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BOLES v. SENKOWSKI

March 13, 1995

WILLIE BOLES Petitioner, against DANIEL SENKOWSKI, Superintendent, Respondent.


The opinion of the court was delivered by: JOHN G. KOELTL

 OPINION AND ORDER

 JOHN G. KOELTL, District Judge* :

 Willie Boles, who is currently incarcerated at Clinton Correctional Facility in Dannemora, New York, petitions pro se for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Boles was convicted in the Oneida County Court of robbery in the second degree on February 27, 1992. The court subsequently adjudicated Boles a persistent felony offender and sentenced him to an indeterminate sentence of twenty years to life imprisonment. On appeal, the Appellate Division affirmed his conviction. People v. Boles, 198 A.D.2d 837, 604 N.Y.S.2d 412 (4th Dep't 1993). The Court of Appeals denied Boles leave to appeal. People v. Boles, 83 N.Y.2d 802, 633 N.E.2d 493, 611 N.Y.S.2d 138 (1994).

 Boles challenges his conviction on two grounds: first, he claims that there was insufficient evidence of physical injury, a necessary element of robbery in the second degree, for the jury to have found him guilty beyond a reasonable doubt; and second, he claims that two pretrial identification procedures were impermissibly suggestive in violation of due process and that, therefore, they should have been suppressed, along with the in-court identification.

 I.

 On the night of November 21, 1990, Samuel Chandler left work a short time before seven o'clock p.m. (Trial Tr. at 29.) He had gotten paid that day and had cashed his paycheck; not having any pockets in his pants, he had put one hundred and seventy dollars inside his pack of cigarettes. (Trial Tr. at 30-31.) He stopped at a bar for some time and then proceeded to walk home at a little after nine or ten o'clock p.m. (Trial Tr. at 33-35, Hearing Tr. at 21-22.) Before arriving home, Chandler stopped to have a cigarette on the steps in front of the V.F.W. building. (Trial Tr. at 40.) While Chandler sat there, he was approached by a man who asked for a cigarette. (Trial Tr. at 42-44.) When Chandler offered the man the pack, the man grabbed the pack from Chandler. (Trial Tr. at 45.)

 Intent on retrieving his money, Chandler lunged at the man, grabbing him by the front of his coat. (Trial Tr. at 46-47.) Up to that point, the two men had been together for three or four minutes. (Trial Tr. at 46.) The two men then struggled, punching and hitting each other for approximately five minutes, first standing up and then on the ground. (Trial Tr. at 48-49.) At some point during the struggle, Chandler felt a burning sensation; something had sliced through both shirts that he was wearing and cut through his skin on his left side, slightly above his belt line. (Trial Tr. at 50, 65-66.) Chandler then released his grip and the man who had taken his money ran away. (Trial Tr. at 50-51.)

 Chandler walked across the street and found an older gentleman whom he asked to call the police. (Trial Tr. at 54.) A security guard arrived who, upon hearing what had happened, called the police with his walkie-talkie. (Trial Tr. at 54.) Chandler lay down, in pain, and awaited help. (Trial Tr. at 58.) The police arrived shortly thereafter, along with some paramedics who cleaned and bandaged Chandler's wound. While Chandler was being treated, he gave a description of his assailant to Officer Dorozynski of the Utica Police Department. (Trial Tr. at 107-08.)

 Upon learning that a suspect had been stopped on South Street, two police officers asked Chandler to go with them, in the police car, to see whether he could identify the suspect. (Hearing Tr. at 34.) Chandler agreed. When the car approached the corner of South and West streets where several police officers were standing with Boles, approximately ten minutes after the robbery had been reported, Chandler identified Boles as the man who had taken his money and with whom he had just struggled. (Trial Tr. at 60-61.) Chandler was then taken to police headquarters, where he was questioned. (Trial Tr. at 62-63.) While he was there, Chandler saw Boles. Chandler was not asked to identify Boles; rather, he was told to stand back six or seven feet to avoid a confrontation with Boles, who was escorted through the room that Chandler was in. (Hearing Tr. at 39, 50.) Subsequently, Chandler was taken to the hospital where he received a tetanus shot. (Trial Tr. at 63.)

 II.

 Before obtaining relief under 28 U.S.C. § 2254, a petitioner must exhaust all available state remedies. 28 U.S.C. § 2254(b); see also Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971) ("Once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied."); Blissett v. Lefevre, 924 F.2d 434, 438 (2d Cir.) ("A petitioner has given the state court . . . [the fair] opportunity [to hear the claim] where he has presented, on direct appeal, the essential factual and legal allegations contained in his federal claim.") (citations omitted), cert. denied, 502 U.S. 852, 116 L. Ed. 2d 123, 112 S. Ct. 158 (1991). Here, the petitioner has exhausted his state court remedies because he presented both issues he now raises in his direct appeal from his conviction. The Appellate Division's affirmance of the conviction and the Court of Appeals' denial of leave to appeal satisfy the exhaustion requirement. See Williams v. Smith, 591 F.2d 169, 171 (2d Cir.), cert. denied, 442 U.S. 920, 61 L. Ed. 2d 289, 99 S. Ct. 2845 (1979); Perro v. Reid, 923 F.2d 842, 1990 WL 27152, *1 (E.D.N.Y. 1990), aff'd, 923 F.2d 842 (2d Cir. 1990) (Table).

 In addition, a petitioner must allege that he is in state custody in violation of the Constitution or a federal law or treaty as a prerequisite to relief under § 2254. 28 U.S.C. § 2254(a). Both of the petitioner's claims satisfy this requirement ...


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