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WALLACE v. LEONARDO

July 1, 1993

NATHANIEL WALLACE, JR., Petitioner,
v.
ARTHUR LEONARDO, Superintendent of GREAT MEADOW CORRECTIONAL FACILITY, Respondent.


This petition for habeas corpus relief was referred to the undersigned by the Hon. Richard J. Arcara pursuant to 28 U.S.C. § 636(c), and the consent of the parties, for all further proceedings. For the reasons set forth below, the petition is dismissed in its entirety.

BACKGROUND

 On October 5, 1978, Petitioner Nathaniel Wallace was found guilty by a Wyoming County Court jury of the rape and murder of Nancy Vial, a civilian cook at the Attica Correctional Facility. The trial lasted three and a half weeks, during which the jury heard testimony from thirty-four witnesses. One witness, inmate William Tompkins, testified that Petitioner confessed to him of having committed both crimes (T. 1359-67). *fn1" Another witness, inmate Anthony Liccione, testified that Petitioner confessed to him of having "killed . . . a bitch" (T. 1830, 1853). The trial court entered judgment on the convictions on December 19, 1978.

 Almost twelve years later, on March 16, 1990, the convictions were unanimously upheld on appeal. People v. Wallace, 159 A.D.2d 1022, 552 N.Y.S.2d 723 (4th Dept. 1990)(mem.) (affirming judgment of conviction on murder charge); People v. Wallace, 159 A.D.2d 1032 (4th Dept. 1990)(mem.)(affirming judgment of conviction on rape charge). On June 6, 1990, leave to appeal was denied by the Court of Appeals. People v. Wallace, 76 N.Y.2d 798 (1990).

 While the appeal was pending, Petitioner brought a motion to vacate the conviction under N.Y.C.P.L. § 440 (the "§ 440 motion") on February 6, 1984. An evidentiary hearing was held on continuing dates in 1987 and 1988, but no decision on this motion has been rendered.

 On November 21, 1989, Petitioner also moved for a writ of error coram nobis. On December 8, 1989, this motion was denied by the Appellate Division.

 Additionally, on January 31, 1983, Petitioner brought a habeas corpus petition in the United States District Court for the Northern District of New York. The petition alleged that his constitutional right to a direct appeal was violated as a result of the State's failure to provide him with a transcript of the trial, and his assigned attorney's failure to prosecute the appeal. On June 22, 1983, the district court dismissed the petition as moot based on information that Petitioner had been supplied with the necessary records. Wallace v. LeFevre, No. 83-CV-177 (N.D.N.Y. 1983). On September 6, 1983, the Second Circuit denied a certificate of probable cause.

 Petitioner filed the instant petition on July 22, 1992, asserting the following three grounds for habeas corpus relief pursuant to 28 U.S.C. § 2254:

 1. that the prosecuting attorney at trial violated his rights of due process and equal protection by appealing to religious prejudice during the cross-examination of defense witness "Brother Vincent;"

 2. that comments by the trial judge and prosecuting attorney during trial impermissibly shifted the burden of proof; and,

 3. that he was denied due process and effective assistance of counsel as a result of delay in appellate review of his 1978 murder and rape convictions.

 Each of these grounds was raised on Petitioner's direct appeal to the Appellate Division, as well as in his application for leave to appeal to the New York State Court of Appeals.

 DISCUSSION

 I. Appeal to Religious Prejudice.

 During cross-examination of defense witness Vincent ("Brother Vincent") Jenkins, the following colloquy took place:

 
Q. . . . Now, on the night of the crime, August 5th, 1977 were you questioned then?
 
A. Was I questioned?
 
Q. Yes.
 
A. Yes they took us through a few questions.
 
Q. Did you give them any information then?
 
A. No.
 
Q. Now you are a member of the religious community of Islam, correct?
 
A. That's right.
 
Q. Would it be fair to say that people generally in that religious sect do not cooperate with the police?

 (T. 1571). Before the witness answered, defense counsel objected, and the prosecuting attorney rephrased the question as follows:

 
Q. Let me rephrase it. Is there something about the fact that you are a member of the religious organization, the slams, that would make you hesitate to give information to the police or prison officials?
 
A. No, sir.
 
Q. Is there any particular reason you wouldn't tell ...

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