The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Quentin Lewis ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Monroe County Court of two counts of Robbery in the First Degree (N.Y. Penal L. § 160.15(4)) following a guilty plea before Judge John. J. Connell.
II. Factual Background and Procedural History
A. Charges, Plea and Sentence
On August 27, 1997, 17-year-old petitioner, along with three other armed individuals, carried a loaded shotgun into the Kim Ching Chinese Restaurant on Thurston Road in the City of Rochester. Plea Mins. ("P.M.") dated 12/15/1997 at 7-9. Seven people, including patrons, were robbed at gunpoint; petitioner being caught on surveillance video firing his shotgun at a patron. Sentencing Mins. ("S.M.") dated 1/28/1998 at 7-8. In fleeing the restaurant, petitioner was shot by a police officer who had heard the blast from petitioner's shotgun as he happened to be passing by the restaurant. S.M. 9, 11.
Petitioner subsequently pleaded guilty to two counts of Robbery in the First Degree in satisfaction of multiple charges contained in Monroe County Indictment Nos. 0598/1997 and 0565/1997*fn1 . The trial court agreed to impose concurrent sentences of 12 and 1/2 to 25 years for each count. The prosecutor indicated that there was "an understanding that Mr. Lewis would waive his right to appeal on both of those matters." P.M. 2-3.
During sentencing, petitioner denied appearing with his attorney, and informed the county court that his parents had unsuccessfully attempted to obtain new counsel for him. S.M. 2. Petitioner then stated that he wished to withdraw his guilty plea because he did not feel that his case was "fair" and that his attorney "scared him up" into pleading guilty. S.M. 3-4. The county court offered to give petitioner an adjournment if his parents indeed had plans to obtain a new attorney. S.M. 5.
Petitioner's assigned counsel, Louis P. Pilato, Esq. ("Pilato"), who was present at sentencing, explained that he had no knowledge of petitioner's intention to find another attorney, and took a brief opportunity to state that he believed he had done an appropriate job in representing petitioner, referencing some of the evidence against petitioner. S.M. 8-10. Upon petitioner's declaration that his mother had not yet found an attorney, the trial court proceeded to deny petitioner youthful offender status and sentenced petitioner to concurrent terms of imprisonment of 12 and 1/2 to 25 years imprisonment for each count of Robbery in the First Degree. S.M. 5, 12.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, arguing that: (1) the trial court should have adjourned sentencing and assigned new counsel due to a conflict of interest; (2) petitioner's waiver of appellate rights was not voluntary or intelligent; and (3) the sentence should be modified as harsh and excessive. See Respondent's Appendix ("Appx.") A. The Appellate Division addressed the merits of petitioner's conflict of interest claim:
Although defense counsel had no duty to support the pro se motion of defendant to withdraw his plea of guilty, defense counsel became a witness against his client by taking a position adverse to him, thereby depriving defendant of effective assistance of counsel. Thus, the court should not have determined the motion to withdraw the plea without first assigning a different attorney to represent defendant.
People v. Lewis, 286 A.D.2d 934 (4th Dept. 2001) (citations and internal quotations omitted).
The Appellate Division reserved decision on the direct appeal and remitted the case to Monroe County Court for assignment of new counsel and a de novo determination of petitioner's motion to ...