The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner pro se Jerry Sweney ("Sweney" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in state custody as the result of a judgment of conviction entered against him in New York State Supreme Court (Erie County), following a jury trial, on charges of robbery in the third degree (New York Penal Law ("P.L.") § 160.05) and resisting arrest (P.L. § 205.30). The gravamen of the charges was that Sweney stole certain items from a Tops Grocery Store and then resisted arrest. Sweney was sentenced on June 29, 2006, to an indeterminate term of imprisonment of 31/2 to 7 years for the robbery conviction and a one-year concurrent term for the resisting arrest conviction. His conviction was unanimously affirmed on October 3, 2008, and leave to appeal was denied on December 16, 2008. People v.Sweney, 55 A.D.3d 1350 (App. Div. 4th Dept.) 11 N.Y.3d 901 (N.Y. 2008).
In his petition, Sweney. Respondent has asserted the defense of procedural default with regard to certain of Sweney's claims and argues that none of the claims warrant habeas relief.
Sweney filed a traverse in reply to respondent's opposition.
The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
For the reasons discussed below, the petition is dismissed.
II. Standard of Review Under 28 U.S.C. § 2254, as Amended by AEDPA
When a petitioner "in custody pursuant to the judgment of a State court" seeks habeas review of "any claim that was adjudicated on the merits in State court," a habeas writ may issue only if the state court adjudication:
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2). A state court decision is "contrary to" federal law as determined by the Supreme Court if either (a) "the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law," or (b) "the state court considers facts that are materially indistinguishable from a relevant Supreme Court case and arrives at an opposite result." Williams v. Taylor, 529 U.S. 362, 405 (2000)). An "unreasonable application" of clearly established federal law occurs if (a) "'the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,'" or (b) the "state court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply, or fails to extend it where it should apply." Williams, 529 U.S. at 407.
Factual findings by a state court are entitled to a presumption of correctness, 28 U.S.C. § 2254(e)(1), which the habeas applicant bears the burden of overcoming by clear and convincing evidence, id.
III. The Adequate and Independent State Ground Doctrine and Procedural Default
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations and internal quotations omitted). Even where the state court also considers a petitioner's arguments on the merits, that is of no moment because "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10; accord Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).
To show a "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992) ("The miscarriage of justice exception is concerned with actual as compared to legal innocence."). The Supreme Court has emphasized that the exception has a "narrow scope," Sawyer, 505 U.S. at 339. "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial[,]" Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); accord Calderon, 505 U.S. at 339.
IV. Analysis of the Petition
A. Insufficiency of the Evidence as to the "Use of Force" Element of Third Degree Robbery
On direct appeal, Sweney argued that the evidence was legally insufficient with regard to his use of force in the taking of the property, thereby invalidating the third degree robbery conviction. The Appellate Division held that "[i]nsofar as defendant contends that the evidence is legally insufficient to support the robbery conviction because the taking of property was completed before any use of force or threats, we conclude that he failed to preserve that contention for our review[.]" People v. Sweney, 55 A.D.3d at 1351 (citing People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 (N.Y. 1995)). As Respondent argues, Sweney's insufficiency-of-the-evidence claim is procedurally barred due to the Appellate Division's reliance upon People v. Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919, as an "adequate and independent state ground," to dismiss the claim as unpreserved. See Harris v. Reed, 489 U.S. 255, 260-61, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (Federal habeas corpus review of a state conviction is prohibited if a state court judgment is based on an "adequate and independent state ground," such when the state court "explicitly invokes a state procedural bar rule as a separate basis for decision.").
In New York, an objection to the legal sufficiency of the evidence takes the form of a motion to dismiss. People v. Thomas, 36 N.Y.2d 514, 369 N.Y.S.2d 645, 330 N.E.2d 609, 610 (N.Y.1975). The motion must be made in order for an insufficient evidence claim to be preserved for review, People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4 (N.Y.1987), and the motion must be made "at the close of the People's case." Thomas, 36 N.Y.2d 514, 369 N.Y.S.2d 645, 330 N.E.2d 609. Moreover, New York courts have consistently held that a general motion to dismiss is not sufficient to preserve the contention that the evidence at trial was insufficient to establish a specific element of the crime charged. See People v. Gray, 86 N.Y.2d at 20-22. The Second Circuit recognizes New York's contemporaneous objection rule as an independent and adequate state procedural rule barring habeas review. E.g., Richardson v. Greene, 497 F.3d 212, 218 (2d Cir.2007).
"New York's preservation rule, codified at N.Y.Crim. P. Law § 470.05(2), 'require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error.'" Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir.1999) (quoting People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (N.Y.1995)); accord, e.g., Garvey v. Duncan, 485 F.3d 709, 714-15 (2d Cir.2007). "A general objection is not sufficient to preserve an issue since such would not alert the court to defendant's position. Instead New York's highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error." Richardson, 497 F.3d at 218 (quoting Garvey, 485 F.3d at 714-15) (citation omitted; emphasis added in Richardson). Under the circumstances, I find that the Appellate Division relied upon a state ground that was both independent of the federal question and adequate to support the judgment when it rejected of Sweney's insufficiency-of-the-evidence claim based upon the lack of a specific objection. See id.
Sweney has not made the requisite showing of either "cause and prejudice" or a "fundamental miscarriage of justice." Accordingly, the insufficiency-of-the-evidence claim is subject to an unexcused procedural default and habeas review is precluded.
B. Insufficiency of the Evidence on the "Taking from an Owner" Element of Third Degree Robbery
Sweney argues that the evidence was legally insufficient to support the robbery conviction on the ground that the store manager did not have a right of possession to the store merchandise superior to that of himself. The Appellate Division summarily held that this contention lacked merit. People v. Sweney, 55 A.D.3d at 1351 (citing People v. Brown, 108 A.D.2d 922, 923 ("Finally, we find no merit to defendant's contention that there was a fatal variance between the allegations in the indictment and the proof offered at trial because the employee of the store was named as the 'owner' of the stolen property. It is clear that the named employee had a right of possession to the stolen money superior to that of defendant or his coperpetrator who had no right of possession whatsoever[.]") (citations omitted).
Steven Gecewicz testified that on the evening of January 9, 2006, he was the night manager at the Tops Market where the theft occurred. His duties included putting up stock, ordering and taking care of problems as the supervisory person in the store. Around 3:00 a.m. he saw a man enter the store and put two pork loins in his shopping cart. The man subsequently hid behind a display and took 4 or 5 razor blades off the shelf and put them in his pocket. As Gecewicz was telling the cashier to call the police, and saw the man putting more razor blades in his jacket. The man then walked through the register area without paying for any of the items. Gecewicz stopped the man in the vestibule and asked him where the meat and razor blades were. The man replied that he had neither those nor any other items on him, and tried to get by Gecewicz. Gecewicz stated he knew he (Sweney) had them, and instructed him to wait because the police were on their way.
When the man said he had nothing, Gecewicz put out his hand to the chest and asked something to the effect of "what are those?" The man replied that he had a body cast on. The man told Gecewicz to get out of his way or else he would "shoot his ass." The man then pushed Gecewicz's arm down, which was in front of the man's chest, and he walked away. ...