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April 15, 2005.

JOSEPH JAMES, Petitioner,
DALE ARTUS, Respondent.

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


Pro se petitioner Joseph James seeks a writ of habeas corpus from his November 4, 1999 conviction for first degree attempted robbery, and sentence as a persistent felony offender to eighteen years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) James' habeas petition, as amended, alleges that his constitutional rights were violated by: (1) the loss of a surveillance videotape, and the destruction of a bag of clothing and 911 tape (Pet. ¶ 13, Point I); (2) the prosecutor's closing argument that the issue of James' guilt was an "easy issue" that the jury need not "get caught up in," and also that the jury could know they "did the right thing" by returning a guilty verdict (Pet. ¶ 13, Point II); and (3) his appellate counsel's failure to raise the issue of James' enhanced sentence as violating federal law under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). (Dkt. No. 11: Am. Pet.)

The parties consented to decision of James' petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10.) For the reasons set forth below, James' petition is DENIED and a certificate of appealability is not issued.


  The Prosecution's Case at Trial

  On the evening of June 7, 1998, Clayton Dixon, a store detective at the HMV music store at 1280 Lexington Avenue, was observing surveillance monitors in the store's security office. (Dkt. No. 9: Dixon: Trial Transcript ["Tr."] 115-16, 118, 149.) Through the monitors, Dixon observed a man in a blue suit who Dixon recognized as former HMV security employee, co-defendant Christopher Dowtin. (Dixon: Tr. 118-21, 173.) Dixon also observed through the monitors two men, identified at trial as Charles Harriet and defendant Joseph James, dressed in overalls, hats and sunglasses. (Dixon: Tr. 120-21, 123-24, 150.) Dixon observed James and Harriet take up positions near the store's employees-only area, where they were joined by a man in a blue suit like the one worn by Dowtin, but the man's face was not visible on the monitor. (Dixon: Tr. 123-25, 176-77.) When Dixon, through the monitors, saw the three men enter the locked employees-only area he called 911 and described what he was witnessing. (Dixon: Tr. 126-27, 152-53, 165-67, 182.)

  In a hallway in the employees-only area, HMV employee Edwin Velez encountered a man wearing a tan carpenter suit, goggles, a hat, and a bandanna covering the lower part of his face. (Velez: Tr. 203, 206-08.) Velez identified the man at trial as James. (Velez: Tr. at 220-21.) James pointed a gun at Velez and ordered him into the manager/supervisor's office with HMV employees Annette Suarez and Anita Kolenovic. (Velez: Tr. 210-11, 219; Kolenovic: Tr. 252-53; Suarez: Tr. 287-88.) Kolenovic recognized the man with the gun (James) as someone she had seen in the store about five minutes earlier. (Kolenovic: Tr. 233-35.) Harriet also entered the office. (Suarez: Tr. 288; Kolenovic: Tr. 254-55, 269.) The men ordered Velez, Suarez and Kolenovic to lie on the floor, and they tied them up. (Velez: Tr. 211-17; Suarez: Tr. 288-91, 296-97; Kolenovic: Tr. 255-57, 271-72.) James and Harriet made an unsuccessful attempt to enter the adjacent locked cash office (Velez: Tr. 217-18; Kolenovic: Tr. 258; Suarez: Tr. 291-92, 297) before triggering the alarm when they exited through a side door onto 87th Street (Dixon: Tr. 128-29; Velez: Tr. 218; Kolenovic: Tr. 261; Suarez: Tr. 292; Britt: Tr. 573; Hydell: Tr. 338-39; Robinson: Tr. 647.)*fn1 James Hydell, a doorman standing on 87th Street, saw three men — two of whom were wearing beige overalls — exit HMV and enter a white vehicle waiting outside the store. (Hydell: Tr. 338-41, 345.) The driver of the car, Jermaine Britt, and a passenger in the car, Robinson, testified that Dowtin and James, wearing a jumpsuit, got in the car at 87th Street. (Britt: Tr. 567-68, 571-74; Robinson: Tr. 643, 645-48.)

