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Miller v. Chapplus

United States District Court, N.D. New York

April 2, 2018

CLARENCE MILLER, Petitioner,
v.
PAUL D. CHAPPLUS, JR., Respondent.

          Clarence Miller 04-B-3274 Elmira Correctional Facility Petitioner pro se

          Hon. Eric T. Schneiderman Attorney General for the State of New York New York Office Attorneys for Respondent

          MICHELLE ELAINE MAEROV, ESQ. Assistant Attorney General

          REPORT-RECOMMENDATION AND ORDER [1]

          CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

         Presently pending before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by petitioner pro se Clarence Miller (“petitioner”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Dkt. No. 1 (“Pet.”). On November 30, 2004, after a jury trial in Onondaga County Court, petitioner was convicted of Kidnaping in the Second Degree (N.Y. Penal Law § 135.20), [2] Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09 (1)(a), [3]Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03 (2)), [4]Assault in the Second Degree (N.Y. Penal Law § 120.05 (2), [5] Assault in the Third Degree (N.Y. Penal Law § 120.00(1))[6] and Reckless Endangerment in the Second Degree (N.Y. Penal Law §120.20).[7] On May 4, 2016, petitioner filed a pro se petition seeking a writ of habeas corpus on the grounds that (1) his trial counsel was ineffective; (2) the trial court erred in admitting his police booking video in petitioner's absence; (3) the trial court erred in admitting evidence of an excited utterance; and (4) legal insufficiency. See Pet. at 5-10. Respondent opposes the petition. Dkt. No. 10. Petitioner filed a traverse requesting that the Court conduct an evidentiary hearing. Dkt. No. 19. For the reasons that follow, the Court recommends that the petition be denied.

         I. Background

         A. Procedural History

         Petitioner was indicted by an Onondaga County grand jury on one count of Kidnapping in the Second Degree (N.Y. Penal Law §135.20), one count of Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09 (1) (a), one count of Criminal Possession of a Weapon in the Second Degree(N.Y. Penal Law § 265.03 (2)), one count of Assault in the Second Degree (N.Y. Penal Law § 120.05 (a)), one count of Assault in the Third Degree (N.Y. Penal Law § 120.00(1), and one count of Reckless Endangerment in the Second Degree (N.Y. Penal Law § 120.20). On July 26, 2004, petitioner was arraigned on the indictment in Onondaga County Court. Arraignment Tr. at 2.[8] Petitioner entered a plea of not guilty to the indictment. Id. On November 8, 2004, a jury trial commenced before the Hon. William D. Walsh, Onondaga County Court Judge. Id. at 5.

         The following facts were adduced at trial. On May 31, 2004, petitioner called Cindy Mateo who he had recently begun dating. Trial Tr. at ¶ 447-50. Petitioner asked Ms. Mateo if they could get together that evening. Id. at 452. When Ms. Mateo declined, petitioner hung up the telephone. Id. Petitioner called back moments later, and asked Ms. Mateo to return a cellular phone that he had given her as a gift. Id. Ms. Mateo agreed to return the phone. Id. at 453.

         Ms. Mateo drove to petitioner's residence in Syracuse. Trial Tr. at 454. When Ms. Mateo pulled into the driveway, petitioner's uncle, Norman Miller, informed her that petitioner was inside. Id. at 456. Petitioner came out of the residence and asked Ms. Mateo to return to her vehicle; she complied. Id. at ¶ 454-56, 560-63. Petitioner got in the vehicle with her. Id. at 456. Petitioner instructed Ms. Mateo to back out of the driveway. Id. When she asked why, petitioner brandished a gun and told her if she did not obey she would “get slayed right here.” Id. at 457. Ms. Mateo refused to back out of the driveway, and petitioner struck her in the forehead with the gun. Id.

         Ms. Mateo backed her vehicle out of the driveway and began to drive as directed by petitioner. Trial Tr. at 458. As Ms. Mateo was driving, petitioner repeatedly struck her with the gun and told her he was going to kill her. Id. He also took bullets out of his pocket and loaded the gun. Id. at 458-59. Petitioner instructed Ms. Mateo to drive to West Onondaga Park. Id. at 458. Once they arrived at the park, petitioner told Ms. Mateo to stop the car. Id. at 461. When she attempted to exit the vehicle, petitioner struck her face. Id. at 461-62. At gun point, petitioner ordered Mateo to switch seats with him. Id. at 462.

