The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
In this action, petitioner Michael J. Hill, acting pro se, seeks relief pursuant to 28 U.S.C. § 2254, alleging that his conviction for Manslaughter in the First Degree, in County Court, Niagara County, State of New York, on February 8, 1990, upon a plea of guilty, was unconstitutionally obtained. Now before the Court is Petitioner's motion for reconsideration pursuant to FRCP 60(b) [#45]. For the reasons that follow, the application is denied.
The reader is presumed to be familiar with the facts of this case, which were detailed in both a Report and Recommendation [#39] by the Honorable Victor E. Bianchini, United States Magistrate Judge and a Decision and Order [#42] by this Court adopting the Report and Recommendation. For purposes of the instant Decision and Order, it is sufficient to review the procedural history of the case.
On September 25, 1989, the Niagara County Grand Jury indicted Petitioner and his cousin, Shawn Person ("Person") for Murder in the Second Degree in violation of New York Penal Law ("Penal Law") sections 125.25(1) and 20.00, Murder in the Second Degree in violation of Penal Law sections 125.25(3) and 20.00, Attempted Robbery in the First Degree in violation of Penal Law sections 160.15, 110.00 and 20.00, Criminal Possession of a Weapon in the Second Degree in violation of Penal Law sections 265.03 and 20.00, and Criminal Use of a Firearm in the First Degree in violation of Penal Law sections 265.09 and 20.00.
On February 5, 1990, Person accepted a plea bargain and pled guilty to one count of Manslaughter in the First Degree, in full satisfaction of the charges against him. As part of his plea colloquy, Person stated that he shot and killed the victim, Shawn Thompson ("Thompson"), because Thompson owed Petitioner a drug debt. Person stated that even though the debt was owed to Petitioner, and not him, he shot Thompson because Petitioner handed him the gun.
On February 8, 1990, Petitioner also accepted a plea offer, and pled guilty to Manslaughter in the First Degree, in full satisfaction of the charges against him. As part of his plea colloquy, Petitioner initially stated that he had given the gun to Person earlier in the day in connection with an unrelated situation, and that he had merely been present when Person shot Thompson. The trial court explained that merely being present was not a crime. The court also recounted the version of facts that Person had given during his plea colloquy. Petitioner then admitted that he was a drug dealer and that Person was his bodyguard. Petitioner further stated that Person was responsible for collecting money owed to Petitioner by drug clients because he was "ruthless." Petitioner stated that on the day of the shooting, he and Person located Thompson, who owed him $450.00, and that he handed a loaded shotgun to Person moments before the shooting. Petitioner stated that Person had told him that he was going to kill Thompson, and he gave the shotgun to Person "to see if he was going to be a man of his word."
On December 6, 2004, Petitioner filed the subject habeas petition. The grounds for the petition can be summarized as follows: 1) the plea was involuntary; 2) the conviction was the result of a coerced confession; 3) the prosecution failed to disclose evidence favorable to the defense; 4) Petitioner was not permitted to testify before the Grand Jury; 5) a judge who ruled on one of Petitioner's state collateral attacks had a conflict of interest; and 6) ineffective assistance of counsel. (See, Report and Recommendation [#39] at pp. 3-4). Petitioner alleged that his plea was involuntary because the trial court improperly influenced him into admitting his guilt by telling him Persons's version of the shooting. As for his claim that favorable evidence was withheld, Petitioner claimed that the prosecution failed to disclose a statement by Person's brother, Myron Johns ("Johns"), that would have shown that the shooting was accidental. However, there was no indication that Johns witnessed the shooting. Instead, Johns' involvement appears to have been limited to assisting police in locating the shotgun, based on information that Person related to him after the shooting. As for his claim of ineffective assistance of counsel, Petitioner alleged, for example, that prior to his plea, his attorney "did not inform Petitioner how much time he would actually get beyond possibilities." (Docket No. [#12-2] at 10; see also, [#4] at 24: "Whether outright or mildly, counsel suggested that since it was defendant's first felony he would not be sentence[d] to the max of 8 1/3 to 25 years, and instead would more than likely receive 3 to 9.").
Judge Bianchini, in his Report and Recommendation, concluded that all of Petitioner's grounds lacked merit. For example, Judge Bianchini found that Petitioner's plea was knowing, voluntary, and intelligent, as not the product of threats or coercion. In finding that there was no Brady violation with regard to information concerning Johns, Judge Bianchini noted, in relevant part, that "Johns' name appears in a police investigative report that was turned over [to] the defense prior to plea." (Report and Recommendation at pp. 14-15). Judge Bianchini also found that the allegedly-withheld information concerning Johns would not have been material in any event. (Id. at 16).
On July 30, 2008, Petitioner filed objections (Docket No. [#40]) to the Report and Recommendation, complaining that Judge Bianchini's analysis of the Brady claim was factually mistaken, insofar as it stated that the police report concerning Johns had been turned over to the defense. In that regard, Petitioner stated that he obtained a copy of the report through a Freedom of Information Act ("FOIA") request in 1994. He further stated that the police report "shows that Shawn Person did not willfully pull the trigger, and that we never planned to kill no one." (Objections [#40] at p. 2). On August 6, 2008, Petitioner filed additional objections. (Docket No. [#41]), in which he essentially reiterated the same arguments that were contained in his habeas petition.
On February 25, 2009, the Court issued a Decision and Order [#42], addressing the points to which Petitioner objected, and adopting the Report and Recommendation and dismissing the action. (Decision and Order [#42]).
On April 15, 2009, Petitioner filed a notice of appeal [#44] to the United States Court of Appeals for the Second Circuit.
On May 4, 2009, while the appeal was pending, Petitioner filed the subject motion for reconsideration pursuant to FRCP 60(b). Petitioner states that reconsideration is warranted because the Court "overlooked facts on its record and factually misconstrued the law in its ruling." (Affirmation in Support [#45]). Specifically, Petitioner raised essentially the same claims as before, namely: 1) the plea was involuntary; 2) Brady violation; 3) conflict of interest by Judge; and 4) ineffective assistance of counsel. Additionally, with regard to the voluntariness of the plea, Petitioner now contends that his plea was defective because the trial court did not place him under oath prior to his plea colloquy and did not advise him that he was giving up certain rights by pleading guilty.
On July 27, 2009, the United States Court of Appeals for the Second Circuit dismissed the appeal as ...