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Hammond v. Graham

United States District Court, W.D. New York

January 15, 2015

HAROLD D. GRAHAM, Respondent.

DIALLO HAMMOND, Pro Se Auburn Correctional Facility Auburn, New York,

FRANK A. SEDITA, III, DISTRICT ATTORNEY, ERIE COUNTY, ASHLEY R. SMALL, Assistant District Attorney, of Counsel Buffalo, New York, Attorney for Respondent.


LESLIE G. FOSCHIO, Magistrate Judge.


Petitioner commenced this action on November 26, 2012, requesting habeas corpus relief under 28 U.S.C. § 2254 ("§ 2254"). This matter is before the court on consent pursuant to 28 U.S.C. § 636(c) (Doc. No. 10).


On November 26, 2012, Petitioner Diallo Hammond ("Petitioner" or "Hammond"), proceeding pro se, filed a petition (Doc. No. 1) ("Petition"), seeking habeas corpus relief challenging Petitioner's April 29, 2009 conviction by jury in New York Supreme Court, Erie County, for violations of New York Penal Law ("N.Y. Penal Law")[1] §'160.15(4) (Robbery in the First Degree), § 160.10(1) (Robbery in the Second Degree), and § 165.40(2) (Criminal Possession of Stolen Property in the Fifth Degree). Hon. Penny M. Wolfgang, N.Y. Supreme Court Justice, presided at Petitioner's trial.

On October 10, 2008, Petitioner was sentenced as a second violent felony offender pursuant to N.Y. Penal Law § 70.04 (A' 70.04"), to a term of 17 years with five years of post-release supervision based on Petitioner's conviction on the First Degree Robbery count; a term of 15 years with five years post-release supervision on Petitioner's conviction on the Second Degree Robbery count; and a sentence of one year on the Fifth Degree Criminal Possession conviction to run concurrently to Petitioner's sentences on the First and Second Degree Robbery counts. Certificate of Conviction - Imprisonment, January 3, 2013.[2]

On May 6, 2011, Petitioner's convictions were unanimously affirmed by the New York State Supreme Court Appellate Division, Fourth Department ("the Appellate Division"). See People v. Hammond, 922 N.Y.S.2d 706 (App. Div. 4th Dep't. 2011). Leave to appeal to the New York Court of Appeals ("the Court of Appeals") was denied on August 26, 2011. See People v. Hammond, 954 N.E.2d 96 (N.Y. 2011).

In the Petition, Petitioner asserts four grounds for federal habeas relief, specifically, that the convictions and sentences are based on (1) insufficient evidence to support Petitioner's defense of duress ("First Ground"); (2) an improper Sandoval [3] ruling ("Second Ground"); (3) prosecutorial misconduct ("Third Ground"); and (4) improper handling of jury notes ("Fourth Ground"), all in violation of the Due Process Clause of the Sixth and Fourteenth Amendments. On January 18, 2013, Respondent filed an Answer to the Petition (Doc. No. 5), accompanied by Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus (Doc. No. 6) ("Respondent's Memorandum").

On May 13, 2013, Petitioner filed Petitioner's Motion to Amend the Petition (Doc. No. 12) ("Petitioner's Motion to Amend") requesting only Ground One (duress) and Ground Four (improper handling of jury notes) remain under consideration for this court's review. Petitioner's motion to amend was granted on July 15, 2014 (Doc. No. 15).[4]

On July 10, 2014, Petitioner filed a Memorandum of Law in Support of the Petition for Habeas Corpus (Doc. No. 14) ("Petitioner's Memorandum"). By letter dated July 15, 2014 (Doc. No. 16), Respondent alleges that Petitioner's Memorandum of Law dated July 10, 2014 (Doc. No. 14) is untimely[5] and should be disregarded, and rests Respondent's opposition on Respondent's previously filed Answer and Respondent's Memorandum. Oral argument was deemed unnecessary.

Based on the following, the Petition is DISMISSED.


As stated, Petitioner challenges his conviction based on a September 3, 2008 robbery in Buffalo, New York, in which Petitioner, acting as an accomplice to a co-defendant, allegedly robbed Anthony Lee ("Lee") near Lee's place of work. At Petitioner's October 27, 2008 arraignment, Petitioner pleaded not guilty. Arraignment Hearing Tr. at 2.[7] A suppression hearing was held on February 4, 2009. Suppression Tr. at 8.[8] During the hearing, Buffalo Police Detective Al Liberatore ("Liberatore") testified that five minutes after receiving a radio dispatch pertaining to a robbery, Liberatore went to the location where the robbery occurred to question Lee about the incident. Suppression Tr. at 9. Upon receiving a description of the perpetrators from Lee, Liberatore dispatched a description of the suspects over his police car radio and proceeded to drive around the area with Lee in search of the suspects. Suppression Tr. at 10. Lee identified Petitioner's co-defendant George Hughes ("Hughes") as one of the suspects whom Liberatore then arrested, Suppression Tr. at 10-22; Liberatore and Lee then continued driving in order to apprehend the second perpetrator. Suppression Tr. at 22. After 30 to 40 minutes, Suppression Tr. at 28, Lee observed Petitioner standing on a street corner with three other men and identified Petitioner as one of the robbers. Suppression Tr. at 32. Liberatore testified that prior to approaching Petitioner to question Petitioner about the robbery, he saw Petitioner hand a cigarette to one of the men in the group. Suppression Tr. at 24. Seeing a second police car driving in the area, Liberatore waved to the car for backup, and, approaching Petitioner, Liberatore and the two officers from the second car, Officers Maiola ("Maiola") and Evans ("Evans"), engaged in a scuffle with Petitioner, tackled Petitioner to the ground and placed Petitioner in handcuffs. Suppression Tr. at 36. After frisking Petitioner for a weapon, Liberatore placed Petitioner in the second squad car while Petitioner was yelling at Lee. Suppression Tr. at 36.

