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Dwayne Barnes v. Robert Ercole

April 14, 2011

DWAYNE BARNES, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDANT GREENHAVEN CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

ORDER ADOPTING R&R

Pro se petitioner Dwayne Barnes ("Barnes") seeks habeas relief following his September 1, 2005 conviction, on a guilty plea in Supreme Court, New York County, for second degree attempted robbery, and his sentence of twelve years to life. Barnes alleges that his plea allocution was inadequate and that the Court deprived him of his right to due process by failing to examine his claims of innocence, made after his guilty plea. On March 30, 2009, this Court referred the general pretrial matters and dispositive motions in the case to Magistrate Judge Andrew J. Peck. (Dkt. 3.) On August 3, 2009, Magistrate Judge Peck issued a Report & Recommendation ("R&R") recommending that the Court deny Barnes's habeas petition. The R&R provided until September 30, 2009 to file written objections, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). No objections have been filed. For the reasons that follow, the Court adopts the R&R in full and dismisses Barnes's petition.

BACKGROUND*fn1

I. The Crime

Early in the morning of August 3, 2004, Barnes attempted to rob a Manhattan bodega, stating that he was a police officer, flashing a badge, and displaying a gun that turned out to be a starter pistol (i.e. one that shoots blanks). (R&R at 2.) The cashier struggled with Barnes, causing him to drop the badge and pistol, and flee without the money. (Id.) The cashier then called 911, and police officers apprehended Barnes within a few minutes, as he was running into his apartment building nearby. (Id.) The cashier identified Barnes as the perpetrator within fifteen minutes of the crime. (Id.) Thereafter, a New York County grand jury charged Barnes with second degree robbery and first degree criminal impersonation. (Id.)

II. Barnes's Guilty Plea

On April 12, 2005, Barnes pleaded guilty to attempted second degree robbery before New York State Supreme Court Justice James A. Yates, in exchange for the promise that he would be sentenced to no more than twelve years to life imprisonment, should Justice Yates find him to be a persistent violent felony offender. (Id.) Justice Yates asked Barnes whether he was satisfied with the work of his attorney, Keith Cavet ("Cavet") of the Legal Aid Society, and Barnes responded affirmatively. (Id. at 3.) In response to questioning by Justice Yates, Barnes stated that he understood the content of the plea agreement and the rights he was giving up; that he did not plead guilty in response to any threats or promises; and that the facts alleged in the indictment, as stated by Justice Yates, were true. (Id.) At Barnes's request, Justice Yates adjourned sentencing for two months to allow Barnes to cooperate in another investigation. (Id. at 5.)

Within hours of the hearing, Barnes informed a Department of Probation investigator that he was not, in fact, guilty, and that he had been in his home at the time of the crime. (Id.)

III. Barnes's Motion to Withdraw His Guilty Plea

On June 7, 2005, Barnes moved, pro se, to withdraw his guilty plea, alleging that Cavet

(1) failed to provide Barnes with certain documents relating to discovery; (2) waived Barnes's right to appear before a grand jury without his consent; and (3) never informed Barnes of his right to appear at the persistent felony hearing. (See id.; Decl. in Opp'n to Pet. for a Writ of Habeas Corpus ("Decl. in Opp."), Ex. A.) On July 20, 2005, Barnes again moved to withdraw his plea, asserting ineffective assistance of counsel. (R&R at 5.) Barnes alleged that (1) he had informed his original counsel, "Mr. Benjamin" ("Benjamin") of the Legal Aid Society, on a number of occasions of his desire to testify in front of the grand jury, but that Benjamin advised against it; (2) Barnes repeatedly asserted his innocence to Benjamin, and his desire to go to trial; (3) Benjamin failed to provide Barnes with all the evidence, including police reports and 911 tapes; (4) Benjamin rarely met with Barnes to discuss the case; (5) he hardly ever saw Cavet, or had the opportunity to work on a defense; (6) both attorneys pushed him to plead guilty because of the evidence against him; and (7) Barnes eventually pleaded guilty because he believed he had no other choice and had lost confidence in his attorneys. (Id. at 5-6; Decl. in Opp, Ex. B.)

On August 15, 2005, Barnes, represented by newly assigned counsel, Saul Schwartzberg, raised his claims in a plea withdrawal hearing before Justice Yates. (R&R at 6.) After hearing testimony from Cavet, Justice Yates found that Barnes has been adequately represented, and that the plea allocution was sufficient, notwithstanding Barnes's subsequent assertions of innocence. (Id. at 7-8.) At sentencing, Justice Yates found Barnes to be a persistent violent felony offender, and sentenced him to twelve years to life imprisonment. (Id. at 8.)

IV. Barnes's Direct Appeal

Barnes appealed to the First Department, claiming that Justice Yates deprived him of his right to due process by failing to inquire into his innocence claim. (Id. at 8-9.) On September 18, 2007, the First Department unanimously affirmed Barnes's conviction, finding that Justice Yates did not abuse his discretion in denying Barnes's motion to withdraw his guilty plea. See People v. Barnes, 43 A.D.3d 704, 841 N.Y.S.2d 441 (1st ...


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