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August 23, 2005.

BRAD McPHERSON, Petitioner,
CHALRES GREINER, Green Haven Correctional Facility, Respondent.

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


Pro se petitioner Brad McPherson ("McPherson") has applied for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction following trial on eight counts of criminal possession of stolen property. The petitioner alleges that (1) he was arrested and searched without probable cause; (2) evidence gathered during his arrest was improperly admitted at trial; (3) his sentence was excessive; (4) police altered or destroyed evidence and broke the chain of custody of certain evidence; (5) certain jurors were biased against him; (6) that one juror's seeing him in handcuffs during a recess constituted grounds for a mistrial; (7) the trial court should not have accepted a partial verdict; (8) his sentence enhancement violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (9) trial counsel rendered ineffective assistance by failing to raise certain arguments and through a failure to investigate.

  The petition was referred to Magistrate Judge Andrew J. Peck for a Report and Recommendation. On October 22, 2003, Judge Peck issued an initial Report and Recommendation ("Report I"), in which he recommended that all claims other than that based on Apprendi be denied. In a second Report and Recommendation issued December 2, 2003 ("Report II"), Judge Peck recommended that McPherson's sentence be vacated as a violation of Apprendi. Pursuant to a December 11, 2003 request from the Attorney General, this action was stayed pending decisions in three Second Circuit appeals, all of which involved claims that New York's persistent felony statute was unconstitutional under Apprendi. After the Second Circuit released its opinion in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005), which resolved two of the three above-referenced appeals, Judge Peck issued his third and final Report and Recommendation ("Report III") on June 7, 2005, reversing Report II and recommending that McPherson's Apprendi claim be denied. McPherson objects to Reports I and III. For the following reasons, Reports I and III are adopted and the petition is denied. BACKGROUND

  The relevant facts are set forth in Report I and summarized here. On January 16, 1997, three plainclothes officers approached McPherson near the intersection of 79th Street and Riverside Drive in Manhattan after noticing him pushing an expensive mountain bike with two large bags slung around his neck. The bike, as the self-described "bicycle buff" among the officers testified at trial, had two disconnected brake harnesses, rendering the bike inoperable. Upon questioning, McPherson could not identify the brand of the bike he was pushing. McPherson also told the officers that a "mountain bike pass" affixed to the bicycle had been purchased by his cousin two weeks earlier; upon inspection, however, the pass was found to be four months old. Moreover, when asked where he was coming from, McPherson claimed to be headed up to Columbia Presbyterian Hospital, located at 168th Street, from "875 Amsterdam Avenue," an address significantly north of 79th Street.

  One of the officers then asked McPherson if he would accompany them to 875 Amsterdam to verify his story. When the officers drove McPherson back to that address, he could neither identify the correct building nor recall the name of the building manager in order to gain reentry to the apartment. At that point, the officers arrested McPherson on suspicion of possession of stolen property. Among the "ton of property" the arresting officers found in the two bags McPherson was carrying were a laptop computer, jewelry, two passports, seven credit cards, and business cards. The officers also found thirty-three keys in the front pouch of the parka McPherson was wearing. Using the passports, keys, and business cards, the officers determined that the property had been stolen from a nearby apartment while its residents, Laura Dedomenicis ("Dedomenicis") and Scott Whitehouse ("Whitehouse"), were at work. At trial, Dedomenicis and Whitehouse testified that when they arrived at their apartment that afternoon after having been contacted by police, they noticed a number of their possessions were missing, including a mountain bike, jewelry, a laptop computer and printer, and credit cards.

  After McPherson's Miranda rights were read to him, he claimed that he had found the property and that the parka and the keys belonged to him. During their visit to the police station, however, Dedomenicis and Whitehouse identified all of the items seized as their own. In addition, when a police sergeant drove Dedomenicis and Whitehouse back to their home after their viewing of the property, the sergeant successfully used one of the keys seized from McPherson to open the top lock of their apartment.

