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Ward v. Herbert

September 6, 2007

BOBBY WARD, PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Petitioner Bobby Ward ("Ward" or "petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of first degree robbery. 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

The conviction here at issue stems from Ward's involvement with Damien Lott ("Lott" or "co-defendant") in the assault and robbery at gunpoint of Jipcho Bordeaux ("Bordeaux" or "the victim") which took place in the late night hours of January 24-25, 1998, in the City of Rochester. During the course of the robbery, Bordeaux was pistol-whipped and shot non-fatally several times; he was left by the perpetrators inside of an abandoned car.

Under Monroe County Indictment No. 98-0172B, Ward and Lott were charged jointly with one count of attempted murder in the second degree, two counts of assault in the first degree, two counts of robbery in the first degree, criminal possession of a weapon in the second and third degrees, criminal use of a firearm, and grand larceny in the fourth degree. The charges against Lott were severed, and the two defendants were tried separately. Lott was acquitted after a jury trial. See T.7.*fn1

At Ward's trial in Monroe County Court (Sirkin, J.), Bordeaux, the victim, testified that he had gotten together socially with Ward and Lott on the evening of January 24, 1998. Bordeaux anticipated that the three men were going to go out to various dance clubs to try to pick up some girls. T.216-17, 300. Bordeaux stated that he had known Ward for sixteen years, since grammar school. He had known co-defendant Lott for ten years. T.211-12. Bordeaux testified that as they were out cruising the streets in a car owned by his sister, Ward was driving and Lott was in the backseat. Bordeaux stated that he was sitting in the passenger's seat and was not driving because he did not have a driver's license. T.214.

Prior the robbery, the three men had been driving around for about three hours with no arguments taking place; they were merely discussing their plans for the evening. T.215-16. Bordeaux admitted that he never saw or heard any "signals" between Lott and Ward; Ward was just driving the car. T.287. Bordeaux testified that when Ward turned the car onto Elba Street, he believed that they were going to see a girl whom they all knew. Bordeaux testified that he told Ward and Lott that it was time for them to "split up" for night. T.287. Bordeaux recalled that he then heard several gunshots coming from behind him and saw sparks; Lott was still sitting in the backseat. T.213-14, 217, 226. Although he was seriously injured, Bordeaux did not lose consciousness. Ward continued to drive towards Plymouth Street, and Bordeaux testified that he attempted to escape by trying to roll out of the passenger-side door into an intersection where several people were standing. T.219. However, Bordeaux stated, his escape attempt was thwarted because Ward activated the power door-lock on the passenger-side door. T.219.

Bordeaux related that Ward proceeded to park the car between two dumpsters behind School No. 19 on Flint Street. T.220. Bordeaux heard Lott say, "Wipe down the car." T.220. Bordeaux related that he then saw both Ward and Lott moving back and forth. Bordeaux, unable to move because of the seatbelt, heard Ward say to Lott, "Yo, his eyes [sic] still open." T.200, 221. Bordeaux admitted that at that point, he "get[s] confused" about the sequence of events because "[i]t happened so fast." T.222. Bordeaux testified that Lott told Ward, "Yo, take his money, leave his jewelry." T.223. According to Bordeaux, Ward then took money (approximately $400) out of his left pant's pocket and removed a ring from his finger. T.223-24.

Bordeaux testified that Ward began "grabbing [his] windpipe area a couple of times" for "a minute, maybe ten seconds or so." T.224. Lott then did the same thing and started to pistol-whip him, "ramming" him in the face and head with a black handgun. T.224-25. According to Bordeaux, Ward and Lott exited the vehicle after wiping down the car. T.227. As they did so, Bordeaux testified that he "thought" he heard Lott say, "Shoot him again" and then, "Yo, I loved that nigger." T.227. Bordeaux testified that he heard Ward say, "Fuck that nigger." T.228. Both Ward and Lott then left the scene. T.228.

Bordeaux testified that after struggling for more than a half an hour, he was able to free himself and start the car. T.229-21. He put it into reverse, and it first rolled backward, smashing into the back of the school building; he turned the wheel and the car rolled out into the street, where it came to a stop on its own. T.232-33. Bordeaux honked the horn continuously and yelled for help until someone came to his aid. T.234-35. That individual, Ronald Washington, drove Bordeaux to St. Mary's Hospital where he was treated for his injuries. T.235-36.

