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Kennedy v. Laclaire

United States District Court, Second Circuit

January 27, 2014

CHARLES KENNEDY, JR., Petitioner,
v.
D.E. LACLAIRE, Superintendent, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Charles Kennedy, Jr. ("Kennedy" or "Petitioner"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being held in state custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment entered on June 15, 2009, in New York State County Court, Chemung County (Buckley, J.), following a jury verdict convicting him of two counts of Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law ("P.L.") §§ 220.16(1), 220.16(12)).

II. Factual Background and Procedural History

A. Petitioner's Trial

1. The Prosecution's Case

On October 28, 2008, in Elmira, New York, narcotics investigator Patrick Griffin ("Inv. Griffin") of the Elmira Police Department ("EPD"), received a phone call from a long-time police informant, King Watkins ("Watkins"). Watkins stated that Petitioner, whom he knew only by the nickname, "Cheese, " had been to Watkins' house earlier that day with a large quantity of cocaine and was going to be returning that night to sell it. Watkins told Inv. Griffin that the prospective buyer, Linda Eygabroat ("Eygabroat"), would be arriving from Corning, New York, in a white truck, and that Petitioner would be driving a white Acura.

At about 11:00 p.m. that night, Inv. Griffin and his partner, Richard Weed ("Inv. Weed"), surveilled Watkins' apartment from an unmarked police car parked nearby. A white truck arrived at about 11:40 p.m.; a white female (Eygabroat) got out and walked to Watkins' house on College Avenue. A white Acura drove up and parked on College Avenue. The driver, a black male (Petitioner), got out of the Acura and walked to Watkins' house.

Watkins testified that once inside his apartment, Petitioner sold Eygabroat an "eight-ball, " or one-eighth of an ounce, of what appeared to be cocaine. Petitioner removed the eight-ball from a bag containing numerous other packages of cocaine. After Petitioner and Eygabroat departed, Watkins notified Inv. Griffin by phone of the sale.

Meanwhile, the investigators observed Petitioner return to the white Acura, make a U-turn, and drive past them along College Avenue. Inv. Weed notified officers in marked patrol cars in the vicinity. Officer Jeremy Oakes ("Officer Oakes") pulled Petitioner over a short distance away. Officer Oakes testified that Petitioner was driving the white Acura, and a white female named Shanta Hall ("Hall") was in the passenger's seat. Hall told Officer Oakes that as they were being pulled over, Petitioner gave her a plastic bag containing cocaine and asked her to conceal it. She obliged by stuffing bag down the front of her pants. At Officer Oakes' request, Hall retrieved the bag and turned it over to him. Petitioner then was arrested but Hall was not.

Following Petitioner's arrest, Officer Oakes searched Petitioner and recovered $663 in cash. The police hid this money in a desk drawer at the police station, and then released a narcotics-sniffing dog. The dog immediately scratched on the desk drawer containing the recovered money, signaling to its handler that the money contained traces of cocaine. The contents of the bag recovered from Hall were tested by forensic scientist Julie Romano of the New York State Police, who determined that it contained more than half an ounce of cocaine.

Nora Smith ("Smith"), a friend of Petitioner's, testified that on April 6, 2009, two days prior to Smith's appearance in court, Petitioner called her from jail. Petitioner requested that Smith ask Hall not to come to court in connection with his case, and to inform Watkins that he (Petitioner) would not be in jail for long. Smith identified Petitioner's voice on tape recordings that prison officials had made of their call. After she spoke with Petitioner, Smith called Hall and invited her over, but Hall did not appear.

On April 9, 2009, the jury returned a guilty verdict as to both charges. On June 15, 2009, Petitioner was sentenced as a second felony offender to concurrent determinate prison terms of eight years, followed by three years of post-release supervision.

B. Post-Conviction Proceedings

On December 1, 2009, Petitioner moved in Chemung County Court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. The County Court denied the motion in its entirety on February 18, 2010. See Respondent's Exhibit ("Resp't Ex.") C. The Appellate Division, Third Department, of New York State Supreme Court ("the Appellate Division") denied leave to appeal.

Represented by new counsel, Petitioner pursued a direct appeal of his conviction to the Appellate Division. On November 4, 2010, the Appellate Division unanimously affirmed the conviction. People v. Kennedy , 78 A.D.3d 1233 (Dep't 2010). The New York Court of Appeals denied leave to appeal on May 9, 2011. People v. Kennedy , 16 N.Y.3d 896 (2011).

On August 16, 2011, Petitioner filed a pro se application for a writ of error coram nobis in the Appellate Division, arguing that appellate counsel had been ineffective on various grounds. The Appellate Division summarily denied the application on November 2, 2011, and the Court of Appeals denied leave to appeal on January 31, 2012. See Resp't Exs. K, N, P.

On December 30, 2011, Petitioner filed a second C.P.L. § 440.10 motion, raising different grounds than he raised in the first C.P.L. § 440.10 motion. The prosecution filed opposition papers, and the County Court denied the motion on April 20, 2012. See Resp't Exs. Q, R, S. On June 22, 2012, the Appellate Division denied leave to appeal. See Resp't Ex. U.

On May 22, 2012, while his leave application from the denial of his second C.P.L. § 440.10 motion was pending, he moved in Chemung County Court to dismiss the indictment for lack of subject matter jurisdiction. On June 28, 2012, the County Court dismissed the motion as frivolous. See Resp't Ex. W. The Appellate Division, on October 9, 2012, denied leave to appeal.

C. The Federal Habeas Proceeding

This timely habeas petition followed, in which Petitioner raises the following claims: (1) his trial counsel was ineffective for failing to file a notice of appeal, ask for an adjournment or continuance to investigate the case competently, move to dismiss on the ground that the prosecution failed to establish a chain of custody of the evidence, competently question the prosecution's expert witness at trial regarding the chain of custody and drug testing procedures, and file the proper motions upon receiving the case from the Public Defender's Office; (2) Petitioner was denied a preliminary hearing, denied the right to appear before a grand jury within 24 hours of his arrest, denied counsel at his initial arraignment, and indicted without being notified that a grand jury was in progress; (3) the prosecutor failed to disclose exculpatory testimony regarding the stop of Eygabroat's vehicle and evidence indicating that drugs delivered by the police to one laboratory weighed more than the drugs that were tested at a second laboratory and then introduced at trial, thereby calling into question the handling, weight, and authenticity of the drugs; and (4) Petitioner was illegally arrested following an improper car stop. See Petition, ¶ 12 (Dkt #1).

Respondent answered the petition (Dkt ##7, 8), interposing the defenses of non-exhaustion and procedural default as to several claims. Respondent alternatively argues that all of the claims are without merit. Petitioner filed a reply brief presenting additional argument regarding the merits of his claims and conclusorily asserting that all of his ...


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