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Colon v. Conway

January 7, 2010

HECTOR COLON, 03-B-1108, PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Hector Colon ("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 Attempted Murder in Second Degree (N.Y. Penal L. §§ 110.00, 125.25[1]), Criminal Possession of a Weapon in the Second Degree (former Penal L. § 265.03[2]), and Reckless Endangerment in the First Degree (Penal L. § 120.25). Following a jury trial before Justice Joseph Forma, petitioner was found guilty and was subsequently sentenced to concurrent prison terms of fifteen years each for the attempted murder and weapon possession convictions, and two and one-third to seven years on the reckless endangerment conviction.

II. Factual Background and Procedural History

On May 30, 2002, Melkertricx Jackson ("the victim") was driving with his infant daughter in the west side of Buffalo when petitioner shot at the victim through the rear windshield of the car. T. 94, 96, 98, 154-55, 159.*fn1 The victim testified that he knew petitioner. T. 106. When the police attempted to arrest petitioner at his home, they observed him run into a house on Normal Avenue.

T. 198. He later told police that he knew he was wanted for something "real bad." T. 208. Petitioner did not testify at trial, or present any witnesses.

Following his conviction, petitioner appealed, through counsel, to the Appellate Division, Fourth Department, which unanimously affirmed his conviction. People v. Colon, 13 A.D.3d 1198 (4th Dept. 2004). In a memorandum decision, the Fourth Department rejected the following claims on procedural grounds and on the merits: (1) that the conviction was against the weight of the evidence; (2) the trial court erred in delivering its pre-trial instructions to jurors; (3) the trial court should have granted a mistrial based on testimony regarding a pre-trial photographic array; (4) the trial court erred in admitting a photograph of the victim's daughter; (5) the trial court erred in admitting evidence of prior bad acts; and (6) the sentence was harsh and excessive. See Petitioner's ("Pet'r") Appellate Br. Leave to appeal was denied by the New York Court of Appeals. Colon, 4 N.Y.3d 829 (2005).

Petitioner then sought habeas relief in this Court pursuant to 28 U.S.C. § 2254. In the instant petition, he raises the same six grounds as he did on appeal.*fn2 See Petition ("Pet.") ¶ 22(A)-(F). (Dkt. #1). For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief, and the action is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. 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 state court conviction either (1) "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 (2) if it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

28 U.S.C. § 2254(d)(2).

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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