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John Mccormick v. Supt. Jamesmorrisey

March 14, 2011

JOHN MCCORMICK, PETITIONER,
v.
SUPT. JAMESMORRISEY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Proceeding pro se , James McCormick ("McCormick" or "Petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a guilty plea to felony driving-while-intoxicated ("DWI") (New York Vehicle and Traffic Law ("V.T.L.") §§1192(3), 1193(1)(c)(i). McCormick was.

The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

A. Petitioner's Guilty Plea

After Petitioner was arraigned on April 8, 2003, in Monroe County Supreme Court on charges of felony driving while intoxicated and various violations of the Vehicle and Traffic Law, he was released on bail. While on bail, he was arrested in neighboring Orleans County and charged with another instance driving while intoxicated. (9-10, 15, 25, 33-34).

On August 27, 2003, Petitioner pled guilty to the first count of the Monroe County indictment. In reciting the plea agreement, defense counsel informed the trial court, "[I]t's my understanding he will be accepting a plea to . . . the first count of the indictment, which is a [class] D felony, DWI, with a sentence promise from this court of two to six [years]. He will be pleading in Orleans County, and it's my understanding that this court would promise my client a concurrent sentence with Orleans County. It's an E felony in Orleans County and so he would be getting a one and a third to four there." After confirming the agreement with the prosecutor, the trial court asked defense counsel, "[T]here would not be any difficulty with the Orleans County case that the sentence be served concurrently?" Defense counsel responded, "To my knowledge[,] no." (54-55, 64) Sentencing was then scheduled for September 28, 2003. (56-66).

The September 28 th sentencing proceeding was adjourned and Petitioner next appeared in Monroe County Supreme Court on October 28, 2003. At that time defense counsel explained, "I received information from Mr. McCormick's attorney in Orleans County yesterday afternoon that, in fact, he was not sentenced yesterday. He was scheduled to be sentenced. I spoke with Mr. McCormick this morning. He indicated to me that he withdrew his plea yesterday." *fn1

Petitioner then moved to withdraw his guilty plea in Monroe County, claiming that his attorney had not "fulfilled her obligation in explaining everything," that he had been "forced" to plead guilty under "duress," and that the prosecutory improperly had used a conviction over ten years old to indict him on a class D felony. The court trial denied the motion. The court then stated, "There was an initial understanding and agreement that any sentence today would run concurrent with the Orleans County sentence. I'm not privy to what has taken place in Orleans County. That matter is not before me, and my sentence will be as previously promised regardless of what Orleans County may or may not do pertaining to a pending charge there."

Petitioner thereafter admitted that he had been convicted of two prior felony DWIs, as alleged in the special information, but repeated that one of them was not within the statutory ten-year time-period. Defense counsel then indicated that since it was McCormick's position that he should be subject to a class E rather than a class D felony conviction, the two to six year sentence "would not be a sentence that he could get"; in other words, a two-to-six-year sentence was not a legal sentence for a class E felony conviction under the applicable provisions of New York's Penal Law. The trial court then noted that he found that there were two prior convictions within the ten-year period based on the information he had before him, and sentenced Petitioner to the promised two to six year term of imprisonment. (70-80).

Two days later, on October 30, 2003, the trial court announced that it had verified that Petitioner did in fact have only one prior felony conviction within the prior ten years, and thus the sentence imposed was illegal. The trial court vacated the prior sentence, and Petitioner him to an indeterminate term of one and one-third to four years. Before imposing the new sentence, the trial court denied Petitioner's application to adjourn the sentencing until after he was sentenced in Orleans County so that the court could sentence him to a concurrent sentence, and further denied his renewed motion to withdraw his plea so that he could"have an opportunity to take care of the matter in Orleans County, then take care of this matter" (83-90).

According to the certificate of conviction from Orleans County, Petitioner pled guilty on September 29, 2003, to felony DWI and third degree aggravated unlicensed operation of a motor vehicle. He was sentenced on December 1, 2003, to an indeterminate term of one to three years, to run consecutively to any previously imposed sentence. Thus, McCormick's aggregate term of ...


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