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Neil Wallace v. Dale Artus

March 31, 2011

NEIL WALLACE, PETITIONER,
v.
DALE ARTUS, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In 2002, Petitioner was convicted in a New York State court of Second Degree Attempted Murder and two counts of Second Degree Criminal Possession of a Weapon. Petitioner commenced this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner filed this petition while he was incarcerated at Clinton Correctional Facility. He was subsequently transferred to Wallkill Correctional Facility and then, on November 20, 2010, he was released to parole supervision.

Currently before the Court are Respondent's objections to Magistrate Judge Bianchini's Report and Recommendation in which Magistrate Judge Bianchini recommended that this Court grant the petition and direct New York State to vacate Petitioner's conviction. See Dkt. No. 21.*fn1

II. BACKGROUND*fn2

A. Facts

In the late evening hours of May 19, 2001, Petitioner, a retired police officer, fought with another patron at a bar in Durham, New York. See Tr.*fn3 at 225, 412. During the scuffle, the bar owner, Thomas Furlong, Sr. ("Furlong, Sr."), who knew Petitioner, asked him to stop fighting. See id. at 241. Petitioner hit Furlong, Sr., sending him to the floor. See id. Thomas Furlong, Jr. ("Furlong, Jr."), the bar owner's son, grabbed Petitioner "by his collar and belt and threw him out the door" of the bar and told him not to come back. See id. at 242, 487-88.

Thereafter, at about one o'clock in the morning of May 20, 2001, Petitioner returned to the bar with two .38 special caliber revolvers. See id. at 415, 420; see also Dkt. No. 3 at 2. Upon entering the bar, Petitioner spotted Furlong, Jr. and began shooting. See Tr. at 415. Petitioner followed Furlong, Jr. as he ran out of the back of the bar and continued shooting. See id. Petitioner then got into his van and drove away. See id. at 418. No one was injured.

Petitioner was arrested at his home a short while later and gave a statement to the police confessing to firing shots, but stated that Furlong, Jr. had physically harmed him and that he only wanted to scare him. See id. at 411-21. Thereafter, a Greene County Grand Jury returned Indictment Number 01-094, which charged Petitioner with two counts of Attempted Murder in the Second Degree, two counts of Criminal Possession of a Weapon in the Second Degree, and one count of Reckless Endangerment in the First Degree.

B. Procedural history

Petitioner's trial began on April 29, 2002, in the Greene County Court, with Judge George J. Pulver presiding. At trial, Dennis B. Schlenker, Esq. represented Petitioner. At the conclusion of trial, the jury found Petitioner guilty of one count of Attempted Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree. See id. at 771-74.*fn4 On July 9, 2002, the court sentenced Petitioner to a determinate term of ten (10) years imprisonment for his conviction for Attempted Murder in the Second Degree and a determinate sentence of ten (10) years imprisonment for each of his two convictions for Criminal Possession of a Weapon, to run concurrently with his sentence for Attempted Murder in the Second Degree.

Petitioner, represented by Carl J. Silverstein, Esq., appealed his conviction to the Appellate Division, Third Department. Petitioner asserted that his conviction for Attempted Murder in the Second Degree was against the weight of the evidence.

In a June 10, 2004 decision, the Third Department affirmed Petitioner's conviction. See People v. Wallace, 777 N.Y.S.2d 817 (3d Dep't 2004). The Third Department found that the conviction was not against the weight of the evidence and that Petitioner's claim that he was merely trying to scare Furlong, Jr. was an issue for the jury to resolve. See id. at 820. On August 31, 2004, the New York State Court of Appeals denied Petitioner's application for leave to appeal. See People v. Wright, 3 N.Y.3d 682 (2004).

In May of 2005, Petitioner, acting pro se, filed an application for a writ of error coram nobis. Petitioner argued that his appellate counsel unreasonably failed (1) to argue that his trial counsel was ineffective for failing to remove a potential juror for cause based on the juror's statement during voir dire that he could not be fair and impartial; (2) to raise the issue of the trial court's error in allowing damaging photographs of a "sixth" bullet hole found on the rear door of the bar without requiring the prosecution to lay a proper foundation; (3) to argue that his trial counsel was ineffective for failing to seek a jury charge on the lesser included offense of attempted assault in the second degree; and (4) to argue that the indictment was defective for charging Petitioner with both intentional conduct (attempted murder) and reckless conduct (reckless endangerment) when the evidence supported only recklessness.

On August 16, 2005, the Appellate Division, Third Department, denied the application. On January 25, 2006, the New York State Court of Appeals denied Petitioner's application for leave to appeal.

Petitioner, proceeding pro se, commenced this action on April 3, 2006. In his petition, Petitioner asserted that he was denied the effective assistance of appellate counsel and that the evidence was insufficient to sustain the attempted murder conviction. See Dkt. No. 3. In September of 2006, Petitioner filed a supplemental memorandum of law adding a further argument in support of his ineffective assistance of appellate counsel claim. Specifically, he argued that his appellate counsel was ineffective for failing to raise the issue on appeal that his indictment was defective because it charged Petitioner with both intentional conduct (attempted murder) and reckless conduct (reckless endangerment), where the evidence only supported the charge of recklessness. See Dkt. No. 7.

In a February 3, 2011 Report and Recommendation, Magistrate Judge Victor E. Bianchini found that Petitioner's "appellate counsel unreasonably disregarded an ineffective assistance of counsel claim based upon trial counsel's failure to challenge a prospective juror for cause, where the prospective juror acknowledged biased feelings and never gave an unequivocal assurance that he could be fair and impartial[,]" and, that "Petitioner [was] entitled to habeas relief because the denial of this aspect of his writ of error coram nobis was an unreasonable application of the Strickland standard established by the Supreme Court." See Dkt. No. 17 at 35. Therefore, Magistrate Judge Bianchini recommended that this Court grant the petition and direct the State of New York to vacate Petitioner's conviction immediately. See id. Finally, Magistrate Judge Bianchini recommended that this Court order the State of New York "to release Petitioner from parole supervision within thirty (30) days from the entry of an Order adopting or approving this Report and Recommendation, 'unless New York State has, by that point, taken concrete and substantial steps expeditiously to retry' Petitioner." See id. at 35-36.

III. DISCUSSION

A. Standard of review

When a party makes specific objections to a magistrate judge's recommendations, the district court engages in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (citation omitted). When a party fails to make specific objections, however, the court reviews the magistrate judge's recommendations for clear error. See id. at 306 (citation omitted); see also Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted).

Section 2254 of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs federal habeas corpus review of a state-court conviction.The enactment of the AEDPA brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006), cert. granted, judgment vacated and case remanded on other grounds by 549 U.S. 1163 (2007), that a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Id. at 73 (quoting 28 U.S.C. § 2254(d)) (footnote omitted); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005) (quotation omitted); Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003) (quotation omitted).

In providing guidance concerning the application of this test, the Second Circuit has observed that a state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362] at 405-06, 120 S. Ct. 1495 [(2000)]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001) . . . . [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413, 120 S. Ct. 1495.

Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

Significantly, a federal court engaged in habeas review is not charged with determining whether the state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000); see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citation omitted). Courts have interpreted "objectively unreasonable" in this context to mean that "'some increment of incorrectness beyond error'" is required for the habeas court to grant the application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

A state court determines a petitioner's federal claim "on the merits" and triggers the highly-deferential AEDPA standard of review when the state court "(1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan, 261 F.3d at 312 (quotation omitted). In this regard, it is not necessary for the state court to ...


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