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Montes v. Greiner

November 29, 2005

RADAMES MONTES, PETITIONER,
v.
CHARLES GREINER, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Maas, United States Magistrate Judge

RECOMMENDATION TO HON. LAURA T. SWAIN

I. Introduction

In this pro se habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254, petitioner Radames Montes ("Montes") challenges his conviction on one count of Robbery in the Second Degree.*fn1 Montes entered a plea of guilty to this charge and was sentenced, as a second violent felony offender, to an indeterminate prison sentence of five to ten years. Montes now claims that he was deprived of the effective assistance of counsel, in violation of the Sixth Amendment, in connection with his guilty plea. For the reasons that follow, I recommend that his petition be denied.

II. Relevant Facts and Procedural History A. Charges and Guilty Plea

In 1995, Montes was indicted in New York County on charges of Robbery in the First Degree, Grand Larceny in the Fourth Degree, and Criminal Possession of Stolen Property in the Fifth Degree. These charges arose out of an incident on September 17, 1995, during which Montes allegedly forcibly stole twenty dollars from Alberto Valbueno while displaying what appeared to be a firearm. (See Decl. of Brian M. Stettin, Esq., dated Mar. 22, 2001 ("Stettin Decl."), ¶ 4 & Ex. A).

On March 22, 1996, after a failed attempt the day before, Montes offered, through his counsel, Philip Rauch, Esq., to enter a plea of guilty before Justice Carol Berkman to one count of Robbery in the First Degree, on the understanding that he would be sentenced, as a violent predicate felony offender, to an indeterminate sentence of five to ten years. (Id. Ex. B at 2, 4). Thereafter, the following allocution occurred:

THE COURT: Mr. Montes, on September 17 of 1995, did you forcibly steal property from Alberto Balpeno [sic] by displaying what appeared to be a firearm?

THE DEFENDANT: Yes.

THE COURT: Did you have a real gun or you --

THE DEFENDANT: No.

THE COURT: -- stuck your hand in your pocket?

THE DEFENDANT: Yeah.

(Id. at 2). Since Montes contended (with some prompting from the court) that there was no actual firearm, Justice Berkman directed that the plea be entered to the crime of Robbery in the Second Degree, to which Mr. Rauch responded, "So be it, Judge."*fn2 (Id.; Montes' Br. at 2).

In the course of the allocution, Justice Berkman also confirmed that Montes had three prior felony convictions on charges of Robbery in the First Degree which Montes was not challenging on constitutional grounds. (Stettin Decl. Ex. B at 3-4). She explained to Montes that his resulting status as a violent predicate felony offender required that she impose a minimum sentence of four to eight years, but that "the People [would not] permit[] a plea down unless I promise that your sentence will be five to ten, so that's what I'm promising." (Id. at 4). She also noted that Montes would face a mandatory minimum sentence of six to twelve years if he were convicted of first degree robbery after a trial. (Id.). When Justice Berkman asked Montes whether he understood the offer and the consequences of pleading guilty, he acknowledged that he did. (Id. at 3-5).

B. Sentencing

Montes' sentencing took place before Justice Berkman on April 3, 1996. (Id. Ex. C). At the outset of that proceeding, although Mr. Rauch indicated that Montes was ready to proceed, the Justice expressed concern that Montes evidently had denied his guilt in a statement to the Probation Department. (Id. at 2). In response, Mr. Rauch confirmed that his client did not want to withdraw his guilty plea. (Id. at 2-3). As previously agreed, Justice Berkman then sentenced Montes to five to ten years in prison, and reminded Mr. Rauch to advise Montes of his right to appeal. (Id. at 3). Mr. Rauch responded, "I have advised him of his right to appeal. (Id.).

Notwithstanding his present claims, Montes was given two opportunities to address the court on April 3rd before sentence was imposed. (Id. at 2-3). At that time, Montes did not profess his innocence or seek to withdraw his plea. (Id.). Instead, he told the Court, "I am ready for sentence." (Id. at 3).

Montes is serving his sentence at the Auburn Correctional Facility. (See http://nysdocslookup.docs.state.ny.us/kinqw00) ...


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