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Kelly J. Kyle v. Daniel Senkowski

July 19, 2011

KELLY J. KYLE, PETITIONER,
v.
DANIEL SENKOWSKI, SUPERINTENDENT RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Petitioner Kelly J. Kyle ("Petitioner"), through counsel, 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 March 13, 2007, in New York State, County Court, Niagara County (Sara S. Sperrazza, J.), convicting him, after a jury trial, of Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal Law ("Penal Law") § 130.75 [1][a]). Petitioner was sentenced to a determinate term of fifteen years imprisonment with a five year period of post-release supervision.

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

II. Factual Background and Procedural History

On June 12, 2006, Petitioner was indicted by a Niagara County Grand Jury and charged with Course of Sexual Conduct Against a Child in the First Degree (Penal Law § 130.75 [1][a]). Arraignment Mins. of 07/06/06. Prior to trial, Petitioner retained attorney James J. Faso to represent him. Due to a conflict, new counsel (attorney Scott A. Stepien) was substituted and the matter proceeded to trial. See Mins. of 11/03/06, 11/09/06, 11/22/06.

A jury trial was held in Niagara County Court before the Hon. Sara S. Sperazza on January 16-23, 2007. At the close of the trial, Petitioner was found guilty as charged and subsequently sentenced to a determinate term of fifteen years imprisonment with a five year period of post-release supervision. Sentencing Mins. [S.M.] 2, 14.

On November 14, 2008, the Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed the judgment of conviction, and leave to appeal was denied. People v. Kyle, 56 A.D.3d 1203 (4th Dep't 2008); lv. denied, 12 N.Y.3d 785 (2009).

This habeas corpus petition followed, wherein Petitioner seeks relief on the ground that the trial court improperly granted the prosecution's motion to disqualify his first trial attorney (Faso) on the basis of a conflict of interest. See Pet. ¶ 12, Ground One (Dkt. No. 1). This claim is exhausted and properly before the Court.*fn1

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...


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