Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phillip Johnson v. James Berbary

January 26, 2011

PHILLIP JOHNSON, PETITIONER,
v.
JAMES BERBARY, SUPERINTEDANT RESPONDENT.



The opinion of the court was delivered by: Honorablemichaela. 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 February 22, 2005, in New York State, Supreme Court, Monroe County, convicting him, upon a plea of guilty, of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law ("Penal Law") § 265.02 [4]). He was sentenced as a second felony offender to a determinate term of six years imprisonment, with five years post-release supervision.

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

II. Factual Background and Procedural History

Petitioner's conviction stems from a gunfight that occurred on August 23, 2003 in the City of Rochester. Plea Minutes [P.M.] at 14.

Petitioner was indicted and charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [2]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [4]). On May 12, 2004, in full satisfaction of the indictment, Petitioner pleaded guilty to one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02

[4]). P.M. at 10. As part of the plea agreement, the trial court promised to sentence Petitioner, as a second felony offender, to four years imprisonment with five years post-release supervision. P.M. at 8, 13. After the Petitioner entered his plea, the trial court gave the following warning:

"Between now and July 1st, you're going to have contact with the Monroe County Probation Department so I can receive a very detailed report regarding you, which I need at the time of sentence. I'm asking that you keep all your appointments with the Probation Department so that I can receive that report. You are also not to be arrested again for any violation of the law - -And that means any violation - - or if you don't show up for court on the next date, then I am not going to keep the promise that I made to you regarding your sentence, and I can impose a sentence which is authorized by law, including a period of seven years with the New York State Department of Corrections. Do you understand all of that, Mr. Johnson?"

P.M. at 19-20. In response, Petitioner stated that he understood the trial court's enhancement warnings and had no questions. P.M. at 20. Subsequently, Petitioner failed to meet with the Probation Department, as required, for completion of the pre-sentence investigation report, and failed to appear for sentencing on July 1, 2004. Sentence Hearing [S.H.] 4/1/04 at 2-3. A bench warrant was issued, and on February 8, 2005, Petitioner appeared for sentencing following a separate arrest in Erie County. S.H. 2/22/05 at 3.

Because Petitioner had failed to comply with the plea conditions, the People requested that Petitioner's sentence be enhanced to the statutory maximum of seven years imprisonment. S.H. 4/22/05 at 2-4. At sentencing, Petitioner's attorney stated the following:

"I did actually prepare on [Petitioner's] behalf a motion to withdraw his plea. He asked me actually not to go forward with that today . . . He just wishes the Court to consider his circumstances . . . not to max him out, to consider a lesser enhancement, perhaps a year or two."

S.M. 4/22/05 at 7. The sentencing court then asked if Petitioner would like to say anything, to which, he responded: "No. I just like to apologize to you and to your court for failing to appear as I was supposed to." S.M. 2/22/05 at 7. The sentencing court then imposed a determinate term of six years imprisonment with a five year period of post-release supervision. S.M. 2/22/05 at 8.

On December 6, 2006, Petitioner moved pro se, pursuant to Crim. Proc. L. ("C.P.L.") § 440.20, to set aside his sentence. See Resp't App. N. The motion was denied, and leave to appeal was denied. See Resp't App. O, R.

On February 1, 2008, Petitioner's conviction was unanimously affirmed by the Appellate Division, Fourth Department. People v. Johnson, 48 A.D. 3d 1066 (4th Dep't 2008) (Resp't App. D); lv. denied, 10 N.Y.3d 841 (2008) (Resp't App. G).

On or about June 23, 2008, Petitioner filed a pro se motion for a writ of error coram nobis, which was summarily denied on October 3, 2008. People v. Johnson, 55 A.D.3d 1419 (4th Dep't 2008) (Resp't App. J). Leave to appeal was denied. People v. Johnson, 12 N.Y.3d 759 (2009) (Resp't App. M). No other post-conviction motions have been brought by Petitioner.

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) involuntary guilty plea;

(2) unlawful enhancement of sentence; and (3) ineffective assistance of appellate counsel. See Pet., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.