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
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
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
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
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
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
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
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
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
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
Shabazz v. Artuz, 336 F.3d 154
, 161 (2d Cir. 2003) ...