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May 24, 2004.

JERMAINE L. ESTWICK, Petitioner, -v.- HANS G. WALKER, Superintendent, Auburn Correctional Facility, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


This Court previously granted the pro se petitioner, Jermaine L. Estwick, a stay of this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to permit him to exhaust certain claims in state court. He has now returned to this Court for consideration of the petition. For the following reasons, the petition should be denied.


  A. State Court Proceedings

  On March 18, 1997, a jury convicted Estwick of the murder of Christopher Campbell on October 24, 1994. While the testimony at trial is of limited relevance to the disposition of this petition, the uncontested evidence — as reflected in Estwick's brief on direct appeal, see Brief for Defendant-Appellant, dated February 1999 ("Pet. App. Brief) (reproduced as Ex. 1 to Affidavit of Khari P. Prescod, filed October 22, 2001 (Docket #7) ("Prescod Aff.")), at 6-14 — showed that Campbell was killed on October 24, 1994. That day, Estwick's aunt, Olivia Gregory, received a phone call from Lucille Estwick, Estwick's mother, during which Estwick's mother stated that Estwick had killed someone. Estwick himself called Gregory later that evening and told her that he had shot Campbell in the back, taken his money, and then shot him in the head. Gregory urged Estwick to turn himself in but he refused. She then arranged for her daughter, Lorna Sills, to drive Estwick to Connecticut and contacted the police so that they could arrest Estwick en route.

  At approximately 9:00 p.m. the next day, Sills picked up Estwick to drive him to Connecticut. While they were driving, Estwick told her that he had shot Campbell in the back and then shot him in the head because "he had to kill him." Estwick asked Sills to drop him off at a hotel and she did so, signing for the room herself. Sills then met her mother and brother at another location and the police appeared shortly thereafter. Sills signed a release for the police to search the hotel room.

  In the meantime, the police stopped Estwick as he left a restaurant. Detectives from the New York Police Department drove Estwick back to the Bronx and then questioned him about the shooting. Estwick gave a detailed statement confessing to killing Campbell and also gave a videotaped statement in the presence of an assistant district attorney, both of which were considered by the jury.

  Estwick did not present any evidence and was convicted of Murder in the Second Degree under New York Penal Law § 125.25(1) and Criminal Possession of a Weapon in the Second Degree under New York Penal Law § 265.03. He was sentenced to 25 years to life for the murder conviction and five to 15 years for the weapons conviction, the sentences to be served consecutively. Estwick is currently incarcerated at the Sullivan Correctional Facility in Fallsburg, New York. 1. Direct Appeal

  In February 1999, Estwick appealed his conviction to the Appellate Division, First Department, through newly-assigned counsel. Estwick argued on appeal that (1) the trial court had abused its discretion in refusing to appoint new trial counsel because there had been "a complete breakdown in communication" between himself and his attorney; and (2) the trial court erred in imposing consecutive sentences for Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree because both convictions were based on the same acts. See Pet. App. Brief at 15-25.

  On November 23, 1999, the Appellate Division unanimously affirmed Estwick's conviction on the grounds that (1) the trial court properly exercised its discretion in denying Estwick's request for a substitution of counsel because he had not established "good cause" for such substitution; and (2) the consecutive sentences were "properly imposed." People v. Estwick, 266 A.D.2d 123, 123-24 (1st Dep't 1999).

  In a letter dated December 21, 1999, Estwick, through counsel, requested leave to appeal to the New York Court of Appeals on the issues raised in his brief to the Appellate Division. See Prescod Aff. ¶ 8. On March 13, 2000, the Court of Appeals denied Estwick's application for leave to appeal. See People v. Estwick, 94 N.Y.2d 918 (2000).

  2. Motion to Vacate

  On November 28, 2000, Estwick moved, pro se, to vacate his conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. In this motion, Estwick claimed that (1) his sentence was illegal and harsh, see Notice of Motion to Vacate Judgment, dated November 28, 2000 ("440.10 Motion") (reproduced as Ex. 4 to Prescod Aff); (2) his trial counsel was ineffective for failing to "put the effort in working with [him]" to suppress his confession, Affidavit in Support of Motion to Vacate, dated November 28, 2000 ("440.10 Aff") (reproduced as Ex. 4 to Prescod Aff.), at 2; and (3) his confession was illegally obtained, see 440.10 Motion; 440.10 Aff. at 1-2.

  On February 21, 2001, the Supreme Court, Bronx County, issued a decision denying Estwick's CPL § 440.10 motion in its entirety on the grounds that (1) Estwick's sentencing claim was procedurally barred both under CPL § 440.20(2) because this claim was raised and decided on the merits on direct appeal and under CPL § 440.10(2)(d) "since it involves only a sentencing matter," Decision, dated February 21, 2001 ("440.10 Decision") (reproduced as Ex. 6 to Prescod Aff), at 1-2; (2) Estwick's ineffective assistance of counsel claim was barred under CPL § 440.10(2)(c) because sufficient facts appeared on the record to have permitted appellate review of this claim but Estwick had failed to raise it in full on direct appeal, Id. at 2; and (3) CPL § 440.10(2)(c) similarly barred Estwick's claim as to the admissibility of his confession because the claim could have been raised on direct appeal but was not, id. at 3-4. In addition, the court stated that even if Estwick's ineffective assistance of counsel claim were to be decided on the merits, the motion to vacate would still be denied. Id. at 2. In making this determination, the court found that there was nothing in the record to support Estwick's "self-serving allegations" that he received "less than meaningful representation" and also found that his counsel's performance was consistent with that of a "reasonably competent attorney." Id. at 3.

  B. Proceedings Subsequent to the Filing of the Petition

  Estwick submitted the instant habeas petition while his motion to vacate was still pending in the State Supreme Court. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed March 14, 2001 (Docket #1) ("Petition"). Estwick's petition is dated December 18, 2000 and is stamped "received" by the Pro Se Office of this Court on January 23, 2001. The petition asserts four grounds for relief: (1) Estwick was denied effective assistance of trial counsel because his counsel failed to communicate with him in preparation for trial and did not represent him "to her ability"; (2) the sentence was "illegal & harsh"; (3) Estwick's confession was illegally obtained because he was questioned for "about an hour or so with yelling and threats"; and (4) his confession was the product of a custodial interrogation without Miranda warnings. Id. ¶ 12; see also Memorandum of Law, dated December 22, 2000 (annexed to Petition).

  1. Initial Decision on Petition

  On January 29, 2002, the undersigned issued a Report and Recommendation solely regarding the issue of whether any aspect of this case should be stayed to permit the exhaustion of remedies. See Report and Recommendation, filed January 30, 2002 (Docket #9) ("R&R"). Because it was clear that Estwick had not sought leave to appeal the denial of his motion to vacate as is required to show exhaustion, see Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990), this Court recommended dismissing Grounds One, Three, and Four to allow Estwick to exhaust these claims and staying Ground Two in ...

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