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Edsall v. Marshall

October 21, 2010

JEREMY S. EDSALL, PETITIONER,
v.
LUIS R. MARSHALL, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Jeremy S. Edsall ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Steuben County Court of Robbery in the First Degree (N.Y. Penal L. § 160.15(4)) and Tampering with Physical Evidence (N.Y. Penal L. § 215.40(2)), following a jury trial before Judge Joseph W. Latham. Petitioner was sentenced to a determinate term of imprisonment of twenty years on the robbery count, concurrent to one and one-half to three years on the evidencing tampering count.

II. Factual Background and Procedural History

A. The Prosecution's Case

On July 13, 2004, Leesa Kio ("Kio") was working the overnight shift at the Econolodge motel in Gang Mills, New York. T. 270.*fn1 Sometime around 6:00 or 6:30 a.m., Kio was in a rear office behind the front desk of the motel. Through a security monitor, she saw a man walk into the lobby and behind the front desk. T. 272-73. He was wearing an olive-colored ski mask with eye and mouth holes. Petitioner then entered the office, holding two blankets in his arms. He pulled one aside to display a black gun, and asked Kio for money. T. 275. As she handed him the money, Kio noticed that the man was not wearing any gloves. T. 277-78.

Petitioner addressed Kio by her first name, despite the fact that she was not wearing a name tag. Kio suspected the man might know her. T. 279, 302. Under his mask, Kio could see that petitioner had "big and buggy hazel" eyes, a fair complexion, and that his eyebrow had an orange or blonde tint. T. 279, 284. He was not very tall. T. 283. When petitioner gestured for her to keep quiet, she saw that he had a tattoo on his middle finger. T. 280-81. Kio later drew the tattoo's shape for police. T. 281-82, 300. She recalled that the tattoo was on his middle finger, below the knuckle, and had "a mushroom shape or a tooth shape." T. 281.

Investigator Eric Tyner ("Inv. Tyner") of the Steuben County Police Department was called to the Econolodge after the robbery occurred. T. 379-81. There, he interviewed Kio, and gave the media the description that Kio had provided to him, including the finger tattoo, T. 382-84. Outside the motel, the investigator saw tire tracks that curved into the parking lot and exited onto the street in the wrong direction. T 385. Those tracks were measured, as were tracks found in a grassy area in the parking lot. T. 387.

At trial, Kio testified that she did not know anyone by the name of Jeremy Edsall. She did, however, know his fiancee, Tracy Merrill ("Merrill"), as the two previously worked together at a Budget Inn. T. 290. Guest logs from the Econolodge indicated that Merrill had stayed at the motel two days in January, 2004 and once in December of 2003, despite that Merrill was on the motel's "do not rent" list since October, 2003. T. 318-20. Petitioner also stayed at the motel on August 15, 2003 and April 8, 2004. T. 316-18.

Neither petitioner nor Merrill were employed, however petitioner was collecting disability payments. T. 329, 336. Both lived with petitioner's grandmother, who, in July of 2004, gave petitioner money and loaned him her 2002 Buick Century. T. 327, 329, 330, 334-35, 365-66.

Petitioner and Merrill, both users of crack cocaine, regularly purchased their drugs from Toney Jones ("Jones") three to four times per week. T. 336-37, 341, 360-61. A few days before the robbery, Jones sold cocaine to petitioner on credit. T. 362. When petitioner did not pay Jones $200, Jones threatened to "whop" petitioner. T. 363. Two or three days later, on July 13, 2004, petitioner and his friend arrived at Jones' apartment between 8:00 and 8:30 a.m. T. 361-63. Petitioner handed Jones $130 or $140 in cash. Petitioner told Jones that he had robbed somebody and had about $300 or $400 with him. T. 363-64. The three men then went to Jones' basement, where petitioner purchased and smoked more crack cocaine. T. 364.

Shortly thereafter, the group drove in a brown Buick century to Savona, New York, where petitioner's friend had a trailer. Once they arrived at the trailer, the three men smoked crack, drank beer, and watched television. T. 366-67. A report came on the news regarding the Econolodge robbery. According to Jones, petitioner "looked over" at Jones and looked to the television, "indicat[ing] that that's the place he had robbed." T. 366. Petitioner asked Jones not to mention the robbery to their friend. T. 367.

On July 14, 2004, petitioner's ex- wife learned of the robbery from the news and heard the description of the perpetrator's tattoo. T. 322-23. She immediately called Inv. Tyner to tell him that petitioner had skull-shaped tattoo on his finger. T. 324. That same day, the investigator saw petitioner in his grandmother's driveway in a Buick Century. The measurements of the tires on petitioner's grandmother's car were consistent with the tire tracks found in the motel parking lot. T. 388.

On July 15, 2004, petitioner and Merrill entered a tattoo shop run by Chris Heath ("Heath") and asked Heath to cover petitioner's finger tattoo. T. 343-45. Although Heath had heard about the robbery, he nevertheless applied skin-tone ink over the tattoo on petitioner's finger. T. 354-57. Heath warned petitioner that the ink would not permanently cover the tattoo and the tattoo would essentially re-appear once the new tattooing had healed in a few days. T. 352, 357. Lee Keeney, an employee at the tattoo shop, watched Heath cover petitioner's tattoo. T. 354-57.

Petitioner was arrested on November 10, 2004, in the city of Hornell while attempting to purchase crack cocaine. T. 424. A crack pipe and $170 were recovered following a search of petitioner's person. T. 425. According to petitioner's online booking sheet, petitioner has hazel eyes and red hair, weighs about 145 pounds, has a light complexion and is 5'9"" or 5'10" tall. T. 402, 410-11.

B. The Defense

Jeffery Squires, an attorney, testified that he had represented petitioner in a worker's compensation proceeding.

T. 442. Beginning in January, 2004, petitioner had received weekly payments of $75.38 from the Worker's Compensation Board. T. 442-43. Petitioner would receive that money until August 2, 2004, when he was due to receive a lump sum of $12,000. Petitioner became aware of the fact that he would receive the lump sum payment in May, 2004. T. 443-44.

Petitioner's grandmother testified that on July 5, 2004, she gave petitioner a check for $200, and another check on July 13, 2004, in the amount of $250. Since April, 2004, petitioner's grandmother had given petitioner approximately $11,920. T. 448-49.

Both Merrill and petitioner's grandmother testified that on July 13, 2004, around 7:00 a.m., petitioner was at home. T. 450. Although Merrill did not know where petitioner was between 5:30 and 7:00 a.m., she believed that they were both asleep in bed during that time. T. 464.

Merrill's friend, Michelle York, knew petitioner and Toney Jones. The defense sought to have her testify as to conversations she had with Jones, but the court would not permit her to testify further. T. 468-69.

C. Verdict and Sentence

The jury ultimately found petitioner guilty of first-degree robbery and evidence tampering. T. 627. On July 20, 2005, he was sentenced as a second felony offender to a term of imprisonment of twenty years for the robbery count, concurrent to an indeterminate term of one and a half to three years for the evidence tampering count. S. 13

D. Direct Appeal

Through counsel, petitioner appealed his conviction to the Appellate Division, Fourth Department, ...


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