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McKELVEY v. DUNCAN

May 10, 2005.

ARNOLD McKELVEY, Petitioner,
v.
GEORGE B. DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

Pro se petitioner Arnold McKelvey ("McKelvey") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. McKelvey seeks to vacate his November 1998 conviction for possession of a weapon in the third degree. He contends that his confinement by the State of New York is unlawful for the following reasons: (1) the trial court's decision to suppress statements made to police and not the physical evidence of the gun was erroneous; (2) the trial court's determination to sentence him as a persistent violent felon, pursuant to New York law, was inconsistent with Apprendi v. New Jersey, 530 U.S. 466 (2000); (3) his trial counsel rendered ineffective assistance to him by failing to challenge the validity of the convictions underlying 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 the validity of the prior convictions used by the court to classify him as persistent violent felony offender.

  McKelvey's petition was referred to Magistrate Judge Kevin Nathaniel Fox for a Report and Recommendation ("Report"). The Report, to which McKelvey has filed objections, recommends that the petition be denied. For the following reasons, the Report is adopted, and the petition is denied.

  BACKGROUND

  The relevant facts are set forth in the Report and summarized here. McKelvey was arrested on November 6, 1997 after he fled from three plain clothed police officers who had noticed him carrying a plastic bag that was later recovered containing a gun. Prior to trial, McKelvey moved to suppress the physical evidence of the gun, as well as his post-arrest statement that "I don't know anything about the bag. Someone gave it to me to leave on the bench." Both pieces of evidence had been presented to the grand jury to obtain his indictment. The trial court suppressed his statements, but admitted the gun into evidence. McKelvey was convicted of possessing a weapon in the third degree.

  At sentencing, the prosecution presented evidence, pursuant to N.Y. Crim. Proc. Law § 400.16 and Penal Law § 70.08, that McKelvey had been convicted of three predicate violent felonies between January 1981 and April 1988. With the advice of counsel, McKelvey admitted that he was the person named in the predicate felony statement and he chose not to challenge the constitutionality of his past convictions. The court declared McKelvey a mandatory persistent felony offender, making him eligible for an enhanced sentence. McKelvey was sentenced to fifteen years to life imprisonment.

  Direct Appeal

  McKelvey appealed his conviction on the grounds that a police officer's suppression hearing testimony was false, and that his sentence was enhanced based on prior convictions that were not alleged or submitted to a jury. On October 9, 2001, the New York State Supreme Court, Appellate Division, First Department, unanimously affirmed McKelvey's conviction. The court upheld the findings of the suppression hearing and found that McKelvey's constitutional challenges were not properly preserved for appeal. The Appellate Division found that even assuming McKelvey's constitutional challenges were properly preserved for appeal, the arguments lacked merit. See People v. McKelvey, 730 N.Y.S.2d 857, 858 (1st Dep't 2001). The Court of Appeals denied McKelvey's application for review. See People v. McKelvey, 764 N.E.2d 404, 404 (N.Y. 2001).

  Post-Judgment Motion

  In addition to his direct appeal, McKelvey also made a post-judgment application to the trial court pursuant to N.Y. Crim. Proc. Law §§ 440.10 and 440.20, requesting the court to vacate his conviction for three reasons: (1) he was not adequately advised on his option to challenge the constitutionality of his past convictions during his sentencing proceeding; (2) his trial counsel failed to oppose the statement of McKelvey's past convictions, which McKelvey claimed were obtained illegally for a variety of reasons; and (3) he received ineffective representation from his appellate counsel, who McKelvey alleged had a conflict of interest.

  The trial court found that McKelvey had been adequately advised at trial, and following a review of the record pertaining to each of McKelvey's attacks on his prior convictions, that his prior convictions had not been obtained illegally. The trial court also found that his claims of ineffective assistance were without merit, and in any event, had not been raised on direct appeal and therefore were procedurally barred. The court held that McKelvey's claim of ineffective assistance by his appellate counsel on his prior convictions could not be raised through a N.Y. Crim. Proc. Law § 440.10 motion, and that in any event, this claim was meritless. McKelvey did not seek leave to appeal this decision in the Appellate Division.

  DISCUSSION

  A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b) (1) (C). The court shall make a de novo determination of those portions of the report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

  Habeas petitions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. With respect to any claim that was adjudicated on the merits in state court, the ...


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