McGann v. Kelly, 93 Civ. 2836 (PKL).

• Decision Date: 21 June 1995
• Docket Number: No. 93 Civ. 2836 (PKL).,93 Civ. 2836 (PKL).
• Parties: Clarence Duke McGANN, Petitioner, v. Walter R. KELLY, Superintendent Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

891 F. Supp. 128

Clarence Duke McGANN, Petitioner, v. Walter R. KELLY, Superintendent Attica Correctional Facility, Respondent.

No. 93 Civ. 2836 (PKL).

United States District Court, S.D. New York.

June 21, 1995.

COPYRIGHT MATERIAL OMITTED

Clarence Duke McGann, Attica, NY, pro se.

Robert T. Johnson, Dist. Atty., Bronx County, Bronx, NY, for respondent.

MEMORANDUM ORDER

LEISURE, District Judge:

Petitioner pro se seeks his release from custody by way of a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner is Clarence Duke McGann. Respondent is Walter B. Kelly, Superintendent of Attica Correctional Facility.

On April 29, 1993, McGann filed a habeas corpus petition with this Court, alleging that: 1) he was denied the effective assistance of counsel at the pretrial stage of the proceedings, see Petitioner's Affidavit ("Affidavit"), at 6-7; 2) the trial court lost its jurisdiction when the judge dismissed a full panel of jurors before whom petitioner had presented his argument for new counsel, see Affidavit, at 9-10; 3) the trial court lacked jurisdiction to bring petitioner to trial in absentia, see Affidavit, at 10-16; 4) he was denied the effective assistance of counsel on his first direct appeal, see Affidavit, at 17; and 5) the trial court lost jurisdiction to sentence petitioner after five years, see Affidavit, at 18-20.

Petitioner further alleges bias on the part of the Honorable Peter K. Leisure, United States District Court Judge, Southern District of New York, and the Honorable Leonard Bernikow, United States Magistrate Judge, Southern District of New York. Petitioner has requested that Judge Leisure and Judge Bernikow remove themselves from this case. See Petitioner's Written Objections to the Report and Recommendation of Mag. Bernikow ("Objections"), received Feb. 2, 1995, at 1.

Most recently, petitioner filed a motion for bail pending the outcome of the instant habeas corpus petition. See Motion and Affidavit for Admission to Bail ("Motion for Bail"), filed May 31, 1995. For the reasons set forth below, McGann's petition is dismissed and his motions are denied.

BACKGROUND

The facts of this case are set forth in the opinion of the Second Circuit in McGann v. N.Y., 870 F.2d 908 (2d Cir.1989) ("McGann I"), which addressed petitioner's initial application for habeas relief. In brief, petitioner was convicted on February 1, 1982, in New York State Supreme Court, Bronx County, after a jury trial in absentia, of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree. See id. at 908. He was sentenced, again in absentia, on February 26, 1982, to concurrent indeterminate terms of imprisonment of from eight and one-third to twenty-five years and two and one-third to seven years, respectively. See id. at 909.

In March 1983, petitioner was arrested in Florida, while a warrant issued by New York state was outstanding. Petitioner was convicted of weapon and narcotics possession, and was sentenced in Florida to ten years imprisonment. See id. In December 1987, he was released and rearrested pursuant to the New York warrant. He was returned to New York and his sentence was executed. See id.

In July 1983, prior to petitioner's release and rearrest, petitioner moved unsuccessfully to vacate his New York conviction, pursuant to N.Y.Crim.Proc.Law § 440.10. See id. Although he never filed a direct appeal of his conviction, he did file a direct appeal from the state order executing his sentence. See id. Before filing his notice of appeal from the order of execution, however, petitioner sought habeas relief in this Court. Because he "initiated a state court appeal after petitioning the federal courts for habeas corpus relief," id. at 911, the Second Circuit found that petitioner had not exhausted his state remedies and dismissed his petition without prejudice. See id.

In 1992, in a pro se brief before the Appellate Division, petitioner argued that his conviction was obtained by the knowing use of perjured testimony. See Exh. 4 to Affidavit in Opposition. He also argued that the prosecution failed to protect his statutory right to a speedy trial, pursuant to N.Y.Crim.Proc. Law § 30.30. See id. In addition, petitioner stated that he wished to resubmit the issues he had raised before the Second Circuit in McGann I. See id.

In his reply brief to the Appellate Division, petitioner argued that he was denied the effective assistance of pretrial and trial counsel and that the trial court lost jurisdiction when it dismissed a full panel of jurors. See Exh. 6 to Affidavit in Opposition.

