The opinion of the court was delivered by: Garaufis United States District Judge
Pro se Petitioner Maurice Simpson ("Simpson" or "Petitioner") brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Simpson challenges his convictions rendered in New York Supreme Court, Kings County for Burglary in the Second Degree (New York Penal Law § 140.25(2)) and Theft of Services (New York Penal Law § 165.15(3)). For the reasons set forth below, Simpson's Petition is DENIED.
Simpson was charged with second degree burglary and four alternative counts of third degree robbery, petit larceny, fifth degree criminal possession of stolen property, and seventh degree criminal possession of a controlled substance, and with theft of services in connection with an incident involving the robbery of an apartment on Nostrand Avenue in Brooklyn, New York. (Wrenn Aff. Opp. Pet. ¶¶ 4, 12.) On August 2, 2000, at approximately 5:30 p.m., livery cab driver Alpha Yagouba Bah ("Bah") was stopped by Petitioner at a traffic light at the intersection of Fulton Street and Franklin Avenue. (Transcript of the Trial, dated May 31, 2001 ("Trial Tr."), at 104-06, 117.) Simpson asked Bah to drive him to Nostrand Avenue between Lenox and Linden streets. (Id. at 106.) Upon arrival, Bah demanded his fare, and Simpson told him to wait at the curb. (Id.) Bah parked the livery cab, and Simpson stood outside 1367 Nostrand Avenue "for a long time," and then entered the building with another man. (Id. at 106-07.) About a half hour later, he came out and promised Bah twenty dollars if he would continue to wait. (Id. at 107.) Simpson entered the building again, and a half hour later he returned to the cab, carrying several VCR's in his arms. (Id. at 107-08.) Simpson instructed Bah to drive him to a place where he could sell the VCR's, and warned Bah that if he did not do so, that Simpson would not pay him at all. (Id. at 108-09.) Bah drove Simpson to the 71st Police Precinct, stopped two police officers, and relayed to them the past hour's events. (Id. at 109-10.)
The police officers apprehended Simpson and searched the cab, from which they seized the VCR's, and searched Simpson, recovering five vials of crack cocaine and a crack pipe, jewelry, a cell phone and a remote control. (Id. at 158-59.) The officers took Simpson and the seized goods into the precinct. (Id. at 111-12, 149-50, 156-60.) One of the officers, David Diaz ("Officer Diaz"), scrolled through the cell phone and dialed a number marked "home," which connected him with Leeann Ashton, who reported that her apartment had just been burglarized. (Id. at 52-53, 162.) Ms. Ashton was taken to the 71st Precinct, where she identified the VCR's, remote, cellphone, and jewelery as her property that was removed from her apartment. (Id. at 54-55, 162-64.) Officer Diaz advised Simpson of his Miranda rights, and took notes of Simpson's subsequent oral statements, in which Simpson admitted that he climbed to the roof of the building, entered Ms. Ashton's apartment through the kitchen window, took the property, and walked out the front door of the building and entered the livery cab with the purpose of selling the property to pay for his cab fare.*fn1 (Id. at 173-82.)
At a pre-trial Dunaway/Huntley/Mapp hearing, defense counsel argued that the police seizure of items from the livery cab and Petitioner's arrest were both made without probable cause, and that Petitioner's inculpatory statements should be suppressed. (Transcript of Dunaway/Huntley/Mapp Hearing, dated May 23, 2001 ("Dunaway/Huntley/Mapp Hearing Tr."), at 89-90.) The judge issued a written decision finding that the Petitioner lacked standing to contest the seizure of the property from the livery cab, and that the police officers had probable cause to arrest the defendant. (Dunaway/Huntley/Mapp Hearing Memorandum, Justice Deborah A. Dowling, dated May 24, 2001 ("Dunaway/Huntley/Mapp Hearing Memorandum"), at 3-5.) Further, the judge ruled that Petitioner's inculpatory statements made after Petitioner received his Miranda warnings were admissible. (Id.) In a subsequent Sandoval hearing, the judge also ruled that the government could make limited inquiries as to two of Petitioner's prior convictions, but could not discuss the underlying facts of them. (Transcript of Sandoval Hearing, dated May 24, 2001, at 114-16.)
At trial, Officer Diaz testified that Simpson knew Ms. Ashton's brother because they served time in prison together. Defense counsel objected to this reference, claiming it violated the judge's Sandoval ruling, and moved for a mistrial on the ground that Officer Diaz's testimony impaired Simpson's right to a fair trial. (Id. at 216-18.) The judge denied the motion, instead striking the testimony and instructing the jury to disregard it. (Id. at 219.)
The jury began its deliberations on June 4, 2001. (Id. at 233.) On the first day, the jury sent a note to the judge expressing difficulties reaching a unanimous verdict, and the judge instructed the jury to continue deliberating. (Id. at 339-40.) On the second day of deliberations, the jury sent the following note to the judge:
We have reached an impasse. After a day and a half of deliberation, we are no closer to a resolution than we were when we began . . . . In effect, we see no reason to think that further deliberation will produce anything of value and we sincerely believe that we have given this our best and sincerest effort. (Id. at 348-49.) Defense counsel moved for a mistrial, which the judge denied, instead giving an Allen charge that consisted of the following closing sentence:
[J]urors, you swore that if you had a reasonable position on any relevant point or material element based on the evidence or lack of evidence and one or more of your fellow jurors question you about it, that you would be willing and able to give what you believe is a fair and a calm explanation for your position whether it be for conviction or for acquittal." (Id. at 350-55.) At the end of the second day, the jury convicted Simpson of second-degree burglary and theft of services.*fn2 (Id. at 362.)
Petitioner appealed the verdict, on the grounds that as the police officers lacked probable cause to arrest Petitioner, the evidence seized incident to the arrest should have been suppressed, that Simpson's due process rights were violated when Officer Diaz testified regarding Simpson's incarceration, and that the court provided a defective Allen charge that placed the burden on a "holdout" juror to explain his vote for acquittal. (Pet's App. Br., dated June 24, 2003, at 19-33.) On February 10, 2004, the Appellate Division denied Petitioner's appeal, denying Petitioner's suppression motion because "[t]he record clearly supports the hearing court's determination denying suppression because the police had probable cause to arrest the defendant," and finding that Petitioner's other grounds "either are unpreserved for appellate review or without merit." People v. Simpson, 5 A.D.3d 613 (2d Dep't 2004). On May 28, 2004, the Court of Appeals denied leave to appeal. People v. Simpson, 2 N.Y.3d 806 (N.Y. 2004).
Simpson filed the instant Petition pro se on March 24, 2005, reasserting the same grounds as those presented to the Appellate Division.*fn3 (Petition, at 4.) The Petition, which was filed in the Western District of New York, was transferred to the Eastern District of New York by District Judge David G. Larimer on April 25, 2005. Simpson v. West, slip op., 05-CV-6180 (DGL) (W.D.N.Y. Apr. 25, 2005).
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a district court can entertain an application for a writ of habeas corpus by a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). I shall first address whether there is an independent and adequate state basis to support the appellate court's ...