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MCCLELLAND v. KIRKPATRICK

April 21, 2011

CARL MCCLELLAND, PETITIONER,
v.
ROBERT KIRKPATRICK, SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Carl McClelland ("McClelland" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his custody following a judgment of conviction entered against him in Erie County Court, after a jury trial, on charges of second degree burglary, fifth degree criminal possession of stolen property, and possession of burglar's tools. McClelland is currently serving an indeterminate sentence of 20 years to life.

The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). (Docket No. 9).

For the reasons that follow, McClelland's request for a writ of habeas corpus is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. The Suppression Hearing

Testimony elicited at the suppression hearing revealed that at 5:00 a.m. on August 15, 2003, Buffalo Police Officer Ronald Ammerman was in his patrol car at Humboldt Parkway and Goulding in the city of Buffalo, when he saw a New York State Police cruiser coming toward him. (SH.8; numbers in parentheses preceded by "SH." refer to pages of the suppression hearing transcript). Officer Ammerman contemporaneously observed McClelland riding a bicycle in the street. It seemed to Officer Ammerman that McClelland was avoiding the trooper's car. As McClelland did so, he "made a jog" up into a driveway and almost fell off the bicycle. (SH.8). When the trooper's car passed by, Officer Ammerman approached Petitioner who was still in the driveway. He was "kind of juggling" two bags and trying to get back up on the bicycle. (SH.10).

Speaking to Petitioner from inside his patrol car, Officer Ammerman asked Petitioner how he was doing; Petitioner responded, "Good." When asked where he was going, Petitioner said he was headed home, explaining that he was coming from his daughter's house and that he was moving to a new residence. (SH.12). Thinking that it was "strange" that Petitioner was moving at 5:00 a.m., Officer Ammerman inquired of Petitioner what he had in the bags; Petitioner responded, "Oils." (SH.12). Officer Ammerman then asked Petitioner if he would mind if he looked in the bags. Petitioner said no, he would not mind, and handed the bags to Officer Ammerman. (SH.12).

Inside the bags Officer Ammerman found several bottles of perfume and cologne. When he asked Petitioner to name some of the perfumes in the bags, Petitioner responded, "CK One." However, there was no bottle of CK One in the bag. (SH.12). Asked to name another, Petitioner told Officer Ammerman that he could not because the officer was making him nervous. (SH.12). Petitioner then stated that the perfumes were his. He contradicted himself, though, saying that they belonged to his daughter. (SH.12). Officer Ammerman testified that during this conversation, he remained inside his car; that Petitioner was free to leave; and that Petitioner never said that he did not want to talk to him any further. (SH.13).

Based upon the contradictions in Petitioner's statements, Officer Ammerman got out of his car and told Petitioner that if he had obtained the bags from an abandoned home, to tell him (Officer Ammerman) and not waste his time. (SH.14). Petitioner said that he had, but was unable to give Officer Ammerman the location of the purported house. Petitioner was also unable to give the officer his daughter's address, from which he claimed he had been moving. (SH.14).

While Officer Ammerman was talking to Petitioner, a man (later identified as Carl DuBois ("DuBois"), the owner of 717 Humboldt Parkway) approached, pointed to the colognes on the trunk of the patrol car and said, "Hey, that's my stuff, my house was burglarized." (SH.15). Officer Ammerman recalled that DuBois stated that he had come home and found his side windows broken and items missing from his home. Seeing the flashing lights on Officer Ammerman's patrol car, DuBois had come to report the burglary. (SH.15-16).

After DuBois was able to identify the contents of the bags without looking inside them, Petitioner was arrested and advised of his Miranda warnings which he acknowledged he understood. (SH.17). At that time, Officer Ammerman told Petitioner to "make it easy on him" and asked him to whom the property belonged. Petitioner nodded toward DuBois and DuBois's wife, who were both standing nearby. (SH.18).

