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Smith v. Conway

September 23, 2010

KEITH SMITH, 05-B-0208, PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Keith Smith ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his custody arising out of his conviction in Erie County Supreme Court of five counts of Robbery in the First Degree (N.Y. Penal L. § 160.15(2)), two counts of Sodomy in the First Degree (former N.Y. Penal L. § 130.50(1)), two counts of Sexual Abuse in the First Degree (N.Y. Penal L. § 130.65(1)), and one count each of Burglary in the First Degree (N.Y. Penal L. § 140.30(1)) and Assault in the First Degree (N.Y. Penal L. § 120.10(1)). Petitioner pleaded guilty before Justice Russell P. Buscaglia, and was subsequently sentenced as a second felony offender to a determinate sentence of twenty-two years imprisonment with five years of post-release supervision.

II. Factual Background and Procedural History

On December 2, 2003, petitioner and co-defendant Joseph Ayers ("Ayers") were charged in a twenty-seven count indictment containing multiple counts of burglary, robbery, sodomy, sexual abuse, coercion, as well as attempted murder and assault. The charges arose from petitioner's illegal entry into the home of William Tweedie ("Tweedie") on Jones Street in the City of Buffalo where a party was taking place. While in the home, petitioner shot, robbed, and sexually assaulted guests, as well as forcing them at gunpoint to engage in sexual contact with one another. Petitioner was eventually subdued by Tweedie and other male guests until Buffalo Police arrived.

On September 20, 2004, petitioner appeared with his assigned attorney, Andrew LoTempio, Esq. ("LoTempio") in Supreme Court, Erie County, before Justice Russell P. Buscaglia, and pleaded guilty to eleven counts of the indictment. Plea Mins. ("P.M.") 25-26. The court indicated that based upon its discussions with the district attorney and defense counsel, and considering petitioner's status as a second violent felony offender, the court would commit to a determinate period of twenty-two years incarceration, plus five years of post-release supervision. P.M. 17.

On the day petitioner was scheduled to be sentenced, petitioner requested that LoTempio be relieved, arguing that he was not "given the chance to make an intelligent and factual decision" with respect to his plea because LoTempio had not given petitioner the pertinent paperwork relating to his case. He also sought to withdraw his plea because he felt that the prosecution had "no proof" of the sodomy charges. Hr'g Mins. dated 11/23/2004 at 2-6. Because petitioner alleged a conflict of interest with LoTempio, the court assigned an attorney solely to assist petitioner with his motion to withdraw the plea. Id. at 10.

On January 4, 2005, petitioner appeared with attorney Karen Korkuc, Esq. ("Korkuc"), to be heard on the motion to withdraw his guilty plea. Korcuk argued that due to the voluminous nature and complexity of the indictment, petitioner, who had "difficulty with comprehension," could not understand the charges against him and was not aware that he would have to register as a sex offender as a result of the conviction. Hr'g Mins. dated 1/4/2005 at 4. At the hearing, petitioner did not allege that LoTempio's representation was deficient. Id. at 5-6.*fn1 The court ruled that petitioner had not made sufficient allegations in support of his motion to withdraw the plea and denied petitioner's request. Id. at 10. Petitioner was then sentenced as agreed upon to concurrent, determinate terms of imprisonment totaling twenty-two years with five years of post-release supervision. Sentencing Mins. ("S.M.") at 7.

Represented by counsel, petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds:

(1) the court improvidently exercised its discretion in denying petitioner's motion to withdraw his guilty plea;

(2) petitioner's waiver of appeal rights was ineffective to preclude a challenge to his sentence; and (3) the sentence was harsh and excessive. Pet'r Appellate Br. 2-21 (Ex. B). Petitioner also submitted a pro se supplemental brief, raising the following points: (1) petitioner's guilty plea and waiver of appeal was not knowing and intelligent; (2) ineffective assistance of counsel; and

(3) petitioner was denied his right to a speedy trial. Pet'r Pro Se Br. 3-12 (Ex. B). The judgment of conviction was unanimously affirmed by the Fourth Department. People v. Smith, 37 A.D.3d 1141 (4th Dept. 2007), lv. denied, 9 N.Y.3d 851 (2007).

The instant petition for habeas corpus ("Pet.") was filed on September 5, 2008 (Dkt. #1), alleging that his plea was not knowingly and voluntarily entered and that his assigned counsel was constitutionally ineffective. Pet. ΒΆΒΆ 12-13. For the reasons that follow, I find ...


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