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July 29, 2004.

DAVID L. MILLER, Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Loretta A. Preska, United States District Judge:

Pro se petitioner Anthony Gillespie seeks a writ of habeas corpus from his September 27, 1999 conviction of second degree burglary and sentence to fifteen years imprisonment as a predicate felon. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v. Gillespie, 287 A.D.2d 288, 288, 731 N.Y.S.2d 21, 22 (1st Dep't 2001), appeal denied, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).

  Gillespie's habeas petition raises four grounds: (1) prosecutorial misconduct by submitting insufficient evidence to the grand jury (Pet. ¶ 13(1)); (2) the prosecutor violated the Brady rule by failing to give defense counsel the police lab report (Pet. ¶ 13(2)); (3) he was denied his due process right to a fair trial due to: (i) admitting Molineux evidence even though the menacing charge had been withdrawn; (ii) failing to dismiss a juror whose "first husband was killed in a terrorist bombing"; (iii) failing to issue a supplemental instruction to the jury; (iv) concealing jury notes from defense counsel; (v) depriving petitioner of his right to be present during read-back of the jury's notes (Pet. ¶ 13(3)); and (4) he was denied effective assistance of appellate counsel (Pet. ¶ 13(4)). (See generally Dkt. No. 10: Gillespie Br.; Dkt. No. 11: Gillespie 6/28/04 Letter to Court.)

  For the reasons set forth below, Gillepsie's habeas petition should be DENIED.


  Petitioner Anthony Gillespie was arrested on Thanksgiving Day, November 26, 1998, and charged with second degree burglary and menacing. (State Opening: Trial Transcript ["Tr."] 411-12.) The charges stemmed from Gillespie's placing a bottle that looked like a "Molotov cocktail" at the front apartment door of his former girlfriend, Bridgette Brooks.

  Gillespie's Relationship with Former Girlfriend Bridgette Brooks

  At trial, Gillespie's former girlfriend, Bridgette Brooks, testified to the events of Thanksgiving Day, 1998, and to background information concerning Gillespie's violent relationship with her. (See generally Brooks: Tr. 542-619.) The prosecutor informed the jury that testimony concerning the couple's history was to show the "context of [their] relationship" so the jury could understand Brooks' legitimate fear on Thanksgiving Day. (State Opening: Tr. 404; State Closing: Tr. 719.) The evidence was introduced to demonstrate that Gillespie "was willing to hurt her before and that he would intend to hurt her again. And he knew that she knew that and that's why even more that bottle was threatening because she knew he would do something like this. Because he had hurt her before. The bottle was placed there to scare her." (State Closing: Tr. 719.) The judge gave the jury a limiting instruction that it could not be considered as propensity evidence but solely as to Gillespie's intent in placing the bottle at Brooks' door. (Charge: Tr. 746-47.) During their four-year tumultuous relationship, Gillespie lived with Brooks and her two sons, ages nine and sixteen, in Brooks' 426 West 27th Street apartment from 1995 to 1996. (Brooks: Tr. 543, 546, 578.) Brooks asked Gillespie to move out due to the negative impact of their frequent arguments on her children, but she continued to date Gillespie despite their ongoing fights. (Brooks: Tr. 546-47, 551.)

  Brooks testified that twice during their fights, Gillespie threatened to kill or injure her by vowing to "fire bomb," or "burn [her] out" of, Brooks' apartment. (Brooks: Tr. 552, 588, 617.) Brooks also testified that Gillespie resorted to violence during arguments, such as in July 1996, when Gillespie shoved Brooks into a wall, leaving her with a broken shoulder, stitches for a four-inch wound on her head, and the inability to work for weeks. (Brooks: Tr. 548-50.) Brooks declined to press charges against Gillespie for that incident, and she continued dating Gillespie because he promised he would "never do anything like that again and that he didn't mean it." (Brooks: Tr. 551.) Defense counsel did not object to Brooks' testimony regarding Gillespie's past violence and threats. (Tr. 542-53.) Indeed, defense counsel followed up on the incident during cross examination, to show that despite this history, Brooks continued to date Gillespie and even invited him over for Thanksgiving. (Brooks: Tr. 606-09.)

  In July 1998, Brooks finally ended her relationship with Gillespie because she could no longer endure the constant fighting, did not want to continue subjecting her children to it, and felt they should "just be friends." (Brooks: Tr. 547-48, 553-54, 579.) When Gillespie called Brooks a week before Thanksgiving in 1998 and informed her that he had nowhere to go for Thanksgiving, she invited him to Thanksgiving dinner at her apartment. (Brooks: Tr. 554, 580-81.) Thanksgiving Day, November 26, 1998

