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McCullough v. Bennett

July 14, 2006

ROBERT MCCULLOUGH, PETITIONER,
v.
FLOYD BENNETT, JR., RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Petitioner, Robert McCullough ("McCullough"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking review of his conviction in New York State Supreme Court (Monroe County) on charges of burglary, assault and criminal possession of a weapon. The conviction here at issue stems from his unlawful entry into the home of Carmen Jones ("Jones") and her daughter, Ebony Holloman ("Holloman"). McCullough struck Jones in the left side of her head with a pistol, demanded to know the whereabouts of a person named "Chill," and then departed the house.

McCullough filed an amended petition on March 11, 2003 (Docket #3), in which he alleged (1) prosecutorial misconduct in connection with the execution of a material witness order; (2) ineffective assistance of trial counsel based on the failure to call certain witnesses, the failure to object to the prosecutor's failure to provide notice of a statement to police by petitioner pursuant to New York Criminal Procedure Law ("C.P.L.") § 710.30,*fn1 and the failure to participate in a "Hellenbrandt" [sic] hearing; and (3) ineffective assistance of appellate counsel based on the failure to argue trial counsel's ineffectiveness on appeal. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

II. First Motion for a Stay

On May 6, 2005, McCullough filed a motion to stay his amended petition so that he could return to state court and file a C.P.L. § 440.10 motion to vacate the judgment raising the following claims: (1) ineffective assistance of trial counsel based on the failure to protect his Fifth Amendment right against self-incrimination; and (2) ineffective assistance of trial counsel based on the failure to object to his spontaneous statement to the victim ("You better talk to Chill!") uttered during the show-up identification procedure. See Docket #19. The first ineffective assistance claim alleging the failure to protect McCullough's Fifth Amendment rights apparently relates to the same spontaneous statement made during the show-up. The district court (Scott, M.J.) denied McCullough's motion for a stay without prejudice to renew upon a showing, pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1534 (2005), that good cause exists for his failure to exhaust the new claims; that his claims "relate back" to the originally pled claims; and his new claims are not "plainly lacking in merit."

III. Petitioner's Renewed Motion for a Stay

McCullough has now filed a "Renewed Motion for a [sic] Order Granting a Stay." See Docket ## 22, 23. He states that he "seeks to renew his previous motion to stay these proceedings to exhaust a heretofore inadequately argued claim of his Fifth Amendment right against self incrimination," which is "further codified in New York statutory law, specifically Criminal Procedure Law 710.30." See Docket #23. Later in the renewed motion, in his discussion of the "relation back" requirement, McCullough explains that he "has asserted since he began his foray through the state court that his right against self incrimination (CPL.710.30) had been waived as a direct result of ineffective assistance of trial counsel by failing to object when the CPL 710.30 violation occurred." Id.

As an initial matter, the Court observes that McCullough has already exhausted his ineffective assistance of counsel claim premised on the failure to object to the lack of notice pursuant to C.P.L. § 710.30 by raising it in his collateral motion to vacate the judgment pursuant to C.P.L. § 440.10. See Respondent's Appendix of Exhibits ("Resp't App.") (Docket #7). Thus, there is no need for a stay with respect to his claim that trial counsel was deficient in failing to object to the admission of McCullough's statement based on the prosecutor's failure to provide notice under C.P.L. § 710.30.

With respect to his stand-alone claim that his Fifth Amendment rights allegedly were violated because his statement to the police was introduced at trial despite the failure of the prosecution to give the notice required under C.P.L. § 710.30, the Court finds that, for several reasons, McCullough cannot meet the Rhines criteria and a stay is not warranted.First, the claim is procedurally defaulted because McCullough faces an absence of corrective process were he to return to state court and attempt to raise it. The only vehicle for raising this claim is by means of a collateral motion to vacate the judgment under C.P.L. § 440.10. Because the factual foundation for this claim was apparent on the trial record,*fn2 and therefore could have been raised on direct appeal, the court deciding the C.P.L. § 440.10 would be required to deny the claim pursuant to C.P.L. § 440.10(2)(c). Thus, the claim, although technically unexhausted, must nevertheless be "deemed exhausted" because it would be subject to a procedural default were McCullough to attempt to return to state court. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991) ("For exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'") (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). The Court agrees with respondent that McCullough's forfeiture in state court of his C.P.L. § 710.30 claim by failing to raise it on direct appeal bars him from litigating the merits of the claim in this federal habeas proceedings absent a showing of cause for the procedural default and prejudice resulting therefrom. Id. (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)). On the circumstances presented here, McCullough can demonstrate neither cause nor prejudice to excuse the default.

