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MONTES v. GREINER

February 6, 2004.

RADAMES MONTES, Petitioner -v- CHARLES GREINER, Superintendent, Respondent


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge Page 2

ORDER ADOPTING REPORT & RECOMMENDATION

The Court has reviewed Magistrate Judge Maas's Report and Recommendation dated January 5, 2004 (the "Report"), which recommends that Petitioner's claims of ineffective assistance of counsel based on failure to confer with Petitioner, failure to secure Petitioner's approval for his plea, and failure to determine whether Petitioner wanted to withdraw his plea, should be dismissed because they have not been exhausted in state court. The Report further recommends that the remaining ineffective assistance of counsel claims should be stayed in order to allow Petitioner to properly exhaust the dismissed claims in state court. No objections to the Report have been received.

In reviewing a report and recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 1993). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted).

  The Court has carefully reviewed Magistrate Judge Maas's Report and Recommendation and finds no clear error. The Court therefore adopts the Report for the reasons stated therein.

  Although the Court has not received any objections to the Report, Petitioner has submitted a letter, received on February 5, 2004, requesting an extension of time to file his Section 440.10 motion in state court. Accordingly, and as recommended by the Report, Petitioner's application for habeus relief based on claims of ineffective assistance of counsel is hereby stayed pending exhaustion of the dismissed claims in state court. This stay is based on Page 3 the following conditions: (1) Petitioner must file his Section 440.10 motion in state court no later than April 30, 2004; (2) Petitioner must notify the Court, in writing, within 30 days after he has exhausted his state court remedies with respect to the Section 440.10 motion; (3) Petitioner must provide both the undersigned and Judge Maas with a copy of his Section 440.10 motion, including any exhibits, within 10 days after it is filed with the state court; and (4) Petitioner must provide both the undersigned and Judge Maas with a copy of any state court decision regarding the Section 440.10 motion within 10 days after he receives it.

  The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  IT IS SO ORDERED.

  FRANK MAAS, United States Magistrate Judge

 Introduction

  This habeas proceeding is brought by petitioner Radames Montes ("Montes"), who was sentenced on April 3, 1996, as a second violent felony offender, to an indeterminate prison sentence of five to ten years, following his plea of guilty in Supreme Court, New York County, before Justice Carol Berkman, to one count of Robbery in the Second Degree. On his direct appeal, Montes argued that he was denied Page 4 the effective assistance of counsel based upon certain alleged shortcomings which were matters of record and others which were not. (See Decl. of Brian M. Stettin, Esq., dated Mar. 22, 2001 ("Stettin Decl."), Ex. E at 7-11). The bases which were dehors the record were that counsel had failed to: (1) pay sufficient attention to his case; (2) question Montes or otherwise investigate his alleged denial of guilt during his presentence interview; (3) determine whether Montes wished to withdraw his plea in light of that denial; and (4) follow up to ensure that Montes was afforded adequate care for his medical condition. (Id.).

  On October 12, 1999, the Appellate Division, First Department, affirmed Montes' conviction, observing:
To the extent that defendant's ineffective assistance of counsel claim makes factual assertions unsupported by the record, such claim would require a motion pursuant to CPL 440.10. On the existing record, we find that defendant received meaningful representation in connection with his plea and sentence.
People v. Montes, 697 N.Y.S.2d 9 (1st Dep't 1999). Thereafter, on January 14, 2000, the New York Court of Appeals denied Montes' leave to appeal from that decision. People v. Montes, 94 N.Y.2d 882 (2000).

 Discussion

  In his petition, Montes contends that the representation and advice furnished to him by his counsel in the trial court was deficient in several respects, Page 5 including counsel's alleged failure to (1) confer with Montes, (2) "explain[] or get [Montes'] approval for []his plea," and (3) ascertain whether [Montes] wanted to withdraw his plea after Justice Berkman noted that he had denied his guilt during a presentence interview. (Pet. ¶ 12.A).

  As the Appellate Division correctly observed, an ineffective assistance of counsel claim that relies on matters outside the record must be presented to the state courts pursuant to a motion to vacate judgment under Section 440.10 of the New York Criminal Procedure Law. In this case, however, Montes apparently has never filed such a motion. (See Stettin Decl. at ¶ 11). Accordingly, to the ...


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