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Banner v. Superintendent

July 29, 2009

WINSTON BANNER, PETITIONER,
v.
SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Winston Banner has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered April 6, 2000, in New York State, Monroe County, convicting him of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree.

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

On July 8, 1999, in the City of Rochester, Petitioner and Kevin Pierre ("the co-defendant") fired handguns at Curtis Crawley ("the victim"), killing him. The autopsy showed that the victim was shot in the back and that the fatal bullet came from the co-defendant's gun. Plea Minutes [P.M.] (Jan. 6, 2000) 15-16.

On January 6, 2000, Petitioner offered a plea of guilty to the indictment charging him with Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. P.M. (Jan. 6, 2000) 19.

As part of the plea agreement, the court was to impose a sentence of fifteen years to life, concurrent with a Federal sentence that was about to be imposed and was expected to be about twenty years.*fn1 P.M. (Jan. 6, 2000) 2-9. This sentence was less time than what the People would be seeking if the case were to proceed to trial. P.M. (Jan. 6, 2000) 8. At the time of the state court plea, the trial court indicated to Petitioner that if something unanticipated occurred in Federal court which vitiated the plea agreement and forced the state case to trial, Petitioner's statements at the plea colloquy could be used against him. P.M. (Jan. 6, 2000) 11. Petitioner agreed to this condition and gave up his right to remain silent in exchange for a shorter sentence and that his state sentence would run concurrently with the Federal sentence when it was imposed. P.M. (Jan. 6, 2000) 2-9, 11. The state trial court indicated it would defer accepting the proffered guilty plea until the Federal case was resolved. P.M. (Jan. 6, 2000) 19.

During the plea colloquy, defense counsel noted, for the record, that he had advised Petitioner that his excuse that the victim had shot at him a week earlier would not constitute a viable claim of self-defense if the case went to trial. P.M. (Jan. 6, 2000) 16-17.

Over the course of the next three months, Petitioner made multiple appearances in state court and, on each occasion, his state sentencing was postponed because the Federal charges still had not been resolved.*fn2 P.M. (Feb. 14, 2000) 2. On February 14, 2000, the trial judge --- no longer willing to await the outcome of the Federal charges --- gave Petitioner the choice between withdrawing his plea and going to trial or entering the plea with the imposition of the agreed-upon fifteen years to life sentence but with no guarantee that the Federal sentence would be imposed concurrently. P.M. (Feb. 14, 2000) 3-4. Appellant elected to enter the guilty plea and the agreed-upon sentence was imposed. P.M. (April 6, 2000) 9.

Petitioner was never prosecuted in the Federal proceeding. Dock. 99-CR-6089; Petition [Pet.], Attachment [Att.] 10.

The Appellate Division, Fourth Department, unanimously affirmed Petitioner's conviction. People v. Banner, 291 A.D.2d 858 (4th Dept 2002). The New York Court of Appeals denied leave to appeal. People v. Banner, 98 N.Y.2d 648 (2002). Petitioner filed no motions for collateral relief in state court. This habeas petition followed.

III. ...


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