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Richard Mills v. Superintendent T. Poole

May 14, 2008

RICHARD MILLS, PETITIONER,
v.
SUPERINTENDENT T. POOLE, RESPONDENT.



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

REPORT AND RECOMMENDATION

I. Introduction

Richard Mills ("Mills" or "petitioner") has filed a pro se petition for a writ of habeas corpus challenging his conviction on December 16, 2004, following a jury trial in New York State County Court, Genesee County, on charges of attempted first degree murder (New York Penal Law ("P.L.") §§ 110.00, 125.27(1)(a)(i)); attempted first degree assault (P.L. §§ 110.00, 120.10(1)); first degree reckless endangerment (P.L. § 120.25); third degree criminal possession of a weapon (two counts) (P.L. §265.02(1)); and third degree criminal possession of a weapon (P.L. § 221.20). Mills was sentenced to concurrent sentences, the longest of which was twenty years to life. He is presently incarcerated pursuant to this judgment of conviction.

Mills' habeas proceeding has been referred to the undersigned pursuant 28 U.S.C. § 636(b) for, inter alia, the issuance of a report and recommendation regarding the disposition of his petition. For the reasons that follow, I recommend that the petition be dismissed.

II. Factual Background and Procedural History

A. Pre-Trial Proceedings

The conviction here at issue stems from an incident that occurred on December 21, 2001, following repossession by Griffiths Oil Company of the propane tank regulator at Mills' father's house due to non-payment of the bill. The police responded to the house after a representative from the oil company and Mills' father called 911 to report that Mills had threatened the oil company employee, stated that he was going to kill himself, and vowed to shoot any police officer who came to the house. Mills allowed one deputy, who happened to be a family friend, to come in and talk with him. When another a deputy and a sheriff's investigator arrived on the scene, the situation deteriorated: Mills announced that he was "gonna shoot 'em in the head", picked up the loaded rifle on his lap and pointed it through an open window at one of the officers. The deputy inside the house with Mills grabbed the gun barrel and a struggle ensued. Mills was able to seize a shotgun from the table with his free hand, forcing the deputy to grab that gun as well. During the melee, the deputy was in the unenviable position of having the barrels of both guns up against his chest. Hearing that deputy's calls for back-up, the investigator and the other deputy rushed into the house and struggled to get the guns away from Mills. During the fracas, the rifle discharged into the ceiling, barely missing striking the first deputy's face and the second deputy's head. The officers were finally able to subdue Mills and bring him into custody. When the police brought petitioner back to his house to retrieve his psychiatric medication, they found marijuana--over one pound total--stashed throughout the house.

Mills subsequently was charged on March 4, 2002, with attempted first degree murder, first degree reckless endangerment, fourth degree criminal possession of a weapon, and second degree criminal possession of marijuana. Through his attorney, Mills waived his right to an indictment and pled guilty to the lesser included charge of attempted second degree murder and second degree criminal possession of marijuana. He was sentenced on April 5, 2002, to an aggregate term of ten years in prison. Respondent's Exhibits ("Resp't Exs.")*fn1 S at 38; T at 98, 119; & U at 4. On October 7, 2003, Genesee County Court Judge Robert Noonan granted Mills' pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 because Mills' waiver of the indictment was invalid. See Resp't Exs. T at 98 & U at 4).*fn2 New counsel was assigned to represent Mills, and the case was returned to pre-waiver status. See Resp't Exs. T at 120 & U at 4-5.

On October 23, 2003, Mills was re-indicted on two counts of attempted first degree murder--one count for pointing the rifle at the investigator and the other count for firing the rifle and narrowly avoiding killing the two deputies. He was also charged with two counts each of attempted first degree assault, first degree reckless endangerment (for the investigator and the two deputies), and third degree criminal possession of a weapon (for possessing the shotgun and the rifle). Finally, the indictment charged Mills with one count of third degree possession of marijuana with respect to the 1.27 pounds of that substance found in his house.

