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Kirton v. Ercole

October 28, 2009

DAVID KIRTON, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION AND ORDER

I. Background

A. State Court Proceedings

According to the evidence adduced at trial, at about 4:15 p.m. on May 11, 2000, two robbers, wearing dark clothing with their faces obstructed by a ski mask or a hood, entered the London Plaza branch office of Trustco Bank in the City of Albany and brandished firearms. See Transcript of Trial of David Kirton (4/23/01) ("Trial Tr.") at pp. 92-93, 273-75. One of the men directed a bank teller to put money into a bag as the other yelled at customers in the bank to get onto the floor. Id. at p. 274. Teller J. Nielsen placed a quantity of currency, including $50.00 dollars in "bait money" or pre-recorded single dollar bills, in one of the perpetrator's bags. Id. at pp. 111-112. Additionally, during the course of the robbery, one of the bank's employees activated the bank's silent alarm. Id. at pp. 169-70. John Hourigan ("Hourigan"), who observed the robbery from outside the bank, called 911 on his cell phone. id. at pp. 133-35. Hourigan testified that on that day, he observed two armed, black, male robbers enter the bank and soon thereafter leave the establishment. He observed the suspects enter a bronze-colored Acura, where a third black male was waiting in the driver's seat. The car then left the scene. Id. at pp. 135-42.

New York State Police Trooper Joseph Germano ("Trooper Germano"), was on duty on May 11, 2000, when he received a radio communication about the bank robbery, as well as a description of the suspects' car. Id. at pp. 219-20. Soon thereafter, he observed three black males in a bronze-colored Acura traveling Northbound on Route 787. Id. at pp. 223-24. Trooper Germano followed the Acura in his marked police Jeep. During the pursuit, he observed one of the occupants throw a handgun out of the window by a grassy area near a local church. Id. at pp. 228-31. Thereafter, as the driver of the vehicle began to lose control of the car, an individual jumped out of the moving car. Id. at pp. 233-35. Trooper Germano continued to follow the Acura. The pursuit ended when the Acura collided with another car at a nearby intersection. Id. at p. 236. At the time, Trooper Germano saw two black men flee the Acura. Both men were dressed in white shirts and dark colored pants, one carrying a backpack, and the other wearing a stocking cap on his head. Id. at pp. 237-238. Trooper Germano radioed his location and pursued both suspects. Id. at p. 238. He eventually succeeded in stopping one of the two suspects, later identified as Elliot Horsey. Id. at pp. 241-44. Soon thereafter, New York State Trooper Charles McCabe ("Trooper McCabe"), who had heard the radio broadcast of the bank robbery as well as Trooper Germano's transmissions, saw petitioner, pro se David Kirton ("Kirton" or "petitioner") crouched behind a building in an area near the collision that involved the suspects' car. Id. at pp. 286-90. When McCabe asked Kirton to show his hands, he fled the area. Id. at pp. 290-91. Trooper McCabe pursued Kirton, however, and he was eventually stopped and placed under arrest. Id. at pp. 291-96. After Kirton was in custody, Trooper McCabe returned to the building where he had seen Kirton crouching. There, he discovered a handgun as well as a black bag containing $9,313.00 in cash which included the "bait money" with the pre-recorded serial numbers which the bank teller had provided to the robbers. Id. at pp. 300-03, 355-56.

The record also reflects that at the crash scene, Albany Police Department Detective Keith Carroll found a wallet in the Acura's glove compartment which contained Kirton's driver's license, and a registration card indicating that the car was registered to Kirton's mother, Leila G. Kirton. Id. at pp. 389-93.

As a result of what had occurred, on May 16, 2000, an Albany County grand jury returned a two count indictment against Kirton and the two other individuals who were apprehended in conjunction with the Trustco Bank robbery. See Indictment No. 14-6340 ("Indictment"). In the accusatory instrument, Kirton was charged with first degree robbery, contrary to N.Y. Penal L. § 160.15(2), and criminal use of a firearm in the first degree, in violation of N.Y. Penal L. § 265.09. Id.

On April 23, 2001, Kirton's jury trial on the foregoing charges commenced in Albany County Court with County Court Judge Dan Lamont presiding. After summations and the court's instructions to the jury, jury deliberations began. At the conclusion of deliberations, the jury found Kirton guilty of robbery in the first degree and criminal use of a firearm in the first degree. See Trial Tr. at pp. 618-21.

