The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
The Clerk of the Court has sent pro se petitioner John Lockhart's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which he filed on September 15, 2005, to the Court for its review. See Dkt. No. 1.
On February 5, 2001, Petitioner was convicted of second degree burglary (N.Y. PENAL LAW §140.25(2)). Dkt. No. 1, Pet. at 1; Dkt. No. 7, Respondent's Memorandum of Law ("Resp't Mem."), at 1; Transcript of Trial of John Lockhart, ("Trial Tr."), 2/5/01, at 199-201. The New York Supreme Court, Appellate Division, Third Department, affirmed the conviction on November 18, 2004. People v. Lockhart, 784 N.Y.S.2d 686 (N.Y. App. Div. 2004). The New York Court of Appeals denied leave to appeal on February 25, 2005. People v. Lockhart, 828 N.E.2d 91 (N.Y. 2005). The Court of Appeals also denied Petitioner's motion for reconsideration on June 29, 2005. People v. Lockhart, 834 N.E.2d 1269 (N.Y. 2005).
Petitioner raises the following grounds for habeas relief: (1) the show-up identification procedure was unduly suggestive; (2) the trial court improperly admitted evidence of a different burglary in violation of his right to due process; and (3) the evidence was insufficient to prove the element of intent required to sustain his conviction for second degree burglary. Dkt. No. 1 at 6-9; Dkt. No. 10, Traverse, Reply Memorandum ("Reply Mem."), at 1-8. For the reasons that follow, the petition is denied.
According to the testimony adduced at trial, on December 10, 1999, Nick Sabatino lived on the first floor of a two-family home located at 56 Forest Avenue in Albany, New York. Trial Tr., at 35. At approximately 1:30 p.m., Sabatino was in the kitchen drinking coffee and heard the doorbell ring two times. Id. at 36. He went toward the front door and saw Petitioner outside. He did not answer the door, believing Petitioner was soliciting donations. Id. As Sabatino walked back toward the kitchen, he heard a noise. He saw that the glass near the doorknob on the locked front entry door was broken, and Petitioner was standing inside his house. Id. at 37, 44-45, 79. Sabatino confronted Petitioner, and Petitioner told him a kid broke the window and ran up the street. Id. at 46. Sabatino told Petitioner to "[g]et out of here," and Petitioner left. Id.
Sabatino got into his truck and drove up the street to find Petitioner. He encountered Officer Peter Isaacson and told him what had happened.
Id. at 47-48, 77-79.*fn1 Sabatino described Petitioner as a black male, wearing dark clothing and a hat, and carrying a brown umbrella. Suppression Hearing Transcript ("Hearing Tr."), 6/12/00,at 8, 37; Trial Tr. at 95. Officer Isaacson radioed the description to other police units. Trial Tr. at 80.
Detective Timothy Leonard met with Officer Isaacson and confirmed the description. He then drove through the neighborhood looking for the suspect. Id. at 93-94. Detective Leonard saw Petitioner, who matched the description, at the corner of Grove and New Scotland Avenues. Id. at 95-96. He exited his car and approached Petitioner. Petitioner identified himself and stated that he lived with his girlfriend on Orange Street, that they had an argument, and that he had taken his things and gone for a walk. Id. at 96-98. Orange Street was on the "opposite side of the city." Id. at 97. Petitioner also stated that he was going to St. Peter's Hospital. Petitioner was traveling eastbound, but the hospital was westbound. Id. at 98. In addition to the umbrella, Petitioner was carrying a portable radio ("boombox") and a knapsack containing compact discs ("CDs"), earrings and a VCR with the cord still attached to it. Id. Officer Isaacson drove Sabatino to the intersection of Grove and New Scotland Avenues, and Sabatino identified Petitioner as the man inside his home. Hearing Tr. at 11-12; Trial Tr. at51, 61-62, 67, 80-82.
Karen DeWitt lived at 12 Glendale Avenue in Albany, New York. Trial Tr. at 70. She arrived home from work at approximately 6:00 p.m. and discovered her front door was open and a window had been smashed. Id. at 70 (the "Glendale Avenue burglary"). A VCR, Sony boom box, CDs and earrings were missing. Id. at 71. She identified the items Petitioner was carrying in the knapsack when Detective Leonard stopped him as those taken from her home. Id. at 71, 108.
B. State Court Proceedings
An Indictment was returned on August 8, 2000 charging Lockhart with one count of second degree burglary relating to the Sabatino home (N.Y. PENAL LAW § 140.25(2)). Lockhart was also charged with criminal possession of stolen property in connection with the items taken during the Glendale Avenue burglary, and pleaded guilty to that charge before his trial for the Sabatino burglary began. Transcript of Pretrial Proceedings ("Pretrial Tr."), 9/14/00, at 22. Lockhart was subsequently indicted for the Glendale Avenue burglary, but that indictment was dismissed after the Sabatino burglary trial. Id.; Dkt. No. 10, Reply Mem. at 8.
The Honorable Thomas A. Breslin, Albany County Court Judge, presided over Petitioner's trial proceedings. Lockhart was represented by Thomas L. Dulin, Esquire. A combined Wade*fn2 /Huntley*fn3 hearing was held on June 12, 2000. At the close of the hearing, the trial court ruled from the bench that the manner in which the show-up identification procedure was conducted was not unduly suggestive. Hearing Tr. at 57-58. It further found that the police had enough information to stop Petitioner and ask him to remain present until a witness was brought to the location, and that the show-up was conducted within ten minutes and within blocks of the reported burglary. Id. The court also denied Petitioner's motion to suppress his statements to police, ruling that the questions asked of Petitioner were investigatory in nature and his statements were not the product of custodial interrogation. Since Petitioner was not subject to custodial interrogation, the court found that there was no violation of Petitioner's Miranda*fn4 rights. Id. at 58-59.
A jury trial began and concluded on February 5, 2001. The jury convicted Lockhart. Trial Tr. at 199-201. On March 30, 2001, Lockhart appeared before Judge Breslin for sentencing. The prosecutor moved to have Petitioner declared a persistent felony offender. Sentencing Transcript ("Sentencing Tr."), March 30, 2001, at 2-33. The trial court denied the motion after a hearing. Id. at 37-39. Defense counsel moved to set aside the verdict, and the court denied the motion. Petitioner was sentenced, as a second felony offender, to a determinate term of fifteen years in prison followed by five years postrelease supervision. Id. at 48.
On September 15, 2005, Petitioner filed a pro se petition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. The respondent was directed to file his response to that submission in an Order dated September 29, 2005. See Dkt. No. 3. On February 6, 2006, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response and memorandum of law in opposition to the petition. See Dkt. Nos. 7, 8. On March 6, 2006, Petitioner filed a Traverse. Dkt. No. 10.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state courts adjudicated the ...