Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McKELVEY v. DUNCAN

July 20, 2004.

ARNOLD McKELVEY, Petitioner,
v.
GEORGE B. DUNCAN, SUPERINTENDENT, GREAT MEADOW CORR. FACILITY, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Arnold McKelvey ("McKelvey") has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his confinement by the state of New York is unlawful because: (1) the trial court's determination on his pretrial suppression motion, which permitted the state to use physical evidence at his trial but denied the state the opportunity to use a statement obtained from him, was erroneous; (2) the trial court's determination to sentence him as a persistent violent felon, pursuant to New York law, ran afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000); (3) his trial counsel rendered ineffective assistance to him by failing to challenge the validity of the underlying convictions pertinent to the petitioner's classification as a persistent violent felon, resulting in the court's imposition of an unlawful sentence; and (4) his trial counsel rendered ineffective assistance to him by advising him not to contest, in the trial court, the validity of the prior convictions used by the court to classify him as a persistent violent felony offender.

  II. BACKGROUND

  McKelvey was charged with criminal possession of a weapon in the third degree by a New York County grand jury. Prior to the commencement of his trial, McKelvey moved to suppress the physical evidence, a gun recovered from a bag law enforcement officers had seen him carrying prior to his arrest, and statements he made to the officers who effected his arrest. The trial court held a hearing in connection with that motion. At the conclusion of the hearing, the court determined to suppress the statements McKelvey had made to the law enforcement officers and to permit the prosecution to use the physical evidence at McKelvey's trial. A jury found McKelvey criminally culpable on the charge of criminal possession of a weapon in the third degree.

  At his sentencing proceeding, the prosecution served and filed a statement pursuant to New York's Criminal Procedure Law ("CPL") § 400.16 and Penal Law § 70.08, indicating that McKelvey had amassed two or more predicate violent felony convictions: a conviction on January 13, 1981, in the New York State Supreme Court, New York County, for the Class A violent felony robbery in the first degree; a conviction on November 7, 1983, in the New York State Supreme Court, New York County, for the Class A violent felony robbery in the second degree; and a conviction on April 5, 1988, in the New York State Supreme Court, New York County, for the Class A violent felony robbery in the second degree. McKelvey was advised that he could admit or deny that he was the person named in the predicate felony statement filed by the prosecution and, furthermore, that he could challenge any allegation made by the prosecution in that statement. McKelvey was also advised that any unchallenged allegations made in the predicate felony statement would be deemed to have been admitted by him. In addition, McKelvey was informed that he could challenge any previous conviction identified in the statement on the ground that it was obtained unconstitutionally and that his failure to make such a challenge would constitute a waiver on his part of any allegation of unconstitutionality.

  After conferring with his counsel, McKelvey admitted that he was the person named in the predicate felony statement and he advised the court that he did not wish to challenge the constitutionality of any of the convictions noted in the statement. Thereafter, the trial court found that McKelvey was "a mandatory persistent felony offender." This made McKelvey eligible for an enhanced sentence. After affording the prosecutor, McKelvey and his counsel an opportunity to be heard in connection with the sentence to be imposed upon the petitioner, the court sentenced McKelvey to 15 years to life imprisonment.

  McKelvey appealed from his conviction to the New York State Supreme Court, Appellate Division, First Department. He urged that court to upset his conviction because the testimony offered by a police officer at the pretrial suppression hearing was false and tailored to avoid a finding by the trial court that the officer had violated McKelvey's constitutional rights. McKelvey also maintained that the sentence imposed upon him by the trial court was infirm because the sentence was enhanced based upon a finding by the court that McKelvey had garnered at least two violent predicate felony convictions, a fact that he contended was neither contained in his indictment nor submitted to a jury for its determination.

