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BROWN v. HERBERT

August 6, 2003

JEROME BROWN, PETITIONER, VS. VICTOR HERBERT, SUPERINTENDENT, RESPONDENT


The opinion of the court was delivered by: David Larimer, Chief Judge, District

DECISION AND ORDER

INTRODUCTION

Petitioner Jerome Brown ("Brown") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction based on a guilty plea in Monroe County Court. For the reasons set forth below, Brown's § 2254 petition is dismissed

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 14, 1996, Brown shot three people during an argument. All of the victims survived but suffered lasting injuries as a result of the shooting. The district attorney offered Brown the opportunity to plea to one count of Attempted Murder in the Second Degree and two counts of Assault in the First Degree. The agreed-upon sentence was a term of imprisonment of 17-34 years.

On October 30, 1996, Brown appeared with retained counsel before Judge David Egan in Monroe County Court to enter a guilty plea pursuant to the agreement. After the judge conducted an extensive colloquy, Brown told his lawyer that he "didn't think he wanted to go through with this." Judge Egan adjourned the matter for a Huntley hearing concerning statements made by Brown. 10/30/96 Transcript ("Tr.") at 12. [ Page 2]

On December 13, 1996, Brown again appeared with counsel and informed the court that he now wished to enter into the previously offered plea agreement. Again, Judge Egan and the district attorney thoroughly questioned Brown concerning the plea agreement and the consequences of pleading guilty. The court and the district attorney accepted Brown's colloquy, and Brown received the promised sentence of 17 to 34 years.

One of the terms of the plea agreement included a waiver of Brown's right to appeal. However, Brown appealed his conviction to the Appellate Division, Fourth Department through new counsel on January 17, 1997. He argued that his sentence was harsh and excessive and that the waiver of his right to appeal was ineffective. The Appellate Division unanimously affirmed his conviction without comment in an order entered May 10, 2000. The New York Court of Appeals denied leave to appeal on August 11, 2000.

Brown also attacked his conviction collaterally by means of a motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20*fn1 to set aside the judgment on the ground that his sentence was illegal, as well as harsh and excessive. Judge Egan denied the motion in a summary order entered June 6, 1999. This habeas petition followed.

DISCUSSION

Exhaustion

Brown's federal habeas petition asserts four claims: (1) the plea agreement was involuntary; (2) his defense counsel was ineffective; (3) the waiver of his right to appeal was invalid; and (4) his [ Page 3]

sentence was excessive. Several of these claims may not be raised in a habeas corpus proceeding. I agree with respondent that Brown's ineffective-assistance-of-counsel claim and claim based on his allegedly involuntary plea are unexhausted because he failed to raise them in state court. It is also clear that Brown may no longer return to state court to exhaust these claims now.

First of all, Brown is procedurally barred from raising the unexhausted claim before the New York Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. New York Court Rules § 500.10(a). Secondly, although Brown could return to state court and raise his attorney's ineffectiveness in a collateral C.P.L. § 440.10 motion, it would be a futile effort. Because Brown had new counsel on his direct appeal, the failure to raise an ineffectiveness claim based on his defense attorney's performance in relation to the plea bargain was unjustifiable, and County Court would deny that motion on the basis of C.P.L. § 440.10(2)(c).*fn2 His claim relating to the involuntary plea argument also could be raised in a C.P.L. ...


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