The opinion of the court was delivered by: Hon. Michael A. Telesca United States District Judge
Pro se Petitioner Leonard Conner ("Petitioner") filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of two counts of Robbery in the First Degree (New York Penal Law ("Penal Law") § 160.15, ) and two counts of Burglary in the First Degree (Penal Law § 140.30, ) entered August 19, 2003, in Wayne County Court, following a bench trial before the Honorable John B. Nesbitt.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
On November 4, 2002, Petitioner, along with three other men, armed with shotguns, broke into an apartment in the Village of Sodus, Wayne County, threatened the occupants with their guns, and stole a purse containing approximately $800 in cash. Rolanda Jones ("Rolanda") and her cousin Lakeisha Jones ("Lakeisha") were in the apartment with two young children at the time. Rolanda called 911 immediately after the men left, describing the perpetrators and their getaway vehicle, a white Chevrolet Blazer. New York State Troopers Michael J. Page ("Page") and Scott Sheppard ("Sheppard") heard the 911 dispatch and, shortly thereafter, spotted a vehicle matching the description that had been broadcast. The officers followed the vehicle, which ultimately turned onto a side street and was abandoned. Trial Transcript [T.T.] 46-48, 64, 95-116.
The officers found the vehicle empty, with the doors open and the engine running. When Sheppard went to secure the vehicle, he found money strewn on the floorboard, a lady's handbag wedged between the rear seat and open door, and a shotgun in the back seat. Sheppard also found a backpack at the side of the road, approximately 500 feet from the vehicle, that contained two shotgun shells. T.T. 50-73. Shortly thereafter, officers encountered Petitioner sitting on the steps of a house about 100 yards away. His pants were wet and muddy. T.T. 81-94. When Petitioner was questioned by the officers regarding his whereabouts and why his pants were wet, he stated, among other things, that he did not know why his pants were wet and that he had been "cracking" at an acquaintance's house. He was thereafter taken into custody and arrested. Petitioner's clothes and papers were later found inside the vehicle. T.T. 61-82, 90-91.
After Petitioner's arrest, officers took him to Rolanda's apartment where, after Rolanda viewed Petitioner sitting in the back of the police car in handcuffs, she identified him as one of the perpetrators ("the show-up"). Lakeisha also viewed Petitioner in the same show-up, but could not identify him as one of the perpetrators.*fn1 T.T. 24-28, 95-107.
On November 19, 2002, under Wayne County Indictment No. 02-118, a grand jury indicted Petitioner on two counts of robbery in the first degree and two counts of burglary in the first degree.
Prior to trial, a suppression hearing was held, wherein Petitioner sought to suppress any statements, physical evidence or identification evidence. See Suppression Hr'g. Transcript of 01/27/03 and 01/31/03. In a ruling from the bench, the court determined that Petitioner's initial seizure was based upon reasonable suspicion and that his arrest was based upon probable cause. The court suppressed the statements made by Petitioner after he was taken into custody, but before his Miranda warnings at the time of his arrest, but otherwise admitted statements made before and after that time frame. The court found that the seizure of Petitioner's property was constitutionally sound. The court also suppressed the show-up identification by Rolanda as unduly suggestive, but ruled her identification of Petitioner apart from the show-up would be admissible at trial insomuch as it was "confirmatory" in nature. See Decision of the Wayne County Court, Ind. No. 02-118, dated 03/25/03, Pages 3-8.
On June 2, 2003, Petitioner waived his right to a trial by jury, and, on June 16, 2003, a bench trial occurred before the Honorable John B. Nesbitt. Petitioner testified in his own defense.
On June 17, 2003, the court found Petitioner guilty of all counts charged in the indictment. On August 19, 2003, he was adjudicated a second felony offender and was sentenced to concurrent, determinate terms of sixteen years imprisonment and five years post-release supervision. Sentencing Minutes 11-12.
Shortly thereafter, Petitioner moved, pursuant to New York Criminal Procedure Law ("CPL") § 440 to set aside his conviction. See Petitioner's CPL § 440 motion (Respondent's Exhibit J, Pages 100-127). Pursuant to CPL § 440.10(2)(b), the trial court denied Petitioner's motion. See Letter Decision from the Honorable John B. Nesbitt, dated 11/12/03 (Respondent's Exhibit J, Page 130). Petitioner appealed the trial court's denial, which was denied by the Appellate Division, Fourth Department on April 5, 2004. See Decision of the Appellate Division, Fourth Department, Ind. No. 02-118, dated 04/05/04.
Petitioner then appealed his judgment of conviction to the Appellate Division, Fourth Department, raising the following issues: (1) the trial court erred when it failed to suppress evidence seized after Petitioner's illegal arrest; (2) improper/inadequate court identification; (3) the verdict was against the weight of the evidence; and (4) harsh and severe sentence. See Petitioner's Brief on Appeal, Points I-IV.
Petitioner also filed a pro se supplemental brief, raising several new claims and supplementing the claims raised in his appellate counsel's brief. See Petitioner's Pro Se Brief on Appeal, Pages 2-55. Petitioner's judgment of conviction was unanimously affirmed. People v. Conner, 15 A.D.3d 843 (4th Dept. 2005); lv. denied, 4 N.Y.3d 885 (2005).
On December 20, 2005, Petitioner filed a motion for a writ of error coram nobis with the Appellate Division, Fourth Department, alleging that he received ineffective assistance of appellate counsel. See Petitioner's Motion for a Writ of Error Coram Nobis, dated 12/20/05. The Appellate Division, Fourth Department summarily denied Petitioner's motion on April 28, 2006. People v. Conner, 28 A.D.3d 1256 (4th Dept. 2006). Petitioner appealed the denial, which was denied by the New York Court of Appeals on September 29, 2006. People v. Conner, 7 N.Y.3d 847 (2006).
On April 12, 2006, Petitioner filed a second CPL § 440 motion, wherein he challenged the propriety/adequacy of the show-up identification procedure and subsequent in-court identifications. See Petitioner's CPL § 440 motion, dated 04/12/06; Petitioner's Rebuttal, dated 05/26/06. The trial court denied Petitioner's motion on procedural grounds pursuant to § 440.10(2)(a) and (c). See Memorandum Decision of the Wayne County Court, Ind. No. 02-118, dated 06/28/06, Page 2. Petitioner appealed the denial to the Appellate Division, Fourth Department, which was denied on April 22, 2007. See Decision of the Appellate Division, Fourth Department, Ind. No. 02-118, dated 04/22/07.
The instant habeas petition followed, wherein Petitioner seeks relief on the following grounds: (1) the trial court should have suppressed evidence seized after Petitioner's illegal arrest; (2) improper/inadequate identification; (3) deficiencies in the grand jury proceeding; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel. See Petition [Pet.] ¶A-D and Attachments [Attach.] (Dkt. #1); Traverse [Trav.] (Dkt. #15).
III. General Principles Applicable to ...