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Igbinosun v. State

December 9, 2009

FERGUSON IGBINOSUN, PETITIONER,
v.
STATE OF NEW YORK, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se*fn1 petitioner Ferguson Igbinosun ("Ferguson Igbinosun" or "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 28, 2004, in New York State, County Court, Genesee County, convicting him, after a jury trial, of one count of Grand Larceny in the Third Degree (N.Y. Penal Law ("Penal Law") § 155.35) and five counts of Criminal Possession of a Forged Instrument in the Second Degree (Penal Law § 170.25).

For the reasons stated below, the writ is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. Introduction

In early 2003, Petitioner opened two checking accounts at different banks in different names and deposited approximately $100 in each. He presented various forms of false identification when opening these accounts. Petitioner then wrote a $5,000 check from one account and deposited it into another. Before the bank realized that there were insufficient funds in the account to cover this check, Petitioner cashed three checks totaling approximately $4,300.

Petitioner was charged by a Genesee County Grand Jury with one count of Grand Larceny in the Third Degree and five counts of Criminal Possession of a Forged Instrument in the Second Degree. Petitioner proceeded to trial on March 8, 2004.

B. The Trial

1. The People's Case

On January 7, Petitioner opened a checking account at the Bank of Castile under the name of Tyrone Barnes ("Barnes"). Petitioner provided the bank with the address 620 Fargo Avenue in Buffalo, presented a New York State ID card bearing this name and Petitioner's photograph, and provided a social security number.*fn2 Petitioner signed the name Barnes to the opening deposit agreement and deposited $100 into the account. Trial Transcript [T.T.] 282-85, 295, 430.

On March 11, 2003, Petitioner opened a checking account at the Community Bank in the name of Derrick T. Mitchell ("Mitchell"). Petitioner gave the bank a social security number*fn3 and provided a New York State ID and a Niagara Community College ID bearing this name to open the account. Petitioner deposited $100 into the account. T.T. 303-08.

On March 26, 2003, a check in the amount of $5,000 was drawn from the Mitchell account and deposited into the Barnes account. On March 27, 2003, three checks were written from the Barnes account and were made out to Barnes. These checks were cashed at three different branches of the Bank of Castile. On March 28, 2003, the $5,000 check was returned to the Community Bank when it was discovered that there was only $120 in the account. The $5,000 check was not honored and the Bank of Castile suffered the loss. T.T. 286-90, 308-09, 431-34.

Steven K. Roney ("Roney"), a special agent with the United States Immigration and Customs Enforcement Agency*fn4, testified that on June 4, 2003 he observed Petitioner leaving a residence located at 620 Fargo Avenue in Buffalo. Roney stopped Petitioner's vehicle and arrested him. Petitioner produced two forms of ID in his own name. Business cards from the Bank of Castile and First Niagara Bank were found in his pockets. The name Mitchell was written on the Bank of Castile card, accompanied by an account number. T.T. 311-14, 317, 326-33.

The lower apartment at 620 Fargo Avenue and an upper apartment at 91 Butler Avenue were searched. A utility bill in Petitioner's name addressed to the Butler Avenue address and various other documents in Petitioner's name were found in the Fargo Avenue residence. The following items were found in the Butler Avenue residence: (1) a New York State ID card in the name of Barnes, which matched the photocopy of the ID card presented to the Bank of Castile; (2) a University at Buffalo ID card in the name of Barnes; (3) a Niagara Community College ID card in the name of Mitchell; and (4) various items bearing Petitioner's name. T.T. 314-15, 347-54.

Four photo images from New York State drivers license applications were admitted into evidence bearing the names Mitchell, Barnes, Calvin Walker and Ferguson Igbinosun. Senior Department of Motor Vehicles ("DMV") Investigator Ryan Lang testified that he believed the four individuals ...


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