Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 30, 2000


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


Pro se petitioner challenges his state court convictions for felony murder and robbery through this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to Magistrate Judge Grubin, who dealt with a number of preliminary matters; the Court hereby withdraws the reference. Petitioner alleges that his conviction was contrary to federal law on a number of grounds, most significantly that he was deprived of a fair trial by admission into evidence of a knife carried on his person, but never brandished or used, during the robbery and murder. For the reasons stated below, the Court denies the petition.

I. Background

A. The Crime, Investigation, and Trial

On October 12, 1990 a jury convicted petitioner of murder in the second degree and robbery in the first and second degrees after trial in New York Supreme Court, New York County, before Justice Richard B. Lowe III. The evidence at trial showed that petitioner participated in an aborted drug transaction that escalated into a robbery and ultimately a murder. The State sought both robbery and murder convictions on the theory that petitioner acted in concert with the individual (the "stabber") who fatally stabbed the victim, Michael Fedorischak, after the stabber grabbed the money Fedorischak had offered for drugs.

At approximately four o'clock in the morning on Saturday, August 12, 1989, Fedorischak and his brother-in-law Greg Randolph drove from New Jersey into Manhattan in order to buy crack cocaine. Near the Port Authority Bus Terminal they met the stabber, who offered to sell them two vials of crack; because Randolph and Fedorischak wanted more crack, they allowed the stabber into their truck to direct them to a larger supplier. The stabber then brought them to a location on Eighth Avenue near 43rd Street, a wellknown crack market at the time.

In response to the stabber's call, petitioner and another man, identified by his "lazy eye," approached the curb side of the truck, where Fedorischak was in the passenger seat; the stabber left the truck to join the others on the sidewalk. Petitioner offered to sell Fedorischak some crack cocaine, but an argument ensued over its price and quality. At some point, Fedorischak pulled several bills from his pocket and held the money in his fist. A scuffle ensued in the course of which petitioner grabbed Fedorischak's wrist, and the stabber seized the money. When Fedorischak moved to take back the money, the stabber plunged a knife into his chest, inflicting a wound that later proved fatal.

During the incident Conrad Hunter, a member of the area's street life who was familiar with both petitioner and the man with the lazy eye, approached Fedorischak's truck, spoke briefly with Randolph, and then moved to the passenger side as the exchange escalated. After the stabbing, one of the men alongside the truck threatened Randolph, who then rapidly pulled the truck away from the curb to leave the scene and search for help. Hunter ran after the truck, which was quickly pulled over by a police patrol. With the assistance of Randolph and Hunter, police arrested petitioner the night of August 12, 1989, but the stabber was never found.

After his arrest and identification as a participant in the incident, petitioner made a videotaped statement describing the events and his role; the statement was played at trial. In this statement, petitioner describes an exchange between himself and the stabber, after Randolph and Fedorischak have driven off, in which petitioner felt threatened by and angry at the stabber; during this exchange, petitioner brandished a folding knife that he had been carrying in a "fanny pack" on his waist. The knife was recovered upon his arrest. Over defense objections, references to the knife were not redacted from the videotape played to the jury, the knife itself was admitted into evidence at trial, and the State argued to the jury that petitioner's possession of the knife demonstrated his intent to commit a violent crime.

The State's case at trial centered on the eyewitness testimony of Randolph and Hunter, the latter testifying pursuant to a cooperation agreement. A previous trial ended in a hung jury.

B. Procedural History

Following entry of judgment on December 17, 1990, petitioner appealed his conviction to the Appellate Division, First Department, contending that (1) there was insufficient evidence to establish petitioner's accomplice liability for the robbery, upon which the felony murder charges also relied, and that the trial court gave incorrect instructions on accomplice liability; (2) the trial court erred in allowing evidence of and argument concerning petitioner's folding knife; (3) Hunter's direct testimony should have been struck from the record because he invoked his privilege against self-incrimination on cross-examination; (4) the trial court incorrectly gave an interested-witness instruction with reference to petitioner's videotaped statement; and (5) the trial court incorrectly classified petitioner as a predicate felon for sentencing purposes.

The Appellate Division unanimously upheld petitioner's conviction, finding introduction of the knife evidence to have been harmless error, but it remanded for resentencing. See People v. Sims, 209 A.D.2d 192, 618 N.Y.S.2d 283 (1st Dep't 1994). The Court of Appeals then denied petitioner's application for leave to appeal the Appellate Division's decision. See People v. Sims, 84 N.Y.2d 1015, 622 N.Y.S.2d 927, 647 N.E.2d 133 (1994). On remand, petitioner was sentenced to concurrent prison terms of (1) from fifteen years to life, (2) from four to twelve years, and (3) from two and one-third to eight years; he is currently incarcerated.

