Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Viscomi v. Conway

July 12, 2006

ANTHONY VISCOMI, PETITIONER,
v.
JAMES CONWAY, ACTING SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Petitioner, Anthony Viscomi ("Viscomi"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Erie County) following a guilty plea to charges of second degree murder, attempted first degree robbery, and fourth degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

II. Factual Background and Procedural History

Viscomi's conviction stems from his involvement, with co-defendants Eudaldo Blanco ("Blanco") and Holly Harris ("Harris"), in the attempted robbery and beating death of Jason Trefethen ("Trefethen") on February 4, 1998, in the City of Buffalo. After receiving information from Blanco regarding Viscomi's and Harris's whereabouts, the police proceeded to bring Viscomi, Harris, and several of their acquaintances in for questioning on the night of February 6, 1998. When the police read Viscomi his Miranda warnings, Viscomi became "visibly upset" and stated, "I don't need a lawyer present, I know I'm guilty, this has been troubling [me] since I heard it on the news, I'm willing to take responsibility for my actions." See Police Report dated February 6, 1998, submitted by Respondent as part of the State Court Records. Viscomi then waived his rights and gave a statement to the police which was memorialized on a written form that had the Miranda warnings pre-printed on it. In the statement, Viscomi explained that he "decided [he] was going to rob somebody" because he needed money to pay his rent and buy some food. See Petitioner's Statement to Police dated February 6, 1998, submitted by Respondent as part of the State Court Records. Viscomi stated that he had Harris call Hoagan's Pizzeria and have some sandwiches delivered to an address on Sterling Avenue. Id. at 1. Then, he and "T-Bone" (Blanco) waited for the pizza delivery person behind the building. Id. When the victim arrived, Viscomi "walked behind him and punched him in the back of the head with [his] fist" causing him to fall on top of T-Bone. Id. The victim then got up and started to chase Viscomi; Viscomi "went to run and that's when T-Bone hit him, with his fist," causing the victim to fall to the ground. Id. Viscomi stated that T-Bone him in the head with a board; Viscomi hit him two more times with his fist. Id. at 1-2. According to Viscomi, T-Bone "kept hitting him in the head with the wood." Id. at 2. Viscomi stated that he "got scare[d] cause [sic] it went to [sic] far" and so he ran home. Id. Viscomi admitted that it was his plan to rob the pizza delivery man, and that just he and T-Bone were present when they planned the robbery. Id. Viscomi said that he had brought a table leg with him as a weapon, which he hid up his sleeve.*fn1

Id.

Viscomi was charged with two counts of second degree murder (N.Y. Penal Law §§ 125.25(2) (depraved indifference murder), 125.25(3) (felony murder)); two counts of attempted first degree robbery (N.Y. Penal Law §§ 110.100 (attempt); 160.15(1) (robbery while causing serious physical injury); 160.15(3) (robbery while using or threatening use of a dangerous instrument)); and one count of fourth degree criminal possession of a weapon (N.Y. Penal Law § 265.01(2)). In return for his guilty plea to all counts of the indictment, Viscomi received a sentence promise of fifteen years to life. Had he been convicted as charged following a trial, Viscomi faced a minimum sentence of twenty-five years to life.

The plea allocution was taken in Erie County Court (Wolfgang, J.) on May 14, 1998. After confirming that Viscomi understood all of the rights he was giving up by entering a guilty plea and foregoing trial, and that no one had coerced him or threatened him in connection with the decision to plead guilty, the court engaged Viscomi in the following colloquy:

The Court: Now, I can't accept your plea unless you're guilty. So, regarding these incidents on -- this incident on February 4th, 1998, were you with Edualdo [sic] Blanco?

The Defendant: Yes, ma'am.

The Court: And did you rob a person named Jason Trefethen?

The Defendant: Yes, I did.

The Court: Where did this occur?

The Defendant: Occurred on Starin [sic] Avenue in Buffalo, New York.

The Court: And during the course of this robbery, did you beat him?

The Defendant: He was beaten.

The Court: And what was he beaten with?

The Defendant: Two by four.

The Court: And who was involved in this, you and Edualdo [sic] Blanco?

The Defendant: Yes.

The Court: And what part of his body was injured?

The Defendant: His head.

The Court: Where was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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