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Neloms v. Brown

March 16, 2007

JOHN NELOMS, PETITIONER,
v.
WILLIAM BROWN, SUPERINTENDENT, EASTERN NY CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

John Neloms, currently an inmate at Fishkill Correctional Facility in Beacon, New York, brings this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In October 2000, a jury in New York County convicted Neloms of multiple charges, including two counts of weapons' possession. In December 2000, he was sentenced to a prison term of 15 years.

The parties have consented to disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the petition is denied.

I. BACKGROUND

A. Evidence at Trial

On December 8, 1999, at about 8:20 p.m., Randy Pena and Julio Delarosa were smoking marijuana on the corner of West 153rd Street and Amsterdam Avenue with friends when they heard a man known as "Santiago" yell from a nearby third-story window that he had been "robbed" and that the robbers were "going down." (Delarosa: Tr. 126-27; Pena: Tr. II 3-5).*fn1

Moments later, Neloms and Craig Guess exited the building, each brandishing a gun in the direction of Pena, Delarosa and their friends, and gesturing with the gun for them to "get back." (Delarosa: Tr. 128-30; Pena: Tr. II 5). One of the men was also carrying duct tape. (Delarosa: Tr. 129).

As Neloms and Guess walked away from the building, north up Amsterdam Avenue (see Virgil: Tr. 35), Delarosa and Pena got the attention of a police van driving through the area, yelling: "They got guns. They got guns." (Delarosa: Tr. 134; Pena: Tr. II 9). At this point, Neloms and Guess were "about 35 [to] 40 feet" away from the police and "nobody else [was] on the block." (Virgil: Tr. 34). A chase ensued. See Politowski: Tr. 167-68. Neloms and Guess began to "jog[]" uptown with "their hands in front of them," (Virgil: Tr. 35), turning east onto 154th Street. (Virgil: Tr. 36). The police officers followed in their van (see Politowski: Tr. 167-168), keeping the two men in their sight except for a "brief second [when] they turn[ed] the corner." (Virgil: Tr. 37). Delarosa and Pena followed the chase on foot. (Delarosa: Tr. 135; Pena: Tr. II 10-13).

When the police van reached the corner of 154th Street, Officers Virgil and Politowski exited the van to pursue Neloms and Guess on foot, while a third officer continued to follow their progress from the van. (Politowski: Tr. 168-69; Virgil: Tr. 38). First Guess and then Neloms discarded objects that the officers later identified as guns. As Sergeant Politowski described it, "[a] couple of car lengths into the block," Guess "ben[t] down at the knees" to "nonchalant[ly]" place an "object to the ground" (Politowski: Tr. 168); and, a few moments later, Neloms "threw" an object "with a sweeping motion, . . . underneath [a] car." (Politowski: Tr. 170). Once it was established that the object Guess had dropped was a loaded .25 caliber gun (see Virgil: Tr. 39), the officers converged, first on Neloms, then on Guess, with guns drawn. (Virgil: Tr. 30-32; Politowski: Tr. 171-72). The "whole incident, . . . from the time [the officers] start[ed] to the time [they] recover[ed] the guns, [lasted] . . . a minute or so." (Politowski: Tr. 181).

At the time of his arrest, Neloms had duct tape in his hand and was carrying a bag. (Virgil: Tr. 30, 44). The police removed a box cutter from his "coat pocket," and also recovered a "calculator with cocaine residue," as well as "a digital scale with cocaine residue." (Virgil: Tr. 31). Id. Neloms had "a large sum of money," in his pants pocket. (Virgil: Tr. 50). Officer Virgil also recovered "white powder," which tested positive for cocaine, from Neloms's pocket. (Virgil: Tr. 31). Nearby, Sergeant Politowski retrieved a loaded .40 caliber semiautomatic gun (see Virgil: Tr. 50-51; Politowski: Tr. 175) from underneath the car where he had witnessed Neloms drop the object that had sounded metallic as it hit the ground. (Politowski: Tr. 172-73, 175-76). Officer Virgil located a stun gun from the scene (Virgil: Tr. 32; Politowski: Tr. 173), as well the .25 caliber gun initially retrieved on the ground.

Following the arrests, which occurred approximately "five . . . [to] six minutes" after Neloms had exited the building, the civilian witnesses returned to the corner of 153rd Street and Amsterdam. (Pena: Tr. II 13-14). There, they both saw the man who stated that he had been robbed. (Delarosa: Tr. 141; Pena: Tr. II 13-14). The witnesses testified that the victim had a lot of "gray tape on his hand [and] around his neck." (Delarosa: Tr. 142; see also Pena: Tr. II 14). While the victim said "nothing," he looked "scared," called a car, and "went home." (Delarosa: Tr. 142; Pena Tr. II 14). The officers did not speak to the victim. Before returning to the precinct, they conducted a canvas of the building (Virgil: Tr. 32, 104) and spoke to Delarosa and Pena. (Virgil: Tr. 100).

