United States District Court, S.D. New York
REPORT AND RECOMMENDATION
SARAH NETBURN, Magistrate Judge.
TO THE HONORABLE JESSE M. FURMAN:
Before the Court is pro se petitioner Rodney Munnerlyn's petition for a writ of habeas corpus under 28 U.S.C. § 2254 to set aside his conviction in state court on the grounds that: (1) the trial judge denied Munnerlyn's motion to admit expert witness testimony regarding the reliability of eyewitness testimony; (2) denial of effective assistance of trial counsel; and (3) denial of effective assistance of appellate counsel. Because Munnerlyn's claims are procedurally barred and thus precluded from federal habeas review, the Court recommends that this petition be DENIED.
I. Procedural History
After a jury trial that began on January 8, 2009, petitioner Rodney Munnerlyn ("Munnerlyn") was convicted of two counts of Robbery in the First Degree, N.Y. Penal Law ("Penal Law") § 160.15(2), (3), and two counts of Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03(1)(b), (3). On March 19, 2009, Munnerlyn was sentenced to a prison term of 15 years and five years of post-release supervision on the robbery counts, and a prison term of nine years and five years of post-release supervision for the weapons counts, all to run concurrently. On February 14, 2012, Munnerlyn's conviction was affirmed unanimously by the Appellate Division of the New York Supreme Court, First Department ("Appellate Division"). The New York Court of Appeals denied leave to appeal on June 29, 2012.
Munnerlyn filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 on September 26, 2013, alleging that he is being held in state custody in violation of his federal constitutional rights. On October 24, 2013, the Honorable Jesse M. Furman referred this matter to my docket for a report and recommendation. The respondent filed his answer and opposed Munnerlyn's petition on December 20, 2013. The Court granted Munnerlyn until March 3, 2013, to file a reply. To account for the possibility that Munnerlyn did not receive the Court's previous scheduling order because of his subsequent transfer to a new prison, the Court mailed an order to Munnerlyn's new address extending the reply deadline to March 31, 2014. Munnerlyn did not reply.
Munnerlyn filed an application to stay his habeas petition on January 23, 2014, which the Court denied without prejudice on January 29, 2014. Munnerlyn did not renew his application.
II. Factual Background
Munnerlyn's habeas petition arises from his conviction for robbing Michael Gribbin ("Gribbin") with a loaded gun. Munnerlyn is serving his sentence in the Auburn Correctional Facility in Cayuga County, New York. The following facts are derived from the records of Munnerlyn's trial and post-conviction appeals and motions.
A. Munnerlyn's Charged Criminal Conduct and Arrest
On August 17, 2007, in a construction site in lower Manhattan, Munnerlyn approached and attacked Michael Gribbin with the intent to steal the $4, 000 in cash Gribbin had on his person to pay his employees. When a worker from the construction site intervened, Munnerlyn retreated and escaped. The police identified Munnerlyn as their suspect after they tracked the license plate number of Munnerlyn's escape. Munnerlyn was arrested when he reported for a probation interview.
The New York County Grand Jury indicted Munnerlyn on four counts. Two of those counts charged Munnerlyn with robbery in the first degree, in violation of, respectively, two subsections of Penal Law § 160.15 that provide as follows:
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument....
Penal Law § 160.15(2), 160.15(3). New York penal law defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged...." Penal Law § 10.00(12). Munnerlyn was also indicted on two counts of second degree weapons possession under Penal Law §§ 265.03(1)(b), (3).
B. The Trial
1. Pretrial ...