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Darnell J. Cummings v. James Conway

June 23, 2011

DARNELL J. CUMMINGS,
PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



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

04-B-2123,

DECISION AND ORDER

I. Introduction

Pro se petitioner Darnell Cummings ("petitioner") seeks relief pursuant to 28 U.S.C. § 2254 alleging that his conviction of four counts of Robbery in the First Degree(N.Y. Penal L. § 160.15(4)) and one count of Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)) in Monroe County Supreme Court was unconstitutionally obtained. Petitioner pleaded guilty on May 27, 2004, before Justice Joseph D. Valentino. He was subsequently sentenced to fourteen years of imprisonment with five years of post-release supervision.

II. Factual Background and Procedural History

The challenged conviction stems from an incident that occurred on August 8, 2003, wherein petitioner, armed with a loaded handgun, forcibly stole money from three people at an auto parts store in Rochester, New York. In attempting to flee, petitioner stole a vehicle from a woman, at whom he pointed the same handgun. Plea Tr. dated 5/27/2004 at 7-17.

Petitioner pleaded guilty to the indictment charging him with four counts of first-degree robbery and one count of second-degree weapon possession in exchange for a fourteen-year sentence.*fn1 Plea Tr. dated 5/27/2004 at 2-18. Petitioner did not move to withdraw his plea prior to or at the sentencing proceeding on August 3, 2004. Petitioner was adjudicated a second felony offender and was sentenced to the agreed-upon term of imprisonment of fourteen years. Sentencing Tr. dated 8/3/2004 at 8.

Following his conviction, petitioner's appellate counsel filed a brief in the Appellate Division, Fourth Department, raising the sole ground that the petitioner's sentence was harsh and excessive. The Appellate Division unanimously affirmed the judgment of conviction. People v. Cummings, 48 A.D.3d 1074 (4th Dept.), lv. denied, 10 N.Y.3d 861 (2008).

Prior to perfecting his appeal, petitioner moved pro se in state court to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10. See Resp't Appx. F. The grounds alleged therein were: (1) defense counsel coerced petitioner's guilty plea, knowing that he was mentally incompetent; and (2) the identification evidence was suggestive. Id. The state supreme court denied petitioner's motion on procedural grounds.*fn2

See Decision and Order, Supreme Court, Monroe County (Valentino, J.), Indictment No. 2003-0461, dated 10/20/2006 (Resp't Appx. H). Leave to appeal that decision was denied by the Fourth Department on June 19, 2007. Resp't Appx. I.

Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that he was denied the right to effective assistance of trial and appellate counsel. For the reasons that follow, the petition is dismissed.

III. Discussion

A. Timeliness

The respondent has asserted the defense of ...


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