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Evans v. Sewkowski

September 26, 2006

ARTHUR EVANS, PETITIONER,
v.
DANIEL SEWKOWSKI, RESPONDENT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Petitioner Arthur Evans ("Evans") seeks a writ of habeas corpus to set aside a Judgment of Conviction of the New York State Supreme Court, County of Erie, entered on February 4, 1999.*fn1 For the reasons set forth herein, the petition is denied.

II. BACKGROUND

The charges against Evans arose from allegations that, in the early morning hours of August 6, 1997, in an alleyway on Lathrop Street in the City of Buffalo, Evans forcibly raped Lucinda Archer and assaulted her with either a board or a brick. (Appellant's Appendix to Fourth Department (hereinafter "Appendix") at 8.)

Prior to his trial, Evans moved to suppress certain evidence and statements, to wit: a bloody t-shirt, long black hairs, his statements to the police at the time of his stop on August 6, 1997, and statements he made at the Office of the District Attorney on February 11, 1998. A Huntley/suppression hearing was conducted on August 14, 1998, and the parties submitted supporting memoranda thereafter. On October 6, 1998, New York State Supreme Court Justice Buscaglia issued a Decision and Order granting Evans' motion to suppress statements made on February 11, 1998 and denying the motion in all other respects. (Appendix at 88-93.)

The trial testimony is as follows. On August 5, 1997 and into the early morning of August 6, 1997, Lucinda Archer ("Archer") was at the home of friends on Kosciaszko Street drinking beer and watching TV. T. 65-66.*fn2 All told, she had two 12-ounce beers and three or four 40-ounce beers that day. T. 91-93. After leaving her friends' home, Archer stopped to use a pay phone on Sycamore. T. 66. While she was on the phone, a friend named Pedro came by and Archer agreed to walk with him to a store on Broadway. T. 66-67. It was then around 2:00 a.m. T. 117.

As she was walking and talking, Archer noticed that Pedro was not answering. T. 67. Someone then grabbed her from behind, dragged her between two houses, hit her repeatedly with something hard, pulled off her clothes and raped her. T. 68-69. She did not see her attacker's face because there was blood in her eyes. T. 69-70. The attacker then ran off and Archer called 911, first from a pay phone and then from a Kosciaszko Street home. T. 70-74. When the police arrived on Kosciaszko Street, Archer told them that Pedro, the last person she had seen, had attacked her. T. 75. Archer also implicated Pedro in a statement to police the following day. T. 117.

At about 2:55 a.m. on August 6, 1997, Officers Gerald Sullivan and Ralph Skinner were in a patrol car on Walden Avenue when they noticed a black male, later identified as Evans, standing on a street corner with a bulge under his shirt. T. 128-29; HT. 6.*fn3 The officers made a U-turn to investigate. T. 129, 221; HT. 7. Evans began walking away from the police car and discarded the item he had under his shirt. T. 129-130, 403-404; HT. 7. The officers stopped Evans, asked his name, and retrieved the item he had discarded-a blood stained t-shirt. T. 130-133; HT. 8-9.

Evans gave the police his name and stated that he had parole papers for identification, but was unable to produce them. T. 135-136, 404-405, 447; HT. 20. Evans first denied but later admitted that the recovered t-shirt was his, explaining that it was bloody because he had been in a fight. T. 134, 405-406, 444; HT. 9. While speaking to Evans, Officer Sullivan observed that Evans had several long black hairs stuck in the zipper area of his pants and mud on his jeans. T. 137, 153; HT. 9-10.

The officers then heard a radio call of a rape at 161 Kosciaszko Street. T. 136; HT. 10. They took Evans to that address, thinking that he might be the perpetrator. Archer came out of the house to look at him, but did not identify Evans as her attacker. T. 100, 136; HT. 10.

The officers asked Evans to return with them to the station house. T. 138; HT. 10. Once there, Evans was given his Miranda rights and did not object to police taking the t-shirt and the hairs from his zipper area. T. 138; HT. 10-11. When asked how he got those hairs there, Evans stated he had been with a girl earlier in the evening. T. 138. Evans was not placed under arrest and was released after the hairs were retrieved. T. 138; HT. 12.

