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)
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
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
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
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
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.
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).
In his petition, Montes contends that the representation and advice
furnished to him by his counsel in the trial court was deficient in
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. ¶
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).
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
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
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
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,
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),
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