  Pre-Trial and Trial Procedures

  McPherson was indicted for second degree burglary, third degree criminal possession of stolen property, seven counts of fourth degree criminal possession of stolen property, third degree grand larceny, and seven counts of fourth degree grand larceny. Prior to trial, McPherson's counsel moved to suppress the mountain bike, laptop computer, jewelry, and credit cards, as well as other personal items, collected during McPherson's arrest. The trial court denied this motion, reasoning that the officers had probable cause to arrest McPherson on the basis of his "increasingly implausible and patently untruthful answers" to the officers' "escalating levels of permissible inquiry."

  At trial, McPherson testified in his own defense, explaining that he was on sick leave from his job as a messenger on the day of his arrest and that he was planning on returning to a movie theater on 84th Street when he was approached by the officers. McPherson denied having possessed any of the property the officers seized from him and entering both the building and the apartment of the residents from whom the property was stolen. Instead, McPherson claimed that the officers had "planted all of the evidence on" him, surmising that the officers may have learned of his three prior burglary convictions when he gave them his identification during questioning. He also denied having told the police that he found the property they seized from him.

  On July 29, 1997, after more than a day of deliberations, the jury announced that it could only agree on eight counts and was at an impasse as to the remaining nine. The trial court explained to the jury the procedure for a partial verdict and then gave them further opportunity to deliberate, to which defense counsel did not object. When these extended deliberations proved ineffective, the jury requested that it be allowed to submit a partial verdict. At this point, McPherson's counsel did object, but the trial court overruled his objection on the ground that by "ask[ing] each juror whether he or she believes that further deliberations will be fruitful," he would be acting pursuant to N.Y.C.P.L. § 310.70 and proceeding appropriately.

  The jury then announced its verdict, convicting McPherson of one count of third degree criminal possession of stolen property and seven counts of fourth degree criminal possession of stolen property. The jury entered no verdict on the burglary charges. The trial court asked each juror individually whether he or she would be likely to reach a verdict on the burglary counts in a reasonable period of time. After each juror replied in the negative, the court accepted the partial verdict and declared a mistrial as to the remaining counts, overruling defense counsel's objections.


  On June 16, 1998, the trial court sentenced McPherson to fifteen years to life in prison, the minimum term under New York's persistent felony offender statute, N.Y. Penal Law § 70.10(2). The trial court approached sentencing in two parts. First, based on McPherson's prior convictions for second degree attempted burglary on February 24, 1986, and second degree burglary on April 4, 1990 and October 10, 1990, the trial court found that McPherson had the requisite two previous felony convictions to classify as a persistent felony offender. See id. at § 70.10(1). McPherson did not challenge the validity of these previous convictions. Second, the trial judge determined, pursuant to Section 70.10(2), that the "history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required." As part of this second evaluation, the trial judge evaluated McPherson's criminal history, not only including the above-described felony convictions, but also listing his three-year probation as a youthful offender for criminal possession of stolen property; his three ninety-day sentences for misdemeanor convictions; and his nine month sentence for third degree assault. In addition, the trial judge recalled McPherson's two parole violations and noted that he was still on parole when the incident leading to the conviction at issue occurred and that he had been indicted for possessing a loaded, semi-automatic assault rifle at the time of his arrest.

  Given his age, family relationships, employment history, and religious beliefs, McPherson's counsel requested that he be sentenced to the minimum term under the persistent felony offender statute. Agreeing that the minimum term would be appropriate, the trial court sentenced McPherson to fifteen years to life imprisonment for the third degree criminal possession of stolen property conviction and concurrent sentences of two to four years imprisonment for each of the seven fourth degree criminal possession of stolen property convictions. Post-Judgment Motions and Appeals

  On June 19, 1998, McPherson, moving pro se, made his first post-judgment motion to vacate his conviction pursuant to N.Y.C.P.L. § 440.10. McPherson alleged that the police tampered with and/or destroyed evidence and were therefore unable to retrieve any fingerprint identification from the property seized that might have served to exculpate McPherson. In addition, McPherson claimed that there was an improper break in the chain of custody when some of the personal property was returned to its owners before being admitted at trial and that the trial court improperly accepted the partial verdict over the defense's objections. Finally, McPherson argued that his defense counsel provided ineffective assistance by failing to object to the admission of evidence and failing to produce Rosario material. See People v. Rosario, 213 N.Y.S.2d 448 (N.Y. ...

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