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Smith v. Lempke

June 28, 2010

GLEN SMITH, PETITIONER,
v.
SUPERINTENDENT J. LEMPKE, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Glen Smith ("petitioner"), who is represented by counsel, has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a conviction of Kidnapping in the Second Degree (N.Y. Penal L. ("P.L.") § 135.20) and Criminal Possession of Stolen Property in the Fourth Degree (P.L. § 165.45(1)) following a jury trial in Chemung County Court before Judge James T. Hayden. He was subsequently sentenced to concurrent terms of imprisonment of 25 years, determinate, and 1 and 1/3 to 4 years, indeterminate, in addition to 5 years of post-release supervision.

II. Factual Background and Procedural History

A. Trial Evidence

On the morning of February 5, 2005, at a shopping mall in Horseheads, New York, Gayle Kreitzer ("the victim") was sitting in her parked car when petitioner parked his pickup truck beside her, exited his vehicle, and opened the passenger-side door of the victim's car. According to the victim, petitioner was brandishing a knife and demanded money. Petitioner got inside the victim's car and ordered her to drive. While the victim was driving, petitioner rummaged through the victim's purse, taking cash and a checkbook. Insisting that he needed more money, petitioner forced the victim to drive to several banks (including two banks in Pennsylvania) and two supermarkets where the victim repeatedly attempted to make withdrawals and cash a check for the petitioner. Eventually, the victim was able to withdraw $1500 from her credit account, which she gave to petitioner.

After four hours, the victim was finally able to escape when petitioner had her stop at a convenience store on the way back to the mall. The victim ran into the store and told the clerk she was being robbed, who then called the police. Meanwhile, petitioner had fled on foot, but was apprehended shortly thereafter. During the search of his person, police recovered $1500 in cash from petitioner's left pocket, but did not find any weapons. T. 15-52; 109-111.*fn1

B. Petitioner's Defense

Petitioner took the stand at trial, testifying that he was known to regularly use marijuana and methamphetamine, and would "party quite a bit all over the place." On February 5, petitioner was smoking marijuana in his truck in a mall parking lot when the victim, whom he had recognized from "parties and stuff," approached petitioner and asked him to find methamphetamine for her. After negotiating a price of $1500, petitioner told the victim that she had to drive him to buy the drugs because he was having problems with his pickup truck.

The two then drove to several locations until the victim was able to withdraw the money for 15 grams of methamphetamine. After petitioner explained to the victim that she could not accompany him to his friend's house where he would buy the drugs, the victim suddenly jumped out of the car and ran off, yelling that petitioner was trying to rob her. Petitioner then ran from the car as well, because he was "in shock" and "didn't know what to do." Still intending to "go through with [his] end of the deal," petitioner kept the victim's $1500 until he was arrested. During their time in the car together, petitioner denied threatening or using any force against the victim at any time. T. 195-216.

C. Verdict and Sentencing

Petitioner was charged with first-degree robbery, second-degree kidnapping, and fourth-degree criminal possession of stolen property as a result of the incident on February 5. Following a two-day jury trial, petitioner was found not guilty of the robbery count and guilty of the two remaining counts. T. 353-354. Petitioner was sentenced to concurrent terms of imprisonment, the longest of which was 25 years. S.13.

D. Direct Appeal

Through counsel, petitioner filed a brief to the Appellate Division, Third Department, arguing the following points: (1) the verdict was against the weight of the evidence; (2) ineffective assistance of trial counsel; (3) the verdict was repugnant; and (4) the sentence was harsh and excessive. See Respondent's Exhibits ("Ex.") A. In addition, petitioner filed a pro se supplemental brief, in which he raised the following claims: (1) the trial court should have inquired into petitioner's mental capacity to stand trial; (2) petitioner's mental health records were improperly incorporated into petitioner's pre-sentence report; (3) the evidence was insufficient to prove the conviction for kidnapping and the kidnapping charged merged with the robbery charge; and (4) prosecutorial misconduct. Ex. B. The Third Department unanimously affirmed the judgment of conviction. People v. Smith, 41 A.D.3d 1093 (3d Dept. 2007); lv denied, 9 N.Y.3d 1039 (2008); see also Ex. F-G.

E. Post-Conviction Relief

While petitioner's appeal was pending, he filed a pro se motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10, in which petitioner claimed that: (1) petitioner was not competent to stand trial; the trial court should have inquired into petitioner's capacity; (2) petitioner's mental health records were improperly incorporated into petitioner's presentence report; (3) insufficiency of the evidence and merger doctrine; (4) the verdict was repugnant; (5) denial of right to counsel prior to the indictment; (6) the indictment was insufficient; and (7) petitioner's statements should have been suppressed. See Ex. H, L. The Chemung County Court denied the motion on procedural grounds, as well as on the merits. Ex. O. Leave to appeal that decision was denied by the Appellate Division On December 18, 2006. Ex. Q.

F. Petition for Habeas Corpus

Petitioner then filed a pro se petition for writ of habeas corpus (Dkt. #1), wherein he raises the following grounds for relief: (1) insufficiency of the evidence; (2) the kidnapping charge merged with the other charges; (3) ineffective assistance of trial counsel; (4) the verdict was repugnant; (5) harsh and excessive sentence; (6) the trial court erred in failing to inquire into petitioner's mental competence; (7) petitioner's mental health records were improperly incorporated into petitioner's pre-sentence report; (8) prosecutorial misconduct; (9) ineffective assistance of appellate counsel; (10) petitioner was denied transcripts for use on appeal and in post-conviction proceedings; and (11) juror bias. Petition ("Pet.") ¶ 12-22. The respondent has submitted an answer and memorandum of law opposing the petition (Dkt. ## 19, 20). On April 30, 2008, counsel filed a notice of appearance on behalf of the petitioner. (Dkt # 6). Through counsel, petitioner then submitted a supplement to his petition (Dkt. #10) and a reply to the respondent's opposing papers (Dkt. #32).

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 Habeas Review

1. Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U .S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

2. Exhaustion Requirement

Before a federal court can address the merits of any constitutional issue contained in a petition for a writ of habeas corpus, the petitioner must have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999). "Exhaustion of state remedies requires presentation of the claim to the highest state court from which a decision can be obtained." Hogan v. Ward, 998 F.Supp. 290, 293 (W.D.N.Y. 1998) (citing Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 n.3 (2d Cir. 1982)); see O'Sullivan, 526 U.S. at 839-40 ("a state ...


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