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January 14, 2005.

DELROY KEMP, Petitioner,
JAMES CONWAY, Superintendent, Respondent.

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


Delroy Kemp brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his February 17, 1999 conviction for three counts of Robbery in the First Degree.*fn1 He argues that: (1) the indictment voted by the grand jury was "fatally defective"; (2) New York state courts lacked jurisdiction to prosecute him because he was extradited from New Jersey to New York involuntarily and without a warrant; (3) identification testimony admitted at trial was inaccurate and derived from impermissibly suggestive procedures; (4) identification testimony was improperly admitted during grand jury proceedings; (5) the trial court's failure to order a hearing regarding his competency to stand trial violated his due process rights; (6) he received ineffective assistance of counsel; (7) the verdict sheet was defective in that it contained the names of the robbery victims, the items stolen, and the choices guilty and not guilty, and did not contain a charge of "larceny 155"; (8) the jury selection process violated state law; and (9) the prosecution's exercise of a peremptory challenge after the defense had exercised its challenges violated his Fourteenth Amendment due process rights. The respondent argues that the petitioner's claims fail on the merits, and that, in any event, habeas review is unavailable because the claims are unexhausted and procedurally barred, are not cognizable federal claims, or are not based on "clearly established Federal law."*fn2 For the reasons discussed below, I recommend that the petition be denied.


  On November 10, 1997, Delroy Kemp robbed a small card and gift shop in Manhattan at gun point. (Tr. at 34-35, 42, 55-60, 72).*fn3 The victims of the robbery were the store's co-owners, Lois Marsilio and Susan Zappone, and two of the store's customers, Carol Jacobanis and Kelly Gitter. Five days later, as Mr. Kemp was attempting to use Ms. Gitter's credit cards at a New Jersey mall, he was arrested. (Tr. at 213-16). He was subsequently extradited to New York and arraigned on charges arising from the robbery. (Pet. Memo.; Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp. Memo.") at 25).

  Following his arraignment, the petitioner participated in a lineup conducted by Detective Joseph Scalogna. (Tr. at 276, 286). According to Detective Scalogna, he assembled the lineup by recruiting individuals physically similar to the petitioner from a nearby men's shelter. (Tr. at 276-77). The witnesses to the lineup were Ms. Marsilio, Ms. Zappone, and Ms. Jabobanis; Ms. Gitter was unable to attend because she was working. (Tr. 285-87). Only Ms. Marsilio and Ms. Zappone identified the petitioner. (Tr. at 69-71, 302). Notably, Ms. Zappone had selected the petitioner's picture prior to the lineup from an array of photographs (the "photo array"). (Tr. at 343-47).

  The petitioner was indicted by a grand jury on September 11, 1998. (Indictment No. 7057-98; Resp. Memo. at 2). Several months after the indictment, defense counsel, Kenneth Salaway, requested a competency examination pursuant to New York Criminal Procedure Law ("CPL") § 730.30. (Affirmation of Michael Mays dated July 23, 1998 ("Mays Aff."), attached as Exh. S to the Declaration of Danielle Attias dated March 31, 2004 ("Attias Decl."), ¶¶ 3, 6). The basis for the request was that Mr. Kemp was mentally ill and unable to communicate with his attorney regarding the nature of the criminal proceedings. (Mays Aff., ¶ 6). Justice Charles Solomon granted the request on July 13, 1998. (Attias Decl., Exh. T). Before the examination was conducted, however, Mr. Kemp obtained a new attorney, Michael Mays, who withdrew the request for a competency examination. In his affidavit in support of the motion to withdraw the application, Mr. Mays explained that he had met with the petitioner on or about July 17, 1998 for over two hours, and that during that meeting the petitioner was "able to understand the nature of the charges pending against him" and "able to supply information . . . crucial to the defense of his case." (Mays Aff., ¶¶ 7-9). Justice Solomon thereafter vacated his prior order. (Attias Decl., Exh. T).

