APPEARANCES: OF COUNSEL: KEVIN HALL Petitioner, pro se 07-A-3922 Great Meadow Correctional Facility P.O. Box 51 Comstock, NY 12821 HON. ERIC T. SCHNEIDERMAN THOMAS B. LITSKY, ESQ. Attorney General for the State of New York Ass't Attorney General Attorney for Defendant 120 Broadway New York, NY 10271
The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
The state court records reflect that on October 14, 2006, Cheryl White lived in a house on Hudson Road in Albany, New York. See Transcript of Trial of Kevin Hall (5/14/07) ("Trial Tr.") at p. 216. When she returned to her home at approximately 2 a.m. on October 15, 2006, she noticed that the back door to her home was partially open and her telephone answering machine and jewelry box were missing. Id. at pp. 216-17.
The following day, Patrick O'Keefe, who lived in a house on Tudor Road in Albany, id. at p. 233, returned to his home at about 9:30 p.m. and noticed that a light which he had turned off in a bedroom had been turned on, and the lock to the door to his residence had been "completely ripped off the [side] door." Id. at pp. 234-35. Upon further investigation, O'Keefe discovered that a laptop computer was missing from the dining room of his home, several drawers of a dresser in his bedroom had been emptied, and a Mastercard credit card was missing. Id. at pp. 235-36.
The record also establishes that on October 16, 2006, William Frye lived in a residence located on Linden Road, near New Scotland Avenue in Albany. Id. at p. 246. On that day, Frye left his house at about 6:00 a.m. and returned home at about 8:45 p.m. that same day. Id. at p. 247. When Frye returned home, he realized that his jewelry box -- where he kept his dog tags and other property -- was missing. Id. at pp. 247-48. Frye subsequently provided the Albany Police Department with a statement concerning the burglary, and also identified several items that belonged to Frye that were recovered by the police during the course of their investigation into the burglary of Frye's home, including a set of dog tags, a Visa debit card, and various other items. Id. at pp. 248-500.
The record further reflects that on the evening of October 16, 2006, at approximately 9:00 p.m., Christopher McKenna was sitting with his wife on the front porch of their home on Van Schoick Avenue when McKenna heard a noise coming from his fenced-in backyard. Trial Tr. at pp. 130-31, 155. Upon investigation, McKenna discovered petitioner, Pro Se Kevin Hall in McKenna's backyard, on a bicycle with a bag over his shoulder. Id. at pp. 131-33. McKenna approached Hall and asked him why he was in McKenna's yard, to which Hall responded that "he was trying to get away from someone." Id. at pp. 133-34. After a brief conversation between the two men, McKenna escorted Hall from McKenna's premises, and Hall rode his bike toward New Scotland Avenue. Id. at pp. 134-35. After a brief discussion about the incident with his wife, McKenna called the police and informed them as to what had just transpired. Id. at pp. 135-36.
Albany Police Officers Salvatore Sturiale and Robert Paone responded to McKenna's call to the police. Id. at pp. 154-55. Officer Paone questioned McKenna concerning the individual whom McKenna had encountered in his backyard, id. at pp. 155-56, after which Officer Paone provided a description of the suspect to other police officers. Id. at p. 156. Officer Sturiale thereafter learned that an individual matching the description of the perpetrator had been stopped by the police. Id. at pp. 136-37. An officer brought McKenna to view that individual, however McKenna informed the police that the man who was being detained was not the same man as the person whom McKenna had previously encountered in his backyard. Id. at pp. 136-37. Later on that evening, Officer Sturiale saw a male riding a bicycle on New Scotland Avenue and carrying several bags. Id. at pp. 156-57. After observing the individual for a period of time, the officer pulled his patrol car near the individual because the officer believed that he matched the description of the intruder in McKenna's yard. Id. at pp. 157-59. Hall then turned his bicycle onto a nearby driveway, abandoned his bicycle, and began running away from the scene. Id. at pp. 159-60. Officer Sturiale called for backup assistance and began pursuing Hall on foot. Id. at pp. 159-60. With the assistance of a police dog, law enforcement agents were eventually able to locate Hall in a backyard, crouching down on the ground, covering his body with a jacket. Id. at pp. 160-65. Hall was thereafter placed under arrest. Id. at p. 165.
At the time of his arrest, Hall was searched and a Visa card bearing the name of William Frye was found in Hall's front pocket. Id. at pp. 165-66. Officer Sturiale testified that when he asked the individual about the card, Hall explained to Officer Sturiale that the card belonged to Hall's cousin. Id. at p. 166. At the time of his arrest, the police also recovered other property that was on Hall's person, including jewelry, Frye's dog tags, cuff links and other items. Id. at pp. 166-67. Following Hall's arrest, Officer Thomas Shea recovered O'Keefe's credit card, White's college identification card and a backpack near the area where Hall had been arrested. Id. at pp. 260-62.