Mills appeared in Genesee County Court before County Court Judge Robert Noonan on November 6, 2003, and informed the court that he was firing his attorney. He also demanded a competency examination pursuant to C.P.L. § 730.30. See Resp't Ex. U at 5; Transcript of November 6, 2003 Pre-Trial Hearing ("11/06/03 Tr.") at 2-4, 7.*fn3 Defense counsel informed the court that such an examination was unnecessary, and the prosecutor indicated that a competency examination had been done previously in connection with the first indictment. According to the prosecutor, that examination had shown petitioner was competent to stand trial. See Resp't Exs. T at 119 & U at 5; 11/06/03 Tr. at 7-8. On December 17, 2003, while Mills' court-assigned counsel was present, Mills appeared with a new retained attorney, Felix Lapine, Esq., for arraignment. See Resp't Ex. U at 5; 12/17/03 Tr. at 2-3. Mills again requested a competency examination, but attorney Lapine stated that there was no need for such an examination. See Resp't Ex. U at 5; 12/17/03 Tr. at 5-6.

Attorney Lapine filed a pre-trial omnibus motion on January 12, 2004, requesting, inter alia, suppression of all property and statements taken from petitioner, and dismissal of counts seven and eight alleging criminal possession of a weapon because the indictment mistakenly cited "Penal Law § 165.02," which does not exist. Defense counsel also sought dismissal of the remaining counts of the indictment, except for count nine relating to the marijuana possession. See Resp't Ex. T at 10-29. At the suppression hearing held on March 19, 2004, attorney Lapine argued that Mills had standing to assert a Fourth Amendment challenge to the seizure of the guns from his father's house. 3/19/04 Tr. at 3-5. Judge Noonan denied the suppression motion in its entirety in a written decision filed March 26, 2004. In particular, the trial court found that petitioner had no privacy interest in his father's house, and that the reference to Penal Law § 165.02 in counts seven and eight was a "scrivener's error" and could be amended to read Penal Law § 265.02 through a special information. See Resp't Ex. T at 101-04.*fn4

Mills, through defense counsel, then filed a motion seeking to have Judge Noonan recuse himself on the basis that he had a prior business relationship with Genesee County District Attorney prosecuting Mills' case. See Resp't Ex. T at 48-50. Judge Noonan ruled that although he had previously practiced law with the district attorney and in private practice, his business relationship had been severed long before he became a judge. Therefore, he denied Mills' recusal motion. See Resp't Ex. T at 105-06.

On April 24, 2004, defense counsel for Mills filed a late notice of intent to offer psychiatric evidence but did not state what type of defense would be offered or what issues would be involved. Oral argument on the motion was held on May 18, 2004, before Judge Noonan. See Resp't Ex. T at 51, 61-62; 5/18/04 Tr. at 3-5. During further argument on May 25, 2004, the trial court stated that it had received letters from Mills complaining about attorney Lapine's representation and stating that he still wanted a C.P.L. § 730.30 examination. After hearing extensively from both parties, the trial court ordered a C.P.L. § 730.30 examination and reserved decision on defense counsel's request to file a late notice of intent to offer psychiatric evidence until after the competency exams. See Resp't Ex. U at 5-6; 5/25/04 Tr. at 2-17.

Mills was examined on July 19 and July 24, 2004, by two different psychiatrists. Both doctors noted in their reports that Mills had a history of alcohol/chemical substance dependency and mental illness, including treatment for bipolar disorder from 1998-1999. Also, five days before the incident, Mills had been prescribed new medication for his bipolar disorder. Notwithstanding his history and present diagnosis, both psychiatrists concluded, Mills was mentally competent to stand trial. See Resp't Ex. T at 131-38.

At a subsequent pre-trial hearing held on August 25, 2004, the trial court noted that "both psychiatric examiners f[ou]nd the [petitioner] to be competent." 8/25/04 Tr. at 3; Resp't Exs. S at 16 & T at 119, 121-22. Mills voiced an objection to the reports on the basis that he believed the psychiatrists had used his medical records without obtaining his signed consent. He also asked that attorney Lapine be relieved from representing him, and requested new assigned counsel. 8/25/04 Tr. at 3-6; Resp't Exs. S at 16 & U at 6. Judge Noonan, after hearing from Mills and attorney Lapine on the issue, and noting the tension between them, relieved Lapine and indicated that he would assign new counsel. 8/25/04 Tr. at 6-10; Resp't Exs. S at 16 & U at 6-7.

