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Alfred Miller v. Anthony Boucaud

August 8, 2012

ALFRED MILLER, PETITIONER,
v.
ANTHONY BOUCAUD, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Alfred Miller ("Miller" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment entered on March 10, 2004, in the Monroe County Court of the State of New York, following a jury verdict convicting him of Attempted Robbery in the Third Degree (N.Y. Penal Law ("P.L.") §§ 110.00, 160.05) (two counts); Robbery in the Second Degree (P.L. § 160.10(1)); and Petit Larceny (P.L. § 155.25). For the reasons set forth below, the request for a writ of habeas corpus is denied, and the petition is dismissed.

II. Factual Background and Procedural History

A. The Trial

The following is a summary of the testimony presented at Miller's trial.

On June 1, 2003, Scott Chapman ("Chapman") was helping his then-girlfriend Jaimen Brill ("Brill") move into her apartment on Tracy Street. At about 2:45 a.m., he and Brill went out to her roommate's car to retrieve a tool so they could finish assembling a bed. As they were walking the approximately 100-yard-distance to the car, Miller approached them and asked if they had any money. Thinking it was "like a panhandle type of thing", Chapman "kind of just brushed him off" and said "no, we don't have anything." The couple continued walking down the street. However, Miller persisted, stating, "Come back[,] and what you got, I'm speaking to you, my time is valuable. . . ." It made Chapman somewhat nervous, so he gave the keys to Brill and told her to "walk a little bit quicker and -- and hop in the car." See T.147-49.*fn1

Miller then got into a red Dodge Neon, which Chapman recalled had a missing left taillight. After following Chapman and Brill to her roommate's car, Miller positioned his car so that it was blocking them in. See T.193-96. Miller got out and started yelling at Chapman and Brill again, stating that he needed money and saying something along the lines of "I'm not some -- some punk, get down on the street and let me check you out. . . ." T.154. Miller then began making gestures which conveyed to Chapman and Brill that he might have a gun. In addition, Miller repeatedly threatened to go back to his car and retrieve his gun.

At that point, Chapman was facing Miller on the sidewalk, Brill having managed to get into the driver's seat of her friend's car. Miller followed Chapman as he walked over to the passenger's side and got in the car. Miller "started slamming on the window with his fists . . . so hard [they] thought he was going to break the glass, screaming that he would fuck [them] up, he would kill [them], he would go to his car and get his gun." T.159. As soon as Chapman got into the car, he called 911 on his cell phone.

Miller finally ceased his assault on their car, returned to his own vehicle, and drove away. Chapman noted that Miller's car had the license plate "BNU 1116". T.16.

The second incident at issue occurred just shy of two hours later. At about 4:15 a.m., Thomas Herrington ("Herrington") was delivering bundles of newspapers to the ET Plus, a convenience store located on the corner of Clifford and Portland Avenues. As Herrington was sorting papers in the back of his car, he "sensed that there was something there." Herrington moved around to the rear of the car and "there was a guy standing there asking for change or cigarettes or something like that." T.217. Herrington told the man that he did not have either item.

Herrington then grabbed several bundles of newspapers and headed towards the store. He heard the man ask him again for money, and Herrington repeated that he did not have anything. As Herrington turned around, he could hear the "click" of his car door being opened. Herrington dropped the newspapers and turned around to see Miller, his back turned to Herrington, facing inside Herrington's car. Herrington grabbed Miller, pulled him out of the car, and demanded to know what he was doing.

A scuffle ensued, and Herrington saw two men starting to get out of a red Dodge Neon parked behind Herrington's car. Herrington pushed Miller away, got into his car, and closed the door. As Herrington put the car into drive, Miller opened the back door and started removing bundles of newspapers. T.223. Miller then went over to the Dodge Neon, got in on the driver's side, and drove away. Herrington noted that the license plate number was "BNU 11 something". Herrington observed the Dodge Neon, which had a broken tail light, turn up Miller Street.

Having lived in that area for 25 years, Herrington knew that there were only two ways to exit Miller Street--Portland Avenue or Bay Street. Herrington proceeded up Portland to try to intercept the Dodge Neon, which had stopped on Second Street in between Pennsylvania Avenue and Central Park. Herrington then used a pay phone at the corner of Second Avenue and Central Park to call 911.

At about 4:30 a.m., Rochester Police Officer Michael Jones stopped Petitioner, who was driving a red four-door Dodge Neon with New York license plate number "BNU116" at an intersection. T.249, 262. There were two passengers in the car: Keisha Brown was seated in the front passenger seat, and Aries Spencer was seated in the rear passenger seat. T.252, 254. On the top of the rear passenger seat were two bundles of newspapers. T.252, 262. The police contacted Herrington and drove him back to the ET Plus, where he positively identified Miller as the man who had been "nose to nose" with him during the robbery. T.230.

A few hours later, Chapman and Brill went to a Rochester police station and viewed three individuals during a showup identification. Chapman and Brill positively identified Miller but did not recognize the other two people. T.163, 202.

Miller testified at trial, acknowledging that he had had encounters with Chapman, Brill, and Herrington on June 1, 2003. Sometime after midnight, Petitioner drove Brown's red Dodge Neon to Tracy Street in Rochester to speak with his supervisor from work, whom he referred to as "Aaron". T.277-79. When Petitioner arrived at what he said was Aaron's house, he left Brown in the Neon with the engine running. T.281.

While on Aaron's porch, Petitioner saw Brill and Chapman looking into Brown's car. T.281-82. Petitioner then tried to approach Brill and Chapman, who walked away quickly. Upon returning to Brown's car, Petitioner discovered that he could not locate a container of change that he had kept in the car. T.284. Petitioner yelled at Brill and Chapman to come back. T.284. Petitioner then jumped into the Neon drove up to the couple to talk to them, but they argued with him. T.285. Petitioner denied threatening anyone with a gun or possessing a gun. T.286.

After leaving Tracy Street, Petitioner and Brown drove to an after-hours party. When they left, they gave Spencer a ride. T.287, 290. On the way, they stopped at the ET Plus to put air in the car's tires but could not could not locate any quarters for the air compressor. T.306. Petitioner asked Herrington if he had a quarter and in response, Herrington "was kind of short" with him. T.288-89, 306. According to Petitioner, the two men started arguing, and Herrington "just dropped the papers" and drove away in his car.

T.289-90. Petitioner went inside to use the bathroom, and when he returned, Brown told him that Spencer had put the newspapers in the Dodge Neon. T.307.

Petitioner surmised that Herrington must have had the paper route in the Central Park area of Rochester, so he suggested that they return the papers to him. T.291. While driving around, Petitioner spotted Herrington and called out to him, "Hey, we got your papers, do you want your papers?" ...


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