         Petitioner drove Ms. Mateo to Onondaga Community College as he was “looking for a place” where he could “shoot [her] and no [one] would hear.” Trial Tr. at 464. When they arrived at Onondaga Community College, the parking lot was full of police cars, and petitioner continued to drive around Syracuse. Id. at 464-65. As Petitioner was driving, he continued to strike Ms. Mateo. Id. at 467. Petitioner drove to Kirk Park. Id. At Kirk Park, petitioner exited the vehicle and instructed Ms. Mateo to look at him. Id. at 469. Petitioner tore the earring out of one of her ears, stating: “you're not going to need these where you are going.” Id. at 469. Petitioner first shot the gun away from the car, before firing at Ms. Mateo, narrowly missing her. Id. Petitioner returned to the vehicle, struck Mateo, and started driving. Id.

         Petitioner left Kirk Park and drove to his residence. Trial Tr. at 473. When they arrived at his residence, petitioner went in the house to store the gun. Id. at 474. Petitioner returned to the car and sat in the driver's seat. Id. Petitioner resumed screaming at and striking Mateo. Id. at 477. He also called a number of people and told them they should come over and have sex with Ms. Mateo. Id. at 477. Ms. Mateo begged petitioner to take her back to her residence so she could say goodbye to her son. Id. 479. Petitioner conceded, and drove Ms. Mateo back to her apartment. Id. As they were driving towards the apartment, petitioner continued to beat her and tell her he was going to kill her son. Id. at 479-80. When they arrived at Ms. Mateo's apartment, her clothes were covered in blood. Id. at 480. Ms. Mateo's son, her niece, and Ms. Mateo's friend, Carl Ingraham, were in the apartment. Id. at 481. When the children asked what had happened, Ms. Mateo told them that she fell down, as petitioner had instructed. Id. at 480, 481. Ms. Mateo whispered to Mr. Ingraham and asked him to help her. Id. at 482. Mr. Ingraham left the apartment and called 911. Id. at 633.

         After Mr. Ingraham left, petitioner and Ms. Mateo entered the bedroom. Trial Tr. at 486. Petitioner threw Mateo on the bed and threatened to rape her. Id. Ms. Mateo's son came into the bedroom. Id. When he refused to leave Ms. Mateo yelled at him to leave the bedroom. Id. at 488. Shortly thereafter, Mr. Ingraham called 911, and the police and paramedics arrived at the apartment. Id. at 491. Ms. Mateo initially told the police and paramedics that she sustained her injuries from a fall. Id. However, she testified that she did so because petitioner was present. Id.

         Ms. Mateo left the apartment in an ambulance. Trial Tr. at 492. She informed the ambulance driver that petitioner had tried to kill her. Id. Ms. Mateo was transported to the hospital where she received stitches in her head. Id. at 494. Based on Ms. Mateo's statements, petitioner was placed under arrest. Id. at 359. While petitioner was being booked at the police station he acknowledged that he was Clarence Miller. Id. at 362, 373-78. During the booking process the police recovered two nine millimeter bullets from petitioner's pants pocket, and seized his bloodstained shirt. Id.[9] While at the police station, petitioner stated that he and Ms. Mateo had gotten into an argument that had “gotten out of hand.” Id. at 410.

         The next day, the police executed a search warrant at petitioner's residence. Trial Tr. at 395, 414-26. The police focused their search on petitioner's bedroom. Id. at 417-19. During the search, a safe was removed from the bedroom petitioner shared with Mr. Miller. Id. at 422. The officers opened the safe at the police station, and recovered an operable black handgun with a distinctive rubber band around the grip. Id. at 423-24.

