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Kenneth Ross v. Superintendent

May 15, 2013

KENNETH ROSS, PETITIONER,
v.
SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Pamela K. Chen, United States District Judge:

MEMORANDUM & ORDER

Kenneth Ross ("Petitioner") brings this pro se Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, attacking his 2005 state conviction for Murder in the First Degree. He claims that: (1) his plea of guilty in trial court was not knowing and voluntary; (2) the trial court should have ordered a competency examination; and (3) he received ineffective assistance from his trial counsel. Petitioner also moves for appointment of counsel in support of his petition. For the reasons set forth below, both the habeas petition and the motion to appoint counsel are DENIED.

BACKGROUND

I.Relevant Factual History

A.The Arrest and Indictment

On July 10, 2003, at approximately 7:00 p.m., in Apartment A3 of 1571 Sterling Place, Brooklyn, Petitioner stabbed and killed his brother, Frankie Ross, an amputee confined to a wheelchair, during an argument*fn1 (Affidavit in Opposition to Petition for a Writ of Habeas Corpus, Docket Entry 3 ("Resp't Br."), Ex. E at 2). When Ronald Scott, a friend of Ross, attempted to intervene, Petitioner stabbed Scott. Id. Petitioner was immediately apprehended outside of the apartment building where the stabbings took place. Id. Scott died from the injuries two months later. Petitioner was indicted on one count of Murder in the First Degree (N.Y. Penal Law § 125.27 [1][a][viii]), four counts of Murder in the Second Degree (N.Y. Penal Law 125.25[1]), two counts of Assault in the First Degree (N.Y. Penal Law §§ 120.5[1] and [2]), and Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law 265.01[2]). Id.

B. The Plea Proceeding

On November 9, 2005, Petitioner, represented by counsel, pled guilty to Murder in the First Degree, pursuant to an agreement with the prosecution that provided for Petitioner to receive the minimum sentence for murder in the first degree, twenty years to life (P. 9).*fn2 At the plea proceeding, Petitioner conceded that he intentionally stabbed his brother, Frankie Ross, and his friend, Ronald Scott, with the intention of killing them (P. 10-12). When asked why he had committed these acts, Petitioner told the court that he was "upset" (P. 12-13). Petitioner could not recall why he was upset with his victims because he was "using drugs at the time of the incident," but acknowledged that he wanted to kill the two men. Id.

Petitioner also acknowledged at the plea proceeding that he desired to plead guilty, that he had conferred with his attorney and was satisfied with his attorney's representation, and that he understood the nature of the charges and the purpose of the proceedings (P. 15, 17-18). In response to the court's attempt to determine Petitioner's mental status, Petitioner replied that he was taking psychoactive medication as prescribed by his physician, but that he had not taken any unprescribed medication or consumed alcohol in the preceding twenty-four hours (P. 14-15). He confirmed that he was feeling physically and mentally healthy and understood the proceedings (P. 14-15, 21).

Petitioner also acknowledged that his plea was the product of his own free will and that he had not been threatened or compelled to plead guilty (P. 17-18). The court inquired whether Petitioner understood that he could be prosecuted for perjury if he violated his oath to tell the truth during his allocution (P. 19). Initially, Petitioner stated that he did not; after conferring with counsel, however, Petitioner stated that he understood, and then declined the opportunity to change or "take back" any of his prior statements (P. 20).

Petitioner was fully advised of the nature of the charges against him and of the rights he was waiving by entering a guilty plea, including his right to appeal (P. 15-22). Petitioner signed a Waiver of Right to Appeal after discussing it with his attorney (P. 21-22). In response to questions from the court, Petitioner's counsel noted that it was his professional opinion that Petitioner knowingly and voluntarily waived his right to appeal (P. 23). Petitioner again confirmed that he understood the charges against him and that he desired to plead guilty to Murder in the First Degree (P. 23).

C.The Sentencing

On November 30, 2005, Petitioner appeared for sentencing, accompanied by the same attorney who had represented him at the plea proceeding (S. 2). Petitioner's attorney stated that Petitioner "wanted his plea back" because he felt the sentence was "too severe" (S. 3). The court, responded that, "[a] change of heart as to whether the agreed upon sentence is acceptable is not sufficient ground to grant a motion to withdraw a plea of guilty" (S. 3).

Later, defense counsel noted that Petitioner was "a little impaired" as a result of brain injuries he had sustained earlier in his life and a long history of psychiatric problems, and requested that the court recommend Petitioner undergo psychiatric treatment while incarcerated (S. 7). The court granted the request and, as promised, sentenced the Petitioner to twenty years' to life (S. 8).

D. Direct Appeal

Petitioner appealed his conviction to the New York Supreme Court, Second Department, on the ground that his plea of guilty was not knowing and voluntary. People v. Ross, 52 A.D.3d 624, 861 N.Y.S.2d 69 (2008). In support of his claim, Petitioner argued that the trial court had not sufficiently explored whether Petitioner understood that by pleading guilty he was waving the potential affirmative defenses of extreme emotional disturbance and intoxication (App't Br. 7-8).*fn3

The Appellate Division affirmed Petitioner's conviction, holding that: (1) Petitioner's claim was unpreserved for appellate review because Petitioner had not previously moved to withdraw his plea; and (2) in any event, the record established that the plea was knowing and voluntary, and that the trial court therefore was not required to inquire further into the affirmative defenses. Id. at 624, 69-70.

On August 22, 2008, Petitioner's application for leave to appeal to the New York Court of Appeals was denied. People v. Ross, 11 N.Y.3d 741, 864 N.Y.S.2d 339 (2008).

E. State Collateral Attack - § 440 Motion to Vacate

Petitioner filed a pro se motion in New York Supreme Court (Kings County) to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ยง 440.10 on the grounds that: (1) the court erred in ...


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