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Gary Blanc Clark v. Superinte Ndent of Cayuga Correctional Facility

June 11, 2012

GARY BLANC CLARK, PETITIONER,
v.
SUPERINTE NDENT OF CAYUGA CORRECTIONAL FACILITY 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 Gary Blanc Clark ("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 October 19, 2009, in New York State, County Court, Orleans County, convicting him, upon his guilty plea, of Attempted Criminal Sale of Controlled Substance in the Third Degree (N.Y. Penal Law ("Penal Law") § 220.39[1]). Petitioner was sentenced to a determinate term of imprisonment of five and one-half years, plus two years of post-release supervision.

II. Factual Background and Procedural History

A. Introduction

On April 6, 2009, an Orleans County Grand Jury charged Petitioner with one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) and one count of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). The charges arose from an incident that occurred on March 4, 2009, wherein the Orleans County Major Felony Crime Task Force conducted an undercover drug investigation during which Petitioner sold crack cocaine to an undercover police agent.

B. Plea & Sentencing

On August 3, 2009, Petitioner, along with his counsel, appeared before the Hon. James P. Punch in the Orleans County Court. Petitioner agreed to enter a plea of guilty to a single count of Attempted Criminal Sale of a Controlled Substance in the Third Degree. Plea Mins. [P.M.] 2. Petitioner admitted that on March 4, 2009, he was in possession of and sold cocaine in Medina, New York. P.M. 5. The court accepted his guilty plea. P.M. 6.

On October 19, 2009, the court sentenced Petitioner to a determinate prison term of five and one-half years, plus two years of post-release supervision. Sentencing Mins. [S.M.] 5.

C. The Motions to Vacate the Judgment of Conviction and Set Aside the Sentence

On or about January 19, 2010, Petitioner moved to vacate the judgment, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. In a form motion, Petition listed the following grounds for relief:

(1) "[j]udicial [m]isconduct harsh and excessive sentencing, bias judgment, as proven in the sentencing minutes and transcript"; and

(2) "[i]neffective counsel - co[]erced to accept a plea in fear that the attorney and [I] would lose trial, by admission of the Attorney Scott R[.] Stopa, ESQ[.]" Resp't Ex. C.

Also on or about January 19, 2010, Petitioner filed a motion to set aside the sentence, pursuant to CPL ยง 440.20. In a form motion, he listed the following grounds for relief: "ineffective ...


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