United States District Court, N.D. New York
Clarence Miller 04-B-3274 Elmira Correctional Facility
Petitioner pro se
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
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
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),  Criminal Use of a Firearm in the First
Degree (N.Y. Penal Law § 265.09 (1)(a), Criminal
Possession of a Weapon in the Second Degree (N.Y. Penal Law
§ 265.03 (2)), Assault in the Second Degree (N.Y. Penal
Law § 120.05 (2),  Assault in the Third Degree (N.Y. Penal
Law § 120.00(1)) and Reckless Endangerment in the Second
Degree (N.Y. Penal Law §120.20). 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.
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. 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.
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.
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.
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.
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.
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.
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
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. 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.
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
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.
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.
appellate counsel filed a brief in the Appellate Division,
Fourth Department. Dkt. No. 12-1 at 1-33. 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.
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.
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).
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
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
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, ...