The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Reggie Caswell ("Caswell" or "Petitioner") filed the instant habeas petition requesting release from detention in Respondent's custody. Caswell is incarcerated pursuant to a judgment of conviction against him entered on April 11, 2006, in the New York State, Monroe County Court, after a jury trial, on charges of Robbery in the Second Degree (New York Penal Law ("P.L.") § 160.10(2)(b)), Attempted Robbery in the Third Degree (P.L. §§ 110.00, 160.05), and two counts of Burglary in the Second Degree (P.L. §§ 140.25(1)(d), 140.25(2)).
II. Factual Background and Procedural History
1. The Prosecution's Case
At about 6:20 p.m. on August 27, 2005, Petitioner entered a liquor store on East Avenue in the City of Rochester and encountered Nelson Habecker ("Habecker"), the co-owner, and Scott Schell ("Schell"), the cashier. T.325-26. Under the guise of buying a bottle of gin, Petitioner grabbed Habecker by the shoulder and forced him behind the cash register. T.327, 329. Petitioner stuck his hand in Habecker's back, warned him not to move and threatened to kill him. T.330. Taking a chance that Petitioner was not actually holding a gun to his back, Habecker turned around and faced Petitioner, at which point Petitioner began throwing punches at Habecker. T.330-31.
During the struggle both men fell to the ground, knocking between dozens of liquor bottles off the shelf and onto the floor.
T. 330-31. Petitioner sustained a laceration to his head, presumably from the broken glass, and Habecker sustained minor lacerations as well. T.333-35, 386.
Prior to running out of the store Petitioner threatened to kill Habecker. T.335. Habecker, who was able to activate the silent alarm to notify the police, pursued Petitioner on foot while Schell called 911. T.387. Schell fully corroborated Habecker's account of the robbery. T.381-82.
Petitioner fled to the nearby home of Brian and Ashley Eckman at 1341 Park Avenue. T.451. Mr. Eckman encountered Petitioner, bloodied and smelling of alcohol, at the top of the staircase.
T.489. Petitioner shoved Mr. Eckman into the bedroom where Mrs. Eckman happened to be. T.489. Petitioner restrained Mr. Eckman and pressed a hard object against his back which Mr. Eckman believed to be a gun. T.494-95.
Petitioner told Mr. Eckman, "[Y]ou have a pretty wife, and if you do what I say, she won't get hurt." T.498. He then ordered the couple to lie down on the bed. T.460, 492-93, 495. At the time, Petitioner had one hand behind his back, and both Mr. and Mrs. Eckman thought they were going to be shot. T.460, 496.
When Petitioner demanded cash, Mr. Eckman told Petitioner that he had his money downstairs in the kitchen. T.495. Holding Mr. Eckman from behind, Petitioner walked him downstairs to the kitchen, with Mrs. Eckman in front of them. T.496. Mr. Eckman noticed that Petitioner was bleeding onto his [Mr. Eckman's] clothing. T. 497.3
Once in the kitchen, either Mr. or Mrs. Eckman removed money from Mr. Eckman's wallet and handed it to Petitioner. T.464, 499. When Petitioner demanded more money, Mrs. Eckman stated that she had some in her purse, which was in her car. T.500. Petitioner and the Eckmans then went to the garage, where Mrs. Eckman removed $5 from her purse and handed it to Petitioner. T. 467. She retrieved another $19 and when she attempted to hand it to Petitioner, Petitioner directed her to give it to her husband, who handed money to Petitioner. T.467. Pushing Mr. Eckman into the rear seat of the car, Petitioner ordered Mrs. Eckman to drive them away. T.467, 470.
Meanwhile, Habecker, who had followed Petitioner in an attempt to assist the police, saw Petitioner run between some houses on Park Avenue. Eva Spencer ("Spencer"), who happened to be driving by liquor store, had seen Petitioner and Habecker run outside. T.399. Habecker encountered Spencer during his pursuit of Petitioner. At Habecker's request, Spencer called 911 on her cell phone, and then passed the phone to Habecker, who spoke to the operator. T.336-38. Moments later, Habecker saw Petitioner inside the Eckman's garage.
Rochester Police Officer Michael Grabowski ("Grabowksi")
arrived at the Eckmans' house before Petitioner and the Eckmans drove away. When Grabowski ran down the driveway, Petitioner jumped out of the car with cash in one of his hands. T.472. After a short foot-chase, Petitioner was arrested at nearby gas station.
At the time of his apprehension, Petitioner had a laceration
on his head from which he was bleeding. T.436-37. Grabowski recovered $51 from petitioner. T.550. Following his arrest, petitioner told Rochester Police Sergeant John Woods, "You got the money back, so you caught me red handed." T.569.
Habecker, Schell, and Spencer all observed the police apprehend Petitioner near the gas station. T.343, 389, 411. Shortly thereafter Habecker identified Petitioner in a show-up procedure while Petitioner was seated in a police car outside the liquor store. T.343-44, 434-36. After Habecker viewed Petitioner, Petitioner asked Woods, "Can you ask that old guy over there to come back? I want to tell him that he put up a hell of a fight when I tried robbing him." T.572. Mr. and Mrs. Eckman, and Spencer, also viewed Petitioner sitting in the police car and identified him as the assailant. T.411-12, 474-75, 515.
