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July 6, 2004.

TIMOTHY MURRY, Respondent.

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Petitioner, Richard J. Snitzel ("Snitzel"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on four counts of sexual abuse and one count of endangering the welfare of a child following a guilty plea. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

  At the outset, the Court notes that Snitzel is no longer in state custody, having completed his six year term of incarceration. "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are `in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2241(c)(3) (emphasis in original) and citing 28 U.S.C. § 2254(a)). The Supreme Court has "interpreted the statutory language as requiring that the habeas petitioner be `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng, 490 U.S. at 490-91 (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).

  In the present case, Snitzel filed his federal habeas petition on May 9, 2001. He was released from custody on March 31, 2003. Thus, because Snitzel was incarcerated at the time he filed his habeas petition, he fulfills the "in custody" requirement of 28 U.S.C. § 2241, and the Court has jurisdiction to hear this case. Furthermore, the Court finds that Snitzel's habeas petition has not been rendered moot by the fact that he has been unconditionally released from prison. See, e.g., Geraci v. Sheriff, Schoharie County Jail, 2004 WL 437466, at *2 (N.D.N.Y. Feb. 20, 2004) (citing Spencer, 523 U.S. 1, 12 (1998) ("[I]t is an `obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)). Thus, Snitzel is entitled to have this Court consider his habeas petition on the merits.


  Snitzel was indicted on four counts of first degree sexual abuse and one count of endangering the welfare of a child. The charges stemmed from Snitzel's having subjected a twelve-year-old girl to sexual contact by forcible compulsion. Specifically, the People alleged that Snitzel put his hand on the complainant's breast, put his mouth on her breast, and, on two separate occasions, grabbed her wrist and placed her hand on his penis. The sexual abuse occurred at Snitzel's residence, which he shared with the complainant's father, while the complainant and her brother were visiting their father for the weekend.

  At the arraignment in Monroe County Court, defense counsel informed the court that Snitzel rejected the People's offer of a four-year sentence in return for a guilty plea. Counsel stated, "Mr. Snitzel does maintain his innocence." May 21, 1997 Arraignment Transcript at 3. The matter proceeded to trial, which commenced on July 28, 1997. That day, during jury voir dire, Snitzel changed his mind and decided to plead guilty in exchange for a sentence promise from the court.

  During his sworn factual colloquy, Snitzel admitted that he used force to touch the complainant's breasts with his hands and mouth and that he forced her touch his penis. See July 28, 1997 Plea Transcript at 4-6. In return for his plea, Snitzel received a sentence promise of six years. Snitzel was adjudicated a second felony offender and was sentenced as promised on September 3, 1997, to a term of incarceration of six years on each of the four counts of sexual abuse and one year on the child endangerment count. All sentences were set to run concurrently.

  On direct appeal, Snitzel's appellate counsel challenged the severity of the negotiated sentence. Snitzel submitted a pro se supplemental brief in which he argued that his sentence was harsh and excessive, that he did not receive meaningful representation from his defense counsel, and that he was coerced into pleading guilty. The Appellate Division, Fourth Department, unanimously affirmed his conviction on March 29, 2000. People v. Snitzel, 270 A.D.2d 836 (4th Dept. 2000). The New York Court of Appeals denied leave to appeal on May 15, 2000. People v. Snitzel, 95 N.Y.2d 804 (2000).

  This federal habeas petition followed in which Snitzel raises the following claims: (1) his guilty plea was unlawfully induced and based on erroneous information from defense counsel; (2) he received constitutionally ineffective representation because counsel failed to investigate his case and interview witnesses, failed to make motions, and failed to pursue plea offers; and (3) his sentence was harsh and excessive. For the reasons set forth below, Snitzel's § 2254 petition is denied.


  I. Exhaustion

  Before seeking a writ of habeas corpus in federal court, a petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly ...

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