On September 7, 2004, Mills appeared with newly assigned counsel David Morabito, Esq., and the trial court indicated that it would adjourn the proceedings to allow Mills to decide whether attorney Morabito would act as his trial counsel or as standby counsel. 9/07/04 Tr. at 2-6; Resp't Exs. S at 16 & U at 6-7. Mills also inquired as to what Judge Noonan "was going to do about the 730 evals [sic]." 9/07/04 Tr. at 6-7; Resp't Ex. U at 6. Mills subsequently elected to have attorney Morabito act as his trial counsel. 9/13/04 Tr. at 2-3.

At the September 13, 2004 court appearance, Judge Noonan raised the issue of Mills' letter claiming that attorney Lapine had not received advance notice of the C.P.L. § 730.30 exams. Attorney Morabito informed the judge that notice and his client's competence were no longer in issue. 9/13/04 Tr. at 9-12; Resp't Ex. U at 6. Defense counsel also argued that he should be allowed to file a late notice of intent to present a psychiatric defense on the basis that the newly prescribed drug Topamax® caused Mills' psychosis at the time of the incident. Id. at 4-9.

A week later, on September 20, 2004, counsel for Mills filed a supplemental omnibus motion requesting, inter alia, suppression of all statements made by Mills and of the evidence illegally seized from the house, leave to file a late notice of intent to offer psychiatric evidence, and severance of count nine of the indictment involving marijuana possession. See Resp't Ex. T at 71-74. At oral argument, attorney Morabito contended that the psychiatric evidence would show that Mills lacked the requisite intent to commit the crimes. 9/30/04 Tr. at 2-12. On October 5, 2004, Judge Noonan court summarily denied the remainder of petitioner's motion, but it granted Mills permission to file a late notice of intent to offer psychiatric evidence, provided that Mills consent to be examined by a psychiatrist designated by the prosecutor. See Resp't Ex. T at 114-15.

B. The Trial

Mills' jury trial commenced on November 15, 2004, before Judge Noonan. The prosecution presented testimony that on December 20, 2001, Genesee County Sheriff's Office Deputies responded to petitioner's father's house on Griswold Road near the Town of Stafford.

T.280-83, 343-44.*fn5 They were responding to two 911 calls, one of which had been made by Jim Hardigan, a manager at Griffith Oil Company. Hardigan reported that a customer with mental health problems (Mills) had threatened Hardigan's life over the phone because the company had repossessed, for non-payment, Mills' propane tank regulators. See Resp't Ex. T at 154-55. Mills' father, Elmer Mills, had also called 911 to say that his son was bipolar, had recently been prescribed new medication, and was "flippin['] out" after Griffith Oil had repossessed the propane regulators. See id. at 156-58. Mills' father informed the 911 operator that Mills had consumed some alcohol and smoked some marijuana. In addition, Mills had recently threatened to commit suicide, was in possession of a loaded rifle and a loaded shotgun, and intended to shoot any sheriff's deputy who came to the house. See id. at 156-59; see also T.280.

Three deputies arrived on the scene: Investigator Roger Stone ("Inv. Stone"), Deputy John Weis ("Dep. Weis"), and Deputy John Duyssen ("Dep. Duyssen"). Dep. Duyssen was a friend of petitioner's family, who came over at Mills' request. Mills vowed to shoot anyone other than Dep. Duyssen who approached the house. See Resp't Ex. T at 163-64; T.280-82, 340-45. Dep. Duyssen spoke to Mills via cell phone; Mills informed him that he had some loaded guns with him. He gave Dep. Duyssen, who was unarmed and in civilian clothes, permission to enter the house to talk as long as Duyssen was unarmed and the other deputies did not come in. See Resp't Ex. T at 163-64, 167-68; T.290-91, 343-47.

Once inside, Dep. Duyssen found Mills seated at a table with a loaded shotgun, some ammunition, and a whiskey bottle in front of him, and a rifle leaning against the wall. T.345-47, 358. Dep. Duyssen sat down and Mills told him that he was bipolar, had smoked some "dope," but not crack cocaine, and was "distraught" because his wife had left him and he was in financial trouble, culminating in the repossession of his propane tank regulators. See Resp't Ex. T at 169-70; T.345-46.

