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November 30, 2000


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


Pro se petitioner Joseph Kearse seeks a writ of habeas corpus to challenge his October 27, 1995 conviction in the New York State Supreme Court, New York County, on charges of Robbery, Unlawful Imprisonment, and Criminal Possession of Stolen Property.

Kearse raises two claims in his petition: that the jury convicted him on the basis of legally insufficient evidence and that he received ineffective assistance of appellate counsel. In opposition to Kearse's petition, Respondent argues that the petition is untimely under the federal habeas corpus statute, that Petitioner's sufficiency of the evidence claim is unpreserved for federal review and that Petitioner was afforded effective assistance of counsel. For the reasons set forth below, I conclude that Kearse's petition is timely, that his legal insufficiency claim is procedurally barred and in any event meritless and that his ineffective assistance claim also lacks merit.

I. Factual Background

The charges against Kearse stem from the September 9, 1994 robbery of Karl Johnson in Queens, New York. At trial, witnesses for the prosecution testified to the following facts. At approximately 10:30 p.m., a radio dispatcher directed Johnson, a taxi-cab driver for York Car Service, to pick up a couple in the vicinity of 120th Avenue and 153rd Street in Queens and to take them to Jamaica Hospital. Upon arriving in that area, Johnson radioed the dispatcher and was given the exact address of 153-29 120th Avenue. Johnson pulled up to the curb in front of the apartment building at that address and noticed Kearse, dressed in black and with no hair on his face or scalp, sitting on the porch of the house next door. Johnson watched as Kearse rose and approached the front door of the passenger side of the taxi. Johnson asked Kearse whether he had called for a taxi. Kearse responded that he had and then opened the rear passenger-side door and entered the car. (Trial Tr. 337-44.)

Kearse sat on the right side of the back seat of the cab. Johnson, facing him, asked where his companion was. Kearse responded that she was coming out of the house. Kearse asked Johnson for a price, and Johnson radioed the dispatcher. Shortly thereafter, Kearse moved to a position directly behind Johnson, placed his hand around Johnson's throat, and held a black handgun to the back of Johnson's head. Johnson then pulled money from his shirt pocket and said, "take the money and go." Kearse took the money and then again grabbed Johnson around the neck, ordering him to reverse the car. (Id. 342-46, 372, 375.)

Several minutes later, Police Officer Robert Spadaccini responded to Johnson's location. After giving an account of the incident to Officer Spadaccini, Johnson canvassed the neighborhood with the police in a marked police van. (Id. 354-56, 382-83, 414-15.)

Police Officer John Michaud, assigned to a foot post nearby at 134th Street and Guy R. Brewer Boulevard, received a radio transmission of a man being robbed of his money and his taxi-cab and a description of the taxi. While conducting vehicle checks, Officer Michaud heard another officer yell to Kearse, who was driving a white taxi, to put on his seatbelt. The taxi moved from the right lane to the left lane of traffic, and Officer Michaud stopped the taxi after observing petitioner fumbling with his seatbelt. Officer Michaud was five to ten feet from the taxi when he asked Kearse for his license and registration through the open window. Kearse, wearing white surgical gloves and all black clothing, exited the taxi and started to look for identification. Unable to find any, Kearse again entered the taxi and drove off, swerving through traffic and onto the sidewalk, and finally crashing into a street sign. (Id. 463-71.)

Meanwhile, unable to find Kearse, Officer Spadaccini decided to return to the 113th Precinct so that Johnson could fill out a police report. En route to the 113th Precinct, a radio transmission from the foot post at 134th Street and Guy R. Brewer Boulevard indicated that Johnson's taxi had been located. Approaching Guy R. Brewer Boulevard, Officer Spadaccini and Johnson saw the taxi. The owner of a nearby house then informed the officers that a person fitting Kearse's description had jumped out of the taxi and had run across her yard towards the Conduit and Rockaway Boulevard. (Id. 356-57, 416-20, 472.)

Officer Spadaccini and Johnson again drove around the neighborhood looking for Kearse. Driving along the Conduit they noticed two males near an empty lot. In response to Officer Spadaccini's questioning, the two males pointed towards a residential area across the Conduit. Officer Spadaccini continued south on 175th Street in that direction, and Johnson pointed out Kearse, who was walking southbound. (Id. 357-59, 420-23, 455.)

Johnson was able to see Kearse, who was wearing a black t-shirt that was wet with perspiration, through the windshield as he walked towards the police van. The officers left the van and seized Kearse. Officer Spadaccini put his hands on Kearse's chest and noticed that his heart was beating rapidly. The officers then began searching him. Johnson also exited the van and observed the search because he wanted to be certain that Kearse was, in fact, the perpetrator. The police found Kearse in possession of one ten dollar bill, eight one dollar bills, seven quarters, two dimes, one nickel and two pennies. After Johnson identified Kearse as the perpetrator, the police officers took him into custody. Officer Michaud arrived at the location and identified Kearse as the man who had driven the taxi through the check point. (Id. 360, 389-92, 427-28, 445, 452, 472.)

II. Procedural ...

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