United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Ralik Bailey ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment entered against him on July 29, 2010, in New York County Court (Wyoming County), following a bench trial before Judge Mark Dadd convicting him of two counts of Assault in the Second Degree (N.Y. Penal Law ("P.L.") § 120.05(3)).
II. Factual Background and Procedural History
On January 4, 2010, a Wyoming County grand jury charged Petitioner, then an inmate at Attica Correctional Facility, with one count of Promoting Prison Contraband in the First Degree (P.L. § 205.25(2)), one count of Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(1)), one count of Assault in the Second Degree (P.L. § 120.05(7); assault in a correctional facility); and three counts of Assault in the Second Degree (P.L. § 120.05(3); causing physical injury in the course of preventing a peace officer from performing a lawful duty). The charges stemmed from an incident on May 30, 2009, in which Petitioner and another inmate, Roach Kerrick ("Kerrick"), had a physical altercation, after which Petitioner allegedly struck one of the corrections officers who was escorting him through the facility. Based on one corrections officer's observations, Petitioner was accused of possessing a shank during the fight with Kerrick.
Trial counsel moved to dismiss the indictment, asserting that Petitioner's statement to a police investigator that he "wished to be present at any criminal proceedings or hearing if any take place" served to provide notice to the District Attorney of his desire to testify before the grand jury, and the prosecutor failed to provide notice that he was presenting Petitioner's case to a grand jury. In opposition, the prosecutor asserted that Petitioner had made no request to testify and therefore was not notified of the scheduling of the Grand Jury. According to the prosecutor, the District Attorney's office had reviewed Petitioner's file prior to seeking an indictment and found no correspondence that might have "even hint[ed]" that he wished to testify, and no such correspondence had arrived at any time since the grand jury presentation. Judge Dadd found that Petitioner had failed to serve the District Attorney with a written request to testify, as he was required to do pursuant to New York Criminal Procedure Law ("C.P.L.") § 190.50(5)(a).
Because Petitioner's sole habeas claim relates to the prosecution's failure to advise him of his right to testify before the grand jury, the Court need not repeat the trial testimony here but rather incorporates Respondent's thorough and detailed summary set forth in his brief.
During the bench trial, Judge Dadd dismissed the first two counts of the indictment (promoting prison contraband and possession of a weapon) because the prosecution had learned that Kerrick possessed the shank recovered after the incident. Judge Dadd found Petitioner guilty of second-degree assault as to Officers Bell and Leonard, not guilty of second-degree assault (assault in a correctional facility), and not guilty of second-degree assault as to Officer Meegan.
On July 15, 2010, Judge Dadd held a hearing regarding whether Petitioner could be sentenced as a second violent felony offender. After taking testimony from an inmate records coordinator on Petitioner's incarceration history, Judge Dadd reserved decision on the issue. Judge Dadd then addressed Petitioner's pro se motion to set aside the verdict pursuant to C.P.L. § 330.30, in which he sought dismissal of the indictment because the prosecution had not honored his right to testify before the grand jury. Petitioner's counsel joined in the motion, and Judge Dadd reserved decision.
In a decision and order dated July 20, 2010, Judge Dadd held that the prosecution had proven that Petitioner had a valid prior violent felony conviction for purposes of permitting him to be sentenced as a second violent felony offender. Judge Dadd then denied the C.P.L. § 330.30 motion, finding that it "merely attempt[ed] to reargue the [Petitioner's] motion to dismiss the indictment, which was denied by the Court's decision and order dated March 2, 2010."
On July 29, 2010, Petitioner was sentenced, as a second violent felony offender, to two concurrent, determinate prison terms of five years on each assault count, to be followed by a five-year period of post-release supervision.
Petitioner pursued a direct appeal of his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Appellate counsel argued that Petitioner was deprived of his right to testify before the grand jury in violation of C.P.L. § 190.50; the verdict was against the weight of the evidence; and the sentencing court erred in using a prior conviction to enhance Petitioner's sentence. On December 30, 2011, the Appellate Division unanimously affirmed the conviction. People v. Bailey , 90 A.D.3d 1664 (4th Dep't 2011). The New York Court of Appeals denied leave to appeal. People v. Bailey , 19 N.Y.3d 861 (2012).
This timely habeas petition followed. Petitioner asserts one ground for relief-that he was deprived of his due process right to testify before the grand jury. Respondent answered the petition, and Petitioner filed a reply brief. ...