The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Lawrence Blair ("Blair" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of second degree burglary (N.Y. Penal Law § 140.25(2)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
On April 10, 1998, Joseph Meggo ("Meggo"), an inspector with the United States Customs and Immigration Service, returned from work at about 2:30 a.m. to his residence at 86 Bidwell Parkway in the City of Buffalo. In the front yard were two garbage bags containing dry goods and boxes of unused garbage bags. See T.33-35.*fn1 Meggo picked up the two bags and brought them inside the house. He returned outside to take out the garbage and, as he was walking down the driveway between his residence and the house next door (82 Bidwell Street), Meggo observed a number of cardboard boxes lined up against his house. T.36-37. He found that they contained dry goods and canned goods, as well as Christmas decorations and Christmas-tree stand. T.37, 45. Meggo then observed that basement window on the house next door, which happened to be owned by his father-in-law, Richard Dee ("Dee"), was propped open and a light was coming from inside the cellar. T.37-38.
Meggo called Dee from his cellular telephone and asked him to come outside; the two men then proceeded to the cellar of Dee's house. T.40. Meggo observed that the light in the basement was coming from a freezer which had been left open. T.40-41. Meggo and Dee searched the basement and were about to leave when Dee pointed out what appeared to be more than just an ordinary pile of laundry near the washing machine and dryer. T.42, 57. Meggo could tell that it was a person crouching down since he could see the beltloops of the person's pants.
T.43. Drawing his service handgun, Meggo approached the pile of clothes and kicked it. T.42. The sheet flew off, revealing a man whom Meggo later identified as Blair. T.43. Meggo handcuffed him and Dee called the police. T.43-44. Dee later identified the property found in the boxes outside the house as belonging to him. T.61-62.
When Officer James Hacker ("Hacker") of the Buffalo Police Department responded to the 911 call, he observed Blair being escorted down the driveway in handcuffs. T.79-80. Hacker administered the Miranda warnings to Blair; Blair indicated that he understood his rights. T.79-81. Lieutenant Lewis Ferrentino ("Ferrentino") observed Hacker read Blair the Miranda warnings and he then asked Blair some questions. T.91. According to Ferrentino, Blair stated that he was staying at 1129 West, about a mile away from 82 Bidwell, the scene of the burglary. T.91. Blair stated that he did not have a car and was going to keep the property at 82 Bidwell and carry it until he got it all out. T.92. Hacker and Ferrentino admitted that he did not see any sign of forced entry. T.85, 94. No burglary tools were discovered at the crime scene. T.94.
Officer Armond Cardone ("Cardone"), along with his partner, Officer Johnnie Allessandro ("Allessandro") transported Blair to the police station following his arrest. T.72. While they were processing the paperwork in Blair's presence, Cardone asked Allessandro if he remembered seeing whether the basement window had been broken. T.73. Blair said, "I didn't break no basement window." T.73. Cardone then asked Blair if he had used the tree branch that was near the window to pry open the window. T.73. According to Cardone, Blair responded, "No," and explained that the basement window was unlocked and that he had used the stick to hold the window open while he moved the boxes out. T.74.
Following the close of the proofs, defense counsel moved for a direct verdict, arguing that the prosecution failed to make a prima facie case of burglary under Penal Law § 140.25. In particular, defense counsel argued, there was inadequate proof that petitioner intended to steal once he was inside the dwelling. T.97. The prosecutor argued that the circumstances of the incident and petitioner's statements at the time of his arrest were sufficient to show that Blair had the requisite intent to commit a crime. T.98. The trial court denied the defense application. T.98.
Defense counsel also requested a jury instruction on the lesser included offense of criminal trespass in the second degree, a misdemeanor. T.99. The offense of criminal trespass encompassed petitioner's unlawfully remaining in a dwelling; counsel argued that the facts of the cases showed that Blair "wasn't trying to conceal anything" and therefore a reasonable view of the evidence was that he did not have the intent to steal the property in the boxes found outside.
T.101-03. The trial judge denied the request to charge-down to criminal trespass, noting that he did "not see any reasonable view of the facts that would indicate that this was merely an intent to find a place to sleep or the purpose to go in was to borrow some food." T.105.
The jury returned a verdict convicting Blair as charged of second degree burglary. T.144-45. The prosecution moved to have Blair sentenced as a persistent violent felony offender based on a 1980 second degree burglary conviction, a 1985 conviction for attempted second degree burglary, and a 1990 conviction for second degree assault. S.2.*fn2 Defense counsel indicated that he had spoken with his client at length and that Blair did not controvert any of the allegations in the predicate felony statement. S.5. Blair stated on the record that counsel was correct. S.5. Blair was sentenced to an indeterminate term of imprisonment of sixteen years to life, the minimum sentence possible given his persistent violent felony offender status.
On direct appeal, appellate counsel raised one issue--that the verdict was against the weight of the evidence. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed in the conviction in a summary order. People v. Blair, 285 A.D.2d 997 (App. Div. 4th Dept. 2001). The New York Court of Appeals denied Blair's pro se application for leave to appeal. People v. Blair, 97 N.Y.2d 639 (N.Y. 2001). Blair, proceeding pro se, filed an application for a writ of error coram nobis raising three points: that the prosecution failed to prove beyond a reasonable doubt that petitioner had the requisite criminal intent to support the burglary conviction; that appellate counsel had been ineffective in failing to argue that the trial court erred in failing to charge the jury with the lesser included offense of criminal trespass in the second degree; and that the trial court failed to ask petitioner whether he wished to challenge the constitutionality of the prior convictions used to support the prosecutor's persistent violent felony offender application. ...