The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Jose L. Mercado has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered December 10, 1998, in New York State, County Court, Wayne County, convicting him, after a jury trial, of Burglary in the Third Degree, Petit Larceny, and Criminal Mischief in the Fourth Degree.
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
Petitioner was charged in indictment no. 98-02 with Burglary in the Third Degree, Petit Larceny, and Criminal Mischief in the Fourth Degree. He was convicted of all three counts of the indictment following a jury trial. On December 10, 1998, Petitioner was sentenced as a persistent felony offender by the Wayne County Court to an indeterminate term of imprisonment of 15 years to life on his conviction for Burglary in the Third Degree, together with a one year definite sentence on each of his Misdemeanor convictions, all to be served concurrently.
Petitioner was at Dom's East Newark Grill ("Dom's") from approximately 11:00 p.m. on November 25, 1997, until the bar closed at 2:30 a.m. on November 26. After closing, the bartender inspected the premises and noticed that the kitchen window and the screen were intact. She then locked the door and left. When the manager of the bar arrived for work at approximately 6:00 a.m., he noticed that the door was unlocked. When he entered the bar, he saw that the kitchen window was broken and the screen was missing. He also noticed footprints in the sink and that money was missing from two envelopes and a tin box kept in the vicinity of the bar. Trial Transcript [T.T.] 231-41, 257-58, 274.
Fingerprints, that were later determined to be Petitioner's, were recovered from the envelopes. Petitioner was subsequently brought to the police station where he gave a statement in which he admitted to returning to Dom's after it had closed, entering through a back window, looking for money, stealing $70, and leaving through the front door. T.T. 316-50, 379-82, 398-402.
On September 24, October 13, and November 16, 1998, a hearing was held to determine whether Petitioner should receive an enhanced sentence as a persistent felony offender. At the hearing, the People called twelve witnesses, who testified concerning the circumstances surrounding Petitioner's arrests and convictions.
The prosecution also introduced certificates of conviction*fn1 and certificates of incarceration to establish Petitioner's previous felony convictions, and the sentences imposed. Petitioner, who testified in his own behalf, admitted that he burglarized Dom's, and that he often committed crimes because he was intoxicated. Hearing Minutes [H.M.] (Nov. 16) 4-5. At the conclusion of the hearing, the judge ruled that the prosecution had proven beyond a reasonable doubt that Petitioner had been convicted of two or more felonies, and therefore satisfied the definition of a persistent felony offender as set forth in New York Penal Law § 70.10. H.M. (Nov. 16) 36-39.
On December 10, 1998, Petitioner was sentenced to fifteen years to life on the Burglary charge, and concurrent one-year terms on the Misdemeanor Larceny and Criminal Mischief charges. H.M. (Dec. 10) 2-11.
The Appellate Division, Fourth Department, unanimously affirmed Petitioner's conviction. People v. Mercado, 294 A.D.2d (4th Dept 2002). The New York Court of Appeals denied leave to appeal. People v. Mercado, 98 N.Y.2d 731 (2002). On or about October 23, 2002, Petitioner submitted a pro se motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.20, which was denied by Wayne County Judge John B. Nesbitt by letter opinion on August 22, 2003. On or about September 24, 2004, Petitioner filed a motion for a writ of error coram nobis, which was denied by the Appellate Division on November 19, 2004. People v. Mercado, 12 A.D.2d 1206 (4th Dept. 2004). Petitioner sought leave to appeal to the New York Court of Appeals, which was denied on March 29, 2005. People v. Mercado, 4 N.Y.3d 833 (2004). This habeas petition followed*fn2.
One of Petitioner's claims appears to be fully exhausted and properly before this court. See 28 U.S.C. § 2254(b)(1)(A). Petitioner's remaining claims are deemed exhausted but procedurally defaulted. See § ...