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Underwood v. Graham

January 15, 2010

JERMAINE UNDERWOOD, PETITIONER,
v.
H. GRAHAM, SUPERINTENDENT AUBURN CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner, Jermaine Underwood ("Petitioner"), has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered September 9, 2002, in New York State, Supreme Court, Erie County, convicting him, upon a plea of guilty, of Manslaughter in the First Degree (N.Y. Penal Law ("Penal Law") § 25.20[1]), and Robbery in the First Degree (Penal Law § 160.15[4]).

For the reasons stated below, the writ is denied and the petition is dismissed.

II. Factual Background and Procedural History

Under an Erie County Grand Jury Indictment No. 01-1199-001, Petitioner was charged with one count of murder in the second degree and one count of criminal possession of a weapon in the second degree, stemming from an incident that occurred on May 13, 2001 in which Petitioner shot and killed Taiwan Harwell ("Harwell"). See Indictment No. 01-1100-001.

Under a separate Erie County Grand Jury Indictment No. 01-1424-001, Petitioner was charged with one count of robbery in the first degree, stemming from an incident that occurred on March 16, 2001 in which Petitioner forcibly stole $25.00 from Kendrell Gadley ("Gadley") and displayed a pistol. See Indictment No. 01-1424-001.

Petitioner pleaded guilty on March 26, 2002 to manslaughter in the first degree and robbery in the first degree in full satisfaction of both indictments. Plea Colloquy [P.C.] 20. During the plea allocution, Petitioner admitted shooting Harwell, with the intent of seriously injuring him, and stealing property from Gadley. P.C. 15-18. In exchange for his plea of guilty, Erie County Supreme Court Judge Mario J. Rossetti agreed that the sentences he would impose on each count would run concurrently. P.C. 12.

Petitioner was sentenced to concurrent terms of twenty-three years for manslaughter and three and a third to ten years for robbery, as well as a term of five years post-release supervision. Sentencing Minutes [S.M.] 7-8; Petitioner's Certificate of Conviction.

Petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed in a summary order, citing People v. Hidalgo, 91 N.Y.2d 733, 737 (1998). People v. Underwood, 23 A.D.3d 1064 (4th Dep't. 2005). Leave to appeal to the New York Court of Appeals was denied. People v. Underwood, 6 N.Y.3d 781 (2006).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following two grounds: (1) that his sentence was excessive; and (2) that the waiver of his right to appeal is invalid. Petition [Pet.] ¶ 22A-B.

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). 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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