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Carelock v. Artus

United States District Court, Second Circuit

September 25, 2013

ROBERT CARELOCK, Petitioner,
v.
DALE ARTUS, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Robert Carelock ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in Respondent's custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered against him on September 1, 2005, following a jury trial in Monroe County Court of New York State. Petitioner was convicted of Burglary in the Third Degree (N.Y. Penal Law § 140.20) and Attempted Petit Larceny (N.Y. Penal Law §§ 110.00/155.25).

II. Factual Background and Procedural History

A. Trial, Conviction, Sentence, and Direct Appeal

On October 27, 2004, Petitioner walked into the Country Max store in Fairport, New York, which sells pet and garden supplies. Passing through the retail portion of the store, he proceeded to enter the backroom offices marked "employees only". Once inside the restricted area, he rummaged through various desk drawers and a safe. When store employees eventually confronted him, Petitioner put his hands up, gave a false explanation for his presence in the office, and quickly left the store. He was subsequently arrested and, in March 2005, was charged with third degree burglary and attempted petit larceny.

The particular facts of the trial are not relevant to Petitioner's habeas petition, which only raises a claim of juror bias. On July 6, 2005, the jury found Petitioner guilty as charged in the indictment.

The trial court held a hearing to determine whether Petitioner should be adjudicated a persistent felony offender under N.Y. Penal Law § 70.10. Just prior to sentencing, trial counsel stated the following:

Before I comment with regard to sentencing, page seven of the current PSI [Pre-Sentence Investigation Report]..., my client stated to the reporting officer that Juror Rose Reed who sat on the jury on the instant indictment, he indicated that he knew her since he was a little boy. [Petitioner] feels she blames [Petitioner] for how her son is because they got high together in the past. According to [Petitioner], Juror Reed lied to the Court. I think that's with regard to knowing or having knowledge of my client.

9/1/05 Transcript ("Tr.") at 32. Defense counsel acknowledged that this issue had not been raised during trial. Id. at 32-33. The trial judge questioned why Petitioner had not raised the issue earlier since, "if [Petitioner] knew this woman since he was a little boy, obviously he would have recognized her and brought that to [counsel's] attention during jury selection." Id. at 33. Trial counsel responded that "[w]ithout breaching attorney/client privilege, [he] could say that it was not raised on the record." Id.

The judge commented that he did not know what relief presently was available, as "[t]his happened outside the record and there is no apparent reason that it was not brought out on the record to the Court's attention during the course of the trial[, ]... [when] the issue could have been remedied or addressed." Id . Defense counsel agreed and suggested that a motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 would address the issue "more appropriately." Id.

The judge then sentenced Petitioner, as a persistent felony offender, to an indeterminate term of fifteen years to life imprisonment for Burglary in the Third Degree, and a concurrent sentence of ninety days in jail for Attempted Petit Larceny. Id. at 42-44.

On direct appeal, Petitioner argued that (1) the verdict was against the weight of the evidence; and (2) the sentence was unduly harsh and severe. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction. People v. ...


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