On November 8, 2001, Kirton was sentenced Kirton on the above convictions as a persistent violent felony offender. The sentence was an indeterminate term of imprisonment of twenty-five years to life on the robbery conviction, and a consecutive, determinate prison term of five years on the firearm conviction which resulted in an aggregate indeterminate sentence of thirty years to life. See Transcript of Sentencing of David Kirton (11/8/01) at pp. 15-17.

Kirton appealed the foregoing to the New York State Supreme Court, Appellate Division, Third Department. In the appellate brief, counsel argued that: (1) the trial court erred by not charging the jury with a lesser included offense; (2) Judge Lamont erred in denying Kirton's request for a mistrial after jury members observed him wearing jail-issued garb; (3) the County Court wrongfully denied Kirton's motion to dismiss the Indictment; (4) the trial court failed to adequately charge the jury; (5) Judge Lamont erroneously failed to grant a mistrial in light of the District Attorney's improper summation; (6) the County Court wrongfully denied Kirton's motion in limine; (7) the trial court erred in its Huntley*fn1 ruling; (8) Judge Lamont erred in sentencing Kirton as a violent persistent felony offender; (9) the County Court's Sandoval*fn2 ruling was erroneous; and (10) the sentence which was imposed was harsh and excessive. See Appellate Brief on Appeal (6/12/06) ("App. Br."). The District Attorney opposed the appeal, and in a Memorandum and Order filed on January 11, 2007, the Third Department affirmed Kirton's convictions and sentences. See People v. Kirton, 34 A.D.3d 1011 (3d Dept. 2007). Kirton's application for leave to appeal that decision was denied by New York's Court of Appeals. People v. Kirton, 8 N.Y.3d 947 (2007).

B. This Action

On July 3, 2008, petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this District. See Dkt. No. 1 ("Petition"). In that pleading, Kirton asserts numerous theories in support of his request for federal habeas intervention. Specifically, he argues that: (1) the trial court erred by not charging the jury with a lesser included offense and by providing "inadequate" instructions to the jury (id., Grounds One, Four); (2) Judge Lamont wrongfully denied two separate motions for a mistrial, and a motion to dismiss the Indictment, asserted by defense counsel (id., Grounds Two, Three, Five); (3) the trial court wrongfully denied a motion in limine filed by Kirton (id., Ground Six); (4) Judge Lamont's rulings following the Huntley and Sandoval hearings were erroneous (id., Grounds Seven, Nine); and (5) he was improperly sentenced as a violent persistent felony offender, and the aggregate sentence thereafter imposed on Kirton is harsh and excessive (id., Grounds Eight, Ten).

On December 11, 2008, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Kirton's petition and provided the Court with copies of state court records relating to his conviction. See Dkt. Nos. 10, 12. Respondent also filed a memorandum of law in opposition to the petition. See Dkt. No. 11 ("Resp. Mem."). In the memorandum, respondent claims that Kirton is procedurally barred from obtaining the relief he seeks as to some of his claims, and that all of his grounds for relief are without merit. Id.

This matter is now before the Court for disposition.

II. Discussion

A. Procedurally Barred Claims

As noted above, respondent claims that petitioner is procedurally barred from pursuing some of the grounds that he has asserted. See Resp. Mem. In support of this argument, respondent contends that Kirton has not fully exhausted the following claims in the state courts: (1) the trial court erred by not charging the jury with a lesser included offense; (2) Judge Lamont committed error in denying Kirton's motion in limine; and (3) the trial court improperly sentenced Kirton as a persistent violent felon. See Resp. Mem. at pp. 18-20.

It is well-settled that a federal district court " 'may not grant the habeas petition of a state prisoner unless it appears that the applicant has exhausted the remedies available in the courts of the State.... ' " Shabazz v. Artuz, 336 F.3d 154, 160 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001)); see also Hill v. Mance, 598 F.Supp.2d 371, 375 (W.D.N.Y. 2009). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (other citations omitted). As the Supreme Court noted in O'Sullivan, "[c]omity... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." Id., 526 U.S. at 844 (citations omitted); see also Galdamez, 394 F.3d at 72 (citation omitted).*fn3 Thus, this Court must determine whether Kirton has established that he has fully exhausted all of the above claims.*fn4

A petitioner exhausts available state remedies in the federal habeas context by: "(i) present[ing] the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts); and (ii) inform[ing] that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)). A "basic requirement" of this exhaustion doctrine is that "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (citation omitted); see also Berry v. Hulihan, No. 08 Civ. 6557, 2009 WL 233981, at *2 (S.D.N.Y. Jan. 28, 2009) (citations omitted); Jackson v. Senkowski, No. 03 CV 1965, 2007 WL 2275848, at *5 (E.D.N.Y. Aug. 7, 2007). A "state prisoner does not 'fairly present' a claim to a state court" where the appellate brief "does not alert [the court] to the presence of a federal claim...." Baldwin v. Reese, 541 U.S. 27, 32 (2004); see also Williams v. Breslin, No. 06-CV-2479, 2008 WL 4179475, at *3 (E.D.N.Y. Sept. 9, 2008) (citing Baldwin).