Officer Ammerman testified that while at the scene, a fellow police officer asked Petitioner why he broke the window of the home. Petitioner denied doing so, stating that the door was open and that he had "tapped it." (SH.19).

While being booked at the precinct, and overhearing that the charges would include burglary, Petitioner responded that it would only be trespassing because he had not been caught inside. (SH.19).

Following the hearing, the trial court ruled that the tangible evidence would not be suppressed. The trial court further ruled that Petitioner's statements to the police would be admissible at trial.

B. The Trial

What follows is a brief summary of the evidence adduced by the prosecution at trial, which commenced on August 3, 2004.

Buffalo Police Officer Ronald Ammerman was on patrol in the vicinity of Humboldt Parkway and Goulding at 5:00 a.m. on August 15, 2003, when he observed McClelland riding a bicycle down Humboldt Parkway. T.101 (Numbers preceded by "T." refer to pages of the trial transcript.) As a New York State police vehicle approached, Petitioner made what appeared to Officer Ammerman to be a "furtive" movement into a nearby driveway in an attempt to avoid the trooper's car. T.101. Officer Ammerman pulled his car over to speak to McClelland who had two or three bags and was straddling the bicycle at the end of the driveway. T.104-105. Officer Ammerman asked McClelland his name, what he was doing and where he was coming from and where he was headed. T.105. Petitioner provided his name and said that he was moving from his daughter's house. T.106.

In response to the officer's inquiry concerning the contents of the bags, Petitioner responded "Oils." T.106. When the officer asked if he could look inside the bags, McClelland acceded and handed the bags over. T.106. Officer Ammerman saw that the bags contained several bottles of cologne and perfume, as well as a flashlight and pair of gloves. T.106, 108.

Officer Ammerman recalled that he asked Petitioner to name one of the perfumes and Petitioner responded "CK One." Not finding any bottles of CK One in the bags, Officer Ammerman asked Petitioner to name another. Petitioner told him that he could not because Officer Ammerman was making him nervous. T.107. Noting the contradictions in petitioner's explanations, Officer Ammerman told Petitioner not to waste his time and to admit it if he had gotten the bags from an abandoned house. T.107. Petitioner stated that he had; however, he was unable to give the location or address of the house. T.107.

At this time, Officer Ammerman, believing that "defendant had stuff he shouldn't have," got out of his car to continue his conversation with Petitioner. A man, later identified as Carl DuBois, approached Petitioner and Officer Ammerman. Pointing to the contents of the bags spread out on the trunk of the police car, DuBois announced, "That's my stuff." T.108-109. DuBois informed Officer Ammerman that his home had been burglarized. T.109.

After placing Petitioner under arrest and advising him of his Miranda rights, Officer Ammerman asked Petitioner the name of the person to whom the property. Petitioner nodded toward BuBois who was standing nearby and said, "Him." T.112. Officer Ammerman further testified that while Petitioner was being booked at police headquarters, he overheard Petitioner talking to the report technician concerning the burglary charge to be filed. Petitioner told the report technician that it was not a burglary and that the charge would be reduced to trespass because he had "not been caught inside." T.113.

Toni DuBois ("Mrs. DuBois") testified that she owned and was living at 717 Humboldt Parkway, a single family home, with her husband and two children on August 15, 2003. T.38. At some time between 6:00 and 6:30 p.m., Mrs. DuBois and her family left to go to their rental property at 30 Sweet Street where they were performing repairs in preparation for a housing inspection. T.39-40. Mrs. DuBois locked the doors and windows at 717 Humboldt and turned on the security system. T.51. Mrs. DuBois finished working on the rental property the next morning and left there some time between 4:50 and 5:00 a.m. for the ten-minute ride home. T. 42. Upon their arrival at 717 Humboldt, DuBois dropped his wife off and went to park the car. Mrs. DuBois heard her burglar alarm blaring, and noticed that the side window on her front door was broken. T.43-44. The front door was open and the lights were on in the house. T.43. Mrs. DuBois turned around and went to find her husband to tell him of her discovery. She further testified that she reminded him of the police car they had seen on the corner while coming home, and told him to go and report the burglary. T.46.