B. Proceedings in State Court

On October 30, 2000, the jury convicted Neloms of Criminal Possession of a Weapon in the Second Degree under New York Penal Law § 265.03(2);*fn2 Criminal Possession of a Weapon in the Third Degree under New York Penal Law § 220.02(4); Criminal Possession of a Controlled Substance in the Seventh Degree under New York Penal Law § 220.03; and Criminally Using Drug Paraphernalia in the Second Degree under New York Penal Law § 220.50(3). See Petition for Writ of Habeas Corpus By a Person in State Custody, dated Sept. 1, 2005 (Docket #1) ("Petition"), at 1;*fn3 Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed May 10, 2006 (Docket #7) ("Resp. Mem."), at 1. On December 14, 2000, Neloms was sentenced to concurrent terms on the charges as follows: 15 years for the second-degree weapon charge; 7 years on the third-degree weapon possession charge and one year each for the drug possession and paraphernalia charges. Id.

Neloms, through counsel, appealed his conviction to the Appellate Division, First Department. See Brief for Defendant-Appellant (reproduced as Ex. A of Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed May 10, 2006 (Docket #8) ("Resp. Decl.")). Neloms's counsel argued in her submission that: (1) the trial court erroneously admitted Santiago's statements that he had been robbed and "they're coming down" under the excited utterance and present sense exceptions to the hearsay rule, id. at 17-26; (2) the court erred in admitting evidence of Neloms's possession of a gun, stun gun and duct tape, id. at 26-32; and (3) Neloms's sentence was excessive. Id. at 32-34. Neloms also filed a pro se supplemental brief with the Appellate Division in which he advanced three additional claims: (1) the evidence that Neloms intended to use the gun unlawfully against another was legally insufficient, see Ex. B of Resp. Decl. at 1-7; (2) the suppression court should have suppressed "the weapon and all other items recovered from the ground" as the fruit of an unlawful search and seizure, see id. at 7-12; and (3) Neloms's due process rights were violated by admission of hearsay evidence before the grand jury. See id. at 13-17.

On June 17, 2004, the Appellate Division, First Department, affirmed Neloms's conviction. See People v. Neloms, 8 A.D.3d 136 (1st Dep't 2004). With regard to the trial court's admission of out-of-court statements made by a non-testifying witness, the Appellate Division held that the trial court properly admitted, as both an excited utterance and a present sense impression, a declaration made to two civilian witnesses by the non-testifying victim of an uncharged robbery, in which the screaming declarant, with duct tape on his hands and neck, stated that he had just been robbed and that the robbers were on their way out of the building. The evidence warranted the conclusion that the robbery had just occurred, and that the declarant was still under the influence of the stress of that incident.

Id. at 137. Moreover, the Appellate Division found that the hearsay testimony "was received not for its truth but to show the police officers' state of mind," id., and that "the court's limiting instructions minimized any prejudicial effect" of this testimony and "various other evidence relating to the uncharged robbery." Id. As to the excessiveness of Neloms's sentence, the court found "no basis" for this claim. Id. Finally, the court noted that it had "considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief." Id.

On July 7, 2004, Neloms, through counsel, applied for leave to appeal to the New York Court of Appeals. See Letter to Hon. Judith S. Kaye, from Lisa F. Lewis, dated July 7, 2004 (reproduced as Ex. E of Resp. Decl.). The letter discussed the same three grounds for review as were raised in his appellate counsel's brief to the Appellate Division. See id. Additionally, the letter "ask[ed] [the] Court to consider and review all issues raised in the enclosed Brief for Defendant-Appellant and argued orally." Id.*fn4 On September 23, 2004, the Court of Appeals denied Neloms's leave application. People v. Neloms, 3 N.Y.3d 710 (2004).

C. The Present Petition

Neloms's petition is dated September 1, 2005; was received by the Pro Se Office on September 7, 2005; and was docketed on September 21, 2005. The Petition seeks a writ of habeas corpus based on the following grounds:

(1) "The People's evidence adduced at trial did not prove all the elements of the crime charge [sic] beyond a reasonable doubt. The evidence was legally insufficient to prove that appellant possed [sic] a weapon with ...


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