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Heise v. State

October 6, 2010

EUGENE HEISE, PETITIONER,
v.
STATE OF NEW YORK 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 Eugene Heise ("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 October 11, 2002, in New York State, Wayne County, County Court (Hon. John B. Nesbitt), convicting him, upon a plea of guilty, of two counts of Sexual Abuse in the First Degree (N.Y. Penal Law ("Penal Law") § 130.65 [3]).

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

II. Factual Background and Procedural History

On January 23, 2002, a Wayne County Grand Jury charged Petitioner with six counts of Sexual Abuse in the First Degree and two counts of Endangering the Welfare of a Child. See Ind. No. 02-13 (Resp't Ex. L at 5-8). The charges arose from several incidents that occurred in 2001 while Petitioner was living at the home of victims' parents. During that time, while baby-sitting the victims, aged 6 and 7, Petitioner sexually molested the two young sisters by touching their vaginal areas over and underneath their clothing. Hr'g Mins. [H.M.] 9-14.

On October 11, 2002, Petitioner appeared, with counsel, before Judge Nesbitt and offered to plead guilty to the first two counts of the indictment, which charged first-degree sexual abuse of both children, in full satisfaction of the indictment and in exchange for two consecutive, five-year prison sentences, a period of post-release supervision between three and five years, and a permanent order of protection. Plea Minutes [P.M.] 2 (Resp't Ex. A).

In his plea colloquy, Petitioner admitted that on or about November 1, 2001, in the County of Wayne, he placed his hand on 7-year-old A.K.'s*fn1 vagina. Id. at 5. He also admitted that on or about that same date, he placed his hand on 6-year-old A.K.'s vagina. Id. at 5-6.

The county court accepted the plea and moved the matter to sentence. Id. at 8. As agreed, Petitioner was sentenced to a determinate five-year prison term for each count of first-degree sexual abuse, to run consecutively to each other, plus a five-year term of post-release supervision. Id. at 12-13. The court also entered an order of protection, effective from the day of sentencing until October 11, 2015, which prohibited Petitioner to have any contact with the victims and to avoid the victims' homes, schools, businesses, and places of employment. Id. at 13-14.

Subsequently, Petitioner filed three motions, pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440, to vacate his judgment of conviction.*fn2 Each of these motions was denied by the Wayne County Court, and Petitioner failed to appeal the denials in the Appellate Division, Fourth Department. See Dec. in Opp'n to Pet. for a Writ of Habeas Corpus [Dec.], at ¶ 5 (Dkt. #16).

On January 17, 2007, Petitioner, through counsel, appealed his judgment of conviction in the Appellate Division, Fourth Department on the following grounds: (1) involuntary guilty plea; (2) Petitioner's statements to a social worker should have been suppressed; and (3) the order of protection was "too long in duration." See Appellant's Br., Points I-III (Resp't Ex. K). On June 8, 2007, the Appellate Division, Fourth Department unanimously affirmed Petitioner's conviction. People v. Heise, 41 A.D.3d 1255 (4th Dep't 2007) (Resp't Ex. O); lv denied, 9 N.Y.3d 1006 (2007) (Resp't Ex. U).

On or about May 1, 2008, Petitioner, proceeding pro se, filed a fourth C.P.L. § 440 motion on the ground that his conviction violated double jeopardy principles. See Pet'r C.P.L. § 440 motion dated 05/01/08 (Resp't Ex. P). In a Memorandum-Decision dated June 23, 2008, the county court denied Petitioner's motion on procedural grounds. See Mem.-Decision, Ind. No. 02-13, dated 06/23/08 (Resp't Ex. R). Petitioner did not appeal the denial of the motion to the Appellate Division, Fourth Department. See Dec., at ¶ 5.

In the instant habeas corpus petition, filed on or about October 17, 2008, Petitioner raises the following grounds for relief: (1) involuntary guilty plea; (2) the state police coerced his confession; (3) a Fourth Amendment violation; and (4) a violation of double jeopardy principles. See Pet., at ΒΆ 22A-D (Dkt. #1). Petitioner's first claim --- that his plea was not knowing and voluntary --- ...


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