  On Thanksgiving Day, November 26, 1998, Gillespie came to Brooks' apartment, but around four o'clock in the afternoon they started arguing when Gillespie made inappropriate remarks in front of Brooks' son Lavert. (Brooks: Tr. 556.) Amidst the yelling, Brooks told Gillespie "this is not working I'm going to make you a plate [of food] and why don't you just leave." (Brooks: Tr. 556, 584.) Gillespie was slow to leave so Brooks told him to "please speed it up" and to "please stay away from me." (Brooks: Tr. 556, 584.) Before walking out the door, Gillespie told Brooks, "I'm going to fire bomb you." (Brooks: Tr. 557, 587, 612-13.) Brooks told him to "go now." (Brooks: Tr. 557.) About five to ten minutes after Gillespie left, Brooks and her children heard a loud bang on the door and discovered that Gillespie had thrown the plate of food she had given him all over the door. (Brooks: Tr. 557, 586.) Brooks said she then "g[o]t in a huge argument" with Gillespie, who was standing down the hallway, and he "told me I better watch my back and he said my mother should also watch her back." (Brooks: Tr. 557-58.) Brooks' sixteen year old son became very upset, and Brooks continued to tell Gillespie "to leave" as she yelled to her younger son, Lavert, to call 911. (Brooks: Tr. 558, 590, 614.) Brooks finally saw Gillespie going down the stairs to leave as she was cleaning up the food outside her door with her son. (Brooks: Tr. 559, 592-93, 611-12.)

  Police Officers Bibbons and Correa responded to the 4:15 p.m. 911 call and arrived at Brooks' apartment a few minutes later. (Bibbons: Tr. 434-36; Correa: Tr. 520-21; Brooks: Tr. 595.) The officers observed the splattered food, and found Brooks to be "upset." (Bibbons: Tr. 436, 471-72; Correa: Tr. 521-22.) Brooks told the police that Gillespie had threatened to kill her, her mother and her son. (Bibbons: Tr. 504-05.) Officers Bibbons and Correa obtained a description and picture of Gillespie from Brooks, and at approximately 4:40 p.m., they performed a vertical search of the building, checking each of the twelve floors and the two stairwells. (Bibbons: Tr. 437-42, 485-91; Correa: Tr. 522-25.) The officers prepared a a report and left the building without having found Gillespie. (Bibbons: Tr. 443, 473-74, 491; Correa: Tr. 525.)*fn1 Officer Bibbons testified that the building is locked, is not open to the public, and has signs warning "no trespassing and violat[o]rs would be prosecuted." (Bibbons: Tr. 444-45.)

  Brooks testified that after the police left, she and her children were very upset, and they were too scared to even take a plate of food to her disabled and ailing mother who lived four blocks away. (Brooks: Tr. 561.) At around 6:45 p.m., Brooks and her children heard a knock at her door, and as Brooks looked through the peep hole, she saw Gillespie "backing away from the door with something shin[]y in his hand which [Brooks] thought was to be a lighter." (Brooks: Tr. 561-62, 593, 598.) Brooks smelled smoke and fire, but was afraid to open the door until she heard her neighbors in the hallway. (Brooks: Tr. 562-63, 598-99.) When she opened the door, she saw "what [she] thought to be a [M]olotov cocktail," but upon closer inspection, she realized it was empty. (Brooks: Tr. 563, 569, 601-02.) Immediately, she closed and locked the door and called the police. (Brooks: Tr. 564.) Brooks said that even though it was empty, "it didn't make me feel a whole lot better because I thought he could still do this at any time . . . and I was afraid . . . for my life." (Brooks: Tr. 569.) She added that she felt it was "like more than a warning that he's going to try to kill [her] and it's not just [her], it's [her] children and to [her] nothing that any kind of argument doesn't warrant that." (Brooks: Tr. 618-19.)

  Officers Bibbons and Correa returned at around 7:00 p.m. and "intersected" Gillespie standing outside behind Brooks' building. (Bibbons: Tr. 445-49, 492-94; Correa: Tr. 526-27.) After asking Gillespie to identify himself, the officers handcuffed him; Officer Correa remained with Gillespie while Officer Bibbons went upstairs to Brooks' apartment where, directly in front of Brooks' door, he saw the bottle with "a little smoke coming from the top of it." (Bibbons: Tr. 451-54; 494-95; Correa: Tr. 527-28.) Officer Bibbons testified that "the first thing I did think I thought it was a Molotov cocktail." (Bibbons: Tr. 453-54, 511.) When Officer Bibbons noticed "the paper . . . wasn't actually burning," he picked up the bottle and discovered that "it was a 22 ounce [B]allentine beer bottle it had a brown paper bag stuffed in it and it had a little bit of liquid on the bottom." (Bibbons: Tr. 454, 458, 512.) The liquid did not smell like gasoline. (Bibbons: Tr. 497-98.) Officer Correa testified that when Officer Bibbons later showed him the bottle, "it looked like a Molotov cocktail." (Correa: Tr. 528.)

