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Walter v. Superintendent

September 4, 2008

LAWRENCE J. WALTER, PETITIONER,
v.
SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

MEMORANDUM DECISION AND ORDER*fn1

I. THE HABEAS PETITION

On January 31, 2006, Petitioner Lawrence J. Walter, pro se, filed a petition under 28 U.S.C. § 2254for a writ of habeas corpus. He challenges the judgment entered on September 25, 2001, in Oneida County Court convicting him, upon his plea of guilty, of one count of sodomy in the first degree (N.Y. Penal Law § 130.50(4)), and sentencing him to a determinate sentence of 12 years of imprisonment followed by five years of post-release supervision. (Dkt. No. 1.) Petitioner's conviction was affirmed by the Appellate Division, Fourth Department, and leave to appeal to the Court of Appeals was denied. People v. Walter, 773 N.Y.S.2d 677 (N.Y. App. Div. 2004); reargument denied 778 N.Y.S.2d 737 (Jun. 14, 2004); leave denied 3 N.Y.3d 650 (2004); on reconsideration 3 N.Y.3d 712 (2004); cert. denied Walter v. New York, 543 U.S. 1165 (2005).

II. THE CLAIMS

Petitioner seeks habeas relief on the following grounds*fn2

1. The indictment, in particular the count to which Petitioner pleaded guilty, was defective. (Dkt. No. 1-2 at 10-11, 35, 37-40, 42, 44-45, 47-48.)

2. Petitioner's guilty plea was involuntary and unlawfully induced. (Dkt. No. 1 at 5; Dkt. No. 1-2 at 31-32, 33-34, 40.)

3. Petitioner's conviction was based on evidence obtained through an unlawful search and seizure. (Dkt. No. 1 at 5; Dkt. No. 1-2 at 13-15.)

4. Petitioner's arrest was unlawful. (Dkt. No. 1 at 5; Dkt. No. 1-2 at 15-16, 17-18.)

5. The felony complaint was based on unreliable evidence. (Dkt. No. 1-2 at 18, 22, 34-35.)

6. Petitioner's preliminary hearing was cancelled without good cause, violating his right to due process. (Dkt. No. 1-2 at 2.)

7. The trial court did not conduct a proper probable cause hearing or bail inquiry. (Dkt. No. 1-2 at 19-20.)

8. The evidence presented to the grand jury was false and inflammatory. (Dkt. No. 1-2 at 14, 17, 24-28, 32-33, 35.)

9. Petitioner was denied effective assistance of trial counsel. (Dkt. No. 1 at 6; Dkt. No. 1-2 at 36-37, 41-42, 43-44, 47-48, 49-50.)

10. The state appellate court illegally shifted the burden of proof to Petitioner to prove the date on which the crime occurred. (Dkt. No. 1-2 at 39, 46-47.)

III. THE RELEVANT FACTUAL BACKGROUND

A. The New York Sodomy Statute, the Charges and the Guilty Plea

In New York prior to February 1, 2001, sodomy in the first degree was defined as deviate sexual intercourse with a person "who is less than eleven years old." N.Y. Penal Law § 130.50 (McKinney 2000). After February 1, 2001, sodomy in the first degree was defined, in part, as deviate sexual intercourse between a person who is "eighteen years old or more" and a person "who is less than thirteen years old*fn3 ." N.Y. Penal Law § 130.50 (McKinney 2001). This amendment increased the penalty for sodomy involving 11 and 12 year old victims by reclassifying the crime from a second degree, Class D violent felony, to a first degree, Class B violent felony. Under New York law, Class D violent felonies carry a maximum sentence of seven years, while Class B violent felonies carry a maximum sentence of 25 years. N.Y. Penal Law § 70.02(3) (McKinney 2000).

On July 3, 2001, the Oneida County Grand Jury issued a 35-count indictment against Petitioner and two other men. Counts 27-35 of the indictment alleged that "on or about the winter/spring of 2001," Petitioner engaged in various sexual acts with four different children, ages 10-15. Counts 27, 28 and 32 alleged that Petitioner committed sodomy in the first degree with two different victims, ages 12 and 10. Count 27, specifically, alleged that Petitioner committed first degree sodomy "on or about the winter/spring of 2001" by engaging "in deviate sexual intercourse with another person who is less than thirteen years old, to wit: a male born on September 9, 1988." (Ex. L at D-1.) In a second indictment, Petitioner was charged with 15 counts of possessing a sexual performance by a child (Penal Law § 263.16).

Petitioner appeared in Oneida County Court on August 14, 2001. The judge placed on the record a plea offer under which Petitioner would plead guilty to Count 27 of the first indictment, sodomy in the first degree involving a 12-year-old victim, in exchange for a determinate sentence of 12 years of imprisonment followed by five years of post-release supervision, with a mandatory surcharge and crime victim assistance fee. (Transcript of Plea Hearing ("PH") at 4:13-23.) Petitioner asked the judge to explain the mandatory surcharge, which the judge did. (PH. at 5:6-20.) The judge then began the plea colloquy:

THE COURT: I've told you what the sentence is going to be. Has anyone else promised you anything in order to get you to plead guilty?

PETITIONER: No, sir.

THE COURT: Did anyone threaten you in any way in order to get you to plead guilty?

PETITIONER: Well, not really threatened me, no, sir, just told me this is what I have, I have no other option.

THE COURT: Okay. So you haven't been threatened. I'm sure what they've told you is here's your exposure if you are convicted.

PETITIONER: Right.

THE COURT: And, obviously, the exposure, the top counts of the initial indictment are class B felonies, there's a 25-year exposure on each one of those. I'm sure that's been explained to you, right?

PETITIONER: Yes.

THE COURT: On these new charges ... fifteen counts, they're all class E felonies, and there's a four-year exposure on each one of those, and all of them can be consecutive, which means back to back. You understand all that?

PETITIONER: Yes.

THE COURT: That has been explained to you?

PETITIONER: Yes.

THE COURT: Is that what you mean by -

PETITIONER: Well, yes, that's what I mean by forced. No one's threatened me or done anything of that nature.

THE COURT: So [defense counsel] has just said here's your exposure, here's what the offer is?

PETITIONER: Yes.

THE COURT: And given you his best advice?

PETITIONER: Yes. (PH. at 7:22-9:8.) The court advised Petitioner that by pleading guilty he would waive his right to a jury trial, to confront the witnesses against him, to present evidence, and to appeal his conviction. (PH. at 9:12-10:15, 10:24-11:22.) Petitioner stated that he ...


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