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Irvine v. Murray

October 28, 2009

ROBERT M. IRVINE, JR., PETITIONER,
v.
TIMOTHY MURRAY, SUPERINTENDENT OF WYOMING CORRECTIONAL FACILITY RESPONDENT.



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

ORDER

I. Introduction

Petitioner Robert M. Irvine, Jr. ("petitioner") filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Wyoming County Court of Rape in the First Degree (New York Penal Law § 130.35[1]). Following a guilty plea before Judge Michael Griffith, petitioner was sentenced to a determinate prison term of twelve years, plus five years of post-release supervision.

II. Factual and Procedural History

On November 19, 1999, petitioner was charged with four counts each of Rape in the First Degree and Incest, three counts each of Rape in the Third Degree and Sexual Abuse in the First Degree, and one count of Endangering the Welfare of a Child. The charges arose out of accusations by his two minor daughters that he had raped them on several occasions. Petitioner pleaded guilty to one count of Rape in the First Degree by forcible compulsion in satisfaction of all charges pending against him in Wyoming County, and under the premise that neither the District Attorney nor the U.S. Attorney General would prosecute him for an incident with one of his daughters that allegedly occurred in Pennsylvania on August 23, 1999.*fn1 Petitioner waived the right to appeal his conviction as part of his plea agreement. P. 2-5, 7-8.*fn2

The court informed the petitioner that by pleading guilty, he relinquished certain constitutional rights, and told petitioner that the court wanted to ensure that the petitioner was pleading guilty "of [his] own free will and voluntarily." P. 6-7. The court further informed petitioner that he was required to register as a sex offender pursuant to the Sex Offender Registration Act, and that DNA samples would be taken from him. The court and the prosecutor then accepted petitioner's guilty plea. P. 8-10.

Prior to sentencing, petitioner was interviewed for a presentence report and sex offender evaluation and risk assessment. See Respondent's Exhibit ("Ex.") B. Petitioner and his attorney appeared at the sentencing, wherein the victim addressed the court and the petitioner. S. 4-9. Defense counsel urged the court to consider that, although petitioner had not expressed remorse for his actions, he "wasn't all bad." In support of this contention, counsel pointed out that petitioner had been a victim of sexual abuse when he was a child, that he had been cooperative throughout the investigation, and that he was seeking treatment. S. 9-10.

The court then sentenced petitioner to a determinate term of twelve years incarceration plus five years of post-release supervision. Petitioner signed a waiver of his right to appeal his conviction. S. 10-12.

On December 8, 2000, petitioner moved to vacate his conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, which was denied by the Wyoming County Court.*fn3 He did not seek permission to appeal that decision. See Ex. C, D.

On direct appeal, petitioner's appellate counsel filed a brief claiming that the trial court erroneously failed to inquire further as to whether petitioner's guilty plea was knowing and voluntary. Ex. E. The Appellate Division, Fourth Department, unanimously affirmed petitioner's conviction. People v. Irvine, 303 A.D.2d 1013 (4th Dept.); lv. denied 100 N.Y.2d 539 (2003); see Ex. G.

A second 440.10 motion was filed on November 25, 3003, alleging that 1) petitioner's trial counsel was ineffective; 2) prosecutorial misconduct; and 3) that the victim had recanted her allegations against the petitioner. Ex. J. The county court denied that motion and leave to appeal the denial of the his second C.P.L. § 440.10 motion was denied by the Appellate Division on August 6, 2004. See Ex. L.

Petitioner then filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging four grounds for relief. See Petition ("Pet.") ¶ 22. (Dkt. #1). For the reasons set forth below, the petition is denied and this action is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1),(2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing ...


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