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Evans v. Giambruno

March 16, 2010

JAMES EVANS, PETITIONER,
v.
MICHAEL GIAMBRUNO, RESPONDENT.



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

ORDER

I. Introduction

Petitioner, James Evans ("petitioner"), represented by counsel, challenges his conviction in Ontario County Court of Criminal Possession of a Controlled Substance in the Third, Fourth, and Fifth Degrees (N.Y. Penal Law §§ 220.16(1), 220.09(1), 220.06(1)); Criminally Using Drug Paraphernalia in the Second Degree, (Penal L. § 220.50(3)); Unlawful Possession of Marijuana (Penal L. § 221.05); and Harassment in the Second Degree (Penal L. § 240.26(1)). Petitioner was convicted after a jury trial before Judge James Harvey, and was subsequently sentenced as a second felony offender to an aggregate sentence of eight to sixteen years in prison. Sentencing Tr. 7-8.

II. Factual Background and Procedural History

A. Arrest and Trial

Sometime after 11:00 p.m. on April 29, 2003, Ontario County Sheriff's Deputies were dispatched to 1915 Bennett Road in the Town of East Bloomfield after a woman dialed 911, called for help, and then hung up. T. 150-51, 180.*fn1 Shortly after the deputies arrived, petitioner pulled into the driveway of the residence, and told the police he was looking for his girlfriend, Amy. T. 152-53, 180. He explained that he and Amy had an argument earlier in the evening, and that she ran from his vehicle. T. 153-54. Petitioner led police to another vehicle that was parked at the house, to see if Amy had left her purse there. T. 155, 160. When petitioner opened the door and the dome light illuminated, Deputy Cathleen Habberfield ("Habberfield") observed a plastic bag of cocaine on the dashboard.

T. 155. Habberfield searched the truck and recovered more cocaine, marijuana, and marijuana pipes. T. 158, 165. At that time, Deputy Christopher Drake ("Drake") handcuffed petitioner and read him his Miranda rights. T. 163, 184. Shortly afterward, Amy called petitioner's cell phone. Drake spoke to the woman, and asked her to come to the house. Amy was uncooperative and refused. T. 187, 201. Thereafter, the officers heard movement and a dog barking inside the house, and petitioner told the deputies that Amy could be inside. The deputies then entered petitioner's house using his keys. T. 165-66, 175, 188. Although they did not find Amy, Drake found a triple-beam scale with cocaine on it. The deputies then stopped searching and secured the house until a search warrant could be obtained. T. 188-90.

Approximately two hours later, as Investigator Brad Falke arrived to begin writing the request for a search warrant, Amy returned to the house on Bennett Road. It appeared as though she had been in a fight, and had a black eye. T. 166, 190. Amy refused to answer questions about her injuries, or the drugs found in the house and in the vehicles. T. 234-35.

After obtaining the search warrant, deputies recovered beakers, a mason jar containing marijuana, small plastic resealable bags, a large bundle of cash, plastic bags containing mushrooms, and two books about growing and selling drugs in addition to the cocaine, the scale, the marijuana, and the marijuana paraphernalia. T. 235, 237-38, 242, 246-49, 250-53, 256-58, 263.

Petitioner was arrested and charged in Ontario County Court. Petitioner filed a motion to suppress his statements, as well as the evidence seized pursuant to the search warrant issued for his house and vehicle. Judge Harvey held a hearing on that motion, and issued a Decision and Order on December 31, 2003, denying the motion to suppress. A jury trial was then held over two days. Petitioner presented defense witnesses and also testified on his own behalf at trial, conceding that he possessed the drugs, but that they were for personal use and, due to the minimal amount of drugs actually seized, he could not be guilty of the more serious crime of selling drugs. The jury ultimately convicted petitioner of all counts in the indictment. T. 442-43.

B. Direct Appeal

Through counsel, petitioner filed a brief in the Appellate Division, Fourth Department, arguing that: (1) the trial court erroneously denied petitioner's suppression motion; (2) judicial bias in the suppression hearing; (3) the court improperly admitted evidence of uncharged crimes; (4) prosecutorial misconduct; (5) harsh and excessive sentence; and (6) the verdict was against the weight of the evidence. See Respondent's Exhibit ("Ex.") A. (Dkt. #13). The Appellate Division unanimously affirmed petitioner's conviction. People v. Evans, 21 A.D.3d 1317 (4th Dept. 2005); lv. denied, 6 N.Y. 3d 775 (2006).

C. Post-Conviction Relief

Petitioner then filed a motion in Ontario County court to set aside the judgment of conviction and to reduce the sentence pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10/440.20, arguing that: (1) the evidence seized from the search of petitioner's vehicles and house should have been suppressed; and (2) the trial judge was biased against the petitioner during plea negotiations and in sentencing. Ex. H. The Supreme Court denied petitioner's motion on procedural grounds. See Decision and Order, No. 03-04-090, dated 1/12/2007; Ex. I. Leave was denied by the Appellate Division, Fourth Department on July 21, 2008. Ex. K. Petitioner then submitted a second § 440.10/440.20 motion to set aside the judgment of conviction and to reduce his sentence on the grounds that: (1) trial counsel was ineffective for failing to object to the judge's alleged bias during plea negotiations; and (2) petitioner was denied due process because of judicial bias throughout the pre-trial and trial proceedings. Ex. L. Pursuant to C.P.L. § 440.10(3)(c), the state court summarily denied the motion. See Decision and Order, No. 03-04-090, dated 3/1/2007; Ex. N. Leave to appeal that denial was denied on June 19, 2007. Ex. P.

Finally, petitioner submitted an application for writ of error coram nobis to the Appellate Division, Fourth Department. Ex. Q. That application was also denied. People v. Evans, 38 A.D.3d 1369 (4th Dept.); lv. denied, 9 N.Y.3d 864 (2007).

D. Petition for Habeas Corpus

Through counsel, petitioner filed a timely petition for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254. Therein, petitioner raised the following grounds for relief: (1) the trial court erroneously denied petitioner's suppression motion; (2) the sentence imposed was excessive, disproportionate, and vindictive; (3) judicial bias; (4) ineffective assistance of counsel; (5) improper admission of uncharged crimes at trial; (6) insufficient evidence of petitioner's intent to sell drugs; and (7) prosecutorial misconduct during summation. Petition ("Pet.") 1-34, Petitioner's ("Pet'r") Mem. 35-75. (Dkt. #1). For the reasons that follow, the petition for habeas corpus is denied at the action is dismissed.

III. Discussion

A. General Principles Applicable to Federal ...


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