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Dandridge v. Fitzpatrick

August 16, 2010

TERRY DANDRIDGE, PETITIONER,
v.
SUPERINTENDENT FITZPATRICK RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Through counsel, Petitioner Terry L. Dandridge ("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 January 21, 2000, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15 [4]) and Robbery in the Second Degree (Penal Law § 160.10 [1]). For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

On October 3, 1998, Suzette Licht ("Licht") was working in loss prevention as a store detective for the Bon-Ton department store on Sheridan Drive in Amherst, New York. Late that afternoon, Licht noticed two men, whom she had seen in the store a day earlier, in the men's coat area as she was coming down an escalator. Trial Trans. [T.T.] 143, 149-150. As she watched the two men, they began to grab coats off the rack. She called for them to stop, but they ran, with their arms full of coats, toward an exit. T.T. 150. Licht chased the two men out of the store and followed them to a blue Cadillac that was waiting outside. T.T. 151. One of the men got in the back seat of the Cadillac and closed the door. The other man got in the front passenger seat of the Cadillac, but was unable to close the door because the coats were in the way. T.T. 155. Licht approached the passenger side, reached inside, and attempted to grab the coats. As she was doing so, she looked up at the driver, who was wearing a blue satin baseball jacket. T.T. 156-159. Petitioner placed his right hand inside his jacket, pulled out a gun, and pointed it at Licht. Licht backed up and away from the vehicle, and the men drove off. T.T. 158-159, 160-162. When the vehicle stopped at a stop sign, Licht wrote down the license plate number. She then ran back into the store, hid under a counter, and told another employee to call 911. T.T. 1662-164, 192, 195.

On December 23, 1998, Petitioner was indicted by an Erie County Grand Jury and charged with robbery in the first degree and robbery in the second degree.

Prior to trial, a Wade*fn1 hearing was held, wherein the trial court denied Petitioner's motion to suppress Licht's identification testimony, finding no suggestiveness in an October 7, 1998 photo array. The trial court further determined that a March 11, 1999 corporeal viewing of Petitioner by Licht in the foyer of the Amherst Town Court was not subject to review because it was not police-induced. See Mem. Decision and Order of the Supreme Court, Erie County (Hon. Ronald H. Tills), Ind. No. 98-2785-001, dated 04/23/99, 2-3.

A jury trial was held before the Honorable Ronald H. Tills from August 9 to August 12, 1999. Petitioner was found guilty as charged and was sentenced as a second violent felony offender to a determinate term of twenty years imprisonment for the robbery in the first degree conviction and a concurrent determinate term of fifteen years imprisonment for the robbery in the second degree conviction. Sentencing Mins. [S.M.] 8-9.

Petitioner's judgment of conviction was unanimously affirmed by the Appellate Division, Fourth Department on February 3, 2006. People v. Dandridge, 26 A.D.3d 779 (4th Dept. 2006). Petitioner failed to seek leave to appeal.

Subsequently, Petitioner filed a motion to vacate his judgment of conviction, pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10, on the grounds that he received ineffective assistance of trial counsel. That motion was denied by the Supreme Court, Erie County on March 13, 2007. See Decision of the Supreme Court, Erie County (Hon. Penny M. Wolfgang), Ind. No. 98-2785-001, dated 03/13/07. Leave to appeal was denied. See Decision of the Appellate Division, Fourth Department (Hon. Elizabeth W. Pine), Ind. No. 98-2785-001, dated 06/27/07 (Resp't Ex. C).

Thereafter, Petitioner, through counsel, filed a motion for a writ of error coram nobis on the ground that he received ineffective assistance of appellate counsel. That motion was summarily denied by the Appellate Division, Fourth Department on September 28, 2007. People v. Dandridge, 43 A.D.3d 1454 (4th Dept. 2007); lv. denied, 9 N.Y.3d 1032 (2008).

The instant habeas corpus petition followed, wherein Petitioner seeks relief on the ground that he was deprived of his Sixth Amendment right to the effective assistance of appellate counsel. Pet. ¶ 22A (Dkt. #1).

III. General Principles Applicable to ...


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