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Swift v. Smith

November 22, 2010

MARK SWIFT, 05-B-3040, PETITIONER,
v.
JOSEPH T. SMITH, SUPERINTENDENT, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Mark Swift ("petitioner") has filed a petition for writ of habeas corpus (Dkt. #1) pursuant to 28 U.S.C. § 2254 challenging his conviction in Steuben County Court of Attempted Rape in the First Degree (N.Y. Penal L. §§ 110.00/130.35(1)) following a guilty plea before Judge Joseph W. Latham.

Presently before the Court is the respondent's motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("F.R.C.P.") (Dkt. ## 11-13).*fn1

II. Factual Background and Procedural History

On January 25, 2005, petitioner was charged in Steuben County with Rape in the First Degree (N.Y. Penal L. § 130.35(1)), Criminal Sexual Act in the First Degree (N.Y. Penal L. § 130.65(1)) and Assault in the Second Degree (N.Y. Penal L. § 120.05(6)). See Respondent's Declaration ("Resp't Decl.") at Ex. A.

A plea hearing was held on August 24, 2005, in which petitioner agreed to plead guilty to attempted first-degree rape with a sentence commitment of five years incarceration and five years of post-release supervision.*fn2 See Plea Tr. at 2 (Ex. B). The county court inquired of petitioner whether he had reviewed and discussed with his attorney the indictment and written plea agreement, that he had not been coerced or pressured to plead guilty, and that he understood that by pleading guilty he was relinquishing the rights enumerated in the written plea agreement, including the right to a jury trial and right to appeal. Plea Tr. 3-7; see also Plea Agreement (Ex. C). Petitioner answered in the affirmative, and then admitted on the record that he was guilty of the crime of "attempt[ing] to engage in sexual intercourse with another person by forcible compulsion." Id. at 6. Petitioner then signed the written plea agreement, and the court found that petitioner had "knowingly, voluntarily and intelligently entered his plea." Id. at 7-8.

Petitioner was subsequently sentenced as a second felony offender to a determinate term of imprisonment of five years with five years of post-release supervision on October 13, 2005. Sentencing Tr. 6-7. (Ex. D). Neither petitioner nor his attorney filed a notice of appeal from the conviction, and, after discussing his appellate rights with his attorney, petitioner expressly affirmed in the Notice of Right to Appeal that he did not wish to appeal See Notice of Right to Appeal (Ex. E.); Affirmation of Thomas Stahr ("Stahr Affrim.") ¶ 21 (Ex. H).

On April 27, 2008, petitioner filed a pro se motion pursuant to N.Y. Crim. Proc. L. § 460.30 for an order extending his time to appeal from the judgment of conviction in the Appellate Division, Fourth Department. In his supporting affidavit, petitioner explained that the reason for his nearly three-year delay in his filing "resulted from the improper conduct of the Steuben County Supreme Court's failure to inform [petitioner] of the effect of taking a plea to an unknowing[] and unintelligent agreement and waiving his rights to an appeal . . . when the convicting court never established jurisdiction" over his case, and "by allowing [petitioner] to plea[d] to a nonexistent or hypothetical crime . . . ." Petitioner's Affidavit ("Pet'r Aff.") ¶ 5 (Ex. F). The district attorney's office filed an affidavit in response to the § 460.30 motion. See Ex. G. Petitioner's attorney also submitted an affirmation, asserting that among other things, he told petitioner prior to his plea that if he were convicted, he would be treated as a second felony offender and be subject to a determinate sentence of eight to twenty-five years. Stahr Affrim. ¶ 7. According to Stahr, petitioner knowingly elected to accept the plea offer, conditioned on petitioner's waiver of appellate rights. Id., ¶¶ 18-20.

The Appellate Division dismissed petitioner's § 460.30 motion as untimely. Ex. I. Petitioner then applied to the Appellate Division for leave to appeal that order to the New York Court of Appeals, which was denied. Ex. K. On August 8, 2008, petitioner applied to the Court of Appeals for leave to appeal, see Ex. L., and that application was dismissed because the order sought to be appealed was "not appealable." Ex. M.

Petitioner then brought the instant petition for writ of habeas corpus, dated October 5, 2008, alleging four grounds for relief: (1) the county court lacked jurisdiction; (2) speedy trial violation; (3) ineffective assistance of trial counsel; and (4) judicial bias. Petition ("Pet") ¶ 12(A)-(D). Petitioner filed a declaration which states additional facts in support of his claims (Dkt. #8).

On April 15, 2009, respondent filed a motion to dismiss the petition pursuant to F.R.C.P. 12(b)(6). By order dated April 23, 2009, the Court directed petitioner to address the arguments contained in the respondent's motion no later than May 26, 2009 (Dkt. #16). On May 21, 2009, petitioner requested additional time to file his response (Dkt. #18), and the Court granted petitioner an enlargement of time to July 1, 2009 (Dkt. #19). No response was filed by petitioner. The Court has reviewed the petition and the respondent's motion to dismiss. For the reasons that follow, the petition is dismissed as untimely.

III. Discussion

Timeliness of ...


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