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Richard v. Girdich

July 10, 2009


The opinion of the court was delivered by: Scullin, Senior Judge



A. Proceedings in State Court

According to the testimony adduced at trial, on June 10, 1989, Petitioner John W. Richard met with his friend, Dante Terrell, in the City of Albany, New York. See Transcript of Trial of John W. Richard dated December 3, 1990 ("Trial Tr.") at 746. After the two men agreed to steal a car, they went to the Port of Albany at around midnight and entered that location through a hole in the fence. See id. at 233-34. Although they each successfully started a vehicle, they were unable to leave the area because a car was blocking the exit. See id. at 234-36. Around that time, Mr. Terrell noticed a security guard leave his booth. See id. at 236. Petitioner and Mr. Terrell hid in some weeds; and the guard did not discover them at that time. See id. at 236-37. After hiding for about thirty minutes, Petitioner and Mr. Terrell resumed their quest for a car; however, during that search, the guard noticed Mr. Terrell and exclaimed, "Stop or I'll shoot." See id. at 238-39. Mr. Terrell ran from the scene, but Petitioner chose to stay behind. See id. Approximately ten minutes later, Mr. Terrell heard a single gunshot, followed by three more gunshots. See id. at 239-40. Soon thereafter, Petitioner, who was bleeding, approached Mr. Terrell and declared, "I killed him." See id. at 240. Petitioner then explained that he had shot the guard "in the head and somewhere else." See id. at 241. Petitioner and Mr. Terrell left the area and returned to Mr. Terrell's home, where Mr. Terrell bandaged Petitioner's wound. See id. at 242.

After Petitioner was identified as a possible suspect in the killing, Albany Police Officer H. Warner attempted to locate Petitioner for questioning. See id. at 396. On the night of June 11, 1989, Officer Warner observed Petitioner as a passenger in a car, stopped that vehicle, and placed Petitioner under arrest. See id. at 398-401.

Dr. Jeffrey Hubbards performed the autopsy on Robert Altieri, the security guard whom Petitioner fatally shot. Dr. Hubbards testified that the victim sustained multiple gunshot wounds, one of which entered the victim's head and ultimately caused his death. See id. at 319-20. The record also reflects that deoxyribonucleic acid ("DNA") testing was performed on biological evidence obtained from the crime scene. See id. at 473-74. That testing established that Petitioner's blood was found on the victim's jacket. See id. at 497-500.

As a result of the foregoing, on June 6, 1989, an Albany County grand jury returned an indictment against Petitioner. See Indictment No. 89-1242. In the accusatory instrument, Petitioner was charged with five counts of Murder in the Second Degree, in violation of New York Penal Law § 125.25; Grand Larceny in the Fourth Degree, in violation of Penal Law § 155.30(7); Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law § 265.02; and Criminal Possession of Stolen Property in the Fourth Degree, in violation of Penal Law § 165.45.*fn1

On December 20, 1989, Albany County Court Judge Thomas W. Keegan presided over a suppression hearing that Petitioner requested, see Transcript of Suppression Hearing dated December 20, 1989 ("Suppression Tr."), after which the court scheduled a date for Petitioner's trial. Terence Kindlon, Esq. represented Petitioner throughout those pre-trial proceedings. However, just before his trial commenced in Albany County Court on December 3, 1990, Petitioner requested that he be allowed to represent himself at his criminal trial. See Respondent's Appendix on Appeal at RA 46. After the court made an extensive inquiry regarding that application, the court permitted Petitioner to represent himself. See id. at RA 49-69. The Court, however, directed Attorney Kindlon to serve as Petitioner's standby counsel at trial. See id. at RA 69.

In his defense to the charges against him, Petitioner testified that, after Mr. Altieri discovered him and Mr. Terrell at the Port of Albany, Mr. Terrell grabbed Mr. Altieri. See Trial Tr. at 783. The two men struggled, during which Petitioner refused Mr. Terrell's requests for assistance. See id. at 789. After a period of time, a gun was fired and the bullet injured Petitioner's wrist. See id. at 791. Mr. Terrell thereafter shot Mr. Altieri multiple times, see id. at 794, and Petitioner and Mr. Terrell eventually left the area, see id. at 795.*fn2

At the conclusion of the trial, the jury convicted Petitioner of all charges. See Trial Tr. at 1124-28. On January 9, 1991, Petitioner appeared before Judge Keegan for sentencing. At that proceeding, the court sentenced Petitioner to an aggregate prison term of thirty and one-half years to life imprisonment. See Transcript of Sentencing dated January 9, 1991, at 10.

On October 31, 1996, the New York State Supreme Court, Appellate Division, Third Department unanimously affirmed Petitioner's conviction and sentence. See People v. Richard, 232 A.D.2d 872 (3d Dep't 1996). Petitioner sought leave to appeal that decision from the New York Court of Appeals; however, on May 12, 1997, that court denied his application. See People v. Richard, 89 N.Y.2d 1099 (1997). Petitioner, thereafter, filed a collateral challenge to his conviction pursuant to New York Criminal Procedure Law ("CPL") §§ 440.10 and 440.30, see Dkt. No. 16, Exhibit "A" ("CPL motion"); however, in a Decision and Order dated September 20, 2000, Albany County Court Judge Thomas A. Breslin denied that application, see Dkt. No. 16, Exhibit "B" ("September 2000 Decision").

B. The Current Action

On July 23, 2003, Petitioner filed, pro se, a habeas petition pursuant to 28 U.S.C. § 2254. See Dkt. No. 1 ("Petition"). This Court thereafter directed Petitioner to file an amended petition if he wished to maintain this action, see Dkt. No. 3; and, on September 25, 2003, he filed that pleading, see Dkt. No. 6 ("Amended Petition"). Petitioner has also filed a memorandum of law in support of his amended petition. See Dkt. No. 35 ("Supporting Memorandum"). Petitioner asserts numerous, overlapping claims in support of his application seeking federal habeas relief.*fn3

See Amended Petition. After unsuccessfully moving for summary judgment on that pleading, see Dkt. Nos. 14, 38, on January 28, 2008, Respondent filed a response in opposition to the amended petition, see Dkt. No. 41. Attached to that response is a memorandum of law in opposition to such pleading. See Attachment to Dkt. No. 41. Additionally, Respondent has provided the Court with various state-court records, including the trial transcript, relating to Petitioner's convictions.

The following constitutes the Court's disposition of the pending amended petition.*fn4


A. Standard of Review

The enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Jones v. West, 555 F.3d 90 (2d Cir. 2009), that a federal court may grant a writ of habeas corpus for a claim that has previously been adjudicated on the merits by a state court only if the adjudication of the claim:

(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.

Id. at 96 (quoting 28 U.S.C. § 2254(d)); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001).

In providing guidance concerning application of this standard, the Second Circuit has noted that a state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362,] at 405-06, 120 S.Ct. 1495 [(2000)]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001). . . . [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413, 120 S.Ct. 1495.

Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

Significantly, a federal court engaged in habeas review is not charged with determining whether the state court's determination was merely incorrect or erroneous but, instead, whether such determination was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000); see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citing Williams, 529 U.S. at 409, 120 S.Ct. 1495). "While '[t]he precise method for distinguishing objectively unreasonable decisions from merely erroneous ones' is somewhat unclear, 'it is well-established in this Circuit that the "objectively unreasonable" standard of ยง 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.'" Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (quotation omitted). That increment, however, "'need not be great; ...

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