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Moss v. Phillips

May 15, 2008


The opinion of the court was delivered by: Hon. Lawrence E. Kahn U.S. District Judge


I. Background*fn1

A. State Court Proceedings

The record reflects that on November 15, 1998, pro se Petitioner Kevin Moss a/k/a Darrel Moore ("Moss") entered the apartment of Georgette Delaney, a college student who at the time was living in a second floor apartment located in Troy, New York. On that day, she was studying for an exam in her living room when she walked down the hallway towards her kitchen in order to get something to drink. When she pushed against the door to the kitchen it did not open. Delaney then noticed a hand on the door, and soon thereafter saw a man, later identified as Moss, standing in her kitchen.*fn2 When she asked him what he was doing there, he responded that he was a carpet cleaner, and that he must have been in the wrong apartment because he "was looking for the Mittnights, those old people downstairs."*fn3 Delaney directed him to leave her apartment, after which he left the residence and began walking downstairs. Delaney then noticed that Moss had begun talking to Linda Mittnight, a resident of the apartment on the first floor of Delaney's building. Since it appeared to her that her neighbor did not know Moss, Delaney directed him to leave the building.

Linda Mittnight testified that on November 15, 1998, she was listening to messages on her telephone's answering machine when the back door to her apartment was opened and Moss walked in. He then informed her that he was there "to clean [the] carpets," despite the fact that her residence had hardwood floors, no carpeting, and merely "some area rugs." Additionally, no one in the Mittnight home had contacted anyone to clean the rugs in their apartment.

After Moss left, Mittnight called the police and officers from the Troy City Police Department arrived at the scene and obtained a description of Moss. Officers Christopher Kehn and John Coons of the police department eventually came upon Moss, who matched the description that had been provided to them by the two women, a few blocks from the Delaney residence. At that time, Officer Kehn observed a kitchen knife sticking out of Moss's back pocket. When the officer removed the knife, Moss became agitated and started shoving and pushing the officer, who then placed him under arrest for harassment. After he was subdued, both Delaney and Mittnight were transported to the location where Moss was being detained. Mittnight testified that when she was asked to identify Moss, she asked the officers to ask Moss to say, "I came to clean your carpets." When he did, Mittnight definitively identified Moss as the man who had been in her apartment. Delaney also identified Petitioner at that time as the man who had also been in her apartment. Officer Kehn then showed her the knife that he had taken from Moss, and Delaney informed the officer that the knife was from her kitchen. Upon returning to her home, Delaney found the knife she believed had been recovered from Moss. She then called both the police and the District Attorney's office and informed them that she had found the knife she believed was missing from her apartment.

The state court records also reveal that as he was being taken to the police station, Moss "blurted out" that he "didn't burglarize that girl, [he] just went to visit her." While at that station, after having been advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436 (1966), he stated that "the girl upstairs goes to college and the lady downstairs is nuttier than a fruitcake."

As a result of the foregoing, Moss was indicted by a Rensselaer County grand jury and charged in Indictment No. 98-1192 with second degree burglary, in violation of N.Y. Penal L. § 140.25(2). Beginning on August 10, 1999, Moss was tried before a jury on that charge in Rensselaer County Court with County Court Judge Patrick J. McGrath presiding. At the conclusion of that trial, the jury convicted Moss of second degree burglary.

On October 14, 1999, Moss appeared before Judge McGrath for sentencing. At that proceeding, the County Court sentenced Moss, as a persistent felony offender, to an indeterminate term of fifteen years to life imprisonment. See Transcript of Sentencing of Kevin Moss (10/14/99) ("Sentencing Tr.") at 11.

In the direct appeal of his conviction, Moss argued, through counsel, that: 1) the evidence adduced at trial was legally insufficient to sustain the conviction and the jury's verdict was against the weight of the evidence; and 2) the sentence imposed was excessive. In addition to those arguments advanced by counsel, Petitioner filed a pro se supplemental brief in which he raised the following claims: 1) the indictment should have been dismissed because his defense attorney at the time of the grand jury presentation subsequently joined the Rensselaer County District Attorney's office; 2) the grand jury proceeding was defective; 3) the prosecutor failed to comply with New York's "Rosario rule," People v. Rosario, 9 N.Y.2d 286 (1961); 4) the trial court erroneously failed to suppress the statements he made to the police; 5) Judge McGrath wrongfully allowed "false accusations of uncharged crimes" to be admitted into evidence at trial; 6) the prosecutor failed to comply with New York's criminal procedure law ("CPL") regarding voice identification testimony; 7) the County Court's instructions to the jury were deficient and/or misleading; and 8) the prosecutor's conduct deprived Moss of his right to a fair trial. See Supplemental Pro Se Appellate Brief (2/8/01) ("Pro Se Appellate Brief").

