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Monstream v. Superintendent Bedford Hills Correctional Facility

March 6, 2008


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



Annette Montstream ("Montstream") has filed a pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in this Court, challenging her conviction following a guilty plea in Niagara County Court of New York State Supreme Court to charges of first degree manslaughter, second degree criminal possession of a weapon, and second degree criminal solicitation. See petition (Docket No. 1). The matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b). Presently before the Court is Montstream's motion (Docket Nos. 15 & 16) seeking to have the petition stayed pursuant to Rhines v. Weber, 544 U.S. 269 (2005).*fn1 For the reasons that follow, the motion to stay is denied without prejudice with leave to re-file.


On August 19, 1998, a Niagara County grand jury indicted Montstream for her alleged involvement in the shooting death of her husband. According to the statement that Montstream made to the police, she paid her co-defendant, Michael Northrup, to kill her husband, John Montstream. Montstream was charged under a theory of accomplice liability*fn2 with two counts of second degree murder, one count of second degree conspiracy, one count of second degree criminal possession of a weapon, and two counts of second degree criminal solicitation.

Following a pre-trial suppression hearing, Montstream's inculpatory statement to the police was held to be admissible. On March 6, 2000, Montstream elected to plead guilty to one count each of first degree manslaughter (N.Y. Penal Law § 125.20), second degree criminal possession of a weapon (N.Y. Penal Law § 265.03), and second degree criminal solicitation (N.Y. Penal Law § 100.10), in satisfaction of the indictment against her.*fn3 The plea package included a sentencing agreement and a waiver of her right to appeal. On June 19, 2000, Judge Peter L. Broderick, Sr. sentenced Montstream in accordance with the terms of the plea agreement to consecutive prison terms of 12 1/2 to 25 years on the manslaughter charge, 6 1/2 to 13 years on the weapons possession charge, and 1 to 3 years on the conviction for criminal solicitation in the second degree. The minimum consecutive sentence totaled 20 years, and the maximum totaled 41 years, which was reduced by operation of law to a maximum term of 40 years. See N.Y. Penal Law § 70.30. Thus, Montstream's aggregate sentence of imprisonment was20 to 40 years.

Montstream obtained different counsel on direct appeal and raised the following issues: the legality of the consecutive sentences, the factual sufficiency of her plea allocution, and whether her guilty plea and waiver of right to appeal were valid. The Appellate Division, Fourth Department, unanimously affirmed her conviction. People v. Montstream, 21 A.D.3d 1353, 804 N.Y.S.2d 154 (App. Div. 4th Dept. 2005), lv. denied, 6 N.Y.3d 756, 843 N.E.2d 1164, 810 N.Y.S.2d. (N.Y. ).

Montstream filed her federal habeas petition on November 27, 2006. See Petition (Docket No. 1). Respondent answered the petition on . Montstream now has filed a motion for a stay (Notice of Motion (Docket No. 15) & Affirmation (Docket No. 16); this application also appears to be a motion to amend her petition. Because it is unclear what claims Montstream is attempting to assert in the petition and what type of relief she seeks in the motion to stay, it is necessary to set forth Montstream's allegations in some detail below before resolving the presently pending motion.


Petitioner's Habeas Petition

Beginning at paragraph 22(A) on page 7 of the District Court's form habeas petition, petitioners are instructed to state concisely every ground on which they claim they are being held unlawfully and to summarize the facts supporting each claim and to attach additional pages if necessary. Under Paragraph 22(A) through 22(D), in the lined spaces provided, there are some handwritten allegations. See Petition at 7-8, ¶¶ 22(A)-(D) (Docket No. 1). Those statements represent the entirety of Montstream's allegations in her habeas petition. Montstream did not submit a memorandum of law in support of the petition.

In her Answer (Docket No. 3) and Memorandum of Law (Docket No. 4), respondent interpreted Montstream to have raised eight (8) claims in the Petition. With regard to Montstream's notation "A,B,E,F" in the space following "Ground one" on page 7 of the District Court's form habeas petition, respondent has assumed that Montstream is referring to the constitutional claims which are printed above under Paragraph 22 on the form habeas petition and lettered "(a)" through "(j)". The grounds are listed for petitioners' convenience and the instructions to petitioners state not to simply check-off the listed grounds. Montstream has circled (a), (b), (e), and (f) on the form petition.

I agree that respondent's interpretation of what Montstream meant by the notation "A,B,E,F" and circling "(a)", "(b)", "(e)", and "(f)" is reasonable--it appears that Montstream is attempting to assert (1) that her "[c]onviction [was] obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature and consequences of the plea" (i.e, Ground (a)); (2) that her "[c]onviction [was] obtained by use of coerced confession" (i.e., Ground (b)); (3) that her "[c]onviction [was] obtained by violation of privilege against self-incrimination" (i.e., Ground (e)); and (4) her "[c]onviction [was] obtained by unconstitutional failure of prosecution to disclose to the defendant evidence favorable to the defendant" (Ground (f)).

Respondent argues that these four claims ("A,B,E,F") are unexhausted because they were not raised on direct appeal or in a post-verdict motion to vacate the judgment.*fn4 Furthermore, respondent notes that Montstream "provides no facts or assertions to support" the claims and argues that, in any event, they are without merit. See ...

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