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Dana Garner v. Superintendent

September 10, 2012


The opinion of the court was delivered by: Glenn T. Suddaby United States District Judge



Petitioner Dana Garner is incarcerated as the result of a 2009 judgment of conviction in Oneida County Court. Petitioner pleaded guilty to attempted second degree burglary (N.Y. PENAL LAW § 110.00/140.25). Dkt. No. 1, Petition ("Pet.") at 2. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) the county court lacked jurisdiction; (2) his plea was induced by defense counsel's threats and misinformation; (3) counsel placed his own interests before petitioner's interests when he denied the truth of petitioner's version of events and attacked petitioner's credibility; and (4) counsel was ineffective. Pet. at 7-8 (Grounds One through Four); Dkt. No. 7-1, Memorandum of Facts and Memorandum of Law ("Mem."), at 1-12; Dkt. No. 8, Supplement to Memorandum of Law ("Supp. Mem.") at 1-3.

On April 19, 2011, respondent filed an answer, memorandum of law and the relevant state court records. Dkt. No. 12, Response; Dkt. No. 13, Respondent's Memorandum of Law, ("R. Mem."); Dkt. No. 14, State Court Records.*fn1 Petitioner has filed a reply, a supplemental reply, and a supplemental affidavit. Dkt. No. 17, Reply Brief; Dkt. No. 18, Supplemental Reply ("Supp. Reply"); Dkt. No. 29, Supplemental Affidavit ("Supp. Affidavit"). For the reasons that follow, the petition is denied and dismissed.


On May 21, 2009, a felony complaint was filed in Rome City Court accusing petitioner of committing second degree burglary (N.Y. PENAL LAW § 140.25 (2)). Dkt. No. 14, Ex. D, Felony Complaint. The complaint arose from petitioner's involvement in the February 21, 2009 burglary of a home belonging to Damon M. Parmeter in Rome, New York. Id; Dkt. No. 14, Ex. A, Supporting Deposition of Damon Parmeter ("Parmeter Dep."). A 42-inch television, a Playstation 3 gaming system, two Playstation 3 games, and an HDMI cord were removed from Parmeter's home. Parmeter Dep. On February 25, 2009, David A. Davis bought the 42-inch television from petitioner for $600.00. Dkt. No. 14, Ex. B, Supporting Deposition of David Davis ("Davis Dep."); Ex. C, Supporting Deposition of Jason Davis. Petitioner told Davis his landlord gave him the television as payment for work petitioner did for him. Davis Dep. Davis did not know the television was stolen. Id. Petitioner also made admissions to law enforcement. Dkt. No. 14, Ex. O, Letter from Frank Nebush, Jr., Esq., to petitioner, dated Apr. 8, 2010 ("Nebush Letter"), at 1; Dkt. No. 7-1, Mem. at 1-5.

On July 13, 2009, petitioner signed a Memorandum of Understanding ("MOU") in which he accepted the prosecutor's offer to plead guilty to the reduced charge of attempted second degree burglary in exchange for a determinate sentence of five years in prison, followed by five years postrelease supervision. Dkt. No. 1, MOU, Jul. 13, 2009; Nebush Letter. He also agreed to be sentenced as a second violent felony offender, and waived speedy trial concerns "for a reasonable time," waived the right to have the case presented to the grand jury, and waived his right to appeal. Id. Sentencing was scheduled for mid-October 2009, and petitioner was permitted to remain free on his own recognizance until sentencing in order to complete a construction job. Id.

On August 12, 2009, petitioner waived a felony preliminary hearing in Rome City Court and agreed to have his case transferred to the Oneida County Superior Court. Dkt. No. 14, Ex. F, Divestiture to Superior Court; Nebush Letterat 2. On August 31, 2009, petitioner pleaded guilty under the terms of the MOU, and he was sentenced on October 19, 2009, to the agreed upon sentence. Dkt. No. 14, Ex. I, Decision and Order, Donalty, J., Apr. 19, 2010 ("Decision I"), at 1. On October 23, 2009, petitioner's counsel filed a timely notice of appeal, but to date petitioner has not perfected his direct appeal. Id.; Dkt. No. 29, Decision and Order, Appellate Division, Fourth Department, Aug. 3, 2012.*fn2