  James, Dowtin, Harriett, Britt and Robinson drove west across the Central Park transverse (Britt: Tr. 575; Robinson: Tr. 648-49), to 86th Street and Broadway, where they were stopped and arrested by police. (Ricci: Tr. 470-72, 481-83; Donnellan: Tr. 499-502, 508, 514.) Dixon and Velez were brought to the scene and identified Dowtin and James. (Dixon: Tr. 130-32, 151, 152; Velez: Tr. 220-21, 232; Donnellan: Tr. 507-08.) Following the arrest, police officers recovered from the sidewalk along the transverse a pair of goggles, a bandanna, a hat, a black "durag," and gloves. (Costa: Tr. 366-68.) In addition, police recovered a loaded pistol, tan overalls, goggles, and other articles of clothing from the car. (Ricci: Tr. 473-75; Costa: Tr. 368-70.) The police also vouchered the tan overalls that James was wearing when he was arrested. (Costa: Tr. 376-80.) All of the recovered items were vouchered with a police property clerk according to standard police procedure. (Costa: Tr. 370-72.) Dixon, Velez, Kolenovic and Suarez identified the overalls at trial as having been worn by James and another of the robbers. (Dixon: Tr. 144-45, 163-64; Velez: Tr. 242-43; Kolenovic: Tr. 264, 266; Suarez: Tr. 293-94.) Dixon and Kolenovic also identified the cap as having been worn by James. (Dixon: Tr. 146-47, 152; Kolenovic: Tr. 266-67.)

  Neither James nor Dowtin presented any defense case after the close of the prosecution's case. (Tr. 699-700, 702-07, 759.)

  The Missing Evidence

  Prior to the start of the trial, the prosecutor lost the surveillance videotape taken in the HMV store on the evening of the robbery. (Tr. 5-6, 757-58.) Before it was lost, James himself, witnesses Dixon, Suarez, Velez and Kolenovic, co-defendant Dowtin and his counsel, and the prosecutor had viewed the tape; James' counsel had not. (Tr. 5-9, 199, 320, 637, 721; Dixon: Tr. 155; Kolenovic: Tr. 273-74; Suarez: Tr. 306, 309-10; Velez: Tr. 234-35, 241, 248.) However, a photograph of James and Harriet was created from a single frame of the video prior to its loss (Tr. 15, 17, 24, 27, 435-37; Tineo: Tr. 459, 462; Dixon: Tr. 136), was admitted into evidence (Tr. 133, 139) and published to the jury by James' counsel (Dixon: Tr. 153-54). Velez, Kolenovic and Dixon identified James in this photograph at trial. (Velez: Tr. 222, 236; Kolenovic: Tr. 262-63, 277; Dixon: Tr. 137.)*fn2

  During trial, it was discovered that the police department had destroyed one of the four bags of clothing vouchered as evidence. (Tr. 88-91; Costa: Tr. 386-90, 424-25.) According to the voucher ticket, the bag contained the following items that had been recovered from the getaway vehicle: hats, sunglasses, plastic gloves, blue windbreaker pants and a black duffle bag. (Costa: Tr. 386-90, 758-59.) Officer Costa, who had vouchered the items, did not receive prior notification that the evidence would be destroyed. (Costa: Tr. 392.) A photograph of the destroyed vouchered items was admitted into evidence at trial. (Costa: Tr. 445-51.)

  It also was discovered that the 911 tape of Dixon's call had been erased by the police according to standard police practice. (Tr. 82-84, 520, 539-40, 753-54, 758.) However, a transcript of the call had been preserved and was provided to James' counsel. (Tr. 84, 751, 753, 758.)

