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Allen v. McGinnis

July 13, 2006

FRANK ALLEN, PETITIONER,
v.
MCGINNIS, SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Garaufis, United States District Judge

MEMORANDUM & ORDER

Pro se Petitioner Frank Allen ("Allen" or "Petitioner") brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Allen challenges his conviction rendered in New York Supreme Court, Queens County, for Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law § 220.39(1)). For the reasons set forth below, Allen's Petition is DENIED.

I. FACTUAL BACKGROUND

This Petition arises from a guilty plea entered by Petitioner on March 16, 2001, and a sentencing hearing on September 17, 2001 in which Petitioner, representing himself pro se, was adjudged a second violent offender and sentenced to four and one-half to nine years imprisonment. On February 20, 2000, an undercover police detective observed Petitioner participate in the sale of a controlled substance. (Dec'n Opp. Pet., Ex. E ("Pet. App. Br."), at 4.) Allen was stopped, arrested, and searched, which recovered two bags containing a white powder substance. (Id.)

In a hearing before the Honorable Roger Rosengarten on March 16, 2001, in which Petitioner was represented by Kevin O'Donnell, Esq., his second appointed attorney,*fn1 Petitioner signed a plea agreement and pleaded guilty to criminal sale of a controlled substance in the third degree. (Trial Transcript, dated March 16, 2001 ("March 16 Trial Tr."), at 3-9.) Mr. O'Donnell represented that Petitioner wished to plead guilty without waiving the right to appeal. (Id. at 2.) Judge Rosengarten refused to accept a guilty plea without an appeal waiver, and asked if Petitioner still wanted to plead guilty. Petitioner responded "All right. Go ahead." (Id. at 3.) The trial judge then had the following exchange with Petitioner:

The Court: [Defense counsel] Mr. O'Donnell tells me that you have decided and you want to plead guilty to the first count of this indictment that charges you with Criminal Sale of a Controlled Substance in the 3rd Degree which is a Class B Felony, with the knowledge that I will sentence you to the minimum term allowable under that plea which is four and a half to nine years. And I will state no objection to your being released on your first possible release date. Is that what you want to do sir?

Defendant: Yes, I do.

The Court: All right. Do you understand, sir, that by pleading guilty you are giving up your right to have a trial by jury. In fact, we are in the middle of jury selection. And you understand you are giving up that right to continue with this jury trial?

Defendant: Yes, I do.

The Court: All right. I want you to know that if we went through the trial here, that at the close of jury selection the People would have the burden of proving that you are guilty beyond a reasonable doubt. And you are not required to prove anything. You are not required to do anything. You could just sit there and do absolutely nothing and see if the People prove their case or not. And while you have the right to assist your lawyer in cross examining the People's witnesses, you are under no obligation to present any case because the burden of proof is on the People. Do you understand this?

Defendant: Yes.

The Court: Is anybody forcing you to plead guilty?

Defendant: No.

The Court: Are you pleading guilty of your own free will?

Defendant: Yes.

The Court: Other than the promise that I made you in regard to sentence, did anybody promise you anything else to get you to plead guilty?

Defendant: No.

The Court: I show you this document [waiver of right to appeal] here. Is this the document you just signed?

Defendant: Yes, I did.

The Court: You understand that by signing this document you are giving up your right to ...


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