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Montgomery v. Donnelly

July 20, 2009


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



On March 30, 2003, petitioner Mitchell Montgomery ("Montgomery," "Petitioner") filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.


On September 12, 1997, Petitioner was indicted on charges of one count of second degree burglary (Penal Law § 140.25(2)), a class C violent felony offense (Penal Law § 70.02(1)(b)), one count of criminal possession of stolen property in the fifth degree (Penal Law § 165.40), a class A misdemeanor, one count of second degree assault (Penal Law § 120.05(3)), a class D violent felony offense (Penal Law § 70.02(1)(c)), one count of resisting arrest (Penal Law § 205.30), a class A misdemeanor, and one count of second degree escape,(Penal Law § 205.10(2)), a class E felony.

On May 20, 1998, following a jury trial, Petitioner was convicted of Burglary in the Second Degree (Penal Law § 140.25(2)), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40), Assault in the Second Degree (Penal Law § 120.05(3)), Resisting Arrest (Penal Law § 205.30), and Escape in the Third Degree (Penal Law § 205.05). The Erie County Supreme Court sentenced Petitioner, a persistent violent felony offender, to various concurrent sentences, the longest of which were two terms of 18 years to life incarceration on his convictions for Second Degree Burglary and Second Degree Assault.

Petitioner appealed the judgment to the New York State Supreme Court, Appellate Division, Fourth Department. On November 9, 2001, the Appellate Division unanimously affirmed Petitioner's conviction. Petitioner then sought leave to appeal to the New York State Court of Appeals, which was denied on January 4, 2002. Montgomery is currently incarcerated at the Wende Correctional Facility pursuant to his judgment of conviction.

The conviction stems from an incident that occurred at about 8 p.m. on July 7, 1997. According to evidence introduced at trial, Ms. Rita Verel saw Petitioner on the porch of Ms. Sarah Kennedy's residence at 8 Flower Street, in the city of Buffalo, New York. Verel lived nearby, and out of concern for Kennedy and her three house-mates, she walked over and asked Montgomery, who was wearing camouflage fatigues, what he was doing there. (T. 60-62).*fn1 In responding to Verel, Petitioner came within one foot of her. Verel became frightened and left, but observed Petitioner get into the passenger side of a van and drive up Tyler Street. (T. 62-63).

Specifically Verel went to the home of another neighbor, Kevin McNerney, and told him what she had seen. (T. 64, 111). McNerney began observing the van and called 911 several times. (T. 112, 115). The van stopped at 17 Flower Street and McNerney saw Petitioner get out of the van. (T. 65). McNerney watched as Petitioner went into a driveway on Flower Street and emerged riding a bicycle that was too small for him. (T. 66-67, 112-113). McNerney saw a dark fabric sack draped over the handlebars. (T. 127). Verel also saw the fabric sack, referring to it at trial as a brown bag. (T. 67). Petitioner turned and looked at McNerney, and then returned the bicycle to the driveway he had taken it from. Id. Petitioner then disappeared through the back yard of 32 Flower Street. (T. 67-68).

City of Buffalo Police Officers Zagara and Wilke heard two radio dispatch calls about a prowler in the area of Flower Street. (Pg. 136-38). They saw a man who fit the description of the prowler near a public telephone three blocks from 8 Flower Street.

(T. 136-49, 154). It was later determined that this man was Montgomery. Officer Zagara saw a cloth book bag at Montgomery's feet, and visible among its contents was a camera with a telescopic lens. (T. 140-41). According to Officer Zagara, Montgomery said "Okay, okay, the camera in the bag is hot." (T. 141). Montgomery then told Officer Wilke that the bag was his; that he had just bought the camera at a sandwich shop, and that it was stolen. (T. 170-71).

In the meantime, Ms. Verel set out to find the prowler herself, and upon seeing him with the officers, identified Montgomery as the person whom she had seen earlier. (T. 71-72, 144). The officers brought Petitioner back to Flower Street, where Officer Zagara investigated the interior of a home located at 8 Flower Street, while Officer Wilke waited outside by the patrol vehicle. Officer Zagara discovered that the front living room window and screen were off the sill, and that the back door was open despite no one being home. The house had been ransacked. (T. 145-46).

While Officer Zagara was investigating, McNerney came up to the patrol vehicle and identified Montgomery as the person which prompted him to call 911. (T. 118, 150-51). Petitioner then fled the patrol car and was pursued by Officers Wilke and Panus on foot while Officer Zagara and another officer chased him in a patrol car. (T. 118, 147-48, 176). Officer Panus caught up with Montgomery at the end of Flower Street. Officer Panus attempted to take Petitioner down to the ground and Officer Wilke assisted by pulling Petitioner's feet from under him. Montgomery kicked Officer Wilke in the hand, jamming and breaking Officer Wilke's right hand pinky and ring fingers. (T. 147-48, 176-78). The next day Officer Wilke underwent six hours of surgery to bring his two fingers back into normal configuration. (T. 176-79).

Petitioner was returned to 8 Flower Street where Officer Zagara administered Miranda warnings to him. (T. 151). Officer Zagara did not ask Petitioner any questions, but Petitioner volunteered, "If I tell you the guy's name who helped me will you let me go and give me a break?" (T. 151). Officer Zagara replied, "No deal. You're in handcuffs, you're staying there." (T. 152).

Ms. Kennedy testified at trial that she resided at 8 Flower Street on July 7, 1997. (T. 193). She also stated that Petitioner did not have permission to enter her house. (T. 196). When Kennedy returned to her home at around 9:30 p.m. that night, she was met by the police and her neighbors. The lower level of the house was not disturbed, but her upstairs bedroom was torn apart. She could not find her camera, lens, or her spare set of car keys.

(T. 196-98). A police officer showed her book bag to her, wherein she found her camera, lens, spare keys and tampons. (T. 198-99).


I. Petitioner's Claims

In his pro se petition for a writ of habeas corpus, Montgomery claims that: (1) the trial court's Sandoval ruling was an abuse of discretion and thereby deprived Petitioner of a fair trial; (2) the burglary conviction was against the weight of the evidence; (3) the trial court erred by not granting defense counsel's request for a mistrial following the People's summation; (4) the sentence of 18 years to life as a persistent violent felony offender was harsh and excessive and should be modified; (5) the trial court erred when it denied defense counsel's motion to dismiss the burglary count, and therefore denied him his right to due process; (6) he was denied effective assistance of trial counsel because counsel failed to move to preclude the prejudicial admission of un-charged crimes and failed to object to such testimony, thereby denying him due process and a fair trial; (7) the trial court erred by not making a justification charge in the assault count, although ...

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