Eunice C. Lee, Esq., OFFICE OF THE APPELLATE DEFENDER, New York, NY, Attorneys for Petitioner.
Priscilla I. Steward, Esq., NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL, New York, NY, Attorneys for Respondent.
ROBERT W. SWEET, District Judge.
Petitioner Elijah Cummings ("Cummings" or "Petitioner") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Cummings' petition has been opposed by respondent Thomas LaValley, Superintendent ("Respondent" or the "State"). Based on the conclusions set forth below, Cummings' petition is denied.
In the early morning hours of March 27, 2006, Cummings was arrested after a police officer caught him attempting to steal weapons and bulletproof vests from the locker room of the 25 Precinct station house (the "Police Precinct"), which is located in northern Manhattan. On April 21, 2006, a New York County jury charged Cummings with, inter alia, one count of Burglary in the Second Degree pursuant to N.Y. Penal L. § 140.25(2) ("§140").
Prior to Cummings' trial in New York State Supreme Court (the "Trial Court"), his trial counsel ("Trial Counsel") moved to dismiss the second-degree burglary charge on the grounds that the grand jury minutes did not establish that the Police Precinct was a "dwelling, " which is a required element for a charge of second-degree burglary, see §140. The motion was denied.
At trial, the State offered testimony to buttress the grand jury's testimony on the "dwelling" element of the burglary count. The officer who arrested Cummings testified at trial that officers of the 25th Precinct "routinely" slept in a room in the Police Precinct that was designated as the "dormitory."
Following the close of the State's case, Trial Counsel made a general pro forma motion to dismiss all charges for failure to establish a prima facie case. However, Trial Counsel failed to specifically renew his motion to dismiss the Second Degree Burglary charge for failure to establish that the Police Precinct is considered a "dwelling" within the meaning of the statute.
On September 27, 2006, a jury found Cummings guilty of, inter alia, Second Degree Burglary.
Cummings appealed to the Appellate Division of the New York State Supreme Court (the "Appellate Division"), arguing, inter alia, that the evidence presented at trial was not legally sufficient to support a conviction for second-degree burglary because the State had failed to prove beyond a reasonable doubt that the Police Precinct constituted a "dwelling" for purposes of §140.
On October 22, 2009, the Appellate Division issued an opinion unanimously affirming the judgment of the State Trial Court. People v. Cummings , 66 A.D.3d 571 (N.Y.App.Div. 2009) ("Cummings I"). With respect to Cummings' argument about the second-degree burglary conviction, the Appellate Division did not reach its merits, instead holding that the issue had not been preserved by Trial Counsel due to Trial Counsel's failure to make a post-evidentiary motion challenging the sufficiency of the State's evidence regarding the "dwelling" element of the burglary count. Id. at 571.
Cummings sought, and was granted, leave to appeal to the New York Court of Appeals. In his brief to the Court of Appeals, Cummings argued, inter alia, that his Trial Counsel was constitutionally ineffective in failing to move for dismissal of the second-degree burglary. On February 24, 2011, the Court of Appeals issued an opinion unanimously affirming the order of the Appellate Division. People v. Cummings , 16 N.Y.3d 784 (2011) ("Cummings II"). The Court of Appeals analyzed Cummings' ineffective assistance claim under New York's constitutional standard, and concluded that the claim was without basis, as "the record demonstrates that [petitioner's] counsel provided competent and meaningful representation throughout the proceedings, which included an unsuccessful pretrial attempt to dismiss the second degree burglary charge based on the dwelling argument." Id. at 785.
Cummings subsequently filed a petition for writ of certiorari in the United States Supreme Court, asking the Supreme Court to review his ineffective assistance claim. On October 3, 2011, the Supreme Court denied his ...