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Thompson v. Burge

July 6, 2007

DOMINIC THOMPSON, PETITIONER,
v.
JOHN BURGE, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Dominic Thompson ("Thompson" or "petitioner") petitions this Court pro se for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction. On May 2, 2002, petitioner was convicted by a judgment of the Supreme Court of the State of New York, Queens County, following a jury trial, of the following: three counts of Robbery in the Second Degree [N.Y. Penal Law § 160.10[1]); one count of Criminal Possession of a Weapon in the Second Degree [N.Y. Penal Law § 265.03(2)]; three counts of Criminal Possession of a Weapon in the Third Degree [N.Y. Penal Law § 265.02(1)]; three counts of Criminal Possession of Stolen Property in the Fifth Degree [N.Y. Penal Law § 165.400; and one count of Criminal Trespass in the Second Degree [N.Y. Penal Law § 140.15]. Petitioner was sentenced to concurrent terms of incarceration, which resulted in a sentence of 15 years' imprisonment.

Petitioner challenges his conviction on the following grounds: (1) he was denied a fair trial and due process of law because, among other things, the evidence presented at trial was insufficient as a matter of law to convict him; (2) he was deprived of his Sixth Amendment right to the effective assistance of trial counsel; and (3) the prosecutor at trial assumed the role of an unsworn witness and offered testimony, which resulted in petitioner being denied his right to a fair trial. For the reasons set forth below, the petition is denied in its entirety on the merits.

I. BACKGROUND

A. The Facts

The following facts are adduced from the instant petition and underlying record.

On June 10, 2001, between 11:00 a.m. and 11:30 a.m., in front of Sybil's restaurant on Hillside Avenue in Queens County, New York, Amit Sukhram ("Sukhram"), Rohee Ramsamojh (`Ramsamojh"), and Mohamed Ally ("Ally") were waiting for their food order. (Tr. 368-69, 374, 404, 604.)*fn1 While waiting for the food order, petitioner and an unidentified male asked them for a dollar for change for the subway and Mohamed began to check his wallet for loose change. (Id. 374- 77, 412, 605.) Petitioner then pulled out a gun and pointed it at Sukhram's stomach. (Id. 373-74, 377-79.) Petitioner and his accomplice then walked the three victims backwards into an alley. (Id. 413-14, 425-26, 606.) When they reached the back of the alley, petitioner took Sukhram's pager from his waist and told all three men to empty their pockets. (Id. 378-80, 383, 414.) While Ramsamojh and Ally removed their belongings - two bracelets, a chain and a sum of money - and placed them on the ground, petitioner told them not to try anything because his accomplice also had a gun. (Id. 382, 610-12, 653-54.) Petitioner then grabbed the jewelry and money from the ground, and he and his accomplice ran away. (Id. 383- 384, 612.)

As petitioner and his accomplice fled the area, Sukhram retrieved his remaining belongings from the ground and ran with the other two victims towards the alley entrance. (Id. 384, 612-13.) At that point, the three victims saw Police Officer Kathleen Van Buren ("Officer Van Buren"), pointed at petitioner and his accomplice as they were running away, and advised Officer Van Buren that they had just been robbed by a man with a gun. (Id. 384-85, 440-41, 613.) Officer Van Buren then called for backup and, after Sukhram described the two robbers and described the items that had been taken, Sukhram and Ally got into her police car and canvassed the immediate area in an attempt to locate the robbers. (Id. 385-88.) Officer Van Buren told Ramsamojh to wait there for another police car because he would not fit in the car. (Id. 613.) Shortly thereafter, Police Officers Daniel Feil ("Officer Feil") and Jerry Malone ("Officer Malone") arrived in a second police car and Ramsamojh provided a description of the two men who had robbed him and his friends. (Id. 614, 665-66.)

