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Harrison v. Kikendall

May 7, 2009


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


Pro se Petitioner Damion Harrison brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on the following grounds: (1) he was denied the right to present an alibi witness at trial; (2) insufficient evidence to convict; and (3) he was denied the right to a speedy trial. Dkt. No. 1, Pet. For the reasons that follow, it is recommended that the Petition be denied.


Around 9:30 p.m. on January 12, 2001, Jason Bailey and Charles Curcio were robbed at gunpoint in Schenectady, New York. Dkt. Nos. 7-4, Second Trial Tr., dated June 5-7, 2002, (hereinafter "Trial Tr.") at pp. 18-27. Bailey and Curcio had driven from Brother Dominick's, a bar, to Bailey's residence so that Bailey could get some money from his house. Id. at pp. 18-19. As the two men left Bailey's house, they saw a man who appeared to be urinating in the driveway. Id. at pp. 26-27. Bailey and the man exchanged words and the man asked for a lighter, after which Bailey and Curcio got into the car and turned on the push-in car lighter. Id. at pp. 30-31. At that point, the man approached the driver's side window and pulled out a gun, pointed it at Curcio, who was in the driver's seat, and demanded their money. Id. at pp. 35-36. The two men handed over their money, and the perpetrator walked away. Id. at pp. 35-37.

Curcio testified at trial that during the incident he recognized the robber as Damian Harrison, the Petitioner, with whom Curcio had gone to junior high school and had played basketball with during that time. Id. at pp. 68-71. After the robbery, Bailey and Curcio phoned the police and Curcio identified the robber as Petitioner after having confirmed Petitioner's last name over the phone with a high school friend. Id. at pp. 76-78. Immediately thereafter, Bailey and Curcio went to the police station and gave the police Petitioner's full name and description. Id.

Approximately eight (8) months after the robbery, Petitioner was arrested in August of 2001 and charged with two counts of Robbery in the First Degree under N.Y. PENAL LAW § 160.15(4).

Id. at pp. 181-82; R., Ex. M, Indictment dated Sept. 18, 2001.

Petitioner's trial began in early March 2002 and ended in a hung jury. Dkt. No. 7-3, First Trial Tr. dated Mar. 8, 2002, at pp. 13-21. A second trial began on June 3, 2002, at the conclusion of which the jury convicted Petitioner of two counts of first-degree robbery. On July 10, 2002, Petitioner filed a motion to set aside the verdict pursuant to N.Y. CRIM. PROC. LAW ("CPL") § 330.30, which was denied. R., Exs. A, Pet'r § 330 Mot., dated July 10, 2002, & C, Order Denying § 330 Mot., dated Aug. 2, 2002. Next, Petitioner filed a direct appeal before the Appellate Division, Third Department, which unanimously affirmed the trial court's judgment. R., Exs. D, Pet'r App. Div. Br. & F, Order dated Sept. 14, 2005; see also People v. Harrison, 803 N.Y.S.2d 291 (N.Y. App. Div. 3rd Dep't 2005). Petitioner's subsequent Application for Leave to Appeal to the New York State Court of Appeals was denied on February 27, 2006. People v. Harrison, 6 N.Y. 3d 813 (2006).

On or about April 9, 2006, Petitioner filed a motion to set aside the verdict pursuant to CPL § 440. R., Ex. I, Pet'r § 440 Mot. dated Apr. 9, 2006. The trial court denied the motion, and the Appellate Division denied his motion for leave to appeal. R., Exs. K, Order dated June 30, 2006 & L, Order dated Sept. 19, 2006. Harrison filed the instant Habeas Petition on February 7, 2007.


A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either

1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006); DeBerry 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).

The petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234679, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).

The Second Circuit has provided additional guidance concerning application of this test, noting that:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?

Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

B. Right to Compulsory Process

Petitioner argues that the trial court violated his Sixth Amendment right to compulsory process by refusing to allow the testimony of a purported alibi witness. The Compulsory Process Clause of the Sixth Amendment affords criminal defendants the right to present witnesses in their defense. Taylor v. Illinois, 484 U.S. 400, 408-09 (1988). However, "defense witness testimony may be limited or even excluded as a sanction for the violation of valid discovery rules." Wade v. Herbert, 391 F.3d 135, 141 (2d Cir. 2004). In deciding whether the exclusion of testimony violates the Sixth Amendment, a court must weigh the defendant's right to present favorable testimony against its interest in protecting the "integrity of the adversary process" through the rejection of unreliable evidence, "the fair and efficient administration of justice," and by hedging against "the potential prejudice to the truth-determining function of the trial process." Taylor v. Illinois, 484 U.S. at 414-25.

In this case, the record shows that at the close of the prosecution's case in the second trial, Petitioner sought to introduce a new alibi witness, whom up to that point had not been disclosed on Petitioner's witness list. Trial Tr. at p. 120. Petitioner's counsel stated that an investigator had obtained new information after following up on a lead provided by Petitioner that very day, and that up to that point Petitioner had "apparently forgot" about the information he provided to the investigator. Id. at p. 122. The proposed alibi witness, Clarence Stanford, was the director of the Boys and Girls Club in Schenectady. He was to testify that Petitioner was an occasional volunteer at the Boys and Girls Club, and that he had a sign-in sheet for volunteers from January 12, 2001, the date of the robbery, that had Petitioner's name on it, and that the Boys and Girls Club was open from 3 p.m. to 11 p.m. on that date. Id. at p. 124. However, Petitioner's counsel stated ...

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