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Russ v. Burge

September 14, 2009


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


I. Introduction

Pro se petitioner Bryon K. Russ ("Petitioner") 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 January 17, 2001, in New York State, County Court, Ontario County, convicting him, after a jury trial, of two counts of Robbery in the First Degree (N.Y. Penal Law § 160.15[2], [4]), one count of Assault in the First Degree (N.Y. Penal Law § 120.10[4]), and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

The charges arose from an incident that occurred on May 24, 2000, in which Petitioner shot Sincere Holmes ("Holmes" or "the victim") in the leg over a gang-related dispute.

On the evening of May 24, 2000, Petitioner, Holmes, Rasheem Harris ("Harris"), Rasheen Madison ("Madison), and T'Jay Desassure*fn1 ("Desassure") met up at a bar in Geneva, New York. At some point thereafter, the five left Geneva in a tan or brown Dodge minivan, driven by Petitioner. Trial Transcript [T.T.] 105-06, 172-75. The five individuals were headed to Rochester. T.T. 113. As they were headed out of Geneva, Petitioner stopped the car on a back road, apparently to urinate. T.T. 114. Petitioner pulled out a .25 caliber handgun and pointed it at Holmes. T.T. 117. As he did so, Petitioner indicated to Holmes that Holmes was "0-32"*fn2 because he snitched on Petitioner's friend. T.T. 112-16, 176-80. Petitioner, Harris, and Madison robbed Holmes and took his jacket, cell phone, and $70 in cash. Petitioner then ordered Holmes out of the car and told him to lie on the ground. T.T. 116-21, 180-82. Believing he was going to be executed, Holmes began to scuffle with Harris and Madison. Petitioner then shot at Holmes with the .25 caliber handgun, causing a bullet to pass through Harris's thumb and ultimately lodging in Holmes's leg. T.T. 121-24, 183-87. In the darkness and confusion, Petitioner dropped the gun and Holmes ran into the woods, bleeding from his leg wound. T.T. 121-22, 135-36. He managed to run to a nearby house where he called for help and then collapsed in a puddle of blood on the front porch. T.T. 265. The house's occupant called for the police and an ambulance. T.T. 68-72, 124-26, 164-65. When the police arrived, Holmes told police that he was shot by one of three or four black males in a tan, brown or beige SUV. That information was broadcast to law enforcement, and moments later, police stopped a vehicle fitting that description. T.T. 179-80. Petitioner was driving the vehicle containing three occupants. All four occupants were removed from the van. T.T. 183-84. The police observed a white, bloody towel inside. T.T. 205. They also smelled marijuana emanating from the vehicle. T.T. 185. The four occupants were then taken to the Geneva Police Department for questioning and the police sought and obtained a search warrant for the van. T.T. 224-25. Police discovered the following items during the search: a bloody towel, a .25 caliber handgun and live .25 round, and some of the victim's personal belongings. T.T. 271-79. While at the police station, and after he had been advised of his rights, Petitioner asked police how much time he would get in prison for what he had done. T.T. 249.

Following his indictment, Petitioner filed a motion seeking to dismiss the indictment on the ground that he was deprived of his statutory right to appear before the grand jury as a witness on his own behalf. By Decision dated August 23, 2000, the Ontario County Court granted Petitioner's motion. By Notice of Motion dated August 29, 2000, the prosecution moved for an order granting reargument and reconsideration of the August 23, 2000 decision. This application was granted, and the Ontario County Court vacated the August 23, 2000 decision on September 8, 2000 and denied Petitioner's motion to dismiss the indictment.

A combined Huntley/Mapp probable cause hearing was held before the Ontario County Court on October 18, 2000 and November 15, 2000. At the conclusion of the hearing, the Ontario County Court found that there was reasonable grounds for the police to stop the minivan and therefore denied suppression of the items found in the van, as well as the statements made by Petitioner. Hearing Minutes of November 15, 2000, 119-24.

A trial was held in the Ontario County Court on January 16 and 17, 2001. Petitioner did not testify on his own behalf and no witnesses were called by the defense. Desassure testified as an eyewitness for the prosecution. The jury returned a verdict of guilty of all counts of the indictment. On February 21, 2001, he was sentenced to concurrent, definitive sentences of imprisonment as follows: 24 1/2 years for robbery, 10 years for assault, and 7 years for criminal possession of a weapon.

On or about March 15, 2002, Petitioner filed a timely Notice of Appeal, and his conviction was affirmed by the Appellate Division, Fourth Department. People v. Russ, 292 A.D.2d 862 (4th Dept. 2002). Leave to appeal to the New York State Court of Appeals was denied on August 12, 2002. People v. Russ, 98 N.Y.2d 713 (N.Y. 2002).

On or about March 18, 2003, Petitioner sought to vacate his conviction pursuant to N.Y. Criminal Procedure Law (C.P.L.) § 440.10. The motion was denied by the Ontario County Court by Decision and Order of May 28, 2003 (D. and O. of 05/28/03). Leave to appeal to the Appellate Division was denied on September 17, 2003. An application for leave to appeal to the New York State Court of Appeals was dismissed on November 13, 2003.

On or about February 26, 2004, Petitioner filed a motion for a writ of error coram nobis with the Appellate Division, which was denied on April 30, 2004. People v. Russ, 6 A.D.3d 1251 (4th Dept. 2004). The New York Court of Appeals denied leave to appeal on August 30, 2004. People v. Russ, 3 N.Y.3d 681 (N.Y. 2004). This habeas petition followed*fn3 .

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 claim that was "adjudicated on the merits" in state court "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 habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id.

This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 ...

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