The prosecution presented proof that Evans' identification papers and other papers belonging to him were found at the scene of Archer's assault (T. 165-166, 347-352), the blood on the shirt discarded by Evans could have been Archer's (T. 280-281) and the hairs taken from Evans' zipper exhibited the same microscopic characteristics as Archer's head hair (T. 286-90). The prosecution also produced Richard Golden, a convicted burglar, who testified that he had spent several months with Evans during which time Evans told him he had sex with a woman in an alley, there was a scuffle and the woman was hit, Evans lost his ID, and the woman had identified some Spanish guy instead of him. T. 319-326.

Evans testified in his own defense, claiming that he met Pedro for the first time in the early morning hours of August 6, 1997, that it was Pedro who assaulted Archer and that Evans stopped the assault by pulling Pedro off of her. T. 390-401.

The jury convicted Evans of rape in the first degree and assault in the second degree. (Appendix at 3.) He was sentenced as a persistent violent felony offender to two concurrent terms of incarceration of 25 years to life. Id.

By Notice dated February 15, 1999, Evans timely appealed to the New York State Supreme Court, Appellate Division, Fourth Department ("Appellate Division"). Represented by counsel, Evans challenged his conviction on four grounds: 1) the Supreme Court erred in refusing to suppress physical evidence seized from him; 2) the evidence is legally insufficient to support his conviction; 3) his constitutional rights were violated by the Supreme Court's Sandoval ruling, prosecutorial misconduct and ineffective assistance of counsel; and 4) his persistent violent felony offender status was not sufficiently proven and his sentence was harsh and excessive. (Records, Ex. B, Appellant's Brief.)

On December 21, 2001, the Appellate Division issued a decision affirming the judgment of the trial court. People v. Evans, 289 A.D.2d 994 (4th Dep't 2001). Citing New York's contemporaneous objection rule, N.Y. CRIM. PROC. L. § 470.05(2), the Appellate Division found that Evans had failed to preserve for review the issues of the legal sufficiency of the evidence and prosecutorial misconduct. Id. The Court expressly rejected each of Evans' remaining arguments. Id.

Evans timely sought leave to appeal to the New York Court of Appeals, urging the same grounds for relief raised at the Appellate Division. (Records, Ex. C.) The Court of Appeals denied leave to appeal on February 14, 2002 (Id.) and Evans' conviction became final on May 15, 2002, the day on which his time to seek direct review by writ of certiorari to the United States Supreme Court expired. Walker v. Artuz, 208 F.3d 357, 358 (2d Cir. 2000), rev'd on other grounds sub nom. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed. 2d 251 (2001).

The instant petition was received at the United States District Court, Southern District of New York's pro se office less that one year thereafter, on March 17, 2003, and therefore is timely.*fn4 In his petition, Evans claims five grounds for relief: 1) the police illegally seized evidence from him; 2) the evidence presented at his trial was insufficient to support a conviction and the verdict was against the weight of the evidence; 3) the trial court's erroneous Sandoval ruling, the prosecutor's prejudicial remarks in summation, and defense counsel's ineffective representation denied him his rights to due process and a fair trial; 4) his persistent violent felony offender status was not sufficiently proven and his sentence was harsh and excessive; and 5) he was unlawfully stopped and detained without reasonable suspicion.*fn5 Evans' petition contains little or no articulated basis for his various claims. Instead, Evans refers the Court to the arguments made on his behalf to the Appellate Division.

Respondent concedes that the petition is timely and that Evans has exhausted his state court remedies with respect to the issues raised therein. (Docket No. 9 at 3).

III. APPLICABLE LAW

A. Law Governing Habeas Corpus

Under 28 U.S.C. § 2254(a), federal habeas review is available to 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." Thus, errors of state law are not subject to review in a habeas proceeding. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed. 2d 385 (1991). To be entitled to habeas relief, a petitioner must demonstrate that the challenged conviction resulted from a state court decision that violated federal law. Id. at 68.

A petition for a writ of habeas corpus may be granted with respect to a claim that has been adjudicated on the merits in the state courts if the court's determination: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

An adjudication "on the merits" within the meaning of 28 U.S.C. § 2254(d) occurs when the state court decision "finally resolve[s] the parties' claims, with res judicata effect," and is "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (internal citations and quotation marks omitted). As long as the foregoing circumstances are met, a claim will be considered "adjudicated on the merits" even if the state court decision does not reference federal law and no relevant federal cases are cited. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (internal quotation marks omitted).

B. Procedural Default

Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50, 111 S.Ct. 2546, 115 L.Ed. 2d 640 (1991). A procedural default "will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed. 2d 308 (1989) ...


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