After the police apprehended Hall, an officer returned to McKenna's home and he agreed to accompany the police to the location where Hall was being detained. Id. at pp. 137-38. When they arrived at that location, an officer turned a spotlight on Hall, and McKenna "immediately" recognized the individual who was being detained as the man whom had McKenna had encountered in his yard earlier that day. Id. at pp. 139-40.
As a result of the foregoing, on October 24, 2006, an Albany County grand jury returned a seven count indictment against Hall. See Dkt. No. 32-3 at p. 13 ("Indictment"). In that accusatory instrument, Hall was charged with: (1) second degree burglary and third degree grand larceny (with respect to the White residence); (2) second degree burglary and fourth degree grand larceny (with respect to crimes involving O'Keefe); (3) second degree burglary and fourth degree grand larceny (with respect to crimes involving Frye); and (4) criminal possession of stolen property in the fourth degree. See Indictment, Counts One through Seven.*fn1
Hall's jury trial on the foregoing charges commenced in Albany County Court on May 14, 2007, with Albany County Court Judge Thomas A. Breslin presiding. In Hall's defense to the charges, he testified that on the evening of October 16, 2006, he was looking through trash "for stuff to salvage," with another individual, whose name he did not know. Trial Tr. at pp. 279-280. During the course of that salvaging operation, Hall claimed that he came upon a box of silverware, "costume" jewelry, credit cards and other items which he decided to take. Id. at pp. 286-291. He further testified that after having rummaged through the trash, he rode off on his bicycle and soon thereafter a police officer drove up next to Hall and began honking the horn of the police car. Id. at pp. 300-01. Since Hall had not done anything wrong, he testified that he had no intention of stopping for the officer. Id. at p. 301. When a second police car approached Hall from the opposite direction, Hall believed that he was going to be run off the road, so he rode his bicycle onto a driveway, abandoned the bike and began to leave the area. Id. at pp. 301-03. He explained to the jury that he did not wish to talk to the police at that time because he suffered from post-traumatic stress disorder due to the fact that he had recently been "tortured" by the police. Id. at p. 303. Hall specifically denied telling Officer Sturiale that Hall was a cousin of William Frye, id. at p. 308, and also denied having entered any of the three homes that he was charged with burglarizing. Id. at pp. 308-10.
At the conclusion of his trial, the jury convicted Hall of one count of burglary in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree, all related to the crimes involving the Frye residence. Trial Tr. at p. 422. The jury found Hall not guilty of the charges relating to the homes of White and O'Keefe. Id. at pp. 421-22.
On July 11, 2007, Hall appeared before Judge Breslin for sentencing on the above convictions. See Transcript of Sentencing of Hall (7/11/07) (Dkt. No. 32-16) ("Sentencing Tr."). At that proceeding, the County Court sentenced Hall to a determinate sentence of fifteen years for the burglary conviction, a concurrent, indeterminate sentence of one and one-third to four years for the grand larceny conviction, and a consecutive, indeterminate term of one and one-third to four years relating to Hall's conviction on the charge of criminal possession of stolen property. Id. at p. 19.
Hall appealed the foregoing convictions and sentences to the New York State, Supreme Court, Appellate Division, Third Department. In support of his direct appeal, Hall asserted the following claims: (1) the County Court erred in admitting testimony regarding the pre-trial identification of Hall made by McKenna; (2) the evidence of his guilt was legally insufficient, and the guilty verdict was against the weight of the evidence; and (3) trial counsel was ineffective because he did not raise the issue of whether Hall was mentally competent to stand trial before the County Court. See Appellate Brief on Appeal (3/31/08) (Dkt. No. 32-1) ("App. Br.").*fn2 Hall filed a supplemental Pro Se Appellate Brief in support of his direct appeal. See Dkt. No. 32-9 ("Pro Se Appellate Brief"). In that submission, Hall argued that: (1) he was denied the opportunity to consult with his appellate attorney regarding legal issues that should be considered in his appeal; and (2) he was denied the ability to review the record and trial transcripts in order to prepare his Pro Se Appellate Brief. Id. The Albany County District Attorney ("District Attorney") thereafter filed a memorandum of law in opposition to that appeal. Dkt. No. 32-10.
On December 24, 2008, the Third Department denied Hall's appeal. People v. Hall, 57 A.D.3d 1222 (3d Dep't 2008), leave denied, People v. Hall, 12 N.Y.3d 817 (2009).
