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Mickens v. Brown

November 4, 2009

ROBERT MICKENS, PETITIONER,
v.
SUPERINTENDENT, WILLIAM BROWN, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & DECISION

Petitioner Robert Mickens seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Mickens has also moved to compel discovery and for an evidentiary hearing. For the foregoing reasons, Mr. Mickens' petition is DENIED and his other pending motions are DENIED AS MOOT.

BACKGROUND

On November 28, 2000, at approximately 9:20 p.m., a burglar broke into 10 Abruse Street in Bay Shore, New York, attempting to steal a purse or money. Ten minutes later, a burglar broke into a home two blocks south, at 18 Antarctic Street, where the burglar successfully stole a purse. Two hours later, the police arrested Mr. Mickens in connection with these crimes.

Mr. Mickens claims that, following his arrest, the police beat him several times and sprayed mace in his eyes. Mr. Mickens further claims that a police officer offered him a cigarette, and then planted Mr. Mickens' smoked cigarette at the crime scene.

Indictment I-2624-2000 ("2624 Indictment") soon issued, charging Mr. Mickens with Burglary in the First Degree and Robbery in the First Degree in connection with the crimes committed at 18 Antarctic Street. This indictment also charged Mr. Mickens with Resisting Arrest. The 2624 Indictment did not, however, cover the burglary committed at 10 Abruse Street.

Between December 5, 2000 and July 24, 2001, the case was adjourned repeatedly upon Mr. Mickens' request. (Resp. Answer at ¶ 4). On July 24, 2001, Indictment I-1611-2001 ("1611 Indictment") issued. The 1611 Indictment charged Mr. Mickens with the same offenses listed in the 2624 Indictment and, in addition, added a charge of Burglary in the Second Degree in connection with the 10 Ambrose Street break-in. Respondent claims that the 1611 Indictment validly superceded the 2624 Indictment. Mr. Mickens originally concurred with Respondent's theory, contending that the 1611 Indictment "superceded" the 2624 Indictment, and that the Court verbally granted the Government's motion to consolidate the two indictments (which Mr. Mickens contended was procedurally improper). (Petition at ¶¶ 3-5). But, during the course of pursuing his habeas petition, Mr. Mickens changed theories. He now contends that the 2624 Indictment was dismissed in his favor. Thus, Mr. Mickens argues, the 1611 Indictment is defective on its face, as it purported to charge him with offenses that he had already prevailed upon.

On October 23, 2001, Mr. Mickens pled guilty to two counts of Attempted Burglary in the Second Degree in satisfaction of the 1611 Indictment. Before accepting Mr. Mickens' plea, the Court inquired into whether Mr. Mickens was pleading guilty of his "own free will." (Plea Tr. 6).*fn1 Under oath, Mr. Mickens affirmed that he was. The Court then inquired into whether Mr. Mickens' plea was knowing and intelligent. Specifically, the Court asked him if he understood that, by pleading guilty, he was waiving his rights to: (1) go to trial; (2) confront the witnesses against him; (3) call witnesses on his own behalf; (4) have his fate decided by a judge or jury; (5) not incriminate himself; and (6) appeal his conviction. (Plea. Tr. 7-12). Mr. Mickens affirmed that he understood he was waiving these rights. (Plea Tr. 7-12). The Court also informed him that, by pleading guilty, he would be sentenced to a term of between 14 years and life, and that his plea would have the same effect as a conviction after trial. (Plea Tr. 8, 11, 12). Again, Mr. Mickens affirmed that he understood these consequences of his plea. And the Court further inquired to make sure Mr. Mickens understood that, except for his sentence and the Government's promise not to indict him for a third burglary, he was not promised anything in exchange for his plea. (Plea Tr. 11). In response, Mr. Mickens affirmed that he had received no other promises. (Plea Tr. 11). Only after this lengthy colloquy did Mr. Mickens allocute to the crimes charged in the 1611 Indictment.

On November 19, 2001, the Court sentenced Mr. Mickens, as a persistent felony offender, to an indeterminate term of 14 years to life in connection with his guilty plea.

On February 2002, Mr. Mickens moved, pro se, to vacate his sentence and the judgment against him, alleging that the Government improperly obtained his conviction. On March 26, 2002, the County Court of Suffolk County denied Mr. Mickens' motion.

On March 14, 2002, while his motion to vacate was still pending, Mr. Mickens filed an untimely notice of appeal. On May 14, 2002, the New York Appellate Division, Second Department, denied this appeal.

On January 20, 2005, Mr. Mickens again moved to vacate the judgment and set aside his sentence, claiming that his attorney erred in advising him to plead guilty, and that the superceding indictment violated statutory speedy trial limitations. On August 5, 2005, the County Court of Suffolk County denied that motion. Mr. Mickens filed for leave to appeal before the New York Appellate Division, Second Department. On October 24, 2005, that motion was denied. Mr. Mickens then requested leave to appeal to the New York Court of Appeals. On December 6, 2005, that request was dismissed.

On December 22, 2005, Mr. Mickens commenced this petition. He asserts two purported grounds of relief: (1) ineffective assistance of counsel; and (2) a violation of his right to a speedy trial. Although not pled as a separate ground ...


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