Meanwhile, Inv. Stone had positioned himself with Dep. Weis about 100 yards away from the house. T: 280-82, 290-92, 306, 314. (Although Inv. Stone had a "beanbag shotgun" and a ballistics shield, the shield could have been penetrated by the high-powered rifle petitioner had with him.) As Dep. Duyssen and Mills talked about Mills' concern that he would be arrested for having threatened to "shoot up" Griffith Oil if they did not return his regulators, Mills spied Inv. Stone approach closer to the house and poke his head outside the ballistics shield. T.347, 349-51, 353. Exclaiming that he was "gonna shoot 'em in the head," Mills grabbed the rifle and pointed it at Inv. Stone through the open window of the house such that the barrel was outside. T. 294, 347-48, 351, 353. According to Dep. Duyssen, Mills assumed a "shooter's stance," putting his eye up to the scope of the rifle, and "his hand was going on the trigger." T.352. Dep. Duyssen then grabbed the barrel of the rifle, pulled it back around, and struggled with Mills for control of the gun. T.294, 351-60. Dep. Duyssen managed to push Mills down into a chair, but petitioner grabbed the shotgun from the table with his free hand, forcing Dep. Duyssen to grab that weapon as well. Dep. Duyssen related that he was then holding the barrels of both guns up against his chest. T.355, see also T.347-48, 350-56. Mills started yelling, and Dep. Duyssen shouted to Inv. Stone that "[it] wasn't going well, [and] to get in here." Inv. Stone and Dep. Weis rushed into the house. T.294-95, 356.

Inv. Stone was able to get petitioner's hand off the shotgun, and Dep. Weis, who had his own shotgun in his right hand, put his left hand over Dep. Duyssen's hands on the barrels of both guns, which were pointing above Dep. Weis's head. T.295-96, 410-11. Mills, who had the rifle in his hand, exclaimed that the "safe's off," T.358. Then a shot "rang off," striking the ceiling. T.295-96, 304-05, 353-60, 411. At that point, the barrels of both guns still were directly in front of Dep. Duyssen's face; he indicated that it would have taken only "a fraction of a twist or pull" for the rifle to "have blown [his] head off." T.359-60. The deputies were then able to subdue petitioner. T.297, 304-05, 353-60.*fn6

After taking Mills' back to his father's house to retrieve his medications, the deputies found "marijuana everywhere" in the house. T.363. The seized drugs totaled 1.27 lbs. T.362-63, 427-29, 443-44. Inv. Stone, Dep. Duyssen and Dep. Weis all testified, however, that they did not believe that petitioner had been intoxicated or under the influence of drugs during the incident.

T.333, 364, 413.

The first witness for the defense was Robert Chapman ("Chapman"), a neighbor and family friend. Chapman testified that Mills had called him on the day of the incident to tell him to get to Mills' father's house right away. T.471-72, 506. When Chapman arrived and realized what was going on, he asked the deputies to let him try to calm petitioner down, but this request was refused. T.472-73. Chapman testified that he had seen Mills in his father's garage the day before, looking "very depressed." They had talked about a mutual friend who had recently committed suicide. T.474-76, 479-82.

Petitioner's mother, Joanne Mills ("Mrs. Mills"), testified that she had seen petitioner the day before the incident looking "very irritable" and "real depressed." Mrs. Mills explained that her son would get "confused at times" when he was "really depressed." T.493-95. Mrs. Mills stated that Mills had first attempted suicide when he was about seven years old; after this incident, he had been taken to a psychiatric center, and had taken psychiatric medication for awhile. T.497-98. After another suicide attempt in 1999, Mills spent about ten days in the psychiatric center, and had been seeing a psychiatrist since then on an outpatient basis. T.499. Mrs. Mills stated that her husband had taken Mills to the psychiatrist about a week before the incident, because he had been threatening to commit suicide again. At that appointment, Mills was prescribed new medication. T.499-500.

Mills did not testify in his behalf at trial.

