The opinion of the court was delivered by: David G. Trager United States District Judge
Eugene Holley has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied in all respects.
(1) Facts Leading to Holley's Arrest and Conviction
The crime for which Holley was convicted involved the shooting and killing of an individual named Kevin Samms on June 7, 1995, in the Red Hook neighborhood of Brooklyn, NY. Holley denies he was the shooter, but according to the State of New York, Holley rode his bicycle into the courtyard of a housing project where Samms and several others were located, said to Samms, "You're down with Tarmel," and then shot Samms twice from at least two feet away. Shortly after the first two shots, while a bystander attempted to remove Samms from the area, Holley got off his bicycle and shot Samms again. Samms died from his gunshot injuries.
Later that night, according to one witness, Holley admitted to being the shooter and said that he himself was shot by Samms's brother during the attack. Holley was arrested and placed in a lineup. Two witnesses identified him as the shooter.
The state charged Holley with two counts of murder in the second degree -- one count alleging that Holley acted with intent; the other, depraved indifference -- and one count each of attempted murder in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree.
In September 1996, a jury convicted Holley of murder in the second degree on the depraved indifference count, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. The jury acquitted Holley of the intentional murder count.
Petitioner was sentenced on October 9, 1996, to concurrent, indeterminate prison terms of twenty-five years to life for murder, three to six years for weapon possession, two to four years for reckless endangerment, and one year for a violation of probation.
Holley, by counsel, appealed his conviction to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"), arguing that the state had failed to prove his guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence. Specifically, Holley claimed that the identification evidence was insufficient because two eyewitnesses did not identify him and those witnesses who did were not credible.
On August 20, 2001, the Appellate Division affirmed Holley's conviction. People v. Holley, 286 A.D.2d 445, 729 N.Y.S.2d 898 (2d Dep't 2001). The Appellate Division held that Holley had failed to preserve his legal insufficiency claim for review and denied his appeal on the merits. Leave to appeal to the New York Court of Appeals was denied on December 28, 2001. People v. Holley, 97 N.Y.2d 683, 764 N.E.2d 402, 738 N.Y.S.2d 298 (2001).
Holley filed his first habeas petition on April 14, 2003, raising three claims: (1) the state failed to present exculpatory evidence to the grand jury; (2) his right to be present was violated at trial due to his absence from a hearing regarding the intimidation of a witness; and (3) the state presented inadmissible ballistics evidence. Holley had not raised any of these claims on direct appeal. The state moved to dismiss the petition on the grounds that it was untimely filed because it was received by the court more than one year after Holley's conviction became final.
While the state's motion to dismiss was pending, Holley moved to hold his habeas petition in abeyance so he could exhaust his state remedies. On July 9, 2003, Holley's case was closed with leave to reopen after Holley exhausted his state court remedies.
On April 19, 2003, petitioner moved in state court to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, raising the three grounds he raised in his original habeas petition and the additional ground that he was denied counsel during his lineup. On July 13, 2003, the Supreme Court, Kings County, denied his motion. First, the court held that his claims regarding (1) his right to be present during a hearing on witness intimidation, (2) the improper admission of ballistics evidence, and (3) his right to counsel at his lineup were procedurally barred pursuant to New York Criminal Procedure Law § 440.10(2)(c) on the grounds that he could have but did not raise these claims on direct appeal. In addition, with respect to Holley's right to counsel claim, the court noted that the lineup occurred prior to a formal charge and there is no right under federal or New York law to counsel at a pre-indictment lineup. The court also held that petitioner had provided insufficient sworn allegations of fact regarding the claim that his attorney failed to present exculpatory testimony in the grand jury and that the claim was meritless. Leave to appeal from this decision was denied on January 9, 2004.
Soon thereafter, on February 9, 2004, Holley's habeas petition was reopened upon his request. On November 15, 2004, the state's motion to dismiss Holley's petition on the grounds that it was time-barred was denied without prejudice, and the state was directed to address the merits of Holley's claims.
On December 13, 2004, Holley moved once again to hold his petition in abeyance in order to exhaust additional state remedies. His request was granted on January 6, 2005.
On May 23, 2006, Holley moved in state court for a writ of error coram nobis, claiming that his appellate counsel was ineffective for: (1) failing to challenge the strength of the evidence of depraved indifference murder versus intentional murder; and (2) failing to argue that Holley's trial counsel was ineffective for not preserving that issue for appellate review. Holley also claimed that the state failed to prove his guilt beyond a reasonable doubt. The Appellate Division denied Holley's application on March 7, 2006, holding that he had failed to demonstrate that he had received ineffective assistance of appellate counsel. People v. Holley, 27 A.D.3d 484, 809 N.Y.S.2d 915 (2d Dep't 2006). Leave to appeal this decision was denied on May 31, 2006. People v. Holley, 6 N.Y.3d 895, 850 N.E.2d 677, 817 N.Y.S.2d 630 (2006).
On June 29, 2005, Holley filed a second habeas petition, raising the following claims: (1) the evidence was legally insufficient to establish that he acted with depraved indifference; (2) appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim on the ground that trial counsel had failed to preserve the legal sufficiency claim; (3) the state failed to present exculpatory evidence to the grand jury; (4) his right to be present was violated by his absence from a hearing regarding witness intimidation; ...