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FRASE v. MCCRAY

January 8, 2003

JOHN R. FRASE, PETITIONER,
v.
FRANK MCCRAY, JR., SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge

REPORT-RECOMMENDATION

Petitioner John R. Frase ("Frase") has filed a writ of habeas corpus asserting four separate grounds in support of his claim that he is entitled to habeas corpus relief (Dkt. No. 2) ("Pet."). Respondent has answered Frase's petition, arguing both that as a procedural matter the petition is untimely, and additionally, that the grounds advanced in the petition do not entitle Frase to the relief he seeks. The court finds that the petition was timely filed and therefore, does not recommend dismissal on that basis. However, the court concludes that the petition lacks merit and therefore, recommends that it be denied and dismissed.

I. Background

A. State Court Proceedings

1. Proceedings Involving Frase

On November 14, 1995, Frase was arrested in the Village of North Syracuse for the crime of driving while intoxicated ("DWI"). See Record on Appeal ("R. App.") at P. 10. Frase was convicted of this charge on June 18, 1996, and was sentenced on August 19, 1996, by County Court Judge J. Kevin Mulroy to a period of probation for five years, including a requirement that Frase remain on Electronic Home Confinement ("EHC"). See Decision/Order of Judge Joseph E. Fahey (4/17/2000) (Dkt. No. 2, Ex. E), ("April Order") at P. 2,*fn1 (R. App. at P. 57). In October of 1996, Frase was apparently injured while at work, and his attorney successfully had him released from the EHC portion of the sentence. Id. at PP. 2-3.

On July 24, 1997, Frase was arrested for DWI in Oswego County. Id. at P. 3. As a result of that arrest, a violation of probation ("VOP") was filed in Onondaga County, and on August 6, 1997, Frase appeared before Judge Mulroy for a hearing on that charge. Id. At that hearing, Judge Mulroy stated:

[Y]our attorney came back to me during the course of your supervision and asked me to discharge you from the [EHC] program [due to Frase's injury], and it's alleged the short time after that, you went out and found yourself well enough to get, it's alleged, drunk and drive some car. So you see, sir, the next time your lawyer comes to me and tells me how badly injured you are and how disabled you are, I want you to know that I won't give a damn. If I have to strap you to a gurney and send you to Attica, I will. All right? So I don't care about your injuries anymore. I did before, I don't anymore because you demonstrated to me anyway by this allegation, that you're well enough to get around and have some fun. So are you aware sir that [if] you violate the terms and conditions of your probation you can expect no consideration from me in the future. Are you aware of that?
April Order at PP. 3-4.

On March 5, 1999, Brian Mayock, Frase's Probation Officer, appeared before Judge Mulroy and declared that Frase had violated the terms of his probation on February 23, 1999, because Frase had, inter alia, (i) failed to abstain from alcoholic beverages; (ii) operated a motor vehicle; and, (iii) driven an automobile while intoxicated and had unlawfully possessed marijuana (R. App. at P. 57).

Frase appeared before Judge Mulroy on March 8, 1999, for a hearing to determine whether his conduct in July of 1997 in Oswego County, and in February of 1999, in Onondaga County, constituted a violation of the terms of his probation (R. App. at P. 12). At that time, Frase formally denied the charges against him, and was held without bail until his next court appearance on March 12, 1999. Id. at 14. At the pre-trial hearing on that date, Frase, his attorney, David Savlov, Esq. and Assistant DA Kurt Sherman, Esq. were present and Judge Mulroy placed on the record the sentence that he intended to impose if Frase accepted a proposed plea bargain arising out of the charges against Frase:

The Court: Here's what the offer is: If you admit the declaration of delinquency for violation of probation I will sentence you to one to three years in state prison.
There's also a new allegation of DWI. If you admit that, I intend to sentence you to one-and-a-third to four years consecutive on top of the one to three on the violation.
These pleas will obviously satisfy all probationary sentences and commitments and I assume it will satisfy all charges arising out of the latest allegation of DWI. Do you understand what I've said to you?
Frase: Yes, sir.
The Court: It is my understanding that you're prepared to accept this disposition?
Frase: Yes, sir.

R. App. at P. 18. Judge Mulroy then accepted Frase's admission that he had violated the terms of his probation on February 23, 1999, by operating a vehicle while under the influence of alcohol, Id. at P. 21, and released Frase on his own recognizance pending sentencing. Id. at P. 22.

