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 § 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 a person in the custody of a state will not issue
unless the petitioner has exhausted all state court remedies.
28 U.S.C. § 2254(b)(1)(A).
Generally, a federal court will not entertain a habeas corpus
petition from a state prisoner unless the prisoner has exhausted
state court remedies. Picard v. Connor, 404 U.S. 270, 275, 92
S.Ct. 509, 30 L.Ed.2d 438 (1971). Exhaustion of state remedies
requires presentation of the claim to the highest state court
from which a decision can be obtained. Daye v. Attorney General
of the State of New York, 696 F.2d 186, 190 n. 3 (2d Cir. 1982).
In addition, a petition that contains both exhausted and
unexhausted claims should be dismissed so that the state courts
have an opportunity to decide the unexhausted issues. Rose v.
Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
However, federal courts may deny an application on the merits,
notwithstanding a petitioner's failure to exhaust state court
remedies. 28 U.S.C. § 2254(b)(2). This allow courts to deny
habeas petitions that contain unexhausted claims that are deemed
patently frivolous. See Edkin v. Travis, 969 F. Supp. 139, 140
n. 1 (W.D.N.Y. 1997).
Accordingly, I will address the merits of petitioner's claims
even though the state courts have not had an opportunity to
address all of petitioner's claims.
II. Preclusion of Alibi Witnesses.
Petitioner argues that the trial court, in violation of his
constitutionally protected rights, impermissibly precluded his
alibi witnesses. As the Supreme Court has noted, criminal
defendants have a "right to put before a jury evidence that might
influence the determination of guilt." Pennsylvania v. Ritchie,
480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see United
States v. Giovanelli, 945 F.2d 479, 488 (2d Cir. 1991); see
also, Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98
L.Ed.2d 798 (1988).
Under New York law, after being served a notice of demand, a
defendant has eight days in which to serve the prosecution with a
list of names of any witnesses defendant intends to rely on for
an alibi. N.Y.CRIM.PROC.L § 250.20(1). If the defendant does not
file a notice of alibi, it is within the trial judge's discretion
to accept the testimony of an alibi witness. Id. § 250.20(3).
In addition, both the defendant and the prosecution have a
continuous duty to disclose the names of any additional
witnesses. Id. § 250.20(5).
The Supreme Court has upheld notice of alibi rules. See
Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 26
L.Ed.2d 446 (1970). In discussing the State of Florida's notice
of alibi provisions, the Supreme Court stated that the provisions
are an important tool to protect the State's interests:
Given the ease with which an alibi can be fabricated,
the State's interest in protecting itself against an
eleventh-hour defense is both obvious and legitimate.
Reflecting this interest, notice-of-alibi provisions,
dating at least from 1927, are now in existence in a
substantial number of States. The adversary system of
trial is hardly an end in itself; it is not yet a
poker game in which players enjoy an absolute right
always to conceal their cards until played.
Id.; see also Taylor, 484 U.S. at 412 n. 17, 108 S.Ct. 646. The
significance of the State's interest in learning of a defendant's
alibi defense was reiterated by the Supreme Court in Taylor,
when the Court noted that this was "one component of the broader
public interest in a full and truthful disclosure of critical
facts." Taylor, 484 U.S. at 412, 108 S.Ct. 646.
It is acceptable to preclude testimony that violates a state's
discovery rules. Id. at 410, 108 S.Ct. 646. "The adversary
process could not function effectively without adherence to rules
of procedure that govern the orderly presentation of facts and
arguments to provide each party with a fair opportunity to
assemble and submit evidence to contract or explain the opponents
case." Id. at 410-11, 108 S.Ct. 646. Based on the facts in this
case, petitioner's compulsory process rights were not impinged
when the trial court rejected hearing his alibi witnesses.
Petitioner acknowledges that on October 2, 1992, the first
attorney assigned to his case was served with an alibi demand
notice (Tr. at 253, 256). An additional demand to be notified of
an alibi defense was made on June 10, 1993, in the prosecutions
omnibus response (Id. at 256; Ex. B). Petitioner never informed
the prosecution of his desire to offer an alibi defense until the
issue was raised at trial, after petitioner had testified (Id.
After the lunch recess on August 22, 1994, petitioner's trial
counsel informed the court that he had two witnesses prepared to
testify about petitioner's whereabouts until 8:30 or 9:00 P.M.
the day of the robbery (Id. at 253). Petitioner intended to
call his son, and a witness by the name of Alfred Melchiorre
(Id. at 254). Petitioner's counsel also stated that he did not
learn of the existence of Mr. Melchiorre until that morning
(Id.). Both witnesses were prepared to testify that petitioner
was working with his son on a job on Sheridan Road, near Transit
Road, that lasted from 5:30 P.M. until 8:30 P.M. (Id. at
At trial, petitioner testified that he was "innocent" of the
charges (Id. at 244). However, petitioner never testified to
the fact that he was working with his son on the night of the
robbery because petitioner did not remember where he was that day
(Id. at 255).
The trial judge determined that petitioner's late offer of an
alibi defense "distort[ed] the intent of [N.Y.CRIM.PROC.L. §]
250.20" (Id. at 259-60). Besides recognizing that § 250.20
provides for notice of alibi early in the proceedings, the trial
judge found no indication of an alibi in any of the pleadings
filed by either of petitioner's two attorneys (Id. at 257). In
addition, the trial judge noted that such late notification of an
alibi "deprives the prosecution of the ability to investigate the
claim" (Id. at 258).
States are entitled to protect themselves from this type of
eleventh hour defense. Taylor, 484 U.S. at 412, 108 S.Ct. 646;
Williams, 399 U.S. at 81-82, 90 S.Ct. 1893. I find that the
trial court did not impinge petitioner's compulsory process
rights by denying petitioner the opportunity to put forth
testimony from two last minute alibi witnesses.
Accordingly, a petition for a writ of habeas corpus will not
issue on this ground.
III. Sufficiency of Proof at Trial.
Petitioner also alleges that the proof adduced at trial was
insufficient as a matter of law to convict him of burglary in the
first degree. The New York Penal Law sets forth, in relevant
part, the following elements for burglary in the first degree:
A person is guilty of burglary in the first degree
when he knowingly enters or remains unlawfully in a
dwelling with intent to commit a crime there, and
when, in effecting entry or while in the
dwelling or in the immediate flight therefrom, he or
another participant in the crime: . . . . Displays
what appears to be a pistol. . . .
N YPENAL L. § 140.30(4). Petitioner contends that he did not
remain unlawfully in the complainants' house after complainants'
permission to enter was withdrawn (Item 3).