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Monroe v. Rock

United States District Court, W.D. New York

March 29, 2017

TYRONE MONROE, Petitioner,
v.
DAVID ROCK, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, United States District Judge

         I. Introduction

         Presently before the Court is the motion to vacate the judgment and to appoint counsel by pro se habeas petitioner Tyrone Monroe (“Monroe” or “Petitioner”). For the reasons discussed herein, the motion to vacate is granted, the petition is reinstated, and the request for a writ of habeas corpus is denied on the merits. The motion to appoint counsel is denied as moot.

         II. The Motion to Vacate and to Appoint Counsel

         On July 15, 2009, while represented by retained counsel (“Habeas Counsel”), Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a Decision and Order entered May 10, 2011, this Court found that Habeas Counsel filed the instant petition after the one-year limitations period under 28 U.S.C. § 2244(d)(1) had expired on October 4, 2008. The Court further found that Petitioner did not have sufficient statutory tolling under 28 U.S.C. § 2244(d)(2), and that he was not entitled to have the limitations period equitably tolled. Accordingly, the Court dismissed the petition as untimely, and judgment was entered in Respondent's favor on May 11, 2011. Petitioner did not appeal to the Second Circuit, due to the fact that he apparently was not timely informed by Habeas Counsel of this Court's dismissal of the petition.

         Petitioner, acting pro se, has filed a letter seeking to “get back [into Court] to be able to have [his] petition heard” and to be “appointed an attorney to help [him] get back in court[.]” (Dkt #10, p. 1 of 2). The Court has construed this letter as a motion to appoint counsel and a motion to vacate the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”). Petitioner has submitted copies of correspondence (Dkt #11, pp. 4-5 of 18) from the Departmental Disciplinary Committee for the Supreme Court, Appellate Division, First Judicial Department (“the Disciplinary Committee”) dated March 1, 2016, in response to his complaint against Habeas Counsel, who, at the time she represented Petitioner, had offices in New York City. Following its investigation, the Disciplinary Committee found that Habeas Counsel violated New York Rules of Professional Conduct (“NY RPC”) 1.4(a)(iii) and 1.16(3) by (1) failing to promptly inform Petitioner that his habeas corpus petition had been dismissed as time-barred and, (2) even after he filed a complaint against her and requested a copy of the decision, failing to send him one. The Disciplinary Committee stated that Habeas Counsel had no records to support her contention that she had promptly notified Petitioner by mail, and his grandmother by telephone call, that the petition had been dismissed in May of 2011. As a consequence of these failures, Habeas Counsel received an “admonition” from the Disciplinary Committee.

         In addressing the arguments raised now by Petitioner, the Court is mindful that “the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” The Court accordingly interprets Petitioner's motion as arguing that he is entitled to vacatur due to Habeas Counsel's professional failures, based on Rule 60(b)(6), which permits relief from judgment “where there are extraordinary circumstances, or where the judgment may work an extreme and undue hardship, and should be liberally construed when substantial justice will thus be served.” United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir. 2009) (quotation omitted). The Court additionally construes Petitioner's motion as arguing that Habeas Counsel's professional failures constitute “extraordinary circumstances” warranting equitable tolling of the one-year statute of limitations applicable to Section 2254 petitions, so as to render the petition timely. See, e.g., Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011) (“Instances which justify equitable tolling include . . . an attorney's failure to file a habeas petition on behalf of a prisoner, despite explicit directions from the prisoner to do so[.]”) (internal and other citations omitted). In the interest of judicial economy, the Court has assumed without deciding that vacatur of the judgment is warranted, and that the statute of limitations should be equitably tolled, in order to reach the merits of the sole ground for relief raised in the petition-that Petitioner's assigned trial counsel provided ineffective assistance in connection with plea discussions. Because Respondent fully briefed the merits of Petitioner's habeas claim when he originally answered the petition and asserted the defense of untimeliness, the petition may be deemed submitted and ready for decision.

         Because the Court is granting Petitioner's motion to vacate, and re-opening his Section 2254 proceeding, Petitioner does not require the assistance of counsel to “help [him] get back in court[.]” Therefore, Petitioner's motion to appoint counsel is denied.

         For the reasons discussed below, the Court finds that Petitioner is not entitled to habeas relief. The request for a writ of habeas corpus is denied, and the petition is dismissed.

         III. Factual Background

         A. The Indictments

         There are three indictments returned by Monroe County grand juries against Petitioner that have relevance to the factual background of the instant petition. First, Indictment #2003/663 charged Petitioner with Assault in the First Degree, Assault in the Second Degree, and two counts of Criminal Possession of a Weapon in the Second Degree, which allegedly were committed on July 22, 2003, and August 15, 2003, and involved the same victim, Derrick Thompson. Second, Indictment #2003/641 charged Petitioner with two counts of Robbery in the First Degree, which allegedly were committed on September 26, 2003, and September 27, 2003; these charges were unrelated to the charges involving Thompson. A third indictment, #2004/118, charged Petitioner with Criminal Possession of a Controlled Substance in the Third Degree (“CPCS-3rd”), and Criminal Possession of a Controlled Substance in the Fourth Degree (“CPCS-4th”); both counts were alleged to have been committed on October 1, 2003.

         On December 22, 2003, arraignment on Indictment #2003/641 and Indictment #2003/663 was held before Hon. John R. Schwartz, Acting County Court Judge, Monroe County Court of New York State (Transcript of 12/22/03 Hearing, Dkt #1-2, pp. 2-5 of 84). Petitioner appeared with his assigned counsel, Mark D. Funk, Esq. (“Defense Counsel”) and entered pleas of “not guilty” to all counts of both indictments.

         On March 1, 2004, Petitioner appeared with Defense Counsel before Judge Schwartz (Transcript of 3/1/04 Hearing, Dkt #1-2, pp. 7-12 of 84) and entered pleas of “not guilty” to the charges in Indictment #2004/118. Also on that date, Defense Counsel placed on the record the status of the off-the-record plea discussions between himself, Assistant District Attorney Finocchio (“the Prosecutor”), and Judge Schwartz with regard to the charges in Indictment #2003/663. Defense Counsel noted that at the last court appearance, Judge Schwartz said that if Petitioner were to plead guilty with regard to Indictment #2003/663, the judge would make a sentence promise of 20 years to life.[1] Defense Counsel stated that he had discussed the plea offer with Petitioner, as well as the fact that with the filing of Indictment #2004/118, Petitioner now had five separate felony charges pending against him which carried potential indeterminate sentences with life in prison as the maximum term, and for which consecutive sentences could be imposed. Defense Counsel indicated that Petitioner did not wish to accept that plea offer.

         At some point, Indictment #2003/663 was re-assigned to Monroe County Court Judge Patricia D. Marks, for trial. After a jury trial, Petitioner was convicted of Assault in the First Degree and ...


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