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Phillips v. Fischer

July 15, 2010

DOUGLAS PHILLIPS, PETITIONER,
v.
BRIAN S. FISCHER, COMMISSIONER, N.Y.S. DEPARTMENT OF CORRECTIONAL SERVICES 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 Douglas Phillips ("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 September 2, 2003, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of Burglary in the Second Degree (N.Y. Penal Law ("Penal Law") § 140.25 [2]), Criminal Mischief in the Fourth Degree (Penal Law § 145.00 [1]), and Attempted Petit Larceny (Penal Law §§ 110.00, 155.25).

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

II. Factual Background and Procedural History

At approximately 7:15 a.m. on Sunday, September 29, 2002, George McKnight ("McKnight") and his wife left their home at 7 Kenmore Street in the City of Rochester, New York to go to church. Before they left, McKnight locked all the doors and the windows, including the locks on both the inside and outside of the two entry doors. When the couple returned a few hours later, they discovered their television set, with what appeared to be blood on it, sitting on the sidewalk leading to their front door, which was wide open. McKnight entered the house to the find the kitchen window smashed in with a brick, which lay in the middle of his kitchen floor, and blood smeared on the window area and the sink below it. A garden hoe that had been in the basement lay broken on his kitchen table, a pipe wrapped in tape with blood on it lay on the dining room table, and a hammer, which had been in McKnight's kitchen drawer when he left for church, was on his couch. The McKnights' bedroom, which was located on the second floor of the home, was littered with their clothing and personal items. McKnight called 911. Trial Transcript [T.T.] 176-184.

Officer David Barnes ("Officer Barnes") of the Rochester Police Department arrived at the McKnights' home at approximately 11:20 a.m. Officer Barnes described the house to be in the same condition the McKnights found it upon returning from church. After observing the smashed kitchen window and what appeared to be blood in the kitchen and on the television set, Officer Barnes called for a member of the Technician's Unit to respond. Technician Thomas Walton ("Walton") arrived in response to Officer Barnes' request. T.T. 209-215.

Walton processed the scene of the crime by attempting to recover fingerprints and blood samples from the inside latch of the kitchen window and from the television set. No prints of value were located from the window or the television set. Walton sent the blood samples for testing/analysis and entry into New York State's DNA profiling system ("CODIS"). T.T. 220-228, 235.

On March 21, 2003, Robert Siersma ("Siersma"), an investigator for the Monroe County District Attorney's Office, met with Petitioner to obtain a swab which would be suitable for DNA testing. Petitioner's attorney was present at the time Siersma met with Petitioner. Petitioner was cooperative and a sample of his DNA was obtained by swabbing the inside of his mouth with a small instrument. The swab was turned over to the Monroe County Public Safety Laboratory for DNA testing. T.T. 262-267. The results of this testing showed that Petitioner was the source of the blood on both the McKnights' television set and the inside latch of their kitchen window. The chance of another individual matching the DNA profile of Petitioner was 1 in 280 quadrillion. T.T. 278-286.

On May 9, 2003, Phillips was indicted by a Monroe County Grand Jury and charged with Burglary in the Second Degree, three counts of Criminal Mischief in the Fourth Degree, and Attempted Petit Larceny. Petitioner pleaded not guilty and proceeded to trial.

Prior to the commencement of the trial, a Sandoval hearing was held, wherein the trial court determined that Petitioner, should he take the stand, could be cross-examined concerning two prior burglary-related offenses. T.T. 16-22.

A jury trial took place before the Honorable Francis A. Affronti from July 22 to July 25, 2003. Petitioner did not testify and did not call any witnesses on his behalf. Petitioner was found guilty of Burglary in the Second Degree, Criminal Mischief in the Fourth Degree, and attempted Petit Larceny, and was found not guilty of the two additional counts of Criminal Mischief in the Fourth Degree. T.T. 359-361.

On September 2, 2003, Petitioner was sentenced as a persistent violent felony offender to an indeterminate term of twenty years to life imprisonment. Sentencing Minutes [S.M.] 7-8, 20, 22-23.

Petitioner appealed his judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department on November 17, 2006. People v. Phillips, 34 A.D.3d 1231 ...


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