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Nance v. Conway

January 26, 2010

ALEX NANCE, 01-B-0757, PETITIONER,
v.
JAMES T. CONWAY, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Alex Nance ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on March 14, 2001, of two counts of Murder in the Second Degree (N.Y. Penal L. § 125.25(1), (3)), and one count each of Robbery in the First Degree (Penal L. § 160.15(1)) and Intimidating a Witness in the Third Degree (Penal L. § 215.15(1)). Following a jury trial in Erie County Court before Judge Shelia DiTullio, petitioner was sentenced as a second felony offender to an aggregate term of incarceration of twenty-seven years to life. Sentencing Mins at 9-10.

II. Factual Background and Procedural History

Petitioner's conviction arises out of the beating death of Gary Trzaska ("the victim") in the vicinity of Broadway Street and Titus Avenue in Buffalo, New York.

On or about October 2, 1998, three cousins, petitioner, William Nance ("Nance"), and Lorenzo Jones ("Jones"), walked to another cousin's house to "get some money" for drinks. T. 347-58.*fn1 On the way, they encountered the victim walking across the street in their direction. According to Nance*fn2 , petitioner initially punched the victim. T. 361-62. When the victim fell to the ground, he was repeatedly kicked by all three men in his head and body. T. 362-64. During the beating, petitioner dragged a set of three connected chairs from outside of a laundromat, which Jones raised up and forcefully threw onto the victim's head. Petitioner and Jones then continued to jump on the victim. T. 367. After the beating, Nance observed petitioner reach into the victim's pockets and remove something. T. 369.

In addition to Nance's testimony, three witnesses testified that petitioner confessed to the crime. T. 61, 67, 509, 513-15, 613-14, 618. The prosecution also presented four witnesses that observed the victim being beaten. T. 85-87, 89, 236-37, 240-41, 245, 288-96. Petitioner did not testify at trial.

Through counsel, petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, raising the following points:

(1) ineffective assistance of trial counsel;

(2) the admission of television cameras in the courtroom deprived petitioner of a fair trial;

(3) the prosecution committed a Rosario violation;

(4) the conviction was against the weight of the evidence; and

(5) the sentence was harsh and excessive. See Petitioner's ("Pet'r") Appellate Br. 18-67. The Fourth Department unanimously affirmed the conviction. People v. Nance, 2 A.D.3d 1473 (4th Dept. 2003); lv. denied 2 N.Y.3d 764 (2004).

While his direct appeal was pending, petitioner sought to vacate his conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10 on the grounds of ineffective assistance of counsel and that the prosecution failed to turn over Rosario / Brady material to the defense. The county court denied that motion without a hearing. See Memorandum and Order, No. 98-2415-002 dated 12/2/2003. Leave to appeal that denial was denied by the Appellate Division on May 12, 2005.

On June 12, 2004, petitioner filed a second C.P.L. § 440.10 motion alleging that the court erred in submitting inconsistent counts of murder to the jury*fn3 , and that his attorney failed to object to that submission. The county court denied petitioner's motion as moot and on procedural grounds. See Memorandum and Order, No. 98-2415-002 dated 1/4/2005. Leave to appeal was denied on May 12, 2005.

By motion for a writ of error coram nobis, petitioner alleged that his appellate counsel did not afford him effective representation. The Fourth Department denied that motion, Nance, 26 A.D.3d 902 (4th Dept.), and leave to appeal its denial was denied by the New York Court of Appeals. 7 N.Y.3d 760 (2006).

Petitioner then filed a timely petition for writ habeas corpus pursuant to 28 U.S.C. § 2254, raising the following claims: (1) ineffective assistance of trial counsel; (2) the admission of television cameras in the courtroom deprived petitioner of his right to a fair trial; (3) the prosecution committed a Rosario/Brady violation; (4) insufficiency of the evidence; and (5) the prosecution knowingly used false testimony at trial. See Petition ("Pet.") at Attach. 5-10; Pet'r Mem. 1-14. (Dkt. ## 1, 15).

For the reasons that follow, the petition is denied and the ...


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