  The petitioner's trial was held before Justice Bonnie Wittner in New York State Supreme Court, New York County, beginning on November 5, 1998. During the second phase of the first round of jury selection, the following irregularity occurred: after the defense had exercised its peremptory challenges during that round, the prosecution was permitted to exercise one of its challenges. In an attempt to remedy any unfairness, Judge Wittner offered to allow the defense to redo its challenges. However, defense counsel declined the judge's offer. (V. at 148-50).*fn4 At the conclusion of the trial, Mr. Kemp was found guilty on all three counts of Robbery in the First Degree in violation of New York Penal Law § 160.15(4). He was subsequently sentenced, as a second violent felony offender, to three terms of 20 years, to be served concurrently. (S. at 533).*fn5 Mr. Kemp appealed his conviction and sentence to the Appellate Division, First Department, arguing that: (1) the prosecutor's exercise of a peremptory challenge after the defense had exercised its challenges violated his rights under CPL § 270.15,*fn6 as well as under the state and federal constitutions; (2) the trial judge improperly admitted evidence regarding the petitioner's arrest in New Jersey in violation of his constitutional rights; and (3) the petitioners' sentence was excessive and should be reduced in light of his mental illness. (Brief for Defendant-Appellant on Direct Appeal ("Def. App. Br."), attached as Exh. A to Attias Decl.). On February 7, 2002, the Appellate Division affirmed the petitioner's conviction and sentence. People v. Kemp, 291 A.D.2d 236, 738 N.Y.S.2d 25 (1st Dep't 2002). Specifically, it ruled that the petitioner waived his jury selection claim when he declined to accept the court's offer of a "suitable remedy" and that "[i]n any event, defendant was not prejudiced by the technical irregularity that occurred." Id. at 236. The Court of Appeals denied leave to appeal on May 29, 2002. People v. Kemp, 98 N.Y.2d 652, 745 N.Y.S.2d 511 (2002).

  In the meantime, Mr. Kemp filed a motion on July 26, 2000, seeking to vacate the judgment of conviction pursuant to CPL § 440.10 (the "440 motion"). (Notion of Motion to Vacate Judgment Pursuant to CPL § 440.10 & Affidavit in Support of CPL § 440.10, attached as Exh. F to Attias Decl.). In that motion, he stated numerous reasons why his conviction should be vacated, arguing that: (1) the indictment was defective because it had been amended improperly and contained errors and omissions; (2) the prosecution acted improperly in its initial presentation of evidence to the grand jury; (3) the admission of identification testimony derived from the lineups and photo array was improper; (4) the court should have ordered a competency hearing; (5) the trial court lacked jurisdiction to prosecute him because his extradition from New Jersey to New York was improper; and (6) he had been provided with ineffective assistance of counsel. The New York County District Attorney's office opposed the motion on the grounds that none of the arguments was properly the subject of a 440 motion, and that in any event the arguments failed on the merits. (Affirmation in Response to the Defendant's Motion to Vacate, attached as Exh. G to Attias Decl.). Justice Wittner denied the motion, "based on the People's response," on February 9, 2001. (Attias Decl., Exh H). The petitioner sought leave to appeal that decision to the Appellate Division and then to the Court of Appeals. The Appellate Division denied both requests on May 8, 2001 and June 28, 2001, respectively. (Attias Decl., Exhs. K, M).*fn7

  Mr. Kemp then filed a petition for a writ of habeas corpus to this Court. In an order dated July 23, 2003, the Honorable Michael B. Mukasey, Chief Judge, instructed the petitioner to amend the petition to include information regarding the exhaustion of his claims. As directed by Chief Judge Mukasey, Mr. Kemp then submitted the instant petition.

  Discussion*fn8 A. Defective Indictment

  The petitioner alleges that his indictment was "fatally defective," in that it was amended improperly and contained errors and omissions, and because two members of the grand jury were absent for part of the proceedings. (440 motion at 9-11). This claim must fail because it does not allege a federal constitutional violation and, as a result, habeas review is unavailable.

  "[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The defects in the indictment alleged in this case do not violate federal law or the federal constitution. There is no federal constitutional right to a grand jury indictment in state court proceedings; although the Fifth Amendment guarantees criminal defendants the right to a grand jury indictment, that guarantee does not apply to the states through the Fourteenth Amendment. See LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002).

  B. Competency

  The petitioner next alleges that the trial court violated his due process rights by failing to order a competency examination. Mr. Kemp maintains that the judge should have ordered a psychological evaluation sua sponte pursuant to CPL § 730.30 based on his irrational behavior during trial and his well-documented history of mental illness. The respondent did not address this claim. Nevertheless, it fails because ...

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