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LINDO v. LEFEVER

March 28, 2002

LLOYD LINDO, PETITIONER,
V.
E.S. LEFEVER, SUPERINTENDENT, FRANKLIN CORRECTIONAL FACILITY, RESPONDENT.



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

  MEMORANDUM OF DECISION AND ORDER

Lloyd Lindo (the "Petitioner"), by petition dated October 6, 1998, seeks a writ of habeas corpus from his 1980 conviction in County Court, Nassau County, for Murder in the Second Degree (N.Y. Penal Law § 125.25(1)).

During the summer of 1978, the victim's brother, Goldston Williams, allegedly stole three pounds of marijuana and money from the Petitioner and Peter George Johnson. Sometime later, the Petitioner, Johnson and the victim were driving together on Northern State Parkway. The group stopped along the side of the parkway to urinate in the bushes. The Petitioner followed the victim into the brush, then shot him in the chest.

On August 13, 1980, after a bench trial in County Court, Nassau County (Clyne, J.), the Petitioner was convicted of Murder in the Second Degree and sentenced to a term of twenty-five years to life.

In June 1982, the Petitioner moved to vacate the judgment of conviction, pursuant to N.Y.Crim. Proc. § 440.10(h), alleging that he suffered from a mental disease or defect which rendered him incapable of understanding the trial proceedings. In August 1982, the County Court (Santagata, J.) denied his motion. In an order dated May 6, 1983, the Appellate Division, Second Department, denied leave to appeal.

In June 1983, the Petitioner directly appealed his conviction to the Appellate Division, Second Department, alleging: (1) that Peter Johnson's testimony was accomplice testimony pursuant to N.Y. C.P.L. § 60.22; (2) that Peter Johnson's testimony was not sufficiently corroborated by independent evidence connecting the Petitioner to the crime; (3) that the trial court erred in convicting the Petitioner based on the evidence; and (4) that the Petitioner's post-trial motion, alleging mental defect, should have been granted.

On October 9, 1984, the Appellate Division affirmed the Petitioner's conviction and dismissed the appeal from his postjudgment motion because the court had previously denied leave to appeal that motion. See People v. Lindo, 104 A.D.2d 902, 480 N.Y.S.2d 304 (2d Dept. 1984). On December 28, 1984, the Court of Appeals denied leave to appeal. See People v. Lindo, 64 N.Y.2d 761, 485 N.Y.S.2d 1047, 475 N.E.2d 464 (1984).

On October 28, 1986, the Petitioner again moved to vacate his judgment of conviction pursuant to N.Y.Crim. Proc. § 440.10(h), this time alleging that he did not receive a fair trial because the court was biased, and that his appellate counsel was ineffective for failing to raise certain issues on appeal. On January 12, 1987, the County Court, Nassau County (Mackston, J.), denied the motion. On May 14, 1987, the Appellate Division, Second Department, denied leave to appeal.

On November 19, 1987, the Petitioner filed his third post-judgment motion under N.Y.Crim. Proc. § 440.10(h), arguing that his trial counsel was ineffective because counsel allegedly failed to meet with the Petitioner in the year before trial, and he erroneously advised the Petitioner to waive a jury trial; and that the Petitioner's waiver of a jury trial was invalid because he suffered from a mental defect at the time in question. On March 4, 1988, the County Court, Nassau County (Orenstein, J.), denied the motion. On September 19, 1990, the Appellate Division, Second Department, denied leave to appeal.

On February 19, 1991, the Petitioner filed his first application for a writ of habeas corpus with this Court. He claimed that the state court erred in denying his 1982 postjudgment motion because witness Peter Johnson was an accomplice, and as such the court erred in not requiring that his testimony be corroborated. On June 20, 1991, the Petitioner requested that the Court dismiss his application without prejudice, because he had not fully exhausted state remedies. In October 1991, this Court dismissed the Petitioner's application without prejudice.

On May 1, 1992, the Petitioner filed his fourth post-judgment motion pursuant to N.Y.Crim. Proc. § 440.10(h), again alleging that he was denied effective assistance of trial counsel for failing to properly advise him regarding the jury trial waiver, and that his waiver of a jury was invalid because he suffered from a mental defect. On August 25, 1992, the County Court, Nassau County (Orenstein, J.), denied the motion. On October 21, 1992, the Appellate Division, Second Department, denied leave to appeal.

On February 4, 1994, the Petitioner filed a second habeas corpus petition with this Court, alleging ineffective assistance of trial counsel. Specifically, the Petitioner claimed that counsel failed to advise him of his right to challenge the indictment; that counsel failed to adequately prepare for trial by not thoroughly investigating the facts or law of the case; that counsel did not sufficiently inform the Petitioner what privileges he jeopardized by waiving a jury trial; and that counsel should have known that the Petitioner was suffering from a mental defect and did not make a knowing or intelligent waiver of a jury trial.

By decision dated March 22, 1996, this Court found that the Petitioner had not exhausted the state court remedies for his first ground of ineffective assistance of counsel. In accordance with the law at the time, the Court dismissed the entire petition.

In August 1997, the Petitioner filed his fifth motion to vacate the judgment in state court, alleging that trial counsel did not advise him of his right to appear before the Grand Jury prior to indictment pursuant to N.Y.Crim.Proc. Law ยง 190.50. On October 9, 1997, the County Court, Nassau County (Jonas, J.), denied the Petitioner's motion on procedural grounds, finding that he could have raised this issue in his previous motions, and he did not comply with ...


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