Mrs. DuBois, upon entering the house, found it "ransacked, items all over the floor, papers everywhere and stuff missing." T.46. A Wal-Mart bag containing her son's school clothes, an iron and other items, which she had left by the front door earlier that night, was missing. T.46. As she walked through the house, Mrs. DuBois discovered that other property was missing. She identified People's Exhibit 1 as her daughter's bag which the police returned to her, and recalled that the police recovered two jewelry boxes, a camera, an iron and several bottles of perfume and cologne. T.48-49. Several other items which were missing were never recovered. T.51.

Carl DuBois' testified that after his wife alerted him to the burglary, he walked to the corner and approached the police car where the officer was talking to a man at the rear of the car.

T.73-74. DuBois recalled that he saw his wife's bag (People's Exhibit 1) on the trunk of the police car along with other items including his Louis Vuitton belt, an iron, and several bottles of cologne. T.75. DuBois recalled that he had received a phone call from a friend who said that he had been to his home at 717 Humboldt Parkway looking for him at 12:30 a.m., at which time, the friend told him, the alarm had not been sounding. T.84.

B. Verdict and Sentencing

The jury returned a verdict convicting McClelland as charged in the indictment. Based upon McClelland's recidivist status as a persistent felony offender under New York Penal Law § 70.10, the trial court sentenced him on November 12, 2004, to the maximum allowable term--25 years to life.

C. The C.P.L. § 440.10 Motion

While McClelland's appeal was pending before Appellate Division, Fourth Department, of New York State Supreme Court, McClelland filed a pro se motion for vacatur in the trial court on July 14, 2006, asserting, inter alia, that trial counsel was ineffective in failing to provide effective representation at the suppression hearing. The trial judge summarized McClelland's allegations as follows: (1) prior to the suppression hearing, he informed trial counsel that he had been handcuffed, searched, and placed in the police vehicle prior to Officer Ammerman having searched through the two bags Petitioner was carrying on his bicycle handlebars; (2) Petitioner requested that trial counsel move to re-open the suppression hearing after bringing to counsel's attention (a) the contents of a Buffalo Police Department document entitled "Calls-For-Service Inquiry Response" and (b) the misdemeanor criminal information signed by Officer Wendy Collier, Officer Ammerman's partner, which had been turned over to the defense during discovery.

McClelland argued that the "Calls-For-Service Inquiry Response", in which the officers reported that DuBois identified the stolen items at 5:23 a.m., demonstrated that the officers arrested him prior to learning that the property was stolen. According to the misdemeanor information filled out by Officer Collier, the "gloves were recovered in the defendants [sic] left rear pants pocket", which contradicted Officer Ammerman's testimony that he found the gloves and a flashlight in one of the bags. McClelland concluded that trial counsel should have moved to re-open the suppression hearing and used the Calls-For-Service Inquiry Response, the misdemeanor information, and Officer Collier's expected testimony to establish that the police did not have probable cause to arrest McClelland at the time the bags and the gloves were seized.

As to trial counsel's performance at the hearing, the trial judge found that trial counsel "fully cross-examined Officer Ammerman with regard to the initial stop of the defendant and the sequence of the event that followed, attempting to show that Ammerman's recollection was faulty, and that defendant was actually arrested and placed in the police vehicle prior to the victim's identifying the property." C.P.L. § 440.10 Order at p. 3. Trial counsel furthermore made appropriate arguments at the conclusion of the hearing urging the suppression of the seized property and McClelland's statements as the fruits of an unlawful stop. The trial judge concluded that "counsel effectively represented defendant at the suppression hearing (People v. Baldi, 54 N.Y.2d 137)." Id.

With regard to counsel's failure to move to re-open the suppression hearing, the trial judge found that there was "no merit" ...


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