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Banner v. Griffin

United States District Court, E.D. New York

January 31, 2017

Damon C. Banner, Petitioner,
v.
Thomas Griffin, Respondent.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge

         On June 24, 2016, Damon Banner (“petitioner” or “Banner”) petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, challenging his convictions pursuant to his guilty plea in New York State Court for attempted second-degree murder and third-degree arson. (Pet. for Habeas Corpus (“Pet.”), ECF No. 1.) The court initially sentenced him to a determinate term of sixteen years' imprisonment on the attempted murder conviction and a determinate term of three-and-a-half years' imprisonment on the arson conviction, to be served concurrently. On realizing that New York law does not authorize determinate terms on third-degree arson convictions, the court resentenced petitioner to an indeterminate term of one to three years on that conviction, still to be served concurrently with his sentence for second-degree attempted murder.

         In this habeas petition, Banner challenges his conviction on the following grounds: (1) the police violated his Fourth Amendment right to be free from unreasonable searches and seizures; (2) he was denied a fair suppression hearing because his counsel was ineffective; (3) the trial court lacked jurisdiction to accept a plea on an offense that was not charged in the indictment; and (4) he was improperly resentenced in abstentia. He also incorporates by reference claims he raised in his application for a writ of error coram nobis with the New York Supreme Court, Appellate Division. Respondent Thomas Griffin, Superintendent of the Green Haven Correctional Facility, has moved to dismiss the petition, arguing that it is untimely. For the reasons that follow, this Court grants respondent's motion to dismiss.

         I. Background

         The Court has adduced the following facts from the petition and the Affidavit in Support of Respondent's Motion to Dismiss the Petition for a Writ of Habeas Corpus. (ECF No. 5 at i-x (“Resp.'s Aff.”).)

         A. Facts

         On December 5, 2011, a Nassau County grand jury indicted petitioner on one count of attempted murder in the first degree, one count of criminal use of a firearm in the second degree, one count of menacing a police officer, one count of conspiracy in the fourth degree, two counts of criminal possession of a weapon in the second degree, one count of criminal possession of a weapon in the fourth degree, three counts of criminal possession of stolen property in the fifth degree, and thirteen counts of criminal possession of stolen property in the fifth degree, all in connection with a shooting and police chase that occurred on November 7, 2011. (Resp.'s Aff. ¶ 8.) Later, on February 15, 2012, the grand jury indicted him on one count of third-degree arson in connection with the burning of a rented vehicle on October 26, 2011. (Id.)

         The case went to trial, but, during a recess, petitioner accepted a plea offer, pleading guilty to one count of attempted second-degree murder and one count of third-degree arson. (Id. ¶¶ 9-10; Pet. at 1.) When he pleaded guilty, petitioner acknowledged that he committed the charged offenses (Resp.'s Aff. ¶ 10; State Court Record, Plea Minutes, ECF No. 6-29 (“Plea Minutes”), at 6-7), and, at his sentencing hearing on August 8, 2012, the court sentenced him to a determinate term of sixteen years' imprisonment on the attempted murder conviction and a determinate term of three-and-a-half years' imprisonment on the arson conviction, to be served concurrently. (Resp.'s Aff. ¶ 11.) The court later realized that determinate terms are not authorized under New York law for arson convictions and, therefore, on September 28, 2012, resentenced petitioner on that conviction to an indeterminate term of one to three years' imprisonment, to be served concurrently with his second-degree murder sentence. (Id. ¶ 12.) Petitioner was not present at the September 28 hearing. (See Pet. at 5.)

         On November 11, 2013, petitioner collaterally attacked his conviction by filing a New York Criminal Procedure Law (“C.P.L.”) § 440.10 motion to vacate the judgment of conviction on the grounds that his guilty plea was involuntary and his allocution insufficient. (Pet. at 3; Resp.'s Aff. ¶ 13.) The New York Supreme Court denied the motion on January 30, 2014. (Resp.'s Aff. ¶ 13.) Petitioner sought leave to appeal this decision, but the Second Department denied him leave to appeal on July 3, 2014. (Id.) It also denied his subsequent motion for reargument on December 11, 2014. (Id.) He did not seek leave to appeal the decision on his reargument motion to the New York Court of Appeals. (See id.)

         Petitioner also filed a direct appeal of his conviction with the Second Department, [1] arguing that the guilty plea was defective because he did not admit to the essential element of intent to kill and the court did not question him about his mental health. (Pet. at 2; Resp.'s Aff. ¶ 14.) Petitioner also filed two supplemental briefs-once through counsel and once pro se-arguing that the resentencing was defective because only counsel was present. (Resp.'s Aff. ¶ 14.) The Second Department rejected the supplemental briefs and subsequently affirmed his convictions on November 5, 2014. See People v. Banner, 122 A.D.3d 641 (2d Dept. 2014). Petitioner did not seek leave to appeal this decision to the New York Court of Appeals. (See Pet. at 2; Resp.'s Aff. ¶ 15.)

         On January 4, 2016, petitioner filed two collateral attacks on his convictions in the New York Supreme Court. (Id. ¶ 16; Pet. at 3.) In the first, filed as a motion to vacate the judgment under C.P.L. § 440.10, petitioner asserted that the indictment and guilty plea were defective, he received ineffective assistance of counsel, and the court erred at his sentencing and resentencing. (Resp.'s Aff. ¶ 17.) The court denied this motion on March 17, 2016, and the Second Department denied him leave to appeal on July 22, 2016. (Id.) In the second challenge, filed as a coram nobis application under C.P.L. § 440.30 before the Second Department, petitioner claimed he received ineffective assistance of appellate counsel on direct appeal, arguing that counsel failed to argue that (1) the plea was defective because murder in the second degree is not a lesser included offense of murder in the first degree; (2) the resentencing was defective because petitioner was absent; (3) petitioner did not receive a meaningful opportunity to be heard at his first sentencing; and (4) the police violated petitioner's Fourth Amendment rights during their investigation. (Id. ¶ 18; Pet. at 3.) Petitioner further contends that appellate counsel was ineffective for failing to seek leave to appeal to the Court of Appeals. (Pet. at 4; Resp.'s Aff. ¶ 18.) The Second department denied petitioner's coram nobis application on May 11, 2016. See People v. Banner, 139 A.D.3d 869 (2d Dept. 2016). Leave to appeal this denial to the Court of Appeals was denied on August 5, 2016. See People v. Banner, 28 N.Y.3d 926 (2016).

         B. Procedural History

         Petitioner filed his petition for a writ of habeas corpus on June 24, 2016. (ECF No. 1.) Respondent filed his motion to dismiss on August 2, 2016, arguing that the petition is untimely. (ECF No. 5.) Petitioner filed a reply in opposition to the motion on August 22, ...


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