Petitioner presents to this Court the same claims made before the Appellate Division. The petition is dated April 18, 1997 and was received in the Court's Pro Se Office on April 25, 1997. In a Report and Recommendation dated January 8, 1998, Magistrate Judge Grubin recommended dismissing the petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997) (allowing a "reasonable time" from the AEDPA's effective date, but not necessarily a full year, to file habeas corpus petitions challenging convictions that became final prior to the AEDPA's effective date); Magistrate Judge Grubin subsequently vacated the Report on July 9, 1998, following the Second Circuit's clarification that any petition filed by April 24, 1997 is timely under the AEDPA. See Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). The Court adopts Magistrate Judge Grubin's inference that, given its arrival on April 25, 1997, the petition was timely filed under Ross. See Dory v. Ryan, 999 F.2d 679, 681 (2d Cir. 1993) (holding that the date of "filing" for pro se incarcerated litigants is the date the submission is delivered to prison officials for mailing).

II. Discussion

As detailed below, all but one of petitioner's claims are procedurally barred by his failure on direct appeal to pursue them to the New York Court of Appeals. His claim regarding introduction of the knife evidence was properly exhausted but fails on its merits, although not without raising substantial questions concerning the fairness of the trial.

A. Standard for Habeas Corpus Relief

A federal district court may issue a writ of habeas corpus on behalf of a person incarcerated pursuant to a state criminal conviction only when that custody violates "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Petitioner bears the burden of proving such a violation by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Habeas corpus relief may not be granted unless petitioner has first exhausted his state court remedies. See 28 U.S.C. § 2254(b). Pursuant to the AEDPA, a claim already adjudicated on its merits in state court may not be the basis for federal habeas relief unless the state court's legal conclusions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), or its factual determinations were "unreasonable . . . in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

B. Exhaustion of State Remedies

As respondent concedes, petitioner properly exhausted his state remedies regarding the knife evidence. (Memorandum of Law In Support of Answer Opposing Petition For A Writ of Habeas Corpus ("Resp. Mem.") at 14.) On appeal, petitioner presented his theory that admission of the knife evidence violated his federal constitutional right to a fair trial, (Appendix In Support of Answer Opposing Petition for a Writ of Habeas Corpus ("App."), Exh. A, Brief for Defendant-Appellant ("Petit.Brief") at 45), and he subsequently sought the Court of Appeals' leave to appeal the Appellate Division's ruling that admission of the knife evidence was harmless error. (App., Exh. E, Criminal Leave Application ("Leave Appl.").)

With respect to the other three claims (the "three claims"), however, petitioner's application for leave to appeal contained no more than a vague closing offer to "respond at your convenience" to "any questions about this [the knife] issue, or the other issues raised in this case." (Leave Appl. at 3.) Because petitioner may neither file a second application for leave to appeal nor seek collateral relief in state court based on claims addressed on their merits on direct appeal, see Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), the three claims are also deemed to be exhausted. See Bossett, 41 F.3d at 829; Grey, 933 F.2d at 120.

Petitioner offers no cause for his failure to raise the three claims with more specificity, and no cause is apparent from the record. See Bossett, 41 F.3d at 829 (noting that legitimate grounds for default are ineffective assistance of counsel, state interference with compliance, and claims not reasonably available to counsel at the time of default). Therefore, the Court finds that petitioner defaulted on the three claims without good cause and does not reach their merits. See Grey, 933 F.2d at 121 (holding that claims on which petitioner procedurally defaults "must . . . be dismissed without reaching the merits"); Bossett, 41 F.3d at 829 (same).

C. Improper Admission of the Knife Evidence

Petitioner claims that admission of the knife evidence violated the Due Process Clause of the Fourteenth Amendment because it had the sole purpose of suggesting his propensity for violence. The prosecutor's summation allegedly exacerbated this impropriety through the following argument:

What would you have a knife for? The answer is, you'd have a knife to use force if it was necessary to do the things you had to do. Otherwise there's no need to carry a knife. It shows that he was ready to use additional force himself, if necessary, and that he knew force was a real possibility of what might happen.

(October 10, 1990 Trial Transcript of People v. Sims, No. 9315-89, before Hon. Richard B. Lowe III ("Trial Trans.") at 414-15.) The Appellate Division rejected petitioner's argument on its merits, and although the Court considers the question a close one, the state court's decision was not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.