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Dove v. Lee

United States District Court, N.D. New York

May 5, 2014

DONALD MACK DOVE, Petitioner,
v.
WILLIAM LEE, Respondent.

DONALD MACK DOVE 10-B-0378 Elmira Correctional Facility Elmira, New York Petitioner pro se

ERIC T. SCHNEIDERMAN, ALYSON J. GILL, AAG, New York State Attorney General, New York, New York Attorneys for Respondent

DECISION and ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Petitioner Donald Mack Dove has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Petitioner challenges a 2010 judgment of conviction for first degree burglary and third degree assault on the grounds that (1) the verdict was against the weight of the evidence, (2) he was given an unfair trial because the prosecutor "tampered" with a defense witness and Petitioner (who proceeded pro se ) was provided with ineffective standby counsel, and (3) the judge was biased. See Dkt. No. 1 at 6-11. Respondent has answered the petition, and filed the relevant state court records. See Dkt. No. 13, Respondent's Memorandum of Law; Dkt. No. 14, Answer; Dkt. No. 16, State Court Records. For the following reasons, the petition is dismissed.

II. RELEVANT BACKGROUND

A. State Court Proceedings

A jury trial was held on February 9-10, 2009, where Petitioner represented himself with assigned standby counsel present. Dkt. No. 16-10 at 283-495. During the trial, the victim testified that on October 20, 2007, Petitioner repeatedly called her asking to meet, which the victim refused to do. See People v. Dove, 89 A.D.3d 1153, 1153 (3d Dep't 2011). The victim also testified that she called 911 when, later that evening, she saw Petitioner standing outside her apartment building. See id. at 1154. While she was speaking with the 911 operator, she testified that Petitioner suddenly emerged from her front bedroom and attacked her. See id. The recording of the victim's 911 call was played at trial and provided corroboration of her testimony. See id. The victim's front door was locked, and no evidence of forced entry was found, but the victim's neighbor testified that it was possible to climb up the front porch of the victim's building to the second floor balcony, which had a door and windows opening into the front bedrooms of the victim's apartment. Id. The victim testified that her balcony door was not locked that day. Id.

The jury convicted Petitioner of first degree burglary and third degree assault. Dkt. No. 16-10 at 408-09. In papers dated April 16, 2009, Petitioner moved to set aside the verdict pursuant to New York Criminal Procedure Law ("CPL") § 330.30 on the ground that the jury was improperly instructed on intent. Dkt. No. 16-1, Motion. On July 6, 2009, the trial court denied the motion. Dkt. No. 16-2, Decision and Order, Smith, J.

On January 10, 2010, Petitioner was sentenced, as a persistent violent felony offender, to a term of twenty years to life for burglary and a concurrent one-year term for assault. Dkt. No. 16-10 at 25, 580.[1] Id.

On appeal, Petitioner's counsel argued that there was no credible evidence presented at trial to establish that Petitioner was in the victim's apartment without her permission. Pet.'s Appellate Br. 3, Dkt. No. 16-3 at 7. Petitioner's "sole contention" was that "the conviction of burglary in the first degree [was] against the weight of the evidence." People v. Dove, 89 A.D.3d 1153, 1153 (3d Dep't 2011). The Appellate Division affirmed, holding that the jury could conclude from the evidence presented that Petitioner entered the victim's apartment without her permission and assaulted her. Id. at 1154. The Appellate Division also concluded that "while a different verdict would not have been unreasonable, viewing the foregoing evidence in a neutral light and according deference to the jury's credibility assessments, we find that the verdict convicting defendant of burglary in the first degree is supported by the weight of the evidence." Id. at 1154. The New York Court of Appeals denied Petitioner leave to appeal on March 27, 2012. Dove, 18 N.Y.3d 957 (2012). This action followed.

III. DISCUSSION

A. Exhaustion

The statute governing habeas corpus petitions requires the exhaustion of state court remedies prior to bringing an application for federal habeas corpus relief unless there is an "absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b); Reed v. Duncan, 326 Fed.Appx. 582, 583-84 (2d Cir. 2009) (citing Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) and Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994)). To satisfy the exhaustion requirement, a petitioner must do so both procedurally and substantively. Id. Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in the habeas corpus petition. Substantive exhaustion requires that a petitioner "fairly present" each claim for habeas relief in "each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1981))). ...


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