Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brasington v. Sticht

United States District Court, N.D. New York

January 2, 2018

CHARLES A. BRASINGTON, Petitioner,
v.
THOMAS J. STICHT, Superintendent, Wyoming Correctional Facility, Respondent.

          DECISION AND ORDER

          Lawrence E. Kahn U.S. District Judge

         I. INTRODUCTION

         Petitioner Charles A. Brasington filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that trial counsel rendered constitutionally ineffective assistance of counsel. Dkt. No. 1 (“Petition”) at 4. Respondent opposes the Petition. Dkt. Nos. 7 (“Memorandum”), 7-1 (“Answer”). For the reasons that follow, the Petition is denied.

         II. BACKGROUND

         On January 4, 2016, Petitioner appeared with defense counsel in the Chenango County Court regarding three indictments against him, two of which had been consolidated, and entered into a negotiated plea agreement. Dkt. No. 8 (“State Court Records”) at ¶ 11, Ex. A. Under its terms, Petitioner agreed to plead guilty to one count each of second-degree grand larceny and third-degree grand larceny with respect to the consolidated indictment, as well as one count of second degree bail jumping with respect to the separate indictment. Id. at ¶ 11-13. In exchange, Petitioner would be sentenced as a predicate felon to an indeterminate term of four to eight years' imprisonment on the second degree grand larceny count, to run consecutively with a sentence of three to six years' imprisonment on the third degree grand larceny count. Id. at ¶ 11-12. Petitioner would be sentenced to an indeterminate term of one-and-a-half to three years imprisonment on the bail jumping count, and that sentence would run concurrently with the sentences imposed on the grand larceny charges. Id. at ¶ 13. The agreement also required Petitioner to pay restitution and waive his right to appeal any of the convictions. Id. at ¶ 11-13.

         Petitioner stated to the County Court that defense counsel answered all of his questions and that he was satisfied with his representation. Id. at ¶ 18. Petitioner confirmed that he understood that he normally had the right to representation by counsel on appeal, that his plea agreement waived his right to appeal, and that he waived this right “freely and voluntarily.” Id. at ¶ 19-20. Petitioner pleaded guilty to the charges pursuant to the plea agreement. Id. at SR 20-26.

         On February 19, 2016, Petitioner appeared with defense counsel for sentencing. Id. at SR 32, Ex. C. The County Court sentenced Petitioner to the agreed-upon term of imprisonment and ordered him to pay $15, 000 restitution. Id. at ¶ 39-41. Pursuant to the plea agreement, Petitioner executed waivers of his right to appeal for the consolidated and bail jumping indictments. Id. at ¶ 42. He acknowledged that he reviewed the waivers with defense counsel and that counsel answered any questions he had before he signed them. Id.

         In papers dated October 2, 2016, Petitioner filed a pro se motion with the New York State Supreme Court, Appellate Division, Third Department, requesting an extension of time in which to file a notice of appeal from the judgment of conviction. Id. at ¶ 1-4. In an affidavit in support of this motion, Petitioner asserted that defense counsel “never advised [him] in writing of the need to serve and file a notice of appeal” within thirty days of being sentenced, as required by the Third Department's Rules of Practice. Id. at ¶ 3 (citing 22 N.Y.C.R.R. § 821.2(a)). He asserted that he advised defense counsel in March 2016 that he “wish[ed] to appeal.” Id.

         In his attorney affirmation filed regarding Petitioner's motion, defense counsel stated that he “did not advise [Petitioner] in writing of the need to serve and file a notice of appeal within 30 days of his sentencing, ” because Petitioner waived in writing his right to appeal with respect to “all of his pleas, ” and defense counsel had “no record of receiving a letter from” Petitioner stating that he wished to appeal his conviction. Id. at ¶ 45-46.

         In a Decision and Order dated November 10, 2016, the Third Department denied Petitioner's motion. Id. at ¶ 62. Petitioner moved for reargument, asserting that his motion papers and defense counsel's attorney affirmation made it “crystal clear that we suffered an ‘inability to communicate.'” Id. at ¶ 63-64. In a Decision and Order dated January 12, 2017, the Third Department denied reargument. Id. at ¶ 67. This action followed.

         III. LEGAL STANDARD

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas corpus relief

with respect to a claim adjudicated on the merits in state court unless the adjudication of that claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.