In its decision dated July 19, 2001, the New York State Supreme Court Appellate Division, Third Department unanimously affirmed Moss's conviction. See People v. Moore, 285 A.D.2d 827 (3rd Dept. 2001).*fn4 Moss sought leave to appeal that decision from the New York Court of Appeals, however in its order dated December 28, 2001, the Court of Appeals denied Moss leave to appeal. People v. Moore, 97 N.Y.2d 685 (2001).

On April 14, 2003, Moss filed an application for a writ of error coram nobis with the Third Department in which he argued that his appellate counsel rendered ineffective assistance. That application was apparently opposed by the District Attorney,*fn5 and on July 1, 2003, the Appellate Division denied Petitioner's coram nobis application. On July 14, 2003, Petitioner sought leave to appeal that decision to the New York Court of Appeals, which application was denied on October 30, 2003. People v. Moore, 100 N.Y.2d 644 (2003).

On or about November 12, 2003, Petitioner filed a pro se Motion to vacate his sentence pursuant to CPL § 440.20. In that application, Moss argued that his sentence as a persistent felony offender violated the rule announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). See Affidavit in Support of CPL § 440.20 Motion. The District Attorney opposed that application, and on July 6, 2005, Judge McGrath issued a written decision denying that application. See People v. Moss, No. 98-1192 (Renn. Cty. Ct. July 6, 2005) at 2. Moss's application for leave to appeal that decision to the Third Department was denied on September 20, 2005.

B. This Action

Petitioner commenced this proceeding, pro se, on December 19, 2003. Dkt. No. 1. Moss thereafter filed an application to amend his Petition, Dkt. No. 26, which application was granted by Magistrate Judge Gustave J. DiBianco. Dkt. No. 28. Moss then filed an amended Petition in which he asserts numerous grounds for relief. Dkt. No. 30 ("Am. Pet."). In that pleading, he contends that: 1) the jury's verdict was both against the weight of the evidence and not supported by legally sufficient evidence; 2) his right to conflict free representation was violated because his defense counsel at the time of the grand jury proceedings later accepted employment at the District Attorney's office; 3) the grand jury proceedings were defective, and the indictment should have been dismissed, because of false and misleading information presented to that body; 4) the prosecutor violated New York's Rosario rule when he failed to provide the defense with certain information; 5) Moss's statements were improperly admitted into evidence; 6) the County Court improperly allowed "false accusations of uncharged crimes" to be admitted into evidence at trial; 7) the prosecution "failed in their statutory obligation," under the CPL to give the defense notice of its intent to use voice identification evidence at trial; 8) the trial court's refusal to instruct the jury that no burglary took place if Moss did not have the intent to commit a crime at the time of entry constituted error; 9) the court's instructions to the jury both during trial and after summations were flawed; 10) the prosecutor's "inflammatory remarks" deprived Petitioner of a fair trial; 11) his sentencing as a persistent felony offender violated the rule announced in Apprendi; and 12) Petitioner was deprived of the effective assistance of appellate counsel. See Am. Pet.

Magistrate Judge DiBianco thereafter afforded the Respondent until September 15, 2006 in which to file a response to Moss's amended pleading (Dkt. No. 32), and on September 13, 2006, the Office of the Attorney General for the State of New York, acting on Respondent's behalf, filed an Answer (Dkt. No. 36), together with a memorandum of law in opposition to Moss's amended Petition (Dkt. No. 37). Petitioner thereafter submitted a traverse in further support of his amended habeas application. See Dkt. No. 38. This matter is currently before this Court for disposition.*fn6

II. Discussion

A. Standard of Review Applicable to Moss's Claim

The April 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) that: a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) 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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Rodriguez, 439 F.3d at 73 (quoting 28 U.S.C. § 2254(d)); seealsoDeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). In providing guidance concerning application of this test, the Second Circuit has noted that:

[A] state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362,] at 405-06 [2000]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001).... [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413.

Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

Significantly, a federal court engaged in habeas review is not charged with determining whether the state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams, 529 U.S. at 409; see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). "Objectively unreasonable" in this context means "'some increment of incorrectness beyond error is required'" in order to grant a federal habeas application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Francis S., 221 F.3d at 111).

B. Review of Moss's Claims

1. Evidence of Guilt

Moss initially argues that the evidence adduced at trial was legally insufficient to sustain his conviction, and that the jury's verdict was against the weight of the evidence. Am. Pet., Ground One.

Addressing first Moss's claim regarding the weight of the evidence, the Court notes that weight of the evidence review is a product of New York state statute and therefore merely a state law issue. See CPL § 470.15; Graham v. Ricks, No. 9:02-CV-0303, 2004 WL 768579, at *14 (N.D.N.Y. Apr. 7, 2004) (McCurn, S.J.) (citations omitted); Cardena v. Giambruno, No. 03CIV 3313, 2004 WL 239722, at *4 (S.D.N.Y. Feb. 10, 2004) (citations omitted).*fn7 As such, no cognizable federal issue is presented by a habeas claim challenging the weight of the evidence adduced at trial. Graham, 2004 WL 768579, at *14; Cardena, 2004 WL 239722, at *4; Glisson v. Mantello, 287 F.Supp.2d 414, 441 (S.D.N.Y. 2003) (citing Givens v. Burge, No. 02 Civ. 0842, 2003 WL 1563775, at *10 (S.D.N.Y. Mar. 4, 2003) (collecting cases)); McBride v. Senkowski, No. 98 CIV. 8663, 2002 WL 523275, at *4 n.2 (S.D.N.Y. Apr. 8, 2002) (citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)).

Turning to Petitioner's challenge to the sufficiency of the evidence, the Court notes that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See Fiore v. White, 531 U.S. 225, 228-29 (2001); Jackson v. Virginia, 443 U.S. 307, 315 (1979); In re Winship, 397 U.S. 358, 364 (1970). An inquiry into whether there was sufficient evidence adduced at trial to support a conviction "does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993). A habeas petitioner claiming that there was insufficient evidence supporting the conviction is entitled to relief under 28 U.S.C. § 2254 only if it is found "that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; Schlup v. Delo, 513 U.S. 298, 323 n.38 (1995). The reviewing court is required to consider the evidence in the light most favorable to the prosecution, and draw all inferences in its favor. Jackson, 443 U.S. at 319. Thus, federal courts are to determine "whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt." United States v. Powell, 469 U.S. 57, 67 (1984) (citing Jackson) (other citations omitted).

To convict Moss of the second degree burglary charge, the prosecutor was required to prove that he knowingly and unlawfully entered Delaney's residence with the intent to commit a crime therein. See e.g., Trial Tr. (8/12/99)*fn8 at 116, 118.

The evidence at trial established that Moss entered Delaney's residence through its back door without knocking, walked through a portion of her residence without announcing his presence, impeded her entrance into the kitchen by blocking a door, and, when discovered, informed her that he actually intended to enter the first floor apartment of the Mittnights so that he could clean their carpets. However, neither Delaney nor the Mittnights had seen Moss before the day he entered their apartments, he was not called by either party to clean carpets or rugs, and he did not have any carpet-cleaning materials with him at the time. Those facts, particularly when viewed in combination with Moss's possession of a knife and his spontaneous statement that he "didn't burglarize that lady, [he] just went to visit," provide ample support for the Appellate Division's conclusion that Moss's unlawful entry and his "implausible and contradictory explanations for his unauthorized presence" established that there was legally sufficient evidence to demonstrate that he had unlawfully entered Delaney's apartment with the intent to commit a crime therein. See Moore, 285 A.D.2d at 828-29.

Since there was more than sufficient evidence to demonstrate Moss's guilt of the burglary charge, the Court finds that Petitioner has not established that the Third Department's rejection of that appellate claim is either contrary to, or represents an unreasonable application of, Jackson and its progeny. His initial ground for relief is therefore denied.

2. Conflict of Interest

In his second ground, Moss asserts that his right to a fair trial was violated when the attorney who initially represented him in the criminal matter subsequently accepted an employment offer at the Rensselear County District Attorney's Office ("District Attorney"). See Am. Pet., Ground Two. Petitioner asserts that "former defense counsel gain[ed] privileged and confidential information concerning this case," and that the trial court's failure to ascertain "the ...

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