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Johnson v. Burge

September 30, 2009

SAMUEL JOHNSON, PETITIONER,
v.
JOHN BURGE, SUPERINTENDENT, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Samuel Johnson ("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 October 3, 2002, in the Supreme Court, State of New York, Monroe County, convicting him, after a jury trial, of Robbery in the First Degree (New York Penal Law ("Penal Law") § 160.15(4)). For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

The charges arise out of a robbery that occurred on November 6, 2001 in Rochester, New York.

At approximately 3:00 p.m. on November 6, 2001, the employees at the "Fleet Bank" ("the bank"), located at 671 Park Avenue in the City of Rochester, were preparing to close when Petitioner entered the bank. Trial Transcript (T.T.) 154-57. Petitioner approached the teller window where Kendra Farrier ("the teller") was working and handed her a note that said, "I have a gun". T.T. 225-227. Petitioner leaned on the counter in front of the teller with his hands in his pocket. He told the teller not to "pull anything" and instructed her to fill a bag with money, which she did and also added a dye pack. She then handed the bag to Petitioner, who took the bag and the note and left the bank. T.T. 228-231.

The bank manager, Carl Nasello ("Nasello"), was watching closely from his office. He became concerned when he saw Petitioner leaning on the counter in front of the teller. The teller was making eye contact with Nasello and looked nervous. Knowing that customers do not typically ask for bank bags, and seeing that the teller was noticeably nervous, Nasello pulled the silent alarm to signal to the police that the bank was being robbed. T.T. 156-60. Nasello was approximately ten feet from Petitioner when Petitioner took the bag and went toward the door, close enough that Nasello was able to get a full view of Petitioner's face. T.T. 160-61. After Petitioner exited the bank, Nasello watched Petitioner get into a black Blazer. T.T. 162. As Petitioner pulled away, Nasello saw the dye pack explode, causing paint and smoke to be released. Petitioner stuck his head out of the window, enabling Nasello to get another look at Petitioner's face. T.T. 162. Nasello called out Petitioner's license plate number to his co-workers, grabbed his keys, and left to follow Petitioner. T.T. 162-64.

During his pursuit of Petitioner, Nasello kept contact with a 911 operator. Petitioner eluded Nasello by going the wrong way down a one way street. T.T. 165-68.

At approximately 3:55 p.m., Petitioner called police and reported his vehicle stolen. Police told Petitioner to meet him at a certain corner, but Petitioner never appeared. At approximately 6:40 p.m., Petitioner showed up at the police station. He indicated to police that his car had been stolen. T.T. 258-60, 304. Police, however, suspected Petitioner was the individual who had robbed the bank earlier that day, and asked to speak to him regarding his allegedly stolen vehicle. T.T. 260. Police eventually located the black Blazer in a parking lot off of Karges Place in the City of Rochester. A search of the Blazer revealed the note used in the bank robbery as well as Petitioner's driver's license and various clothing items. T.T. 324-326.

At trial, a surveillance video of the actual bank robbery was admitted as evidence. Although the tape was of marginal quality, a still photograph created from the videotape depicted a mask around the neck --- not over the face --- of the perpetrator. A mask, which looked similar to the mask worn by the robber in the still photograph, was also admitted into evidence at trial, for demonstrative purposes. T.T. 265.

Petitioner testified on his own behalf. He maintained that his black Blazer was stolen on November 6, 2001 before the robbery at the bank. He testified that he delayed reporting the vehicle stolen because he was looking for the vehicle himself and he was afraid to report it stolen because it was uninsured and believed he had a suspended registration. Petitioner denied participation in the bank robbery. T.T. 346-352.

At the close of proof, the jury found Petitioner guilty of Robbery in the First Degree. Petitioner was sentenced as a second violent felony offender to twelve and one-half years in prison with five years post-release supervision.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, and his conviction was unanimously affirmed. People v. Johnson, 15 A.D.3d 890 (4th Dept. 2005). Petitioner sought leave to appeal to the New York State Court of Appeals, which was denied on May 16, 2005. People v. Johnson, 4 N.Y.3d 887 (N.Y. 2005).

On September 7, 2005, Petitioner filed the habeas corpus petition presently before this Court, in which he makes two claims. One claim is exhausted and properly before this Court. See 28 U.S.C. ยง 2254(b)(1)(A). The remaining claim, which Petitioner failed to properly exhaust in the state courts, is deemed ...


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