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Michael E. Laigo v. State of New York

May 7, 2013

MICHAEL E. LAIGO, PETITIONER,
v.
STATE OF NEW YORK, RESPONDENT.



The opinion of the court was delivered by: Pamela K. Chen, United States District Judge:

MEMORANDUM & ORDER

Pending before the Court is Petitioner Michael E. Laigo's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, Laigo's application is denied in its entirety.

BACKGROUND

A. Procedural History

On May 8, 2007, Laigo was convicted following a jury trial in New York State Supreme Court of criminal sale of a controlled substance in the third degree (New York Penal Law ("Penal Law") § 220.39[1]), criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1]), and criminal possession of a controlled substance in the fifth degree (Penal Law § 220.05[5]). On July 17, 2007, Laigo was sentenced to concurrent terms of three years' imprisonment with two years of post-release supervision for the third-degree counts, and to two years' imprisonment followed by one year of post-release supervision for the fifth-degree count.

Laigo appealed his conviction to the Appellate Division, Second Department, where he argued: (1) insufficiency of the evidence; (2) ineffective assistance by his trial counsel; (3) an excessive sentence; (4) prosecutorial misconduct; and (5) for re-sentencing under New York's Drug Reform Act of 2009. Dkt. 1 at 3. On February 16, 2010, the Appellate Division affirmed the judgment of conviction on all counts. People v. Laigo, 70 A.D.3d 970 (2d Dep't 2010). Laigo was denied leave to appeal to the New York Court of Appeals on June 9, 2010. People v. Laigo, 15 N.Y.3d 752 (2010).

Laigo timely filed the instant petition on September 16, 2010, while on post-release supervision following his incarceration. In his petition, Laigo argued that his trial counsel provided ineffective assistance by: (1) failing to adequately cross-examine prosecution witnesses regarding contradictions and inconsistencies in their testimony, (2) failing to move for dismissal at the close of the prosecution's case with adequate specificity, (3) failing to request an "addicted witness" charge for certain prosecution witnesses, (4) failing to object to expert witness testimony, (5) failing to preserve sufficiency of the evidence objections for appellate review, and (6) failing to renew a motion for dismissal after presenting the defense's case.*fn1

B. The Trial

At Laigo's trial, the prosecution presented evidence showing that in the late afternoon of August 26, 2006, Laigo received a telephone message from an acquaintance, David Johnstone, asking if Laigo had cocaine for sale. Dkt. 6 at 1. Laigo later returned that call, asked whether Johnstone still was interested in purchasing cocaine, and instructed Johnstone to drive over to Laigo's house for the purchase. Dkt. 6-20 at 2-3. Johnstone, accompanied by his girlfriend, Brianne Danielson, arrived at Laigo's home in Westbury, New York around 6:00 p.m. that evening, at which point Laigo exited his home and approached Johnstone's vehicle. Dkt. 6-20 at 3. Danielson and Johnstone paid Laigo $170 in exchange for a small bag of cocaine, which Laigo passed to Johnstone through the car window. Dkt. 6-20 at 3. Johnstone then handed the bag to Danielson, who placed it in her purse. Dkt. 6-20 at 3.

As the exchange was under way, an unmarked police vehicle drove down the street towards Johnstone's car. Three plainclothes police officers observed Laigo take a folded wad of cash from Johnstone and drop a clear plastic bag into the car. Dkt. 6-20 at 3-4. The police officers stopped and exited the police vehicle and approached Johnstone's car. Dkt. 6-20 at 4. As the officers approached, they noted the smell of burnt marijuana. Dkt. 6-20 at 4. One of the police officers stuck out his hand and directed Danielson to "Give it to me." Danielson produced the bag from her purse and gave it to the police officer. Dkt. 6-20 at 5. Laigo, Johnstone and Danielson all were taken into custody. Dkt. 6-20 at 5.

Laigo's defense at trial essentially was that Johnstone owed him money for a series of small loans Laigo had given him in the past, and that the transaction the police had witnessed was the repayment of those debts, not a sale of cocaine. Dkt. 6-3 at 5-8. Laigo testified to that effect at trial. Laigo's counsel argued to the jury, inter alia, that any drugs found as a result of the police inquiry must have been in the possession of either Johnstone or Danielson prior to their arrival at Laigo's residence. Dkt. 6-20 at 10.

DISCUSSION

In his initial petition, Laigo sought habeas corpus relief on the basis of ineffective assistance of counsel at trial and sentencing, and on appeal. Dkt. 1 at 8-11. In his reply memorandum of law, however, Laigo expressly abandoned his ineffective assistance claims with respect to sentencing and appeal. See Dkt. 13, 15 at 1 n.1. Accordingly, the Court only addresses Laigo's ineffective assistance claim with respect to his trial counsel.

I.Standard of Review under 28 U.S.C. § 2254

Section 2254 provides that a habeas corpus application must be denied unless the state court's adjudication on the merits "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," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. ยง 2254(d). "A state court 'adjudicates' a petitioner's federal constitutional claims 'on the merits' when 'it (1) disposes of the claim on the merits, ...


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