On November 17, 2004, the jury returned a verdict acquitting petitioner of the charges of attempted first degree murder and attempted first-degree assault counts involving his firing of the rifle near Deputies Duyssen and Weis, as well as the alternative lesser-included attempted second degree murder charge. However, the jury found him guilty of first degree reckless endangerment charge involving those deputies, and of the remaining counts of attempted first degree murder and attempted first degree assault for aiming the rifle at Inv. Stone. In addition, the jury convicted Mills of the counts of third degree criminal possession of a weapon and third degree criminal possession of marijuana. T.668-70.

At the sentencing hearing on December 16, 2004, defense counsel for Mills moved to set aside the verdict pursuant to C.P.L. § 330.30 on the attempted first-degree murder conviction and requested that the trial court impose the minimum sentence possible based on his client's psychiatric problems. 12/16/04 Tr. at 2, 4-6. Judge Noonan declined to entertain the motion. Id. at 6. Defense counsel renewed his motion for recusal, now alleging that the judge's familial relationship as cousins within the sixth degree of kinship to assistant district attorneys Robert and William Zickl created a basis for recusal.*fn7 Id. at 6-7. Judge Noonan denied the recusal motion. He then sentenced petitioner to an aggregate term of twenty years to life in prison, specifically sentencing him to (1) an indeterminate term of twenty years to life imprisonment for the attempted first degree murder charge; (2) a determinate fifteen-year prison term for the attempted first degree assault charge; (3) an indeterminate sentence of two and one-third to seven years for the reckless endangerment charge; (4) two concurrent indeterminate terms of two and one-third to seven years for the two third degree criminal possession of a weapon charges; and (5) an indeterminate term of one and one-third to four years for the third degree criminal possession of marijuana charge. The sentences for the reckless endangerment charge were served consecutively to the two concurrent terms for the weapons possession charges, which in turn were served consecutively to the drug charge. These four sentences were set to run concurrently with the first two prison terms (for the attempted murder and attempted assault charges). See 12/16/04 Tr. at 8-9.

C. Post-Conviction Proceedings

Before filing his direct appeal, Mills filed a pro se motion to vacate the judgment pursuant to C.P.L. § 440.10 on February 23, 2005. See Resp't Ex. A. Mills argued that his pre-trial and trial attorneys were ineffective on numerous grounds. Mills further alleged that the trial court lacked jurisdiction because the judge improperly refused to recuse himself due to his familial relationship with assistant district attorneys William and Robert Zickl; the trial judge was biased and "altered" pre-trial discovery and the bill of particulars; the indictment was defective; the jury was improperly instructed on intent, attempt, and overt acts; his statements made while in police custody should have been suppressed; the verdicts were inconsistent and repugnant; and his speedy trial right was violated. See id. at 4-17; see also Resp't Exs. B & C.