During a canvass of the area, Ramsamojh saw petitioner in an alley next to a Dunkin Donuts shop on Parsons Boulevard, pointed petitioner out to the police, and noticed that petitioner was not wearing the same shirt he had worn during the robbery. (Id. 616, 639- 41, 668, 673.) As the police drove into the alley, petitioner saw the police car, and fled by jumping over a cinder-block wall covered with barbed wire. (Id. 616-17, 673-77, 691.) Officer Feil lost sight of petitioner and radioed his location to Officer Van Buren. (Id. 679.)

After arriving at the Dunkin Donuts shop, Officer Van Buren continued to canvass the area with Sukhram and Ally. (Id. 391.) A few blocks away from where the robbery occurred, Sukhram and Ally saw petitioner and pointed him out to Officer Van Buren as the man who had robbed them. (Id. 391-93, 447.) A pursuit ensued, during which petitioner entered an open window of the first floor apartment at 162-05 89th Avenue where Javier Cruz ("Cruz") lived with his wife and young son. (Id. 355-58, 391-94, 447-51, 617- 18, 681-82, 684-81, 355.). Cruz saw petitioner in his home, noticed he was not wearing a shirt, and told him to leave, but petitioner remained and hid inside a closet. (Id. 361-62.)

Within seconds, the police arrived and found petitioner hiding in the closet. (Id. 363- 65, 451-53, 682-83.) As Officer Feil took petitioner out of the closet, he noticed petitioner's fingers were bleeding; Officer Van Buren noticed that petitioner was no longer wearing the white t-shirt he had been wearing during his flight and that petitioner was very sweaty. (Id. 365-66, 453, 683.) Outside the building, Officer Van Buren placed petitioner under arrest and, when she searched him, found Sukhram's pager in petitioner's pocket. (Id. 395, 454-55.)

After placing petitioner under arrest, the officers and complainants returned to the alley next to the Dunkin Donuts shop in order to search for evidence. (Id. 458.) Inside the alley, the officers found a defaced nine millimeter silver gun with one round in the chamber and eight rounds in the clip, as well as the shirt petitioner had been wearing during the robbery, Ramsamojh's chain, and Ally's bracelet and money. (Id. 396-399, 455-61, 479-83, 620-22, 685-87.)

Petitioner contested some of the aforementioned evidence during his testimony at trial. Petitioner testified that Sukhram and Ramsamojh had attempted to buy marijuana from him, and that petitioner walked away with their money and never returned. (Id. 741-42, 749.) Petitioner denied that Ally, the non-testifying complainant, had been present at all. (Id. 741, 748.) According to petitioner, when he saw the complainants pointing him out from a patrol car, he fled because he feared that the complainants had wrongfully accused him of stealing money from them. (Id. 744-48, 751, 753.) Petitioner testified that he had taken off his t-shirt in an attempt to disguise his appearance when he was running from the police. (Id. 755.) He acknowledged that the police found him in a closet in Cruz's apartment. (Id. 755-56.) Petitioner denied that the "scratches" on his knuckles had come from a barbed wire fence, and stated that he might have gotten them when the police threw him to the floor. (Id. 757-58.) Petitioner denied having robbed the complainants with a gun and also denied having been anywhere near the abovereferenced Dunkin Donuts shop that day.*fn2 (Id. 745, 758-59.)

B. Procedural History

Petitioner was charged with six counts of Robbery in the First Degree [N.Y. Penal Law § 160.15(2) and (4), three counts each] three counts of Robbery in the Second Degree [N.Y. Penal Law § 160.10(1)], Criminal Possession of a Weapon in the Second Degree [N.Y. Penal Law § 265.03(2)], three counts of Criminal Possession of a Weapon in the Third Degree [N.Y. Penal Law § 265.02(1), (3), (4)], two counts of Criminal Possession of Stolen Property in the Fourth Degree [N.Y. Penal Law § 165.45], Criminal Possession of Stolen Property in the Fifth Degree [N.Y. Penal Law § 165.40] and Criminal Trespass in the Second Degree [N.Y. Penal Law § 140.15]. (Queens County Indictment Number 1830/2001.) Petitioner was convicted on all counts following a jury trial before Justice Joseph Rosenzweig, Supreme Court, Queens County.*fn3 Petitioner was subsequently sentenced, as a second felony offender, as follows: a determinate prison term of fifteen years on each of the first and second degree robbery convictions and on the second degree weapon possession conviction, indeterminate terms of imprisonment of three to six years on the two non-violent felonies and the thirddegree weapons-possession convictions, and one year on each of the fifth-degree criminal possession of stolen property and second degree-criminal trespass convictions. (Tr. of May 2, 2002 Sentencing Proceedings, at 11.) All of the sentences on the various counts were imposed to run concurrently. (Id.)

