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).
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 ...