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Wesley v. Alexander

July 7, 2010

MICHAEL DONNEL WESLEY, PETITIONER,
v.
GEORGE B. ALEXANDER, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Michael Donnel Wesley petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Wesley challenges his November 2005 conviction in New York State Supreme Court, Queens County of one count of criminal possession of a weapon in the third degree. Appearing pro se, Wesley seeks habeas relief on eight grounds, discussed below. Oral argument was scheduled for June 11, 2010, but Wesley failed to appear (he apparently had not received the written notice), so the petition was taken on submission. For the reasons set forth below, Wesley's petition is denied in its entirety.

BACKGROUND

A. The Offense Conduct

The government's evidence at trial established that at approximately 1:30 P.M. on April 28, 2002, Wesley went to the apartment of his former girlfriend, Erica White, in Queens County. At the time, White was in the apartment with her three children and two friends. Wesley went to the bedroom of one of White's children. White then asked one of her friends, Shovanne McDaniel, to inform a police detective who had just left of Wesley's arrival.*fn1 Soon thereafter, three detectives arrived at the apartment. When the detectives entered the bedroom, they saw Wesley next to White's infant child. Detective Ivan Borbon asked Wesley if he had a gun with him. Wesley stated he did, and Borbon removed the gun from Wesley's waistband and arrested him.

Wesley was charged with one count of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree. Wesley proceeded to trial pro se and was convicted of one count of criminal possession of a weapon in the third degree. He was acquitted of the two other counts.

B. Procedural History

1. The Grand Jury Proceedings

In early May 2002, Wesley elected to testify before the grand jury. During cross- examination, the prosecutor asked Wesley whether his name was "Jihad." Appellant Appx. at

15. Wesley testified that this was his Muslim name, which was given to him by his Imam. Id. at

16. The prosecutor asked Wesley whether he could change this name and Wesley testified "I can change it any chance I want to but I like it." Id. On May 15, 2002, the grand jury returned an indictment against Wesley.

2. The Trial Court Proceedings

In September 2005, Wesley proceeded to trial. He was assigned a legal advisor, but Wesley chose to represent himself. Detective Borbon testified that he arrested Wesley at White's home on April 28, 2002 after he removed a gun from Wesley's waistband. During his cross-examination of Borbon, Wesley asked several questions regarding police procedure and policy. Specifically, he asked whether a suspect should be pat frisked after being handcuffed, when a suspect should be read his Miranda rights, how a weapon should be stored after being recovered and if officers are required to wear bulletproof vests. Tr. 337-39, 344-45. He further asked whether Borbon followed these procedures on the day of Wesley's arrest. Tr. 337-39, 344-45. The prosecution objected to a number of these questions. Tr. 337-39, 344-45. The trial court overruled several objections and sustained others. In addition, the trial court sustained a hearsay objection when Wesley attempted to read from the Police Patrol Guide, which had not been admitted into evidence.

At the beginning of the trial, the prosecution indicated that it intended to introduce three letters written by Wesley to White while Wesley was in prison on the charges stemming from his April 28, 2002 arrest. Tr. 163. In two of the letters, Wesley asked White not to come to court, and in one he implied that he would pay her if she did not. Tr. 163. A third letter enclosed an affidavit written by Wesley, to be signed by White, stating that White had falsified the charges. Tr. 163. The letters were received at trial to demonstrate Wesley's consciousness of guilt. Tr. 163-64. Wesley unsuccessfully objected to them, arguing they had minimal probative value. Tr. 257-59. Before White testified at trial, Wesley asked that all irrelevant portions of the letters be redacted. Tr. 354. The court denied Wesley's request. Tr. 354. After the letters were admitted, Wesley moved for a mistrial based on the court's failure to redact the letters, which the court denied because Wesley had never specified which portions he wanted redacted. Tr. 374-76. Before summations, Wesley again moved for the letters to be redacted. Tr. 583. The court again denied his motion. Tr. 585.

Shavonne McDaniel testified as a defense witness that she was at White's home on April 28, 2002. Tr. 524. During his direct examination of McDaniel, Wesley asked several questions regarding McDaniel's written statement describing how one of White's children was injured on the date of Wesley's arrest. Tr. 538-43. Wesley later attempted to use the statement to impeach McDaniel. Tr. 585-86. The court precluded Wesley from doing so, finding that the prior statement did not bear on a material issue in the trial, i.e. it did not bear on whether Wesley was guilty of illegally possessing a weapon. Tr. 587. Wesley then asked for a mistrial, which was denied. Tr. 588.

3. The First Motion to Vacate the Conviction

In December 2006, Wesley moved to vacate the judgment of conviction on the ground that the gun retrieved from him at the time of his arrest was not tested for fingerprints or DNA evidence. On April 6, 2007, the court denied Wesley's motion, finding that he had failed to prove that there was a reasonable probability that DNA testing would have resulted in a verdict more favorable to him. Wesley's application for leave to appeal to the Appellate Division was denied on June 29, 2007.

4. The Direct Appeal

On March 7, 2007, Wesley's assigned appellate counsel filed a brief in support of Wesley's appeal, arguing that there was insufficient evidence to prove he possessed a weapon in the third degree. Thereafter, Wesley requested permission to file a pro se supplemental brief, which the court granted. In this supplemental brief, Wesley argued that: (1) the prosecutor improperly cross-examined him about his nickname during the grand jury proceedings; (2) the trial court erred when it precluded Wesley from impeaching his own witness; (3) the trial court erred when it denied his request to redact his letters to White; (4) the trial court improperly restricted his cross-examination of Detective Borbon; (5) the state violated its obligations under People v. Rosario, 9 N.Y.2d 286 (1961) and Brady v. Maryland, 373 U.S. 83 (1963); (6) the state failed to prove his guilt beyond a reasonable doubt; (7) the court erred in denying his motion for DNA testing; and (8) he was prohibited from using the law library during his trial, which violated his constitutional right of access to the court.

On October 14, 2008, the Appellate Division affirmed the judgment of conviction. The Appellate Division held that the evidence "was legally sufficient to establish the defendant's guilt beyond a reasonable doubt." People v. Wesley, 864 N.Y.S.2d 778, 778 (2d Dep't 2008). The court also held that his claim that he was denied access to the law library was "dehors the record and [was] thus not reviewable on direct appeal." Id. The court found Wesley's argument regarding his cross-examination of Detective Borbon to be "unpreserved for appellate review and, in any event, . without merit." Id. The court then held that all of the "defendant's remaining contentions are without merit." Id.

5. The Second Motion to Vacate the Judgment

On February 23, 2009, Wesley moved to vacate his conviction pursuant to New York Criminal Procedure Law ยง440.10. He claimed that he was denied access to the law library and the right to speak to his legal advisor, that the prosecutor committed Rosario and Brady violations, and that the prosecutor knowingly presented perjured testimony at his trial. On September 28, 2009, the court denied his motion to vacate ...


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