  At trial, both sides made clear that the "Molotov cocktail" was a fake that could not explode because the liquid in it was not ignitable. The prosecutor, in his opening statement, said that it was simply "a bottle with a piece of paper in it. It wasn't a real Molotov cocktail. It couldn't have exploded." (State Opening: Tr. 403.) The prosecutor noted that the evidence about the bottle was to show the jury that the bottle "looked frightening. Looked threatening. Looked like a Molotov cocktail." (State Opening: Tr. 404.) A photograph of the bottle taken at the precinct and the bottle itself were introduced into evidence. (Tr. 457-60; see also, Correa: Tr. 532-33.) Brooks testified that the beer bottle did not come from her apartment, because she kept no alcoholic beverages around, and she did not see Gillespie drink beer or bring beer to her apartment that day. (Brooks: Tr. 565-66.)

  Due to the incident, Brooks was "very upset" and "much more visibly shaken th[a]n [when the officers were] there the first time." (Bibbons: Tr. 455.) Brooks told Officer Bibbons about smelling the smoke and seeing Gillespie, and that she was "really frightened . . . scared." (Bibbons: Tr. 513-15.) The prosecutor argued that Gillespie was angry with and intended to scare Brooks, and knocked on her door so that she would know what he did. (State Closing: Tr. 698, 701-02, 718.) "He knocked and he lit the paper so she could smell the smoke . . . Imagine smelling smoke after the defendant had told you I'm going to burn you out." (State Closing: Tr. 718-20.) The prosecutor explained that the jury should consider Gillespie's "threats and look at the context of their relationship" to understand that Gillespie willfully and purposely intended to put Brooks in fear for her life. (State Closing: Tr. 718-19.)

  After Gillespie was arrested, he called Brooks six to ten times from jail, apologized for "Thanksgiving Day," said that "he didn't mean it," and tried to convince Brooks not to appear in court so that he would not have to be in jail. (Brooks: Tr. 570-73, 618.) Verdict and Sentence

  The jury found Gillespie guilty of second degree burglary. (Verdict: Tr. 783-86.)*fn2 On September 27, 1999 Gillespie was sentenced to fifteen years imprisonment as a predicate felon. (9/27/99 Sentencing Transcript at 6-7, 19-21.)

  Gillespie's Direct Appeal

  Gillespie's appointed appellate counsel filed a brief raising two issues: that the annotated special verdict sheet was improper and that the trial judge had penalized Gillespie for exercising his right to trial by significantly increasing his sentence over the offered plea sentence of five years. (Ex. A: Gillespie 1st Dep't Br. at 8-12, 13-15.)*fn3

  Gillespie filed a supplemental pro se brief to the First Department, claiming that:
(1) the trial judge erred in submitting jury instructions on menacing when the menacing claim was withdrawn, and that the evidence of "burglary" was insufficient (Ex. B: Gillespie Supp. Pro Se 1st Dep't Br. at 6-7); and (2) he was deprived of a fair trial and due process by cumulative trial errors including: (i) admission of prior bad acts evidence, (ii) introduction of the "Molotov cocktail" to prove intent to menace when the police lab report was negative, (iii) refusing to exclude a juror whose husband had been killed in a terrorist bombing, (iv) biased remarks by the trial judge, (v) submitting the unlawfully remained theory to the jury, and (vi) insufficient evidence of burglary (Ex. B: Gillespie Supp. Pro Se 1st Dep't Br. at 7-11).
  The First Department affirmed Gillespie's conviction. People v. Gillespie, 287A.D.2d 288, 731 N.Y.S.2d 21 (1st Dep't 2001). The bulk of its opinion dealt with the annotated verdict sheet, which the First Department found proper and, in any event, not prejudicial to Gillespie. Id. at 288-89, 731 N.Y.S.2d at 23. The First Department also held:
We have reviewed defendant's other points, including those raised pro se, and find them to be without merit.
Id. at 289-90, 731 N.Y.S.2d at 23.
  Gillespie's appellate counsel sought leave to appeal to the New York Court of Appeals, indicating two issues presented: (1) the annotated verdict sheet and (2) the sentencing issue. (Ex. E: 11/13/01 Letter to N.Y. Ct. App.) Appellate counsel submitted a three page single-spaced follow-up letter, dealing with the annotated verdict sheet issue. (Ex. E: 12/10/01 Letter to N.Y. Ct. App.) That letter ended by stating:
The need for guidance from this Court is clear. Appellant thus respectfully requests that this leave application be granted. The relevant minutes are enclosed, as is the supplemental pro se brief appellant filed in the First Department. . . . (Ex. E: 12/10/01 Letter to N.Y. Ct. App. at 3.) The prosecutor's response letter addressed only the annotated verdict sheet issue. (Ex. F: State 12/21/01 Letter to N.Y. Ct. App.)
  On March 15, 2002, the New York Court of Appeals denied leave to appeal. People v. Gillespie, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).

  Gillespie's C.P.L. § 440 Motion

  Gillespie filed a pro se C.P.L. § 440.10 motion to vacate the judgment on November 8, 2001 claiming, in relevant part: (1) a Brady violation for failure to provide the police lab report; (2) prosecutorial misconduct in submitting the bottle as evidence to mislead the grand jury and petit jury and improper prosecutorial instructions to the grand jury; and (3) insufficient evidence ...

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