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Black v. Herbert

April 22, 2009

WINSTON BLACK, PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION and ORDER

Pro se petitioner Winston Black ("Black") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1998 conviction in New York State Supreme Court, Bronx County. Black pled guilty to one count of murder in the second degree, and the trial court sentenced him to an indeterminate term of fifteen years to life imprisonment.

Black now claims (1) that the trial court's denial of his motion to withdraw his guilty plea, without holding an evidentiary hearing, violated his due process rights ("first claim"); (2) that he received ineffective assistance of trial counsel ("second claim"); and (3) that he received ineffective assistance of appellate counsel ("third claim").

On August 19, 2003, Magistrate Judge Freeman issued a Report and Recommendation ("Report I") concluding that Black's first claim lacks merit. On August 20, 2007, Magistrate Judge Freeman issued a Supplemental Report and Recommendation ("Report II") (together with Report I, the "Reports") concluding that Black's second and third claims lack merit.

For the reasons stated below, the Court ADOPTS the Reports in their entirety, and DENIES Black's Petitions for a writ of habeas corpus.

I. Background

The Reports, familiarity with which is assumed, describe the underlying facts and procedural history of this case in significant detail. Here, the Court describes only the procedural history most relevant to this Order.

A. Original Petition

On August 6, 2002, Black filed his original habeas Petition ("Original Petition") with the Court. Black's Original Petition asserts only his first claim, that his due process rights were violated when the trial court denied his motion to withdraw his guilty plea without holding an evidentiary hearing.

The Court referred Black's Original Petition to Magistrate Judge Freeman. On August 19, 2003, Magistrate Judge Freeman issued Report I, recommending that the Court deny Black's Original Petition.

On January 5, 2004, after several extensions, Black filed timely objections ("Objections I") to Report I.

B. Stay of Proceedings

In a letter dated July 27, 2004, Black requested a stay of his Original Petition so that he could exhaust additional claims in state court. In an Order dated August 24, 2004, the Court granted ...


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