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Phillip Johnson v. James Berbary

December 30, 2010

PHILLIP JOHNSON, PETITIONER,
v.
JAMES BERBARY, 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 Phillip Johnson ("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 January 5, 2006, in New York State, Supreme Court, Erie County, convicting him, upon a plea of guilty, of one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law ("Penal Law") § 265.02 [5][ii]).

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

II. Factual Background and Procedural History

Under Indictment No. 00119-2005, Petitioner was charged with two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [1] and [5][iii]) and one count of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45[4]). See Resp't Ex. A.

On June 1, 2005, Petitioner pleaded guilty to one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [5][iii]) in full satisfaction of the indictment. Plea Mins. [P.M.] 14-15.

On January 5, 2006, Petitioner was sentenced, as a second felony offender,*fn1 to three years imprisonment and five years post-release supervision. Sentencing Mins. [S.M.] 2-3, 15. The sentence was set to run consecutive to an unrelated conviction in Monroe County. S.M. 15.

A timely notice of appeal was filed on Petitioner's behalf by his trial attorney (Giovanni Genovese, Esq.). By order dated April 3, 2006, the Appellate Division, Fourth Department ("Fourth Department") permitted Petitioner to conduct his appeal as a poor person, and an attorney was assigned to represent Petitioner (David

C. Schopp, Esq.). Subsequently, owing to Petitioner's abandonment of his appeal, appellate counsel filed a motion to be relieved. That motion was granted. See Resp't Ex. B.

Petitioner did not perfect his direct appeal. By order dated November 3, 2008, the Fourth Department dismissed Petitioner's direct appeal. See Resp't Ex. B.

On or about February 8, 2007, Petitioner filed a motion to set aside the verdict, pursuant to N.Y. Crim. Proc. Law ("CPL") §440.20, which was denied. Leave to appeal was denied. See Resp't Ex.C.

On or about November 10, 2007, Petitioner filed an application for a writ of error coram nobis in the Fourth Department, arguing that he received ineffective assistance of appellate counsel.*fn2 That motion was summarily denied by the Fourth Department, and leave to appeal was denied. See Resp't Ex. E.

On or about January 10, 2008, Petitioner filed a motion to vacate his judgment of conviction, pursuant to CPL ยง 440.10, which was denied. Leave ...


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