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February 27, 2004.

WAYNE BARKLEY, Superintendent, Respondent

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2


I. Background

  A. State Court Proceedings

  According to the testimony adduced at trial, at approximately 9:30 p.m. on July 8, 1996, Detective William J. Elsenbeck of the Syracuse Police Department assisted in the execution of a search warrant at 115 Elmwood Avenue in Syracuse, New York. See Transcript of Trial of Clarence Jones (4/7/97) ("Tr.") at P. 209. As Detective Elsenbeck entered the apartment, he announced his presence and began searching for occupants (Tr. at P. 211). He observed a black male leaning over a toilet in a bathroom (Id.). Detective Elsenbeck directed the individual, who was identified at trial as petitioner, pro se Clarence Jones (Tr. at P. 215), to get down onto the floor, however, he refused (Tr. at P. 212). Detective Elsenbeck then pulled the individual away from the toilet and began searching the bowl for evidence of narcotics (Tr. at P. 273).*fn1 When he could not locate any, he radioed a fellow officer who was in the basement of the apartment, and indicated to him that he believed Page 3 evidence had been flushed down the commode (Tr. at P. 214). Upon being notified of Detective Elsenbeck's suspicions, Detective Leon Dadey of the Syracuse Police Department, who was in the basement of the Elmwood Avenue apartment, broke through the sewer pipe in the residence and immediately began diverting the water flowing in that pipe so that its contents could be examined (Tr. at PP. 189-91). Detective Dadey soon secured a plastic sandwich bag from the sewer pipe which contained numerous smaller bags (Tr. at PP. 191-92).*fn2 After securing that evidence, Detective Dadey searched the second floor of the apartment and discovered a loaded .25 caliber handgun in the rear bedroom of the home (Tr. at P. 193). An additional thirty-nine orange-colored plastic baggies containing beige chunky substances were discovered in the kitchen of the residence during the execution of the search warrant (Tr. at PP. 243-45).*fn3

  An Onondaga County grand jury charged Jones with criminal possession of a controlled substance ("CPCS") in the third, fourth and Page 4 seventh degrees, and fourth degree criminal possession of a weapon. See Indictment No. 96-1134-1. Beginning on April 7, 1997, Jones was tried before a jury on these charges with Onondaga County Court Judge J. Kevin Mulroy presiding. The jury convicted Jones on all charges (Tr. at PP. 438-41). He was thereafter sentenced by Judge Mulroy as a predicate felon to an indeterminate term of imprisonment of eight to sixteen years on the third degree CPCS conviction, with lesser, concurrent sentences on the remaining convictions. See Sentencing Tr. (5/5/97) at PP. 7-8.

  Jones appealed his convictions and sentences to the New York State Supreme Court, Appellate Division, Fourth Department. That court reversed Jones' conviction for seventh degree CPCS in light of his conviction for third degree CPCS, but otherwise affirmed the convictions and sentences imposed. Jones, 254 A.D.2d 780 (4th Dept. 1998). The Court of Appeals denied Jones leave to appeal. People v. Jones, 92 N.Y.2d 1050 (1999). Although Jones claims he did not file any other state court challenges to his conviction (Pet. at ¶ 10), based upon the state court records provided to the court by the respondent, it is apparent that Jones filed a motion to vacate his judgment of conviction pursuant to Page 5 § 440.10 of New York's Criminal Procedure Law ("CPL") on November 14, 1997.*fn4

  B. This Proceeding

  Jones filed his habeas petition together with a supporting memorandum on August 25, 1999 (Dkt. Nos. 1-2). This court then issued an order directing the respondent to file a response to the petition (Dkt. No. 3) ("September 1999, Order"). The Office of the Attorney General for the State of New York, acting on respondent's behalf, subsequently filed an answer and memorandum in opposition to the petition, and provided the court with the records associated with the relevant state court proceedings (Dkt. Nos. 6-7).

  II. Discussion

  A. Failure to Notify Court of Current Address

  Since the filing of respondent's opposition to the petition, correspondence sent to Jones from the court at his last known address has been returned as undeliverable. See Dkt. Nos. 14-15, 17.

  Jones was specifically advised that he was required to keep the court and the respondent apprised of his current address, and that his Page 6 failure to do so would result in the dismissal of his action (September 1999, Order at PP. 3-4). Since Jones has failed to comply with this aspect of the court's September 1999, Order for more than five months, see Dkt. Nos. 14-15, this court could dismiss Jones' petition on this basis alone. Williams v. Faulkner, 95-CV-741, 1998 WL 278288, at *1 (N.D.N.Y. May 20, 1998) (Pooler, D.J.) (citing N.D.N.Y.L.R. 41.2(b)). However, the petition is also without merit.

  B. Standards of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a claim:
that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see a/so, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The Page 7 AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's Page 8 determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.

  C. Substance of Petition

  1. Ground One

  In his first ground, Jones claims that Judge Mulroy improperly denied the jury's request to view the crime scene (Pet. at Ground One). Specifically, Jones argues that Judge Mulroy only denied the request because he was under the mistaken impression that the CPL prohibited him from allowing the jurors to view the scene after the summations of the parties, and that the denial of the request warrants ...

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