United States District Court, Eastern District of New York
January 24, 2002
LUMUMBA WOODS, PETITIONER,
WALTER R. KELLY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Lumumba Woods ("Petitioner") by his application dated
September 8, 1997, seeks a writ of habeas corpus from his 1992
conviction in Supreme Court, Suffolk County for Murder in the
Second Degree under N.Y. Penal Law § 125.25(3).
In the early morning of July 23, 1991, the Petitioner drove to
Amityville, New York, approached the victim and demanded money
from him. When the victim refused, the Petitioner took out his
loaded sawed-off shotgun, held it to the victim's neck, and shot
and killed the victim. The Petitioner then discarded both the
weapon and the victim's body in the woods along the Southern
On November 4, 1992, the Petitioner pled guilty to Murder in
the Second Degree, in New York State Supreme Court, Suffolk
County (Mullen, J.). On December 11, 1992, Justice Mullen
sentenced the Petitioner to an indeterminate term of fifteen
years to life imprisonment.
The Petitioner then asked his attorney, a representative from
Suffolk County Legal Aid Society, to file an appeal claiming
that his plea was invalid because he stated facts inconsistent
with the crimes charged. Legal Aid sent several letters to the
Petitioner that explained he had no meritorious appeal. On June
16, 1994, Legal Aid filed an Anders Brief, see Anders v.
California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), to the Appellate Division, Second Department, stating
that no valid, non-frivolous appealable issues existed and asked
for permission to withdraw from the case. On September 26, 1994,
the Appellate Division granted counsel's application to
withdraw. See People v. Woods, 207 A.D.2d 921, 616 N.Y.S.2d 989
(2d Dept. 1994). The Petitioner appealed the decision to the
Court of Appeals, who denied leave to appeal on August 20, 1996.
See People v. Woods, 88 N.Y.2d 997, 649 N.Y.S.2d 404,
672 N.E.2d 630 (1996).
On April 27,1996, the Petitioner moved to vacate the judgment
of conviction, pursuant to N.Y.Crim. Proc. § 440.10(h). By
decision and order dated June 6, 1996, Justice Mullen denied the
Petitioner's motion, finding no merit to the claim that his plea
was not knowing and voluntary. Justice Mullen further stated
that even if the claim had merit, the Petitioner did not present
the issue on direct appeal. The Petitioner sought leave to
appeal this decision. On October 16, 1996, the Appellate
Division, Second Department, denied his application.
On May 15, 1996, the Petitioner applied for a writ of error
coram nobis, alleging his appellate counsel was ineffective for
submitting an improper Anders brief. On September 23, 1996,
the Appellate Division, Second Department, denied the
Petitioner's application, finding that he failed to established
that counsel was ineffective. See People v. Woods, 231 A.D.2d 656,
647 N.Y.S.2d 968 (2d Dept. 1996). On September 8, 1997, the
Petitioner applied for a writ of habeas corpus to this Court,
alleging that he was denied effective assistance of appellate
counsel because his attorney failed to pursue the issue of
whether his plea allocution was insufficient.
The Petitioner filed this action on September 8, 1997, after
the April 24, 1996, effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). Accordingly,
AEDPA's provisions apply to the Petitioner's case. See Williams
v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146 L.Ed.2d 435
Under the provisions of Section 2254(d), a habeas corpus
application must be denied unless the state court's adjudication
of the claim either "resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court," or
"resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding." 28 U.S.C. § 2254(d)(1), (2).
A decision is "contrary to" established Federal law if it
either "applies a rule that contradicts the governing law set
forth in" a Supreme Court case, or if it "confronts a set of
facts that are materially indistinguishable from a decision of
[the Supreme Court] and nevertheless arrives at a result
different from [their] precedent." Penry v. Johnson,
532 U.S. 782, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001); citing
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). A decision is an "unreasonable application of"
clearly established Supreme Court precedent if it "correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner's case." Id.
