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Bratcher v. McCray

March 6, 2006

DELDRIC BRATCHER, PETITIONER,
v.
FRANK MCCRAY, JR., RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Petitioner, Deldric Bratcher ("Bratcher"), 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 first degree robbery and third degree grand 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

On September 27, 1997, the Fleet Bank in the Town of Brighton, New York, was robbed. According to the bank employees, the robber was a black male whose face and head were mostly concealed by a hood and a bandanna and whose hand was covered in a paper bag. The robber stated that he had a gun and threatened to shoot if the bank employees did not comply with his demand for money. The employees handed the robber a package of money ($37,000), which contained with a dye pack, and he left the bank.

As he was driving in the area, Officer Spaker received the dispatch about the robbery describing the suspect as being a "male black about five-ten." H.7.*fn1 The witnesses also said that he was wearing latex gloves, windbreaker-style pants, a hooded sweatshirt, a bandanna, and white Nike(r) sneakers with a green stripe. As Officer Spaker drove his marked police vehicle southbound on Clover Street, he saw a black male (Bratcher) walking on the shoulder of the road in the opposite direction at a point about two-or three-tenths of a mile from the bank. H.6-8, 24, 28. After the two men made eye-contact, Officer Spaker turned his vehicle around in the driveway of the Harley School, momentarily losing sight of the man. Upon re-entering Clover Street, Officer Spaker again observed Bratcher, who was now running and looking over his shoulder. H.7. Officer Spaker then saw the man run across the school's athletic field into a thicket and followed him, stopping his vehicle on an abandoned railroad bed on the opposite side of the thicket. H.9.

When Bratcher emerged from the thicket, Officer Spaker engaged him in conversation: "As I recall, I asked him why he was running, and my recollection is that he said that someone had taken his bicycle, somebody he knew or a friend of his or somebody he - - an acquaintance, possibly, had taken his bicycle up on Monroe Avenue and didn't return it to him. So I said, 'Well, whereabouts?' And I believe he indicated around the Friendly restaurant area, which is near [interstate] 590. And that would be about a thousand yards west of the Fleet Bank. So I said, 'Well, okay. Why don't you get in the car, and we'll go look for this guy.'" H.12-13. Uncuffed, Bratcher entered the police vehicle. Spaker drove past the Friendly restaurant to the nearby Fleet Bank, where Bratcher was identified by four bank employees in a show-up identification procedure. H.13.

At trial, two of the bank employees testified about the robbery and their identifications of the suspect. The dye pack that was with the $37,000 stolen by the robber was found exploded inside of a blue pillowcase, located in a white Isuzu Trooper parked halfway in a parking spot backed up to the Pittsford Animal Hospital, which was close to the Fleet Bank. The vehicle was not registered in Bratcher's name. However, the police found the $37,000 strewn about inside the vehicle, along with a blue file containing a purchase offer on a home made by Bratcher and his wife Shanya Scott ("Scott"). In addition, prior to the robbery, Scott was stopped by a police officer while she was driving that vehicle, thereby linking Bratcher to it. The search of the wooded thicket into which Bratcher ran before encountering Officer Spaker revealed more evidence connecting Bratcher to the robbery--a hooded sweatshirt stained with red dye, latex rubber gloves covered in dye, and a bandanna. When Bratcher was arrested, the pants that he was wearing also had dye on them. Laboratory testing revealed that the dye on the items of physical evidence contained a special chemical, methylaminoanthraquinone, which is only used in fabricating dye packs.

The jury returned a verdict convicting Bratcher of first degree robbery and third degree larceny as charged in the indictment. He was sentenced to twelve and one-half to twenty-five years on the robbery conviction with a concurrent sentence of two and one-third to seven years on the grand larceny conviction.

On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed his conviction. However, the court agreed that the trial court erred in overruling Bratcher's objection at sentencing to the prosecutor's unsupported allegations that defendant was involved in a series of other bank robberies and that, in sentencing defendant to the maximum sentence, the court appears to have taken those unsupported allegations into account. People v. Bratcher, 291 A.D.2d 878, 737 N.Y.S.2d 451 (App. Div. 4th Dept. 2002). The Appellate Division accordingly remanded the case for re-sentencing and ultimately affirmed the re-sentence.*fn2 The New York Court of Appeals denied leave to appeal. Bratcher filed no collateral motions in state court.

This habeas petition was filed on April 16, 2003. All of the grounds for relief raised herein appear to be exhausted and properly before this court. See 28 U.S.C. § 2254(b). For the reasons set forth below, the petition is denied.

DISCUSSION

Merits of the Petition Claim

1. The Police Lacked Reasonable Suspicion to Detain Petitioner

Bratcher contends that his Fourth Amendment rights were abridged when Officer Spaker subjected him to a "pat and frisk" without reasonable suspicion. The Supreme Court has explicitly held that Fourth Amendment claims that have been litigated in state court are not cognizable on habeas review:

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is ...


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