The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Cliff Jones brings this petition for writ of habeas corpus
pro se pursuant to 28 U.S.C. § 2254. Following a jury trial
in the New York State Supreme Court, Bronx County, Jones was
convicted of one count of Criminal Possession of a Weapon in the
Third Degree under N.Y. Penal Law § 265.02(3). He was sentenced
as a persistent violent felony offender to an indeterminate
prison term of 15 years to life. Jones is currently incarcerated
pursuant to that judgment at the Eastern Correctional Facility in
Napanoch, New York. For the reasons stated below, Jones's
petition should be denied.
The evidence presented at trial for the most part is not
relevant to the disposition of this petition. Nonetheless, a
brief summary is presented here to provide some context for
On March 27, 1991, Detective Michael O'Brien and Sergeant
George Griffo were driving in an unmarked police vehicle on
Boston Road toward the East Tremont Avenue intersection. (O'Brien: Tr. 59-60, 123; Griffo: Tr. 232-33). A tan, two-door,
1980 Chevrolet sedan was traveling in the same direction,
directly in front of the officers' vehicle. (O'Brien: Tr. 60, 62,
150). When the traffic light at the intersection changed from
yellow to red, the Chevrolet accelerated and then suddenly
stopped inside the intersection. (O'Brien: Tr. 60; Griffo: Tr.
233). The officers noticed that either a tail light, a brake
light, or a blinker of the Chevrolet was not functioning.
(O'Brien: Tr. 60, 63, 141-43; Griffo: Tr. 233). After the light
turned green, the officers pulled over the Chevrolet because of
its broken light and the driver's failure to stop before the
intersection. (O'Brien: Tr. 60-61, 64, 141; Griffo: Tr. 233-34).
The officers exited their vehicle and approached the Chevrolet
on foot. (O'Brien: Tr. 65; Griffo: Tr. 234-35). There were three
people in the Chevrolet: a male driver, a female in the
passenger's seat, and a male in the back seat behind the driver.
(O'Brien: Tr. 66; Griffo: Tr. 234). Jones was the individual
seated in the back seat. (O'Brien: Tr. 66; Griffo: Tr. 234).
Detective O'Brien noticed that Jones had a jacket on his lap,
over his waist, and that Jones's hands were moving underneath the
jacket. (O'Brien: Tr. 67-68). Detective O'Brien asked Jones to
move to the right, behind the passenger's seat. (O'Brien: Tr.
68-69). As Jones was moving, his jacket fell to the floor of the
car. (O'Brien: Tr. 70, 164). Detective O'Brien looked down and
saw a gun protruding from underneath the jacket. (O'Brien: Tr.
70-71, 111-13, 164).
Upon seeing the gun, Detective O'Brien grabbed Jones and
alerted Sergeant Griffo that there was a gun in the car.
(O'Brien: Tr. 71, 73; Griffo: Tr. 235-36). Sergeant Griffo
reached into the back of the car, took the gun, and handed it to
Detective O'Brien. (O'Brien: Tr. 71-72, 74, 78, 100-01; Griffo:
Tr. 236, 241). Detective O'Brien unloaded one bullet from the
chamber and three from the clip of the gun and noticed that the
serial number had been scratched off. (O'Brien: Tr. 74, 78-79, 99-100). The officers handcuffed the
three occupants of the car and transported them to the police
precinct, where the police identified Mark Brown as the driver of
the vehicle, Bonita Lee as the female in the passenger's seat,
and Jones as the individual in the back seat. (O'Brien: Tr. 61,
66, 79-80, 149, 153).
Jones presented no evidence at trial.
B. Procedural History Prior to Trial
Jones was originally indicted along with Brown and Lee under
Indictment No. 2933/91, which charged them with acting in concert
on March 27, 1991 to commit the crime of Criminal Possession of a
Weapon in the Third Degree. See Affidavit of William K. Clark
in Opposition, filed February 17, 2004 (Docket #10) ("Clark
Aff."), ¶ 7; Order, dated September 17, 1998 ("CPL § 330.30
Order") (reproduced as Ex. 1 to Clark Aff.), at 1. This
indictment was superseded by Indictment No. 6491/91, which
charged Jones and Brown alone with the same offense as in the
earlier indictment. See Clark Aff. ¶ 7; CPL § 330.30 Order at
On September 30, 1992, following various pre-trial proceedings,
Jones failed to appear for a scheduled court appearance and the
New York State Supreme Court, Bronx County issued a bench warrant
for his arrest. See Clark Aff. ¶ 8; CPL § 330.30 Order at 1-2.
After remaining a fugitive for over four years, Jones was
arrested on unrelated charges on January 11, 1997 in Ulster
County, New York, under the alias Cliff Morris. See Clark Aff.
¶ 9. He was returned involuntarily to Bronx County on the bench
warrant on July 21, 1997. See id.; CPL § 330.30 Order at 2.
On August 6, 1997, Jones moved to dismiss the indictment on the
ground that he was denied his right to a speedy trial pursuant to
N.Y. Crim. Proc. Law ("CPL") § 30.30. See Clark Aff. ¶ 10; Notice of Motion, dated August 6, 1997 ("CPL § 30.30
Motion") (reproduced as Ex. 3 to Clark Aff.), at 1. In the
alternative, Jones requested a hearing in order for the People to
demonstrate due diligence in locating him or that he was
attempting to avoid prosecution. See Clark Aff. ¶ 10; CPL §
30.30 Motion at 5. On February 5, 1998, the trial court denied
Jones's motion without a hearing, holding:
Where the People have announced their readiness for
trial before a fugitive defendant becomes absent or
unavailable, the People need not demonstrate their
due diligence in searching for such defendant to
avail themselves of speedy trial exclusion relating
to fugitive defendants. . . .
In light of the People's announced readiness, and
[Jones's] subsequent failure to return to Court, the
People are not chargeable with any time between
[Jones's] decision to become a fugitive, and his
ultimate return on the warrant. As such, [Jones's]
motion is denied.
Decision and Order, dated February 5, 1998 (reproduced as Ex. 6
to Clark Aff.), at 1.
On March 11, 1998, a third grand jury indicted Jones for two
counts of Criminal Possession of a Weapon in the Third Degree and
one count of Criminal Possession of a Weapon in the Fourth
Degree, all of which stemmed from the March 27, 1991 incident.
See Clark Aff. ¶ 14; CPL § 330.30 Order at 2; see also
Indictment No. 1753/98, dated March 11, 1998 (reproduced as Ex. 7
to Clark Aff.). The People had been granted leave to re-present
the case to cure a defect in the second indictment caused by a
change in New York law resulting from the decision of the Court
of Appeals of New York in In re Rodney J., 83 N.Y.2d 503
(1994). See Clark Aff. ¶ 14; CPL § 330.30 Order at 2.
On June 2, 1998, a jury convicted Jones of one count of
Criminal Possession of a Weapon in the Third Degree under N.Y.
Penal Law § 265.02(3) for his possession of a firearm that had been defaced for the purpose of concealment. (Tr. 446).
He was acquitted of the other third-degree possession count,
which related to his possession of a loaded firearm. (Tr.
446).*fn1 On October 8, 1998, Jones was sentenced as a
persistent violent felony offender to an indeterminate ...