In order to prevail on an ineffective assistance of counsel
claim, a defendant must first show that his counsel performed
deficiently and that deficiency caused actual prejudice to his
defense. See Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Petitioner may prove the
deficiency prong by establishing that his attorney's conduct
fell "outside the wide range of professionally competent
assistance," id. at 690, 104 S.Ct. 2052, and establish
prejudice by showing a "reasonable probability" exists that, but
for the deficiency, "the result of the proceeding would have
been different." Id. at 694, 104 S.Ct. 2052. This two-prong
test applies to the evaluation of appellate counsel as well as
trial counsel. See Clark v. Stinson, 214 F.3d 315, 318 (2d
Cir. 2000); see also Mayo v. Henderson, 13 F.3d 528, 533 (2d
Cir. 1994). The court must, however, "indulge a strong
presumption that counsel's conduct falls within the range of
reasonable professional assistance." Strickland, 466 U.S. at
689, 104 S.Ct. 2052.
Under New York State law, a death that occurs during the
course of a felony, including robbery, constitutes Murder in the
Second Degree. See N.Y. Penal Law § 125.25(3) (1997), The
Petitioner was charged with felony murder, in that the victim
was killed during the commission of a predicate felony, namely
robbery. The Petitioner argues that the facts he articulated
during his plea allocution are insufficient to establish robbery
under New York state law. He further claims that because a
meritorious issue existed as to the sufficiency of his plea,
counsel submitted an inaccurate Anders brief. The Petitioner
alleges that he failed to allocute facts sufficient to support
his plea and the court should not have accepted it: "[w]here at
the time of his plea, [Petitioner] related facts inconsistent
with which he was charged with, and Judge accepted plea without
further inquiry." Petitioner's Brief at 12. Specifically, he
appears to argue that the elements of robbery are not met by the
facts in his case. The Petitioner claims that since he did not
hold the gun to the victim's neck and simultaneously demand
money, he cannot be guilty of robbery, and in turn, felony
murder. The Petitioner argues that his appellate counsel was
deficient because he did not argue this claim to the appeals
court. Upon review of the record, this Court finds no merit to
the Petitioner's inadequate plea claim, and thus, no merit to
his ineffective assistance of appellate counsel claim.
New York State defines robbery as "forcible stealing," or the
"use or threat of the immediate use of physical force upon
another person for the purpose of . . . preventing or overcoming
resistance to the taking of the property or to the retention
thereof immediately after the taking." N.Y. Penal Law § 160.00
(1998). Further, "[t]he applicable statutes do not require the
use or display of a weapon. . . . All that is necessary is that
there be a threatened use of force, which may be implicit from
the defendant's conduct or gleaned from a view of the totality
of the circumstances." People v. Rychel, 284 A.D.2d 662, 663,
728 N.Y.S.2d 211 (3d Dept. 2001) (citations omitted).
Here, the Petitioner admitted, in his allocution, that he
intended to rob the victim before he arrived at the scene of the
incident. The Petitioner stated that he approached the victim,
told the victim to get in the back seat of the victim's car and
then demanded money from him. When the victim refused, the
Petitioner testified that he "pulled [his] gun out" and "poked
[the victim] with it . . . in the neck [then] the gun went off."
Plea Minutes at 9-10. Clearly, the Petitioner's actions, at the
very least, constitute an implied threat of physical force to
overcome the victim's resistance to turning over his money.
Thus, the Petitioner's conduct fit within the
Penal Law's definition of robbery. Because the victim died
during the commission of the robbery, the Petitioner's plea
sufficiently established murder in the second degree. Therefore,
no valid, non-frivolous issues exist regarding the Petitioner's
plea, and his appellate counsel was not ineffective for
submitting an Anders brief.
For the foregoing reasons, the Court finds that the Petitioner
failed to establish that he was denied ineffective assistance of
appellate counsel. Accordingly, his application for a writ of
habeas corpus is DENIED.
The Clerk of the Court is directed to close this case.
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