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Jose A. Gomez v. John B. Lempke

January 20, 2010

JOSE A. GOMEZ, , PETITIONER,
v.
JOHN B. LEMPKE, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Jose A. Gomez ("petitioner") has made a timely application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Stueben County Court of Assault in the Second Degree (N.Y. Penal L. ("P.L.") § 120.05(2)), Attempted Assault in the Second Degree (P.L. §§ 110.00, 120.05(1)), Burglary in the Second Degree (P.L. § 140.25), Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02), Tampering with Physical Evidence (P.L. § 215.40), Criminal Mischief in the Fourth Degree (P.L. § 145.00), and Petit Larceny (P.L. § 155.25). Petitioner's judgment of conviction was entered on November 16, 2005, following a jury trial before Judge Joseph W. Latham. He is currently serving consecutive prison terms of 25 years to life.

II. Factual Background and Procedural History

A. Trial, Verdict and Sentence

On September 23, 2004, petitioner and another man, Randy Hall ("Hall"), were involved in an incident in the City of Corning, New York, wherein one person was shot and two others stabbed during a fight. Thereafter, petitioner and Hall broke into another nearby house where petitioner proceeded to wash the knife he was carrying. He also stole clothing before leaving the house with Hall and getting into a taxicab. Police officers saw petitioner and Hall get into the cab and stopped it, but the two men fled on foot. Petitioner and Hall were apprehended after a brief chase. Police recovered the knife from petitioner's person and Hall's gun near the chase route. The incident was in connection with a drug theft; the shooting victim had allegedly stolen $200 worth of cocaine that petitioner had supplied to a fellow drug dealer. T. 654-87, 723-32, 887-96, 940-42, 992-98, 1060-67, 1093-97, 1101-19, 1157.*fn1

As a result of that incident, petitioner and Hall were charged in Steuben County with attempted second-degree murder, three counts of second-degree assault, second-degree burglary, third-degree weapon possession, fourth-degree criminal mischief, petit larceny, and tampering with physical evidence.

Following a jury trial, petitioner was found guilty of second-degree assault, attempted second-degree assault, second-degree burglary, third-degree weapon possession, evidence tampering, fourth-degree criminal mischief, and petit larceny, and was acquitted of the attempted murder count. T. 1772-73.

The prosecution then moved to adjudicate petitioner as a persistent felony offender pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 400.20, and on September 14, 2005, the trial court conducted a hearing to determine whether petitioner was, in fact, a persistent felony offender, and if so, whether he should receive an enhanced sentence.*fn2 During that hearing, the prosecution presented conviction certificates and other documentary evidence of petitioner's five felony convictions and four misdemeanor convictions. Petitioner presented witnesses and testified about his religious beliefs, as well as his struggle with alcohol and drug abuse. His attorney argued against an enhanced sentence, maintaining that petitioner could be rehabilitated through drug and alcohol treatment. Hr'g Mins dated 9/14/2005 at 23-27. Ultimately, the trial court found that the prosecution had established that petitioner had five felony convictions and a history of drug and alcohol abuse, for which he had not been successfully treated. Respondent's Exhibits ("Ex.") A at 2, 4. The court concluded that "extended incarceration and lifetime supervision of [petitioner] would best serve the public interest," and petitioner was adjudicated a persistent felony offender. Ex. A at 6.

Petitioner was subsequently sentenced to concurrent, indeterminate prison sentences of 25 years to life on the assault, attempted assault, burglary, weapon possession, and tampering counts, and concurrent, definite jail terms of one year for the petit larceny and mischief counts. S. 31-33; see P.L. § 70.10.

B. Direct Appeal

Petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, on the following grounds:

(1) New York's persistent felony offender statute violated petitioner's right to equal protection; (2) petitioner was denied effective assistance of counsel in violation of the International Covenant on Civil and Political Rights; (3) petitioner was denied the effective assistance of counsel when his attorney failed to inform the prosecutor that he wished to testify at the grand jury;

(4) the trial court improperly denied petitioner's motion to dismiss the indictment; (5) the trial court improperly admitted evidence of uncharged drug offenses; (6) petitioner's sentence was vindictive; (7) the sentence was harsh and excessive; (8) the trial court improperly considered certain evidence in adjudicating petitioner a persistent felony offender; (9) there were inaccuracies in petitioner's pre-sentence report; (10) the evidence of burglary was legally insufficient; and (11) the persistent felony offender statute violates the separation of powers doctrine. Ex. B. The Appellate Division unanimously affirmed the judgment of conviction. People v. Gomez, 38 A.D.3d 1271 (4th Dept. 2007); Ex. E. Leave to appeal the decision of the Appellate Division was also denied. Ex. F-G.

C. Post-Conviction Relief

Through counsel, petitioner filed a motion pursuant to C.P.L. ยง 440.20 seeking to vacate petitioner's sentence on the ground that New York's persistent felony offender statute violated petitioner's Sixth Amendment right to a jury trial. Ex. H. Steuben County Court summarily denied petitioner's motion without opinion, and leave ...


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