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Smith v. Berbary

September 25, 2009


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



Petitioner, Shaking A. Smith ("Smith" or "Petitioner"), filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his custody, following a jury trial convicting him of robbery in the first degree (New York Penal Law ("Penal Law") §160.15), menacing in the second degree (Penal Law §120.14), and making a punishable false statement (Penal Law §210.45). Judgment was entered on May 13, 2003 in New York State Supreme Court, Yates County, and was unanimously affirmed by the Appellate Division, Fourth Department on October 4, 2004. People v. Smith, 11 A.D.3d 899 (4th Dept. 2004); lv. denied, 3 N.Y. 3d 761 (N.Y. 2004). For the reasons set forth below, this petition is denied.


By indictment number 2002/46B, Petitioner was charged with robbery in the first degree, menacing in the second degree, and making a punishable false statement, arising out of the following incident. On July 25, 2002, Terry J. Petty ("Petty") left a hotel in Bath, New York with approximately $860 dollars to pay for an apartment in Penn Yan, New York. (T. 26-7, 30).*fn1 Petty secured a ride to Penn Yan with Tyrone Rouse ("Rouse"), Monique Williams ("Williams"), Sawonege Mays, and Petitioner. (T. 29, 31). On the drive to Penn Yan, Rouse, the driver, stopped at a gas station, where Petty pulled out the $860 dollars and offered $5 dollars for gas. Rouse next stopped at Petitioner's girlfriend's house, where all of the occupants of the car, except Petty, exited the car and went inside the house. (T. 29-31). A short time later, the four individuals returned to the car and continued traveling towards Penn Yan. (T. 31-2). Rouse then turned onto Chub-Hollow Road and stopped the car. (T. 33, 83). At this point, Petitioner, who was seated behind Petty on the passenger's side of the car, put a knife to Petty's throat and said "give me the money." (T. 83). Petitioner then told Rouse to take the money from Petty's pocket, which he did, and Petty was instructed to exit the vehicle. (T. 34, 83). Williams testified that Petitioner then got into the front seat, took the money, and put it in the center console of the vehicle. (T. 83). While this was occurring, Petty heard Petitioner say "jig this person," which Petty interpreted to mean "stab him," but instead the four individuals drove away without injuring Petty. (T. 34-5). Williams testified that after they drove away, the four argued about what had occurred, and agreed that things had gotten out of hand and they were worried about going to jail. (T. 83-4). Petitioner then threw the knife out the window of the car. (T. 89).

After being left on Chub Hollow Road, Petty flagged down a truck and asked for a ride and the use of a phone. (131-2). Dawn Pollack ("Pollack") was a passenger in the truck and her son was driving. (T. 130). Pollack offered to call the police when she got home, but refused to give Petty a ride. (T. 131-3). She instructed Petty to go to a nearby home to call the police. (T. 131). Petty reached the home of Carol Louis Cadwell ("Cadwell") and called his girlfriend and his cousin. (T. 36). Petty told Cadwell that he did not want the police involved. (T. 140). Cadwell then offered to give Petty a ride to Penn Yan. (T. 137-8). Shortly after leaving the Cadwell's home, State Trooper, Dale Everetts approached the Cadwell's car and Petty got out and told him he had been robbed. (T. 142). Initially, Petty told police that his name was John Gray and that he was only carrying $400 or $500 dollars, but later, in a sworn statement, told an investigator his real name and that he had $860 when he was robbed. (T. 38, 41, 144, 193).

Some time later, police stopped the car carrying the other four individuals, after identifying the car as the one involved in the robbery. (T. 84-, 159). Williams then attempted to hide the money taken from Petty in her undergarments. Id. After briefly questioning the four suspects, Deputy Brian Winslow of the Yates County Sheriff's Office handcuffed and transported the four individuals to the Yates County Public Safety building. (T. 159-60, 191). At this time, investigator Todd Sortir ("Sortir"), questioned each of the four individuals separately. (T. 193). Sortir spoke with Petitioner at 5:30 p.m. and advised him of his rights. (T. 195). Petitioner gave a statement, under oath, and signed the statement which contained specific language informing Petitioner that making a false written statement was punishable as a class A misdemeanor. (T. 198). In his statement, Petitioner stated that he did not threaten Petty with a knife and that no one in the vehicle had the knife. (T. 199). He also stated that Petty hit him, got out of the car, and ran, and that he did not tell Petty to empty his pockets. Id. After Petitioner signed his statement, Sortir informed him that his story was inconsistent with the stories of the other suspects and the victim. (T. 202). At this time Petitioner told Sortir where he could locate the discarded knife, which Sortir found on July 26. (T. 202, 204). He also told Sortir that everyone in the vehicle had touched the knife and admitted holding Petty by the throat. (T. 203).

A jury convicted the Petitioner of first degree robbery, second degree menacing, and making a punishable false statement, on February 28, 2003. (T. 330). Petitioner appealed his conviction to the Appellate Division, Fourth Department, claiming (1) the verdict was against the weight of the evidence; (2) the prosecutor denigrated the defense in his summation; (3) he was denied effective assistance of counsel because (a) counsel had a conflict of interest and (b) counsel pursued and unreasonable trial strategy by conceded the lesser offenses of making a punishable false statement and menacing; and (4) his sentence should be modified in the interest of justice. Brief for Defendant-Appellant, at 4-5, Smith, 11 A.D.3d 899. The Appellate Division unanimously affirmed Petitioner's conviction holding that there was sufficient evidence to support his conviction; his claim that the prosecutor denigrated the defense was not preserved for review, but also was without merit; there was no "potential conflict of interest with respect to defense counsel's representation" and the defendant had failed to show that his defense was affected by the alleged conflict; the defense strategy was reasonable and did not constitute ineffective assistance of counsel; and his claim for a reduced sentence was without merit. Smith, 11 A.D.3d at 900-01). Further leave to appeal was denied by the New York State Court of Appeals. People v. Smith, 3 N.Y.3d (N.Y. 2004).


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 that [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 408-410. "[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 (2d Cir. 2000) (internal quotation marks omitted). Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

B. Exhaustion Requirement

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that...the applicant has exhausted the remedies available in the courts of the State..." 28 U.S.C. §2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly ...

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