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Diaz v. Conway

November 3, 2010

MARVIN DIAZ, 03-B-2969, PETITIONER,
v.
JAMES CONWAY, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Marvin Diaz ("petitioner") has filed a timely writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of two counts of Attempted Robbery in the First Degree (N.Y. Penal L. §§ 110.00, 160.15(1)) and Assault in the First Degree (N.Y. Penal L. § 120.10(1)). Petitioner's conviction was entered on December 1, 2003, following a jury trial before Justice Steven R. Sirkin.

II. Factual Background and Procedural History

Petitioner's conviction arises out of an incident that occurred in the early morning hours of October 27, 2003, after he and Jerome Lester ("Lester") were told to leave a Rochester bar after arguing with other patrons. As they left, petitioner and Lester picked up a pipe and a piece of wood from a nearby dumpster, and broke the window of a car parked outside. The two men then encountered John Nicoisa ("the victim"), one of the men they had been arguing with inside the bar. According to witnesses, petitioner and Lester "jumped" the victim, one of the men violently beating the victim with the piece of wood. Petitioner and Lester then went through the victim's pockets. Three individuals witnessed the attack that night. As a result of the beating, the victim remained in a coma for three weeks, suffering brain trauma and nerve damage. Trial Tr. 128-29, 130-36, 158-60, 165-69, 177, 221, 224-27, 229-32.

Petitioner was charged with attempted first-degree robbery and first-degree assault on the basis of accomplice liability. At trial, it was petitioner's defense that he was present at the scene, but did not attempt to rob the victim and, although he and the victim were engaged in punching one another, he did not use a weapon nor did he assist Lester in beating the victim with a weapon. Trial Tr. 314-19. Petitioner did, however, stipulate that the injuries suffered by the victim as a result of the beating constituted "serious physical injury" as required by the New York Penal Law.*fn1 Trial Tr. 294.

During the charge conference, defense counsel requested that the defense of justification be read to the jury. The trial court granted that request, and further determined that, under the facts of the case, both levels of justification would be read to the jury, i.e., ordinary physical force and deadly physical force.*fn2 Trial Tr. 345-48.

Petitioner was found guilty of all three counts, and was subsequently sentenced to a determinate term of imprisonment of twenty years on the assault count, concurrent to two, fifteen-year sentences for each of the attempted robbery counts. Trial Tr. 437-38.

Through counsel, petitioner filed a direct appeal to the Appellate Division, Fourth Department, raising the following points for review: (1) the trial court erred in instructing the jury on deadly physical force justification; (2) the trial court erred in instructing the jury that it had to find petitioner guilty before deliberating on his justification defense; (3) the trial court erred in allowing petitioner to stipulate to "serious physical injury" without further inquiry; (4) the verdicts were against the weight of the evidence; and (5) the sentence was unduly harsh and severe. See Respondent's Appendix ("Appx.") D. Petitioner also filed a pro se supplemental brief alleging ineffective assistance of trial counsel on the grounds that his attorney: (1) stipulated to "serious physical injury" without petitioner's knowledge or consent; (2) failed to request a missing witness charge; and (3) failed to object to hearsay testimony. Appx. G. The Fourth Department unanimously affirmed the judgment of conviction. People v. Diaz, 39 A.D.3d 1244 (4th Dept. 2007), lv. denied, 9 N.Y.3d 842 (2007).

While his direct appeal was pending, petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10, raising the same grounds of ineffective assistance of counsel contained in his pro se brief on appeal. Appx. A. That motion was denied by the Monroe County Supreme Court pursuant to N.Y. Crim. Proc. L. § 440.10(2)(b) (mandating denial of § 440.10 motion where "the judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such appeal"). Alternatively, the court held that petitioner failed to demonstrate that he received less than meaningful representation. Petitioner did not seek leave to appeal the denial of that decision. Appx. C.

Petitioner then filed the instant petition for habeas corpus ("Pet."), seeking relief on the following grounds: (1) the trial court erred in instructing the jury on deadly physical force justification; and (2) ineffective assistance of trial counsel. Pet., ¶ 22(A)-(B), Attach. 1-4. (Dkt. #1).

For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal ...


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