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Wilson v. Heath

United States District Court, N.D. New York

April 11, 2013

ROBERT M. WILSON, Petitioner,

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ROBERT M. WILSON, Petitioner, Pro se, Ossining, NY.

For Respondent: PAUL B. LYONS, ESQ., Ass't Attorney General, OF COUNSEL, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, New York, NY.


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DAVID N. HURD, United States District Judge.



Petitioner Robert M. Wilson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges a 2009 judgment of conviction in Albany County Court, following a jury trial, of third degree criminal sale of a controlled substance. Dkt. No. 1, Petition (" Pet." ) at 2. Respondent has filed a response to the petition, a memorandum of law, and the relevant state court records. Dkt. No. 9, Response; Dkt. No. 8, Respondent's Case 9:11-cv-00827-DNH Document 18 Filed 04/11/13 Page 1 of 24 Memorandum of Law (" Resp't Mem." ); Dkt. No. 10, State Court Records. Petitioner has filed a reply. Dkt. No. 13, Memorandum in Opposition. For the reasons that follow, the petition will be denied and dismissed.


A. Petitioner's Arrest and Trial

The Appellate Division, Third Department, concisely summarized the facts underlying petitioner's criminal offense and trial as follows:

Following a jury trial, defendant was convicted . . . of criminal sale of a controlled substance in the third degree based upon evidence that he sold cocaine to a confidential informant (hereinafter CI) in the City of Albany on March 19, 2008. Upon his conviction, defendant was sentenced as a second felony offender to a prison term of eight years with three years of postrelease supervision . . . .
The testimony at trial established that in March 2008, Scott Gavigan, a detective with the Albany Police Department, planned a controlled buy operation to be conducted at the CI's residence in the City of Albany. On the morning of March 19, 2008, the CI was brought to the police station and strip-searched to ensure she possessed no contraband prior to the operation. Gavigan, another officer and the CI then traveled to the general area of Lexington Avenue in an unmarked van. Gavigan then walked to the CI's address and checked the porch area for contraband, with negative results. The CI was then equipped with a concealed sound transmitting device and $40 in prerecorded buy money. The CI then used her cell phone to call defendant with whom she was acquainted. Defendant answered, the CI told him she needed a " 40," and defendant replied that he would be right there. The CI then stepped out of the van and started to walk to her address, but had to return to the van when the transmitter began to heat up and burn her. In the meantime, other officers observed defendant arrive at the front of the CI's residence. The CI walked back to that location and met defendant on the porch. The CI and defendant stepped into the porch vestibule, and defendant gave the CI three small pieces of an off-white, rock-like substance in return for the $40. Defendant and the CI then stepped off the porch and walked up the street together a short way before defendant departed on a bicycle. Defendant was then stopped a short distance away by a uniformed officer under the pretense of investigating a report of a stolen bicycle, his identity was confirmed, and he was released. The CI returned to the officers in the van and turned over the three substances that forensic testing later revealed to be cocaine. In order to protect the identity of the CI, defendant was not arrested that day, but instead charged by sealed indictment several weeks later.

People v. Wilson, 78 A.D.3d 1213, 1213-14, 910 N.Y.S.2d 276 (3d Dep't 2010).

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B. Direct Appeal

Petitioner, represented by counsel, filed a direct appeal with the Appellate Division, Third Department, raising the following claims: (1) the trial court improperly denied his request for a mistrial after a prospective juror commented that he may have seen petitioner in prison; (2) the trial court erred by allowing evidence of petitioner's prior convictions in the event that he testified; (3) the trial court erred by instructing a juror that he could not rely on his professional experience as a law clerk during deliberations; (4) the sentence was excessive and penalized petitioner for going to trial; (5) the verdict was against the weight of the evidence; (6) the verdict should be reversed " in the interests of justice" because, among other reasons, petitioner was denied an adjournment; and (7) ineffective assistance of trial counsel. Dkt. No. 10, Ex. B, Appellant's Brief (" Appellant's Br." ) at 15.[1]

With regard to the ineffective assistance of counsel claim, petitioner specifically alleged that counsel: (a) failed to preserve several unidentified issues for appeal; (b) erred in some unexplained way relating to the trial court's Sandoval ruling; and (c) failed to object to the trial court's instruction that a law clerk serving on the jury could not bring his professional experience to light during deliberations. Appellant's Br. at 32-33.

On April 4, 2010, the Appellate Division unanimously affirmed the conviction. Wilson, 78 A.D.3d at 1217. First, the Appellate Division found that the trial court did not abuse its discretion by " denying [petitioner's] motion for a mistrial regarding an answer given by a potential juror" that he may have seen petitioner in jail. Id. at 1214. The Appellate Division noted that the trial court " immediately interrupted the juror, who was later excused," and " made an appropriate inquiry of the remaining jurors." Id. at 1215. Moreover, the trial court's " subsequent curative instructions sufficiently alleviated any potential prejudice to [petitioner] and ensured his right to an impartial jury." Id. at 1214-15 (citations omitted).

With regard to petitioner's claim contesting the admission of his prior convictions, the Appellate Division concluded that the trial court " properly considered [petitioner's] history of criminal acts and weighed their probative value with the risk of unfair prejudice, such that it cannot be concluded that the court abused its discretion." Id. at 1215-16 (citations omitted).

Turning to petitioner's claim that the trial court erred by instructing a juror that he could not reveal his professional experience as a law clerk during deliberations, the Appellate Division found that this claim was unpreserved for review because petitioner neither objected nor requested a mistrial with respect to this issue. Id. at 1215 (citations omitted).

Concerning petitioner's sentencing challenges, the Appellate Division concluded that " the sentence imposed was not harsh and excessive, notwithstanding that the sentence imposed after trial was greater than the sentence offered as part of a pretrial plea." Id. at 1217. " Given the nature of the crime committed and [petitioner's] criminal history, which includes numerous convictions for drug-related crimes, [the Appellate Division] discern[ed] no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence." Wilson, 78 A.D.3d at 1217 (citations omitted).

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Next the Appellate Division dismissed petitioner's weight of the evidence claim, holding that " [b]ased on the testimony of the police officers, the CI and the forensic scientist, all of whom described their roles in and observations of the controlled buy that led to [petitioner's] arrest, we find, in evaluating the evidence in a neutral light and according appropriate deference to the jury's assessment of witness credibility, that the verdict is not against the weight of the evidence." Id. at 1216 (citations omitted).

With regard to petitioner's ineffective assistance claim, the Appellate Division concluded that " [t]he record reflects that counsel appropriately conducted jury voir dire, made articulate opening and closing statements, effectively cross-examined witnesses, including the CI, successfully moved to have the majority of the audiotape ruled inadmissible, and made appropriate objections and motions, such that defendant was afforded meaningful representation." Id. Finally, the court rejected, as " without merit," petitioner's " remaining argument, that the verdict should be set aside in the interest of justice." Id. at 1217.

Petitioner subsequently moved the New York Court of Appeals for leave to appeal " all claims" raised in the Appellate Division. Dkt. No. 10, Ex. E, Petitioner's Letter to Judge Lippman. Petitioner's counsel separately applied for leave to appeal, but solely to the claim that the trial court improperly denied petitioner's request for a mistrial in response to the prospective juror's jail comment. Dkt. No. 10, Ex. F. On January ...

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