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Timothy Lundy v. James T. Conway

May 10, 2011

TIMOTHY LUNDY,
PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT, RESPONDENT.



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

03-B-0772,

ORDER

I. Introduction

Pro se petitioner Timothy Lundy ("petitioner") has filed a petition for writ of habeas corpus challenging the constitutionality of his conviction of Murder in the Second Degree (N.Y. Penal L. § 125.25(1)) in Monroe County Court, following a jury verdict before Judge Richard A. Keenan. Petitioner was sentenced an indeterminate term of imprisonment of twenty-five years to life.

II. Factual Background and Procedural History

Petitioner's conviction stems from an incident that occurred during the early morning hours of January 26, 2002, wherein Whitney Morris was shot and beaten to death on Turner Street in the City of Rochester by petitioner and another man, Derrick Gause, following an argument. Trial Tr. 562-586, 708-724, 813-816, 882-903.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) the trial court erred in failing to question the jury pool or grant a mistrial following the excusal of a juror; (2) the trial court erred in failing to order the prosecution to turn over the criminal history reports of civilian witnesses; (3) an erroneous jury instruction on accomplice liability deprived petitioner of a fair trial; (4) cumulative error; and (5) the sentence was harsh and excessive. Resp't Appx. A. The Appellate Division unanimously affirmed the judgment of conviction. People v. Lundy, 48 A.D.3d 1046 (4th Dept. 2008). Petitioner sought leave to appeal to the New York Court of Appeals on the grounds that the accomplice instruction denied petitioner a fair trial and cumulative error. Resp't Appx. F at 1, 3. Leave to appeal was denied on June 27, 2008. Lundy, 10 N.Y.3d 936 (2008).

Through counsel, petitioner moved in state court pursuant to N.Y. Crim. Proc. L. § 440.10 to vacate the judgment of conviction on the basis of newly discovered evidence. Resp't Appx. K. The Monroe County Court denied petitioner's application, and leave to appeal that decision was denied by Fourth Department. Resp't Appx. M, N, R.

Petitioner then brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging the following grounds for relief: (1) the trial court erred in failing to question the jury pool or grant a mistrial following the excusal of a juror; (2)the prosecution should have provided the defense with the criminal history reports of certain witnesses; (3) cumulative error; and (4) the sentence is harsh and excessive. Petition ("Pet.") ¶ 11(A)-(D).

For the reasons that follow, petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. Standard of Review

To prevail under 28 U.S.C. ยง 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence ...


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