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Lockett v. Conway

November 16, 2009


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


I. Introduction

Pro se petitioner Jack Lockett ("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 April 18, 2001, in New York State, County Court, Erie County, convicting him, after a jury trial of Attempted Assault in the First Degree (N.Y. Penal Law ("Penal Law") §§ 110, 120.10[1]), two counts of Burglary in the First Degree (Penal Law § 140.30[2], [3]), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1], Menacing in the Second Degree (Penal Law § 120.14[1]), two counts of Criminal Contempt in the First Degree (Penal Law § 215.51[b][iii][iv]), Tampering with a Witness in the Third Degree (Penal Law § 215.11[1]), and Aggravated Harassment in the Second Degree (Penal Law § 240.30).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

Petitioner and Diana Everett ("Diana" or "the victim") lived together for over 25 years and had a 21 year old son, who lived with Petitioner. Trial Transcript [T.T.] of 02/06/01 57-58. In the summer of 2000, Diana left Petitioner and moved in with her sister, Patricia Everett, at 37 Harvard Place ("the premises" or "37 Harvard Place"). The premises was owned by Petitioner's mother. T.T. of 02/06/01 58-68, 153-156. On August 7, 2000, Petitioner worked in the basement at the premises as a handyman for his mother. T.T. of 02/06/01 64-69, 154-155. Diana was alone in the house, as Patricia was out of town. T.T. of 02/06/01 59, 155-156. At about 6:00 p.m., Petitioner arrived at the premises and called Diana out onto the front porch, trying to convince her to come back to him. Diana told Petitioner that the relationship was over, and Petitioner eventually left the premises. T.T. of 02/06/01 66, 114. Diana ate dinner that evening, watched television, and went to bed. At about 2:30 a.m., Diana was awakened by noises and discovered Petitioner in her bedroom. Petitioner got on top of Diana and told her he was there to cut her throat, and that he had killed before. Petitioner punched Diana, slashed her several times with a knife, and repeatedly told her he was going to kill her and also threatened to kill her father. T.T. of 02/06/01 72-77, 145-147. Diana struggled with Petitioner as he demanded a reason for him to let her live. Diana begged for her life, telling Petitioner that her son needed her. Petitioner eventually relented and left the premises, but, on his way out, threatened to kill Diana if she called the police. T.T. of 02/06/01 76-78.

Diana called her sister, Jackie Everett, who called the police and other family members. T.T. of 02/06/01 78-81, 162-169, 175. An ambulance arrived and transported Diana to Erie County Medical Center where she was treated for multiple defensive knife wounds on her hands, and various other wounds on her arms, thighs and head. T.T. of 02/06/01 84-86, 93-96; T.T. of 02/08/01 271-76, 296-302.

Defendant was arrested at his home at about 5:00 a.m. T.T. of 02/08/01 235-238.

Diana received a no-contact order of protection against Petitioner barring him from any contact with her. T.T. of 02/06/01 100-102. Despite the court order, Petitioner called her at work on September 5, 2000 four times, making threatening remarks and asking her if she was going to pursue the charges against him. T.T. of 02/06/01 102-105. After the fourth call, Diana called the authorities. T.T. of 02/06/01 105-06.

On February 6, 2001, a jury trial commenced. Petitioner testified to the following: that he entered the premises with a master key for purposes of getting a water damaged ceiling tile that he had noticed the day before; that, upon entering the premises, he looked to see where Diana was sleeping and discovered her in bed with another man; that he and Petitioner argued in the doorway to the bedroom to the room and that he held the knife high as they argued; that he did not threaten to kill her or slit her throat; that Diana grabbed at his wrist and arms to get the knife away from him; that he did not know anything about the injuries sustained to Diana's head or leg; that he dropped the knife in the bushes when he saw police got out of their car; and that he placed calls to Diana at work, but did not threaten her. T.T. of 02/08/01 330-341, 342-45, 354, 363, 388, 410. At the close of the trial, Petitioner was found guilty on nine counts of the indictment. He was sentenced as a second felony offender to two twenty year terms of imprisonment on the burglary convictions, fifteen years on the attempted assault conviction, and to lesser concurrent terms on the remaining convictions.

Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed on November 21, 2003. People v. Lockett, 1 A.D.3d 932 (4th Dep't. 2003). Petitioner sought leave to appeal to the New Court of Appeals, which was denied on February 26, 2004. People v. Lockett, 1 N.Y.3d 630 (2004).

On May 18, 2005, Petitioner filed an application for a writ of error coram nobis, which was summarily denied on September 30, 2005. People v. Lockett, 21 A.D.3d 1443 (2005). Petitioner sought leave to appeal the denial by the Appellate Division, Fourth Department, which was denied on November 29, 2005. People v. Lockett, 5 N.Y.3d 883 (2005).

This habeas petition followed, wherein Petitioner raises the following three grounds for relief: ineffective assistance of appellate counsel, deprivation of the right to be present at material stages of the ...

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