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Alexander v. Ercole

February 11, 2008

COREY ALEXANDER, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Corey Alexander, a prisoner incarcerated in the Green Haven Correctional Facility pursuant to a judgment of the New York State Supreme Court, Kings County, has filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. Alexander challenges his conviction following a jury trial of burglary and some lesser convictions. He is currently serving 16 years to life. By memorandum and order dated March 27, 2007, I denied Alexander's first habeas petition. Alexander now submits an amended petition seeking habeas relief on the ground that he received ineffective assistance of appellate counsel. For the reasons set forth below, the amended petition is denied.

BACKGROUND

A. Offense Conduct

The following is an overview of the facts leading up to Alexander's arrest and conviction. A more detailed recitation of the facts is set forth in my memorandum and order dated March 27, 2007, familiarity with which is assumed.

The government's evidence at trial established that from July 21, 2001 through June 2002, Alexander's encounters with Deirdre Dews, his on-again, off-again girlfriend and mother of his child, often resulted in violence. Dews testified that on July 21, 2001, Alexander entered Dews's grandmother's apartment. He pulled a gun from his waistband and tried to insert the barrel in Dews's mouth. When Dews's grandmother attempted to call the police, Alexander threatened to kill everyone in the room. The jury convicted Alexander of second degree trespass for this incident.

In November 2001, Dews and Alexander arranged to meet outside her apartment building, but Dews refused to come out. Incensed, Alexander threatened to kill her. When Dews left her apartment, Alexander startled her by jumping out from a stairwell in the apartment building. He attacked her, striking her head repeatedly until she fell to the floor. He ripped off her blouse, bit her fingers, dragged her by her skirt into her apartment, and attempted to throw the television off her terrace. For this encounter, the jury convicted him of second degree burglary.

Dews thereafter obtained an order of protection preventing Alexander from contacting her. The two, however, remained in contact, and encountered each other several more times, for which the jury convicted Alexander of two counts of second degree criminal contempt. In June 2002, Dews and Alexander inadvertently ran into each other at Dews's friend's apartment building where (coincidentally) Alexander was living at the time. In front of Dews's two young children, Alexander and Dews began to argue, resulting in Alexander pulling Dews's hair, throwing her on a car, choking her, kicking her in the stomach, and dragging her by her hair into the building. The children implored him to stop, but to no avail. Alexander threw Dews to the floor, kicked her in the stomach and threatened to cut her face with a razor. The jury convicted Alexander of endangering the welfare of a child.

The jury acquitted Alexander of sixteen other counts relating to the alleged incidents. He was adjudicated a persistent violent felony offender under New York Penal Law § 70.08 and was sentenced to concurrent prison terms of 16 years to life for the burglary count and one year for the remaining counts.

B. The Procedural History

1. The Direct Appeal

On direct appeal to the Appellate Division, Alexander argued (1) that the trial court had denied him his right to present a defense and his right to a fair trial by precluding the testimony of Lizette Zayes; (2) that the prosecution failed to prove second-degree burglary beyond a reasonable doubt and that the verdict was against the weight of the evidence; and (3) that his adjudication and sentence pursuant to the persistent violent felony offender statute violated the constitutional principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Appellate Division affirmed the judgment of conviction, finding that the evidence was sufficient to establish Alexander's guilt beyond a reasonable doubt, that the proffered testimony of Zayes would have been cumulative, and that the Apprendi claim was unpreserved for appellate review and was in any event without merit. People v. Alexander, 792 N.Y.S.2d 109 (2d Dep't 2005). Leave to appeal to the New York Court of Appeals was denied. People v. Alexander, 5 N.Y.3d 758 (2005).

2. The State Post-Conviction Motions

On June 21, 2006, Alexander petitioned the Appellate Division for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. He argued that appellate counsel rendered ineffective assistance by failing to raise the following claims: (1) the trial court improperly precluded a police investigative report as a business record; (2) the trial court improperly admitted the testimony of Dews regarding one of the incidents when the police investigative file relating to this incident had been lost or destroyed; and (3) the sentencing court improperly sentenced Alexander as a persistent violent felony offender because he had not been informed when he previously pleaded guilty to a violent felony in 1989 that he could face an enhanced sentence in the future. By order dated November 21, 2006, ...


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