Petitioner Bruce Hogan ("Hogan" or "petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court of New York State on two counts of attempted robbery in the second degree. 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
Hogan was found guilty by a jury of two counts of attempted robbery in the second degree (N.Y. Penal Law §§ 110.00, 160.10(2)(a), (b)) based on his alleged involvement in an incident involving victim Henry Moore in the City of Buffalo on September 15, 2001. Hogan's first trial on these charges resulted in a hung jury. According to the prosecution's proof at both trials, Hogan approached Moore during broad daylight and, brandishing a gun, told Moore to "Give it up." Moore refused, and Hogan used the gun to attempt to force Moore to turn away from him. At this point, the two men scuffled over the gun; Moore grabbed the gun, causing it to fall out of Hogan's hand. Hogan struck Moore in the face but Moore was able pick up the gun from the ground and point it at Hogan, who fled. The police responded to the scene but were not able to make an arrest that day. Several days later, Moore saw Hogan in the same neighborhood where the attempted robbery had occurred and notified the police. Moore identified Hogan from a photographic array and Hogan was arrested.
The jury at Hogan's second trial returned a verdict convicting him as charged in the indictment. He was sentenced as a second violent felony offender to two concurrent determinate terms of imprisonment of five years; a five-year period of post-release supervision also was imposed.
On direct appeal, Hogan's conviction was unanimously affirmed by the Appellate Division. People v. Hogan, 15 A.D.3d 944 (App. Div. 4th Dept. 2005). Permission to appeal to the New York Court of Appeals was denied. People v. Hogan, 5 N.Y.3d 763 (N.Y. 2005). This federal habeas petition followed. For the reasons set forth below, the petition is denied.
To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") 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).
B. Merits of Claims Raised in the Petition
1. Petitioner's Re-Trial Did Not Violate the Double Jeopardy Clause
Hogan contends that his Fifth Amendment right to be free from Double Jeopardy was violated because he was "convicted on same evidence no new evidence [sic] presented at second trial." Pet. at 8 (Docket No. 1). On direct appeal, Hogan's appellate counsel contended that the prosecution at the first trial failed to disprove Hogan's alibi defense beyond a reasonable doubt and this alleged insufficiency of the evidence was why the trial resulted in a hung jury. However, appellate later stated in his brief under a different argument that the evidence at both trials was essentially the same. The Appellate Division rejected the claim, holding that "'[b]ecause the evidence at the first trial [was] legally sufficient, . . . the retrial did not violate the prohibition against double jeopardy[.]'" People v. Hogan, 15 A.D.3d at 944 (quoting People v. Smith, 8 A.D.2d 965, 966 and citing People v. Montgomery, 1 A.D.2d 984, 985, lv. denied, 1 N.Y.3d 631). Respondent argues that because trial counsel did not object to the mistrial being declared at the first trial or raise a Double Jeopardy claim before the trial court before the commencement of the second trial then, his claim has been waived. Respondent's Memorandum of Law ("Resp't Mem.") at 3 (citing Paul v. Henderson, 698 F.2d 589 (2d Cir.), cert. denied, 464 U.S. 835 (1983)).
The Court agrees with respondent that petitioner has waived his claim to double jeopardy. It is well-established that the "constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived." Paul v. Henderson, 698 F.2d 589, 592 (2d Cir.), cert. denied, 464 U.S. 835 (1983) (quoting United States v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977)). In Henderson, the defendant failed to present his double jeopardy claim to the trial court before the commencement of the second trial at the pretrial motion stage. The Second Circuit held that the defendant had waived his right and that he could not be "heard to complain now that his right has been abridged." Id. In this case, there is no indication in the record that Hogan asserted his double jeopardy claim before he was subjected to the second trial, and therefore it has been waived. Accord, e.g., Pawloski v. Kelly, 932 F. Supp. 475, 481 (W.D.N.Y. 1995) (adopting Report and Recommendation).
In the alternative, respondent argues that Hogan's claim is without merit as a matter of federal law. Resp't Mem. at 3 (citing Richardson v. United States, 468 U.S. 317 (1984) (holding that neither failure of jury to reach verdict nor trial court's declaration of a mistrial following a hung jury was an event that terminated original jeopardy which attached when jury was sworn, so that defendant had no valid double jeopardy claim that second trial was barred because of ...