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Hernandez v. Conway

April 25, 2007

JUAN HERNANDEZ, PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Juan Hernandez ("Hernandez" or "petitioner") has filed a pro se petition (Docket No. 1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on March 15, 2001, in Ontario County Court on drug-related offenses. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). See Docket No. 6.

II. Factual Background and Procedural History

The conviction here at issue stems from several sales of drugs (heroin) by petitioner to informants in police-arranged drug buys and an incident of reckless driving that occurred on January 6, 2000; February 18 and 29, 2000; March 1 and 2, 2000; and April 6, 2000. As a result of his involvement in these incidents, Hernandez was indicted by an Ontario County Grand Jury as follows:

* Count One: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law 220.39(1)) on February 18, 2000;

* Count Two: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law § 220.03)) on February 18, 2000;

* Count Three: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39(1)) on February 29, 2000;

* Count Four: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law § 220.03) on February 29, 2000;

* Count Five: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law 220.39(1)) on March 1, 2000;

* Count Six: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law 220.03) on March 1, 2000;

* Count Seven: Criminal Possession of a Controlled Substance in the Third Degree (intent to sell) (N.Y. Penal Law 220.16(1)) on March 2, 2000;

* Count Eight: Criminally Using Drug Paraphernalia (glassine envelopes for the distribution of narcotics) in the Second Degree (N.Y. Penal Law § 220.50(2)) on March 2, 2000;

* Count Nine: Criminal Mischief (damaging a police vehicle) in the Third Degree (N.Y. Penal Law § 145.05) on March 2, 2000;

* Count Ten: Reckless Driving (Vehicle & Traffic Law § 1212) on March 2, 2000; and

* Count Eleven: Criminal Possession of a Controlled Substance in the Third Degree (intent to sell) (N.Y. Penal Law § 220.16(1)) on April 6, 2000.

Petitioner, through counsel, moved for, inter alia, severance of the various counts of the indictment pursuant to New York State Criminal Procedure Law ("C.P.L.") § 220.20(3) and for dismissal of counts seven, eight, nine, ten, and eleven of the indictment. Ontario County Court (Harvey, J.) heard argument on February 14, 2000, at which time he denied the severance motion. See Exhibits to Respondent's Answer ("Resp't Ex.") G. Judge Harvey denied the motion to dismiss in a separate decision and order. See Resp't Ex. A at 53. Following a suppression hearing on March 7, 2001, the trial court dismissed count eleven of the indictment finding that there was no probable cause to stop petitioner. Hernandez was tried before a jury on March 14 and 15, 2001. At the close of the prosecutions's case, the trial court dismissed count seven of the indictment charging third degree criminal possession of a controlled substance on March 2, 2000. See Resp't Ex. I at 334. The jury returned a verdict convicting Hernandez on eight counts charging drug-related offenses: three counts of criminal sale of a controlled substance in the third degree; three counts of criminal possession of a controlled substance in the seventh degree; one count of criminally using drug paraphernalia in the second degree; and one count of reckless driving. He was acquitted of count nine, which charged reckless driving (damaging a police vehicle).

Hernandez was sentenced as a second felony offender on March 28, 2001, as follows:

* Count One (criminal sale on February 18, 2000) -- 5 to 10 years;

* Count Three (criminal sale on February 29, 2000) -- 9 to 18 years, to run consecutively to the sentence for Count One;

* Count Five -- 5 to 10 years, to run concurrently with all of the sentences;

* Counts Two, Four, and Six (criminal possession with intent to sell) -- 6 months, to run concurrently with all of the sentences;

* Count Eight (criminally using drug paraphernalia) -- 60 days, to run concurrently with all of the sentences; and

* Count Ten (reckless driving) -- 30 days in the local jail, to run concurrently ...


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