On May 5, 1999, Frase appeared before Judge Mulroy for further proceedings relating to the charges against him. At that time, Judge Mulroy reiterated his intention of imposing consecutive sentences relating to the parole violation and DWI charges. Id. at 33.*fn2 Savlov then indicated to Judge Mulroy that Frase was under the impression that the sentences imposed on him concerning the VOP and DWI charges would be concurrent, and that if the sentences were to run consecutively, he wished to reconsider his VOP admission and might obtain new counsel. Id. at 33-35. As a result, Judge Mulroy adjourned the proceeding for one week. Id. at 35.

On May 12, 1999, Frase appeared before Judge Mulroy and indicated his willingness to accept the terms of the plea proposal.*fn3 He then pled guilty to Information No. I-99-0267-1 which charged Frase with the felony operation of a motor vehicle while in an intoxicated condition on February 23, 1999 (R. App. at PP. 40-45). Judge Mulroy scheduled sentencing for May 26, 1999, and remanded Frase to jail after the prosecution declined to consent to Frase's release pending sentencing. Id. at 39-40, 44-45.

On May 26, 1999, Frase appeared with counsel before Judge Mulroy and was sentenced to the agreed upon sentences, i.e., one to three years imprisonment arising out of his June of 1996 DWI conviction, in light of his having violated the terms of the probationary sentence previously imposed on him, and one and one-third to four years imprisonment for his DWI conviction regarding the February of 1999 incident, with the sentences to be served consecutively (R. App. at P. 52).

2. Proceedings Involving Judge Mulroy and Attorney Savlov

In February of 1997, Judge Mulroy testified as a character witness in a criminal trial against a local defense attorney (April Order at P. 8). At that time, Judge Mulroy testified that the defense attorney had a good reputation for honesty in the community, and indicated that he had spoken to Savlov about that attorney. Id.

On July 30, 1998, a complaint was filed against Judge Mulroy by the New York State Commission on Judicial Conduct. Id. at P. 9. One of the charges in that complaint alleged that Judge Mulroy had testified falsely or with reckless disregard for the truth in his February of 1997 testimony. Id. Savlov, who was called as a witness for the Commission in November of 1998, testified that he did not believe that the attorney had a good reputation in the community for truth and honesty, and that he could not recall talking with Judge Mulroy about the attorney. Id. at P. 9.

On April 21, 1999, the referee who presided over the hearing relating to the charges brought against Judge Mulroy, issued a report in which he, inter alia, sustained the charge arising out of Judge Mulroy's testimony as a character witness. Id. at P. 9. No further action was taken on the Commission's complaint until several months after Frase was sentenced by Judge Mulroy. Id.

3. State Court Proceedings

On December 7, 1999, Frase filed a motion to vacate the conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10 ("Article 440 motion") (reproduced at Dkt. No. 2, Ex. J). In that motion, Frase alleged that he received ineffective assistance of counsel due to the fact that he "was not aware until after his proceedings that his defense attorney, David B. Savlov, had testified against Judge Mulroy prior to defendants [sic] case in a separate matter." Aff. in Support of Article 440 motion (12/7/99) (reproduced at Dkt. No. 2, Ex. J) at ¶ 3.*fn4 Frase also argued that there was "a conflict of interest and prejudice" between Judge Mulroy and Savlov, and that his testimony against Judge Mulroy precluded Savlov from providing Frase with effective representation. Id. at ¶ 4. Judge Fahey denied the Article 440 motion, see April Order, and the Appellate Division, Fourth Dep't denied Frase leave to appeal that decision on November 1, 2000 (Dkt. No. 2, Ex. F).

On September 26, 2001, Frase appealed the judgment of conviction to the Appellate Division, alleging that: i) the County Court abused its discretion in imposing consecutive sentences; ii) he was improperly sentenced based upon insufficient information contained in the Pre-Sentence Report; and, iii) trial counsel rendered ineffective assistance at the sentencing phase of the criminal proceedings below (see App. Br.). Frase's conviction, however, was affirmed by the Appellate Division, People v. Frase, 292 A.D.2d 822 (4th Dep't 2002), and the Court of Appeals denied Frase permission to appeal. People v. Frase, 98 N.Y.2d 675 (2002).

II. Procedural History

Frase commenced this proceeding in the Western District of New York on October 31, 2001 (Pet. at P. 1). U.S. District Judge John T. Elfvin (WDNY) transferred the petition to this District because the pleading related to matters that occurred in Onondaga County (Dkt. No. 1). This court then issued an order pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response (Dkt. No. 5). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 8-9), to which Frase filed a reply (Dkt. No. 13). Frase's petition has been referred to this court for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).

III. Discussion

A. Timeliness of ...


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