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Baker v. Greene

September 2, 2010

DEPHEN DEAN BAKER, PETITIONER,
v.
GARY GREENE, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge

DECISION & ORDER

INTRODUCTION

Pro se Petitioner Dephen Dean Baker ("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 April 10, 1998, in New York State, County Court, Monroe County, convicting him, after a jury trial, of one count each of Attempted Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 110.00, 125.25 [1]), Assault in the First Degree (Penal Law § 120.10 [1]), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The charges arise out of a shooting incident that occurred in the City of Rochester, New York on August 11, 1996.

On that date, at approximately 2:35 p.m., David Richard Tavares*fn1 ("Tavares" or "the victim") saw Petitioner, whom he knew from the neighborhood as "Frenchy," standing by a phone booth near the intersection of Evergreen Street and Conkey Avenue. From a distance of about ten feet and without saying a word, Petitioner pulled out a small dark gun and fired it, striking Tavares twice -- once in the right pelvic area and once below his Adam's apple -- and fled on foot. T.T. 258-66. Tavares staggered from the scene for a brief distance before collapsing in front of a nearby residence. T.T. 267.

Investigator Mark Sennett of the Rochester Police Department ("Investigator Sennett") responded to the scene and, upon asking Tavares, was informed that he had been shot by "Frenchy." Tavares also indicated that "Frenchy" had fled in the direction of Evergreen Street. T.T. 294-95. Investigator Sennett and Officer Michael Marcano ("Officer Marcano") went to Evergreen Street where they found a red Mazda abandoned in the roadway with its doors open almost directly in front of the residence at 32 Evergreen Street. T.T. 296, 335, 337-38, 341. Officer Marcano testified at trial that he had responded to this particular address in the past on several occasions for "drugs, drug calls, people selling drugs . . . shots being fired, nuisance calls, fights." T.T. 341-42. The red Mazda was later identified as belonging to Adriene White ("White") who, at the time of the crime, was romantically linked to Petitioner's brother. White testified at trial that she regularly lent the car to Petitioner and his brother and had lent the car to Petitioner's brother on the Friday or Saturday prior to August 11, 1996. T.T. 312-20. White also testified on direct examination that she knew Petitioner "was born in Jamaica" and that "[h]e lived in Canada." T.T. 324.

On January 30, 1997, a Monroe County Grand Jury indicted Petitioner on one count of Attempted Murder in the Second Degree, two counts of Assault in the First Degree, and one count of Criminal Possession of a Weapon in the Second Degree. See Indictment No. 97-0041 (Resp't Ex. B).

Before the trial began, the trial court issued a Sandoval*fn2 ruling, permitting the prosecution to cross-examine Petitioner, if he chose to testify at trial, on two prior Canadian drug-related convictions, as well as immigration-related issues concerning his legal status in Canada and the United States. T.T. 9-10.

Petitioner pleaded not guilty to the charges, and a jury trial was held before the Hon. William H. Bristol from March 23 through March 26, 1998. See T.T. 1, 4-5. The prosecution presented testimonial evidence from various witnesses, including the victim, White and Officer Marcano. Petitioner, who did not testify at trial, primarily defended his case by attempting to discredit the testimony of the victim, who was the only eyewitness to the shooting.

On April 10, 1998, the jury found Petitioner guilty of all counts of the indictment, except for Count Three, which charged Petitioner with Assault in the First Degree on an alternate theory. He was subsequently sentenced to concurrent terms of twelve and one-half to twenty five years imprisonment for the attempted murder and assault convictions, and to a concurrent term of seven and one-half to fifteen years imprisonment for the criminal possession of a weapon conviction. Sentencing Mins. ("S.M.") 9.

Represented by new counsel, Petitioner appealed his judgment of conviction on the following grounds: (1) evidentiary error; and (2) improper jury identification charge. See Appellant's Br., dated 07/00, Points I-II (Resp't Ex. B). The Appellate Division, Fourth Department unanimously affirmed Petitioner's judgment of conviction on February 7, 2001. People v. Baker , 280 A.D.2d 964 (4th Dept. 2001). Leave to appeal was denied by the New York Court of Appeals on June 29, 2001. See Certificate Denying Leave from New York Court of Appeals (Hon. Howard A. Levine), dated 06/29/2001 (Resp't Ex. H).

On or about February 4, 2002, Petitioner filed a motion for vacatur , pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10, arguing that he had been deprived of his right to the effective assistance of trial counsel on three grounds. See Pet'r C.P.L. § 440.10 motion, dated 02/04/02 (Resp't Ex. I). The county court conducted a hearing, pursuant to C.P.L. § 440.30, to determine facts that were not part of the record with respect to one portion of Petitioner's claim. After the hearing was conducted, the county court denied Petitioner's motion, in part on procedural grounds, and in part on the merits. See Decision and Order of the Monroe County Court (Hon. Patricia D. Marks), dated 11/25/02 (hereinafter "440 decision") (Resp't Ex. N). Leave to appeal was denied by the Appellate Division, Fourth Department on May 9, 2003. See Decision of the Appellate Division, Fourth Department (Hon. L. Paul Kehoe), dated 05/09/03 (Resp't Ex. R).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) evidentiary error; (2) improper jury identification charge; and (3) ineffective assistance of trial counsel. Pet. ¶ 12A-D (Dkt. # 3); Traverse ("Trav."), Points I-IV (Dkt. # 12).

For the reasons set forth below, habeas relief is denied, and the habeas corpus petition is dismissed.

GENERAL PRINCIPLES APPLICABLE TO HABEAS REVIEW

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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," 28 U.S.C. § 2254(d)(1), or if it "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)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta ) of the Supreme Court existing at the time of the relevant state-court decision. Williams v. Taylor , 529 U.S. at 412; accord Sevencan v. Herbert , 342 F.3d 69, 73-74 (2d Cir. 2003), cert. denied , 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams , 529 U.S. at 413; see also id . at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz , 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id . This increment "need not be great; otherwise, habeas relief would ...


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