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Varner Harris, Jr v. Norman R. Bezio

September 12, 2012

VARNER HARRIS, JR., PETITIONER,
v.
NORMAN R. BEZIO,
SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge Dated: Rochester, New York

DECISION AND ORDER

I. Introduction

Pro se petitioner Varner Harris, Jr. ("Harris" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention in Respondent's custody. Harris is incarcerated as the result of a judgment of conviction entered against him in Erie County Court of New York State following his guilty plea to charges of first degree murder and attempted first degree murder in connection with the shooting of two police officers, one of whom was left permanently disabled.

II. Factual Background and Procedural History

Harris was charged on January 11, 2007, in an eleven-count indictment with two counts of attempted aggravated murder (N.Y. Penal Law ("P.L.") §§ 110.00/125.26(a)(i)); four counts of attempted first degree murder (P.L. §§ 110.00/125.27(a)(i), (a)(vii)); and one count each of aggravated assault on a police officer (P.L. § 120.11); first degree assault (P.L. § 120.10(1)); attempted aggravated assault on a police officer (P.L. § 110.00/120.11); second degree assault (P.L. § 120.05(2)); and second degree criminal possession of a weapon (P.L. § 265.03(3)).

Following a Huntley*fn1 hearing held in Erie County Supreme Court (Wolfgang, J.), Petitioner's motion to suppress his statements to the police was denied. Due to Petitioner's extensive history of mental illness, three psychiatrists examined him to evaluate his competency to participate in his own defense. The opinions of the psychiatric experts were unanimous that Petitioner was not mentally incompetent.

On September 17, 2007, Petitioner elected to plead guilty to two counts of attempted first degree murder (counts three and four of the indictment). The trial court committed to sentencing Petitioner to an aggregate term of 30 years to life, and on November 19, 2007, Petitioner was sentenced accordingly.

On appeal to the Appellate Division, Fourth Department, of New York State Supreme Court, Petitioner argued that his waiver of appellate rights was invalid; the trial court erroneously refused to suppress his statements to the police; and the sentences were unduly harsh and severe and should be modified in the interests of the justice. The Appellate Division unanimously affirmed the conviction on April 30, 2010. People v. Harris, 72 A.D.3d 1624, 899 N.Y.S.2d 686 (4th Dept. 2010). The New York Court of Appeals denied leave to appeal on July 8, 2010. People v. Harris, 15 N.Y.3d 774 (2010).

This timely habeas petition followed in which Petitioner raises the following grounds for habeas relief: (1) his waiver of appellate rights was invalid; (2) his guilty plea was involuntary;

(3) his statements to the police were involuntary; (4) his Fourth Amendment right to be free from unreasonable searches and seizures was violated; and (5) the trial court abused its discretion in sentencing.

For the reasons that follow, the request for a writ of habeas corpus is denied, and the petition is dismissed.

III. Discussion

A. Ground One: Invalid Waiver of Appellate Rights

Petitioner argues, as he did on direct appeal, that because he did not specifically allocute to the terms of the waiver of appellate rights, the waiver was invalid and review of his Miranda*fn2 and sentencing claims was permitted. The Appellate Division only tangentially referred to this claim, assuming without deciding that Petitioner's waiver of the right to appeal was not knowingly, voluntarily and intelligently entered under state law. People v. Harris, 72 A.D.3d at 1624 (citing People v. Lopez, 6 N.Y.3d 248, 256-57 (2006) ("[W]e conclude that the record does not demonstrate that defendant understood she was relinquishing a known right and that her waiver was thus invalid. During the colloquy, the trial court explained to defendant that 'when you plead guilty you waive your right of appeal.' This misleading statement, when accompanied by nothing other than defendant's one-word response to the question whether she understood the ...


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