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Ball v. Conway

December 31, 2009

WALTER BALL, PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT OF ATTICA CORRECTIONAL FACILITY RESPONDENT.



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

ORDER

I. Introduction

Petitioner Walter Ball ("petitioner") filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Supreme Court of Murder in the Second Degree (N.Y. Penal Law § § 125.25[1], 20.00) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]).

II. Factual Background and Procedural History

Petitioner's conviction arose from his participation in the shooting of Jayson White on March 30, 2000 in the City of Buffalo. Petitioner, while in the backseat of a car carrying two accomplices, fatally shot the victim, who was targeted as a member of a rival street gang.

Following a jury trial before Justice Russell Buscaglia, petitioner was convicted and sentenced to an indeterminate term of imprisonment of twenty-five years to life on the murder conviction and a concurrent, determinate term of fifteen years on the weapon possession conviction to be followed by five years of post-release supervision.

Petitioner appealed, through counsel, to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Ball, 11 A.D.3d 904 (4th Dept. 2004), lv. denied 3 N.Y.3d 755 (2004). On direct appeal, petitioner raised the following issues: (1) that the prosecutor committed a Batson violation; (2) the convictions were not supported by legally sufficient evidence of accomplice corroboration; (3) the prosecution did not disclose the identities of trial witnesses prior to the Wade hearing; (4) prosecutorial misconduct on summation; and (5) the sentence imposed was harsh and excessive. See Petitioner's Appellate Br.; Respondent's Ex. B.

Petitioner then filed a petition for habeas corpus under 28 U.S.C. § 2254 with this Court, raising the same five claims as he did on direct appeal. (Dkt. #1). The respondent has filed an answer, memorandum of law, and accompanying exhibits. (Dkt. ##6,7). For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief.

III. Discussion

A. General Principles

1. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

2. Exhaustion Requirement

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly ...


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