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Kevin anderson v. Sup. Mr. Griffen

October 22, 2012

KEVIN ANDERSON, PETITIONER,
v.
SUP. MR. GRIFFEN, 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 Kevin Anderson ("Anderson" 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 constitutional rights. Anderson is incarcerated pursuant to a judgment entered against im on June 22, 2009, following a jury verdict in Supreme Court of New York State (Erie County) convicting him of multiple counts of murder and attempted first degree robbery.

II. Factual Background and Procedural History

Petitioner, along with co-defendants Asia Davis ("Davis") and David Dixon ("Dixon") were indicted by an Erie County grand jury in connection with the death of Joseph Kuhn ("Kuhn"). The charges arose from allegations that on February 3, 2007, Petitioner, Dixon, and Davis attempted to rob Kuhn, and in the course of the robbery, caused Kuhn's death. The indictment alleged that Anderson and Dixon possessed and displayed a shotgun and that Anderson intended to cause Kuhn's death by shooting him. Petitioner was charged with two counts of second degree murder (N.Y. Penal Law ("P.L.") §§ 125.25(1), 125.25(3), 20.00), two counts of attempted first degree robbery (P.L. §§ 110/160.15(1), 20.00; 110/160.15(4), 20.00), and one count of fourth degree criminal possession of a weapon (P.L. § 265.01(2), 20.00). Dixon was not charged with intentional murder but instead only was charged with felony murder.

Dixon and Davis agreed to cooperate with the prosecution and testify against Petitioner. The theory of the defense was that Dixon and Davis were a couple at the time, and that the sex-for-money relationship between Davis and Kuhn prompted Dixon to murder Kuhn in a jealous rage. Following a jury trial, Petitioner was convicted as charged in the indictment.

On June 22, 2009, Petitioner was sentenced to concurrent indeterminate terms of 25 years to life on each of the murder convictions (class A-1 felonies); concurrent determinate terms of 15 years plus five years of post-release supervision on the attempted robbery convictions (class C felonies); and a definite one-year term on the weapons-possession conviction (a misdemeanor). All sentences were set to run concurrently with each other.

By an order dated December 30, 2010, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Petitioner's conviction. People v. Anderson, 79 A.D.3d 1738 (2010). By an order dated April 19, 2011, the New York Court of Appeals denied leave to appeal. People v. Anderson, 16 N.Y.3d 862 (2011).

This timely habeas petition followed in which Petitioner asserts the following grounds for relief: (1) the evidence was legally insufficient to establish that Petitioner was the perpetrator; (2) the verdict was against the weight of the evidence; (3) trial counsel was ineffective; (4) the sentence was harsh and excessive; and (5) the prosecutor committed misconduct on summation.

For the reasons discussed below, Anderson's request for a writ of habeas corpus is denied, and the petition is dismissed.

III. Discussion

A. Legal Insufficiency of the Evidence

Petitioner argues, as he did on direct appeal, that the prosecution failed to adduce legally sufficient evidence to prove beyond a reasonable doubt that he was the individual who shot Kuhn. The Appellate Division held that Petitioner failed to preserve for its review his contention that the conviction is not supported by legally sufficient evidence. People ...


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