, for the conviction of sodomy in the first degree, each charge to run concurrently. S.T. 4-7. Petitioner was also sentenced to a concurrent seven and one-half year term of imprisonment for rape in the first degree, and a ninety day term of imprisonment for menacing in the second degree. See id.

C. Sentence Exposure

Prior to trial, the prosecution and defense counsel conducted plea negotiations. Petitioner argues that he rejected an offer by the prosecutor based on defense counsel's erroneous advice regarding his sentence exposure. Petitioner claims that Thomas Lenkiewicz, his assigned counsel, failed to properly convey to him the term of incarceration he faced if convicted of the crimes charged. Lenkiewicz ("Counsel") told Petitioner that he faced a term of imprisonment of eight and one-third to twenty-five years. H.T. 4-7.*fn4 Counsel arrived at this figure by first determining that a the charge of sodomy, a class B felony, carries a maximum term of incarceration of twenty-five years,*fn5 and that an individual convicted of the crime must serve a minimum of one-third of the maximum, or eight and one-third years before becoming eligible for parole.

When Counsel informed Petitioner of his possible term of imprisonment if convicted, he was unaware of new state sentencing guidelines that became effective on October 1, 1995.*fn6 This new law provided that the mandatory minimum term of imprisonment served by an individual convicted of a violent felon is one-half the maximum sentence imposed.*fn7 In Petitioner's case, if sentenced to the maximum twenty-five years he would be required to serve, at a minimum, twelve and one-half years, before becoming eligible for parole release.

The issue in this case is whether circumstances may exist where erroneous advice, given by counsel as to parole eligibility, and relied upon by Petitioner in rejecting a plea offer, may be deemed constitutionally ineffective assistance of counsel. The Court finds that, given the facts of this ...


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