  On October 9, 2001, the Appellate Division affirmed McKelvey's conviction unanimously. That court explained that the determination reached on McKelvey's suppression motion was proper. The Appellate Division also found that McKelvey's constitutional challenge to the procedure under which the trial court sentenced him as a persistent felony offender was not properly preserved for appellate review. Notwithstanding that fact, the court concluded that the constitutional challenge lacked merit. See People v. McKelvey, 287 A.D.2d 272, 730 N.Y.S.2d 857 (App. Div. 1st Dep't 2001). McKelvey sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. That application was denied by a judge of that court. See People v. McKelvey, 97 N.Y.2d 685, 738 N.Y.S.2d 300 (2001).

  In addition to the direct appeal from the conviction, McKelvey made an application in the trial court, pursuant to CPL §§ 440.10 and 440.20, that the judgment entered following his trial be vacated or, in the alternative, that his sentence be set aside and a hearing be held to determine whether the judgment should be vacated because: (a) his trial counsel advised him wrongfully not to challenge, at the time of sentence, the constitutionality of the prior felony convictions that were used to enhance his sentence; (b) his trial counsel failed to prepare properly any opposition to the prosecution's statement concerning the petitioner's prior felony convictions, which convictions McKelvey maintains were obtained illegally because i) he was never arraigned in the New York City Criminal Court to New York County indictment number 9539/87 and no corresponding Criminal Court docket number was assigned to that matter, ii) the Criminal Court case corresponding to New York County indictment number 643/88 was dismissed and he was coerced into pleading guilty under an indictment that does not appear on his prior criminal history record, iii) he was coerced into pleading guilty to New York County indictment number 964/88, which indictment pertains to a person other than McKelvey, and iv) his trial counsel failed to make a motion under the relevant CPL provision to address the matters noted immediately above; and (c) his appellate counsel rendered ineffective assistance to him because she labored under a conflict of interest due to her employment by the Legal Aid Society, which had represented McKelvey in the trial court in connection with New York County indictment numbers 9539/87, 643/88 and 964/88. McKelvey's post-judgment motions were resolved by a justice of the New York State Supreme Court who was not the presiding judge at the petitioner's trial.*fn1

  The court found that McKelvey was correct in his assertion that New York County indictment number 964/88 pertained to an individual other than the petitioner. However, after reviewing the minutes of the sentencing proceeding which referenced that indictment number, the court was convinced that McKelvey's concurrent sentences on New York County indictment numbers 643/88 and 9539/87, which were imposed pursuant to a plea agreement, were in no way affected by the mistaken reference to New York County indictment number 964/88. With respect to McKelvey's claims concerning the redaction of the foreperson's name from the various indictments noted above, and the absence of a corresponding Criminal Court docket number for the crime charged in New York County indictment number 9539/87, the court found the claims to be without merit.

  The court explained that the redaction of a grand jury foreperson's name from an indictment, before providing a copy of that document to a defendant, is routinely done by the Clerk of Court and the redaction has no bearing on the validity of the underlying indictment. Furthermore, the lack of a Criminal Court docket number that corresponded to New York County indictment number 9539/87 suggested to the court that the criminal case had been filed directly with the New York State Supreme Court, and that McKelvey's arrest was effected after he had been indicted by a grand jury. Under such circumstances, the court noted that no action would have been commenced against McKelvey in the Criminal Court for the offense(s) recited in New York County indictment number 9539/87. Moreover, the court pointed out that non-jurisdictional defects in an indictment do not give rise to relief under CPL § 440.10; therefore, McKelvey's defective indictment claim was not among the grounds for which an application could be made for relief pursuant to CPL § 440.10.

  The court also explained that, to the extent McKelvey's claims of prosecutorial misconduct and ineffective assistance of trial counsel were premised on his mistaken belief that the indictments under which he had pleaded guilty were defective or fabricated, his claims lacked merit. In addition, the court observed that McKelvey's allegation that a police officer gave perjurious testimony at a proceeding and that the prosecutor suborned that perjury was unsupported by any competent evidence, dehors the record, proffered by McKelvey. The court also noted that to the extent that McKelvey was challenging the officer's credibility based upon the record evidence, that challenge could have been made on direct appeal from the judgment of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.