At the time of trial, Bordeaux was in state prison for a parole violation. He admitted to numerous previous convictions for criminal possession of controlled substances, several robberies, automobile theft, assaulting his girlfriend on multiple occasions, possession of cocaine, and attempted assault on a fellow inmate. T.207-11, T.298. Bordeaux previously had served three sentences of incarceration in state prison. T.281. Bordeaux admitted that when he first told the police about the incident, he made up a phony story that the shooting was over a football bet because he was "scared" and "nervous." T.264.

Following the close of the states's direct case, the prosecutor voluntarily agreed to dismiss the charges of fourth degree grand larceny and third degree criminal possession of a weapon. The trial court sua sponte dismissed one count of first degree assault (N.Y. Penal Law § 120.10(3)). The remaining counts of the indictment were submitted to the jury, which returned a verdict convicting Ward of one count of first degree robbery but acquitting him of attempted murder, assault, and a second count of robbery.

On May 11, 1999, the parties appeared for sentencing. Ward was adjudicated as a second violent felony offender. However, sentencing was adjourned because trial counsel indicated that he wished to file a motion to set aside the verdict pursuant to New York Criminal Procedure Law ("C.P.L.") § 330.30. That application was denied, and Ward was sentenced to a determinate term of imprisonment of twenty years.

Ward was represented by new counsel on direct appeal, and he also submitted a pro se supplemental brief asserting that trial counsel had been ineffective. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction on February 1, 2002. The New York Court of Appeals denied leave to appeal.

Ward subsequently filed a pro se motion to vacate the judgment pursuant to C.P.L. § 440.10 asserting that trial counsel had been ineffective in failing to call co-defendant Lott to testify at his trial that he had been acquitted of all of the charges against him and that he had not directed Ward to take any money from the victim. This application was denied by the trial court, and leave to appeal to the Appellate Division was denied.

Ward then filed a federal habeas petition in which he asserts the following grounds for relief: (1) the prosecutor violated his disclosure obligations under Brady v. Maryland by failing to disclose a ballistics report; (2) the trial court erred in denying the defense request for a continuance following disclosure of the ballistics report; and (3) the verdict was against the weight of the evidence. Ward also filed an amended petition asserting the claim raised in his C.P.L. § 440.10 motion asserting that trial counsel was ineffective in failing to call his co-defendant to testify. Respondent has conceded that the claim in the amended petition "relates back" to the original petition for purposes of Rule 15(c) of the Federal Rules of Civil Procedure. Therefore, the claim in the amended petition is timely under 28 U.S.C. § 2244(d).

Respondent concedes that Ward's ineffective assistance of trial counsel claim and claim regarding the denial of the continuance are exhausted. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). However, respondent argues that Ward's claim regarding the disclosure of the ballistics report and "weight of the evidence" claims were not "fairly presented" to the New York Court of Appeals because they were not mentioned in his letter seeking leave to appeal. The Court has reviewed the records from the appellate proceedings below and finds that the Brady claim regarding the ballistics report was adequately presented to all of the state courts and therefore is exhausted. The weight of the evidence claim was not mentioned in Ward's leave letter, as respondent points out. However, that claim is not cognizable on federal habeas review as a federal constitutional claim, as discussed below, and can be dismissed on that basis.

For the reasons set forth below, the petition and amended petition are dismissed.

III. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

IV. Analysis of Claims Raised in the Petition Claim 1

The prosecution violated Brady v. Maryland by failing to timely disclose a ballistics report and criminal investigative report indicating that the gun used in the instant offense had been used in a previous unsolved shooting.

As his first claim for relief, Ward asserts that the prosecutor's disclosure during trial of a ballistics report regarding the gun used in the incident violated his constitutional rights under Brady v. Maryland, 373 U .S. 83, 87 (1963). At the conclusion of the direct examination of Officer Stenczik, the police evidence technician who examined the car in which Bordeaux was shot, the prosecutor provided the defense with a ballistics report indicating that the same gun used in the incident against Bordeaux on January 24, 1998, had been used in an earlier, unsolved shooting on Bronson Avenue in the City of Rochester on January 18, 1998. T.166. During the lunch recess, the prosecutor also provided to defense counsel and the trial court a copy of the crime report corresponding to the January 18th shooting. T.246. After the recess, the trial court agreed that it would have been better for the prosecutor to ...


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