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Burrell v. Walsh

April 19, 2007


The opinion of the court was delivered by: John G. Koeltl, District Judge


This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by Michael Burrell, who is currently incarcerated in the Sullivan Correctional Facility in Fallsburg, New York. Following a jury trial, the petitioner was convicted of one count of robbery in the first degree, in violation of N.Y. Penal Law § 160.15(3), and two counts of robbery in the second degree, in violation of N.Y. Penal Law § 160.10(1) and (2)(a). Judgment was entered on March 13, 2003. The petitioner was sentenced as a persistent violent felony offender to three consecutive terms of twenty years to life imprisonment.

The petitioner's sole claim is that the evidence presented at trial was insufficient to sustain his conviction. First, the petitioner argues that, upon the evidence presented at trial, no rational trier of fact could have found him guilty beyond a reasonable doubt of using a dangerous instrument in furtherance of the robbery, as required under N.Y. Penal Law § 160.15(3), because a "much more likely scenario" is that the use of force was in self-defense. Second, the petitioner claims that there was insufficient credible evidence to prove that he was "aided by another person actually present," as required by N.Y. Penal Law § 160.10(1). Finally, the petitioner claims that the testimony of two eyewitnesses was unreliable and consequently insufficient to find him guilty of using force in the course of a robbery, as required by N.Y. Penal Law §§ 160.15 and 160.10. The petitioner argues that each of these alleged errors deprived him of his constitutional right to due process of law under the Fourteenth Amendment to the United States Constitution.


The following is a summary of the relevant facts presented at the petitioner's trial. On the afternoon of April 22, 2002, Morigue Coulibaly and his co-worker Mohammed Diallo were unloading delivery boxes for Hamilton Palace, a department store located on the corner of Broadway and 146th Street. (Trial Transcript ("Tr.") at 251-53.) Coulibaly carried the last box on his shoulder but before he could reach the entrance of Hamilton Palace, the petitioner approached Coulibaly from behind and punched him on the right side of the head. (Tr. at 254-55.)

The petitioner then took the box Coulibaly was carrying and ran across Broadway, heading west. (Tr. at 256.) After Coulibaly called to Diallo for help, both men chased after the petitioner. (Tr. at 256-58.) After Coulibaly and Diallo crossed Broadway in pursuit of the petitioner, they noticed that another man, later identified as Steven Norman, was running alongside the petitioner and the two were talking. (Tr. at 258-59, 274, 445.) Coulibaly and Diallo caught up with the petitioner and Norman on the corner of 146th Street and Riverside Drive. (Tr. at 260.) Coulibaly then grabbed the petitioner's sweater and demanded his box back. (Tr. at 259, 261.) At that point, Coulibaly testified, and Diallo confirmed, that Norman pulled out a knife and thrust it at Coulibaly. (Tr. at 260, 348-351.) Coulibaly attempted to back away from Norman, with his hands up in front of him, but was nevertheless stabbed in the hand three times. (Tr. at 262, 351-52.)

While Norman attacked Coulibaly, the petitioner ran west into a park, abandoned his box, and then jumped over a fence. (Tr. at 262, 266.) After stabbing Coulibaly, Norman also ran into the same park, climbed over the fence, and ran after the petitioner. (Tr. at 262-66.)

Du, an employee of Hamilton Palace, arrived at the scene shortly after the stabbing and called the police. (Tr. at 264, 352-53.) Police Officers Kevin Lee and Julio Almodovar, of the 30th Precinct, testified that about five or six employees of Hamilton Palace were at the scene when they arrived, including Diallo and Coulibaly, and that nobody had any weapons with them. (Tr. at 408-10, 444-47.) Norman and the petitioner were apprehended in the park, where they were hiding within fifteen to twenty feet of each other. (Tr. at 462-64, 435.)

Tammy Canty, a local resident, observed part of the crime scene. Canty saw men running away from Hamilton Palace. (Tr. at 371-75.) She was also able to observe part of what transpired outside her apartment window, which was in a building facing the corner of Riverside Drive and 146th Street. (Tr. at 377-78, 384.) While making some phone calls in her apartment, Canty heard a commotion outside but did not look outside for some time. (Tr. at 376, 393.) Eventually, she looked outside and saw a man with a knife, whom she could not identify, and four other men standing around him, but not completely surrounding him. (Tr. at 378-79, 393-94.) According to Canty, the four men did not have weapons of any kind. (Tr. at 378.) Canty called 911 while observing the scene and, after placing the call, she stepped away from the window. (Tr. at 380, 401.) During her testimony, Canty did not recall any physical contact between the man with the knife and the men standing around him. (Tr. at 405.)

In addition to Canty, other unidentified individuals called 911. (Br. of Def.-Appellant to App. Div., First Dep't, dated June, 2004 ("Br. of Def.-Appellant") at 8, attached as Ex. A to Aff. of Luke Martland, dated July 5, 2006 ("Martland Aff."); Br. of Resp't to App. Div., First Dep't, dated Jan., 2005 ("Resp't Br.") at 8, attached as Ex. B to Martland Aff.) Two people reported that a man with a knife was fighting, and three other callers stated that more than one person had a weapon, referring to knives, belts, and bottles.*fn1 (Id.) Canty was the only 911 caller who testified at the trial.

The petitioner and Norman were both convicted of one count of robbery in the first degree and two counts of robbery in the second degree. (Tr. at 618-20.) The petitioner appealed to the Appellate Division, First Department, alleging that his convictions of robbery in the first and second degree were against the weight of the evidence, that there was insufficient evidence as a matter of law to prove that petitioner or his co-defendant had caused physical injury to Coulibaly, and finally that the petitioner's sentencing as a violent felony offender was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). (Br. of Def.-Appellant at 10, 14, 21.) The Appellate Division rejected these claims, concluding that "the verdict was based on legally sufficient evidence and was not against the weight of the evidence. There [is] no basis for disturbing the jury's determinations concerning credibility. The credible evidence, and reasonable inferences that can be drawn therefrom, established every element of each of the forms of robbery." People v. Burrell, 789 N.Y.S.2d 887, 887-88 (App. Div. 2005) (citations omitted).

The petitioner then applied to the New York Court of Appeals for leave to appeal the decision of the Appellate Division. (Ex. D to Martland Aff. at 2.) The petitioner sought leave to appeal to the Court of Appeals to review all of the issues raised in his Appellate Division brief. (Id.) On April 12, 2005, leave to appeal was denied. People v. Burrell, 830 N.E.2d 325 (N.Y. 2005).


The petitioner has exhausted all state remedies, and the petition for a writ of habeas corpus is timely pursuant to 28 U.S.C. § 2254. The review of the petitioner's habeas corpus claim is governed by 28 U.S.C. § 2254(d)(1). Pursuant to § 2254(d)(1), the petitioner must show that the state court adjudication "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 ...

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