         The jury found petitioner guilty of Kidnaping in the Second Degree, Criminal Use of a Firearm in the First Degree, Criminal Possession of a Weapon in the Second Degree, Assault in the Second Degree, Assault in the Third Degree, and Reckless Endangerment in the Second Degree. Trial Tr. at 752-55. Petitioner appeared for sentencing on November 30, 2004. Tr. at 1. Petitioner's counsel made an oral motion, pursuant to New York Criminal Procedure Law § 330.30(1), to set aside the verdict on the grounds that Ms. Mateo's testimony was insufficient as it failed to establish each and every element of each and every crime charged in the indictment. Id. at 4-5. The Court orally denied petitioner's motion. Id.

         at 5. The Court adjudicated petitioner a second felony offender, and imposed the following determinant prison sentences: twenty-five years for Kidnaping in the Second Degree, twenty-five years for Criminal Use of a Firearm in the First Degree, fifteen years for Criminal Possession of a Weapon in the Second Degree, seven years for Assault in the Second Degree, one year for Assault in the Third Degree and one year for Reckless Endangerment in the Second Degree. Id. at 15-16. The Court ordered that the sentences for Kidnapping, Criminal Possession of a Weapon, Assault in the Second Degree, Assault in the Third Degree and Reckless Endangerment run consecutively to the twenty-five year sentence imposed for Criminal Use of a Firearm. Id. at 16. As a result petitioner, received a forty year determinate sentence. Id.

         Petitioner's appellate counsel filed a brief in the Appellate Division, Fourth Department. Dkt. No. 12-1 at 1-33.[10] In the brief, counsel argued that: (1) trial counsel was ineffective in failing to object to the prosecutor's inflammatory and prejudicial remarks in her opening statement and summation; (2) Ms. Mateo's utterance to the paramedic was improperly received in evidence, as it was hearsay and bolstered Mateo's testimony; and (3) petitioner's convictions were against the weight of the evidence and unsupported by a legally sufficient evidence. See id. at 1-34. Appellate counsel further argued that the forty year determinate sentence imposed by the Trial Court was illegal. See id. at 25-33.

         The Appellate Division modified the judgment of conviction by ordering that petitioner's sentences run concurrently and unanimously affirmed the conviction as modified. Dkt. No. 12-1 at 191-94; see generally People v. Miller, 115 A.D.3d 1302 (N.Y.App.Div.

         2014). The Appellate Division rejected petitioner's claim that he was denied a fair trial based upon prosecutorial misconduct during the prosecutor's opening and closing statements. Id. at 191. The Court noted that petitioner did not raise any objection at trial to the allegedly improper comments, and, therefore, failed to preserve the issue for review. Id. The Court rejected petitioner's argument that his trial counsel was ineffective as he “failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings, and the record establishes that defense counsel provided meaningful representation to defendant.” Id. at 191-192. (internal quotations and citations omitted).

         The Appellate Division held that the question of the admissibility of an excited utterance is first entrusted to the trial court. Dkt. No. 12-1 at 192. The Court found that the utterance was properly admitted as “ at the time the utterance[s were] made (the victim) was in fact under the stress of excitement caused by an external event significant to still . . . her reflective faculties' . . . .” Id. (quoting People v. Bryant, 27 A.D.3d 1124, 1126 (N.Y.App.Div. 2006)). With respect to petitioner's claim that Ms. Mateo's excited utterance to the paramedic was improperly received in evidence, the Appellate Court found that as petitioner failed to raise a specific objection at trial, it was unpreserved for appellate review. Id.

         The Appellate Division rejected petitioner's argument that the evidence at trial was legally insufficient to support his convictions. Dkt. No. 12-1 at 192. The Court stated that “[N]othing in the record suggests that the victim was so unworthy of belief as to be incredible as a matter of law or otherwise tends to establish defendant's innocence of those crimes . . ., And thus it cannot be said that the jury failed to give the evidence the weight should be accorded.” Id. at 193 (internal quotations and citations omitted).

         Petitioner's counsel sought leave to appeal to the New York State Court of Appeals. Dkt. No. 12-1 at 195-97. On July 21, 2014, the Court of Appeals denied petitioner's application. Dkt. No. 12-1 at 199. Petitioner subsequently filed a pro se motion for a writ of error coram nobis with the Appellate Division, Fourth Department. Dkt. No. 12-1 at 200-27. In his motion, petitioner argued that his appellate counsel was ineffective because she failed to assert that: (1) his trial counsel was ineffective in failing to request that petitioner be present during a critical stage of the trial; (2) his trial counsel erred when he stipulated that the prosecution witness was qualified to give expert testimony; and (3) the weapons count was against the weight of the evidence in the absence of any proof that the prosecution's weapons expert did not test fire the two bullets recovered with the weapon. See id. On December 23, 2015, ...


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