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January 7, 2004.

TYRONE MARSH, Petitioner -against- GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner Tyrone Marsh, an inmate at the Green Haven Correctional Facility,*fn1 seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I Page 2 held oral argument by telephone conference on December 12, 2003. For the reasons set forth below, the petition is denied.


  During the early morning hours of June 20, 1994, Marsh broke into the Brooklyn home of police officer Cyril Parris. Once inside, he removed a black Fisher VCR. Paged by other family members who lived in the same building, Parris arrived home minutes after the burglary. While driving to the local precinct to report the crime, Parris stopped a patrol car and informed the officers that he was looking for someone with a black Fisher VCR. Parris then spotted Marsh on the street — only three blocks from Parris's home — holding Parris's VCR and talking to people in a car. Parris approached Marsh on foot with his identification displayed and ordered Parris to put down the VCR. Marsh quickly said, "It wasn't me. It wasn't me." Marsh then placed the VCR on the sidewalk, put his hands up, and ran. After running several blocks despite Parris's order to stop, Marsh again said, "It wasn't me," adding, "The VCR is mine. I'm just trying to sell it to make some money." Marsh was then arrested. Parris later confirmed that the VCR was his — a gift from his then-fiancee — by comparing the serial number on his receipts with the serial number on the VCR.

  Marsh was charged with one count of burglary in the second degree and one count of criminal possession of stolen property in the fifth degree. On March 29, 1995, Marsh was convicted by a jury of burglary in the second degree.*fn2 The sentencing court noted that Marsh, then 27 years old, had a 13-year history of criminal activity, from early misdemeanors to four Page 3 felony convictions, three for previous burglaries. Marsh did not contest the constitutionality of his prior convictions. The court further noted that Marsh had been on probation when he had committed some of his previous crimes, as well as the instant crime. The court also took into account the fact that the Department of Probation believed that Marsh was unreliable and had demonstrated an unwillingness to rehabilitate despite prior incarceration. Marsh was therefore sentenced as a persistent violent felony offender to an indeterminate term of 20 years to life.

  Marsh appealed his conviction. In his appellate brief, filed January 10, 1996, he claimed that (1) he was arrested without probable cause; (2) therefore, the court should have excluded from evidence the VCR and Marsh's statements before and during the chase; (3) in the alternative, all of his statements (including certain exculpatory ones) should have been admitted; (4) he received ineffective assistance of counsel; (5) his guilt was not proved beyond a reasonable doubt; and (6) his sentence was excessive. On March 6, 1996, Marsh moved in the Appellate Division, Second Department, to amend his brief based on allegedly newly discovered evidence that he had received under the Freedom of Information Law, N.Y. Pub. Off. Law § 84 et seq. The Appellate Division denied the request, and the Court of Appeals dismissed Marsh's appeal from that order, People v. Marsh, 88 N.Y.2d 850 (1996) (Simons, J.). On June 17, 1996, Marsh moved in the Appellate Division to hold his appeal in abeyance while he pursued a motion pursuant to New York Criminal Procedure Law section 440.10. The Appellate Division denied this motion on July 25, 1996.

  On August 5, 1996, Marsh's conviction was affirmed. People v. Marsh, 646 N.Y.S.2d 451, 452 (2d Dep't 1996). The Appellate Division wrote: Page 4

The hearing court properly determined that the complainant police officer had a reasonable suspicion justifying the pursuit and stop of the defendant, and that there was probable cause to arrest the defendant. Moreover, the hearing court properly determined that certain statements made by the defendant were spontaneous and were not the result of custodial interrogation.
The defendant's contentions regarding ineffective assistance of counsel based on a failure to conduct a proper investigation may not be determined on this appeal since they are based on alleged facts dehors the record.
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Id. (citations omitted). Marsh's application for leave to appeal to the New York Court of Appeals was denied. People v. Marsh, 89 N.Y.2d 866 (1996) (Simon, J.).

  Around September 15, 1997, Marsh filed his first federal petition for a writ of habeas corpus in this district. In that petition, Marsh raised the same claims he had presented on direct appeal to the Appellate Division. By order dated February 13, 1998, I dismissed Marsh's petition without prejudice to allow him to exhaust his ineffective assistance of counsel and excessive sentence claims. See Marsh v. Greiner, No. 97-CV-5473, slip op. at 1-2 (E.D.N.Y. Feb. 13, 1998). Around July 6, 1998, Marsh filed a pro se motion pursuant to New York Criminal Procedure Law section 440.20(1) in New York Supreme Court, Kings County, to set aside his sentence as unauthorized and illegally imposed. Marsh sought resentencing as a second felony offender rather than as a persistent violent felony offender. By order dated October 26, 1998, the New York Supreme Court denied Marsh's motion. The court found that Marsh had an extensive criminal history, had been properly given a statement pursuant to New York Criminal Procedure Law section 400.20, and had not challenged the constitutionality of his three prior violent felonies at his original sentencing for the March 29, 1995, conviction. People v. Marsh, Ind. No. 7446/94, slip op. at 4-6 (N.Y. Sup. Ct, Kings County Oct. 26, 1998). The court further Page 5 found that Marsh had misread the penal statutes mandating enhanced punishment for Marsh's series of violent felony offenses. Id. at 5. Marsh's November 15, 1998, motion in the same court to reargue his motion, or, alternatively, for reconsideration, was denied. (Resp. Ex. L1 at [1-2].) The Appellate Division denied Marsh leave to appeal from the denial of his motion to set aside his sentence. People v. Marsh, No. 98-11231, slip op. at 1 (App. Div.) 2d Dep't Jan. 29, 1999) (Santucci, J.).

