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Melvin Lee v. Michaelcully

May 10, 2011

MELVIN LEE, PETITIONER,
v.
MICHAELCULLY, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Petitioner pro se Melvin Lee ("Lee" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention in Respondent's custody as the result of a judgment of conviction entered against him following a jury trial on charges of robbery in the first degree (New York Penal Law ("P.L.") § 160.15(3)) and criminal possession of a weapon (P.L. § 265.02(1)).

II. Factual Background and Procedural History

A. The Trial and Sentencing

On February 13, 2006, at approximately 6:30 p.m., Joel Kitchen ("Kitchen") entered his pickup truck, which was parked in the driveway of his apartment, to go to the airport to pick up his girlfriend. T.311-314 (Numerals preceded by "T." refer to the pages of the trial transcript). As Kitchen backed his truck to the edge of the driveway, he heard a loud banging on the passenger side window. T.314. It was Lee. According to Kitchen, Lee opened up the door and asked Kitchen in an angry tone of voice if he "hated New Orleans niggers". T.315, 317. Shocked, Kitchen said, "excuse me?" Lee again queried, "Do you hate New Orleans niggers?" T. 316. Leethen launched into an explanation of how he had moved to Western New York from New Orleans and opined that his people were being treated unfairly here. T.316-17.

Pulling an eight-inch long kitchen knife from his jacket, Lee sat down in the passenger seat of Kitchen's truck. T.318. Kitchen, who was "pretty scared" by this point, "did not know what to do." T.318. Lee then told Kitchen to drive. T.319.

Petitioner's next inquiry was how much money Kitchen had on him, and Kitchen responded that he had forty dollars. T.319. Petitioner responded, "Well, that's not enough. I need more money to support my family." T.319. Putting the knife back into his coat, Lee gave Kitchen directions on where he wanted him to drive. T.319.

During the drive, Lee repeatedly talked about New Orleans, how people there were being treated unfairly, and that all Americans were racists. T.321. Kitchen did not respond to Lee's diatribe because he was scared about where he was being made to drive. At one point during the drive, Kitchen handed over the forty dollars to Lee. T.322. Kitchen testified that he did not hand over the money willingly, but rather he did so because he was afraid his life was in danger if he did not comply with petitioner's request. Id. Petitioner then told Kitchen that they need to find a store with an ATM so Kitchen could withdraw more money from his bank account. Id.

Kitchen pulled his truck into the driveway of the next store they passed. T.323. Lee stated, "I'm going to come in right behind you and don't try anything stupid." T.324. Kitchen then walked into the store, with Lee about ten feet behind him. Id. Kitchen went to an ATM machine and withdrew sixty dollars, walked over to petitioner, and handed him the money saying "this is all I have, I don't have anymore [sic] in my bank account." T.327. Kitchen then asked if it was "ok to leave," and Petitioner responded, "Yeah, I'm going to follow you out." T.328. Theyboth left the store and then Kitchen got into his truck and drove away. Id.

Detective Christopher Dates ("Det. Dates") testified that, as a result of his investigation, he learned that Lee had never lived in New Orleans. T.421-422. Det. Dates also testified that the knife was not recovered over the course of the investigation. T.423-424.

The jury returned a verdict finding Petitioner guilty of both counts of the indictment. He was subsequently sentenced to a determinate term of ten years of incarceration for the robbery conviction, and an indeterminate term of incarceration of two to four years on the criminal possession of a weapon conviction. Both sentences were set to run concurrently.

B. The Direct Appeal

On direct appeal, Lee's appellate counsel raised several issues and Petitioner also submitted a supplemental pro se appellate brief in which he contended that his conviction was obtained in violation of ...


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