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Arrington v. Bradt

April 2, 2009

JERMAL ARRINGTON, PETITIONER,
v.
MARK L. BRADT, RESPONDENT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior U.S. District Judge

DECISION AND ORDER

I. Introduction

Presently before the Court is Petitioner Jermal Arrington's amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 5. Petitioner challenges his October 21, 2003 conviction following a jury trial of first degree criminal sale of a controlled substance (N.Y. PENAL LAW § 220.43(1)) and two counts of second degree criminally using drug paraphernalia, third degree criminal possession of a controlled substance (N.Y. PENAL LAW §§220.50(2) and (3)). Petitioner was sentenced to serve an aggregate indeterminate term of twenty years to life. See Dkt. No. 5 at 1. The New York Supreme Court, Appellate Division, Third Department, affirmed Petitioner's judgment of conviction on July 6, 2006, and the New York State Court of Appeals denied him leave to appeal on October 19, 2006. See People v. Arrington, 31 A.D.3d 801 (3d Dep't. 2006), lv. denied 7 N.Y.3d 865 (2006). Petitioner was re-sentenced by the Albany County Supreme Court on January 29, 2008, pursuant to New York's Rockefeller Drug Law Reform Act, to a determinate term of twelve years in prison followed by five years of post-release supervision for first degree criminal sale of a controlled substance, and a concurrent term of one year on each of his convictions for criminally using drug paraphernalia. See Dkt. No. 16, Ex. A, B.*fn1

Petitioner raises the following grounds for habeas relief: (1) the evidence was legally insufficient to support his conviction for criminally using drug paraphernalia; (2) the evidence was insufficient to support his conviction for criminal sale of a controlled substance because there was no corroboration of an accomplice's testimony; and (3) his right to a speedy trial was violated. See Dkt. No. 5 at 6-9. For the reasons that follow, the petition is DENIED.

II. Background

A. Facts

The following factual summary is derived from the state court records. Beginning in 1999, the Capital District Drug Task Force ("Task Force") investigated several cocaine operations in an effort to dismantle them. One of the targets of the investigation was Curtis Raleigh, whom the Task Force believed to be a low-level drug dealer. Transcript of Trial of Jermal Arrington ("Trial Tr."), at 6-9.*fn2

On June 5, 2001, the Task Force arranged a controlled buy of crack cocaine between Raleigh and a confidential informant, Jerome Walker, in an effort to discover the identity of Raleigh's supplier. Trial Tr. at 10-12, 46. Walker had purchased smaller amounts of cocaine from Raleigh in the past. Id. at 88-89, 144-46. At the direction of the Task Force, Walker contacted Raleigh by phone and eventually arranged to buy 100 grams of crack cocaine from him for $3,500.00. Id. at 10-11, 13-14, 78-80, 133.

When Raleigh received Walker's call, he was with Petitioner in downtown Albany. Trial Tr. at 131-32. Raleigh did not have 100 grams of crack cocaine, but Petitioner told Raleigh he had that amount, and told Raleigh to meet him at North Manning Boulevard near Lark Street in Albany. Id. at Id. at 76-77, 132-34. Raleigh called Walker, and told him to meet him at that location. Id. at 133.

Walker was searched and then outfitted by Senior Investigator Lennie Daniels of the New York State Police and Special Agent Terrence Dunlap of the Drug Enforcement Agency ("DEA") with two separate listening and recording devices to transmit and record the conversation between Raleigh and Walker.*fn3 Trial Tr. at 19-20, 81-83, 256-58. The serial numbers of the buy money were also recorded. Id. at 11, 232-35. Members of the Task Force dropped Walker off a few blocks from the arranged meeting location and watched as he walked to a dumpster located across the street from 620 Manning Boulevard and waited. Id. at 20-23, 81-82. Detective Richard Gould, also part of the surveillance team, parked his vehicle in a lot across from 620 Manning Boulevard and climbed into the back of his vehicle to observe the transaction. Id. at 179-81.

