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Carl J. Mccoy v. H.D. Graham

April 4, 2011

CARL J. MCCOY,
PETITIONER,
v.
H.D. GRAHAM, RESPONDENT.



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

04-B-2280,

ORDER

I. Introduction

Pro se petitioner Carl McCoy ("petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in Monroe County Court of two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal L. § 265.02(4), (1)) following a jury trial before Judge Frank P. Geraci. Petitioner was sentenced as a persistent violent felony offender to 12 years to life imprisonment.

II. Factual Background and Procedural History

On April 30, 2003, an investigation of a robbery at Ontario Building Supply on York Street in the City of Rochester led police to petitioner, who had been driving a maroon Honda sedan that was observed at the robbery location earlier in the evening. Suppression Hr'g Minutes dated 9/26/2003 ("H.M.") 8-10, 16, 18-20, 25-30, 34-38, 86-87.

When Monroe County Sheriff's Deputy Christopher Fay ("Fay") encountered petitioner at his apartment complex at 194 Crittenden Way, petitioner looked over his shoulder and began to quickly walk away as the deputy approached petitioner in his patrol vehicle. Fay told petitioner to stop, but petitioner began to run through a grassy area between the apartment buildings. H.M. 38-40.

As petitioner ran, he had his hand inside his coat and appeared to pull something out of his pocket. Petitioner ignored Fay's further requests to stop, and continued running. During the chase, petitioner made pulling motions with his pocket, and threw his jacket on the ground as he ran. He was ultimately apprehended near the front of the apartment complex near West Henrietta Road. When the K-9 team arrived and re-traced petitioner's path, police recovered a boot, petitioner's jacket, and a white bag containing a .38 caliber revolver in a nearby ravine. H.M. 40-42, 53-54, 68-69.

Members of the Rochester Police Department then transported petitioner to the Public Safety Building for further investigation of the robbery at Ontario Building Supply. Following petitioner's Miranda waiver, he initially told police that he was taking out his garbage when police started chasing him, and he didn't know anything about a gun. According to petitioner, he had been home all day sleeping because he was up all night selling drugs on West Avenue. He further told investigators that his brother, Bredell, a/k/a Trevon McCoy, had stopped by his apartment and left a bag with a gun in it, and that he only learned of the gun when his girlfriend told him about it. Petitioner then became worried that his parole officer might stop by, so he decided to dispose of the weapon. Petitioner told investigators to call his girlfriend, who would confirm that he had been sleeping all day on April 30, 2003. When investigators called her, however, she told them that petitioner did leave the apartment sometime between lunch and dinner.*fn1 H.M. 43, 61, 88-90, 98-101; Trial Tr. ("T.") 351-362.

Petitioner was found guilty, see T. 480, and was subsequently adjudicated a persistent violent felony offender and was sentenced to aggregate terms of imprisonment totaling 12 years to life. Sentencing Tr. ("S.T.") 10.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) the police lacked reasonable suspicion justifying pursuit and probable cause to arrest petitioner; (2) the trial court erred in failing to dismiss the jury pool because it did not represent a fair cross section of the community; (3) the trial court erred in refusing petitioner's request for a jury instruction regarding "temporary innocent possession"; (4) the trial court erred in providing the jury with an expanded definition of "knowingly"; and (5) the trial court erred in allowing testimonial hearsay into evidence at petitioner's persistent violent felony offender hearing. See Respondent's Appendix ("Appx.") B. The Appellate Division unanimously affirmed the judgment of conviction. People v. McCoy, 46 A.D.3d 1348 (4th Dept. 2007). Petitioner sought leave to appeal to the New York Court of Appeals on all but issues (3) and (5). Appx. F. That application was denied on March 20, 2008. People v. McCoy, 10 N.Y.3d 813 (2008).

Petitioner then filed a timely petition for writ of habeas corpus, raising the same grounds as he did on direct appeal. Petition ("Pet.") ¶ 22(A)-(D) & Attach. For the reasons that follow, petitioner is not entitled to the writ, and the petition is dismissed.

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. Exhaustion Requirement and Procedural Bar

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts". Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).

However, "[f]or exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263, n.9 (1989) (other citations omitted). Under such circumstances, a habeas petitioner "no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. Section 2254(b)." Id.

The procedural bar that gives rise to the finding that the claim should be deemed exhausted works a forfeiture and precludes litigation of the merits of the claim absent a showing of cause for the procedural default and prejudice resulting therefrom or by demonstrating that failure to consider the claim will result in a fundamental miscarriage of justice (i.e., actual innocence). See Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977); see also Sawyer v. Whitley, 505 U.S. 333 (1992).

III. Discussion

B. Merits of the Petition

1. Fourth Amendment Violation ...


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