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Evans v. Kirkpatrick

October 22, 2010

ANTHONY EVANS, PETITIONER,
v.
ROBERT A. KIRKPATRICK, SUPERINTENDENT RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Anthony Evans("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 November 5, 2004, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Burglary in the Second Degree (N.Y. Penal Law ("Penal Law") § 140.25 [2]).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

On October 20, 2003, at approximately 11:00 P.M., Arthur Ackerson ("Ackerson" or "the victim") was home alone in his bed. Trial Trans. [T.T.] 64. Ackerson lived at 164 Wecker Street in the City of Buffalo. T.T. 62-63. He was awakened by his doorbell, which was followed by the sound of breaking glass. T.T. 65. Ackerson got up from his bed, and went to answer his door.

T.T. 66. Ackerson opened the door to find a man, who he later identified as Petitioner, and a woman. The two individuals rushed past Ackerson and into his home. T.T. 66-67. As they did so, Ackerson was pushed into a chair and had his T-shirt ripped. T.T. 67. Petitioner asked Ackerson for money and Ackerson indicated that he did not have any money. T.T. 67. Eventually, the woman went into Ackerson's bedroom, found $20, handed it to Petitioner, and then left Ackerson's home with Petitioner. T.T. 69.

Shortly thereafter, Ackerson called 911, describing the two intruders and explaining what had happened. T.T. 70. When police officers arrived, Ackerson told the police that he could identify the two intruders. He identified the man involved as Petitioner later that same night. T.T. 73. Thereafter, Petitioner was arrested and transported to police headquarters. T.T. 33. While in custody, Petitioner told police that he had been smoking crack cocaine all day and that he broke into Ackerson's home to get money to buy more crack cocaine. T.T. 142.

Under Indictment No. 04982-2003, Petitioner was charged with Burglary in the Second Degree. See Ind. No. 04982-2003 (Resp't Ex. A).

Prior to trial, a combined Wade/Huntley*fn1 hearing was conducted. At the close of this hearing, the trial court denied Petitioner's motion to suppress his identification and his statement to police. Hr'g Mins. [H.M.] 70.

A jury trial commenced on July 12, 2004 before the Hon. Ronald A. Tills. Petitioner was found guilty and subsequently sentenced as a persistent violent felony offender, in accordance with Penal Law § 70.08, to twenty-two years to life imprisonment. S.M. 7-8.

The Appellate Division, Fourth Department unanimously affirmed Petitioner's judgment of conviction on November 17, 2006. People v. Evans, 34 A.D.3d 1301 (4th Dept. 2007); lv. denied, 8 N.Y.3d 845 (2007).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) that the trial court erred in refusing to suppress his statements to police and the show-up identification by the victim on the ground that they were the products of an illegal stop which was not supported by reasonable suspicion; (2) that the trial court erroneously permitted the prosecution to adduce testimony of a prior identification by the victim under N.Y. Crim. Proc. Law ("C.P.L.") § 60.25; (3) that Petitioner's post-arrest statement to police was involuntary and should have been suppressed; and (4) that Petitioner was erroneously sentenced as a persistent violent felony offender and the sentence is harsh and excessive. See Pet. ¶ 22A-D (Dkt. #1).

III. 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." § 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, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), 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 be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...


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