Petitioner appealed his conviction to the Appellate Division, Second Department, raising the following issues on appeal: (1) "[petitioner] was denied a fair trial when the prosecutor made herself an unsworn witness by arguing that the police had taken inculpatory statements from [petitioner] when the People had presented no evidence to this effect"; (2) "[petitioner]'s conviction was against the weight of the evidence where his defense was that the complainants, who had criminal histories of drug use and theft, had falsely accused him of robbery in retaliation for his having cheated them in a marijuana sale, and where the third complainant had left the country on the eve of the trial"; and (3) "[petitioner]'s sentence totaling 15 years of imprisonment is excessive where he was only 19 years old, had neither injured nor attempted to injure any of the robbery complainants, and where a sustained prison term merely perpetuates the pattern of his childhood of receiving only punishment without nurturing or guidance." (Brief for Defendant-Appellant submitted by Petitioner to the Appellate Division (hereinafter, "Pet.'s Br.") at i-ii.) In connection with his argument regarding the weight of the evidence, petitioner also contended on appeal in state court that (1) the evidence at trial was insufficient to support a conviction of Second Degree robbery [N.Y. Penal Law § 160.10(1)] because of the State's failure to prove petitioner was aided by another person actually present, and (2) that there was insufficient evidence to convict petitioner on any of the robbery counts pertaining to Ally, the complainant who was absent from the trial. (Id. at 32-33.)

On January 12, 2004, the Second Department unanimously affirmed petitioner's conviction. People v. Thompson, 769 N.Y.S.2d 754 (N.Y. App. Div. 2004). On March 18, 2004, the New York State Court of Appeals denied Thompson's application for leave to appeal. People v. Thompson, 810 N.E.2d 925 (N.Y. 2004).

By pro se application, filed June 7, 2005, Thompson petitioned this Court for a writ of habeas corpus.

II. DISCUSSION

Petitioner raises three claims in his habeas petition. First, petitioner argues that he was denied a fair trial and due process for the following reasons: (i) the State did not prove that he used force during the robbery; (ii) he was denied his right to confront each of his accusers because one of the robbery victims did not testify at trial; (iii) the evidence at trial was insufficient as a matter of law to support his conviction and was against the weight of the evidence, primarily because the testimony of the police officers and the victims was contradicted by prior statements and police reports and because the State failed to conduct a fingerprint analysis on the gun that was used in the robbery. Second, petitioner contends that his trial counsel was ineffective because he failed to obtain a court order to compel a fingerprint analysis on the gun and also failed to introduce to the jury the prior inconsistent statements of witnesses. Third, petitioner claims that he was denied a fair trial because the prosecutor made herself an unsworn witness by commenting in her summation on an oral statement made by petitioner to the police that had not been introduced into evidence.

As set forth below, none of petitioner's claims warrant habeas relief. As a threshold matter, some of his claims - namely, that the evidence was legally insufficient because the State failed to prove that he used physical force, that he was denied his right to confront witnesses, and that he was denied effective assistance of counsel - are unexhausted and procedurally barred because he no longer has a state forum in which to raise the claims, and he has not shown cause for his procedural default or prejudice, nor has he shown that a fundamental miscarriage of justice will result from non-review of these claims. In any event, as discussed below, the Court has analyzed the substance of these unexhausted claims, as well as the other claims, and finds them all to be without merit.

A. Standard of Review

To determine whether or not a petitioner is entitled to a grant of a writ of habeas corpus, a federal court must apply the standards of review provided in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No 104-132, 110 Stat. 1214, which provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 ...


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