The opinion of the court was delivered by: Heckman, United States Magistrate Judge.
In accordance with the provisions of 28 U.S.C. § 636(c), the
parties to this case have consented to have the undersigned
conduct all proceedings, including entry of final judgment (Item
8). Petitioner has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons set forth below,
the petition is denied.
Mr. Taylor directed the two men to a counter that separates the
kitchen from the living room (Tr. at 43, 188). Charnock stood
next to Mr. Taylor, on his left (Id. at 45). Standing on
Charnock's left was petitioner (Id. at 45). Mr. Taylor opened a
briefcase and pulled out several pieces of jewelry to show
Charnock and petitioner (Id. at 45, 189). During this period of
time Mrs. Taylor was sitting in the living room and talking on
the telephone to the manager of the family's primary business
(Id. at 45, 98, 188). Mrs. Taylor joined the men in the kitchen
when she finished her telephone conversation (Id. at 49).
A few moments later, Charnock asked to use the bathroom (Id.
at 49-50, 102-03, 190). It was the second time he left the room
to use the bathroom (Id. at 46, 190). When Charnock was
returning from the bathroom the Taylors heard a bang, and thought
that Charnock fell into the wall (Id. at 50, 103). Mr. Taylor
asked, "John, are you okay" (Id. at 50). When Charnock
appeared, he had a gun in his hands (Id. at 51, 104, 190). He
then walked to the counter and announced a holdup (Id. at 52).
Petitioner backed up behind Mr. Taylor (Id. at 52, 105).
Charnock then ordered the Taylors to lie down on the floor and
take off all of the jewelry that they were wearing (Id. at
52-53, 106-07, 191).
The Taylors removed their jewelry and laid down on their
stomachs (Id. at 54, 107, 191). Using rope, Charnock tied Mr.
Taylor's hands behind his back (Id. at 54, 191). Having run out
of rope, Charnock cut an electrical cord off of a lamp and used
it to tie Mrs. Taylor's hands behind her back (Id. at 54, 107,
191). Charnock then tied Mr. and Mrs. Taylor's ankles together
(Id. at 54, 107).
Charnock took the jewelry that was on the floor and then went
through the house looking for more valuables (Id. at 55, 108).
He was heard screaming, "where's the rest of the jewelry, where's
the money, where's the phone" (Id. at 55). He also asked about
guns (Id. at 55). The Taylors could also hear petitioner going
through the kitchen cupboards (Id. at 56, 108, 192). The only
sound petitioner made was "a grunt, happy sounds" when he
discovered approximately $800 that was located in the kitchen
(Id. at 57, 108). Before leaving the Taylors' home, Charnock
turned up the television's volume as loud as it would go (Id.
at 58, 112). Charnock grabbed whatever telephones that he could
find, and petitioner grabbed the briefcase containing the
jewelry. The two men then left the house (Id. at 59, 115, 192).
A few minutes after Charnock and petitioner left the house, the
Taylors untied themselves, and Mrs. Taylor called the police
(Id. at 60, 114). The next day, Mr. Taylor called some friends
in the jewelry business and informed them of the robbery (Id.
at 62, 161).
Charnock and petitioner made several stops after leaving the
Taylors house (Id. at 192). Along the way, they disposed of the
briefcase, a telephone which was taken from the house, and hats
and gloves that they wore during the robbery (Id. at 193). The
next morning, they divided up the some of the stolen jewelry
(Id. at 194). Charnock sold some pieces of jewelry at the
Walden Flea Market (Id. at 195). He also removed some stones
from their settings before trying to sell them (Id. at 195).
Charnock was arrested on August 31, 1992, while trying to sell
three diamonds stolen from the Taylors (Id. at 139, 195). The
owner of the Diamond Cutters, a Buffalo jewelry store, recognized
the diamonds as belonging to the Taylors (Id. at 139, 163). The
jeweler had sold the Taylors one of the diamonds, and evaluated
the other two diamonds for Taylors a few weeks earlier (Id. at
163). Charnock plead
guilty to attempted robbery and received a sentence of six to
twelve years (Id. at 179).
