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Raymond Cimino v. James T. Conway

March 2, 2011

RAYMOND CIMINO,
PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT OF ATTICA CORRECTIONAL FACILITY, RESPONDENT.



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

02-B-2364,

ORDER

I. Introduction

Pro se petitioner Raymond Cimino ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of two counts of attempted aggravated assault on a police officer (N.Y. Penal L. §§ 110.00, 120.11) and three counts of first-degree reckless endangerment (§ 120.25) following a jury trial before Justice Donald Mark. Petitioner is currently serving a sentence of imprisonment of fifteen years to life for the instant conviction.

II. Factual Background and Procedural History

On July 26, 2001, two uniformed Rochester Police officers on bicycle patrol observed what they believed to be criminal activity in the area of Saratoga Avenue and Smith Street, and stopped a red Dodge pickup truck in connection with that activity. The driver, (petitioner) responded to the officers' request and began to pull over, but then turned the truck toward one of the officers and accelerated. Officer Michael Nicholls jumped out of the path of the approaching truck; the truck then ran over his bicycle and continued up onto the curb. Petitioner then drove off, leading police on a 20-minute pursuit through the streets of Rochester, during which he drove through stop signs, drove the wrong way down one-way streets, and ran red lights. Trial Tr. dated 7/22/2002-7/29/2002 ("Vol. 1") at 282-294, 371-379, 463-465.

While driving the wrong way on Stanford Street, petitioner drove his truck up onto a curb where an 11-year old girl was standing with her friends. Petitioner drove within a few feet of the girl, who fell backwards off of her bike, and then continued on Sanford until driving over a spike strip laid in the road by New York State police. Petitioner crashed into a parked car, drove onto the sidewalk and into the backyards of houses, nearly hitting another officer, Daniel Berardini, who had been pursuing petitioner on foot. Petitioner's truck then struck a parked patrol vehicle on South Avenue. Petitioner finally stopped when officers fired at his vehicle. Trial Tr. Vol. 1 at 466-482, 617-625, 646-654, 960, 998-1003.

Petitioner told police that he fled from the officers because he knew there was a warrant out for his arrest. He also acknowledged that he had just purchased crack cocaine and wanted to smoke it before he was caught. Petitioner told officers that he did not want to hurt anyone, but acknowledged that the vehicle he was driving had faulty breaks and that he needed to use the emergency brake in order to stop the truck. Trial Tr. Vol. 1 at 1260-1263, 1281-1283.

The jury found petitioner guilty of all five counts in the indictment. Trial Tr. dated 7/31/2002 ("Vol. 3") at 15-16. Following a hearing on the matter, petitioner was adjudicated and sentenced as a persistent felony offender to fifteen years to life imprisonment. See Hr'g Tr. dated 10/25/2002; Sentencing Tr. dated 11/8/2002 at 2-3.

Prior to perfecting his direct appeal, petitioner filed three motions pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440 in Monroe County Supreme Court. On December 23, 2003, petitioner moved to set aside his sentence on the basis that his enhanced sentence violated the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). See Respondent's Appendix ("Resp't Appx.") I. That motion was denied on April 19, 2004, see Resp't Appx. L, and leave to appeal that denial was denied by the Appellate Division May 18, 2004. Resp't Appx. O. Petitioner then filed a § 440.10 motion to vacate the judgment of conviction on July 19, 2004 alleging that the prosecution failed provide the defense with material pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Resp't Appx. P. That motion was denied on January 25, 2005. Resp't Appx. R. Leave to appeal that decision was not sought. Thereafter, on April 12, 2006, petitioner filed another § 440.10/20 motion, raising his Brady claim again also adding a claim of a violation of People v. Rosario, 9 N.Y.2d 286 (1961). Resp't Appx. S. The Supreme Court of Monroe County denied that motion on September 7, 2006, and leave to appeal that denial was denied by the Appellate Division, Fourth Department on June 18, 2007. Resp't Appx. V, Y.

Through counsel, petitioner filed a brief in the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Cimino, 49 A.D.3d 1155 (4th Dept. 2008), lv. denied, 10 N.Y.3d 861 (2008).

Petitioner then filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 18, 2008, alleging the following grounds for relief: (1) the conviction was not supported by legally sufficient evidence and the verdicts were inconsistent;

(2) petitioner was denied his constitutional right to present a defense; (3) the trial court erred in permitting the introduction of evidence of prior bad acts; (4) the trial court erred in denying petitioner's supplemental suppression motion; (5) petitioner's statements to police were involuntary; (6) New York's persistent felony offender statute is unconstitutional; (7) ineffective assistance of trial counsel; and (8) the prosecutor committed a Brady violation. Petition ("Pet.") at 19-48.

For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. 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 unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

2. The Adequate and Independent State Ground Doctrine

It is a well-settled aspect of federal habeas jurisprudence that if "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred" absent (1) a showing of cause for the default and actual prejudice attributable thereto, or (2) a showing that failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A state ground will create procedural default sufficient to bar habeas review if the state ground first was an "independent" basis for the decision; this means that "the last state court rendering a judgment in the case clearly and expressly state[d] that its judgment rests on a state procedural bar." In addition, the state procedural bar must be "adequate" to support the judgment-that is, it must be based on a rule that is "'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

B. Merits of the Petition

1. Sufficiency of the Evidence/Inconsistent Verdicts

As he did on direct appeal, petitioner alleges that the evidence was legally insufficient to support his convictions of attempted assault on a police officer and first-degree reckless endangerment.*fn1 He further contends that the verdicts finding him guilty of those crimes were legally inconsistent. Pet. at 19-31.

On direct review, the Appellate Division held that petitioner failed to preserve his legal insufficiency argument and, in any event, the contention was without merit. Cimino, 49 A.D.3d at 1157 (citing People v. Hines, 97 N.Y.2d 56, 61 (2001)). The appellate court further held that the verdicts finding petitioner guilty of attempted assault on a police officer and first-degree reckless endangerment, which arose from the same act, were "not inconsistent ...


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