The Appellate Division unanimously affirmed petitioner's conviction. People v. McGann, 186 A.D.2d 392, 588 N.Y.S.2d 1010 (1st Dep't 1992) ("McGann II"). The Appellate Division determined that petitioner had voluntarily absented himself from trial and sentence, and that the trial court had properly proceeded in petitioner's absence. See id. The Appellate Division also determined that petitioner's statutory speedy trial claim and his knowing use of perjured testimony claim had not been preserved. See id. The court found petitioner's remaining contention meritless. See id.

On October 14, 1992, petitioner moved for rehearing before the Appellate Division. See Exh. 8 to Affidavit in Opposition. On December 17, 1992, the Appellate Division denied the motion for rehearing. See Exh. 9 to Affidavit in Opposition. The New York State Court of Appeals thereafter denied leave to appeal. People v. McGann, 81 N.Y.2d 889, 597 N.Y.S.2d 950, 613 N.E.2d 982 (1993).

Petitioner next brought several claims before this Court. First, he contended that he had been denied the effective assistance of trial counsel. See Affidavit, at 6-7, 16. Second, he argued that the trial court had lost jurisdiction when the trial judge dismissed a full panel of jurors before whom petitioner had started his argument for new counsel. See Affidavit, at 9-10. Third, petitioner claimed that he had been improperly tried in absentia. See Affidavit, at 10-16. Fourth, petitioner argued that he had not had effective assistance of counsel on his direct appeal. See Affidavit, at 17. Lastly, petitioner contended that the State of New York had lost jurisdiction to implement his sentence after a period of five years. See Affidavit, at 18-20. Petitioner apparently claimed that after New York withdrew its extradition warrant in favor of the State of Florida, it could not reclaim him. See id.

In his October 19, 1993 "Traverse"¹ to respondent's Affidavit in Opposition, petitioner further asserted that he wished to resubmit "all issues raised in the U.S. 2nd Circuit Court of Appeal in the case of McGann vs State," Traverse, at 2. Petitioner was apparently referring to the claims he raised in his initial habeas petition in McGann I. See Exhibit 3 to Affidavit in Opposition.

On July 15, 1994, Judge Bernikow issued a Report and Recommendation ("Report"), advising that petitioner's claims be dismissed. Petitioner now raises objections to this Report. He argues that every issue raised in his initial habeas application is preserved for review by this Court. Additionally, he requests that Judge Leisure and Judge Bernikow recuse themselves from this case because "it appears that both officers have a bias and prejudice against the petitioner, and undue partiality toward the respondent." Objections, at 1.

DISCUSSION

I. APPLICATION FOR BAIL

Petitioner argues that Magistrate Judge Bernikow is biased and prejudiced against him. He contends that Judge Bernikow "was not be sic truthful," Objections, at 1, in his November 4, 1993 Order ("Order") denying petitioner's motion for bail on rehearing. In that Order, Judge Bernikow stated that he had not received petitioner's reply brief waiving all unexhausted claims. Petitioner cites footnote two of Judge Bernikow's July 15, 1994 Report, which acknowledges receipt of petitioner's Traverse. Petitioner contends that "this statement clearly shows that the Mag. did receive the Petitioner's Traverse" and that "it was mandated upon him to rule on the issue of bail after receiving such a waiver." Id.

This Court adopts Judge Bernikow's well considered Report in its entirety. The Court finds no support in the record for petitioner's allegations of Judge Bernikow's bad faith. Judge Bernikow did acknowledge receipt of petitioner's Traverse on July 15, 1994. However, in his Order of November 4, 1993, Judge Bernikow stated, "with respect to petitioner's reply brief, I have not received it as yet. Therefore, petitioner should submit another copy." Order, at 2. There is no reason to believe that Judge Bernikow had received a copy of the Traverse on November 4, 1993.

Moreover, although Judge Bernikow did not have petitioner's reply brief before him when he issued the November 4, 1993 Order, he indicated that the standard for allowing bail in a habeas petition is a "difficult one to meet." Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir.1990). A petitioner "must demonstrate that `the habeas petition raises substantial claims and that extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.'" Id. (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981)).

In his November 4, 1993 Order, Judge Bernikow found that the extraordinary circumstances necessary to support a granting of bail did not exist in this case. After reviewing Judge Bernikow's orders under the "clearly erroneous or contrary to law" standard, this Court affirmed and adopted them. See McGann v. Kelly, 93 Civ. 2836 (PKL), 1994 WL 30477, Memorandum Order, dated Jan. 31, 1994. On March 7, 1994, this Court issued a final judgment denying petitioner's motion for release on bail and dismissing petitioner's request for a writ of habeas corpus. See McGann v. Kelly, 93 Civ. 2836 (PKL), 1994 WL 68452, Judgment, filed on Mar. 7, 1994. On March 31, 1994, the Court vacated the Judgment as...