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April 22, 1999


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.


In an effort to save money for their retirement, Arthur and Charlotte Taylor supplement their income by selling diamonds and jewelry from their home (Tr. at 39). On August 13, 1992, at approximately 7:00 P.M., Arthur Taylor received a telephone call from a man who identified himself as "John" (Tr. at 40-41). The Taylors would eventually learn that John's real name was Norman Charnock. Charnock inquired about purchasing a diamond ring that Mr. Taylor advertised in the Swap Sheet (Tr. at 41, 182). An appointment was made for Charnock to arrive at Mr. Taylor's house at 7:30 that evening (Tr. at 42). At 9:30 P.M., two people arrived at Mr. Taylor's home, identifying themselves as "John" and his "father" (Id. at 42-43). Charnock's father would later be identified as petitioner.

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.


I. Unexhausted Claims.

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 ยง 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 ...

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