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August 23, 2005.

JAMES CONWAY, Superintendent, Attica Correctional Facility, Respondent.

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



Petitioner Lionel Sampson ("Sampson") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on charges of felony murder, intentional murder and burglary in New York State Supreme Court (Monroe County). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  At about 5:15 a.m. on July 26, 1996, forty-eight year-old Pamela Wood ("Wood"), a clerk at the Wilson Farms convenience store on North Goodman Street in the City of Rochester, was shot in the head at point-blank range during an attempted robbery.*fn1 There were no other individuals in the store at that early hour, but Edward Gagner ("Gagner"), who customarily delivered newspapers to the Wilson Farms everyday between 4:15 and 4:30 a.m., had seen a man standing in the telephone booth outside the store at about 4:30 a.m. Gagner described the man's race as black and estimated that he stood about six-feet, four-inches-tall, weighed over 200 pounds with a muscular build, and was wearing a wind-breaker with a "hoodie" jacket. According to Gagner, the man's head came close to the top of the phone booth although a little space remained.

  When the police arrived on the scene, they discovered Wood's dead body slumped in the corner of the store's office. The police also found that the perpetrator had ripped the doors of the cabinet containing the store's video surveillance system off their hinges, pulled out the wires of the VCR, and ransacked the area in the office where the equipment was housed. Apparently, the three surveillance cameras in the store and the one camera in the office had been sending images to a monitor continuously during the incident. Even though the VCR had been disturbed, the monitor still displayed the last image to have been transmitted before the office camera was disconnected: a large man bending over a desk as if he were ripping out the VCR's wires. The man's face was not visible on this image, but it could be seen on the videotape that inexplicably was left in the VCR.

  The police evidence technician who recovered the videotape isolated the images from the office camera and transferred them onto another tape. A law enforcement imaging specialist for Eastman Kodak Company extracted the image from the videotape left in the VCR that showed the suspect's face and transferred it to a set of photographs. He then used computer software to enhance the photographs so as to increase the brightness and contrast between the light and dark areas of the images. No alterations were made to the images, however. Finally, the images were printed on high-quality photographic paper in order to eliminate graininess. These photographs showing the likeness of the suspect's face staring up at the surveillance camera then were broadcast on the local news and printed in the newspaper. Four individuals — Rosemary Arnold ("Arnold"), Lynette Cook ("Cook"), April Huntley ("Huntley") and Corey Butler ("Butler") — who had either known or worked with Sampson at Wilson Farms saw the newscast and recognized him as the man on the videotape. Butler, Arnold and Cook approached the police concerning their recognition of Sampson and were separately shown print photographs of the suspect's likeness that had been televised on the news. All three individuals confirmed their earlier identifications based upon what they had seen in the media. (Hunt did not contact the police at that time, but she did testify at trial, along with Butler, Arnold and Cook, that Sampson was the individual on the videotape.)

  In the days following the murder, Sampson contacted Andre Dade ("Dade"), who had hired him to work as a cashier at Wilson Farms, and asked him if he had seen the news reports. When Dade replied affirmatively, Sampson confided that he believed that the police thought he committed the Wilson Farms crime and asked Dade for money. Dade refused this request and several other requests Sampson subsequently made to him for money.

  On August 8, 1996, about a week after Butler, Arnold and Cook had come forward and identified Sampson as the perpetrator, the police conducted a surveillance of Sampson's residence 732 Genesee Street. Sampson was arrested later that night outside of a grocery store on Genesee Street where the police had traced Sampson through a phone call. As he was being handcuffed, Sampson mused, "[H]ow did you guys find me?" T.971-75. 979-84.*fn2

  Sampson was indicted on four counts: intentional murder, felony murder, depraved indifference murder and second degree burglary. He was tried before a jury in New York State Supreme Court (Monroe County). By the time of trial, Sampson had changed his appearance: he was clean-shaven except for a mustache, had shorter hair and had lost weight. Sampson's brother, Vernon Williams ("Williams"), testified for the defense that he did not recognize the photograph of the suspect shown on television as Sampson. Sampson's friend, Archie Donaldson ("Donaldson"), testified that the man in the videotape did not look "exactly like [Sampson]." T. 1085, 11113-14. Barbara Pratt ("Pratt") testified for the defense that the suspect depicted on the newscasts was a man named Leonard Holliman, with whom she had a "horrible" romantic relationship during 1996. Pratt described Holliman as being built like the "Pillsbury Doughboy" and police photographs showed him to be a mere five-feet, four-inches tall. T. 1137, 1152. Sampson, in contrast, was six-feet, two-inches-tall and very muscular.

  In the videotape of the incident shown to the jury at trial, a black male armed with a gun and a white female are seen entering the office of the Wilson Farms. The man is wearing a "hoodie" and gloves and is much larger than the woman. The two struggle near the safe and the man places a bag and a handgun on the desk. The man picks up the gun again and the woman is next seen lying in the corner, apparently shot. The man leaves the office momentarily. When he returns, he looks up in the general direction of the surveillance camera and realizes that he has been caught on video. He then pulls the video equipment out of the cabinet, disabling the surveillance system.

  The jury returned a verdict convicting Sampson of intentional murder, felony murder and second degree burglary as charged in the indictment. He was not convicted of the depraved indifference murder charge. Sampson was sentenced to an indeterminate term of imprisonment of twenty-five years to life on each murder count and to a determinate term of fifteen years on the burglary charge.

  The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed his conviction. People v. Sampson, 289 A.D.2d 1022 (App.Div. 4th Dept. 2001). The New York Court of Appeals denied leave to appeal. People v. Sampson, 97 N.Y.2d 733 (N.Y. 2002). Sampson challenged the performance of his appellate counsel in an application for a writ of error coram nobis which was denied. People v. Sampson, 300 A.D.2d 1154 (App.Div. 4th Dept. 2002).

  Sampson filed a petition for a writ of habeas corpus in this Court on April 16, 2003, in which he raised eight grounds for relief. See Docket #1. On September 2, 2003, he sought and obtained a stay of his habeas petition in order to return to state court for the purpose of exhausting additional claims of ineffective assistance of appellate counsel. See Docket ##9, 11. On March 30, 2005, Sampson filed an amended petition for habeas in this Court. See Docket #15. Respondent filed a memorandum in opposition to the amended petition on May 23, 2005, arguing that a number of Sampson's claims were unexhausted or procedurally defaulted. See Docket #16. On July, 7, 2005, Sampson filed a reply memorandum of law in which he addressed respondent's exhaustion and procedural default arguments and set forth in more detail the claims that he had returned to state court to exhaust in his second coram nobis application. See Docket #17.

  For the reasons set forth below, the petition is denied. DISCUSSION


  A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly ...

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