  On August 23, 1999, Marsh filed a section 440.10 motion in New York Supreme Court, Kings County, seeking an order vacating his judgment of conviction. He claimed that he had received ineffective assistance of trial counsel because counsel had failed to (1) object to the admission of the VCR into evidence, (2) conduct a proper investigation into the true owner of the VCR, and (3) move to dismiss the indictment based on a violation of New York Penal Law section 450.10, since the police had returned the VCR to Parris before notifying the defense. Marsh also claimed that he had been denied a fair trial because he had not received an opportunity to inspect the VCR, and that the government had knowingly used perjured testimony at trial as to the date on which the stolen VCR was returned to Parris.

  By order dated November 12, 1999, the court denied Marsh's motion, holding that some of Marsh's claims were procedurally barred under section 440.10(2)(a) because they could have been raised on direct appeal. People v. Marsh, Ind. No. 7446/94, slip op. at 1-2 (N.Y. Sup. Ct, Kings County Nov. 12, 1999). As for the remainder of Marsh's claims, the court held that Marsh's bare allegations of ineffective assistance of trial counsel were insufficient to entitle him to a hearing or relief. Id. at 2-3. The court did, however, grant Marsh leave to renew his motion Page 6 if he could "allege specific leads or other information the attorney failed to investigate and how such investigation might have materially affected the outcome of the case." Id. at 3.

  On January 24, 2000, Marsh again moved pursuant to section 440.10 for an order vacating his judgment on the ground of ineffective assistance of trial counsel. Marsh also moved to reduce or set aside his sentence as harsh and excessive and unconstitutionally imposed for exercising his right to go to trial. Marsh's claim of ineffective assistance was based on allegations that his trial counsel did not (1) adequately consult with him about the facts of the case, (2) adequately investigate the receipts offered by Parris as proof of ownership or object to allegedly late disclosure of the receipt to the defense, (3) find and interview the employees of the store where, according to Marsh, he had himself bought the VCR, (4) make effective arguments at trial on Marsh's behalf, and (5) properly assert a New York Penal Law section 450.10 violation. By order dated June 15, 2000, the New York Supreme Court denied the motion, stating that it had come "to the inescapable conclusion that defendant's motion is without merit and must be denied." People v. Marsh, Ind. No. 7446/94, slip op. at 2 (N.Y. Sup. Ct, King's County June 15, 2000). The court found that trial counsel had provided meaningful representation and that Marsh had not been deprived of a fair trial. Id. The court further held that Marsh's excessive sentence claim was barred under section 440.10(2)(c). Id. at 3. The Appellate Division denied Marsh leave to appeal from the June 15, 2000, order on November 6, 2000. People v. Marsh, No. 2000-07047, slip op. at 1 (N.Y. App. Div., 2d Dep't Nov. 6, 2000) (Luciano, J.).

  In his petition for a writ of habeas corpus dated February 22, 2001, Marsh raises the following claims: (1) he was arrested without probable cause; (2) he was denied due process Page 7 when the hearing court failed to suppress the physical evidence and Marsh's statements as fruits of an illegal arrest; (3) he received ineffective assistance of counsel; (4) his guilt was not proved beyond a reasonable doubt; (5) his sentence constitutes cruel and unusual punishment, and is also unconstitutional punishment for exercising his right to trial by jury. As to his ineffective assistance claim, Marsh claims his counsel was ineffective for (1) not investigating and challenging the alleged inconsistencies with respect to the VCR receipt that Parris provided as proof of ownership, and not requesting to see the original, (2) not attempting to locate the people in the car from whom Marsh allegedly bought the VCR and to whom he was talking when Parris accosted him, (3) failing to request that fingerprints be lifted from the VCR, (4) failing to request dust samples from the basement of Parris's home to compare with dust taken off the clothes Marsh was wearing at the time of his arrest, (5) failing to effectively argue that Marsh was entitled to notice under New York Penal Law section 450.10 before the VCR was returned to Parris, (6) failing to properly argue for exclusion of the VCR, and (7) failing to present witnesses or evidence at trial.


 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Page 8 Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but Page 9 objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) ...

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