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Andrew Figgins v. James Conway

May 25, 2011

ANDREW FIGGINS, , PETITIONER,
v.
JAMES CONWAY, RESPONDENT.



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

04-B-2343

ORDER

I. Introduction

Pro se petitioner Andrew Figgins ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of Burglary in the Second Degree (N.Y. Penal L. § 140.25(2)) in Monroe County Court, following a jury trial before Judge John Schwartz. Petitioner was sentenced as a persistent violent felony offender to an indeterminate prison term of sixteen years to life.

II. Factual Background and Procedural History

Petitioner's conviction stems from an incident that occurred on the afternoon of August 19, 2003, during which petitioner was observed exiting a house in the City of Rochester carrying a chainsaw. The eyewitness, Patrick Burke ("Burke"), the owner of the home and the chainsaw, yelled for neighbors to call 911. Burke then took a small knife out of his pocket and asked what petitioner was doing with his chainsaw. Petitioner asked Burke if he would let him go because "he didn't get nothing." He then told Burke that he was diabetic and asked for some water. Burke testified that he offered to turn on the faucet on the outside of the house for petitioner to get a drink. When Burke went to turn the water on, petitioner dropped the hose, which he had been holding, ran toward an empty lot, and jumped over a fence. At some point during their conversation, petitioner offered to sell Burke a camera. Trial Tr. 289-308, 317.

A neighbor, Brenda Smith, heard Burke yelling for someone to call 911, and observed petitioner exiting Burke's house carrying "something real bulky." After coming downstairs, she looked out her front door and saw petitioner running away. Trial Tr. 324-36.

A short time later, another neighbor, Thomas Woodfield ("Woodfield"), approached Burke, who was with a crowd of people who had gathered near his house at the Corner of Chace and Aab Streets. After Burke told Woodfield what had happened, Woodfield went into his backyard and found petitioner hiding in a crawl space under his kitchen. Petitioner repeatedly asked Woodfield, "don't do this." Rochester Police Officer James Noble, who was patrolling the area, was directed to Woodfield's backyard where he arrested petitioner. Trial Tr. 356-82.

At trial, petitioner denied entering Burke's covered porch and having possessed Burke's chainsaw. Petitioner testified that he was walking home from his sister's house carrying a duffel bag full of DVDs when he began to feel dehydrated. Petitioner was diabetic, and had not taken his insulin in two to three weeks. Feeling that he needed something to drink, he went into Burke's backyard because he saw a truck out front and assumed "somebody was doing some kind of work or something." Seeing nobody around, petitioner knocked on the back door. When nobody answered, he attempted to open the screen door. According to petitioner, as he grabbed the doorknob, Burke appeared and asked him what he was doing "coming off his back porch." When petitioner denied being on the porch, Burke "pulled out a little knife" and told petitioner to sit down. Petitioner then told Burke that he was a diabetic and needed water, and said that he was going to get Burke's garden hose to drink from. According to petitioner, when he went to retrieve the hose, Burke threatened to "poke" him with the knife. Attempting to "throw [Burke] off," petitioner offered to sell him DVDs. Burke declined, and called for someone to call the police. Petitioner then hopped over a fence and began "walking real fast." Trial Tr. 394-402, 405.

Petitioner also denied hiding in the crawl space beneath Woodfield's house. According to his testimony, he was "stashing" the DVDs under the porch because he bought them while getting high and didn't know where they came from, and wanted to get rid of them before the police came. Trial Tr. 402-06.

The jury found petitioner guilty of second-degree burglary. Trial Tr. 500. Following a hearing, petitioner was adjudicated a persistent violent felony offender and was subsequently sentenced to sixteen years to life imprisonment. Sentencing Tr. 30.

Petitioner filed an appeal in the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Figgins, 48 A.D.3d 1042 (4th Dept. 2008), lv. denied, 10 N.Y.3d 840 (2008). Petitioner also filed an application for writ of error coram nobis in Fourth Department; that application was also denied. People v. Figgins, 68 A.D.3d 1823 (4th Dept. 2009). It does not appear that petitioner sought leave to appeal that denial.

The instant habeas petition (Dkt. #1) followed, in which petitioner raises the following grounds for relief: (1) insufficiency of the evidence; (2) the prosecutor improperly cross-examined petitioner regarding his prior convictions; (3) the trial court erred in failing to dismiss the jury pool; (4) the trial court erroneously allowed the prosecution to introduce evidence of petitioner's prior bad acts; (5) the trial court erred in refusing to allow petitioner to challenge the constitutionality of his prior convictions before sentencing him as a persistent violent felony offender; (6) ineffective assistance of trial counsel; and (7) ineffective assistance of appellate counsel. Petition ("Pet.") ¶ 22(A)-(G).

The respondent submits that petitioner's claims are either unexhausted, procedurally barred, unreviewable ...


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