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Alston v. Giambruno

December 21, 2009

JEROME A. ALSTON, 04-B-2477 PETITIONER,
v.
MICHAEL GIAMBRUNO, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Jerome Alston ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction upon a guilty plea in Steuben County Court before Judge Joseph Latham on one count of Burglary in the Second Degree (N.Y. Penal Law ("P.L.") § 140.25). Under the terms of his plea agreement, petitioner was sentenced to a determinate term of imprisonment of four years, followed by five years of post-release supervision. For the reasons that follow, the petition for writ of habeas corpus is denied and the action is dismissed.

II. Factual Background and Procedural History

On March 31, 2004, petitioner was charged with violating an order of protection and attacking his ex-girlfriend in her home. In a six-count indictment, petitioner was charged with Burglary in the First Degree (P.L. § 140.30(2)), Rape in the First Degree (P.L. § 130.35(1), Aggravated Criminal Contempt (P.L. § 215.52), Assault in the Third Degree (P.L § 120.00(1), Unlawful Imprisonment in the Second Degree (P.L. § 135.05), and Endangering the Welfare of a Child (P.L. § 260.10(1)). After a conference in chambers, the prosecutor stated on the record in open court that petitioner could plead guilty to one count of Burglary in the Second Degree in full satisfaction of the indictment. The prosecutor noted that petitioner could enter a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970)*fn1 , on the condition that the court sentence petitioner to four years in prison with five years of post-release supervision and issue an order of protection prohibiting any contact between petitioner and the complaining witness. Plea Minutes at 2.

Defense counsel stated that petitioner would accept that offer, and she withdrew petitioner's previously entered plea of not guilty, as well as the motions that were to be considered that day. Petitioner stated on the record that he was thirty-six years old and a high school graduate, was able to read and write, was not under the influence of alcohol and drugs, and wished to plead guilty. Plea Mins. 2-5. The court inquired as to whether petitioner was pleading guilty voluntarily, if he had sufficient time to discuss the plea with his attorney and family members, and if he had read the written plea agreement and understood it. Petitioner answered affirmatively to all of the court's questions. He also stated that he understood that he was relinquishing certain constitutional rights by pleading guilty, including the right to a trial by jury. Plea Mins. 6-7.

The prosecutor stated that if the case went to trial, the prosecution would offer evidence relating to the first count of the indictment, Burglary in the First Degree, that petitioner unlawfully entered the home of his ex-girlfriend with the intent to commit a crime, and caused physical injury.*fn2 The court then accepted petitioner's guilty plea. Plea Mins. 7-8, 11.

Prior to sentencing, petitioner moved to withdraw his guilty plea on the ground that he did not understand the implication of his plea. The court denied that motion and sentenced petitioner to the promised sentence of four years incarceration and five years of post-release supervision. Sentencing Mins. 2-6.

Petitioner, through counsel, raised two claims on direct appeal: (1) the court erred in summarily denying petitioner's motion to withdraw his guilty plea without inquiring into the reasons why the plea should be vacated; and (2) that petitioner's plea was not knowing, intelligent, and voluntary. See Respondent's ("Resp't") Ex. A. The Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction. People v. Alston, 23 A.D.3d 1041 (4th Dept. 2005); lv. denied 6 N.Y.3d 752 (2005). Petitioner then moved pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 to vacate his conviction on the grounds that: (1) he was denied the right to be released pursuant to C.P.L. § 180.80*fn3 ; (2) he was denied the right to a preliminary hearing; and (3) petitioner's first public defender, James Miller, Esq. ("Miller"), had provided ineffective assistance of counsel.*fn4 See Resp't Ex. F. The Steuben County Court orally denied the motion with petitioner present. See Mins. of January 23, 2006 at 2-3; Ex. H. A written order was issued on January 27, 2006, denying petitioner's motion. See Ex. L. Petitioner sought leave to appeal to the Appellate Division from the denial of his § 440 motion. Leave was denied on May 3, 2006. See Ex. J.

Petitioner then brought a timely petition for habeas corpus pursuant to 28 U.S.C. § 2254 before this Court. Here, petitioner argues that Miller rendered ineffective assistance by failing to seek petitioner's release pursuant to C.P.L. § 180.80 and a preliminary hearing, and because Miller allegedly abridged petitioner's right to testify before the Grand Jury. Petition ("Pet.") ¶ 22(A)-(D), ¶ 23(A)-(F). (Dkt. #1). Respondent has submitted an answer and memorandum of law in opposition of the petition. (Dkt. ##7,8).

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. Standard of Review

The instant petition is governed by 28 U.S.C. ยง 2254, as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA") in 1996. To obtain habeas relief under AEDPA, where the state court has adjudicated a petitioner's federal constitutional claim on the merits, a petitioner must demonstrate that the adjudication 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 ...


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