The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
On or about September 1, 2005, petitioner Mark Goston ("Goston") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on two counts of first degree robbery (N.Y. Penal Law § 160.15(2), (4)) and one count of third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(4)). Goston sought and received permission from the Court (Siragusa, D.J.) to file an amended petition, which was filed on or about August 28, 2006. See Docket No. 14. Respondent submitted answers to both the original petition and amended petition. Goston filed a traverse in reply to respondent's answer to the amended petition. On October 30, 2006, the parties consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). See Docket No. 17.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Goston was arrested, tried, and convicted of robbing Magic Touch Clothing, a small store near the corner of East Delevan and Carl Streets in the City of Buffalo. At Goston's jury trial in Erie County Court (DiTullio, J.), store owner Jesse Stines ("Stines") testified that at about 6:00 p.m. on the evening of July 28, 1999, he and his employee Calvin Speight ("Speight") were working at the store when Goston walked in. Stines recalled that Goston was wearing a grey t-shirt. T.66, 119.*fn1
While Stines was helping two other customers, Speight approached Goston and asked if he needed help. T.63, 118, 127. Goston replied that he was just browsing, so Speight sat down and began eating his dinner. T.120, 127, 143. The other customers left after making purchases. Goston also seemed to be leaving, but then he turned and put a gun to Speight's face and demanded to know where the money was. T.64-65, 67, 87-88, 120-22. Goston ordered Speight and Stines to lie down on the floor, and went over to the cash register, opened it, and removed the cash. T.67, 93, 121-22. While Goston was near the register, Speight got up and ran out the door, screaming for help. T.67-68, 123.
Goston then approached Stines, put the gun to his head, and demanded to know where the rest of the money was. T.68. Stines handed over his wallet, and Goston left the store. T.68, 94. Stines was unsure how much money Goston took from the register, but believed it was between thirty-eight and sixty dollars. T.73.
Meanwhile, Speight had flagged down a police car less than a block away from the store and informed the officers about the robbery. T.123, 199. As Speight was describing Goston's clothing to Officer Hosking, he saw Goston walk out of the store. T.123, 180-81. Speight pointed at Goston, and told Officer Hosking that he was the robber. T.124. Officer Hosking saw the person at whom Speight was pointing run down East Delevan and turn onto Carl Street. T.181.
Stines had followed Goston out of the store and saw him make two left turns, ending up in the area behind the store. T.69. At that time, no officers were giving chase. T.100. Fearful that Goston would see him, Stines returned to the store. T.70.
By this time, Speight also had returned to the store, T.152, and Officer Hosking was chasing Goston. However, Officer Hosking lost sight of him in the residential yards behind the store. T.183. When other officers arrived at the store, Stines informed them that Goston was in the backyards behind the store. T.70, 102.
Officer Heitzhaus testified that after he arrived to the store, he proceeded to run through an alleyway next to the store, where he found a grey t-shirt on the other side of a chain-link fence. T.238. After speaking to some children, who told him that a man had taken off the t-shirt as he ran by, Officer Heitzhaus broadcast that the suspect was running on Deerfield Street without a shirt. T.238-40, 273, 281.
Edward Carney ("Carney"), a public safety officer with the Buffalo Municipal Housing Authority ("BMHA"), had heard the earlier police transmissions about the robbery. Moments after driving past a shirtless black male, he heard that the robbery suspect was no longer wearing a grey t-shirt. T.298-99. Carney turned his car around and found Goston, trying to get into a house on Leroy Avenue near the corner of Grider Street, but the door was locked. T.301. Carney observed that sweat was dripping from Goston's face, and that he was out of breath. T.300-01. At about that time, Officers Hosking and Heitzhaus arrived, and also observed Goston sweating profusely and breathing heavily. T.186, 241-42. Goston was apprehended about one mile from the store that was robbed.
Goston was taken into custody and placed in the back of the BHMA patrol car. Carney drove him back to the store, whereupon Stines ran up to the vehicle, and, unprompted, identified Goston as the robber. T.71-72, 186-87, 243-44, 304-05.
Officer Heitzhaus returned to the alley next to the store and, thirty feet from where he had found the grey t-shirt, he discovered a loaded handgun and a wallet. T.245-46. The wallet and the gun were within eight inches of each other, T.249, and the wallet contained Stines' credit card and driver's license. T.72, 108.
At trial, Stines testified that the gun was the same color and style as the one the perpetrator had used to rob the store. T.109. Both Speight and Stines identified Goston as the robber at trial.
Goston did not testify at trial. However, his father, Douglas Goston, testified that he saw his son on the 28th of July at about the time he was apprehended by the police. Douglas Goston stated that he was sitting in a car across the street from 435 Leroy Avenue, the house into which Goston was trying to gain entry at the time he was arrested. Douglas Goston stated that Goston's mother lived there. According to Douglas Goston, as his son approached the vehicle, Goston appeared to be "calm" and "comfortable," and he was walking. T.327. He asked Goston where he was going, and Goston replied that he was going to his mother's house. T.328.
The jury returned a verdict convicting Goston on all three counts submitted to it (two counts of first degree robbery and one count of third degree criminal possession of a weapon). Prior to sentencing, defense counsel moved to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 330.30 on the ground that the prosecutor had violated his discovery obligations under New York state law by failing to disclose certain grand jury minutes prior to trial. The trial court denied the application and sentenced Goston as a second felony offender to concurrent sentences of imprisonment, the longest of which was a determinate term of fifteen years.
On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed his conviction but concluded that the indeterminate sentence of three and one-half to seven years imposed on the criminal possession conviction was illegal. Because the crime at issue was a violent felony offense, and Goston was sentenced as a second felony offender, the court was mandated to impose a determinate sentence. See N.Y. Penal Law §§ 70.02(1)(c), 70.06(6), 265.02(4). The court accordingly modified the judgment by vacating the sentence imposed on the weapons possession conviction, and remitting the matter to the County Court for re-sentencing. The re-sentencing did not affect the overall length of Goston's sentence, as the sentence on the weapons possession charge was less than his longest sentence, which was fifteen years. Leave to appeal to the New York Court of Appeals was denied.
Goston filed a collateral motion under C.P.L. § 440.10 on February 22, 2002, alleging, inter alia, that trial counsel had not provided effective assistance. The trial court denied the motion on July 26, 2002. Goston subsequently sought reconsideration of the denial, which also was denied on August 18, 2005. This habeas petition was filed while Goston was awaiting a decision on his motion for reconsideration.
For the reasons set forth below, the request for a writ of habeas corpus is denied, and ...