On June 2, 2005, Judge Noonan denied the C.P.L. § 440.10 motion without a hearing. See Resp't Ex. D. Judge Noonan rejected the recusal claim, reiterating that his business relationship with the prosecuting district attorney had been severed well before the time he was sworn as a judge. See id. at 2. Although the judge acknowledged that he was related within the fifth degree of kinship*fn8 to assistant district attorneys William and Robert Zickl, Section 100.3(E)(1)(e) of the Rules of the Chief Administrator only required disqualification when an attorney appearing before the court is related to the judge within the fourth degree. Id. at 2-3.*fn9 Judge Noonan also rejected any request for discretionary recusal based upon any "potential appearance of partiality or impropriety," because petitioner offered "[n]othing but unfounded castigation and speculation" to support his claim that the court was biased in favor of the District Attorney based upon those familial relationships. See Resp't Ex. D at 3. Judge Noonan rejected the claim that the trial court lacked jurisdiction and that trial counsel was ineffective in failing to call a psychiatric expert, noting that Mills had offered nothing but speculation that the potential witnesses would have testified to support his defense that he was unable to form intent. See id. at 3-4. Finally, Judge Noonan summarily rejected petitioner's claims that counsel was ineffective for failing to cross-examine the sheriff's investigator who had transported the seized evidence, as well as Mills' claims involving the sufficiency of the indictment, the propriety of the jury instructions, the admissibility of his statements to the police, trial counsel's overall effectiveness, the repugnancy of the verdict, and the violation of his speedy trial right because they were all issues that could be addressed on direct appeal. See id. at 4; N.Y. CRIM. PROC. LAW § 440.10(2)(c). On May 3, 2006, the Appellate Division denied petitioner's C.P.L. § 440 leave application. See Resp't Exs. E, F & G. His application for leave to appeal to the New York Court of Appeals was dismissed on May 26, 2006, because the order appealed from was unappealable as a matter of New York law. See Resp't Exs. H & I.; N.Y. CRIM. PROC. LAW § 450.90(1). Mills filed a second pro se C.P.L. § 440.10 motion on October 3, 2005, asserting a raft of new errors. See Resp't Ex. J. On October 20, 2005, the trial court denied the second C.P.L. § 440 motion without a hearing, see Resp't Ex. L, finding that most of petitioner's claims were amenable to direct review on appeal, see N.Y. CRIM. PROC. LAW § 440.10(2)(c). Judge Noonan further found that Mills' claims as to his state of psychosis, and the purported misconduct of the court and the prosecutor, were "entirely unsubstantiated on the instant record." See id. at 2. The Appellate Division denied leave to appeal. See Resp't Exs. M, N & O. The New York Court of Appeals dismissed Mills' application for leave to appeal because the Appellate Division order was not appealable. See Resp't Exs. P, Q & R; N.Y. CRIM. PROC. LAW § 450.90(1).

In the meantime, Mills was assigned new counsel, Del Atwell, Esq., to assist him in connection with his direct appeal. Attorney Atwell filed a brief in the Appellate Division arguing that (1) there was no finding on the record that Mills was mentally competent; (2) the evidence in support of the attempted murder counts was insufficient and against the weight of the evidence, and the trial court erred in denying the C.P.L. § 330.30 motion to set aside the verdict because petitioner's mental state and diminished capacity rendered him incapable of forming intent; and (3) the sentence was excessive. See Resp't Ex. S at 16-40 (Petitioner's Appellate Brief). Not satisfied with the brief appellate counsel had submitted, Mills subsequently filed a pro se supplemental brief alleging fourteen additional claims. See Resp't Mem. at 17-18; Resp't Ex. V at 6-45. The prosecutor filed responses to both briefs See Resp't Exs. U & W. Petitioner filed a reply (Resp't Ex. X) to the prosecutor's brief opposing his pro se brief.

On April 28, 2006, the Appellate Division unanimously affirmed petitioner's conviction in a memorandum, decision, and order. People v. Mills, 28 A.D.3d 1156 (App. Div. 4th Dept. 2006). Mills submitted a pro se letter in which he sought leave to appeal the Appellate Division's decision. See Resp't Ex. Z. The prosecution opposed the granting of leave. See Resp't Ex. BB. On November 30, 2006, the New York Court of Appeals denied petitioner's leave application. People v. Mills, 7 N.Y.3d 903 (N.Y. 2006).

Next, on January 14, 2006, petitioner filed a pro se application for a writ of error coram nobis. He demanded, among other things, that the Appellate Division strike the appellate brief filed by his assigned counsel, appoint new counsel, and revoke appellate counsel's law license. See Resp't Ex. DD at 1. Petitioner claimed that attorney Atwell, his assigned appellate counsel, was ineffective on numerous grounds, and alleged that he operated under a conflict of interest since he was appointed by a member of Judge Noonan's "political gang,"namely, Randolph Zickl, who was the Genesee County Assigned Counsel Administrator for the Fourth Department, and the brother of assistant district attorneys Robert and William Zickl. The prosecutor filed an opposing affirmation in response and petitioner filed a reply. See Resp't Exs. EE & FF, respectively. On February 22, 2006, the Appellate Division denied petitioner's coram nobis motion. See Resp't Ex. GG. Petitioner filed a pro se application on February 27, 2006, in which he sought leave to appeal to the New York Court of Appeals, and argued the same issues raised in his motion before the Appellate Division. See Resp't Ex. HH. On April 7, 2006, leave to appeal was denied. See Resp't Ex. II.

