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April 6, 2005.

KARL McCALLA, Petitioner,

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Petitioner, Karl McCalla ("McCalla"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  On September 30, 1995, Officer Frascati of the Rochester Police Department received a tip at about 8 p.m. from a confidential informant about a gold-colored minivan that allegedly contained drugs. Officer Frascati notified Officers Holmsten and Jeroy who located a vehicle matching that description parked on the corner of Lakeview Park and Dewey Avenue in the City of Rochester. Officers Holmsten and Jeroy approached the minivan and activated the overhead flashing lights on their patrol car. When they were about ten to fifteen feet away, still in their patrol car, the gold minivan suddenly started backing up. Officer Holmsten observed a man whom he later learned was McCalla in the driver's seat of the minivan. S.29-31, 43-44.*fn1 Officers Holmsten and Jeroy, along with Officer Frascati in a separate car, gave chase to the minivan, which continued backing up until it reached the intersection of Lakeview Park and Pierpont Street. At that point it started traveling in a forward direction. The officers pursued the minivan as it passed through several stop signs without stopping or slowing down. When the minivan was in the vicinity of Raines Park, Officer Holmsten observed, from a distance of about fifty feet, a fairly small, semi-reflective, plastic-wrapped object being thrown from the driver's side of the minivan. However, Officer Holmsten did not see the object land. S.32-34, 52.

  About three hundred feet further, the minivan attempted to negotiate a left-hand turn and ended up on the curb, at which point McCalla was apprehended. Approximately ten minutes later, Officer Holmsten returned to the area around Raines Park where he had seen the plastic-wrapped object thrown from the vehicle. He noticed several citizens waving their arms to flag him down. One of these individuals produced a plastic bag out of a wooden basket which appeared to be the same object that Officer Holmsten had seen tossed from the minivan. The witnesses related to Officer Holmsten that they had seen people in vehicles and on bicycles driving slowly through the area, looking on the ground. The witnesses refused to give their names to Officer Holmsten because they did not want to get involved. S.35, 56-58.

  Officer Holmsten retained possession of the plastic bag, which was field-tested at the scene and found to be positive for the presence of cocaine. Officer Holmsten brought the bag to the Public Safety Building and gave it to Officer Feor. It was out of Officer Holmsten's sight for about a minute, and then he turned the bag over to the Property Clerk for storage. S.37-39.

  Once at the Public Safety Building, McCalla was interviewed by Officers Feor and Frascati, who showed him the plastic bag recovered at the scene. McCalla said nothing in response. Officer Feor then read him his Miranda warnings from a rights card. McCalla agreed to waive his rights and speak to Officer Feor. Officer Feor testified that he neither threatened McCalla, nor promised him lenity in return for talking with him. Officer Feor indicated that McCalla told him that he had a twelfth-grade education. Officer Feor reduced the information received from McCalla into a narrative statement, which McCalla read aloud and then signed. S.7-10, 13-14.

  Given the People's failure to call Officer Frascati, defense counsel challenged the reliability and sufficiency of the information available concerning the presence of drugs in McCalla's vehicle. In a ruling issued from the bench, Monroe County Court Judge Charles T. Maloy rejected defense counsel's argument that McCalla was stopped without cause and that the police acted illegally in activating their emergency lights as they proceeded down the street on which McCalla was parked. Judge Maloy held that whether Officer Frascati had a confidential informant was "immaterial," since sufficient probable cause to stop arose when McCalla took off in reverse at a considerable rate of speed, committed several traffic infractions, and threw the bag out the window. S.70-71, 73. Consequently, no Darden*fn2 hearing was required. Judge Maloy observed, however, that if the police had stopped McCalla while he was just sitting parked in his vehicle, "all would have to have been brought [sic] at a hearing with Frascati." S.72. Judge Maloy held McCalla's post-arrest statement to be admissible at trial.

  McCalla was tried before a jury in Monroe County Court. Officer Frascati did not testify at trial. McCalla did not testify in his own behalf, and his statement to the police was introduced into evidence.*fn3 A chemist from the Monroe County Public Safety Laboratory testified that the bag tossed from the minivan window contained 3.7 ounces of cocaine. T.361. At the close of proofs, defense counsel requested a missing witness charge regarding Officer Frascati, and the People opposed on the basis that any testimony from him would be cumulative. T.396-97. Judge Maloy declined to charge the jury with a missing witness instruction.

  McCalla was convicted on May 28, 1996, of one count of Second Degree Criminal Possession of a Controlled Substance and one count of Third Degree Criminal Possession of a Controlled Substance. He was sentenced on July 10, 1996, to concurrent terms of imprisonment, with the maximum sentence being 6 years to life.

  Represented by the Monroe County Public Defender's Office, McCalla appealed his conviction to the Appellate Division, Fourth Department. The sole issue raised was the trial court's alleged error in failing to give a missing witness charge. The Fourth Department unanimously affirmed his conviction on May 7, 1999. People v. McCalla, 261 A.D.2d 967 (App.Div. 4th Dept. 1999). The New York Court of Appeals denied leave to appeal on November 30, 1999. People v. McCalla, 94 N.Y.2d 826 (N.Y. 1999).

  On November 24, 2000, McCalla filed a federal habeas petition (No. 00-CV-6589) pursuant to 28 U.S.C. § 2254 in the Western District of New York. See Petitioner's Reply to Respondent's Answer ("Pet'r Reply") at 2 (Docket #13). This petition contained unexhausted claims and was dismissed without prejudice on January 25, 2001, because it contained unexhausted claims. See 1/25/01 Order (Docket #3), in McCalla v. Greiner, No. 00-CV-6589.

  McCalla returned to state court to exhaust these claims and filed an application for a writ of error coram nobis alleging the ineffective assistance of appellate counsel on March 9, 2001. This was summarily denied by the Appellate Division, Fourth Department, on June 8, 2001. People v. McCalla, 284 A.D.2d 1022 (App.Div. 4th Dept. 2001). At the time McCalla's coram nobis application was in state court, New York's procedural rules provided that the Court of Appeals could not review a denial by the Appellate Division of such an application, making the claim fully exhausted at this juncture.

  McCalla filed another federal habeas petition in this Court on June 11, 2001. See Petition ("Pet.") (Docket #1). Finding that this habeas petition also appeared to contain unexhausted claims, the Court directed McCalla to file an amended petition raising only those grounds for which state court remedies had been exhausted, or to withdraw the entire petition in order to return to state court to exhaust all of the claims. See 7/3/01 Order (Docket #2). McCalla elected to pursue the first course of action, and filed an amended petition on July 20, 2001. See Amended Petition ("Amend. Pet.") (Docket #3).

  McCalla's proposed amendments to his petition relate back to the date the original petition was filed since the claims presently asserted "arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). Thus, for statute of limitations purposes, McCalla's amended petition relates back to the filing date of the original habeas petition pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000) (Rule 15(c) applies to amendments to habeas corpus petitions filed pursuant to 28 U.S.C. § 2254).

  Here, McCalla signed his original petition in the presence of a notary public on June 11, 2001. See Pet. at 7 (Docket #1). Generally, when a petitioner is proceeding pro se, the "mailbox rule" applies, and the date of filing is determined from the date certified by the petitioner that the completed and signed petition was given to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270-71 (1988); accord, e.g., Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.) ("We conclude that the district court properly extended the prison mailbox rule to petitions for writs of habeas corpus.") (& citing cases for ...

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