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Barbur v. Superintendent of the Wende Correctional Facility

May 5, 2010

RYAN BARBUR, 04-B-0087, PETITIONER
v.
SUPERINTENDENT OF THE WENDE CORRECTIONAL FACILITY, RESPONDENT



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings, including entry of judgment, with respect to this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. #18.

Petitioner, proceeding pro se, challenges his sentence to a determinate term of 20 years incarceration following his guilty plea to the crime of first degree assault in violation of New York Penal Law § 120.10(3), before the Hon. Robert C. Noonan, Genesee County Court, on the ground that: (1) New York lacks jurisdiction to prosecute crimes committed against Indians on the Tonawanda Indian Reservation; (2) the relationship between Judge Noonan and District Attorney Lawrence Friedman violated petitioner's constitutional right to due process; and (3) the sentence imposed was harsh and excessive. Dkt. ##1 & 6. For the following reasons, the petition is denied.

BACKGROUND

On December 3, 2003, petitioner and his attorney appeared before Judge Noonan and entered a plea of guilty to one count of first degree assault in violation of New York Penal Law § 120.10(3),*fn1 in full satisfaction of an eleven count indictment relating to an incident on July 3, 2003. Dkt. #10-2, p. 7. Petitioner informed Judge Noonan that he was 19 years old and had completed the 9th grade. Dkt. #10-2, p.11. Petitioner expressed his understanding that by entering the plea, he was giving up his rights to a trial by jury, to confront witnesses, to call witnesses and present evidence on his own behalf, to testify on his behalf if he so chose, and to hold the government to their burden of proving petitioner's guilt beyond a reasonable doubt. Dkt. #10-2, p.12.

Judge Noonan informed petitioner that the maximum sentence that could be imposed was 25 years and that he would also be subjected to post release supervision for a maximum period of five years. Dkt. #10-2, p.13. Petitioner responded affirmatively when asked whether he was prepared to "run the risk" that Judge Noonan would "impose that maximum sentence." Dkt. #10-2, p.13. Petitioner also responded affirmatively when asked whether he had confidence in counsel's assistance and whether he had enough time to speak to his attorney regarding the consequences of the plea. Dkt. #10-2, pp.14 & 16. Petitioner denied any coercion to enter the guilty plea and denied that any promises had been made to him other than what was discussed in open court. Dkt. #10-2, p.14.

Petitioner informed Judge Noonan, that on July 3, 2003, at 7132 Poodry Road in the Town of Alabama, he recklessly fired a gun under circumstances evincing a depraved indifference to human life and creating a grave risk of death to another person, causing serious physical injury to Dana Printup. Dkt. #10-2, pp.15-16. Judge Noonan accepted petitioner's guilty plea. Dkt. #10-2, p.17.

At sentencing on January 7, 2004, Lesley Green and Dana Printup each addressed the Court. Ms. Green informed the Court that she woke her sister up because someone was banging on the front door at approximately 11:30 p.m. on July 3, 2003, but wouldn't respond to her request for identification. Dkt. #10-2, pp.26-27. As Ms. Green and her sister, Dana Printup, walked toward the door, the wall of their home exploded from gunfire. Dkt. #10-2, pp.27 & 30. As the sisters ran away from the door back towards the kitchen, Ms. Green felt a bullet go through her arm and observed her sister's pajama top melt and blood pour out her back. Dkt. #10-2, p.28. As Ms. Printup fell to the kitchen floor, Ms. Green reached the telephone and called 911. Dkt. #10-2, p.29. Ms. Printup had been shot twice in the upper left chest, suffering a collapsed lung and broken rib with multiple shrapnel throughout the left side of her body. Dkt. #10-2, p.31.

Petitioner apologized to his victims and his counsel advocated a minimum sentence based upon petitioner's acceptance of responsibility and remorse. Dkt. #10-2, pp.35-36. . Dkt. #10-2, p.36. Judge Noonan sentenced petitioner to a determinate sentence of 20 years incarceration, followed by 5 years post release supervision. Dkt. #10-2, p.37.

Petitioner appealed to the New York State Supreme Court, Appellate Division, Fourth Department, arguing by way of counsel that his sentence was harsh and excessive and by way of a pro se supplemental brief, that the relationship between Judge Noonan and District Attorney Lawrence Friedman violated his constitutional right to due process and that New York lacked jurisdiction over his offense. Dkt. #10-2, pp.41 & 62. In support of his due process claim, petitioner argued that Justice Robert Noonan was the Head District Attorney with Lawrence Friedman acting as First Assistant District Attorney for Genesee County. Upon Robert Noonan's resignation as the Head District Attorney, Lawrence Friedman was the District Attorney who eventually was promoted to the Head District Attorney.

There was a law firm of Noonan, Yunker, and Friedman which was renamed Noonan and Friedman after Mr. Yunker left the firm. This makes Judge and District Attorney law firm partners, partners in the District Attorney's office and personal friends all within a fifteen (15) year time frame. There is no possible way Robert Noonan can be fair, detached, neutral, or a noninterested tribunal in any proceedings which involve the Genesee [County] Sheriff's Department, Lawrence Friedman, Genesee County District Attorney's Office and other police agencies. Any charges . . . that Lawrence Friedman prosecutes should require immediate recusal of Robert Noonan.

Dkt. #10-2, p.68. The Appellate Division affirmed the judgment of conviction by Order entered February 4, 2005. People v. Barbur, 15 A.D.3d 1015 (4th Dep't 2005). The New York Court of Appeals denied leave to appeal by Order entered July 5, 2005. People v. Barbur, 5 N.Y.3d 785 (2005). Petitioner commenced this action on October 7, 2005. Dkt. #1.

DISCUSSION AND ...


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