The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge Rochester, New York
Petitioner pro se Walter Dennis, a/k/a Dennis Walter (hereinafter, "Dennis" or "Petitioner"), has requested a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his detention in state custody is unconstitutional. Dennis is incarcerated pursuant to a judgment of conviction entered against him in New York State Supreme Court (Erie County) (Buscaglia, Acting J.) on one count of robbery in the third degree.
Respondent has answered the petition, asserting that the claims are all without merit, and that some arguments do not present a federal constitutional question amenable to habeas review. Petitioner submitted a reply brief in response to respondent's answer.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History Petitioner's conviction stems from his forcible robbery on November 8, 2002, of Timothy Fulks ("Fulks"), a/k/a "Tanielle", at Fulks' apartment. The two first met on a telephone chat-line in the weeks before November 8, 2002. T.292-293.*fn1 Fulks testified that they knew each other for about a month and had a sexual relationship during that time. Fulks invited Petitioner to his apartment on the night of November 6, 2002. T. 294-295, 305. They had sex and Petitioner spent the night.
The next morning (November 7, 2002), before Fulks went to work, Petitioner accompanied him to the bank where Fulks cashed his paycheck. Thus, Petitioner knew Fulks had money, and this check-cashing incident was corroborated by the canceled pay check received in evidence. After Fulks left work that evening Petitioner again spent the night at Fulks' home.
The morning of Friday, November 8, 2002, Fulks was in the bathroom with the door locked preparing to take a shower. T.306. Fulks testified that Petitioner pried the door open and grabbed Fulks by the neck, and pointed a handgun to his head, demanding money from him. T309.*fn2 Fulks testified that he was afraid, and so he told Petitioner that his money (about $780 in cash) was in his jacket pocket in the guest room closet. T.311-313. Petitioner left the bathroom. On his way back from, presumably, the guest room, he passed Fulks, who was still in the bathroom, and apologized before leaving the apartment. T.313.
Fulks' friends testified that Petitioner was with Fulks the night before the robbery and that Fulks was extremely upset when he contacted them the next morning after Petitioner left the apartment. There was also testimony from that Petitioner telephoned Fulks numerous times and made threats against him. In addition, Petitinoer offered to give back Fulks' money if he would drop the charges. When Fulks moved and obtained an unlisted phone number, Petitioner communicated with a mutual acquaintance, Calvin Sparks ("Sparks"), and asked Sparks to put him in touch with Fulks. Sparks refused to give Petitioner Fulks' new number. Sparks testified that Petitioner told him that he had taken Fulks' money but that he did not have a gun, and that he was not going to jail again on a gun charge, and that he should tell Fulks that if Fulks did not drop the charges, he would "fuck him up". Sparks testified that Petitioner told him that he should "look for his girl [i.e., Tanielle] on the news."
Petitioner fled from Buffalo shortly after the crime and traveled to Florida, where he was eventually apprehended. Petitioner waived extradition and returned to New York.
Petitioner was indicted on the charge of robbery in the first degree
under New York Penal Law ("P.L.") § 160.15(4),*fn3 a
class B felony. The trial court submitted the lesser-included offenses
of third degree robbery and petit larceny to the jury. The jury
rejected Fulks' testimony that Dennis had brandished a gun at the time
of the incident, and convicted petitioner of the lesser-included
offense of robbery in the third degree (P.L. § 160.05),*fn4
a class D felony--forcible robbery without a weapon. On June
23, 2004, Petitioner was sentenced as a second felony offender to
three and one-half to seven years in prison.
On direct appeal, Petitioner's appellate counsel asserted claims of prosecutorial misconduct resulting in the deprivation of his rights to a fair trial, to confront witnesses against him, due process and meaningful representation by the presentation of certain testimony and remarks by the prosecutor in summation; deprivation of his rights to due process and a fair trial by the court's denial of his challenge for cause of a prospective juror; and the conviction was not supported by legally sufficient evidence and was against the weight of the credible evidence. By an order dated November 17, 2006, the Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed Petitioner's conviction. People v. Walter, 34 A.D.3d 1259 (App. Div. 4th Dept. 2006). On January 12, 2007, the New York Court of Appeals denied leave to appeal. People v. Walter, 8 N.Y.3d 845 (N.Y. 2007).
While his direct appeal was pending, Petitioner moved the trial court to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") Section 440.10, claiming that the trial court lacked jurisdiction over him, that his conviction was obtained in violation of his constitutional rights, and that he was deprived of the effective assistance of trial counsel. On September 20, 2005, the trial court denied the motion, holding that since all of the issues presented were matters of record, there were properly resolved on Petitioner's pending direct appeal.
This timely habeas petition followed. For the reasons that follow, the petition is dismissed.
III. General Legal Principles
Federal habeas review is available for a State prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Supreme Court has established beyond debate that mere errors of State law are not colorable grounds for Federal habeas relief. See, e.g., ...