Moore v. Heath

Filing 11

MEMORANDUM OPINION AND ORDER; The July 27, 2009 petition for a writ of habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. The Court also finds pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this Order would not be taken in good faith. The Clerk of Court shall dismiss this petition and close the case. (Signed by Judge Denise L. Cote on 12/14/10) Copies Sent By Chambers. (pl)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------X : CARL MOORE, : Petitioner, : : -v: : MR. HEATH, Superintendent, : Respondent. : : ----------------------------------------X DENISE COTE, District Judge:

09 Civ. 7236 (DLC) MEMORANDUM OPINION AND ORDER

On June 16, 2010, the Honorable Debra Freeman recommended that the petition for a writ of habeas corpus, filed on July 27, 2009 pursuant to 28 U.S.C. § 2254 by Carl Moore ("Moore"), be denied ("Report"). Report. Moore has not filed any objections to the

The Report is adopted for the reasons explained below.

BACKGROUND Following a bench trial, Moore was found guilty of one count of robbery in the second degree, one count of robbery in the third degree, and one count of grand larceny in the third degree. He was sentenced as a persistent felony offender to

concurrent indeterminate terms of imprisonment of sixteen years to life on the second-degree robbery count, two to four years on the third-degree robbery count, and two to four years on the grand larceny count. The evidence at trial established that

Moore snatched Susan Drummond's ("Drummond") purse and bags from her as she was turning onto Calhoun Avenue from Sampson Avenue

in the Bronx.

Drummond resisted Moore's attempt to steal her

property, and in the ensuing struggle Moore bit Drummond's left hand between her thumb and forefinger. Moore succeeded in

taking Drummond's bags and purse, but he was then apprehended by several bystanders while trying to flee. When EMS personnel arrived at the crime scene, they discovered that Moore had bit Drummond so hard that his teeth had pierced through a woolen glove she was wearing and left bite marks on her hand. places. The wound was also bleeding in several

Approximately an hour and a half after the incident, At that time, her Hospital staff

Drummond went to a hospital emergency room.

hand was still bleeding, although not heavily.

cleaned and bandaged Drummond's entire hand and gave her antibiotics, but Drummond was able to move her fingers and she did not require stitches. Drummond reported, however, that the

wound was quite painful and over the next two weeks she was required to keep her hand bandaged and was unable to use it. For the ten to fourteen days following the incident, Drummond took prescription pain medication to ease the throbbing pain and swelling. For some period thereafter, she continued to take

aspirin for pain relief. On January 3, 2008, the Appellate Division, First Department rejected the single ground raised by Moore on appeal:
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that the evidence adduced at trial was legally insufficient to support the verdict as to robbery in the second degree, since it failed to establish that the victim's physical condition had been impaired. 2008). People v. Moore, 848 N.Y.S.2d 654 (1st Dep't

The New York Court of Appeals denied leave to appeal on People v. Moore, 10 N.Y.3d 867 (2008).

May 6, 2008. DISCUSSION

A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). To accept those

portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United

Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat.1214, modified the standard under which federal courts review Section 2254 petitions where the state court has reached the merits of the federal claim. Habeas relief may not be granted unless the

state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of
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the evidence presented in the State court proceeding." U.S.C. §§ 2254(d)(1), (d)(2).

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State court factual findings

"shall be presumed to be corre