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May 5, 2000


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Petitioner pro se Charles Cowan, an inmate at Green Haven Correctional Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 et seq. Petitioner seeks to collaterally attack a judgment of the Supreme Court of Orange County, which followed a jury trial. Petitioner claims that he was denied effective assistance of both trial and appellate counsel; that he was prejudiced by the People's failure to turn over a toxicology report on the deceased; and that he was denied due process and his right to a fair trial. For the reasons that follow, the petition is dismissed.


On November 28,1995, an Orange County, New York jury found petitioner guilty of Murder in the Second Degree; Robbery in the First Degree; Robbery in the Second Degree; Assault in the Second Degree; Criminal Possession of a Weapon in the Fourth Degree; Petit Larceny; and Criminal Possession of Stolen Property in the Fifth Degree. The convictions stem from the death of Robert Jewell on March 20, 1995.

A. Evidence Adduced at Trial

Evidence was presented at trial which showed the following: In March 1995, Jewell was living in a trailer in New Windsor, New York which belonged to petitioner's family. Petitioner had once lived in the trailer himself but, at the time of the incident, he was living in a motel. The night of March 19, 1995, petitioner was smoking crack cocaine with friends. The next morning, petitioner walked to the trailer and used a medical benefits card to pick the lock. He ate something and waited inside for Jewell to return to the trailer from work.

About 1 p.m., Jewell returned to the trailer. As Jewell entered the trailer, petitioner hit him over the head with a rolling pin he had taken from the kitchen. Jewell fell out of the trailer onto the front porch. Petitioner forced Jewell back into the trailer where the two men argued. Jewell was bleeding from the head and petitioner allowed him to get a wash cloth from the bathroom.

Petitioner then taped Jewell's mouth, feet and hands and removed his wallet, took $150 or $160 from it, and took the keys to Jewell's vehicle. Petitioner left the house and, on his way out, took the portable phone and placed it under the trailer. Petitioner then got in Jewell's car, drove to Newburgh, New York where he bought more crack cocaine, and went to a reservoir where he smoked the crack. He checked into a motel, then later took a taxi into Newburgh, again purchased crack, and went back to the motel where he spent the night.

During the afternoon before, at the Bruckner Waste Oil Company next door to the trailer, Clint Bruckner was looking out a window when he saw Robert Jewell's car leave the driveway of the trailer at a high rate of speed. About five minutes later, Jewell approached, looking excited and ashen and walking quickly. Jewell used Bruckner's phone to make a 911 call for the police. Jewell had a bump on his head and a bleeding gash behind one ear.

The police arrived and questioned Jewell, who recounted being attacked by petitioner. During the course of the questioning, the police called for an ambulance, and paramedics arrived before the interview ended. As Jewell was finishing his account, he slumped forward. When Jewell failed to respond to the efforts of the paramedics to resuscitate him, he was taken to a hospital, where he was pronounced dead at 2:02 p.m. An autopsy revealed that Jewell had a hemorrhage on the left side of his head and an enlarged heart that showed signs of a previous heart attack and a fresh heart attack. His coronary arteries were severely narrowed, limiting the blood supply to his heart. Jewell's lungs showed signs of emphysema and edema, or fluid in the lungs. Jewell's blood and urine tested negative for drugs and alcohol. The medical examiner Dr. Louis Roh testified that Jewell's death resulted from a heart attack possibly caused by stress from being struck on the head and bound.

B. Procedural History of the Case

On January 3, 1996, Orange County Court Judge Thomas J. Byrne sentenced petitioner to twenty-three years to life in state prison. Petitioner appealed his conviction to the New York Appellate Division, Second Department. In his appellate brief, petitioner argued that: (1) the People failed to show a sufficient nexus between petitioner's acts and the victim's death; (2) the trial court should not have admitted into evidence a tape recording of Jewell's 911 call to police; (3) the People failed to prove all of the elements of robbery; (4) the verdict of guilt went against the weight of the evidence; and (5) the sentence was excessive under the circumstances.

The Appellate Division affirmed petitioner's conviction and sentence in a Decision and Order dated November 30, 1998. People v. Cowan, 255 A.D.2d 596, 682 N.Y.S.2d 59 (2d Dep't 1998). The Appellate Division found that petitioner had not preserved for appellate review his contention that admission of the tape of the 911 call was improper, but noted that the tape was, in any event, admissible "because the victim was still under the excitement precipitated by the event and lacked the reflective capacity essential for fabrication." Id. The court also held that in light of petitioner's oral and written confessions and "undisputed medical testimony establishing a causal link between the defendant's acts and the victim's fatal heart attack approximately one hour after the crime occurred," the evidence was legally sufficient to support a finding of guilt beyond a reasonable doubt. Id. The court further held that petitioner's sentence was not excessive and found the rest of petitioner's contentions to be without merit. Id.

On January 5, 1999, petitioner, through counsel, applied to the New York Court of Appeals for leave to appeal the Appellate Division's decision on the five issues set forth above. The letter to the Chief Justice stated as follows:

I have enclosed for your review Appellant's brief, Respondent's brief and the decision and order of the Appellate Division Second Department and ask the following:
1. That the Court consider issues one through five inclusive of the Appellant's brief and permit the filing of briefs thereto.

(Letter from John P. Savoca to Chief Justice of the New York Court of Appeals of 1/5/99.)

On March 17, 1999, the Court of Appeals denied petitioner leave to appeal. In a petition dated August 16, 1999, petitioner asked this Court for a writ of habeas ...

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