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McKELVEY v. DUNCAN

United States District Court, S.D. New York


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 conviction. However, since McKelvey had elected not to pursue an appeal on that basis, he was barred from raising the matter through an application for post-judgment relief under CPL § 440.10.

  McKelvey's claim that he received ineffective assistance from his appellate counsel was not a matter that could be raised properly through a CPL § 440.10 motion. Notwithstanding this fact, the court pointed out that the advice McKelvey received from his appellate counsel, to withdraw his appeal, could not reasonably constitute ineffective assistance of counsel because a successful appeal would have exposed McKelvey to a sentence greater than the sentence he received as a result of the negotiated plea agreement pursuant to which McKelvey tendered his plea of guilty. Furthermore, the court indicated that, had an appeal been successful and McKelvey's plea of guilty vacated, McKelvey faced not only the prospect of a stiffer sentence but also ran the risk that consecutive sentences might have been imposed upon him.

  The court also indicated that McKelvey's claim that he was sentenced improperly as a mandatory persistent felon, under New York County indictment number 9193/97, could not withstand scrutiny because the grounds for challenging his 1988 convictions: irregularities in the indictments as noted above, were unfounded. Consequently, the court found that McKelvey's counsel was not ineffective in failing to challenge the petitioner's predicate felon status on those grounds. In addition, the court also found that, to the extent McKelvey was making a constitutional challenge to the process through which a court adjudicates a person a persistent felony offender, as opposed to a challenge to the validity of the underlying convictions, McKelvey had already made that argument to the Appellate Division and that court had rejected it. Therefore, after considering all of the matters raised by McKelvey, the court denied his post-judgment motions.

  III. DISCUSSION

  Fourth Amendment Claim

  McKelvey challenges the decision rendered by the trial court on his motion to suppress physical evidence. He maintains that because the police officer who testified on behalf of the prosecution at the suppression hearing gave testimony that was inconsistent with testimony he had given during his appearance before the grand jury, concerning whether he had observed McKelvey discard a bag from which a firearm was recovered at the time of McKelvey's arrest, the court should have found that the officer was not a credible witness. McKelvey also maintains that the court should have found that the officer had tailored his testimony in order to avoid a constitutional objection and, as a consequence, the court should have suppressed the firearm that was recovered at the time of his arrest. McKelvey contends that the court's failure to suppress that weapon violated his Fourth and Fourteenth Amendment rights.

  In Stone v. Powell, 428 U.S. 465, 481-82, 96 S.Ct. 3037, 3046 (1976), the United States Supreme Court held that "where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial." In this judicial circuit, "federal courts can review the Fourth Amendment claims otherwise precluded by Stone, only (a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Montero v. Sabourin, No. 02 Civ. 8666, 2003 WL 21012072, at *5 (S.D.N.Y. May 5, 2003) (quoting Capellan v. Riley, 975 F.2d 67, 70 [2d Cir. 1992]).

  Furthermore, where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonably application of, Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

  CPL §§ 710, et seq. provide a procedure for litigating Fourth Amendment claims. Specifically, CPL § 710.60 provides for a pretrial hearing, or hearings, to determine whether evidence sought to be used at trial is inadmissible because it violates the rule set forth in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). In the case at bar, McKelvey availed himself of the procedure by filing a pretrial motion seeking, inter alia, the suppression of the physical evidence seized at the time of his arrest. A Mapp hearing was held at which time the inconsistencies in the testimony given by the officer at the hearing and during his appearance before the grand jury were explored, although the trial court denied that portion of McKelvey's suppression motion that pertained to the physical evidence seized at the time of his arrest. Nevertheless, McKelvey enjoyed a full and fair opportunity in the trial court to litigate his claim concerning the propriety of the use at his trial of the physical evidence seized at the time of his arrest. Consequently, McKelvey was not precluded from using the relevant state corrective mechanism because of an "unconscionable breakdown" in the process.

