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Johnny Walker v. Superintendent

September 29, 2011

JOHNNY WALKER, PETITIONER,
v.
SUPERINTENDENT, HAROLD GRAHAM 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 Johnny Walker ("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 August 7, 2006, in New York State, County Court, Orleans County (James P. Punch, J.), convicting him, after a jury trial, of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law ("Penal Law") § 220.16 [1]), Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09 [1]), Criminal Impersonation in the Second Degree (Penal Law § 190.25 [1]), and Unlawful Possession of Marihuana (Penal Law § 221.05). Petitioner was sentenced, as a second felony offender, to concurrent determinate prison terms of six years on the third-degree drug possession count and three years on the fourth-degree drug possession count, followed by one year of post-release supervision. He was also sentenced to a concurrent, definite one-year term of imprisonment for the criminal impersonation count and an unconditional discharge on the marihuana possession count. Petitioner's sentence was ordered to run consecutively with the undischarged portion of the term remaining on an unrelated conviction.

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

II. Factual Background and Procedural History

By Orleans County Indictment No. 05-78, Petitioner was charged with Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law ("Penal Law") § 220.16 [1]), Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09 [1]), Criminal Impersonation in the Second Degree (Penal Law § 190.25 [1]), and Unlawful Possession of Marihuana (Penal Law § 221.05). The charges arose from an incident that occurred on October 10, 2005 in the Village of Albion.

On that date, then 15-year-old Antane Lopez ("Lopez"), went to a pool hall in the Village of Albion with her sister, Chavai, Petitioner, Petitioner's sister, Alexis Spencer ("Spencer"), and a man named "Jay." Trial Trans. [T.T.] 156-159, 232. After about an hour at the pool hall, where she smoked marihuana, Lopez prepared to go home. Before leaving, Petitioner gave Lopez a bag containing crack cocaine to hold for him. Aware that the bag contained crack cocaine, Lopez put the drugs inside her bra. T.T. 160-162, 170- 173. Leaving in the same truck in which they arrived, Spencer drove the vehicle, Petitioner sat in the front passenger seat, Lopez sat in the rear passenger seat, and a man named Kenny McNeil sat in the rear seat behind the driver, and "Jay" sat between McNeil and Lopez. T.T. 163-164, 233.

Shortly after leaving the pool hall, at about 8:30 p.m., Investigator Joseph Sacco, Sergeant Luft, and other police officers, pulled over the truck. T.T. 165, 183. Before the officers approached the truck, Lopez told Spencer that she had drugs in her bra. Petitioner then gave Spencer money to hold for him. T.T. 233. While Sergeant Luft spoke with Spencer, Investigator Sacco approached Petitioner and asked for identification. Petitioner had no identification documents, but said that his name was Sylvester Downs. T.T. 183, 184. Investigator Sacco searched Petitioner and recovered a marihuana cigarette. Petitioner was then arrested. T.T. 185.

Lopez was removed from the truck and placed in a police car. When the police asked her if she possessed any contraband, she initially stated that she did not. However, when she was transported to the precinct, she removed the cocaine from her bra and surrendered it to Investigator Sacco. T.T. 165-166. Lopez subsequently received immunity from prosecution for the drugs in her bra in exchange for her testimony against Petitioner. T.T. 169-170.

Petitioner presented no evidence at trial.

After a jury trial, Petitioner was found guilty as charged. T.T. 313. Subsequently, he was sentenced, as a second felony offender, to concurrent, determinate prison terms of six years on the third-degree possession count and three years on the fourth-degree possession count, followed by one year of post-release supervision. Petitioner was also sentenced to a concurrent, definite one-year jail term on the criminal impersonation count and an unconditional discharge on the marihuana possession count. Petitioner's sentences were ordered to run consecutively to the undischarged portion of the term remaining on his unrelated convictions. Sentencing Mins. [S.M.] 5, 9-10.

The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction on April 25, 2008. People v. Walker, 50 A.D.3d 1452 (4th Dep't 2008) (Resp't Ex. E); lv. denied, 11 N.Y.3d 795 (2008) (Resp't Ex. G.). On January 6, 2009, the New York Court of Appeals denied Petitioner's application for reconsideration. See Resp't Ex. H.

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) his drug possession convictions were not supported by legally sufficient evidence; (2) his drug possession convictions were not supported by the weight of the evidence; (3) he was denied a fair trial because of the prosecutor's remarks on summation; (4) ineffective assistance of trial counsel; (5) the trial court erred in refusing to rule on Petitioner's pro se motions; and (6) the prosecutor committed misconduct during the grand jury proceedings. See Pet. ¶ 16A-E (Dkt. No. 1); Pet'r Response (Dkt. No. 22).

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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