In asserting petitioner's claims challenging Judge Lamont's decision which denied Kirton's request that the jury be charged with a lesser included offense, as well as that court's decision that denied his motion in limine, appellate counsel only cited cases decided by New York state courts, and provisions of New York's Criminal Procedure Law ("CPL"), in support of those appellate claims. See App. Br., Points I, VI. Petitioner's appellate claim challenging the propriety of his being sentenced as a persistent felony offender similarly failed to cite, or refer in any way, to any federal case, statute or provision of the United States Constitution. See id., Point VIII. Petitioner has therefore failed to fairly present to the state courts the federal habeas claims he now asserts. E.g. Baldwin, 541 U.S. at 32.

When a claim has not been fully exhausted by a habeas petitioner, a federal court may find that there is an absence of available state remedies "if it is clear that the unexhausted claim is procedurally barred by state law, and as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000).*fn5 Therefore, this Court must determine whether it would be futile for Kirton to present any of the above-mentioned claims to the state courts.

Petitioner cannot now pursue any of these arguments through another appeal to the Third Department because a defendant is "entitled to one (and only one) appeal to the Appellate Division." See Aparicio, 269 F.3d at 91 (citations omitted). Moreover, since "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal," id. (citing CPL § 440.10(2)(c)), petitioner could not now properly raise these claims, all of which are clearly based on the record, in a motion to vacate his judgment of conviction pursuant to CPL § 440.10. See Aparicio, 269 F.3d at 91; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Therefore, the above claims are "deemed exhausted" for purposes of Kirton's habeas application. St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). Although these claims are "deemed exhausted," they are procedurally defaulted. See Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)); see also Ciochenda v. Artus, No. 06 Civ. 5057, 2009 WL 1026018, at *5 (S.D.N.Y. Apr. 9, 2009) (unexhausted claims which petitioner can no longer pursue in state court are procedurally forfeited).

Federal courts may only consider the merits of procedurally defaulted claims where the petitioner can establish both cause for the procedural default and resulting prejudice, or alternatively, that a fundamental miscarriage of justice would occur absent federal court review.*fn6 See Dixon, 293 F.3d at 80-81 (citing Coleman); St. Helen 374 F.3d at 184 ("[i]n the case of procedural default (including where an unexhausted claim no longer can proceed in state court), [federal courts] may reach the merits of the claim 'only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent' ") (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)) (other citations omitted); Parker v. Phillips, No. 05-CV-1323, 2008 WL 4415255, at *3 (E.D.N.Y. Sept. 24, 2008) (federal courts may only consider procedurally barred claims where the petitioner establishes cause for his default and prejudice therefrom, or that he is actually innocent of the crime of which he was convicted).

To establish legal "cause" which would enable this Court to consider his procedurally forfeited claims, Kirton must show that some objective, external factor impeded his ability to fully exhaust his claims. See Coleman, 501 U.S. at 753; Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999); Pinero v. Greiner, No. 01 CIV. 9991, 2007 WL 2712496, at *21 (S.D.N.Y. Sept. 17, 2007) (citing Restrepo). Examples of such external factors include "interference by officials," ineffective assistance of counsel, or proof that "the factual or legal basis for a claim was not reasonably available" at the time of petitioner's default. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Ikker v. Taylor, No. 08 CV 3301, 2008 WL 5110866, at *4 (E.D.N.Y. Dec. 3, 2008), appeal dismissed, Ikker v. Taylor, No.09-0090-pr (2d Cir. Apr. 17, 2009).

Nowhere in this action does Kirton attempt to establish legal cause for the procedural defaults detailed ante.*fn7 Significantly, he has never claimed, in any state proceeding, that appellate counsel rendered ineffective assistance by failing to assert his defaulted claims in federal terms. E.g., Petition at ¶ 10 (petitioner indicating that he has not filed any collateral challenges to his conviction). Since Kirton has not demonstrated legal cause for his procedural defaults, this Court need not consider whether he has suffered the requisite prejudice, because federal habeas relief is unavailable under this limited exception permitting review of procedurally forfeited claims unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Long v. Lord, No. 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. Mar. 21, 2006) (McCurn, S.J.); D'Alessandro v. Fischer, ...


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