Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

MONTES v. GREINER

United States District Court, S.D. New York


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 extent that Montes seeks to rely on such matters as a basis for his claims, his petition is unexhausted.

  Pursuant to 38 U.S.C. § 2254(b)(1)(A), a petitioner must have exhausted all of his state court remedies before habeas relief can be granted. As the Second Circuit has indicated, if a habeas petition contains any exhausted claims, the appropriate course of action is to dismiss the unexhausted claims, stay the remainder of the petition, and direct the petitioner to notify the Court within a short period after he has completed the exhaustion of his state court remedies. Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, 534 U.S. 1015 (2001).

 Conclusion

  For the foregoing reasons, Montes' claims that his court-appointed counsel was ineffective because he failed to confer with Montes, failed to secure his approval for Page 6 the plea, and failed to determine whether he wanted to withdraw his plea must be dismissed because they have not been exhausted in state court. In addition, Montes' remaining ineffective assistance claims should be stayed so that he can properly exhaust the dismissed claims in state court.

  To ensure that this proceeding does not remain dormant longer than necessary, the stay of further proceedings should be expressly conditioned on the following requirements: first. Montes must file his Section 440.10 motion in state court within thirty days; second, he must return to this Court within thirty days after he has exhausted his state court remedies with respect to that motion. Additionally, if Montes decides to pursue exhaustion of his unexhausted claims, he should be directed to provide both Your Honor and me with (1) a copy of his state court motion within ten days after it is submitted to the state court and (2) a copy of any state court decision regarding that motion within ten days after he receives it.

  Alternatively, if Montes wishes to withdraw his unexhausted claims, he should be permitted to advise Your Honor and me of this decision by letter within the next thirty days, in which event I will proceed to consider — and make my report and recommendations with respect to — his remaining claims.

 Notice of Procedure for Filing of Objections to this Report and Recommendation

  The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, Page 7 file them with the Clerk of the Court, and send copies to the chambers of the Honorable Laura Taylor Swain, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).

20040206

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.