The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Arthur Miller ("Miller"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of robbery and petit larceny. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Miller's conviction stems from his involvement in the robbery of a Wilson Farms convenience store in the City of Rochester on December 22, 1995. Miller was charged with first and second degree robbery and petit larceny. The other perpetrator, David "Chainsaw" Adams ("Adams"), was arrested and similarly charged. Adams gave a confession admitting to several crimes, including the Wilson Farms robbery. He stated that he had a black male as an accomplice, but he refused to give this individual's name. Adams subsequently pled guilty to the charges against him. Miller was later identified through other sources as the accomplice. Miller was tried before a jury in Monroe County Court (Bristol, J.).
At trial, Nia Harrison ("Harrison"), who was working as a cashier that night, testified that at about 8:50 p.m., a white male wearing a bandanna on his head and a black male wearing a black and yellow jacket came into the store. The black male put three items on the counter to be rung up--a six-pack of beer, a rose, and a Slim Jim. T.262.*fn1 Harrison recalled that he asked her if she would like him to buy her a rose; however, she declined. When Harrison opened the cash drawer to make change for the $10 bill that the black male had given her, the white male came over and told her to leave the drawer open. T.263. He said that he had a gun and motioned with his hand, which was in his coat pocket, as if he had a weapon. T.263. Harrison gave the white male all the money in the drawer plus the $10 bill. During that time, the black male was taking items of merchandise that were around the cash register. The black male did not pay for any of those items. T.264. Harrison could not identify Miller from a police mug book, but she did identify him at trial. As defense counsel pointed out, however, Miller was the only black male in the courtroom.
The two men then left together, and Harrison called out to the store manager, Michelle Rich ("Rich"), who then ran outside and attempted to get the license plate number of the robbers' car. Once outside, Rich saw a black hatchback backing out in reverse, and she recognized the white male and black male men she had seen at Harrison's cash register inside the store. (Rich did not witness the robbery, however.) Rich testified that the black male in the car was "looking directly at her, yelling something" and "shaking his head around." He then "tapped a barrel of a gun on the window." T.354. Rich could not hear what he was saying. Id. Rich described the handgun as silver-colored. Id.
The Wilson Farms happened to be equipped with a video camera, so the entire robbery was captured on videotape. The tape was introduced into evidence and Harrison gave a narration of the events depicted on it, consistent with her testimony. The videotape depicted Miller consistently moving to the end of the line he was standing in. It also showed Miller and Adams, standing together, watching people come into the store.
Tracey Van Orden ("Van Orden"), Chainsaw Adams's girlfriend, testified for the prosecution that she was waiting in the car (a black hatchback) outside with Miller's brother, Kenzo Miller ("Kenzo"), during the robbery. T.289. She saw the cashier lean over and hand Adams the money, but she did not see what Miller was doing. Id. Adams and Miller came out and got in the car; Adams took the money and threw it at Kenzo and said that "he was not no [sic] punk." T.290. Apparently, Kenzo had called Adams a "punk" because he (Adams) had not carried through on a robbery of a Radio Shack attempted earlier that evening. T.309. Adams was in the driver's seat and Miller was in the back. T.304. When asked what Miller did while Rich was attempting to write down the license plate number, Van Orden said that Miller "[t]urn[ed] back" "[t]owards the lady." She continued, unprompted, "Everybody said he had a gun there, but I didn't see no gun." T.291. The court sustained defense counsel's hearsay objection to that statement.
Van Orden then testified that she did not see what Miller had in his hands. T.291. The prosecutor asked to have Van Orden declared a hostile witness and attempted to impeach her with a statement she made to police on April 15, 1996, in which she said that she "knew" Miller had a silver-colored handgun in his pocket because "[i]t was Chainsaw's gun, and it was supposed to be passed to A.J. [Miller]." T.299-300. She maintained that she did not see the gun with her own eyes, however. T.299.
Van Orden admitted that the week prior to trial, she met with the prosecutor and told him that she saw Miller show a handgun to Rich, the store manager who had come outside. T.303. Van Orden testified that she was lying when she told the prosecutor that, and that she was telling the truth at trial. Id.
On cross-examination, Van Orden testified that Adams told her that "if anybody mention [sic] anything about a gun, just say that Arthur Miller had it in his possession." T.308. She said that was why she told the authorities in the first place that Miller had a gun. Id.
Investigator Douglas Boccardo ("Boccardo") of the Rochester Police Department testified that he took a statement from Miller on April 17, 1996, after Miller had been picked up as a suspect in the Wilson Farms Robbery. T.321-22. Miller was advised of his Miranda rights and voluntarily agreed to waive them. In his statement, Miller did not admit to participating in the robbery but did admit to stealing some Slim Jims:
. . . All the way there they [Chainsaw and Kenzo and another white male, "Tim"] were arguing and telling each other that they fucked up, I guess because they didn't get shit at Radio Shack. Chainsaw pulled into the parking lot at the Wilson Farms. I told him that I was going in and getting something to drink. They told me to hurry the fuck up and get out because they had something else to do. I figured they were going to steal some more shit because they fucked up and didn't get anything at the Radio Shack. I went in by myself and got a six-pack of beer and a rose and went up to the cash register. I was kind of flirting with the girl at the cash register and I asked her if she wanted a rose. Chainsaw came in the store and up to the cash register. I paid for my stuff, the rose and that beer and when the cash drawer opened, Chainsaw stuck his hand inside his jacket like he had a gun and told the girl to give him the money. I grabbed some Slim Jims from the display by the register and left. I don't remember who left the store first, me or Chainsaw. I didn't have anything to do with that shit. I didn't know what he was up to. . . .
T.339-40. According to Miller's statement, the car they were using was a new black hatchback belonging to his girlfriend.
On November 25, 1996, the jury returned a verdict convicting Miller of robbery in the first degree, robbery in the second degree, and petit larceny, as charged in the indictment. Miller was sentenced to determinate concurrent sentences of fifteen years incarceration for each of the robbery counts and one year for the petit larceny count.
Represented by new counsel, Miller appealed to the Appellate Division, Fourth Department, of New York State Supreme Court, which unanimously affirmed his conviction on February 16, 2000. People v. Miller, 269 A.D.2d 746, 703 N.Y.S.2d 413 (App. Div. 4th Dept. 2000). The New York Court of Appeals denied leave to appeal on May 31, 2000. People v. Miller, 95 N.Y.2d 800, 733 N.E.2d 240, 711 N.Y.S.2d 168 (N.Y. 2000). Miller did not file any collateral applications in state court for post-conviction relief.
This habeas petition was filed on June 4, 2001. As grounds for relief, Miller raises the same four grounds that he asserted in his direct appeal. Respondent has not asserted the defense of non-exhaustion, and all of Miller's claims appear to be fully exhausted and properly before this Court for review. See 28 U.S.C. § 2254(b)(1). ...