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Alden Ferguson, Pro Se v. James J. Walsh

April 20, 2011

ALDEN FERGUSON, PRO SE, PETITIONER,
v.
JAMES J. WALSH, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM AND ORDER

Pro se Petitioner Alden Ferguson is currently serving a prison sentence of twenty-five years to life following his August 17, 1995 conviction in New York State Supreme Court, Kings County, for robbery in the first degree, New York Penal Law § 160.15[2]. Pursuant to 28 U.S.C. § 2254, Petitioner challenges his conviction and argues that: (1) he was denied effective access to the appellate process due to a thirteen-year delay in hearing his direct appeal; (2) he was deprived of his right to be present during most of the jury voir dire; (3) he was adjudicated and sentenced as a persistent violent felony offender in violation of his due process rights; and (4) he was denied due process because of judicial bias and prejudice. For the reasons set forth below, the petition is denied.

BACKGROUND

The facts established at trial demonstrated that, on November 25, 1994, in Brooklyn, New York at approximately 11:30 pm, Petitioner and a male accomplice approached Robert Roche. (Trial Tr. ("Tr.") 27.) Petitioner grabbed Roche, threw him against a car, and took several items from him, while the accomplice stood guard with a gun. (Tr. 29-31.) Petitioner then took the gun from his accomplice and held it to Roche‟s head. (Tr. 31.) Petitioner attempted to obtain Roche‟s Metropolitan Transportation Authority employee identification, which Roche had in an inside pocket, by ordering Roche to "drop his pants." (Tr. 34.) Roche escaped by running into the street in front of an approaching police car with his pants below his knees. (Tr. 35.) Roche then witnessed Petitioner placing the gun underneath a car. (Tr. 37.) Roche informed the police officers about the incident, and the officers apprehended Petitioner. (Tr. 36-40.) The police officers also retrieved Petitioner‟s gun. (Tr. 40-41.)

Petitioner‟s trial commenced in New York Supreme Court, Kings County on July 31, 1995. On August 7, 1995, the jury convicted Petitioner of robbery in the first degree. (Tr. 269.) On August 17, 1995, Petitioner was sentenced to a prison term of twenty-five years to life.

On August 18, 1995, Petitioner‟s assigned counsel filed a timely notice of appeal on behalf of Petitioner. (Resp. Ex. E.) On August 21, 1995, Petitioner filed a pro se notice of appeal. Petitioner also moved in the Appellate Division, Second Department ("Appellate Division") for permission to appeal as a poor person and for the assignment of counsel to prosecute the appeal. (Resp. Ex. F.) By order dated December 21, 1995, the Appellate Division denied the motion for permission to appeal as a poor person, "with leave to renew upon proper papers, including [Petitioner‟s] affidavit setting forth" Petitioner‟s full financial situation, including all assets and any sources of income before his conviction, the amount and source of counsel fees paid, and the source and amount of any bail money. (Resp. Ex. G.)

Approximately ten years later, in early December 2005, Petitioner sent a letter to the New York State Court of Appeals ("Court of Appeals") inquiring about his appeal. The Court of Appeals sent a reply dated December 12, 2005, informing Petitioner that no application for leave was made on his behalf and suggesting that Petitioner contact the Appellate Division. (Resp. Ex.L.) Petitioner apparently contacted the Appellate Division, which sent Petitioner a letter stating that the court no longer had the papers Petitioner requested from 1995. (Id.) On June 5, 2006, Petitioner renewed his motion to the Appellate Division for poor person relief and assignment of counsel, and enclosed the requested financial information. (Resp. Ex. J.) By order dated October 24, 2006, the Appellate Division granted the motion for permission to appeal as a poor person and assigned counsel. (Resp. Ex. L.)

In the meantime, by pro se motion dated January 20, 2006, Petitioner had filed a motion in Supreme Court, Kings County to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. (Resp. Ex. H.) In his motion, Petitioner claimed he was denied due process and the effective assistance of counsel at trial, and argued that counsel failed to pursue Petitioner‟s pro se motion to dismiss the indictment, failed to properly address Petitioner‟s sentencing status as a mandatory persistent violent felony offender, and deprived Petitioner of his right to appeal from his judgment of conviction. (Id.) By decision and order dated August 8, 2006, the court denied Petitioner‟s motion. The court noted that, with regard to his speedy appeal arguments, "it is clear that it was [Petitioner‟s] failure to provide paperwork pertaining to his financial status that delayed a decision on the merits from being made." (Resp. Ex. K.) On August 17, 2006, Petitioner moved for leave to appeal to the Appellate Division, but the motion was denied on December 18, 2006. (Resp. Ex. Q.)

On June 26, 2007, Petitioner filed a motion in Supreme Court, Kings County seeking an order granting a writ of habeas corpus and dismissal of the indictment. (Resp. Ex. M.) On October 15, 2007, the Supreme Court denied the application. (Resp. Ex. O.) Petitioner applied for leave to appeal to the Appellate Division, but the application was denied. (Resp. Ex. R.)

On or about May 8, 2008, Petitioner filed his brief in the Appellate Division, thus perfecting the appeal of his conviction. (Resp. Ex. T.) Petitioner argued that he was deprived of his right to be present during most of the jury voir dire and that he was not advised that the trial would proceed in his absence or that the verdict would be legal and binding. Petitioner also argued that his adjudication and sentencing pursuant to New York‟s persistent violent felony offender statute was unconstitutional. (Id.) On January 27, 2009, the Appellate Division affirmed the judgment of the trial court. (Resp. Ex. V.) The court held that Petitioner had "knowingly and voluntarily waived his right to be present for the second day of voir dire after being warned of the consequences of his refusal to return to the courtroom . . . " People v. Ferguson,58 A.D.3d 865, 865 (2d Dep‟t 2009). The court further held that Petitioner‟s objection to being adjudicated and sentenced as a persistent violent felony offender was unpreserved for appellate review, and in any event, the claim was without merit. Id. The Court of Appeals denied leave to appeal on April 1, 2009. (Resp. Ex. W.) Petitioner did not seek a writ of certiorari from the United States Supreme Court.

On or about September 29, 2009, defendant moved for a writ of error coram nobis. (Resp. Ex. X.) In his motion, defendant claimed, among other things, that he received ineffective assistance of appellate counsel, that the delay in the resolution of his appeal violated his right to effective access to the state appellate process, and that his motion to dismiss on speedy trial grounds was improperly denied. (Id.) On March 23, 2010, the Appellate Division denied Petitioner‟s application, stating that Petitioner had failed to establish that he was denied the effective assistance of appellate counsel. See People v. Ferguson, 71 A.D.3d 1046 (2d Dep‟t 2010). On August 4, 2010, the Court of Appeals denied Petitioner‟s application for leave to appeal. (Resp. Ex. AA.)

Petitioner filed this petition for a writ of habeas corpus on April 13, 2009.*fn1 On June 15, 2010, the court granted Petitioner‟s request to amend his petition. On June 25, 2010, Petitioner filed an Amended Petition.

APPLICABLE LAW

I.Standard of ...


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