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DAVIS v. MCLAUGHLIN

October 30, 2000

RICHARD DAVIS, A.K.A. SEDRICK PERRY, PETITIONER,
V.
HERBERT MCLAUGHLIN, SUPERINTENDENT, HUDSON CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Scheindlin, District Judge.

OPINION AND ORDER

Pro se petitioner Richard Davis, a.k.a. Sedrick Perry, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking to set aside a June 25, 1996 judgment of the Supreme Court of the State of New York, New York County, convicting him of burglary in the second degree and petit larceny. Petitioner challenges his conviction on four grounds: (1) the evidence was insufficient to support his conviction because he was not given fair notice that he could not enter the building at issue; (2) the evidence was insufficient to support his conviction because he was entering the building to seek employment, not to commit a crime; (3) his right to a speedy trial was violated; and (4) his counsel was ineffective.

For the reasons stated below, petitioner's habeas petition is denied.

I. Background

A. Factual Background

At petitioner's trial before the Honorable Judge Dorothy A. Cropper, the prosecution introduced the following evidence.*fn1 On March 27, 1995, at approximately 9:55 a.m., petitioner entered the personal office of Erin Hoffert ("Hoffert"), a sales representative employed by First Reliance Insurance Company ("First Reliance")*fn2. See Trial Transcript ("Tr."), Ex. J. to 7/28/00 Answer and Affirmation of Jerry Slater in Opposition to Writ of Habeas Corpus ("Slater Aff."), at 34. Hoffert, who was seated with her back to the door, heard petitioner enter the office. See id. She did not turn to greet petitioner because she assumed he was a messenger picking up or dropping off papers for her. See id. In the office next door, Hoffert's boss, Robert Stafford ("Stafford"), also saw petitioner enter Hoffert's office. See id. at 60, 85. Stafford then noticed petitioner standing in the doorway of the office, holding Hoffert's purse and rummaging through its contents. See id. at 33, 61-62. When Stafford yelled at petitioner, Hoffert turned and saw petitioner with her purse. See id. at 34-35, 39, 61-62.

Stafford and Hoffert, joined by co-worker Nils Hedenger ("Hedenger"), chased petitioner as he fled through the reception area and into the main hallway by the elevator bank. See id. at 35, 63-64, 100-01. Finding no elevator cars available, petitioner ran to the men's room, opened the unlocked back entrance to First Reliance, ran through the office and emerged by the front entrance reception area. See id. at 36-37, 63-64. Stafford, who had backtracked to the front, grabbed petitioner. See id. at 64-65. Stafford saw Hoffert's purse "hanging from [petitioner's] coat" and demanded that petitioner return it. Id. at 38, 40, 64-66. When petitioner said he did not have the purse, a fight ensued between petitioner and Stafford. See id. at 38, 66-67. Petitioner pushed Stafford into the main hallway. See id. at 65-66, 101. When Stafford again demanded the purse, petitioner tried to kick Stafford in the groin, missed, and then kicked him inside his right leg. See id. at 38, 66-67, 101-103. According to Stafford, petitioner was flailing and kicking. See id. at 67. Stafford hit petitioner once in the head and knocked him down.*fn3 See id. at 41, 53, 66-68, 103, 108-109. When petitioner fell, Hoffert's purse dropped out of his coat. See id. at 68. Petitioner got up and ran, but was eventually trapped by the back door, which had been locked during the pursuit. See id. at 42, 68-69, 104. The building's maintenance team assisted Stafford and Hedenger in restraining petitioner until the police arrived. See id. at 18, 70-71, 104.

At trial, Hoffert, Stafford and Hedenger all identified petitioner as the man they chased through First Reliance's offices on March 27, 1995. See id. at 39, 69, 105. Hoffert testified that she never gave appellant permission to enter the offices of First Reliance and never gave him permission to enter her private office. See id. at 45-46. She admitted, however, that she did not see petitioner enter the reception area and did not see him at all until she heard Stafford scream and saw petitioner run out of her office with her purse. See id. at 51-52. Stafford testified that he never gave appellant permission to enter the offices of First Reliance and never saw him come in. See id. at 78, 83. He did not know whether or not appellant came in through the reception area or the back door. See id. at 85-86.

B. Procedural Background

On June 11, 1996, after a bench trial before Judge Cropper, petitioner was found guilty of burglary in the second degree and petit larceny. Tr. at 149. Petitioner was acquitted on all other charges. Id. On June 25, 1996, defendant was sentenced as a predicate felon to concurrent prison terms of five to ten years for burglary in the second degree and one year for petit larceny. See Sentencing Transcript ("Sent."), Ex. J. to Slater Aff., at 15.

In his direct appeal, petitioner raised three grounds: (1) the People had not proven his guilt beyond a reasonable doubt on the burglary charge; (2) his conviction was against the weight of the evidence; and (3) he was mistakenly sentenced as a predicate felon. See 2/98 Appellate Brief for Defendant-Appellant ("Brief"), Ex. C. to Slater Aff. The Appellate Division unanimously affirmed the conviction. See 12/1/98 Decision and Order of Appellate Division ("Decision of Appellate Division"), Ex. F. to Slater Aff. The Appellate Division held that (1) the evidence of burglary in the second degree was legally sufficient — petitioner's unlicenced entry into a private office within the offices of First Reliance satisfied the trespassory element of second degree burglary; (2) the trial court properly rejected petitioner's untimely notice of intention to present psychiatric evidence, particularly since that evidence "was irrelevant to [petitioner's] ability to formulate the necessary intent"; and (3) the clerical error in the sentence and commitment sheet, stating that petitioner was adjudicated as a second violent felony offender, could not have affected the sentence imposed. Id. The Court of Appeals denied petitioner's leave to appeal. See People v. Davis, 93 N.Y.2d 872, 689 N.Y.S.2d 434, 711 N.E.2d 648 (1999).

Petitioner subsequently moved to vacate the judgment of conviction pursuant to C.P.L. § 440.10 on the grounds that (1) he was denied his right to a speedy trial under C.P.L. § 30.30; and (2) he was denied his right to the effective assistance of counsel. See 7/21/99 Motion to Vacate. Judge Cropper dismissed petitioner's speedy trial claim as "untimely since it was not made prior to the commencement of the trial in this matter." 10/20/99 Decision and Order of Supreme Court of New York ("Decision of Supreme Court"), Ex. I. to Slater Aff., at 2. Judge Cropper noted that petitioner, although represented by counsel, had filed a pro se application for a writ of habeas corpus, claiming a denial of his speedy trial rights under C.P.L. § 30.30. See id. However, immediately prior to trial, petitioner's attorney "tacitly withdrew the motion, conceding that his review of the adjournments in the case did not support the motion to dismiss the indictment on speedy trial grounds." Id. Judge Cropper concluded that petitioner's speedy trial claim had been "waived" and, even in the absence of a waiver, petitioner's counsel was correct in not asserting the speedy trial claim, as "only 29 ...


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