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COLSON v. MITCHELL

July 29, 1992

JAMES COLSON, Petitioner, against ROBERT MITCHELL, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, Respondent.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 James Colson ("petitioner"), appearing pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's application is denied.

 I. BACKGROUND

 On the night of January 21, 1986, a man (later identified as co-defendant, Frank [Fernando] Rivera ("Rivera")) approached a taxicab parked by an illuminated platform at the Wyandanch Train Station in Suffolk County, New York. After a face-to-face discussion with the driver, Edmond Brown ("Brown"), about the fare to the nearby town of Deer Park, New York, Rivera walked around the front of the cab and entered it through the front passenger side door. Immediately after Rivera closed the door, a second man (later identified as petitioner) entered the cab through the rear passenger door. Brown turned on the cab's interior light and turned to see petitioner.

 After agreeing on the fare, Brown attempted to drive the two men to their requested destination. He had driven approximately one mile when petitioner placed one arm around Brown's neck, held a knife to Brown's neck with his free hand, and told Brown to surrender control of the cab. When Brown complied, Rivera took control of the steering wheel and parked the cab on the side of a poorly-lighted road. Rivera went through Brown's pockets and took his keys, money, and a red "Bic" cigarette lighter. At this time, Brown was able to see petitioner, who was still holding a knife to Brown's neck, through the cab's rear view mirror.

 Thereafter, Rivera walked around the front of the cab and entered it through the driver's door. Petitioner told Brown to get out of the cab and to walk without turning around toward a nearby fence. Brown followed petitioner's commands, and then heard the cab being driven away.

 Calling for assistance from a nearby residence, Brown described the robbers to the emergency operator. He described petitioner as a broad-shouldered black man wearing a black leather jacket, dark dungarees, and black gloves, and Rivera as a tall black man wearing a blue two-tone ski jacket, a dark hooded sweatshirt, and dark pants.

 Within ten minutes, Police Officer Hilary Balfour ("Balfour") arrived at the residence. Brown repeated the descriptions to her. Balfour transmitted the descriptions over the radio to police units in the area.

 As she was transporting Brown to the police precinct, Balfour received a radio call from Police Officer John Brennan ("Brennan"). He asked for a confirmation of the descriptions and told Balfour that he and Police Officer John McHugh ("McHugh"), who were on routine patrol of the area in a squad car, had located two men who fit Brown's descriptions standing with approximately forty other people on the corner of a local intersection. *fn1" Balfour asked Brown whether he would be able to identify them. When Brown replied in the affirmative, Balfour proceeded to Brennan's location.

 Once there, Brown positively identified Rivera and petitioner as the assailants, and the suspects were arrested. They were searched and Brown's keys were found in Rivera's possession, along with money and two cigarette lighters.

 As they were being driven to the precinct, Brennan advised petitioner and Rivera of their constitutional rights, which they waived. (H. 98, 114; T. 638, 674). *fn2" Upon arriving at the precinct, the suspects were processed, a procedure that included a strip search and an inventory of the property taken from them. Rivera was asked whether the red "Bic" lighter found in his possession was his. He replied, "No, it must be the cabbie's." (H. 116-17, T. 638, 674).

 Thereafter, Brennan returned to the area of the arrest. He found the stolen cab approximately 150 feet from the location where he initially observed the suspects.

 On January 29, 1986, petitioner was indicted by a grand jury and charged with robbery in the first degree, a class "B" violent felony, pursuant to § 160.15 of the New York Penal Law. He was convicted after a jury trial and sentenced, on February 2, 1987, as a persistent felony offender, to a term of incarceration of twelve years to life.

 On March 20, 1989, the Appellate Division, Second Department, affirmed petitioner's conviction. *fn3" Leave to appeal to the New York Court of Appeals was denied on May 16, 1989.

 On or about October 30, 1989, petitioner, appearing pro se, filed in the County Court of Suffolk County a motion to vacate the judgment of his conviction pursuant to §§ 440.10 and 440.20 of New York Criminal Procedure Law ("CPL"). He argued that he had received ineffective assistance of trial counsel. The trial court denied the application on the ground that it was "devoid of any sworn allegations of fact." Decision and Order of Harvey W. Sherman, J.C.C., Ind. No. 131-86, November 29, 1989, at 1.

 On or about December 13, 1989, petitioner refiled his motion to vacate, this time conforming his pleadings to the requirements of CPL § 440.30. Petitioner asserted four grounds in support of his ineffective assistance argument: (1) he had a contingent fee arrangement with trial counsel; (2) trial counsel failed to interview alibi witnesses; (3) trial counsel excluded petitioner from participation in his jury selection; and (4) trial counsel failed to pursue Rosario material.

 The trial court reviewed the merits of petitioner's claims and denied the notion in all respects on April 4, 1990. The Appellate Division, Second Department, denied leave to appeal on August 9, 1990. On October 5, 1990, the Court of Appeals dismissed the application for a certificate to appeal pursuant to CPL § 450.90(1).

 In December 1990, petitioner filed his third motion to vacate, claiming that: (1) he was improperly adjudicated as a persistent felony offender; and (2) the People improperly failed to disclose to him that Brown, the complaining witness, had a Driving While Intoxicated charge pending against him during the hearing and trial of the underlying criminal action. The trial court denied the application on January 15, 1991, and the Appellate Division, Second Department, denied leave to appeal on April 10, 1991.

 This petition followed. Petitioner sets forth four grounds in support of his application for habeas relief: (1) he was deprived of his constitutional right to effective assistance of trial counsel; (2) he was deprived of his right to due process when the prosecutor withheld exculpatory evidence; (3) evidence regarding his showup identification was improperly admitted at trial; and (4) he was deprived of his right to a fair trial when a juror saw him being led into the courtroom in handcuffs. Petitioner has exhausted the remedies available to him in the state court system as required in a federal habeas corpus proceeding. See 28 U.S.C. § 2254(b); see also Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).

 II. DISCUSSION

 A. PROCEDURAL ...


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