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Smalls v. Smith

September 10, 2009


The opinion of the court was delivered by: Seibel, J.


Petitioner Benjamin Smalls, a state prisoner, moves pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure for an Order vacating the Decision and Order of this Court dated November 28, 2006 (the "Underlying Order") (Doc. 15) and the Judgment entered by the Clerk of Court thereon on November 30, 2006 (the "Judgment") (Doc. 16), denying Petitioner's amended petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 (the "Petition"). The Petition sought vacatur of his judgment of conviction on December 21, 1999, in Westchester County Court, following a jury trial, for kidnapping and related offenses.


Familiarity with the proceedings is assumed. The Court will summarize the procedural posture as it relates to the present motion.

Petitioner was charged under Westchester County Indictment Number 98-01448-01 with, among other things, kidnapping in the first degree, two counts of assault in the second degree, burglary in the first degree, criminal use of a firearm in the first degree, three counts of criminal possession of a weapon in the third degree and menacing in the second degree, and released upon posting bail. A jury trial was commenced before the County Court, Westchester County (Zambelli, J.), who expressly warned Petitioner of the consequences of his failure to appear as required under People v. Parker, 440 N.E.2d 1313 (N.Y. 1982). Notwithstanding this advice, Petitioner absconded when the jury reported that it had reached a verdict on October 13, 1999, leading Judge Zambelli to issue a bench warrant and forfeit the bail. On October 14, 1999, the jury returned its verdict finding Petitioner guilty of the above-stated crimes.

Petitioner did not appear for the scheduled sentencing on December 21, 1999, and was sentenced in absentia to twenty-five years to life for the kidnapping count, with consecutive terms of seven years for one assault count and one criminal possession of a weapon count, and concurrent terms on the remaining counts. Steven Levine, Esq., one of the two attorneys who had represented Petitioner, appeared at the sentencing hearing on Petitioner's behalf.*fn1

Petitioner appealed by notice served by his attorney on January 14, 2000 (the "Direct Appeal"), and on March 3, 2000, the prosecution moved to dismiss the Direct Appeal based on the fugitive disentitlement doctrine. On March 17, 2000, the Appellate Division, Second Department (the "Appellate Division") granted the motion and dismissed the Direct Appeal on the basis that Petitioner was "not amenable to the jurisdiction of [the] court." (Resp't's Opp'n to Pet.*fn2 Ex. 4.) Petitioner was then located and arrested pursuant to the bench warrant on May 30, 2000, at which time he was brought into County Court, without counsel, for execution of the previously imposed sentence.

On June 29, 2000, Petitioner filed a petition for a writ of habeas corpus under New York law (the "State Habeas Petition"), arguing that he was deprived of effective assistance of his retained counsel at his sentencing hearing because Mr. Levine was not as familiar with the trial proceedings as his other counsel who had represented him at the trial. On January 16, 2001, the Supreme Court, Westchester County (Lange, J.), denied the State Habeas Petition on the grounds that the state writ was not the proper vehicle to advance those claims. Petitioner appealed, adding the claim that the Sentence and Commitment Order signed by the trial court at sentencing was illegally amended at a "re-sentencing hearing" to correct a clerical error. On March 18, 2002, the Appellate Division affirmed the denial of the State Habeas Petition on the grounds that "it was not the appropriate vehicle for asserting the claims raised in the [P]etition." People ex rel. Smalls v. DeCiuceis, 739 N.Y.S.2d 581 (App. Div. 2002). On June 6, 2002, the New York Court of Appeals denied leave to appeal from that ruling. See People ex rel. Smalls v. DeCiuceis, 773 N.E.2d 1017 (N.Y. 2002).

