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Leno W. Gee v. Dale Artus

June 6, 2011

LENO W. GEE, PETITIONER,
v.
DALE ARTUS, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se Petitioner Leno W. Gee ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered February 9, 2006, in New York State, County Court, Monroe County (Richard A. Keenan, J.), convicting him, after a jury trial, of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15[4]). Petitioner was sentenced as a second violent felony offender to a determinate sentence of fifteen years imprisonment, with five years post release supervision.

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

The charges arise from an incident that occurred on May 11, 2005, wherein Petitioner approached James Burnette ("Burnette" or "the victim") as he was working in a construction yard in the City of Rochester and robbed Burnette of money by threatening him with a gun that he displayed from inside a bag.

Petitioner was apprehended on May 17, 2005 after the victim's ex-wife, who had witnessed the end of the robbery, observed Petitioner in the same vicinity where the robbery had occurred and called 911. Trial Trans. [T.T.] 289-306, 338-342. After Petitioner was apprehended, the victim and the victim's wife identified Petitioner to police as the individual who had robbed Burnette the week before. Hr'g Mins. [H.M.] of 11/21/05 65-68, 107-112.

On May 17, 2005, Petitioner was indicted and charged with Robbery in the First Degree. See Resp't App. B at 4.

Prior to trial, Petitioner moved to suppress identification evidence. Following the hearing on Petitioner's motion, the court determined that the identification procedure with respect to Burnette was unduly suggestive and ordered an independent source hearing "within the context of the upcoming trial." T.T. 10.

Following jury selection on December 12, 2005, the trial court explained the independent source hearing procedure to Petitioner and advised him that he had the right to attend the hearing, but that he could give up that right. The trial court instructed defense counsel to discuss the matter with Petitioner and advise the court the next morning before the hearing of Petitioner's decision. T.T. 220-221.

The following day, before the independent source hearing commenced, defense counsel indicated that Petitioner was waiving his right to be present at the hearing. The trial court noted that counsel had discussed the waiver with Petitioner the day before, and that Petitioner was legally entitled to waive his presence. The hearing then commenced, at the close of which the court found that Burnette had an independent basis for identifying Petitioner and permitted Burnette to identify Petitioner at trial. T.T. 223, 261, 292.

At the close of Petitioner's trial, he was found guilty as charged. T.T. 458. He was subsequently sentenced as a second violent felony offender to a determinate sentence of fifteen years imprisonment, with five years post release supervision. Sentencing Mins. [S.M.] 7, 16.

On November 14, 2008, the Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed Petitioner's judgment of conviction, and leave to appeal was denied. People v. Gee, 56 A.D.3d 1205 (4th Dep't 2008) (Resp't App. E), lv. denied, 12 N.Y.3d 758 (2009) (Resp't App. H).

No collateral motions were brought by Petitioner. This habeas corpus petition followed, wherein Petitioner seeks relief on three grounds, as set forth in detail below. See Pet. ...


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