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VAUGHN v. GIAMBRUNO

August 19, 2005.

PATRICK VAUGHN, Petitioner,
v.
MICHAEL GIAMBRUNO, Respondent.



The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM AND ORDER

Petitioner Patrick Vaughn filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking an Order vacating his conviction for criminal sale of a controlled substance in the third degree in the Supreme Court of the State of New York, New York County. On July 12, 2005, Magistrate Judge Theodore H. Katz issued the annexed report and recommendation recommending that this petition be denied in its entirety. This Court conducted a de novo review of petitioner's objections and the full record herein. After a complete review, this Court finds the objections to be without merit. Accordingly, it is

ORDERED that this Court adopts the well-reasoned report of Magistrate Judge Theodore H. Katz, dated July 12, 2005, recommending that this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. It is

  FURTHER ORDERED that this petition for a writ of habeas corpus is denied in its entirety. It is

  FURTHER ORDERED that because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c), as amended by the Antiterrorism and Effective Death Penalty Act of 1996. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).

  The Clerk is directed to close this case.

  SO ORDERED. REPORT AND RECOMMENDATION

  TO: HON. WILLIAM H. PAULEY, United States District Judge. FROM: THEODORE H. KATZ, United States Magistrate Judge.

  This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636 (b) (1) (B) and (C) and Rule 72.1 (a) of the Local Civil Rules of the Southern District of New York.

  Petitioner Patrick Vaughn*fn1 ("Petitioner") was convicted in New York Supreme Court, New York County, of Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law § 220.39(1)), and was sentenced to an indeterminate prison term of three to nine years. Petitioner is presently incarcerated at Attica Correctional Facility in Attica, New York.

  Petitioner seeks habeas relief under 28 U.S.C. § 2254, claiming that (1) his sentence is unduly harsh and should be reduced in the interest of justice; (2) he was denied due process of law because of a fourteen-month delay between his indictment and trial; (3) he was denied effective assistance of trial counsel; and (4) he was denied due process of law when the trial court failed to give the jury an "agency" charge. Respondent contends that Petitioner's harsh sentence claim is not cognizable on federal habeas review; Petitioner's claim of ineffective assistance of trial counsel is without merit; and Petitioner's due process claims are procedurally barred and without merit.

  For the reasons that follow, this Court concludes that Petitioner is not entitled to habeas relief and respectfully recommends that the Petition be dismissed with prejudice.

  BACKGROUND

  Petitioner was charged with Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law §§ 220.39, 220.16).

  I. Evidence Adduced At Trial

  In the early morning of August 18, 1998, Detective John DiMare ("DiMare") approached Petitioner on the corner of 41st Street and Eighth Avenue in midtown Manhattan. (See Trial Transcript, dated October 26, 1999 ("Tr."), at 38-39.) DiMare was working on an undercover "buy and bust"*fn2 operation and had altered his appearance to resemble that of a drug user.*fn3 He asked Petitioner if "anybody [was] out." (Id. at 51.) Petitioner responded by asking "what are you looking for, rock?" (Id. at 52.) DiMare responded that he wanted "dimes," meaning ten dollar bags of crack cocaine. (Id. at 53.) Petitioner and DiMare then walked south on Eighth Avenue. (See id. at 96.)

  Petitioner and DiMare arrived at the corner of 39th street and Eighth Avenue where three men were waiting, later identified as Matthew Singleton, Christopher Ethridge, and Calvin Washington.*fn4 (See id. at 14.) Petitioner and Singleton spoke for a moment, and then Singleton handed Petitioner two clear bags with chocolate chip markings containing crack cocaine. (See id. at 59, 67.) Petitioner handed the bags to DiMare, who gave Petitioner twenty dollars in pre-recorded buy money. Petitioner handed the money to Ethridge, who in turn handed it to Singleton. (See id. at 56.)

  DiMare made a non-verbal signal to the "buy and bust" team that he had made a purchase, and then left the area. Petitioner also left the area, walking north on Eighth Avenue. Once out of sight, DiMare radioed Detective Alvarez ("Alvarez"), another member of the "buy and bust" team, giving him a description and location of the four suspects. Alvarez arrested Singleton, Ethridge, and Washington at the corner of 39th Street and Eighth Avenue where the transaction occurred. Petitioner had walked a block away by this time, and was arrested on the corner of 40th Street and Eighth Avenue. (See id. at 59-63, 155.)

  A plastic bag containing a small amount of crack cocaine was found on Petitioner, but the bag lacked the distinctive chocolate chip markings found on the bags purchased by DiMare. (See id. at 160.) Police found no money on Petitioner. (See id. at 166.) Six bags containing crack cocaine were found on Singleton, along with $298 in cash, including the $20 of pre-recorded ...


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