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Switzer v. Graham

April 16, 2010

BENJAMIN SWITZER, PETITIONER,
v.
H.D. GRAHAM, SUPERINTENDENT, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Benjamin Switzer ("petitioner"), proceeding pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court of four counts of Murder in the First Degree (N.Y. Penal L. § 125.27(1)(a)(vii), (viii)), two counts of Murder in the Second Degree (Penal L. § 125.25(3)), and two counts of Attempted Robbery in the First Degree (Penal L. §§ 110.00, 160.15(2)). Following a jury trial before Judge Patricia Marks, petitioner's judgment of conviction was entered on June 26, 2001. He was sentenced to various terms of imprisonment, the longest of which being life without parole.

II. Factual Background and Procedural History

The charges against petitioner stemmed from the murder of two men during the course of an attempted armed robbery on Columbia Avenue in Rochester, New York in April of 2000.

Through counsel, petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, raising three points for review: (1) the sentences violated N.Y. Penal L. § 70.25(2); (2) the verdict was against the weight of the evidence; and (3) the sentence was harsh and excessive. See Respondent's Appendix ("Appx.") A. The Fourth Department unanimously the judgment of conviction. People v. Switzer, 15 A.D.3d 913, 788 (4th Dept.); lv. denied, 5 N.Y.3d 770 (2005).

Petitioner then filed a timely petition ("Pet.") for writ of habeas corpus raising the same grounds as he did on direct appeal. (Dkt. #4). On December 22, 2008, petitioner filed a motion to stay his habeas petition in order to exhaust his remedies in state court, which was granted by this Court on January 1, 2009. (Dkt. ##12, 15). While petitioner's habeas proceedings were stayed, he filed a motion to vacate his sentence in Monroe County Court pursuant to N.Y. Crim. Proc. Law § 440.20. That motion was denied on procedural grounds as well as on the merits. See Decision and Order, No. 00/0361, dated 6/25/2009. Petitioner did not seek leave to appeal that decision. Petitioner's stay was lifted on October 20, 2009 (Dkt. #21). For the reasons that follow, I find that petitioner is not entitled to habeas relief, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

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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