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