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Hardy v. Conway

June 14, 2010

J.W. HARDY II, A/K/A J.W. HARDY, JR., PETITIONER,
v.
J. CONWAY, SUPERINTENDENT, ATTICA 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 J.W. Hardy, II, a/k/a J.W. Hardy, Jr., ("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 February 28, 2005, in New York State, County Court, Orleans County, convicting him, upon a plea of guilty, of Criminal Possession of a Controlled Substance in the Fifth Degree (N.Y. Penal Law ("Penal Law") § 220.06[1]).

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

II. Factual Background and Procedural History

On May 20, 2004, on Main Street in the Village of Albion, Petitioner possessed and sold less than five hundred grams of cocaine to a confidential police informant. Orleans County police officers videotaped the transaction and later arrested Petitioner. Plea Transcript [P.T.] 6-8.

On July 19, 2004, an Orleans County Grand Jury returned Indictment No. 04-39, charging Petitioner with one count each of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. See Indictment No. 04-39, Resp't Ex. A.

On December 6, 2004, Petitioner appeared with counsel before County Court Judge James P. Punch, and, under a negotiated plea agreement, entered a guilty plea to one count of Criminal Possession of a Controlled Substance in the Fifth Degree, in full satisfaction of the indictment. P.T. 6-7.

On February 14, 2005, Petitioner escaped from custody while he was being held at the Orleans County Courthouse pending sentence. See Sentencing Minutes [S.M.] 6-7. He was apprehended and returned to custody shortly thereafter.*fn1

On February 28, 2005, Petitioner was sentenced as a second felony offender to an indeterminate term of from three to six years imprisonment. S.M. 6-7.

Petitioner appealed his judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department on September 29, 2006. People v. Hardy, 32 A.D.3d 1317 (4th Dept. 2006); lv. denied, 7 N.Y.3d 925 (2006).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) that his waiver of the right to appeal was not knowing, voluntary or intelligent; and (2) defects in the indictment and grand jury proceedings. Petition [Pet.] ¶12A-D. Petitioner's claims are exhausted and properly before this Court. See 28 U.S.C. § 2254(b)(1)(A).

III. General Principles Applicable to ...


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