The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Antoine Freeman ("Freeman" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction following a jury trial in New York State Supreme Court (Monroe County) on one count of third degree burglary. Petitioner, who was adjudicated as a persistent felony offender, is currently serving an indeterminate sentence of fifteen years to life at Attica Correctional Facility.
II. Factual Background and Procedural History
Freeman's conviction stems from incident that occurred on September 23, 2003, at the Hess gas station and convenience store on Jefferson Road in Brighton. Christopher Hickey ("Hickey"), one of two employees on duty at the time, testified that at about 8:30 p.m., a black male walked up to him from within the store and briefly conversed with him.*fn1 The man, who had an unlit cigarette dangling from his lips, was wearing a white shirt, a bracelet on his left arm, and a hat facing backwards.
When the man had finished his conversation with Hickey, he walked toward the front of the store and bent down as if reaching for something. Because boxes and aisles blocked his view, Hickey could not see exactly what the man was doing. As the man straightened up, Hickey observed that he had picked up two delivery-type boxes of cigarette cartons, each about three by two feet in size. The man turned around and left the store, carrying the boxes.
Hickey was confused because the only place that delivery boxes of cigarette cartons were located in the store was behind the front counter or in a back storage area, both of which were off-limits to store customers. Hickey's suspicions were confirmed when a customer told him that she had just observed something odd--a black male had left the store with some big boxes in his arms.
Hickey went into the back store room where the surplus cartons of cigarettes were stored in a metal cage, the door of which did not "look right." When he touched the door, it fell off its hinges. Hickey then called the police.
The store's four video surveillance cameras, which were set daily to continuously record the front of the store, yielded a videotape depicting the black male to whom Hickey had spoken, as well as several still photogrpahs. Hickey identified the individual depicted in both the videotape and the still photographs as Freeman.
The jury returned a verdict convicting Freeman as charged in the indictment of third degree burglary. Following a persistent felony offender hearing pursuant to C.P.L. § 400.20, the trial judge adjudicated Freeman as a persistent felony offender and imposed an indeterminate term of 15 years to life.
On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed the conviction. People v.Freeman, 38 A.D.3d 1253 (App. Div. 4th Dept. 2007). Leave to appeal to the New York Court Appeals was denied.
This timely habeas petition followed in which Freeman asserts the following grounds for relief: (1) a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) insufficiency of the evidence; and (3) erroneous denial of a jury instruction on circumstantial evidence. After being granted repeated extensions of time, Freeman filed a motion to amend the petition and to have the petition held in abeyance while he exhausts several claims of ineffective assistance of trial counsel. Respondent has opposed Freemen's motion.
For the reasons that follow, the request for a writ of habeas corpus is denied and the petition is dismissed. The motion to amend ...