Petitioner filed a motion for post-conviction relief under Section 440.10 of the New York Criminal Procedure Law ("C.P.L.") on April 15, 2002, contending that no state court had jurisdiction over him because the local court accusatory instrument and the indictment were defective and that he should not have been sentenced with substitute counsel while he remained a fugitive. On July 31, 2002, the Westchester County Court (Zambelli, J.) denied the motion on the grounds that: (1) a § 440.10 motion "cannot be utilized as a substitute for direct appeal;" (2) Petitioner's contention that the local criminal court lacked jurisdiction due to a perceived failure to file the felony complaint with the Westchester County Clerk was without merit; (3) Petitioner's claim that the trial court did not have jurisdiction because there was no signed indictment was without merit, as "independent examination of the indictment . . . indicate[d] that the indictment was signed by the foreperson of the grand jury," thus making Petitioner's argument "academic"; and (4) the mere fact that Petitioner was represented by different attorneys at different times of the case did not render their assistance ineffective. (Resp't's Opp'n to Pet. Ex. 25.) On October 23, 2002, the Appellate Division denied leave to appeal the County Court decision. (Id. Ex. 30.) By letter dated November 6, 2002, Petitioner sought leave to appeal to the New York Court of Appeals. (Id. Ex. 31.) On November 22, 2002, the New York Court of Appeals (Rosenblatt, J.) denied that request on the grounds that the order from which Petitioner sought to appeal was not appealable under C.P.L. § 450.90(1). (Id. Ex. 32.) On December 2, 2002, Petitioner moved before the Appellate Division for reargument of the denial of leave. (Id. Ex. 33.) That application was denied on February 26, 2003. (Id. Ex. 36.)

On June 2, 2003, Petitioner's counsel filed a motion for leave to renew his Section 440.10 motion pursuant to Section 2221(e) of the New York Civil Practice Law and Rules ("C.P.L.R."). (Id. Ex. 37.) On August 25, 2003, the Westchester County Court (Zambelli, J.) denied that motion on the grounds that (1) Petitioner's motion to renew "raise[d] the same claims as the original motions as well as new claims which could have been raised but were not," and thus it was not "based on new facts not offered on the prior motion that would change the prior determination," as required by C.P.L.R. § 2221(e)(2); and (2) "a C.P.L. 440.10 motion cannot be utilized as a substitute for direct appeal." (Id. Ex. 39.) Petitioner then filed a notice of appeal from the denial of his motion to renew, which was rejected by the Appellate Division on the grounds that County Court's orders can only be appealed by permission, not by right. Petitioner then moved to reinstate that appeal, which the Appellate Division treated as an application for discretionary appeal and denied on January 23, 2004. (Id. Ex. 42.) On February 20, 2004, Petitioner's counsel mailed another motion to reinstate that appeal, which the Appellate Division deemed a motion for reargument of the denial of leave, and denied on April 27, 2004. (Id. Ex. 45.)

On November 12, 2004, Petitioner moved in the Appellate Division to vacate its dismissal of the Direct Appeal and to reinstate the Direct Appeal. The Appellate Division denied that motion on November 23, 2004, and the Court of Appeals denied leave to appeal therefrom on March 10, 2005. People v. Smalls, 829 N.E.2d 683 (N.Y. 2005).

On July 21, 2006, Petitioner delivered to prison authorities the instant Petition, seeking relief on the grounds that there was "no indictment of grand jury" and that he was deprived effective assistance of counsel. Respondents filed their papers in opposition on October 6, 2006, arguing that (1) the Petition was not timely filed even if Petitioner were accorded tolling for all of his various applications -- most of which were not properly filed -- filed between when his State conviction became final and when he filed the Petition, and (2) the grounds asserted for relief were barred by New York's procedural barriers under the fugitive disentitlement doctrine, the application of which was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

In the Underlying Order, the late Judge Charles L. Brieant, to whom this action was previously assigned, denied the Petition on the grounds that (1) it was time-barred by the one year statute of limitations on the filing of federal habeas petitions under the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA Limitations Period"), 28 U.S.C. § 2244(d)(1); and (2) even if timely, all the claims would be procedurally barred under New York state law by the fugitive disentitlement doctrine.*fn3 On November 21, 2007, the United States Court of Appeals for the Second Circuit denied Petitioner's motion for a certificate of appealability.

On October 21, 2008, Petitioner filed the present motion, contending that the Underlying Order should be vacated under Rule 60(b) on the grounds that: (1) the State trial court lacked subject matter jurisdiction because "[t]he [a]ccusatory [i]nstrument in the Court files does not contain a signature of a Grand Juror that would [a]uthorize an [i]ndictment" (Smalls Aff. 11); (2) the Court failed to toll the AEDPA Limitations Period during the pendency of Petitioner's State Habeas Petition (id. 12-14); (3) Petitioner was deprived of his counsel of choice at sentencing (id. 15-17); and (4) the Appellate Division's dismissal of Petitioner's direct appeal ...

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