United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
pro se, Darren McEathron (“Petitioner”)
filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, alleging that he is
detained in Respondent's custody in violation of his
federal constitutional rights. For the reasons discussed
herein, Petitioner's request for a writ of habeas corpus
is denied, and the petition is dismissed.
BACKGROUND AND PROCEDURAL HISTORY
challenges the judgment entered against him on October 20,
2008, in the New York State, Steuben County Court (Furfure,
J.), following a jury verdict convicting him of Kidnapping in
the Second Degree (New York Penal Law (“P.L.”)
§ 135.20) and Assault in the Second Degree (P.L. §
120.05(6)). Briefly, the proof at trial established the
during the late afternoon of August 18, 2007, the 16-year-old
victim, “A.R., ” was riding her bicycle on
Telegraph Road near her home when a green Jeep SUV with a
yellow ladder on the roof passed by her twice. When she
turned down Birdseye Hollow Road, the Jeep passed her again.
A.R. described the area as being was mostly wooded, with no
houses. There was a pond with a picnic area, and a clearing
where a camper was usually parked. As A.R. biked behind the
camper, she saw Petitioner, whom she had never seen, standing
behind it. Petitioner ran after A.R. and struck her on the
right side of her face, causing her to fall off her bicycle
and hit her forehead on the ground.
tried to stand up, Petitioner continued to hit her, grabbing
her arm and pulling her toward the Jeep. A.R. reached down,
picked up a rock, and threw it at him, while screaming for
help. Petitioner let go of her, and A.R. ran around the
camper to get to the road. However, A.R. stumbled and fell
into a ditch, which allowed Petitioner to catch up to her. He
grabbed her hair and began pulling her to the other side of
the road, toward the woods.
asked Petitioner if he would release her if she did what he
wanted. Petitioner replied her that “Sandra” had
to see her, and when “Sandra” was done he would
let her go. A.R. asked him how “Sandra” knew her
and what did “Sandra” want with her. Petitioner
just said that “Sandra” wanted to see her and
that “Sandra” was waiting for her. Petitioner
forced A.R. to lie face down on the ground, and indicated
that “Sandra” was in the woods. Petitioner called
out for “Sandra” and told A.R. that she was
coming. A.R., however, did not hear anyone. Petitioner put
one foot on A.R.'s back and told her that he had a knife,
that he was holding it to the back of her neck, and that he
would kill her if she did not cooperate. A.R. did not see a
knife, but she felt something pressed against her, and
assumed it was the knife he referenced. Petitioner told A.R.
to stay on the ground while he went to get “Sandra,
” warning her that he had a gun in the Jeep. If A.R.
was not there when he returned, Petitioner threatened, he
would find her and kill her. Petitioner then walked out of
about 30 seconds, A.R. heard the sound of a car driving by.
She got up and ran deeper into the woods, losing a shoe in
the process. She ran to a road where she encountered a
husband and wife walking together. A.R. told them about the
attack, and the husband called 911.
the police investigation into the incident, Petitioner's
fingerprint was matched to a latent fingerprint found on a
knife recovered at the crime scene.
presented an alibi defense through his parents, James and
Carol McEathron. Carol and James McEathron, testified on
behalf of the defense. On August 11, 2007, Petitioner, along
with his wife, Barbara, and their son, moved into the
James' and Carol's home, at 12 Robie Street in the
Village of Bath. Carol recalled that on August 18, 2007, she
watched television with her grandson in the morning. Just
before noon, Petitioner went out with his wife and son. Carol
also went out; she drove James to his office and went grocery
shopping. When Carol returned home before 2:00 p.m., she saw
that Petitioner and his family were home eating lunch. At
about 2:30 p.m., Carol saw Petitioner go outside; he came
back into the house at about 3:30 or 3:40 p.m. Petitioner and
his wife planned to go out to dinner and a movie, while Carol
watched her grandson. Petitioner showered to get ready for
the evening. As he showered, there was a commotion.
Petitioner told Carol that he started to fall and put his
hand down to catch himself and hurt his hand. Carol left the
house at about 4:20 or 4:30 p.m. to pick up James at his
office. They returned home about 4:30 or 4:40 p.m. Petitioner
was home with his wife and son when Carol and James arrived.
Petitioner and his wife left for dinner at about 6:00 p.m.
Petitioner did not testify.
jury returned a verdict finding Petitioner guilty of both
counts charged in the indictment. He was sentenced to an
aggregate determinate term of 18 years' imprisonment and
5 years of post-release supervision. Petitioner's direct
appeal was unsuccessful. People v. McEathron, 86
A.D.3d 915 (4th Dep't 2011), lv. denied, 19
N.Y.3d 975 (2012). Likewise, Petitioner's collateral
motion to vacate the judgment and application for a writ of
error coram nobis were denied.
timely petition, Petitioner raises the following grounds for
habeas relief: (1) trial counsel was ineffective because he
(a) failed to impeach victim with her written statement in
order to establish the merger doctrine; (b) failed to request
a jury instruction on the merger doctrine; (c) failed to file
a motion to suppress Petitioner's statements to the
police and to suppress identification evidence; (d) failed to
challenge the grand jury proceeding; (e) stipulated to
certain evidence; and (f) failed to cross-examine
Investigator Albright; and (2) appellate counsel was
ineffective because he failed to argue that trial counsel was
ineffective for (a) failing to impeach the victim's
testimony and (b) failing to seek a jury instruction on the
merger doctrine. Respondent answered the petition and argued
that Petitioner's ineffective assistance of trial counsel
claims are unexhausted but must be deemed exhausted and
procedurally defaulted. In addition, Respondent contends that
the ineffective assistance of trial counsel claim based on
the failure to impeach the victim is also procedurally barred
pursuant to the adequate and independent state ground
doctrine. Finally, Respondent argues, none of
Petitioner's habeas claims have merit. Petitioner filed a
traverse, challenging some of Respondent's procedural
default arguments and disputing some of Respondent's
characterizations of the proof at trial.
reasons discussed below, the Court finds that none of
Petitioner's claims warrant habeas relief. ...