At approximately 8:00 p.m., Petitioner drove up the street on a motorcycle and stopped at 620 Manning Boulevard. Trial Tr. at 82, 96. A short time later, Raleigh also arrived on a motorcycle, traveling from the same direction as Petitioner. Id. at 82, 95, 133-34, 187-88. Raleigh nodded to Walker, and Walker understood him to be signaling that "everything is all right." Id. at 82, 97, 101-02, 187.

Detective Gould watched as Raleigh went to the front of 620 Manning Boulevard, where he rang the bell and asked if Petitioner was there. Id. at 134, 138, 187. Petitioner came out of the house and gave Raleigh a baseball-sized object wrapped in plastic. Id. at 134-35, 154-56, 187. Petitioner left the location on Raleigh's motorcycle as Raleigh crossed the street to meet with Walker. Trial Tr. at 137-39, 167. Raleigh handed Walker the object Petitioner gave him in exchange for the $3,500.00 in pre-recorded buy money. Id. at 30-31, 54-55, 82-83, 104-05, 134-35, 187-88. After the exchange, Raleigh put the money in his pocket and walked away from the location and down the street to a basketball court, where he met with Petitioner and gave him $3,200.00 Id. at 64-66, 135-36, 157-58, 167, 188. Raleigh kept the remaining $300.00. Id. at 135-36.

Walker left the area and met with Investigator Daniels. He turned over the object Raleigh gave him, and Daniels retrieved the recording devices from Walker. Trial Tr. at 30-34, 83-84. The object later tested positive for cocaine weighing 98.7 grams (approximately three ounces). Id. at 117-24. Walker was paid $300.00 for his role in the controlled buy. Id. at 84. No photographs or videos were made recording the controlled buy. Id. at 205-07.

Police recovered the $300.00 Raleigh kept when he was arrested on June 6, 2001. Id. at 135-36, 235-36, 243, 297-98. Raleigh pleaded guilty in federal court to criminal sale of a controlled substance in exchange for a sentence ranging between 151 and 188 months. Id. at 129-30, 146-48, 165-66. He testified against Petitioner at trial in the hope that his cooperation would result in a downward departure on his federal sentence. Id. at 130, 145-50.

On June 7, 2001, a search warrant was executed at the second floor of 1172 Broadway, a residence owned by Petitioner's mother. Trial Tr. at 189-90. Police stopped Petitioner in front of the residence, handcuffed him, and escorted him into 1172 Broadway. Id. at 189-90. The first bedroom on the right was filled with men's clothing and Timberland boots. Id. at 190. Detective Gould has known Petitioner between twenty-three and twenty-five years and testified he had seen Petitioner wearing some of the clothing. Id. at 218-21. Police also recovered a box of bullets in a bureau by the bed, and a bag of bullets in the closet. Id. at 190-91.

In a second bedroom, police recovered a pile of loose plastic bags lying on top of a dresser and took them into evidence because they are commonly used to package cocaine. Trial Tr. at 192-94. Several photographs of Petitioner were also found. Id. at 196, 277. Agent Dunlap recovered a drug ledger containing code words used to describe narcotics, two rental agreements for vehicles in Petitioner's name, additional photographs of Petitioner, and a digital scale from the livingroom of the home. Another scale was recovered from the kitchen area. Id. at 268-81, 335-36.

Finally, police found a black bag in the ceiling of 1172 Broadway that contained approximately $12,600. Trial Tr. at 237. Police matched the serial numbers for $2,800 of that money to the prerecorded buy money, and the remaining money was submitted for forfeiture. Id. at 237-38, 282-85. The bag also contained a box of plastic bags, a condom, a used plastic baggie with a white residue, and two additional digital scales. One of the scales had a white powdery substance on it. Id. at 287-90.

B. State Court Proceedings

On October 18, 2002, an Albany County Grand Jury returned a three-count indictment charging Petitioner with first degree criminal sale of a controlled substance*fn4 and two counts of second degree ...


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