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ARKIM v. IRVIN

February 9, 1998

BARRY ARKIM, a/k/a EDWARD MASON, Petitioner,
v.
FRANK E. IRVIN, Superintendent, Respondent.



The opinion of the court was delivered by: HECKMAN

 The parties have consented pursuant to 28 U.S.C. § 636(c) to have the undersigned conduct all further proceedings in this petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons that follow, the petition is denied.

 BACKGROUND

 On April 27, 1990, petitioner was indicted by the Erie County grand jury on one count of rape in the first degree (N.Y. Penal Law § 130.35(1)), two counts of sodomy in the first degree (N.Y. Penal Law § 130.50(1)), two counts of burglary in the first degree (N.Y. Penal Law § 140.30(2) and (3)), one count of assault in the second degree (N.Y. Penal Law § 120.05(6)), and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(1)). Each count of the indictment was also charged under N.Y. Penal Law § 20.00. *fn1"

 The indictment stemmed from petitioner's arrest on November 17, 1989, following a police investigation of the rape of Linda Shipley November 13, 1989, at her apartment on Howlett Street in the City of Buffalo. On November 20, 1990, after a four-day jury trial, petitioner was convicted on all counts charged in the indictment. He was sentenced as a persistent violent felony offender to an indeterminate prison term of twenty-five years to life on each count, with the terms imposed on the first three counts of the indictment to run consecutively (S. 27-28). *fn2"

 Notice of appeal was filed on petitioner's behalf by his trial counsel, Robert M. Goldstein. The Legal Aid Bureau of Buffalo, Chrysanthe E. Vergos of counsel, was assigned as appellate counsel. The following grounds were set forth in counsel's appellate brief:

 
1. The trial court improperly instructed the jury that petitioner was an interested witness, that they could consider the previous convictions of petitioner and his witnesses in evaluating their credibility, and that the trial court marshaled the evidence in an unbalanced and improper manner.
 
2. Insufficient evidence to support petitioner's conviction of sodomy in the first degree under count two of the indictment.

 (State Court Records, Ex. A). Petitioner also submitted a supplemental appellate brief pro se, setting forth the following additional grounds for appeal:

 
3. Failure to suppress petitioner's statements to the police obtained in violation of his right to counsel.
 
4. Lack of corroborating evidence to support the rape and sodomy convictions.
 
5. Prosecutorial misconduct based on cross-examination with respect to petitioner's prior conviction for attempted robbery.

 (Id., Ex. C).

 On January 31, 1992, the Appellate Division unanimously affirmed the judgment of conviction. People v. Arkim, 179 A.D.2d 1019, 580 N.Y.S.2d 120 (4th Dept. 1992). The court specifically ruled that the trial court properly charged the jury on petitioner's interest in the outcome, and properly marshaled the evidence necessary to explain the application of the law to the facts. The Appellate Division also ruled that the evidence was legally sufficient to support the conviction of sodomy in the first degree. Id., 179 A.D.2d at 1019-20, 580 N.Y.S.2d at 121. With respect to the remaining grounds for appeal, the court ruled as follows:

 
We have reviewed the other issues raised on appeal including those in [petitioner]'s pro se supplemental brief and find that none has any merit. [Petitioner] failed to raise, either before the suppression court or at trial, the issue whether his statements to the police were obtained in violation of his right to counsel on the ground that he was represented by counsel on pending unrelated charges. Thus, that issue has not been preserved for appellate review. In any event, [petitioner]'s argument is without merit.

 Id. On April 15, 1992, the Court of Appeals denied petitioner's request for leave to appeal. People v. Arkim, 79 N.Y.2d 997, 584 N.Y.S.2d 451, 594 N.E.2d 945 (1992).

 On September 3, 1996, petitioner filed his petition in this court for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Item 1). Petitioner asserts the following as grounds for habeas relief:

 
1. Denial of a fair trial by virtue of the trial court's failure to give "balanced" jury instructions.
 
2. Insufficient evidence presented at trial to convict petitioner of sodomy.
 
3. Failure to suppress petitioner's statements to the police obtained in violation of his right to counsel.
 
4. Lack of corroborating evidence to support the rape and sodomy convictions.

 (Item 1, P 12). Subsequently, on January 7, 1997, petitioner submitted a "Statement of Facts and Memorandum of Law" (Item 7), setting forth ...


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