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Rivera v. Berbary

July 9, 2010

FRANK RIVERA, PETITIONER,
v.
JAMES BERBARY, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner, Frank Rivera ("Petitioner"), has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered December 7, 2005, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Burglary in the Second Degree (N.Y. Penal Law ("Penal Law") § 140.25[2]) and Possession of Burglar's Tools (Penal Law § 140.35).

For the reasons stated below, the writ is denied and the petition is dismissed.

II. Factual Background and Procedural History

On November 20, 2004, at approximately 6:00 p.m., Calvin Spates ("Spates") was in his apartment at 451 Breckenridge in the City of Buffalo, New York. Spates was in bed watching television when he heard several "swish[ing]" sounds. Trial Transcript [T.T.] 26-28. Spates arose from his bed, walked to the kitchen, and stepped out onto the back porch. The motion detector lights did not come on. T.T. 28-29. Spates then walked onto his driveway, where he saw Petitioner's back and legs sticking out of his bathroom window. T.T. 30.

Spates asked Petitioner why he was breaking into his apartment. T.T. 30-31. Eventually, Petitioner exited the window and responded to Spates' question by saying that some "white guys" had chased him onto Spates' property. T.T. 31. Spates did not have an opportunity to view Petitioner's face or observe his build or height, but testified that he had a Hispanic accent. T.T. 31, 33.

Spates went to call the police, at which point he saw Petitioner ride a 10-speed bicycle down his driveway. T.T. 34. As Petitioner turned his bicycle onto Breckenridge, he entered the illumination zone of the street light. There, Spates observed that Petitioner was wearing a "rain-shine" coat that was "dark colored, black or blue." T.T. 33-34.

Officer Santos Diaz ("Officer Diaz") of the Buffalo Police Department responded, and assisted Spates in inspecting his apartment. They noticed damage to several window latches and screens. Spates told Officer Diaz that his motion detector lights had been unscrewed. T.T. 38-39.

Officer Diaz notified Officer George Nash ("Officer Nash") by radio that they were looking for a suspect and gave Officer Nash the description provided by Spates. Shortly thereafter, Officer Nash pulled up in his police cruiser with Petitioner in the back seat and his bicycle in the trunk. T.T. 41, 68-69. Before Petitioner fully exited the vehicle, he began to instruct Spates to tell the officers that Spates did not know him. T.T. 42. Spates immediately stated that he recognized Petitioner's voice as that belonging to the individual who had entered his home. T.T. 42-43, 47.

Petitioner was indicted by an Erie County Grand Jury and charged with burglary in the second degree, possession of burglar's tools, and criminal possession of a controlled substance in the seventh degree.*fn1

Petitioner proceeded to trial, and was found guilty of burglary in the second degree and possession of burglar's tools. He was subsequently sentenced to a four year determinate term of imprisonment for the burglary conviction, and a one year definite term of imprisonment for the possession of burglar's tools conviction, both terms to be served concurrently. A five year period of post-release supervision was also imposed. Sentencing Minutes 13.

Petitioner appealed his judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department on November 27, 2003. People v. Rivera, 45 A.D.3d 1487 (4th Dept. 2007); lv. denied, 9 N.Y.3d 1038 (2008).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) insufficiency of the evidence; and (2) the verdict was against the weight of the ...


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