Petitioner was arrested on September 4, 1992 (Id. at 141). At
the time of his arrest he was wearing a ring that was taken
during the robbery (Id. at 142-43).
In 1992, petitioner was indicted by an Erie County Grand Jury
for robbery in the first degree, burglary in the first degree,
and criminal possession of stolen property in the fifth degree.
Indictment No. 92-2024-001.
A jury trial was held on August 18-23, 1994. On August 23,
1994, the jury found petitioner guilty of robbery in the first
degree, in violation of N.Y.PENAL LAW § 160.15, burglary in the
first degree, in violation of N.Y.PENAL LAW § 140.30, and
criminal possession of stolen property in the fifth degree, in
violation of N.Y.PENAL LAW § 165.35 (Tr. at 339-44). On October
11, 1994, petitioner was sentenced to concurrent indeterminate
terms of incarceration of seven to twenty-one years for the
burglary and robbery counts, and a conditional discharge for the
stolen property conviction (Sent.Tr. at 6-7).
Petitioner filed a direct appeal to the Supreme Court,
Appellate Division, Fourth Department (See Item 6, Ex. C). Four
issues were raised on appeal: First, that the trial court abused
its discretion by precluding the testimony of two alibi
witnesses; second, that the proof adduced to convict petitioner
of burglary in the first degree was insufficient as a matter of
law; third, that petitioner was denied the opportunity to call a
police officer and a complainant as witnesses at a Wade
hearing; and finally, that incarceration was a harsh and
excessive sentence that should be reduced in the interest of
justice (Id.). The Appellate Division held that the trial court
did not abuse its discretion by precluding the alibi testimony
because petitioner never served a notice of alibi pursuant to
N YCRIM.PROC. § 250.20(1). People v. Millio, 226 A.D.2d 1071,
642 N.Y.S.2d 458 (1996). The panel also determined that
petitioner's other issues lacked merit. Id. The New York Court
of Appeals denied petitioner leave to appeal the Appellate
Division's decision. People v. Millio, 88 N.Y.2d 990,
649 N.Y.S.2d 397, 672 N.E.2d 623 (1996).
On October 11, 1994, petitioner moved to vacate the judgment,
pursuant to N.Y.CRIM.PROC. § 440.10. Petitioner made three claims
(See Ex. E). Petitioner alleged that exculpatory information
was not turned over by the prosecution, as required under Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Petitioner also alleged that prosecutors engaged in misconduct by
allowing a witness to testify falsely at trial. Finally,
petitioner claimed ineffective assistance of counsel.
Petitioner's motion was denied, and petitioner was denied leave
to appeal this decision to the Appellate Division (Ex. E).
On June 2, 1997, petitioner filed this petition for a writ of
habeas corpus in the United States District Court for the
Northern District of New York (See Item 3). The case was
transferred to this court because Erie County, the site of
petitioner's trial and sentencing, is located in the Western
District of New York. Millio v. Barkley, No. 97-CV-780
(N.D.N.Y. June 24, 1997) (transfer order).
Three claims are raised in petitioner's application for a writ
of habeas corpus. Petitioner argues that the trial court
improperly precluded his two alibi witnesses (See Item 3).
Petitioner also argues that the proof adduced at trial was
insufficient to convict him of burglary in the first degree
(Id.). In addition, petitioner claims ineffective assistance of
counsel because the first attorney handling his case never sought
any alibi witnesses, and because he represented petitioner, even
though he had represented petitioner's co-conspirator in an
unrelated criminal matter (Id.). Respondent argues that the
petition should be dismissed because petitioner failed to exhaust
state court remedies (Item 7, at 3-5).
Each issue is considered, in turn, below.
Before examining the merits of petitioner's claims, it is
necessary to consider whether petitioner exhausted state court
remedies. According to respondent, petitioner failed to raise the
alleged conflict of interest claim in state court (Item 7, at 3).
In addition, petitioner's claim that his attorney failed to
obtain and utilize Brady material was raised in a
N YCRIM.PROC.L § 440.10 motion, but the court did not reach the
merits of the claim because it could have been raised by
petitioner on direct appeal. An application for a writ of habeas
corpus by ...