United States District Court, Western District of New York
DALE A. BENTON, Jr., Petitioner,
D. LACLAIR, Superintendent, Franklin Correctional Facility, Respondent.
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE
Proceeding pro s e, Dale A. Benton, Jr. ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is in Respondent's custody as the result of a judgment of conviction entered in New York State County Court, Monroe County (Geraci, J.), on January 7, 2009, convicting him, following a jury trial, of Robbery in the First Degree (New York Penal Law ("P.L.") § 160.15(4)).
II. Factual Background and Procedural History
A. Petitioner's Trial, Sentencing, and Appeal
The Robinson family owned a deli and grocery store on Pullman Avenue in the City of Rochester. There was a clothing store, also owned by the Robinson family, attached to the deli/grocery store. On December 17, 2007, eleven-year-old Abrielle Robinson ("Robinson") had a "snow day" from school, so she was working at the store that afternoon; Randloff Scott ("Scott"), whom Abrielle considered her uncle,  was working at the clothing store. There were no other employees working at the time.
While Robinson was working at the front cash register, two African-American men came into the deli/grocery store and then went over to the clothing store. About ten or fifteen minutes later, one of the men came up to Robinson and said something she did not understand. Robinson later identified this man, who was wearing denim jeans and a tan hoodie, as Petitioner. Robinson glanced down to get something, and when she looked back up, Petitioner was pointing a black handgun at her face. Petitioner said, "[D]on't scream, don't say anything, shorty, don't do nothing." T.251. When Robinson tried to push the panic button under the counter, Petitioner told her not to do that, and she complied. Petitioner then came around the counter and ordered her to open the register. Robinson opened the cash register as directed, and Petitioner removed money out of it. He then instructed Robinson to open the Lotto machine, but Robinson said that there was no money in it. Petitioner told Robinson to give him some Newport cigarettes instead.
Petitioner then went back to the public side of the counter, still holding the gun. He said, "[S]orry, shorty, " and ordered her to not tell anybody what had occurred.
Robinson estimated that her encounter with Petitioner lasted about ten to fifteen minutes. After Petitioner left the store, Robinson started to cry and called her parents, who told her to call 911. Instead, Robinson used the panic button to summon help. Robinson's parents arrived at the store before the police.
Robinson went to the police station the same day as the robbery and gave a description of the robber to Investigator Kirk Pero ("Inv. Pero") of the Rochester Police Department. Robinson described him as an African-American male in his early 30's, about 6' tall and 160 pounds, with facial hair. (Petitioner was 21 years- old at the time and 6'1"-tall and 160 pounds.) Based upon her description, Robinson was shown about 300 photos; this grouping of photos did not include one of Petitioner. Robinson told the police that she did not see the robber or Petitioner in any of those 300 photos; this grouping of photos did not include one of Petitioner. Robinson told the police that she did not see the robber or Petitioner in any of those 300 photos.
Inv. Pero testified that the men depicted in the photos shown to Robinson were similar in appearance to Petitioner, but he agreed that Petitioner was 21 years-old while the men in the photos were in the 30- to 36-year-old range. Inv. Pero explained that, in his experience with child victims, they tend to have trouble estimating age.
Two days later, Robinson returned to the police station with her mother to check on the progress of the investigation. There she saw a Crime Stoppers poster on the wall with a picture of Petitioner and the man who had come into the store with him on the day of the robbery (an individual named Giles who apparently was never charged). Robinson's mother obtained a copy of the poster and displayed it in the front of the store for about a month.
On October 22, 2007, a week before trial, Robinson attended a line-up procedure during which she selected the man in Position Number 2 (Petitioner) as being the robber and the person she recognized in the Crime Stoppers poster. Abrielle told police, "I recognize him from the newspaper and I think he's the one that held a gun to my head." T.285.
On February 1, 2008, the police found Petitioner at a Comfort Inn Hotel near the airport. The room had been booked by a woman named, Shannon Levert ("Levert"). Levert testified as a defense witness that she was the mother of Petitioner's 6-year-old son. On December 17, 2007, Petitioner's son had stayed home from school on suspension. Petitioner also had stayed home that entire day, except for a brief period in the morning. Levert had a criminal record for cashing fraudulent checks and was on probation when she testified. Levert acknowledged that the Robinson's store was not too far from her home.
Petitioner testified that, in December 2007, he was on probation for a felony conviction and had violated his probation terms by failing to report. On December 17, 2007, Petitioner testified, he stayed home with Levert and their son, except for a quick trip to the store in the morning, because there was a snow storm. Petitioner denied robbing Robinson or having ...