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FERGUSON v. McGINNIS

November 7, 2005.

JOHN FERGUSON, Petitioner,
v.
M. McGINNIS, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  John Ferguson ("Ferguson") has made an application for a writ of habeas corpus. He contends that his confinement by the state of New York is unconstitutional because: (1) the trial court erred when it gave preliminary instructions to prospective jurors that described the elements of the charged crimes but did not caution the prospective jurors against deliberating on petitioner's guilt prematurely; and (2) insufficient evidence was presented to the jury from which it could find him guilty beyond a reasonable doubt.

  The respondent opposes the petitioner's application for a writ of habeas corpus. He contends that the petitioner's claim concerning the preliminary instructions given by the trial court to prospective jurors is precluded from review by this court because the claim was resolved in the state court on independent and adequate state-law grounds and not upon Federal law. The respondent also contends that, in any event, the claim lacks merit. In like manner, the respondent maintains that the petitioner's allegation concerning the sufficiency of the evidence presented at his trial also lacks merit and, thus, provides no basis upon which to grant Ferguson habeas corpus relief.

  II. BACKGROUND

  In the early morning hours on June 15, 1998, after spending several hours at the Tunnel, a Manhattan night club, Brian Conklin ("Conklin") and Earl Evans ("Evans") were approached by three young men, as Conklin and Evans attempted to enter their parked automobile. Ferguson was among the three young men who approached Conklin and Evans, and he had a gun. Conklin recalled that the area near his automobile was well-lighted at the time the three young men approached him because a streetlight and the lights attached to an adjacent housing development were illuminated. Conklin watched the three young men as they approached him and, in particular, he looked at Ferguson's face because Ferguson was pointing a gun at Conklin's head. As Ferguson later trained the gun on Conklin and Evans, one of his accomplices, subsequently identified as Kevin McCray ("McCray"),*fn1 searched Evans. However, McCray did not remove any property from Evans. Petitioner and another of his accomplices searched Conklin. A gold chain that was around Conklin's neck, a watch, and between $30 and $40 were taken from Conklin. As he was being searched and his property was being taken, Conklin recalled that he continued to stare at Ferguson's face. According to Conklin, the robbery was completed in approximately two to four minutes.

  Ferguson and his accomplices fled together on foot after Conklin was relieved of his property; however, the three robbers soon split up. Conklin and Evans determined to follow McCray, whom they knew was not the robber who had the gun, using the automobile they were attempting to enter at the time of the robbery. As Conklin and Evans trailed McCray, they encountered police officers in a police vehicle. Evans alighted from the car in which he was traveling with Conklin and pursued McCray on foot. He caught him and began to "tussle" with him. At the same time, Conklin approached the police officers and reported that he had been robbed at gunpoint. One of the officers summoned additional police officers to the scene for assistance, and a description of the two robbers who had separated from McCray was transmitted by radio to other police officers. Conklin recalled that the gunman was a dark-skinned black male, between 20 and 22 years of age, who had a corn row hairstyle, and slight facial hair near his ears. Conklin also recalled that the gunman was taller than he — Conklin is 5 feet, 9 inches tall — and that the gunman's build was stockier than Conklin's 160-pound frame. Furthermore, according to Conklin, the gunman wore a red hoodie, and red and black "Jordan" style sneakers.

  Police Officer Brian Heffernan, one of the officers who responded to the location where McCray had been apprehended, after hearing the radio broadcast for assistance, observed two pedestrians waiving and pointing toward West 23rd Street. Officer Heffernan drove to West 23rd Street and traveled eastbound on that street. As he did so, he observed a black male who fit the general height, race and clothing description of one of the two robbery suspects, who were still at large, that had been broadcast over the police radio. The pertinent description was of a six-feet-four-inches-tall male wearing red clothing. However, at the time the petitioner was arrested, he was wearing a gray shirt or sweater.

  Officer Heffernan recalled that Ferguson ducked behind a row of U-Haul trucks that were parked on West 23rd Street, after he spotted Officer Heffernan's police vehicle. Officer Heffernan stopped Ferguson, who is six feet, one inch tall, and began to frisk him. As he did so, other officers joined him on West 23rd Street. Officer Heffernan advised the other officers that Ferguson had ducked behind a U-Haul truck that was approximately ten feet from where Officer Heffernan was standing with Ferguson. An officer searched the vicinity of that truck and recovered a .357 Black Hawk revolver. The revolver was dusted for fingerprints at the location where it was found. However, no fingerprints were recovered from the gun.

  Ferguson was placed under arrest. Shortly thereafter, Conklin was brought to the location of Ferguson's arrest. Conklin identified Ferguson as the gunman who had robbed him, even though Ferguson was no longer wearing the red garment Conklin had recalled the gunman had been wearing earlier. Ferguson was wearing a gray sweatshirt, black jeans and red and black "Jordan" style sneakers. Ferguson was taken to the Tenth Police Precinct and searched. Conklin's gold chain and $18 were recovered from Ferguson as a result of that search.

  Ferguson was indicted by a New York County grand jury. It charged him with two counts each of robbery in the first degree and attempted robbery in the first degree and one count each of robbery in the second degree, attempted robbery in the second degree, criminal possession of a weapon in the second degree and criminal possession of stolen property in the fifth degree.

  Ferguson proceeded to trial before a petit jury. Prior to commencing the voir dire proceeding with the prospective jurors, the trial court described to them the charges contained in the indictment and the various elements of those crimes that had to be proven by the state. The court also discussed briefly with the prospective jurors legal precepts, such as proof beyond a reasonable doubt and the presumption of innocence, that are pertinent to a criminal trial. The jury found Ferguson guilty for all charges made against him in the indictment.*fn2 Ferguson was sentenced to 15 years imprisonment on one count of robbery in the first degree, and 8 years imprisonment on one count of attempted robbery in the first degree. The trial judge determined that those sentences should be served consecutively to each other. Ferguson was also sentenced to 15 years imprisonment on the second count of robbery in the first degree, 8 years imprisonment on the second count of attempted robbery in the first degree, 8 years imprisonment for robbery in the second degree, 5 years imprisonment for attempted robbery in the second degree, 7 years imprisonment for possessing a weapon and one year imprisonment for possessing stolen property. The trial court directed that these sentences be served concurrently with the sentences it imposed for Ferguson's convictions for first degree robbery and attempted first degree robbery that the trial court required Ferguson to serve consecutively.

  Ferguson appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He urged that court to upset his conviction because the preliminary instructions the trial court gave to the prospective jurors, prior to commencing the voir dire proceeding, detailed the elements of the charged crimes, but failed to caution the prospective jurors against deliberating prematurely on Ferguson's guilt. According to Ferguson, by failing to admonish the prospective jurors against premature deliberations, the trial court violated the New York Constitution and the 14th Amendment to the United States Constitution. Ferguson also alleged that since: (a) he did not match the description of the gunman broadcast by the police, shortly before his arrest; and (b) no fingerprint or other evidence linking him to the handgun that was recovered from the vicinity where he was arrested, was presented to the jury, the evidence ...


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