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February 23, 1994

DEXTER L. CLARK, Petitioner,

The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge


 This petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, was transferred from the United States District Court for the Western District of New York to the District Court for the Northern District of New York by the Honorable John T. Elfvin on November 18, 1991. Upon transfer, this petition was referred to the undersigned by Senior Judge McCurn. The parties, in accordance with 28 U.S.C. § 636(c), consented to proceed before the undersigned. The consent and order of reference to proceed before a United States Magistrate Judge was signed on March 9, 1992, by Senior Judge McCurn.


 Petitioner was charged with, and later indicted by an Albany County Grand Jury for, the crimes of sexual abuse in the first degree in violation of New York Penal Law section 130.65(1), and robbery in the third degree in violation of New York Penal Law section 160.05. The events leading to petitioner's indictment and subsequent conviction occurred on December 4, 1987, at approximately 10:00 a.m. on Steuben Street, between James Street and North Pearl Street, in the City of Albany. Petitioner followed, and then robbed Laurie Prediger just as she entered her parked car. During the crime petitioner forced the victim onto the passenger seat and threatened her with injury if she did not give him her money. After taking several items from the back seat of the car, petitioner exited the car and ran up Steuben Street toward North Pearl Street. The victim immediately gave chase while screaming for help. Although she did not see his face, the victim testified that she never lost sight of petitioner as she ran after him.

 As petitioner fled the crime scene, he was tackled by a passerby, Kevin Koscielniak, who testified that he saw petitioner leave the car and run up the street. Koscielniak's testimony was corroborated by that of Arthur Smuckler, who helped to detain petitioner. Several items fell from petitioner's arms as he was tackled. These items - including a wallet, credit cards, cosmetic case, and a glasses case - were later identified as belonging to the victim.

 Petitioner was indicted on December 23, 1987, and arraigned on December 28, 1987, at which time he pled not guilty to the charges. After an assignment of new counsel and several adjournments to allow defense counsel sufficient time to prepare the defense, petitioner was tried on November 3, 1988. *fn1" On November 7, 1988, the jury returned a guilty verdict on the robbery charge, but deadlocked on the charge of sexual abuse. On December 19, 1988, Judge Harris determined that petitioner should be sentenced as a persistent felony offender. On January 29, 1989, petitioner was sentenced to an indeterminate term of twenty-five years to life imprisonment.


 Petitioner moved the trial court to vacate judgment pursuant to N.Y. Crim. Pro. L. § 440.10 based on the allegations that: (1) prior to the entry of judgment, material evidence adduced from the trial was false and was known by the state to be false; (2) improper and prejudicial conduct, including the Allen charge, and otherwise not appearing in the record, occurred during the trial; and (3) newly discovered evidence, if admitted, might have resulted in a verdict favorable to petitioner. On January 22, 1990, the trial court denied the motion, but granted petitioner leave to appeal to the Appellate Division.

 In his appeal to the Appellate Division, Third Department, petitioner raised the following issues for review:

1. The court erred in its Sandoval ruling, chilling defendant from testifying in his own behalf and depriving him of a fair trial.
2. The evidence presented at the trial was legally insufficient to sustain a conviction.
3. The defendant was deprived of his right to a speedy trial.
4. The defendant is entitled to a new trial, and his conviction should be vacated, on the basis of newly discovered evidence.
5. The verdict was inconsistent and was coerced by the court's Allen charge.

 People v. Clark, 169 A.D.2d 848, 564 N.Y.S.2d 567 (3d Dept. 1991). In an opinion by Judge Casey dated January 3, 1991, the Appellate Division affirmed both the conviction and the denial of petitioner's motion to vacate judgment. Id. Petitioner's subsequent motion for re-argument was denied on March 13, 1991, and his application for leave to appeal to the New York Court of Appeals was denied on May 16, 1991. People v. Clark, 77 N.Y.2d 993, 575 N.E.2d 405, 571 N.Y.S.2d 919 (1991). Petitioner's writ of certiorari to the United States Supreme Court was denied on October 7, 1991. Clark v. New York, U.S. , 112 S. Ct. 148 (1991).

 On November 12, 1991, petitioner filed the instant writ of habeas corpus in the District Court for the Western District of New York. In his petition, with the exception of the sentence being excessive, the petitioner raised essentially the same grounds as those raised before the Appellate Division, but in addition, claimed that: (1) material evidence adduced at trial was false and, prior to judgment, was known to the prosecution as such, and (2) that improper and prejudicial conduct not appearing in the record occurred during the trial. (Pet. 7).


 1. Trial Court's Sandoval Ruling.

 Petitioner claims that the trial court's improper ruling at the Sandoval hearing prevented him from testifying on his own behalf, and ...

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