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Mills v. Lempke

United States District Court, W.D. New York

April 13, 2015

ROBERT MILLS, Petitioner,
v.
JOHN LEMPKE, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Proceeding pro se, Robert Mills ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a judgment, entered against him on October 5, 2010, in Erie County Court (D'Amico, J.) of New York State, convicting him, following a guilty plea, of one count of Manslaughter in the First Degree (N.Y. Penal Law ("P.L.") § 125.20(1)).

II. Factual Background and Procedural History

Under Erie County Indictment No. 01282-2010, Petitioner was charged with two counts of Murder in the Second Degree (P.L. § 125.25(1), (3)) and one count of Robbery in the First Degree (P.L. § 160.15(3)). The charges stemmed from Petitioner's alleged involvement in the fatal stabbing of Anthony Locasio ("the victim") on May 14, 2010, in the City of Buffalo.

On September 14, 2010, Petitioner pleaded guilty to one count of first degree manslaughter in full satisfaction of the indictment. As part of the plea, Petitioner waived his right to appeal. On October 5, 2010, Petitioner was sentenced to a determinate term of 22 years to be followed by 5 years of post-release supervision.

Represented by new counsel, Petitioner filed a timely notice of appeal in the Appellate Division, Fourth Department, of New York State Supreme Court ("the Fourth Department").

On December 6, 2011, Petitioner filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in Erie County Court, arguing that he was denied the effective assistance of counsel because his attorney (1) failed to raise a justification defense; (2) provided "false" information that the victim had been stabbed multiple times; (3) provided "false" information that Petitioner was unlikely to be released on parole if he were convicted and sentenced to 25 years to life; and (4) failed to request a hearing to challenge Petitioner's inculpatory statements to the police on the basis he was represented by counsel on an unrelated charge at the time of the interrogation. The Erie County District Attorney's Office opposed the motion in papers dated March 11, 2012. On April 12, 2012, Erie County Court Judge Michael L. D'Amico ("the 440 Court") denied the motion as without merit. Leave to appeal was denied on September 21, 2012.

On November 30, 2012, Petitioner, on the advice of counsel, signed a Stipulation of Discontinuance with regard to his unperfected direct appeal in the Fourth Department. The appeal subsequently was dismissed on December 13, 2012.

Petitioner filed a second pro se C.P.L. § 440.10 motion, again arguing that trial counsel was ineffective for providing "false" information that the victim had been stabbed multiple times, and providing "false" information regarding Petitioner's likelihood of parole if convicted after a trial on all counts in the indictment. The prosecution filed an affidavit in opposition on September 18, 2013, and the 440 Court denied the motion on November 22, 2013. The 440 Court agreed with the prosecutor that the motion should be dismissed pursuant to C.P.L. § 440.10(3)(b), which allows a court to deny a C.P.L. § 440.10 motion where the grounds were asserted in a prior C.P.L. § 440.10 motion and found to be without merit, and there has been no retroactively effective change in the law controlling the previously asserted issues. The 440 Court alternatively rejected the claims as without merit, finding no proof either that defense counsel made misrepresentations regarding the state of the law or that he attempted to coerce Petitioner into pleading guilty. Petitioner did not seek leave to appeal.

Petitioner filed the instant habeas petition on March 3, 2014, asserting the following grounds for relief: (1) his guilty plea was not knowing, voluntary and intelligent because of trial counsel's erroneous advice; (2) trial counsel was ineffective for failing to raise a justification defense; (3) trial counsel was ineffective for failing to request a hearing to test the admissibility of his statements to the police; and (4) appellate counsel was ineffective for advising Petitioner to discontinue his direct appeal. Respondent filed an answer and opposition memorandum of law on June 26, 2014. Petitioner did not file a traverse.

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

III. Discussion

A. Ineffective Assistance of ...


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