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Egan v. Spitzer

July 16, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge


I. Introduction

Petitioner Robbin Whitelaw, f/k/a Robbin Egan ("Whitelaw" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging her conviction in Ontario County Court on July 30, 2002 on three counts of Grand Larceny in the Fourth Degree (N.Y. Penal Law § 155.30[1] and [4]) and one count of Petit Larceny (N.Y. Penal Law § 155.25).*fn1 Her trial took place before the Honorable Craig J. Doran, Ontario County Judge.

II. Factual Background and Procedural History

This conviction stems from an incident that occurred on October 6, 2001 at a shopping mall in Victor, New York. Penny Ciaburri ("Ciaburri") had a late morning appointment for a manicure at the Nail Studio located in the Eastview Mall. V.T. 5, 6, 27.*fn2

After Ciaburri signed in, she was called to the manicurist's station and placed her purse on the floor next to her feet. V.T. 9, 10. Ciaburri testified that when she left her seat to wash her hands, she left her purse at the manicurist's station. V.T. 10. When Ciaburri returned, her purse was gone. V.T. 11. According to Ciaburri, the purse contained a cell phone, a Palm Pilot, credit cards, over $1,200.00 in cash, and other items. V.T. 19-20.

Traci Sharp ("Sharp"), testified that on October 6, 2001, she went to the Nail Studio at the Eastview Mall. T. 170.*fn3 Sharp arrived at approximately 12:00 p.m. and signed a check-in sheet.

T. 171. According to Sharp, the petitioner picked up the purse near the nail station left there by Ciaburri. T. 176-177. When Ciaburri returned, she noticed her purse was missing. Sharp told Ciaburri that a woman had just walked out with it. T. 180. Sharp and Ciaburri then entered the mall in an unsuccessful attempt to locate the petitioner and the purse. T. 202.

On October 9, 2001, Ontario County Sheriff's Department Investigator James Minute ("Minute") and Deputy Jackie Callard ("Callard") met Whitelaw at her place of employment and requested permission to search her apartment. T. 218-219. Minute obtained the petitioner's oral and written consent to search the apartment.

T. 220, 221. During the search, Minute observed Callard recover a cellular phone from a desk drawer. T. 223. When the phone was powered on, the name of Penny Ciaburri appeared on the screen.

T. 224. When asked about the phone after it was recovered, Whitelaw told the police officers that it was her son's phone and that he was in the navy. T. 224.

A pre-trial hearing was conducted on July 9 and 10, 2002 to determine whether the seized cell phone and Sharp's out-of-court identification of the petitioner should be suppressed.*fn4 The petitioner's motions to suppress were denied in their entirety. People v. Egan, No. 02-01-032, Decision and Order 7/19/2002. A three-day jury trial was held in Ontario County Court. Jay Ensworth ("Ensworth"), an acquaintance of the petitioner, testified for the defense. Ensworth told the court that he had received an e-mail from Whitelaw sometime early in October, 2001. T. 275. Defense counsel attempted to establish the contents of the e-mail and the prosecution objected to its admission as hearsay. T. 276. An offer of proof was made that the e-mail, purportedly sent on October 8 or 9, 2001, would state that the petitioner needed to reach her son in the navy because she had found his cell phone. T. 276. Following further argument of this issue, the court sustained the prosecution's objection that the e-mail was hearsay. T. 278-279.

The petitioner testified in her own defense. Whitelaw testified that she was at the Nail Studio at Eastview Mall on October 6, 2001, and that she had arrived at noon, signing in upon arrival. T. 280-283. She stated that she paid by credit card at 12:53p.m. and left immediately thereafter with her purse. T. 284. She denied taking any one else's purse with her. T. 283. On cross-examination, the petitioner stated that her son had been at sea for over thirty days prior to the date the police found the cell phone in her apartment, and had never lived in the apartment with Whitelaw prior to her arrest. T. 295-296. When asked if she could explain how Ciaburri's phone was found in her apartment, Whitelaw testified that her purse fell open at the Eastview Mall, and that the phone must have been on the ground among the items that petitioner put back in her purse. When called upon to explain why she would have thought the cell phone belonged to her son, the petitioner said she believed that while moving her son's belongings from her prior residence to her new apartment, she stopped fast and the phone "flew forward" out of a box and into her purse. T. 298.

Following summations and the court's charge, the jury deliberated and found Whitelaw guilty of all charges in the indictment. T. 369. On July 30, 2002, the petitioner was sentenced to a term of imprisonment of six months, to be followed by five years probation, plus restitution. S. 19-21.*fn5 Whitelaw filed an appeal with the Appellate Division, Fourth Department, which affirmed her conviction. People v. Egan, 6 A.D.3d 1203 (4th Dept. 2004); lv denied 3 N.Y.3d 369 (2004). Whitelaw did not file any applications for post-conviction relief in state court before she filed this petition for a federal writ of habeas corpus (Dkt. #1).*fn6

Whitelaw presents a myriad of claims for habeas relief, including: 1) that her conviction was obtained through the use of perjured testimony; 2) she was denied her right to confront witnesses; 3) the exclusion of defense witness testimony deprived her of a fair trial; 4) the prosecution failed to establish a chain-of-custody with respect to the cellular phone; 5) unconstitutional search and seizure; 6) the pre-plea sentencing investigation ("PPI") violated her due process; 7) a speedy trial violation, and several general arguments alleging a denial of liberty, due process, and fair trial.

For the reasons set forth below, the Court finds that the petition does not warrant issuance of the writ.

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "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," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a ...

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