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Nevins v. Giambruno

January 29, 2009

NATHAN NEVINS, PETITIONER,
v.
MICHAEL GIAMBRUNO, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Nathan Nevins ("Nevins" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his 2004 state-court conviction for drug-related offenses was unconstitutionally obtained. (Docket No. 1). Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to disposition of this matter by a magistrate judge.

II. Factual Background and Procedural History

The conviction here at issue was entered on January 28, 2004, in Erie County Court (DiTullio, J.). By Erie County Indictment No. 2002-1314-001, Nevins was charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1), (12), Resisting Arrest (N.Y. Penal Law § 205.30), Criminal Mischief in the Fourth Degree (N.Y. Penal Law § 145.00(3)), Vehicle and Traffic Law § 1129(c)(3) and Vehicle and Traffic Law § 1172(a).

Specifically, the indictment alleged that Nevins "on or about the 22nd day of May, 2002 . . . knowingly and unlawfully possessed cocaine . . . with an aggregate weight of one-half (1/2 ) ounce or more." Buffalo Police Officers Jerry Guilian and José Colon were on patrol on the afternoon of May 22, 2002, when their attention was drawn to a grey, four-door Pontiac on Howard and Emslie Streets. Nevins was in the driver's seat. According to the officers, he was not wearing a seat belt. When Nevins pulled in front of the police car on Emslie and turned left on Oneida, Guilian activated his siren and attempted to pull his vehicle over. At that point, petitioner pulled over momentarily. The officers were half-way to the Pontiac when Nevins "sped away." T.306.*fn1

As the officers followed Nevins' car down Oneida Street, Guilian saw Nevins throw a "plastic bag with a whitish yellow clay like substance" out of the driver's side window of his car.

T.306-07. The bag "hit the asphalt, bounced on to the grass and landed next to a utility pole."

T.309. The Pontiac driven by Nevins was about 30 feet in front of Guilian at the time he observed the bag fly out the window, and nothing was obstructing his view. T.308. Guilian said that all the way down Oneida Street, petitioner continued to throw drugs out the window. T.309. When he got to Oneida and Smith, petitioner ran stop sign, turning left onto Smith and left again onto Howard. T.310.

During the chase, Guilian kept petitioner's car in sight. T.311. At the intersection of Broadway and Herman, other police cars joined the pursuit. Officer John Simonian positioned his car to the left of petitioner's car while two other police cars placed themselves in front of and behind the Pontiac. T.475. One car was able to block Nevins' path. T.313. Nevins attempted a U-turn, struck a police car, and skidded into Simonian's parked car, which sustained damage to the right front bumper cover, the right marker light, and the front fender, in the amount of $570.

T.500, 502.

As Guilian approached Nevins' car he noted that Nevins was the sole occupant. T.318, 364. After Nevins was arrested, a search of the vehicle yielded $675 in cash. Guilian then returned to Oneida Street where he had seen petitioner throwing bags out the window. Near the utility pole, Guilian found a sandwich baggie containing five, individually packaged "eight balls" of cocaine. T.330.

An off-duty New York State Trooper, Clyde Bohanna, happened to be in the driveway of his home on 64 Oneida Street on May 22nd and observed the police chasing Nevins. As Bohanna was taking packages out his car, his attention was drawn to Oneida and Emslie, where a police car with its overhead lights on had pulled over a vehicle. T.371-72. Bohanna then heard the screech of tires as both cars came down Oneida towards him. T.372. Bohanna saw a hand reach out of the driver's side window of the car under pursuit. An item was thrown from the car; it bounced on the ground in front of his house and landed by the curb in front of his neighbor's house at 70 Oneida. T.373, 375. Bohanna saw both cars then go through the stop sign at Smith and Oneida. T.374, 377.

Bohanna described the item discarded by the driver of the Pontiac as a "yellow/brown colored solid substance," wrapped in plastic Saran wrap. T.373, 375. One of the packages had opened upon striking the ground and had broken into several smaller pieces. The remaining two packages were intact. T.373. Buffalo Police Officers David Cieply and Robert Sheridan recovered several "small white rocks" near the curb. T.402-03, 417. Forensic chemical analysis revealed that the substance was cocaine base and that the combined weight of the three packages was 26.498 grams (0.934 ounces). T.524-26.

The defense presented three witnesses. JoAnne Lott was on her porch at 238 Emslie Street on May 22nd when Nevins drove past her house, waving as he went by. T.553, 555, 557. Belinda Jones, petitioner's cousin, lived next door to Lott and was sitting with Lott on the porch.

T.561, 555. Lott testified that she "thought" she saw someone in the rear driver's side seat of Nevins' car. T.557, 580. Seconds later, Lott said, a police car drove by. It did not have its siren or lights activated, and it did not appear to be chasing Nevins' car. T.557. Lott did not observe Nevins throw anything from his car. T.579.

Defense witness Annie Smith was walking down Smith Street on May 22nd when she heard the "screech" of a car coming down Oneida. T.588. Smith said that the car was not going fast, however. She did see it go through the stop sign at Oneida and Smith and turn left onto Smith. Smith saw a man jump out of the car and run through a nearby field. T.588. Smith did not observe any police cars in the area where she saw the man jump out of the car. T.590.

Angela Smith, a friend of petitioner's since childhood, was on her porch at 11 Oneida when petitioner drove by on May 22nd. Angela said that Nevins had a passenger in the backseat of his car. Angela recognized the passenger but refused to reveal his name. T.633. Angela did not see anything being thrown from Nevins' car. Nor did she see Nevins' car make any stops between Howard and Oneida. T.663, 674. Although she observed a police car about half a block behind Nevins' car, it did not have its siren or lights on. T.659-60.

Stanley Roberts, petitioner's mechanic, was a "good friend" of petitioner's. He had last serviced Nevins' car in February or March 2002, at which time he discovered that the door lock on the front passenger-side door was ...


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