Evidence at Petitioner's trial established that at approximately 3:00 P.M. on September 3, 2008, Petitioner and Hughes approached Lee in the parking lot of Save-A-Lot ("Save-A-Lot"), a grocery store located in the Broadway Market in Buffalo, New York where Lee worked as a shopping cart attendant, and told Lee that they wanted to smoke marijuana with Lee. (Tr. at 44). After talking for a few minutes, Petitioner and Hughes left the parking area where Lee was working. (Tr. at 45). Hughes returned a half an hour later and told Lee that Petitioner and Hughes were down the street and wanted Lee to come and join them. (Tr. at 46). Lee proceeded to the house across the street from Save-A-Lot to join Petitioner and Hughes. Id. After talking, laughing, and hanging out on the porch of the house for a short time, Petitioner and Hughes told Lee they were going to the side of the house to smoke. (Tr. at 47). Lee told Petitioner and Hughes that he was going back to work, and Hughes told Lee "come on, man, come on" while Petitioner approached the side of Lee's body. (Tr. at 47). After Lee repeated his desire to return to work, Petitioner looked in the direction of Hughes, instructing Hughes to "pull that thing out, pull that thing out." (Tr. at 48). Hughes told Lee to empty his pant pockets while at the same time pushing a hard silver and brown metal object into Lee's side that Lee identified as a gun. (Tr. at 49-50). Lee held his hands in the air while Petitioner continued to search Lee's pants pockets (Tr. at 50), from which Petitioner pulled a packet of cigarettes, $60 dollars cash, and a gold ring. (Tr. at 50-51). Petitioner and Hughes told Lee to walk toward Paderewski Street (Tr. at 52). Lee asked why Petitioner and Hughes were robbing him, and Petitioner told Lee that Hughes made him do it. (Tr. at 52). Hughes told Lee that he made Petitioner steal from Lee because Hughes would shoot them both. (Tr. at 52). Petitioner turned and ran down the street yelling that he would bring back Lee's belongings at 8:00 P.M. that night. (Tr. at 52). Hughes chased Petitioner down the street and around the corner (Tr. at 52), and Lee returned to Save-A-Lot to report the robbery to a security guard who then radioed the police. (Tr. at 59).


1. Standard of Review

In reviewing a state prisoner's petition pursuant to 28 U.S.C. § 2254, a district court must make an independent determination as to whether the petitioner is in custody in violation of any rights under the Constitution, or any laws or treaties of the United States. Coleman v. Thompson, 501 U.S. 722, 729 (1991), reh'g denied, 501 U.S. 1277 (1991).

In reviewing habeas petitions, a federal court is not permitted to act as appellate courts to review matters within the jurisdiction of the state courts, or to review specific rulings and decisions of state trial and appellate courts not involving federal constitutional claims; rather, the court is to determine whether the proceedings in the state court, as challenged by a habeas petition, amount to a violation of the Petitioner's federal constitutional rights as declared by the Supreme Court. 28 U.S.C. § 2254(d)(1); Coleman, 501 U.S. at 729. Accordingly, federal review of state court convictions are limited to errors of such federal constitutional magnitude as to necessarily deny the criminal defendant the right to a fundamentally fair trial. See Cupp v. Naughton, 414 U.S. 141, 147 (1973). Pursuant to 28 U.S.C. § 2254(e)("§ 2254(e)"), formerly 28 U.S.C. § 2254(d), the state court's determination as to evidentiary matters is presumed correct, unless the federal habeas court concludes that the relevant state court determination is not fairly supported by the record, Sumner v. Mata, 449 U.S. 539, 546-47 (1981), and it is the burden of the petitioner to establish, by clear and convincing evidence, that the court's factual determination is erroneous. 28 U.S.C. § 2254(e)(1). Section 2254(e), applies by its terms, "to factual determinations made by state courts, whether the court be a trial court or an appellate court." Sumner, 449 U.S. at 547.

Pursuant to § 2254, as amended by Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court must give substantial deference to a state court determination that has "adjudicated [the federal constitutional claim] on the merits." 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001). Specifically, AEDPA requires that where a state court has adjudicated the merits of a petitioner's federal claim, habeas corpus relief may not be granted unless the state court's adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...

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