  Furthermore, McKelvey sought and received further review of his Fourth Amendment claim by way of the direct appeal from his conviction to the Appellate Division. That court affirmed the conviction and the petitioner's application for leave to appeal to the New York Court of Appeals was denied. Therefore, since McKelvey had a full and fair opportunity to litigate his Fourth Amendment claim, in both the trial and appellate courts of the state, habeas corpus review of that claim is precluded.

  Apprendi Claim

  McKelvey maintains that the enhanced sentence imposed upon him, 15 years to life imprisonment, because of his status as a persistent violent felon, violated his Sixth and Fourteenth Amendment rights because the prior convictions, which were the predicate for the court's finding that he was a persistent violent felon, were matters that were neither contained in his indictment nor submitted to his jury so that it might determine whether the existence of the prior convictions was proved beyond a reasonable doubt by the prosecution. The Appellate Division determined that McKelvey failed to preserve the instant claim for appellate review and, in any event, that his claim was without merit. See People v. McKelvey, supra.

  A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So. Ct. 2546, 2553-54 (1991). The Second Circuit has advised that federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where, as in the instant case, the state court has also ruled in the alternative on the merits of the federal claim. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). However, in a circumstance where a habeas corpus petitioner can show cause for the default and prejudice attributable thereto or demonstrate that the failure to consider his federal claim will result in a fundamental miscarriage of justice, the Supreme Court has held that a federal court can entertain the petitioner's federal claim that was procedurally defaulted in the state court. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989).

  Here, McKelvey has not shown cause for his default and actual prejudice as a result of the alleged violation of federal law nor has he demonstrated that failure to consider his claim will result in a fundamental miscarriage of justice. Consequently, McKelvey is not entitled to have the court review the Apprendi claim he has asserted based upon the enhanced sentence he received due to his persistent violent felon status. Ineffective Assistance of Counsel

  McKelvey claims that his trial counsel provided ineffective assistance to him by failing to challenge "properly" the persistent violent felony offender statement presented to the trial court at the time of his sentencing proceeding. This claim was the subject of a post-judgment motion made by McKelvey pursuant to CPL §§ 440.10 and 440.20. As noted above, a decision on that motion was rendered in the trial court. However, the record before the Court indicates that McKelvey never sought leave from the New York State Supreme Court, Appellate Division, to appeal from the trial court's decision on his motion.

  In New York, an application for leave to appeal to the Appellate Division must be made within thirty days of service upon the movant of a copy of the order to be appealed. See CPL § 460.10(4). When the period fixed by the statute for seeking leave to appeal to the Appellate Division has elapsed, an application for an enlargement of that time may be made pursuant to CPL § 460.30. However, that statute makes clear that "[s]uch motion must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter." Since the record before the Court does not indicate that McKelvey ever sought to appeal from the determination rendered on his post-judgment motion, and more than a year has elapsed since the decision on that motion was issued, it is not likely that McKelvey could satisfy the "due diligence" requirement found in CPL § 460.30(1) that would justify extending the time for him to take an appeal. Thus, McKelvey failed to exhaust his state-court remedies with respect to his ineffective assistance of trial counsel claim. Inasmuch as it appears that he can no longer present his ineffective assistance of trial counsel claim in the state court, that claim is now procedurally barred. As a result, that claim may be deemed exhausted by the court for the purpose of habeas corpus review. See Harris, 489 U.S. at 263 n. 9, 109 S.Ct. at 1043 n. 9; Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).

  Given that McKelvey has procedurally defaulted his ineffective assistance of trial counsel claim, he must show cause for the default and actual prejudice resulting therefrom or that he is actually innocent before the court may entertain the claim. See Harris, 489 U.S. at 262, 109 S.Ct. at 1043; Diguglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004). This he has not done. Therefore, McKelvey is not entitled to habeas corpus relief on his ineffective assistance of trial counsel claim.

  IV. RECOMMENDATION

  For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be denied.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R. Civ. P.6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, New York, New York 10007, and to the chambers of the under-signed, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298,300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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