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Johnson v. Ercole

July 28, 2010

MALCOLM A. JOHNSON, PETITIONER,
v.
ROBERT E. ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

Presently before the Court is pro se Petitioner Malcolm A. Johnson's Petition for a Writ of Habeas Corpus. Dkt. No. 1. Johnson asserts the following grounds in support of his Petition: (1) the prosecutor did not inform Petitioner nor his attorney that he intended to present an indictment on the charge of First Degree Assault to the grand jury, even though Petitioner was originally charged with Second Degree Assault; (2) there was insufficient evidence to support his conviction; (3) the trial judge improperly allowed the prosecutor to offer into evidence Petitioner's arrest photograph; and (4) ineffective assistance of counsel. Id. For the reasons that follow, it is recommended that the Petition be denied.

I. BACKGROUND

On April 6, 2001, Petitioner was indicted on two counts of Assault in the First Degree (N.Y. PENAL LAW §§ 120.10(1) & (2)), one count each of Criminal Possession of a Weapon in the Third Degree (N.Y. PENAL LAW § 265.02(1)) and Criminal Possession of a Weapon in the Fourth Degree (N.Y. PENAL LAW § 265.01(2)). Dkt. No. 8, State Court R. (hereinafter "R."), Ex. F, Pet'r App. Div. Br. at p. 1.*fn1

Petitioner's jury trial commenced on September 24, 2001, in Albany County Court before the Honorable Thomas Breslin. R., Trial Tr., dated Sept. 24, 2001, at p. 1. The following is a summary of the testimony adduced against Petitioner at trial. Clyde Clark testified that on September 23, 2000, at approximately 1:45 p.m., while he was walking down Orange Street in Albany, New York, someone approached him from behind and slashed his face with a razor, cutting him from behind his left ear all the way to his mouth. Id. at pp. 133-48. Clark recognized his assailant as Petitioner, whom he knew as "Wise." Id. After Clarke turned around, Petitioner cut his face again and then got into a grey Honda Accord and drove away. Id. at pp. 135-36 & 151-52.

According to Clark, Petitioner asked him during the incident, "Where's my wife's money?" Id. at pp. 141 & 154-55. Soon thereafter, Clark received medical attention, however, as a result of the attack, he has a permanent scar running from his ear to his mouth. Id. at pp. 135, 140, & 145.

In February 2001, while Clark was in Albany County Jail for violating his probation conditions, he learned that Petitioner was also in that jail and later observed Petitioner during a preliminary hearing in Albany Police Court. Id. at pp. 142 & 145. Thereafter, Clark reported the assault to the authorities and Petitioner was arrested. Id. at pp. 143-44, 166, & 177. At trial, Clark identified Petitioner as the person who cut his face.

On September 26, 2001, the jury convicted Petitioner on two counts of Assault in the First Degree (N.Y. PENAL LAW §§ 120.10(1) & (2)) and one count of Criminal Possession of a Weapon in the Third Degree (N.Y. PENAL LAW § 265.02(1)). Id. at pp. 374-75. On October 2, 2001, Petitioner filed a N.Y. CRIM. PROC. LAW ("CPL") § 330.30 Motion with the trial court to set aside the verdict on the ground of insufficient evidence. R., Ex. A, Pet'r § 330 Mot. On January 15, 2002, Petitioner filed another CPL § 330 Motion, asserting that he received ineffective assistance of counsel. R., Ex. B, Pet'r Second § 330 Mot.

On March 29, 2002, Judge Breslin denied both of Petitioner's CPL § 330 Motions and sentenced Petitioner, as a second felony offender, to concurrent determinate terms of twenty (20) years imprisonment on each assault count, and a concurrent, indeterminate term of three (3) to six (6) years imprisonment on the weapon possession count. R., Sentencing Tr., dated Mar. 29, 2002 at pp. 26-27.

Although Judge Breslin denied Petitioner's CPL § 330 Motions, he granted Petitioner leave to re-submit his second CPL § 330 Motion as a CPL § 440.10 Motion,*fn2 which was addressed at a Hearing held on April 5, 2002. R., § 440 Hr'g Tr., dated Apr. 5, 2002. Judge Breslin denied Petitioner's CPL § 440 Motion. R., Ex. D, Decision, dated July 9, 2002.

Petitioner appealed his conviction to the New York State Supreme Court Appellate Division, Third Department, which agreed to consolidate his direct appeal and his appeal of the denial of his CPL § 440 Motion. R., Ex. E, Order, dated July 25, 2002. The Appellate Division dismissed Petitioner's appeals, and the Court of Appeals denied Petitioner leave to appeal that decision. People v. Johnson, 23 A.D.3d 686, 687 (N.Y. App. Div. 3rd Dep't 2005), lv. denied, 6 N.Y.3d 895 (2006). Johnson filed the instant Habeas Petition on July 2, 2007. Dkt. No. 1. Respondent concedes that the Petition was timely filed and that all of Petitioner's claims have been properly exhausted. Dkt. No. 5, Resp't Mem. of Law at p. 11.

II. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either

1) 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; or

2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); ...


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