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Williams v. Kirkpatrick

June 3, 2010

MICHAEL C. WILLIAMS, PETITIONER,
v.
ROBERT KIRKPATRICK, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Michael C. Williams ("petitioner"), has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in New York State Supreme Court, Monroe County, of Robbery in the Second Degree (N.Y. Penal L. § 160.10(2)) and Grand Larceny in the Fourth Degree (N.Y. Penal L. § 155.30(5)).

II. Factual Background and Procedural History

Petitioner's convictions stem from an incident occurring on February 16, 2002, in the Corn Hill neighborhood of Rochester, wherein petitioner approached Maria Milazzo ("the victim"), who was with her two-year-old daughter, and demanded money from the victim at gunpoint. When the victim responded that she did not have any money, petitioner frisked her. Petitioner took the victim's cell phone out of her coat pocket, and continued to demand money. The victim was ultimately able to run away and call 911. Trial Tr. 158-168.

Rochester Police Officers responded a few minutes later, and apprehended petitioner a short distance from the encounter based on the victim's description of her assailant. Petitioner was then identified in a show-up, and later gave a statement to police that he had approached the victim and asked her for money. The police also recovered the victim's cell phone and a toy gun near the scene of the attack. Supp. Hr'g Mins. dated 5/17/2002 at 6-13, 17, 46, 48-52, 54, 60-62; Supp. Hr'g Mins. dated 6/18/2002 at 20, 23; Resp't Appendix ("Appx.") C, p. 9.

Following a pre-trial hearing, the court denied petitioner's motion to suppress, finding that police had reasonable suspicion to justify pursuit of petitioner, and that there was probable cause to believe that petitioner was the assailant at the time of his arrest. Appx. C, p. 54-69.

After a jury trial before Justice Kenneth R. Fisher, petitioner was convicted of second-degree robbery and fourth-degree grand larceny. Prior to sentencing, a hearing was conducted pursuant to N.Y. Penal L. § 70.08, after which the court adjudicated the petitioner a persistent violent felony offender ("PVFO"). He was subsequently sentenced to concurrent, indeterminate terms of imprisonment, the longest of which was twenty years to life. Sentencing Tr. 13-14.

Through counsel, petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, on the following grounds: (1) police did not have reasonable suspicion to justify petitioner's pursuit; (2) police lacked probable cause for petitioner's arrest; (3) the documents admitted at the sentencing hearing were testimonial hearsay in violation of petitioner's right to confrontation; (4) the seven-month delay between conviction and sentencing caused the sentencing court to lose jurisdiction. Appx. B. The judgment of conviction was unanimously affirmed by the Fourth Department. People v. Williams, 30 A.D.3d 980 (4th Dept. 2005), lv. denied, 7 N.Y.3d 852 (2006).

In April 2004, petitioner moved to vacate his sentence pursuant to New York Crim. Proc. L. ("C.P.L.") § 440.20 in Monroe County Supreme Court on the grounds that he was illegally sentenced as a persistent violent felony offender. Appx. J. That motion was denied by a written Decision and Order on August 30, 2004. Appx. L. Leave to appeal that decision was subsequently denied by the Appellate Division. Appx. O.

Petitioner then brought the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising various claims challenging the constitutionality of his seizure and arrest and his sentencing proceedings. Petition ("Pet.") ¶ 12.

For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal ...


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