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Glover v. Burge

September 10, 2009

FREDDIE GLOVER, PETITIONER,
v.
JOHN BURGE, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Freddie Glover ("Glover" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment of conviction entered in Monroe County Court, of New York State Supreme Court, dated July 9, 1996. The parties have consented to the disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Background

Following a jury trial, Glover, was convicted of five felonies: one count of second degree (felony) murder, and four counts of first degree robbery. Glover, along with Shawn Glover and Eli Lewis, were accused of robbing and killing Shawn Hart, who ran a drug house out of 1009 Joseph Avenue in Rochester on November 28, 1995. William Randle, who happened to be visiting Hart at the time, was robbed. It was alleged that the shooting and robbery occurred during a drug sale. The police found a quantity of marijuana weighing 3.66 pounds in Hart's residence.

Glover, several hours after being arrested, made an oral statement to the police. After another hour, the police starting typing up a written statement; this process was discontinued, however, when Glover invoked his constitutional rights. Thus, Glover defendant never signed the statement that Investigator Terrance Sheridan had typed. The oral statement and written statement were the subject of a pre-trial suppression hearing and were found to have been voluntarily made. Both the oral statement and unsigned written statement were admitted into evidence at trial. See T.733- 37; 820-21.

Because of a Bruton*fn1 issue, separate juries for each defendant were ordered. A dual jury trial was held in June 1996, with one jury for Glover, and one jury for co-defendant Lewis. Both were convicted of the same five counts--felony murder and four counts of robbery in the first degree. The third co-defendant, Shawn Glover, was tried separately in July 1996, and was convicted of the same charges. The convictions of both Shawn Glover and Lewis were affirmed on appeal. People v Shawn Glover, 266 A.D.2d 862 (App. Div. 4th Dept. 1999); People v Eli Lewis, 278 A.D.2d 819 (App. Div. 4th Dept 2000).

The prosecutor successfully had Glover adjudicated as a second felony offender. On the second degree murder charge relating to Hart (Count 1), Glover was sentenced to 25 years to life. The sentence on Count 1 was set to run concurrently with the sentences on robbery Counts 2 and 3 (also relating to Hart). Determinate sentences of 25 years were imposed with regard to each of the four first degree robbery convictions, two of which involved Hart (Counts 2 and 3) and two of which involved Randle (Counts 4 and 5). The sentences for Counts 4 and 5 related to the robbery of Randle were set to run concurrently with each other. The sentences on Counts 1, 2, and 3 (the Hart convictions), which aggregated 25 years to life, were set to run consecutively to the sentences for Counts 4 and 5 (the Randle convictions), which aggregated 25 years. Thus, Glover's total aggregate sentence was 50 years to life.

On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed Glover's conviction. People v. Freddie Glover, 4 A.D.3d 852, 771 N.Y.S.2d 619 (App. Div. 4th Dept. 2004). The New York Court of Appeals denied leave to appeal.

Glover filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") §440.10, which was denied by the trial court.

This timely habeas petition followed in which Glover raises the following grounds for relief: (1) the trial court "erred in holding dual trial [sic] rather than severing trials"; (2) "[t]he Defendants [sic] statements that were not signed or read should not have been ammitted [sic] into evidence at trial; (3) the sentences were harsh and excessive; (4) the in-court identification by the victim's girlfriend, Jennifer Sarquist, lacked an independent source; and (5) the "Judges [sic] charge to the jury denied the defendant the full protection of the Statute". See Petition at 7-8 (Docket No. 1).

For the reasons that follow, the petition is dismissed.

III. Discussion

A. Ground One: The Trial Court Erred in Permitting ...


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