Video and still photos from the liquor store's surveillance cameras were introduced into evidence. T.347-50.
Petitioner, who acted as his own attorney with the assistance of standby counsel, called no witnesses.
3. The Verdict and Sentencing
The jury found petitioner guilty of second degree robbery, two counts of second degree burglary, and attempted third degree robbery.
The trial court sentenced Petitioner, as a persistent violent felony offender under P.L. § 70.08 to concurrent indeterminate sentences of from twenty-five years to life for the second degree robbery and second degree burglary convictions, and to an indeterminate sentence of twenty years to life on the attempted third degree robbery count, to be served consecutively to Petitioner's other sentences.
B. Post-Conviction Proceedings in State Court
Petitioner's conviction was upheld on direct appeal. People v. Caswell, 56 A.D.3d 1300 (4th Dept. 2008), lv. denied, 11 N.Y.3d 923, recon. denied, 12 N.Y.3d 781, cert. denied sub nom., Caswell v. New York, 129 S. Ct. 2775 (2009). Petitioner filed a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, on April 21, 2009, which was denied on December 7, 1990. See Resp't Exs. S & V. Petitioner also filed a pro se motion to set aside his sentence pursuant to C.P.L. § 440.20 on April 21, 2009, which was denied in part and granted in part on December 7, 2009, see Resp't Ex. S. The trial court denied all of Petitioner's claims save the attack on the sentencing for the attempted third degree robbery conviction, finding that Petitioner was ineligible for sentencing as a violent persistent felony offender on that count. Accordingly, Petitioner was resentenced on January 8, 2010, as a second felony offender to an indeterminate term of two to four years for attempted third degree robbery, to be served consecutively to the other sentences.
C. The Federal Habeas Petition
In his timely-filed pro se petition, Caswell contends that (1) he was deprived of a preliminary hearing and his right to testify in the grand jury; (2)(a) the verdict was against the weight of the evidence, (b) the evidence was legally insufficient to establish his guilt, and (c) he is actually innocent; (3) the first count of the indictment (second degree robbery under P.L. § 160.10(2)(b)) was duplicitous; (4) the prosecution concealed exculpatory material (Mr. Eckman's clothing); (5) the prosecution withheld two police reports which constituted Brady*fn1 material; (6) the trial court erroneously refused to instruct the jury on the defense of justification; (7) the trial court erred in not removing the prosecutor from the case; (8) New York Civil Practice Law & Rules ("C.P.L.R.") 5525, governing settlement of the transcripts for appeal purposes, was unconstitutionally applied; (9) his direct appeal was not meaningful because the prosecutor refused to provide Petitioner with copies of certain exhibits; (10) New York's persistent violent felony statute, P.L. § 70.10, is unconstitutional; (11) the sentencing court erred in imposing consecutive sentences; (12) the prosecution did not establish that Petitioner had two predicate violent felony convictions; (13) he was improperly sentenced as a persistent violent felony offender based on a prior Illinois conviction; and (14) his sentence was harsh and excessive.
Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies unless "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B). In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court adopted a "total exhaustion" rule by holding that a "mixed petition," i.e., a petition containing both exhausted and unexhausted claims, should be dismissed as a whole, "leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Id. at 510.
In 1996, Congress modified this "exhaustion rule" by the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which amended 28 U.S.C. § 2254(b)(2) to read as follows: "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2) (emphasis supplied). The Second Circuit and other circuit courts of appeals have interpreted this provision to allow courts to deny mixed petitions on the merits, but not to allow courts to grant mixed petitions on the merits. See Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001) (discussing the amendment of 28 U.S.C. § 2254(b)(2) and stating that "[a] district therefore now has the option of denying mixed petitions on the merits"); Moore v. Schoeman, 288 F.3d 1231 (10thCir. 2002); see also Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Respondent concedes that Petitioner has fully exhausted all of his claims except the following: deprivation of the right to a meaningful appeal and access to the courts based upon the prosecutor's failure to provide Petitioner with certain exhibits; failure to establish the request two predicate violent felony convictions for purposes of sentencing Petitioner as a persistent violent felon; erroneous imposition of a consecutive sentence; harshness and excessiveness of Petitioner's sentences.
The Court has reviewed the record of the state court proceedings and the law concerning the habeas statute's exhaustion requirement, and it appears that Respondent is correct. However, all of Caswell's claims may readily be denied on the merits. Therefore, in the interest of judicial economy, and under the authority of 28 U.S.C. § 2254(b)(2), the Court will not discuss the exhaustion issue further and will proceed directly to the merits of Caswell's claims. See Boddie v. New York State Div. of Parole, 285 F. Supp.2d 421, 428 (S.D.N.Y.2003) ("[I]n habeas corpus cases, potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit.") (quotation omitted).
IV. Analysis of the Petition
A. Errors at the Preliminary Hearing and the Grand Jury
Petitioner contends that he was deprived of his right to a preliminary hearing and his right to testify before the grand jury. Neither claim presents a cognizable ...