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McAllister v. Rabsatt

August 4, 2010

KEITH MCALLISTER, PETITIONER,
v.
CALVIN RABSATT, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Pending before the Court is Petitioner Keith McAllister's ("McAllister") Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006). For the reasons stated below, the petition is DENIED.

BACKGROUND

I. Factual Background

The following facts and assertions were obtained from the Petition ("Pet."), trial transcript ("T."), and sentencing minutes ("S."):

Officer Jeffrey Raymond ("Raymond") has worked as a police officer with the Nassau County Police Department since August 1997. (T. 198--99.) On August 21, 2005, at approximately 12:45 a.m., Raymond was working undercover, conducting narcotics surveillance in New Cassel, New York (T. 201--03), when he observed Petitioner walking down the street carrying a type of glass pipe that is sometimes used to smoke crack cocaine (T. 205: 13--16.) As Raymond exited his unmarked vehicle and approached Petitioner, McAllister shattered the pipe on the ground. (T. 205--06.) Petitioner admitted to Raymond that the pipe was a crack pipe. (T. 219:13--16.) Raymond then noticed a six-inch silver knife clipped to McAllister's front right pocket. (T. 206:17--25.) Raymond took the knife and applied centrifugal force, allegedly causing the blade to release and lock into place. (T. 206--207.) Raymond concluded that the knife was a gravity knife and placed Petitioner under arrest. (T. 207.)

At trial in the Supreme Court of the State of New York, Nassau County, McAllister was charged with criminal possession of a weapon in the third degree. (T. 170--71.) He was also charged with burglary in the first degree and assault in the third degree for incidents unrelated to the weapon charge. (T. 170--71.) During the proceedings, the People entered into evidence the knife that Raymond had confiscated from McAllister. (T. 210--11.) Raymond demonstrated for the jury how he had held the knife in his right hand and applied centrifugal force downward to open the blade and lock it into position, thereby concluding that it was a gravity knife. (T. 211:8--14.)

McAllister's counsel did not call any witnesses (T. 354:3--6) and did not address the weapon charge during summations (T. 357--77). As the judge prepared to call in the jurors to instruct them on the charges, McAllister's attorney submitted to the court two cases in support of the claim that the knife was not a gravity knife. (T. 392--93.) The People contended that the cases did not involve gravity knives and that the type of knife McAllister possessed at the time of his arrest was a question for the jury. (T. 393:9--17.) The court denied the defense's application to consider the cases (T. 393:18), and proceeded to instruct the jury on the charges. (T. 418--19.)

The jury found McAllister guilty of criminal possession of a weapon in the third degree and acquitted him of the other two charges. (T. 430:1--12.) On June 29, 2006, McAllister moved to set aside the verdict pursuant to N.Y. PENAL LAW § 330.30 (McKinney 2005). (Pet. 2.) The motion was denied (Pet. 2), and on August 15, 2006, McAllister was sentenced to a prison term of three-and-one-half to seven years. (S. 7:1--9) In addition, the court ordered McAllister to pay a mandatory $250 surcharge, a $50 DNA fee, and a $20 crime victim assistance fee. (S. 7:11--14.)

II. Procedural History

McAllister appealed the judgment to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department ("Appellate Division") on August 23, 2006, and thereafter submitted an application for in forma pauperis status. (Aff. Opp'n Pet. Writ Habeas Corpus ¶ 5.) On October 25, 2006, the Appellate Division provided McAllister with court-appointed counsel. (Aff. Opp'n Pet. Writ Habeas Corpus ¶ 5.)

On January 15, 2008, the Appellate Division affirmed the judgment of the trial court. People v. McAllister, 47 A.D.3d 731, 731 (App. Div. 2008). The Appellate Division found that (1) the evidence was legally sufficient to establish beyond a reasonable doubt that McAllister possessed a gravity knife, and the jury's verdict was not against the weight of the evidence; (2) the trial court correctly designated McAllister a second felony offender; (3) and the trial court properly denied McAllister's motion to suppress his statement to the police, which McAllister claims he provided while high on crack cocaine. Id. at 731--32.

On February 23, 2008, McAllister submitted to the New York Court of Appeals an application for leave to appeal all of the issues raised before the Appellate Division. (Appellant's Application for Leave to Appeal.) The Court of Appeals denied McAllister's application on May 13, 2008. People v. McAllister, 10 N.Y.3d 866, 890 N.E.2d 256, 860 N.Y.S.2d 493 (2008). In a letter dated June 2, 2008, Petitioner, acting pro se, asked the Court of Appeals to reconsider his application. (Criminal Leave Application Re-Consideration.) McAllister asserted that his appointed counsel failed to adequately present the claim that the evidence was legally insufficient to convict him of the weapon charge. (Criminal Leave Application Re-Consideration.) The Court of Appeals denied McAllister's application on August 4, 2008. People v. McAllister, 11 N.Y.3d 738, 894 N.E.2d 661, 864 N.Y.S.2d 397 (2008).

Petitioner filed this Petition on September 22, 2008, seeking relief only on the ground that the evidence was legally insufficient to establish that the knife he possessed at the time ...


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