On February 22, 2010, petitioner filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 in which he argued that: (1) Oneida County Court lacked jurisdiction when he pleaded guilty because he was arraigned in Rome City Court, a felony hearing was still pending there, and the waiver of his right to be indicted by a grand jury was signed in his attorney's office and not in open court; and (2) he pleaded guilty under duress because his attorney told him he faced up to fifteen years in prison if he did not accept the plea. Dkt. No. 14, Ex. G, "Affidavit in Support of Motion to Vacate Judgment 440.10(a)(h)" at ¶¶ 5-17. The prosecutor opposed the motion. Ex. H, Affirmation, Steven G. Cox, Assistant District Attorney, Oneida County, Apr. 7, 2010.

On April 19, 2010, petitioner's section 440 motion was denied without a hearing. Decision I. The court first denied the motion pursuant to CPL § 440.10(2)(b), because petitioner's claims were record-based and although petitioner filed a timely notice of appeal, he had not yet perfected his direct appeal. Id. at 2. Alternatively, the court rejected petitioner's claims that his plea was entered under duress, and that counsel was ineffective, on the merits. Id. at 2-7. First, the court found that petitioner "freely, knowingly and voluntarily agreed to waive" his rights, and admitted the factual allegations that formed the basis of the charge against him. Id. at 2-3. Petitioner was represented by counsel, informed of his rights on the record, and there was no "indication of duress and coercion on the record." Id. The court also noted that petitioner "had an opportunity to place sufficient facts on the record to provide a basis for appellate review" before sentencing, but that he failed to do so. Id. at 3.

Next, the court found that counsel's representation of petitioner was "nothing other than effective and was more than meaningful." Decision I at 3. The court noted that the maximum sentence petitioner faced was fifteen years in prison if he was convicted of second degree burglary, and that his plea to the reduced charge of attempted second degree burglary, together with the negotiated five-year determinate sentence, was favorable to petitioner. Id. at 4. Finally, the court found that petitioner failed to show that but for counsel's alleged errors, he would not have pleaded guilty. Id. at 5-6.

On May 10, 2010, petitioner sought leave to appeal the denial of his section 440 motion in the Appellate Division, Fourth Department. Dkt. No. 14, Ex. J, "Notice of Application" and "Affidavit in Support of Motion Pursuant to C.P.L. 460.15." In his affidavit, petitioner argued that the Oneida County Court lacked jurisdiction; the judgment was obtained in violation of his rights; the prosecutor failed to conduct a preliminary hearing in order to circumvent petitioner's rights; and the evidence was insufficient. Id. at 1-2. On June 22, 2010, the Appellate Division denied leave to appeal. Dkt. No. 14, Ex. K, Order denying Leave to Appeal, Jun. 22, 2010. Petitioner's application for permission to appeal to the New York Court of Appeals was dismissed on August 19, 2010 because the Appellate Division's order was not appealable. Dkt. No. 14, Ex. L, Certificate Dismissing Application, Graffeo, J., Aug. 19, 2010.

On August 30, 2010, petitioner filed a second section 440 motion in which he argued that his plea was the product of counsel's threats and misinformation; that counsel placed his interests above petitioner's by denying the truth of petitioner's allegations and attacking petitioner's credibility; and counsel was ineffective for advising him to plead guilty when an investigation would have shown that there was no evidence to support the charges. Dkt. No. 14, Ex. M, "Notice of Motion to Vacate Judgment 440.10" and "Affidavit in Support of Motion to Vacate Judgment." On September 8, 2010, the state court denied the motion pursuant to CPL ยง 440.10(2)(b), again noting that petitioner "filed a timely Notice of Appeal within thirty days of the date of conviction," that he waived his right to appeal, and that section 440 motions were not substitutes for appeal. Dkt. No. 14, Ex. N, Decision and Order, Donalty, J., Sept. 8, 2010 ("Decision II") at 2. The court further found that petitioner was advised of his rights, "freely, knowingly and voluntarily agreed to waive them," and that he admitted "the factual allegations which form[ed] the basis for the charges in the indictment." Id. at 2. ...

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