Second, even if the Court were not to dismiss the claim as procedurally defaulted, it would dismiss it as not cognizable in a federal habeas proceeding. Federal habeas relief is only available if a petitioner's custody violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). Federal courts do not have the power to correct a misapplication of state law unless that misapplication itself violates federal law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002). Courts in this Circuit consistently have held that a claim pursuant to C.P.L. § 710.30 does not present a federal question cognizable on habeas review. E.g., Ventura v. Artuz, 2000 WL 995497, No. 99-Civ-12025 (S.D.N.Y. July 19, 2000) (violation of C.P.L § 710.30 is "clearly a state law issue and is not cognizable under federal habeas review"); Smith v. Artus, 2005 WL 1661104, at *7, No. 03- Civ-9819 (S.D.N.Y. July 14, 2005) (same). Therefore, even if McCullough's claim relating to alleged violations of C.P.L. § 710.30's notice provision were not procedurally defaulted, it still would not be cognizable in this federal habeas corpus proceeding.

Because staying the amended petition to permit exhaustion of procedurally defaulted and not-cognizable claim would be pointless, the Court denies, with prejudice, McCullough's motion for a stay.*fn3

IV. Factual Background and Procedural History

On the day they were scheduled to testify at trial, Jones and Holloman (the two eyewitnesses/victims) failed to appear in court. The prosecutor informed the trial court that he had met with both of the witnesses in his office several days ago and that they had indicated they would be present for trial; that members of the district attorney's office had talked to them the previous day and they again affirmed that they would be present; and that the witnesses had never suggested that they were going to be anything but cooperative. T.269-72.*fn4 The trial court then issued material witness orders to compel their appearance.

Presented with the choice of being arrested pursuant to a material witness order or appearing voluntarily, Jones accompanied an investigator from the district attorney's office to the prosecutor's office about one hour before her testimony resumed. T.456-57. Jones, however, refused to divulge her daughter's place of employment to the investigator. The prosecutor informed the trial court that Jones's reluctance to testify was occasioned by threats that she and her daughter had received. T.276-77, 460-62, 479-80.*fn5

Jones testified that at about 11:30 p.m. on January 20, 1997, she and her daughter were in their house at 460 Bernard Street. Jones was asleep in her bedroom when she was awakened by a loud noise. T.281-82. As she moved toward her bedroom door, she encountered a black male standing directly in front of her. T.285. (Jones testified that she had seen this man on "maybe" two occasions prior to that night although she claimed not to recall where she had seen him.) Jones identified this individual as McCullough prior to trial at a show-up identification conducted shortly after the incident, and also identified him at trial. T.289-90, 328. According to Jones, McCullough asked, "Where's Chill?"*fn6 and then struck her on the head with a hard object.

T.297-99. Jones retreated to her bedroom to get her handgun as McCullough walked toward the kitchen. Now armed, Jones went into the kitchen where she saw McCullough, still holding his gun, standing over her daughter, who was lying naked on the floor, screaming and crying. T.300-02. McCullough then headed to the front door and announced, "Tell Chill I'm going to kill that motherfucker." T.304.

Jones followed McCullough to the door and saw him get into the driver's seat of a light grey and black Cadillac parked in her driveway. T.304. As McCullough drove away, she observed another black male in the vehicle. T.308-09. Jones then called the police and provided them with a partial license plate number of the Cadillac. T.339. Shortly thereafter, the police apprehended McCullough driving the Cadillac. A pregnant black female named Barbara Brown ("Brown") was in the front seat of the car, and she was found to be carrying a handgun; a black male named Gerald Jackson ("Jackson") was seated in the backseat. During a show-up identification which was conducted shortly after midnight in front of her home, Jones identified McCullough as the intruder. During the show-up, McCullough spontaneously yelled out, "You better talk to Chill!" and "Tell Chill I'm going to get him!" T.354, 427.*fn7

On the day following Jones's testimony, defense counsel placed on the record the fact that Jones had appeared, unsolicited, at his office that morning. According to defense counsel, Jones said that "she had no intentions of coming to court at any time, refused to come to court, that she was threatened with an arrest if she did not come to court and testify." T.454. In addition, Jones told defense counsel that she "was unable to make identification of the person inside of her house" on the night of the incident. T.455. She said that when she was asked to make her identification in court, "she just simply stood up and pointed to the right side of the room, which she was informed prior to [sic] and in her own mind thought that the defendant would be in that area of the courtroom." Id. Based on these allegations, defense counsel requested a hearing to determine whether or not there were any threats made to Jones.

The prosecutor responded, saying that his investigator, James Rossiter ("Rossiter"), had gone to Jones's place of employment to execute the material witness order and Jones had "made a scene." T.457. Rossiter informed Jones that she had two choices--to come voluntarily or to be handcuffed and taken forcibly. Id. According to Rossiter, Jones agreed to come voluntarily to the prosecutor's office although she was "quite upset." T.460. Jones informed the prosecutor that her daughter "had been receiving threats by telephone from unknown persons that she should not come to court, that if she came to court severe harm would come to her." T.461. The prosecutor explained to Jones that the trial judge had the power to hold her in contempt of court if she did ...


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