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David Morrison v. Frank Mccray

March 21, 2011

DAVID MORRISON,
PETITIONER,
v.
FRANK MCCRAY, SUPERINTENDENT, GOWANDA CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Introduction

Petitioner David Morrison ("petitioner"), who is represented by counsel, has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of felony driving while intoxicated (N.Y. Veh. & Traf. L. §§ 1192(3), 1193(1)(c)(i)) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511(3)(a)(I)) in Erie County Court following a jury trial before Judge Timothy J. Drury. Petitioner was subsequently sentenced to one and one-third to four years imprisonment.

II. Factual Background and Procedural History

On August 16, 2005, at approximately 9:00p.m., two motorists observed a white pickup truck swerving on the road and called 911, advising the dispatcher that they were following the truck and that it appeared that its driver was intoxicated. Petitioner, who parked and exited the white truck outside of his residence in East Amherst, New York, was approached by a police officer from the Town of Amherst Police Department. After failing a series of field sobriety tests, he was subsequently arrested. Record on Appeal ("R.") 446-464, 468-470, 581-599.

At trial, petitioner's position was that he was not operating the truck that evening. Rather, petitioner was dropped off at his house by his son-in-law, who had gotten out of the truck and was picked up by his wife at petitioner's residence, unbeknownst to any of the eywitnesses. Petitioner claimed that, although he was seen exiting through the driver's door of the truck, it was because his son-in-law parked in a manner that made it impossible to exit through the passenger side. R. 797-798, 862.

The jury returned a verdict of guilty, see R. 826, and petitioner was subsequently sentenced to one and one-third to four years incarceration. R. 1503-1504.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Morrison, 48 A.D.3d 1044 (4th Dept. 2008), lv. denied, 10 N.Y.3d 867 (2008). Petitioner then moved to vacate the judgment of conviction and set aside the sentence pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10/20 on the grounds that his trial attorney was ineffective, the verdict was against the weight of the evidence, and that the sentencing court had imposed an illegal bail condition. Those motions were denied by the state court. See Decision & Order, Erie County Court (Franczyk, J.), No. 05-1919, dated 5/9/2008. Leave to appeal that decision was denied by the Appellate Division, Fourth Department. See Order of the Appellate Division, Fourth Department (Lunn, A.J.), KA 08-01327, dated 9/23/2008.

The instant habeas petition followed, in which petitioner raises the following grounds for relief: (1) ineffective assistance of counsel; (2) denial of due process at the sentencing proceeding; and (3) illegal and unauthorized sentence. Petition ("Pet.") ¶ 12. For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. Standard of Review for Federal Habeas Corpus Petitions

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).

B. Merits of the Petition

1. Ineffective Assistance of ...


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