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LARRABEE v. SMITH

July 6, 1998

MICHAEL A. LARRABEE, Petitioner,
v.
CARL SMITH, Respondent.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM-DECISION AND ORDER

 McAvoy, Chief Judge:

 By his petition and supporting Memorandum of Law filed on December 30, 1996, petitioner Michael Larrabee, who is presently incarcerated in the Gouverneur Correctional Facility in Gouverneur, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On behalf of respondent, the Attorney General of the State of New York filed a Memorandum of Law in opposition to petitioner's application on May 22, 1997.

 Petitioner complains of a judgement of conviction rendered against him on March 31, 1992, in the Jefferson County Court of New York. The jury found him guilty of attempted murder in the second degree, robbery in the second degree (two counts), assault in the third degree, petit larceny, criminal possession of stolen property in the fifth degree, and conspiracy in the second degree. *fn1" Petitioner was sentenced as a second felony offender to concurrent indeterminate terms of imprisonment, the longest of which was ten to twenty years. The Appellate Division, Fourth Department affirmed the conviction of February 4, 1994, People v. Larrabee, 201 A.D.2d 924, 607 N.Y.S.2d 769 (4th Dep't 1994), and the New York court of Appeals denied leave to appeal on March 24, 1994, People v. Larrabee, 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987 (1994).

 Petitioner then applied to the Appellate Division, Fourth Department for a writ of error coram nobis, which was denied on May 31, 1996. People v. Larrabee, 227 A.D.2d 1006, 643 N.Y.S.2d 445 (4th Dep't 1996). His application for reconsideration of that decision was denied on September 27, 1996. People v. Larrabee, 647 N.Y.S.2d 653 (4th Dep't 1996).

 Now before this Court is petitioner's application for habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner raises two claims for the Court's review. First, he alleges that he was denied the effective assistance of appellate counsel when his appellate attorney failed "to raise for appellate review" certain portions of the trial court's instructions. *fn2" Second, he alleges that the Appellate Division denied his right to a fair and adequate appellate review by denying his coram nobis application when the Appellate Division purportedly granted "relief to some people . . . based on the same set of facts and issues" raised on appeal by petition. *fn3" For the reasons that follow, the petition is denied in all respects.

 I. BACKGROUND

 Petitioner's conviction stemmed from an incident that occurred during the evening of August 25, 1991 in Watertown, New York. On that evening, petitioner and Shawn Trainham accosted Kenneth Baker outside the Hitchin' Post Tavern. Tr. at 52-54. *fn4" They forced Baker across the street, shoved him into some bushes, punched him, and wrestled him to the ground. Tr. at 52-54. While petitioner held Baker down, Trainham went through his pockets. Tr. at 54-55. Trainham found no money in Baker's wallet, but took $ 90 from his pants pocket. Tr. at 55-56.

 Petitioner and Trainham then became concerned that Baker would report the incident to the police, and thus decided to kill him. Tr. at 56-58. They dragged Baker two-tenths of a mile to the Court street Bridge and forced him over the railing. Tr. at 60-69. Baker, who could not swim well, fell 40 feet into the Black River. Tr. at 69-70; 220-21. Baker survived the fall and dog-paddled toward the shore where he grabbed a tree branch and pulled himself out of the river. Tr. at 70-72. After waiting 10-15 minutes to avoid petitioner and Trainham, he eventually ran to the Jefferson County Sheriff's Department and reported the incident.

 Baker was then taken to the Good Samaritan Hospital for treatment. Tr. at 72-76; 206. Baker was wet from head to toe and was shaking uncontrollably. Tr. 205-06; 257. He also had numerous fresh facial abrasions, a sore right wrist, bruises on his ribcage, an injury to his right elbow, and numerous scrapes on his upper left leg. Tr. at 198-99; 205-06; 237; 257; 261; 282-83.

 During the investigation, the police found Baker's wallet and other belongings in some bushes near the tavern. Tr. at 77-78; 207-10; 225-26. They also interviewed Trainham's girlfriend, Kim Plante, who gave a statement implicating petitioner and Trainham in the crime. Tr. at 300-05. A jury found petitioner guilty of all charges, and he was sentenced to ten to twenty years imprisonment.

 II. DISCUSSION

 A. Standard of Review

 When entertaining an application for a writ of habeas corpus contesting a state court judgment, any factual determination by the state court shall be presumed to be correct unless it is "not fairly supported by the record." 28 U.S.C. § 2254(d). After reviewing the case under this standard, Hon. Gustave J. DiBianco, United States Magistrate Judge, issued a Report-Recommendation recommending that the petition be denied and dismissed. Because objections have been filed, this recommendation is ...


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