Petitioner commenced this action pursuant to 28 U.S.C. § 2254 on July 9, 2010. See Petition, Dkt. No. 1. After Hall filed an amended petition that was not in compliance with the Federal Rules of Civil Procedure, see Dkt. No. 6, petitioner filed a second amended pleading herein on September 21, 2010. See Dkt. No. 8 ("Am. Pet."). In that pleading, Hall asserts numerous grounds in support of his request for federal habeas intervention. Specifically, he argues that the above-described convictions should be vacated because: (1) the stop and arrest of petitioner by the police violated his constitutional rights; (2) he was wrongfully denied the opportunity to question the legality of his detention at the time of his arrest; (3) he was improperly denied his right to testify before the Grand Jury that indicted him; (4) the prosecutor improperly referred to an uncharged crime involving petitioner during the course of Hall's trial; (5) the manner in which the District Attorney prosecuted the case against Hall deprived him of his constitutional rights; (6) he was denied his right to be present at his trial; (7) the evidence presented by the District Attorney regarding the burglary charge of which Hall was convicted was insufficient to sustain the jury's verdict on that charge; (8) certain of the County Court's instructions to the jury were defective; (9) the Appellate Division wrongfully denied Hall access to the state court record in preparing his Pro Se Appellate Brief; (10) he was denied the effective assistance of trial counsel; (11) the prosecutor engaged in misconduct in the related criminal matter which in turn deprived Hall of his right to a fair trial; and (12) Hall's appellate counsel rendered ineffective assistance.*fn3 See Am. Pet.
On February 28, 2011, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Hall's amended petition. See Dkt. No. 30. Respondent has also submitted a memorandum of law in opposition to Hall's Amended Petition (Dkt. No. 31) ("Resp. Mem."), together with various state court records relating to the criminal matter below. See Dkt. No. 32. In opposing Hall's amended petition, respondent argues that petitioner has failed to exhaust many of the claims he asserts in his amended pleading. See Resp. Mem. at pp. 15-22. Alternatively, respondent argues that all of Hall's grounds for relief should be denied as meritless. Id. at pp. 21-74.
On June 29, 2011, Hall filed a traverse in further support of his petition. Dkt. No. 49 ("Traverse").*fn4 This matter is currently pending for disposition.
Respondent initially argues that some of Hall's claims should be dismissed because he failed to fully exhaust those grounds for relief prior to commencing the present action. See Resp. Mem. at pp. 15-22. Therefore, a brief review of the exhaustion doctrine applicable to federal habeas petitions is appropriate.
It is well-settled that a federal district court "'may not grant the habeas petition of a state prisoner unless it appears that the applicant has exhausted the remedies available in the courts of the State.'"Shabazz v. Artuz, 336 F.3d 154, 160 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001)); see also Hill v. Mance, 598 F. Supp. 2d 371, 375 (W.D.N.Y. 2009). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (citations omitted). As the Supreme Court noted in O'Sullivan, "[c]omity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan, 526 U.S. at 844 (citations omitted); see also Galdamez, 394 F.3d at 72 (quotation omitted).*fn5 Thus, it must be determined whether petitioner has fully exhausted the above-mentioned grounds for relief.
A petitioner exhausts his state remedies in the federal habeas context by: "(i) present[ing] the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts); and (ii) inform[ing] that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)). Thus, "in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002) (quoting Daye v. Attorney General of N.Y., 696 F.2d 186, 192 (2d Cir. 1982)); see alsoBerry v. Hulihan, No. 08 Civ. 6557, 2009 WL 233981, at *2 (S.D.N.Y. Jan. 28, 2009) (citations omitted); Jackson v. Senkowski, No. 03 CV 1965, 2007 WL 2275848, at *5 (E.D.N.Y. Aug. 7, 2007). A "state prisoner does not 'fairly present' a claim to a state court" where the state court brief "does not alert [the court] to the presence of a federal claim." Baldwin v. Reese, 541 U.S. 27, 32 (2004); see alsoWilliams v. Breslin, No. 06-CV-2479, 2008 WL 4179475, at *3 (E.D.N.Y. Sept. 9, 2008); Aguilera v. Walsh, No. 01 CIV. 2151, 2001 WL 1231524, at *5 (S.D.N.Y. Oct. 17, 2001) (noting that "fair presentation" requirement of exhaustion doctrine requires "constitutional claims to [be presented] to the highest state court").
As noted above, two briefs were submitted in conjunction with Hall's direct appeal of his conviction. In counsel's appellate brief, counsel claimed that: (1) the Trial Court erroneously allowed McKenna to testify concerning his pretrial identification of Hall; (2) the District Attorney failed to provide sufficient evidence to the jury with respect to the crimes of which Hall was found guilty; and (3) trial counsel rendered ineffective assistance because he failed to raise the issue of Hall's mental competency to stand trial with the Trial Court. See App. Br. Petitioner asserted two additional appellate claims in his Pro Se Appellate Brief; he argued that he was deprived of his right to consult with his attorney before counsel filed his appellate brief, and also that Hall's inability to review the state court record prior to preparing his Pro Se Appellate Brief prevented him from including in that brief "the necessary facts needed to demonstrate . . . all the illegal and intentional actions taken by state governmental officials to unlawfully imprison" Hall. Pro Se Appellate Brief at p. 1.