Mills filed a third pro se C.P.L. § 440.10 motion to vacate the judgment on May 30, 2006, raising yet another exhaustive list of claims which included allegations that his trial counsel erroneously failed to call the court-appointed psychiatrist to testify to petitioner's affirmative defense of extreme emotional disturbance and refused to move to dismiss the marijuana possession count. See Resp't Ex. JJ. The prosecution filed an affirmation in response. See Resp't Ex. KK. On August 28, 2006, Judge Noonan denied this C.P.L. § 440.10 motion without a hearing because all of petitioner's claims either were, or could have been, raised in his prior C.P.L. § 440.10 motions or in his direct appeal. See Resp't Ex. LL at 1-2 (citing N.Y. CRIM. PROC. LAW § 440.10(2)(a), (c)). Leave to appeal was opposed by the prosecution and ultimately denied by the Appellate Division on February 5, 2007. See Resp't Exs. MM, NN, & OO.

D. The Instant Habeas Petition

While Mills' third C.P.L. § 440.10 motion was pending, he commenced this habeas corpus proceeding. In his petition dated December 16, 2006, petitioner repeats his claims made in his pro se supplemental appellate brief (1) there was legally insufficient evidence to support attempted first degree murder and assault charges; (2) the indictment was defective; (3) the verdicts were inconsistent; (4) there was improper joinder of count nine; (5) there was excessive force used during his arrest; (6) the trial court erred in admitting evidence of the rifle without also admitting the lab report showing that it was nonfunctional when first received; (7) the Genesee County officials, Judge Noonan, the District Attorney, his trial attorneys Morabito and Lapine, and the sheriff's deputies and investigator all conspired to cover up the illegally-seized evidence and his mental health issues, in violation of 18 U.S.C. §§ 1503, 1505, 241, 242; (8) his Fourth Amendment rights were violated by the illegal search and seizure of marijuana from his home, the admission of his statements, the 911 tapes, and his confession without notice or a hearing, and by the trial court's erroneous ruling that he had no standing to challenge the seizure of the guns in his father's house; (9) Judge Noonan should have recused himself; (10) his Sixth Amendment right to a speedy trial was violated; (11) his pre-trial and trial attorneys were ineffective, with respect to attorney Lapine for (a) getting sick and making failed attempts to file a notice of intent to offer psychiatric evidence; (b) failing to move to suppress the marijuana evidence; (c) failing to challenge the improper joinder of count nine under C.P.L. § 200.20; and with respect to attorney Morabito for failing to (a) call a medical expert to present his intoxication and mental health defense; (b) object to the admission of his statements at trial; (c) object to the People's use of Inv. Stone as a "ballistics expert" or the Monroe County Public Safety Laboratory Report; (d) cross-examine Inv. Stone as to the operability of the weapons, and the other officers as to the chain of custody; (e) call his father as a witness or to question Robert Chapman as to the inoperability of the rifle; and for (f) conspiring with the judge and the District Attorney to conceal witnesses relating to petitioner's mental condition during the first few days he was incarcerated, weapon expert testimony, and evidence of his intoxication and mental health problems; (g) attempting to coerce petitioner to plead guilty; and (h) failing to request a missing witness charge for the weapons expert, the medical examiner, and his father. Finally, Mills claims that (12) the Appellate Division deprived him of his right to appeal by appointing appellate counsel who was ineffective. See Pet. at 12-36 (Dkt. #1).

Respondent filed an answer (Dkt. #32-1) and memorandum of law (Dkt. #32-43) in opposition to the petition. Respondent does not challenge the timeliness of the petition but` asserts that a number of Mills' claims are unexhausted and procedurally defaulted. See Respondent's Memorandum of Law ("Resp't Mem.") (Dkt. #32-43). Respondent also argues that all of Mills' claims are entirely without merit. Mills subsequently filed a reply brief (Dkt. #66).

Mills has sought various forms of interlocutory relief and judgment on the pleadings; all of these motions, save for his motion to seal certain documents, were denied as meritless. The matter is now fully briefed and ready for decision. For the reasons that follow, I recommend that the petition be dismissed ...


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