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Curry v. Lempke

June 24, 2008

BENNY CURRY, PETITIONER,
v.
JOHN LEMPKE,*FN1 SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner Benny Curry, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Curry is currently in the custody of the New York State Department of Correctional Services incarcerated at the Five Points Correctional Center. Curry was convicted in the Onondaga County Court following pleas of guilty to six counts of Burglary in the Third Degree (N.Y. Pen. Law § 140.20).

On December 12, 2001, Curry entered into a negotiated plea agreement wherein he agreed to plead guilty to two counts of Burglary in the Third Degree in exchange for concurrent sentences of three to six years in state prison. On December 21, 2001, Curry pled guilty in accordance with that agreement and remained out on bail pending sentencing. On December 27, 2001, while out on bail, Curry committed four more commercial burglaries in the City of Syracuse. He was arrested and charged with four new counts of Burglary in the Third Degree. As a result of these new charges, the district attorney, defense counsel and Curry entered into further negotiations and a new plea agreement was created and placed on the record before the Onondaga County Court on February 15, 2002. Under the new agreement, Curry agreed to plead guilty to the four new charges of Burglary in the Third Degree. In exchange, Curry would be sentenced to three and one-half to seven years in prison on each of the two original counts of Burglary in the Third Degree to run consecutively with each other and be sentenced to three and one-half to seven years on each of the four new Burglary in the Third Degree charges, to run concurrently with each other, and concurrently with the consecutive sentences of three and one-half to seven years imposed for the first two burglaries, for a total of seven to 14 years in state prison.

On February 15, 2002, Curry pled guilty to two of the four new counts of Burglary in the Third Degree in accordance with the new agreement, and the matter was adjourned for the preparation of the information on the two remaining new burglaries and then for sentencing under the agreed upon disposition. On March 8, 2002, Curry pled guilty to the two remaining new counts of Burglary in the Third Degree. Curry was then sentenced to two consecutive indeterminate terms of imprisonment of three and one-half to seven years as agreed upon for a total of seven to 14 years in state prison and four terms of three and one-half to seven years each, to be served concurrently with each other and the aggregate seven to 14 years on the initial two burglaries. There was no objection to the sentence, nor did Curry request to withdraw his pleas.

I. PRIOR PROCEEDINGS

Curry timely appealed his conviction to the Appellate Division, Third Department, which summarily affirmed his conviction without reasoned decision on July 9, 2004, and leave to appeal was denied by the New York Court of Appeals on September 16, 2004. People v. Curry, 779 N.Y.S.2d 798 (N.Y.A.D.) (Table), lv. denied, 818 N.E.2d 674 (N.Y. 2004) (Table). Curry's conviction became final 90 days later, December 15, 2004, when his time to seek a writ of certiorari in the Supreme Court expired. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).

First State Post-Conviction Motion. On March 11, 2005, Curry filed for a writ of error coram nobis with the Appellate Division, arguing that (1) the waiver of his right to appeal should not be enforced, (2) his sentence should not have been increased, and (3) he should be allowed to withdraw his amended plea agreement because it violated due process. The Appellate Division denied his motion on June 10, 2005, without substantive comment, and the New York Court of Appeals denied leave on August 12, 2005. People v. Curry, 796 N.Y.S.2d 568 (N.Y.A.D.) (Table), lv. denied, 836 N.E.2d 1157 (Table).

First Federal Habeas Petition. On March 30, 2005, Curry filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the Western District of New York, which petition was transferred to this district and dismissed as unexhausted, without prejudice, on June 29, 2005.*fn2

Second and Third State Post-Conviction Motion. On June 29, 2005, Curry filed a motion under N.Y. Criminal Procedure Law § 440.10 in the Onondaga County Court, in which he contended his sentence was harsh and excessive. The Onondaga County Court denied his motion on September 20, 2005, holding that the motion should have been brought under N.Y. Criminal Procedure Law § 440.20. On October 5, 2005, Curry filed a motion under § 440.20 in the Onondaga County Court, which denied his motion on October 12, 2005. The Appellate Division denied leave to appeal both the § 440.10 and 440.20 motion on May 4, 2006.

Fourth State Post-Conviction Motion. On November 23, 2005, Curry filed his second motion under § 440.10 in the Onondaga County Court, in which he raised his ineffective assistance of counsel claim. The Onondaga County Court denied the motion on March 2, 2006, on the basis that it should have been raised in his first § 440.10 motion, citing N.Y. Criminal Procedure Law § 440(10)(3) and, alternatively, on the merits. Leave to appeal was denied by the Appellate Division on July 31, 2006, and the New York Court of Appeals on October 30, 2006.

Petition filed his petition in this Court on April 28, 2007.

At Docket No. 14 Curry requested he be permitted to voluntarily withdraw his petition, which the Court treated as a voluntary motion to dismiss without prejudice under Federal Rule of Civil Procedure 41(a)(2). As grounds for voluntary dismissal, Curry simply stated that the "whole process" is unfair to him, that his attorney was incompetent, and that court officials violated his due process rights. At Docket No. 15, Respondent opposed Curry's request. At Docket No. 18 this Court denied Curry's motion to dismiss. In his traverse Curry again requests that this Court dismiss his petition without prejudice. The Order at Docket No. 18 constitutes the law of the case that this Court will not reconsider absent an intervening change of law, new evidence is presented, a clear error must be corrected, or manifest injustice would otherwise ensue. See Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). Curry provides no basis for this Court to reconsider its prior order. Accordingly, the Court declines to dismiss the petition without prejudice.

II. STANDARD OF REVIEW

Because Curry filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state courts was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000), which in this case was that of the Onondaga County Court on his November 23, 2005, ยง ...


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