  As a sanction for the loss of the surveillance video, which James' counsel had not viewed, James' counsel requested dismissal of the indictment, or in the alternative, preclusion of all witness testimony regarding the video's contents and suppression of all in-court identifications by witnesses who saw the video. (Tr. 8, 10, 13, 751-52.) Because the court found that the loss of the surveillance video was negligent (Tr. 327-28), and there was no evidence of "prosecutorial misconduct or deliberate destruction of evidence" (Tr. 754), the court refused James' request for a dismissal of the indictment, but precluded testimony about the videotape's contents (Tr. 13, 323-24, 637). The court held that if the witnesses could identify the defendants in court, they could do so, and suggested that the parties stipulate that the prosecution had a video which was lost, and also indicated he would consider a request for an adverse inference. (Tr. 13-14, 20-21, 314, 324, 328-34, 520-24, 540-47, 637-40, 713-27, 729-33, 746.) Most of the issues about the videotape concerned whether co-defendant Dowtin was identifiable in the videotape and, if so, for how long he appeared on it. (See, e.g., Tr. 520-24, 637, 713-27, 729-33, 746-51.) Indeed, the court stated:
The video seems to me is the most important lost item and it has the most significance for Mr. Dowtin because that's the only one witness that places him in the store and that's through viewing him in the surveillance camera. That's Mr. Dixon. As to Mr. James, I believe there is overwhelming evidence as well as circumstantial evidence.
(Tr. 753-54.)

  The prosecution and defense counsel agreed to a stipulation regarding the loss of the surveillance video, and the destruction of the bag of clothing and the 911 tape. (Tr. 756-59.) The stipulation stated in part that the prosecutor lost the videotape, that the bag of clothing and 911 tape had been destroyed by the police, and that the prosecution had a duty to preserve the lost evidence for trial. (Tr. 757-59.)*fn3 Both defense counsel for James and Dawtin stressed the loss of the videotape and other evidence in their closings. (Tr. 761-64, 788-92, 797, 800, 802.)

  The court instructed the jury during its charge that the law permits an adverse inference that, "had that evidence been preserved and produced at trial, it would not have supported or in some way would have contradicted the People's case." (Tr. 850.) The court stressed to the jury that it was free to draw such negative inference, but was not required to do so. (Tr. 850.) The court also pointed out to the jury that they were free to assign whatever weight to the stipulated facts they felt appropriate (Tr. 842), up to and including disregarding the loss of the evidence altogether (Tr. 850-51).*fn4

  Prosecution's Summation

During his closing argument, the prosecutor stated: [J]oseph James is crushed by the weight of the evidence. And under those circumstances . . . this is more than proof beyond a reasonable doubt. This is an easy issue. I think that's one of the issues that you can put — you can just put aside. Look at the evidence.
(Tr. 826-27.) The prosecution also urged the jury not to "get caught up in [the] issue" of James' guilt. (Tr. 827.) James' counsel objected and moved for a mistrial, saying these comments were "inflammatory," "not a fair statement of the issues in the case" and "deprived [James] of a fair trial." (Tr. 835.) The judge held it was "fair argument." (Tr. 836-37.) The judge, however, several times instructed the jury that the summations of counsel are not evidence (Tr. 760, 842) and that the jury could disregard counsel's arguments and inferences if they so chose (Tr. 840). In its charge, the court told the jury that its verdict should be based solely on the evidence, of which closing arguments are not a part. (Tr. 839-40, 842.) Lastly, the court extensively instructed the jury regarding the applicable burden of proof, explaining that the People must meet this burden, and that such burden never shifts to a criminal defendant. (Tr. 842-43, 866-72.)

  Verdict and Sentence

  The jury found James guilty of first degree attempted robbery, and on November 4, 1999, the court sentenced James, as a persistent violent felony offender, to eighteen years to life imprisonment. See People v. James, 289 A.D.2d 3, 3, 734 N.Y.S.2d 16, 17 (1st Dep't 2001).

  James' Direct Appeal

  On appeal to the First Department, James asserted that: (1) the trial court should have dismissed James' indictment because the prosecution lost the surveillance videotape and destroyed a 911 tape and a bag of clothing (Dkt. No. 8: Morgan Aff. Ex. A: James 1st Dep't Br. at 15-19), and (2) the ...

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