Careful review of those briefs demonstrate that none of those memoranda referred, in any way, to Hall's current claims which allege that: (1) he was subjected to an illegal stop and seizure (Am. Pet., Ground One; Traverse at pp. 11-14); (2) he was wrongfully denied a preliminary examination to inquire into the legality of his arrest and/or detention (Am. Pet., Ground Two; Traverse at pp. 14-16); (3) state officials improperly failed to transport Hall to the grand jury proceeding so he could testify on his own behalf at that matter (Am. Pet., Ground Three; Traverse at pp. 16-17); (4) the prosecutor engaged in misconduct (Am. Pet., Grounds Four, Five, Thirty through Thirty-Seven; Traverse at p. 8); (5) he was denied his right to be present at his trial because he was placed on suicide watch (Am. Pet., Ground Six; Traverse at p. 17); and (6) the County Court's instructions to the jury as to the terms "inference" and "circumstantial evidence" were improper (Am. Pet., Ground Eight), because Hall's appellate briefs were silent as to the foregoing claims.*fn6 These claims are therefore unexhausted.
Additionally, many of Hall's claims regarding his trial counsel's purportedly inadequate performance are based upon matters evident in the record. Specifically, the following record-based claims concerning the performance of Hall's trial counsel have never been presented by petitioner to the state court: (1) trial counsel failed to argue to the County Court that Hall was subjected to an illegal stop and seizure around the time of his arrest (Am. Pet., Ground Ten); (2) defense counsel did not challenge the fact that Hall was required to wear "a prison wristband" (id., Ground Twelve; Traverse at p. 18); (3) trial counsel failed to object to the prosecution's use at trial of witnesses not disclosed on the District Attorney's witness list (Am. Pet., Ground Fourteen); (4) defense counsel did not object to the prosecution's use of "false evidence" at trial (id., Ground Fifteen); (5) the prosecution called certain witnesses without any objection of trial counsel (id., Ground Sixteen); (6) the cross-examination of prosecution witnesses conducted by trial counsel was inadequate (id., Ground Seventeen); (7) defense counsel failed to object to the introduction of certain evidence at Hall's trial (id., Ground Nineteen); (8) the conduct of trial counsel at Hall's trial was "not professional in front of [the] jury" (id., Ground Twenty); (9) defense counsel's summation included derogatory statements about Hall and contradicted portions of his testimony regarding his defense to the charges against him (id., Grounds Twenty-Two, Twenty-Three); (10) trial counsel wrongfully failed to request jury charges regarding the prosecution's loss of evidence and failure to call certain witnesses (id., Grounds Twenty-Four, Twenty-Five); (11) defense counsel failed to challenge the propriety of the jury's verdict (id., Ground Twenty-Six, Twenty-Seven); and (12) trial counsel failed to object to portions of the pre-sentence investigation report, and thereafter misrepresented certain facts about Hall to the Trial Court at the time he was sentenced (id., Grounds Twenty-Eight, Twenty-Nine); see also Traverse at pp. 21-22.
Since Hall has failed to fairly present any of the above-referenced claims to the state courts prior to commencing this action, they are unexhausted for purposes of this action.
When a habeas petitioner does not fully exhaust his claims prior to commencing an action pursuant to 28 U.S.C § 2254, a federal court may find that there is an absence of available state remedies "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000).
Petitioner cannot now file a second appeal with the Third Department as to any of the above claims because a defendant is "entitled to one (and only one) appeal to the Appellate Division." SeeAparicio, 269 F.3d at 91 (citations omitted). Moreover, "New York does not otherwise permit collateral attacks on a conviction when the defendant unjustifiably failed to raise the issue on direct appeal." Aparicio, 269 F.3d at 91 (citing New York Criminal Procedure Law ("CPL") § 440.10(2)(c)); seeParker v. Ercole, 582 F. Supp. 2d 273, 290 (N.D.N.Y. 2008) (quotation and citation omitted) (Hurd, J.). This procedural bar also prevents a petitioner from properly asserting, through a CPL motion, record-based claims alleging ineffective assistance of trial counsel. McCormick v. Morrisey, ___F. Supp. 2d ___, No. 07-CV-6317, 2011 WL 881814, at *6 (W.D.N.Y. Mar. 14, 2011) (citing Sweet v. Bennett, 353 F.3d 135, 140-41 (2d Cir. 2003)); McCallie v. Poole, No. 07-CV-0473, 2011 WL 1672063, at *9 (W.D.N.Y. May 3, 2011) (finding record-based ineffective assistance claim to be unexhausted and procedurally defaulted); Ortiz v. ...