Opinion
04 CV 0574 Related to 04 CV 2907 (Habeas Corpus).
August 18, 2004
MEMORANDUM, ORDER AND JUDGMENT
I. Procedural History
On February 2, 2004, plaintiff, pro se, filed this civil rights action against Michelle Fox, Esq. of The Legal Aid Society; Charles Hynes, District Attorney of Kings County; John C. Elbert, County Clerk for Kings County; Sanford Talkin, Esq., plaintiff's state court appointed 18B attorney; Bernard Kirek, Commissioner of the New York City Department of Corrections; Glenn S. Goord, Commissioner of the New York State Department of Corrections; John McGinnis, Superintendent of Downstate Correctional Facility; Victor Herbert, Superintendent of Attica Correctional Facility; Michael McGinnis, Superintendent of Southport Correctional Facility; and George B. Duncan, Superintendent of Great Meadows Correctional Facility. Relief was sought pursuant to 28 U.S.C. §§ 1443, 1981; 42 U.S.C. §§ 1983 and 1988; 28 U.S.C. §§ 1331, 1343(3) and 2201; and the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments to the United States Constitution.
The claims arise out of plaintiff's prosecution and conviction in state court. The evidence strongly supported the state's contention that plaintiff killed his grandmother with his fists and then cut off her breath with a bag over her head; and that he stole money from her apartment. Plaintiff's girlfriend observed the killing and was prepared to so testify. Plaintiff pleaded guilty to Murder in the First Degree and violation of probation. He was sentenced on June 3, 1999 to twenty years to life for the murder and one year for violation of probation, the sentences to run concurrently.
Based on the same convictions on July 6, 2004, plaintiff (as a petitioner), sought a writ of habeas corpus. That case has been transferred to another judge. The file in that case (04 CV 2907) is, however, judicially noticed in the instant litigation. Petitioner in the habeas case has apparently exhausted his state remedies by direct appeal, section 440 post judgment motions and a coram nobis petition. The convictions and present incarceration of petitioner remain valid unless set aside.
All defendants in the instant case have moved to dismiss on the complaint and for summary judgment. This court held two hearings on the motions with plaintiff present by telephone. On August 4, 2004 all defendants except for Sanford Talkin, Esq. were present by counsel. After hearing from counsel and plaintiff pro se the court orally dismissed the case with a judgments of dismissal for all defendants.
On reconsideration, the court reopened the case against Sanford Talkin, plaintiff's state court appointed counsel in the criminal case. Mr. Talkin testified at a hearing on August 16. He was cross-examined by the plaintiff. The court now concludes that there is no valid claim for malpractice under state law or under any other possible theory of federal or state law against Mr. Talkin.
II. Individual Defendants
A. Michelle Fox, Esq.
Attorney Fox is sued for a violation of 42 U.S.C. § 1983. She was a Legal Aid Attorney who appeared for defendant in the criminal case as appellate counsel on direct appeal. The Legal Aid Society is not a unit of New York State government. She was not acting under color of state law. There is no specific allegation of a conspiracy setting forth a viable cause of action for conspiracy under 42 U.S.C. §§ 1983 or 1985.The related state legal malpractice claim has no basis in fact or law. The underlying conviction remains undisturbed. Collateral attacks on coram nobis and 440 motions raising questions of inadequacy of counsel have been unsuccessful.
No legal malpractice action against Michelle Fox or The Legal Aid Society can stand. State and federal causes of action have not been stated.
The claim against this defendant is dismissed.
B. Glenn S. Goord, George B. Duncan, Victor Herbert, John McGinnis, Michael McGinnis
The superintendents of various New York State correctional institutions had custody of plaintiff under a sentence and judgment of convictions valid on their face. No valid claim is stated against them individually or together.
The claim against these defendants is dismissed.
C. John C. Elbert
The Clerk of the Supreme Court, John C. Elbert is accused of wrongly signing an order of commitment. The Clerk acted properly. There is no claim of race, ethnicity or ancestry as a basis of a claim against the Court Clerk whose actions were purely administrative. No facts demonstrating any violation could have been stated. Quasi-judicial immunity bars the claim.
The claim against this defendant is dismissed.
D. Bernard Kirek
Mr. Kirek, as Commissioner of the New York City Department of Correction, held plaintiff under a valid commitment order after an arrest presumptively valid.
The claim against this defendant is dismissed.
E. Charles Hynes
The District Attorney of Kings County, Charles Hynes is entitled to quasi-judicial immunity.
The claim against this defendant is dismissed.
F. Sanford Talkin
Sanford Talkin, court appointed counsel for plaintiff (defendant in the state prosecution) acted appropriately. No state malpractice claim against him, nor any claim for violation of any state or federal law has been stated or can be proved. Counsel acted appropriately. He properly defended plaintiff's rights. The court finds Mr. Talkin's testimony before this court, as supplemented by his letter of August 16, fully credible.
The plaintiff claims that, among other improprieties, Mr. Talkin did not prepare a defense properly, did not consult with him adequately, did not require pretrial suppression hearings and did not prepare for them, failed to challenge improper grand jury proceedings and an improper indictment (apparently because it charged him with killing [with his fists] as a weapon when he should have been charged with killing by strangulation), allowing him to plead guilty, failing to note properly for the court that he was incapable of pleading guilty and participating in the sentence because of lack of understanding, misleading him, and failing to defend properly in other ways.
The testimony in this court of his experienced counsel explaining the attorney's actions is fully credited by the court. It is supported by the record. Plaintiff faced the death penalty. If not death, the evidence supported punishment by life without parole or, at least, twenty-five years to life, with a consecutive prison sentence for violation of probation. The actual sentence of twenty years to life, with a concurrent probation violation sentence of one year, constituted a major victory for the defense, attributable in large part to the skill and experience of his counsel.
The evidentiary hearing in this court and the record of the plea and sentence in the state court demonstrated, for purposes of this civil action, that representation met appropriate standards. No valid claim against the trial attorney can be stated.
The claim against this defendant is dismissed.
III. Conclusion
The defendant had a full opportunity to meet both the motions to dismiss on the pleadings and the motions for summary judgment. No opportunity to amend the complaint or to submit further evidence is appropriate. Documentation and other evidence demonstrate lack of merit in the complaint. Construing all pleadings, documents, testimony and arguments most favorably towards plaintiff as an unrepresented party, no possible claim by him against any appropriate defendant can succeed. The motion for summary judgment and for judgment on the pleadings must be granted on this record.
To provide a single date for appeals, prior judgments in this action dismissing the complaint are withdrawn. A comprehensive judgment is now granted dismissing the complaint for failure to state a cause of action against any defendant, and for summary judgment in favor of all defendants.
The clerk shall forthwith enter a judgment of dismissal in favor of all defendants. Notify plaintiff and parties. Enter a notice of appeal on behalf of plaintiff.
SO ORDERED.