Jeffrey McNeil v. Warden, State Prison (2010)

EXCERPT HABEAS DECISION

DECISION

THE COURT:  I have reviewed the documentary evidence in this case, as well as, of course, listened to the testimony very carefully.

The petition in this case is very narrowly drawn.   It appears to be that there's an allegation of a failure to investigate to demonstrate that the petitioner actually lived at the address that he's accused of having burglarized.   Some evidence was presented to suggest that he may have been a resident at that address.   However, the other evidence available to this court leads this court to conclude that while perhaps this 1099 might have been of some use if presented to the jury, it is not sufficiently persuasive for the court to find that the burden of proof incumbent upon a petitioner of proving ineffective assistance of Counsel has been met, and, of course, the burden of proof in a habeas petition does rest with the petitioner.

At this point, of course, unlike a criminal defendant, a habeas corpus petitioner is, in fact, not presumed to be innocent of the offense.   He is, in fact, guilty of the offense, having been found guilty by a court.

The other issue that is raised somewhat is an allegation that the petitioner's plea of nolo contendere was improvident.

I have carefully reviewed the plea canvass and the other documents submitted, and while it is true that Mr. McNeil does suffer from some diminution in his intellectual abilities as a result of a traumatic brain injury, it does appear that he is of the low average intelligence.   Consequently, it is clear to this court, based upon a reading of Exhibit Two, that Mr. McNeil could have easily and, in fact, did understand the plea canvass conducted by Judge Clifford.

Given that, I find nothing in the plea canvass that is deficient.   There is no reason upon which this court would set aside that plea of guilty and the petition for a writ of habeas corpus shall be denied.

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Fuger, J.

Fuger, S.T., J.