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PETER THOUSAND v. JAMES T. CONWAY

November 29, 2010

PETER THOUSAND, PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Peter Thousand ("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 May 26, 2004, in New York State, County Court, Monroe County, convicting him, upon a plea of guilty, of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15 [3]), Robbery in the Second Degree (Penal Law § 160.10 [2]), Robbery in the Third Degree (Penal Law § 160.05), and Burglary in the Second Degree (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

In late 2003, Petitioner went on a crime spree in Monroe County, committing a multitude of crimes, including various burglaries and car-jackings. Petitioner was subsequently indicted and charged with twenty-seven crimes. Petitioner committed some of these crimes while on a furlough release and after having cut off his electronic monitoring device. See Resp't App. G at 6-16; Arraignment Mins. of 03/05/04 5-6.

Prior to pleading guilty, Petitioner filed an omnibus motion seeking, among other things, suppression of identification testimony as well as certain tangible evidence seized subsequent to Petitioner's arrest. See Resp't App. 19-53. In conjunction therewith, the county court granted Petitioner's request for a Wade*fn1 hearing and denied his request for a probable cause hearing. Motion Minutes of 04/28/04 24. On April 30, 2004, the county court began conducting a Wade hearing. See Hr'g Mins. of 04/30/04. Before this hearing was concluded, however, Petitioner voluntarily entered into a plea agreement with the People. Plea Mins. [P.M.] 7-9.

On May 26, 2004, Petitioner voluntarily pleaded guilty to Robbery in the First Degree, Robbery in the Second Degree, Robbery in the Third Degree, and Burglary in the Second Degree in full satisfaction of the indictment. P.M. 10-11. Petitioner was sentenced to twenty-five years imprisonment for the first degree robbery charge, fifteen years for the second degree robbery charge, three and one-half to seven years for the third degree robbery charge, and fifteen years for the second degree burglary charge. All sentences were set to run concurrently. Sentencing Mins. [S.M.] 14-15.

After his conviction, but before perfecting his direct appeal, Petitioner filed a motion to set aside his conviction and sentence, pursuant to N.Y. Crim. Proc. Law ("C.P.L.") §§ 440.10 and 440.20. See Resp't App. A. The Monroe County Court denied Petitioner's motion on October 4, 2005. See Resp't App. B. Leave to appeal was denied. See Resp't Ex. E.

After the denial of the collateral proceeding, Petitioner perfected his direct appeal in the Appellate Division, Fourth Department ("Fourth Department"). The Fourth Department unanimously affirmed the judgment of conviction on June 8, 2007. People v. Thousand, 41 A.D.3d 1272 (4th Dep't 2007) (Resp't App. K); lv. denied, 9 N.Y.3d 927 (2007) (Resp't App. N).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) involuntary guilty plea; (2) a Fourth Amendment violation; (3) defective grand jury proceeding; and (4) ineffective assistance of trial counsel. See Pet. ¶ 22A-D (Dkt. # 1); Traverse [Trav.] (Dkt. # 14).

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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