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Brown v. Donelli

October 16, 2009

MARVIN BROWN, PETITIONER,
v.
JOHN J. DONELLI, SUPERINTENDENT, BARE HILL CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. INTRODUCTION

Petitioner, Marvin Brown ("Petitioner" or "Brown"), 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 judgment entered in New York State County Court, Ontario County, on September 20, 2002. Petitioner was convicted, after a jury trial, of one count of criminal sale of a controlled substance in the third degree (New York Penal Law ("Penal Law") §220.39[1]), and one count of criminal possession of a controlled substance in the seventh degree (Penal Law §220.03). For the reasons set forth below, this petition is denied.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

By indictment number 02-01-031, Petitioner was charged with one count of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the seventh degree, arising out of the following incident. On January 2, 2002, a confidential police informant, John Wesley, went to 157 Genesee Street, in Geneva, New York, to purchase crack-cocain from Petitioner at the direction of the Geneva City Police Department. (T. 292, 299-300)*fn1 . Prior to leaving the police station for 157 Genessee Street, Geneva City police officers Hausner and Heieck searched Wesley, placed a wire in the inside pocket of his jacket, and gave him $50 to purchase the crack-cocaine. (T. 299-300). Officer Hausner followed Wesley in an unmarked police car to the location to observe the transaction. (T. 303). When Wesley arrived at 157 Genesee Street, Petitioner told Wesley that he did not want to sell drugs in front of the children at the residence, and he exited the apartment, walked westward up an adjacent street, and met Wesley approximately five minutes later at the corner of Colt and Genesee Streets.

(T. 303-4, 353-4). Wesley then purchased a bag of crack-cocaine from Petitioner and returned to the police station. (T. 305-6). At the police station, Wesley received $40 for his role in the drug sale investigation, and the police confiscated the drugs and transported them to the Monroe County lab. (T. 308-9, 357). Petitioner was later arrested and indicted by a grand jury. (Arraignment Minutes at 2).

In a pre-trial omnibus motion, Petitioner requested a Darden*fn2 hearing and a hearing to determine whether the police had probable cause based on the information the confidential informant provided the police. (Minutes of Pre-trial Motions at 2-6). The trial court denied both requests following a pre-trial identification hearing in which Officer Hausner testified that he observed the transaction, and after the prosecution revealed the identity of the confidential informant, John Wesley, and disclosed that Wesley would be a trial witness. (Minutes of Pre-trial Motion/Hearing at 42).

The trial court also conducted a Sandoval*fn3 hearing. The court ruled that the prosecution could inquire about a previous misdemeanor conviction for criminal possession of a controlled substance in the seventh degree, a prior conviction for attempted criminal impersonation, and a prior juvenile delinquency proceeding involving theft. (Minutes of Sandoval Hearing at 22). Petitioner also made a motion in limine to exclude any uncharged crimes that may have led to the instant investigation. (Minutes of Pre-trial Motions at 7-8). The trial court declined to rule on the motion until trial. Id. at 9.

Following a jury trial, Petitioner was convicted on both counts in the indictment. Petitioner appealed his conviction to the Appellate Division, Fourth Department, arguing that (1) the trial court erred in denying a Darden hearing and a hearing to determine probable cause; (2) John Wesley was an accomplice, and the trial court should have instructed the jury that his testimony required corroboration; (3) he received ineffective assistance of counsel because counsel failed to ask for an instruction regarding the corroboration of Wesley's testimony; (4) the trial court erred in failing to grant Petitioner's motion in limine to exclude uncharged crimes; (5) the trial court erred in its Sandoval ruling, affecting Petitioner's decision to testify; (6) the trial court abused its discretion in failing to grant Petitioner's motion to dismiss based on discrepancies in the testimony regarding the weight of the cocaine; and (7) his sentence should be modified in the interest of justice. See People v. Brown, 2 A.D.3d 1423 (4th Dept. 2003, Brief for Defendant-Appellant at 4-5. The Appellate Division unanimously affirmed his conviction, holding that the trial court properly denied a Darden hearing; the conviction was supported by legally sufficient evidence and testimonial inconsistencies are an issue of weight, not admissibility; the confidential informant was not an accomplice as a matter of law and therefore, corroboration was unnecessary; the court's curative instruction following testimony regarding uncharged crimes cured any error that may have occurred through the court's failure to rule on Petitioner's motion in limine; the sentence should not be reduced; and that Petitioner's remaining claims lacked merit. Brown, 2 A.D.3d at 1424-5. The New York State Court of Appeals denied further review. People v. Brown, 1 N.Y.3d 625 (N.Y. 2004).

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 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 ...


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