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Harvey v. Capra

United States District Court, N.D. New York

March 29, 2017

MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.


          JAMES K. SINGLETON, JR. Senior United States District Judge

         Gregory Harvey, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Harvey is in the custody of the New York State Department of Corrections and Community Supervision and incarcerated at Sing Sing Correctional Facility. Respondent has answered the Petition, and Harvey has replied.


         On May 2, 2006, Harvey was charged with first-degree rape, third-degree assault, second-degree unlawful imprisonment, and fourth-degree criminal mischief in connection with an incident that took place at the Holiday Motel in the Town of Schuyler on March 13, 2006. Upon request, Harvey was examined by the Rochester Psychiatric Center. The Center's report indicated that Harvey was unable to assist his attorney in his own defense. At a hearing before the county court on the issue, Harvey denied that he was incompetent, but the court committed him to the custody of the Office of Mental Hygiene.

         In October 2006, the court received a report from Mid-Hudson Forensic Psychiatric Center that determined that Harvey was fit to proceed. Defense counsel requested a competency hearing, which was held on February 28, 2007. At the hearing, Harvey was warned after a number of disruptions that he would be removed. Harvey then interjected that there was no evidence of his crimes, that he had not been indicted, and that he would sue the court. Harvey was forcibly removed from the courtroom, and the county court placed on the record that Harvey was constantly shouting at the court while the court was attempting to speak as the cause for removal. Dr. Phone Win, a forensic psychiatrist and pathologist at Mid-Hudson Psychiatric Center testified that Harvey understood the charges against him and the trial process and was mentoring other patients. He testified that Harvey understood the importance of working with his attorney and his belief that Harvey was fit to proceed. The court deemed Harvey competent to stand trial.

         On May 21, 2007, the court held a hearing to determine if Harvey would be shackled during the trial. Officer Barnes, a corrections officer, testified as to incident reports at the facility housing Harvey, which referred to seven separate instances involving harassment, threats, tampering, disorderly conduct, damage, and contraband. Sergeant Hart testified that, two weeks prior to the hearing, Harvey refused to take his medicine and threatened in writing to kill the sheriff and his family on the refusal form. The court also agreed to the prosecution's request that it take judicial notice of Harvey's removal from the competency hearing. Harvey also testified. He indicated that no other facility would take him due to his behavior, even though he is supposed to be at a facility with a 24-hour medical staff and mental health counselor. Harvey asserted that his rights were being violated and that he wished to file lawsuits against the facility. When his attorney asked him if he could make assurances to the court that he could proceed to trial without shackles, Harvey stated that he had no problem with court. The court stated that it was concerned with Harvey's previous appearance and with the recent specific threat. The court concluded that, based on Harvey's prior attitude and actions in the courtroom, Harvey would remain shackled during trial for safety concerns. The court directed that Harvey's writing hand remain free and that he be supplied with a soft-tipped writing instrument. Prior to jury selection, the court advised the jury that Harvey was in custody, had deputies around him, and was in handcuffs. The court instructed the jurors that the fact Harvey was in custody was not evidence and could not be considered evidence and that the jury must afford him the presumption of innocence. The jury asked for, and received, the panel's assurance that they could provide that presumption.

         During trial, the victim testified that she had been in a sexual relationship with Harvey and was with him at the Holiday Motel on the evening of March 13. According to the victim, Harvey went through her phone and found a man's name in it, which caused them to argue. Over a half-hour period, Harvey hit her numerous times, causing her to repeatedly hit the floor. When she tried to dial 911, Harvey smashed her phone and threw her on the bed. The victim testified that Harvey forced himself inside of her multiple times, while she kept saying “no.” She asked to leave, but Harvey would not let her. She testified that she spent the night there because she was scared and Harvey had threatened to hurt her kids. She testified that, the following day, she remained in the room after Harvey left and the maid came. She replied “yes” when the maid asked if she needed help, and told the maid what had happened. The maid called a woman's shelter, who arranged for a cab to take her to a safe place in Utica. The following day, the victim was taken to the emergency room. Upon stipulation, the victim's medical records from the hospital were admitted as an exhibit. Upon cross-examination, the victim stated that it was not until March 15, two days after the incident, that the maid came and she left the room. She testified that Harvey stayed in the room on March 14. Employees for the cab company and the hotel testified that a cab company picked up the victim from the hotel on March 15. A witness at the hotel testified that he had heard a woman crying from Harvey's room on the evening of March 13. A representative from Harvey's employer testified that Harvey's time sheet indicated that he did not work on March 14. Finally, a law enforcement officer testified that he interviewed the victim on March 15 and took her statement and photos of her. The prosecution then rested. The defense then moved for dismissal of the rape charge on the ground that it was not supported by physical evidence, and the medical records showed no trauma to the vaginal area, and also moved to dismiss the unlawful imprisonment charge for lack of evidence. The court denied the motion, finding that the arguments went solely to the weight of the evidence. The defense then rested.

         The jury found Harvey guilty of all counts of the indictment except for fourth-degree criminal mischief. Harvey later appeared with counsel for sentencing and immediately swore at the court and called the judge a racist. The court indicated that sentencing would continue despite Harvey's profanities. The court gave Harvey a sentence of 20 years' imprisonment on the first-degree rape conviction, with 5 years of post-release supervision. Harvey was sentenced to 1-year imprisonment on each of the third-degree assault and unlawful imprisonment convictions, to run concurrently with the rape sentence.

         Through counsel, Harvey appealed his conviction, arguing that: 1) his shackling during trial violated his constitutional rights; and 2) the verdict was against the weight of the evidence and not supported by legally sufficient evidence. Harvey also submitted a pro se supplemental brief, in which he argued that: 1) his trial counsel was ineffective; 2) the state police did not have probable cause to arrest him; 3) the prosecutor withheld exculpatory information; and 4) the trial judge was biased against him. On November 9, 2012, the Appellate Division of the New York Supreme Court unanimously affirmed the judgment against Harvey in a reasoned opinion. People v. Harvey, 953 N.Y.S.2d 439, 440 (N.Y.App.Div. 2012). Harvey sought in the New York Court of Appeals review of the claims raised in both his counseled and supplemental briefs. The Court of Appeals summarily denied leave on May 14, 2013.

         The record indicates that Harvey then attempted to file a writ of error coram nobis in the Appellate Division, but the motion papers were returned to him as improperly filed. The record does not indicate that Harvey re-filed the papers in the Appellate Division. Rather, he sought leave in the Court of Appeals to appeal the Appellate Division's rejection of his motion papers, which Respondent indicates was not received by the Court of Appeals.

         Harvey then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on May 12, 2014.


         In his pro se Petition before this Court, Harvey argues that: 1) his arrest and indictment were illegal; 2) the prosecutor wrongfully withheld exculpatory evidence; 3) his trial and appellate counsel were ineffective; and 4) he is actually innocent of the crimes of which he was convicted.[1]


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. ...

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